FURTHER THOUGHTS ON FREEDOM OF THE PRESS
Now you can read it for yourselves. BUSINESS WEEK's cover story, "The Bankers Trust tapes," banned from publication by a U.S. District Court for more than three weeks, is finally free to be read by the public. Also freed from the veil of secrecy are the sealed documents at the heart of a $195 million lawsuit by Procter & Gamble Co. against Bankers Trust Co. The public can at last see the data and decide for itself if P&G's charges that Bankers Trust engaged in a pervasive pattern of fraud are true.
But the cost has been high. The freedom of the press to generate the kind of information necessary for the efficient operation of this nation's political and economic system appears to have been seriously eroded in the legal process of getting the story out. First, a judge of the U.S. District Court for the Southern District of Ohio banned publication of an article with no hearing on the facts. Supreme Court Justice John Paul Stevens ruled that this judge was in violation of the Federal Rules of Civil Procedure, but he nevertheless continued for three weeks to ban the story on Bankers Trust.
The second troubling development came when Stevens contended that "the manner in which BUSINESS WEEK came into possession of the information it seeks to publish may have a bearing on its right to do so." In all previous cases, the method of acquiring the information was not held to be relevant to whether or not it could be published. The Pentagon Papers, after all, were stolen. BUSINESS WEEK lawfully obtained its documents, but if it hadn't, whoever unlawfully obtained them could have been punished. The goal should be to punish the thief, not bar publication. Censorship cannot be the solution to a crime of theft.
Third, the final opinion of the U.S. District Court judge prohibits newspapers, magazines, or any electronic media from even asking for a document that is stamped by a court "sealed," "confidential," or "secret." It is a bizarre interpretation of Seattle Times v. Rhinehart (1984), in which the Supreme Court held that a party to a protective court order covering pretrial information developed in discovery could not divulge the information. BUSINESS WEEK was never a party to the P&G lawsuit against Bankers Trust, but the judge has declared that it should be prohibited from even asking for the documents under seal.
This is a wildly dangerous opinion if upheld. There is nothing in current law saying that people who are not party to an agreement to seal court documents are forbidden from asking to see them. This opinion makes the procedure to ensure court confidentiality more important than the First Amendment. Any court official with a rubber stamp could block the free flow of information in this country. This is not acceptable. The media have the right to ask for information. Sources can say no anytime. Does America really want to move toward a British system of press restrictions, in which, for example, a Thalidomide case was litigated for years in the courts while the media was banned from reporting on it as hundreds of women continued to take the drug? We think not.
Finally, the bedrock principle that a journalist is entitled to protect the identity of a source, we were reminded, is not universally applied. In trying to lift the ban on publishing "The Bankers Trust tapes," BUSINESS WEEK reporters came up against the reality that shield laws protecting the confidentiality of sources vary from state to state and judge to judge. In Ohio, the shield law covers newspapers, but not magazines. There is no federal shield law covering the entire country.
Much of this damage to freedom of speech can be repaired in the weeks ahead as BUSINESS WEEK appeals the opinion of the U.S. District Court. The media must be free to report on judicial proceedings and on government operations in general. If there is legitimate need for confidentiality, it is up to the parties to maintain it. But once information is obtained by the press, it must be able to disseminate it to the public. As the Supreme Court has held over many years, prior restraint is an unconstitutional form of censorship. Period.