When a court issues an order sealing a document, publication of such a document can result in contempt of court. If you obtain a document that is under seal, you should immediately consult with your attorney before publishing information from that document. In general, it is permissible to publish information contained in a sealed document if that information has been lawfully obtained. This principle has been repeatedly recognized by the U.S. Supreme Court.[89] Thus, if a reporter lawfully receives information that is under seal, the First Amendment will generally protect him from liability for the publication of such information. That does not mean that the individual who leaked the information is immune. A clerk of court who leaked a sealed document, for example, has broken the law.
Newspaper liability was an issue raised in Ashcraft v. Conoco, Inc.[90] In that case, a deputy clerk of court mistakenly provided a sealed confidential settlement agreement, along with other court documents, to a reporter for the Wilmington Morning Star newspaper (now the Star News). At the time the reporter received the agreement, it was in an envelope that bore a statement that it was to be opened only by the court. The reporter did not see the statement but did observe the word “Opened,” which appeared through a window adjacent to the back flap of the envelope. The reporter opened the envelope and reported on its contents. In a decision that was ultimately overturned, the federal District Court determined that the reporter had not lawfully obtained the settlement information and held her in criminal and civil contempt.[91]
In reversing the District Court, the Fourth Circuit held that, among other infirmities, the District Court had erred because there was insufficient evidence to support the conclusion that the reporter had acted “willfully, contumaciously, intentionally, [and] with a wrongful state of mind.”[92] As stated by the Fourth Circuit,
[A] citizen who requests public documents from an officer of the court, who herself evidences diligence in safeguarding the confidences of the court, and is given an envelope that once was sealed but has been previously opened and is at the time open and denominated as such, is entitled to presume that the envelope and its contents are publicly available material, at least absent proof of knowledge otherwise. No citizen is responsible, upon pain of criminal and civil sanction, for ensuring that the internal procedures designed to protect the legitimate confidences of government are respected.[93]
[89] See Florida Star v. BJF, 491 U.S. 524 (1989); Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979); Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978). It should be noted, however, that the U.S. Supreme Court has carefully left open the question of whether truthful publication may ever by punished consistent with the First Amendment. See Florida Star v. BJF, 491 U.S. at 532-33, and cases cited therein.
[90] See 218 F.3d 288 (4th Cir. 2000).
[91] See Ashcraft v. Conoco, Inc., 26 Media L. Rep. (BNA) 1620, 1625-26, 1998 WL 404491 (E.D.N.C. 1998).
[92] See Ashcraft v. Conoco, Inc., 218 F.3d 288, 299 (4th Cir. 2000).
[93] See id. at 302.
