State agency sends cease and desist letter to NBC journalists

The Wisconsin Department of Children and Families sent a cease and desist letter to an NBC reporter and producer on Jan. 24, 2020, in an effort to block the outlet from publishing information the agency believed was confidential.

NBC investigative reporter Mike Hixenbaugh told the U.S. Press Freedom Tracker that he received the letter a few days after he had emailed the child welfare agency requesting an interview. The letter, shared with the Tracker, advised Hixenbaugh and NBC Nightly News producer Janelle Richards that the disclosure of a confidential file is a criminal offense punishable by up to 6 months imprisonment and up to a $1,000 fine, under state law.

“Please cease and desist immediately from any further illegal use and disclosure of the documents in the child abuse investigation file illegally disclosed to you, and any information obtained in that file,” wrote the agency’s chief legal counsel Therese Durkin. “Failure to comply will lead to further legal action.”

Hixenbaugh told the Tracker that in all of his reporting on child protective services across the country, never before had a state agency reached out to block his reporting or threaten him.

“It was unusual and surprising to receive a letter that suggested that I could be imprisoned for doing journalism,” he said.

NBC attorney Alexander Ziccardi emailed a response to the letter, noting that the agency had falsely assumed the information used in the outlet’s reporting could only have been obtained from a confidential report.

“[V]irtually all of that information is available from alternative sources that are entirely independent of the CPS investigation file,” he wrote. Ziccardi added that even if NBC did source information from a CPS report it would “unquestionably” be protected under the First Amendment.

Sarah Matthews, a staff attorney with the Reporters Committee for Freedom of the Press, confirmed to the Milwaukee Journal Sentinel that media outlets cannot be held liable when publishing information that a third-party illegally obtained or disclosed. Matthews is also on the Tracker’s advisory board.

Hixenbaugh told the Tracker that his reporting ultimately cited only court records and other legally obtained files, such as hospital records and criminal complaints, making no references to a CPS investigative file.

Thomas McCarthy, communications director for the agency, told the Tracker that the letter was meant not as a threat but as a warning, as the department cannot itself pursue criminal charges.

“We are concerned with how he received the information, but understand and respect his role as a journalist to report,” McCarthy said.

Wisconsin Gov. Tony Evers spoke in support of the department’s actions after the letter was publicized by media and First Amendment organizations.

“I believe it’s appropriate that DCF protects the kid in this case. Somebody’s got to stick up for that young kid who was deemed to be abused,” Evers said, according to the Journal Sentinel. “Somebody’s got to stand up for the kind, and we did and I did support that.”

Hixenbaugh emphasized to the Tracker that the privacy of the allegedly abused child was never threatened, as journalistic ethics prevent such disclosures.

“Although through many different means we are aware of her name and identifying information, we did not name her and would never have named her in this situation,” Hixenbaugh said.