Judge Robert J. Gilson is one of three judges who heard arguments Monday in a case that could limit how much news agencies can report on public officials. (Courtesy of New Brunswick Today)
On the 11th floor of a Newark courthouse on Monday, a panel of appellate judges heard a case that could determine whether journalists or judges decide what news is fit to print.
The dispute pits New Brunswick Today editor Charlie Kratovil and the American Civil Liberties Union of New Jersey against New Brunswick and a bevy of groups representing prosecutors and other law enforcement officers.
Kratovil wanted to print the home address of New Brunswick’s now-former police director, to alert city residents that the guy lives 100+ miles away, in Cape May. The city sent him a notice — not a threat, they say — saying if he printed the guy’s address, Kratovil would be subject to criminal and civil penalties (Not a threat, though!). Kratovil sued the city to prevent the city from charging him. New Brunswick announced Caputo’s retirement in November.
The rub here is Daniel’s Law, a state statute intended to protect judges, prosecutors, and cops who don’t want their home addresses published (the law is named after the son of a federal judge killed in the judge’s home). The federal version of the bill excludes news agencies, but the state law — passed at about the time state lawmakers were taking a few other actions to shield their addresses from the public eye — contains no such exemption.
Though the ACLU’s case here is strictly related to the specific details of Kratovil’s case — they are not challenging the overall constitutionality of Daniel’s Law — it’s hard not to believe the wrong result could mean yet another loss for government transparency in New Jersey. Some of the judges’ comments during Monday’s 90-minute hearing made me nervous.
Judge Robert J. Gilson noted that the lower-court judge who initially heard the case said Kratovil could publish that the ex-police director, Anthony Caputo, lives in Cape May, just not his specific address. Gilson asked, isn’t that good enough?
“That’s really the significance of the story, isn’t it?” Gilson said. “There’s a difference between ‘Director Caputo lives in Cape May’ and ‘Director Caputo lives at blank number on blank street in Cape May.’”
When attorney Frank Corrado — arguing on behalf of a press freedom group — said that New Brunswick should have to provide evidence that there was some specific threat Caputo faced to prevent the publication of his home address, Gilson pushed back.
“The publication itself isn’t going to cause harm … it’s the fact that the enemy could read it and then act on that,” the judge said.
I’m not arguing that no harm could ever come to a public official. But I found Caputo’s Cape May address in a few seconds using Google. Allowing Kratovil to publish it in a news story would not make it any easier to discover where Caputo lives.
Gilson has a point that the aim of Kratovil’s reporting — to alert New Brunswick taxpayers that the guy they were paying to run its police department lived more than one hundred miles away — is accomplished by using just the town name. But if that’s the precedent we set, what happens if Caputo gets a fat tax break because he’s cozy with his town’s mayor — would anyone be able to publish information about his home? More importantly, if it would be a crime to disseminate Caputo’s address, how would anyone even know he got a tax break?
Alexander Shalom, representing Kratovil for the ACLU of New Jersey, argued to the judges that courts have found if a news topic is of public concern, then anything related to that topic is fair game to report.
He noted a 1989 U.S. Supreme Court Case, Florida v. B.J.F., where the court ruled against a rape victim who had sued a Florida newspaper for accidentally printing her name. Florida law barred papers from doing this, but the nation’s high court ruled that it is unconstitutional to punish a newspaper for truthfully printing information it obtained legally.
“Once you decide that the topic is a matter of public concern, you don’t get to decide how it’s reported,” Shalom said. “Here, the overall thrust of the article, by the trial court’s concession, is a matter of public concern. We don’t then let judges get into the business of deciding which facts can be included, which descriptors, and which details.”
The judges have yet to rule on this case. Its outcome will likely not be wide-ranging: the ACLU seeks only to let Kratovil avoid being charged with a crime for publishing the home address of a one-time city official. But a ruling against Kratovil would embolden officials who already do their damndest to keep public information out of the hands of the pesky public. For that, I worry.
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