Gulf Oil Company v. Bernard Brief of Amicus Curiae in Support of Respondents

    No. 80-441

IN THE

Supreme (ta rt of tijr Btritrd Stairs
October Term , 1980

Gulf Oil Company, et al„
Petitioners,

v.

Wesley P. Bernard , et a l .,
Respondents.

On Writ of Certiorari To The United States Court 
Of Appeals For The Fifth Circuit

BRIEF OF A M IC U S CU RIAE  
ASSOCIATION OF TRIAL LAWYERS 

OF AMERICA
IN SUPPORT OF RESPONDENTS

Mayo L. Coiner 
(Counsel o f  Record) 
Memphis State University 
School of Law 
Memphis, Tennessee 38152 
(901)454-2423 

HARRY M. PHILO 
President
Association of Trial 
Lawyers of America 
409 Griswold Street 
Detroit, Michigan 48226 
(313)496-1330

Attorneys fo r  Amicus Curiae 
The Association o f Trial 
Lawyers o f America



T A B L E  O F C O N T E N T S

Page
Table of Authorities.................................................  i
Statement of In ter est .............................................. l
Summary of Argum ent.............................................. 3
Argument

I. The District Court’s Order Is an Unconstitu­
tional “ Prior Restraint’’ on Speech and Con­
duct ...........................      4

II. The District Court’s Order is Unconstitution­
ally Vague............................................................ 10

III. The District Court’s Order is Unconstitution­
ally Overbroad and Ignores Reasonable Alter­
natives...................................................................12

IV. The Purported Exclusion from the District 
Court’s Order of One Asserting a Constitu­
tional Right to Communicate With a Class 
Member Is Not a Sufficient Protection of
First Amendment Rights..................................  16

VI. There is No Conflict Between Circuits as to the 
Validity of the District Court’s Order...............19

Co nclusio n ................................................................... 22



T A B L E  O F A U T H O R IT IE S

Cases: Page

Arnett v. Kennedy, 416 U.S. 134 (1974)........................  15
Baggett v. Bullitt, i l l  U.S. 360 (1964)........................... 11
Bantam Books, Inc. v. Sullivan, 372 U.S. 58

(1968).........................................................................  4
Bernard v. Gulf Oil Co., 619 F.2d 459 (5th

Cir. 1980) ............................................  3, 10, 17, 18, 19
Bridges v. California, 314 U.S. 252 (1941)....................13
Brotherhood o f Railroad Trainmen v. Virginia

ex rel State Bar, 377 U.S. 1 (1964)...........................  8
Carroll v. Commissioners o f Princess Anne,

393 U.S. 175 (1968)...............................................  6, 12
Chicago Council o f  Lawyers v. Bauer, 522

F.2d 242 (7th Cir. 1975)..................  5, 7, 12, 13,18,19
Coles v. Marsh, 560 F.2D 196 (3d Cir. 1975).......... 19, 20
Craig v. Harney, 331 U.S. 367 (1947) ...........................  13
Gompers v. Buck Stoves & Range Co., 221

U.S. 418(1911)........................................     17
Hirschkop v. Snead, 594 F.2d 356

(4th Cir. 1979)..................................  5, 6, 11, 12, 13, 19
In re Norton, 622 F.2d 917 (5th Cir. 1980)........... .........20
In re Primus, 436 U.S. 412 (1978).............................  7, 17
In re Timmons, 607 F.2d 120 (5th Cir. 1979)................ 17
NAACPv. Button, 371 U.S. 415 (1963)...................... 7, 8
Near v. Minnesota, 283 U.S. 697 (1931).......................  4
Nebraska Press Association v. Stuart, 427

U.S. 539(1976).........................................4 ,5 ,6 , 10, 12
New York Times Co. v. United States, 403

U .S .713(1971).........................................................5,6



I ll

Table of Authorities Continued

Cases: Page

Ohralik v. Ohio State Bar Association, 436
U.S. 447 (1978)................ .........................................  17

Organization fo r  a Better Austin v. Keefe,
402 U.S. 415 (1971)....................................................  5

Pan American World Airways, Inc. v. United 
States District Court fo r  Central District 
o f California, 523 F.2d 1073 (9th Cir. 1975)...........  10

Peals v. Southwestern Bell Telephone Co., Case
No. 78-68-C5, Slip opinion, (D.C. Kan. 1977)........  21

Pennekamp v. Florida, 318 U.S. 331 (1946).................. 13
Rodgers v. United States Steel Corporation,

508 F.2d 152 (3d Cir. 1975)....................................  19, 20
Shelton v. Tucker, 364 U.S. 479 (1960)................... 13
Sheppard v. Maxwell, 384 U.S. 333 (1966)................... 6
Shuttlesworth v. City o f Birmingham, 394

U.S. 147 (1969)........................................................... 5
Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546(1975).............................................. 4 ,5 ,6
United Mine Workers v. Illinois State Bar

Association, 389 U.S. 217 (1967).............................  8
United Transportation Union v. State Bar o f

Michigan, 401 U.S. 576 (1971)..................................  8
U.S. v. Columbia Broadcasting System, Inc.,

497 f .2d 102 (5th Cir. 1974).....................................  10
Waldo v. Lakeshore Estates, Inc. 433 F.

Supp. 782 (E.D. La. 1977)..........................................  21
Walker v. City o f Birmingham, 388 U.S. 307 

(1967) 5



IV

Table of Authorities Continued

Weight Watchers o f Philadelphia, Inc. v. Weight 
Watchers International, Inc., 455 F.2d
770 (2d Cir. 1972)................................................  19, 20

Wood v. Georgia, 370 U.S. 375 (1962).......................... 13
Zarate v. Younglove, 86F.R.D. 80(C.D.

Calif. 1980)...................................... 7, 12, 14, 16, 18, 20

CONSTITUTIONAL PROVISIONS, STATUTES, RULES
AND REGULATIONS:
United States Constitution, First
Amendment.........................................................  Passim
Fed R.Civ.P., Rule 23.......................................  8, 11, 14
42 U.S.C. §2000e et. seq., Title VII of the
Civil Rights Act of 1964, as amended......................
28 U.S.C. §1291 .........................................................  20
28 U.S.C. §1292 ...................      20
28 U.S.C. §1651 .........................................................  20

Other Authorities:
Manual fo r Complex Litigation

(1 Pt. 2, Moores Federal Practice, Pt. II,
§1.41 [1979]).........................................  2, 3, 8, 9, 10, 19



No. 80-441

IN THE

Supreme Court of tfye Buttrfi 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 A M IC U S CU RIAE  
ASSOCIATION OF TRIAL LAWYERS 

OF AMERICA
IN SUPPORT OF RESPONDENTS

STATEMENT OF INTEREST

The Association of Trial Lawyers of America is a na­
tional association composed of lawyers regularly engaged 
in the trial and appeal of all types of contested matters, as 
well as judges, professors of law, lawyer-administrators, 
and other lawyers. The membership of the Association 
numbers approximately 40,000. The Association, through 
its appropriate officers and committees, has authorized its 
participation in this cause as amicus curiae. This brief is 
filed with the written consent of all parties.

This appeal involves the use of and the interpretation 
of Sample Pretrial Order No. 15—Prevention o f Potential



2

Abuses o f Class Actions as set forth in the Manual for Com­
plex Litigation, Part II, §1.41 and as explained in Part I, 
§1.41.

At the invitation of the Board of Editors of the Man­
ual, the Association has participated in the preparation of 
recent revisions of the Manual through an ad hoc commit­
tee appointed by the President of the Association. In both 
1976 and 1980, the Association expressed to the Board of 
Editors their concern with the procedures recommended 
in §1.41 and with the chilling effect on precious First Amend­
ment rights.

The most recent of those expressions of concern was 
contained in the Memorandum Report of the Association 
of Trial Lawyers of America to the Board of Editors of 
the Manual for Complex Litigation and was dated July 30, 
1980:

Preventing Potential Abuse of Class Actions
The Potential abuses recounted in §1.41 of the Man­

ual are a source of continuing concern to ATLA. The 
types of communications referred to appear not to be 
as common as the Board might fear. Perhaps our ex­
perience is jaded, however, by naivety or by the possi­
bility that these communications are difficult to detect 
and often escape exposure. Particularly difficult to 
detect are communications which defendants direct 
toward class members since, in the usual case, the de­
fendant has superior knowledge of the identities and 
whereabouts of class members and often has a con­
tinuing relationship which lends itself to frequent con­
tacts or communications.

The danger perceived in this area, however, is not 
with the necessity for preventing potential abuses, but 
with the procedures to be utilized to accomplish that 
end. In its 1976 Report, ATLA expressed concern over 
the potential chilling effect of non-communication 
orders and rules on precious First Amendment rights. 
We reiterate that concern here and urge the Board to 
consider §1.41 in light of the June 19, 1980, en banc 
decision of the United States Court of Appeals for the



3

Fifth Circuit in Bernard v. Gulf Oil Co., 619 F.2d 459 
(5th Cir. 1980). That decision, which was not rendered 
until after preparation of the Tentative Draft, reversed 
the very case referred to in the Draft and cited at Foot­
note 42c. The potential for inadvertent abuse of con­
stitutionally protected freedoms may outweigh the 
potential for abuse of the class action process.
The Association appears in this cause as amicus curiae 

to express its continuing concern with the effect upon First 
Amendment freedoms of the imposition of the order and 
rule in §1.41 of the Manual in a non-selective manner and 
based upon anticipation of abuse of class action procedures.

SUMMARY OF ARGUMENT
This appeal involves the constitutionality of Sample 

Pretrial Order No. 15 as recommended and published in 
the Manual for Complex Litigation, §1.41 of Parts I and II. 
The order purports to prevent potential abuses of class 
actions by prohibiting all communication by parties in the 
class action and their counsel with actual or potential class 
members who are not formal parties in the action. The 
Manual recommends that the order be issued pretrial in 
all class actions in anticipation of potential abuses. The 
order was, in fact, imposed upon counsel and parties in 
this Title VII class action when they openly opposed a con­
ciliation agreement between the defendants and the Equal 
Employment Opportunity Commission.

The conduct of plaintiffs and their counsel, which re­
sulted in the imposition of this order, was protected activity 
under the First Amendment as interpreted and applied by 
this Court. Further, the imposition of the order as recom­
mended by the Manual and as issued herein is inherently 
unconstitutional as a prior restraint on free speech. The 
district court was not faced with a threat of “ direct, im­
mediate, and irreparable damage” to the judicial process 
and the Manual does not contemplate such a threat as the 
basis for issuing the order.



4

Apart from the unconstitutional circumstances under 
which the order was issued, it is unconstitutionally vague 
and overbroad. Its terms are such that no reasonably in­
telligent person, lawyer or lay person, could be expected to 
understand and abide by the order. Its reach is far beyond 
that required by the situation confronting the district court— 
and the Manual would not require any threat to the judi­
cial process, it would “ anticipate” abuse. No consideration 
was given to reasonable, available, less severe alternatives.

The order purports to exclude First Amendment rights 
asserted by the parties or counsel. However, the order ob­
viously “ chills” the assertion of one’s constitutional rights, 
as one would assert them at peril of being held in criminal 
contempt of court. Any communication is a per se viola­
tion of the order.

No Circuit Court has upheld the validity of the order 
issued herein. The Fifth Circuit, sitting en banc, held it to 
be unconstitutional in this action. That decision should be 
affirmed by the Court.

ARGUMENT
I

THE DISTRICT COURT’S ORDER IS AN 
UNCONSTITUTIONAL “ PRIOR RESTRAINT”

ON SPEECH AND CONDUCT

Prior restraints have been viewed with great displeasure 
in the American Legal system, due largely to the severe 
impact they place on judicially guarded First Amendment 
rights. Near v. Minnesota, 283 U.S. 697 (1931). Though 
prior restraints on speech are not regarded as unconstitu­
tional per se, this Court has repeatedly stated that “ any 
system of prior restraints comes to this court bearing a heavy 
presumption against its constitutional validity.” Bantam 
Books, Inc. v Sullivan, 372 U.S. 58, 70 (1968). See also Ne­
braska Press Association v. Stuart, A ll U.S. 539, 556-59



5

(1976); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 
546, 558-59 (1975); New York Times Co. v. United States, 
403 U.S. 713, 714 (1971); Organization fo r  a Better Austin 
v. Keefe, 402 U.S. 415, 419 (1971). The burden of justifi­
cation for a prior restraint is, therefore, far greater than 
that imposed in cases dealing only with subsequent restric­
tions on freedom of speech.

It is generally accepted that a prior restraint of speech 
is a “ predetermined judicial prohibition restraining spe­
cified expression . . . ” imposed by a judicial decree, the 
violation of which is punishable by a contempt citation. 
Hirschkop v. Snead, 594 F.2d 356, 368 (4th Cir. 1979); 
Chicago Council o f  Lawyers v. Bauer, 522 F.2d 242, 248 
(7th Cir. 1975). This punishment of contempt is the prime 
distinguishing feature between a “ prior restraint” and a 
criminal statute that prohibits certain expression. In a pros­
ecution for the violation of the latter an individual is pro­
tected by the full panoply of criminal procedural safeguards, 
and is free to assert the unconstitutionality of the statute as 
a defense. See Shuttlesworth v. City o f Birmingham, 394 
U.S. 147 (1969). In contrast, an individual who violates an 
injunction is precluded from attacking its constitutional 
validity in a subsequent contempt proceeding. Walker v. 
City o f Birmingham, 388 U.S. 307 (1967). The proper meth­
od of challenge to an injunction lies in a prior application 
to the court for modification or dissolution, or in a direct 
appeal, not in a constitutional attack after its violation. 
Walker, supra, 388 U.S. at 317. As this Court noted in Ne­
braska Press Association v. Stuart, supra, a prior restraint 
has “ an immediate and irreversible sanction,” the threat 
of which doesn’t merely “ chill” speech but rather “ freezes 
it.” 427 U.S. at 559.

For a prior restraint to be lawful it “ must fit within 
one of the narrowly defined exceptions to the prohibition 
against prior restraints.” Southeastern Promotions, Ltd. v 
Conrad, supra, 420 U.S. at 559. The general rule is that 
such restraint is justified only if the expression to be re­



6

strained will “ surely result in direct, immediate, and irre­
parable damage.” New York Times Co. v. United States, 
supra, 403 U.S. at 730. As this Court stated in New York 
Times, it is not a question of probabilities or mere specu­
lation of harm, but rather a question of whether there was 
a substantial certainty of harm, i.e., the “ publication must 
inevitably, directly, and immediately, cause an occurrence 
of an event kindred to the imperiling of a transport already 
at sea. . .” 403 U.S. at 726-27.

There are two additional prerequisites to a constitu­
tionally permissible prior restraint. First, the restraint must 
be the least restrictive means of preventing the threatened 
harm. It must be drawn as narrowly as possible, and it can­
not be sustained if reasonable alternatives exist that would 
impact less severely on First Amendment rights. Nebraska 
Press Association v. Stuart, supra; Carroll v. Commis­
sioners o f Princess Anne, 393 U.S. 175 (1968). Second, the 
restraint “ must have been accomplished with procedural 
safeguards that reduce the danger of suppressing constitu­
tionally protected speech.” Southeastern Promotions, Ltd. 
v. Conrad, supra, 420 U.S. at 559.

A. The Conduct of a Lawyer in the Course of a 
Legal Action is Constitutionally Protected.

The right, indeed, the duty of courts to protect their 
procedures and to take all reasonable means of ensuring a 
fair trial to every litigant is beyond question; and, clearly, 
the courts have the inherent power to take appropriate 
remedial measures “ to protect their processes from preju­
dicial outside interferences.” Sheppard v. Maxwell, 384 
U.S. 333, 363 (1966). When a lawyer engages in conduct 
which interferes with those processes, that lawyer is subject 
to censure. Id. As an officer of the court, a lawyer has a 
higher duty than a lay person to protect the judicial process 
and to ensure its fairness; certainly, they are subject to more 
disciplinary sanctions. Hirschkop v. Snead, supra, 594 F.2d



7

at 366. So, when the right of a lawyer to free speech con­
flicts with the right of litigants to a fair trial, the rights of 
litigants must take precedence. Chicago Council o f Lawyers 
v. Bauer, supra, 522 F2d at 248.

However, lawyers do enjoy the right of free speech and 
an order which denies those First Amendment rights to a 
lawyer must be measured against and protected by constitu­
tional requirements. The Seventh Circuit has suggested that 
we should be even more reluctant to silence attorneys repre­
senting a plaintiff class in an action such as this action.

Sometimes a class of poor or powerless citizens chal­
lenges, by way of a civil suit, actions taken by our es­
tablished private or semi private institutions or govern­
mental entities. . . . The lawyer representing the class 
plaintiffs may be the only articulate voice for that side 
of the case. Therefore, we should be extremely skepti­
cal about any rule that silences that voice.
Chicago Council o f  Lawyers v. Bauer, supra, 522 F.2d 
at 258.
No lawyer could competently prepare a class action for 

trial under the restrictions of the district court’s order. They 
are prohibited from initiating any contact with potential 
or actual class members not a formal party—an essential 
source of testimony in a Title VII class action. They may 
not even inform those persons that the class action has been 
filed on their behalf. Plaintiffs’ lawyers were effectively cut 
off from the market place in which free speech should be 
tested. Quite possibly, it is a violation of due process to 
deny an attorney access to witnesses. Zarate v. Younglove, 
86 F.R.D. 80, 97-8 (C.D. Calif. 1980).

To the extent that plaintiff’s lawyers were employed 
by the NAACP Legal Defense Fund, their First Amend­
ment right to contact aggrieved citizens and to counsel them 
as to their legal rights, including litigation, has been pre­
viously litigated and firmly established by this Court in 
NAACP  v. Button, 371 U.S. 415 (1963) and the line of cases 
following it. See In re Primus, 436 U.S. 412 (1978); United



8

Transportation Union v. State Bar o f  Michigan, 401 U.S. 
576 (1971); United Mine Workers v. Illinois State Bar As­
sociation, 389 U.S. 217 (1967); Brotherhood o f Railroad 
Trainmen v. Virginia ex rel State Bar, 377 U.S. 1 (1964).

As in Button, the subject matter of the case at bar is 
racial discrimination. The only difference is that in the in­
stant case the employees had a choice between a conciliation 
offer and a lawsuit, whereas in Button there was no con­
ciliation offer and the choice was whether or not to partici­
pate in a lawsuit.

On authority of the Button line of cases, the communi­
cations between formal parties to the suit and potential 
class members, also forbidden by the plenary order, is at 
least equally protected activity under the First Amendment. 
See United Transportation Union v. State Bar o f Michigan, 
supra; United Mine Workers v. Illinois State Bar Associa­
tion, supra; Brotherhood o f Railroad Trainmen v. Virginia 
ex rel State Bar, supra. As this Court stated in United Trans­
portation Union, “ The common thread running through 
our decision in NAACP  v. Button, Trainmen, and United 
Mine Workers is that collective activity undertaken to ob­
tain meaningful access to the courts is a federal right with­
in the protection of the First Amendment.” 401 U.S. at 585.

B. The District Court’s Order Was Constitutionally 
Infirm in Its Genesis.

The order imposed upon counsel and parties by the dis­
trict court, hereafter referred to as the “Bernard order,” 
was taken verbatim from the Manual fo r Complex Litiga­
tion, Part II, §1.41, Sample Pretrial Order No. 15. The 
accompanying text, Part I, §1.41, exhorts trial judges “ to 
anticipate abuse” in class actions under Rule 23, sets forth 
“ potential abuses,” and recommends “ timely action” by 
local rule, by order, or by both means. Clearly, the thrust 
of the text is that the district courts should apply the recom­
mended restrictions on communications with class members



9

prior to the occurrence of, or even the threat of, any abuse 
of the class action process. Obviously that approach can­
not meet the “ direct, immediate, and irreparable damage” 
test. Far from protecting an imperiled “ transport already 
at sea,” the Manual recommends issuance of the order when 
the vessel is still at the dock, “ anticipating” the voyage.

Inconsistently, the Manual acknowledges that these 
“ potential abuses” occur rarely:

It must be noted however, that generally, the experience 
of the courts in class actions has been favorable. The 
aforementioned abuses are the exceptions in class ac­
tion litigation rather than the rule. Nevertheless, they 
support the idea that it is appropriate to guard against 
the occurrence of these relatively rare abuses by local 
rule or order. Manual, Part I, §1.41, pgs. 36-37 (em­
phasis supplied).

“ Support” hardly rises to a threat of “ direct, immediate, 
and irreparable damage” to the judicial process.

The Manual does caution that the recommended order 
“ is not intended to be either a permanent or an absolute 
prohibition of contact with actual or potential class mem­
bers,” and proceeds to recommend a prompt hearing after 
entering the order for the purpose of relaxing the order and 
for the presentation of proposed communications with class 
members. The final paragraph of the recommended order 
provides for that hearing. Interestingly, this was the one 
paragraph of the recommended order omitted by the trial 
court in the Bernard order.

This Court has never spoken on the question of what 
degree of consideration should be given to the recommenda­
tions of the Manual fo r  Complex Litigation. We would 
acknowledge that the Manual is entitled to great respect; 
however, we would also contend that it is not entitled to the 
deference of regulations issued by agencies charged with 
the enforcement of Acts of Congress. The Ninth Circuit 
has limited the role of the Manual as a source of judicial 
authority, “ . . .in  any case, the Manual cannot serve as a



10

source of judicial power because the committee that drafted 
it possessed authority only to issue recommendations. See 
Manual fo r  Complex Litigation, Xiii - X ix  (1973).” Pan 
American World Airways, Inc. v. United States District 
Court fo r  Central District o f  California, 523 F.2d 1073, 
1078 (9th Cir. 1975).

The fact that the Bernard order involves the judicial 
administration of justice does not bring it within a recog­
nized exception permitting prior restraints. In fact, quite 
the opposite is true. Even in the context of a criminal de­
fendant’s right to a fair trial “ the barriers to prior restraint 
remain high and the presumption against its use continues 
intact.” Nebraska Press Association v. Stuart, supra, 427 
U.S. at 570. Our courts have articulated standards for judg­
ing when a prior restraint will be constitutionally permissi­
ble in the context of the fair administration of justice. The 
Fifth Circuit and others have held that “ [Bjefore a prior 
restraint may be imposed by a judge, even in the interest of 
assuring a fair trial, there must be an imminent, not merely 
a likely, threat to the administraiton of justice. The danger 
must not be remote or even probable; it must immediately 
imperil.” U.S. v. Columbia Broadcasting System, Inc., 
497 F.2d 102, 104 (5th Cir. 1974). This standard comports 
with the New York Times test of substantial certainty of 
“ direct, immediate, and irreparable harm.” Clearly, the 
Bernard order fails to meet the requisite standard both in 
its conception and by reason of the complete absence of 
findings by the trial court indicating any imminent threat 
to the administration of justice. Bernard v. Gulf Oil Com­
pany, supra, 619 F. 2d at 466.

II
THE DISTRICT COURT’S ORDER IS 
UNCONSTITUTIONALLY VAGUE

The order imposed in this action is also unconstitu­
tional because it is impermissibly vague.



11

Vague rules that restrict expression also offend the 
first amendment because they chill freedom of speech. 
Their uncertain meanings require those persons who 
are subject to the rule to “ steer far wider of the unlaw­
ful zone, . . . than if the boundaries of the forbidden 
areas were clearly marked.” Baggett v. Bullitt, 377 
U.S. 360, 372, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 
(1964).
Hirschkop v. Snead, supra, 594 F.2d at 371.
The order sets forth four specific areas of communi­

cation with class members which are prohibited to both 
lawyers and lay parties:

(a) solicitation directly or indirectly of legal represen­
tation of potential and actual class members who are 
not formal parties to the class action; (b) solicitation 
of fees and expenses and agreements to pay fees and 
expenses from potential and actual class members who 
are not formal parties to the class action; (c) solicita­
tion by formal parties to the class action of requests 
by class members to opt out in class actions under sub- 
paragraph (b) (3) of Rule 23, F.R.Civ.P. and (d) com­
munications from counsel or a party which may tend 
to misrepresent the status, purposes and effects of the 
class action, and of any actual or potential Court orders 
therein which may create impressions tending, without 
cause, to reflect adversely on any party, any counsel, 
this Court, or the administraiton of justice.
But, these four prohibitions are introduced with the 

statement, “ The communications forbidden by this order 
include, but are not limited to . . . .” What other communi­
cations are forbidden? The only clue within the order fol­
lows the recitation of the four forbidden areas: “ The obli­
gations and prohibitions of this order are not exclusive. All 
other ethical, legal and equitable obligations are unaffected 
by this order.”

No lawyer, far less a lay party, could determine with 
any certainty from the above language what they may or 
may not do thereafter in the preparation of the action for 
trial.



12

“ All other ethical, legal and equitable obligations” 
might be meaningful to a lawyer. It should mean, “ Conduct 
yourself as an ethical lawyer.” If so, it is superfluous; if 
not, it is unconstitutionally vague. But what does it mean 
to a lay party?1

Paragraph (d), above, prohibits communications 
“ which may tend to misrepresent.” It would be difficult, 
but feasible, to abide by an order which prohibited com­
munications “ which misrepresent;” it is impossible to in­
terpret safely “ which may tend to misrepresent.” This 
phrase was found to be both unconstitutionally vague and 
overbroad in Zarate v. Younglove, supra, 86 F.R.D. at 103.

And, how does one comply with the prohibition against 
misrepresenting “ potential Court orders?” That requires 
a prescience which few trial lawyers, or judges, possess!

These vague provisions would certainly “ chill” the 
activities of parties and counsel. The wise person seeing a 
sign, “ Danger—Thin Ice,” will give it a wide berth; the 
cautious will not go ice skating.

I ll
THE DISTRICT COURT’S ORDER IS 

UNCONSTITUTIONALLY OVERBROAD AND
IGNORES REASONABLE ALTERNATIVES

A constitutional prior restraint must be carefully drafted. 
It must be drawn as narrowly as possible and it will not be 
sustained if there are reasonable alternatives which will have 
a less severe impact on First Amendment rights. Nebraska 
Press Association v. Stuart, supra; Carroll v. Commissioners 
o f Princess Anne, supra.

‘Compare, Chicago Council o f  Lawyers v. Bauer, 522 F.2d 242, 
255-56 (7th Cir. 1975) holding unconstitutionally vague the phrase, 
“ or other matters that are reasonably likely to interfere with a fair 
trial.” Accord, Hirschkop v. Snead, 594 F.2d 356, 373 (4th Cir. 1979).



13

A. The District Court’s Order Is 
Unconstitutionally Overbroad

In a series of decisions this court has held that, even 
though the governmental purpose be legitimate and 
substantial, that purpose cannot be pursued by means 
that broadly stifle fundamental personal liberties when 
the end can be more narrowly achieved. The breadth 
of legislative abridgement must be viewed in the light 
of less drastic means for achieving the same basic pur­
pose. Shelton v. Tucker, 364 U.S. 479, 488 (1960) 
(footnotes omitted).
With the above constitutional guidelines from this 

Court, the lower courts have adopted varying standards to 
determine to what extent judicial orders may curtail the 
First Amendment rights of litigants and counsel to com­
ment on pending litigation. In Hirschkop v. Snead, supra, 
the Fourth Circuit held that rules proscribing comments on 
pending litigation are constitutionally prohibited unless 
there is a “ reasonable likelihood” that such dissemination 
will interfere with the administration of justice. 495 F.2d 
at 370. In Chicago Council o f  Lawyers v. Bauer, supra, the 
Seventh Circuit adopted a narrower and more restrictive 
standard, holding that comments on pending litigation can 
be constitutionally restrained only if they pose a “ serious 
and imminent threat of interference with the fair admini­
stration of justice.” 522 F.2d at 249. The two courts agreed 
that rules prohibiting lawyers’ comments about civil trials 
were unconstitutional and the Fourth Circuit included all 
bench trials in their ruling. 594 F.2d at 371-72, 373; 522 
F.2d at 257-59. Of course, being a Title VII action, the ac­
tion here involved was a civil action which should have 
resulted in a bench trial. The courts are in unanimous agree­
ment that the interest of the judiciary in the proper admini­
stration of justice does not license a blanket exception to 
the First Amendment. See Wood v. Georgia, 370 U.S. 375 
(1962); Craig v. Harney, 331 U.S. 367 (1847); Pennekamp 
v. Florida, 318 U.S. 331 (1946); Bridges v. California, 314 
U.S. 252 (1941).



14

The order at issue is inherently overbroad as published 
in the Manual and unconstitutionally overbroad as issued. 
It was taken verbatim from the Manual with no attempt to 
apply it specifically to the alleged abuses. Consequently, 
the order prohibits abuses which could not occur in this 
action and it authorizes conduct which could not occur in 
this action.

For example, paragraph 2 (c) of the Bernard order 
forbids solicitation of requests to opt out under Rule 23 
(b) (3). This conduct could not occur in this action. First, 
Rule 23 (b) (3) contains no provision for a class member to 
opt out; one opts out under Rule 23 (c) (2) (A). Secondly, 
Title VII class actions are (b) (2) class actions. Rule 23 con­
tains no provision for opting out of a (b) (2) class action.

The Bernard order also contains an exception “ in the 
performance of the duties of a public office or agency (such 
as the Attorney General) . . .  .’’ Of course, neither the At­
torney General nor any other government attorney was in­
volved in this action.

Far from being “ no greater than is necessary or essen­
tial,” the Bernard order reached out to forbid all communi­
cation “ concerning this action with any potential or actual 
class member not a formal party to the action without the 
consent and approval of the proposed communication and 
proposed addressees by order of this Court.” Simply, the 
order established a “ permit” system. Zarate v. Younglove, 
supra, 86 F.R.D. at 104.

The alleged threat to the court’s management of this 
class action is described by Petitioner as follows:

On May 22, 1976, four days after this action was 
filed, attorneys for Respondents attended a meeting 
of actual and potential class members (J.A. 115, 118), 
and according to affidavits filed in this case, discussed 
with the potential class members the issues involved in 
this action, answered questions from the audience, and 
explained the administrative and legal problems in­
herent in fair employment litigation. (J.A. 115, 116, 
118).



15

After the meeting, Gulf’s counsel, by emergency 
motion, represented to the district court that it had 
learned that an attorney for Respondents advised the 
participants at the meeting to mail back the checks they 
had received from Gulf, since by prosecuting the pres­
ent action Respondent’s attorney could recover at least 
double the amount which was paid under the concilia­
tion agreement. (J.A. 22, 23, 24). Gulf’s emergency 
motion sought an interim order limiting communica­
tions between potential class members and all parties 
and their counsel to this lawsuit. (J.A. 21, 25). On May 
28, 1976, District Judge Steger, ruling in Chief Judge 
Fisher’s absence, granted Gulf’s motion and entered 
the interim order. (J.A. 44).
Brief fo r  the Petitioners, pg. 5.
These allegations describe an attack on the conciliation 

agreement negotiated between Petitioner and the Equal 
Employment Opportunity Commission. Even assuming 
that the conciliation agreement was entitled to the court’s 
protection (J.A. 71-80), a highly debatable issue in itself, or 
that Respondents has misrepresented the context and effect 
of that agreement, the Bernard order does not specifically 
address that issue in any manner. If this issue was intended 
to be included in the prohibition of communications “which 
may tend to misrepresent the status, purposes and effects” 
of the action or “ actual or potential Court orders” or to 
reflect adversely on the parties or the court (paragraph 2 
(d) of the order, supra), it is unconstitutionally vague and 
broad as discussed above.

Indeed, the order in question “ hangs over [people’s] 
heads like a Sword of Damocles.” Arnett v. Kennedy, 416 
U.S. 134, 231 (1974). Counsel’s decision to seek prior ap­
proval of the court before attempting to communicate with 
potential class members aptly demonstrates that “ the value 
of the sword of Damocles is that it hangs—not that it drops.” 
Id.



16

B. The District Court’s Order Ignores the 
Reasonable Alternatives.

There was no showing in the district court that reason­
able alternatives with lesser impact on the right to free speech 
were unavailable. In fact, such alternatives were available. 
In Zarate v. Younglove, supra, the district court refused to 
issue a restraining order, identical to the one at issue in the 
case at bar, on the grounds that it was an unconstitutional 
prior restraint on speech, as well as unconstitutionally vague 
and overbroad. In doing so, the court delineated what it 
considered to be a constitutionally permissible order re­
stricting communications between plaintiffs and potential 
class members. The court held that the only permissible 
order would be one narrowly prohibiting communications 
from attorneys who misrepresent the status, purposes, or 
effects of the action or any court orders, and which repre­
sent a serious and imminent threat to the administration of 
justice. 86 F.R.D. at 105. The trial court in the instant case 
could have issued such an order, but instead chose a pro­
vision that is unconstitutionally broad as a prior restraint 
of speech.

In so far as unethical solicitation of clients, fees, and 
expenses is involved, the district court simply is not the 
proper agency for regulating the ethics of the bar. If and 
as unethical conduct by lawyers occurs, the district court 
should refer such matters to the appropriate state authorities.

IV
THE PURPORTED EXCLUSION FROM THE 

DISTRICT COURT’S ORDER OF ONE ASSERTING 
A CONSTITUTIONAL RIGHT TO COMMUNICATE 
WITH A CLASS MEMBER IS NOT A SUFFICIENT 
PROTECTION OF FIRST AMENDMENT RIGHTS.

Petitioners argue that under the Bernard order “ all 
expressions assertedly protected by the First Amendment



17

may be made by the parties or their counsel free of re­
straint.” (Brief for Petitioners, pg. 33.) Petitioner proceeds 
to acknowledge that communications by respondent parties 
or their counsel would be tested in criminal contempt pro­
ceedings and projects that the determination would be based 
upon

. . . the applicable constitutional test for solicitation 
in effect at the time the violation is charged. Presently, 
this would require an analysis by the court of whether 
the solicitation was commercial, under the standards 
of Ohralik v. Ohio State Bar Association, 436 U.S. 
447 (1978) or whether the solicitation was a form of 
political expression under the standard of In re Primus, 
supra. Thus, the order’s exception allows any court 
imposed prohibition on speech to be constitutionally 
challenged by the one charged with its violation and 
then only after all the safeguards of the criminal justice 
system are fulfilled.37
37. Violations of the order would be punished by crimi­
nal contempt since the objective would be to vindicate 
the authority of the court. See Gompers v. Bucks Stove 
& Range Co., 221 U.S. 418, 441 (1911).
The means of enforcing the order in issue, criminal 

contempt, are not disputed. Petitioners acknowledged the 
means of enforcing this order before the Fifth Circuit:

the appellees accept that the means of enforcement in­
intended is the contempt power of the court, and we 
agree.14
14. Contempt here would be criminal because used 
to punish past misconduct. In re Timmons, 607 F,2d 
120, 123-24 (5th Cir. 1979).
Bernard v. Gulf Oil Co., 619 F.2d 459, 468-69 (5th 
Cir. 1980).

And, of course, in that criminal contempt proceeding, the 
burden would be upon the attorney or party asserting their 
First Amendment rights.

The conditional defense is accompanied by a second 
chilling effect, the risk of trial on criminal contempt 
charges, with guilt or innocence possibly turning on



18

whether one’s assertion of constitutional protection 
has been made in “ good faith.” Moreover, the omis­
sions and ambiguities of the order and possible dif­
fering constructions as to when, if at all, one is pro­
tected against contempt, accentuate the chilling effect.21

21. For example, in addition to the general ban on 
communications, subparagraph (a) of paragraph (2) 
expressly forbids solicitation. Prudent counsel very 
well may conclude that he cannot safely rely upon as­
serting constitutional protection in the face of this spe­
cific ban. If there is a “ good faith” defense can counsel 
be in good faith if he does what he is expressly ordered 
not to do? As one commentator has noted:

The proviso exempting constitutionally protected 
communication does not eliminate, indeed, it high­
lights the overbreadth and resultant chilling effect 
of the Manual’s proposed rule.

Note, 88 Harv. L. Rev. 1911, 1922 N. 74 (1975). See 
also Zarate v. Younglove, 22 FEP Cases 1025, 1042 

(C.D. Cal, 1980).
Bernard v. Gulf Oil Co., 619 F.2d 459, 471 (5th Cir. 
1980). See also, Chicago Council o f  Lawyers v. Bauer, 
522 F.2d 242, 251 (7th Cir. 1975) (Burden upon one 
“ charged with violating such a rule . .  .” )
It is not at all certain that the “ good faith” belief in 

the First Amendment status of one’s non-judicially approved 
communications would be a defense in criminal contempt 
proceedings. Petitioners have so contended;2 but it is at 
best a potential defense and hardly security for the assertion 
of the First Amendment rights of respondent parties and 
their counsel. As one court has observed, this supposed 
defense “ simply exchanges overbreadth for vagueness.” 
Zarate v. Younglove, supra, 86 F.R.D. at 103-04. No one 
has contended that the mere filing of an alleged First Amend­
ment communication is a defense.

2Bernard v. Gulf Oil Co., 619 F2d 459, 470 (5th Cir. 1980).



19

V
THERE IS NO CONFLICT BETWEEN CIRCUITS AS 

TO THE VALIDITY OF THE 
DISTRICT COURT’S ORDER.

Petitioner asserts that there is a conflict between the 
Fifth Circuit’s en banc opinion herein and the Second Cir­
cuit’s opinion in Weight Watchers o f  Philadelphia, Inc. v. 
Weight Watchers International, Inc., 455 F.2d 770 (2d 
Cir. 1972). Brief fo r  Petitioners, pgs. 13, 21-22 n. 15. In 
fact, there is no conflict among the Circuits as to the validity 
of the substance of the order issued in this action. No Cir­
cuit Court has approved the order issued in this action and 
recommended in the Manual fo r  Complex Litigation, Part 
I, §1.41.3

The Fifth Circuit held the challenged order unconstitu­
tional in the instant action.4 The Third Circuit has held that 
the content of the order is neither authorized as a local dis­
trict court rule5 nor as a district court order.6 The Fourth 
Circuit and the Seventh Circuit have declared unconstitu­
tional bar association rules designed to achieve many of the 
same purposes as the challenged order but not aimed spe­
cifically at class actions.7

'The Manual cites Weight Watchers as authority for the almost unre- 
viewable discretion of the trial court to regulate communications be­
tween counsel and class members and potential class members. Manual 
for Complex Litigation, Part I, §1.31 n.33. At best, this is an overstate­
ment of the holding in Weight Watchers as discussed later in this sec­
tion, infra, at pg. 20.
4619F.2d at 477-78.
5Rodgers v. United States Steel Corp., 508 F.2d 152, 163-65 (3d Cir. 
1975). While declining to hold the rule unconstitutional, the court recog­
nized that it was a “ prior restraint.” 508 F.2d at 162, 164.
6Coles v. Marsh, 560 F.2d 186, 189 (3d Cir. 1977). Again declining to 
rule on a constitutional basis, the court sets forth a requirement for a 
“ specific record” showing the threat to the court, Id., which would 
satisfy First Amendment requirements.
1 Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979) (en banc); Chicago 
Council o f  Lawyers v. Bauer, 522 F.2d 252 (7t,h Cir. 1975).



20

The order at issue in Weight Watchers, supra, differed 
drastically from the order issued herein. The order chal­
lenged there was quite specific and designed to remedy a 
specific abuse.8 The Second Circuit held that the order was 
not a “ final decision” appealable under 28 U.S.C. § 12919 
nor reviewable under a petition for mandamus.10 Thus, the 
court did not consider the merits of the order involved here­
in. Considering the relatively insignificant effect of the order 
before the Second Circuit, we do not challenge that decision.

The only potential conflict among the Circuits is whether 
this order, when issued, is subject to review prior to a final 
judgment. The Third Circuit has held that the order, coupled 
with a local district court rule to the same effect, is not re- 
viewable under 28 U.S.C. §1292 (a) (1) but is reviewable 
under 28 U.S.C. §1651; therefore, they did not reach the 
question of whether the order [rule] is reviewable under 28 
U.S.C. §1291. Rodgers v. United States Steel Corporation, 
508 F.2d 152, 159-65 (3rd Cir. 1975); Coles v. Marsh, 560 
F.2d 196 (3rd Cir. 1975) (order reviewed on petition for 
writ of mandamus). The Second Circuit would perhaps re­
ject those results under the holding of Weight Watchers, 
supra; but the issue is totally different from that which they 
decided. Since the en banc decision below in this action, 
the Fifth Circuit has reviewed and vacated a local district 
court rule embodying the recommendations of the Manual 
under a petition for writ of mandamus. In re Norton, 622 
F.2d 917 (5th Cir. 1980).

There is a conflict among District Courts as to the va­
lidity of the order in issue. In Zarate v. Young love, supra,

8In the absence of the assigned trial judge, another district judge issued 
the order at issue herein to preserve the status quo. Upon the return of 
the assigned judge, a prompt hearing was held and a modified order 
issued which restored communication with class members with the right 
of the class members’ counsel to be present. It was only the latter order 
which was appealed. 455 F.2d at 772.
9455 F.2d at 722-73.
10455 F.2d at 775.



21

the court found the proposed order to be vague and over­
broad and posing an impermissible prior restraint. Absent 
a showing of a serious and imminent threat, the court de­
clined to issue the order. 86 F.R.D. at 94-106. The constitu­
tionality of a local district court rule adopted in accordance 
with the Manual’s recommendation was upheld in Waldo 
v. Lakeshore Estates, Inc. 433 F. Supp. 782 (E.D. La. 1977) 
(that rule would now be invalid under the Fifth Circuit de­
cision in this case). Without reaching the constitutional 
question, the District of Kansas upheld its authority to issue 
this same order. The court noted “ that plaintiff’s attorney 
files a very great number of asserted class actions in this 
court, and the nature and extent of his requested discovery 
becomes a point of contention in almost every one.” Peals 
v. Southwestern Bell Telephone Company, Case No. 78- 
68-C5, Slip opinion, September 13, 1977. The number and 
complexity of discovery requests in prior cases is hardly a 
proper subject of judicial notice and would scarcely seem 
to justify the imposition of the order in question.

As trial lawyers, we recognize the pressures under which 
a trial judge performs; so we do not mean to castigate the 
trial judge for issuing the Bernard order and ignoring the 
alternatives. He was absent when the original order was 
issued. Upon his return, the situation consisted of an exist­
ing order prohibiting communication, defense attorneys 
requesting far greater relief than the situation required—if 
any relief was required, and a recognized publication recom­
mending, even urging, that he issue the order and assuring 
him that his action was not reviewable.

Unfortunately, the result is unconstitutional.



22

CONCLUSION

Therefore, for the foregoing reasons, amicus curiae 
Association of Trial Lawyers of America respectfully sub­
mits that the judgment of the Court of Appeals for the 
Fifth Circuit should be affirmed.

Respectfully submitted,

Mayo L. Coiner
Memphis State University 
School of Law 
Memphis, Tennessee 38152 
(901) 454-2423
HARRY M. PHILO 
409 Griswold Street 
Detroit, Michigan 48226 
(313) 496-1330
Attorneys fo r  Amicus Curiae 

The Association o f  
Trial Lawyers o f  America



CERTIFICATE OF SERVICE
23

I hereby certify that on March 5, 1981, true and cor­
rect copies of the foregoing Brief for Amicus Curiae, the 
Association of Trial Lawyers of America, were deposited 
in the United States Post Office with first class postage per- 
paid and properly addressed to the following parties to this 
action and others required to be served:

Jack Greenberg 
Patrick O. Patterson 
10 Columbus Circle 
Suite 2030
New York, New York 10019
Barry L. Goldstein 
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005
Ulysses Gene Thibodeaux
425 Alamo Street
Lake Charles, Louisiana 70601
William  G. Duck 
P. O. Box 3725 
Houston, Texas 77001
Carl A. Parker 
449 Stadium Road 
Port Authur, Texas 77640
Leroy D. Clark 
Equal Employment 
Opportunity Commission 
2401 E Street, N.W. 
Washington, D.C. 20506
Drew S. Days, III 
Department of Justice 
Washington, D.C. 20530



24

Solicitor General 
Department of Justice 
Washington, D.C. 20530

I also certify that all parties required to be served have 
been served.



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