Superior Court Judge took the rare step of ordering The National Law Journal not to publish information ahead of publication
The Washington Post Blog/ Commentary
July 26, 2010
By Mike Debonis
What should have been a boring trade-paper article about a pomegranate-juice company’s legal-fee dispute got a whole lot, er, juicier last week.
Superior Court Judge Judith Bartnoff took the rare step of ordering a newspaper not to publish information ahead of publication — a so-called “prior restraint.”
The story starts with National Law Journal reporter Jeff Jeffreyperusing court records and finding a lawsuit involving one of the city’s largest and best-known law firms — Hogan Lovells, formerly Hogan & Hartson. The firm in February sued POM Wonderful, makers of pomegranate juice, over $66,265 $666,265 in unpaid legal bills. Included in the court file were documents indicating why POM had run up those bills: The company had an “investigation or inquiry” pending with a regulatory agency.
But POM did not and does not want that fact publicized. The company’s lawyers moved to seal any documents referencing the investigation, which was granted. But the seal order, thanks to a clerical error, was not reflected to the court file that Jeffrey inspected, says NLJ editorDavid L. Brown. Jeffrey made copies of the documents in question and proceeded to report his story.
Then, last Thursday, NLJ learned that POM was asking Bartnoff to block publication of the sealed-but-not-sealed documents. So “we scrambled,” Brown says.
Bartnoff held a hearing Friday afternoon, just before NLJ’s deadline. The newspaper’s lawyer, Bruce D. Brown of Baker Hostetler (and a former reporter for NLJ precursor Legal Times), argued the case on First Amendment grounds. Though she did allow the paper to mention the existence of an investigation, Bartnoff wasn’t buying the broader constitutional concerns and ordered NLJ not to publish the agency’s name. “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” she said, according to NLJ’s account.
The result is the following editor’s note, appended to the top of Jeffrey’s story:
What appears here is not the full story. Minutes before our deadline Friday, [Bartnoff] signed a temporary restraining order against The National Law Journal enjoining it from publishing certain details that we legally obtained from court documents. Specifically, we are not allowed to name a government agency conducting a regulatory inquiry into one of the subjects of the article, POM Wonderful. We fought this order vigorously in court; we thought and continue to think that it is a violation of the First Amendment, and we are working on an appeal. Bartnoff, as she considered the order, said, ‘If I am throwing 80 years of First Amendment jurisprudence on its head, so be it.’ She said the court’s interest in maintaining the ‘integrity’ of its docket trumped the First Amendment concern. We strongly believe Bartnoff’s action harms the integrity of the court by placing process concerns over fundamental constitutional rights. Sadly, however, because of Bartnoff’s order, we were forced to scrub this article of any reference to the agency. We apologize to our readers for being unable to provide the fullest report possible.
Brown says Bartnoff’s ruling is a “constitutional train wreck.”
“Our problem,” he said today, “is that we don’t believe the judge should be in the position of telling the press or public when they’ve gone in good faith into a courthouse and looked at a public filing to go back and say you shouldn’t have seen that.”
Brown says they plan to appeal the decision.
The irony for POM is that the original NLJ article wouldn’t have been particularly concerned with the underlying conflict, Brown says, but rather would have hewed to the fee dispute. But after the legal wranglings, NLJ’s journalistic curiosities have been piqued.
“We’re certainly interested in what’s going on now,” Brown says.