Newspaper in Contempt; Case Could Go to High Court

A federal judge’s ruling this week charging the Providence Journal with criminal contempt of court has raised First Amendment questions that attorneys believe could end up in the Supreme Court.

U.S. District Judge Francis J. Boyle ruled Tuesday that the newspaper and its editor were guilty of contempt when they defied his restraining order last Nov. 14 and published a story about Raymond J. Patriarca, a reputed Mafia figure in New England.

Judge Boyle rescinded the restraining order on Nov. 19, acknowledging that higher courts would likely find it unconstitutional. But the newspaper’s publication of the story without resorting to normal judicial appeals resulted in the contempt citation, he said.

Boyle set March 27 to decide the penalty, which could include a fine and jail term.

Questions to Be Resolved

The case involves questions about privileges of the press that the Supreme Court has yet to resolve, specifically whether a media outlet has a right to ignore judicial procedures of appeal if it contends the court order affecting it is unconstitutional.

“I think there is room for a great deal of litigation,” said Robert S. Becker, a staff attorney at the Reporters Committee for Freedom of the Press.

The case began after the Journal obtained transcripts of phone conversations by Patriarca’s father recorded by the FBI using illegal wiretaps in the 1960s. The paper obtained the transcripts through the Freedom of Information Act.

The elder Patriarca was the reputed leader of organized crime in New England before his death in 1984, after which he was allegedly succeeded by his son, the Journal reported.

When the younger Patriarca discovered the Journal was preparing a story based on the transcripts, he asked the court to bar publication, claiming it would be an “unwarranted invasion” of privacy.

Order Defied

Judge Boyle issued a temporary restraining order on Nov. 13 so he would have time to study the issue. The Journal published the story the next day, defying the order.

The Supreme Court has said courts cannot restrain the media from publishing except in extraordinary cases, as when issues of national security are involved.

Robert Sack, outside counsel for the Wall Street Journal, said that current federal doctrine holds that “although prior restraints are rarely justified, at the very least you have to try to overturn the restraints within the judicial system (by appealing to a higher court) before you defy it.” Typically, newspapers can get a higher court to rule on an appeal to rescind such orders within 24 hours, Sack said.

However, some state courts have upheld the right of the news media to defy court orders, said Stanford law professor Marc A. Franklin.

No Appeal Sought

Attorneys for the Providence Journal said they did not seek an appeal of Judge Boyle’s order before defying it because the appellate court in their district rarely hears appeals on temporary restraining orders.

The attorneys also argued that once Judge Boyle had issued his restraining order he made immediate publication of the story important, because allowing the court to restrain the press for even 24 hours would set a dangerous precedent.

Judge Boyle ruled, however, that the newspaper had “set itself above the law.”

The case is complicated because Judge Boyle said he believed that the FBI had given the newspaper the transcripts illegally.