In a contentious free speech battle between a New Jersey news outlet and a school district, a New Jersey judge has upheld a prior restraint that squelched coverage of a campus security incident — and broadened the order to all members of the press.
In the order issued late Thursday, Judge Thomas Daniel McCloskey of Middlesex County, New Jersey, allowed local outlet New Brunswick Today to publish leaked school security camera footage of a high schooler getting busted for bringing a BB gun to school.
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But the judge required editor Charlie Kratovil to redact students’ faces and refrain from identifying the names of minors in writing. In an order that raises significant First Amendment questions, McCloskey demanded that New Brunswick Today submit the redacted recording for approval by the court — and the school district — prior to publication.
Local and national free speech advocates have rallied in defense of Kratovil, who said he has no plans of complying with a court order that he said violates his First Amendment rights.
“We simply cannot accept further unconstitutional prior restraints on our important work,” Kratovil wrote in an email to Straight Arrow on Friday. The judge’s order demanding prior approval from the court and school district is “the kind of government censorship the First Amendment was intended to prevent, so we will appeal.”
The school district is “comfortable with this outcome,” Aubrey Johnson, the New Brunswick Public Schools superintendent, said in a statement to Straight Arrow.
“We hope this ruling serves as a reminder that while a free press is essential, it carries a responsibility to protect the privacy of children,” Johnson said.
Why did a school district sue New Brunswick Today?
Thursday’s court order is the latest development in a case that began in early May, when a New Brunswick High School student attempted to bring a BB gun onto campus. A metal detector alerted the school’s security staff, who searched the 16-year-old student and took him into custody.
The school was placed into lockdown, which led Kratovil to question the severity of the threat and to accuse school leaders of misleading the public about potential harms to students. School officials described the incident as a “security drill” in an alert to parents, which didn’t mention that a student had been arrested for bringing a weapon to school.
The student, whose name has not been made public because he is a minor, was arrested on allegations of possessing a weapon and causing a false public alarm.
A day after New Brunswick Today uploaded the video to the internet, the school district took Kratovil to court, claiming he had violated state and federal laws protecting the teenager’s privacy rights. Those laws, however, apply only to government officials, not to journalists.
Still, in an emergency order, McCloskey sided with the school district. McCloskey, who acknowledged he hadn’t watched the footage, ordered Kratovil to delete the surveillance footage from the internet — and barred him from writing about it.
In a contentious court hearing Tuesday — more than a month after McCloskey demanded Kratovil delete the footage from YouTube — school board attorney Robert Mahoney argued the student’s identity wasn’t a matter of public concern. Student records, Mahoney said, are confidential by law. Not only did the footage violate the student’s privacy, he argued, it exposed school security details and put all students and staff in danger.
Why the order threatens press freedoms — for all journalists
The Supreme Court has held on multiple occasions that the First Amendment allows journalists to publish truthful information that’s in the public’s interest to know.
Kratovil’s lawyer, Bruce Rosen, said existing court precedent upholds the editor’s right to publish the footage and the court order was an unconstitutional prior restraint. It is up to school officials — and not a newspaper editor — to ensure student records remain confidential.
Kratovil maintains that the district misled the community about its response to the security incident and that the video — which he received from a confidential source — was published in the public’s interest.
“Officials at the highest levels of our school system lied to the public,” Kratovil said on Friday. “When New Brunswick Today exposed these lies by releasing a video that flatly contradicted their false narrative, the New Brunswick Board of Education sued us to suppress the truth and then voted to waste even more taxpayer money hiring an outside law firm to help silence us.”
While the judge’s order Thursday scales back an initial demand that barred Kratovil from publishing the video altogether, McCloskey extended the restraints to all members of “the press.” All journalists who publish the security footage moving forward must redact identifying student details, according to the order.
Caitlin Vogus, the senior adviser for advocacy for the Freedom of the Press Foundation, called the court-mandated review “censorship, full stop.” Under the First Amendment, “prior restraints are almost never allowed,” except in narrow circumstances related to national security.
While McCloskey was right to narrow the order, Vogus said, the judge’s decision to extend it to all members of the press is outrageous. In this case, she said, the court “has flatly defied the First Amendment and decades of Supreme Court precedent.”
“Even in cases that don’t involve core First Amendment concerns, judges aren’t kings,” Vogus said. “They 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.”
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