Salvador Rizzo

State House Bureau, @rizzoTK

A New Jersey judge has ordered the Trentonian newspaper to stop publishing articles about a child abuse case — a ruling that First Amendment experts said could violate the U.S. Supreme Court’s most important decisions guaranteeing the freedom of the press.

Superior Court Judge Craig Corson issued a temporary injunction in October prohibiting the Trentonian from publishing articles about a confidential child abuse complaint obtained by one of its reporters. The document lays out how a 5-year-old boy from Trenton went to school carrying packets of heroin in his lunchbox one day and crack cocaine in his school folder six weeks later, among other sensitive details.

Another judge, Rodney Thompson, is scheduled to hear arguments for and against a permanent injunction on the Trentonian on Wednesday in Superior Court in Mercer County. In the meantime, Corson’s temporary order remains in effect.

CHRISTIE: Former aide advances as nominee for judge

JUVENILE SEX CASE: Public's help sought in investigation

LOWRY: Paterson, like Trenton, needs a makeover

Judicial orders that impose a “prior restraint” on a news organization, prohibiting it from publishing articles on a specific topic, are extremely rare in the United States and have been rejected by the U.S. Supreme Court several times, including in a case concerning the most closely held national secrets. In that landmark 1971 decision, New York Times Co. v. United States, the justices declined a request from President Richard Nixon’s administration to bar The New York Times and The Washington Post from publishing stories based on the Pentagon Papers, a classified study of the Vietnam War.

“The all-but-total ban on prior restraints exists as a critical protection of First Amendment rights,” said Floyd Abrams, one of the country’s foremost legal experts on press freedoms, who was involved in the Pentagon Papers case.

The New Jersey case began when school officials at the International Academy Charter School in Trenton reported that a 5-year-old boy, identified as N.L., had been found twice with hard drugs during a six-week span from September to October. The state Division of Child Protection and Permanency filed a complaint against his parents, Tashawn Ford and Maurice Leonard, and his paternal grandmother, Ernestine Woodard, eventually removing the boy to foster care.

Trentonian reporter Isaac Avilucea approached Ford outside a courtroom and obtained the child abuse complaint from her, although the circumstances under which he got the document are in dispute. Avilucea was confronted in the courthouse by state officials, refused to turn over the complaint, left and then reported on the case despite Corson’s temporary injunction.

Representing the Division of Child Protection and Permanency, the state Attorney General’s Office argues that the injunction is appropriate because the child abuse complaint includes private details such as the child’s name and address, medical history and other sensitive information. The state has an interest in preventing the disclosure of confidential information to maintain the integrity of its investigations, the Attorney General’s Office adds.

“There is an established right to confidentiality of child abuse and neglect records which cannot be pierced in this matter,” a deputy state attorney general, John Tolleris, wrote in a legal filing last month. “State statute clearly supports the protection of these records, in what has already been defined by our courts as a compelling state interest.”

Attorneys for the Trentonian at the law firm Pepper Hamilton argued in a legal filing that the child abuse complaint was not marked "confidential" and that Ford parted with it willingly. New Jersey state officials have not “identified any interest that would be weighty enough to justify imposing a prior restraint, a remedy deemed by the United States and New Jersey supreme courts to be ‘the most serious and the least tolerable infringement on First Amendment rights,’” wrote the Trentonian’s attorneys, Matthew DelDuca, Thomas Plotkin and Eli Segal.

Attorney General Chris Porrino’s office has accused Avilucea of stealing the confidential child abuse complaint. The Trentonian denies it. “The child’s mother approached the Trentonian prior to the hearing requesting that the newspaper write an article,” their attorneys wrote.

Porrino’s office at first offered to drop the case, provided that the Trentonian destroy the complaint and cease publishing articles about it. The newspaper’s management and attorneys decided to accept the settlement, but Avilucea refused and the agreement was not executed.

“I don’t know how we’re supposed to operate in a democracy if media organizations are having to capitulate to the court or the Attorney General’s Office,” Avilucea said. “The discretion of what to publish should be vested in reporters and editors, not in the court.”

He added, “I didn’t steal the documents, and they were being unreasonable by making these false allegations.”

Spokesmen for Porrino declined to discuss the Pentagon Papers case and related court precedents, and declined to say whether state officials’ actions in the Trentonian case could have a chilling effect on the press. They also declined to say whether they would pursue criminal charges against the Trentonian or Avilucea. An attorney for the Trentonian did not respond to a request for comment.

In New York Times Co. v. United States, the 1971 case, the U.S. Supreme Court ruled that the government’s interest in keeping information secret could not overcome the freedom of the press to choose what to publish. That ruling followed a 1931 decision, Near v. Minnesota, in which the justices said nearly all forms of prior restraint are unconstitutional.

“There was a time when the only thing that the First Amendment was held to protect was prior restraints,” Abrams said. “It has always protected against prior restraints with particular vigor and authority.”

He added that New Jersey law separately provides penalties for people who disclose confidential information, avoiding the need for state attorneys and judges to resort to the extreme tool of press censorship. “There are an infinite number of statutes in effect around the country designed to protect privacy. One can understand the desire for privacy,” he said.

“They’re right to cite the Pentagon Papers case,” Abrams said of the Trentonian, “and the fact that there is a criminal statute, if anything, would help the newspaper in terms of overcoming the prior restraint, because that is obviously an alternative form of state action designed to protect the confidentiality of this information.”

George White, executive director of the New Jersey Press Association, said the group had not taken a position on the case.

Corson was appointed to the Superior Court last year by Governor Christie but is no longer handling the case, according to court officials. Thompson was appointed to the Superior Court last month.

It is not the first time a court has ordered Avilucea to stop publishing stories. While he was a reporter for the Connecticut Law Tribune in 2014, a judge issued an injunction regarding a messy custody battle between two lawyers. Child welfare officials in Connecticut took custody of their three children, but they never substantiated that they had been abused or neglected, Avilucea said. The judge then reversed himself after the Connecticut Supreme Court indicated it would review the case on an expedited basis.

"It’s almost déjà vu," Avilucea said.