Davis v. Board of School Commissioners of Mobile County Briefs & Appendices

    No. 80-441

IN THE SUPREME COURT OF 
THE UNITED STATES

October Term, 1980

Gulf Oil Company, et al. , Petitioners,

v.
Wesley P. Bernard, et al., Respondents.

On Writ of Certiorari to the 
United States Court of 

Appeals for the 
Fifth Circuit

BRIEF OF THE AMERICAN CIVIL LIBERTIES 
UNION FUND OF THE NATIONAL CAPITAL 
AREA AND THE GEORGE WASHINGTON LAW 

REVIEW, AMICI CURIAE

*Arthur B. Spitzer American Civil Liberties Union 
Fund of the National Capital Area 
600 Pennsylvania Avenue, S. E. 
Washington, D.C. 20003 
(202) 544-1076

Kenneth J. Guido, Jr.
The George Washington Law Review 
2000 H Street, N.W.
Washington, D.C. 20052

Attorneys for Amici

*Counsel of Record



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES................ iii
INTEREST OF AMICI.................. 1
SUMMARY OF ARGUMENT................ 5
ARGUMENT..........................  10

I . COURT RULES OR ORDERS RE­
STRICTING COMMUNICATIONS 
WITH CLASS MEMBERS WOULD 
SERIOUSLY INTERFERE WITH 
LITIGANTS' ABILITY TO PRO­
TECT CONSTITUTIONAL RIGHTS 
THROUGH LITIGATION ..........  10

II. THE ORDER VIOLATES THE FIRST
AMENDMENT....................  17
A. The Order Restrains Con­

stitutionally Protected 
Expression................  17
1. The Order Restrains

Political Speech ........ 19
2. Even If the Speech Re­

strained Is Viewed as 
Commercial, It Is Still 
Protected..............  23

3. The Order Infringes Class
Members1 Right to Hear 
About Litigation Affecting 
Their Interests..........  25

4. The Order Infringes Freedom
of Association..........  31



TABLE OF CONTENTS continued
B. Constitutionally Protected

Expression Does Not Lose Its 
Protection Merely Because It 
Occurs in the Context of Liti­gation ......................  33

C. The Order Does Not Satisfy Tra­
ditional First Amendment Stan­
dards for Restrictions of Pro­
tected Expression.....  37
1. The Order Is Not the

Narrowest Available Means. . 38
2. The Order Does Not Address 

A Demonstrated, Seriousand Imminent Threat . . . .  41
3. The Order Prevents Timely

Speech....................  44
4. The Order Is Vague . . .  . 46

CONCLUSION..........................  49

*

11



TABLE OF AUTHORITIES
Page

Cases:
Bates v. Little Rock, 361 U.S. 516

<196° ) ........................ 25,31,33
Bates v. State Bar of Arizona, 433U.S. 350 (1977)................  29
Branzburg v. Hayes, 408 U.S. 665(1972)........................  18
Bridges v. California, 314 U.S. 252

<1941) ....................  41,42,44,45
Brotherhood of Railroad Trainmen v.

Virginia ex. rel. Virginia State
Bar, 337 U.S. 1 (1964) . • • • • 22

Buck ley V. Valeo, 424 U.S. 1 (1975) 24 n. 3
Carroll v. Commissioners of Princess

Anne, 393 U.S. 175 (1968) • 39
CBS, Inc . V. Young, 522 F.2d 234 (6thCir. 1975) ............ 43 n. 6
Chicago Council of Lawyers v. Bauer,522 F .2d 242 (7th Cir. 1975) , 

cert, denied sub. nom. Cunningham 
v. Chicago Council of Lawyers,427 U.S. 912 (1976) ..........  43 n.6

Coles v. Marsh, 506 F.2d 186 (3d Cir.
1977) , cert, denied sub. nom. Blue 
Cross of Western Pennsylvania v.
Marsh, 439 U.S. 916 (1978) . . 24 n.3,42

Craig v. Harney, 331 U.S. 373 (1947) 42
Curtis Publishing Co. v. Butts,388 U.S. 130 "(1967)

iii

35



TABLE OF AUTHORITIES continued
Dellums v. Powell, 566 F.2d 167

(D.C. Cir. 1977) ................ 3,14
De Mier v. Arlington County, No. 

80-1086-A (Ed. Va. filed Nov.
12, 1980)........................ 16

% -

Emspak v. United States, 349 U.S.190 (1955) ...................... 35
Gomez v. Wilson, All F.2d 411

(D.C. Cir. 1973) ................ 3
In re Halkin, 598 F.2d 176 (D.C.

Cir. 1979) ...................... 36
Hirsohkop v. Snead, 594 F.2d 356,

(4th Cir. 1972) (en banc) . .37,44 n.6,45
Johnson v. Zerbst, 304 U.S. 458 (1938 ) 35
Kleindienst v. Mandel, 408 U.S. 753 (1972) .......................... 25
Landmark Communications, Inc. v.

Virginia, 435 U.S. 829 (1978). . . 42
Logan v. Shealy, No. 80-210-A (E.D.

Va., Sept. 30, 1980) appeal filed 
No. 80-1815 (4th Cir., Nov. 21, 
1980 ............................ 16 n.l

t

Louisiana v. NAACP, 366 U.S. 293
(1961) .......................... 33

Luevano v. Campbell, No. 79-0271 
(D.D.C., motion for preliminary 
approval of consent decree filed 
Jan.9,1981) .................. 20

NAACP v. Alabama, 357 U.S. 449(1958)......................  31 ,33,37

IV



TABLE OF AUTHORITIES continued
NAACP v. Button, 371 U.S. 415

(1967)..............  19,20,38,39,48
Near v. Minnesota, 283 U.S. 691

(1931)   17,20,31
Nebraska Press Association v. Stuart,

All U.S. 539 (1976)...  2,17,39
New York Times Co. v. Sullivan, 376U.S. 254 (1964)................  16
Norris V. Colonial Commercial Corp.,77 F.R.D. 672 (S.D. Ohio

(1977) ........................  25 n.3
Pennekamp v. Florida, 328 U.S. 331

(1946)   41,42
Perri v. Ackerman, 444 U.S. 193

(1979)   36
In re Primus, 436 U.S. 412 (1978). . 2,20
Richmond Newspapers, Inc. v. Virginia,100 S. Ct. 2814 (1980) .... 2,25
Rodgers v. United States Steel Corp. 

(Rodgers I) 508 F.2d 152 (3d Cir.), 
cert, denied, 423 U.S. 832 (1975) 33,45

Rodgers v. United States Steel Corp. 
(Rodgers II), 536 F.2d 1001 (3d 
Cir. 1976)................  28,35,43 n. 6

Shelton v. Tucker, 364 U.S. 479
(I960) ....................  33,34,38,39

Sherbert v. Verner,31A U.S. 398 (1963) 34
Southeastern Promotions, Ltd. v.

Conrad, 400 U.S. 546 (1975) . . .  48

v



Sullivan v. Murphy, 478 F.2d 938 (D.C. 
Cir.), cert, denied, 414 U.S.880 (1973)......................  3,14

United Mine Workers v. Illinois State 
Bar Association, 389 U.S. 217 
(1967)   23,38

United States Civil Service Commission 
v. National Association of Letter 
Carriers, 413 U.S. 548 (1973) . . 36

United States v. Marcano Garcia,
456 F. Supp. 1354 (D.P.R. 1978) . 43 n.6

United States v. Tijerina, 412 F.2d 661 (10th Cir.), cert, denied,
396 U.S. 990 (1969).......... 43,44 n.6

United Transportation Union v. State 
Bar of Michigan, 401 U.S. 576 (1971)   30

Village of Schaumburg v. Citizens for 
a Better Environment, 444 U.S. 620 (1980)   24

Virginia State Board of Pharmacy v.
Virginia Citizens Council, Inc.,425 U.S. 748 (1978)...  23,25,26,28

Weight Watchers of Philadelphia, Inc. 
v. Weight Watchers International,
Inc., 455 F.2d 770 (2d Cir.
1972) ........................  47 n. 7

Weber v. Turner, No. 80-0412 (D.D.C.,filed Feb. 12 , 1980)............  3
Wood v. Georgia, 370 U.S. 375 (1962) 27,37,42
Zarate v. Younglove, 22 Fair Empl. Prac. 

Cas. 1025 (C.D. Cal. 25 n.3,26
(1980)............  29,30,42,44 n.6,46,47

TABLE OF AUTHORITIES continued

vi



Statutes and Rules:
Federal Rules of Civil ProcedureRule 2 3 ..........................  12
Rules Enabling Act, 28 U.S.C. § 2072

(1976) ........................ 35 n. 5

TABLE OF AUTHORITIES continued

Other Authorities:
Administrative Office of United States

Courts, 1980 Annual Report . . .  21
Cappolleti, Vindicating the Public 

Interest Through the Courts, 25 Buffalo L. Rev. 643 (1976) . . .  22
Chayes, The Role of the Judge in 

Public Law Litigation, 89 Harv.L. Rev. 1281 (1976)............ 22
Federal Judicial Center, Manual for 

Complex Litigation (1978 ed.) 
........................  11,20,30,41,43

Note, If the Issuance of a Protective 
Order Pursuant to Federal Rule 26(c)
Would Restrict Expression, the Dis­
trict Court Must Determine the
Order's Constitutionality - In 
Ralkin, 598 F.2d 176 (D.C. Cir.
1979) , 48 Geo. Wash. L. Rev. 486 (1980) ......................

re

Settlements, Rodgers v. United States 
Steel C o r p 4 Class Act. Rep. 509 
(1975) ........................  27 n.4

Vll



TABLE OF AUTHORITIES continued
Tribe, American Constitutional Law(1978)........................  47
Wilson, Control of Class Action Abuses 

Through Regulation of Communications 3 
4 Class Act. Rep. 632 (1975) . . 40

Yeazell, Group Litigation and Social 
Context: Toward a History of the 
Class Action, 77 Colum. L. Rev.
866 (1977)....................  22,23

viii



No. 80-441
IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1980

Gulf Oil 

Wesley P.

Company, et at., Petitioners, 
v.

Bernard, et al., Respondents.

On Writ of Certiorari to the United 
States Court of Appeals for 

the Fifth Circuit

BRIEF OF THE AMERICAN CIVIL LIBERTIES 
UNION FUND OF THE NATIONAL CAPITAL 
AREA AND THE GEORGE WASHINGTON LAW 

REVIEW, AMICI CURIAE
INTEREST OF AMICI-/

The American Civil Liberties Union Fund 
of the National Capital Area is the Wash­
ington, D.C. area litigation branch of the 
American Civil Liberties Union (ACLU), a 
nationwide organization of over two hundred 
thousand members which for sixty years has 
been dedicated to defending the principles

Counsel for all parties have consented to the filing of this brief. Copies of 
their letters to that effect are being filed with the Clerk.



embodied in the Bill of Rights, preeminent 
among them the First Amendment.

The ACLU has been involved, as counsel 
or as amicus curiae, in numerous First 
Amendment cases in this Court, including 
several that addressed the power of the 
courts to regulate speech in connection 
with judicial proceedings, e.g., Nebraska 
Press Association v. Stuart, All U.S. 539 
(1976); Richmond Newspapers, Inc. v. Vir­

ginia, 100 S. Ct. 2814 (1980).
The ACLU's interest in protecting the 

ability of counsel to communicate with mem­
bers or prospective members of a class is 
quite direct, since much ACLU litigation 
is class action litigation. This Court 
recently stuck down a South Carolina dis­
ciplinary action against an ACLU cooperat­
ing attorney who was assembling plaintiffs 
for a class action. See In re Primus, 436 
U.S. 412, 418 n.8 (1978). Many of the sig­
nificant civil liberties cases brought by

2



the ACLU in the Washington, D.C. area have 
been class actions in which ACLU's ability 
to communicate with class members has been 
important to the conduct of the litigation. 
E.g., Sullivan v. Murphy, 478 F.2d 938 (D.C 
Cir.), cert, denied, 414 U.S. 880 (1973); 
Vellums v. Powell, 566 F.2d 167 (D.C. Cir. 
1977)(both challenging legality of mass 
"sweep arrests" in 1971); Gomez v. Wilson, 
477 F.2d 411 (D.C. Cir. 1973) (challenging 
legality of police "investigatory stop" pro 
cedures) ; Weber v. Turner, Ho. 80-0412 (D.D.C. 
filed February 12, 1980)(challenging sex 
discriminatory employment practices at the 
Central Intelligence Agency) .

The George Washington Law Review is a 
non-profit legal journal published by the 
students of the National Law Center of the 
George Washington University. The Review 
has on many occasions sought to inform and 
persuade the courts and the legal community 
on First Amendment issues. Recently, the

3



staff has written Notes on cases raising 
questions similar to those raised here. See, 
e.g., Note, If the Issuance of a Protective 
Order Pursuant to Federal Rule 26(c) Would 
Res. train Expression, the District Court 
Must Determine the Order's Constitutionality 
-- In re Halkin, 598 F.2d 176 (D.C. Cir. 
1979), 48 Geo. Wash. L. Rev. 486 (1980).

This Court granted certiorari in the 
instant case during the Review ’s prepara­
tion of a Note on the en banc decision be­
low. The Review believed that the results 
of its research on the constitutional is­
sues presented might be helpful to this 
Court's consideration of the case.

Amici believe that the order issued in 
this case was an unconstitutional prior 
restraint for the reasons given by the 
Fifth Circuit. We show in this brief that 
there are important additional reasons why 
such an order should not be countenanced 
under the First Amendment.

4



SUMMARY OF ARGUMENT
I. COURT RULES OR ORDERS RESTRICTING 

COMMUNICATIONS WITH CLASS MEMBERS WOULD SERIOUSLY INTERFERE WITH 
LITIGANTS' ABILITY TO PROTECT CONSTI­
TUTIONAL RIGHTS THROUGH LITIGATION.

Communications with potential class mem­
bers serve the important purpose of locat­
ing members of the class who may not be 
locatable at a later date, thereby obtain­
ing their evidence and preserving their 
ability to obtain a remedy if the suit is 
successful.

A ban on communications with potential 
class members is necessarily a ban on pub­
licity generally. Such a ban prevents the 
public dissemination of information about 
subjects of public importance, and thereby 
prevents the politically active from per­
suading others of the correctness of their 
position on important public issues. This 
is an intolerable infringement of a core 
interest protected by the First Amendment.

5



II. THE ORDER VIOLATES THE 
FIRST AMENDMENT.
A. The Order Restrains Constitutionally Protected Expression.
In this class action, the speech of the 

plaintiffs and their attorneys was clearly 
political in nature and therefore within 
the ambit of First Amendment protection. 
Expressional activity aimed at vindicating 
claims of racial discrimination has been 
explicitly held by the Supreme Court to be 
protected. Over half of all federal class 
actions are civil rights suits. Allowing 
wholesale restraint on communication mere­
ly because it occurs in the class action 
context is therefore inappropriate.

The rationale for protecting speech in 
class actions is, however, not limited to 
civil rights suits. Class actions provide 
a means for the broad implementation of 
constitutional and statutory policies.
This Court's protection of litigation- 
related expression has not been limited to

6



political expression. Because rights of 
free speech are not confined to any parti­
cular field of human endeavor, the speech 
of class action litigants is protected even 
if economic rights are involved.

The district court's order infringed 
upon the class members' right to receive 
information and ideas. An effort to pro­
tect members of the class by quarantining 
them from information is inconsistent with 
the philosophy of the First Amendment -- 
that informed citizens will be best able 
to make decisions. Prospective class mem­
bers can only protect their interests if 
they receive information about the choices 
available to them. Moreover, preventing 
interaction between class members and class 
representatives hinders proper development 
of class suits, and infringes on the basic 
right of collective activity undertaken to 
obtain meaningful access to the courts.

7



The order challenged in this action re­
strained communications necessary to cata­
lyze associational ties among persons who 
may be suffering a common injury caused by 
unlawful racial discrimination.

B. Constitutionally Protected 
Expression Does Not Lose Its 
Protection Merely Because It 
Occurs in the Context of Liti­
gation .

Courts are not exempt from constitution­
al strictures which the First Amendment 
places on governmental action. Neither do 
persons who seek to vindicate their rights 
through civil litigation, or their legal 
representatives, waive their First Amend­
ment rights. Nor are attorneys, in their 
capacity as officers of the court, trans­
muted into government agents whose First 
Amendment rights may be validly circum­
scribed .

C. The Order Does Not Satisfy 
Traditional First Amendment 
Standards for Restrictions on 
Protected Expression.

8



Governmental restrictions which burden 
vital First Amendment freedoms are subject 
to the strictest scrutiny. Even if the 
governmental purpose is legitimate and sub­
stantial, as it is for protecting the ad­
ministration of justice, the restriction 
must be extremely narrow, and can only be 
imposed if no less onerous alternatives are 
available. Moreover, to be permissible it 
must be shown that the restraint is direct­
ed at a substantive evil which will actual­
ly impede the fair administration of justice. 
Even then, however, the threat must be 
grave and urgent. A majority of courts 
have adopted a standard requiring that 
there be a serious and imminent threat to 
the administration of justice before liti­
gants' and lawyers' expression can be re­
strained. This standard best comports with 
Supreme Court decisions regarding sanctions 
on litigation-related communication. The 
order in the instant case does not satisfy

9



these requirements. Not only is the order 
extremely broad, but it does not rely upon 
any serious or imminent threats to the ad­
ministration of justice as a justification 
for its imposition.

Any attempt to save the order by exempt­
ing constitutionally protected expression 
merely trades overbreadth for vagueness.
The Constitution by itself does not pro­
vide clear enough guidelines to enable a 
person to determine whether or not his 
speech is protected, where, as here, other 
provisions of the order forbid all speech 
under penalty of contempt.

ARGUMENT
I. COURT RULES OR ORDERS RESTRICTING 

COMMUNICATIONS WITH CLASS MEMBERS 
WOULD SERIOUSLY INTERFERE WITH LITI­
GANTS' ABILITY TO PROTECT CONSTITU­
TIONAL RIGHTS THROUGH LITIGATION.

One of the major ways in which the ACLU 
attempts to protect the constitutional 
rights of individuals is through litigation, 
and a substantial proportion of ACLU's

10



important cases are brought as class 
actions.

Court rules or orders, such as those 
suggested by the Manual for Complex Liti­
gation (the Manual), Part II, § 1.41 (1978 
ed.), which would restrict ACLU attorneys' 
or clients' ability to communicate with 
potential class members, would substantially 
interfere with ACLU's ability to prepare 
and develop effective class actions. Fre­
quently, it is only after the filing of a 
class action lawsuit, with its attendant 
publicity, that new plaintiffs come forward 
to join the suit. Such new plaintiffs, and 
the facts of their individual claims, often 
help to establish the existence of a certi­
fiable class and to flesh out the range of 
issues involved in the lawsuit. The order's 
ban on indirect communications would prohi­
bit such publicity and thus prevent poten­
tial plaintiffs from learning of the suit 
and coming forward.

11



Moreover, it is often very much easier 
and less expensive to locate potential 
class members at the initial stage of the 
litigation, even before the class is certi­
fied or court-ordered notice is sent to 
potential class members -- an event that 
often occurs months and even years after 
the case is filed, despite the exhortation 
to prompt action of Rule 23(c) (1).

At the inception of the case, class mem­
bers are more likely still to be living in 
the same area, working for the same employ­
er, or participating in the same government 
program, as at the time of the injury com­
plained of. They are more likely still to 
have records or access to witnesses that 
can establish their claim and the claims 
of other class members. They are more 
likely still to be in contact with other 
members of the putative class who can bring 
the case to their attention or to whose

12



attention they can bring the case. As time 
passes, class members move out of the area, 
lose their records, and lose contact with 
other individuals who might alert them to 
their membership in the class. Not only may 
the later inability to locate such persons 
be detrimental to plaintiffs' ability to 
litigate the class action, it will also re­
sult in the denial to such unlocated class 
members of any recovery to which they may 
be adjudged entitled.

ACLU's experience in one notable set of 
cases is exemplary. During the first week 
of May, 1971, approximately 13,000 people 
were arrested in Washington, D.C. during 
the "Mayday" demonstrations against the war 
in Vietnam. Most were arrested in mass 
"sweep arrests" which indiscriminately 
rounded up the innocent with the guilty. 
Adequate arrest records were not kept, and 
hundreds of innocent arrestees were held 
for several days under inhumane conditions

13



before even being arraigned. See Sullivan 
v. Murphy, 478 F.2d 938 (D.C. Cir.), cert, 
denied, 414 U.S. 880 (1973) ; Vellums v. 
Powell, 566 F.2d 167 (D.C. Cir. 1977). 
Shortly after these arrests, the ACLU 
brought a series of class actions on behalf 
the arrestees, seeking declaratory relief, 
expungement of arrest records, and damages 
for violation of their constitutional 
rights and for false arrest and imprison­
ment. Id. Through newspaper advertise­
ments and widespread publicity, the ACLU 
was able to locate a large number of the 
arrestees. Even under these circumstances, 
many were never located. But ACLU's later 
attempts to locate class members -- after 
classes were certified and again after 
damages were awarded or settlements reached 
-- have been much less successful. If the 
ACLU had been restrained from communicat­
ing with class members, directly or indi­
rectly through the news media, at the

14



inception of these cases, there can be no 
doubt that a great many illegally arrested 
individuals would never have received the 
relief to which they were entitled.

The "Mayday" cases illustrate the seri­
ous evil that will result from the use of 
court rules or orders of the type here at 
issue. The order forbids communication 
"directly or indirectly" with potential 
class members. (J.A. 124). Necessarily, 
then, it forbids the parties, as well as 
their attorneys, from having virtually any 
contact with the press about the case, 
since any reports of their statements would 
be likely to reach potential class members. 
A court rule or order such as that issued 
here, by effectively barring communications 
with the press, would seriously interfere 
with the ACLU's ability to achieve its pub­
lic interest goals through the executive or 
legislative action that such publicity can 
spur. For example, in a recent controversy

15



over the strip-search policy of the Alexan­
dria, Virginia sheriff's office, the public 
outcry that resulted from the publicity ac­
companying the filing of lawsuits, including 
an ACLU class action (De Mier v. Arlington 
County, No. 80-1086-A (E.D. Va., filed 
November 12, 1980)) , resulted in the sher­
iff's abandoning his policy, at least for 
the nonce. See Washington Post, December 23, 
1980, at A-l col. 7.—  ̂This is precisely 
the role for public opinion which the 
First Amendment was designed to protect.
See New York Times Co. v. Sullivan, 376 
U.S. 254 , 266 (1964) .

— Because the district court dismissed 
the first strip search case to come before 
it, see Logan v. Shealy, No. 80-210-A 
(September 30, 1980), appeal filed, No. 80- 
1815 (4th Cir. November 21, 1980), certifi­
cation of a class and Rule 23 notice in the ACLU class action may well have to await 
the outcome of the pending appeal. Thus, 
as noted above, potential class members who 
came forward as a result of the publicity 
might otherwise have become unlocatable by 
the time Rule 23 notices were sent out.

16



Having canvassed some of the practical 
harms that are likely to result from the 
issuance of judicial orders forbidding com­
munication with potential class members, we 
turn to the legal analysis of such orders 
under the First Amendment.
I I . THE ORDER VIOLATES 

THE FIRST AMENDMENT.
As the Fifth Circuit recognized below, 

the gag order entered by the district court 
is a prior restraint on communication. (J.A. 
243, 266). For the reasons that court 
noted, the order cannot stand. See Near v. 
Minnesota, 283 U.S. 691 (1931); Nebraska 
Press Association v. Stuart, 427 U.S. 539 
(1976). As we will now show, the order 
also violated First Amendment standards ap­
plicable outside the prior restraint area.

A. The Order Restrains Constitution­
ally Protected Expression.

This Court has never directly addressed 
the question of First Amendment limitations 
on judicial power to restrain litigants'

17



and lawyers' expressive activity in the 
context of ongoing civil litigation. This 
is an important question because of the 
pivotal place held in our democratic society 
by the cluster of fundamental freedoms that 
make up freedom of expression -- freedom of 
speech and press, of assembly and associa­
tion, the right to hear as well as to speak.

Each of these facets of freedom of expres­
sion is implicated by the district court's 
order in this case. Freedom of speech is 
implicated because class action litigants 
and their attorneys are subjected to a far- 
reaching prohibition on communication with 
class members about the lawsuit. The right 
of class members to receive information is 
concomitantly restricted. Freedom of press, 
which is equally the right of the pamphle­
teer as of the large newspaper, Branzburg 
v. Bayes, 408 U.S. 665, 704 (1972), is im­
plicated because the plaintiffs were pro­
hibited from disseminating their pamphlet

18



to potential class members (J.A. 130-33, 
157). Freedom of association and assembly 
are implicated because persons who had al­
legedly suffered similar injuries were pre­
vented from joining together for the pur­
pose of communicating and optimally effectu 
ating redress.

1. The Order Restrains Political 
Speech.

In this class action, the speech of the 
plaintiffs and their attorneys was clearly 
political in nature and therefore protected 
Its purpose was to redress perceived racial 
discrimination in employment. This Court 
has explicitly held that activity aimed 
at vindicating claims of racial discrimina­
tion through litigation is protected by the 
First Amendment. NAACP v. Button, 371 U.S. 
415, 428-31 (1967). Button specifically 
protected such activities by the NAACP 
Legal Defense Fund, the same entity re­
strained by the district court's order here

19



supraId. at 421-22, 428. In re Primus, 
subsequently reaffirmed the constitutional 
protection afforded political speech on be­
half of nonprofit groups which litigate 
civil rights and civil liberties claims. The 
Constitution protects advocacy of lawful ends 
through constitutionally protected means, 
including litigation. NAACP v. Button, 
supra, at 429. The implementation of our 
strong national policies regarding eradica­
tion of discrimination, as evidenced by 
equal employment legislation, is a lawful 
end. Civil rights suits aimed at ending 
discrimination commonly use the class action 
format. See, e.g., Luevano v. Campbell, No. 
79-0271 (D.D.C., motion for preliminary 
approval of consent decree filed January 9, 
1971)(challenging use of PACE exam for 
federal hiring).

The Manual for Complex Litigation, supra, 
Part II, § 1.41 (J.A . 97-98), recommends the 
use of its local rule or pretrial order to

20



restrain communications in all class actions. 
Over half of all class actions pending in 
federal district courts are civil rights 
suits. Moreover, almost fifteen percent of 
civil rights suits are class actions. See 
Administrative Office of the United States 
Courts, 1980 Annual Report A-22 to -23, -166 
to -167. Since class actions are usually 
brought to adjudicate large numbers of 
claims, it can fairly be assumed that more 
persons' civil rights are adjudicated via 
class actions than otherwise. By authori­
zing wholesale restraint on communication 
merely because it occurs in the context of 
class actions, the Manual invites massive 
restraint on political speech, and hinders 
one of the most efficient mechanisms for 
the vindication of civil rights.

The rationale for protecting speech in 
class actions is not limited to civil 
rights class actions. The class action is 
a vehicle for the broad implementation of

21



constitutional and statutory policies, see, 
e.g., Cappolleti, Vindicating the Public 
Interest Through the Courts, 25 Buffalo L. 
Rev. 643, 644 (1976), often through "law­
suits authorized by Congress to effectuate 
a basic public interest." Brotherhood of 
Railroad Trainmen v. Virginia ex rel. Vir­

ginia State Bar, 377 U.S. 1, 7 (1964). In 
such litigation, "the subject matter of the 
lawsuit is not a dispute about private 
rights, but a grievance about the operation 
of public policy." Chayes, The Role of the 
Judge in Public Law Litigation, 89 Harv. L. 
Rev. 1281, 1302 (1976). The economies of 
scale and the equalization of the parties 
engendered by class actions make it feasible 
to redress injuries and protect interests 
which, if left to individual litigation, 
would not be vindicated because of fear, 
ignorance, or lack of resources or because 
the individual right is too small or too 
diffuse. See, e.g., Yeazell, Group

22



Litigation and Social Context: Toward a

History of the Class Action, 77 Colum. L.
Rev. 866, 867 (1977).

2. Even If the Speech Restrained 
Is Viewed as Commercial, It Is Still Protected.

This Court has made it clear that pro­
tection of litigation-related communication 
is not limited to purely political expres­
sion. See United Mine Workers v. Illinois 
State Bar Association, 389 U.S. 217, 221,
223 (1967). Even speech which does no more 
than propose a commercial transaction does 
not lack all First Amendment protection. 
Virginia State Board of Pharmacy v. Virginia 
Citizens Council, Inc., 425 U.S. 748, 762 
(1978). Thus the speech of class action
litigants and lawyers is protected even if

7 /economic rights are implicated.—

2 /— Indeed, if the bare fact that a 
speaker stands to gain money from his 
expression removed it from the ambit of 
the First Amendment, newspapers would have 
no protection for news stories.

23



The district court's order specifically 
restrains solicitation of funds and of 
agreements to pay fees and expenses from 
class members who are not formal parties to 
the action. (J.A. 124). Yet this Court has 
held that speech is protected even though 
it may involve a solicitation to pay or 
contribute money. Virginia Board of Pharmacy 
v. Virginia Citizens Council, Inc., supra, 
at 761 (citing cases); Village of Schaum­

burg v. Citizens for a Better Environment, 
444 U.S. 620, 631-32 (1980). Class actions 
to vindicate important rights may be unable 
to go forward without the wherewithal to pay 
attorneys' fees and expenses. Contributions 
from the class whose rights are at issue and 
who may ultimately benefit from the litiga­
tion are a wholly legitimate means of effec-

3 /tuatmg their underlying rights.—
3 /— Cf. Buckley v. Valeo, 424 U.S. 1, 19 

(1975). Several courts have rejected the 
Manual's model in this regard, recognizing 
the inappropriateness of such restrictions. 
See Coles v. Marsh, 506 F.2d 186, 189 (3d 
Cir. 1977), cert, denied sub nom. Blue Cross

24



3. The Order Infringes Class Mem­
bers' Right to Hear About Liti­
gation Affecting Their Interests.

The First Amendment also embraces the 
right to receive information and ideas. See, 
e.g.} Virginia Pharmacy Board v. Virginia 
Consumer Council, supra, at 756-57; Klein- 
dienst v. Mandel, 408 U.S. 753, 762 (1972); 
Richmond Newspapers v. Virginia, supra. Our 
system of government, established by the 
Constitution, is predicated on the partici­
pation of informed citizens in decisions 
which affect their destiny. See Bates v. 
Little Rock, 361 U.S. 516, 522-23 (1960). 
Plaintiffs' attorneys in the case at bar 
sought to provide information about the law­
suit which potential class members had a

3/ footnote continued
of Western Pennsylvania v. Marsh, 439 U.S.
916 (1978); Zarate v. Younglove, 22 Fair
Empl. Prac. Cas. 1025, 1039 (C.D. Cal. 1980) 
(citing ABA Committee on Professional Ethics, 
Opinion No. 1280, which holds that it is per­
missible for a class action litigant to 
solicit funds to pay the attorney); Norris 
v. Colonial Commercial Corp., 77 F.R.D. 672, 673 (S.D. Ohio 1977) .

25



right to receive. The district court's 
order seriously infringed this right. See 
Zarate v. Younglove, supra, at 1027.

Petitioners claim that they are anxious 
to protect potential members of the opponent 
class, as they fear that class members will 
become confused, and chaos and disenchant­
ment will result. Brief for Petitioners 
at 19-20, 23 & n.17, 29, 36-37. However,

this protectiveness rests in large 
measure on the advantages of their 
being kept in ignorance. . . .
There is, of course, an alternative 
to this highly paternalistic approach. 
That alternative is to assume that 
this information is not in itself 
harmful, that people will perceive their own best interests if only 
they are well enough informed, and 
that the best means to that end is 
to open the channels of communica­
tion rather than to close them. . . .
It is precisely this kind of choice, 
between the dangers of suppressing 
information, and the dangers of its 
misuse if it is freely available, 
that the First Amendment makes for 
us.

Virginia Pharmacy Board v. Virginia Consumer 
Council, supra, at 769-70. Normally, 
counterargument and education, rather than

26



censorship, are the antidotes for harmful 
speech. See Wood v. Georgia} 370 U.S. 375, 
389 (1962). Court-ordered notice to the 
class regarding the lawsuit and any govern­
ment-negotiated or other settlement is not 
guaranteed to be even remotely adequate to 
inform affected individuals about the nature 
of their choices. Indeed, the notice may 
not even be intelligible to them. See J.A. 
128-29.

Class members' lack of sophistication 
may thus make it necessary and desirable for 
them to have personal encounters with legal­
ly trained personnel who can elucidate the 
notice. One court postponed a settlement 
until plaintiffs' attorneys had the oppor­
tunity to explain it to class members.

— See Settlements, Rodgers v. United 
States Steel Corp., 4 Class Act. Rep. 509, 
509-13 (1975), for an expert linguistic 
analysis of one such notice, showing it 
to be substantially above the reading level 
of the class members and syntactically bi­
ased in favor of the settlement over the litigation.

27



Rodgers v. United States Steel Corp. (Rod­

gers II), 536 F.2d 1001, 1009 (3d Cir. 1976). 
In the instant case, however, Gulf's notice 
instructed employees not to discuss the 
settlement offer with others. Notice to 
Offerees, Bernard v. Gulf Oil Co., 596 F.2d 
1249 (5th Cir. 1979)(Brief for the United 
States as Amicus Curiae, Exhibit 1). Plain­
tiffs in the case at bar were prevented from 
distributing a pamphlet simply advising 
offerees to consult an attorney before mak­
ing a decision (J.A. 131-32, 157). It is 
not enough that the district court's order 
restraining communications exempted those 
initiated by the non-client class member.
(J.A. 125). Freedom to speak and to hear 
may not be abridged merely because the 
listeners could come upon the message by 
some other means, such as "digging it up" 
for themselves. Virginia Pharmacy Board 
v. Virginia Consumer Council, supra, at 
756-57 & n.15.

28



This Court has expressed its concern 
that aggrieved persons receive information 
regarding their legal rights and the means 
of effectuating them. Bates v. State Bar 
of Arizona, 433 U.S. 350, 376 n.32 (1977). 
This concern applies with at least as much 
force to individuals as to groups. Id. 
Individual class members will be bound by a 
class action judgment unless it is brought 
under Federal Rule of Civil Procedure 
23(b)(3) and they exercise their prerogative 
to opt out. It is therefore desirable that 
these individuals become involved in the 
litigation at an early stage. Zarate v. 
Younglove, supra, at 1037. Actual or poten­
tial class members will thus be able to 
participate, voice their concerns, and pro­
vide information which will help to shape 
the issues. The class members and the at­
torney for the class will be able to pro­
vide the mutual guidance characteristic of 
the normal attorney-client relationship. As

29



one court has noted, plaintiffs' interest 
in obtaining information from class members 
to help prosecute the action far outweighs 
the government's interest in preventing 
plaintiffs' counsel from seeking to increase 
his fee. Zarate v. Younglove, supra, at 
1038 .

Indeed, as the Manual itself observes, 
to deprive class litigants and lawyers of 
the opportunity to communicate with class 
members in developing their case may well 
constitute a denial of due process. Manual, 
supra, Part I, § 1.41, at 50. "[C]ollective 
activity undertaken to obtain meaningful 
access to the courts is a fundamental right 
within the protection of the First Amend­
ment." United Transportation Union v. State 
Bar of Michigan, 401 U.S. 576, 585-86 (1971) 
(emphasis added). Restrictions on communi­
cations between class representatives and 
class members can deprive the collective 
activity of meaningfulness and thus infringe 
this fundamental right. Government can 
reach the same policy goals without using 
means which restrain the flow of truthful

30



information concerning lawful activity pur­
sued to vindicate collective rights.

4. The Order Infringes Freedom 
of Association.

Freedom of association is also implicat­
ed by the order. Membership in a group is 
not a prerequisite to invoking the protect­
ions of freedom of association. This Court 
protected the litigation-related activities 
in NAACP v. Button, supra, at 434-35, 443, 
not only with regard to NAACP members, but 
non-members as well. Moreover, this pro­
tection emcompasses freedom to seek and form 
new affiliations. This Court has overturned 
governmental regulations which deterred per­
sons from joining groups. E.g., Bates v. 
Little Book, supra, at 524. Whether or 
not the beliefs sought to be advanced by 
association are political in nature is im­
material. NAACP v. Alabama, 357 U.S. 449, 
460-63 (1958) .

31



The order in the case at bar interferes 
with these freedoms. It restrains communi­
cation that could catalyze associational 
ties. Specifically, the order impermissibly 
discourages association by requiring parties 
and counsel who seek permission to communi­
cate to file the names of the prospective 
addresses. It also requires those who seek 
to take advantage of the exception for con­
stitutionally protected expression to file 
with the court copies of all written commu­
nications and substantially complete sum­
maries of all oral communications, as well 
as the names of recipients. (J.A. 124-25). 
Class members in an employment discrimina­
tion action will often be reluctant to 
communicate with persons in an adversary 
relationship to their employer if these 
communications are not kept private. Free­
dom of association necessarily includes 
privacy of association when exposure would 
occasion adverse consequences, including

32



the displeasure of those who control one's 
professional destiny. Shelton v. Tucker,

364 U.S. 479, 485-86 (1960); NAACP V. Ala­
bama, supra, at 462; Louisiana v. NAACP,

366 U.S. 293, 296 (1961). First Amendment 
freedoms are protected not only against 
frontal attack but also against the chill­
ing effect of more subtle governmental in­
terference, such as disclosure of affilia­
tions. Cf. Bates v. Little Bock, supra, 
at 522-23.

B. Constitutionally Protected 
Expression Does Not Lose Its 
Protection Merely Because It 
Occurs in the Context of Liti­
gation .

Courts are not exempt from the constitu­
tional strictures of the First Amendment. 
"[T]he interest of the judiciary in the 
proper administration of justice does not 
authorize any blanket exception to the first 
amendment." Rodgers v. United States Steel 
Corp. (Rodgers I), 508 F.2d 152, 163 (3d 
Cir.), cert, denied, 423 U.S. 832 (1975).

33



No doubt courts, like other governmental 
entities, would in some situations find it 
more convenient to pursue their laudable 
goals through methods that "broadly stifle 
fundamental liberties." Shelton v. Tucker, 
supra, at 488. The Constitution, however, 
forecloses this option. The courts are 
entrusted with the safeguarding of these 
vital liberties against governmental in­
fringement. The courts, as guardians, must 
also guard themselves.

Persons who elect to vindicate their 
rights through civil litigation, and the 
lawyers who represent them, should not 
thereby be compelled to surrender their 
First Amendment rights. Government may 
not condition its bestowal of a right or 
even of a privilege on the sacrifice of a 
constitutional right. See Sherbert v.
Verner, 374 U.S. 398, 404 (1963)-—/

5/— The congressional grant of power from 
which authority for federal district courts 
to promulgate rules and orders ultimately

34



Nor can it be assumed that litigants 
and lawyers have, by submitting to the 
court's jurisdiction, implicitly and 
voluntarily signed away their First Amend­
ment rights. Rodgers v. United States 
Steel Corp. (Rodgers II), supra, at 1006-07 
Waiver of a constitutional right is not 
lightly inferred and every reasonable pre­
sumption against it is indulged. Johnson v 
Zerbst, 304 U.S. 458 (1938); Emspak v.
United States, 349 U.S. 190, 196 (1955). 
This Court has not been willing to find 
such a waiver in circumstances that fall 
short of clear and compelling. Rodgers v. 
United States Steel Corp. (Rodgers II), 
supra, citing Curtis Publishing Co. v.

Butts, 388 U.S. 130, 145 (1957). See also

5/ footnote continued
derives specifically provides that they shall not abridge or modify any sub­
stantive right. Rules Enabling Act, 28 U.S.C. § 2072 (1976).

35



In re Halkin, 598 F.2d 176, 186, 189 
(D.C. Cir. 1979) .

Nor do attorneys by virtue of their 
capacity as "officers of the court" come 
within any exception to the First Amendment 
recognized as to political activities of 
government employees. This Court has con­
sistently refused to assimilate private 
attorneys into the category of government 
agents merely by virtue of that title. See 
Perri v. Ackerman, 444 U.S. 193, 202 & n.19
(1979), and cases cited. But Petitioners 
attempt to do this very thing by identify­
ing private attorneys with the court. Brief 
for Petitioners at 30. Their invocation of 
United States Civil Service Commission v. 
National Association of Letter Carriers,

413 U.S. 548 (1973), a decision regarding 
restrictions on the speech of government 
employees, is simply inapt. Letter Carriers 
cannot be used as a premise for wholesale 
derogation of attorneys' First Amendment 
rights.

36



C. The Order Does Not Satisfy 
Traditional First Amendment 
Standards for Restrictions of 
Protected Expression.

Governmental restrictions that burden 
vital First Amendment freedoms are subject 
to the strictest scrutiny. NAACP v. Ala­

bama, supra, at 460-61 . To justify such a 
restriction, the government must demonstrate 
a subordinating interest which is compel­
ling. The interest sought to be protected 
by the order in the instant case, as recom­
mended by the Manual, is the administration 
of justice. It is beyond cavil that this 
is a protectible interest. Wood v. Georgia, 
supra, at 383. This is undoubtedly true 
for civil as well as criminal trials, al­
though the Sixth Amendment hedges more 
stringent protections around the criminal 
trial. See Hirsckkop v. Snead, 594 F.2d 
356, 373 (4th Cir. 1979) (en banc).

But restrictions on First Amendment 
freedoms cannot be upheld merely because

37



they address some matter that is within 
governmental competence, or even because 
they provide a helpful means of dealing with 
that matter. United Mine Workers v. Illi­

nois State Bar Association, supra, at 222.
A mere incantation of the term "administra­
tion of justice" does not, therefore, put 
an end to First Amendment analysis. Nor 
does an incantation of the term "abuse of 
the class action device." Constitutional 
rights cannot be foreclosed by mere labels. 
NAACP v. Button, supra, at 429.

1. The Order Is Not the
Narrowest Available Means.

First, "even if the governmental purpose 
is legitimate and substantial, it cannot be 
achieved by means which broadly stifle 
fundamental liberties when the end can be 
more narrowly achieved." Shelton v. Tucker, 
supra, at 488. Governmental action which 
encroaches upon these basic rights must be 
tailored to the needs of the particular

38



case, and framed in the narrowest possible 
terms that will accomplish the pin-pointed 
objective allowed by the Constitution and 
required to meet essential public needs.
Carroll v. Commissioners of Princess Anne, 
393 U.S. 175, 183-84 (1968) . Broad pro­
phylactic rules in the area of First Amend­
ment freedoms are suspect. NAACP v. Button, 
supra, at 438. The breadth of the abridge­
ment of First Amendment liberties must be 
viewed in light of less drastic means avail­
able to achieve the same purpose. Shelton 
v. Tucker, supra, at 488. This Court has 
indicated that even in the context of a 
criminal trial, a restraint upon expression 
should be a last resort. See Nebraska Press 
Association v. Stuart, supra, at 569.

Notwithstanding these constitutional 
restrictions on broad restraints of expres­
sion, the district court's order begins with 
a plenary prohibition of communication.
(J.A. 124). Petitioners, relying on the

39



Manual, assert that this broad order is 
as narrow as possible because only a plenary 
prohibition on expression will forestall the 
machinations of imaginative miscreants 
bent on subversion of the class action de­
vice. See Brief for Petitioners at 18 & 
n.9. Were this argument to be given cre­
dence, it would rob the word "narrow" of 
all meaningful content.

Adequate narrower remedies are available. 
For example, attorneys who engage in mis­
leading or abusive communications can be 
removed as attorneys for the class. Abusive 
parties can be removed as class representa­
tives. The court could, where necessary, 
order corrective communications made at the 
party's or the attorney's expense. See also 
Wilson, Control of Class Action Abuses 
Through Regulation of Communications, 4 
Class Act. Rep. 632, 636-38 (1975).

40



2. The Order Does Not Address a 
Demonstrated, Serious and Immi­
nent Threat.

Governmental restrictions which encroach 
on First Amendment freedoms in the name of 
protecting the administration of justice 
must be based on a showing, not just a 
speculation, that there exists a substantive 
evil actually designed to impede the fair 
administration of justice. Pennekamp v. 
Florida, 328 U.S. 331, 347 (1946); Bridges 
v. California, 314 U.S. 252, 270, 278 (1941). 
The Manual itself admits that class action 
abuse has been rare. Manual, supra, Part I,
§ 1.41 at 52.1. Moreover, many of the exam­
ples of class action abuse cited as a pre­
dicate for the order are not susceptible to 
cure by the restraint, e.g., pre-filing 
solicitation, and agreements by the parties 
to strike the class action allegation. See 
Manual, supra, Part I, § 1.41 at 51-53;
Brief for Petitioners at 15. Indeed, many 
of the activities sought to be prevented

41



have been found not to be harmful. See

Coles v. Marsh, supra, at 189; Zarate v. 
Younglove, supra, at 1035-40.

A further requirement for restricting 
expression is that whatever substantive 
evil it embodies must present a grave and 
urgent threat to the interest sought to be 
protected. This Court has repeatedly held 
that speech which allegedly interferes with 
the administration of justice cannot be 
punished unless it is shown to present a 
"clear and present danger." Landmark Com­

munication, Inc. v. Virginia, 435 U.S. 829 , 
844-45 (1978); Pennekamp v. Florida, supra, 
at 347. As this Court has stated,

[f]reedom of speech should not be 
impaired. . . unless there is no
doubt that the utterances in question 
are a serious and imminent threat to 
the administration of justice . . . .
The danger must not be remote or even 
probable; it must immediately imperil.

Craig v. Harney, 331 U.S. 373, 376 (1947);
Accord, Wood v. Georgia, supra, at 385; 
Bridges v. California, supra, at 263.

42



The Manual, however, while citing Craig 
and Bridges for the proposition that the 
administration of justice is a protectible 
interest, turns to a different case, United 
States v. Tijerina, 412 F.2d 661 (10th 
Cir.) , cert, denied, 396 U.S. 990 (1969) , 
for the standard it suggests be used: a 
"reasonable likelihood" of threat to a fair 
trial. Manual, supra, Part I, § 1.41, at 
47 n.33. But the Manual errs. A majority 
of courts that have addressed the issue of 
the standard to be used in restricting com­
munications of litigants and lawyers have 
adopted a "serious and imminent threat" 
standard, which better comports with estab­
lished First Amendment jurisprudence.—^

6 /— First Circuit: United States v. Mar- 
cano Garcia, 456 F. Supp. 1354, 1357-58 
(D.P.R. 1978); Third Circuit: Rodgers v. 
United States Steel Corp. (Rodgers II), 
supra, at 1008; Fifth Circuit: Bernard v. 
Gulf Oil Co. (J.A. 259); Sixth Circuit:
CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir. 1975); Seventh Circuit: Chicago Council 
of Lawyers v. Bauer, 522 F.2d 242, 249, 251

43



Restraints, such as those in the district 
court's order (J.A. 125), on communications 
which "may tend" to misrepresent aspects of 
a lawsuit or "may create impressions tend­
ing . . .  to reflect adversely" on persons 
or on aspects of the case, clearly do not 
meet this standard. In Bridges v. Califor­

nia, supra, at 263, 273, this Court explicit 
ly rejected a "reasonable tendency" standard 
for restricting expression regarding pending 
litigation, in favor of a standard which 
required the substantive evil to be "extreme 
ly serious and the degree of imminence ex­
tremely high."

3. The Order Prevents 
Timely Speech.

61/ footnote continued
(7th Cir. 1975) , cert, denied sub nom. 
Cunningham v. Chicago Council of Lawyers, 
427 U.S. 912 (1976) , accord, In re Oliver1, 
452 F.2d 111, 114 (7th Cir. 1971); Chase 
v. Robson, 435 F.2d 1059, 1061 (7th Cir. 
1970); Ninth Circuit: Zarate v. Younglove, 
supra, at 1029. Contra: Fourth Circuit: 
Hirschkop v. Snead, 594 F.2d 356, 363, 373 
(4th Cir. 1979)("reasonable likelihood"); 
Tenth Circuit: United States v. Tijerina, 
supra, at 666 (same).

44



The First Amendment protects not only 
the content of speech but its timeliness. 
See, e.g., Bridges v. California, supra, at 
252. Because of the protracted nature of 
civil litigation, restraints on communica­
tions could last for years. Hirschkop v. 
Snead, supra, at 373. See also Bridges v. 
California, supra, at 269. The Fifth 
Circuit's decision invalidating the order in 
the instant case came almost four years 
after the order was entered. (J.A. 44, 277). 
The Rodgers I plaintiffs and their NAACP 
Legal Defense Fund counsel were subjected to 
a similar restraint for over two and a half 
years. Rodgers v. United States Steel Corp. 
(Rodgers I), supra, at 152, 155. Such de­
lay seriously exacerbates the First Amend­
ment problems raised by the Manual's model 
rule and order.

Petitioners assert that no harm will 
occur from restraining communications that 
cannot be corrected on appeal. Brief for

45



Petitioners at 21 n.15. But this argues
with equal force in favor of allowing the
communications to take place, and correcting
any harm on appeal. Surely the First Amend-

7 /ment has chosen the latter option.—
4. The Order Is Vague.

Finally, the Manual and the district 
court attempt to save their order from over­
breadth by including a provision which 
exempts constitutionally protected expres­
sion. (J.A . 98, 125). This solution merely 
trades overbreadth for vagueness. An emi­
nent constitutional scholar has exemplified 
this dilemma with a hypothetical law: "It

— Petitioners cite Weight Watchers of 
Philadelphia, Inc. v. Weight Watchers 
International, Inc., 455 F.2d 770 (2d Cir. 
1972) as supporting their position. Brief 
for Petitioners at 15. However, that case 
held that the appellate court could not 
review a trial court order allowing com­
munication with class members. Weight 
Watchers, supra, at 775. From a First 
Amendment perspective, allowing communica­
tion and suppressing it are very different 
propostions and are certainly not inter­
changeable. See Zarate v. Younglove, supra, at 1032 & n.14.

46



shall he a crime to say anything in public 
unless the speech is protected by the first 
and fourteenth amendments. " Because the 
Constitution by itself does not provide 
clear enough guidelines to enable a person 
to decide whether or not his expression is 
protected, such a law will deter too much 
that is protected. Moreover, no expression 
can authoritatively be said to be protected 
until a court has determined it to be so.
L. Tribe, American Constitutional Law 716, 
729 (1978 ed.). Se e also Zarate v. Young- 
love, supra, at 1025, 1042.

The district court's order has obvious 
similarities to this hypothetical law, and 
equivalent infirmities. A vague law is one 
which does not provide a person of ordinary 
prudence with notice of what he may or may 
not say. The average party in a class 
action cannot be expected to know what 
speech is and is not within the First Amend­
ment's ambit. Should the prospective

47



speaker prudently elect to submit his 
dilemma to the district judge, there is no 
guarantee that even constitutionally pro­
tected expression will be allowed. The 
order provides no standards. Because the 
line between protected and unprotected 
speech may be dim, the government must work 
with more precise tools in this sensitive 
area of First Amendment freedoms. See 
Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 561 (1975); N AACP v. Button, 
supra, at 429.

48



CONCLUSION
For all the reasons stated, the decision 

of the United States Court of Appeals for 
the Fifth Circuit should be affirmed.

Respectfully submitted,

Arthur B. Spitzer 
(Counsel of record)
American Civil Liberties Union 
Fund of the National Capital Area
600 Pennsylvania Ave., S.E. 
Washington, D.C. 20003 (202) 544-1076

Kenneth J. Guido, Jr.
The George Washington Law 
Review

2000 H Street, N.W. 
Washington, D.C. 20007
Attorneys for Amici*

★ Counsel wish to acknowledge the parti­
cipation of R. Bruce Holcomb and Courtney C. 
Knowles, editors of The George Washington 
Law Review, in the preparation of this brief.

49



CERTIFICATE OF SERVICE
I hereby certify that three (3) 

copies of the foregoing BRIEF OF 
THE AMERICAN CIVIL LIBERTIES UNION 
FUND OF THE NATIONAL CAPITOL AREA 
AND THE GEORGE WASHINGTON LAW REVIEW, 
AMICI CURIAE have been served this 5th 
day of March, 1981, by United States 
Mail, postage prepaid, upon the follow­
ing counsel of record:
Patrick 0. Patterson, Esquire 
Suite 2030 
10 Columbus Circle 
New York, New York 10019
William G. Duck, Esquire 
Post Office Box 3725 
Houston, Texas 77001
Carl A. Parker, Esquire
449 Stadium Road
Port Arthur, Texas 77640

Arthur B. Spitzer 
Attorney for Amici 
American Civil Liberties 
Union Fund of the National 
Capitol Area and the George 
Washington Law Review