The McGraw-Hill Companies and Business Week win first amendment appeal; sixth circuit issues landmark ruling on Prior restraint

Business Wire, March 5, 1996

NEW YORK--(BUSINESS WIRE)--MARCH 5, 1996--BUSINESS WEEK magazine's First Amendment fight ended in a major victory today when the Sixth Circuit Court of Appeals, in a landmark ruling, reaffirmed a "bedrock First Amendment principle" that the press shall not be subjected to prior restraint. The decision, issued today in Cincinnati, followed a six-month battle that took BUSINESS WEEK and its parent, The McGraw-Hill Companies, Inc., all the way to the Supreme Court.

Finding that the prior restraint against BUSINESS WEEK was "patently invalid and should never have been entered," the Sixth Circuit ruled that:

"...At no time...did the District Court appear to realize that it was engaging in a practice that...violates the Constitution: preventing a news organization from publishing information in its possession on a matter of public concern...The private litigants' interest in protecting their vanity or their commercial self-interest simply does not qualify as grounds for imposing a prior restraint." The Court said that even temporary restraining orders cannot be justified in First Amendment cases.

BUSINESS WEEK should never have been subjected to an intrusive evidentiary hearing by the lower Court into its news-gathering activities and confidential sources. "Not only did the District Court fail to conduct any First Amendment inquiry before granting the two TROs (temporary restraining orders), but it compounded the harm by holding hearings on issues that bore no relation to the right of BUSINESS WEEK to disseminate the information in its possession."

The underlying protective order allowing Bankers Trust and Procter & Gamble to decide which documents to seal should never have been issued in this case: "The District Court cannot abdicate its responsibility to oversee the discovery process and to determine whether filings should be made available to the public. It certainly should not turn this function over to the parties (Procter & Gamble and Bankers Trust), as it did here..."

Kenneth M. Vittor, senior vice president and general counsel for The McGraw-Hill Companies, said, "The Supreme Court has never upheld a prior restraint in more than 200 years, and we are extremely gratified that the Sixth Circuit Court of Appeals followed this important First Amendment tradition and reversed the lower Court's unlawful restraining orders. The Court of Appeals vindicated our position that the District Court's unprecedented prior restraint and its intrusive hearing into BUSINESS WEEK's newsgathering process were at war with core First Amendment principles."

"The decision today is a total victory not just for BUSINESS WEEK but for the news media in general," said Stephen B. Shepard, BUSINESS WEEK editor-in-chief. "The court reaffirmed important First Amendment principles, upheld our reporters' behavior, and criticized the lower Court for unnecessarily sealing documents in a civil case."

"Today's decision is a vindication of the editorial integrity of BUSINESS WEEK and the journalistic values that are so vital to our Corporation," said Joseph L. Dionne, chairman and CEO of The McGraw-Hill Companies, Inc. "We will always rigorously defend our people and our First Amendment rights."

BUSINESS WEEK's fight began on September 13, 1995, when the magazine received without prior notice a faxed restraining order from a District Court judge forbidding the magazine from publishing an article based on sealed court documents in a lawsuit involving Procter & Gamble and Bankers Trust.

The BUSINESS WEEK case has garnered the support of more than 20 major news organizations, which filed friend-of-the-court briefs on BUSINESS WEEK's behalf. The list includes the Associated Press, Dow Jones & Company, Time Inc., CBS Inc., National Broadcasting Company Inc., The New York Times Company, The American Society of Newspaper Editors, and the Magazine Publishers of America, Inc.

BUSINESS WEEK is the world's largest business magazine with a circulation of more than one million.

The McGraw-Hill Companies is a leading information services organization serving worldwide markets in education, business, finance, the professions and government. Founded in 1888, The Corporation today provides information and analysis in multiple media through its rich portfolio of valuable brands. Sales in 1996 exceeded $2.9 billion.

CONTACT: Steven H. Weiss

Senior Director, Corporate Communications

The McGraw-Hill Companies

212/512-2247 (office), 201/867-7699 (home)

weissh@mcgraw-hill.com (e-mail)

or

Christine E. Summerson

Director, Media Relations

Business Week

212-512-2882 (office), 212-228-6572 (home)

csummerson@bw.com (e-mail)

or

Helen Steblecki

Manager, Corporate Communications

The McGraw-Hill Companies

212/512-2172 (office), 201/451-1139 (home)

steblech@mcgraw-hill.com (e mail)