By Steve Key
Hoosier State Press Association
The Hoosier State Press Association Foundation approved two amicus – or friend of the court – briefs, one involving public access to causes of death and the other involving freedom of speech.
The Evansville Courier & Press asked for HSPA Foundation support in its appeal of a trial court decision that would close public access to county health department records that contain a cause of death.
Senior Judge Carl Heldt’s ruling melds three different statutes that require the creation of a death record into two records, creating a conflict as to public access that he resolved by shutting the public out.
His decision also found that the Vanderburgh County health department did not keep copies of the records sought by the newspaper and county resident Rita Ward, who checks the records for cancer deaths possibly linked to smoking.
The ruling ignores the fact that the law requires the county health department to keep copies of the record.
The decision runs contrary to a previous state attorney general’s opinion and a 1975 Indiana Court of Appeals decision on the same question.
In both situations, county health departments that kept the record that included the cause of death were required to make it available for inspection and copying.
After years of making the information available to the newspaper, which published the vital statistics, the health department had a change of heart after some relatives of some of the deceased complained about the information being in the newspaper.
Ironically, the 1975 court decision also involved the Vanderburgh health department and an Evansville newspaper.
The second Amicus brief will ask the Indiana Supreme Court to accept a case out of Dearborn County where Daniel Brewington was convicted of intimidation for expressing his caustic opinions about a trial judge’s ruling in a divorce decree that went against Brewington.
This case was brought to HSPA Foundation’s notice by Indiana University School of Law professor Steve Andrews and IU – Indianapolis journalism dean emeritus James Brown.
This brief will be done pro bono by UCLA School of Law professor Eugene Volokh.
He argues that the Indiana Court of Appeals decision criminalizes constitutionally protected speech that could impact the ability of journalists, public advocates, politicians and ordinary citizens to criticize the actions of judges or other public officials.
Volokh’s brief will rely heavily on two U.S. Supreme Court decisions – one involving the actions of a civil rights organization protesting a real estate agent’s actions that it believed encouraged white flight and another case where the NAACP pressured black community members who didn’t support a boycott of white-owned businesses, by reading their names in church.
Volokh points out the U.S. Supreme Court’s position that speech doesn’t lose its protected character simply because it may embarrass others or coerce them into action.
Steve Key is executive director and general counsel for HSPA.
