Judge lifts some restrictions on publishing ban
On April 15, 2019, Patricia Martin, the Cook County judge who ordered ProPublica Illinois not to publish details of a juvenile court case, lifted some of the restrictions and admitted that her previous decision had been “overbroad.” Martin upheld her decision to prevent the publication from revealing the images or names of the minors. However, she ruled that ProPublica Illinois may report on any other aspects of the case, such as the Illinois Department of Children and Family Services, the court and the Illinois child welfare system.
Martin said the decision to prevent publication of names and images of minors was being upheld for the protection of the children even while recognizing that ProPublica has a constitutional right to publish the material. The order states that ProPublica has a, “right to act as a conduit of information and to keep the public informed as to the workings of the court and the Illinois child welfare system.” However, the order further states that by publishing the names and images of the children, ProPublica could be held responsible for “inflicting a gratuitous harm on these children.”
In a friend-of-the-court letter dated April 3, 40 news organizations led by the Reporters Committee for Freedom of the Press had argued that the order was unconstitutional and noted that the Supreme Court has never upheld a prior restraint. At the hearing for the order on April 5, Gabriel Fuentes, the attorney representing ProPublica, said, “The harm we’re talking about is the state acting as an editor for ProPublica — the invasion of the power of the state into a newsroom.” At the time, Martin said she would rule within five business days.
After the restrictions were loosened, ProPublica president Richard Tofel said in an article, “While there are significant aspects of Judge Martin’s order and opinion with which we disagree, we are gratified that the order and opinion recognize our constitutional right to report on any aspect of these cases beyond the children’s names. That reporting continues.” According to ProPublica, it never planned on publishing the demographic details of the minors, but at the same time it maintains objections to the court interfering in newsroom decision-making, especially since it learned the facts “independently and outside court hearings.”
On March 14, 2019, a Cook County Juvenile Court judge ordered ProPublica Illinois and other news organizations not to publish certain details about an ongoing child welfare case in the Chicago-based juvenile court.
In the course of reporting on child welfare issues, a ProPublica Illinois reporter had learned about the case. On March 7, after the reporter tried to attend a hearing in the case, the hearing was closed to the public and press.
Bruce Boyer — a Loyola University law professor whose legal clinic represents the foster children in the case — then requested that the court issue an order prohibiting news outlets from publishing details about the case. On March 14, Patricia Martin, the presiding judge of the juvenile court’s child protection division, granted the request and issued a prior restraint order.
Documents related to the juvenile court case, including Martin’s prior restraint order, have not been made public. But on March 19, ProPublica Illinois reported on the existence of the prior restraint order, describing it as an order “forbidding news organizations from publishing the names, addresses or any demographic information that would identify the children or the foster parents in a case ProPublica Illinois has been investigating.”
ProPublica Illinois was not initially a party to the case, but it asked the court to intervene in order to oppose the prior restraint order. On March 19, the court granted ProPublica Illinois’ motion to intervene, and on March 22, the news organization filed its opposition to the prior restraint order. A court hearing on the prior restraint order is now scheduled for April 5.
Prior restraint orders are relatively unusual and should not be confused with sealing orders, which are far more commonly employed by courts. A sealing order is used when a court needs to allow attorneys and parties to a case access to sensitive information; the sealing order just prohibits the attorneys and parties from turning around and disclosing that information to the public. A prior restraint order is much more serious, since it prohibits a third party with no connection to the case (often a news organization) from publishing information that they learned on their own.
ProPublica Illinois is opposing Martin’s prior restraint order because it sees it as an unconstitutional attempt by the government to interfere in its editorial process.
“The Supreme Court has made it very clear that courts are not supposed to be editors,” ProPublica President Richard Tofel told the U.S. Press Freedom Tracker. “One of the Constitution’s guarantees is that editors should be editors.”
Tofel is correct that legal precedent is on ProPublica Illinois’ side. In 1971, the Supreme Court famously ruled that the government’s attempts to prevent The New York Times and the Washington Post from publishing a classified history of the Vietnam War violated the news organizations’ First Amendment rights. This “Pentagon Papers” case established the precedent that, except in extreme circumstances, prior restraints on the press are unconstitutional.