First Amendment Legal Fight Averted: Judge Lifts Order Barring Reporter From Publishing Info

by Mike Masnick
Techdirt
Aug. 03, 2010

Last week, we wrote about a judge who issued a temporary restraining order on the National Law Journal, which was about to publish a story claiming that the FTC was investigating POM, makers of pomegranate juice. Apparently, the judge had already ordered the documents of such an investigation be sealed, but a court clerk had been slow in getting around to it, and the reporter found the info while it was still public. Given that the info was public at the time, the NLJ felt it had every right to publish it, and pointed out that the First Amendment seemed to agree. That's when the judge made her infamous statement: "Look -- if I'm throwing 80 years of First Amendment jurisprudence on its head, so be it," though (as it later came out), she also stated: "But none of that First Amendment jurisprudence, to my knowledge, is dealing with this issue. The question is, what authority do you have for the proposition that the First Amendment trumps court orders sealing files?"

Either way, the legal fight over this issue is now dead. Late last week, in part with the acceptance of POM, the judge dropped the restraining order and allowed the NLJ to publish the simple fact that the FTC was investigating. Of course, it's still not clear why that information should have been sealed anyway. But, of course, now a hell of a lot more people are aware that the FTC investigated POM.