The Goldwater Institute has just filed a friend of the court brief in a New Jersey court urging judges to overturn an astounding violation of free speech by public school bureaucrats who are trying to silence criticism of themselves.
The case involves an incident in the New Brunswick school district, where a student showed up at school with a gun. The student was apprehended and the school put on lock-down, but that’s not what school officials told parents; they said the school had simply held a “drill.” The truth only came out when surveillance video of the incident was leaked to the local newspaper.
Yet when the paper published the video on its website—which it has a constitutional right to do, under both the First Amendment and the New Jersey Constitution—school leaders sued the newspaper and persuaded the judge to order the video removed from the internet. What’s more, the judge barred the newspaper from discussing the content of the video or even publishing information about it.
If that sounds familiar, it’s because there have been several incidents in recent years in which school officials have sought to silence criticism by suing parents who seek to exercise their freedom of speech.
A few years ago, Goldwater lawyers defended two Virginia moms who had legally obtained documents about how Fairfax schools were spending money and posted some of the documents online (after redacting any private information about students). A Virginia judge ruled in our clients’ favor, declaring the schools’ case an obvious violation of the First Amendment.
Similarly, we’re still defending Rhode Island parent Nicole Solas, who sought information about what her local schools were teaching her daughter—only to have the local teachers’ union sue her. (We were just in court to argue her case.)
The New Jersey situation is even more egregious in some ways. It could not be more clearly established in the law that the news media (or even individual people) are free to publish information they have legally obtained—or even, in most cases, information that was illegally obtained. In the famous “Pentagon Papers” case in 1971, the U.S. Supreme Court held that the media could publish documents stolen from the Pentagon during a time of war. If that’s constitutionally protected, then certainly surveillance video from a public school—which the newspaper did not illegally acquire—is fair game.
Nevertheless, the New Jersey judge not only forced the news site to remove the video, but in a subsequent ruling, modified his order to let the paper to re-post the video…but only if it got permission from school officials first.
That’s an obvious violation of what is supposedly the most basic rule of free speech: that “prior restraints” are unconstitutional. A “prior restraint” is when a person must get permission before speaking. Yet that is exactly what the trial judge’s order in this case requires.
Worse still, after the newspaper appealed the case, the New Jersey appellate courts refused to put the case on an accelerated schedule, meaning that this explicit prior restraint has already been on the books for months, and could remain so for months to come. So even if the appellate court does ultimately throw out the censorship order, school officials will still have succeeded in censoring legitimate speech for—well, just as long as necessary to serve their purposes.
As our brief points out, the increasingly aggressive attitude of public-school officials—suing parents for exercising their free speech rights—is a disturbing trend. It’s certainly one courts should not tolerate—or allow to happen by slow-walking critical free-speech lawsuits.
You can read our brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
