A Landmark Victory For The Media

Freedom to publish is firmly upheld by an appeals court

There was nothing ambiguous about this ruling. On Mar. 5, the U.S. Court of Appeals for the Sixth Circuit sharply rebuked U.S. District Court Judge John Feikens for barring BUSINESS WEEK last September from publishing a story based on sealed documents from a suit between Procter & Gamble Co. and Bankers Trust Co. It also criticized his decision to hold a hearing to discover how BUSINESS WEEK had obtained the documents.

Feikens, the court found, "engag[ed] in a practice that, under all but the most exceptional circumstances, violates the Constitution: preventing a news organization from publishing information in its possession on a matter of public concern." The lower court's handling of the case even was described as "ludicrous."

At the center of the battle was the First Amendment and the concept of prior restraint. Courts long have ruled that only rarely can a news organization be prevented from publishing. The lower court's various orders challenged that legal precedent. "We couldn't let that stand," says Stephen B. Shepard, editor-in-chief.

In its ruling, the appeals court also found fault with the lower court's willingness to allow P&G and Bankers to place documents under seal at whim. "The parties were allowed to adjudicate their own case based upon their own self-interest," the court ruled. Courts "cannot abdicate [their] responsibility to oversee the discovery process."

The story wound up on BUSINESS WEEK's cover in October, once Feikens unsealed the disputed documents. Not everyone found it a good read, though. Circuit Judge Boyce F. Martin Jr. wrote in a concurring opinion that he was "at a loss as to why BUSINESS WEEK felt this information was so newsworthy." That's the point: It's the media's job to decide what to publish--not the court's.

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