'Business Week' magazine asks Supreme Court to lift ban on publishing article Controversial story already delayed a week by lower court's order

September 20, 1995|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- One day before Business Week goes to press, the magazine took a widening First Amendment conflict to the Supreme Court with a plea to publish an article that has been squelched for six days by a federal judge.

Earlier in the day, a federal appeals court said it had no authority to lift the judge's order.

Lawyers for the magazine then urged Justice John Paul Stevens to step in and remove the ban imposed last week by Judge John Feikens.

The magazine's failure to get prompt action on its challenge and its failure so far to have the publication ban lifted are unusual.

Pre-publication bans are seldom issued, and the Supreme Court has never upheld one.

The Business Week article had been ready for the issue that was printed last Wednesday night, but it was withdrawn close to the press deadline after Judge Feikens blocked it.

The magazine staff has another version of the article ready to go to press tonight if the Feikens order is set aside.

"We're so eager to go with this story, and every second [of delay] is another violation of our First Amendment right," said Steven H. Weiss, a spokesman for McGraw-Hill Co., Business Week's publisher.

Editor-in-chief Stephen B. Shepard said: "This is an extraordinary case of censorship."

Business Week's planned article is an investigative account of the latest twist in a lawsuit between Procter & Gamble Co. and Bankers Trust New York Corp.

The article apparently refers to court filings that Judge Feikens said are confidential. He banned the article at the joint request of Procter & Gamble and Bankers Trust.

McGraw-Hill and Business Week told Supreme Court Justice Stevens yesterday that they had had no warning that the order was being sought until they received it shortly before printing was to begin.

The attorneys said that they have had no chance to make their case to Judge Feikens.

Yesterday, he did set a hearing for tomorrow -- a day after the magazine's new deadline would have passed, and two days after the appeals court voted not to review his order.

The 6th U.S. Circuit Court of Appeals, in its one-page ruling yesterday in Cincinnati, refused to rule on the magazine's challenge to Judge Feikens' order. It did not formally uphold the order and said nothing about the judge's power to issue it.

Instead, the appeals court said it could not act because Judge Feikens had acted in a way that was not open to immediate appeal. It called his action a "temporary restraining order," which cannot be appealed.

The magazine and its publisher, in their plea to Justice Stevens, lambasted the appeals court for not acting swiftly on their challenge. They also argued that the appeals court had misunderstood the action Judge Feikens took, because his order serves as a flat ban against publication and thus is subject to prompt appeal.

At tomorrow's hearing, Business Week said it was told, it must produce the reporter who obtained the court documents used in the planned article. The magazine also faces a demand by lawyers for Bankers Trust to hand over the document copies it has; the magazine insists it obtained those legally.

Business Week's plea to Justice Stevens can be handled by the justice himself, but he also has the option of sharing it with his eight colleagues. Ordinarily, action on such emergency pleas comes within a matter of hours.

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