How far can a newspaper go in reporting what a judge wants kept secret? The Morning Star, in Wilmington, North Carolina, has one answer but the federal judge in question has another. As this First Amendment tussle moves to a higher court, it bears watching.

Last August in Raleigh, Federal Judge W. Earl Britt of the Eastern District of North Carolina was winding up a month-long jury trial of a suit against the Conoco oil company. Residents of two trailer parks -- 178 of them in Wrightsboro, a mile north of Wilmington -- sued after leaking underground tanks at a Conoco station put gasoline in their water supply. After finding that Conoco had tried to cover up the leaks, the jury awarded $9.5 million for medical monitoring and treatment of those residents who said they had been made ill (headaches, dizziness, nausea, rashes, nosebleeds) or feared cancer from the gasoline's carcinogenic ingredients. Right after that, the jurors retired again to consider punitive damages.

 But the two sides then reached a settlement out of court. Britt approved the settlement and sealed it.

 With that, the Morning Star, a 56,000-circulation daily, got busy. Reporter Cory Reiss was assigned to find out the amount of the punitive damages award. By October, he was confident he had the number -- $26.5 million. Added to the $9.5 million already awarded openly, the cost to Conoco was $36 million.

When his story was ready to run, on October 14, the Morning Star sent another reporter, Kirsten Mitchell, to see whether any new documents had appeared in the case file. Among the papers Mitchell was given by the court's deputy clerk was a security envelope. Its flap was open, Mitchell would later testify, and in its window the word "opened" appeared. Inside was the settlement figure. Only after Mitchell put the papers back in the envelope, she testified, did she turn it over and see the words: "To be opened only by the court." She called her paper, reported that she had confirmation of Reiss's figure and explained how she had got it. A sentence was added to Reiss's story: "A document confirming the settlement amount was among documents given to a Morning Star reporter Tuesday by a clerk at the federal courthouse in Raleigh."

 Lawyers on both sides had wanted the amount kept secret. Leaky tanks are a chronic problem, and Conoco was at that time defending itself against more than fifty similar suits. If news of such a steep award became public, it could raise the standard. The plaintiffs feared that a publicized award might cause Conoco to negate the deal.

 After the story appeared, Conoco filed a motion asking that the Morning Star be held in contempt of court. Judge Britt appointed a local special prosecutor to prepare for a hearing on criminal and civil contempt charges against Mitchell, Reiss, and the newspaper -- Reiss for inducing people to talk about the case, Mitchell for opening a sealed document and giving the information inside to her newspaper, and the paper for publishing that information in violation of the court's order.

At a hearing on December 17 the prosecutor argued that reporter Mitchell was experienced enough to have recognized a sealed document. The newspaper argued that she shouldn't be penalized merely because a clerk gave her a document that she shouldn't have, and that, in any case, the paper already had the information in question.

 But Mitchell was found guilty on the criminal contempt charge, a misdemeanor. Maximum penalties are a $5,000 fine and six months in jail. Sentencing was set for February 24. (For an update on the case, see below). Criminal charges against Reiss and the newspaper were dropped. The paper's lawyers had argued that no court order had prevented the reporter from talking to people, or the paper from using the information he gathered.

Then, on January 21, Judge Britt filed a twenty-two-page decision on the civil contempt charges. He found Reiss innocent of the civil contempt charge, and said he no longer wanted the reporter to name his sources. But Britt found the Morning Star and Kirsten Mitchell guilty, and awarded Conoco half a million dollars in damages.

The judge's decision appeared crafted to try to skirt First Amendment issues. If the Morning Star had printed Reiss's story without the sentence saying that court documents confirmed the reporter's $36 million figure, Judge Britt wrote, the paper would have done nothing wrong. The case was not about press freedom, he wrote, "but about the respect that any citizen, individual or corporate, should have for an order of the court."

 The Morning Star will appeal. Hugh Stevens, an attorney for the North Carolina Press Association, says the decision clearly raised "very, very serious" First Amendment issues and predicted it would not stand. George Freeman, assistant general counsel for The New York Times Company, owner of the Morning Star, argues that it has been established by precedents in many cases -- including the one involving the Pentagon Papers -- that "if you get documents which perhaps you shouldn't have, you are perfectly justified in using the information."

UPDATE:
On Tuesday, February 24, Judge Britt fined Kirsten Mitchell $1,000 on the criminal contempt charge. Payment was stayed pending appeal to the Fourth U.S. Circuit Court, in Richmond Virginia.

As he imposed the sentence, Judge Britt said "I think the message has been widely distributed, and I hope widely received," that court orders must be respected. Mitchell told the court that she never intended to violate any court order, nor did she intend any disrespect for the court. George Freeman, assistant general counsel for The New York Times Co., said it was "deeply disturbing" that a journalist "can be convicted and fined for reporting truthfully about a major news story."

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