By Kathleen A. Kirby & Scott W. Woodworth, Wiley Rein LLP

On July 23, D.C. Superior Court Judge Judith Bartnoff issued a temporary restraining order against The National Law Journal (the Journal) prohibiting the newspaper from publishing information concerning a government investigation.  At a hearing just prior to issuing the restraining order, Judge Bartnoff is quoted as saying:  “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it … None of that First Amendment jurisprudence, to my knowledge is dealing with this issue – the integrity of the functioning of the court system.” 

What would warrant trumping the First Amendment values at stake so drastically?  A national security matter?  The potential release of classified government documents?  Trade secrets?  The protection of a minor?

All of these would, of course, be reasonable guesses.  But none was at issue in this case.  The information that was the subject of Judge Bartnoff’s restraining order relates to POM Wonderful.  Yes, that “amazing” juice we have all seen commercials for, but never tried.  POM Wonderful provided for some compelling courtroom drama.

POM hired a reputable law firm, Hogan Lovells, to represent the company in front of a federal regulatory agency.  Hogan’s and POM’s relationship deteriorated, which eventually lead Hogan to sue POM for approximately $660,000 in unpaid attorney’s fees.  POM countersued claiming inadequate representation and malpractice.  So far, a run of the mill case.  It became interesting (at least to this audience) when the Journal got involved.

For those of you who do not know, the Journal is a national publication that covers legal issues.  A law firm suing for payment of fees is big news in the legal world.  In gathering information on the fee dispute case, the Journal obtained the name of the agency investigating POM.  According to the Journal, it “lawfully obtained” the information “from public files in the Superior Court clerk’s office.”  On July 15, a reporter from the Journal viewed the information on a public terminal in the clerk’s office, printed the information that appeared relevant to the story, paid for the printed material, and was handed the printed material from a court official (we’re sure this sounds familiar to you journalists).  The reporter from the Journal then, prior to publishing the story, contacted POM for comment on the case.  POM responded with a motion seeking a temporary restraining order to prevent the Journal from publishing details about the investigation, including the name of the investigating agency. 

On July 9, prior to the Journal obtaining the information in dispute, Judge Bartnoff ordered the records in the Hogan/POM case sealed.  But, because of what has been termed a “clerical error,” the records were not properly sealed and the Journal reporter was able to walk into the courthouse and obtain the records from the clerk.  This administrative oversight set up a First Amendment showdown between the press and the judicial branch.  The Journal argued that it lawfully obtained and should be able to publish information on the POM case, including the name of the agency investigating POM.  Judge Bartnoff did not initially agree.  On July 23rd, she held a hearing subsequently issued a temporary restraining order that prevented the Journal from “publishing, posting, exhibiting, distributing, or selling any confidential documents or information regarding the substance of any regulatory proceeding against POM, or the identity of the regulatory agency.”

Judge’s Bartnoff’s stated reason for the restraint was to maintain the integrity of the court.  Basically, she determined that a clerical oversight in sealing a docket should not destroy the integrity of an order to seal.  In defense of her order, Judge Bartnoff is quoted as saying “it’s an order directing the way the court maintains its docket.  The court has an institutional interest in maintaining the integrity of the docket once the docket has been ordered to be sealed.  That’s the problem here.”

Our readers certainly understand the First Amendment concept of prior restraint.  From the Pentagon Papers to the recent release by Wikileaks of Afghanistan war papers, the government’s ability to censure the release of sensitive information has been the subject of significant jurisprudence.  The POM case presented this twist—does maintaining the integrity of court procedures allow an otherwise unlawful prior restraint?

Ultimately, an appellate court was asked to decide.  Soon after Judge Bartnoff’s restraining order was issued, the Journal filed an emergency appeal with the District of Columbia Court of Appeals (link).  The drama came to an end, however when POM, in a move that averted a First Amendment fight, asked Judge Bartnoff to lift the restraining order, which she did on July 30.  As our friends attorneys Bruce Brown and Laurie Babinski of Baker Hostetler wrote on behalf of the Journal in the appeal, “previous prior restraint litigation conducted at the highest levels of the nation's judiciary has rejected attempts to enjoin publications alleged to harm national security and the fair trial rights of criminal defendants.  By contrast, the prior restraint in this case was obtained by a privately held beverage manufacturer to prevent the public from learning the identity of the regulatory agency that is investigating the company."  Therefore, the granting of the restraining order is "plain constitutional error and must be reversed."  Indeed.  End of the story, but yet another lesson that the media must remain vigilant and often go to the mat to protect their First Amendment rights. 

By the way, POM is being investigated by the Federal Trade Commission.