A New Jersey Judge Defies the First Amendment by Censoring News Coverage of a High School Lockdown

On May 8, a 16-year-old student with an airsoft pistol in his waistband 
triggered a lockdown at New Brunswick High School in New Jersey. New 
Brunswick Today's coverage of the incident, which included posting leaked 
security camera footage on its YouTube page, triggered an even more 
descriptions of it. Last week, New Jersey Superior Court Judge Thomas D. 
McCloskey modified that order, allowing reporting on the lockdown that 
does not reveal the student's identity. But at the same time, he extended 
the restrictions to cover every journalist in the United States.

Such prior restraints on freedom of the press are presumptively 
unconstitutional. McCloskey's injunction is "one of the worst censorship 
orders we've ever seen," says the Freedom of the Press Foundation (FPF). 
"Forcing news outlets to delete or withhold information and to submit 
their work for government approval before they can publish is censorship, 
full stop," notes Caitlin Vogus, the FPF's senior adviser for advocacy. 
never allowed. Neither judges nor the law can censor the press."

McCloskey's initial order, which he proposed on May 29 and issued on June 
9 in response to an application from the New Brunswick Board of Education, 
required "immediate removal of confidential security/surveillance video 
taken at Plaintiff's New Brunswick High School." It also enjoined New 
Brunswick Today from "any and all future postings of confidential school 
security/surveillance video as taken at any of the schools in the 
Plaintiff's District." Even more remarkably, McCloskey prohibited the news 
outlet from "writing or posting about the content of the confidential 
video footage of the [16-year-old] juvenile/student specifically at issue 
in this matter."

New Brunswick Today asked McCloskey to rescind that order, noting the 
grave First Amendment concerns it raised. His revised order, issued on 
July 9, scaled back the prior restraints. McCloksey lifted the ban on 
describing the content of the May 8 video, "so long as the name(s) and 
identity(ies) of the 16-year old juvenile/student, and of
any and all other juvenile/students depicted in the video footage, is/are 
not revealed or identified in any way or manner whatsoever."

McCloskey also allowed New Brunswick Today to post the video itself but 
required that it first "modify the footage by redacting or blurring out 
the identities of all juvenile students depicted in it" and "present the 
modified footage to Plaintiff and its counsel for review and approval, 
with copy to the Court." He imposed those requirements even while 
conceding that "the video was already published and in the public domain," 
saying "the juvenile's identity and image remain sensitive."

Even as he narrowed the terms of his order, McCloskey broadened the 
targets to include not only New Brunswick Today but also "the press" 
generally. Judges "have no authority to issue orders binding unidentified 
journalists across the country who aren't in their courtroom or parties to 
any case before them," Vogus notes. "Similar orders have been overturned 
across the country."

New Brunswick Today plans to appeal McCloskey's order. It has plenty of 
precedent on which to draw in arguing that the judge's dictates are 
unconstitutional.

In the 1931 case Near v. Minnesota, the Supreme Court overturned a state 
law that authorized court orders barring publication of "malicious, 
scandalous and defamatory" content, which it treated as a public nuisance. 
"Unless the owner or publisher is able and disposed to bring competent 
evidence to satisfy the judge that the charges are true and are published 
with good motives and for justifiable ends," Chief Justice Charles Evan 
Hughes noted in the majority opinion, "his newspaper or periodical is 
suppressed and further publication is made punishable as a contempt. This 
is of the essence of censorship."

A statute "authorizing such proceedings in restraint of publication" is 
inconsistent with "the conception of the liberty of the press as 
historically conceived and guaranteed," Hughes wrote. The "chief purpose" 
of that guarantee, he noted, is to "prevent previous restraints upon 
publication."

The Supreme Court reiterated that point in the 1963 case Bantam Books v. 
Sullivan. "Any system of prior restraints of expression comes to this 
Court bearing a heavy presumption against its constitutional validity," 
Justice William Brennan noted in the majority opinion, citing Near and 
several other precedents to that effect.

The Supreme Court applied that principle in the landmark 1971 case New 
York Times Co. v. United States, which involved the federal government's 
attempt to block publication of the Pentagon Papers, a secret Defense 
Department history of the Vietnam War. Despite the government's invocation 
of national security, the Court unanimously concluded, it had not met its 
"heavy burden of showing justification for the imposition of such a 
restraint."

McCloskey said his order aimed to "appropriately balance" the "privacy 
rights" of the student caught with an airsoft pistol "against the prior-
restraint doctrine." But the Supreme Court specifically addressed such 
concerns in the 1977 case Oklahoma Publishing Company v. District Court, 
which involved a pretrial judicial order barring news outlets from 
publishing the name or photograph of an 11-year-old murder defendant. That 
order, the Court unanimously concluded, "abridges the freedom of the press 
in violation of the First and Fourteenth Amendments."

Two years later in Smith v. Daily Mail Publishing Co., which involved 
reporting on a 14-year-old murder suspect, the Supreme Court likewise 
rejected a West Virginia statute making it a crime to publish the names of 
juvenile offenders. And in the 1989 case Florida Star v. BJF, the Supreme 
Court held that the First Amendment precluded imposing civil liability on 
a newspaper for publishing a sexual assault victim's name, even though 
that was contrary to both state law and the newspaper's official policy.

In seeking suppression of the May 8 security camera video, the New 
Brunswick Board of Education cited federal and New Jersey statutes 
protecting the privacy of student and juvenile justice records, along with 
policies aimed at implementing the school district's responsibilities 
under those laws. But as the Supreme Court's precedents show, such laws 
and regulations do not trump the First Amendment presumption against prior 
restraints.

The Supreme Court "has never upheld a prior restraint on pure speech, even 
in cases involving national security," McCloskey conceded when he issued 
his July 9 order. But he distinguished this case from Oklahoma Publishing 
and Smith, noting that both of those decisions "involved lawfully obtained 
or public information." Here, by contrast, "the footage was confidential 
and allegedly obtained without authorization."

New Brunswick Today's editor, Charlie Kratovil, "certified to the Court 
that the video was 'lawfully obtained,'" McCloskey noted, "but failed to 
disclose how or from whom." Kratovil also argued that there was a 
legitimate public interest in the video, especially since the Board of 
Education had "explicitly and brazenly lied about the incident" in a text 
message to students' parents by "claiming [the lockdown] was a routine 
security drill."*

McCloskey was not impressed. "The First Amendment does not grant the press 
a license to violate privacy laws," he wrote. "Courts distinguish between 
reporting on matters of public concern and publishing confidential 
information that is protected by law." Yet Smith and Florida Star both 
involved state privacy laws that the Supreme Court deemed inconsistent 
with the press freedom guaranteed by the First Amendment.

"If footage was obtained unlawfully or in violation of confidentiality 
statutes, First Amendment protections are significantly diminished," 
McCloskey wrote. Then he seemed to contradict himself.

"The Court would agree with the Defendant, to a certain extent, that even 
if the video was unlawfully obtained, the claimed First Amendment 
protection for publication would generally remain intact," McCloskey said. 
"It is acknowledged that the Supreme Court and other courts have 
consistently held that the press may publish truthful information of 
public concern, even if the source obtained it illegally, so long as the 
press did not participate in the unlawful acquisition."

Still, McCloskey averred, "the juvenile's statutory right to 
confidentiality" can overcome "the severe constitutional presumption 
against censorship." If New Brunswick Today had obtained the video by 
filing a request under New Jersey's Open Public Records Act, he said, that 
would have been OK. But not so if it "obtained the surveillance footage 
through a leak or an independent source."

Footage that "reveals the identity of other minor students, the location 
of cameras, staffing responses, and screening procedures can compromise 
school security and endanger students and staff," McCloskey said, and 
those are "factors that also must be taken into consideration." He added 
that "publicly identifying minor students involved in disciplinary or 
criminal matters can cause lasting reputational and emotional harm."

Given those concerns, McCloskey said, "the requested injunction is 
narrowly tailored and does not constitute an impermissible prior 
restraint." He noted that the revised order "targets only the confidential 
footage, not broader reporting or commentary."

Although freedom of speech and freedom of the press "are guaranteed by the 
First Amendment," McCloskey wrote, so are "the rights and privacy 
interests of minors." That is obviously not true, since the First 
Amendment says nothing about the latter. McCloskey nevertheless concluded 
that "the rights to freedom of speech and expression were never intended 
to provide unbridled license to anyone—be it an individual, news 
organization, or government entity—to exercise those rights in a way that 
would either actually or even foreseeably imperil the safety of a 
juvenile."

It is hard to see how that reasoning can be reconciled with the Supreme 
Court's unanimous judgment in Smith, which rejected the argument that "the 
State's interest in protecting the identity of juveniles" justified a law 
prohibiting the publication of such information. "If a newspaper lawfully 
obtains truthful information about a matter of public significance," Chief 
Justice Warren Burger wrote, "state officials may not constitutionally 
punish publication of the information, absent a need to further a state
interest of the highest order….If the information is lawfully obtained, as 
it was here, the state may not punish its publication except when 
necessary to further an interest more substantial than is present here."

McCloskey turned that logic on its head. "The Supreme Court has recognized 
that privacy interests of minors are significant, even if not always 'of 
the highest order,'" he wrote. But Smith explicitly said the "privacy 
interests of minors" were not enough to justify West Virginia's law, 
"whether we view the statute as a prior restraint or as a penal sanction 
for publishing lawfully obtained, truthful information," since "even the 
latter action requires the highest form of state interest to sustain its 
validity."

In an interview with The New York Times, Rutgers law professor Carlos A. 
Ball emphasized how demanding that test is. "I don't think that a security 
video of a high school student being detained for attempting to bring a 
weapon to school meets that high standard," he said.

McCloskey was unfazed. "The need and legal support for tailored, modified 
restraints is self-evident," he concluded. "There is a compelling interest 
in protecting and ensuring juvenile privacy. The privacy of minors 
involved in school incidents is a recognized and substantial interest." In 
support of that proposition, he cited Smith and Florida Star, both of 
which rejected the argument that privacy interests were enough to justify 
prior restraints.

"Judges across the country seem more and more inclined to grant these 
kinds of prior restraints," Vogus told the Times. "They are always 
overturned."

version of this article.

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amendment-by-censoring-news-coverage-of-a-high-school-lockdown/