The Washington, D.C., judge who last week issued a prior restraint against The National Law Journal today withdrew that restraining order at the request of juice maker POM Wonderful, which had initially sought to keep the newspaper from publishing information obtained from a public court file that was supposed to have been sealed.
D.C. Superior Court Judge Judith Bartnoff on July 23 issued a temporary restraining order against the news organization, preventing it from naming a regulatory agency that was investigating POM Wonderful, a former client of the law firm Hogan Lovells. The Journal had been planning on publishing a story regarding the fee dispute that had arisen between Hogan and POM after the beverage maker hired the firm to represent it during the regulatory investigation. The documents revealed that the agency was the Federal Trade Commission.
"Although we believe very strongly in our right to keep confidential documents shielded by attorney-client privilege, we never intended our protected communications with a governmental regulatory agency and a private law firm to become a First Amendment issue," POM said in a statement.
The newspaper had earlier this week appealed the decision to the D.C. Court of Appeals, arguing that journalist James Jeffrey obtained the name of the regulatory agency by reviewing public court records in the case. Jeffrey allegedly contacted the attorney for POM in order to give them the opportunity to comment. POM then sought the restraining order, arguing that the records reviewed by Jeffrey were subject to sealing orders that the court had not implemented.
“A prior restraint cannot be justified on the grounds that the information to be published was contained in a public court file due to the clerk’s failure to seal documents,” wrote the Journal in its appeal. “Once information is in the public domain, it is an exercise in futility to try to reclaim the cloak of secrecy over it or punish its publication.”
The news organization also pointed out that alleged harm to a corporation’s commercial interests does not support a prior restraint and that other courts, and particularly the U.S. Supreme Court, have refused to impose prior restraints even when publishing the information at issue would implicate national security interests.
Any harm to POM as a result of publishing the name of the regulatory agency “shrinks in comparison” to the constitutional and national security interests that the Supreme Court has “repeatedly found insufficient to justify the imposition of a prior restraint,” said the Journal in its brief.
Nine other media organizations, including the Washington Post and The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in the case, emphasizing the right of the press to publish information lawfully obtained in the public domain.
“[T]here is a fundamental difference between keeping information secret and prohibiting publication of information that is no longer secret,” the media organizations stated in the brief. “A prior restraint is not a mere extension of a sealing order.”
The brief also stressed that prior restraints issued by the judiciary on the press or public were meant to be rare.
“There is nothing more foreign to a system of free expression than an order prohibiting a citizen from saying what he knows or publishing what he learns,” wrote the media coalition.