Courts issue temporary prior restraints against publishers

From the Fall 1999 issue of The News Media & The Law, page 35.

In three recent cases in Michigan and New York, federal and state courts chose to ignore — at least temporarily — the longstanding prohibition on prior restraints against the news media.

In two of the cases, the court dissolved the orders and allowed the media organizations to publish the information after holding a hearing. In the third case, Playboy magazine changed the cover of a future issue because a judge ruled that the language in a proposed headline violated the trademark rights of the World Wrestling Federation.

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Judge rejects restraint on web site’s use of Ford papers

Saying that the case presented a clash between the First Amendment and protection of commercial freedom, a federal trial judge in Detroit ruled in early September that a student could continue to post internal Ford Motor Co. documents on his web site.

“In this case, the battle is won by the First Amendment,” Judge Nancy Edmunds wrote in denying Ford’s attempt to keep Robert Lane from using, copying, or disclosing company trade secrets. Lane runs a web site, blueovalnews.com, devoted to news about Ford and its products.

In discussing the history of prior restraints against the media, the court refused to distinguish between national newspapers and web sites, finding that “nothing in our jurisprudence suggests that the First Amendment is circumscribed by the size of the publisher or his audience.”

The court rejected Ford’s argument that the court should consider Lane’s conduct in obtaining the documents and his threats to sell the documents. “In the absence of a confidentiality agreement or fiduciary duty between the parties, Ford’s commercial interest in its trade secrets and Lane’s alleged improper conduct in obtaining the trade secrets are not grounds for issuing a prior restraint,” the court wrote.

Lane, a nursing student, initially informed Ford in October 1998 that Ford employees had provided him with photographs and documents that concerned Ford products. After initially agreeing to obtain Ford’s permission before posting any of the material on his web site, Lane changed his mind and began publishing internal memoranda, agendas, and engineering blueprints that concerned Ford’s existing and future products. Lane also planned to sell some of Ford’s engineering blueprints, according to the court.

When Ford first threatened legal action, Lane responded by posting 40 additional Ford documents online, “including materials with high competitive sensitivity.” Ford then filed a lawsuit in federal court in Detroit and requested a temporary restraining order against Lane on Aug. 25. That same day, Presiding Judge Robert Cleland granted a temporary restraining order, which stated in part that Lane was restrained from “using, copying or disclosing any internal document of Ford Motor Company.” (Ford Motor Co. v. Lane)

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Court lifts order restraining reports on murder case

A New York trial court reversed course in mid-August and vacated its order barring a newspaper from publishing information about the sworn statements of a woman charged with murder.

The court’s ruling lifted a temporary order that had prohibited the Tioga County Press & Sun-Bulletin from publishing any information obtained from a court file about the pending murder case against Eunice Baker. The day after the court signed the order, the newspaper published a story detailing the contents of Baker’s sworn statements because it did not yet know of the prohibition, according to affidavits filed with the court.

In deciding to vacate what it admitted was a prior restraint on publication, the court found that Baker had not sought to keep any documents under seal, the reporter obtained the judicial file lawfully, the newspaper had not knowingly violated the temporary order, Baker had several ways to minimize any negative pretrial publicity resulting from publication, and media other than the Press & Sun-Bulletin could use the same material.

According to reporter Connie Nogas’s affidavit, the Tioga County clerk handed Nogas the clerk’s file for the pending murder case against Baker on Aug. 11. The file contained three of Baker’s sworn statements, according to Nogas.

On that same day, Baker filed a motion requesting that the court prohibit the Press & Sun-Bulletin from publishing any stories about Baker’s sworn statements. Without notifying the newspaper of Baker’s motion or giving it an opportunity to respond, the court signed a temporary order later on Aug. 11 barring the Press & Sun-Bulletin from “publishing or otherwise divulging to the public any statements or other evidence obtained by it from judicial files concerning the prosecution” of Baker.

According to affidavits from Nogas and the executive editor of the Press & Sun-Bulletin, neither Nogas nor her editors knew of the temporary order when the newspaper published Nogas’s story about the sworn statements on Aug. 12. (In the Matter of Eunice Baker)

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Playboy changes cover after court finds infringement

A federal judge in New York City ruled in late September that Playboy magazine needed to change a headline on a October 1999 special issue to avoid infringing on the intellectual property rights of the World Wrestling Federation.

Playboy’s cover had featured former WWF wrestler Rena Mero, whose wrestling name was Sable. One of the headlines on the issue had read, “The Woman You Loved as Sable in the Raw.” The WWF successfully argued that Playboy was infringing on the WWF’s intellectual property rights to “Sable” and “In the Raw.” The WWF produces a cable television program entitled “Monday Night Raw.”

After a lengthy hearing, federal District Judge Loretta Preska ordered Playboy to use a different headline that does not use either term. Five days later, Playboy issued a news release with a photo of the new cover that featured Mero in a different pose and with the new headline, “Rena Mero: Formerly the Character Sable, Her Complete Sexy Story in Words and Photos.”

Playboy attorney David Francescani had been quoted by the Associated Press on the day that Preska issued her decision as saying that the judge was forcing the magazine to reprint 500,000 copies of the issue.

The WWF filed its lawsuit in late September, claiming that Playboy was “brazenly flaunting [WWF’s] valuable intellectual property rights.” The New York Times quoted Jerry McDevitt, a lawyer for the WWF, as saying that Playboy’s continued use of the Sable character was the equivalent of “using the Playboy bunny to sell [WWF] goods.” (World Wrestling Federation v. Playboy)