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From AJR,   May 1998  issue

A "Sealed" Document In a Public File?   

A clerk makes a mistake, and a judge holds a newspaper and reporter in contempt.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

When a judge says that holding a reporter in criminal contempt "is not about the freedom of the press," look out.

Residents of a trailer park sued Conoco Oil in federal court in Raleigh, North Carolina, claiming the company had contaminated their water supply. In September 1997, after the jury found Conoco liable, the parties agreed to settle. The terms were sealed by the presiding judge.

ýn mid-October, Kirsten Mitchell, a reporter for the Wilmington Morning Star, asked the court clerk for the public court file, which contained the settlement agreement in an unsealed envelope. It was labeled, "CONFIDENTIAL SETTLEMENT AGREEMENT FILED UNDER SEAL TO BE OPENED ONLY BY THE COURT."

Mitchell examined the agreement, noted the settlement figure and reported it to her editors. It matched information already obtained from confidential sources by another reporter. The newspaper published the amount of the settlement the next day, stating that the figure had been confirmed by a court document.

Conoco asked the court to find the reporters and the newspaper in contempt. Mitchell argued that she had assumed the settlement must have been unsealed because it was in the public court file. But Judge W. Earl Britt rejected her defense, fining her $1,000 for criminal contempt and holding both Mitchell and the Morning Star in civil contempt. He ordered them to pay Conoco $500,000, plus costs and attorneys fees. The paper is appealing the decision.

ëritt scolded Mitchell and the Morning Star for violating the order and for relying on the "clerk's inadvertence" as justification. He implied that they should have tried to determine whether the settlement actually had been unsealed.

But the U.S. Supreme Court has ruled that journalists have no obligation to ascertain whether a presumptively public file is really open to the public. In The Florida Star vs. B.J.F., it held that a newspaper cannot be sued for invasion of privacy for publishing the name of a rape victim taken from a crime report placed in the sheriff's department press room. Similarly, it vacated a Pennsylvania Supreme Court opinion holding a newspaper liable for publishing confidential wiretap transcripts mistakenly left in the public files in the district attorney's office. The state court ultimately ruled that once the transcripts were placed in an open file, even inadvertently, they were part of the public record.

Interestingly, while Judge Britt chastised Mitchell and her newspaper, he exonerated Cory Reiss, the reporter who relied on anonymous sources to sniff out the settlement figure. He observed that although Reiss may have used "badgering tactics" to get his story, he had not knowingly violated the secrecy order by doing so.

If the newspaper had simply stuck with Reiss' information, Britt might not have found it in contempt. But including the confirmation from the file added "the imprimatur of the court's credibility," he said, undermining Conoco's bargaining position in numerous similar cases it is defending.

Why would a judge condone publishing unverified information from anonymous sources but punish a reporter who relied on government documents to confirm it? It's clear to me that, to Britt, "the respect that any citizen, individual or corporate, should have for an order of the court" is more important than freedom of the press.

We have been down this road before. In 1994, when federal District Judge William A. Hoeveler held CNN in contempt for airing tape recordings of telephone conversations between imprisoned Panamanian leader Gen. Manuel Noriega and his attorneys after the judge had ordered it not to, he wrote that "defiance of court orders and, even more so, public display of such defiance cannot be justified or permitted."

The relationship between journalists and judges is tricky. Journalists rely on the courts to strike down unconstitutional statutes dreamed up by the legislative branch, curb the indiscriminate use of subpoenas by prosecutors and private litigants, and reduce out-of-control libel judgments imposed by juries driven more by animus than by legal principle. But then they enrage judges by reporting leaked information about criminal defendants, insisting on bringing cameras into the courtroom, and even defying court orders.

Many judges see the news media as the ultimate loose cannon, influential and powerful, yet unpredictable and accountable to no one. It is not surprising that a judge who expects and receives obedience and deference as a matter of course would be tempted to rein in the press when presented with the opportunity.

Just don't try to convince us that doing so "is not about the freedom of the press," Judge Britt. l