The National Law Journal Files Appeal in First Amendment Fight

By Mike Scarcella

The National Law Journal early Wednesday asked a D.C. appeals court to strike down a restraining order that blocks the newspaper from publishing details about a regulatory investigation involving juice maker POM Wonderful.

In emergency papers filed at 3 a.m. at the D.C. Court of Appeals, lawyers for the NLJ asked the court to dissolve the order, citing First Amendment concerns. The order was issued by a D.C. Superior Court judge on July 23.

At issue is the identity of the federal regulatory agency that is investigating POM. The newspaper obtained the name of the agency while reporting on a fee dispute between the juice maker and Hogan Lovells. Hogan represented POM during the regulatory inquiry. POM, a private company based in Los Angeles, allegedly owes Hogan Lovells more than $666,200 in attorney fees and expenses.

D.C. Superior Court Judge Judith Bartnoff determined the identity of the regulatory agency--and the substance of the investigation--was subject to a July 9 sealing order that the clerk's office failed to execute. At a hearing July 23, Bartnoff said the ability of the court to maintain the integrity of its docket trumps the paper's First Amendment rights to publish the information. Bartnoff granted POM¹s request for a temporary restraining order. Earlier in the case, Hogan Lovells fought POM's effort to seal records.

Bruce Brown and Laurie Babinski of Baker Hostetler filed the appeal on behalf of the NLJ early Wednesday. No hearing date was immediately set. Click here for a copy of the appellate papers.

"Previous prior restraint litigation conducted at the highest levels of the nation's judiciary has rejected attempts to enjoin publications alleged to harm national security and the fair trial rights of criminal defendants," Brown, a Baker Hostetler partner in Washington, said in court papers. "By contrast, the prior restraint in this case was obtained by a privately held beverage manufacturer to prevent the public from learning the identity of the regulatory agency that is investigating the company."

Brown said the granting of the restraining order is "plain constitutional error and must be reversed."

At Friday's hearing, Bartnoff said the public interest in the publication of court records is second to the interest the court has in maintaining the integrity of its docket. The judge said litigants must be able to rely on the court to do what it says it is doing. Bartnoff blamed administrative errors for the fact the records the NLJ obtained were not sealed. Bartnoff issued the restraining order shortly before the newspaper's Friday deadline.

"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."

POM's attorney, Barry Coburn of Washington's Coburn & Coffman, said at the hearing there is "no serious question" that Bartnoff has a right to make enforcement of her court orders a reality. "That trumps any conceivable First Amendment right that this publication has in this instance because we are talking about sealed material," he said. Coburn was not immediately reached this morning by e-mail and mobile phone.

None of the documents the NLJ obtained in the fee suit were marked as sealed, according to the appellate papers. The information regarding the identity of the regulatory agency was "contained throughout" the court papers that the NLJ reporter, Jeff Jeffrey, viewed, printed and paid for at the clerk's office.

The U.S. Supreme Court has never upheld a prior restraint even in interest of national security or the Sixth Amendment right to a fair trial, lawyers for the NLJ said in the D.C. Court of Appeals papers. Commercial business interests do not support a prior restraint, the attorneys said.

"The harm that POM asserts--that agency policy provides for the agency, but not a company that is the subject of an inquiry or a third party, to keep a regulatory inquiry non-public while it remains in the investigative stage--shrinks in comparison to the much more serious constitutional and national security interests that the Supreme Court has repeatedly found insufficient to justify the imposition of a prior restraint on the exercise of First Amendment rights," Brown said in court papers.

Among the cases the NLJ lawyers cite in the papers is New York Times Co. v. United States, the famous "Pentagon Papers" case from 1971 where the government sought to block publication of a top secret government study of the Vietnam War.

"New York Times forecloses any argument that POM's interest or the judiciary's interest in seeing its sealing orders made effective supports the prior restraint in this case," Brown said.

Brown also cited cases that said the inadvertent disclosures of information by a court or public official "does not permit a second mistake, this time of constitutional magnitude, of imposing liability for publication of the information."

"The public interest lies in dissolving the temporary restraining order and permitting The National Law Journal to continue to do what it and other publications covering the legal system do on a daily basis--provide their readers with information about the important business of the nation's courts," Brown said.

Comments

[Ronald J Riley]

I due time a higher court will spank Bartnoff.

Ronald J Riley