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Justices Avoid Ruling on Prior Restraint

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Times Staff Writer

The Supreme Court on Monday sidestepped ruling on whether a federal judge may stop a newspaper from publishing legally obtained information and instead dismissed on jurisdictional grounds an appeal from an attorney appointed to represent the federal government.

The high court move spares the Providence, R.I., Journal and its executive editor, Charles M. Hauser, from further legal action growing out of a 1985 article reporting 20-year-old FBI wiretaps on a reputed crime boss, Raymond J. Patriarca.

Also left intact is the court’s near-total prohibition on “prior restraint” orders from federal courts. The courts regularly entertain suits by persons who say they are hurt by a newspaper report, but only in the most extraordinary situations will the courts allow the report to be stopped before publication.

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Defied Judge’s Order

The Journal case arose when the newspaper, in defiance of a federal judge’s order, published what it had learned from FBI wiretaps involving Patriarca during the early 1960s. The newspaper had obtained the data after submitting a Freedom of Information Act request to the government and winning a long legal battle with the FBI.

But just as the Journal was ready to publish the information, Patriarca’s son filed a suit to stop the paper on the grounds that the FBI acted illegally in tapping his father’s phone.

On Nov. 13, 1985, U.S. Judge Francis J. Boyle heard Patriarca’s complaint and issued a temporary restraining order for the newspaper. When the Journal responded by publishing the information the next day, Boyle slapped the paper with a $100,000 fine and gave Hauser a suspended jail sentence.

However, a federal appeals court threw out Boyle’s order, calling it “transparently invalid.”

Appointed by Judge

Patriarca chose not to appeal further, but Boyle appointed Providence lawyer William A. Curran to appeal the matter directly to the Supreme Court.

On a 6-2 vote, the justices said Curran had no legal right to pursue the appeal in the name of the United States. Justice Harry A. Blackmun, writing for the court, said only the solicitor general may take cases to the Supreme Court on behalf of the United States (U.S. vs. Providence Journal, 87-65).

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In a second case, the high court failed to settle a dispute on whether a New Jersey man may be deported and sent back to the Soviet Union, where he is wanted in connection with Nazi murders of more than 2,000 Jews in 1941.

Juozas Kungys, now 71, allegedly lied about his birth date and place of birth when he applied for an immigration visa in Germany in 1947. He became a U.S. citizen in 1954. Based on a request from Soviet officials, the Justice Department in 1982 moved to have Kungys stripped of his citizenship because of his “misrepresentations” in 1947 and possibly sent back to the Soviet Union.

Not Enough Evidence

But lower courts said there was not enough evidence to believe that Kungys participated in the Nazi atrocities in Lithuania. However, he could be deported, they said, if his statements under oath were shown to be false.

The case posed a difficult problem for the court: The justices did not want to send a man to his probable execution based only on a minor misstatement about his birthplace; on the other hand, they did not want to permit an ex-Nazi to have won U.S. citizenship by lying about his past.

Despite two hearings on the Kungys case, the high court ended up with a three-way split opinion that merely sends the case back for further hearings. Justice Antonin Scalia, writing for three others, said the alleged “concealments and misrepresentations” by Kungys must not only be proven to be false but they must be shown to be so crucial that he would not have gotten an immigration visa had the true facts been known (Kungys vs. U.S., 86-228).

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