In a dramatic test of the power of courts to punish reporters for publishing sealed documents, a federal district court in North Carolina fined a newspaper reporter and her paper over $500,000 for civil and criminal contempt. The case, Ashcraft v. Conoco, Inc. , No. 95-CV-187, (E.D.N.C. 1998), involved journalist Kirsten Mitchell, Raleigh bureau chief for the Wilmington Morning Star.

Backgroung

   Mitchell inspected a settlement agreement handed to her by a district court clerk. The agreement confirmed information previously obtained by the Morning Star from independent sources, verifying that the Conoco oil company had settled an environmental tort suit brought by 178 trailer park residents for the sum of $36 million. The settlement agreement was contained in an envelope that was part of a stack of court records handed to Mitchell by the court clerk, in response to a request by Mitchell to the clerk asking for the court records filed subsequent to the settlement of the suit.

   In the process of handing Mitchell the material, the clerk extracted some documents, explaining that Mitchell could not have access to them because they were sealed. Among the materials handed to Mitchell was the envelope containing the settlement agreement. The front of the envelope contained a legend indicating that it was filed under seal and was to be opened only by the court. Mitchell testified, however, that since in her pile of materials the back of the envelope was face-up, she did not see this warning until after she read the settlement agreement. The envelope had previously been opened, and red printing on the envelope flap (visible on the back side, which she did see) said "Opened."

   The initial order sealing the settlement agreement was entered without the hearing processes and substantive judicial findings required to seal a court document. Neither Kirsten Mitchell nor the Morning Star were parties in the underlying litigation, or bound by the terms of the sealing order. Moreover, the order sealing the agreement did not explicitly forbid third parties from revealing its terms (a provision that is common in such orders), but instead appeared to be directed solely to court personnel and the parties.

   The Morning Star published a newspaper story containing details of the settlement agreement, including the settlement amount. In that story the newspaper attributed its information concerning the settlement amount to unnamed confidential sources, and also stated that the amount had been confirmed through examination of official court documents given to a reporter by a court official.

Attorney General, Court Actions

   Applying media guidelines promulgated by the Department of Justice in 1980 to protect freedom of the press, the U.S. attorney general declined to pursue contempt prosecutions against the Morning Star and its reporters. Notwithstanding the attorney general's refusal to prosecute - and indeed, before the attorney general had even completed analysis of the matter - the district court appointed its own special prosecutor. The district court fined Mitchell $1,000 for criminal contempt and held Mitchell and the Morning Star jointly liable for $500,000, plus costs and attorneys' fees, for civil contempt.

   The reporter and newspaper appealed, and that appeal is currently pending before the U.S. Court of Appeals for the Fourth Circuit. In that effort the appellants were supported by numerous amici, communications companies, and organizations engaged in newsgathering and news dissemination to the public. The appellants and their amici argued that the First Amendment bars punishment of the press or the public for publication of truthful information that government has allowed to escape from its domain.

   Journalists have a constitutional right to publish information given to them, it was argued, whether through the intentional or negligent behavior of government officials. Under our constitutional scheme, the press is structurally autonomous from government. A journalist, the amici argued, is not an officer of the court. The independence of the media is integral to the newsgathering process, it was claimed. To protect confidentiality the government may employ internal safeguards and operating procedures directed to its own processes and employees, but under the First Amendment it may not penalize the press or the public when those internal safeguards or procedures fail.

   In response, the appellees argued that the media enjoy no exemption from laws of general applicability and that all citizens, including reporters, must obey court orders. Although the journalist was not literally named in the sealing order, the appellees maintained that no such requirement exists in our legal system. The appellees pointed to such "general" court orders as no-smoking bans in courthouses, or requirements that persons submit to security checks, as examples of orders that bind the world at large. The appellants in turn responded that such regulations are essentially administrative, and do not constitute the sort of exercise of "equitable power" that can be enforced through the contempt power.

   In oral argument in October 1998, the three-judge panel on the Fourth Circuit appeared openly skeptical of the power of the district court to hold a third party in contempt, or to appoint a special prosecutor to pursue contempt proceedings against third parties. A decision is expected sometime in 1999.