A Statement from the NJ Society of Professional Journalists
Late last week a judge in Trenton made an important ruling, upholding the free speech rights of parents and journalists. At this moment, however, that ruling is under assault from the New Jersey Attorney General’s office. Very soon a gag order could be re-imposed.
We don’t use the word “assault” lightly. Since the judge’s ruling, the Attorney General’s office has made non-stop appeals to the trial judge, the Appellate Division and the New Jersey Supreme Court. They’ve been shut down each time. For most of us, after three strikes, you’re out. But the Attorney General’s office has unlimited resources, if the governor wants it to, and it is wasting taxpayer money by repeatedly appealing the ruling.
It is a complex case, but it boils down to this: A parent disagreed with findings in a state report about their child and family. The parent lacked the money to hire a lawyer, but sought to get The Trentonian newspaper to cover the matter in court. The Trentonian sent reporter Isaac Avilucea to the courthouse, where the parent gave him documents related to the case, documents which the state then claimed were illegally obtained.
The state then sought an extraordinary prior restraint order against the newspaper and threatened Avilucea with criminal charges. Avilucea stood firm and the state backed-down on the criminal threat, but a prior-restraint order was in effect from late October until late March. After a lengthy series of hearings, a Mercer County judge ruled that that Avilucea obtained the report legally and lifted the injunctions against him and The Trentonian. That should have ended things but the state now seems obsessed with spending tax money to suppress free speech in this case.
We wonder what the state is trying to hide. At this point, the state itself has made the child’s identify clear to anyone who looks at the matter. Why is the state so fearful of further reporting?
The New Jersey Society of Professional Journalists (NJ-SPJ) is very much an interested party in this case, having sought and obtained money from our national organization to help fund Mr. Avilucea’s defense.
He is a member of our organization and the recipient of our signature “Courage Under Fire” award. Since the events in the courthouse last October, he has been diagnosed with testicular cancer and he is about to enter a fifth round of chemo-therapy. Continued actions against him seem pointless and even cruel. At this point he is entering a clinical trial to which his doctor has referred him. Isaac observed his 28th birthday last week.
As sobering as this situation is, there are equally serious legal and moral issues at stake:
- Should a parent be barred from sharing a report, from a taxpayer-funded agency, with a journalist? If parents have enough money, they can hire a lawyer and seek justice. Yes, there are laws on this, but they are enforced with wide discretion. It does not need to become a “David vs. Goliath” legal battle.
- At the heart of this is the privacy of a 5-year-old child. That child brought serious drugs to school on two occasions. It appears that the drugs were planted by adults, as part of a custody battle. Certainly, parents in Trenton have an interest in being informed on what’s happening in their schools, but that must be weighed against the child’s right to privacy. In this instance, neither The Trentonian nor Mr. Avilucea revealed the child’s name. It was the state which shined a light on the child’s identity in open court, through the witnesses it sought in its non-stop pursuit of prior restraint. The state’s claim that it was protecting the child’s identity seemed hollow before the judge’s ruling; pursuing it now is, in our opinion, reckless.
- Prior restraint is when the government tries to censor reporters for something they might publish. That happens a lot in Russia and China, but it is virtually unheard-of in the United States, even in cases involving national security. It was struck down by the Supreme Court in the Pentagon Papers case, in which Justice Hugo Black declared, “. . . every moment’s continuance of the (prior restraint) injunctions . . . amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” Such a violation existed in New Jersey from October through the end of March. The state is seeking to re-impose it.
There are multiple ironies here. In New Jersey, an informed public turned against the state’s child welfare agency after the death of a 2-year-old Ocean County toddler, one of many troubling cases over several decades. It got so bad that the agency had to change its name. Yet it would be wrong to frame this as “the rights of the press vs. the government.” Journalists also reported that state child welfare workers were short-staffed and under-funded. “The government” is not an abstract entity, it is people. Taxpayers are people. Journalists are people.
In this case, we feel that the state is abusing its power against Isaac Avilucea. He was pressured to agree to the prior restraint with the threat of prosecution for enticing someone to release confidential material. But that did not stand up to scrutiny. In fact, the judge noted that “the complaint was not stamped or marked confidential or impounded in any way.”
At this point, Isaac Avilucea needs to deal with his cancer treatment. The family in question needs to heal. The state, notably through the New Jersey Division of Child Protection and Permanancy, can help in that process, but not if it is focused on gagging parents and reporters.
This entire matter should be over. The state had its day in court, in fact multiple days over six months. The state lost. Further, both the Appellate Division and the New Jersey Supreme Court have now rejected the state’s “emergency” arguments. The continued appeals are just plain politics. The NJ Society of Professional Journalists believes that the Governor and Attorney General have better things to do with the taxpayers’ money.