Iowa justice lifts prior restraint order against newspaper
By RYAN J. FOLEY
Dec. 19, 2017
IOWA CITY, Iowa (AP) — An Iowa Supreme Court justice lifted an unusual order Tuesday that had blocked a newspaper from reporting on records related to an attorney's personal injury lawsuit against the city of Des Moines.
Critics had denounced the Dec. 11 order by Justice David Wiggins as impermissible prior restraint in violation of the First Amendment to the U.S. Constitution and decades of state and federal case law.
Wiggins had ordered the Des Moines Register and investigative reporter Clark Kauffman to not "disclose or share" information from records relating to attorney Jaysen McCleary, who argued they contained details of his medical and financial history and their publication would cause irreparable damage to his privacy. The newspaper and press freedom advocates had protested the order in recent days and called on the court to rescind it.
The records in question had been made public in July by one of McCleary's attorneys in a lawsuit that alleged McCleary suffered permanent injuries when he was struck by a garbage can launched from a city truck. They consisted of reports from experts who had evaluated him and were available to the public for months.
Wiggins removed the stay Tuesday in an order that explained the court was declining to consider McCleary's request for a temporary injunction blocking publication of the information. Wiggins defended the stay as having been temporarily necessary to preserve the status quo while the court decided how to proceed.
"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," he wrote.
Wiggins declined to address the newspaper's motion to vacate the stay, saying that was now moot.
The Register's lawyer Mike Giudicessi had called the stay "an undesirable and unsustainable outlier in the law and policy of this state and this nation." Giudicessi argued that McCleary was known for clashing with judges during lawsuits, saying his "conduct as a lawyer and the medical reasons he has relied upon to defend it are matters of public record."
Des Moines Register Executive Editor Carol Hunter said she was gratified by Tuesday's order, while declining to discuss whether the newspaper planned to publish a story about McCleary.
McCleary, who is known for representing the owners of dogs seized by Des Moines officials, said he wasn't surprised by Tuesday's development.
"I anticipated Justice Wiggins to fold under the pressure from the media," he wrote in an email.
McCleary moved to seal the records in November after learning the Register had them, saying they were meant to be marked as confidential under a protective order in the case. A judge sealed them going forward but ruled that the Register and Kauffman weren't bound by the protective order and therefore couldn't face sanctions for releasing the information.
McCleary filed a separate lawsuit against the newspaper and Kauffman, seeking a temporary injunction to prevent publication.
District Court Judge Eliza Ovrom denied McCleary's request for a temporary injunction Dec. 7, saying such an order would violate the First Amendment and a similar provision in the Iowa Constitution. Wiggins then entered the temporary stay after McCleary filed an emergency appeal, saying the newspaper and Kauffman "shall not disclose or share" the information pending further notice.
McCleary had asked the court in a filing Monday to expand the stay to block publication of information related to an attorney disciplinary case, accusing the newspaper of planning a "hit piece."
The U.S. Supreme Court has ruled that, except possibly in extraordinary cases, any government attempts to restrain the free press are unconstitutional. In the Pentagon Papers case in 1971, the court rejected the government's attempts to stop newspapers from publishing a secret history of the Vietnam War.
The Iowa Supreme Court in 1976 held that an order barring the press from publishing names of jurors in a criminal trial was unconstitutional, noting it was "an open question whether a court may ever enjoin the press, in advance of publication."