A FEDERAL JUDGE in Rhode Island last November ordered the Providence Journal- Bulletin not to print a story about one Raymond J. Patriarca. Mr. Patriarca is widely reported to be connected to organized crime, and the newspaper's story was based on FBI wiretaps many years before. He claimed that it constituted an invasion of his privacy. The editors of the Journal- Bulletin, considering the court order to be clearly unconstitutional, published the story the next morning. They later explained that they considered it essential to demonstrate without delay that Mr. Patriarca could not use legal devices to prevent the publication of news stories about himself. Last week the judge, denouncing the paper for "willfully and deliberately" violating his order, fined it $100,000 and imposed a suspended prison sentence on its executive editor, Charles McC. Hauser.
The law, as it currently stands, seems to say that a court order must be obeyed unconditionally whether it is constitutional or not. It is certainly more prudent to appeal an order first, rather than to violate it as the Journal-Bulletin did and then appeal the penalty for contempt of court. But there are crucial principles here. In the Patriarca story, speed was not essential. But the paper feared that, if it obeyed and held up publication pending appeal, it would establish a precedent that could bind it in different circumstances in the future -- close to an election, for example. The Patriarca story was a strange subject for a court order. American law is generally hostile to prior restraints on publication. The First Amendment is pretty explicit. To get a court order prohibiting publication usually requires a real emergency -- a threat to national security, or to life and public order, or perhaps to a valuable trade secret. In this case the story was based on illegal wiretaps by the FBI of phone calls to and by Mr. Patriarca's father, now dead. The Journal-Bulletin got the transcripts through a freedom-of-information suit, as did other news organizations. There was no exclusive secret. The material was widely distributed, and some of it had been published elsewhere before the order against the Journal-Bulletin.
The newspaper will now ask an apppellate court whether a judge can punish it for violating a clearly unconstitutional order. That's an important question. If the court holds that all orders must always be obeyed, it affirms an extraordinarily broad definition of a judge's authority. That could only invite other attempts to use court orders to suppress news stories. Even if the appellate court declares that an obviously defective order is an exception, it would remain risky to violate a gag order. But it would place a certain salutary limit on a judge's formidable contempt powers -- powers that, like all power, are occasionally misused.