Prior restraints and leaked attorney-client privileged materials

The New York Times edition on the day of the Pentagon Papers decision

One of the interesting nuggets in the Oregonian's Friday story about ex-Governor Kitzhaber's lawyers' efforts to fight the FBI subpoena is the following:

McDermott demanded that the state Justice Department, headed by Attorney General Ellen Rosenblum, file a temporary restraining order to block the publication by Willamette Week of emails Kitzhaber had exchanged with McDermott's partner, Stephen Janik. Rosenblum is married to the weekly paper's publisher, Richard Meeker.

A court order that blocks a newspaper (or anyone else) from publishing something is called a "prior restraint." Because of the First Amendment, most prior restraints are unconstitutional. In The Pentagon Papers Case (1971), the Supreme Court refused to stop the New York Times and the Washington Post from printing excerpts from a classified, 47-volume historical study of the United States' entry into the Vietnam War. The two papers had received the classified material from a whistleblower at RAND Corp. named Daniel Ellsberg. The Supreme Court explained:

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree.

Other cases have suggested that it would take grave, irreparable harm to national security or other such equivalent damage to justify a prior restraint. See Near v. Minnesota (1931) (noting that critical information such as "sailing dates of transports or the number and location of troops" might be subject to a prior restraint).

With that in mind, let's take a look at Oregon's attorney-client privilege law, ORS 40.225. Subsection 2 of that statute states:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

(a)Between the client or the clients representative and the clients lawyer or a representative of the lawyer;

(b)Between the clients lawyer and the lawyers representative;

(c)By the client or the clients lawyer to a lawyer representing another in a matter of common interest;

(d)Between representatives of the client or between the client and a representative of the client; or

(e)Between lawyers representing the client.

(emphasis added). On its face, the statute appears to authorize a prior restraint against publication of attorney-client privileged material. But would such a court order be constitutional?

In State ex rel. Sports Management News v. Nachtigal (1996), the Oregon Supreme Court ruled that an analogous statute, which permitted courts to block publication of "alleged trade secrets," could not authorize trial courts to issue prior restraints in violation of the Oregon Constitution's free speech clause (i.e., Oregon's equivalent of the First Amendment). The court explained:

A statute that is written in terms that focus on the content of speech is invalid on its face, unless it fits "wholly" within some historical exception. [citations omitted] In this case, Adidas has not demonstrated, nor have we otherwise found, the existence of a historical exception for the prior-restraint protection of trade secrets from publication by a third-party publisher who receives information lawfully. Absent a historical exception, that publication is protected speech that may not be restricted under the Oregon Constitution.

To be sure, trade secrets are not the same thing as attorney-client privileged material. A federal trial court in Florida faced a strikingly similar situation to the one in this matter. In that case, U.S. v. Noriega (1990), CNN had obtained video recordings of numerous conversations involving a federal defendant (Manuel Noriega, formerly the ruler of Panama), including some that consisted of attorney-client communications. The trial court temporarily blocked CNN from airing those recordings (although CNN did in fact air some), and while it ultimately lifted the stay after about a month after reviewing the contested material, the court defended its earlier decision as necessary to be able to weigh the balance between the defendant's Sixth Amendment right to a fair trial against CNN's First Amendment right.

In essence, this "fair trial/free press" problem would require a court to consider whether publication of additional attorney-client privileged materials would infringe ex-Governor Kitzhaber's right to a fair trial, should he ultimately face criminal charges. For example, publication of privileged materials that reveal detailed trial strategies might well irreparably harm a criminal defendant. Answering the question of whether the emails in this matter fall into that category would, of course, require examination of those emails, which is something that a court would do in camera (meaning in secret).

The Noriega case isn't binding on Oregon courts, but its analysis of the same issue provides a data point suggesting that the prior restraint may be difficult to obtain, but there might be circumstances in which one might be upheld.