New Jersey Paper Appeals Judge’s Gag Order, Calling It Unconstitutional Prior Restraint

New Brunswick Today has asked a New Jersey appellate court to overturn a judicial injunction that it says unlawfully gagged reporting about a May 8 lockdown at New Brunswick High School. The order, issued by New Jersey Superior Court Judge Thomas D. McCloskey, barred the outlet — and, by its terms, other news organizations nationwide — from identifying the 16-year-old student who brought an airsoft pistol to campus and from publishing unredacted surveillance footage of the incident.

What Happened

After New Brunswick Today published leaked surveillance video showing how school officials discovered the airsoft pistol, the New Brunswick Board of Education sued and Judge McCloskey issued emergency relief. On May 29 the court ordered the outlet to remove the footage and refrain from describing it. On July 9 the judge issued a revised injunction allowing publication so long as juvenile identities were obscured and the district reviewed and approved any redactions before republication. The revised order also extended its scope to "the press" generally, effectively attempting to bind nonparties.

Legal Arguments From the Paper

Attorneys C.J. Griffin and Bruce S. Rosen argue the injunction is a presumptively unconstitutional prior restraint. Their appellate brief stresses Supreme Court precedent that permits prior restraints only to protect an interest of the highest order — for example, to prevent an immediate threat to national security — and says the Board's asserted interest in student privacy falls far short of that standard.

"This case presents an extraordinary violation of the First Amendment — a prior restraint specifically prohibited by the United States Supreme Court," Griffin and Rosen write.

Relevant Precedent

The brief cites several key decisions: New York Times Co. v. United States (Pentagon Papers), where the Court rejected a publication ban; Landmark Communications v. Virginia, which struck down laws criminalizing publication of truthful court-related information; and Bartnicki v. Vopper, which protected a publisher who aired material a source obtained unlawfully when the publisher did not participate in the wrongdoing. The brief also cites Yurish v. Sinclair Broadcast Group, a West Virginia decision protecting outlets that published recordings of staff misconduct at a school.

Statutory Issues And Procedural Concerns

The Board relied on federal and state statutes concerning minors’ information. Griffin and Rosen counter that federal education-privacy law regulates schools, not the press, and that the state statute invoked concerns court, probation, or law-enforcement records rather than routine school surveillance. They further argue the judge misapplied New Jersey’s Uniform Public Expression Protection Act (UPEPA) when denying fee-shifting protection to the outlet.

The lawyers also criticize the speed and handling of the case: the initial broad restraints were entered after a hearing of roughly two hours and remained in effect for nearly six weeks before the judge scaled them back. The brief contends that lengthy prior restraints cause irreparable First Amendment harm and that appellate courts should have provided faster, exacting review.

What the Appeal Seeks

New Brunswick Today’s appeal asks the appellate division to lift the remaining restraints and to reaffirm that the press may publish truthful, newsworthy material of public concern even if a source obtained it without authorization, so long as the publisher did not participate in the unlawful acquisition. The case raises broader questions about when privacy interests of minors can justify publication bans and whether government approval of redactions amounts to a prohibited prior restraint.

Outcome to watch: The appellate court’s ruling will affect how New Jersey balances student privacy and press freedom, and whether courts may require a government entity to preapprove redacted footage before publication.