[UPDATE: Marcia Oddi (Indiana Law Blog) reports that the Indiana Attorney General has withdrawn the state’s attempt to block the newspaper from running the article, so the order that it be removed is presumably being vacated by the court, and the article will presumably be reposted again shortly. I don’t know if the newspaper agreed to any redactions from its article in order to get the state to do this. Thanks to Jordan Stover and Ashby Beal for the pointer.]
[FURTHER UPDATE: The South Bend Tribune reports: “The Indiana Department of Child Services’ attempt to prevent the Tribune from publishing a story about the department’s child abuse hotline was dismissed by the Indiana Court of Appeals on Monday after the state Attorney General intervened…. ‘In the interest of openness and transparency, the publication of public records should not be halted,’ Attorney General Greg Zoeller said in a statement. After the dismissal, the Tribune published the story on its website. It also appears in today’s Tribune.”]
From the South Bend Tribune:
The Indiana Court of Appeals granted a request Friday that prevents The Tribune from publishing records the newspaper obtained from the Department of Child Services.
The appeals court’s ruling came three days after a local judge ordered the release of phone records from DCS’s child abuse hotline related to 10-year-old Tramelle Sturgis and his family …. The records include four audio recordings of hotline calls and accompanying transcripts related to Tramelle, who was found tortured and killed in his home Nov. 4.
But an hour after The Tribune published a story on its website Friday that described one of the phone calls and raised related issues, the appeals court granted the emergency stay DCS requested to prevent The Tribune from publishing the material.
On advice from its attorney, The Tribune removed the story from its website and is forced to refrain from publishing information about the content of the calls. If it does otherwise, the newspaper could be held in contempt of court….
At [the earlier] hearing before St. Joseph Probate Court Judge Peter Nemeth [which led to the release of the records], DCS attorneys … stated that releasing the audio of the calls and the transcripts to the newspaper would jeopardize confidentiality promised to those who report child abuse and have a “chilling effect.” …
This strikes me as an unconstitutional prior restraint, even if it is supposed to be just a temporary stay pending further review. The Pentagon Papers case (1971) held that even a temporary injunction can’t be justified in order to prevent publication of documents, even when the documents were improperly leaked and even when they assertedly threaten to harm national security; this suggests that this injunction is unconstitutional as well, even if publication of such documents could in the long run deter some people from reporting child abuse. And Florida Star v. B.J.F. (1989) held unconstitutional a statute that banned publishing the names of rape victims, despite the argument that the statute helped encourage rape victims to call the police; the newspaper was held to have a First Amendment right to publish information that had been released by a government official, even if the official acted contrary to government policy in releasing that information. This similarly suggests that the South Bend Tribune has a right to publish the information that had been released to it pursuant to a court order, even if the court order mandating the release is later found to have been issued in error.
I therefore expect the injunction to be reversed, and, I hope, very soon. If anyone has more information on the case, such as the text of the court of appeals order (if it’s anything other than a one-line and unexplained “stay granted”), please do pass it along. Thanks to Ken Fowler for the pointer.