Tuesday, February 28, 2012

Press association opposes family-court bill that would set up prior restraint confrontations

The Kentucky Press Association is opposing a proposal that purports to open the state's family court system but would actually fall far short of that promise.

House Bill 239, which was approved last week without dissent and sent to the Senate, would set up a pilot project in state courts that deal with dependency, neglect and abuse proceedings or termination of parental rights. The press association has for years encouraged the state to open family court to the public and the media.

But KPA Executive Director David Thompson, in an email to the association's members, characterized the project as "more of a closed court, once it's open," and said the proposal clearly would violate the First Amendment prohibition of prior restraint on news coverage.

Under the plan approved by the House, any person – a private citizen or a journalist – attending a hearing would be prohibited from naming any individual involved in the court proceeding or giving any information that would lead to the identity of any individual. That would include identifying a witness who testified at the proceeding. That prohibition would be in force "outside of the court room."

The plan also allows anyone attending the hearing to take written notes, but it gives the judge or court official the right to inspect those written notes before the notes are taken from the court room.

"There is no openness when the public and the media are gagged, and written notes sanitized by court officials," Thompson said.

The Supreme Court of the United States ruled in 1976 in Nebraska Press Association v. Judge Stuart that a judge's order that journalists who attended a preliminary hearing could not report anything they heard until the trial started was an unconstitutional prior restraint.

The court in 1989 in Florida Star v. B.J.F. ruled unconstitutional a Florida law that prohibited the publication of a rape victim’s name by the news media.

"Numerous legislators have referred to opening family courts as a way to give more transparency to the public about issues involving the Cabinet for Health and Family Services. Nothing needs to be said about how important that is. But House Bill 239 has not become that vehicle," Thompson wrote.

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