Polk County, Iowa courthouse

Iowa judge orders Des Moines Register not to publish article about attorney

December 11, 2017

On December 11, 2017, Iowa Supreme Court judge David Wiggins issued an order prohibiting the Des Moines Register and reporter Clark Kauffman from publishing information obtained legally through court records. On December 19, Wiggins lifted the stay.

The temporary stay issued by Justice David Wiggins blocked the newspaper from publishing information about Des Moines attorney Jaysen McCleary obtained from private medical records.

“A temporary stay is imposed until the supreme court rules on McCleary’s combined applications,” Wiggins wrote in the order. “Pending further order from this court, the defendants shall not disclose or share (other than with legal counsel) any information in the defendants’ possession that was obtained exclusively from the reports.”

The records in question were first made public in July 2017, when they were filed by McCleary’s attorney as part of a personal injury suit that he brought against the city of Des Moines (Jaysen McCleary v. City of Des Moines). The records probably should have been filed under seal, but they were not, which, which meant that any member of the public could (theoretically) access them.

McCleary told the Freedom of the Press Foundation that the records containing his private information were mistakenly attached to expert reports that were filed publicly by his attorney. 

In November, Des Moines Register reporter Clark Kauffman obtained a copy of the private records and asked McCleary for comment about them. Soon after, McCleary settled with the city of Des Moines and asked for McCleary v. City of Des Moines to be dismissed.

On November 16, McCleary filed a motion in McCleary v. City of Des Moines, asking the District Court to seal the expert reports containing his private records. District Court judge Jeffrey Farrell granted the motion and issued a protective order. The protective order prohibits the parties in McCleary v. City of Des Moines — i.e., McCleary, the city of Des Moines, and their attorneys — from disseminating the sealed records to the public. The order also requires that any “third parties” in possession of the sealed records destroy them. 

On November 27, McCleary sued Kauffman and the Register in District Court (McCleary v. Kauffman), claiming that Kauffman conspired with the city of Des Moines to defame him and damage his reputation.

McCleary then filed a motion in McCleary v. Kauffman asking for a temporary injunction. McCleary asked the court to order the Register not to publish any articles including information gleaned from his medical records. He also argued that the paper had violated the protective order issued in McCleary v. City of Des Moines, which instructed “third parties” in possession of the records to destroy them.

On December 7, District Court judge Eliza Ovrom denied the motion for a temporary injunction, ruling that the Register was not subject to the protective order.

“Mr. McCleary alleges that Clark Kauffman obtained copies of said reports during the period they were part of the public court file,” Ovrom wrote in her order. “Even if true, this court cannot enjoin publication of the reports, as such an injunction would violate the First Amendment and Article I, Section 7. Moreover, the defendants in this case were not parties to [McCleary v. City of Des Moines], and are not bound by orders in that case.”

On December 8, McCleary filed an application to show cause in McCleary v. City of Des Moines, essentially asking District Court judge Farrell to hold the Register in contempt of court for violating the protective order.

Farrell denied the motion on the grounds that the Register was not subject to the protective order.

“The application must be denied for the same reasons noted by Judge Ovrom,” Farrell wrote. “Neither Mr. Kauffman nor the Register are parties to this case, and thus, neither are subject to the protective order. As a result, the application is denied.”

McCleary appealed both District Court decisions to the Iowa Supreme Court.

On December 11, Wiggins ordered that the Register not publish the records until court had ruled on McCleary’s appeal. 

Wiggins may have seen the order as a typical procedural ruling, intended to ensure that the Iowa Supreme Court had a chance to consider the merits of McCleary’s appeal before the Register published the records.

But whatever his intention, Wiggins’ order had serious First Amendment implications. The Supreme Court of the United States has repeatedly ruled that the First Amendment prohibits the government from preventing a newspaper from publishing information, barring extraordinary circumstances in which national security is at stake.

On December 19, after the Register had filed a response to McCleary’s appeal and McCleary had filed a reply to the response, Wiggins lifted the stay and issued an order denying McCleary’s appeal. 

Wiggins defended his decision to issue the temporary stay.

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 in the order.

McCleary then asked a three-judge panel to review Wiggins’ decision, but the panel affirmed Wiggins’ ruling and denied McCleary’s appeal.

McCleary told the Freedom of the Press Foundation that he now plans to appeal his case to the U.S. Supreme Court.

On December 20, the Des Moines Register published an article about McCleary that included information obtained from his medical records.

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