Connecticut Judge Reverses His Prior Restraint Ruling, But For Reasons He Wants Kept Secret

from the transparency-please? dept

We recently wrote about how a judge in Connecticut's New Britain Superior Court, Stephen Frazzini, apparently was somewhat confused by the concept of prior restraint and the First Amendment in issuing an injunction barring the publication of an article by the Connecticut Law Tribune concerning documents in a case that had been posted to a public docket. As we noted, this is classic prior restraint, and the Connecticut Law Tribune protested. It appears that Judge Frazzini has realized the error of his ways and has vacated the original order, but has apparently kept his reasoning under seal, and won't even allow the publication's lawyer to let the publication know the details:
Superior Court Judge Stephen Frazzini has vacated his order forbidding The Law Tribune from publishing a story about a child custody case. Daniel Klau, the Hartford lawyer who has been representing the Law Tribune, said the judge issued "a nine-page order, explaining why he vacated his injunction." The entire order, like the other rulings in this matter, remain under seal, and Klau has been ordered not disclose them to his client.
Later in the article, Klau notes that he's "moving to unseal the court record of the proceedings" so that hopefully the details will become public.

To be fair, the article does note that Frazzini himself may have realized the problems with the initial order on his own, calling a hearing, asking both parties to discuss if his original order was Constitutional. Other statements from the judge certainly suggest a recognition that his original ruling was a mistake on multiple levels:
At the Dec. 1 hearing, to illustrate his concern about the constitutionality of his injunction, Frazzini read from part of his still-sealed order, in which he quotes U.S. Supreme Court decisions, CBS v. Davis (1994), and Nebraska Press Association v. Stuart (1976). Those decisions warn that any prior restraint of expression bears a heavy presumption against its constitutional validity. Parties wishing to block publication also carry a heavy burden of justifying the imposition of such a restraint, and judges should impose it only when an "evil" is both grave and certain to occur, Frazzini noted. Finally, the judge noted, any remedy that included prior restraint needs to be "narrowly tailored" for the least intrusion upon speech and press freedom.

The judge also said he is vexed by the continued existence on other websites of the court document that is at the focus of the Law Tribune article and the target of the injunction. One of the blogs that link to the court document is associated with The Washington Post. The judge wondered aloud how he could prohibit publication of confidential details by the Washington Post or the New York Times, even if he did have "long arm" jurisdiction. And why should the Connecticut Law Tribune be enjoined from publishing what every other newspaper could freely publish?
The situation isn't over yet, however, as the state Supreme Court is likely going to hear an appeal, though there's some confusion about the process given the new move to vacate the original order:
In the meantime, the state Supreme Court said it would hear appeals in the case, bypassing the state Appellate Court. The American Civil Liberties Union of Connecticut has already filed an amicus brief to the court on behalf of the Law Tribune and its right to publish. Joining that brief are two open government organizations, three media organizations and more than a dozen media outlets. The filing argues that barring the Law Tribune from publishing the story "is absolutely prohibited by the free speech and press sections of the Connecticut Constitution."
Either way, there's no doubt that the information in the case may be sensitive -- involving children -- but that still shouldn't lead to prior restraint.

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