By Mike Scarcella
A D.C. Superior Court judge on Friday blocked The National Law Journal from publishing information from court records about a regulatory investigation into juice maker POM Wonderful.
An NLJ reporter had legally obtained the information from court files, but the judge, Judith Bartnoff, ruled the records should have been under seal. She issued a temporary restraining order just before the paper’s deadline on Friday to block publication of the information.
Attempts to restrain a publisher are exceedingly rare. But Bartnoff said that the court’s interest in maintaining the integrity of its docket trumped First Amendment arguments.
The NLJ reviewed the records for an article about an ongoing battle over legal fees between POM and Hogan Lovells. The newspaper first viewed the docket weeks before the sealing order and printed copies of publicly available documents on July 15.
A lawyer for POM filed for a temporary restraining order July 22 in Superior Court to block the NLJ and its parent company, ALM Media, from naming the regulatory agency and from writing about the substance of the investigation.
After more than two hours of argument on July 23, Bartnoff issued a 10-day temporary restraining order against the paper. Bartnoff allowed the paper to publish the fact POM is a target of a regulatory inquiry, but the judge said the paper is banned from naming the agency.
“If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” Bartnoff said at the hearing. “None of that First Amendment jurisprudence, to my knowledge, is dealing with this issue—the integrity of the functioning of the court system.”
Bartnoff set Aug. 6 for a status hearing to determine whether the temporary restraining order will be extended. Lawyers for NLJ are planning to challenge the judge’s order this week. A copy of the article, written by NLJ reporter Jeff Jeffrey, and the accompanying note from editor in chief David L. Brown are here.
“We believe the court, in attempting to correct a clerical error, has created a serious constitutional issue,” Brown said Monday. “Obviously, it’s our view that the court made a mistake on Friday, and we will continue to fight to ensure that First Amendment rights are protected.”
At issue in the dispute is information the paper obtained from records that Bartnoff on July 9 ordered sealed. The records are part of a civil suit in which Hogan Lovells is suing POM for payment of more than $666,000 in attorney fees and expenses. The bulk of the money that is allegedly owed stems from the law firm’s representation of POM in the ongoing federal regulatory inquiry, Bartnoff said at the hearing Friday.
Blaming a clerical error and an “administrative screw-up,” Bartnoff said Friday that the records the newspaper obtained had not been properly sealed, allowing the public access to the information. Bartnoff’s July 9 sealing order was pronounced from the bench at a hearing that was closed to the public. She followed up with a written order on July 20.
Bartnoff, a former Patton Boggs partner and Justice Department official who has served on the bench since 1994, kept Friday’s hearing open to the public—despite a request from POM’s counsel, Barry Coburn of Washington’s Coburn & Coffman, to close the proceeding.
The request for a temporary restraining order remains under seal. At the hearing, Coburn and a lawyer for The National Law Journal, Bruce Brown of Baker Hostetler in Washington, did not identify the agency in question.
Coburn did not try to block the paper from writing about the fee dispute with Hogan Lovells. “From our point of view, we’re obviously not happy that this would become a public matter. But we acknowledge we have no right to ask that it not happen. They have every right to report on the existence of a fee dispute and the fact there is some bile that arose between the parties,” Coburn said Friday. “That’s all fair game.”
At Friday’s hearing, Coburn took only a few minutes at the start of the proceeding to make his case. “There’s no serious question that the court has a right to do what it needs to do to make its orders a reality. That’s fundamentally what this case is about,” he said. “That trumps any conceivable First Amendment right that this publication has in this instance because we are talking about sealed material.”
Bartnoff and Brown argued back and forth for the bulk of the hearing.
At times the dialogue was heated. The judge at one point said Brown was “throwing those words around” about prior cases in which national security was not a high enough interest for a court to prohibit a paper from publishing information that was in the public domain.
Lynda Resnick, co-founder of POM, is linked to the leading U.S. Supreme Court case barring prior restraint against national security claims, New York Times Co. v. United States (1971). Resnick’s then-boyfriend, Anthony Russo, persuaded her to let him and his colleague Daniel Ellsberg use a Xerox machine at her advertising agency to copy the Pentagon Papers, according to The Washington Post. Resnick ended up as an unindicted co-conspirator, according to the Post.
At another point in Friday’s hearing, Brown argued that NLJ is not a party to the sealing order in the fee suit. “It isn’t that you are not bound by it, sir,” the judge responded. “It’s an order directing the way the court maintains its docket. The court has an institutional interest in maintaining the integrity of the docket once the docket has been ordered to be sealed. That’s the problem here.”
The U.S. Supreme Court, Brown said, has never upheld the kind of prior restraint sought here. The judge asked him to name a case specifically addressing prior restraint of a newspaper intending to publish information from a record a court had sealed. He did not.
Brown did point to a case where the Supreme Court refused to allow a privacy action against a broadcaster that had published a rape victim’s name. He also a cited a speech by the late Supreme Court Justice Potter Stewart at Yale Law School about the battle between the press and government over secrets. “The government is entitled to keep a secret but the press is entitled to publish what it learns,” Brown said, quoting Stewart.
“He wasn’t talking about orders to seal,” Bartnoff responded.
A temporary restraining order, Bartnoff said, does not harm NLJ because the records in question could be unsealed at some point in the future. “There is no irreparable injury to you because, if the court determines it can be published at some later time, you can publish it,” the judge said.
“Your honor, for the record, there is irreparable injury the minute you sign the TRO because our First Amendment rights have been interfered with,” Brown replied.
“That may be, but I think it’s a balancing,” Bartnoff said. “I understand that prior restraints are certainly not favored, and I am not comfortable doing it. I understand that there is a heavy presumption against them, but it is not absolute presumption against them.”
The judge said the First Amendment analysis is “very different” when it comes to information the court had ordered sealed.
“Your honor, I would ask why is it different?” Brown said.
“Because of the court’s interest in implementing its orders,” Bartnoff said. “If you don’t appreciate that, that’s a serious problem.”
During one exchange, Bartnoff asked Brown why the paper wants to publish the identity of the agency that has an open inquiry targeting POM.
“Publication of truthful information,” Brown said.
“Fail on that,” Bartnoff responded.