The Indiana attorney general’s intervention in the South Bend Tribune’s recent prior restraint case was a victory for the First Amendment and state newspapers, said Steve Key, HSPA executive director and general counsel.
The Tribune won the right to publish and post audio recordings from a child abuse prevention hotline after Attorney General Greg Zoeller obtained a dismissal of a state agency’s appeal that had sought to prevent publication.
Zoeller’s appreciation of the First Amendment implications of prior restraint and his position not to make such a request of the courts is gratifying, Key said.
The Tribune’s handling of the issue worked in its favor as well after a court ordered it not to print a story the paper had already posted at southbendtribune.com, he said.
“I think the Tribune acted responsibly in removing the initial story from its website to allow the judicial process to proceed,” Key said. “The result is a declaration by Attorney General Zoeller that the state will not attempt to muzzle the press, and the Tribune is free to report on a story with statewide implications.”
Prior restraint of the news media publishing public records is inconsistent with the First Amendment, Zoeller said.
“As the lawyer for state government, the office of the Indiana attorney general now asserts the legal position of the state that in the interest of openness and transparency, the publication of public records should not be halted,” he said.
The Indiana Court of Appeals was scheduled to hear the Indiana Department of Child Services’ appeal of a St. Joseph County court’s order that had granted access to audio recordings from a child abuse prevention hotline to the Tribune.
The Department of Child Services contended the recordings were confidential.
On March 9, the Court of Appeals granted DCS’s motion and stayed the trial court’s order granting access to the audio files until the issue could be argued in court by DCS and the Tribune.
The Department of Child Services is authorized to represent itself with its own attorneys in cases at the trial level, primarily in matters involving the interests of individual children.
The office of the attorney general reserves the right to represent the state’s legal position in all legal cases, however, and entered its appearance in the Court of Appeals and assumed representation of the case from DCS attorneys.
The attorney general then filed a motion to dismiss DCS’s appeal, meaning the St. Joseph County court’s earlier order releasing the information stands, the Court of Appeals’ order was dissolved.
Zoeller said the longstanding authorization for DCS to provide its own legal representation will be reviewed, since the attorney general’s office must represent the interests of state government where statewide or constitutional issues are involved.
“An appropriate legal process exists where state agencies and the news media can resolve disputes over whether records are public, and we acknowledge the views of our DCS colleagues on this issue,” Zoeller said. “Once records have been provided, however, the state of Indiana cannot and should not attempt to prevent publication but must instead rely on journalistic ethics.”
