A case in which Washington, D.C., partner Bruce Brown is representing the National Law Journal (NLJ) was the subject of a July 26, 2010, Washington Post blog post and a July 28, 2010, "Blog of LegalTimes" entry.
According to the articles, in the course of working on a story about the law firm of Hogan Lovells suing its client, POM Wonderful, for more than $666,000 in attorney fees and expenses, an NLJ reporter obtained court documents that, due to a clerical error, were not under the seal order issued by the court. The documents disclose that the legal fees were incurred because POM had an "investigation or inquiry" pending with a regulatory agency. When POM learned of the pending article, they asked D.C. Superior Court Judge Judith Bartnoff to block publication of the article.
In a hearing held July 23, just before NLJ's deadline, Brown, a former reporter, argued the case on First Amendment grounds. Though the judge did allow the paper to mention the existence of an investigation, Bartnoff ordered NLJ not to publish the agency's name, according to the articles. She said the ability of the court to maintain the integrity of its docket trumps the paper's First Amendment rights to publish the information. "If I am throwing 80 years of First Amendment jurisprudence on its head, so be it," Bartnoff said, according to NLJ's account.
Subsequently, in emergency papers filed on July 28 at the D.C. Court of Appeals, Brown and associate Laurie Babinski asked the court to dissolve the order, citing First Amendment concerns. "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," Brown said in court papers. "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," adding that the granting of the restraining order is "plain constitutional error and must be reversed."
"The harm that POM asserts—that agency policy provides for the agency, but not a company that is the subject of an inquiry or a third party, to keep a regulatory inquiry non-public while it remains in the investigative stage—shrinks in comparison to the much more serious constitutional and national security interests that the Supreme Court has repeatedly found insufficient to justify the imposition of a prior restraint on the exercise of First Amendment rights," Brown said in court papers.
Click here to read the appellate brief filed July 28, 2010.