NEFAC Decries Conn. Court Order Banning Publication of Article Based on Public Record

FOR IMMEDIATE RELEASE

CONTACT Justin Silverman | 774.244.2365 | justin@nefirstamendment.org

The New England First Amendment Coalition is deeply concerned about a recent court order preventing the Connecticut Law Tribune from publishing an article based on a publicly released document related to a child custody case. NEFAC believes this order is an unconstitutional prior restraint and a clear violation of the First Amendment.

New Britain (Conn.) Superior Court Judge Stephen Frazzini verbally issued the order from the bench on Monday at the request of the mother of the children involved in the case. A transcript of the order and the proceeding — which a reporter for the Law Tribune was barred from covering — is currently sealed. The Law Tribune objected to the order, unsuccessfully arguing that “prior restraints on speech and publication are the most serious and the least tolerable infringements on First Amendment rights.” The paper’s attorney, Daniel J. Klau, has filed an appeal. A coalition of media organizations, including NEFAC, plans to file an amicus brief supporting the paper’s position.

While the public’s right to know sometimes conflicts with individual claims of privacy, the First Amendment helps determine the balance point between the two interests. Under the First Amendment, the freedom to publish lawfully obtained and truthful information can be restrained in only very rare cases, usually involving national security.

This doctrine has solidified during the last 40 years and was the central issue in New York Times Co. v. United States, 403 U.S. 713 (1971). In that case, the U.S. Supreme Court refused to stop The New York Times from publishing classified documents — also known as the Pentagon Papers — that detailed American involvement in the Vietnam War. The court cited a “heavy presumption against” prior restraints and that presumption continues to be an essential protection for journalists to this day.

The privacy interests involved in a child custody hearing are significant and should not be marginalized. The ability of the press to report on concerns of public interest without fear of government interference, however, is of far greater magnitude. The Law Tribune obtained its information lawfully and intended to report a story involving the court system, a topic of great public concern. For a prior restraint to be constitutional — if one ever is — the information to be withheld must be akin to the number and location of soldiers on a battlefield. Child custody proceedings fall far short of that standard.

Judge Frazzini overreached by imposing what amounts to pre-publication censorship. NEFAC hopes his order is reviewed promptly and overturned. The fundamental First Amendment presumption against prior restraints must be reaffirmed.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.