IN DALLAS, Texas, last Friday, Judge Joe Fish ordered The Wall Street Journal not to publish an article it had scheduled for this morning's editions. Early Monday afternoon, after being educated by the Journal's lawyers, Judge Fish changed his mind and withdrew the order. He should have -- he was dead wrong the first time. But the fact that he was willing to flirt, even ever so briefly, with plain old-fashioned censorship is a sign of how much has changed -- for the worse -- in the courts.
The article over which Judge Fish stumbled apparently contains information from a report made by a Dallas law firm on the financial transactions of the OKC Corp. Publication of that information, the company had told the judge, would breach its confidential relationship with its lawyers and cause it "irreparable injury. The Journal had scheduled the article for the morning OKC's stockholders were also scheduled to vote on a proposal that it sell its assets and go out of business.
Just what led Judge Fish to think it was part of his job to decide what readers of The Journal should see this morning is not clear. But it is worth noting that as recently as a decade ago, an order such as that he signed would have prompted a national explosion. There was still no precedent then for a judge's telling a newspaper what it might print, and the atmosphere of the law was clearly inhospitable to such an idea. But then the Supreme Court said in the Pentagon Papers case that judges can sometimes block publication of certain kinds of information. The justices, to be sure, were talking only about national security information, but the tacit approval they gave to censorship under certain circumstances changed the judicial atmosphere drastically.
Judge Fish is not the only lower-court judge to have perceived this change. The idea that judges can properly tell the press what not to print quickly spread from security matters to information about criminal trials, and now here it comes to "confidential" corporate reports. The genie named censorship is out of the bottle that held it for more than two centuries, and it is going to take much hard work, much "educating" of lower-court judges, and thousands of dollars in legal fees to bring it under control again.