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.