PRIOR RESTRAINT IN THE FOSTER CASE.




CAMBRIDGE, Mass. -- If you have any outrage left -- if you
haven't used it all up on Jesse Helms or Hillary Clinton or Newt
Gingrich or whomever you're mad at this week -- direct it at
David Sentelle, John Butzner, and Peter P. Fay.

They are doing far more damage to you and to your country than
are the front-page, household names you're used to grousing
about.

Sentelle is a judge on the U.S. Court of Appeals for the District
of Columbia circuit, and Butzner and Fay are senior appelate
judges. They have issued a ruling in a case involving *The Wall
Street Journal*, and they have told the *Journal* -- and the rest
of the press -- that it can't even print what the ruling is.

Let me go over that one more time for you:

A court has ruled in an important case and told the press it
can't tell you and me what it ruled.

It's outrageous.

It's bizarre.

It's unconstitutional.

But it has happened. In America.

Here are the facts:

In January, Attorney General Janet Reno appointed Robert Fiske to
investigate the Whitewater matter. He looked into the death of
Vincent Foster, the removal of documents from his office, and
that whole mess -- alleged mess, at least -- involving the
Clintons, Whitewater Development Corp. and Madison Guaranty
Savings and Loan.

In August, after a change in the law about how investigations
were to be handled, a special arm of the Circuit Court of Appeals
took jurisdiction from the attorney general and replaced Fiske
with Kenneth W. Starr. Fiske then turned in -- apparently -- his
final report, filing it with the Circuit Court.

In October, *The Wall Street Journal* heard that Fiske had indeed
filed his report and that it had been sealed by the court. The
*Journal* then went to court and asked for a copy of the report
-- if such a report exists.

Nothing happened.

Fiske and Starr filed responses with the court but didn't tell
the *Journal*.

A *Journal* lawyer then called the office of each man and asked
for a copy of his response.

Each "refused to comment on that topic, and would not even
disclose whether they had filed a response," a court document
states.

In November, the court ruled on the *Journal's* request for a
copy of the Fiske report. Presumably, the court said the
*Journal* couldn't have it. But -- and here the outrage
quadruples -- the court sealed its own response.

And it told the *Journal* it could not print a story saying what
that response was.

This is known, in the language of the law, as a "prior
restraint."

"Prior restraints on speech and publication are the most serious
and the least tolerable infringement on First Amendment rights,"
the Supreme Court noted in 1976. The "damage can be particularly
great when the prior restraint falls upon the communication of
news and commentary on current events," it added.

Not even the Pentagon Papers -- that explosive history of the war
in Vietnam with reams of classified information -- were deemed
too sensitive for our eyes. The Nixon administration tried to
stop us from reading them -- it sought a prior restraint -- but
the Supreme Court said no.

In appealing to the Supreme Court to overturn this prior
restraint, lawyers for the *Wall Street Journal* wrote: "It is
inconceivable that there can be any legitimate, much less
extraordinary, reason for shielding the public from knowledge
that" -- and there the sentence ends. For the appeal is a public
document, and therefore it cannot say what's under seal.

It implies that the *Journal* lawyers know what's in the sealed
document, but if they do they aren't talking.

The Appeals Court "did not even attempt to explain or justify the
prohibition against publication before entering it," the brief
states.

I called the Appeals Court and asked the clerk why the decision
had been sealed. "I can't answer it. I can't even discuss it," he
said. "There is no public record of it, so I can't speak about
it." Perhaps I could speak to one of the judges, I said. "The
court speaks through me," he replied.

*The Wall Street Journal* appealed to Chief Justice William H.
Rehnquist, and Monday he apparently sidestepped the issue.

So this is the situation:

Robert Fiske, the Whitewater investigator, presumably has written
and filed a final report. *The Wall Street Journal* has asked to
see a copy. The court apparently has said "no." And the court has
told *The Wall Street Journal* that it can't even tell that to
anyone.

Why?

USA Today - 12/06/94
Point of view by Michael Gartner





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