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The New England First Amendment Coalition on Tuesday denounced a recent court order by a Maine District Court judge barring journalists from reporting testimony given by witnesses during a public hearing.
According to the Portland Press Herald, the defendant requested that all media coverage of the domestic violence case be restricted. In response, Judge Jeffrey Moskowitz, the deputy chief of the state’s district court, dictated to journalists present at the hearing on Monday what they could and could not report. When a Press Herald reporter protested the order and asked for time to contact legal counsel, Moskowitz denied the request and told all journalists present that those who did not comply with his restrictions would be ejected from the courtroom.
“There is a 100 percent chance this order is unlawful,” said NEFAC’s Sigmund Schutz, attorney for the Press Herald. “There is no question that the U.S. Supreme Court and other courts have been very clear, what occurs or is said in the court is a matter of public record.”
The First Amendment provides the freedom to publish lawfully obtained and truthful information. That freedom can be restricted only in very rare cases and even national security concerns have not enough to justify prior restraints. This doctrine solidified during the last 40 years and was the central issue in New York Times Co. v. United States, 403 U.S. 713 (1971). In that case, the U.S. Supreme Court refused to stop The New York Times from publishing classified documents — also known as the Pentagon Papers — that detailed American involvement in the Vietnam War. The court cited a “heavy presumption against” prior restraints and that presumption continues to be an essential protection for journalists.
“This pre-publication censorship is a strike to the First Amendment and the public’s right to know about its court system and those accused of crimes,” said Justin Silverman, NEFAC’s executive director. “It is extremely concerning that a judge of this stature would disregard such fundamental First Amendment protections in issuing this order.”
While prior restraints are rare, these types of orders are occasionally given despite the strong constitutional presumptions against them. In November, for example, a New Britain (Conn.) Superior Court judge prevented the Connecticut Law Tribune from publishing an article based on a publicly released document related to a child custody case. That judge eventually reversed his order and allowed publication.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.