How the Des Moines Register built a legacy of First Amendment rights

More than a century ago, the Des Moines Register and its predecessors began blazing a trail of successful litigation to protect and expand Iowans’ rights to free speech and free press that continues today.

This persistent reliance on the courts to strengthen First Amendment rights is one of the Register’s most consequential and enduring legacies.

This effort reached its heights in the 1970s and 1980s, after the Cowles family hired Gary Gerlach as counsel.

“Our main genius is that we were allowed to have a fine little internal law firm,” growing to five attorneys, he says today.

One early hire was Michael Downey, who did “a lot of brilliant writing and arguing” to open the Iowa court system to still photography and TV cameras, Gerlach said. Another was Mike Giudicessi, a nationally recognized First Amendment expert who continues that work today as legal counsel to the Iowa Freedom of Information Council, and the late Barbara Mack, who went on to become a beloved journalism professor at Iowa State University.

Giudicessi credits Gerlach as the architect of a legal strategy that has secured access to court proceedings, public meetings and government records and has shielded journalists and private citizens against defamation and invasion of privacy claims. Gerlach claims no grand strategy other than a passion for newsgathering and for using the law to protect it.

“Aggressive journalism and open government made for a great newspaper and a great state,” Gerlach said.

Here’s a brief look at some of the key litigation pressed by the Register and its predecessors and the ongoing benefits for Iowans.

Strengthening libel protections

Way back in 1901, Cherry Sisters v. Des Moines Leader established the defense of “fair comment” in libel lawsuits, more than 60 years before the U.S. Supreme Court reached a similar decision in its landmark New York Times v. Sullivan ruling.

The case involved what everyone but the sisters agreed was a terrible vaudeville act, but one so laughable that it became a hit on Broadway. A writer for the Odebolt Chronicle described one of the sisters as “a capering monstrosity” and said of the act: “The mouths of their rancid features opened like caverns, and sounds like the wailings of damned souls issued therefrom.” When the Leader published the Chronicle article, the sisters sued the Des Moines daily for libel.

In language still cited today, the Iowa Supreme Court concluded forcefully that absent actual malice, “The editor of a newspaper has the right, if not the duty, of publishing … fair and reasonable comments, however severe in terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest …”

Notably, while that citation specifies “editor,” the fair comment defense applies to all Iowans, from writers of letters to the editor to social media bloggers.

Michael Gartner, a former Register editor, wrote for American Heritage magazine in 1982 that the case “has become one of the strongest and most reliable bastions defending the right of ‘fair comment’ in libel actions.”

Gartner also cites this observation from Robert H. Phelps and E. Douglas Hamilton in “Libel – Rights, Risks, Responsibilities“: “Without this defense, editorials would be anemic, commentary spineless, art criticism tepid and letters to the editor platitudinous. Sports reporters, feature writers and columnists would be straitjacketed.”

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More recent litigation further defined and strengthened protection against libel lawsuits. A 1976 Iowa Supreme Court decision, McCarney v. Des Moines Register, established that the New York Times v. Sullivan standard for public figures would apply in Iowa – that they would have to prove defendants acted with “actual malice.”

The justices wrote, “The rationale underlying the New York Times doctrine lies in our profound national commitment to vigorous and robust debate over matters of public concern and to our insistence that the free and unfettered exchange of ideas is necessary to protect the public’s right to know.”

Importantly, that interest in robust public debate is so great that it includes the right to be wrong.

The Register had published a story reporting that a former Iowa City police chief, Patrick McCarney, had been indicted in a case involving the death of a prisoner. Instead, the indictment, later declared invalid, involved assault, not death. The Register acknowledged its error and issued a correction. The Supreme Court affirmed dismissal of the case, finding the error was committed through mistake, not actual malice, which requires knowing a statement is false or recklessly disregarding whether it’s true or not.

Twenty years later came Johnson v. Nickerson, another case with a fascinating backstory, involving Ayrlahn Johnson, a former jury foreman in a case that had convicted a Black man of murder. Johnson was subsequently accused of having ties to Posse Comitatus, a white supremacy group.

The convicted man’s attorneys filed a motion for a new trial that detailed the racism accusations, which the Register wrote about. The motion for a new trial was denied, and Johnson sued for defamation. The Register won, and the case confirmed that accurate reporting of court records protects against libel claims.

Securing access to court proceedings

A defendant’s right to a fair trial sometimes collides with the right of a free press to cover court proceedings and serve as a watchdog on law enforcement and the judicial system.

In the 1983 Register v. Wifvat case, a defendant accused of setting a West Des Moines hotel fire that killed a 15-year-old boy and 12-year-old girl sought to close a pretrial hearing concerning suppression of evidence. As a Casetext summary explains, the Register successfully argued on appeal that court proceedings should be open to the press and public to preserve the integrity of the judicial system and to avoid possible suppression of evidence of police misconduct. The case established the right of public access in Iowa to pretrial suppression hearings.

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Five years later, in Des Moines Register & Tribune Co. v. Iowa District Court for Story County, an attorney for a defendant accused of setting a house fire in Ames that killed two children moved to close a preliminary hearing, and a district judge agreed. However, the appellate court, citing the role that public access plays in maintaining the public’s confidence in the judicial system, ruled that the judge had erred in closing the hearing.

The decision overturned as unconstitutional an Iowa Rule of Criminal Procedure requiring closure of a preliminary hearing upon a defendant’s request.

Another key court access case, In re Iowa Freedom of Information Council, involved Procter & Gamble, which claimed that trade secrets required closure of a contempt proceeding. When Register reporter John Carlson tried to object, the judge for Iowa’s Northern District federal court refused to hear the objection and continued the session in private. The Register sent its lawyer to Cedar Rapids to object, without success. On appeal, the court held that constitutional rights of access extended to contempt hearings. It also made recommendations on how trial judges should consider a reporter’s objections before shutting out the press and public and limit the extent of any closed-door proceeding.

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Establishing reporter privilege against forced testimony

In the 1977 Winegard v. Oxberger case, Register reporter Diane Graham had written two articles that outlined claims presented in a divorce case involving a common-law couple, Sally Ann and John R. Winegard. Many of the statements in the articles were attributed to Sally Ann Winegard’s attorney. She then sued the attorney, accusing him of invasion of privacy and defamation.

Graham was issued a subpoena that sought her notes or other information obtained while preparing the articles. In response to the subpoena, Graham testified that she wrote the articles and that they were accurate. However, citing First Amendment rights, she refused to turn over her notes, identify her sources or otherwise discuss details about how the articles were reported and edited. Thus began for Graham a 4-plus-year saga under continuous threat of jail for contempt of court.

The case is significant for establishing a qualified privilege for reporters in Iowa against forced testimony and a multistep process to determine when and to the extent that privilege applies. As for Graham, her ordeal “ended not with a bang but a whimper,” she said earlier this year. The lawsuit was eventually dismissed, and her attorneys weren’t even notified until a few months later.

“We basically won through stubbornness,” she said. “We waited them out. And I never had to testify in court or turn over my notes.”

A 1982 case involving Register reporter Nick Lamberto further narrowed the tests to determine reporter privilege to two: The party seeking the privileged information must show a compelling need for the information and must show they’ve exhausted other means of discovery to obtain it. If those tests are met, a judge would then do an in-camera review of whether the evidence is necessary to the case and likely to be admissible. If not, compelled testimony would still be barred.

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Protecting against invasion of privacy claims

In a front-page story on Feb. 15, 1976, reporter Margaret Engel revealed allegations of appalling abuses by the Jasper County Home in Newton, including two residents’ deaths after scalding baths and forced sterilizations of women who were not mentally disabled. Her reporting named one of the women who had been sterilized against her will, and the woman sued for invasion of privacy.

The Register won the case, in part because some of the woman’s story was already accessible through public records ― in documents provided to the governor’s office and in records of payment for the surgery. Further, the Iowa Supreme Court found that publishing otherwise private facts can be justified when the person is enmeshed in a matter of public concern. The court cited Engel’s work as an example of investigative journalism undertaken “to bring the problems of the Jasper County Home to public attention” and called it “basic and legitimate” journalism.

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Preserving access to public records, meetings

In another case with a colorful backstory, Des Moines Register & Tribune Co. v. Osmundson, a judge in a Linn County murder trial had issued an order prohibiting disclosure of names of jurors and any identifying information about them. Both the defense and prosecution had questioned potential jurors extensively about the victim’s membership in the “Chosen Few” motorcycle gang. Two people had been excused after they expressed fears about retaliation from the gang if the jury acquitted the defendant.

In turn, a whole gang of news organizations and journalism associations fought the order. Gerlach said the proceedings may have set a record for the number of rapid reversals in the space of a few days. But the Iowa Supreme Court was resolute: The jury list was a public record, and the order restraining publicity about the jurors was an unconstitutional prior restraint on the press.

Also of note is a 1992 case, Des Moines Community School District v. Des Moines Register, in which an appellate court ruled that while many personnel records are properly judged confidential, details must be made public about dispute settlements involving payment of public funds.

The case involved a principal at Wright Elementary School. Some parents and teachers had raised complaints about her performance; she said she was the victim of sexist and racist slurs and filed a complaint with the Iowa Civil Rights Commission. Months later, the district issued a news release saying a settlement had been reached: She would dismiss her discrimination complaints and resign; the district would pay her $49,500.

But the district had resisted a Register reporter’s request for information regarding investigations into the complaints against the principal and into her complaints against the district. Many of those records remained sealed, but not the settlement agreement.

And in 2012, in Hall v. Broadlawns Medical Center, the Iowa Supreme Court ruled that an internal audit created by Broadlawns in the wake of drug thefts by an employee was a public record that had to be disclosed.

“The public interest in information related to the theft of drugs from a pharmacy at a hospital funded by taxpayers is compelling,” the court wrote.

Carrying on fights for press and public access today

These days, it’s less likely that a single news organization can afford to take on costly litigation. One admirable exception is Sycamore Media, publisher of weeklies in Bellevue, DeWitt and Maquoketa in eastern Iowa. Owner and CEO Trevis Mayfield has been especially active in filing lawsuits pressing for public records and open meetings.

But more often, news organizations band together to pursue litigation, often in collaboration with the Iowa Freedom of Information Council, now led by former Register journalist Randy Evans. The Register is a founding member of the council, and I’m a member of the Board of Trustees. The council carries on the proud tradition of striving to preserve access to the workings of government for all Iowans.

Carol Hunter is the Register’s executive editor. She wants to hear your questions, story ideas or concerns at 515-284-8545, [email protected], or on Twitter: @carolhunter.