Monday, August 2, 2010;
THE UNDERLYING dispute over legal fees was never likely to lead the evening news. But a judge's extraordinary -- and extraordinarily bad -- decision to prohibit a newspaper from writing about a key part of the case unnecessarily triggered a constitutional showdown.
The controversy began when a reporter for the National Law Journal (NLJ) went to D.C. Superior Court to research a lawsuit filed by Hogan Lovells. The law firm alleges that a former client, POM Wonderful, the maker of pomegranate drinks and products, had failed to pay some $660,000 in legal fees. The reporter copied documents in the public court file and traipsed back to the newsroom.
But on July 23, on the eve of publication, D.C. Superior Court Judge Judith Bartnoff banned NLJ from publishing the identity of a federal agency that is investigating POM and details of Hogan's work on behalf of POM in that matter. The reason: Judge Bartnoff had issued an order sealing documents that contained such information; her order was never fully implemented, and at least some of those documents were available for public consumption.
Judge Bartnoff abruptly reversed herself on Friday after POM withdrew its request to prevent publication of the full facts. The controversy may have been diffused, but it must not go unnoticed. (The Washington Post Co. was part of a brief filed on Friday in support of NLJ.)
Judge Bartnoff, who has earned high marks during her 16 years on Superior Court, was understandably perturbed that sealed documents made their way into the public docket, but her remedy was way out of bounds and should not be replicated. The Supreme Court has ruled that media outlets cannot be barred from publishing truthful information that was obtained legally unless the material could endanger national security. Even then, the court has been loath to prohibit publication of such things as the Pentagon Papers, which revealed classified information about the Vietnam War. There were never such concerns in the POM case. Yet the judge ruled that the need to protect the integrity of the court justified forbidding the news organization from publishing all of the facts. "If I am throwing 80 years of First Amendment jurisprudence on its head, so be it," Judge Bartnoff said, according to an account in the NLJ.
Decisions to place court information out of public reach should be rare and done only when the interests of justice strongly outweigh the public's right to know. Judge Bartnoff and Superior Court officials should review this matter to determine why the sealing order was not properly enforced. But trampling on the First Amendment must never be the solution.