First Amendment Handbook [Back to contents page] [RCFP Home Page]

Prior Restraints: 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 the U.S. Court of Appeals in St. Louis (8th Cir.) struck down a 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. Supreme Court Justice Harry A. Blackmun, who was then Circuit Justice for the federal Eighth Circuit, 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.¹⁵

In September 1995, a U.S. District Court in Ohio ordered Business Week magazine not to publish information from sealed pretrial discovery documents containing business information, which it received from an attorney with the firm representing one of the litigants. The judge said that Business Week knew the documents were under seal when it obtained them. He refused to lift the restraint even after unsealing the documents several weeks later.¹⁶ But in 1996, the U.S. Court of Appeals in Cincinnati (6th Cir.) ruled that evidence did not justify censoring the news media. The appellate 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. 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.¹⁷

Notes

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

16. Procter & Gamble Co. v. Bankers Trust Co., 900 F. Supp. 186 (S.D. Ohio 1995).

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

Next section: Prior Restraints: Statutory restraints