Tuesday, December 13, 2016

State tries to stop newspaper reporting on CPS

I have posted before how California law has been interpreted to shelter CPS (Child Protective Services) from public scrutiny. Sometimes they even try to restrict a parent from showing legal accusations to his own attorney.

UCLA law professor E. Volokh writes:
Avilucea also got, from the child’s mother, the child abuse complaint (filed by the New Jersey Division of Child Protection) that sought to remove the child from her custody. ...

The state therefore got a court order that barred the newspaper from publishing “any information obtained from the filed verified complaint,” as well as ordering the newspaper “to remove from any publication source any documents if already printed or distributed.” And there is also a related statute, which criminalizes “encourag[ing] the release of the contents” of such records and reports (and which might presumably apply to any request by the reporter that the mother let him copy the complaint).

I think this order violates the First Amendment. ...

But it’s not clear that the government may get a court order blocking publication even of an illegally solicited document — the prior restraint doctrine, which presumptively forbids injunctions against publication, is generally very strong.

And beyond that, I don’t think that the government can just flatly ban the targets of government action from going to the media with complaints about such government action. If the government wants to take away your liberty, your property or your children, and you think this action is unjust, you should have the right to blow the whistle, and appeal to those who are ultimately in charge of the government, and in whose name the government acts — your fellow citizens.
The legal briefs on the free speech issue are also sealed, and unavailable.

I think Volokh is correct that CPS confidentiality laws are contrary to established interpretation of the First Amendment and maybe some other amendments as well.

Update: A comment adds:
There is no reason to respect an unconstitutional court order or the court that issued it. I am a lawyer in NJ, and the Family Courts in NJ routinely trample First Amendment rights, often closing the entire courtroom in many case involving children, whether DYFS (whose name has changed) is involved or not. Even when DYFS is involved, I am not convinced the statute requiring all records to be sealed, initials to be used and the courthouse closed is constitutional. The general reason given is "best interests of the child," a general, non-descript catch-all phrase that is used to justify almost anything in Family Court.
Volokh removed links to the brief, even tho he says that the order sealing them is unconstitutional.

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