Justice Confused

Using the Freedom of Information Act, the Providence (R.I.) Journal last year obtained transcripts of illegal wiretaps made by the FBI during the 1960s of Raymond L. S. Patriarca, a Mafia chief since deceased. Patriarca’s son, Raymond J., asked Francis J. Boyle, the chief federal district judge in Rhode Island, to order the Providence Journal not to print anything based on the transcripts, which would invade his privacy. The judge issued a temporary restraining order last Nov. 13.

When he signed the order, the judge probably didn’t realize that it was patently unconstitutional, given the current state of the law. The U.S. Supreme Court has consistently held that prior restraints of this sort can be issued only in the most extraordinary circumstances, which obviously was not the casehere. If publication of the Pentagon Papers could not constitutionally be enjoined, clearly the Patriarca transcripts could not be, either.

So the Providence Journal went ahead and published the transcripts the following day in defiance of the judge’s order. Judge Boyle then cited the paper and its executive editor, Charles M. Hauser, for criminal contempt. The Supreme Court has held that injunctions must be obeyed even if they are unconstitutional. If a person is slapped with an unconstitutional court order, he may not disobey it. He must appeal and have it reversed.

In the meantime, Judge Boyle’s clerk probably brought him the appropriate cases (Near vs. Minnesota, Keefe, Pentagon Papers and Nebraska Press, to name a few), and Boyle realized that he had made a mistake and that his order was unconstitutional. On Nov. 19, six days after he issued his injunction and five days after the Journal published the transcripts, Boyle lifted the restraining order.

That should have been the end of it. Boyle should have quietly dropped the criminal-contempt charge against the paper and the editor, hoping that his unconstitutional order would be forgotten. Instead of doing that, he ruled on Tuesday that the paper and the editor “showed no respect whatsoever” for the court and found them guilty of criminal contempt. Sentencing was set for March 27. There could be a jail term or a fine or both.

Doesn’t it strike the judge as odd to be punishing someone for disobeying an unlawful order that never should have been issued in the first place? The Supreme Court opinions knocking down prior restraints on publication speak of the tremendous social interest in having a press free from government interference. “Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights,” the court said in 1976 in the Nebraska Press case.

Failure to punish the paper and its editor for violating the injunction would not encourage a rash of lawlessness. People ignore federal court orders only in the most extreme circumstances, and with the knowledge that they will suffer harsh penalties if the order is held to be legal. The existence of penalties should make anybody think twice, or three times, about acting in the face of an injunction.

Moreover, the law allows an exception when the order is blatantly unconstitutional, which Boyle’s order clearly was. He made a mistake in issuing it. He should not compound that error now by punishing a paper for acting in the public interest.