Judge Reverses His Own Gag Order

December 6, 2014 permalink

When the Connecticut Law Tribune wanted to print an article on a civil case involving a juvenile, a judge issued a gag order preventing publication. Nothing unusual so far. But when the journal decided to appeal the decision, the judge vacated his own order, leaving it free to publish the story.

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Judge Lifts His Order Barring CT Law Tribune From Publishing Story

By Alaine Griffin, December 3, 2014

NEW BRITAIN — A Superior Court judge lifted his own ruling Wednesday that prohibited the Connecticut Law Tribune from publishing a story about a child protection case, saying the order no longer made sense because information about the case had already been published by other media outlets.

"If we don't get a ruling from the Supreme Court that clarifies what the rules on prior restraint are in Connecticut or even clarity that this prior restraint wasn't OK under federal law, then what is going to stop this judge or any trial court judge in the future from issuing a similar order without that clarity?" said Sandra Staub, legal director of the American Civil Liberties Union of Connecticut.

Wednesday's order followed an emergency hearing Frazzini held Monday in Superior Court in New Britain about his decision and a move last Friday by the state Supreme Court to transfer the Law Tribune's appeal of Frazzini's order "to itself." Last week, Daniel J. Klau, the attorney representing the Law Tribune, filed a motion asking the state's appellate court to stay Frazzini's order.

That prior restraint order — which Frazzini issued orally from the bench and later explained in a 17-page ruling that was unsealed late Wednesday — was sharply criticized by free-speech advocates but lauded by those who argue that privacy issues in child protection cases trump First Amendment rights.

Late Wednesday, the state Supreme Court ordered all parties in the case to file written briefs by Dec. 10 that explain why the appeal should not be dismissed as moot in light of Frazzini's reversal of the prior restraint and his decision not to put a stay on that reversal, Klau said.

"The Supreme Court should hear the case and issue a decision that explains clearly that the First Amendment does not allow what Judge Frazzini did in this case, so no judge does something similar," Klau said.

The Law Tribune's appeal is supported by a friend-of-the-court brief filed by the American Civil Liberties Union of Connecticut, two open government organizations, three media organizations and more than a dozen media outlets, including the Hartford Courant.

The attorney for the mother involved in the family case, Steven Dembo, who requested the injunction, did not return a call Wednesday seeking comment.

Dembo Monday had urged Frazzini not to vacate his ruling, saying the court needed to follow state laws regarding the privacy of juveniles in court to ensure that no further information was published about the case. The father wants his children removed from the custody of the state Department of Children and Families and has filed documents in court that have since gone public.

In juvenile cases in Connecticut, judges have the discretion to allow only certain participants to attend court proceedings. State law says the court "may, for the child's safety and protection and for good cause shown, prohibit any person or representative of any agency, entity or association, including a representative of the news media, who is present in court from further disclosing any information that would identify the child, the custodian or caretaker of the child or the members of the child's family" involved in the hearing.

Klau had objected to the mother's motion, saying a prior restraint on the publication was a violation of the First Amendment. Prior restraint orders are often found to be unconstitutional. A widely recognized exception is in cases that involve national security.

In issuing the prior restraint, Frazzini said in his decision that he weighed the confidentiality of juvenile records and proceedings and protecting the identity of children in the case against the Law Tribune's right to publish their story, Klau said.

Frazzini decided that the confidentiality of the children and the potential for harm to them if their names were made public outweighed the First Amendment rights of the Law Tribune to publish, Klau said.

But after his ruling, news outlets wrote about the child protection case and in some cases, published a document related to the case that was once made public but was later sealed.

At Monday's hearing, Frazzini questioned his initial ruling, asking attorneys on both sides of the issue whether his order still protected the interests of those he set out to protect in the first place since information about the case has been published.

Though widespread news coverage related to the child protection case has focused on the judge's controversial ruling, some stories have included details about the case and identified the family members involved.

Frazzini said Wednesday that the the order served no particular purpose any longer, given what had already been published and how widespread the story had become, Klau said.

Klau said it was unclear late Wednesday when the Law Tribune would publish the story.

William V. Dunlap, a professor of constitutional law at Quinnipiac University School of Law, said he expected Frazzini's prior restraint order to be reversed by Frazzini himself or a higher court because it was so "patently unconstitutional."

Frazzini "probably would prefer just to settle it now and not have it go up on appeal, but the parties involved and the press in general have an interest in getting a broader decision on it," Dunlap said.

Source: Hartford Courant