Law journal can publish information from court file

By Keith L. Alexander
Washington Post Staff Writer
Saturday, July 31, 2010; B01

A D.C. Superior Court judge abruptly lifted a temporary restraining order on Friday that had barred a legal journal from printing information it obtained from a court file, ending a dispute that legal observers said was destined to become one of the biggest First Amendment cases in years.

The battle began when a reporter from the National Law Journal was investigating a story about money owed to a District law firm by POM Wonderful, a health juice manufacturer.

According to court papers filed in the case, the law journal also discovered that the Los Angeles-based pomegranate juicer was being investigated by a federal agency. POM's attorneys sought an injunction to block the law journal from publishing the name of the agency or details about the investigation, and D.C. Superior Court Judge Judith Bartnoff issued the injunction.

The judge ordered sealed "any portion of the record that discusses the pending regulatory investigations." But a court clerk took several days to identify and seal the proper documents.

During the lag, the reporter from the law journal read the open court files, learned of the investigation and sought to publish the information. POM officials learned of the intent to write a story and asked the court for the temporary restraining order to block the journal from publishing the identity of the federal agency or information about its investigations.

After a heated hearing last week, Bartnoff issued the temporary restraining order barring publication.

Bartnoff sparred with the law journal's attorney, who argued that barring publication was a violation of the First Amendment. "In 80 years, the Supreme Court has never upheld the kind of prior restraint that's being sought here," the attorney, Bruce Brown, said at the hearing.

The judge was unmoved. "Look -- if I'm throwing 80 years of First Amendment jurisprudence on its head, so be it," she said. "But none of that First Amendment jurisprudence, to my knowledge, is dealing with this issue. The question is, what authority do you have for the proposition that the First Amendment trumps court orders sealing files?"

Bartnoff's restraining order was to remain in effect at least until another hearing, which had been scheduled for Aug. 6.

But on Wednesday, the law journal filed an emergency appeal, seeking to overturn Bartnoff's temporary restraining order. Then on Friday, nine media organizations, including The Washington Post, the New York Times, Dow Jones & Co., the Associated Press and the Reporters Committee for Freedom of the Press, filed a brief with the District's appellate court supporting the law journal's request.

By Friday afternoon, POM attorneys had asked Bartnoff to rescind the order. After hours of telephone calls between Bartnoff and attorneys for POM and the law journal, Bartnoff lifted the order that prevented the publication from identifying the agency, the Federal Trade Commission.

"We have won our fight," David L. Brown, editor in chief of the National Law Journal, said after the judge lifted the order. The publication is distributed to about 15,000 lawyers and judges.

"We have a fundamental right to publish information in a public record about court actions and government actions," Brown had said earlier in the week.

In a statement, POM spokesman Rob Six said the company never intended for its case to escalate into a fight over the First Amendment. "Although we believe very strongly in our right to keep confidential documents shielded by attorney-client privilege, we never intended our protected communications with a governmental regulatory agency and a private law firm to become a First Amendment issue."

Bartnoff's original decision angered many lawyers and media-rights advocates.

Douglass E. Lee, an Illinois-based lawyer who specializes in First Amendment issues, said the problem began when Bartnoff agreed to seal the documents. "This is not a private-dispute resolution. It's a taxpayer-funded . . . open public court system, and the media should have a right to know what's going on," he said.

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