WHEN journalists are kept from printing or airing material they have in hand, that's "prior restraint." Few governmental actions are considered more destructive of basic freedoms.
Yet a US District Court in Ohio is letting stand its decision to impose such a restraint on Business Week. The magazine was prevented for three weeks from publishing information about a civil case pitting Procter & Gamble against the Bankers Trust Company. A Business Week reporter had obtained sealed documents from a lawyer on the Bankers Trust side of the lawsuit. When the parties to the suit got wind of the leak, they asked the judge to halt publication. He did.
Normal procedure would be for Business Week to seek relief from that judge. The magazine says it tried and couldn't reach him; the judge says he was available. That procedural glitch took center stage in the dispute, blocking Business Week's attempts to get a reversal from higher courts, including the US Supreme Court.
The central issue, however, was never one of procedure, but of principle. However the magazine got its information, it had a First Amendment right to publish - unless extraordinary questions of national security or public safety were involved. Remember the Pentagon Papers?
In rare cases, the courts have upheld restraints, as in the early 1990s case involving communications between imprisoned Panamanian leader Manuel Noriega and his lawyers, which CNN had obtained. The network ignored a court injunction, broadcast the material, and was punished. In another case, the Seattle Times was enjoined from publishing material uncovered in a libel suit to which it was a party.
But the rule, established over more than a century of American jurisprudence, is no prior restraint. If sanctions are to be applied, they must come after the public has had a chance to hear or read.
That's basic to democracy. Though the judge has now unsealed the Bankers Trust material and Business Week's story has run, he has not lifted his order. The magazine has vowed to appeal. The order should be struck down, leaving the First Amendment free of nicks.