Justice Stevens refuses to lift ban on article High court judge leaves intact order barring BusinessWeek story

September 22, 1995|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- BusinessWeek magazine failed in two courts yesterday to get permission to publish an exclusive article currently banned by a judge's order, and found it may have to wait perhaps 12 more days for a decision on its emergency plea.

First, the magazine's plea was turned aside by Supreme Court Justice John Paul Stevens in a three-page opinion rebuking the magazine's lawyers for their tactics but declining -- for now -- to consider their First Amendment right-to-publish claim.

Then, after a three-hour hearing in Cincinnati before the judge who banned the article, U.S. District Judge John Feikens, the magazine was told to come back for another hearing Tuesday. The judge said he would rule by Oct. 3 -- that would be 19 days after his ban was issued, an unusual but not unprecedented length of time in such cases.

Judge Feikens also told BusinessWeek's lawyers to bring to court Tuesday the confidential documents they have obtained for use in the planned article on a corporate legal fight between Procter & Gamble Co. and Bankers Trust New York Corp. The lawyers said they would have to decide whether to fight that demand, because turning over the documents the magazine has might risk disclosing its source.

A lawyer for Bankers Trust tried repeatedly at the Cincinnati hearing to get Linda Himelstein, the magazine's legal affairs editor, to identify her source. She refused to do so, and magazine editor-in-chief Stephen B. Shepard told reporters later: "We are not going to reveal her confidential source under any circumstances." He said she would go to jail to protect the source, if necessary.

The escalating First Amendment conflict unfolding here, in Cincinnati and in New York where the magazine is headquartered, appears to be turning into a fairly lengthy feud PTC rather than the kind of swiftly resolved legal battle that often follows a court ban on publication.

Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, a legal advocacy group for reporters and editors, called delays in the BusinessWeek case "a disgrace."

"Typically, orders like this are treated to expedited review at every level," she said. "When I first heard about this last week, I thought this was going to be a slam dunk [against Judge Feikens' order]. I am truly astonished."

The Supreme Court has never upheld a ban on publication that it has reviewed.

When Justice Stevens acted yesterday, he did not rule on the constitutionality of Judge Fei- kens' order. After criticizing the way the magazine's lawyers had prepared and pursued their plea to him for help, Justice Stevens said "the wiser course" would be to let lower courts first handle the constitutional challenge.

While his action did not uphold the publication ban, it did have the effect of leaving its duration in Judge Feikens' hands.

BusinessWeek's lawyers said they do not think they have any option to try to go to higher courts again, in hopes of speeding it up.

By the time yesterday's hearing ended, it had not focused on a basic issue that usually arises when a court has been asked to ban a publication: What proof there is that anyone would be harmed if the banned publication or article went into print.

In banning the article nine days ago, Judge Feikens said that Bankers Trust and Proctor & Gamble "will suffer irreparable harm if the contents of these documents are released at this time." No evidence of such harm has yet come out in court.

The documents involved were filed in court to help support a Procter & Gamble claim that Bankers Trust, in selling it a form of investment called "derivatives," violated federal anti-racketeering law. Those documents were filed "under seal" to protect their confidentiality.

The magazine's Ms. Himelstein testified yesterday that she got the papers from a source without knowing they were covered by a court protective order, and that her source also did not know that.

"We asked for them openly, and we received them openly," said Kenneth M. Vittor, the magazine's general counsel.

Mr. Shepard, the editor, said that BusinessWeek's lawyers have "been trying to get the focus away from how we got the documents," and putting it on its First Amendment rights, but have not been successful.

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