Off the Hook   

A journalist shouldn't be punished for a court clerk's mistake.

I T SOUNDS LIKE A journalism school exam question, or a media ethics hypothetical.
Take a high-profile environmental pollution case. Add a secret settlement agreement, reached just before the jury returns its verdict on punitive damages. Mix in a compliant trial judge who allows the parties to file their agreement under seal.
Fold in a reporter for the local paper with no prior experience with this case. Send her to the courthouse to look at the file. Add a deputy clerk, who gives the file to the reporter after first removing one brown envelope from it and advising her that it was a "sealed document."
Put a white envelope into the file, bearing an ambiguous notation making it appear that that envelope had been previously opened. Add a boldface warning on the front of the white envelope, indicating that a confidential settlement agreement is inside, and that it is to be opened only by the court. Make sure the reporter doesn't see that warning until after she's learned that the settlement was for $36 million.
Should the reporter assume she had been given a public document that had been "opened" previously by the court, or that the white envelope was given to her in error? Would she have a legal or an ethical obligation to ask? Or should she take the information and run with it?
Scholars or practitioners might reach a variety of conclusions. But in the real-life case, reporter Kirsten Mitchell told her editor what she'd read in the file. The figure corroborated information obtained by her colleague, Cory Reiss, through what the court later called "ordinary reporting methods" involving confidential sources. The next day, Wilmington, North Carolina's Morning Star disclosed the settlement amount.
Proceedings to hold the reporters and the newspaper in both criminal and civil contempt followed in U.S. District Court. Judge W. Earl Britt found Mitchell guilty of criminal contempt, and he held both the Morning Star and Mitchell in civil contempt. Britt ordered them to pay Conoco--the energy company sued by residents of a trailer park on claims it had contaminated their water supply--about $600,000 in fines.
Reiss dodged the fine but was subsequently found in civil contempt after he refused to reveal his confidential sources.
The case came before the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, a court that in recent years has become ground zero for controversial First Amendment and press cases, including Food Lion vs. Capital Cities/ABC and Rice vs. Paladin Enterprises. Media law pundits were not optimistic that the court would vindicate the journalists, especially when they learned that one of the panel members was Judge J. Michael Luttig, who wrote the ruling against the publisher of the "Hit Man Manual."
Luttig made no attempt to hide his contempt for Paladin Enterprises in "Hit Man"--a book that two families claimed was used to plan the killing of their loved ones. But in this case, Luttig reserved all his ire for the trial judge. Luttig found that the only "court order" Mitchell could conceivably have violated was the sealing order. And that, he ruled, was invalid, because Britt had failed to follow 4th Circuit precedent requiring him to first provide notice of the sealing request, to hold hearings to consider other alternatives, and to provide specific reasons and findings justifying secrecy.
No one could reasonably find that Mitchell acted improperly or "with a wrongful state of mind," as required under Circuit law, Luttig continued. Her behavior was reasonable and understandable. Under these circumstances, he wrote, "it would occur to few, if any, in Mitchell's position that the settlement was anything but a publicly available document." Mistakes were made, but by the judge who issued the sealing order, the clerk who gave Mitchell the file and the prosecutor who persisted in pursuing the contempt findings against the journalists, Luttig wrote.
Reiss was exonerated, too, in a separate proceeding but on the similar ground that an invalid order cannot be the basis for forcing a reporter to disclose his confidential sources.
From out of what Luttig dryly describes as "a highly charged case," some very good law emerges. At a time when trial judges all too often accede to requests for sealed settlements, it is important for appellate courts to reiterate the presumption of openness of court proceedings and the necessity for careful balancing of the public's right of access.
But the single most important sentence in the case is worth quoting verbatim: "No citizen is responsible, upon pain of criminal and civil sanction, for ensuring that the internal procedures designed to protect the legitimate confidences of government are respected."
In other words, it is the government's responsibility to keep its secrets. If it can.