Iowa Supreme Court Apparently Unfamiliar With First Amendment And Prior Restraint: Bars Newspaper From Publishing Info

from the that-won't-fly dept

You would think that to become a state Supreme Court Justice you need to be familiar with the basics of the law -- including famous legal rulings. For example, New York Times Company v. United States from 1971 is a pretty important and well known First Amendment case, in which the court specifically said that preventing newspapers from publishing information was unconstitutional prior restraint. That case relies on a number of other super famous First Amendment cases such as Near v. Minnesota and Bantam Books v. Sullivan. I mean, I'm not a lawyer and I know these cases. You would think that an Iowa Supreme Court Justice would as well.

No such luck, apparently. As the Associated Press is reporting, Justice David Wiggins of the Iowa Supreme Court has blocked the Des Moines Register from publishing material that it had obtained via court records that were inadvertently made public.

Wiggins granted a temporary stay Monday that blocked the newspaper from publishing information obtained from records relating to Des Moines attorney Jaysen McCleary. McCleary argued the records contained private information about his disabilities and finances and were never intended to be public. The records were inadvertently filed publicly by one of McCleary's lawyers in a lawsuit he filed against the city of Des Moines that alleged he suffered injuries when he was hit in the head by a garbage container launched from a city truck. They consisted of reports from experts who had evaluated McCleary, and were available for months in the state's electronic court records. The parties told the court they reached a settlement in November.

Now, it's entirely reasonable to sympathize with Mr. McCleary. Through no fault of his own, material that he doesn't want public got released. He should be pretty pissed off at his lawyers. But that is no excuse for prior restraint. There is no First Amendment exception for "but that might embarrass the guy" or "oops, he didn't mean that to become public."

The Des Moines Register has made it clear it intends to fight this order:

The Register has objected, calling the order an unlawful form of prior restraint that violates the First Amendment and “stands as an undesirable and unsustainable outlier in the law and policy of this state and this nation.” [....] The Register’s attorney, Michael Giudicessi, has asked the Iowa Supreme Court to vacate the order, arguing in court filings that “the United States Supreme Court has never approved imposition of a prior restraint against the news media and the court has suggested it would consider doing so only in dire situations, such as matters of national security when the country is at war.” Giudicessi wrote that the order is “an impermissible prior restraint of the press barred by the Iowa and federal constitutions. … The order unmistakably functions as an injunction directed to the Des Moines Register newspaper and its news reporter, Clark Kauffman, enjoining them from publishing the contents of court records.”

Apparently, the documents in question were not just filed publicly by McCleary's lawyers, but they remained available for anyone to download for an astounding three months, without objections. It was only after McClearly realized that the Des Moines Register was going to publish something that his lawyers suddenly freaked out.

Even more incredible, according to the Des Moines Register's Clark Kauffman, writing a story in which he refers to himself in the third person, he first alerted McCleary to the documents being public, and received a thank you from McCleary... followed up by a lawsuit.

On Nov. 15, after reviewing hundreds of court documents, Kauffman emailed McCleary to let him know the records were publicly available on Iowa Courts Online. "I just wanted to make you aware of that in case that was something you or your attorneys had asked the court (to) address,” Kauffman wrote. McCleary wrote back, thanking Kauffman for alerting him to the situation. 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.

What a way to "thank" Kauffman for alerting him to the fact that the information was public. Suing Kauffman seems like a pure SLAPP lawsuit. Too bad Iowa doesn't have an anti-SLAPP statute.

It's difficult to see how this injunction against publishing will hold, and it's difficult to see how McCleary can win his cases against Kauffman, but without an anti-SLAPP law to get the case tossed quickly, it can still be quite a painful process. In the meantime, if McCleary didn't want to "damage his reputation," perhaps he shouldn't have sued a local newspaper and its reporter for doing their job. Because no matter what's in the now blocked report, I can't imagine it doing as much harm to one's reputation as trying to use the legal system to silence the press from reporting on public information.

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Filed Under: clark kauffman, david wiggins, free speech, iowa, jaysen mccleary, prior restraint

Companies: des moines register