D.C. Judge Hits NLJ With Prior Restraint Order

There is a major first amendment case brewing in Washington, D.C. The National Law Journal was hit with a temporary restraining order from D.C. Superior Court Judge Judith Bartnoff preventing it from publishing facts that its journalists found in publicly available documents. The court blocked the NLJ from revealing the name of a government agency investigating POM Wonderful, a pomegranate juice maker. After signing what appears to be an unconstitutional order, Bartnoff is quoted as saying “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it.”

David L. Brown, editor in chief, stated that, after receiving the order, he agreed to remove the information from the article.

The case deals with a conflict between Hogan Lovells and former client POM Wonderful over the failure to pay more than a half-million dollars in legal fees and expenses. After the firm filed suit for breach of contract. POM countercharged that its fees were “exorbitant.”

The first amendment issue appears to be linked to POM’s effort to seal documents dealing with the matter underlying the original representation. “On Friday, July 23, Superior Court Judge Judith Bartnoff signed a temporary restraining order preventing The National Law Journal from publishing the name of the regulatory agency before which Hogan represented POM.”

The ability of a court to engage in such prior restraint is doubtful, as shown in the Pentagon Papers case. “Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity. Carroll v. Princess Anne, 393 U.S. 175, 181 (1968). If the Supreme Court did not see fit to use prior restraint to prevent the release of classified documents, it is difficult to see the authority of Judge Bartnoff to do so with regard to POM documents or facts. The order is a major assault on a core right of the media to release material that was made public, particularly in official sources such as the court docket. The ability of the Court to control the parties to a case is obviously far greater.

Even with traditional gag orders, courts are limited in their ability to restrict information made public. In Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1979), the United States Supreme Court overturned held:

“To the extent that this order prohibited the reporting of evidence adduced at the open preliminary hearing, it plainly violated settled principles: ‘[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom.'”.

William Blackstone articulated the dangers of such orders in his Commentaries:

”The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.” (4 Bl. Com. 151, 152.)

I realize that Judge Bartnoff has many countervailing concerns, but I believe that she needs to rescind this order. Otherwise, the NLJ needs to pursue this aggressively to the appellate court — hopefully with the support of civil libertarian and media groups.

What is curious is that Bartnoff is a respected judge with a stellar background, including public interest work. I find this opinion to be rather incongruous for her.
Source: NLJ

38 thoughts on “D.C. Judge Hits NLJ With Prior Restraint Order

  1. Agree 100%. Sorry NLJ just gave up. It should have appealed. Bad juju for a legal publication to just fall over dead in the face of a clearly incorrect order.

  2. The New Yorker observed:

    There’s a special irony to this instance of prior restraint because Resnick was implicated in the Pentagon Papers case. Her then boyfriend, Anthony Russo, convinced her to allow him and Daniel Ellsberg to copy the Pentagon Papers on the copier of the ad agency that she ran. The Washington Post has reported that Resnick was an unindicted co-conspirator in the criminal case against Russo and Ellsberg. (The charges were later dismissed.)

    Read more http://www.newyorker.com/online/blogs/newsdesk/2010/07/the-pomegranate-papers.html#ixzz0uyY9oP9T

    (Hay New Yorker! Niiiiice! You included the link when I cutteded and pasteded from your site.)

  3. Oh I think that this is just the tip of the beginning of the berg that sunk the Titanic….

    ergo, you will see more…..Think Blackwater, Xe, Gonzales, Rove, et al…..

  4. “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it.”

    ************

    In saner times, this would be the first sentence in a bill of impeachment. At the very least, in a letter of complaint to the chief judge of the district in which Judge Bartnoff presides. When a judge blatantly disregards prevailing law of this moment, it is more than just poor judgment. What “countervailing concerns” in this case based upon blocking the dissemination of information readily available in court documents trump our ability to speak freely?

  5. I feel as though I were standing on the banks of the Mississippi watching it flow north. My brain can’t process the contradictions. First, it is hard to imagine a Cliffie, a history and lit major to boot, with a public interest law background issuing an order prohibiting the publication of public information. Second, trial judges are bound to rule in accordance with established precedent unless there is none.

    I am curious as to what “countervailing concerns” convinced the court to enter this order.

  6. What mespo and Mike A said.

    Bartnoff seems to not only have lost her mind with this order, but channeling Franz Kafka as well. Would the bailiff please bring Joseph K to the bench?

    And she’s just begging to have her finances gone over with a fine tooth comb in addition to being the loser of an appeal.

    W=c,

    Yes. We have been since Reagan was in office.

  7. I just filed a First Amendment Brief (PRO SE rights) in the Court of Appeals for the District of Columbia. Since this happened in D.C., it could be pursued in federal court and end up in the same Court of Appeals. I argued:

    Strict Scrutiny review is required because the Sieverdings stated a First Amendment claim.79 Citizens United v. Federal Election Commission 130S.Ct.42(2009)…

    Appellants can rely on Supreme Court statements in this Court because this court stated:

    Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by “one supreme Court.” U.S. CONST. art. III,§1. And as we have said before, “carefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative.” United States v. Dorcely, 454 F.3d 366, 375 (D.C. Cir. 2006). Winslow v. Federal Energy Regulatory Commission, 587 F.3d 1133
    (D.C.Cir. 12/01/2009)….

    “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” The Constitution demands that content-based
    restrictions on speech be presumed invalid, R. A. V. v. St. Paul, 505 U. S.377, 382 (1992), and that the Government bears the burden of showing their
    constitutionality. Ashcroft v. American Civil Liberties Union, 322 F.3d 240….

    Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove
    that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest… The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech…. Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts
    of a free people. Citizens United v. Federal Election Commission.

  8. … from the standpoint of an untrained legal novice:

    What mespo, Mike A & Buddha said

    From the standpoint of a citizen:

    What Woosty said … both posts
    and with a growing sense that AY’s comment is on target

    Perhaps years of unquestioned power have gone to the judge’s head resulting in the self-important attitude that her opinion trumps 80 years of First Amendment jurisprudence

  9. what somebody agreed with me….somebody quick get them there medicine…..maybe smelling salt would help….

  10. This is the new standard operating procedure for judges: Do whatever the hell you want, ideologically, and let them appeal it to the Supreme Court. There is no accountability, so why not? Most of your ideologically determined judgements will survive, because the wronged party usually cannot afford an appeal in expense, time, or both.

    Screw the oath of office, screw integrity, screw the Constitution. It is authoritarian pure and simple; this judge wants the outcome he wants and fuck the consequences. Impeachment? Go ahead and try, it won’t do any good.

  11. What’s called for is the establishment of an anonymous digital trustee for information that might be subjected to illegal gag orders. Maybe WikiLeaks could set this up. To use the POM case as an example: if the digital trustee had existed, NLJ could have “deposited” the public documents it discovered with the trustee.

    The trustee does nothing with the information unless it learns that the contributor has been “gagged.” (Or the contributor authorizes public release.) How does it learn? It monitors online media, same as we do. Upon learning of a court’s attempt to suppress public information, the trustee distributes it online. It goes viral, and once the information is widely disseminated, no judge can suppress it.

    The trustee, being anonymous, can’t be served with the court’s gag order. Even better: have multiple trustees, and put some of them in foreign countries, beyond the practical reach of US jurisdiction.

    Newsgathering organizations could start doing this on their own right now. It’s the equivalent of the old standby in mystery stories of a person leaving a letter with a friend “to be delivered to the police in the event of my death,” or the envelope to be delivered to the New York Times.

    Hopefully Judge Bartnoff’s order is an aberration rather than the start of a trend. But if not, the plan outlined above can discourage such orders by making them useless.

  12. Someone should determine which circuits treat SC dichta as law and which don’t. Knowing what I know now, I would never consider buying property in a circuit that doesn’t treat S.C. dichta as law. I hope that CDC is not alone in that, because I would like to have more options of where to live. But seriously, it is not worth living in a circuit without rule of law and if the circuit is making rulings “based on the posture in this case” that conflict with S.C. dichta, it is not a safe territory to live in. You are literally risking your life in any circuit that just wings it using the “posture in this case”.

  13. I wish the article would have had more than the NLJ’s side. I feel a bit in the dark as to what the NLJ’s interest was in publishing attorney-client privileged information that would not have come out but for the fact that the law firm allegedly tried to bleed its client, and the client balked. Should law firms be allowed to hold clients hostage, demanding that if they do not pay the firm’s unreasonable fees, then their secrets will be hauled out into open court? That puts a difficult burden on the client and is tantamount to blackmail.

    From the published verson of the NLJ article, that appears to be the case. Rather than going through mandatory arbitration in California, required under bar rules there, as POM petitioned, Hogan ran to Federal court in DC, despite the alleged fact that it performed most of its work from the California office. Hogan’s argument that its representation contract did not stipulate the forum for dispute resolution is self-serving, but cuts both ways. If there is an ethical requirement by its California lawyers to use that state’s arbitration system, then they should have been so bound.

    Professor Turley’s snippet indicates a rush to judgment in favor of Hogan. There are more issues here than prior-restraint, and his snippet doesn’t give full air to those issues.

  14. I suspect the “countervailing concerns” was word quietly passed down from the present members of the US Supreme Court that they were looking around for an issue along these lines to rule on — and not in a way that would preserve or extend freedom.

  15. Thank you Bruce. As I understand it, attorney client privilege belongs to the client only, not to the attorney, and when it is waived it is totally waived.

    The bottom line is that the prudent thing to do is obey the law at all times and not count on a law firm to help you break the law and then cover it up. When that is the case, then the client is vulnerable to extortion by the law-firm. It’s just like hiring a thug to break your enemy’s leg — then the thug can come after you.

    On the subject of attorney ethics, I “heard” that former judge Edward Nottingham now has a law practice representing and advising attorneys accused of malpractice. Going before the Colorado Attorney Regulation Counsel, John Gleason, the same party who didn’t disbar Nottingham and who told me that they won’t even consider my complaints that he engaged in criminal witness intimidation as defined in 18 USC section 1512. It’s weird that the same attorney regulation counsel has been in Colorado for some 30 years. Alison Maynard filed in federal court that she researched Gleason and that there is no public record she could find that he even passed the bar and very little about his professional experience.

    Very few s.c. justices have any administrative experience and lawyers are always on their best behavior when they are around families of judges and big law. Like that article about Justice Thomas’s nephew being tasored because he tried to leave a hospital– that wouldn’t have happened if they knew he was the nephew of a S.C. justice.

    In Colorado, the Attorney Regulation Counsel John Gleason is apparently solely responsible to those he regulates — ie the bar, which solely funds the attorney regulation counsel. The Colorado Bar Association is a purely private organization that claims they have no duty to the public. One of the biggest regrets of my life is that I ever bought property in Colorado. I would never consider buying Colorado property again with the state of law in Colorado.

    My opinion is that the attorney regulation counsel should be an elected official.

  16. I think this thread is getting a bit off track. It is difficult to understand the status of the case or the rationale behind the court order without examining the filings by the parties, but we do know the following:
    1. DC is the proper venue for the suit. The work was performed in DC and payment was presumably due there.
    2. This is not a federal court case. Judge Bartnoff is a Superior Court judge.
    3. POM may not be entitled to assert attorney-client privilege. If it is pursuing a counterclaim for malpractice, it will be waiving the privilege.
    4. POM may not be able to compel arbitration of the dispute, despite California Bar rules. Those rules are not binding on clients. If POM has participated in the suit to the extent that it can be deemed to have waived arbitration, the California Bar rules are immaterial.
    5. POM can’t have its cake and eat it too. It can’t simultaneously complain about the plaintiff’s legal services and prevent the plaintiff from utilizing work product materials for evidentiary purposes.
    6. We obviously are missing some salient facts, but the court order still appears to have been unlawfully issued.

  17. Well, state and DC judges are required to comply with the First Amendment aren’t they? Conformity?

    Isn’t there something in the DC Rules of Professional Conduct about a requirement of protesting inappropriate judicial orders?

    As far as the digital trustee goes, maybe some progress can be made in federal court just by filing under “28 U.S.C. § 2201 Creation of remedy”. I am just pro se but my understanding is that that law is often used in anticipation of litigation such as a patent or copyright claim. If there is a federal case #, then you can file documents in PACER and they will get a USCourts document number. ECF/PACER seem to be doing a lot of high tech stuff to control documents these days. The case number and document numbers are automatically printed on each document and the document number is a live digital print,somehow. Some of the documents won’t let you use a PDF-save function but require you to use as Save-As function and then somehow control the name attached to the document so you have to use the court’s document number. And of course, in any court the parties can file for a protective order and there can be a secret review of the information with the judge.

  18. kay, no party is ever obligated to appeal a court order. There may be many valid reasons for not seeking review of even a blatantly erroneous order. Besides, all orders made during the course of a case are subject to appellate review should a party take an appeal from the final judgment.

  19. I didn’t say “appeal”, I said “protest”.

    http://www.dcbar.org/for_lawyers/ethics/legal_ethics/rules_of_professional_conduct/amended_rules/index.cfm

    In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or knowingly use methods of obtaining evidence that violate the legal rights of such a person.

    A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

    It is professional misconduct for a lawyer to:..
    (f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
    (g) Seek or threaten to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter

    (a) A lawyer shall not knowingly:
    (1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer…
    Counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent…
    (3) Fail to disclose to the tribunal legal authority in the controlling jurisdiction not disclosed by opposing counsel and known to the lawyer to be dispositive of a question at issue and directly adverse to the position of the client; or
    (4) Offer evidence that the lawyer knows to be false,

    A lawyer shall not:
    (a) Obstruct another party’s access to evidence or alter, destroy, or conceal evidence, or counsel or assist another person to do so, if the lawyer reasonably should know that the evidence is or may be the subject of discovery or subpoena in any pending or imminent proceeding….

    (b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;….

    (e) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused; …..

    In the course of representing a client, a lawyer shall not knowingly:
    (a) Make a false statement of material fact or law to
    a third person; or
    (b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

    Of course, the problem is that these rules of professional conduct are just for show and aren’t actually enforced. The rules seem more like directions as to how to win by using dirty tricks.

  20. “What is curious is that Bartnoff is a respected judge with a stellar background, including public interest work. I find this opinion to be rather incongruous for her.”

    ************

    I find this an interesting comment. Why is it curious? JT seems to imply that a judge’s acumen is simply the sum of all those initials after her name and thus we should exhibit some degree of surprise when she errs. I find credentialism about the least reliable predictor of success when it comes to dealing with societal problems and nuance involving the rights of others. Does the accomplished study of law guarantee sensitivity to individual rights and respect for the dignity of person? Judge Bybee and Professor Yoo would seem to disprove this notion.

    Does reaching the upper rungs of societal success imbue one with a heightened sense of morality or ethics. If so, how might we explain Ken Lay? Or George W. Bush? Can we really believe that the ability to play the game that society lays before us — and to play it well — raises anyone to an echelon above anyone else when the question doesn’t involve our narrow area of expertise. Is the plumber truly lower on in the societal caste system than the surgeon when your pipes burst on a cold November night?

    I am constantly reminded of William Buckley’s quip that he would rather entrust government to the first 400 names in the Boston telephone directory than the faculty of Harvard. In my youth, I found this a repulsive comment, but as I am constantly brought into direct contact with “feet of clay” ever-affixed to our “best and brightest,” and the undue deference accorded to those strands of letters trailing those names, I am beginning to rethink my position.

    I would happily take the judgment of FFLeo or Byron or many other non-lawyer posters over the erudite tyranny exhibited by our jurist here. What value all these credentials if not brought into the service of justice for us all? To paraphrase Plato, the only difference between cunning and wisdom is justice.

  21. And you know, I’d never thought I’d say this, but considering the quality of the opposition these days?

    I really do miss ‘Ol Buckley.

  22. Mespo,

    I am going to respond with the first thing that popped into my mind after reading your post, It is one of my favorite quotes from Plato:

    “The greatest wealth is to live content with little”

    I have never been sure if true wisdom gives birth to humility or if true humility leads to wisdom … it’s always been a chicken or egg question for me … at any rate, that’s where my mind went after reading you post for somehow the subject of this thread (The Judge’s ruling and words) seemed to lack both.

  23. “I have never been sure if true wisdom gives birth to humility or if true humility leads to wisdom … it’s always been a chicken or egg question for me … at any rate,…”

    ***********

    “The only real wisdom is knowing you know nothing”

    ~Socrates (according to who else? Plato, of course)

    And a little Latin maxim of my own choosing:

    An nescis, mi fili, quantilla sapientia mundus regatur?

    (Don’t you know then, my son, how little wisdom rules the world?)

  24. Mespo,

    I was at dinner last evening when I read the sad news of a child being forced to go to a school in the SEC. That’s ok, suffer as they may. I am sure because they are your “prototype” they will excel and finish up record time. But the question comes down to what are they going to do the next 3.5 years? It is a 4 year school?

  25. AY:

    “I am sure because they are your “prototype” they will excel and finish up record time. But the question comes down to what are they going to do the next 3.5 years? It is a 4 year school?”

    *****************
    He wants to be a secular missionary and what better place to start than the SEC. I tattooed Jefferson’s letter to the Danbury Baptists on his forearm, of course.

  26. Yes, the TRO is well-known to be very flawed and very misused – I have consistently seen estimates that 40% of those restrained by it in Family Court
    matters alone, are proven later to be innocent and the order inappropriate. What
    surprises me is the apparent inability of experienced judges to see the evil (there is no other word) motives that engender perjuries without apparent recourse, that should be obvious to any person on the street, in order to obtain these TROs.
    There are no other conclusions except such judges are lazy, don’t know or care about the law of the land, and simply want to clear their calendar quickly, no matter the human misery caused. I see little recourse except the media, their (too-often blindly loyal) superiors, and higher courts. I suppose this at least ONE
    reason to vote Republican – G_d knows there are few otherwise, insofar as the
    poorer 90% of our citizenry are concerned.

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