WASHINGTON -- Any time a newspaper or magazine has a story blocked by a court order, its lawyers know exactly what to do: Rush, do not saunter, to the courthouse with a constitutional challenge. It almost always works.
For the past ten days, that is just what lawyers for Business Week magazine have been doing about a story ban. To their enormous surprise and to the dismay of lawyers for other media, the tactics did not work this time.
That failure has sent an alert through newsrooms and the offices of First Amendment lawyers, where there is open fretting that the long American tradition against so-called "prior restraint" on publication could be weakening. No one can be sure until the Business Week dispute plays out in coming days or weeks.
Only this is certain: Two issues of the magazine have reached the reading public without an exclusive story about a significant new turn in a major corporate court battle between Procter & Gamble Co. and Bankers Trust New York Corp.. The story, based in part on confidential Bankers Trust documents filed under seal in court, may have to be kept off the magazine's pages for another week, at a minimum.
On Monday, the next issue will be out, and it includes an editorial bemoaning the court ban. The editorial, titled "The Story You Should Be Reading," will tell the readers: "This is the first time in our 66-year history that we have ever been forced by the government to pull a story."
At this point, Business Week lawyers and editors are confident they will win. They are not ready to concede that pre-publication bans will become easier to get in courts. But they have no idea when victory could come.
U.S. District Judge John Feikens -- in whose Cincinnati courtroom the corporate fight is being waged -- promised a decision by Oct. 3. If he does not act until then, his ban would have been in effect 19 days -- longer than it took (15 days) for the "Pentagon Papers" case to culminate in a Supreme Court ruling.
The final ruling in June 1971 lifted a gag order on the New York Times and the Washington Post, allowing them to publish over government objection a huge volume of government secrets about the origins of the Vietnam War.
The Business Week dispute that began September 13 with Judge Feikens' ban, which the magazine has vigorously and rapidly challenged in three courts, probably is the most serious constitutional conflict over "prior restraint" since 1979.
That year, Progressive magazine was restricted for more than six months by a court-ordered ban from publishing an article titled: "The H-Bomb Secret: How We Got It, Why We're Telling It" -- a description of how to make a hydrogen bomb.
The ban lasted so long partly because the Progressive's lawyers took their time with their challenge. They were rebuked by a 7-2 majority of the Supreme Court, which refused to rush the case through the lower courts precisely because the attorneys for the magazine had dawdled.
The court majority said that the Progressive, by its lawyers' deliberate pace, had lost "any right to expedition that the Constitution might otherwise have afforded them." It was a sharp reminder to media lawyers that, if they wanted the Supreme Court's aid in lifting "prior restraints," they would have to act as if they thought it was really urgent. (Ultimately, the Progressive published its story, after a newspaper published much of the same information, thus scuttling the government's case.)
Last week, however, one of the seven in that 1979 Supreme Court majority -- Justice John Paul Stevens -- criticized Business Week's lawyers for doing exactly what the Progressive's had not. He spoke disapprovingly of the "hastily prepared document" they had filed with him, lambasted their rapid-fire moves, and said "the wiser course" would be to let lower courts sort out the facts first.
That reaction was in contrast to the Supreme Court's willingness, in the "Pentagon Papers" case, to rush through even when many key facts were still unknown to the justices -- and, apparently, to the lawyers as well. Complained then-Chief Justice Warren E. Burger: "We literally do not know what we are acting on." The "prior restraint" was lifted anyway.
Justice Stevens' action on Thursday, bucking the Business Week case back to Judge Feikens with the certainty that this would mean more delay, was part of the reason some lawyers for the press are worried that the judicial mood against nearly all "prior restraints" may be changing.
Business Week executives suspect that judges have become more willing to impose prior restraint, at least when large firms ask that their court papers and other corporate documents be kept secret. In the next issue of the magazine, the editors will include a commentary saying that "the trend toward secrecy in litigation is becoming all too routine."
A major business publisher, Dow Jones & Co., in supporting Business Week's plea for help to Justice Stevens, said that its publications fear "wealthy and powerful" business interests' gaining increasing opportunities to use the courts to head off stories deemed harmful to those interests.
It thus appears that the latest "prior restraint" case has aspects of economic conflict, as well as a constitutional fight.