University of Wisconsin, Oshkosh withdraws from attempt to impose prior restraint on its former student journalist

On Friday, the Wisconsin Department of Justice withdrew its application to the state trial court asking it to enjoin a journalist from disclosing information contained in public records accidentally disclosed to him by the University of Wisconsin, Oshkosh, while he was a student journalist.

As we explained last week, this case arises out of a public records request made by Alex Nemec, then a student journalist writing for the university’s student newspaper, the Advance-Titan. Nemec sought records concerning a professor who was suddenly removed from teaching. He was inadvertently provided unredacted records after a Wisconsin appellate court denied the professor’s attempt to block the release of partially redacted records.

After the university accidentally sent Nemec the unredacted records instead of the partially redacted records, the Wisconsin DOJ — representing the university — asked a court to impose a prior restraint on Nemec:

On Oct. 4, the Wisconsin DOJ filed an “Emergency Motion for a Temporary Restraining Order and Permanent Injunction” against Nemec (posted online by Jonathan Anderson). In the motion, the DOJ asked a Wisconsin court to bar Nemec “from publicizing, printing, or sharing, in any manner, whether verbally, in writing, or otherwise, the contents of” the redacted portions, “further ordering Nemec to delete and destroy any and all copies of the unredacted records,” and directing him to “obtain” copies “he may have sent to others.” (This presumably refers to the student newspaper; although Nemec graduated in January, he planned to share the records with the Advance-Titan.)

Now, the Wisconsin DOJ has withdrawn that motion, telling a court that Nemec’s “certification to this court that the records sent to him in error have been deleted [...] provide[s] the relief the [University] was seeking.”

It’s not the most graceful of dismounts, as the Wisconsin DOJ’s motion sought more than just the destruction of the unredacted records, leaving some of the “relief” sought by the DOJ unresolved. It is nevertheless wise to back down from asking a court to do what the First Amendment forbids.

But Nemec is not out of the woods yet, as the lawyer for the professor has also asked the court to impose a similar prior restraint on Nemec. That motion has not been withdrawn, and if granted it would clearly abridge Nemec’s First Amendment rights. The professor’s lawyers should follow the Wisconsin DOJ’s retreat, or risk drawing further attention to the controversy before ultimately losing.