Fight Is On
How New Jersey’s Attorney General Is Trying to Muzzle a Reporter
Trentonian reporter Isaac Avilucea says AG Christopher Porrino’s so-far successful attempt to prevent him from publishing a controversial story is a reflection of the threats facing media more generally.
The great state of New Jersey, which has spawned sociocultural superstars as various as naturalist-poet Joyce Kilmer, rock balladeer Bruce Springsteen, and truculent governor Chris Christie, is currently distinguishing itself in a different way—as a place where the First Amendment is under siege.
New Jersey’s attorney general, Christie ally Christopher Porrino, has successfully prevented The Trentonian, the 30,000-circulation daily based in the state capital, from reporting details of a sensational situation in which child welfare authorities removed a 5-year-old boy from his family and placed him in foster care after a teacher at his school discovered packets of heroin in his lunchbox and, weeks later, crack cocaine in his personal folder.
State Family Court Judge Craig L. Corson—who, like Porrino, was appointed to his job by the governor—issued an emergency injunction on Oct. 26, ordering the newspaper not to publish details of the incidents based on a confidential child abuse complaint against the boy’s parents and grandmother, which Trentonian reporter Isaac Avilucea says the mother willingly handed to him for the purposes of a news story.
Earlier in the day, he says, the mother, Tashawn Ford, had visited the Trentonian’s newsroom to solicit coverage of her plight. She was in the middle of a custody dispute with the boy’s paternal grandmother, Ernestine Woodard, and Avilucea had interviewed Ford, who was no longer in a relationship with the boy’s father, Maurice Leonard.
The temporary injunction, which the judge issued after a hasty hearing in which Deputy Attorney General John Tolleris was allowed to argue in absence of the newspaper’s lawyers as Avilucea was writing his story on deadline, cited state statutes that carry potential criminal penalties, including prison time of up to three years and a fine of $1,000; the judge extended the injunction two days later. It remains in force.
After the newspaper was served by the court, Avilucea was forced to delete from his story confidential details that relied on the so-called verified complaint provided to him by the mother in a courthouse hallway, moments before a confidential hearing on the child abuse complaint. (The story, in any case, never named the boy.)
“I see this case as a microcosm of a larger issue,” Avilucea told The Daily Beast on Wednesday, the same day a scheduled court hearing—in which lawyers for the Trentonian and the attorney general’s office were expected to argue the issues—was canceled without explanation or a new date set.
“Journalism, as this recent election has shown, is far more important now than maybe it has ever been,” he added. “It’s weird that this case is coming up now, because you have such a divisive figure in President-elect Donald Trump”—who has disdained the idea of holding regular press conferences, incited mob rage at his rallies against reporters both individually and collectively, and has vowed to “open up our libel laws” to make winning lawsuits against media outlets easier.
Christie, meanwhile, “is a media-hating governor who is trying to punish newspapers,” Avilucea said, referring to the governor’s efforts this week to rescind a state law that requires businesses, and state and municipal governments, to place their public legal notices in local papers as paid ads.
If adopted, the Christie-pushed legislation—which would permit the posting of notices online at no cost—would deprive New Jersey’s newspaper industry of an estimated 7 percent of its revenue and, according to analysts, cause the loss of around 200 to 300 jobs.
The state’s newspaper industry is hardly healthy even without this latest attack. New Jersey’s largest paper, The Star Ledger, is still nursing deep wounds from mass layoffs.
Avilucea, a native of Albuquerque, New Mexico, the eldest of four children of a retired lieutenant in the city fire department and a stay-at-home mom, is by all accounts no pushover.
He credits his father, a voracious consumer of newspapers “every fucking morning at the kitchen table,” with sparking his interest in journalism.
“I like the adversarial nature of it. I like holding people accountable—holding their feet to the fire. The important people, the shakers and movers,” Avilucea told The Daily Beast. “I was talking to my mom last night on the phone, and she worries. She thought I was a rebel. Well, if you’re a rebel and a rabble-rouser, journalism is right up your alley.”
At 27, Avilucea has established himself in a nomadic career as a take-no-prisoners reporter at five different newspapers—from two of which he was fired after heated disputes with his bosses—and has displayed a knack not only for “pissing off people” (as his close friend and mentor, Albuquerque Journal assistant sports editor Mark Smith, laughingly put it), but also for producing journalism that has attracted national attention.
In 2013, Avilucea, who rose to managing editor of his college newspaper at the University of New Mexico, was sacked from the now-defunct North Adams, Massachusetts, Transcript, when his profile of a female high school soccer player—in which he quoted her as comparing her former school to the movie Mean Girls—provoked angry phone calls to his boss from parents and administrators.
After the Transcript slammed the story in an editorial and he blogged about the experience—“I Was Fired for Being a Journalist,” was the headline—his termination was featured by BuzzFeed and Poynter among other outlets.
An earlier firing, in 2012, when Avilucea was working as a sportswriter for The Santa Fe New Mexican, received no publicity, but revealed him as a hothead with a taste for combat.
Avilucea’s then-boss, New Mexican sports editor John Barron—who remains a friend—recalled that he was forced to dismiss him after a series of newsroom confrontations with colleagues exploded in a knockdown drag-out during an argument concerning the local basketball team.
When Barron urged Avilucea to moderate his behavior, he recalled, the reporter hurled his bag at him.
“His temper and his emotions sometimes got the best of him,” Barron said.
Yet he described Avilucea, outside the newsroom, as a “good guy at heart” and loyal friend, as well as a talented writer and reliable reporter adept at obtaining documents to backstop his reporting.
“When he latches on to something, he won’t let it go,” Barron said. “It’s a great quality, in a way, but you also have to realize that if you’re covering basketball, not everything is Woodward and Bernstein.”
Avilucea eventually landed at the Connecticut Law Tribune, where he made waves covering a bitter child custody battle between two divorcing attorneys, and—in an episode that also made national news—quoted from a confidential document published by mistake on the state judicial branch’s website and confronted his first experience of prior restraint.
New Britain Superior Court Judge Stephen Frazzini ordered the Law Tribune not to publish further stories on the conflict. (The judge later reversed himself, saying his injunction was moot after other news organizations published detailed accounts of the marital and child custody dispute.)
“He doesn’t have a filter; there’s no gray area,” Avilucea’s mentor, Mark Smith, told The Daily Beast. “He’s the opposite of an access journalist and he wants to write the truth, good bad or indifferent. He’s a really hard-nosed reporter and he’s really aggressive, and he’ll just go after it and after it. He won’t let a story beat him.”
Or much else, it seemed. Last year, Avilucea beat testicular cancer into remission after receiving the diagnosis just before he turned 26.
“We’re living at a time when our First Amendment rights are under attack,” he said, concerning Trump. “He’s threatened to roll back certain freedoms and protections we’ve enjoyed.”
One of the Trentonian’s attorneys, media lawyer David Bralow, declined to discuss the paper’s legal battle, citing attorney-client privilege, but acknowledged the Fourth Estate in general: “I will say that we are in perilous times.”
Miriam Ascarelli, president of the New Jersey Chapter of the Society of Professional Journalists—whose national headquarters issued a tough statement this week in support of Avilucea and his newspaper—echoed those concerns, as have press defenders and constitutional law experts ranging from media lawyer Floyd Abrams to UCLA Law School Professor Eugene Volokh.
“I think there is a sense that journalism is under assault in the Trump era, and that’s a fair thing to say,” Ascarelli told The Daily Beast. “I think people don’t know what’s going to happen, and there is a sense that this case is important.”
The statement by Ascarelli’s organization condemned Judge Corson’s injunction and argued: “There is no question that this story is messy and needs to be handled with sensitivity… The sensitivity of the topic is not a reason stop the presses and prevent Avilucea from using material from a report that he obtained legally to tell a story that raises legitimate issues of public concern. This is not just about the criminal aspects of the case, but also about whether there were failures on the part of the state agencies that were supposed to protect the child.”
The statement added: “This injunction sets an intolerable precedent that undermines everything we value about a free press.”
Indeed, Judge Corson’s action would seem to violate constitutional protections against “prior restraint” of the news media that the Supreme Court had declared settled law as far back as 1931 in a landmark case, Near v. Minnesota, in which the high court struck down a state statute gagging “scandalous” newspapers that create a “public nuisance.”
That precedent was reaffirmed in the 1971 Pentagon Papers decision, in which the justices voted 6-3 against the Nixon White House’s attempt to stop The New York Times and The Washington Post from publishing the government’s highly classified secret history of U.S. involvement in Vietnam.
Prominent New Jersey media lawyer Bruce Rosen, who has been representing a consortium of media organizations trying to pry information out the U.S. attorney’s office in the ongoing Chris Christie/”Bridgegate” investigation, said the Garden State’s judges seem particularly prone to issuing unconstitutional injunctions to prevent media outlets from publishing sensitive information of public interest.
“It’s almost as if no one took constitutional law before they became a judge in New Jersey,” said Rosen, who in recent days signed on as Avilucea’s personal attorney, pro bono, after the reporter refused to be party to a settlement agreement hammered out between his newspaper and the attorney general’s office.
Avilucea’s refusal blew up the settlement that, according to him and a second source familiar with the negotiations, the Trentonian’s management had been eager to sign.
It would have ended the litigation and avoided tens of thousands of dollars in legal expenses for the paper and its parent company, Digital First Media, a chain of small newspapers which in turn is owned by a hedge fund, Alden Global Capital. Top Trentonian editor John Berry didn’t respond to email and voicemail messages seeking comment.
The proposed settlement, a copy of which was obtained by The Daily Beast, would have required the newspaper not to publish any information from the confidential “verified complaint” and to destroy any copies of the document along with attachments and exhibits.
The attorney general’s office, however, would have permitted the Trentonian to publish information obtained independently of the complaint, and to write stories about the state government’s efforts to keep the contents of the complaint secret.
It also required Avilucea and the newspaper to waive any legal claims arising from the situation, and in return promised to release him from any potential criminal liability.
“I didn’t feel like the Trentonian’s lawyers had my back,” Avilucea said, explaining why he retained separate counsel this week. “I felt like they wanted me to sign this agreement. I just didn’t feel comfortable with the posture, the precedent, and the principal. You have the attorney general of the state telling you what you can and cannot report? It’s offensive and nonsensical. This was settled case law long before I was born.”
Absent a settlement, the Trentonian must hope to prevail in court. But shockingly, Avilucea learned late Wednesday night the devastating news that he is facing a far more important battle.
“I found out yesterday my cancer is back. I’m in the hospital now,” he emailed on Thursday morning. “I have the history. I was coughing up blood, felt weak yesterday. So I came to RWJ [Robert Wood Johnson Hospital] in Hamilton. They said it spread to my lungs and lymph nodes near my stomach. Waiting to be biopsied… I gotta make decisions once I know prognosis. if it’s beyond treatable I’ll prob go back to NM.”
With astonishing courage, and a taste for irony indulged by ink-stained wretches the world over, Avilucea added: “I thought this prior restraint battle was my biggest fight. It has been supplanted in 24 hours. Lol.”