Awaiting an Answer on Courts as Censors

We are often perplexed when the U.S. Supreme Court decides a case on technical grounds and thus avoids a determination of an important principle. Legal scholars, however, frequently sense that the court may be sending a signal when a ruling narrowly skirts an area of controversy. Court observers recognize that a common method of reshaping old dogma is to whittle away at the edges, until little remains of the offending doctrine but a hollow shell.

This process may illuminate a recent decision concerning the Providence (R.I.) Journal. A federal district court enjoined the newspaper, for privacy reasons, from publishing information on the activities of a reputed organized-crime figure. Believing that the gag order restrained their First Amendment rights, the paper’s editors disregarded it and boldly printed the article the following day. Standard doctrine dictates that one must comply with a court order, even if it is obviously unconstitutional, or risk a criminal-contempt charge. The editors of the Journal thus confronted a longstanding but controversial legal doctrine: In a criminal-contempt proceeding, the violator may not challenge the constitutionality of the underlying order. The journalists could have incurred criminal liability without having had an opportunity to complain of the original infringement on their constitutional rights.

In fact, the appellate court in Boston reversed the editors’ conviction for contempt, determining that the gag order was “transparently void” and thus unenforceable. An enjoined paper, the judges continued, need only make a good-faith effort to seek emergency relief, and if timely review is unavailable, the journalists may publish without foreclosing their right to contest the contempt citation’s constitutionality.

But when the controversy reached the Supreme Court, the justices avoided the issue. Instead of addressing the challenge, they held that the case was improperly presented because it had not been authorized by the solicitor general, the government’s Supreme Court advocate. Hence the high court left the appellate decision in place, and, with it, unresolved issues regarding the vitality of the principle that a court’s order must be obeyed even if it is based on an unconstitutional prohibition.

The doctrine’s roots are to be found in the civil-rights protests of the 1960s. In 1963 supporters of Dr. Martin Luther King Jr. scheduled a demonstration for Good Friday in Birmingham, Ala. But city officials, determined to suppress civil-rights agitation, induced a state court to enjoin the march. Protesters ignored the injunction and led processions through the streets.

The Alabama court subsequently found King and the other leaders in contempt and sentenced them to five days in jail, rejecting challenges to the constitutionality of the municipal ordinance. Four years after these events the Supreme Court affirmed the penalties in Walker vs. City of Birmingham and cited the disputed doctrine: Violators of court-ordered restraints cannot escape punishment even if the underlying statute is unconstitutional.

Clearly the rationale behind the rule is respect for judicial processes. As the Supreme Court noted, “No man can be the judge in his own case, however exalted his station, however righteous his motives.” Nevertheless, its application permits a court to silence potential speakers in advance with the stroke of a pen. Disobeying the court’s order could result in criminal sanctions.

Ironically, in the 1969 case of Shuttlesworth vs. City of Birmingham, involving the same 1963 civil-rights march, the Supreme Court reversed convictions based on violations of the city’s public-assembly ordinance because it found that the statute impermissibly proscribed First Amendment freedoms. In so doing, the court allowed a direct challenge to the statute’s constitutionality while, in the Walker case, it denied an attack based on the same premise. The curious result is that a speaker who violates an unconstitutional statute may avoid criminal penalties while an advocate who defies a court order can vindicate his First Amendment rights only if an appellate court reverses the order.

The issue is drawn into sharper focus when applying the doctrine to the press. In the Pentagon Papers case the release by the New York Times and the Washington Post of a critical history of the Vietnam War arose during a period of profound debate over our involvement in that conflict. Postponing the publishing of the articles could have stifled the free flow of information necessary to democratic decision-making. Despite contrary rulings by some lower courts, the Supreme Court was persuaded that the dynamic quality of news makes prompt publication essential and thus found justification for the prior restraint lacking. The newspapers, then, were free to publish the information. But the Walker doctrine flies in the face of the concern for timely publication of ideas that the court emphasized in the Pentagon Papers case. Unless the force of the Walker decision is diminished, important expression may be smothered.

In the Providence Journal case the Supreme Court was presented with an ideal opportunity to reassess the Walker doctrine. The justices, however, recognized that it is not always judicious to confront an established constitutional interpretation if the case can be resolved on narrower grounds. But I believe that the decision wisely left the door open for change of the courts’ role as censor--particularly of the news media.

It is my hope that, in time, the dilemma posed by the incongruity of punishment for contempt on a basically unconstitutional prohibition will be resolved by the highest court. For now, we must be content with the Boston federal appellate court’s sensible decision in the Providence case that placed freedom of speech above the sanctity of an unconstitutional court order.