820 F.2d 1342 (1st Cir. 1986), 86-1336, Matter of Providence Journal Co.

Docket Nº:86-1336.
Citation:820 F.2d 1342
Party Name:In the Matter of Application to Adjudge the PROVIDENCE JOURNAL COMPANY and its Executive Editor, Charles M. Hauser, in Criminal Contempt. Appeal of PROVIDENCE JOURNAL COMPANY and Charles Hauser.
Case Date:December 31, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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820 F.2d 1342 (1st Cir. 1986)

In the Matter of Application to Adjudge the PROVIDENCE

JOURNAL COMPANY and its Executive Editor, Charles

M. Hauser, in Criminal Contempt.

Appeal of PROVIDENCE JOURNAL COMPANY and Charles Hauser.

No. 86-1336.

United States Court of Appeals, First Circuit

December 31, 1986

Argued Sept. 11, 1986.

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Floyd Abrams with whom Cahill, Gordon & Reindel, New York City, Edward F. Hindle, William P. Robinson, III, Jeffrey C. Schreck, Edwards & Angell, Joseph V. Cavanagh, Jr. and Blish & Cavanagh, Providence, R.I., were on brief, for appellants.

Ralph G. Elliot, Tyler, Cooper & Alcorn, Hartford, Conn., on brief, for Hartford Courant and The Concord Monitor, amici curiae.

James C. Goodale, John G. Koeltl, Arthur H. Amron and Debevoise & Plimpton, New

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York City, on brief, for CBS Inc., The New York Times Co. and The Washington Post, amici curiae.

William A. Curran with whom Robert D. Parrillo and Hanson, Curran & Parks, Providence, R.I., were on brief, for appellee.

Wendy M. Keats and John F. Cordes, Appellate Staff, Civil Div., Dept. of Justice, Richard K. Willard, Asst. Atty. Gen., Washington, D.C., and Lincoln C. Almond, U.S. Atty., Providence, R.I., on brief, for U.S., amicus curiae.

Before CAMPBELL, Chief Judge, WISDOM, [*] Senior Circuit Judge, and COFFIN, Circuit Judge.

WISDOM, Circuit Judge.

This appeal presents an apparent conflict between two fundamental legal principles: the hallowed First Amendment principle that the press shall not be subjected to prior restraints; the other, the sine qua non of orderly government, that, until modified or vacated, a court order must be obeyed. The district court adjudged the defendants/appellants, the Providence Journal Company and its executive editor, Charles M. Hauser, (collectively referred to as the "Journal") guilty of criminal contempt. The Journal admits that it violated the order but argues that the order was a prior restraint and that the unconstitutionality of the order is a defense in the contempt proceeding. We agree. A party subject to an order that constitutes a transparently invalid prior restraint on pure speech may challenge the order by violating it.


From 1962 to 1965, the Federal Bureau of Investigation conducted electronic surveillance of Raymond L.S. Patriarca, reputedly a prominent figure in organized crime. The FBI conducted this surveillance without a warrant in violation of his Fourth Amendment rights. The FBI later destroyed all tape recordings relating to this surveillance but retained the logs and memoranda compiled from the recordings. In 1976, the Journal requested the logs and memoranda from the FBI under the Freedom of Information Act ("FOIA"). 1 The FBI refused this request on the ground that disclosure would be an unwarranted invasion of personal privacy. 2 The Journal then brought suit in the Federal District Court for the District of Rhode Island to compel disclosure. 3 On appeal, we ruled that the FBI was within its discretion when it refused the Journal's request. 4

In the spring of 1985, after the death of Raymond L.S. Patriarca, the Journal renewed its FOIA request to the FBI for the logs and memoranda. The FBI assented to this request and furnished the materials not only to the Journal, but also to WJAR Television Ten and other news media. On November 8, 1985, Raymond J. Patriarca ("Patriarca"), Raymond L.S. Patriarca's son, filed a summons and complaint against the FBI, 5 WJAR, and the Journal. 6 The action was based on the FOIA, 7 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 8 and the Fourth Amendment. The complaint alleged that the FBI had wrongfully released the logs and memoranda to the Journal and WJAR. At the same time Patriarca filed the complaint, he filed a Motion for Temporary Injunctive or Injunctive Relief seeking

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an order "enjoining the named defendants from disseminating or publishing [the] logs and [memoranda]...."

On November 12, 1985, the summons, complaint, and motion were served on the Journal. One day later, the district court held a conference concerning the request for a temporary restraining order. Counsel for the Journal argued that any restraining order would constitute a prior restraint forbidden by the First Amendment. Over the objections of counsel for the Journal and the government, the court entered a temporary restraining order barring publication of the logs and memoranda by the Journal and WJAR. The district court set a hearing for November 15, 1985, at which time it would decide whether to vacate the order. The district court later vacated the order and denied preliminary injunctive relief against the Journal and WJAR.

On November 14, 1985, the day after the district court issued the order, and while that order was still in effect, the Journal published an article on the deceased Patriarca that included information taken from the logs and memoranda. The son filed a motion to judge the Journal in contempt. When he declined to prosecute the criminal contempt motion, the district court invoked Fed.R.Crim.P. 42(b) and appointed a special prosecutor. Following a hearing, the district court found the Journal guilty of criminal contempt. 630 F.Supp. 993. Subsequent to a sentencing hearing, the court imposed an 18-month jail term on Hauser, which was suspended, ordered Hauser to perform 200 hours of public service, and fined the Journal $100,000. The Journal appealed.


This appeal propounds a question that admits of no easy answer. Each party stands on what each regards as an unassailable legal principle. The special prosecutor relies on the bedrock principle that court orders, even those that are later ruled unconstitutional, must be complied with until amended or vacated. 9 This principle is often referred to as the "collateral bar" rule. The Journal relies on the bedrock principle that prior restraints against speech are prohibited by the First Amendment. 10 In this opinion we endeavor to avoid deciding which principle should take precedence by reaching a result consistent with both principles.

Of all the constitutional imperatives protecting a free press under the First Amendment, the most significant is the restriction against prior restraint upon publication. "[T]he chief purpose of [the First Amendment's free press] guaranty [is] to prevent previous restraints upon publication." 11 Indeed, "prior restraints upon speech and publication are the most serious and least tolerable infringement on First Amendment rights". 12 Prohibiting the publication of a news story or an editorial is the essence of censorship. The power to censor is the power to regulate the marketplace of ideas, to impoverish both the quantity and quality of debate, and to restrict the free flow of criticism against the government at all levels. It is plain now as it was to the framers of the Constitution and Bill of Rights that the power of censorship is, in the absence of the strictest constraints, too great to be wielded by any individual or group of individuals.

If a publisher is to print a libelous, defamatory, or injurious story, an appropriate remedy, though not always totally effective, lies not in an injunction against that publication but in a damages or criminal action after publication. 13 Although the threat of damages or criminal

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action may chill speech, a prior restraint "freezes" speech before the audience has the opportunity to hear the message. 14 Additionally, a court asked to issue a prior restraint must judge the challenged speech in the abstract. 15 And, as was true in the instant case, a court may issue a prior restraint in the form of a temporary restraining order or preliminary injunction without a full hearing; a judgment for damages or a criminal sanction may be imposed only after a full hearing with all the attendant procedural protections. 16

Equally well-established is the requirement of any civilized government that a party subject to a court order must abide by its terms or face criminal contempt. 17 Even if the order is later declared improper or unconstitutional, it must be followed until vacated or modified. As a general rule, a party may not violate an order and raise the issue of its unconstitutionality collaterally as a defense in the criminal contempt proceeding. Rather, the appropriate method to challenge a court order is to petition to have the order vacated or amended.

In Walker v. City of Birmingham, 18 the Supreme Court upheld contempt citations against Dr. Martin Luther King, Jr. and other civil rights protestors enjoined from parading without a permit. The protestors argued that the order and the ordinance upon which it was based were unconstitutional because they constituted impermissible prior restraints upon the right to free speech and assembly. The Court noted that the ordinance "unquestionably raise[d] substantial constitutional issues" 19 and that "[t]he breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question". 20 Nonetheless, the Court ruled that the protestors could not raise those constitutional issues collaterally in the contempt proceedings. As the Supreme Court noted in United States v. United Mine Workers, 21 so long as the court has jurisdiction over the parties and the subject matter of the controversy, an order it issues must be obeyed. 22

The Walker Court found it significant that the contemnors had not sought to appeal the order they violated. The Court declared: "This case would arise in quite a different constitutional posture if the petitioners, before disobeying the injunction, had challenged it in the Alabama courts, and had been met with delay or...

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