The "Crime" of Asking for a Document   

Did a federal judge go too far when he imposed prior restraint on Business Week?

Is it a crime for a journalist to ask for a document?

A federal district judge in Cincinnati said it was illegal when a Business Week reporter obtained copies of sealed documents from the law firm representing Bankers Trust, defendant in a civil lawsuit filed against it by Procter & Gamble. Judge John Feikens was so incensed by this newsgathering technique that he claimed it justified his order forbidding the magazine to publish an investigative piece based on the documents.

In an opinion issued in October, Feikens initially found that another judge had properly sealed the documents exchanged by the courtroom rivals before the trial. Why? Because, Feikens said, confidentiality encouraged a more efficient pretrial discovery process without forcing the court to get involved. This he characterized as "a prerequisite in our modern adversarial process."

Having decided that expediency justifies secrecy, Feikens went on to rule that it also justifies prior restraint on the press. Business Week, the judge found, committed the "crime" of continuing to pursue court documents even though it may have known that they had been sealed by the court.

Of course Business Week was not a party to the lawsuit, let alone bound by the secrecy order. But that didn't matter to Feikens. "I cannot permit Business Week to snub its nose at court orders," he wrote. "The integrity of a court and the entire judicial system requires that its orders be acknowledged and obeyed."

Ironically, Business Week did obey the one order in the case that unquestionably applied to the magazine. When Feikens issued his original gag order at the request of the two litigants – an order faxed to Business Week only hours before it was scheduled to publish its story, without prior notice or an opportunity to oppose the request – the magazine promptly appealed to the U.S. Court of Appeals in Cincinnati and then to U.S. Supreme Court Justice John Paul Stevens. It did not defy the order. The magazine waited until Feikens dissolved the seal on the documents – 19 days after issuing his original order – before finally running its story.

Federal precedent is split on whether a news organization may violate a gag order prohibiting it from publishing. The Fifth Circuit says that even unconstitutional gag orders must be obeyed until overturned. The First Circuit says that a "transparently invalid" injunction may be ignored, at least if timely access to the appeals process is not available. But that court cautioned news organizations to be very sure the order is "invalid." Otherwise they face the consequences, which could include being held in contempt of court.

The Supreme Court has dodged the issue. It chose not to resolve the controversy when the First Circuit's ruling was appealed in 1988, and again in 1990 when it let stand a federal court order prohibiting Cable News Network from airing audiotapes made by government employees of telephone conversations between imprisoned Panamanian General Manuel Noriega and his attorneys.

Although the court's unprecedented decision in the Noriega case was very disturbing, at least it was based ostensibly on concerns about protecting a criminal defendant's constitutional right to a fair trial. In the Business Week case, Feikens ultimately decided that Bankers Trust had failed to provide him with a "substantial government interest" to justify keeping the documents sealed once they were filed with the court. "While the defendants have an interest personal to themselves not to have these materials revealed publicly, I cannot keep them from public view for such reasons," he concluded.

Once Feikens saw the light, his order finally opened up the file, permitting Business Week and anyone else to publish it. But it did nothing to compensate the magazine or its readers for the damage to their constitutional rights. As former Justice Harry Blackmun wrote in 1975, "where a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate..infringement of the First Amendment."

And it will do nothing to prevent other judges from issuing heavy-handed gag orders against news organizations that obtain documents through unconventional means. Some of the organizations will lack the resources to fight. The legacy of Feikens' ruling will be an explosion of gag orders allowing corporations to stop the press from reporting on stories that may be embarrassing – all in the name of protecting "integrity" and "efficiency" in the judicial process.

Once again, the public will be the loser. l