THE "COLLATERAL BAR" RULE AND
THE FIRST AMENDMENT: THE
CONSTITUTIONALITY OF
ENFORCING
UNCONSTITUTIONAL ORDERS*
RICHARD
E.
LABUNSKI**
TABLE OF CONTENTS
Introduction
I. Federal Case Law: The Constitutionality of Enforcing
Unconstitutional Orders ...............................
333
A. Walker v. Birmingham ...............................
334
B. United States v. Dickinson ............................
337
C. United States v. CBS ................................
344
II. State Case Law: Inconsistency and Confusion .......... 348
A. W ashington .......................................
348
B. Illinois ............................................
354
C. Arizona ...........................................
356
D . California .........................................
360
E. M assachusetts .....................................
362
F. Alabam a ...........................................
362
III. Rejection of Dickinson at the Federal Level: Providence
Journal .................................................
364
IV. Supreme Court Review of ProvidenceJournal: State-byState Adjudication or National Standards? ..............
369
V. A Possible Compromise: Appeal First, Disobey Second. 374
INTRODUCTION
An essential element of a democratic society is an independent
© 1988 Richard Labunski
Assistant Professor, School of Communications, University of Washington, B.A.
1975, M.A. 1977, Ph.D. 1979 (political science), University of California.
*
**
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judiciary that can protect individual liberties. Judges must be able
to enforce their decisions and vindicate the authority of courts by
punishing those who disobey judicial orders. Judges do this by exercising their power of contempt.1 Without the authority to force
compliance with their orders, courts would be merely advisory and
could not function.
The contempt power of judges is as awesome as it is indispensable. Nowhere in our political system can an individual exercise authority comparable to that of a judge holding someone in criminal
contempt. By finding someone guilty of contempt and ordering that
person jailed or fined, a court combines the roles of grand jury,
1. Criminal contempt of court is a willful disregard for judicial authority. The purpose
of a criminal contempt proceeding is to "vindicate the authority of the court and to deter
similar derelictions." 3 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2D § 702,
at 809 (2d ed. 1982). Willfulness is an essential element of criminal contempt. See United
States v. United Mine Workers, 330 U.S. 258, 303 (1947) (holding that one who willfully
disobeys a court order is subject to a criminal contempt order). Although civil contempt is
distinct from criminal contempt, the two are sometimes so closely intertwined that it is difficult to tell where one ends and the other begins. Civil contempt is primarily brought to preserve and enforce the rights of private parties in a suit and to compel obedience to orders and
decrees made for the benefit of the parties. Id at 303-04. A person may be punished for
criminal contempt for defying the authority of a court in a civil action. For a discussion of
criminal and civil contempt, see In re Timmons, 607 F.2d 120, 123-24 (5th Cir. 1979). In
some cases, it is difficult for an appellate court to determine, based on the record, whether the
contempt conviction was criminal or civil. See Fitchburg v. 707 Main Corp., 369 Mass. 748,
759, 343 N.E.2d 149, 154 (1976) (noting that case may be remanded for determination of
whether civil or criminal contempt is appropriate). One observer has written:
The distinction between civil and criminal contempt is not clear cut. The same act in
different situations may be regarded as either civil or criminal. Contempt has been
regarded as criminal if the purpose is to punish the contemnor for misconduct in the
presence of the court or for conduct out of the court's presence challenging its authority, and the contemnor is fined a fixed amount or imprisoned for a definite term;
it is regarded as civil if the primary purpose is to coerce compliance with a court
order, usually for the benefit of an injured suitor, and the contemnor is imprisoned
only until he complies. Whether the contempt is civil or criminal depends on the
judicial decision maker.
Kutner, Contempt Power: The Black Robe-A ProposalforDue Process, 39 TENN. L. REV. 1, 8 (1971)
(discussing development of court's contempt power). For a review of the development of
contempt in state and federal courts, see generally Bloom v. Illinois, 391 U.S. 194 (1968)
(holding that serious criminal contempts, which are determined by sentence imposed, are
subject to Constitution's jury trial safeguards); Cheff v. Schnackenberg, 384 U.S. 373 (1966)
(rejecting notion that Constitution guarantees right to jury trial in all criminal contempt cases,
but not explaining if right extends to serious offenses); Shillitani v. United States, 384 U.S.
364 (1966) (finding that federal courts have civil contempt power to enforce their lawful orders); Craig v. Harney, 331 U.S. 367 (1947) (stating that newspaperman's contempt conviction for unfairly reporting events of pending state trial violates constitutional right of freedom
of expression because judiciary has no special power to suppress or censor reports of pending
litigation); Pennekamp v. Florida, 328 U.S. 331 (1946) (stating that criticism of judge's inclinations or actions do not present clear and present danger to justice and do not warrant
punishment for contempt); Bridges v. California, 314 U.S. 252 (194 1) (finding that judicial
punishment for contempt must be scrutinized, particularly when freedom of expression is
affected); Nye v. United States, 313 U.S. 33 (1941) (discussing court's power to use criminal
contempt as punishment for out-of-court publication of pending case); Exparte Robinson, 86
U.S. (19 Wall.) 505 (1874) (noting that contempt power is inherent in all courts, except as
limited by congressional acts).
1988]
THE "COLLATERAL BAR" RULE & THE FIRST AMENDMENT
325
prosecutor, and judge. Subsequent appeals or reconsideration may
ultimately modify or overturn the contempt order, but these do little
to compensate the alleged contemnor who may already have spent
2
time behind bars.
Serious constitutional problems arise when the contempt power
clashes with other compelling interests, especially those guaranteed
by the first amendment.3 Freedom of speech and press enjoy a
near-sacred position in our system. Any statute, court order, or administrative policy that restricts their exercise is subject to strict judicial scrutiny and must clear numerous constitutional hurdles.
Although first amendment freedoms enjoy this "preferred position," 4 other constitutional rights, such as the right to a fair trial, are
also indispensable to a free society. When those fundamental rights
clash, judges must weigh the competing interests and determine
how each is best preserved. 5 This balancing of interests is often difficult for even the most conscientious judge.
The issues become even more complicated when judges illegally
restrict the exercise of first amendment rights by issuing invalid orders and attempt to force compliance under threat of contempt.
The most common circumstance in which unconstitutional orders
2. Ajudge often will suspend ajail sentence until the alleged contemnor has exhausted
all appeals. But cf Goldblum v. NBC, 584 F.2d 904 (9th Cir. 1978) (finding that pre-publication censorship is inherent threat to expression and that press is not required to defend actions until after expression). In Goldblum, an NBC attorney was jailed when he refused to turn
over a documentary that was to be aired the following evening so that the judge could check
for inaccuracies. Id. at 906. The Ninth Circuit, issuing a writ of mandamus, reversed the trial
court's order and invalidated the contempt citation as an unconstitutional prior restraint. Id.
at 907.
3. See, e.g., id. at 906-07 (recognizing need for limitations on courts' contempt power
when first amendment values are at stake); Craig v. Harney, 331 U.S. 367, 372-76 (1947)
(noting that freedom of speech should not be hindered unless serious threat to justice is
imminent); Bridges v. California, 314 U.S. 252, 260-72 (1941) (holding that freedom of press
must be given broadest scope possible and must not be restricted absent "clear and present"
danger to orderly administration ofjustice).
4. For development of the "preferred position" theory, see Thomas v. Collins, 323 U.S.
516, 530 (1945) (finding that presumption supporting legislation must be weighed against
preference given to freedoms of first amendment); Murdock v. Pennsylvania, 319 U.S. 105,
115 (1943) (holding that it is immaterial that ordinance is nondiscriminatory because first
amendment rights stand in preferred position and cannot be easily restricted);Jones v. Opelika, 316 U.S. 584, 608 (1942) (Stone, C.J., dissenting) (noting that Constitution places freedom of expression in preferred position), vacated, 319 U.S. 103 (1943) (per curiam)
(reaffirming reasoning in Murdock); United States v. Carolene Products Co., 304 U.S. 144,
152-53 (1938); Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) (stating that freedom of
expression is essential to all other freedoms). See generally R. LABJNSKI, LIBEL AND THE FIRST
AMENDMENT: LEGAL HISTORY AND PRACTICE IN PRINT AND BROADCASTING
(1987) (surveying
history of "preferred position" theory and arguing that legislation infringing first amendment
values must be justified by overwhelming social considerations).
5. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 556-62 (1976) (balancing freedom
of expression against sixth amendment right to fair trial); Organization for a Better Austin v.
Keefe, 402 U.S. 415, 418-20 (1971) (balancing right to privacy against freedom of
expression).
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are issued against the press occurs when judges restrain journalists
in advance of publication in a fair trial/free press context. The
Supreme Court has declared that "any prior restraint on expression
comes to this Court with a 'heavy presumption' against its constitutional validity,"' 6 and will be tolerated only under the most limited
circumstances. 7 Yet judges, arguing that restraints on publication
are sometimes necessary to protect the rights of the parties and the
authority of the court, issue such orders even while recognizing that
8
they most likely will be overturned on appeal.
A journalist against whom a constitutionally infirm order is directed must choose among several options: 1) comply by not publishing and suffer a chilling of first amendment rights; 2) comply but
attempt to get the order vacated or modified expeditiously on appeal, hoping that such relief will come before the time of publica6. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (finding heavy
burden needed tojustify restraint of speech).
7. Compare Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 568-70 (1976) (holding that
court order restraining media from publishing admissions of murder suspect until jury was
impaneled violates first amendment rights) and New York Times, Co. v. United States, 403
U.S. 713, 714 (1971) (per curiam) (finding that government did not carry heavy burden required to support prior restraint on newspaper's publication of classified material regarding
government's Vietnam policy) and Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713, 721-23
(1931) (concluding that statute which authorized public officials to bring publishers of "malicious, scandalous, and defamatory" periodicals before judge to prove material is true and
published in good faith was unconstitutional restraint of freedom of expression) with United
States v. Progressive, Inc., 467 F. Supp. 990, 997-1000 (W.D. Wis. 1979) (upholding restraining order enjoining publication of restrictive data detailing method for constructing hydrogen bomb because vital national security interests outweighed constitutional doctrine
against prior restraint).
8.
In Cooperv. Rockford Newspapers, Inc., the trial judge imposed a contempt citation after
an Illinois district court of appeals had already determined that the underlying injunction was
unconstitutional. 50 Ill. App. 3d 250, 251, 365 N.E.2d 746, 747 (1977). Never in its history
has the United States Supreme Court upheld a prior restraint on "pure speech." The Court
has stated that "[i]f it can be said that a threat of criminal or civil sanctions after publication
'chills' speech, prior restraint 'freezes' it at least for the time." Nebraska Press Ass'n v. Stuart,
427 U.S. 539, 559 (1976). When speech is combined with conduct, as when picketing, restraints on these and similar first amendment activities have been upheld by the Court. Compare Walker v. Birmingham, 388 U.S. 307 (1967) (upholding contempt conviction based on
violation of court order prohibiting participation in parade without permit) and United States
v. United Mine Workers, 330 U.S. 258 (1947) (upholding contempt conviction based on violation of order restraining picketing of mine) with Nebraska Press Ass'n, 427 U.S. at 539 (striking
down gag order prohibiting publication of murder suspect's admissions until jury impaneled)
and New York Times, Co. v. United States, 403 U.S. 713 (1971) (holding that newspaper
could not be restrained from publishing documents). Courts have been more likely to uphold
contempt convictions based on violations of orders involving conduct than those involving
pure speech. Compare Mead School Dist. v. Mead Educ. Ass'n, 85 Wash. 2d 278, 285, 534 P.2d
561, 567 (1975) (en banc) (upholding contempt conviction where continuation of strike violated court order) and State v. Chavez, 123 Ariz. 538, 543, 601 P.2d 301, 306 (1979) (upholding contempt conviction where picketing violated court order) with State ev reL Superior Court
v. Sperry, 79 Wash. 2d 69, 74, 483 P.2d 608, 613 (en banc) (reversing contempt conviction
based on court order that limited freedom to write and publish), cert. denied, 404 U.S. 939
(1971) and Phoenix Newspaper, Inc. v. Superior Court, 101 Ariz. 257, 260,418 P.2d 594, 597
(1966) (reversing contempt conviction where court order restrained pure speech).
1988]
THE "COLLATERAL
BAR" RULE & THE FIRST AMENDMENT
327
tion; or 3) disobey the order and suffer consequences such as a
contempt conviction, which often carries severe penalties. 9 The
journalist's decision is complicated by several factors, the most significant of which is the "collateral bar" rule.
The collateral bar rule requires that court orders, even those later
determined to be unconstitutional, must be complied with until
amended or vacated.' 0 The rule also requires that once a publisher
violates the order, he loses the right to collaterally challenge the
order's constitutionality as a defense to a contempt charge." The
rule, in effect, requires journalists to either accept almost certain
conviction for contempt, or obey the order, seek review, and forfeit
the first amendment rights they seek to exercise. 12 The rule places
in the hands of the judiciary the power to threaten contempt to
force temporary obedience to invalid orders that never should have
been issued. Depending on the nature of the case and the jurisdiction in which it is heard, application of the collateral bar rule and the
consequences for disobeying even invalid orders can vary
3
substantially.1
Despite severe criticism of the application of the collateral bar
rule in first amendment cases, 14 the rule is recognized in many
states 15 and has been given substantial blessing by the Supreme
9. There may also be a fourth choice for journalists; they could appeal the original
order and if disposition of the case does not come before press time, publish the article and
then collaterally attack the original order when the case is considered on appeal. Some courts
have suggested a willingness to consider collateral attacks when the appeal did not come in
time, as opposed to disobeyance of the order without an effort to have it modified or overturned. Compare Cooper v. Rockford Newspapers, Inc., 50 Ill. App. 3d 250, 252, 365 N.E.
746, 747 (1977) (recognizing that defendant had appealed temporary restraining order and
allowing collateral attack) with State v. Chavez, 123 Ariz. 538, 539, 601 P.2d 301, 302 (1979)
(holding that union could not collaterally attack order because it failed to appeal injunction or
seek review by special action). An important issue in these cases is how quickly appellate
courts can hear cases involving gag-orders and other forms of prior restraint. Appellate
courts often are unable to consider an appeal before publication, which may be within a few
days of the order.
10. In re Providence Journal Co., 820 F.2d 1342, 1346 (1st Cir. 1986), cert. granted sub
noma.United States v. Providence Journal Co., 56 U.S.L.W. 3242 (U.S. Oct. 5, 1987) (No. 8765).
11.
Id.
12. Id. at 1352 n.71.
13. See infra notes 64-324 and accompanying text (discussing status of collateral bar rule
in various jurisdictions).
14. See Note, Defiance of UnlawfulAuthority, 83 HARV. L. REV. 626, 634-36 (1970) (discussing unfairness of rule and citing numerous legal scholars criticizing rule); see also State ex rel.
Superior Court v. Sperry, 79 Wash. 2d 69, 74, 483 P.2d 608, 611 (1971) (stating that collateral bar rule is justifiably criticized because unconstitutional order precludes party from engaging in lawful activity and denies party adequate remedy), cert. denied, 404 U.S. 939 (1972);
cf In re Berry, 68 Cal. 2d 137, 147-48, 280-81, 436 P.2d 273, 280-82, 65 Cal. Rptr. 273 (1968)
(holding that violation of unconstitutional order cannot result in punishment for contempt).
15. See Exparte Purvis v. Local Union No. 1317, 382 So. 2d 512, 514 (Ala. 1980) (adopting the collateral bar rule); State v. Chavez, 132 Ariz. 538, 543, 545, 601 P.2d 301, 306 (1979)
(adopting collateral bar rule); see also Mead School Dist. v. Mead Educ. Ass'n, 85 Wash. 2d
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Court and the United States Court of Appeals for the Fifth Circuit. 16
Some states have attempted to define the circumstances under
which ajudicial order that unconstitutionally restricts the exercise of
first amendment rights may be disobeyed. 17 Several jurisdictions
have held that a party subject to an order that constitutes a "transparently invalid" prior restraint on speech may challenge the order
by violating it and collaterally attacking the validity of the order on
appeal.' 8 Other courts enforce the collateral bar rule without exception and have upheld contempt citations based on unconstitutional orders.' 9
The collateral bar rule in prior restraint cases differs from the
more accepted practice of reversing a conviction for violating a statute that is later declared unconstitutional. The Supreme Court has
defended the collateral bar rule, reasoning that "no man can be
judge in his own case, however exalted his station, however righteous his motives." ' 20 The rule is also thought to foster respect for
278, 285, 534 P.2d 561, 565 (1975) (en banc) (upholding contempt conviction that was based
on invalid restraining order).
16. See Walker v. Birmingham, 388 U.S. 307 (1967) (holding that party cannot collaterally attack order enjoining them from participating in parade without permit); United States v.
Dickinson, 465 F.2d 496 (5th Cir. 1972) (finding criminal contempt appropriate when contemnor violated unconstitutional order rather than obey it and seek judicial review); see also
infra notes 45-113 and accompanying text (discussing Walker and Dickinson).
17. See infra notes 144-287 and accompanying text (surveying state cases). The survey of
state cases in section II of this article includes those jurisdictions that have specifically considered the issue of the applicability of the collateral bar rule to first amendment cases where a
contempt conviction is being appealed. While most states have heard cases involving prior
restraint and disobedience of invalid orders, few have focused directly on the question of the
validity of the contempt conviction after the original order has been invalidated. Although
the list is illustrative and not exhaustive, it represents most of the state activity that deals
specifically with the issues raised in this article.
18. See In re Providence Journal Co., 820 F.2d 1342, 1346-47 (1st Cir. 1986) (recognizing
exception to collateral bar rule for transparently invalid orders), cert. grantedsub nom. United
States v. ProvidenceJournal Co., 56 U.S.L.W. 3242 (U.S. Oct. 5, 1987) (No. 87-65); Fitchburg
v. 707 Main Corp., 369 Mass. 748, 754, 343 N.E.2d 149, 154 (1976) (holding that ordinance
found unconstitutionally vague on its face cannot sustain contempt); State a rel. Superior
Court v. Sperry, 79 Wash. 2d 69, 78, 483 P.2d 608, 613 (en banc) (finding that contempt
order that was violated was transparently invalid), cert. demied, 404 U.S. 939 (1971); In re Berry,
68 Cal. 2d 137, 155-56, 436 P.2d 273, 280, 65 Cal. Rptr. 273, 285-86 (1968) (holding that
there cannot be contempt when order is constitutionally void on its face, even though injunction is not transparently invalid); Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257,
418 P.2d 594 (1966) (noting that court order prohibiting publication of events transpiring
during course ofjudicial hearing violated Arizona Constitution and therefore was void).
19. See, e.g., Walker v. Birmingham, 388 U.S. 307, 314-20 (1967) (holding that injunction
enjoining participation in parade without permit raises constitutional questions, but that petitioners must seekjudicial review of injunction before disobeying order); United States v. Dickinson, 479 F.2d 373 (5th Cir. 1973) (upholding contempt conviction based on order that 5th
Circuit had previously found unconstitutional); Ex parte Purvis, 382 So. 2d 512, 514-15 (Ala.
1980) (finding that order enjoining strike must be complied with until reversed or amended
by judicial proceeding because order was not transparently invalid and no exigent circumstances existed).
20. Walker v. Birmingham, 388 U.S. 307, 320-21 (1967) (recognizing exceptions to the
collateral bar rule may undermine its rationale). If the principle is that respect for the courts
1988]
THE "COLLATERAL
BAR"
RULE & THE FIRST AMENDMENT
329
courts and the entire judicial system. 2 1 Although challenging the
constitutionality of a statute by violating it also encourages disrespect for the law, the benefit of identifying unconstitutional laws is
worth the potential harm to the legitimacy of the judicial system. An
argument could be made that society is as well served by those who
defy unconstitutional injunctions.22
A comparison between two cases, Walker v. Birmingham23 and Shuttlesworth v. City of Birmingham,24 will illustrate how disobeying an injunction differs from a willful violation of a statute. Both these cases
arose from the same events. The petitioners in Walker disobeyed an
injunction forbidding them from holding marches in Birmingham to
requires that an individual not have the right to decide which orders are to be obeyed, then
recognition of any exception to the collateral bar rule encourages those faced with potentially
unconstitutional orders to decide if the judicial order is frivolous or the issuing court lacks
jurisdiction.
Jurisdiction is both a complex and key element in determining whether a collateral attack
on an unconstitutional order will be allowed. For example, subject matter jurisdiction differs
from personal jurisdiction. In some cases, however, courts have simply stated that because
the order was void on its face or transparently invalid, the court lacked jurisdiction to have
issued it, without specifying the type ofjurisdiction they are referring to. See In re Berry, 68
Cal. 2d 137, 147-48, 436 P.2d 273, 279-80, 65 Cal. Rptr. 273, 280 (1968) (finding that under
California law any act that exceeds defined powers of court is in excess of jurisdiction and
cannot sustain a valid judgment for contempt); State ex reL Superior Court v. Sperry, 79 Wash.
2d 69, 74, 483 P.2d 608, 611 (finding that void order, unlike erroneous one, is beyond court's
jurisdiction and may be collaterally attacked), cert. denied, 404 U.S. 939 (1971). But see Mead
School Dist. v. Mead Educ. Ass'n, 85 Wash. 2d 278, 284, 534 P.2d 561, 565 (1975) (en banc)
(distinguishing between lack ofjurisdiction to issue particular order and lack ofjurisdiction to
issue type of order;, only latter situation will vitiate a contempt judgment).
21. For an eloquent statement of this principle, see United States v. Dickinson, 465 F.2d
496, 509-10 (5th Cir. 1972) (stating that contempt powers are essential to judicial legitimacy
and effectiveness).
One area in which the Supreme Court appears to have severely limited the application of
the collateral bar rule is when gag orders are used to prohibit publication of information
obtained in open court. The Court has held that truthful reporting by the press of events that
occur in open court is protected by the first amendment. See Oklahoma Publishing Co. v.
District Court, 429 U.S. 967 (1976) (staying gag order that enjoined publication of name or
picture of minor involved in pending delinquency proceeding because information became
available at hearing open to press); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 568 (1976)
(stating that nothing prevents press from reporting courtroom events (citing Sheppard v.
Maxwell, 384 U.S. 333, 362-63 (1966))); cf Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
(1975) (holding that television station could broadcast name of woman who had been raped
and murdered because information was truthfully reported and obtained from public
records). Under such circumstances, therefore, it seems appropriate forjournalists to disobey
a gag order against publication of material obtained in open court without forfeiting the right
to challenge its validity. See id. at 557 (arguing that because open court reporting is protected
from prior restraint, it is protected from subsequent punishment as well); accord Wood v.
Goodson, 253 Ark. 196, 201, 485 S.W.2d 213, 217 (1972) (overturning order prohibiting
newspaper from reporting jury's verdict while related case was pending, and reversing contempt conviction of newspaper editor that published verdict because information was obtained in open court).
22. See Redish, The ProperRole of the PriorRestraintDoctrine in FirstAmendment Theory, 70 VA.
L. REv. 53, 94 (1984) (emphasizing that costs associated with identifying unconstitutional injunctions are outweighed by benefits).
23. 388 U.S. 307 (1967).
24. 394 U.S. 147 (1969).
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protest racial discrimination. 25 When they marched without seeking
modification or repeal of the injunction, the petitioners were convicted of criminal contempt. 2 6 The Supreme Court upheld their
convictions despite its strong suggestion that both the injunction
and the ordinance on which the order was based were unconstitutional. 27 The petitioners were also prosecuted and convicted of violating the ordinance. 28 In Shuttlesworth, the Supreme Court held that
the Birmingham ordinance was unconstitutional on its face as an unwarranted prior restraint on the exercise of free speech. 2 9 The
Court reversed the petitioners' convictions for violating the ordinance and noted that its past decisions "have made clear that a person faced with such an unconstitutional licensing law may ignore it
and engage with impunity in the exercise of the right of free expression for which the law purports to require a license." 3 0 The difference between the two cases was the type of authority that the
petitioners defied. In Walker, an order from a court unlawfully restricting the exercise of first amendment rights was upheld; in Shuttlesworth, the statute on which the court order was based was found
invalid.
The circumstances under which prior restraint orders are issued
raise questions about the validity of the collateral bar rule. Rarely
are news organizations able to contest in a full, procedurally adequate hearing an injunction restricting coverage of a pending criminal trial. A trial judge, concerned about prejudicial publicity that
makes impaneling an impartial jury difficult, often issues an ex parte
restraining order that reporters must obey. s ' While such summary
powers are legitimate tools of the judiciary, they may also prevent
journalists from getting their "day in court" before being ordered
to forfeit some of their first amendment rights. Under such circumstances, a collateral attack on appeal affords the first opportunity for
a thorough consideration of the constitutional claims of the
journalist.
The issues become more complicated when there is an adversarial
hearing providing some procedural protection held in advance of
25. Walker v. Birmingham, 388 U.S. 307, 309-11 (1967).
26. Id. at 317-21.
27. Id.
28. Id. at 311-13.
29. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51 (1969).
30. Id. at 151.
31. See State ex reL Superior Court v. Sperry, 79 Wash. 2d 69, 75, 483 P.2d 608, 612 (en
banc) (providing that trial court may restrain press to keep information from jury, but order is
viewed with rebuttable presumption that it is unconstitutional), cert. denied, 404 U.S. 939
(1971).
1988]
THE "COLLATERAL
BAR" RULE
&
THE FIRST AMENDMENT
331
the restraining order. In order to obtain a prior restraint order, the
party seeking the order must advance a significant interest to justify
the restraint on speech. The existence of sufficiently compelling
governmental interests to issue the injunction does not necessarily
indicate that these interests are sufficient to prevent those to whom
such an order is directed from collaterally attacking the order on
32
appeal.
Supreme Court precedent indicates that a prior restraint order in
33
a free press/fair trial context will probably be reversed on appeal.
The crucial issue, therefore, is not whether journalists will eventually win on appeal, but what to do about a restraining order that may
prevent them from publishing news in a timely manner.3 4 If jour32. Redish, supra note 22, at 93-99. Redish vigorously argues against the collateral bar
rule:
The same principle applies to statutes invoked against expression activity: no one
suggests that a justification sufficiently compelling to uphold such a statute would
further justify a refusal to allow an intentional violator to challenge the statute's constitutionality as a defense to a prosecution. Because no strong justification exists for
the collateral bar rule in any context-at least as long as criminal prosecutions for
violations of statutes are not deemed to require a similar rule-it follows that the
collateral bar rule has never been justified in the enforcement of a preliminary
injunction.
Id. at 98-99. Redish also argues that if there has been a "full and fair hearing by a competent
judicial forum" prior to the injunction, then there is no constitutionally based reason why
someone should be able to raise the first amendment issue a second time. Id. at 97. Allowing
this issue to be raised "would be to permit two bites at the judicial apple, a practice not
required by either the first amendment or due process." Id.
33. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (holding that restraining
order that prevented press from reporting confession was unconstitutional prior restraint); id
at 570-71 (White, J., concurring) (wondering whether prior restraint in fair trial context could
ever be constitutional). The test the Court established in Nebraska PressAssociation requires: 1)
a finding of persuasive publicity affecting jurors; 2) a finding that there are no alternative
methods available to the court other than issuance of a prior restraint on the press; and 3) a
finding that the prior restraint will be effective. Id at 562-67; see Goodale, The Press Ungagged:
The PracticalEffect on Gag Order Litigation of Nebraska Press Association v. Stuart, 29 STANFORD L.
REV. 497, 497 (1977) (arguing that if substantial publicity surrounding murders in Nebraska
Press Association did not justify prior restraint order, it would be difficult to imagine a case that
would). Goodale notes that:
Nebraska Press Association involved a sexually-motivated mass murder in a small town
with an admission of guilt made by the defendant to relatives and a confession to
public officials. Certainly, "a confession or a statement against interest is the paradigm" of prejudicial information that could reach jurors. Nonetheless, the majority
opinion concluded that the trial judge could only speculate as to the prejudicial effects on potential jurors of publicity concerning these inflammatory events and
therefore that a prior restraint was not justified.
Id. at 503. Goodale observed that prior to the case, lawyers for the press "had thought that
national security cases were the sole exception to the constitutional prohibition against prior
restraints on the press." Id. at 497. Despite the Supreme Court's unwillingness to prohibit all
such orders, the three-step test developed in Nebraska Press Association makes it highly unlikely
that such an order would be upheld on appeal. Idl at 503-04.
34. For example, in United States v. Schiavo, a trial court had issued a verbal order forbidding reporters from publishing information about a pending indictment of a defendant on
other crimes while a perjury trial was in progress. 504 F.2d 1, 3 (3d Cir. 1974). The Philadelphia Inquirer disobeyed the district court order by publishing the information. Id. at 3. The
332
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
nalists assume that the prior restraint order will be overturned, they
may choose to disobey the order and challenge its constitutionality
while appealing the contempt conviction. They know that if the order is not violated before press time, the news that had been restrained may never be published. News gets old very quickly and
the public often has an interest in only the most current news
events. A restraining order that may preserve the status quo in nonfirst amendment cases has a more drastic effect on news-gathering
where journalists prevented from publishing for even brief periods
of time are deprived of their first amendment rights.3 5
In United States v. Dickinson,3 6 the United States Court of Appeals
for the Fifth Circuit upheld the collateral bar rule as applied to con-
tempt citations for violations of restraint orders subsequently found
unconstitutional.3 7 Since Dickinson, many newspapers have been appealing restraint orders rather than disobeying them even if they
suspect that the orders are invalid.38 This decision reversed the preDickinson practice of disobeying orders and attacking them collaterally.3 9 Other news organizations are giving a liberal interpretation
Third Circuit struck down the order as procedurally deficient without reaching the constitutional issues. Id. at 6-8. The timing of the order shows how difficult it can be to obtain appellate relief prior to the time of publication. The trial court's order was issued at 2:00 p.m., the
court denied a motion to vacate two hours later, and the jury returned a verdict in the perjury
trial the same afternoon. The court of appeals did not grant a stay of the court's order until
five days later. In the words of the appellate court, "by the time the strictures of the district
court's order were lifted, the information covered by the order had, for all practical purposes,
lost its timeliness." Id. at 10. See also ABC v. Smith Cabinet Mfg. Co., 160 Ind. App. 367, 312
N.E.2d 85 (1974). In Smith Cabinet, ABC appealed a judge's restraining order requiring the
network to change certain parts of a documentary it was planning to air a few days later. ABC
violated the judge's order by not making the changes, and appealed the order only after the
documentary was aired. Id. at 370, 312 N.E.2d at 87. The court rejected Smith Cabinet's
argument that broadcasters are entitled to less first amendment protection than print journalists. Id. at 373, 312 N.E.2d at 91. See generally R. LABUNSKI, THE FIRST AMENDMENT UNDER
SIEGE: THE POLrncs OF BROADCAST REGULATION (1981) (questioning whether broadcasting
industry should receive less first amendment protection than print journalists). The court
also rejected the company's contention that it had been libeled by the broadcast. Smith Cabinet, 160 Ind. App. at 370, 312 N.E.2d at 88.
35. Justice Brennan, concurring in Nebraska Press Ass'n, noted that the gag orders eventually struck down were in effect for over 11 weeks. 427 U.S. 539, 609 n.38 (1976). Goodale
noted the irony of this situation: "Having fought off governmental censorship successfully for
centuries, the American press suddenly found itself faced with censorship maintained by the
judiciary, the one branch of government that historically had protected the press from the
others." Goodale, supra note 33, at 505.
36. 465 F.2d 496 (5th Cir. 1972).
37. United States v. Dickinson, 465 F.2d 496, 509-10 (5th Cir. 1972).
38. See United States v. Schiavo, 504 F.2d 1, 10 (3d Cir. 1974) (newspaper followed
proper appeal process and eventually order was found invalid).
39. See, e.g., Cooper v. Rockford Newspapers, Inc., 34 Ill. App. 3d 645, 648, 339 N.E.2d
477, 479 n.1 (1975) (newspaper disobeyed restraining order by publishing article on restricted topic six days after order was entered and prior to notice of appeal); New York Times,
Co. v. Starkey, 51 A.D.2d 60, 62-63, 380 N.Y.S.2d 239, 241-42 (App. Div. 1976) (New York
Times published several articles concerning background of criminal case and thereby disobeyed oral order prior to and during attack on order); Oliver v. Postel, 30 N.Y.2d 171, 177,
1988]
THE "COLLATERAL
BAR" RULE & THE FIRST AMENDMENT 333
to some sections of Dickinson and Walker by assuming that they must
40
simply initiate the appeals process prior to disobeying the order.
Taking the necessary steps toward direct appeal prior to press time
may increase the chances of a successful collateral attack. 4 ' In some
jurisdictions, a pending, and not necessarily successful appeal, may
be all that is necessary. 4 2 But in many courts, the issues remain
unsettled.
While the first amendment enjoys unparalleled reverence in our
system, it is not absolute and must be balanced with other constitutional rights, such as that of a fair trial. 4 3 Courts in various jurisdictions have looked at the same history of the collateral bar rule and
the first amendment and have come to very different conclusions
regarding how they ought to be balanced. This Article surveys the
case law addressing the applicability of the collateral bar rule to first
amendment cases involving an appeal of a contempt conviction.
Part I discusses early federal case law and Part II addresses states'
interpretations of the federal cases. Recent changes in federal case
law are analyzed in Part III. Part IV suggests approaches the
Supreme Court might take when it addresses the collateral bar issue
this term in ProvidenceJournal. Part V posits a compromise to balance the competing interests of free press and respect for the
judiciary.
I.
FEDERAL CASE LAW: THE CONSTITUTIONALITY OF ENFORCING
UNCONSTITUTIONAL ORDERS
Although contempt predates the Constitution, and has been subject to both common law interpretation and limitation by statute,
282 N.E.2d 306, 307, 331 N.Y.S.2d 407, 410 (1972) (Newspapers defied oral order not to
publish articles or editorials on background of defendant in criminal trial before attacking
order); see also Goodale, supra note 33, at 505-07 (maintaining that tradition of disobeying and
collaterally attacking potentially invalid orders should continue in state and federal courts
despite holdings in Dickinson and Walker).
40. Section II of this Article focuses on what in fact newspapers are doing in light of the
Dickinson and Walker decisions.
41. Goodale, supra note 33, at 509-11.
42. See infra notes 144-287 and accompanying text (surveying state cases).
43. See generally Z. CHAFEE, FREE SPEECH IN THE UNrED STATES (1941); Brennan, The
Supreme Court and the Meiklejohn Interpretationof the First Amendment, 79 HARV. L. REv. 1 (1965)
(noting that "absolute view" of first amendment never commanded majority within Supreme
Court); Meiklejohn, The FirstAmendment Is an Absolute, THE SUPREME COURT REVIEW 245, 255
(1961) (arguing that first amendment does not protect unlimited freedom to speak, but freedom of "those activities of thought and communication by which we govern"); see also In re
Farber, 78 NJ. 259, 394 A.2d 330 (1978). In Farber,a New York Times reporter was jailed for
contempt after he was called as a defense witness in a murder trial and declined to provide
testimony that would reveal the name of his confidential sources. Id at 274-76, 394 A.2d at
332. Despite having one of the most protective shield laws in the nation, the New Jersey
Supreme Court held that the defendant's sixth amendment rights outweighed the statutory
and constitutional rights of both the reporter and the newspaper. Id. at 274, 394 A.2d at 337.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
the issue of the validity of contempt citations based on unconstitutional orders is a relatively recent phenomenon. 44 This issue was
first addressed by the Supreme Court in 1967, in Walker v. Birmingham.4 5 Walker generally is cited as the seminal authority for the
proposition that even unconstitutional orders must be obeyed until
overturned on appeal. Walker also has been interpreted as establishing several exceptions to the application of the collateral bar in first
amendment cases.
A.
Walker v. Birmingham
In Walker, the Supreme Court upheld the contempt conviction of
civil rights activists who disobeyed an Alabama circuit court's order
forbidding street parades without a permit.4 6 The Alabama judge
rejected the petitioners' claim that the temporary injunction was
"vague and overbroad," and that it "restrained free speech." 47 A
key concern for the Alabama court was that the petitioners had not
filed a motion to vacate the injunction until after the parades were
held, and had made no effort to comply with the judge's order by
48
applying for a permit from the city commission.
In sustaining the contempt convictions, the Supreme Court upheld the principle that even unconstitutional orders must be
obeyed. 49 The Court recognized the strong interest of state and lo44. See generally R. GoLDFARB, THE Co=rrEMPrr POWER (1963) (tracing history of contempt). Statutory limits on contempt in federal courts emanate primarily from The Contempt
Statute of 1831 (1831 Act), which Congress enacted in direct response to a federal district
judge's imprisonment of a writer who criticized one of the judge's opinions. Id. at 22. Congress intended the 1831 Act to eliminate constructive contempt. Id. at 21-22. The 1831 Act
was limited to misbehavior in the presence of the court, disobedience of process, and discipline of court officers. Id. at 21. Significantly, the 1831 Act omitted summary contempt in
cases where the administration ofjustice was not obstructed. Id.
45. 388 U.S. 307 (1967). The Supreme Court's commitment to the principles behind the
collateral bar rule, however, were developed long before Walker. In 1922, the Court accepted
the rule that injunctions must always be obeyed. The Court noted:
An injunction duly issuing out of a court of general jurisdiction.., must be obeyed
... 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.
Howat v. Kansas, 258 U.S. 181, 189-90 (1922). The Supreme Court recognized, however,
that a defendant could challenge the jurisdiction of the court issuing the injunction in a contempt proceeding. Id. at 189.
46. Walker v. Birmingham, 388 U.S. 307, 312 (1967). Thejudge imposed sentences of
five days in jail and a $50 fine. Id. In another case, the Supreme Court later held that the
ordinance under which the order in Walker was issued violated the first amendment. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).
47. Walker, 388 U.S. at 311.
48. Id. at 310, 318.
49. Id. at 320.
1988]
THE "COLLATERAL
BAR" RULE & THE FIRST AMENDMENT 335
cal governments in regulating the use of streets and other public
places. 50 The Court held that Alabama courts had jurisdiction over
both the petitioners and the subject matter in the case, and noted
that this was not "a case where the injunction was transparently invalid or had only a frivolous pretense to validity." 5 1 This dictum is
especially important because several state and federal courts have
interpreted this language to mean that if an injunction is transparently invalid or has only a frivolous pretense to validity, it may be
disobeyed and challenged on appeal as a defense for a contempt
52
conviction.
In Walker, the Supreme Court implied that the court's injunction
and city ordinance unconstitutionally restrained the exercise of first
amendment rights. 53 The Court also noted that the breadth and
vagueness of the injunction itself would be subject to substantial
constitutional scrutiny. 54 The majority observed, however, that
these issues did not arise because the petitioners had not applied to
55
the Alabama courts to have the injunction modified or dissolved.
Lower courts cannot ignore the decision in Walker when applying
the collateral bar rule in their jurisdictions. Yet, since Walker, many
lower courts, examining the same language in Walker, have come to
different conclusions concerning the application of the collateral bar
rule. 56 In Walker, the Supreme Court sharply criticized the petitioners' methods of disobedience and upheld the requirement that judicial orders be respected. The decision, however, implicitly
recognized two important exceptions to the collateral bar rule: (1)
when the injunction is transparently invalid, and (2) when the court
lacks jurisdiction to issue the injunction. 5 7 These exceptions encouraged courts in subsequent cases to allow a collateral attack of
the injunctions when the content of the order or the jurisdiction of
the court could be challenged. 58
50. Id. at 315 (citing Adderley v. Florida, 385 U.S. 39 (1966); Poulos v. New Hampshire,
345 U.S. 395 (1953); Kovacs v. Cooper, 336 U.S. 77 (1949); Cox v. New Hampshire, 312 U.S.
569 (1941)).
51. Walker v. Birmingham, 388 U.S. 307, 315 (1967).
52. See In re Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir. 1986) (noting that
"unmistakable import of [IWalker] language is that a transparently invalid order cannot form
the basis for a contempt citation"). In trying to apply Walker, courts have given various definitions to "transparent invalidity," sometimes requiring that certain procedural requirements
be followed by courts issuing restraining orders against the press before the collateral bar rule
can be invoked.
53. Walker, 388 U.S. at 316.
54. Id at 317.
55. Id.
56. See infra notes 144-287 and accompanying text (discussing state courts' interpretations of Walker and Dtckinson).
57. Walker v. Birmingham, 388 U.S. 307, 315 (1967).
58. See infra notes 156-58, 172-76, & 256-59 and accompanying text (noting cases that
336
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
Although the Supreme Court in Walker expressed sympathy for
the petitioners' "impatient commitment to their cause," it held that
"respect for the judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom." 5 9 The Court stressed that the petitioners had
ample opportunity to appeal the Alabama court's order before the
scheduled parade. 60 Furthermore, the Court noted that the situation in Walker would have been different had a proper appeal been
6
made and then not expeditiously considered by an Alabama court. '
The language could be interpreted to imply that the decision in
Walker requires only that the petitioner attempt to appeal a void restraining order up to the time the conduct subject to the restraining
order occurs. Based on this interpretation of Walker, a collateral attack becomes a means for testing a void order.
The Court in Walker, however, erroneously assumed that appeals
courts are always available for expeditious consideration of prior restraint orders that prevent the press from publishing timely information. This is not always the case; in numerous cases, the period
of time between the injunction and reversal on appeal was many
months.
In a strong dissent joined by Justices Brennan and Fortas, Chief
Justice Warren argued that disobeying a void injunction is constitutionally equivalent to violating an unconstitutional statute, which is
permissible. 6 2 Chief Justice Warren rejected the argument that an
exception to the collateral bar rule would prevent courts from
63
functioning.
permitted collateral attack on order that was transparently invalid or when court lacked jurisdiction to issue order).
59. Walker, 388 U.S. at 321.
60. Id. at 319.
61. Id. at 318-19. The Court stated that:
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 frustration of their constitutional claims. But there is no
showing that such would have been the fate of a timely motion to modify or dissolve
the injunction. There was an interim of two days between the issuance of the injunction and the... march ....The injunction had been issued ex parte; if the court had
been presented with the petitioners' contentions, it might well have dissolved or at
least modified its order in some respects. If it had not done so, Alabama procedure
would have provided for an expedited process of appellate review.
Id.
62. Walker, 388 U.S. at 327 (Warren, C.J., dissenting).
63. Id. (Warren, CJ., dissenting). ChiefJustice Warren wrote:
They (petitioners) were in essentially the same position as persons who challenge the
constitutionality of a statute by violating it, and then defend the ensuing criminal
prosecution on constitutional grounds. It has never been thought that violation of a
statute indicated such a disrespect for the legislature that the violator must be punished even if the statute was unconstitutional. On the contrary, some cases have
1988]
THE "COLLATERAL BAR" RULE
& THE FIRST AMENDMENT 337
Walker set the stage for state and federal courts to determine
within their own jurisdictions the circumstances under which the
collateral bar rule would be applied. Yet Walker had made it clear
that the Supreme Court was sharply divided over the issues. The
exceptions noted by the majority and the vigorous dissenting opinions in Walker all but guaranteed that application of the rule would
vary by jurisdiction.
B.
United States v. Dickinson
Although the Court in Walker identified several exceptions to the
collateral bar rule, other courts have embraced the principle that
unconstitutional orders must be obeyed without exception. 64 Nowhere has this principle been upheld with more reverence than in
the United States Court of Appeals for the Fifth Circuit's decision in
United States v. Dickinson.6 5 The court in Dickinson held that contempt
citations resulting from disobedience of unconstitutional orders are
valid. 66 Chief Judge Brown, in a unanimous decision, began his
opinion by calling the case a "civil libertarians' nightmare," with a
confrontation between "two of the most cherished policies of our
civilization-freedom of the press ... and the right of the accused to
a fair and impartial trial."' 67 He did not note, however, that the decision in Dickinson to uphold the contempt order interrupted the
steady progress toward judicial consensus on the issue of collateral
attack in first amendment case law. Prior to Dickinson, a number of
state and federal courts had been moving toward allowing exceprequired that persons seeking to challenge the unconstitutionality of a statute first
violate it to establish their standing to sue. Indeed, it shows no disrespect for law to
violate a statute on the ground that it is unconstitutional and then submit one's case
to the courts with the willingness to accept the penalty if the statute is held to be
valid.
Id. (Warren, CJ., dissenting). In a dissent joined by ChiefJustice Warren andJustices Douglas and Fortas, Justice Brennan wrote:
[B]y some inscrutable legerdemain these constitutionally secured rights to challenge
prior restraints invalid on their face are lost if the State takes the precaution to have
some judge append his signature to an ex parte order which recites the words of the
invalid statute .... Were it not for the ex parte injunction, petitioners would have
paraded first and challenged the permit ordinance later. But because of the ex parte
stamp of ajudicial officer on a copy of the invalid ordinance they are barred not only
from challenging the permit ordinance, but also the potentially more stifling yet unconsidered restraints embodied in the injunction itself.
Id. at 346-47 (Brennan, J., dissenting). Justice Brennan concluded that: "The Court today
lets loose a devastatingly destructive weapon for infringement of freedoms jealously safeguarded not so much for the benefit of any given group ... as for the benefit of all of us." Id.
at 349 (Brennan, J., dissenting).
64. See Ex pare Purvis, 382 So.2d 512, 514 (Ala. 1980) (concluding that court orders
must be obeyed even if the order is constitutionally invalid).
65. 465 F.2d 496 (5th Cir. 1972).
66. United States v. Dickinson, 465 F.2d 496, 505 (5th Cir. 1972).
67. Id. at 499 (quoting Bridges v. California, 314 U.S. 252, 260 (1941)).
338
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
tions to the collateral bar rule in first amendment cases. 68 Thus,
courts writing after Dickinson have either felt bound by its dictates or
69
have spent many pages explaining why it is not controlling.
In Dickinson, two newspaper reporters were fined by the United
States District Court for the Eastern District of Louisiana for violat70
ing an order not to report on the details of a pre-trial hearing.
The hearing focused on a man accused of conspiring to murder the
mayor of Baton Rouge. 71 The accused, Frank Stewart, a VISTA volunteer active in civil rights endeavors on behalf of the black community, alleged that the state court prosecution was groundless and
intended solely to harass him and suppress his first amendment
rights. 72 Stewart sought injunctive relief from the district court.
The court declined to restrain the state court prosecution, 73 but was
ultimately reversed by the Fifth Circuit, which remanded the case
74
for a new hearing.
During the second hearing, the judge issued an order to keep
newspaper reporters from discussing the details of the hearing, stating that the testimony given at the hearing could hamper another
court in selecting ajury if that became necessary. 75 Thejudge, how76
ever, allowed the press to report that a hearing had been held.
Two reporters, who admitted knowing that their actions would violate the terms of the order, wrote articles for their newspapers sum-
marizing in detail the testimony given at the hearing. 77 Following a
hearing on their actions, the two reporters were found guilty of
criminal contempt and fined $300.78
After discussing the historical clash between first amendment and
sixth amendment rights, the Fifth Circuit concluded that the judge's
68. See infra notes 144-287 (analyzing state case law).
69.
Id.
70. Dickinson, 465 F.2d at 500.
71.
Id.
72. Id. at 499.
73. Stewart v. Dameron, 321 F. Supp. 886, 889-91 (E.D. La.), vacated, 448 F.2d 396 (5th
Cir. 1971).
74. Stewart v. Dameron, 448 F.2d 396, 397 (5th Cir. 1971) (holding it improper for trial
judge to have admitted evidence of good faith of prosecution while denying plaintiff opportunity to introduce evidence of bad faith and harassment).
75. United States v. Dickinson, 465 F.2d 496, 500 (5th Cir. 1972). The court stated that:
It is ordered that no report of the testimony taken in this case today shall be made in
any newspaper or by radio or television, or by another other news media. This case
will, in all probability, be the subject of further prosecution.... In order to avoid
undue publicity which could in any way interfere with the rights of the litigants ...
there shall be no reporting of the details of any evidence taken during the course of
this hearing today.
Id.
76.
77.
78.
Id.
Id.
Id.
1988]
THE "COLLATERAL
BAR"
RULE & THE FIRST AMENDMENT
339
order was an unconstitutional prior restraint of speech. 79 The court
then turned to the validity of the contempt citation and the question
whether "a person may with impunity knowingly violate an order
which turns out to be invalid." 8 0
The court began its analysis of the contempt issue with what it
referred to as a "well established principle" in proceedings for criminal contempt that "an injunction duly issuing out of a court having
subject matter and personal jurisdiction must be obeyed, irrespective of
the ultimate validity of the order."' s The court noted that "[p]eople
simply cannot have the luxury of knowing that they have a right to
contest the correctness of the judge's order in deciding whether to
willfully disobey it ....
Court orders have to be obeyed until they
are reversed or set aside in an orderly fashion."'8 2 The Fifth Circuit
wrote that "[a]bsent a showing of 'transparent invalidity' or patent
frivolity surrounding the order, it must be obeyed until reversed by orderly review or disrobed of authority by delay or frustration in the
appellate process, regardless of the ultimate determination of con83
stitutionality, or lack thereof.
Chief Judge Brown acknowledged that the "inviolability" ofjudicial orders is unique among governmental commands.8 4 For example, when legislators or executive agencies transgress constitutional
79. Id. at 509. The court cited six reasons for its decision. First, the court held that for
first amendment freedoms to be abridged, the "substantive evil must be extremely serious
and the degree of imminence extremely high." Id. at 507 (quoting Bridges v. California, 314
U.S. 252, 263 (1941)); accord Pennekamp v. Florida, 328 U.S. 331, 347 (1948) (stating that
freedom of public comment weighs heavily against mere "possible tendency" to influence
trials); Craig v. Harney, 331 U.S. 367, 376 (1941) (requiring that danger "immediately imperil"). Second, the publicity surrounding the present trial was neither unfair nor excessive.
United States v. Dickinson, 465 F.2d 496, 509 (5th Cir. 1972) (distinguishing Sheppard v.
Maxwell, 384 U.S. 333 (1966), in which court reinstated district court's habeas petition in
light of "inherently prejudicial publicity" that state trial judge improperly allowed to influence
petitioner's murder trial). Third, the public's right to know the facts was "particularly compelling here, since the issue being litigated was a charge that elected state officials had
trumped up charges against an individual solely because of his race and political civil rights
activities." Id. at 508. Fourth, the district court's order was not directed at any named party
or court official, but sought to control activities of "non-parties to the lawsuit-namely, two
reporters-in matters not going to the merits of the substantive issues of the ongoing trial."
Id. Fifth, the appellate court held that while the district court's effort to protect the accused
was "laudable," it put the federal judge in the role of "policing the climate of the community
to insure a sterile trial in the State Court." Id. Finally, the appeals court held that there are
..alternative cures for prejudicial publicity far less disruptive of constitutional freedoms than
an absolute ban on publication." Id.
80. Id. at 509.
81. Id. (emphasis in original) (citing Walker v. Birmingham, 388 U.S. 307 (1967); United
States v. United Mine Workers, 330 U.S. 258 (1947); Howat v. Kansas, 258 U.S. 181 (1922);
Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911)).
82. Dickinson, 465 F.2d at 509 (quoting Southern Ry. v. Lanham, 408 F.2d 348, 350 (5th
Cir. 1969) (Brown, CJ., dissenting)).
83. Id. at 509-10 (emphasis in original) (quoting Walker v. Birmingham, 388 U.S. 307,
315 (1967)).
84. Id. at 510.
340
THE AMERICAN UNIVERSrrY LAW REVIEW
[Vol. 37:323
or statutory grounds their mandates need not be obeyed.8 5 Those
who violate such laws obviously run the risk of criminal sanctions if
they are wrong about the validity of the law they disobey, but "if the
directive is invalid, they may disregard it with impunity."'8 6 In fact,
the court in Dickinson recognized that in some situations intentional
only way of determining the constitutionaldisobedience may be the
87
ity of such directives.
Significantly, of the three branches of government, only the orders of judicial authorities must be "tested in the courts before deliberate transgression can be excused on an eventual determination
that the order was invalid." 88 The court in Dickinson based this elevated status of the judiciary on the separable responsibilities vested
in the judicial and non-judicial branches.8 9 ChiefJudge Brown cited
the court's unique role as final arbiter of legal disputes as the reason
for the requirement of unequivocal obedience to judicial authority.90 He asserted that the deliberate disregard of a court order subverts the independence of the judiciary,9 ' thus affecting its ability to
discharge its responsibilities. 92 Conversely, the legislative and execfunctions
utive branches remain free to continue their governmental
93
directives.
their
to
disobedience
regardless of any
85. Id.
86. Id. (citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969) (holding
that when ordinance confers "unbridled" and "absolute" power to prohibit processions, prior
Court decisions have "made clear that a person faced with such an unconstitutional licensing
law may ignore it and engage with impunity" in exercise of their right of free expression)
(footnote omitted); Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940) (striking down as
facially unconstitutional state statute proscribing "every practicable, effective means" by
which public might be enlightened as to nature of labor dispute); see also Wright v. Georgia,
373 U.S. 284, 291-94 (1963) (ruling that failure to obey unconstitutional order of executive
agency is not punishable); Watkins v. United States, 354 U.S. 178, 197-200 (1957) (invalidating contempt citation for refusal to testify before congressional subcommittee which failed to
define scope of investigation and which was not justified by overwhelming need).
87. United States v. Dickinson, 465 F.2d 496,510 (5th Cir. 1972) (citing Boyle v. Landry,
401 U.S. 77, 80-81 (1971); Becker v. Thompson, 459 F.2d 919, 923 (5th Cir. 1972)).
88. Dickinson, 465 F.2d at 510.
89. Id.
90. Id.
91. Id.; see also Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911) (stating
that contempt power prevents judicial decrees from being regarded as merely advisory).
92. United States v. Dickinson, 465 F.2d 496, 510 (5th Cir. 1972) (noting that failure to
obey court order requires further action by judiciary and thus interferes with court's responsibilities). Judge Brown noted that even in New York Times v. United States, no justice, including
Black and Douglas, suggested that the injunctions could be ignored with impunity, even
though they held that "every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment."
403 U.S. 713, 715 (1971). But no one suggested that the New York Times or Washington
Post should have violated the order. Consequently, in Dickinson Judge Brown concluded that
"an assumption that courts may punish as contempt violations of even its unconstitutionally
defective orders infringing freedom of the press underlies the Times decision." 465 F.2d 496
(5th Cir. 1972).
93. Id. The court elaborated: "Disobedience to a legislative pronouncement in no way
1988]
THE "COLLATERAL BAR" RULE
&
THE FIRST AMENDMENT
341
The court in Dickinson identified three fundamental conditions
that, when met, should result in an order which must be obeyed
until overturned or revoked. First, the court which issues the injunction must enjoy subject matter and personal jurisdiction over
the controversy. 9 4 Second, there must be adequate and effective
remedies available for orderly review of the challenged ruling. 95
Third, the order must not require an irretrievable surrender of con96
stitutional guarantees.
With respect to the second condition, the court acknowledged
that unique problems arise when the statements enjoined from publication are newsworthy, noting that "timeliness of publication is the
hallmark of 'news' and the difference between 'news' and 'history' is
merely a matter of hours."' 97 Thus, the immediate availability of orderly review should be a factor in determining whether a news organization obeys or disobeys an order. The court in Dickinson held,
however, that unless the appellate process was "deliberately
stalled," news agencies may not violate an order with impunity regardless of the constitutional implications.9" The court noted that
on the day the order in question was issued both the district court
and the court of appeals were available to afford "speedy and effective but orderly review of the injunction in question swiftly enough
to protect the right to publish news while it was still 'news.' "99 The
court, therefore, refused to endorse a general exception to the doctrine of collateral estoppel for the press. 0 0
In the court's discussion of the third condition, which would invalidate orders that require an irrevocable surrender of a constitutional right,' 0 ' the court cited the following examples: compelling a
interferes with the legislature's ability to discharge its responsibilities (passing laws). The
dispute is simply pursued in thejudiciary and the legislature is ordinarily free to continue its
function unencumbered by any burdens resulting from the disregard of its directives." Id.
94. Dickinson, 765 F.2d at 511. The court noted that jurisdiction was not a problem in
this case. Id.
95. Id. The court stated that an opportunity to seek to have the challenged order modified is one available remedy. Id.
96. Id.
97. Id. at 512.
98. Id.
99. Id.
100. Id. The court added that:
Of course the nature of the expression sought to be exercised is a factor to be considered in determining whether First Amendment rights can be effectively protected
by orderly review so as to render disobedience to other unconstitutional mandates
nevertheless contemptuous. But newsmen are citizens, too. They too may some-
times have to wait. They are not yet wrapped in an immunity or given the absolute
right to decide with impunity whether a Judge's order is to be obeyed or whether an
appellate court is acting promptly enough.
Id.
101.
Id. The court explained:
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witness to testify against himself,1 0 2 permitting a compulsory 1re03
sponse to a subpoena resulting from an illegal search and seizure; 0 4
and fifth amendment prohibitions against grand jury testimony.1
The court, however, excluded the rights of the press from this
10 5
group.
Finding that the order enjoining publication of the story should
have been obeyed, the Fifth Circuit nevertheless remanded the case
to the district court to determine whether the contempt citation
should stand based on its finding that the order was unconstitutional.' 0 6 The Fifth Circuit suggested that judicial contempt may
10 7
well be the last vestige of the so-called "common law crimes."'
The court recognized the flexibility and subjectivity associated with
a contempt decision and deferred to the discretion of the issuing
10 8
judge for a determination of the culpability of the contemnor.
On remand, the trial judge left the contempt citations unchanged,' 0 9 and the court of appeals affirmed. 110
If the contempt citation was sustained because of the method the
newspaper used to announce its disobedience of the court order, 111
The rationale of these cases is that once the witness has complied with an order to
testify he cannot thereafter retrieve the information involuntarily revealed, even if it
subsequently develops that compelling the testimony violated constitutional rights.
In such a predicament, the damage is irreparable. No remedies are available which
can effectively cure the constitutional deprivation after the order has been unwillingly obeyed.
Id.
102. See Malloy v. Hogan, 378 U.S. 1, 2 (1964) (reversing contempt conviction of witness
who refused to answer apparently incriminating inquiries).
103. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92 (1920) (invalidating contempt conviction grounded on refusal to surrender financial records when subpoena
for record was result of illegal search).
104. See Gelbard v. United States, 408 U.S. 41, 47 (1972) (upholding grand jury witness'
refusal to testify on ground that government's evidence was wrongfully obtained).
105. United States v. Dickinson, 465 F.2d 496, 512 (5th Cir. 1972). The court held that
because the order only withheld, rather than forced the surrender of, information, the court's
order would not require an "irrevocable, irretrievable or irreparable abandonment of constitutional privileges." Id.
106. Id. at 514; see supra note 79 and accompanying text (explaining unconstitutionality of
order).
107. Dichinson, 465 F.2d at 511.
108. Id. at 513.
109. United States v. Dickinson, 349 F. Supp. 227, 228 (M.D. La. 1972), aff'd, 476 F.2d
373 (5th Cir.) (per curiam), cert. denied, 414 U.S. 979 (1973). The district court found that it
was "too great a contradiction" to hold that "having disobeyed the Court's decree, they [defendants] must, as civil disobeyers, suffer the consequences," while concurrently holding that
an order "issued in utter good faith by this Court, subsequently held by another Court to be
constitutionally infirm," should allow the defendants "not to suffer the consequences." Id. at
228.
110. United States v. Dickinson, 476 F.2d 373 (5th Cir.) (per curiam), cert. denied, 414 U.S.
979 (1973).
111. United States v. Dickinson, 349 F.Supp. 227, 228-29 (M.D. La. 1972), aft'd, 476 F.2d
373 (5th Cir.) (per curiam), cert. denied, 414 U.S. 979 (1973). The district court noted that the
defendants,
1988]
THE "COLLATERAL
BAR" RULE & THE FIRST AMENDMENT
343
the district court's decision seems based on a constructive contempt
theory, which the Supreme Court has held cannot infringe upon the
first amendment without a showing that the publication posed "a
clear and present danger to the administration of justice."' 12 The
implication of the trial court's decision is that had the newspaper
either not announced its disobedience, or done so less flagrantly,
the contempt citations may have been set aside. This issue is important because the court of appeals, which upheld the district court's
decision, gave tacit approval to the principle that newspapers should
not communicate information of this nature to their readers.
Flaunting in print disobedience to a judge's order is a form of
journalistic arrogance that serves neither the interests of courts nor
journalists. The legitimacy granted courts in our society is in many
respects fragile and rests largely on psychological grounds. The importance of public acceptance of judicial directives is indicated by
the harshness of penalties for criminal contempt. Courts argue
strongly that the contemnor who would disobey court orders must
be punished, and only through such punishment is an affront to the
court's authority effectively redressed. 153 Furthermore, the punitive
nature of criminal contempt will deter others from disobeying future court orders.
Journalists abuse the public trust when they disobey judicial orders and then proudly proclaim their courage and independence in
print for the publicity, and not for the news value of the story. This
is a form ofjournalistic pandering which in obscenity cases has been
14
determined to be a crime punishable by a prison sentence."
after violating the order, contemptuously announced to the public, at the end of
their published articles, that they had published this story despite an order... ordering them not to do so. It was primarily this public display of utter contempt for this
Court's order that prompted the contempt citation.... At the time of the contempt
citation, it was not the validity vel non of the Court's order that was primarily at
issue. It was the intentional, willful, flagrant and contemptuous disregard of the
Court's order before in any way attempting to have the order, which was obviously
issued in good faith, judicially reviewed.
Id.
112. Craig v. Harney, 331 U.S. 367, 372 (1947); see also Pennekamp v. Florida, 328 U.S.
331, 333-36 (1946); Bridges v. California, 314 U.S. 252, 260-63 (1941). Also referred to as
"indirect criminal contempt," constructive contempt involves activities that interfere with the
proper functioning of the courts but do not take place in the presence of the court or "so near
thereto" as to create an obstruction of administration ofjustice. See Nye v. United States, 313
U.S. 33 (1941).
113. See United States v. Dickinson, 465 F.2d 496, 510 (5th Cir. 1972) (arguing that disregard of court order subverts judiciary's independence); Ex parte Purvis, 382 So. 2d 512, 515
(Ala. 1980) (holding that contempt order must be obeyed to maintain integrity of court
orders).
114. See Ginzburg v. United States, 383 U.S. 463, 468 n.9 (1966) (including as a factor in
determining obscenity the flaunting by magazine of unrestricted license to express sexual
material).
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[Vol. 37:323
Although stories that seek to capitalize on confrontations between
the courts and the press enjoy the same first amendment protection
granted to articles on other subjects, they unnecessarily aggravate
the tensions between the press and the courts, and may make it
more likely that the judge's next encounter with the press will reflect
those heightened tensions. Journalists, it appears, could sometimes
exercise more discretion. Nevertheless, there may be circumstances
when a judge's effort to muzzle the press by issuing a prior restraint
5
order merits widespread public condemnation."
C.
United States v. CBS
The Fifth Circuit's strong endorsement of the collateral bar rule
in Dickinson suggested that the rule would be vigorously applied in
that jurisdiction to any case presenting similar circumstances. Yet
one year later, the Fifth Circuit left some doubt as to the applicability of its decision in Dickinson. In United States v. CBS,1 16 the Fifth
Circuit struck down a verbal order prohibiting the publication of
sketches made outside a courtroom as an unconstitutional prior restraint.'1 7 The court, in a separate opinion, declined to address the
question of whether the contempt citation based on that order
8
should be sustained.1
CBS involved the highly publicized trial of eight persons accused
of conspiring to disrupt the 1972 Republican National Convention
in Miami, Florida."19 Prior to the trial, a federal district court had
issued a verbal order imposing a blanket prohibition of television
broadcasts of courtroom sketches, regardless of where the sketches
were made. 120 Following the court's instructions, a CBS artist attended the proceedings without bringing any sketching materials
into the courtroom. After two hours, she left the courtroom and
began sketching in the hall. When the judge heard of this activity,
he summoned the sketch artist into his chambers and had the
sketches confiscated. 12 1 A second verbal order was then issued, but
not in the presence of any court reporters.' 2 2 The second order
"made explicit the direction that no sketches for publication of pro115. See Buckley v. Valeo, 424 U.S. 1, 16-19 (1976) (holding sections of Federal Election
Campaign Act that limit candidates' ability to communicate violative of public policy).
116. 497 F.2d 102 (5th Cir. 1974).
117. United States v. CBS, 497 F.2d 102, 106 (5th Cir. 1974).
118. Id. at 110.
119. Id. at 103.
120. Id. at 103-04.
121. Id. The issue of whether the judge was permitted to confiscate the sketches was not
raised at trial.
122. Id.
1988]
THE "COLLATERAL BAR" RULE & THE FIRST AMENDMENT
345
ceedings in the courtroom or its environs were to be made, even
though such sketches were made not in the courtroom or its envi123
rons but from memory."
After receiving this second order, the artist left the courthouse
and later sketched the trial participants from memory.1 24 Thereafter, four of the sketches were televised on a CBS national morning
news program. A few weeks later CBS was adjudged guilty of crimi1 25
nal contempt.
On appeal, the Fifth Circuit first considered the validity of the district court's second order which banned the publication of sketches,
regardless of where they were made.1 26 Although the court recognized the need for trial judges to take "strong measures" to main1 27 it
tain a neutral forum free from publicity and outside influences,
required an imminent threat to the impartiality of the courtroom to
1 28
justify a prior restraint.
The government analogized sketching to the presence of cameras
in the courtroom and the televising of proceedings, which can prevent a defendant from receiving a fair trial.' 2 9 The court of appeals,
123. Id. at 103. The order was first issued in written form in the show-cause order in the
contempt proceeding. Id. at 103 n.1. The trial judge shortly thereafter issued two more orders related to sketching. They were intended in part to supplement the local rules applicable
in district court which prohibit radio and TV broadcasting in the courtroom. Id. at 103 n.3.
The last order stated that "sketching in the courtroom or its environs, whether or not the
court is actually in session, is prohibited. This order extends to and prohibits the publication
of any sketch... regardless of the place where such sketch is made." Id. at 103-04. After a
trial by the same judge, CBS was adjudged guilty of criminal contempt and fined $500. Id.
124. Id. at 103.
125. Id.
126. Id.
127. Id. at 103.
128. Id. at 104; see Craig v. Harney, 331 U.S. 367, 376 (1947) (distinguishing publicity
critical of court from publicity presenting threat to neutrality of trial). The court supported its
decision by citing the Kaufman Committee Report, a study undertaken by a group ofjudges
to implement the notion of free press/fair trial, which did not recommend "any direct curb or
restraint on publication by the press of potentially prejudicial material. Such a curb... is
unwise as a matter of policy and poses serious constitutional problems." Report of the Committee on the Operation of the Jury System on the Free Press-Fair Trial Issue, 45 F.R.D. 391,
401-02 (1968).
On the issue of orders issued orally, see Jamason v. State, 447 So. 2d 892 (Fla. App. 4th
Dist. 1983), where a judge, responding to a habeas corpus petition, ordered police by telephone to bring the petitioner before her. The police, while acknowledging that they knew it
was the judge making the call, refused to comply. By the time the written order arrived, the
prisoner had been turned over to the countyjail. The Florida Court of Appeal, in upholding
the contempt conviction of the police department and the $500 fine, said the case posed the
difficult question of when unwritten orders are valid. But citing Dickinson, the court held that
the police should have complied. Id. at 896.
129. United States v. CBS, 497 F.2d 102, 105 (5th Cir. 1974); cf. Estes v. Texas, 381 U.S.
532, 551 (1965) (holding that broadcast of criminal trial prejudices jury); Rideau v. Louisiana,
373 U.S. 723, 726-27 (1963) (reversing conviction of defendant whose taped confession was
repeatedly broadcast in local newscasts); Irvin v. Dowd, 366 U.S. 717, 723 (1961) (holding
substantial publicity justifying factor for motion to transfer venue in criminal trial).
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[Vol. 37:323
however, refused to equate sketching with the actual broadcast of a
trial on the grounds that sketching requires only a "writing instrument and sketch pad and can be done quite unobtrusively, or even,
as in this case, from memory completely outside the courthouse."1 30
The court noted that no state or federal court had prohibited the
publication of sketches,13 1 and was unwilling to impose a sweeping
prohibition of in-court sketching absent some showing of obtrusive
or disruptive effect on the decorum of the courtroom and impartial132
ity of the trial.
In a separate opinion, the court considered whether, in light of its
holding regarding the unconstitutionality of the order banning
sketching, the contempt citation should stand.13 3 Without discussing the relevance of its prior decision in Dickinson, the court simply
reversed the contempt conviction and remanded the case for a new
3 4
trial before a different judge.1
Thus, the Fifth Circuit moved from a strong endorsement of the
collateral bar rule in Dickinson to a refusal to address the issue of
collateral attack in CBS. A few years later, in In re Timmons, 3 5 the
Fifth Circuit upheld a criminal contempt conviction, allowing the
trial court substantial latitude to impose criminal penalties even
1 36
though the underlying legal issues had not yet been resolved.
The court upheld a thirty day criminal contempt conviction against
the plaintiffs, who had refused to vacate a part of a federal wildlife
refuge to which they claimed legal title.' 37 Thejudge issued an order to vacate the land, which the plaintiffs disobeyed.' 3 8 The plaintiffs challenged the court's decision to convict them of criminal
contempt rather than civil contempt, which would have ended when
130. CBS, 497 F.2d at 106.
131. Id.
132. Id. at 107. Striking down the judge's order, the Fifth Circuit held that "the total ban
on the publication of sketches is too remotely related to the danger sought to be avoided, and
is, moreover, too broadly drawn to withstand constitutional scrutiny." Id. at 106. Complicating the appeal was the factual indeterminacy as to the exact content of unrecorded verbal
orders. In effect, the 'judge had to determine whether what he said was said was really said.
He obviously could not be a witness and a judge in the same proceeding." Id. at 109. The
court held that "demands... and appearance ofjustice" required a trial by anotherjudge. Id.
133. United States v. CBS, 497 F.2d 107, 109 (5th Cir. 1974).
134. Id. at 110. The court stated that "we leave open for consideration by the court below
. . . the advisability of pursuing the contempt action in view of our determination that the
verbal orders are unconstitutional." Id. But see Angelico v. Louisiana, 593 F.2d 585, 589 (5th
Cir. 1979) (reversing contempt conviction where statute was held unconstitutionally vague
and defendants' violation was inadvertent).
135. 607 F.2d 120 (5th Cir. 1979).
136. In re Timmons, 607 F.2d 120 (5th Cir. 1979).
137. Id. at 123.
138. Id.
1988]
THE "COLLATERAL
BAR"
RULE
&
THE FIRST AMENDMENT
347
the disobedience ended. 139 The court of appeals distinguished civil
contempt, which is a facet of the original cause of action, from criminal contempt, which constitutes a separate cause of action intended
140
solely to punish noncompliance with a court order.
The court determined that an order of civil contempt cannot
stand if the underlying order on which it is based is invalid because
the purpose of civil contempt is to secure compliance, rather than
punish noncompliance, with the order.' 4 1 A criminal contempt conviction, on the other hand, does not turn on the validity of the original order. Thus, because the plaintiffs had made no effort to seek
review before disobeying the order, the court upheld the criminal
142
contempt conviction.
Encouraging trial judges to hold those who disobey court orders
in criminal contempt rather than civil contempt gives judges substantial power to enforce even unconstitutional orders. In addition,
blurring criminal and civil contempt makes it difficult for both journalists and appellate courts to determine whether the contempt has
ended or if it was a separate cause of action to be considered, regardless of the status of the original order. If the contempt is considered as a separate action, then journalists presumably will be
unable to collaterally challenge the original order, save for the limited exceptions established in Walker. 14 3 If strictly applied, the collateral bar rule assumes that the hearing to consider criminal
punishment of those who disobey judicial directives is unrelated to
the validity of the original order, and that the violation must be punished regardless of the ultimate determination of the validity of the
order. Judges know that, at least theoretically, anyone held in civil
contempt could also be adjudged guilty of criminal contempt. The
boundaries between civil and criminal contempt are sufficiently
vague that judges may determine that even after compliance is
forced under civil contempt, the authority of the court must be vindicated in a criminal contempt proceeding. Thus anyone held in
civil contempt could also be adjudged guilty of criminal contempt.
This ensures that in those jurisdictions where criminal contempt is a
139. Id.
140. Id. at 124; see Smith v. Sullivan, 611 F.2d 1050, 1053 (5th Cir. 1980) (distinguishing
civil contempt as remedial and intended to enforce compliance with order from criminal contempt, which is punitive).
141. In re Timmons, 607 F.2d 120, 124 (5th Cir. 1979).
142. Id.
143. See Walker v. Birmingham, 388 U.S. 307, 315 (1967) (providing that if issuing court
lacks jurisdiction, or if injunction is transparently invalid or had only frivolous pretense to
validity, then collateral bar rule does not apply).
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 37:323
348
separate cause of action, the collateral bar rule will be enforced even
against civil contemnors.
II.
STATE CASE LAW: INCONSISTENCY AND CONFUSION
Several states, both prior and subsequent to Dickinson, have
adopted rules relating to the validity of contempt citations based on
unconstitutional orders. Those rules, however, have been unevenly
applied. Some courts that have allowed exceptions to the collateral
bar rule have not done so in a consistent manner. This section will
discuss the application of the collateral bar rule in several states.
A.
Washington
In State ex rel. Superior Court v. Sperry,14 4 one year before Dickinson,
the Washington Supreme Court clearly stated that an invalid order
could not support a contempt citation. 145 Yet within four years, the
court allowed a contempt citation 6to stand while invalidating the in14
junction on which it was based.
In Sperry, the trial court anticipated extensive press coverage in a
first-degree murder trial. 14 7 The judge entered an order prohibiting news organizations from reporting on any proceedings that took
place outside the presence of the judge, jury, and interested parties.' 4 8 Shortly after the trial began, a motion to admit certain evidence was made and an evidentiary hearing was held in open court
149
without a jury.
The morning after the evidentiary hearing, the Seattle Times published a story that included testimony from the hearing.' 5 0 Upon
learning of the newspaper's actions, the trial judge summoned the
reporters before him, barred them from further attendance at the
trial, 15 ' and ordered them to show cause why they should not be
144. 79 Wash. 2d 69, 483 P.2d 608, cert. denied, 404 U.S. 939 (1971).
145. State ex reL Superior Court v. Sperry, 79 Wash. 2d 69, 75, 483 P.2d 608, 613, cert.
denied, 404 U.S. 939 (1971).
146. Mead School Dist. v. Mead Educ. Ass'n, 85 Wash. 2d 278, 534 P.2d 561 (1975).
147. Sperry, 79 Wash. 2d at 70, 483 P.2d at 609.
148. Id. at 70, 483 P.2d at 609. The order provided:
No Court proceedings shall be reported upon or disseminated to the public by any
form of news media, including, but not limited to newspaper, magazine, radio and
television coverage, except those proceedings occurring in open Court in the presence of the Judge, jury, court reporter, defendants, and counsel for all parties. No
report shall be made by such news media in any event of matters or testimony ruled
inadmissible or stricken by the trial judge at the time of the offer of the matter or
testimony.
Id., 483 P.2d at 609.
149. Id., 483 P.2d at 610.
150. Id., 483 P.2d at 609-10.
151. Id. at 71,483 P.2d at 611.
1988] THE
"COLLATERAL
BAR"
RULE
&
THE FIRST AMENDMENT
349
held in contempt for violating the court's order. 152 Subsequently, a
show cause hearing was held and the reporters were adjudged guilty
of contempt.' 55
On appeal, the Washington Supreme Court first addressed the issue of whether challenging the constitutionality of the judge's order
constituted a collateral attack, and thereby precluded the newspaper's claim.154 The state, citing Walker, argued that the newspaper
should have attacked the order directly by appeal, by motion to set
aside, or by other immediate review.155 The Washington Supreme
Court rejected this argument and distinguished the facts in Sperry
and Walker. The court found that the order in Sperry was "transparently invalid," while the order challenged in Walker was not void on
its face.' 56 The court also noted that injunctions are frequently issued immediately before the planned activity, leaving the enjoined
party no opportunity to directly attack the injunction. 157 Accordingly, the court struck down the order as an unconstitutional prior
58
restraint.
The court then addressed the question of the contempt citation.
In a very brief statement, the court held that the trial court's order
was void and therefore could not support the contempt convictions.' 59 The court added that sustaining the contempt judgment
152. Id.
153.
Id.
154. Id.
155.
Id.
156. Id. at 70, 483 P.2d at 611; see supra notes 51-53 and accompanying text (discussing
Walker and doctrine of "transparent invalidity" of orders). The court noted that "[w]e have
held in a number of cases that a void order or decree, as distinguished from one that is merely
erroneous, may be attacked in a collateral proceeding.... The violation of an order patently
in excess of the jurisdiction of the issuing court cannot produce a valid judgment of contempt." State ex rel. Superior Court v. Sperry, 79 Wash. 2d 69, 70, 483 P.2d 608, 611, cert.
denied, 404 U.S. 939 (1971).
157. Sperry, 79 Wash. 2d at 70, 483 P.2d at 611. The court added:
The practical result then is that the enjoined party has no adequate remedy at law
and cannot engage in a lawful activity because of an unconstitutional order. To us it
seems unlikely that allowing collateral attack would significantly reduce citizen compliance with lawful decrees . . . the citizen still faces a substantial risk of criminal
penalties if proved wrong in collateral, rather than direct, attack on the decree's
validity.
Id., 483 P.2d at 611.
158. Id., 483 P.2d at 611-12 (stating that "Appellants' principal assignment of error concerns the question of whether a newspaper may constitutionally be proscribed in advance
from reporting to the public those events which occur during an open and public court proceeding. Limiting our opinion to the facts at hand, we hold that it may not"). The court held
that the judge's admonition to the jury instructing them to consider only evidence heard in
court and not to discuss the case with anyone, nor read or view any report about the trial,
would likely be obeyed by the jury. If the instructions were ignored and prejudicial matter
reached and affected a member of the jury, the proper remedy would be a new trial. Id. at 76,
483 P.2d at 613.
159. Id.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
would have implied that the mere possibility of prejudicial matter
reaching a juror outside the courtroom is more important than the
60
constitutional guarantee of freedom of expression.'
The Washington Supreme Court later refused to extend its reasoning in Speny, which had rejected the rule established in Walker, to
a case that involved a labor dispute. In Mead School District v. Mead
Education Association,16 ' the court distingished its earlier decision in
Sperry and followed Walker. In Mead, the Mead School District had
filed a lawsuit seeking to enjoin a strike by its employees, members
of the Mead Education Association.' 62 The teachers had responded
with a motion to dismiss the lawsuit on the grounds that the suit was
improperly authorized at a school board meeting held in violation of
the state's Open Public Meetings Act.' 63 The court dismissed the
union's motion and later issued a temporary restraining order.'6
The union subsequently violated the injunction, and the trial judge
65
cited it for contempt.
The Washington Supreme Court addressed the issues raised by
this labor dispute in two separate cases. First, in Mead School District
v. Mead Education Association (Mead i),166 the court dismissed the
temporary injunction because it was unauthorized.' 6 7 Second, in
Mead School District v. Mead Education Association (Mead II),168 the
court addressed the issue of whether the union could be held in contempt for violating an injunction that was subsequently deemed invalid. 16 9 The court held that once the injunction underlying a
contempt citation is held invalid, the validity of the contempt conviction should be determined by looking to whether the trial court
70
had jurisdiction to issue the injunction.'
The court in Mead II recognized that if it were to have applied
traditional jurisdictional standards' 7 ' the contempt convictions
160. Id.
161. 85 Wash. 2d 278, 534 P.2d 561 (1975) (en banc) [Mead II].
162. Mead School Dist. v. Mead Educ. Ass'n, 85 Wash. 2d 140, 141, 530 P.2d 302, 303
(1975) (en banc).
163. Id. at 141, 530 P.2d at 303. The state's Open Public Meetings Act of 1971 required
the school board to give 24 hours notice before it held a meeting. Id. at 142, 530 P.2d at 304.
164. Id.
165. Mead II, 85 Wash. 2d at 280, 534 P.2d at 563.
166. 85 Wash. 2d 140, 530 P.2d 302 (1975) (en banc).
167. Mead School Dist. v. Mead Educ. Ass'n, 85 Wash. 2d 140, 145, 530 P.2d 302, 305
(1975) (en banc) [Mead I] (concluding that actions which took place at illegal meeting were
void, and thus, injunction motion was unauthorized).
168. 85 Wash. 2d 278, 534 P.2d 561 (1975) (en banc).
169. Mead School Dist. v. Mead Educ. Ass'n, 85 Wash. 2d 278, 534 P.2d 561 (1975) (en
banc).
170. Id. at 380, 534 P.2d at 563.
171. The Court determined that there are two traditional bases for jurisdiction. First,
when the Court has jurisdiction over the parties and the subject matter of the dispute and the
1988]
THE "COLLATERAL
BAR"
RULE & THE FIRST AMENDMENT
351
would be reversed because the trial court technically lacked jurisdiction to issue the injunction. 72 The court noted, however, that very
few cases have suffered from a similar jurisdictional defect.173 In
Mead II, the jurisdictional flaw rested in the plaintiff's lack of authority to sue, and not with the trial court.' 74 Thus, the trial court in
Mead II did not usurp the authority of another court because it had
valid jurisdiction over both the parties and the subject matter of the
case. 175 The court, therefore, held that "talismanic invocation of
the phrase 'lack of jurisdiction' . . . is not enough to vitiate a contempt conviction."' 17 6 The court reversed the convictions against individual union officers on self-incrimination grounds, but upheld
the contempt conviction against the union1 77 This result was premised on the court determination that the purpose of the contempt
conviction was to bolster respect for future court orders and was
78
independent of any concern for the parties.'
More than a decade after Sperry and Dickinson, the Washington
Supreme Court, in State v. Coe, 179 distinguished its decision in Mead
and relied on the rationale used in Sperry. In Coe, the supreme court
held that an order issued outside the trial court's power could not
support a contempt conviction.' 8 0 In this case, the trial court had
found a radio and television station in contempt for broadcasting
accurate and lawfully obtained copies of tape recordings that had
been played in open court.' 8 ' The tapes contained conversations
Court has legal authority to issue the order. Dike v. Dike, 75 Wash. 2d 1, 8,448 P.2d 490,495
(1968); see State v. Olsen, 54 Wash. 2d 272, 274, 340 P.2d 171, 172 (1959) (holding that test
of Court's jurisdiction is whether it had power to inquire, not whether the outcome is right or
wrong (quoting Annotation, Right to Punishfor Contempt for Failure to Obey Court Order or Decree
Either Beyond PowerofJurisdictionof Court or Merely Erroneous, 12 A.L.R. 2d 1059, 1066 (1950))).
Second, a court has jurisdiction to determine jurisdiction. United States v. United Mine
Workers of Am., 330 U.S. 258, 292 (1947). Under this theory, a court has jurisdiction because the most logical forum to decide jurisdiction is the trial court hearing the case. United
States v. Shipp, 203 U.S. 563, 573 (1906).
172. Mead II, 85 Wash. 2d at 280, 534 P.2d at 563.
173. Ideat 282, 534 P.2d 561, 564.
174. See id. at 283, 534 P.2d at 565 (concluding that only jurisdictional flaw was that
school board lacked authority to bring suit, thus there was technically no case before the
court).
175. Id.
176. Id. at 282, 534 P.2d at 565; see id. at 286, 534 P.2d at 567 (noting that case would
have had different result had contempt order been designed to benefit plaintiff rather than
vindicate court's power).
177. See id. at 287, 534 P.2d at 567 (reducing fine from $1000 to $100).
178. Id. at 287, 534 P.2d at 567. Judge Finley criticized the majority's treatment of the
jurisdictional issue. See id. at 289, 534 P.2d at 568 (Finley, J., concurring in part, dissenting in
part) (arguing that contempt conviction worthy of no greater validity than injunction it is
based on).
179. 101 Wash. 2d 364, 679 P.2d 353 (1984) (en banc).
180. State v. Coe, 101 Wash. 2d 364, 372, 679 P.2d 353, 358 (1984) (en banc).
181. Id., 679 P.2d at 356.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
between the defendant and an undercover police officer. 182 Coe
was accused of attempting to hire the officer to murder the prosecu83
tor and judge who had previously tried and convicted her son.1
After the station had legally obtained the tapes from the prosecutor,
the trial judge issued an order prohibiting the broadcast of the tapes
because the defense attorneys had presented evidence that their client's mental state would be harmed by public dissemination of the
conversations. 184 Three days after the judge's order, the station
85
broadcast portions of the tapes during its newscast program.1
The station was subsequently held in contempt and fined $2,000.186
The station appealed the contempt judgment on the ground that
the order restraining broadcast of the tapes was unconstitutional
and therefore could not support a contempt conviction.18 7 The
state argued that the order was constitutional and, even if it were
88
not, the station was still obligated to obey the court's order.1
The supreme court reasoned that the injunction prohibiting the
broadcast of the tapes was not the type of order the trial court had
jurisdiction to issue because the order clearly violated the free
speech provisions of both the federal and state constitutions.1 8 9
The court noted that once it has been determined that a trial court
issued an order outside its jurisdictional scope, the order is no
longer entitled to respect at law.190 Thus, the contempt order was
rendered invalid.' 9 ' The court noted that the contrary approach
taken in Walker and Dickinson represented the federal law concerning
the collateral bar rule, which it had previously distinguished in
19 2
Sperry.
The supreme court then discussed why state courts should de182. Id. at 365, 679 P.2d at 355.
183. Id., 679 P.2d at 355.
184. Id. at 367-68, 679 P.2d at 355-56.
185. Id.
186. Id. at 367-68, 679 P.2d at 356. When the stations asked the prosecutor for the tapes
which had already been admitted into evidence, the prosecutor agreed to provide them on the
condition that the tapes not be aired before they were played in open court. The stations
complied with this condition. Id. at 367, 679 P.2d at 355.
187. Id. at 369, 679 P.2d at 357.
188. Id.
189. Id. at 370-71, 679 P.2d at 358.
190. Id. at 370, 679 P.2d at 357 (declaring that judicial order not based on jurisdiction is
invalid) (citing Mead School Dist. v. Mead Educ. Ass'n, 85 Wash. 2d 278, 282, 534 P.2d 561,
564 (1975) (en banc).
191. State v. Coe, 101 Wash. 2d 364, 372, 679 P.2d 353, 358 (1984) (en banc); see United
States v. Holland, 552 F.2d 667, 675 (5th Cir. 1977) (concluding that Court may not use
contempt to punish someone for violating order it had no jurisdiction to issue because contempt citation is as void as underlying order) (citing Exparte Fisk, 113 U.S. 713, 718 (1885)).
192. State v. Coe, 101 Wash. 2d 364, 372 n.3, 679 P.2d 353, 358 n.3 (1984) (en banc).
1988] THE "COLLATERAL BAR"
RULE & THE FIRST AMENDMENT
353
velop their own standards in this area of the law. 193 It concluded
that the issue of whether a prior restraint is constitutional should
first be tested under the state constitution. 194 The court described
the relationship between the federal and state governments, and
noted that the state constitution and courts protect the fundamental
rights of Washington citizens.' 95 The court then applied this discussion to the facts in Coe. Under the Washington State Constitution
the prior restraint of constitutionally protected speech is absolutely
forbidden.' 96 Thus, because the order in Coe restrained the use of a
tape that was lawfully obtained and a matter of public197record, the
order was found in violation of the state constitution.
Although the supreme court was concerned about the defendant's
right to a fair trial, it concluded that there are other adequate and
constitutionally permissible methods available to trial courts for the
protection of those rights.' 98 Without further explanation or guidance, the court reversed the contempt citation against the broadcasting station.' 99 It never considered whether the contempt
citation should stand even though the order on which it was based
was unconstitutional. In fact, the court seemed to assume that journalists, judges, and attorneys will have little trouble recognizing
when an order is not within the scope of the issuing court's jurisdiction. The majority opinion in Coe dealt almost exclusively with the
question of the constitutionality of the original order and did not
find it necessary to discuss the contempt conviction. Even the justice concurring in part and dissenting in part did not address the
200
validity of the contempt citation.
193. See id. at 373-74, 679 P.2d at 359-60. The court provided four reasons why state
courts should develop its own law: 1) state courts' duty to independently apply state constitutions; 2) protection of citizens' fundamental rights vested in state constitutions; 3) create independent bar ofjurisprudence for state courts; 4) give guidance to other states with similar
constitutional clauses). Id.
194. Id. at 373, 679 P.2d at 359.
195. Id.
196. See WASH. CONsT. art. I, § 5 (providing that: "fe]very person may freely speak, write
and publish on all subjects, being responsible for the abuse of that right").
197. State v. Coe, 101 Wash. 2d 364, 374, 679 P.2d 353, 359 (1984) (en banc).
198. Id. at 385, 679 P.2d at 364. A partial list of methods for trial courts to protect the
constitutional rights of defendants includes changing venue, continuing the case, sequestering the jury, proscribing public statements by prosecutors and others involved in trial, limiting number and regulating conduct of reporters permitted in courtroom, use of voir dire and
jury instructions, and ordering a new trial. Id. (citing Sheppard v. Maxwell, 384 U.S. 358, 363
(1966)).
199. Coe, 101 Wash. 2d at 385, 679 P.2d at 365.
200. See id. at 386-91, 679 P.2d at 365-68 (Rosellini, J., concurring in part, dissenting in
part) (arguing that notion of absolute right to free speech is unwise and judicially irresponsible). See generallyJeffries, Rethinhing PriorRestraint, 92 YALE L.J. 409 (1983) (discounting use of
prior restraint in adjudication of first amendment rights); Mayton, Toward a Theory of First
Amendment Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the PriorRestraint
THE AMERICAN UNIVERSrrY LAW REVIEW
B.
[Vol. 37:323
Illinois
In Cooper v. Rockford Newspapers, Inc.,20o an Illinois appellate court
reversed a contempt conviction against a newspaper.2 0 2 The trial
court had ordered the publisher of the Rockford Register-Star not to
publish any editorials related to a libel suit against the newspaper. 20 3 The newspaper then proceeded to publish editorials in direct violation of the restraining order.2 0 4 The appellate court
subsequently held that the trial court's restraining order was unconstitutionally overbroad and an unjust curtailment of free speech.2 0 5
Following the appellate court's determination that the original order was unconstitutional, the trial court imposed the contempt citation on the newspaper.2 0 6 The newspaper appealed the citation and
the appellate court then addressed the issue of whether a contempt
order following the reversal of the underlying injunction on constitutional grounds was proper. 20 7 The appellate court concluded that
the trial court clearly had jurisdiction over the persons who were
found in contempt, as well as jurisdiction to enter the preliminary
208
injunction.
The newspaper, however, contended that the trial court had
lacked authority to issue the temporary injunction. 20 9 The newspaper's contention was based on the theory that no prior restraint of
publication can be constitutionally valid and therefore the court's
order was transparently unconstitutional. 21 0 The appellate court,
citing Nebraska Press Association v. Stuart,2 1 ' denied that first amendment rights are absolute and refused to rule out the possibility that a
2 12
narrowly drawn prior restraint order could be constitutional.
The appellate court agreed with the holding in Walker that even
Doctrine, 67 CORNELL L. REV. 245 (1982) (arguing that subsequent punishment is superior to
prior restraint).
201. 50 Ill. App. 3d 250, 365 N.E.2d 746 (1977).
202. Cooper v. Rockford Newspapers, Inc., 50 Il. App. 3d 250, 257, 365 N.E.2d 746, 751
(1977).
203. Id. at 251, 365 N.E.2d at 747. The libel and slander issue was decided in a companion case decided the same day. See id. at 249, 365 N.E.2d at 746 (holding that as a matter of
law action for libel is properly dismissed).
204. Id. at 254, 365 N.E.2d at 749.
205. Cooper v. Rockford Newspapers, Inc., 34 Il1. App. 3d 645, 652, 339 N.E.2d 477, 482
(1975).
206. Cooper v. Rockford Newspapers, Inc., 50 Ill. App. 3d 250, 251, 365 N.E.2d 746, 747
(1977).
207. Id.
208. Id. at 252, 365 N.E.2d at 748.
209. Id.
210. Id.
211. 427 U.S. 539 (1976).
212. Cooper v. Rockford Newspapers, Inc., 50 111. App. 3d 250, 253, 365 N.E.2d 746, 748
(1977) (citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 569-70 (1976)).
1988]
THE "COLLATERAL
BAR"
RULE
&
THE
FIRST
AMENDMENT
355
orders that are so overbroad or vague as to be unconstitutional generally must be obeyed. 218 The appellate court, however, would not
accept the argument that the newspaper was barred from collaterally challenging the contempt citation because they did not attack
the validity of the injunction order before defying it.214 Thus, the
court distinguished Cooper because of the potential for irreparable
injury flowing from the injunction. 215 The court based this distinction on the Supreme Court's ruling in Maness v. Meyers.2 16 In Maness,
the Court had held that when an order will cause irreparable injury
and the constitutional right in question is highly protected, violation
of a court order cannot be punished by contempt once the order is
2 17
found invalid.
The appellate court emphasized that timeliness is essential to
news organizations, which must be able to publish information
about current events. 218 The court concluded that the newspaper
was not subject to a contempt penalty for asserting its right to comment on the operation of the court system in general or regarding
213. Id. at 252,365 N.E.2d at 748 (citing Walker v. City of Birmingham, 388 U.S. 307,315
(1967)).
214. Id.
215. See id. at 254, 365 N.E.2d at 750 (concluding that deprivation of right to comment
even for short time is irreparable).
216. 419 U.S. 449 (1975).
217. Maness v. Meyers, 419 U.S. 449, 460 (1975). In Maness, the Supreme Court ruled
that a lawyer could not be held in contempt for advising his client to assert his fifth amendment privilege against self-incrimination by refusing to obey a subpoena to produce materials,
even though his advice caused his client to disobey the court's order. Id. at 468. The Court
recognized that even when a person believes the court order to be invalid he must comply,
stating that "persons who make private determinations of the law and refuse to obey an order
generally risk criminal contempt even if the order is ultimately ruled incorrect." Id. at 458.
The Court held, however, that compliance with the order would cause irreparable injury because the appellate courts cannot always "unring the bell" once the information has been
released. Id. at 460. The Supreme Court concluded that defendants had no avenue other
than to assert the privilege and risk the penalty of contempt. Id. at 470.
City of Lake Charles v. Bell, decided by the Louisiana Supreme Court, is similar to Maness in a
number of respects. 347 So. 2d 494 (La. 1977). In Bell, an attorney who had filed a petition in
federal court to remove his client's case refused to participate in the trial in state court on the
grounds that the petition automatically stayed all proceedings. Id. at 495. The judge and
prosecutor argued that a stay order should come from the federal district court and the judge
insisted that the trial proceed. Id. at 495. When the attorney refused to defend his client at
trial, the judge held the attorney in contempt and sentenced him to 24 hours in jail. Id. at
496. The court held that § 1443 of Title 28 of the United States Code requires that after a
petition for removal is filed with the federal court, the state court cannot proceed unless and
until the case is remanded. Id. at 497. Relying extensively on Dickinson, the court determined
that the city court could not cite the lawyer for contempt for failure to try a case over which
the city court had no jurisdiction. Id. at 498; see In re Grand Jury Proceedings, 601 F.2d 162,
169 (5th Cir. 1979) (holding Maness doctrine extends to rights not protected by the Constitution if compliance with order results in irreparable harm). But see Kleiner v. First Nat'l Bank,
751 F.2d 1193, 1206-07 (1 1th Cir. 1985) (holding trial court order that is narrowly drawn and
least restrictive method of maintaining orderly litigation is valid basis for contempt citation).
218. Cooper v. Rockford Newspapers, Inc., 50 Ill. App. 3d 250, 256, 365 N.E.2d 746, 750
(1977).
356
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
the particular case in which it was currently a defendant. 21 9
The appellate court then turned to the question of how to distinguish Cooper from Walker and Dickinson. The court asserted that
Walker, unlike Cooper, did not involve pure speech, and acknowledged the strong state and local governmental interest in regulating
the use of the streets. 220 The court further noted that in Walker the
defendants disobeyed an ex parte order without any prior recourse
to the courts. 22 ' On the other hand, the order in Cooper was not
entered ex parte and the "defendants respectfully argued to the trial
found
court the constitutional issues which [the appellate court]
' 22 2
compelling on appeal before the alleged disobedience.
The appellate court recognized that distinguishing Dickinson
presented a more difficult question because that decision applied
223
the rules established in Walker to a case involving pure speech.
The Illinois court, however, rejected the application of Dickinson on
other grounds. The court argued that the rule in Dickinson does not
recognize the strong presumption that prior restraints on pure
to
speech are unconstitutional and does not give due consideration 224
restraints.
prior
by
caused
injury
the
of
nature
the irreparable
The court found the approach in Dickinson too rigid, and concluded
that the proper standard of review was a balancing test. 22 5
C. Arizona
The Arizona Supreme Court, in Phoenix Newspapers v. Superior
Court,226 held that an invalid order could not support a contempt
citation. 2 27 The case involved a restraining order issued by a trial
court the day before a jury was impaneled to hear a murder case. 228
The judge denied the defendant's application for a writ of habeas
corpus after finding sufficient evidence at the preliminary hearing to
219. Id.
220. Id. at 257, 365 N.E.2d at 750.
221. Walker v. City of Birmingham, 388 U.S. 307, 310-11 (1967).
App. 3d at 252, 365 N.E.2d at 748.
222. Cooper, 50 Ill.
223. Id. at 257, 365 N.E.2d at 751; see Walker, 388 U.S. at 315 (stating that Ist and 14th
amendments afford greater protection to pure speech than to potentially disorderly conduct
(citing Cox v. Louisiana, 379 U.S. 536, 555 (1965))).
224. Cooper v. Rockford Newspapers, Inc., 50 Il. App. 3d 250, 256-57, 365 N.E.2d 746,
751 (1977).
225. See id. at 258, 365 N.E.2d at 751 (concluding that proper approach is case by case
balancing of first amendment and conflicting interest). But see Emerson, Toward a General Theory of the First Amendment, 72 YALE LJ.877 (1963) (concluding that balancing test reduces first
amendment freedoms).
226. 101 Ariz. 257, 418 P.2d 594 (1966).
227. Phoenix Newspapers v. Superior Court, 101 Ariz. 257, 258-59, 418 P.2d 594, 595-96
(1966).
228. Id. at 258, 418 P.2d at 595.
1988]
THE "COLLATERAL BAR" RULE
&
THE FIRST AMENDMENT
357
bind the defendant over for trial.2 29 The defendant's lawyer, who
was concerned about the presence of reporters in the courtroom,
requested the court to enter an order enjoining all persons from
23 0
disclosing what had transpired during the course of the hearing.
The judge issued this order orally.2 3 1 Nevertheless, the Phoenix
newspapers published a factual account of the habeas corpus hearing. 23 2 The court then directed the reporters to appear and show
cause why they should not be held in contempt for violating the order. 233 The newspaper subsequently brought an action in the state
supreme court seeking to prohibit the trial court from proceeding
with the show cause hearing. 23 4 The Arizona Supreme Court struck
down the order as an unconstitutional prior restraint.2 35
In considering the issue of the contempt citation, the supreme
court acknowledged the courts' inherent contempt powers. 23 6 The
court noted, however, that if the lower court lacked jurisdiction or if
its order was void for some other reason, the contemnor may not be
held in contempt. 23 7 The court in Phoenix Newspapers upheld the
principle that courts cannot restrain the press from publishing accurate and truthful information obtained in open court. This exception to the collateral bar rule was not followed in State v. Chavez, 238 a
state court of appeals decision involving both speech and conduct.
In Chavez, the Arizona Court of Appeals held that the defendants,
who were members of the United Farm Workers Union, could not
collaterally attack an injunction that prohibited them from demonstrating or picketing. 23 9 The appeals court reasoned that because
229. Id.
230. Id.
231. Id. The judge's order read:
We have here a man who is going to be tried for homicide. The County Attorney is
going to ask for the death penalty. I don't want the newspapers to publish what
happened here this morning. The jury will be selected this afternoon at 2:30 p.m.,
and if any of this matter is presented in the presence of anyone outside, I will find
that individual or individual of the press in contempt of this Court.
Id., 418 P.2d at 595. The judge further stated that "if it is published that I found probable
cause ... it would be tantamount to everybody reading the paper to believe that he is already
guilty." Id.
232. Id.
233. Id.
234. Id.
235. Id. at 259, 418 P.2d at 596. The court explained that "[t]he restraint imposed by the
trial court in this case strikes at the very foundation of freedom of the press by subjecting it to
censorship by the judiciary." Id. The court also noted that "[w]hat transpires in the courtroom is public property ....
Those who hear and see what transpired can report it with
impunity." Id. (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)).
236. Id.
237. Id.
238. 123 Ariz. 538, 601 P.2d 301 (1979).
239. State v. Chavez, 123 Ariz. 538, 539, 601 P.2d 301, 302 (1979).
358
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
the defendants had initially failed to seek an appeal of the order,
they could not then ask for judicial review at a later date. 240 The
defendants argued, however, that because the injunction violated
the first amendment they had a legal right to disobey the unlawful
order. 24 1 The state, with whom the court of appeals agreed, argued
that because the defendants failed to seek immediate review of the
injunction, they could not challenge its validity on appeal after a
contempt conviction. 24 2 In upholding the convictions, the court refused to consider the constitutionality of the injunction, which
under Phoenix Newspapers had been used to create an exception to the
collateral bar rule.
The defendants argued that Phoenix Newspapers and other state
cases supported their assertion that a void order could not support a
contempt conviction. 243 The court of appeals rejected the defendant's argument and asserted that some state courts had misinterpreted Supreme Court precedent in this area.2 44 The court then
concluded that
the concept that any person, lay or professional, may determine
whether a court order is 'void on its face' and thus susceptible to
being ignored as unconstitutional can find no justification in the
would stand the judicial
law. The application of such a principle
5
24
system in this country on its head.
The fact that state courts can look at the same legal precedents
and arrive at different conclusions is clearly illustrated by the Arizona court's criticism of the California decision in In re Berry,24 6 an
240. Id.
241. Id.
242. Id.
243. Id. at 540, 601 P.2d at 303; see In re Berry, 68 Cal. 2d 137,436 P.2d 273, 65 Cal. Rptr.
273 (1968) (holding that invalid order cannot support contempt conviction). But see Broomfield v. Maricopa County, 112 Ariz. 565, 544 P.2d 1080 (1975) (finding that court order must
be obeyed until reversed by proper proceedings).
244. State v. Chavez, 123 Ariz. 538, 541-42, 601 P.2d 301, 304-05 (1979). The court
criticized In re Berry, 68 Cal. 2d 137, 436 P.2d 273, 65 Cal. Rptr 273 (1968), the California
Supreme Court decision advanced by defendant. The court first pointed out that the Berry
decision's superficial position that California has always been "more liberal with regard to
first amendment rights than Alabama" failed to heed Walker's "biting denunciation ... which
had nothing to do with Alabama law or the First Amendment philosophy of the Alabama
courts." Chavez, 123 Ariz. at 541, 601 P.2d at 304 (quoting Walker v. City of Birmingham, 388
U.S. 307, 320-21 (1967)). Further, the court in Chavez criticized the Berry court's reliance on
Thornhill v. Alabama. 310 U.S. 88 (1940) (overturning contempt convictions based on violation of overbroad criminal statute). The court argued that, as the decision in Walker itself
recognized, there is an important distinction between an unconstitutional state law and an
unconstitutional court order. Chavez, 123 Ariz. at 541-42, 601 P.2d at 304-05; see Walker v.
City of Birmingham, 388 U.S. 307, 320 (1967).
245. State v. Chavez, 123 Ariz. 538, 543, 601 P.2d 301, 306 (1979).
246. 68 Cal. 2d 137, 463 P.2d 273, 68 Cal. Rptr. 273 (1968).
1988]
THE "COLLATERAL BAR" RULE & THE FIRST AMENDMENT
359
opinion that refused to recognize the collateral bar rule. The court
in Chavez found that
In re Beny is wholly without logic to support it. It must be the
postulate of reasoned thinking in a civilized nation that judicial
decrees will be faithfully carried out. When the appellants here
ignored the terms of the injunction, they were placing themselves
above the law and presuming to act as judges in their own case.
The doors of this court were open. If they thought the injunction
was too broad, they could easily have sought review by appeal or
by special action as an alternate remedy to willful
24 7
disobedience.
The court's reasoning behind its rejection of Phoenix Newspapers
appears more subtle. After discussing that decision, the court acknowledged that "such language by our state High Court might well
seem to foreclose our inquiry into the collateral attack issue
here. '248 The court, however, distinguished the facts in Phoenix
Newspapers, which involved free press and open courtroom justice
and the issue of whether a trial court could limit, in advance of publication, the right of the press to print the news and inform the public.2 4 9 Thus, because the injunction in Chavez did not involve these
issues and was not obviously void on its face, the court concluded
2 50
that the lower court clearly had jurisdiction to issue the order.
The decision in Chavez suggests that the extent to which an injunction touches fundamental first amendment rights, such as pure
speech, will determine the willingness of Arizona courts to consider
collateral attacks on judicial orders. Thus, for example, the accurate
and truthful publication of testimony heard in open court in Arizona
enjoys a proximity to the core of first amendment rights that allows
a waiver of the collateral bar rule. On the other hand, picketing and
demonstrating in a labor dispute, which involve speech and conduct, do not. Timeliness is often as important a factor in labor disputes as in publishing news. The practical implication of these
Arizona decisions is that when deciding whether to disobey an order, the potential contemnor must make some astute calculations
regarding whether his conduct involves a first amendment right that
will trigger the collateral bar rule. Because this standard is so
uncertain, it is extremely difficult for the layperson to determine
247. Chavez, 123 Ariz. at 543, 601 P.2d at 306.
248. Id. at 540, 601 P.2d at 303.
249. Id.
250. Id. at 543, 601 P.2d at 306. The court noted that the trial court was entitled to issue
the order because picketing had led to violence and the injunction was necessary to prevent
potential acts of violence. It added that "[t]he basic liberties of the First Amendment cannot
be enhanced by denying to our courts the power to deal with such violence." Id.
360
THE AMERICAN UNIVERSrIY LAW REVIEW
[Vol. 37:323
what his actions should be in advance of appealing a contempt
conviction.
D.
California
Two years after the Arizona Supreme Court's decision in Phoenix
Newspapers, the California Supreme Court held in In re Berry 2 5 1 that
public employees could collaterally attack an injunction that sought
to prevent them from picketing and encouraging non-union employees to participate in a strike. 252 The petitioners disobeyed the
court order, proceeded with the proscribed activities, and then
a contempt proceeding by filing a habeas
sought release from
25 3
corpus petition.
On appeal, the respondents argued that the constitutionality of
the restraining order was irrelevant to the issue of contempt and
that the petitioners had not properly challenged the order through
available legal channels prior to their willful violation of it.254
Therefore, the respondents claimed that the petitioners should be
precluded from challenging the constitutionality of the order in the
context of the contempt proceedings. 255 The California Supreme
Court rejected this argument, noting that "it is clearly the law that
the violation of an order in excess of the jurisdiction of the issuing
court cannot produce a valid judgment of contempt. ' 25 6 The court
explained that under California law, a person subject to an injuncand challenge its validity when aptive order can disobey the order
25 7
citation.
pealing a contempt
The California Supreme Court quickly brushed aside Walker,
which had been decided only a year earlier, as not controlling. The
court asserted that the rule adopted in California was "considerably
more consistent with the exercise of First Amendment freedoms
than that adopted in Alabama, and it is therefore difficult to perceive
251. 68 Cal. 2d 137, 439 P.2d 273, 65 Cal. Rptr. 273 (1968).
252. In re Berry, 68 Cal. 2d 137, 145, 436 P.2d 273, 279, 65 Cal. Rptr. 273, 279 (1968).
253. Id. at 145-46, 436 P.2d at 279, 65 Cal. Rptr. at 279.
254. Id.
255. Id. at 148, 436 P.2d at 281, 65 Cal. Rptr. at 280.
256. Id. at 147, 436 P.2d at 280, 65 Cal. Rptr. at 280.
257. Id. at 149, 436 P.2d at 281, 65 Cal. Rptr. at 281. The court added that the
contemnor
may conclude that the exigencies of the situation or the magnitude of the rights inSuch a person may
volved render immediate action worth the cost of peril ....
disobey the order and raise his jurisdictional contentions when he is sought to be
punished for such disobedience. If he has correctly assessed his legal position, and it
is ... determined that the order was issued without or in excess ofjurisdiction, his
violation of such void order constitutes no punishable wrong. Id., 436 P.2d at 281,
65 Cal. Rptr. at 281.
1988]
THE "COLLATERAL
BAR" RULE & THE FIRST AMENDMENT
361
how the Walker decision is of relevance. '2 58 The court then concluded that the "transparent invalidity" exception in Walkerjustified
California's rule that an order void upon its face cannot support a
25 9
contempt judgment.
Despite the decisions in Dickinson and Walker, a federal district
court in California adopted Beny as controlling law in Glen v.
Hongisto.260 In Glen, the United States District Court for the Northern District of California, in a federal habeas corpus proceeding, reversed the contempt convictions of labor union leaders who had
violated a state injunction prohibiting their unions from striking. 26 1
The petitioners argued that the injunction was unconstitutionally
vague and overbroad and that there was insufficient evidence to support a finding that they had violated the injunction. They further
argued that the first amendment protected their right to publish a
newspaper advertisement discussing issues related to the labor
2 62
dispute.
Relying on Supreme Court precedent, 2 63 the district court held
that the petitioners could not be held in contempt simply because
one of the acts for which they were convicted might have been validly
punished. 2 64 In Glen, the court based its decision partly on the first
amendment protection afforded advertisements. 265 The court
noted that if the federal rule were applied, the constitutionality of
the injunction would not be an issue because the collateral bar rule
would prevent review of the contempt convictions. 2 66 The issue in
Glen, however, was not whether the petitioners could use one of the
two methods provided in Berry for challenging an injunction, 2 67 but
258.
Id. at 150, 436 P.2d at 282, 65 Cal. Rptr. at 282. The Court held that the Supreme
Court in Walker had only determined that Alabama law did not violate the Constitution under
the facts of that case, not that states could not enact broader standards in this area. Id.
259. Id., 436 P.2d at 282, 65 Cal. Rptr. at 281.
260. 438 F. Supp. 10 (N.D. Cal. 1977).
261. Glen v. Hongisto, 438 F. Supp. 10, 11-12 (N.D. Cal. 1977). The state court sentenced defendants to five days in jail and imposed a fine of $500. Thejudgments of contempt
were stayed pending the district court's decision. Id.
262. Id. at 13. The trial court held that the advertisement encouraged striking unions and
others to "ignore the court orders and escalate their efforts." Id. The district court, however,
stated that the advertisement "simply urged the Board of Supervisors to negotiate by engaging in collective bargaining." Id. at 18.
263. See Thomas v. Collins, 323 U.S. 516 (1945) (holding that contempt judgment based
on constitutionally protected activity invalid).
264. Glen, 438 F. Supp. at 13.
265. Id.
266. Id.
267. In re Berry, 68 Cal. 2d at 137, 148, 436 P.2d at 273, 281, 65 Cal. Rptr. 273, 280
(1968). The court set forth two acceptable methods to challenge the validity of an injunction
issued without or in excess ofjurisdiction: (1) comply with the order while seeking judicial
declaration as to its jurisdictional validity; and (2) disobey the order and raise jurisdictional
contentions when punished for disobedience. Id.
362
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
whether the injunction applied to the placing of an advertisement. 2 68 The district court determined that regardless of whether
the injunction was facially invalid, it could not be applied to an activity protected by the first amendment. 2 69 The contempt judgment
2 70
was therefore held impermissible.
E. Massachusetts
In Fitchburg v. 707 Main Corp.,271 the Supreme Judicial Court of
Massachusetts reversed the contempt conviction of a movie theater
owner that was based on his violation of a licensing law later declared invalid on appeal. 2 72 The lower court had fined the defendant $500 a day for a period of two weeks, held him in contempt,
sentenced him to six months in jail, and then fined him $15,000.273
The Supreme Judicial Court ruled that the ordinance requiring
movie theaters to be licensed was arbitrarily and capriciously applied, lacked objective standards, and was unconstitutionally imprecise. 274 Turning to the contempt conviction, the court observed
that nothing in the proceedings indicated whether the contempt was
civil or criminal, and noted that the lower court had failed to resolve
this issue. 2 75 The court then acknowledged that it could remand the
case to enable the judge to consider whether the punishment for
contempt was appropriate to vindicate the court's authority, but
chose not to do so. 2 76 Although the court found that the injunction
was not transparently invalid, it nevertheless concluded that the
contempt conviction should be reversed. 2 7 7 The court supported its
decision by holding that the ambiguous adjudication at the lower
court level was an adjudication of civil contempt, for which criminal
278
penalties are inappropriate.
F. Alabama
Considering that Walker had emerged from the Alabama courts, it
is not surprising that the Alabama Supreme Court upholds the collateral bar rule. In Ex parte Purvis, 27 9 the defendant, a union leader,
268.
269.
Glen v. Hongisto, 438 F. Supp. 10, 17 (N.D. Cal. 1977).
Id. at 18.
270. Id.
271.
272.
273.
274.
275.
276.
277.
278.
279.
369 Mass. 748, 343 N.E.2d 149 (1976).
Fitchburg v. 707 Main Corp., 369 Mass. 748, 750, 343 N.E.2d 149, 151 (1976).
Id. at 750, 343 N.E.2d at 152.
Id. at 752, 343 N.E.2d at 153.
Id. at 754, 343 N.E.2d at 154.
Id. at 754-55, 343 N.E.2d at 154.
Id. at 755, 343 N.E.2d at 155.
Id.
382 So. 2d 512 (Ala. 1980).
1988]
THE "COLLATERAL BAR" RULE & THE FIRST AMENDMENT
363
was jailed for contempt after violating a temporary restraining order
that had enjoined a strike against the Birmingham water department.2 8 0 The court held that the defendant could not challenge the
constitutional validity of the trial court's order because he had failed
to attempt to dissolve or modify the order before violating it.281
The defendant, however, contended that the order was transparently invalid, unconstitutional, and required the "irretrievable surrender of his important constitutional rights. ' 28 2 He acknowledged
the rule established in Walker that court orders generally must be
obeyed until reversed by orderly process, but asserted that in his
case, the order "had such a chilling effect on his First Amendment
rights that the order was void on its face," and that he was therefore
283
entitled to disregard the order.
In reaching its decision, the court noted that violence had erupted
during the union strike and that the city's water service had been in
danger of being shut down. 28 4 On this basis, the trial court's temporary restraining order was not transparently invalid or frivolous. 2 8 5
The court also noted that the trial court had scheduled a hearing to
be held within five days after issuance of the order, at which time the
defendant could have sought modification or dissolution of the order.2 8 6 Thus, the court concluded that it need not consider the va-
lidity of the order because the "sole basis for our decision in this
case is the need to maintain the integrity of court orders. '28 7
280. Ex Parte Purvis, 382 So. 2d 512, 514 (Ala. 1980).
281. Id. at 515. The trial court sentenced defendant to 15 days in jail, and he served 8
days before the state supreme court stayed the sentence pending appeal. Id. at 513.
282. Id. at 514.
283. Id.
284. Id.
285. Id.
286. Id. at 515. The court noted a difference between cases in which orders are issued
against the press in criminal trials and those in which the state has a compelling interest in
regulating the use of streets and other public places. Id. at 514-15.
287. Id. at 515; see also Eastern Associated Coal Corp. v. Doe, 220 S.E.2d 672 (W. Va.
1975) (upholding contempt convictions of union leaders violating restraining order against
picketing). In Doe, the West Virginia court allowed a limited exception to the collateral bar
rule, noting that
Anyone who would violate a preliminary injunction issued by a court with general
equity powers and later seek collaterally to attack it in an action for criminal contempt must stand ready to prove that the injunction was not issued in good faith and
that the legal process was being used as a vehicle for intimidation.
Id. at 680; see also id. at 680-82 (discussing difference between civil and criminal contempt, and
limits on judge's summary powers to punish for criminal contempt); see also Lewis v. S.S.
Baunne, 534 F.2d 1115, 1119 (5th Cir. 1976) (holding that criminal contempt punishes defiance ofjudicial authority, whereas civil contempt serves to compel obedience of court order);
Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 827 (5th Cir. 1976) (explaining that choice
to impose civil or criminal contempt is dictated by purposes to be served); Louisiana Educ.
Ass'n v. Richland Parish School Bd., 421 F. Supp. 973, 975 (W.D. La. 1976) (stating that civil
contempt vindicates rights of aggrieved persons while criminal contempt vindicates courts'
powers).
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 37:323
III.
REJECTION OF DICKINSON AT THE FEDERAL LEVEL:
PROVIDENCE JOURNAL
The Fifth Circuit Court of Appeal's holding in Dickinson that judicial orders must be obeyed until modified or set aside on appeal has
not only failed to persuade a number of state courts, but also some
federal circuit courts. Indeed, most recently, the First Circuit Court
of Appeals, after almost 15 years of post-Dickinson litigation, rejected
the collateral bar rule in In re Providence Journal.28 8 The Providence
Journal, Rhode Island's largest newspaper, and its executive editor
were both found guilty of criminal contempt by a district court after
the newspaper published an article about the late Raymond L.S. Patriarca, a reputed organized crime figure. 28 9 The newspaper obtained transcripts based on tape recordings made in the 1960's with
an illegal FBI wiretap. 2 90 After Patriarca's death, the FBI sent the
information to The ProvidenceJournal in response to a request under
the Freedom of Information Act.2 9 1 Patriarca's son learned of the
paper's plans for an article based on the information on the tapes
and sought a restraining order. 2 92 Federal district court judge Francis J. Boyle granted the order on November 13, 1985, and set a
hearing two days later at which time he would decide whether or not
to vacate the order. 293 The district court eventually vacated the order and denied preliminary injunctive relief against the Providence
29 4
Journal.
On November 14th, one day after the district court issued the order and one day before the hearing, the newspaper published the
article. After appointing a special prosecutor and holding a hearing,
the district court found the newspaper guilty of criminal con288. 820 F.2d 1342 (1st Cir. 1986), cert. grantedsub nom. United States v. Providence Journal Co., 56 U.S.L.W. 3242 (U.S. Oct. 5, 1987) (No. 87-65).
289. In re Providence Journal, 820 F.2d 1342, 1344 (1st Cir. 1986), cert. granted sub nom.
United States v. Providence Journal Co., 56 U.S.L.W. 3242 (U.S. Oct. 5, 1987) (No. 87-65).
The article ran in the ProvidenceJournalon November 14, 1985. See Providence Journal, Nov.
14, 1985, at 3, col. 1.
290. ProvidenceJournal, 820 F.2d at 1344.
291. Id. The FBI also released the information to WJAR-TV and other news organizations. Id. It originally had refused to turn over the information to the newspaper on the
grounds that disclosure would be an unwarranted invasion of personal privacy. Id. The newspaper subsequently brought suit in federal district court seeking to compel disclosure. See
Providence Journal Co. v. FBI, 460 F. Supp. 762 (D.R.I. 1978) (ruling that FBI was within its
discretion to refuse newspaper's request), aff'd, 602 F.2d 1010 (1st Cir. 1979), cert. denied, 444
U.S. 1071 (1980).
292. ProvidenceJournal,820 F.2d at 1343-44. The newpaper was served with the complaint
on November 12, 1985. The newspaper argued that the restraining order constituted a prior
restraint forbidden by the first amendment. Id. at 1345.
293. Id.
294. Id.
1988]
THE "COLLATERAL
tempt.2
BAR" RULE
&
THE FIRST AMENDMENT
365
9 5
The court later imposed harsh sentences: the editor was
given an 18-month jail term to be followed by 200 hours of public
service, and the newspaper was fined $100,000.296
Although the district court eventually vacated its restraining order, the First Circuit nevertheless decided to consider first, whether
the original order was unconstitutional before moving to the question of whether the contempt citation should stand.2 97 The court
stated that the case presented a conflict between two fundamental
principles, "the hallowed First Amendment principle that the press
shall not be subject to prior restraints" and "the sine qua non of
orderly government, that, until modified or vacated, a court order
must be obeyed. '29 8 The special prosecutor, citing the collateral
bar rule, argued that even unconstitutional orders must be
2 99
obeyed.
The circuit court held that it was "patently clear" that the order of
November 13th failed to pass muster under the test established in
Nebraska Press Association.3 00 The court held that a party seeking a
prior restraint against the press must show not only that publication
"will result in damage to a near-sacred right, but also that the prior
restraint will be effective and that no less extreme measures are
available."3 0 1 The court also noted that the district court had failed
to make a finding on either of these issues, an omission that made
30 2
the invalidity of the order even more clear.
In words demonstrating much compassion for the role of a daily
newspaper, the court stated:
It is misleading in the context of daily newspaper publishing to
295. Id. at 1344, modified, 820 F.2d 1354 (1st Cir. 1987) (panel opinion) (requiring newspaper to make good faith effort to seek emergency relief from appellate court).
296. Id. at 1345. The jail term was later suspended. Id. Judge Boyle was quoted in the
New York Times as saying that the newspaper had "chosen to violate an appropriate court order
and boldly communicate that defiance to hundreds of thousands of residents in this area."
Newspaper Fined by FederalJudge,N.Y. Times, Apr. 3, 1986, at A11, col. 1. Thejudge arrived at
the decision of what penalty to impose by multiplying the newspaper's average daily circulation of 200,000 by 50 cents. Thejudge derived that figure, according to the Associated Press,
by adding 15 cents per copy of estimated advertising revenues to the 35 cent per copy price.
SeeJudgefines Rhode IslandPaper$100, 000for Contempt, The Seattle Times, Apr. 3, 1986, at A7,
col. 1. The next day, thejudge granted an indefinite stay of the fine and a suspended sentence
so that the newspaper could appeal. See Judge Delays Fine to Let Newspaper File Appeal, N.Y.
Times, Apr. 4, 1986, at A8, col. 2.
297. In re Providence Journal, 820 F.2d 1342, 1345 (1st Cir. 1986), cert. granted sub noma.
United States v. Providence Journal, 56 U.S.L.W. 3242 (U.S. Oct. 5, 1987) (No. 87-65).
298. Id. at 1344.
299. Id. at 1345.
300. Id. at 1349. Patriarca based his request for injunctive relief on the fourth amendment. The court rejected that argument, holding that the "Fourth Amendment protects citizens from abuses by the government, not from actions of private parties." Id. at 1350.
301. Id. at 1351.
302. Id.
366
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
argue that a temporary restraining order merely preserves the status quo. The status quo of daily newspapers is to publish news
promptly that editors decide to publish. A restraining order disturbs the status quo and impinges on the exercise of editorial discretion. News is a constantly changing and dynamic quantity.
305
Today's news will often be tomorrow's history.
The First Circuit considered the question of contempt and acknowledged that the decision in Walker would appear to control the
case.30 4 The court, however, found that in Walker the Supreme
Court had been cautious to note that the order challenged in that
case was not transparently invalid, and therefore its decision would
be misapplied under the facts in ProvidenceJournal.30 5 Thus, the First
Circuit interpreted the decision in Walker to mean that a transpar30 6
ently invalid order cannot form the basis for a contempt citation.
After stating that transparently invalid orders cannot support contempt citations, 30 7 the circuit court did not provide much guidance
to journalists and others on how to recognize such an order. The
court only noted that "the line between a transparently invalid order
08
and one that is merely invalid is, of course, not always distinct"
and that there should be a heavy presumption in favor of validity of
an order.3 0 9
Without explicitly defining a transparently invalid order, the court
suggested that failure to follow certain procedures would make invalidity even more transparent. 10° For example, the district court's
failure to make a finding as to the applicability of the test in Nebraska
Press Association made the order's invalidity more obvious.3 1 1 In addition, a prior restraint order issued before a "full and fair hearing"
with all the attendant procedural protections "faces an even heavier
303. Id.
304. Id. at 1346.
305. Id. at 1346-47 (quoting Walker v. City of Birmingham, 388 U.S. 307, 315 (1967)).
306. Id. at 1347. The court said that the two cases were clearly distinguishable because
Walker involved speech and conduct, while Providence involved pure speech. Id. at 1348.
307. Id. at 1347 (footnote omitted).
308. Id.
309. Id. The court said: "As a general rule, if the court reviewing the order finds the
order to have had any pretence to validity at the time it was issued, the reviewing court should
enforce the collateral bar rule." Id. The court also noted that there may be a number of
reasons why such an order would be issued:
We pause to note that the existence of a transparently unconstitutional order does
not indicate an improper motive or incompetence. To the contrary, any number of
factors including a short deadline, an excessive workload on the court, or the poor
presentation of the issues by the parties can lead the court to issue an order that
would not have been issued in the absence of the exigent circumstances.
Id. at 1348 n.31.
310. Id. at 1351.
311. Id.
1988]
THE "COLLATERAL BAR" RULE & THE FIRST AMENDMENT
367
presumption of invalidity,"' 3 12 and the "transparent unconstitutionality of the order is made even more patent by the absence of such a
313
hearing."
The First Circuit concluded that because the district court's order
was transparently invalid, the newspaper should have been allowed
31 4
to challenge its constitutionality at the contempt proceedings.
Therefore, the court added, "the order cannot serve as the basis for
315
the contempt citation.
The First Circuit recognized in ProvidenceJournalthat civilized government requires that a party subject to a court order must abide by
its terms or face criminal contempt. The exception to this rule is an
order that is entered by a court that clearly has no jurisdiction over
the contemnors or the subject matter in dispute. The First Circuit
concluded that such orders would not be protected by the collateral
3 16
bar rule.
312. Id.
313. Id. at 1351. The court noted that counsel for the newspaper were notified less than
24 hours before they were to present their arguments. Id.
314. Id. at 1353.
315. Id.
316. Id. at 1347. The court stated:
Requiring a party subject to such an order to obey or face contempt would give the
courts powers far in excess of any authority by the Constitution or Congress....
Although a court order-even an arguably incorrect court order--demands respect,
so does the right of the citizen to be free of clearly improper exercises of judicial
authority.... When the order is transparently invalid... the court is acting so far in
excess of its authority that it has no right to expect compliance and no interest is
protected by requiring compliance.
Id. The court of appeals explained in a lengthy footnote that in reversing the contempt conviction, the court did not condone the newspaper's conduct. Id. at 1353 n.75. The court
criticized the newspaper for using the court order to "bolster the importance of the Patriarca
story" with such headlines as "Court Restricts Media Use of FBI Tapes on Patriarca; Journal
Decides to Print." Id. The court noted that by publishing a day before the scheduled hearing
and by not seeking expedited appellate review, theJournal "invited a confrontation." Id. The
court added: "It appears to this court that theJournalpublished the story concerning the court
order more for its publicity value than for its news value." Id. at 1354 n.75.
Judge Boyle's decision to hold the newspaper and its editor in contempt generated press
commentary, including thoughtful observations by New York Times columnist Anthony Lewis,
one of the foremost writers on the law and the Supreme Court. Despite a strong commitment
to the first amendment, Lewis supported the contempt convictions, reasoning that if people
ignore court orders in the belief that they will later be found invalid, the system will not work.
Lewis, The Civilizing Hand, N.Y. Times, Apr. 7, 1986, at A27, col. 1. Lewis recognized that
individuals may have to violate statutes to test their validity, but added:
Injunctions have always been treated differently in the Federal courts. That may be
because they are directed specifically to individuals. Or it may be because of a feeling that we need finality somewhere in the system. In any event, violation of an
injunction is almost always contempt, even if the injunction is later set aside.
Id. Lewis said there may be occasions when such disobedience is necessary, giving the example of a court trying to stop a story from being published on the eve of an election when no
appeal was possible. Id. He added, however, that "[i]t is hard to see what urgency, or what
policy, required The Providence Journal to rush that story into print without appealing." Id.
Others did not see the case as involving the first amendment. Professor Laurence H. Tribe
noted that "[i]t's a case of the power of the judiciary to punish violators of its orders. ...
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 37:323
368
In an unusual development, the First Circuit granted a petition
for rehearing the case en banc and issued a per curiam opinion that
modified the original decision. 3 17 Like the initial three-judge panel,
the en banc court recognized that requiring publishers to pursue the
3 18
normal appeal process posed great difficulties for publishers.
Nevertheless, the court felt compelled to attempt-in language it
characterized as "technically dictum"-a balance between the conflicting principles of the collateral bar rule and the notion of no
3 19
prior restraints against pure speech.
The en banc opinion suggested that publishers make an effort to
appeal what they consider to be an unconstitutional order rather
than simply disobey it.320 The court reasoned that:
It is not asking much, beyond some additional expense and time,
to require a publisher, even when it thinks it is the subject of a
transparently unconstitutional order of prior restraint, to make a
good faith effort to seek emergency relief from the appellate
court. If timely access to the appellate court is not available or if
timely decision is not forthcoming, the publisher may then proceed to publish and challenge the constitutionality of the order in
the contempt proceedings ....
Such a price does not seem dis-
proportionate to the respect owing the court processes; and there
is no prolongation of any prior restraint. On the other hand,
should the appellate court grant the requested relief, the conflict
between principles has been resolved and the expense and time
involved have vastly been offset by aborting any contempt
32 1
proceedings.
The court understood that the publisher would have to demonstrate some record of its good faith effort to appeal, but added,
Violating a restraining order is a punishable offense, even if the restraining order is later
determined to be illegal. It appears to be a clear-cut case of violating the order, not a constitutional conflict." See Newspaper in Providence is Fined for Violating Federal Court Order, N.Y.
Times, Apr. 3, 1986, at A23, col. 2. But see Court Throws Out Contempt Ruling Against Paper,N.Y.
Times, Jan. 1, 1987, at A8, cols. 1-3 (reporting Judge Wisdom's opinion that case involved
conflict between free press and orderly administration of justice).
317. In re Providence Journal, 820 F.2d 1354, 1354 (1st Cir. 1987). Five of the sixjudges
of the court joined the per curiam opinion. Judge Selya did not concur in the en banc opinion
on the ground that the "court should hold a hearing and decide the case anew after full
briefing and argument." Id.
318. The court wrote: "Not only would such entail time and expense, but the right
sought to be vindicated could be forfeited or the value of the embargoed information considerably cheapened." Id. at 1354-55.
319. Id. at 1355 (stating that "[w]e recognize that our announcement is technically dictum, but are confident that its stature as a deliberate position taken by us in this en banc
consideration will serve its purpose").
320. Id.
321.
Id.; see also High Court, Short a Member, Starts to Set Its Agenda, N.Y. Times, Oct. 6, 1987,
at Al, col. 4, B6, cols. 2-4 (noting that prior restraint rule and contempt orders require careful
judicial balancing).
1988]
THE "COLLATERAL
BAR"
RULE
&
THE FIRST AMENDMENT
369
"that is a price we should pay for the preference of the court over
party determination of invalidity. ' 3 22 The en banc opinion was issued as an "addendum to and modification of" the opinion of the
three-judge panel, which "may stand as reflecting the opinion of the
3 23
en banc court."
The en banc opinion expressed substantial understanding for the
role and responsibilities of journalists. Its holding that they may
collaterally challenge judicial orders when emergency relief is unavailable leads to a reasonable and workable compromise that is
supported by other case law.3 24 This compromise requires that
journalists appeal court orders first, and only disobey the orders
when appellate relief is not forthcoming before the time of publication. While this compromise will not cover all circumstances, it may
free journalists from punishment for disobeying unconstitutional
orders while maintaining respect for judicial decisions.
IV.
SUPREME COURT REVIEW OF PROVIDENCE JOURNAL: STATE-BYSTATE ADJUDICATION OR NATIONAL STANDARDS?
The Supreme Court has granted certiorari in United States v. ProvidenceJournal Co. 3 25 For the first time, the Court will directly consider
the applicability of the collateral bar rule in a case where an unconstitutional prior restraint order was issued against a news organization. The Court will consider the challenge to transparently invalid
orders against the background of first amendment rights. Providence
Journalprovides an opportunity to establish national standards in an
area of the law marked by inconsistent, contradictory, and confusing
3 26
decisions that vary substantially from jurisdiction to jurisdiction.
322. In re Providence Journal, 820 F.2d 1354, 1355 (Ist Cir. 1987). The en banc opinion
noted that only about eight hours elapsed between the issuance of the order by the district
court and the deadline for publication, adding:
Not only are we left without a clear conviction that timely emergency relief was available within the restraints governing the publisher's decision making, but we would
deem it unfair to subject the publisher to the very substantial sanctions imposed by
the district court because of its failure to follow the procedure we have just
announced.
Id. at 1355.
323. Id. at 1354.
324. See infra notes 344-57 and accompanying text (arguing that collateral attack should
be allowed when expedited appeal fails).
325. United States v. Providence Journal Co., 56 U.S.L.W. 3242 (U.S. Oct. 5, 1987) (8765).
326. Courts in Washington, Illinois, Arizona, California, and Massachusetts have held that
unconstitutional prior restraints on certain types of speech may be collaterally challenged
while appealing a contempt conviction. See supra notes 144-278 and accompanying text. State
courts in Alabama, see supra notes 279-87 and accompanying text, and the Fifth Circuit Court
of Appeals, see supra notes 64-115 and accompanying text, have upheld the collateral bar rule
in cases involving first amendment rights.
370
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
There is even inconsistency among those states that recognize exceptions to the collateral bar rule and hold that an invalid order can3 27
not support a contempt conviction.
In ProvidenceJournal,the Supreme Court must determine whether
a national collateral bar standard will displace existing state law.
The Court should also address other important issues, including establishing procedural requirements, distinguishing pure speech
from speech plus conduct, distinguishing violation of an injunction
from a violation of statutes, defining the exact nature of a court's
contempt powers, clarifying jurisdictional issues, and discussing the
difficulties created when orders are issued verbally.
While case law relating to the collateral bar rule and the first
amendment is at a primitive stage in many jurisdictions, some states
have already developed their own tests to determine whether a court
has the authority to issue a particular order, and it may be difficult
for the Supreme Court to replace them with its own standard. If a
state court is determined to adopt a more press-protective standard
than the United States Supreme Court, the court may simply base its
decision on its own state constitution and in this respect circumvent
the Supreme Court's decision.3 28 In Coe, the Washington Supreme
Court stated that the issue of whether the prior restraint order was
3 29
constitutional should be treated first under the state constitution.
The court noted that the protection of fundamental rights is an important function of the state's constitution and courts.3 30 Thus, the
court relied on the language of its state constitution to provide
33
broad protection to the exercise of first amendment rights. '
In this era of legal decentralization, states have been granted substantial autonomy to interpret what previously had been considered
327. The Washington Supreme Court, for example, strongly suggested in Sperny that when
the order is "patently invalid," Walker is not controlling. Washington ex rel. Superior Court v.
Sperry, 79 Wash. 2d 69, 74, 483 P.2d 608, 611 (1971), cert. denied, 404 U.S. 939 (1971). It also
suggested in Speny that an order "patently in excess" of the jurisdiction of the issuing court
cannot produce a valid judgment of contempt. Id. In Mead II, however, the court invalidated
the injunction but upheld the contempt conviction. Mead School Dist. v. Mead Educ. Ass'n,
85 Wash. 2d 278, 282, 534 P.2d 561, 565 (1975). Then in Coe, the state supreme court relied
on Sperry in invalidating the court's order and reversing the contempt citation. Washington v.
Coe, 101 Wash. 2d 364, 386, 679 P.2d 353, 365 (1984).
In Arizona, the state supreme court held in Phoenix Newspapers that an invalid order could
not support a contempt citation. Phoenix Newspapers v. Superior Court, 101 Ariz. 257, 260,
418 P.2d 594, 597 (1966). The same court, however, upheld the collateral bar rule in Chavez
when the issue was no longer pure speech, but speech plus conduct. State v. Chavez, 123
Ariz. 538, 543, 601 P.2d 301, 306 (Ariz. Ct. App. 1979).
328. See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980) (stating that prior
cases do not limit states' right to adopt more expansive liberties in states' own constitutions).
329. State v. Coe, 101 Wash. 2d 364, 373, 679 P.2d 353, 359 (1984).
330. Id. at 374, 679 P.2d at 359.
331. Id. at 375, 679 P.2d at 359.
1988]
THE "COLLATERAL BAR" RULE & THE FIRST AMENDMENT
371
federal rights.3 3 2 Especially in an area of law like the collateral bar
rule that directly affects the legitimacy of the courts, states might not
surrender total control to the Supreme Court to determine when
judicial orders can be collaterally challenged.
Yet there is substantial danger to the first amendment when it is
subjected to judicial interpretation that varies from jurisdiction to
jurisdiction. National news organizations cannot function properly
if the first amendment means one thing in one state and something
very different in another. The challenge for the Supreme Court may
be to establish general standards that leave room for state innovation. For example, the Court could establish an exception to the
collateral bar rule when no adversarial hearing has been held prior
to the issuance of a restraining order against the press, but leave to
the states the procedures under which the adversarial hearing will
be conducted.
The Supreme Court could also establish minimum standards and
allow states the flexibility to provide greater first amendment protection than is required under those standards. This approach was
taken, for example, in the field of libel law. In Gertz v. Robert Welch,
Inc., 333 the Court established a minimum standard of fault that
states must observe, but allowed state courts to determine the standard of liability for private person libel plaintiffs. These standards
vary from mere negligence to actual malice, or some combination
thereof.3 34 Although granting states autonomy over key elements in
libel law has led to substantial variance among jurisdictions in the
amount of first amendment protection afforded to news organizations,3 3 5 it nevertheless demonstrates the Supreme Court's commitment to allowing state courts a greater role.
Courts that have considered collateral bar cases have varied
widely in the procedures they follow prior to issuing the order.
While some courts will issue an ex parte order without any attempt
to hear the constitutional claims of news organizations, other courts
3 36
hold hearings in which both parties are able to present their case.
The Supreme Court may need to consider whether a hearing that is
332. See LABUNSKI, supra note 4 (tracing states' role in development of "preferred position" of first amendment theory).
333. 418 U.S. 323 (1974).
334. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-50 (1974).
335. See Labunski, Pennsylvania and Supreme Court Libel Decisions: The "Libel Capital of the
Nation" Tries to Comply, 25 DuQ. L. REv. 87 (1986) (discussing state compliance with Supreme
Court libel decisions); see also LABUNSKI, supra note 4.
336. SeeIn re ProvidenceJournal, 820 F.2d 1342, 1344 (1st Cir. 1986) (noting that hearing
preceded trial court's contempt determination), cert. granted sub nom. United States v. ProvidenceJournal, 56 U.S.L.W. 3242 (U.S. Oct. 5, 1987) (No. 87-65).
372
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
held prior to the issuance of the prior restraint order would mandate a stricter application of the collateral bar rule. Applying the
collateral bar rule uniformly to cases in which such hearings are held
and to cases in which the order is issued ex parte is inappropriate.
Therefore, in ProvidenceJournal, the Court may want to outline the
type of proceedings that would be required before a news organization forfeits its right to collaterally challenge the order when appealing a contempt conviction.
The Court may also choose to reinforce its previous opinions in
Oklahoma PublishingCo. v. District Court337 and Cox BroadcastingCorp. v.
Cohn,338 which suggest a strong presumption of unconstitutionality
of any order that touches pure speech, such as testimony heard in
open court. 33 9 Except in highly unusual circumstances, it is difficult
to conceive how a court could punish news organizations for accurately publishing information that would be available to any citizen
who attended the trial. Reaffirmation of these principles would notify trial judges that the Court is committed to its decisions in
Oklahoma and Cox. The Court may also need to reaffirm its decision
in Nebraska Press Association so that trial judges will issue gag orders
against the press only when the decision's very strict three-part test
340
has been satisfied.
The Court should also address the distinction between a violation
of an injunction versus a violation of a statute. The Court must determine the extent to which the disobeyance of an invalid court order is constitutionally equivalent to the violation of a statute. If the
Court holds that the two situations are substantially similar, it will
have no choice but to severely limit application of the collateral bar
rule in first amendment cases. On the other hand, if the Court determines that a fundamental difference between violations of injunctions and statutes exists, it will have to explain why conduct that is
337. 429 U.S. 967 (1976).
338. See Oklahoma Publishing Co. v. District Court, 429 U.S. 967 (1976) (ruling that information available to public at open hearing is not proper subject of gag order); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (holding that courts cannot restrain information
that was obtained from public records and truthfully reported).
339. See, e.g., Oklahoma Publishing Co. v. District Court, 480 U.S. 308, 311 (1977) (invalidating pretrial order prohibiting publication of identity of juvenile arraigned for murder
charges after open hearings had already been held and reported); Nebraska Press Ass'n v.
Stuart, 427 U.S. 539, 568 (1976) ("[O]nce a public hearing had been held, what transpired
there could not be subject to prior restraint."); Cox Broadcasting Corp. v. Cohn, 420 U.S.
469, 496 (1975) (holding that press may not be prohibited from "truthfully publishing information released to the public in official court records."); Sheppard v. Maxwell, 384 U.S. 333,
362-63 (1966) ("[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom."); Craig v. Harney, 331 U.S. 367, 374 (1947) ("those who see and
hear what transpires [in the courtroom] can report it with impunity").
340. See supra note 26 (discussing Supreme Court's decision and three-part test in Nebraska
Press Ass'n).
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THE "COLLATERAL
BAR" RULE
&
THE FIRST AMENDMENT
373
punished if it violates an unconstitutional order is vindicated if it
violates an illegal statute.
ProvidenceJournalcould also provide a forum for discussing courts'
contempt power. As a final vestige of common law crime, contempt
seems to be out of place in a society that values procedural due process so highly. The arbitrary nature of contempt and the severity of
the associated penalties require some attention from the Court. To
allow a judge, who is the victim of the affront to the court's authority, to sit as grand jury, prosecutor, witness, trial jury, and sentencing judge is at odds with our notions of fundamental fairness. For
example, a lawyer for a television network should not be immediately jailed after refusing to provide a documentary that was to be
shown the next night so the judge could check the film for inaccuracies. 3 4 ' The Supreme Court's willingness to allow ajudge to impose
a criminal contempt sentence of up to six months before the alleged
contemnor receives a trial with all procedural rights seems, at best,
anachronistic, at worst, barbaric. 3 42 While appellate courts stand
ready to intervene, the potential for a trial judge to inflict serious
penalties for disobedience of a clearly unconstitutional order is always present.
ProvidenceJournalwill also allow the Supreme Court to directly address the issue ofjurisdiction. The Court must provide guidance to
state and federal courts to help determine when courts have subject
matter jurisdiction and personal jurisdiction in a case involving first
amendment interests. For example, judges who issue prior restraint
orders against the press often make sweeping statements to the effect that all news organizations must abide by the decree. Yet some
appellate courts have questioned whether news organizations that
did not have representatives in the courtroom at the time the order
was issued, or those outside the geographical jurisdiction of the
court, should be bound by the order. In fact, appellate courts have
often vacated orders that were issued against news organizations
that were unaware of the order.
The Supreme Court could also consider the difficult question
presented when courts issue orders verbally. When non-written orders are directed at the press, the judge becomes a witness in his
own case. Only after the appeal is taken does the judge attempt to
reconstruct the verbal order so that the appellate court has a written
record to examine. It seems, at the very least, unfair to expectjour341. See Goldblum v. NBC, 584 F.2d 904,909 (9th Cir. 1978) (stating that press cannot be
forced to defend expression before it occurs).
342. See supra note 1 (discussing development of contempt in state and federal courts).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 37:323
nalists covering a news event to understand the full implications of a
hastily delivered verbal order prior to the beginning of a trial.
Those who are concerned about the vitality of the first amendment may not welcome the news that the Supreme Court has
granted certiorari in ProvidenceJournalbecause the First Circuit's decision was quite sympathetic to the role of journalists. The circuit
court carefully considered fifteen years of post-Dickinson litigation
before reversing the contempt conviction.3 43 The court's strong
statements limiting the collateral bar rule in cases involving certain
types of speech is a development first amendment proponents
would embrace. It would not be surprising, however, if the
Supreme Court reversed ProvidenceJournal and remanded the case
for consideration consistent with its views. If the Court requires
strict application of the collateral bar rule in ProvidenceJournal, the
most that journalists may hope for is that the Court allows exceptions when the injunction is patently invalid or clearly issued outside
the authority of the court.
The Supreme Court should leave undisturbed the decision of the
en banc and three-judge panel of the First Circuit reversing the contempt conviction against the newspaper. Although arguably the
newspaper unnecessarily aggravated the tensions between journalists and judges by publicly proclaiming its disobedience, it was nevertheless subject to a clearly unconstitutional prior restraint order.
The harshness of the contempt sentences only serves to underscore
the vigilance that must be exercised by appellate courts in reviewing
orders that affect the vital rights of free speech and press.
V.
A
POSSIBLE COMPROMISE:
APPEAL FIRST, DISOBEY SECOND
Although contempt is a powerful weapon in a judge's arsenal,
some courts have found other creative methods of punishing news
organizations that disobey even patently invalid orders. For example, in Oliver v. Postel,344 the New York Court of Appeals struck down
a trial court's order forbidding news organizations from publishing
anything about a criminal defendant other than what was heard in
open court.3 4 5 The trial judge had stated that he would hold in contempt any individual that reported on anything other than that
which transpired in the courtroom because otherwise it would be
3 46
unfair to the defendant.
343.
344.
345.
346.
In re ProvidenceJournal, 820 F.2d 1342, 1343-50 (Ist Cir. 1986).
30 N.Y.2d 171, 282 N.E.2d 306 (1972).
Oliver v. Postel, 30 N.Y.2d 171, 176, 282 N.E.2d 306, 307 (1972).
Id. at 176-77, 282 N.E.2d at 307. There had been reports in the press concerning
1988]
THE "COLLATERAL
BAR" RULE & THE FIRST AMENDMENT
375
When several newspapers disobeyed the order, the judge excluded the press and public from the courtroom for the duration of
the trial. 34 7 Holding the order unconstitutional, the appellate court
noted that even though the judge had not actually carried out his
threat of contempt, the purpose of closing the courtroom was to
punish and deter the news media.3 48 The appellate court concluded
that the order was an "unwarranted effort to punish and censor the
press, and the fact that it constituted a novel form of censorship
34 9
cannot insulate or shield it from constitutional attack."
Oliver is an example of how invalid judicial orders can cause irreparable injury to the first amendment rights of the press. Public interest and news value in a trial are highest while the trial is being
conducted. Once members of the press have been excluded for the
duration of the proceedings, as in Oliver, it is impossible to undo the
effects of the invalid order. The public's interest in open trials goes
well beyond a fascination with other people's problems; it is an essential part of the judicial system whose procedures must be subject
to constant public scrutiny.
There are other circumstances when even a temporary order may
permanently prevent a journalist from performing his vital public
function. The most extreme case might be when a judge standing
for reelection issues a restraining order on the eve of the election,
thus seeking to prevent newspapers from endorsing his opponent,
and later holding the newspapers in contempt for violating his order.350 No one can doubt that such an effort at constructive contempt would be struck down by an appellate court at the first
opportunity. This opportunity may not come before the election
and thus only after the damage is done. Nevertheless, strict adherence to the collateral bar rule would require that the contempt conviction be sustained.
Although a court is not likely to issue this type of election eve
order, the example illustrates the necessity and appropriateness of
allowing an exception to the collateral bar rule. The collateral bar
rule must allow exceptions when the injury is irreparable or the surdefendant's prior criminal record and alleged underworld connections. Id. at 176, 282 N.E.2d
at 307.
347. Id. at 177, 282 N.E.2d at 308.
348. Id. at 180, 282 N.E.2d at 310. The court did not consider the issue of whether such
an order could ever be justified, but noted, "it could stand only upon a clear showing-similar
to that required to sustain a contempt order-that it was necessary to meet 'a serious and
imminent threat' to 'the integrity of the trial.'" Id. (citing Craig v. Harney, 331 U.S. 367, 373,
377 (1947)).
349. Id. at 183, 282 N.E.2d at 311.
350. Lewis, supra note 316.
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THE AMERICAN UNIVERSITY LAW REVIEW
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render of rights is irrevocable, even in cases involving direct criminal contempt in the presence of the judge.3 5 1
Balancing the competing interests of judicial authority and first
amendment freedoms presents no easy answers. A possible compromise, for which precedent exists, would be for news organizations to initially obey an order they consider unconstitutional while
simultaneously seeking an expedited appeal.3 52 If this appeal is not
heard or completed by the time the story is published, the newspaper may be on more solid ground in pressing a collateral attack than
if they had simply disobeyed the order without attempting to appeal
it.35 3
Appealing constitutionally suspect orders before disobeying them
may serve the interests of both the press and the courts. The success of such a compromise depends on the ability of the press to
publish and then collaterally attack the original contempt order on
appeal if the appeal cannot be completed before time for
publication.
This procedure would place substantial burdens on already
crowded appellate court dockets and may force appellate courts to
make hasty decisions on important issues that would have been considered more fully had time permitted.3 54 Considering the fundamental nature of free press rights an expedited appeal may be both
constitutionally required and administratively necessary. The alternative is the continued diminution of the courts' legitimacy by news
organizations disobeying orders they believe will be reversed on appeal. News organizations could help mitigate this problem by not
3 55
flaunting their disobedience in print.
Undoubtedly, problems will arise when the order is given just
before publication. Because the timeliness of news is such an important element in journalism, news organizations covering a crimi351. See In re Farber, 78 N.J. 259, 276-77, 394 A.2d 330, 341 (1978) (holding journalist in
contempt for failure to reveal sources). If Farber, a New York Times reporter, had revealed the
names of confidential sources while testifying at the murder trial, the dissemination of that
information could not have been undone by later overturning the order on appeal. See generally M. FARBER, SOMEBODY is LYING (1982) (recounting Farber's experiences with the "Dr. X"
murder trial).
352. This is what the en banc opinion in Providence appears to have recommended. In re
Providence Journal, 820 F.2d 1354, 1355 (1st Cir. 1987).
353. See Goodale, supra note 33, at 24 (noting that good faith efforts may have protected
contemnors in Walker).
354. See New York Times, Co. v. United States, 403 U.S. 713, 748, 755, 760-61 (1971)
(Burger, CJ., Harlan, BIackmun, JJ., dissenting) (noting that inadequate time to fully consider
important constitutional issues leads to potentially enormous consequences if decision is
wrong).
355. See supra note 316 and accompanying text (discussing problem of newspapers seeking
publicity for their disobedience of court orders).
1988]
THE "COLLATERAL
BAR" RULE
&
THE FIRST AMENDMENT
377
nal trial, for example, will likely publish a story every day the trial is
in session. Thus, even the most expedited appeal will not precede
violation of the judge's order.
In Cooper v. Rockford Newspapers, Inc.,356 the Illinois appellate court
allowed the newspaper to collaterally attack an invalid order while
appealing the contempt conviction in part because the order was
not issued ex parte.3 5 7 Before the alleged disobedience, the newspaper's attorneys had argued the constitutional issues before the
trial court that the appellate court later found compelling.3 5 8 Journalists who are provided the opportunity to argue the constitutional
issues before a restraining order is issued are therefore entitled to
collaterally challenge the order on the ground that they did not willfully disobey the order without first attempting to prevent its issuance. Thus, if journalists are entitled to disobey orders that they
had the opportunity to argue against prior to their issuance, news
organizations should also be able to collaterally challenge orders
that are issued in an ex parte hearing in which their claims were not
considered.
Anyone subject to a restraining order should make every effort to
have it modified or vacated by a court before disobeying it. The
effectiveness of our courts depends on their ability to have orders
obeyed. But if an invalid order prevents the exercise of first amendment rights, and the appeal cannot be heard before the circumstances require public dissemination, journalists must be able to
challenge the order when appealing a contempt conviction. Such a
collateral challenge shows no more disrespect for the law than does
an invalid court order restricting freedom of speech and press.
356. 50 Ill. App. 3d 247, 365 N.E.2d 744 (1977).
357. Cooper v. Rockford Newspapers, 50 11. App. 3d 247, 254, 365 N.E.2d 744, 751
(1977).
358. Id. at 254, 365 N.E.2d at 751.