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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  • identicon
    Alfonnze, 18 Dec 2017 @ 9:46am

    In this climate

    In the climate where you have Roy Moore who almost won a senate race, who was removed from his supreme court twice. This makes perfect sense

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2017 @ 9:56am

    The press always wrapping itself in the First Amendment has way too much power for the good of the people with the Second in tatters.

    The original meaning was for the First to be about freedom and the Second to be about responsibility.

    In the age of very small news sheets and duels to settle quarrels the First and Second made sense.

    In an age where duels are equated to murder and the press reduced to 10 or so media companies who dictate what people are to think your concepts of no prior restrain come down to the ability of a select group of ignorant sensational seekers who will do any thing for their own profit, your consequences be damned, less so.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2017 @ 10:01am

    Nonsense Mike

    The experts can't possibly be wrong!

    The 1st is crystal clear but there seem to be a lot of confused experts all over the place.

    What did I warn you guys about removing the spec from your own eyes before you can see clearly enough to remove a spec from another?

    Everyone wants the Constitution destroyed, it is required for either of our two parties to fully realize their special brand of despotism.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Dec 2017 @ 10:23am

      Re: Nonsense Mike

      Ah chip, I thought I smelled the stench of failure.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Dec 2017 @ 10:39am

        Re: Re: Nonsense Mike

        Oh look, the first sign that you lost the argument.

        Ad Hominem attack with no substance.

        You all seem to be able to recognize that America is going down hill but refuse to see the parts many of you play in helping USA down into the ditch.

        You are like spoiled children that think it is the house keepers fault for your bedroom being messy.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Dec 2017 @ 11:09am

          Re: Re: Re: Nonsense Mike

          Oh look, chips being a hypocrite while being a smug prick. Give him a lead based cookie.

          reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 18 Dec 2017 @ 11:12am

          Re: Re: Re: Nonsense Mike

          Declaring that you have won an argument is not the first sign that you have lost that argument, but it is arguably the best.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Dec 2017 @ 11:21am

            Re: Re: Re: Re: Nonsense Mike

            I did not claim to have won, there are more than 2 people in this argument. I just claim that they lost. There is a difference.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 18 Dec 2017 @ 1:02pm

              Re: Re: Re: Re: Re: Nonsense Mike

              It’s not an argument. It’s you being the single minded munchkin with an ego the size of an aircraft carrier being and me making fun of you. You’re just too stupid to figure that out. Must be all that accumulated lead in your body taking it’s inevitable toll. Have another cookie.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 18 Dec 2017 @ 2:23pm

                Re: Re: Re: Re: Re: Re: Nonsense Mike

                You might fit the profile of something I was reading about in an article recently.

                https://www.theatlantic.com/international/archive/2017/12/buddhism-and-neuroscience/548120/

                "What nature gave us is by no means entirely negative; it is just a baseline. Few people would honestly argue that there is nothing worth improving about the way they live and the way they experience the world. Some people regard their own particular weaknesses and conflicting emotions as a valuable and distinct part of their “personality,” as something that contributes to the fullness of their lives. They believe that this is what makes them unique and argue that they should accept themselves as they are. But isn’t this an easy way to giving up on the idea of improving the quality of their lives, which would cost only some reasoning and effort?"

                You "think" you know a lot, but you really don't. What is even better you are accusing me of being egotistical, but what is more probably is that you are confusing my certainty for it because you have an inferiority complex.

                I bet you actually think on of these two political parties tearing the country apart is better than the other don't you?

                The first thing you do in order to fight others is to dehumanize them so that you can justify marginalizing them. After all, anyone that does not subscribe to your beliefs should be ridiculed... right? I wonder how tolerant you really are?

                reply to this | link to this | view in chronology ]

  • identicon
    Jaysen McCleary, 18 Dec 2017 @ 1:54pm

    Missing some basic facts. Might help the analysis

    Mr. Masnick,
    My reply brief to the Register is due today but though I would take a quick break to share some basic facts missing from your article and of course Mr. Kauffman's attempt to litigate the case via his own article in the media. Notably, and with all due respect, Mr. Kauffman nor you approached me for my comment. Curiously, missing in both articles are the fact that the records at issue were court ordered expert reports that were subject to a contested protective order filed in February 2017. I am not Kobe Bryant nor Hulk Hogain (i.e. public figure) but I am private citizen like any American who has a constitutional right to privacy. Kauffman blatantly disregarded a court order that instructed any third party must immediately destroy the documents. He did not object or appeal the order after being personally served the order and he indicated that he would not reference them in his article. So why refuse to destroy them? Sad this is turning into me against the media when I support ethical journalism, but why is Kauffman going after a pro bono attorney helping people get their dogs back? Sound strange? It's because there is more to it in small town America where local government and media can conspire to defraud less fortunate out of damages they are owed for having their civil rights violated. I'm sorry you think I damaged my reputation by suing the local reporter for violating my constitutional rights as a private citizen protecting my privacy to be left alone and not have a reporter who wants to keep my medical records when there is no matter of public concern unlike all the landmark cases you cited. FYI, Wiggins is one of the sharpest justices on the Iowa Court, it would be a mistake to disparage him so easily with only a bottle cap full facts provided by the defendant. Kauffman is not entitled to First Amendment protection like other ethical journalists because my private records are not a matter of public concern. Consider this: Public concern protection serves the constitutional goal of "assur[ing] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Dun & Bradstreet, 472 U.S. at 759, 105 S. Ct. at 2945, 86 L. Ed. 2d at 602 (citation and internal quotation marks omitted). On the other hand, "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." Nickerson, 542 N.W.2d at 511. "The line is to be drawn when the publicity ceases to be the giving [**38] of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the community, with decent standards, would say he had no concern." Restatement § 652D, Comment h; see Virgil v. Time, Inc., 527 F.2d at 1129. Mr. Masnick, would you or your readers say you have concern into my medical history? I would hope not.

    Interesting side note, Mr. Kauffman intends to portray me as professionally incompetent to help the City against my clients in litigation. However, in the process he may have created the first prior restraint against the media should be upheld by the US Supreme Court.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Dec 2017 @ 2:11pm

      Re: Missing some basic facts. Might help the analysis

      Hello Jaysen.

      While this discussion may pile-on in many less helpful directions, I wish you a full and speedy recovery.

      reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 18 Dec 2017 @ 3:06pm

      Re: Missing some basic facts. Might help the analysis

      Lets unpack...

      "nor you approached me for my comment" - Please to cite the requirement for having to do so? I've seen this line before used but litigious lawyers thumping their chest trying to scare people & discredit the story.

      "Kauffman blatantly disregarded a court order that instructed any third party must immediately destroy the documents." - Please to explain how records made public are suddenly able to be vanished? The genie isn't going back into the bottle easily.

      "but why is Kauffman going after a pro bono attorney helping people get their dogs back?" - So is this a proven fact or just your response to feeling under attack for hiring lawyers not smart enough to file records under seal?

      "in the process he may have created the first prior restraint against the media should be upheld by the US Supreme Court." - Due to a failing by yourself & your agents the records were made public. They remained public. You were alerted they were public and now think the bell can be unrung. SCOTUS is not going to uphold this, prior restraint is prior restraint. While you might not like the idea of suing them later for revealing what you would like to see hidden, until that "crime" happens the law of the land is the court lacks the power to stop events that haven't happened.

      "Kauffman is not entitled to First Amendment protection like other ethical journalists because my private records are not a matter of public concern." - Funny I don't remember there being any sort of legal test about who has 1st Amendment rights, I'm so glad to hear this. It means the Sandy Hook parents can sue Alex Jones out of existence for using their private pain for profit.... oh wait.

      "where local government and media can conspire to defraud less fortunate out of damages they are owed for having their civil rights violated" - Oh honey get down off that crucifix someone needs the wood.

      Records were not sealed, who holds that blame?
      Records were made public, who holds that blame?
      While you wish to turn this into you are the poor victim of an evil plot, prior restraint is actually settled law.

      While you like to think this is a conspiracy, have you stepped outside of this to objectively look at it?
      Sometimes the patterns you are sure are there, only exist in your mind.

      But then I'm not a lawyer, I just understand the legal system better than many of them.

      reply to this | link to this | view in chronology ]

    • identicon
      dr evil, 18 Dec 2017 @ 3:08pm

      Re: Missing some basic facts. Might help the analysis

      your lawyers made you a public figure. go figure. take up your concerns with them.

      that is all.

      reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 23 Dec 2017 @ 6:14pm

      Re: Missing some basic facts. Might help the analysis

      You may be missing some basic law, which might help the analysis. For instance, Florida Star v. B.J.F., 491 U.S. 524 (21-Jun-1989).

      reply to this | link to this | view in chronology ]

  • identicon
    Jaysen McCleary, 18 Dec 2017 @ 1:55pm

    Missing some basic facts. Might help the analysis

    Mr. Masnick,
    My reply brief to the Register is due today but though I would take a quick break to share some basic facts missing from your article and of course Mr. Kauffman's attempt to litigate the case via his own article in the media. Notably, and with all due respect, Mr. Kauffman nor you approached me for my comment. Curiously, missing in both articles are the fact that the records at issue were court ordered expert reports that were subject to a contested protective order filed in February 2017. I am not Kobe Bryant nor Hulk Hogain (i.e. public figure) but I am private citizen like any American who has a constitutional right to privacy. Kauffman blatantly disregarded a court order that instructed any third party must immediately destroy the documents. He did not object or appeal the order after being personally served the order and he indicated that he would not reference them in his article. So why refuse to destroy them? Sad this is turning into me against the media when I support ethical journalism, but why is Kauffman going after a pro bono attorney helping people get their dogs back? Sound strange? It's because there is more to it in small town America where local government and media can conspire to defraud less fortunate out of damages they are owed for having their civil rights violated. I'm sorry you think I damaged my reputation by suing the local reporter for violating my constitutional rights as a private citizen protecting my privacy to be left alone and not have a reporter who wants to keep my medical records when there is no matter of public concern unlike all the landmark cases you cited. FYI, Wiggins is one of the sharpest justices on the Iowa Court, it would be a mistake to disparage him so easily with only a bottle cap full facts provided by the defendant. Kauffman is not entitled to First Amendment protection like other ethical journalists because my private records are not a matter of public concern. Consider this: Public concern protection serves the constitutional goal of "assur[ing] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Dun & Bradstreet, 472 U.S. at 759, 105 S. Ct. at 2945, 86 L. Ed. 2d at 602 (citation and internal quotation marks omitted). On the other hand, "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." Nickerson, 542 N.W.2d at 511. "The line is to be drawn when the publicity ceases to be the giving [**38] of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the community, with decent standards, would say he had no concern." Restatement § 652D, Comment h; see Virgil v. Time, Inc., 527 F.2d at 1129. Mr. Masnick, would you or your readers say you have concern into my medical history? I would hope not.

    Interesting side note, Mr. Kauffman intends to portray me as professionally incompetent to help the City against my clients in litigation. However, in the process he may have created the first prior restraint against the media should be upheld by the US Supreme Court.

    reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 23 Dec 2017 @ 6:21pm

      Re: Missing some basic facts. Might help the analysis

      he may have created the first prior restraint against the media should be upheld by the US Supreme Court

      I'm busy doubting it. The case I mentioned above, Florida Star v. B.J.F., 491 U.S. 524 (21-Jun-1989), has pretty much the same fact pattern. If you would assuage my doubts, and those of other readers, you ought to at least try to distinguish your case.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2017 @ 1:55pm

    Hey Mr. McCleary, ha, ha you jackass. Go into politics, and take your lawyers with you.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2017 @ 2:00pm

    Judge Wiggins, meet Barbara

    While I have no desire to further the embarrassment for Mr. McCleary, I fully support "The Monks" Register's right to stand on the 1st and shine a 500 terawatt torch into every dark place.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Dec 2017 @ 2:29pm

    Hmm, I guess it's gonna be me, posting the obligatory video link... https://youtu.be/pn-kxUEySy0?t=53

    reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 18 Dec 2017 @ 4:18pm

    David Wiggins' Own Private Iowa

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

    The Des Moines Register should grow a spine and publish.

    reply to this | link to this | view in chronology ]

  • identicon
    Dvelata, 18 Dec 2017 @ 6:50pm

    Small town?

    It may not be NYC, but Des Moines is hardly "small town America." Mr. McCleary,you live in Iowa. Surely you know that.

    reply to this | link to this | view in chronology ]

  • identicon
    Jaysen McCleary, 19 Dec 2017 @ 2:52pm

    Lol

    Geniuses every where.

    reply to this | link to this | view in chronology ]


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