A furious judge scolded the South Florida Sun Sentinel on Wednesday for publishing confidential but legally obtained information about Parkland school shooter Nikolas Cruz.
Broward Circuit Judge Elizabeth Scherer said the newspaper flouted her order that portions of a school district report about Cruz should remain shielded from the public. In the future, she declared, she will consider listing exactly what the newspaper can and cannot print.
Scherer did not rule on a school district request that the newspaper and two reporters be held in contempt for publishing the information.
The issue revolves around a report released Aug. 3 based on Cruz’s educational record, revealing what officials knew about him in the years leading up to his Feb. 14 attack on Marjory Stoneman Douglas High School, where he killed 17 people and wounded 17 more.
A coalition of 30 media organizations, including the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, the New York Times, the Washington Post, CBS Broadcasting and CNN, came to the Sun Sentinel’s side in a court brief filed. They called on the judge to deny the School Board’s motion to penalize the news organization and two of its reporters, Paula McMahon and Brittany Wallman.
After the hearing, Julie Anderson, editor-in-chief of the Sun Sentinel, said: “The Sun Sentinel obtained this report lawfully, found its contents to be of great public interest, and did its duty. As the Reporters Committee for the Freedom of the Press noted, ‘The U.S. Supreme Court has consistently held that the press cannot be punished for publishing or broadcasting truthful information of public concern that the press obtained legally.’”
By court order, the district was supposed to black out nearly two-thirds of the report because it disclosed information that Cruz was entitled to keep private under federal and state law. But the method used to post the report on the district’s website made it possible for anyone to read the blacked-out portions by copying and pasting them into another file.
The Sun Sentinel reporters revealed:
-- School officials didn’t properly advise Cruz of his legal options when he was faced with removal from Marjory Stoneman Douglas High School his junior year, leading him to give up special education services.
-- When Cruz failed to file the required written rejection of special education services, school officials nudged him, writing it up for him to sign.
-- The district “did not follow through” on Cruz’s subsequent request to return to the therapeutic environment of Cross Creek School for special education students.
Sun Sentinel attorney Dana McElroy argued that the newspaper broke no law by publishing information it had obtained legally.
Journalism ethics experts said news organizations always face tough decisions about whether to publish information no matter how it is obtained.
The media are not obliged to run information just because they received it, nor are they required to refrain from publishing just because a government agency released it in error, said Susan McGregor, assistant director of the Tow Center for Digital Journalism at Columbia University.
“Is it relevant to an important story, and was there significant public interest in having that information out there?” she asked.
Philip Seib, who has written several books on journalism ethics and teaches at the University of Southern California, agreed with the Sun Sentinel’s actions.
“It sounds to me like the people who were in contempt were those in the government agency who allowed it to be disseminated in a way that any school child could have decoded,” he said.
Some parents of children killed at Stoneman Douglas also sided with the Sun Sentinel.
Andrew Pollack, whose daughter Meadow died in the shooting, said the school board was to blame for mishandling the report’s release.
“[Schools Superintendent Robert] Runcie said they did everything right,” Pollack said. “The things that the Sun Sentinel exposed show how incompetent everyone that worked at that school was. It’s great reporting. Whether you report what I like or don’t like, it’s the news. That’s your job. Report the news.”
Ryan Petty, whose daughter Alaina was one of the victims, said the school board should have rescinded its motion before Wednesday’s hearing. “It was a waste of time,” he said.
The school district released a statement repeating the position it took in court Wednesday, but retreatin from its original stance.
In its contempt petition, the district asked the judge to “initiate contempt proceedings … and impose proper sanctions as deemed appropriate.” Then Wednesday, the district said it never intended to pursue contempt proceedings and merely wanted to inform the judge that confidential information had been published.
Scherer stopped short of saying the publication was illegal, but she accused the newspaper of manipulation to get the information.
“You all manipulated that document so that it could be unredacted,” Scherer said. “That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It’s no different.”
That, too, would have been legal, McElroy replied.
She rebutted the judge’s suggestion that the journalists had agreed not to publish the information.
“What was conceded was that there are statutes that prevent the release of this information by the government,” she said. But once the information was released, McElroy said, the news organization was well within its rights to publish it.
Scherer was not swayed. She threatened to restrict what the media can report, a practice known as prior restraint.
“From now on if I have to specifically write word for word exactly what you are and are not permitted to print – and I have to take the papers myself and redact them with a Sharpie … then I’ll do that,” she said.
An order like that would be “flatly unconstitutional,” Chuck Tobin, attorney for the media coalition, told the Sun Sentinel. Courts have ruled consistently that prior restraint of the media is prohibited.
“The order the court entered did not tell the journalists or the newspaper what they could or couldn't publish," Tobin said.
The coalition cited legal precedent holding that a news organization is entitled to publish information it has obtained legally, even if the government agency that released it did so in error.
“The [U.S.] Supreme Court has repeatedly made it crystal clear that it is the government’s burden to safeguard information … that does not belong in the public domain,” the coalition wrote in the brief filed Tuesday. It is “not the media’s burden to refrain from publication. … When the government fails to fulfill that burden it cannot punish the press for publishing information provided by the government, even if through inadvertent disclosure.”