D.C. judge lifts gag order against legal newspaper

Monday, August 2, 2010

WASHINGTON — A judge has lifted an order that prevented a legal newspaper from publishing information found in court records that were supposed to have been shielded from public view.

The Internet blog of the National Law Journal reported on July 30 that the judge freed the newspaper at 4:30 p.m. to publish the information, which concerned a Federal Trade Commission investigation of juicemaker POM Wonderful.

POM had fought to keep the investigating agency's name secret, but reversed course on July 30 and asked D.C. Superior Court Judge Judith Bartnoff to rescind her order. Bartnoff had ordered the records sealed, but they mistakenly remained available.

POM said in a July 30 statement that it never intended to provoke a First Amendment fight over the issue.

“POM is, and always has been, fervent supporters of and believers in the freedom of the press, and takes very seriously its commitment to transparency in all aspects of our business,” the company said.

The company’s request to the judge came as news organizations filed a friend-of-the-court brief in the D.C. Court of Appeals in support of the law journal. The brief said Bartnoff's order lacked “any conceivable justification” and should be reversed immediately.

The news organizations include the American Society of News Editors, the Associated Press, Dow Jones, Gannett, The New York Times, NPR, The Washington Post, the Society of Professional Journalists and the Reporters Committee for Freedom of the Press.

ALM, the parent company of the National Law Journal, had filed an emergency appeal with the D.C. court on July 28.

Bartnoff issued a verbal order sealing the records during a July 9 closed-door hearing in a dispute between POM and Hogan Lovells law firm. The D.C. firm claims POM owes it $666,200 in legal fees. Bartnoff issued a written order July 20.

But the records hadn't actually been sealed by July 15, when the newspaper said it obtained from the court's files copies of publicly available documents that contained the regulatory agency's name.

On July 22, POM asked the judge to bar the law journal and ALM Media from publishing the regulatory agency's name. The judge granted a 10-day temporary restraining order on July 23 and had set a hearing for Aug. 6.

Bartnoff said the court's interest in ensuring that its orders are put in place outweighed the newspaper's argument about press freedom.

“If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” Bartnoff was quoted by the Blog of Legal Times as saying at the July 23 hearing. “None of that First Amendment jurisprudence, to my knowledge, is dealing with this issue — the integrity of the functioning of the court system.”

David L. Brown, National Legal Journal editor in chief, said on July 26: “We believe the court, in attempting to correct a clerical error, has created a serious constitutional issue. … Obviously, it’s our view that the court made a mistake on [July 23], and we will continue to fight to ensure that First Amendment rights are protected.”

After Bartnoff lifted the order on July 30, Brown told The Washington Post: “We have won our fight.”

The U.S. Supreme Court has never upheld an order prohibiting a media outlet from publishing information. Nearly 40 years ago, the court refused to block The New York Times and The Washington Post from publishing what came to be known as the Pentagon Papers, the Pentagon's secret history of the Vietnam War.