Bizarre, Constitutional Law, Courts, Lawyering, Media

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”

  2. I think it is important for people to know that USMS practices summary imprisonment in order to control the location and content of filings in civil cases.

  3. 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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  5. 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.

  7. 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?

  8. Not only are the Resnicks heavily politically-connected, they’ve apparently been having Lynda’s Wikipedia article edited by a paid shill. Charming people.

    http://wikipediareview.com/index.php?showtopic=30260

    One also wonders if Judge Bartnoff knows Lynda Resnick personally. Lynda’s got a lot of contacts in Washington.

  10. “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?)

  11. 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.

  12. 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.

  14. “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.

  15. 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.

  17. 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.

  18. 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.

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