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 extreme response: a court order requiring removal of the video and barring 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. “The First Amendment could not be clearer: Prior restraints are almost 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 Kratovi, “certified to the Court that the video was ‘lawfully obtained,'” McCloskey noted, “but failed to disclose how or from whom.” Kratovi 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.”