## Facts

- In the early 1960s, the FBI conducted warrantless electronic surveillance of Raymond L. S. Patriarca and later destroyed the tapes while retaining logs and memoranda summarizing intercepted conversations.
- After Patriarca’s death, news organizations obtained the FBI logs and memoranda through Freedom of Information Act (FOIA) requests.
- Raymond J. Patriarca, the decedent’s son, filed a federal civil action seeking to prevent disclosure and publication of the surveillance materials, alleging privacy-based harms.
- The district court issued an ex parte temporary restraining order (TRO) barring publication of the materials and set an expedited hearing on preliminary injunctive relief.
- The Providence Journal Company and its executive editor, Charles M. Hauser, received notice of the TRO and, about eight hours after its issuance and service, published a story using information covered by the order.
- Shortly thereafter, the district court vacated the TRO as an unconstitutional prior restraint, but proceeded with criminal contempt charges for the violation that occurred while the TRO was in effect.
- The district court found the Journal and Hauser guilty of criminal contempt, imposing a $100,000 fine on the newspaper and a suspended jail sentence (with a community-service condition) on Hauser.
- The Journal and Hauser appealed the criminal contempt judgment to the United States Court of Appeals for the First Circuit.

## Issues

1. Whether, in a criminal contempt proceeding, a newspaper and editor may defend by collaterally challenging the constitutionality of a court order they violated.
2. Whether an exception to the collateral-bar rule applies when the violated order is a “transparently invalid” prior restraint on pure speech.
3. Whether the district court’s ex parte TRO prohibiting publication of lawfully obtained, newsworthy information was so plainly unconstitutional that criminal contempt sanctions could not stand.

## Decision

- The First Circuit reversed the criminal contempt judgments against the Providence Journal Company and Charles M. Hauser.
- The court held that where an order is a transparently invalid prior restraint on pure speech, the contemnor may raise the order’s invalidity as a defense to criminal contempt.
- The court concluded the TRO was a classic prior restraint directed at press publication and was plainly unconstitutional on its face.
- The court vacated the sanctions, including the $100,000 fine and Hauser’s suspended sentence and related conditions.

## Legal Principles

- Prior restraints on publication carry a heavy presumption against constitutional validity and are rarely permitted under the First Amendment.
- The collateral-bar rule generally requires compliance with court orders until they are modified or vacated; disobedience typically cannot be justified by later showing the order was erroneous or unconstitutional.
- A narrow exception permits collateral attack in a criminal contempt case when the violated order is a transparently invalid prior restraint on pure speech.
- “Transparently invalid” refers to orders whose unconstitutionality is apparent without resolving close factual disputes or unsettled legal questions; the special harm of suppressing speech pending review supports allowing a defense in that limited setting.
- An ex parte publication ban aimed at preventing dissemination of lawfully obtained information of public concern is the kind of restraint that, absent extraordinary justification and strict procedural safeguards, is facially inconsistent with settled First Amendment doctrine.

## Conclusion

In *In re Providence Journal Co.*, the First Circuit set aside criminal contempt sanctions imposed on a newspaper and its editor for violating an ex parte TRO that barred publication of FOIA-obtained materials, holding that because the order was a transparently invalid prior restraint on pure speech, the defendants could challenge the order’s constitutionality as a defense in the contempt proceeding and were not subject to punishment for disobeying it.


In re Providence Journal Co., 820 F.2d 1342 (1st Cir. 1987)