Judge expands prior restraint to all news media in New Brunswick Today case

Court order requires journalists to submit redacted video for government approval before publication

A New Jersey Superior Court judge has upheld an order preventing community news outlet New Brunswick Today from publishing a video without court approval, and has expanded the restriction to apply to all members of the press, a move First Amendment advocates say amounts to government censorship.

In a July 9 ruling, Superior Court Judge Thomas McCloskey said any news organization publishing a video of a student bringing an airsoft BB gun into New Brunswick High School must first blur the identities of all minors and withhold their names. The order also requires New Brunswick Today, which is published by journalist Charlie Kratovil, to submit the edited video to the New Brunswick Board of Education and the court for review and approval before republishing it.

The decision leaves in place significant portions of a temporary restraining order McCloskey issued May 29 after the New Brunswick Board of Education sued the community newspaper over its publication of internal surveillance footage it received from a confidential source. While the judge lifted the blanket prohibition on reporting about the incident and allowed publication of a redacted version of the video, the revised order goes further by binding the press generally, not just the parties before the court.

News outlets “must 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, according to the order.

Prior restraints are among the most disfavored forms of government censorship under the First Amendment because they prohibit publication before it occurs rather than allowing courts to determine afterward whether a news organization violated the law. The U.S. Supreme Court has repeatedly held that prior restraints carry a “heavy presumption” against their constitutional validity and are permissible only in the rarest circumstances. They are considered extraordinary because they place government officials or courts in the position of deciding what the public may read or see before publication.

The underlying dispute stems from a May 8 incident at New Brunswick High School. A 16-year-old student triggered a metal detector while entering the building. School security officers recovered what was later determined to be an airsoft BB gun from the student’s waistband and placed the school on lockdown as a precaution. New Brunswick Today published surveillance footage of the encounter on May 28 after obtaining it from a confidential source. The Board of Education filed suit the following day, arguing the footage violated state and federal laws protecting student privacy and revealed sensitive school security procedures.

In a 59-page opinion accompanying the order, McCloskey said he was attempting to balance constitutional protections for the press with the privacy rights afforded to juveniles under New Jersey law.

The judge wrote that “continued publication of the footage in question does and will inflict irreparable harm on the minor student(s), exposing them to embarrassment, stigma, intimidation, and potential retaliation.” He also said that the publication of the unredacted footage could compromise school security by revealing camera locations, as well as security staffing and screening procedures.

McCloskey denied the school board’s request for a broader preliminary injunction that would have barred publication of the surveillance footage altogether. He also rejected New Brunswick Today’s request to dissolve the restraints entirely and denied the newspaper’s request for attorney’s fees under New Jersey’s Uniform Public Expression Protection Act, finding the anti-SLAPP law does not apply because the school board was acting as a governmental entity seeking to protect public health and safety.

The Freedom of the Press Foundation condemned the ruling, saying it not only continues an unconstitutional prior restraint but expands it beyond the parties involved in the litigation.

“Forcing news outlets to delete or withhold information and to submit their work for government approval before they can publish is censorship, full stop,” said Caitlin Vogus, the organization’s senior adviser for advocacy.

“The First Amendment could not be clearer: Prior restraints are almost never allowed. Neither judges nor the law can censor the press. Yet that is exactly what Judge McCloskey’s order permits,” Vogus said.

“Judge McCloskey was right to narrow his order against New Brunswick Today, but it’s outrageous that he’s extended it to purport to apply to any member of the press who wants to publish or write about this video,” she continued. “Judges should know better. By substituting the court’s judgment about what to publish for that of any news outlet, the court has flatly defied the First Amendment and decades of Supreme Court precedent.”

Vogus said judges do not have the authority to issue orders binding unidentified journalists across the country who aren’t in their courtroom and are not parties to any case before them.

“Even in cases that don’t involve core First Amendment concerns, judges aren’t kings,” Vogus said. “Similar orders have been overturned across the country. If New Brunswick Today appeals and higher courts faithfully apply the law, this one should be as well.”

The litigation has become one of the most closely watched press freedom cases in New Jersey. While courts have occasionally upheld narrowly tailored restrictions in exceptional circumstances, legal scholars and First Amendment advocates have long argued that prior restraints are among the most serious infringements on freedom of the press because they prevent the public from receiving information before it can be published.

An appeal has already been filed in the case by lawyers from Pashman Stein Walder Hayden P.C., which is representing New Brunswick Today. CJ Griffin, the director of the Stein Public Interest Center at the law firm, said it is deeply troubling that the court is dictating what the media can report, and especially concerning that the order requires New Brunswick Today to get permission from the Board of Education before it posts the video.

“The order violates the First Amendment and has robbed New Brunswick Today of editorial decisions that belong solely to a news editor, not a court or government agency,” Griffin said.