Tony Evers stands by warning journalist of prosecution over reporting

MADISON - Gov. Tony Evers is standing by his child services officials who warned a reporter he could face jail time if he reported information from a confidential child abuse investigation.

Evers said Tuesday the Department of Children and Families acted appropriately by sending an NBC News reporter a cease and desist letter threatening legal action, a move that media law experts say is likely unconstitutional.

“I believe it’s appropriate that DCF protects the kid in this case. Somebody’s got to stick up for that young kid who was deemed to be abused," Evers told reporters Tuesday. "Somebody’s got to stand up for the kid, and we did and I support that."

DCF officials sought to block NBC News reporter Mike Hixenbaugh from publishing information from a confidential child abuse investigation file, saying reporting such information would violate state law and could result in six months in jail and a $1,000 fine.

"Please cease and desist immediately from any further illegal use and disclosure of the documents in the child abuse investigation file illegally disclosed to you, and any information obtained in that file," Therese Durkin, chief legal counsel for the agency, wrote to Hixenbaugh. "Failure to comply will lead to further legal action."

State law requires such information be kept confidential to ensure the privacy of children who are or suspected to be victims of abuse, and carries criminal penalties if documents or details contained in child abuse investigation files are released.

But media law experts say the First Amendment protects journalists' possession and publication of truthful information in the public's interest, regardless of how the information was released to them — and even trying to stop a reporter from publishing violates the U.S. Constitution.

"Yes, I get it that if some reporter gets some information that frankly they shouldn’t have gotten they’re going to report it. I get that, but I think it’s very important that somebody sticks up for that kid and that’s us," Evers said Tuesday.

Hixenbaugh, the NBC News reporter, obtained records related to a child protective services case involving a former emergency room doctor at Children's Wisconsin Hospital who has been charged with physical abuse of his newborn daughter. The reporter did not ultimately cite the records in his reporting.

The story includes details of the case, including information from medical records, and raises questions about whether the child was injured by an accident, rather than by abuse.

In the warning to NBC News over release of the case's investigation file, the department cited a portion of state law that says a person who receives such information may not "further disclose it." The department did not allege NBC News directly participated in the illegal release somehow and does not plan to pursue criminal charges.

"When the agency turns over records to parties under this statute, we are very forward with these warnings as a normal course of action," Department spokesman Tom McCarthy told the Milwaukee Journal Sentinel. "The letter we sent to NBC was to inform them of these laws and what may happen if they violate them, while also maintaining our duties."

McCarthy said Tuesday the department did not intend to threaten prosecution with its letter to NBC News.

An attorney for NBC News wrote back to the department, saying virtually all the information contained in the investigation file is available through other sources, including court records — which are public records — and cited two U.S. Supreme Court decisions from 1975 and 2001 that said the First Amendment protects the publication of information required to be confidential by state law, even if the information's release to a journalist is illegal.

"Our Department of Children and Families does really important work protecting kids ... and I know that making sure that they maintain the privacy of minors is very important to them," Wisconsin Attorney General Josh Kaul told reporters Wednesday, noting he didn't know all the details of the situation. "But we also have a First Amendment that we need to safeguard and protect and making sure that there is free and open access to information for the press is vitally important."

Robert Drechsel, a journalism professor at the University of Wisconsin-Madison who specializes in media law and constitutional issues, said the agency is free to ask the reporter not to publish but cannot legally compel them to do so.

"I don’t know how common it is for a Wisconsin state agency to tell a reporter to 'cease and desist' and threaten prosecution this way. No other examples come to mind in all the years I’ve lived in Wisconsin," Drechsel said after reviewing the agency's letter to NBC News. "Any formal legal cease and desist order issued against the news media would be a prior restraint that is almost certainly unconstitutional."

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Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.