UNITED STATES OF AMERICA, PETITIONER V. PROVIDENCE JOURNAL COMPANY
AND CHARLES M. HAUSER
No. 87-65
In the Supreme Court of the United States
October Term, 1987
On Writ of Certiorari to the United States Court of Appeals for the
First Circuit
Brief for the United States as Amicus Curiae Supporting Petitioner
TABLE OF
CONTENTS
Interest of the United States
Statement
Summary of argument
Argument:
I. Refusal to comply with an order of a federal court
constitutes criminal contempt in violation
of 18 U.S.C. 401(3)
unless the order exceeds the jurisdiction
of the court
II. At least in the absence of efforts to have the temporary
restraining order set aside, respondents
cannot defend
against charges of criminal contempt on the
ground that the
order was "transparently invalid"
Conclusion
QUESTION PRESENTED
Whether the district court properly held respondents, a newspaper
and its executive editor, in criminal contempt for publishing material
in violation of a temporary restraining order that was entered pending
a hearing on a motion for a preliminary injunction, where respondents
failed to seek emergency review of the temporary restraining order.
INTEREST OF THE UNITED STATES
The prosecution of criminal contempts, like the prosecution of
other federal crimes, normally is undertaken by the Department of
Justice. In this case, however, the district court, acting prior to
this Court's decision in Young v. United States ex rel. Vuitton et
Fils S.A., No. 85-1329 (May 26, 1987), appointed a private attorney to
assist it in connection with charges of criminal contempt by
presenting the evidence of those charges to the court. In Young, this
Court held that although a federal district court possesses the power
to appoint a private attorney to "prosecute" a charge of criminal
contempt in this manner, "a court ordinarily should first request the
appropriate prosecuting authority to prosecute contempt actions, and
should appoint a private prosecutor only if that request is denied"
(Young, slip op. 13). For reasons that we regard as insufficient, the
district court did not follow that procedure in this case. /1/ As a
result, contempt charges were presented below, and are being pursued
before this Court, in the name of the United States but not by the
Department of Justice. The government has an interest in the
disposition of the issues presented in this case, because the Court's
decision will affect those criminal contempt cases -- which constitute
the vast majority -- that are presecuted by the Department of Justice.
/2/
STATEMENT
1. From 1962 to 1965, the Federal Bureau of Investigation conducted
electronic surveillance of the home of Raymond L. S. Patriarca in
Providence, Rhode Island. Patriarca was reputed to be a senior member
of a New England organized crime "family," and the surveillance was
carried out as part of an investigation into organized crime in the
area. The surveillance, conducted prior to the enactment of the
Federal wiretapping statute, 18 U.S.C. 2510 et seq., was not performed
pursuant to judicial authorization and therefore violated the Fourth
Amendment. See Providence Journal Co. v. FBI, 602 F.2d 1010, 1013
(1st Cir. 1979), cert. denied, 444 U.S. 1071 (1980).
The FBI eventually destroyed the tape recordings produced by the
surveillance of the Patriarca home, but it restained written logs and
memoranda compiled from the recordings. In November 1976, the Journal
sought disclosure of the logs and memoranda pursuant to the Freedom of
Information Act (FOIA), 5 U.S.C. 552. The FBI declined to release the
materials on the ground that they fell within FOIA Exemption 7(C), 5
U.S.C. 552(b)(7)(C), which permits the withholding of information
compiled for law enforcement purposes if disclosure would constitute
"an unwarranted invasion of personal privacy."
The Journal brought suit against the FBI to compel disclosure of
the materials. On appeal from the district court's decision, which
required disclosure of limited portions of the materials, the First
Circuit ruled that the FBI was acting within its discretion under
Exemption 7(C) in refusing the Journal's request in its entirety.
Providence Journal Co. v. FBI, supra.
2. In 1984, Raymond Patriarca died. Shortly thereafter, the
Journal renewed its request for the logs and memoranda. This time,
the FBI released the materials to the Journal. The FBI made the same
materials available to other members of the news media, including WJAR
(a Providence television station) and the Hartford Courant (a
Connecticut newspaper). Pet. App. A29. The Hartford Courant
published an article based on some information derived from the FBI
logs and memoranda on September 22, 1985 (J.A. 35, 101-113, 141-143).
/3/
On November 8, 1985, Raymond Patriarca's son, whose conversations
with his father had been among those monitored by the FBI, filed suit
in the United States District Court for the District of Rhode Island
to prevent the Journal and WJAR from disclosing the contents of the
FBI materials. In addition, Patriarca's son sought damages and
declaratory relief from the FBI and the Department of Justice for
releasing the materials. The complaint was based on the FOIA, the
federal wiretapping statute, and the Fourth Amendment. At the same
time, Patriarca's son filed a motion for a temporary restraining order
or a preliminary injunction barring further disclosure of the FBI
materials during the pendency of the case. J.A. 206, 217-218.
On the afternoon of November 13, 1985, the district court held a
conference regarding the application for a temporary restraining order
(J.A. 175-176). Over the objections of the Journal's attorney, who
argued that any restraining order would violate the First Amendment,
the district court granted the application. /4/ The district court
originally expressed its intention to hear arguments on plaintiff's
request for a preliminary injunction on November 14, the following day
(id. at 34). However, the Journal's attorney advised the district
court that the Journal would need more time to prepare adequately for
the hearing (id. at 167). The district court therefore entered an
order temporarily restraining the Journal and WJAR from disclosing the
contents of the logs and memoranda, insofar as they related to
Patriarca's son, pending a hearing at 10 a.m. on November 15, less
than 48 hours later (id. at 6-7). Pet. App. A3-A4, A18.
The Journal's counsel informed the Journal's management of the
temporary restraining order later in the afternoon of November 13
(J.A. 34). Nevertheless, over the course of the evening of November
13, the Journal's management decided to publish an article based on
the logs and memoranda the following morning (id. at 121-123,
138-139). The Journal published one article on what it called "the
Patriarca tapes" in its morning edition on November 14 and published
the same article again in the afternoon edition (id. at 34). The
Journal's management was aware at all relevant times that publishing
the article on November 14 would violate the district court's
temporary restraining order (ibid.). The Journal's executive editor,
respondent Hauser, subsequently testified that the decision to publish
was based in part on the belief that the restraining order was an
unconstitutional prior restraint and in part on the belief that
complying with the order "would be a clear signal to people that
frequently like() to block publication of something" (id. at 122-124).
At the scheduled November 15 hearing, the district court extended
the restraining order for four days (J.A. 64-65, 71). Then, on
November 19, the court vacated the order and denied the plaintiff's
motion for a preliminary injunction (id. at 85). The Journal
apparently did not publish any additional articles based on the
information after the restraining order was vacated (Pet. App. A24).
3. On November 14, the day on which the Journal published its
article, Patriarca's son moved to have the Journal and Hauser held in
criminal contempt (J.A. 223). Following a show-cause order and a
hearing, the district court found the Journal and Hauser guilty of
criminal contempt (Pet. App. A1-A22). The court explained that the
purpose of the restraining order "was to hold matters in status quo
pending a brief interlude for research and contemplation" (id. at
A13). That interlude was necessary, the court explained, because even
the Journal had not called the court's attention to any relevant
precedent concerning the court's jurisdiction prior to its decision to
publish (id. at A12); instead, the court noted, the Journal had
requested an extra day to prepare for the hearing on the preliminary
injunction (id. at A10-A11). In these circumstances, the court
concluded, the Journal had no right to "seize() the judicial power to
itself" by defying the order (id. at A22). The district court fined
the Journal $100,000 and ordered Hauser to perform 200 hours of
community service (id. at A23-A26).
On appeal, a panel of the First Circuit overturned the convictions
(Pet. App. A27-A46) because, in its view, the November 13 temporary
restraining order on which the contempt was predicated was
"transparently invalid" under the First Amendment (id. at A45). The
panel recognized that "(a)s a general rule, a party may not violate an
order and raise the issue of its constitutionality collaterally as a
defense in the criminal contempt proceeding" (id. at A32). The panel
concluded, however, that an exception to this general rule is required
when a "transparently invalid" injunction is involved (id. at A33).
The panel determined that none of the grounds put forward in support
of the temporary restraining order -- the FOIA, the federal
wiretapping statute, or the Fourth Amendment -- provided even a
colorable basis for the order, particularly in light of the First
Amendment's heavy presumption against prior restraints (id. at
A38-A41).
The court of appeals, sitting en banc, subsequently modified the
panel's opinion, but it left in place the panel's order reversing the
contempt convictions (Pet. App. A47-A49). The en banc court held that
even when a "transparently invalid" order is involved, the party
subject to the order must "make a good faith effort to seek emergency
relief from the appellate court" before disobeying the order (id. at
A48). Although respondents had made no such effort, the en banc court
nonetheless declined to reinstate the contempt convictions. The court
found itself "without a clear conviction" that timely emergency relief
could have been obtained before the Journal had to make its final
editorial decision about the contents of its November 14 editions.
The court also regarded it as unfair to subject the Journal to
criminal sanctions because it had failed to follow a precedure that
the court of appeals had not previously announced. Id. at A49.
SUMMARY OF ARGUMENT
I. This case involved a contempt based on the violation of an order
of a federal court. The offense in this case is defined by 18 U.S.C.
401(3), which makes it a crime to engage in "(d)isobedience or
resistance" to a federal court's "lawful writ, process, order, rule,
decree, or command." This Court's decisions make clear that an order
is not "lawful" for purposes of criminal contempt if it is beyond the
jurisdiction of the issuing court. At the same time, however, an
order does not cease to be "lawful" merely because it is erroneous.
As long as the order is within the court's jurisdiction, the fact that
the order may later be held to be erroneous does not entitle a person
subject to the order to disregard it with impunity. Moreover, even if
a federal court ultimately lacks jurisdiction over the subject matter
of a case or the authority to grant the requested relief, the court
possesses jurisdiction to determine its jurisdiction at the outset.
As a result, an order designed to preserve the status quo temporarily
while the court reviews the substance of the dispute is a "lawful"
order within the meaning of Section 401(3), and a violation of that
order will support a conviction for criminal contempt.
The court of appeals held that respondents were excused from their
refusal to comply with the temporary restraining order because that
order was "transparently invalid." In our view, however, as long as an
order is within the jurisdiction of the issuing court, Section 401(3)
does not distinguish between "transparently" invalid orders and
"merely" invalid orders; nor do we see any way in which such a
distinction can be given meaningful content. The correctness of an
order is relevant to liability under Section 401(3) only if the order
is invalid because the underlying claim is too insubstantial even to
vest the court with federal-question jurisdiction.
II. Even if the court of appeals is correct in holding that a party
may in some circumstances justifiably refuse to comply with an order
that is manifestly unconstitutional, respondents were not justified in
refusing to comply with the order in this case, because they did not
seek to obtain review of the order before violating it. This Court
has held that when a party believes that a court's order violates his
constitutional rights, he must seek review of that order, rather than
simply defy it.
Respondents did not seek reconsideration from the district court or
emergency relief from the court of appeals based on any asserted
urgency of the matter. To the contrary, while the district court was
prepared to address the question of the propriety of injunctive relief
within 24 hours, respondents sought additional time to brief that
issue. Then, rather than seeking to obtain appellate review of the
order, respondents set out to flout that order on the ground that they
believed it to be improper. Respondents' failure to seek immediate
review of the disputed order -- or to show by their effort to do so
that prompt review was unavailable -- should foreclose them from
arguing that they were entitled to disregard the district court's
order and to proceed as they saw fit.
ARGUMENT
I. REFUSAL TO COMPLY WITH AN ORDER OF A FEDERAL COURT CONSTITUTES
CRIMINAL CONTEMPT IN VIOLATION OF 18 U.S.C. 401(3) UNLESS THE ORDER
EXCEEDS THE JURISDICTION OF THE COURT
1. The power of the federal courts to impose criminal sanctions for
disobedience of their orders was first codified in the Judiciary Act
of 1789. Section 17 of the Judiciary Act, ch. 20, 1 Stat. 83,
provided that the courts of the United States "shall have power * * *
to punish by fine or imprisonment * * * all contempts of authority in
any cause or hearing before the same (courts)." The Judiciary Act did
not attempt to define "contempts of authority," leaving it to the
federal courts to determine what conduct would be deemed contemptuous.
See Frankfurter & Landis, Power of Congress over Procedure in
Criminal Contempts in 'Inferior' Federal Courts -- A Study in
Separation of Powers, 37 Hav. L. Rev. 1010, 1024 (1924); see also In
re Savin, 131 U.S. 267, 275-276 (1889).
In 1831, concern over abuses of this open-ended power led Congress
to enact a new contempt statute that for the first time defined the
types of conduct that could be treated as criminal contempts. The
1831 Act, while purporting to be merely "declaratory" of existing law,
provided:
(T)he power of the several courts of the United
States to * * *
inflict summary punishments for contempts of
court, shall not be
construed to extend to any cases except the
misbehavior of any
person or persons in the presence of the said
courts, * * * the
misbehaviour of any of the officers of the said
courts in their
official transactions, and the disobedience or
resistance by any
officer of the said courts, party, juror,
witness, or any other
person or persons, to any lawful writ, process,
order, rule,
decree, or command of the said courts.
Act of Mar. 2, 1831, ch. 99, Section 1, 4 Stat. 487-488 (emphasis
added). See Bloom v. Illinois, 391 U.S. 194, 202-203 (1968); United
States v. Barnett, 376 U.S. 681, 687 (1964); Nye v. United States,
313 U.S. 33, 45-48 (1941). /5/
The 1831 Act survives today, in substantially its original form, as
Section 401 of Title 18. See Bloom, 391 U.S. at 203-204. The final
clause of Section 1 of the 1831 Act, imposing criminal contempt for
disobedience or resistance to lawful orders of the courts, is
currently codified in Section 401(3). Section 401(3) provides that a
court of the United States shall have the power to punish, by fine or
imprisonment, "(d)isobedience or resistance to (the court's) lawful
writ, process, order, rule, decree, or command." It is therefore
Section 401(3) that governs the liability of respondents in this case.
/6/
2. Section 401(3), like its 1831 predecessor, confines criminal
contempt to violations of "lawful" judicial orders. It seems clear
that Congress deliberately sought to distinguish "lawful" orders,
whose violation constitutes a prima facie case of criminal contempt,
from "unlawful" orders, whose violations does not. The line dividing
the two categories is demonstrated by this Court's precedents.
It has long been settled that a person may not be held in criminal
contempt for violation of an order that exceeds the jurisdiction of
the issuing court. See, e.g., United States v. United Mine Workers,
330 U.S. 258, 291 (1947); In re Sawyer, 124 U.S. 200, 221-222 (1888);
Ex parte Fisk, 113 U.S. 713, 718 (1885); Ex parte Rowland, 104 U.S.
604, 612 (1881); United States v. Thompson, 319 F.2d 665, 668 (2d
Cir. 1963); Heasley v. United States, 312 F.2d 641, 649 (8th Cir.
1963). Thus, if a district court lacks subject matter jurisdiction
over a controversy, violation of an injunction in favor of the
plaintiff does not give rise to criminal contempt (see, e.g., United
Mine Workers, 330 U.S. at 294; Ex parte Rowland, 104 U.S. at 612;
cf. In re Green, 369 U.S. 689, 692 (1962)), at least if the question
of the court's subject matter jurisdiction was not actually litigated
in connection with the issuance of the injunction. See United Mine
Workers, 330 U.S. at 292 n.57; cf. Stoll v. Gottlieb, 305 U.S. 165
(1938); Restatement (Second) of Judgments Section 12 comment c
(1982).
It is equally clear that an order that is within the jurisdiction
of the issuing court is not "unlawful" simply because it is erroneous.
This Court and other federal courts have consistently held that such
orders must be obeyed until they are set aside on appeal; they
therefore may give rise to a conviction for criminal contempt for a
violation that occurred while they were in effect. See, e.g., GTE
Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386 (1980); United
Mine Workers, 330 U.S. at 293; Walker v. City of Birmingham, 388 U.S.
307, 314 & n.5 (1967) (discussing federal precedents); In re Sawyer,
124 U.S. at 220 (quoting Elliott v. Peirsol, 26 U.S. (1 Pet.) 328, 340
(1828)); Worden v. Searls, 121 U.S. 14, 27 (1887); Dolman v. United
States, 439 U.S. 1395 (1978) (Rehnquist, J., Circuit Justice); United
States v. Lowery, 733 F.2d 441, 445-446 (7th Cir.), cert. denied, 469
U.S. 932 (1984); Pennsylvania v. Local Union 542, 552 F.2d 498,
505-506 (3d Cir.), cert. denied, 434 U.S. 822 (1977). /7/
This principle that a court's decision is "to be respected" unless
"reversed for error by orderly review either by itself or by a higher
court" (Howat v. Kansas, 258 U.S. 181, 190 (1922)) "has been uniformly
held to be necessary to the protection of the court from insults and
oppressions while in the ordinary exercise of its duties, and to
enable it to enforce its judgments, and orders necessary to the due
administration of law, and the protection of the rights of suitors"
(Ex parte Fisk, 113 U.S. at 718). By contrast, "'(i)f a party can
make himself a judge of the validity of orders which have been issued,
and by his own act of disobedience set them aside, then are the courts
impotent, and what the Constitution now fittingly calls "the judicial
power of the United States" would be a mere mockery'" (Young, slip op.
8, quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450
(1911)). Such an approach also would invite disrespect for the law.
Accordingly, "'(t)he procedure to enforce a court's order commanding
or forbidding an act should not be so inconclusive as to foster
experimentation with disobedience.'" United States v. Rylander, 460
U.S. 752, 756-757 (1983) (quoting Maggio v. Zeitz, 333 U.S. 56, 69
(1948)).
In light of these well-settled principles, it appears that when
Congress enacted the predecessor to 18 U.S.C. 401(3), it sought to
codify the distinction between orders that are wholly beyond the
jurisdiction of the issuing court and orders that, even if erroneous,
are within the court's jurisdiction (and therefore not subject to
readjudication in a contempt proceeding). By its terms, Section
401(3) -- like its predecessors -- requires not that the underlying
order be "correct," but only that it be "lawful." An order that is
erroneous but nonetheless within the power of the court to issue would
not normally be thought of as unlawful. Although Congress undoubtedly
sought to cabin the authority of federal courts to punish contempts
when it enacted the predecessor to Section 401 in 1831, there is no
indication that it meant to make every judicial order subject to
collateral attack in subsequent criminal contempt proceedings. /8/
3. An additional consideration arises where, as here, the order
that allegedly was violated was issued on a temporary basis to
maintain the status quo pending a more thorough assessment of the
underlying controversy. Compare Walker v. City of Brimingham, 388
U.S. at 333-334 (Warren, C.J., dissenting). Federal courts have
jurisdiction to determine their jurisdiction. 13A C. Wright, A.
Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction
Section 3536 (2d ed. 1984). An order designed to protect this limited
form of jurisdiction by temporarily preserving the status quo is
within a federal court's power, /9/ even if it is subsequently
determined that the court lacks subject matter jurisdiction over the
claim. Accordingly, such an interim order is within the jurisdiction
of the issuing court and therefore "lawful" for purposes of 18 U.S.C.
401(3), and a violation of the order is subject to criminal sanctions
under that statute.
Two decisions by this Court illustrate this principle. United
States v. Shipp, 203 U.S. 563 (1906), involved criminal contempt
proceedings initiated by the Attorney General in this Court against
state officials who had violated a stay of execution issued by the
Court in an appeal from a decision rendered by a circuit court in a
habeas corpus proceeding. The contemnors defended on the ground that
the Court lacked subject matter jurisdiction over the appeal and that
they therefore were not criminally liable for violating the stay
order. The Court rejected that argument, holding that even if the
Court ultimately lacked subject matter jurisdiction, the stay order
was within the Court's inherent power to preserve the status quo while
determining its jurisdiction and therefore supported criminal contempt
(id. at 573):
(E)ven if the Circuit Court had no jurisdiction
to entertain
(the habeas) petition, and if this court had no
jurisdiction of
the appeal, this court, and this court alone,
could decide that
such was the law. It and it alone
necessarily had jurisdiction
to decide whether the case was properly before
it. On that
question, at least, it was its duty to permit
argument and to
take the time required for such consideration as
it might need.
* * * Until its judgment declining jurisdiction
should be
announced, it had authority from the necessity of
the case to
make orders to preserve the existing conditions
and the subject
of the petition * * *.
The Court reached the same conclusion in United States v. United
Mine Workers, supra. At issue in United Mine Workers was a criminal
contempt charge based on violations of a temporary restraining order
prohibiting a coal strike. The Court ruled that even if it ultimately
were held that the Norris-La Guardia Act divested the district court
of authority to enjoin the strike, the district court "had the power
to preserve existing conditions while it was determining its own
authority to grant injunctive relief" (330 U.S. at 293). Accordingly,
"(t)he defendants * * * acted at their peril" in violating the
restraining order and "(t)heir disobedience is punishable as criminal
contempt" (ibid.; see id. at 310-311 (Frankfurter, J., concurring in
the judgment) ("(I)f the district court had power to decide whether
this case was properly before it, it could make appropriate orders so
as to afford the necessary time for fair consideration and decision
while existing conditions were preserved.")). United Mine Workers
"stands for the proposition that a trial court can issue a temporary
restraining order to maintain the status quo while it is determining
its authority to act further in the case." C. Wright, A. Miller & E.
Cooper, supra, Section 3537, at 543 (footnote omitted). The case also
stands for the equally important proposition that violation of such an
order constitutes criminal contempt. /10/
4. The court of appeals suggested that disobedience of a federal
court order does not constitute criminal contempt if the order is
"transparently invalid." The court did not indicate specifically how
orders that are "transparently" invalid are to be distinguished from
orders that are "merely" invalid. Neither did the court attempt to
connect the notion of a "transparently invalid" order to the language
or policies of Section 401(3), a statute that the court of appeals
appears to have overlooked. We submit that the concept of a
"transparently invalid" order is relevant only in a limited fashion
under Section 401(3), and then only as a way of expressing the
principle that criminal contempt cannot rest on orders that are beyond
the jurisdiction of the issuing court. /11/
If a plaintiff's claim is utterly baseless as a matter of federal
law, an injunctive order predicated on the claim would not be "lawful"
for purposes of Section 401(3) -- not because the order is invalid in
some abstract sense, "transparently" or otherwise, but simply because
it rests on a claim that is so insubstantial as to deprive the court
of subject matter jurisdiction. /12/ Even in that situation, as
United Mine Workers and Shipp demonstrate, preliminary injunctive
orders designed to preserve the status quo pending determination of
the jurisdictional question remain "lawful" for purposes of criminal
contempt. Indeed, the specific jurisdictional objection raised by the
contemnors in Shipp was that "the case did not involve the application
of the Constitution, otherwise than by way of pretense" -- in short,
an argument that the case did not present a substantial federal
question. See 203 U.S. at 572.
In applying its test of "transparent invalidity" in this case, the
court of appeals simply analyzed each of the three causes of action
pleaded in the complaint and concluded that none of them would justify
injunctive relief against the Journal (Pet. App. A38-A40). That
approach, however, ignores the fact that the district court was
granting only a two-day temporary restraining order, not permanent or
even preliminary injunctive relief. See id. at A12, A18-A19; J.A.
61. The district court did not have the leisure that the court of
appeals had to determine whether any of the claims in the complaint
could conceivably support a request for an injunction. Nonetheless,
the complaint clearly invoked the district court's subject matter
jurisdiction, and the Journal was clearly subject to the court's
personal jurisdiction. The court therefore had jurisdiction to enter
an order staying the publication of the materials pending a hearing
two days later. For this reason, the order was "lawful" within the
meaning of 18 U.S.C. 401(3), and the district court properly held
respondents in contempt for deliberately violating it.
Nor is this a case in which Congress or the Constitution has
announced any absolute bar to injunctive relief. Although there is a
heavy presumption against prior restraints of any type, this court has
never held that prior restraints are absolutely prohibited. See
Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 558 (1975)
("Prior restraints are not unconstitutional per se."). Moreover, this
Court has never held that a federal court may not ever exercise its
authority to maintain the status quo pending a determination whether a
prior restraint is appropriate in a particular case. To the contrary,
this court itself entered such orders in New York Times Co. v. United
States, 403 U.S. 942 (1971), and United States v. Washington Post Co.,
403 U.S. 943 (1971). See also Morland v. Sprecher, 443 U.S. 709
(1979). The power of a district court to do so is supported not only
by the statutory authority that federal courts have enjoyed since 1789
to issue writs in aid of their jurisdiction (see 28 U.S.C. 1651(a);
Judiciary Act of 1789, ch. 20, Section 14, 1 Stat. 81-82), but also by
the courts' general equitable jurisdiction, the "comprehensiveness of
(which) is not to be denied or limited in the absence of a clear and
valid legislative command." Porter v. Warner Holding Co., 328 U.S.
395, 398 (1946). See also Amoco Production Co. v. Village of Gambell,
No. 85-1239 (Mar. 24, 1987), slip op. 9-10; Weinberger v.
Romero-Barcelo, 456 U.S. 305, 313 (1982); Hecht Co. v. Bowles, 321
U.S. 321, 329-330 (1944).
II. AT LEAST IN THE ABSENCE OF EFFORTS TO HAVE THE TEMPORARY
RESTRAINING ORDER SET ASIDE, RESPONDENTS CANNOT DEFEND AGAINST CHARGES
OF CRIMINAL CONTEMPT ON THE GROUND THAT THE ORDER WAS "TRANSPARENTLY
INVALID"
The panel below acknowledged the general rule, established by this
Court's cases and embodied in 18 U.S.C. 401(3), that an order that is
within the jurisdiction of the issuing court must be obeyed unless and
until it is set aside on further review, and that a person who
violates the order while it remains in effect is subject to punishment
for criminal contempt. See Pet. App. A32-A34. The panel nevertheless
fashioned an exception to that rule for situations in which the order
is collaterally attacked in the contempt proceedings on First
Amendment grounds and the order is found in those proceedings to have
been "transparently invalid" (id. at A34-A38). On rehearing en banc,
the full court of appeals concluded that even where the party believes
that the order is transparently invalid, he cannot raise that defense
in the contempt proceedings unless he made a good faith effort to seek
emergency relief from an appellate court.
We agree with the en banc court of appeals that even where a party
believes that an injunctive order affecting First Amendment rights is
erroneous, he cannot simply take the law into his own hands and defy
the order with impunity. A proper respect for the judicial process
and the compelling governmental interest in ensuring compliance with
judicial orders require that the party make a good faith effort to
have the order set aside on direct review by the issuing court and
appellate courts, rather than attack that order collaterally in
subsequent contempt proceedings. In this case, there is no basis for
believing that prompt relief was foreclosed, because the federal
judicial system is structured to accommodate expedited proceedings.
Since respondents concededly made no effort to seek relief from the
temporary restraining order before they deliberately violated it (J.A.
36), respondents' contempt convictions should be reinstated -- even if
we assume that a party who did seek relief might be excused from
complying with a manifestly unconstitutional order if relief proved to
be unavailable.
1. This Court's decisions make clear that the general principle
that a party cannot "make himself a judge of the validity of orders
which have been issued, and by his own act of disobedience set them
aside" (Gompers, 221 U.S. at 450), applies in full force to orders
that are alleged to be invalid on constitutional grounds. Thus, in
Walker v. City of Birmingham, where an injunction (prohibiting parades
and demonstrations) was challenged on First Amendment grounds, the
Court held (388 U.S. at 314 (quoting Howat v. Kansas, 258 U.S. at
189-190)):
An injunction duly issuing out of a court of
general
jurisdiction with equity powers upon pleadings
properly invoking
its action, and served upon persons made parties
therein and
within the jurisdiction, must be obeyed by them
however
erroneous the action of the court may be, even if
the error be
in the assumption of the validity of a seeming
but void law
going to the merits of the case. It is for
the court of first
instance to determine the question of the
validity of the law,
and until its decision is reversed for error by
orderly review,
either by itself or by a higher court, its orders
based on its
decision are to be respected, and disobedience of
them is
contempt of its lawful authority, to be punished.
Consistent with this principle, the Court in Walker rejected the
contention "that the Constitution compelled Alabama to allow the
petitioners to violate this injunction * * * without any previous
effort on their part to have the injunction dissolved or modified, or
any attempt to secure a parade permit in accordance with its terms"
(388 U.S. at 315).
The Court expressed a similar view in Vance v. Universal Amusement
Co., 445 U.S. 308 (1980), which involved a First Amendment challenge
to a state statute that authorized a court to issue an order imposing
a prior restraint of indefinite duration on the exhibition of films
that had not been finally determined to be obscene. The Court held
that the particular statutory scheme violated the First Amendment
because it did not contain adequate procedural safeguards to assure
that the merits were promptly resolved and that the prior restraint
pendente lite was correspondingly limited (445 U.S. at 315-316). But
the Court stated that where a court does temporarily bar exhibition of
a film under such a scheme, "(p)resumably, an exhibitor would be
required to obey such an order pending review of its merits and would
be subject to contempt proceedings even if the film is ultimately
found to be nonobscene" (445 U.S. at 316 & n.15, citing Walker and
United Mine Workers). See also Carroll v. President and Commissioners
of Princess Anne, 393 U.S. 175, 179 (1968) (the parties followed the
"proper procedure" under Walker by seeking review of an injunction
that barred demonstrations and complying with the injunction pending
review); National Socialist Party v. Village of Skokie, 432 U.S. 43,
44 (1977); Morland v. Sprecher, 443 U.S. at 709-710; cf. Pasadena
City Board of Education v. Spangler, 427 U.S. 424, 439 (1976). /13/
2. Although the Court in Walker adhered to the established rule
that a party must obey even an allegedly unconstitutional order until
it is set aside, the Court did state that "(the) 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 frustration of their constitutional
claims" (388 U.S. at 318). But the Court observed that there was no
indication that the petitioners' claims would have encountered such a
reception in the state courts and that, in any event, the petitioners
"g(a)ve absolutely no explanation of why they did not make some
application to the state court" to modify the injunction during the
two-day period between its issuance and the scheduled date of one the
marches (id. at 318-319). The Court explained that the injunction had
been entered ex parte and that the trial court therefore might have
modified or dissolved it if the petitioners had presented that court
with their arguments concerning the breadth and vagueness of the
injunction and the municipal ordinance it was intended to enforce, as
well as their claims of discriminatory enforcement (ibid.). The court
further explained that if the trial court had denied relief, "Alabama
procedure would have provided for an expedited process of appellate
review"; and it "(could not) be presumed that the Alabama courts
would have ignored the petitioners' constitutional claims," since
similar contentions were accepted by an Alabama appellate court in
another case (id. at 319 (footnote omitted)).
Walker thus teaches, as a corollary to the principle that a
judicial order must be obeyed until it is set aside, that where there
are facially valid procedures for seeking review of a restraining
order, a party who is subject to that order cannot collaterally attack
its constitutionality in subsequent contempt proceedings unless, at a
minimum, he first sought to invoke those procedures and was denied a
meaningful opportunity for relief.
3. In this case, as in Walker, applicable rules and procedures in
the federal judicial system afforded respondents several avenues for
seeking relief from the restraint that the district court imposed on
the Journal's publication of the information it had obtained from the
FBI.
a. As an initial matter, respondents could have sought relief from
the district court. Preliminary orders in civil litigation often are
entered before the court has had a full opportunity to review the
substance of the parties' contentions. In particular, temporary
restraining orders often are entered solely to preserve the status
quo, with only limited attention to the merits of the parties'
underlying claims. See, e.g., Granny Goose Foods, Inc. v. Brotherhood
of Teamsters Local 70, 415 U.S. 423, 441-444 (1974). For that reason,
a litigant who has substantial legal and equitable objections to a
temporary restraining order will often be able to obtain relief from
the issuing court, which might either vacate the restraining order or
decline to enter a preliminary injunction when the restraining order
expires at the end of the 10-day period specified by Fed. R. Civ. P.
65(b) or the lesser period specified by the issuing court.
In this case, there was no reason for respondents to forgo the
opportunity to obtain relief from the district court. That court
indicated in its opinion holding respondents in contempt that prior to
publication of the article on November 14, 1985, the Journal had not
called to the court's attention any authority relevant to the question
of the court's jurisdiction to bar publication (Pet. App. A12-A13),
and the court was not even informed of the precise nature of the
material that the plaintiff sought to have withheld from the public
when it entered the temporary restraining order (id. at A17; J.A.
60).
Moreover, by proposing to set a hearing for the day after it
entered the restraining order, the district court manifested its
intention to resolve immediately the question of continuing the
restraint. See J.A. 73. /14/ But rather than take advantage of that
opportunity for an especially expeditious resolution, the Journal's
attorney informed the court that he could not be prepared for a
hearing the next day, and for that reason the court postponed the
hearing -- and extended the restraining order -- for an additional day
(Pet. App. A3, A18). Respondents therefore are in no position to
argue that the district court would not have given expeditious
consideration to their objections to an order that they now claim was
"transparently invalid." compare Morland v. Sprecher, 443 U.S. at
709-710. Nor did respondents take other steps, such as asking the
district court to expedite the hearing, when they decided to violate
the restraining order before the scheduled date of the hearing on
November 15. Respondents also failed to notify the district court and
the other parties, even though the request by the Journal's attorney
for additional time presumably left the district court and the other
parties with the impression that the Journal intended to respect the
restraining order while it remained in effect.
Finally, when the district court did rule on the plaintiffs'
request for a preliminary injunction -- on November 19, 1985, which
was only six days after the restraining order was issued -- the court
denied that request in light of respondents' constitutional arguments
(J.A. 73-85). Thus, if respondents had followed orderly procedures in
the district court, it is highly likely that the matter would have
been resolved promptly, and in a manner favorable to respondents.
b. Aside from the possibility that the district court would have
granted relief, respondents could have sought appellate review of the
restraining order. The panel noted that "the Journal arguably had
avenues of appellate relief immediately available to it" (Pet. App.
A44 (footnote omitted)). For example, the panel observed that under
First Circuit precedent, the district court's order, although labeled
a temporary restraining order, might have been immediately appealable
as of right under 28 U.S.C. 1292(a)(1) on the ground that it was
essentially the equivalent of an injunction. See Pet. App. A44 &
n.70, citing Societe Generale de Surveillance v. Ratheon European
Management & Systems Co., 643 F.2d 863, 864-865 n.2 (1st Cir. 1981).
/15/ Furthermore, if the restraining order was as far beyond the scope
of the district court's authority as respondents maintain, the court
of appeals presumably could have granted mandamus relief under 28
U.S.C. 1651 and Fed. R. App. P. 21(a). See Kerr v. United States
District Court, 426 U.S. 394, 402 (1976) (quoting Will v. United
States, 389 U.S. 90, 95 (1967) ("'exceptional circumstances amounting
to a judicial "usurpation of power" will justify the invocation of
this extraordinary remedy'")); see also Societe Nationale
Industrielle Aerospatiale v. United States District Court, No. 85-1695
(June 15, 1987), slip op. 4-5.
It is also clear that procedures were available by which
respondents could have sought expedited appellate review. The courts
of appeals, like all courts of the United States, are "deemed always
open for the purpose of filing proper papers, issuing and returning
process, and making motions and orders." 28 U.S.C. 452. Although the
Federal Rules of Appellate Procedure and the local rules of the courts
of appeals establish schedules for the consideration of appeals, Fed.
R. App. P. 2 permits a court of appeals to suspend the appellate rules
"(i)n the interest of expediting decision." The advisory committee
note to Rule 2 states that "(t)he primary purpose of this rule is to
make clear the power of the courts of appeals to expedite the
determination of cases of pressing concern to the public or to the
litigants by prescribing a time schedule other than that provided by
the rules." /16/ In light of respondents' claims concerning the
pressing concern to the Journal and to the public of any prior
restraint on publication, there is no reason to believe that the First
Circuit would have ignored its duty to assure expedited consideration
of an appeal. Indeed, if the restraining order was as manifestly
invalid as the court of appeals believed when it entertained
respondents' collateral attack on that order in these contempt
proceedings, it presumably would not have taken long for the court of
appeals to reach the same conclusion if respondents had sought direct
review of the order. Cf. Walker, 388 U.S. at 319. /17/
c. The federal system thus afforded the means for respondents to
obtain expeditious consideration of their First Amendment objections
to the temporary restraining order. Those procedures are fully
consistent with this Court's holding in National Socialist Party v.
Village of Skokie, 432 U.S. at 44, that "(i)f a State seeks to impose
a restraint (on expression), it must provide strict procedural
safeguards, Freedman v. Maryland, 380 U.S. 51 (1965), including
immediate appellate review, see Nebraska Press Assn. v. Stuart, 423
U.S. 1319, 1327 (1975) (Blackmun, J., in chambers)." See also Vance,
445 U.S. at 316-317; Morland, 443 U.S. at 709; Southeastern
Promotions, 420 U.S. at 559-562. Accordingly, under Walker,
respondents were obligated to seek review of the order within the
judicial framework. See United States v. Dickinson, 465 F.2d 496, 511
(5th Cir. 1972).
4. The en banc court of appeals concluded (Pet. App. A49) that
respondents should not be held in contempt because it did not have a
"clear conviction" that emergency relief could have been obtained from
the court of appeals within the period of 8 1/2 hours between the
entry of the district court's order and the hour at which respondents
had to decide whether to include the article in the next day's
editions of their newspaper. As an initial matter, there is no reason
to believe that the court of appeals would have been unable to
entertain any submission by respondents within that period. At the
very least, respondents were under an obligation to present the matter
to that court, since they were under a presumptively valid restraining
order that barred the publication. And even if we assume that
respondents could ever have been excused from at least attempting to
seek relief on direct review of the allegedly unconstitutional order
(but cf. Engel v. Isaac, 456 U.S. 107, 130 (1982)), respondents bore
the burden of justifying their failure to do so. See Walker, 388 U.S.
at 319. The en banc court therefore clearly erred in excusing
respondents from the consequences of their deliberate disregard of the
judicial process on the ground that the court was not convinced that
relief actually would have been available.
The more fundamental flaw in the en banc court's reasoning,
however, is its assumption that the question whether there was an
adequate opportunity for appellate relief must be determined by
reference to respondents' own publishing deadlines. To be sure,
respondents were of the view that any delay in the publication of the
material at issue was a continuing violation of the First Amendment
and would cause irreparable injury (cf. Nebraska Press Ass'n v.
Stuart, 427 U.S. 539, 560-561 (1976)), and that their interest in
publishing at will was not outweighed by the interest of the courts in
having sufficient time for "mature consideration of the questions
involved" (Morland, 443 U.S. at 712 (White, J., dissenting)) and the
interest of the plaintiff in having his claim considered on the merits
prior to publication. But the manner in which those interests should
be weighed was not for respondents to decide. That was a judicial
function, to be performed by the district court, the court of appeals,
or this Court in ruling on an application by respondents for emergency
relief. For just as a party cannot "make himself a judge" of the
validity of an order at the time it was entered, "and by his own act
of disobedience set (it) aside" (Gompers, 221 U.S. at 450), so too a
party cannot make himself a judge of whether the order should continue
in effect pending the time that the appropriate court determines is
required for appellate review.
Respondents' preferred publishing schedule of course was a factor
that an appellate court would have taken into account -- along with
the possibility of irreparable injury to other parties, the likelihood
of success on the merits, and the public interest -- in determining
the course and timing of appellate proceedings. But the First
Amendment did not render respondents' self-imposed deadline for
publishing the material a binding deadline for the courts to perform
their responsibility of disposing of the case presented to them. See
Dickinson, 465 F.2d at 511-512. /18/
5. Because respondents failed to invoke facially adequate
procedures for setting aside the temporary restraining order on direct
review, they cannot collaterally attack that order in these contempt
proceedings. Contrary to the belief of the en banc court (Pet. App.
A49), this was not a new requirement, announced for the first time in
its opinion. As we have explained, that requirement has been a
fundamental principle of contempt jurisprudence from the earliest
days, and it was followed in essentially identical circumstances in
Walker. See 388 U.S. at 319-321. The en banc court of appeals
therefore erred in excusing respondents from their procedural default
because of a supposed lack of awareness of a duty to seek relief from
the temporary restraining order.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
CHARLES FRIED
Solicitor General
RICHARD K. WILLARD
Assistant Attorney General
WILLIAM C. BRYSON
Deputy Solicitor General
EDWIN S. KNEEDLER
Assistant to the Solicitor General
DOUGLAS N. LETTER
SCOTT MCINTOSH
Attorneys
NOVEMBER 1987
/1/ The district court chose not to ask a representative of the
Department of Justice to undertake the prosecution because the Federal
Bureau of Investigation and the Department of Justice were defendants
in the underlying civil action from which the contempt charge arose
(Pet. App. A5). However, the United States is a party to many civil
and criminal cases from which contempt proceedings arise, and the
United States commonly has an interest in the underlying proceeding
that is either consistent with or contrary to the interest of the
party who is charged with contempt. That fact alone does not
disqualify a government attorney from pursuing criminal contempt
charges referred by the district court. In this case, the charge of
contempt involved the conduct of the Journal, not that of the FBI or
the Department of Justice, and it was brought solely to vindicate the
authority of the district court, not to advance the private interests
of the plaintiff (or the governmental interests of the FBI or the
Department of Justice) in the civil action. There is no reason to
believe that under these circumstances a government attorney would
have encountered a conflict of interest, or otherwise would have found
his independent judgment compromised, in prosecuting the contempt
charge against respondents.
Moreover, this case is not like Young, in which the private
attorney appointed to prosecute the criminal contempt on behalf of the
public had a private client who might have conflicting interests. In
that situation, the policies underlying a criminal
conflict-of-interest statute (18 U.S.C. 208(a)), as well as ethical
standards, barred the dual representation. In this case, by contrast,
the government attorney would have a single client -- the United
States -- in the underlying civil action and the criminal contempt
prosecution, and there would be no statutory or regulatory prohibition
against his representing that single client in the two separate
proceedings.
/2/ Under 28 U.S.C. 518(a), unless the Attorney General otherwise
directs, the Solicitor General must conduct and argue all cases in
this Court "in which the United States is interested." In light of the
decision in Young, we believe that this provision is best read as
referring to cases in which the United States is "interested" by
virtue of the constitutional and statutory responsibilities of the
Executive Branch. Where, as in Young and the instant case, a contempt
is punished in proceedings that are wholly internal to the Judicial
Branch as an ancillary aspect of its powers under Article III (see
Young, slip op. 7-12) -- rather than by a prosecution initiated by the
Executive Branch in accordance with its responsibilities under Article
II and 28 U.S.C. 547 -- proceedings in this Court arising out of the
contempt citation would fall outside the scope of Section 518(a). For
that reason, we do not believe that the authorization of the Solicitor
General is required in order for the specially appointed private
attorney to seek review in this Court on the district court's behalf.
/3/ In addition, plaintiff alleged (J.A. 209) and the Journal's
November 14 article reported (id. at 10) that WJAR had broadcast a
news story on November 6 based on information it had obtained from the
FBI. The record does not suggest that the actions of the Hartford
Courant and WJAR disclosed all of the relevant information from the
voluminous FBI materials, and there is no indication that respondents
urged the district court to deny or terminate the restraining order on
the ground that the relevant information was already in the public
domain. See id. at 58-88, 142-143.
/4/ The government also opposed the temporary restraining order
(Pet. App. A29).
/5/ The 1831 legislation was prompted by the action of District
Judge Peck, who jailed and disbarred an attorney for publicly
criticizing one of the judge's rulings. That episode culminated in
Judge Peck's impeachment by the House of Representatives, although he
was acquitted in the Senate. See Bloom, 391 U.S. at 203; Nye, 313
U.S. at 45-48; Frankfurter & Landis, supra, 37 Harv. L. Rev. at
1024-1027; Nelles & King, Contempt by Publication in the United
States, 28 Colum. L. Rev. 401, 423-430 (1928).
/6/ We do not understand this Court's recent decision in Young to
suggest that litigants may be subjected to criminal liability for
violation of orders in circumstances that are not covered by 18 U.S.C.
401. The Court noted in Young that federal courts have long been held
to "possess inherent authority to initiate contempt proceedings for
disobedience to their orders" (slip op. 5). The Court also noted,
however, that the contempt power is subject to regulation by Congress,
as long as that regulation does not "'abrogate() nor render
practically inoperative'" the courts' exercise of that power (slip op.
11, quoting Michaelson v. United States ex rel. Chicago, S.P., M & O.
Ry., 226 U.S. 42, 66 (1924)). The 1831 statute and its successors
have been upheld as a valid form of regulation of the contempt power.
See Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510-511 (1873)
(preexisting authority of inferior federal courts over the subject
matter of criminal contempts was validly limited by the 1831 Act).
/7/ See also Sheet Metal Workers Local 28 v. EEOC, No. 84-1656
(July 2, 1986), slip op 16 n.21 (quoting Maggio v. Zeitz, 333 U.S. 56,
69 (1948) ("a 'contempt proceeding does not open to reconsideration
the legal or factual basis of the order alleged to have been disobeyed
and thus become a retrial of the original controversy'")).
/8/ The contemporaneous understanding of the scope of habeas corpus
jurisdiction supports the view that when Congress referred to "lawful"
orders in the 1831 statute, it meant orders that are within the
jurisdiction of the court to issue. One year earlier, in a decision
construing the first federal habeas corpus statute, the Court referred
to the concept of a lawful order in precisely that way. Ex parte
Watkins, 28 U.S. (3 Pet.) 193, 203 (1830) ("An imprisonment under a
judgment cannot be unlawful, unless that judgment be an absolute
nullity; and it is not a nullity, if the court has general
jurisdiction of the subject, although it should be erroneous.")
/9/ See 28 U.S.C. 1651(a): "The Supreme Court and all courts
established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to
the usages and principles of law."
/10/ The Court noted in United Mine Workers that a different result
might follow "were the question of jurisdiction frivolous and not
substantial" (330 U.S. at 293). Justice Frankfurter, who provided the
necessary fifth vote in favor of sustaining the district court's
injunction, explained that this exception would apply only where the
district court's jurisdictional authority "ha(d) unquestionably been
withheld" by Congress (id. at 310 (Frankfurter, J., concurring in the
judgment)). Accord In re Green, 369 U.S. at 693 (Harlan, J.,
concurring in part and dissenting in part) (disobedience of a
temporary restraining order may be punished as criminal contempt where
the court's "claim to jurisdiction over the underlying proceeding is
not frivolous"); GTE Sylvania, 445 U.S. at 386 (quoting Walker v.
City of Birmingham, 388 U.S. at 315 ("'only a frivolous pretense to
validity'")). Compare Stump v. Sparkman, 435 U.S. 349, 357-360
(1978). In this case, even if the district court ultimately lacked
authority to grant relief, the question of its jurisdiction cannot be
dismissed as "frivolous," nor was its jurisdiction "unquestionably * *
* withheld" by Congress.
/11/ As the court of appeals noted, this Court's opinion in Walker
states that "this is not a case where the injunction (underlying the
contempt conviction) was transparently invalid * * *" (388 U.S. at
315). It is unclear from the Court's opinion what significance, if
any, the Court meant to attach to that fact. The Court presumably did
not mean to deny that the injunction was an unconstitutional prior
restraint, for the Court at the same time acknowledged that both the
injunction and the permit ordinance on which it was based presented
"substantial constitutional question(s)" (id. at 316-317), and the
Court unanimously struck down the ordinance as an unconstitutional
prior restraint two Terms later in Shuttlesworth v. City of
Birmingham, 394 U.S. 147 (1969). Thus, the reference to "transparent
invalidity" in Walker must be read as referring to an injunction that
is not merely unconstitutional, or even plainly unconstitutional, but
so utterly without basis that the issuing court is acting as "a
pretender to, not a wielder of, judicial power" (United Mine Workers,
330 U.S. at 310 (Frankfurter, J., concurring in the judgment)).
Whatever its failings, the injunction in this case was not such an
order; it was no more "transparently invalid" than the injunction in
Walker itself.
/12/ A complaint that states a federal claim on its face may
nonetheless fall outside the reach of federal question jurisdiction,
but such cases are rare: prior decisions must render the claim
inescapably frivolous (Goosby v. Osser, 409 U.S. 512, 518 (1973)), or
the claim must be so insubstantial as to be clearly without merit.
Hagans v. Levine, 415 U.S. 528, 536 (1974).
/13/ Different procedures have been developed in the case of the
assertion of a claim of privilege during a criminal trial or grand
jury proceeding. Rather than allowing an immediate appeal from a
judicial order rejecting the claim, which might disrupt the
proceeding, the Court has construed the applicable statutory
provisions to foreclose such an appeal and instead to allow a
challenge to the order to be raised as a defense in a contempt
proceeding, if the subject of the order chooses to resist compliance.
See, e.g., United States v. Ryan, 402 U.S. 530, 532-533 (1971);
Cobbledick v. United States, 309 U.S. 323 (1940); see also Maness v.
Meyers, 419 U.S. 449, 460-461 (1975). These cases demonstrate that a
legislature may provide different ways to challenge the validity of a
judicial order. The Walker case makes clear that there is no
constitutional bar to a scheme that requires, in the case or
prohibitory injunctions, that a challenge to the injunction be made,
if at all, by a motion to the issuing court to modify the order or on
direct appeal of the order, rather than by collateral attack in the
ensuing contempt proceeding. In Ryan, the Court confirmed that its
"holding (in Walker) that the (constitutional) claims * * * sought to
be asserted were not open on review of petitioners' contempt
convictions was based on the availability of review of those claims at
an earlier stage" (402 U.S. at 532 n.4).
/14/ Respondents thus were not confronted in the trial court with a
procedural system that provided for an injunction pendente lite of
indefinite duration, which was the defect the Court found in the
provision for judicial imposition of prior restraints in Vance v.
Universal Amusement Co., supra. See 445 U.S. at 316-317. Nor does
the federal system permit the sort of ex parte prior restraints that
were found to violate the First Amendment in Carroll, 393 U.S. at
180-185. Rule 65(b), Fed. R. Civ. P., provides that a temporary
restraining order may not be issued without notice to the opposing
party, unless it clearly appears that irreparable injury will result
and the applicant's attorney details the efforts that have been made
to give notice and the reasons why notice should not be required. In
any event, the order in this case was not issued ex parte, and counsel
for the Journal in fact opposed it on the ground that any prior
restraint would violate the First Amendment (Pet. App. A29; J.A. 166,
169, 170-173).
/15/ In view of the special sensitivity under the First Amendment
of even a brief prior restraint, as well as respondents' claims of
irreparable injury resulting from such an order, the temporary
restraining order reasonably could be regarded as having the same
substantive impact as a preliminary injunction, which is immediately
appealable under 28 U.S.C. 1292(a)(1). See Sampson v. Murray, 415
U.S. 61, 86-87 (1974); OPM v. AFGE, 473 U.S. 1301, 1304-1305 (1985)
(Burger, Circuit Justice); Belknap v. Leary, 427 F.2d 496, 498 (2d
Cir. 1970); cf. National Socialist Party v. Village of Skokie, 432
U.S. at 45. See generally 9 J. Moore, B. Ward & J. Lucas, Moore's
Federal Practice Paragraph 110.20(5) (2d ed. 1987).
/16/ See also Rule 27.1 of the Rules of the United States Court of
Appeals for the First Circuit.
/17/ If the court of appeals had refused to grant relief on a
timely basis, respondents could have applied to this Court for a writ
or mandamus (see, e.g., Morland v. Sprecher, supra), a stay of the
district court's order pending the First Circuit's disposition of the
appeal (see, e.g., M.I.C. Ltd. v. Bedford Township, 463 U.S. 1341,
1343 (1983) (Brennan, J., Circuit Justice)), or a writ of certiorari
before judgment (see Morland, 443 U.S. at 712 (White, J.,
dissenting)).
/18/ We note as well that two factors in this case undermine any
claim of urgency in the publication of the material. First, the
article at issue here reported converstations that had taken place
more than 20 years earlier, and therefore did not constitute the sort
of fast-breaking news for which immediate publication is intrinsically
necessary. Second, as of November 13, 1985, the Journal had been in
possession of the FBI memoranda and logs for almost five months. J.A.
96-97. Although another newspaper had published an article based on
the same materials, respondent Hauser testified that the Journal was
not influenced in its publishing decision by the prospect that other
newspapers were "rushing into print" (id. at 142-143). Moreover, the
fact that the Journal's banner headline in the November 14 editions
concerned the court's restraining order, rather than the substance of
the material, suggests that respondents might have decided to publish
the material specifically because of, not in spite of, the restraining
order. See also id. at 124, 139-141, 150, 183.