In the Matter of Application to Adjudge the Providence Journal Co. & Its Exec. Dir., Charles M. Hauser, in Crim. Contempt. Appeal of Providence Journal Co. & Charles Hauser, 820 F.2d 1354 (1st Cir. 1987). · Go Syfert
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In the Matter of Application to Adjudge the Providence Journal Co. & Its Exec. Dir., Charles M. Hauser, in Crim. Contempt. Appeal of Providence Journal Co. & Charles Hauser, 820 F.2d 1354 (1st Cir. 1987). Cases Citing This Book View Copy Cite
“a prior restraint 'freezes' speech before the audience has the opportunity to hear the message.”
70 citation events (20 in the last 25 years) across 28 distinct courts.
Strongest positive: Michael Picard v. Stephen Ridge (mad, 2026-02-05) · Strongest negative: Donald Lusk v. Village of Cold Spring, Docket No. 05-4999 Cv (ca2, 2007-01-31)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited "but see" Donald Lusk v. Village of Cold Spring, Docket No. 05-4999 Cv
2d Cir. · 2007 · signal: but see · confidence high
But see In the Matter of Providence Journal Co., 820 F.2d 1354, 1355 (1st Cir.1987) (en banc) (per curiam) (concluding that a publisher may publish despite a "transparently unconstitutional order of prior restraint” against the publication if the publisher first "make[s] a good faith effort to seek emergency relief from the appellate court”), cert, granted sub nom.
discussed Cited as authority (quoted) Michael Picard v. Stephen Ridge
D. Mass. · 2026 · quote attribution · 1 verbatim quote · confidence low
a prior restraint 'freezes' speech before the audience has the opportunity to hear the message.
discussed Cited as authority (quoted) United States v. Mourad
1st Cir. · 2002 · quote attribution · 1 verbatim quote · confidence low
providence ii
cited Cited as authority (rule) State v. Wright
Conn. · 2005 · confidence medium
In re Application to Adjudge the Providence Journal Co. in Criminal Contempt, 820 F.2d 1354, 1355 (1st Cir. 1987) (In re Providence Journal Co. II), cert. dismissed sub nom.
discussed Cited as authority (rule) Federal Trade Commission v. Verity International, Ltd.
S.D.N.Y. · 2001 · confidence medium
Id. (quoting Matter of Providence Journal Co., 820 F.2d 1354, 1355 (1st Cir.1987) (in banc), cert. dismissed, 485 U.S. 693 , 108 S.Ct. 1502 , 99 L.Ed.2d 785 (1988)) (internal quotation marks omitted). 8 .
discussed Cited as authority (rule) United States v. Bruce Cutler
2d Cir. · 1995 · confidence medium
Even to invoke the “transparently invalid” “exception,” however, a defendant must make some “ ‘good faith effort to seek emergency relief from the appellate court,’ ” Terry, 17 F.3d at 579 (quoting Matter of Providence Journal Co., 820 F.2d 1354, 1355 (1st Cir.1987) (in banc), cert. dismissed, 485 U.S. 693 , 108 S.Ct. 1502 , 99 L.Ed.2d 785 (1988)), or show compelling circumstances, such as a need to act immediately, excusing the decision not to seek some kind of emergency relief, see Matter of Providence Journal Co., 820 F.2d at 1355.
cited Cited as authority (rule) In Re Stephen C. Perry
1st Cir. · 1988 · confidence medium
Matter of Providence Journal Co., 820 F.2d 1354, 1355 (1st Cir.1987) (en banc) (per curiam). 7 .
discussed Cited "see, e.g." Crucians in Focus, Inc. v. VI 4D, LLLP
virginislands · 2012 · signal: see, e.g. · confidence low
See, e.g., Matter of Providence Journal Co., 820 F.2d 1342 , 1353, modified on other grounds, 820 F.2d 1354 (1st Cir. 1987) (holding publisher may not be held in contempt for violating transparently unconstitutional order restraining its speech); Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257 , 418 P.2d 594, 596-97 (1966) (order infringing on First Amendment rights is void and cannot be the basis for contempt penalty).
discussed Cited "see, e.g." Taylor v. SEARCY DENNEY SCAROLA BARN-HART
Fla. Dist. Ct. App. · 1995 · signal: see also · confidence low
See also In re Providence Journal Co., 820 F.2d 1342 (1st Cir.1986), modified, 820 F.2d 1354 (1st Cir.1987) ("... although a court order — even an arguably incorrect order — demands respect, so does the right of the citizen to be free of clearly improper exercises of judicial authority.") [14] As the record reflects, the injunction action below never came up for final hearing.
discussed Cited "see, e.g." Tilton v. Capital Cities/ABC Inc.
N.D. Okla. · 1993 · signal: see also · confidence low
Schmoldt v. Oakley, 390 P.2d 882, 886 (Okla.1964); Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex.1983); Corpus *682 Christi Caller-Times v. Mancias, 794 S.W.2d 852 (Tex.Ct.App.1990); Pirmantgen v. Feminelli, 745 S.W.2d 576 (Tex.Ct.App.1988); Dallas Oil & Gas, Inc. v. Mouer, 533 S.W.2d 70, 74 (Tex.Civ.App.1976); see also, In re Providence Journal Co., 820 F.2d 1342 , 1345 (1st Cir.1986), modified on rehearing en banc on other grounds, 820 F.2d 1354 (1st Cir.1987), ce rt. dismissed, 485 U.S. 693 , 108 S.Ct. 1502 , 99 L.Ed.2d 785 (1988); Lemons v. Mycro Group Co., 667 F.Supp. 665, …
discussed Cited "see, e.g." United States v. Noriega
S.D. Fla. · 1990 · signal: see also · confidence low
See also In the Matter of Providence Journal Co., 820 F.2d 1342, 1349 (1st Cir.1986) (summarizing the Nebraska Press test), modified, 820 F.2d 1354 (1st Cir.1987) (en banc), cert. dismissed, 485 U.S. 693 , 108 S.Ct. 1502 , 99 L.Ed.2d 785 (1988).
discussed Cited "see, e.g." Gannett Satellite Information Network, Inc. v. Township of Pennsauken
D.N.J. · 1989 · signal: see also · confidence low
Similarly, “the loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 , 96 S.Ct. 2673, 2690 , 49 L.Ed.2d 547 (1976) (opinion of Brennan, J.); see also Matter of Providence Journal Co. 820 F.2d 1342 , 1352 (1st Cir.1986), mod. on rehearing, 820 F.2d 1354 (1st Cir.1987) (en banc), cert. dismissed, — U.S. -, 108 S.Ct. 1502 , 99 L.Ed.2d 785 (1988); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983); Community Communications Co., Inc. v. City of Boulder, Colorado, 660 F.2d 1370, 1376 (10th Cir.1981…
Retrieving the full opinion text from the archive…
In the Matter of Application to Adjudge the Providence Journal Company and Its Executive Director, Charles M. Hauser, in Criminal Contempt. Appeal of Providence Journal Company and Charles Hauser
86-1336.
Court of Appeals for the First Circuit.
May 12, 1987.
820 F.2d 1354
Cited by 8 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 88%
Citer courts: First Circuit (1)

820 F.2d 1354

55 USLW 2640, 14 Media L. Rep. 1029

In the Matter of Application to Adjudge the PROVIDENCE
JOURNAL COMPANY and its Executive Director,
Charles M. Hauser, in Criminal Contempt.
Appeal of PROVIDENCE JOURNAL COMPANY and Charles Hauser.

No. 86-1336.

United States Court of Appeals,
First Circuit.

Submitted Feb. 13, 1987.
Decided May 12, 1987.

Before CAMPBELL, Chief Judge, COFFIN, BOWNES, BREYER, TORRUELLA and SELYA, Circuit Judges.

ORDER

1

We hereby grant petitioner's suggestion for rehearing en banc. We do not, however, vacate the panel's opinion and order dated December 31, 1986, 820 F.2d 1342. Rather, we issue the attached en banc opinion as an addendum to, and modification of, said panel opinion; and as so modified said panel opinion and order may stand as reflecting the opinion of the en banc court.

2

Judge Selya does not concur in the above order and attached en banc opinion. Rather, he believes the court should hold a hearing and decide the case anew after full briefing and argument.

OPINION ON REHEARING

3

PER CURIAM.

4

In reflecting en banc upon the conflicting principles of "collateral bar" and "no prior restraint against pure speech," the court recognizes, with the panel, the difficulties of imposing upon a publisher the requirement of pursuing the normal appeal process. Not only would such entail time and expense, but the right sought to be vindicated could be forfeited or the value of the embargoed information considerably cheapened. Nevertheless, it seems to us that some finer tuning is available to minimize the disharmony between respect for court orders and respect for free speech.

5

It is not asking much, beyond some additional expense and time, to require a publisher, even when it thinks it is the subject of a transparently unconstitutional order of prior restraint, to make a good faith effort to seek emergency relief from the appellate court. If timely access to the appellate court is not available or if timely decision is not forthcoming, the publisher may then proceed to publish and challenge the constitutionality of the order in the contempt proceedings.[1] In such event whatever added expense and time are involved, such a price does not seem disproportionate to the respect owing court processes; and there is no prolongation of any prior restraint. On the other hand, should the appellate court grant the requested relief, the conflict between principles has been resolved and the expense and time involved have vastly been offset by aborting any contempt proceedings.

6

We realize that our ruling means that a publisher seeking to challenge an order it deems transparently unconstitutional must concern itself with establishing a record of its good faith effort. But that is a price we should pay for the preference of court over party determination of invalidity. In the instant case, assertions have been made that some eight-and-one-half hours elapsed between the issuance of the order by the district court and the deadline for publication. Not only are we left without a clear conviction that timely emergency relief was available within the restraints governing the publisher's decision making, but we would deem it unfair to subject the publisher to the very substantial sanctions imposed by the district court because of its failure to follow the procedure we have just announced. We recognize that our announcement is technically dictum, but are confident that its stature as a deliberate position taken by us in this en banc consideration will serve its purpose.

1

See Goodale, The Press Ungagged: The Practical Effect on Gag Order Litigation of Nebraska Press Association v. Stuart, 29 Stan.L.Rev. 497, 509-10 (1977) (arguing that Walker v. City of Birmingham "may require no more than an attempt to appeal a void restraining order up to the time the constitutionally protected action is planned to take place.")