In the 1971 Pentagon Papers case, the Supreme Court ruled 6-3 against “prior restraint” of the media by government except in very extraordinary circumstances.
The threshold to impose prior restraint was viewed as high enough the Obama Administration did not try to prevent the publishing of those 92,000 pages of classified battlefield reports from Afghanistan.
But it did not stop D.C. Superior Court Judge Judith Bartnoff from taking an act of prior restraint on her own July 23 by issuing a temporary restraining order against The National Law Journal.
Bartnoff is reported to have said: “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it.”
The order prevents the Law Journal from publishing legally obtained information from court documents involving a dispute between POM Wonderful and one of its former outside law firm, Washington, D.C.-based Hogan Lovells.
The law firm is seeking payment for $666,265 of billings from POM that have gone unpaid for work it claims it incurred in representing POM in a regulatory issue.
In the pay dispute, POM asked the D.C. Superior Court to seal documents involving the issue for which they had sought the Hogan firm’s counsel. The judge has gone along with the request, even sealing records that had previously been part of the public docket.
“Specifically, we are not allowed to name a government agency conducting a regulatory inquiry into one of the subjects of the article, POM Wonderful, ” David L. Brown, Law Journal editor in chief, said in a July 26 editor’s note.
Brown said the judge was “placing process concerns over fundamental constitutional rights.”
One government regulatory agency known to be in dispute with POM Wonderful, a subsidiary of the privately held Roll International Corp., is the U.S. Food & Drug Administration (FDA).
Food Safety News reported last March 9 that POM Wonderful was one of 17 food manufacturers accused in FDA warning letters of violating the Federal Food, Drug, and Cosmetic act with false product labeling.
At that time, POM was not trying to hide, but rather was pushing back against FDA with strong public statements like this: “All statements made in connection with POM products are true, and are supported by an unprecedented body of scientific research.”
As for the billing dispute, it is apparently going to proceed in Bartnoff’s court with all references to the regulatory investigation remaining sealed. Law Journal is working on an appeal so it can use what knows.