A Cook County judge Monday lifted part of her previous order prohibiting ProPublica Illinois from publishing some details of a child welfare case it has been investigating, conceding that the restriction was “overbroad.”
At the same time, Patricia Martin, the presiding judge of the Cook County Juvenile Court’s child protection division, continued to block the news organization from publishing the names or pictures of the minors involved in the case. While acknowledging the constitutional right of ProPublica Illinois to publish, the judge ruled that her restriction on disclosing the identities is necessary to protect the children.
ProPublica Illinois 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,” Martin wrote in her modified order. “Nevertheless, if ProPublica publishes the children’s names or likenesses, it would be the actions of ProPublica, and ProPublica alone that would be responsible for inflicting a gratuitous harm on these children.”
Aside from not revealing the identities of the minors, ProPublica “is free to report on any aspect of these cases, DCFS [the Illinois Department of Children and Family Services], the court, or the Illinois child welfare system as a whole,” Martin wrote.
Richard Tofel, president of ProPublica, the parent organization of ProPublica Illinois, said in a statement: “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.”
ProPublica Illinois had no plans to publish the names of the children in the child welfare case. But the First Amendment protects the right of the media to make decisions about what to publish without “the invasion of the power of the state into a newsroom,” Gabriel Fuentes, an attorney with Jenner & Block representing ProPublica Illinois, argued in a April 5 hearing on the prior restraint order.
Martin issued that order last month in response to a request from Bruce Boyer, a professor at Loyola University Chicago’s law school and director of its Civitas ChildLaw Clinic, who represents the children involved in the case. Boyer had argued that their privacy should be protected. DCFS attorneys had also argued that ProPublica Illinois should not be allowed to identify the children.
Martin barred ProPublica Illinois and other news organizations from publishing “the names and/or any other information that would permit the ready identification” of the children or the foster parents involved in a case ProPublica Illinois is investigating. That included “specific address or other demographic information.”
Martin’s order was a rare instance of a judge restricting a news organization before the publication of a story, and it drew criticism from other journalists and media rights organizations.
ProPublica Illinois told Martin that while it had no plans to identify the children in the case, the judge’s order was too broad and shouldn’t restrain the organization before publication. ProPublica Illinois reporters learned the identities of the children and foster parents independently and outside court hearings.
Boyer said Monday that he is “very respectful” of the media’s First Amendment rights. But as the guardian ad litem for the children in the case, “I also have an obligation to do everything in my power to safeguard their best interests, and this includes defending the fundamental privacy rights of blameless children that the law says must be weighed in the balance.”
A spokesman for DCFS, which had opposed ProPublica Illinois’ effort to lift the judge’s order, declined to comment Monday.
Forty news organizations, led by the Reporters Committee for Freedom of the Press, a group that advocates for press rights, had submitted a friend of the court letter arguing that the judge had violated ProPublica Illinois’ First Amendment rights.
The judge’s order, while an effort to protect the children’s privacy, was “an unconstitutional prior restraint” and a “direct attack on the marketplace of ideas,” the letter said. The letter was signed by news organizations that included Chicago’s daily newspapers, NPR, The New York Times and The Washington Post.