`Prior restraint' dealt glancing blow by the US Supreme Court. PRESS WINS A ROUND
Boston — Press freedom was bolstered and ``prior restraint'' by government on the use of information by news media was dealt a blow Monday by the US Supreme Court. But the victory for the Providence Journal and other publications may have been hollow because it was decided on technical grounds rather than on the merits of First Amendment arguments.
The justices, in a 6-to-2 vote, ruled that federal prosecutors had used improper procedures in appealing a ruling that the Rhode Island newspaper had a right to print FBI information about an organized-crime figure.
This action sustained the First US Circuit Court of Appeals, which had overturned a trial court judge's contempt ruling against the Journal when it printed an article in defiance of his orders.
A major issue in the case had been whether a judge may restrain publication of information lawfully obtained by a newspaper under the Freedom of Information Act while he weighs a possible conflict between two constitutional rights - First Amendment press freedom and Fourth Amendment guarantees of the accused.
Also at stake was whether a newspaper and its editors have a duty to obey a judicial pre-publication restraining order.
The high court, however, never directly addressed these questions - holding instead that the court-appointed prosecutor who presented the government's case had no standing to do so.
US District Judge Francis J. Boyle had held the Journal in contempt for disobeying his do-not-publish order, levied a $100,000 fine, and ordered the editor to perform 200 hours of public service.
He appointed Providence lawyer William A. Curran as a ``special prosecutor'' to represent the federal government in this matter. But Mr. Curran never received Justice Department permission to file an appeal to the Supreme Court.
And the newspaper's lawyers claimed this lack of permission was illegal and asked that the case be dismissed.
The majority of the justices agreed with the paper's position.
Associate Justice Harry A. Blackmun wrote: ``Having concluded that the court-ordered prosecutor who [appealed] and briefed and argued the case without the authorization of the solicitor general may not represent the United States before this court, we dismiss [the appeal].''
Frank Wiggins, a partner in the Washington law firm of Cohn and Marks, which represents the American Society of Newspaper Editors (ASNE), is cautious not to interpret the Supreme Court's action too broadly in First Amendment terms.
``The result is certainly happy for one newspaper'' he points out, but he adds that the high court has been ``very good to the press in prior restraint cases.''
ASNE, the Reporters Committee on Freedom of the Press, the American Newspaper Publishers Association, and several individual newspapers and broadcast groups supported the Journal in friend-of-the-court briefs.
The solicitor general had attacked the appellate ruling that threw out the contempt charges on grounds the judge's order was ``transparently invalid.'' The Washington Legal Foundation and Allied Education Foundation also claimed that the temporary restraining order was properly issued.
This case stemmed from publication by the Providence Journal of FBI information about Raymond Patriarca, reputed longtime New England Mafia boss.
These data were collected through telephone taps - without court approval - between 1962 and 1965.
The Journal was allowed access to FBI logs after Patriarca's death in 1985. But his son challenged the release of this information in court.
This set the stage for a hearing in November 1985, after which Judge Boyle ordered the newspaper not to publish anything from the FBI file until a hearing. Disregard of this order resulted in the contempt citation.
Chief Justice William Rehnquist and Associate Justice John Paul Stevens dissented in this case. Associate Justice Anthony Kennedy did not participate.
Ruling loosens federal antitrust laws a bit
In an apparent loosening of antitrust laws, the United States Supreme Court ruled that a manufacturer does not always violate such statutes when making an agreement with one retailer to stop doing business with another who sells at discount prices.
By a 6-to-2 vote, the justices said that a ``vertical restraint'' imposed on a manufacturer by a retailer is against the law only when ``it includes some agreement on price and price levels.''
In other action, the court:
Set aside, pending further lower court hearings, the conviction - and revocation of US citizenship - of Juozas Kungys, a retired dental technician from Clifton, N. J., who was accused of helping the Nazis kill Jews in Lithuania during World War II.
The vote on the case was 6-2.
Refused to allow Connecticut police to conduct pat-down searches for weapons on all people who attend Ku Klux Klan rallies
Made it easier for federal prosecutors to introduce evidence in criminal trials of prior ``bad acts'' by defendants when the purpose is other than proving bad moral character.