A New Jersey judge, in a highly unusual decision, has barred a Trenton newspaper from publishing articles on a 5-year-old boy who authorities said had taken heroin and crack cocaine to school.
The state has argued that publication of information about the case would harm the confidentiality of the proceedings.
Such cases of "prior restraint," however, are highly unusual and typically are deemed to breach First Amendment protections once they reach the appellate level, if not before.
But Superior Court Judge Craig Corson issued a temporary restraining order in October banning the Trentonian newspaper from publishing details of a confidential child-abuse complaint obtained by the newspaper.
A hearing to determine whether the order should be continued was to have been held Tuesday but was postponed. New Jersey officials have argued that divulging confidential details of child-abuse cases would harm the interests of the child while making such cases much more difficult to investigate.
Pepper Hamilton, the Center City law firm representing the newspaper, declined to comment on the substance of the case Tuesday. But David S. Bralow, a First Amendment lawyer at the firm, said prior restraint is rare.
"The reason why prior restraints are such an extraordinary remedy is that they prevent speech from happening at its inception," he said. "The usual remedy for speech that causes harm has been any number of constitutional and procedural protections. If someone speaks and it is considered defamatory, there are court actions that will occur, and there are defenses both common law and constitutional and a judge will make a determination. There can be an appellate remedy and there will ultimately be a final decision.
"All of those protections are in place so that we don't freeze speech," he said
The Trentonian has published extensive details of the case, even as it battles the judge's order barring it from divulging the content of the state's abuse complaint.
The case began when child-protection officials took custody of the boy from his mother, Tashawn Ford, and gave the child to his grandmother. Earlier this year, officials at the International Academy of Trenton charter school twice found the child with narcotics, first with packets of heroin and later with crack cocaine, the Trentonian reported.
The state Division of Child Protection and Permanency again moved to take custody of the child, and its complaint detailing the case was obtained by a Trentonian reporter, Isaac Avilucea.
The reluctance of courts to ban publication of certain information, even before the public has any possibility of making a judgment, has deep roots in American and English law. The eminent British jurist William Blackstone observed that prior restraint effectively destroys press freedom and denies the public any possibility of making a judgment whether the information is truthful and of public import.
Yet there are numerous instances in which publication of facts is banned by law. Troop movements during wartime is the classic example, but others include grand jury testimony, classified intelligence documents, and documents of various kinds that are sealed in civil and criminal court proceedings.
Still, courts' ability to ban publication of even these documents before the public has had a chance to assess them is extremely confined.
In the best-known Supreme Court case on the issue, President Richard Nixon's 1971 request to ban the New York Times and the Washington Post from publishing a secret government account of the Vietnam War, called the Pentagon Papers, was denied in a 6-3 decision. The court found that the government had failed to clear the extraordinary hurdles in the way of pre-publication bans.