WASHINGTON -- A federal judge continued yesterday to restrict Business Week's right to publish a story about sealed court documents, but simultaneously made those papers public.
Thus, a major constitutional battle over the First Amendment, already running longer than many such battles in the past, took on a bizarre but still serious character and seemed sure to remain in the courts for at least several more days.
The unusual turn of events in a pair of rulings by U.S. District Judge John Feikens left the magazine and its competitors free to write about a new development in a major corporate legal fight but kept Business Week at least technically restrained.
As a result, the magazine remained -- for the 20th day -- under a court order limiting its use of documents the magazine claims it obtained by legal news gathering. The judge, however, found yesterday that the magazine got those papers illegally and barred it indefinitely from writing stories that are derived directly from that version of the documents.
Business Week's lawyers, who had been rebuffed in an earlier appeal to the Supreme Court, filed a new appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati last night.
In the meantime, the magazine obtained a new copy of the same document from a court file in Cincinnati, along with other formerly sealed papers, and began preparing an article to go into this week's issue.
The magazine's editor, Stephen B. Shepard, also said the magazine might publish a version immediately through a computer on-line service.
Although Business Week said it would go ahead with its publishing plans, its general counsel, Kenneth M. Vittor, said in a telephone news conference: "It's not academic. The judge's restraint is a very live and real dispute."
The magazine, he said, was not free to use a court document that has been in its hands since mid-September.
The magazine has now missed three issues in its plan to publish an article on the court fight between Procter & Gamble Co. and Bankers Trust New York Corp., a fight based on claims of misleading investment advice. At the same time, Business Week's legal challenge has now forced out from under seal some 700 pages of internal Bankers Trust documents on its business dealings with investors.
Bankers Trust spokesman Thomas Parisi said his company had no plans to appeal the judge's order lifting the seal on those documents. But, he said, yesterday's twin developments were "a strange way to go about it."