A group of media companies and First Amendment advocates want an appeals court to reverse a restraining order that blocks The National Law Journal from publishing information about a federal regulatory investigation of juice maker POM Wonderful.
On July 30, Williams & Connolly filed an amicus brief supporting NLJ's appeal on behalf of The Washington Post, The New York Times, The Reporters Committee for Freedom of the Press, The American Society of News Editors, The Society of Professional Journalists, The Associated Press, Dow Jones, Gannett and NPR.
The National Law Journal is challenging the restraining order Judge Judith Bartnoff of D.C. Superior Court issued July 23, shortly before the paper’s deadline. A status hearing in front of Bartnoff is scheduled for 4 p.m. today. The D.C. Court of Appeals, meanwhile, has taken no action on the emergency appeal filed by NLJ on July 28.
The order prohibits the newspaper from disclosing the identity of the federal regulatory agency that is investigating POM. That information was contained in publicly available court papers in an attorney fee dispute. Hogan Lovells is suing POM to recover more than $666,200 in attorney fees and expenses. Click here for background on the underlying case.
Williams & Connolly partner Kevin Baine and associate Carl Metz filed the amicus brief (.pdf).
“The prior restraint in this case is particularly suspect because it seeks to enjoin publication of information obtained from one of the most common sources of news—a public court file,” the brief said. “It is an extraordinary thing for a court to prohibit publication of information obtained from its files, and it is no excuse that the information should have been sealed in the first place.”
Bartnoff, the brief said, “evidently issued the prior restraint to correct a mistake.” The court’s intent to correct a mistake is not enough to justify a restraining order, the brief states.
Once information is in the public record and a person sees it, “the rules change—for good reason,” the brief states. “There is nothing more foreign to a system of free expression than an order prohibiting a citizen from saying what he knows or from publishing what he learns.”
The lawyers cite cases in which courts held that the press cannot be punished for publishing information the government failed to protect and so the “press cannot be enjoined from publishing information in the first place.”
If prior restraints could be used to “cure” the inadvertent release of information, the restraints would be common, the brief said.