Connecticut Court Ignores First Amendment, Blocks Paper From Publishing Article Based On Public Court Document

from the prior-restraint dept

I'm always amazed that there are judges out there who don't appear to understand even the very basics about the First Amendment. And yet, we get cases like this one in Connecticut last week, in which a New Britain Superior Court judge, Stephen Frazzini, apparently had never come across the concept of prior restraint, and ordered an injunction against the Connecticut Law Tribune barring it from publishing an article based on a public court document:
Daniel J. Klau, the newspaper's lawyer, said he has already filed an appeal. He and other media law attorneys say this appears to be an extraordinarily rare case of prior restraint on free expression guaranteed by the First Amendment. They say that normally pre-publication court orders have been deemed constitutional only in matters of extreme threats to public safety, on the level of national security.

Frazzini's oral ruling is currently sealed, but Klau said he is working to have it unsealed. "I am actually under a restraining order about what I can tell my own client. There are some things that I can share," said Klau, of the Hartford office of McElroy, Deutsch, Mulvaney & Carpenter. "What the Law Tribune can say," he said, "is that in a child protection case on the juvenile court docket, the court granted a party's request for an injunction barring the Connecticut Law Tribune from publishing information that it lawfully obtained about the case."
Yes, since it involves juvenile court, it's likely part of the issue involved in protecting the privacy of a child. But, again, this was information that was already filed in a public docket. If there was concern about privacy, it should have been dealt with prior to a public filing. To then issue an injunction, barring the publication of an article, is classic prior restraint and is clearly unconstitutional.

Filed Under: connecticut, first amendment, free speech, journalism, prior restraint
Companies: connecticut law tribune


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  • identicon
    Anonymous Coward, 1 Dec 2014 @ 1:29pm

    Also prior restraint to gag the lawyer

    Gagging the lawyer from telling his client everything about the case also looks very sketchy.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2014 @ 1:31pm

    so it may be but

    a) will it make any difference to this judge, ie, will he amend his ruling?

    b) will he study the law a little better so as to be able to make 'informed' rulings in the future?

    i am doubtful on both counts as judges seem to think that only their word goes at the time, that the people are mostly just inconveniences to be tolerated for as short periods as possible and that but for the people, judges could just sit back, relax and rake in a fortune for doing almost nothing of any value, much like their superiors of the FISC bench

    reply to this | link to this | view in chronology ]

    • icon
      Groaker (profile), 1 Dec 2014 @ 1:43pm

      Re:

      Few judges like to be overruled, as it embarrasses them. It is about the only thing that keeps them in line. Impeachment is all too rare.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Dec 2014 @ 1:50pm

        Re: Re:

        Impeachment is all too rare.

        What does “most serious and the least tolerable infringement on First Amendment rights” actually mean? (Nebraska Press Assoc v Stuart(1976)).

        What does “most serious and the least tolerable” mean? if it does not mean impeachment—and conviction?

        reply to this | link to this | view in chronology ]

    • icon
      Cal (profile), 2 Dec 2014 @ 7:11am

      Re:

      I agree.

      But if you, and others knew and understood the US Constitution, that all judges are only ALLOWED to occupy their office for life if they use "Good Behaviour" while in the courtrooms.

      "Good Behaviour" is doing their duty as it is constitutionally assigned - which they have not been doing, or rarely doing since Roosevelt - and KEEPING their Oaths.

      Why would the people need to understand it, and what difference would that make?

      It is the people who decide if "Good Behaviour" is being used in the courtroom, and if they decide it is not, they remove that judge. If it applies, they charge and prosecute that judge.

      That is one other reason it is important to understand the US Constitution.

      reply to this | link to this | view in chronology ]

      • icon
        IAmNotYourLawyer (profile), 2 Dec 2014 @ 8:14am

        Re: Re:

        This is a "New Britain Superior Court Judge", not an article 3 federal judge.

        There is no "good behavior" limit. There's actually a good chance this is an elected position.

        reply to this | link to this | view in chronology ]

  • identicon
    Quiet Lurcker, 1 Dec 2014 @ 1:31pm

    ...[T]his appears to be an extraordinarily rare case of prior restraint on free expression guaranteed by the First Amendment.


    It's rare only if compared to the who knows how many 'national security letters' - which I call by their proper name: writs of assistance (q.v.) - handed out by NSA, FBI, and various other alphabet agencies, and which are rife (to quote reports) with gag orders.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2014 @ 1:46pm

    I am missing something...

    "They say that normally pre-publication court orders have been deemed constitutional only in matters of extreme threats to public safety, on the level of national security."

    Can someone help me out where this exception is outlined in the Bill of Rights?

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    I did catch that "Shall make no law"... apparently we have jumped this shark so damn long ago and so damn often no one alive is able to recognize how fucked up we now are.

    It is now common for every part of the constitution to be mercilessly shit upon by the president, congress, and courts without redress.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Dec 2014 @ 2:18pm

      Re: I am missing something...

      You are missing two things:

      1. Freedom of speech is not absolute
      2. The laws of the country do not end with the written words. Laws are interpreted by the courts.

      reply to this | link to this | view in chronology ]

      • icon
        Cal (profile), 2 Dec 2014 @ 6:10am

        Re: Re: I am missing something...

        Or you are "missing something".

        Freedom of speech is absolute. That does not mean that you can not be taken to court and sued afterwards for crimes committed such as defamation, etc.

        If you are talking about shouting "Fire" in a crowded theater, etc; that has nothing to do with Freedom of Speech, and everything to do with endangerment of others.

        "Laws are interpreted by the courts."

        That is incorrect under the US Constitution. The courts gave themselves that "power" which is usurpation and "null and void" under our laws.

        The courts are to decide if that particular law FOLLOWS (is in Pursuance thereof) the US Constitution and entirely different thing.

        US Constitution, Article III Section. 2: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;..."

        The US Constitution says in Article VI that it does NOT apply to any law created. It applies to only those laws that follow (are in Pursuance thereof) the US Constitution,

        “... This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

        The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

        Article VI says that only the laws that are made in Pursuance thereof the US Constitution are lawful here in the USA. Anything else disguised as “law” is not legal or binding on US Citizens.

        It also says that anyone serving within the federal or state governments MUST support the US Constitution or no longer meet the qualifications of the position or office they are occupying when it says this about qualifying for office or public trust:

        “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

        Tucker’s Blackstone, Volume I, Chapter 1 regarding how the Oath applies to the judiciary: “But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the supreme law of the land, the U.S. Constitution.
        Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. For herein there is nothing repugnant to natural justice;...”

        By the way, breaking that Oath is at least one felony, is Perjury and it matters not who broke it, and requires their removal from the position they are occupying; all of which still applies but is not enforced while much "color of law", pretend laws are enforced. All laws are REQUIRED by this countries Supreme law to be in "Pursuance thereof" it.

        Remember, even though it is mostly ignored, the US Constitution is not only the highest LAW of our land, it defines our government and assigns what powers go to each branch. Those who serve within the different branches are not allowed to decide on their own powers - that is a dictator or monarchy that does that.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 2 Dec 2014 @ 8:55am

          Re: Re: Re: I am missing something...

          Freedom of speech is absolute. That does not mean that you can not be taken to court and sued afterwards for crimes committed such as defamation, etc.

          That's like saying the freedom to murder is absolute, but you can be put in prison for it afterwards.

          That is incorrect under the US Constitution. The courts gave themselves that "power" which is usurpation and "null and void" under our laws.

          The courts are to decide if that particular law FOLLOWS (is in Pursuance thereof) the US Constitution and entirely different thing.


          That's just semantics. Regardless of how you describe it, the Supreme Court has the ultimate authority to decide whether a law is constitutional or not, which necessarily includes deciding what the Constitution means. One cannot determine whether a law complies with the Constitution without first coming to an understanding of what the Constitution means.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Dec 2014 @ 9:38am

        Re: Re: I am missing something...

        1. Freedom of speech is not absolute
        And yet the first amendment specifically says *no* laws (unlike the fourth, for example, which only prevents "unreasonable" search and seizure). I doubt it was ever really true in practice (with laws against slander, threats, etc.), but I don't see how it could be written any more clearly. It's no wonder people don't have much respect for the legal system.

        reply to this | link to this | view in chronology ]

      • icon
        Sheogorath (profile), 3 Dec 2014 @ 10:36am

        Re: Re: I am missing something...

        1. Freedom of speech is not absolute.
        Uh, yes it is. Obviously you can be sued for defamation, but the fact that a person, legal or natural, can abridge your right to freedom of speech in this manner still doesn't give the US Government the same power.
        2. The laws of the country do not end with the written words. Laws are interpreted by the courts.
        Actually, no. Courts might sometimes need to interpret certain parts of laws, such as a defence of fair use in a copyright infringement case, but their main role is to uphold the laws as they exist, not to interpret them into entirely new ones. Simples!

        reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 1 Dec 2014 @ 2:39pm

      Re: I am missing something...

      Perhaps what you're missing is pragmatic reality: it is impossible to adhere to the Constitution rigidly as written because there are so many parts of it that contradict each other. This is most evident in the bill of rights. Rigidly enforcing one term means that you have to violate a different term. In terms of trying to adhere to the spirit and meaning of the Constitution, the way towards maximum liberty must be through balancing these competing rights.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Dec 2014 @ 4:07pm

        Re: Re: I am missing something...

        Hmm... pragmatic reality.

        Anything can be justified with your logic.

        So... just what you do you stand for anyways? No wait... let me ask this instead... if you are okay with the destruction of any of these rights for "pragmatism", then what standing to you have when any... and I mean ANY of your rights are violated too.

        Lets make it clear... you are intellectually corrupt... no doubt about it and you are far inferior to the intellectual giants that form our system of government, for even they... predicted the failure of this very government when enough of YOUR type pervade this nation.

        You deserve no liberty at all sir! NONE!

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 2 Dec 2014 @ 2:13am

          Re: Re: Re: I am missing something...

          You deserve no liberty at all sir! NONE!
          You seem to be pretty comfortable with the destruction of rights for anyone who doesn't share a viewpoint identical to your own. For all your ranting, you don't seem to put too high a value on the very liberty you're so vociferously defending.

          reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 2 Dec 2014 @ 7:46am

          Re: Re: Re: I am missing something...

          "Anything can be justified with your logic."

          It's not my logic. It's simply reality. You are demanding that I agree to expect something that is simply and obviously impossible without modifying the Constitution. If there is any intellectual bankruptcy here, it is yours for insisting that reality and basic logic is nothing but a rhetorical device.

          reply to this | link to this | view in chronology ]

      • identicon
        Pragmatic, 2 Dec 2014 @ 5:55am

        Re: Re: I am missing something...

        ...the way towards maximum liberty must be through balancing these competing rights

        Yep. It's not easy, but then, nothing worth doing is. Example: IPR. It's often used to stifle unwanted speech and the balance is between whether or not you have the right to complain about bad service using the logo of the offending company in your post or article.

        You do, that was settled years ago, but it doesn't stop them trying. On the flip side, rightsholders are entitled to a monopoly on the right to make a profit from IPR, but it was only ever meant to be temporary. Now they've arrogated property rights to themselves and their monopolies, bringing a new set of competing rights into play.

        Sometimes the best thing you can be is pragmatic.

        reply to this | link to this | view in chronology ]

      • icon
        Cal (profile), 2 Dec 2014 @ 6:45am

        Re: Re: I am missing something...

        Your ignorance of the US Constitution is showing. Must be that progressive schooling.

        NOTHING IN THE US CONSTITUTION CONTRADICTS ITSELF, nothing.

        The Bill of Rights was added to give MORE PROTECTION to our natural rights. To make clear that they are above and beyond governmental authority. That is why they are "teaching" what you were taught. Basically if the people are too ignorant of what those who serve within our governments are allowed to do, what is protected for them FROM those who serve in government, they can tell you anything and you will believe it.

        In the 1943 Supreme Court Case of West Virginia Board of Education Vs. Barnette 319 U.S. 624, Justice Robert H Jackson said the following: “The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcomes of no elections.”

        Proving you incorrect:

        "This is most evident in the bill of rights. Rigidly enforcing one term means that you have to violate a different term"

        Preamble to the Bill of Rights: "... THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. ..."

        First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

        The six protections against government encroachment are:

        1. Congress shall make no law respecting an establishment of religion

        2. Congress shall make no law prohibiting the exercise of religion

        3. Congress shall make no law abridging the freedom of speech

        4. Congress shall make no law abridging the freedom of the press

        5. Congress shall make no law abridging the right of the people peacefully to assemble

        6. Congress shall make no law abridging the right to petition the government for a redress of grievance.

        Remember the ONLY branch allowed to write laws (legislation) is the legislative branch. It is a power forbidden to the executive and judicial branches.

        Where is the contradictions?

        4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

        There are two governmental limitations stated in this amendment.

        1. The citizens are to be secure in their person, home, papers, and property, from unreasonable searches and seizure. The people have the privacy to go about their lives without worrying whether the government will invade them PROTECTED from those who serve within our governments.

        This amendment was to ensure that the government does not trespass on the people nor take anything from the people without following correct legal procedure.

        2. The government is restrained from taking either person or property without first getting a warrant, and only after proving probable cause.

        This is only as valid as the judge is not corrupt. There have been cases in which judges have signed blank warrants, and the details are not filled in until after serving the warrant.

        These amendments are not a grant of right, but solely limitations put on those who serve within our governments to ensure that they do not trespass beyond their listed (enumerated) powers.

        No conflict here either. So I would guess that you are referring to the 2nd Amendment. If so, you are incorrect there also.

        2nd Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

        So let me expand your education a bit more. The Militia IS "We the People". Our governments were forbidden to have standing armies and law enforcement, they were to use the Militias when needed.

        Tench Coxe: “Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people.”

        Tench Coxe on the Second Amendment where he asserts that it's the people with arms, who serve as the ultimate check on government: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms”.

        Richard Henry Lee: "A militia, when properly formed, are in fact the people themselves …"

        George Mason, Co-author of the Second Amendment: "I ask, Sir, what is the militia? It is the whole people except for a few public officials. To disarm the people is the best and most effectual way to enslave them."

        Samuel Adams: “It is always dangerous to the liberties of the people to have an army stationed among them, over which they have no control ... The Militia is composed of free Citizens. There is therefore no danger of their making use of their Power to the destruction of their own Rights, or suffering others to invade them..”

        James Madison: “... large and permanent military establishments ... are forbidden by the principles of free government, and against the necessity of which the militia were meant to be a constitutional bulwark.”

        Joel Barlow American whose political writings were debated on the floor of Parliament said of the US Constitution: "… not only permitting every man to arm, but obliging him to arm.”

        Cockrum v. State: “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power”.

        Bliss v. Commonwealth: “Arms restrictions - even concealed weapons bans - are unconstitutional, since arms bearing is an individual right and the legislature may not restrict any aspect of such a right.”

        Nunn vs. State:'The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the milita, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right”.

        Let me know if you would like to learn more. May I recommend some books and reading material?

        "Constitution Denied", Michael LeMieux

        Any be Dr. Edwin Vieira - free partial here (http://oathkeepers.org/oath/wp-content/uploads/Dare-Call-It-Treason-21.pdf)

        Federalist Papers and the Anti Federalist papers.

        Hillsdale College, the oldest in our nation, offers some free online Constitutional courses here: https://online.hillsdale.edu/

        reply to this | link to this | view in chronology ]

      • icon
        Cal (profile), 2 Dec 2014 @ 6:48am

        Re: Re: I am missing something...

        Read my comment above and learn why you are incorrect.

        Unless your comment has less to do with being correct, but just spreading disinformation.

        reply to this | link to this | view in chronology ]

      • identicon
        MikeP, 2 Dec 2014 @ 1:47pm

        Re: Re: I am missing something...

        contradicting rights are most evident in the Bill of Rights?

        Really??? Examples of such please.

        not sure what Constitution you have been reading, but the Bill of Rights is quite simple in its expression of rights. the only contradictions are what courts have created in convoluted interpretations over the years.

        What saddens me is that the newspaper even cares to comply. Publish it anyway.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Dec 2014 @ 3:07pm

      Re: I am missing something...

      Can someone help me out where this exception is outlined in the Bill of Rights?
      Look here, Mr Justice Black, you're a well-known textualist and first-amendment absolutist, but hardly any of the rest of us —whether on or off the Supreme Court— hardly any of the rest of us share your extreme viewpoint! Sir, you are an extremist! And, besides, Mr Justice Hugo Black, you're dead, too. You been dead for a number of years now, I guess... anyway.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2014 @ 7:39pm

    "I'm always amazed that there are judges out there who don't appear to understand even the very basics about the First Amendment."

    I think they understand it very well. They just hold it in contempt.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2014 @ 8:03pm

    the whole American government doesn't understand people's rights and yet people don't care until it affects them

    reply to this | link to this | view in chronology ]

    • icon
      Cal (profile), 2 Dec 2014 @ 7:05am

      Re:

      We Care. We have always cared. We are the ones who was warning you and when the governmental stooges made fun of us, you were afraid that you might be laughed at so followed the crowd.

      If we had not been fighting for all these decades, you would own nothing, and the fight would already have been over.

      reply to this | link to this | view in chronology ]

  • identicon
    Terrell, 1 Dec 2014 @ 10:12pm

    Wow

    reply to this | link to this | view in chronology ]

  • identicon
    snjwffl, 2 Dec 2014 @ 12:03am

    only in matters ... on the level of national security.

    So, whenever the government wants?

    reply to this | link to this | view in chronology ]

  • identicon
    John Cressman, 2 Dec 2014 @ 5:15am

    In the immortal words...

    In the immortal words of Ike Clanton in Tombstone:

    "Mr. Law Dog, 'cause law don't go around here."

    I think many judges (and police) forget their place and let the power go to their heads. They forget they are there to PROTECT the law... not BE the law.

    reply to this | link to this | view in chronology ]

  • identicon
    despiser, 2 Dec 2014 @ 5:57pm

    Progressive Transparency:

    Documents created by public employees with public funds on public time are "secret." Documents created by private individuals and businesses using private funds are required to be publicly disclosed.

    reply to this | link to this | view in chronology ]

  • identicon
    Yngvar, 2 Dec 2014 @ 9:50pm

    File an appeal? They're in the right and should just publish the story. The court want do a anything about it.

    reply to this | link to this | view in chronology ]


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