United States v. Providence Journal Company
Decided on May 2, 1988; 485 US 693


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: 1st Amendment (press, speech, association)

B. Legal Question Presented:

Did the special prosecutor possess the authority to represent the United States before the Supreme Court, thereby entitling the special prosecutor to petition for certiorari under 28 U.S.C § 1254(l)?

II. CASE SUMMARY:

A. Background:

Raymond Patriarca filed suit against respondent Providence Journal Company (the Journal). He sought to prohibit the release of information the Journal compiled during an alleged course of illegal surveillance of Patriarca's father. The District Court judge issued a temporary restraining order barring publication of the information obtained about the Patriarca family during the Journal's investigation. The next day the Journal published an article about the Patriarcas in violation of the temporary restraining order. Patriarca filed a motion to have the Journal declared in criminal contempt. He declined to prosecute the contempt action and a special prosecutor was appointed for the US (petitioner) by the District Court.

The court ultimately found respondents in criminal contempt, but the Court of Appeals reversed on the ground that the order was "transparently invalid" under the First Amendment. The Solicitor General denied the special prosecutor’s request for authorization to file a writ of certiorari before the US Supreme Court seeking reinstatement of the contempt judgment. However, the prosecutor nevertheless filed a petition for a writ of certiorari, which the US Supreme Court granted, and the special prosecutor proceeded to argue the case.

B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Floyd Abrams argued the cause for respondents. With him on the brief were Edward F. Hindle and Joseph V. Cavanagh, Jr. Robert D. Parrillo argued the cause for the petitioner. With him on the briefs was William A. Curran.
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by John A. Powell, Steven R. Shapiro, Lynette Labinger, Martha Minow, Kathleen M. Sullivan, and Marjorie Heins; and for the American Newspaper Publishers Association et al. by James C. Goodale and John G. Koeltl. Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Bryson, Edwin S. Kneedler, and Douglas N. Letter; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Michael P. McDonald.

IV. THE SUPREME COURT'S DECISION:

"[A] criminal contempt prosecution brought to vindicate the authority of the Judiciary and to punish disobedience of a court order is a suit ‘in which the United States is interested,’ within the meaning of § 518(a), regardless of who is appointed by the district court to prosecute the action. In this case, the special prosecutor filed a petition for a writ of certiorari without the authorization of the Solicitor General, and thus without authorization to appear on behalf of the United States. Absent a proper representative of the Government, as a petitioner in this criminal prosecution, jurisdiction is lacking and the writ of certiorari, heretofore granted, is now dismissed.

Both the plain statutory language of § 518(a) and the salutary policies that support § 518(a) warrant dismissal of the writ. Generally, policy dictates that the United States usually should speak with one voice before [the US Supreme] Court, and with a voice that reflects... the common interests of the Government and therefore of all the people. Without the centralization of the decision whether to seek certiorari, [the US Supreme] Court might well be deluged with petitions from every federal prosecutor, agency, or instrumentality, urging as the position of the United States."

Held: Certiorari dismissed for lack of jurisdiction.

Justice Vote: 6 Pro vs. 2 Con

  • Blackmun, H. Pro (Wrote majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • O’Connor, S. Pro (Joined majority opinion)
  • Scalia, A. Pro (Joined majority opinion)
  • Stevens, J. Con (Wrote dissenting opinion)
  • Rehnquist, W. Con (Joined Steven’s dissenting opinion)
  • Kennedy, A. Took no part in the consideration process of the case
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus urging affirmance; the US Supreme Court dismissed the appeal via writ of certiorari by a 6-2 vote, making the Court of Appeals judgment final and giving the ACLU an apparent win.