May 1, 2012

By Kristen Rasmussen

The last time Tim Harmon said he heard about a prior restraint on publication was in the 1970s in what famously became known as the Pentagon Papers case — until, that is, two months ago.

That’s when editors and others in the South Bend Tribune newsroom learned that an Indiana appeals court had granted a request from a state agency to prevent publication of information from four audio recordings and accompanying transcripts from the agency’s child abuse hotline. The information contained in the records was the basis of a significant report in the paper’s ongoing investigative series about the child-protection system in Indiana. The documents revealed that six months before a 10-year-old boy was found tortured and killed in his home late last year, an anonymous caller tried to get the agency to investigate the mistreatment of children at the boy’s home, pleading at times during the 20-minute phone conversation with the child welfare official to intervene immediately, before a child dies.

Faced with the threat of contempt of court, executive editor Harmon and other newsroom leaders opted to follow the advice of their attorney and remove the story from the paper’s website, only about an hour after it had been posted that Friday afternoon, and halt plans to publish in print that weekend.

As it turns out, child services officials, who maintained that publicly disclosing the identity of anonymous hotline callers would chill similar reports of child abuse, had little to worry about. In accordance with its consistent assertion that the paper had no interest in identifying the caller, staff members, as soon as they received the records, began extensive efforts to disguise the woman’s identity.

“We spent those few days [between receiving the records and the Friday of online publication] getting the story ready. We made sure to take out all identifying information. We changed [the caller’s] voice so significantly that you couldn’t even tell the gender,” Harmon said in an interview.

Shortly before a hearing before the appeals court in Indianapolis the next Monday, state Attorney General Greg Zoeller intervened, asking the court to dismiss the matter. He said that a system exists to resolve disputes between government agencies and the news media over access to public records but that “prior restraint of the news media publishing records is inconsistent with the First Amendment.”

For journalists and others who rely on this constitutional right to gather and disseminate information about matters of public interest and concern free from government interference, the case is certainly significant — and not only as an alarming example of the dangerous threats to press freedom in those rare instances where “some misguided government agency finds a misguided judge who’s willing to order a publication to suppress a story,” as a March 13 Tribune editorial described the events.

The scenario also serves as a dramatic example of the tension between the public’s interest in providing oversight of an institution that adjudicates children’s matters and its interest in rehabilitating and protecting its most vulnerable from lasting stigma and emotional trauma. To be sure, the secrecy that traditionally has been the hallmark of juvenile courts nationwide often impedes the ability to gather and disseminate information when those for whom such anonymity and confidentiality are intended to protect are the ones making the news.