Iowa Supreme Court Justice David Wiggins has ordered the Des Moines Register not to publish any material from court records reporter Clark Kauffman obtained when they were accessible to the public earlier this year.
The full Iowa Supreme Court must reverse this act of censorship as soon as possible.
The U.S. Supreme Court’s split decision in the 1971 Pentagon Papers cases established the principle that the First Amendment allows “prior restraint” by the government only when publication of sensitive material would lead to “direct, immediate, and irreparable harm to our Nation, or its people.”
In the case at hand, attorney Jaysen McCleary has sued to prevent publication of material related to his lawsuit against the city of Des Moines, which was settled last month. In McCleary’s view, the records discussing his medical conditions and finances “are not a matter of public concern” and could cause “irreparable harm” to his privacy rights.
Kauffman reported for the Register on December 15, “For at least three months, the documents remained readily accessible to the public. They had not been marked ‘confidential.'” Kauffman himself informed McCleary that the records were available.
The next day, a Polk County judge had the documents sealed and made subject to a protective order.
McCleary later sued Kauffman and the Register, claiming they were conspiring with the city of Des Moines to defame him and damage his reputation through a planned news article that would make use of the sealed records and other information.
Wiggins’ order [of December 11] said the Register cannot publish any information obtained exclusively from the now-sealed reports, at least until the full court says otherwise.
District Court Judge Jeffrey Farrell had previously “rejected McCleary’s motion to hold the newspaper in contempt of court, saying the filings had long been available to the public and the Register wasn’t subject to the confidentiality order,” Ryan Foley reported for the Associated Press on December 15.
District Court Judge Eliza Ovrom denied McCleary’s motion for an injunction on Dec. 7, saying such an order would violate the First Amendment. She also rejected McCleary’s request to seal the case from the public.
Wiggins, the Supreme Court justice, issued a temporary stay after McCleary filed an emergency appeal to the high court. Wiggins said the stay would remain in effect until the court could rule on whether to take up McCleary’s case.
“Pending further order from this court, the defendants shall not disclose or share (other than with legal counsel) any information in the defendants’ possession that was obtained exclusively from the reports,” Wiggins wrote.
I cannot fathom where Wiggins finds a compelling governmental interest in suppressing publication of information about one person’s health or finances. The Des Moines Register has asked the Iowa Supreme Court to vacate the order by Justice Wiggins as “an impermissible prior restraint of the press barred by the Iowa and federal constitutions,” Kauffman reported.
Randy Evans, executive director of the Iowa Freedom of Information Council, said in a statement,
This is extraordinary and very troubling action by Justice Wiggins — blocking publication of information that was legally obtained from a public record. We are hopeful the entire Supreme Court will quickly conclude that Justice Wiggins’ order goes too far and is an impermissible prior restraint on a free press.
Drake University journalism Professor Kathleen Richardson told the Register that prior restraint “is hardly ever found constitutional.” Wiggins’ colleagues should correct this embarrassing misstep and reassert long-established principles of press freedom.
UPDATE: Wiggins lifted the stay on December 19 “in an order explaining the court had declined to consider attorney Jaysen McCleary’s request for an injunction blocking publication,” Foley reported for the AP. From Jason Clayworth’s Des Moines Register story:
“The stay was strictly temporary in nature, its duration limited to the time necessary for the filing of the defendants’ response, the plaintiff’s reply and this court’s entry of a ruling on the plaintiff’s combined applications,” Wiggins said in Tuesday order.
McCleary, within an hour of Tuesday’s ruling, asked the Iowa Supreme Court to grant a “three-judge review” of the order. He told the Register Tuesday he plans to petition the U.S. Supreme Court as well, although he said, “the prospect of obtaining justice is low.”
“I anticipated Justice Wiggins to fold under the pressure from the media, especially given the last time our justices led the nation in doing the right thing three of them lost their job,” McCleary said Tuesday in an email to the Register. […]
Des Moines Register Executive Editor Carol Hunter said she was gratified with Tuesday’s action.
“This order upholds the U.S. Supreme Court’s long recognition that prior restraint on publication would violate the First Amendment,” Hunter said. “It’s a bedrock constitutional protection that helps guarantee a free press.”
I understand why Hunter might prefer not to go to war with a Supreme Court justice, but the new order from Wiggins does not appear to recognize the principle that “that prior restraint on publication would violate the First Amendment.” On the contrary, Wiggins seems to be defending his use of prior restraint until the court had decided whether to hear McCleary’s case. It’s unfortunate the whole court did not weigh in to affirm the constitutional principle.
McCleary, within an hour of Tuesday’s ruling, asked the Iowa Supreme Court to grant a “three-judge review” of the order. In response to that request, Iowa Supreme Court Justices Brett Appel, Edward Mansfield and Bruce Zager confirmed Wiggins’ order Tuesday afternoon.
The Register published Kauffman’s article, “Iowa’s ‘dog lawyer’ spars with judges, confounds court system,” on December 20. I didn’t expect to care about McCleary’s legal practice, but it turns out to be a fascinating story.
I am baffled that an Iowa Supreme Court justice felt justified in barring a newspaper from running this piece for any length of time. One person’s desire to avoid unflattering media coverage doesn’t come close to meeting the U.S. Supreme Court’s standard of allowing prior restraint when publication would do “direct, immediate, and irreparable harm to our Nation, or its people.”
I fear Wiggins has laid out a road map for keeping embarrassing information out of the public eye: file a lawsuit against the person who has legally obtained the records. Not every news organization has the Des Moines Register’s resources to fight this kind of battle in court.