Privacy -- Information in the public sphere -- Corporate information

Privacy

Private individuals occasionally try to convince reporters to refrain from publishing information that might be embarrassing. Sometimes these people have sought court orders barring publication, though they are typically unsuccessful. In one celebrated case, Frank Sinatra sought a restraining order to stop author Kitty Kelley from conducting interviews and publishing her “unauthorized” biography of him. He later withdrew his lawsuit.¹¹

Generally, courts are reluctant to issue prior restraint orders, particularly when the justification for them is merely that the material might be libelous or invade someone’s privacy.¹² In December 1994, the U.S. District Court in New York City lifted a temporary restraining order issued two days earlier and denied a request by Paula Jones, who had accused President Bill Clinton of sexual harassment, for a preliminary injunction against Penthouse magazine, which printed nude pictures of her in its January 1995 issue. The court ruled that the photographs had a relationship to an editorial questioning her credibility, and that the matter was in the public interest.¹³

The unauthorized publication of sexually explicit images has resulted in a significant amount of litigation.  In 1998, a U.S. District Court in California issued a preliminary injunction prohibiting the publication, distribution or other dissemination of a sexually explicit videotape of entertainers Pamela Anderson and Brett Michaels on multiple grounds, including both copyright and privacy theories.¹⁴ In contrast, the U.S. Circuit Court for the Sixth Circuit stayed a U.S. District Court’s injunction prohibiting a website’s publication of nude images of a news reporter. The unpublished decision by the Sixth Circuit stated that the injunction was a prior restraint unlikely to survive constitutional analysis.¹⁵

Information in the public sphere

To the extent information is revealed in open court, it cannot be censored. For example, if jurors are identified in open jury selection proceedings, the court cannot restrain the press from publishing the identity of jurors because such information is part of the public record.¹⁶

In Arkansas Democrat-Gazette v. Zimmerman, the Arkansas Supreme Court held that an order prohibiting publication or distribution of the names or pictures of a juvenile defendant, the victim, and their families was an overbroad prior restraint of the press in violation of the First Amendment. Two critical factors influenced the court’s decision. First, the juvenile proceedings were open to the public and the media. Second, the identity of the parties was already in the public domain prior to the judge’s order. As a result, these factors outweighed the state’s interest in confidentiality of the parties. While the judge could prohibit photographs in areas adjacent to the courtroom, she could not prohibit photographs outside the courthouse, including public streets and sidewalks.¹⁷

In Freedom Communications, Inc. v. Superior Court¹⁸, the California Court of Appeals overturned a trial court order that prohibited the Orange County Register from reporting on witness testimony in a case in which the newspaper was a party.  The appellate court determined that the trial court’s order was an unjustified prior restraint under both the First Amendment and the California Constitution.  More recently, another California Court of Appeals reached a similar conclusion in an unpublished decision in Los Angeles Times Communications, LLC v. Superior Court.¹⁹  The appellate court overturned, as an invalid prior restraint, the trial court’s order prohibiting the publication of in-court photographs of a criminal defendant that had been taken with the court’s consent.

Corporate information

Corporations sometimes attempt to restrain publication of information about their activities.

Businesses have been able to secure injunctions to protect trade secrets, although courts usually require that there be some special relationship between the company seeking the injunction and the party being enjoined. However, courts repeatedly have ruled that a corporation’s mere assertion that publication will put it at a competitive disadvantage is inadequate to overcome the heavy presumption against prior restraints.

For example, in 1994, Supreme Court Justice Harry A. Blackmun stayed an order that prevented the news program “48 Hours” from airing the tape of a meatpacking plant it obtained from an employee who wore a hidden camera during his work shift. Justice Blackmun, acting as Circuit Justice for the U.S. Court of Appeals (8th Cir.), wrote that restraining orders on the media are permitted only in exceptional cases where “the evil that would result is both great and certain and cannot be militated by less intrusive measures.” In this case, the argument that the broadcast could result in significant financial harm to the company was too speculative to support a prior restraint. The appropriate remedy would be a subsequent suit for civil or criminal damages, not a prior restraint, he concluded.²⁰

In a more recent example, the New Hampshire Supreme Court reversed a trial court’s order that prohibited a website operator from republishing material related to a chart purportedly containing a mortgage lender’s confidential loan information.²¹ The court ruled that the trial court’s order was an invalid prior restraint because the business’ privacy and reputation concerns did not justify the “extraordinary remedy” of a prior restraint.

With varying outcomes, trial courts have also on occasion issued prior restraints to prohibit the publication of information contained in sealed court records that falls into the hands of reporters.  An Indiana appellate court in 1995 upheld a trial court’s order prohibiting a newspaper from publishing judicial records about a third-party business that were supposed to be sealed, but that a reporter had obtained from the court. The appellate court agreed with the trial court’s reasoning that such an order was necessary to “preserve the integrity of the judicial system.”²²

In contrast, the U.S. Court of Appeals in Cincinnati (6thCir.) overturned orders by an Ohio U.S. District Court prohibiting Business Week magazine from publishing information from sealed pretrial discovery documents containing business information, which it had received from an attorney at a law firm involved in the case.  The Sixth Circuit ruled that the factual evidence did not justify censoring the news media. The court held that the trial court failed to make any of the requisite findings that irreparable harm to a “critical government interest” would occur if publication was not stopped. Moreover, although temporary restraining orders can be used in many situations to maintain the “status quo” of a case, the court explained, the status quo for the media is to publish news promptly.²³       

More recently, a District of Columbia Superior Court withdrew its order prohibiting The National Law Journal from publishing information about the juice company POM Wonderful that was supposed to be sealed, but that a reporter had obtained from the court file. After The National Law Journal appealed the order, the company withdrew its request for the prior restraint and the court removed the order.²⁴

Notes:

11. Sinatra v. Kelley, No. WECO 82-657 (Cal. Sup.Ct., filed Sept. 21, 1983).

12. In re Providence Journal, 820 F.2d 1342 (1st Cir. 1986), cert. denied, 485 U.S. 693 (1988); see also, Schlessinger v. Internet Entertainment Group, No. 98-8627 AHM, (Cal. Dist. Ct. W. Div. 1998) (website owner not restrained from publishing nude photos of syndicated radio therapist because the pictures had been viewed about 14, 000 times on the site and it would be impossible to order a recall).

13. Jones v. Turner, 23 Media L. Rep. 1122 (S.D.N.Y. 1994). But see Pitt v. Playgirl Inc., BC 178 503 (Cal. Sup. Ct. La. Co. 1997) (ordering Playgirl magazine to discontinue distribution of its magazine containing nude photos of actor Brad Pitt).

14. Michaels v. Internet Ent. Group, Inc., 5 F. Supp.2d 823 (C.D. Cal. 1998). Notably, a different judge in the same court ruled that separate defendants were not liable for publishing private, sexually explicit photographs involving Pamela Anderson. See Lee v. Penthouse Int’l Ltd., 25 Med. L. Rep. 16, 1997 WL 33384309 (C.D. Cal. 1997).]

15. Bosley v. WildWetT.com, 32 Med. L. Rep. 1641, 2004 WL 1093037 (6th Cir. 2004) (unpublished).

16. State v. Neulander, 801 A.2d 255 (N.J. 2002), cert. denied Philadelphia Newspapers, Inc. v. New Jersey, 123 S.Ct. 1281 (2003).

17. Arkansas Democrat-Gazette v. Zimmerman, 20 S.W.3d 301 (Ark. 2000).

18. 83 Cal. Rptr. 3d 861 (Cal. App. 2008)

19. No. B226377, 2010 WL 3260056 (Cal. App. Ct. Aug. 19, 2010)

20. CBS Inc. v. Davis, 510 U.S. 1315 (1994).

21. Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 999 A.2d 184 (N.H. 2010)

22. Howard Publ’ns., Inc. v. Lake Michigan Charters, Ltd., 649 N.E.2d 129 (Ind. App. 1995). By an evenly-split vote, the Indiana supreme court declined to hear the appeal. Howard Publ’ns., Inc. v. Lake Michigan Charters, Ltd., 658 N.E.2d 582 (Ind. 1995).

23. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996).

24. POM Wonderful v. ALM Media Props., No.2010 C.A. 005533 (D.C. Super. 2010)