As a student journalist, Alex Nemec heard a rumor that a business professor was teaching a class when some university officials entered the room, removed the professor and dismissed the class. The next time the class met, he heard, the students had a new teacher and nobody knew what happened.

He wanted the answer to a very simple question: Did this actually happen and, if so, why?

His attempt to find out the answer has taken almost two years, during which time he has written several stories on the topic, graduated from college and endured a court battle over tangential records. He remains no closer to finding out the answer to his question and his legal tussles continue to take strange twists.

The latest twist involves the Department of Justice filing an emergency petition with the court to bar Nemec from reporting on the documents he received as part of an appeals court ruling.

The reason? The university official responsible for sending him a set of redacted documents screwed up:

The case dates to early 2017 when Nemec, then a reporter for UW-Oshkosh’s student newspaper, The Advance-Titan, filed an open records request with the university seeking Hagen’s disciplinary records and emails.

Hagen sued the university and the Board of Regents for the University of Wisconsin System to block their release. The judge ordered the records released but with some material redacted. And that decision was upheld on appeal.

When the records custodian finally released the documents in August, she inadvertently sent the unredacted copies to Nemec, according to Schimel’s notice to the court.

Schimel is asking that the court force Nemec to destroy the records and bar him from sharing or publishing any information that had been mistakenly released. In a separate filing, Hagen is asking the court to require Nemec to “identify all persons and entities to whom he disclosed the confidential information.”

Simply to boil this down, the person who sent the records messed up and sent the wrong records to Nemec in August. About 45 days later, she realized that she messed up and first attempted to get Nemec to “do the right thing” by promising not to publish anything in those records. When he declined to do so, as he had legally obtained the records, the DOJ filed the emergency motion, which won’t be heard until November.

Here are three key things that should really concern anyone interested in the First Amendment and governmental overreach:

 

Nemec didn’t violate the law, but he is being treated like a criminal

The most important thing to keep in mind here is this: This situation is not Nemec’s fault. I’ve had to say that so many times in regard to this situation that I feel like I’m in “Good Will Hunting.”

Nemec didn’t slip the records keeper a $20 to get the unredacted records. He didn’t break into an office and steal them. He didn’t do whatever the hell this is from “Passenger 57.” All he did was take the records that were sent legally to him by the record keeper as per the court ruling. The courts have held that the First Amendment protects the publication of information that is truthful and lawfully obtained, even when the information comes from the inadvertent release of the documents.

A recent case occurred in Florida, where the Sun-Sentinel requested educational documents pertaining to the Parkland school shooter, Nikolas Cruz. When the school released the records, the redactions didn’t “stick” so the paper could see everything on those pages. The content that the district intended to redact but didn’t showed multiple failings on the part of the school district pertaining to Cruz and directly contradicted public statements district officials made about Cruz.

The judge in the case, Elizabeth Scherer, blasted the paper for what it published and threatened to dictate what the paper could and could not publish. As we noted here at the time, the paper did not violate the law, but the courts would be violating the First Amendment if they continued down the “we’ll tell you what to publish” path.

As Nemec’s lawyer noted in her filing on this case:

Plaintiff and Defendants in this case focus their injunction motions on Intervenor’s conduct, but these requests are either moot (because they request Nemec to delete the records when they have already been deleted), are unconstitutional as a prior restraint on speech (as in the requests to enjoin Nemec from publicly disseminating the redacted information), or are themselves an unprecedented intrusion on news reporting and private lives (as in Hagen’s request that Nemec name all the people with whom he has shared the information).

There is no question that Nemec legally obtained the information, and now that he has, “[t]he choice of material to go into a newspaper . . . and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.” Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 214, 258 (1971).

In other words, it’s up to Nemec to decide what he does with this information. His ethical standards and editorial discretion will guide him, not an attempt at prior restraint.

 

The extreme level of intended suppression borders on insanity

The state is trying to put the ketchup back in the bottle, by requiring Nemec to get rid of all the files and only rely on what he would learn in the new “cleaned” set of documents if he were to publish a story.

That means the state is asking him to suppress his knowledge of the things he already read in those earlier documents and not share that information, whether or not he finds it to be newsworthy, with the public. Unless the DOJ possesses a “Men In Black” memory wand, this isn’t going to really work.

(Hold still, Alex. This isn’t going to hurt at all…)

While the state’s position borders on the absurd, what the Journal-Sentinel wrote in regard to Hagen’s filing comes across as downright frightening. His request is to force Nemec to provide the names of anyone with whom he might have shared the documents or spoken to about them.

First, stop and think about the chilling effect that would have on almost anyone who might speak to a journalist about any matter of public importance. This isn’t a case in which Nemec is being asked to disclose sources for a greater public good, but rather one in which he is asked to tell the state the names of people he might have discussed legally obtained information. His parents, his girlfriend, people with whom he works, journalists at his former student newspaper and more. (Full disclosure: I know I would be on that list, as Nemec and I have been discussing this whole case for more than 18 months.)

When I first saw Hagen’s demand, although the parallels aren’t perfect, my mind immediately went back to the HUAC trials of the 1950s and McCarthyism and it was damned scary.

Second, consider that Nemec had this information for 45 days. I can’t remember what I had for lunch yesterday, but he’s supposed to come up with a laundry list of people and organizations that might have heard about the unredacted information in the past month and a half? What if he’s wrong or forgets someone? Then what?

Also, let’s pretend that the courts would require him to do so AND Nemec had the mental fortitude to remember every, single person or group that he spoke to about this. What now? My guess would be that THOSE people would be the next to see some sort of suppression filing requiring that THEY list off everyone who THEY might have spoken to or shared information with about this. How far does this web of “don’t you dare” go?

 

How bad could this really BE?

Over the past 20-some years in which I have filed open-records requests and helped others file them, I have NEVER seen a situation get to this point. In most cases, these requests don’t even BECOME cases because people don’t take the issue to court, no matter WHAT is contained in those documents.

We had a situation out here in which a student in my reporting class requested documents pertaining to the firing of the university’s volleyball coach. She put in the request in March and after all the necessary notifications and time delays, she had the documents in August. You can read the article here, but as kind of a “trigger warning,” here’s a paragraph that gives you a sense of what these documents lay out:

One of Schaefer’s athletes filed a sexual harassment report against him with Dean of Students Art Munin on May 19, 2017. The report stated that Schaefer bought the student drinks, played a game called “nut ball,” texted him in a sexual manner and gifted him with a “jerk off cloth.”

The level of fighting to keep things under wraps here has me absolutely flummoxed as to what it is that Hagen and the university are trying to keep out of the public eye. I feel like Jacob in “Hot Tub Time Machine:”

The reason I’m perplexed is because the way I’m looking at it, this could be one of two things:

• This is a case of trying to kill a fly with a sledgehammer. There’s nothing in this thing that is so horrifying that it would irreparably damage the university or Hagen if it were released to the public. It’s a situation in which people might feel better if they could control the situation, but there’s nothing there that requires a shoe box labeled “Cincinnati.” The university might want to limit the release of names of other people involved and so forth, but as noted above, that’s not their call now if precedent means anything. I know Nemec well enough to know that just because he could do something, it doesn’t follow that he will. If he didn’t have an ethical code, he would have posted the documents everywhere, in their unredacted form, already.

 

• Gwyneth Paltrow’s head is in the box and nobody wants us to know. Opening the unredacted portions of these documents to public scrutiny would reveal something horrifying about the university, Hagen or some combination therein. I really don’t think this is the case for a simple reason: These documents pertain to an incident before the one that Nemec really wanted to know about. After this situation was resolved, Hagen was able to continue working at UWO. If these documents contained that “What’s in the box?” level of concern, there’s no way that would have happened. Still, according to Nemec’s story, Hagen was removed from a CLASSROOM and his classes were reassigned and it’s unclear to the public WHY, so I would have to assume SOMETHING weird is going on. How weird? We might never know
  

The judge will hear arguments on Nov. 21. It’s unclear to what degree there’s going to be more on this, and Nemec has declined to comment on any of this until the case is settled. Making things even more bizarre, the university is still sitting on a set of redacted records more directly pertaining to Nemec’s original request until this situation is resolved.

Although it would be interesting to find out what these documents all say, the bigger issue is what the court’s rulings will say about what journalists can say in these situations.