There has been little fall-out or commentary about a March 12, 2012 Order by the Indiana Court of Appeals temporarily halting the South Bend Tribune from publishing a news story about an instance of suspected child abuse and the response of the Indiana Department of Child Services to those reports. A panel of three well-respected appellate judges granted the Order unanimously, and although it was brief in duration (barring publication on a Friday until argument could be heard the following Monday), the South Bend Tribune wisely pulled the story from publication to comply with the Court’s Order. The controversy was resolved only when Indiana Attorney General Greg Zoeller bravely stepped in and put a halt to the Department’s efforts to squash the paper from reporting on information it lawfully obtained from the Department.
Why should journalists, lawyers and free-speech advocates still be concerned about government censorship, a.k.a. “prior restraints?” Since 1971 when the United States Supreme Court decided the so-called “Pentagon Papers” case, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140 (1971), there has been no doubt that injunctions against publication of the news are rarely, if ever, appropriate. The Pentagon Papers case famously involved the New York Times’ publication of material from classified Pentagon documents about the Vietnam War. By a 6-3 majority, the U.S. Supreme Court ruled that even national security interests were not sufficient to uphold an injunction stopping the publication of the news.
There is perhaps no greater threat to freedom than government regulation of the content of the news. Democracy simply cannot function effectively without well-informed public oversight and participation. One of the first things tyrants and dictators do when they seize power is take control of the news media. The Founders of our Republic wisely recognized the fundamental role the media plays in the democratic process.
So, again, why should anyone be concerned about a short, court-ordered delay in the publication of a South Bend Tribune news story about the government’s reaction to reports of child abuse? It is the principle at stake that matters the most. Even a short delay in publication disrupts the exercise of independent editorial judgment of publishers and editors. It is not any accident the news is called the “news,” as it can quickly become stale, and the public needs timely information for democracy to function. In his concurring opinion in the Pentagon Papers case, Justice Douglas observed:
“The stays is these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment.”
403 U.S. at 724, 91 S. Ct. at 2146.
I certainly hope the Court of Appeals’ Order against the South Bend Tribune was an aberration and a sad episode that we won’t see again. Please tell us what you think.