Lessons From A Landmark Case

This magazine has scored a major victory for the free flow of information at a time when government censorship is growing in the U.S., Europe, and Asia. A federal appeals court reinforced the First Amendment right of free speech by reversing a lower-court ruling barring BUSINESS WEEK from publishing "The Bankers Trust Tapes," a story based on sealed court documents concerning a $195 million lawsuit by Procter & Gamble Co. against Bankers Trust Co. over financial derivatives.

In a powerful rebuke of U.S. District Court Judge John Feikens, the Sixth Circuit Court of Appeals in Cincinnati said that "even a temporary restraint on pure speech is improper `absent the most compelling circumstances"' and "such circumstances are not present in the case at bar...." The Appeals court said that Feikens was wrong in conducting a hearing on how BUSINESS WEEK gathered its information and wrong in elevating court secrecy above the right of free speech.

The opinion was a direct attack on the growing effort to stamp "secret" on virtually any and all information discovered in public trials. BUSINESS WEEK was never a party to the decision by P&G and Bankers Trust to seal pretrial information, but Feikens said it was prohibited from even asking for the material under seal. If upheld, this decision would have been a wildly dangerous precedent. In Britain, the press was banned from commenting on the Thalidomide court case for years as thousands of women continued to take the drug. A Judicial Conference of the United States is now considering a proposal to make the sealing of discovery documents almost automatic in civil cases. They should heed the appeals court decision.

The appeals court ordered Feikens to pay more attention to supervising and limiting the sealing of documents. "The private litigants' interest in protecting their vanity or their commercial self-interest simply does not qualify as grounds for imposing a priori restraint." For anyone worried about government censorship of the Internet or any other medium, this is a big win.

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