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Wisconsin DOJ asks court for prior restraint following then-student journalist’s public records request

In March 2017, Alex Nemec was a student journalist writing for the Advance-Titan, a student newspaper at the University of Wisconsin, Oshkosh. He reported that a professor had suddenly been removed from class and was under investigation. Now, after the university accidentally released records to Nemec in response to a public records request, the university — represented by the Wisconsin Department of Justice — is asking a court to order Nemec not to disclose information contained in those records.

After Nemec first reported on the investigation into professor Will Hagen, he issued a request under Wisconsin’s public records law seeking records of past complaints against Hagen. After the university determined that certain records should be released, Hagen — who has now resumed teaching at the university — sued the university, asking a court to block release of those records. In June, a Wisconsin appellate court ruled against Hagen, finding that “the public has a strong interest in monitoring the disciplinary operations of a public institution.”  

The university ultimately released records to Nemec in August, but accidentally released the original, unredacted versions. It’s not clear what information the university intended to redact; the university had initially proposed redactions, which were not challenged on appeal, but Hagen sought to block the release of all of the records, not just the redacted versions. The proposed redactions — which are probably the material accidentally disclosed to Nemec — consisted of “the names of witnesses and the complainant, medical information, and unsubstantiated rumors about Hagen.” Although Hagen’s counsel received a copy of the records, the error went unnoticed until late September.

On Oct. 4, the Wisconsin DOJ filed an “Emergency Motion for a Temporary Restraining Order and Permanent Injunction” against Nemec (posted online by Jonathan Anderson). In the motion, the DOJ asked a Wisconsin court to bar Nemec “from publicizing, printing, or sharing, in any manner, whether verbally, in writing, or otherwise, the contents of” the redacted portions, “further ordering Nemec to delete and destroy any and all copies of the unredacted records,” and directing him to “obtain” copies “he may have sent to others.” (This presumably refers to the student newspaper; although Nemec graduated in January, he planned to share the records with the Advance-Titan.)

It’s surprising to see a state’s Department of Justice ask a court for an order that would subject a journalist to potential criminal penalties for discussing what is contained in government records. Occasionally litigants, prosecutors, or judges ignorant of the finer points of basic First Amendment law — or willfully defiant of it — will seek to order journalists not to disclose information already disclosed to them. For example, a Florida school board asked a judge to hold a newspaper in contempt after the school board erred in redacting records it was ordered to release concerning a school shooter. (The school board later backed down.) But a state’s Department of Justice, acting on behalf of a major university, should know better. 

That’s because the First Amendment abhors a prior restraint. In fact, the Supreme Court of the United States has observed that the “chief purpose” of the First Amendment was to prevent prior restraints.

It’s also well-established both that government officials sometimes make mistakes, and that limiting journalists’ First Amendment rights is not a permissible way to rectify those mistakes. For example, in ruling that Florida could not sanction a newspaper for publishing the name of a rape victim — learned when police accidentally included it in an incident report — the Supreme Court said the government, not the newspaper, bore the burden of keeping the information private. It wrote, “Where, as here, the government has failed to police itself in disseminating information, it is clear . . . that” penalizing the press “can hardly be said to be a narrowly tailored means of” accomplishing the government’s goals.

The right to publish truthful information remains even where the journalist knows that their source obtained the information unlawfully. That Nemec was aware that the release of the information violated a court order is irrelevant, so long as he did not induce the unlawful conduct. And there’s no indication that Nemec solicited the redacted information at all. To the contrary, he did not challenge the intended redactions on appeal.

If adopted, the order sought by the Wisconsin DOJ would have considerable ramifications. Not only would it bar Nemec from sharing the documents, but he would also be prohibited from discussing the information contained within them — even if he later acquired the same information from some other source. And the potential consequences would be considerable: Violations of a court order may be treated as a contempt of court.

The next hearing on the matter is set for Nov. 21. That’s plenty of time for the Wisconsin DOJ and the University of Wisconsin to withdraw from their unacceptable attempt to silence a former student.

Thanks to an assist from the Student Press Law Center, Nemec is represented by pro bono counsel, Christa Westerberg.

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