State officials threatened prosecution of journalist
Media law experts call action unconstitutional
MADISON – Gov. Tony Evers’ administration sought to block a journalist from publishing information about a child abuse case by threatening prosecution, a rare move — if not unprecedented — that could violate the U.S. Constitution.
Wisconsin Department of Children and Families officials in January warned an NBC News reporter that his planned publication of a story that included information related to a state child abuse investigation violated 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 NBC News reporter Mike Hixenbaugh on Jan. 24. “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 are suspected to be victims of abuse, and carries criminal penalties if documents or details contained in child abuse investigation files are released.
“The state law in question was designed to allow for an unbiased and fair (child protective services) and to protect alleged victims and families,” said Tom McCarthy, spokesman for the department, who also said officials there don’t plan to pursue criminal charges against the reporter.
“We take those confidentiality requirements as seriously as the authors of the law did in their crafting it,” he said.
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.
“If somebody unlawfully discloses information to the journalist, but the journalist did nothing wrong, they have a First Amendment right to publish that information,” Sarah Matthews, a staff attorney with the Reporters Committee for Freedom of the Press, said in an interview.
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.”
“When the agency turns over records to parties under this statute, we are very forward with these warnings as a normal course of action,” 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.”
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.
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.”
Matthews said the warning also could also have a chilling effect on journalists who receive information that is in the public interest.
“We don’t want to stifle vigorous reporting on an area of public interest,” Matthews said. “Ultimately it means the public could lose out on having important information.”
Matthews cited two more Supreme Court cases from 1979 and 1989 that said the First Amendment protects journalists from being held liable for reporting information that was illegally released to them.
McCarthy said the department doesn’t consider the Supreme Court cases cited by NBC News as settling the issue, however, because none involve child protection cases and laws ensuring privacy for children who have been abused.
“We do not make the final call on the constitutionality of these matters,” he said. “These are admittedly tricky laws to navigate. They are put in place to help keep alleged victims safe and to allow professionals to make the right decisions for the families of Wisconsin.”
Bill Lueders, president of the Wisconsin Freedom of Information Council, said Hixenbaugh’s reporting raises legitimate questions about whether such systems are working properly for the public.
“Even if the materials were improperly released, it does not follow that using them in a story — especially a story that raises serious questions about the conduct of child-abuse professionals — is a punishable offense,” he said. “The Pentagon Papers were improperly released, too.”
Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.