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A party subject to an order that constitutes a transparently invalid prior restraint on pure speech may challenge the order by violating it.
From 1962 to 1965, the Federal Bureau of Investigation conducted electronic surveillance of Raymond L. S. Patriarca, reputedly a prominent figure in organized crime. The FBI conducted this surveillance without a warrant in violation of his Fourth Amendment rights. The FBI later destroyed all tape recordings relating to this surveillance but retained the logs and memoranda compiled from the recordings. In 1976, the Journal requested the logs and memoranda from the FBI under the Freedom of Information Act ("FOIA"). The FBI refused this request on the ground that disclosure would be an unwarranted invasion of personal privacy. The Journal then brought suit in the Federal District Court for the District of Rhode Island to compel disclosure. On appeal, the court ruled that the FBI was within its discretion when it refused the Journal's request. After Patriarca’s death, the Journal requested that the FBI disclose the logs and memoranda under the Freedom of Information Act. The FBI assented to the request. Patriarca’s son brought an action against the FBI for wrongfully disclosing the information. The district court issued a temporary restraining order barring publication of the information. While the order was in effect, the Journal published an article using some of the information. On appeal, the Journal and executive editor argued that the order was a prior restraint and that the unconstitutionality of the order was a defense in the contempt proceeding.
May a party subject to an order that constitutes a transparently invalid prior restraint on pure speech challenge the order by violating it?
The court held that a party subject to an order that constituted a transparently invalid prior restraint on pure speech could challenge the order by violating it. The court held that the order constituted a presumptively unconstitutional prior restraint on pure speech by the press. The court held that tremendously heavy burden to sustain such an order was not met in this case.