(Reuters) - In the past 100 years, the U.S. Supreme Court has forcefully and repeatedly made clear its distaste for injunctions barring newspapers and other media from publishing stories they consider newsworthy. The justices have never approved a prior restraint against a news publisher, and the court has suggested it would do so only in the direst of circumstances, such as a threat to national security. As long as publishers’ prospective stories are a matter of public interest, the First Amendment is a brick wall.
A case at the Iowa Supreme Court seeks to chisel a opening, posing the question of whether privacy rights should outweigh a newspaper’s First Amendment right to publish an article, based on publicly filed court records, about a person the newspaper deems newsworthy.
Last week, Iowa Justice David Wiggins granted a temporary stay in response to a prior restraint petition by Iowa lawyer Jaysen McCleary. McCleary asked the state supreme court to block The Des Moines Register and Register reporter Clark Kauffman from disclosing information Kauffman obtained from the court record in McCleary’s personal injury case against the city of Des Moines. Justice Wiggins’ Dec. 11 temporary injunction bars the Register from sharing the information about McCleary with anyone but the newspaper’s lawyers.
Those lawyers, from Faegre & Benson, called the Wiggins injunction an impermissible and unconstitutional prior restraint. On Thursday, they asked the Iowa Supreme Court to dissolve Justice Wiggins’ order. His injunction, the newspaper argued, flies in the face of skepticism from both U.S. Supreme Court and the Iowa Supreme Court about whether a court can ever enjoin the press in advance of publication. McCleary, the Register said, doesn’t come anywhere close to the standard for enjoining the news.
“At best, (McCleary) raised only personal privacy interests as a basis for his request that the judicial system take the unprecedented step of enjoining the press from reporting about matters concerning the courts and his practice before them,” the Register’s motion said. “Those private interests could not and do not rise to the level of a compelling state interest justifying consideration of, let alone entry of, a prior restraint.”
McCleary, in a phone interview Monday, said he’s also defending a constitutional right – the right of privacy. “I’m not Kobe Bryant. I’m not Hulk Hogan,” he said, referring to celebrities who have battled publishers over their privacy rights. “I’m a private person.”
There are two big questions in this case. The first is a legal and factual dispute about whether the Register properly obtained expert medical and financial reports from McCleary’s Polk County District Court personal injury suit, in which the lawyer alleged he was hit in the head by a garbage container from a city sanitation truck. The second is a more philosophical debate about who gets to decide what’s newsworthy in a prior restraint case. If the Des Moines Register regards McCleary as a public figure, is it entitled to decide the degree to which his privacy must be protected?
The medical and financial reports that are the subject of Justice Wiggins’ order last week were submitted in McCleary’s personal injury suit against the city of Des Moines in Polk County District Court. (The suit, which alleged McCleary was hit in the head by a garbage container thrown from a city truck, settled last November.) His lawyer filed the reports in July, at the direction of Polk County Judge Jeffrey Farrell. They did not ask for the documents to be filed under seal, but instead relied on a broad protective order, entered last February, providing a protocol for keeping case documents confidential. Nevertheless, the expert reports were available in the public docket. At some point between their entry in July and the settlement of McCleary’s case in November, the Register obtained the reports from the public docket.
McCleary contends the newspaper was obliged to destroy the reports under a seal order Judge Farrell granted in November, after the personal injury case ended. The seal order instructed anyone in possession of the reports to destroy them.
But Judge Farrell and another Polk County judge, Eliza Ovrom, rejected McCleary’s attempts to block the Register from holding on to the reports. Judge Farrell denied McCleary’s motion to hold the Register and a reporter at the newspaper in contempt for violating his seal order in the personal injury case, concluding that the Register had apparently obtained the documents before they were sealed and that the newspaper wasn’t bound by his order because it’s not a party in the suit.
In a separate suit McCleary filed against the newspaper, Judge Ovrom denied his motion for a temporary restraining order, holding that prior restraints against publication violate the First Amendment and the Iowa constitution. She also held the Register was not bound by Judge Farrell’s seal order in the underlying personal injury suit because it was not a party in that case. And, finally, Judge Ovrom reminded McCleary that when you go to court, you risk public exposure: “Plaintiff has asked this court to seal the court file so that it is available only to the parties, attorneys and the court. The court denies this request. The court file, like all court files, is open to the public.”
The Register, in its motion last week to dissolve Justice Wiggins’ injunction, argued that the justice didn’t give sufficient deference to the trial court decisions, which made clear that the newspaper didn’t do anything wrong when it obtained McCleary’s previously unsealed expert reports. Iowa’s own court, in 1976’s Des Moines Register v. Osmundson has acknowledged “an open question whether a court may ever enjoin the press, in advance of publication, from reporting or commenting on pending judicial proceedings.”
McCleary, the newspaper said, put the expert reports into the public record. His suit against the newspaper “seeks nothing more than to bar publication of information about him appearing in or gathered from court records that at all relevant times were publicly available … and that were lawfully viewed and obtained,” the motion said.
McCleary, meanwhile, told me the trial judges reached the wrong conclusion. On Monday, he moved for Judge Ovrom to reconsider the ruling, arguing that his medical and financial records are not of public concern. He also said Justice Wiggins’ injunction is narrowly tailored to block the newspaper only from disclosing the expert reports on his health and finances.
I’m inclined, as I’ve written countless times, to side with Register on access to publicly available court records. At least in federal court, if journalists lawfully obtain court filings, which the Register seems to have done, they’re entitled to use them.
There is, however, an important caveat on that rule: To justify compromising privacy, news stories have to be on matters of public interest. As McCleary said in an email to me, ordinary people living outside of the public’s attention shouldn’t have to worry that a newspaper will publish confidential information about them.
Obviously, the Des Moines Register considers McCleary to be newsworthy or else it would not have reported an article about him. He insists he is not a public figure, although he represents dog owners in litigation alleging civil rights violations by Des Moines animal control officials. In an email to me, he said his pro bono work on behalf of these owners has exposed the city to “millions in damages.”
When I asked whether the million-dollar litigation against the city made him a public figure in Des Moines, he said the Register would be justified in reporting on the litigation but not on private health and financial records.
“If I’m a public figure, why not report on any of my cases?” he said.
McCleary’s best case on this point is a 1996 Iowa Supreme Court ruling, Johnson v. Nickerson, casting doubt on the proposition that every court case is a matter of public concern. “Purely private disputes such as a lawsuit in which the impact is limited primarily to the parties involved, even though perhaps of interest to the public, are insufficient to create a matter of public concern,” the Iowa justices said.
The Iowa justices have a lot to think about in McCleary’s case, beginning with the scope of the temporary stay issued by Justice Wiggins. McCleary himself has described his case as a prior restraint suit, but it’s also true that Justice Wiggins barred the Register only from disclosing information from the expert reports. Is that a prior restraint subject to the First Amendment and the Iowa constitution?
If it is – and if the court agrees with the two trial judges who determined the Register was not bound by the sealing order – then we’ll get to the really tough question of whether McCleary’s privacy interest in shielding publicly filed expert reports count for more than the public’s interest in both open access to court records and in an attorney who, in his own telling, is pursuing seven-figure civil rights claims against the city.
Hulk Hogan’s notorious privacy case against Gawker drove Gawker’s publisher into bankruptcy and sent a chill through the news business. McCleary’s case could be just as disruptive because he’s asking for relief that courts have been extremely reluctant to grant – and he’s already convinced one state justice to side with him.
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