In 1984, the Supreme Court decided that an order prohibiting public dissimination of information received by a newspaper during discovery in a libel lawsuit did not violate the First Amendment's freedom of the press. The question at stake was whether the protective order constituted a prior restraint on publication, which is impermissible under the First Amendment. In this photo, Seattle's two newspapers are shown at a newsstand in 2005. (AP Photo/Elaine Thompson, used with permission from The Associated Press.)
In Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), the Supreme Court ruled that a protective order prohibiting the publication of information gained by a newpaper through discovery in a civil lawsuit did not violate the First Amendment.
The Court’s decision resolved a conflict among lower courts about the strength of a litigant’s First Amendment interest in materials obtained through discovery.
In libel lawsuit, court orders newspapers not to dissiminate information gained in discovery
In Rhinehart, a nontraditional religious group the Aquarian Foundation and its leader had sued the Seattle Times and the Walla Walla Union-Bulletin for libel, alleging that both papers had published false information that detrimentally affected membership and contributions to the group.
As part of the discovery process, the trial court ordered the plaintiffs to disclose to the newspapers the names and addresses of members and donors. The court also issued a protective order prohibiting the newspapers from publishing or disseminating this information or from using it in any way except to prepare for and try the case because the plaintiffs had offered evidence that threats of violence had been directed at group members.
Question of whether protective order was prior restraint examined by Supreme Court
In a majority opinion authored by Justice Lewis F. Powell Jr. and joined by six other justices, the Supreme Court rejected the argument adopted by lower courts that a protective order limiting a party’s ability to disseminate information obtained in discovery represented a paradigmatic prior restraint on speech subject to strict scrutiny.
Had this argument prevailed, almost no protective order limiting dissemination of information obtained in discovery would have survived First Amendment scrutiny, and a presumptive right to disseminate materials obtained in discovery would exist.
Supreme Court said protective order furthered substantial government interest, satisfies First Amendment concern
Instead, the Court upheld the protective order because it furthered a substantial government interest in preventing the misuse of information produced through the court’s coercive powers. In so doing, the justices noted that litigants were able to obtain a broad scope of information through discovery and that public disclosure of some of that information could be damaging to the party forced to produce it.
The Court also noted that federal and state court rules required a party seeking a protective order to make a showing of “good cause” that the order was necessary to prevent annoyance, embarrassment, or oppression. It found that such a showing was sufficient to satisfy the First Amendment and that no heightened scrutiny beyond this was required.
In distinguishing the protective order from other prior restraints, the Court relied on two unique features of discovery.
First, in this instance, the newspapers were able to gain access to the information only because the trial court had compelled the plaintiffs to disclose the information as part of the discovery process.
Second, discovery historically had not been part of the public component of a civil trial, so the Court distinguished the protective order from orders seeking to limit disclosure of information obtained outside the judicial process and orders seeking to limit disclosure of or comment on public components of a trial, such as courtroom proceedings.
Justice William J. Brennan Jr., joined by Thurgood Marshall, authored a short concurring opinion emphasizing that pretrial protective orders are subject to First Amendment review.
This article was originally published in 2009. Rachel M. Janutis is a Professor of Law at Capital University Law School.Send Feedback on this article