Judge Reverses Prior Restraint Order After Media Companies File Brief
by Matthew L. Schafer
Note: This report originally appeared in the media blog Lippmann Would Roll.
On Friday, D.C. Superior Court Judge Judith Bartnoff lifted a restraining order she had placed to prevent the National Law Journal from publishing information in an article relating to an ongoing federal investigation of the juice company POM Wonderful.
The information that Judge Bartnoff sought to prevent the NLJ from publishing and that POM Wonderful also wanted sealed were details relating to an investigation of POM over $600,000 of legal bills it had not paid. The judge’s order amounted to prior restraint, and was most likely a violation of the First Amendment and would not have stood on appeal.
“If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” Bartnoff said upon issuing the order preventing the NLJ from publishing the information it gathered from public court documents that were supposed to be sealed, but had not been due to an error by the court.
“Specifically, we are not allowed to name a government agency conducting a regulatory inquiry into one of the subjects of the article, POM Wonderful,” the NLJ wrote upon publishing a redacted version of the article on July 26. “We fought this order vigorously in court; we thought and continue to think that it is a violation of the First Amendment.”
On July 30, The Washington Post, The American Society of News Editors, The Associated Press, The Reporters Committee for Freedom of the Press, NPR, Gannett Newspapers, Dow Jones & Company, the Society of Professional Journalists, and The New York Times filed an amicus brief (friend-of-the-court brief).
“Government censorship of the press in the form of a prior restraint on publication constitutes ‘the most serious and the least tolerable infringement on First Amendment rights,’” the news organizations argued.
Shortly after the brief was filed, Judge Bartnoff withdrew her order, perhaps after she realized that the United States’ Supreme Court has never upheld an order which resulted in prior restraint.
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