Prior Restraint Order Threatened Press Freedom

The ACLU of Connecticut came to the immediate defense of freedom of speech and of the press after a judge's order blocked the Connecticut Law Tribune from publishing an article about a court case.

On Nov. 24, 2014, Judge Stephen Frazzini issued an injunction in New Britain Superior Court to prevent the Law Tribune from publishing an article about the content of a document related to a child custody case, saying he was acting to protect the privacy of the children involved in the case. The Law Tribune's lawyer, Daniel Klau, appealed the order. Censorship imposed before publication,  called "prior restraint," has been found to violate the First Amendment to the U.S. Constitution in all but the narrowest circumstances, such as a threat to national security during wartime.

The ACLU of Connecticut quickly submitted a friend-of-the-court brief, written by Legal Director Sandra Staub in cooperation with Quinnipiac law Professor Martin Margulies and attorney Mario Cerame, to support the appeal. Joining the ACLU in the brief were 14 newspapers and four other news outlets, as well as the Connecticut Council on Freedom of Information, the Connecticut Foundation for Open Government, the Radio and Television Digital News Association, the Connecticut Chapter of the Society of Professional Journalists and the Connecticut Daily Newspaper Association.

The ACLU brief argued that not only does the U.S. Constitution severely restrict the grounds for prior restraint, the Connecticut Constitution absolutely forbids it. "Prior restraints irreparably harm freedom of the press and ultimately our society itself and should be absolutely forbidden, in accord with our state constitution," Staub wrote.

On Dec. 3, Frazzini rescinded his own order, saying it had become pointless after other newspapers published articles about the case. But this reversal did nothing to clarify that the order was unconstitutional. The Connecticut Law Tribune continues to press its appeal, which the Connecticut Supreme Court had already taken, bypassing the state Appellate Court, before the trial court reversal. If the state Supreme Court finds that the appeal is not moot, it may issue an opinion on the constitutionality of the original order.

"If the Supreme Court takes this opportunity to provide clarity on this important issue, our brief argues that the Connecticut Constitution prevents this judge or any other in Connecticut from issuing another unconstitutional order of prior restraint," Staub said. "There is always harm when the government tells the press what it can and can't publish. Even if the restraint is removed, the delay is damaging to freedom of the press and the public's right to know."