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

    No. 80-441

3)n tfje
Supreme Court of t\)t fEnitetr states:

OCTOBER TERM, 1980

Gulf O il C ompany, et al.,
Petitioners,

W esley P. Bernard, et al.,
Respondents.

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

BRIEF OF THE CHICAGO COUNCIL 
OF LAWYERS AS AMICUS CURIAE IN SUPPORT OF 

RESPONDENTS

R ichard F. W att 
Martha A. M ills 
Ellen J. Morgan
C otton, W att, J ones, K ing & Bowlus 
One IBM Plaza, Suite 4750 
Chicago, Illinois 60611 
(312) 467-0590 

Attorneys for Amicus Curiae

RENAISSANCE PRINTING COMPANY, lb W. ADAMS 
9TH FLOOR, DETROIT, MICHIGAN 48226 — PHONE 964-3185



TABLE OF CONTENTS

Table of Authoriti 
Statement of Inter 
Summary of Argumen 

Argument

es 1

est 1
t 9

14
I. General Restrictions on

Communications Concerning 
Class Litigation Unconsti­
tutionally Impinge Upon 
First Amendment Freedoms 14
A. Communications by

Parties and their 
Counsel are Protected 
by the First 
Amendment 14

B. A Blanket Restriction 
On All Communications 
Between Parties, or 
Their Counsel, and Class 
Members Violates Estab­
lished Constitutional 
Standards in the Area
of First Amendment Rights 24

1. The Non-Communication 
Order is Not Justified 
by the Need to Protect
a Countervailing Compelling 
Interest 24

2. The Restriction on All 
Communications With Class 
Members is Impermissibly 30 
Overbroad



32

3. The Non-Communication 
Order is Unconstitu­
tionally Vague

II. Broad Restrictions, by Order 
or Rule, Upon Communications 
Between Parties or Their 
Counsel and Actual or Poten­
tial Class Members Exceed the 
Authority of the District 
Courts 37

Conclusion

Certificate of Service
49
51



TABLE OF AUTHORITIES

CASES

Bates v. Little Rock, 361 U.S.
516 (1959) 27

Bridges v. California, 314 U.S.
252 (1941) 26

Brotherhood of Railroad Trainmen 
v. Virginia, 377 U.S. 1
(1964) 15-16, 19

Califano v. Yamasaki, 442 U.S. 
682 (1979) 40-41

Chicago Council of Lawyers v. 
Bauer, 522 F.2d 242 (7th 
Cir. 1975), cert, denied, 
427 U.S. 912 (1976) 6, 20, 25, 27,

Coles v. Marsh, 560 F.2d 186 
(3d Cir.), cert, denied 
sub nom., Blue Cross v. 
Marsh, 434 U.S. 985 (1977)) 48

Contract Buyers League v. F&F 
Investment, 48 F.R.D. 7 
(N.D. 111. 1969) 39

Craig v. Harney, 331 U.S. 367 
(1947) 26

Deposit Guaranty National Bank
v. Roper, 445 U.S. 326 
(1980) 40

Dubose v. Harris, 434 F. Supp. 
227 (D. Conn. 1977) 39

-i-



Grayned v. City of Rockford,
408 U.S. 104 (1972) 33

Great Western Cities, Inc. v. 
Binstein, 476 F. Supp. 
827 (N.D. 111.) aff'd., 
614 F.2d 775 (7th Cir. 
1979) 18, 23

Hohman v. Packard Instrument 
Company, 399 F.2d 711 
(7th Cir. 1968) 39

In re Primus, 436 U.S. 412 
(1978) 19, 21

Maine v. Thiboutot, 48 U.S.L.W. 
4859 (U.S. June 25, 1980) 
(No. 79-838) 23-24

NAACP v. Button, 371 U.S. 415 
(1963) 17, 21

Nebraska Press Association 
v. Stuart, 427 U.S. 
539 (1976) 25

New York Times Co. v. United 
States, 403 U.S. 713 
(1971) 25

Ohralik v. Ohio State Bar 
Association, 436 U.S. 
447 (1978) 21, 22,

Orqanization for a Better
Austin v. Keefe, 402
U.S. 415 (1971) 25

-li-



26
Pennekamp v. Florida, 328 U.S. 331 

(1946)

Procunier v. Martinez, 416
U.S. 396 (1974) 30

Rodgers v. United States Steel 
Corporation, 508 F.2d 
152 (3d Cir.), cert, 
denied, 423 U.S. 832 
(1975) 26, 28

Rutherford v. United Staets,
429 F. Supp. 506 
(W.D. Okla. 1977) 39

Schaumburg v. Citizens for 
a Better Environment, 
444 U.S. 620 (1980) 31, 35

Shelton v. Tucker, 364 U.S. 
479 (1960) 30-31

Talley v. California, 362 U.S. 
60 (1960) 32

Thomas v. Collins, 323 U.S. 
516 (1945) 17-18,

United Mine Workers v. Illinois 
Bar Association, 389 U.S. 
217 (1967) 17-18

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

- i i i -

16, 17



Winters v. New York, 333 U.S.
33507 (1948)

Wood v . Georgia, 370 U.S. 375
(1962) 26

Zarate v’. Younqlove, 86 F.R.D.
80 (C.D. Cal. 1980) 29, 38

CONSTITUTIONAL PROVISIONS, 
STATUTES, RULES AND 

REGULATIONS

United States Constitution,
First Amendment passim

28 U. S.C. §2071 38

42 U. S.C. §1983 23

42 U. S.C. §1988 23

Fed. R. Civ . P. 23 passim

Fed. R. Civ P . 83 37-38

Civil. Rule 22, United States District
Court for the Northenn District
of 11linois (vacated) passim

-lv-



OTHER AUTHORITIES

Developments in the Law —
Class Actions, 89 Harv.
L. Rev. 1318 (1976)

Manual for Complex Litigation,
1 J. Moore, Moore1s 
Federal Practice, Pt. I 
and II, §1.41 (2d ed. 1980)

7 C. Wright and A. Miller, 
Federal Practice and 
Procedure (197~2j

46-47

passim

39

-v-



The Chicago Council of Lawyers, with 
the written consent of all parties, sub­

mits this brief as amicus curiae, in 

support of the Respondents.
INTEREST OF THE AMICUS CURIAE 

The Chicago Council of Lawyers (the 

"Council"), a member of the American Bar 

Association, is an association of approx­

imately 1300 lawyers, most of whom are 
admitted to practice before the United 
States District Court for the Northern 
District of Illinois (the "District 
Court"). Many members of the Council 
practice regularly as counsel in class 
litigation before the District Court. 
Council members have represented both 
classes and individuals in class actions 
involving alleged violations of the United 

States Constitution and various civil 

rights statutes as well as in class suits 

arising under other federal legislation.



Until recently, the speech activities 

of Council members and other attorneys 

involved in class litigation before the 

District Court were governed by Civil 

Rule 22 of the United States District 
Court for the Northern District of 

Illinois ("Rule 22").  ̂ Rule 22, entitled

1 Rule 22 provided as follows:
In every potential and 

actual class action under Rule 
23, F.R. Civ. P. all parties 
thereto and their counsel are 
hereby forbidden, directly or 
indirectly, orally or in writing, 
to communicate concerning such 
action with any potential or 
actual class member not a formal 
party to the action without the 
consent of and approval of the 
communication by order of the 
Court. Any such proposed com­
munication shall be presented 
to the Court in writing with 
a designation of or description 
of all addressees and with a
(footnote continued on next page)

-2-



motion and proposed order for 
prior approval by the Court of 
the proposed communication and 
proposed addressees. The commu­
nications forbidden by this rule, 
include, but are not limited to, 
(a) solicitation directly or 
indirectly of legal representa­
tion 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) solicitation by 
formal parties to the class 
action of requests by class mem­
bers to opt out in class actions 
under subparagraphs(b)(3) of 
Rule 23, F.R.Civ.P.; and (d) 
communications from counsel or 
a party which may tend to mis­
represent the status, purposes 
and effects of the action, and 
of actual or potential Court 
orders therein, which may create 
impressions tending, without 
cause, to reflect adversely on 
any party, any counsel, the 
Court, or the administration of 
justice. The obligations and 
prohibitions of this rule are 
not exclusive. All other ethical, 
legal and equitable obligations 
are unaffected by this rule.

(footnote continued on next page)

-3-



This rule does not forbid 
(1) communications between an 
attorney and his client or a 
prospective client, who has on 
the initiative of the client or 
prospective client consulted 
with, employed or proposed to 
employ the attorney, or (2) 
communications occurring in the 
regular course of business or 
in the performance of the duties 
of a public office or agency 
(such as the Attorney General) 
which do not have the effect of 
soliciting representation by 
counsel, or misrepresenting the 
status, purposes or effect of 
the action and orders therein.

-4-



For the Prevention of Potential Abuses

of Class Actions," was patterned after 

the rule recommended in the Manual for 
Complex Litigation^ and was substantially 

identical to the non-communication order 

entered by District Court Judge Joe J. 
Fisher in the case at bar.3 it subjected 

to the prior approval of the District

2 Manual for Complex Litigation, 
reprinted in 1 J. Moore, Moore's Federal 
Practice Pt. II, §1.41 (2d ed. 1980) * 3
[hereinafter cited as Manual].

3 Unlike Judge Fisher's order and 
the Manual's proposed rule, Rule 22 did 
not contain an exception for constitu­
tionally protected speech. However, as 
argued at p. 32, n. 5, infra, that excep­
tion does not cure the constitutional 
infirmities of a rule or order generally 
restricting communications.

-5-



Court almost all communications between 

formal parties in an actual or potential 

class action, or their counsel, and ac­

tual or potential members of the class.
The Council's interest in the issues 

raised by restrictions upon communications 

of litigants and their attorneys has been 

long-standing. In Chicago Council of 

Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 
1975), cert, denied, 427 U.S. 912 (1976), 

it successfully challenged the constitu­
tional validity of several local rules 
which severely curtailed the rights of 
litigants and attorneys to comment on 
pending criminal and civil litigation. 
Following the Bauer decision, the Council 

urged the Executive Committee of the 

District Court to repeal Rule 22. In 
requesting abrogation of the rule, the 

Council took the position adopted in the

-6-



en banc opinion of the Court of Appeals
for the Fifth Circuit in the case at bar. 

It argued that Rule 22, like the rules 

struck down in Bauer, was an unconsti­

tutionally overbroad and vague prior 
restraint on the First Amendment rights 

of attorneys, litigants, and potential 
litigants. It contended also that the 
enactment of Rule 22 exceeded the rule- 
making authority of the district courts 
in that it conflicted with the objectives 

of Fed. R. Civ. P. 23.
The Council's most recent action 

concerning Rule 22 was the submission of 
an amicus curiae brief in American Civil 

Liberties Union, et al, v. McMillen, 7 9- 

1576 (7th Cir. 1979), in support of a 

petition for issuance of a writ of manda­
mus directing the District Court to re-

-7



scind an order entered pursuant to Rule 
22 and to repeal Rule 22 itself. The 

order prohibited the parties and their 
attorneys in Jane Does, et al. v. City of 

Chicago, et al., 79 C 789 (N.D. 111. E. 

Div.), a class action challenging the 

constitutionality of strip searches con­

ducted by members of the Chicago Police 
Department, from "soliciting" class mem­

bers. The petition for a writ of manda­

mus was denied.
In January, 1981, the judges of the 

District Court repealed Rule 22, after 
repeated requests by the Council and in 

light of the Fifth Circuit's holding in 
this case that a non-communication order 

virtually identical to Rule 22 was an 
unconstitutional infringement upon the 

First Amendment rights of attorneys and 
litigants. The outcome of this petition,

-8-



therefore, has special significance in 

the Northern District of Illinois. This 

Court's decision on the validity of non­

communication orders will likely deter­

mine the future here of a rule which 

profoundly affects the rights of Council 
members and their clients to communicate 
freely regarding class litigation in 

which they are involved. The Council, 
thus, has a direct and immediate interest 
in the resolution of this case.

SUMMARY OF ARGUMENT 
Restrictions on communications be­

tween parties to an actual or potential 

class action, or their counsel, and 
individual members of the actual or po­

tential class seriously impinge upon 

their well-established constitutional 
rights to free speech, association, and 
meaningful access to the courts. Under

-9-



either prior or subsequent restraint 

analysis, a court may not restrain such 

communications in the absence of a clear 
showing that they are in direct and 

serious conflict with an important public 
or private interest and that such restric­
tion is necessary to protect that 

interest. While the fair administration 

of justice is admittedly a significant 
governmental interest, it may not be 

invoked as a talismanic justification for 
the wholesale rejection of First Amend­

ment rights. The constitution requires, 
moreover, that any ban on communications 

be tailored narrowly and specifically to 
avoid unnecessarily inhibiting the exercise 
of First Amendment freedoms.

The non-communication order entered 
in the case at bar, like the model rule 
and order after which it is patterned, 
does not satisfy constitutional standards.

-10-



It is based solely on speculative and 
theoretical fears that the parties or 
their attorneys may engage in abuses of 

the class action device sometime in the 
future. The general proscription against 

all communications, direct and indirect, 
is both vague and overbroad. It encompasses 

speech that presents no threat to the 
fair administration of justice as well as 
communications that will actually further 

that goal. The order improperly deters 
activities falling within the protection 

of the First Amendment. The Court of 
Appeals for the Fifth Circuit correctly 
held that such wide-ranging restrictions 
on communication exceed constitutional 

1 imitations.
In addition, general orders prohib­

iting all communications concerning class 

actions are in direct conflict with the
-11



policies embodied in Fed. R. Civ. P. 23 
and therefore, exceed the authority of 

the district courts to enter orders and 

enact rules so long as they are consis­
tent with the Federal Rules of Civil 

Procedure. Rule 23 was intended to pro­
vide a mechanism for resolving suits 

involving common factual and legal issues 
and common claims for relief in a manner 

that would be economical, efficient, and 
effective for both the parties involved 
and the judicial system.

A communications bar presents formi­
dable obstacles to the achievement of 

these objectives. It deprives the parties 
their counsel, and the court of essential 
information in deciding whether to proceed 
on a class basis. it interferes with the 

proper maintenance of a class action by 
preventing free development of litigation 

strategy, discovery, and trial preparation
-12-



It inhibits the flow of information to 
class members on matters affecting their 

interests. A communications bar thus, 

hinders meaningful access to the courts 
for both class representatives and class 

members.
While the district courts are not 

without power to monitor communications 
in the class action context, they may do 

so only in a manner that comports with 

Rule 23. This requires a specific record 
showing that the communications in ques­
tion constitute particular abuses of the 
class action device. Any restriction on 
communications must, futhermore, be drawn 
to provide the narrowest possible relief 
from such abuses. The order entered in 

the case at bar fails to satisfy these 
requirements.

The en banc decision of the Court of

-13-



Appeals for the Fifth Circuit invali­

dating the non-communication order should 

be affirmed.

ARGUMENT
I

GENERAL RESTRICTIONS ON 
COMMUNICATIONS CONCERNING CLASS 
LITIGATION UNCONSTITUTIONALLY 

IMPINGE UPON FIRST 
AMENDMENT FREEDOMS

A. COMMUNICATIONS BY PARTIES TO CLASS 
LITIGATION AND THEIR COUNSEL ARE 
PROTECTED BY THE FIRST AMENDMENT

The order entered in the case at 
bar, like the proposed order and rule 
found in the Manual, generally prohibits 
parties to a class action and their 
attorneys from communicating, directly or 
indirectly, with potential or actual 
members of the class without the prior 

approval of the district court. It then 

sets forth a non-exclusive list of pro­
hibited communications: (1) solicitation

of legal representation, (2) solicitation
-14-



of fees and expenses from class members, 

(3) solicitation of requests to opt 

out from the class action, and (4) commu 
nications tending to misrepresent the 

nature and status of the litigation.

The communicative activities pro­

scribed by this order, as well as the 

order and rule recommended in the Manual 
are protected by the First Amendment to 
the United States Constitution. As this 

Court has said,

It cannot be seriously 
doubted that the First Amend­
ment's guarantees of free 
speech, petition and assembly 
give [ individuals] the right 
to gather together for the 
lawful purpose of helping and 
advising one another in asserting 
the rights Congress gave them..., 
statutory rights which would 
be vain and futile if [indivi­
duals] could not talk together 
freely as to the best course 
to follow....And the right... 
to advise concerning the need 
for legal assistance - and 
most importantly, what lawyers 
[an individual] could confi­
dently rely on - is an insep-

-15-



arable party of this 
constitutionally guaranteed 
right to assist and advise 
each other.

Brotherhood of Railroad Trainmen v .

Virginia, 377 U.S. 1, 5-6 (1964). "Col­
lective activity undertaken to obtain 

meaningful access to the courts is a 
fundamental right within the protection 

of the First Amendment." United Transpor­
tation Union v. Michigan Bar, 401 U.S.
576 , 585 (1971).4 it includes efforts to 4

4 Petitioners' suggestion at p.
29, n. 29 of their brief that restrictions 
on communications after initiation of 
a lawsuit do not impinge upon this right 
ignores that access to the courts must 
be meaningful. A ban on communications 
can effectively deprive formal parties 
and class members of meaningful access 
to the courts for the redress of grievances. 
See discussion infra, pp. 41-45.

-16-



finance the costs of litigation. "That 

right [of access to the courts] would 

be a hollow promise if courts could 

deny associations of workers or others 
the means of establishing their members 

to meet the costs of legal representation." 
401 U.S. at 585-586.

The First Amendment's protection 

of such activity does not depend on 

the nature of the underlying rights 
sought to be vindicated. The present 

litigation involves the assertion of 
civil rights, and therefore, falls squarely 
within this Court's decision in NAACP 
v. Button, 391 U.S. 415 (1963). However,

the First Amendment does 
not protect speech and assembly 
only to the extent it can be 
characterized as political.
"Great secular causes with small 
ones, are guarded. The grievances 
for redress of which the right 
of petition was insured, and 
with it, the right of assembly, 
are not solely religious or 
political ones. And the rights

-17-



of free speech and a free press 
are not confined to any field 
of human interest."

United Mine Workers v. Illinois Bar

Association, 389 U.S. 217, 224 (1967)
(quoting Thomas v. Collins, 323 U.S. 516,
531 (1945)). See also Great Western
Cities, Inc, v. Binstein, 476 F. Supp.

827, 834 (N.D. 111.), aff'd, 614 F.2d 775
(7th Cir. 1979) (according First Amendment
protection to activities of association

organized to pursue legal remedies for
claimed securities fraud against members
and to advise others of their rights and
recommend legal counsel). Thus, the
First Amendment protects communications
relating to "civil rights" as well as
"commercial" class litigation.

The constitutional protection afforded
the associational activities of parties
involved in class litigation extends to
lawyers retained by them to represent

-18-



their interests. In Brotherhood of Rail-

road Trainmen v. Virginia, this Court 

found constitutionally protected a 
union's activities which involved 

advising injured union members not to 

settle any claims for damages without 
first seeing a lawyer and recommending 

that they consult counsel selected by the 
union. The Court held that such activity 

could not be enjoined and noted, "of 
course, lawyers accepting employment 
under this constitutionally protected 
plan have a like protection which the 
State cannot abridge." 377 U.S. at 8.
See also In re Primus, 436 U.S. 412, 431- 
432 (1978). The extension of such protec­
tion to lawyers recognizes that an attorney 
speaks for his client regarding all matters 

for which he is retained.
-19-



Protection of lawyers' communications 

regarding class litigation derives from 
practical necessity as well. As the 

Court of Appeals for the Seventh Circuit 

stated in invalidating a local rule 
prohibiting comment by attorneys involved 
in civil litigation:

Sometimes a class of poor 
or powerless citizens challenges, 
by way of a civil suit, actions 
taken by our established private 
or semi-private institutions or 
governmental entities.... The 
lawyer for the class plaintiffs 
may be the only articulate 
voice for that side of the 
case. Therefore, we should be 
extremely skeptical about any 
rule that silences that voice.

Chicago Council of Lawyers v. Bauer,
522 F.2d at 258.

The solicitation activity prohibited 

in this case also is protected by the 
First Amendment. Any alleged acts of 
solicitation by the respondents' attorneys 
in this litigation involving charges of

-20-



racial discrimination in employment are 

plainly within the rule, enunciated by 

this Court in NAACP v. Button and In re 

Primus, that solicitation of legal repre­

sentation for the purpose of vindicating 

political and civil rights is constitutionally 

protected. The fact that respondents 
have requested money damages and attorneys' 
fees does not deprive solicitation activity 
of constitutional protection. See In 
re Primus, 436 U.S. at 429-430.

In fact, the Council believes that 
the distinction between "public interest" 
lawsuits and "commercial" litigation, drawn 
by this Court in Ohralik v. Ohio State 
Bar Association, 436 U.S. 447 (1978), is 
not appropriate in the context of solici­

tation by counsel for formal parties in 

purported or actual class litigation.
The class action situation is quite different

-21



from the circumstances of Ohralik, where

the solicitation activity in question was 

directed at initially obtaining a client 
to institute a lawsuit. In contrast, the 

attorney for the formal party already has 
an individual client, whose interests he 
is bound to pursue, and depending on the 

stage of the litigation, either purports, 
or has been judicially determined, to 

represent adequately the interests of the 
class. Solicitation of additional class 
representatives is usually for the purpose 
of insuring sufficient numbers to with­

stand the effects of attrition and possible 
dismissal of a suit. Such activity by an 
attorney already retained to represent a 

formal party whose interests are potentially 

or actually the same as those of solicited 
class members hardly presents the dangers 
of stirring up litigation, assertion of 

fraudulent claims, misrepresentation,
-22-



undue influence, and overreaching poten­

tially posed by solicitation of a prospec­

tive client to institute a lawsuit. Ohralik, 
436 U.S. at 461. See Great Western Cities, 

Inc, v. Einstein, 476 F. Supp. at 835.

There is no justification for condi­
tioning the right to engage in solicitation 
on the nature of the rights asserted 
in a class action or the motivation of 

legal counsel. Even those who favor 

a communications bar do not distinguish 

between types of litigation in terms of 
the frequency of potential abuses of the 
class action device. Moreover, the line 
drawn between "commercial" and "civil 
rights" litigation is necessarily arbitrary 
to some extent, and a distinction based 

upon the motivation of legal counsel 
has become blurred by the increasing 

availability of court-ordered fee awards 
under 42 U.S.C. §1988. See Maine v.

-23-



Thiboutot, 48 U.S.L.W. 4859 (U.S. June
25, 1980) (No. 79-838), (42 U.S.C. §1983 
encompasses violation of any federal 

statute and availability of attorneys* 

fees awards under 42 U.S.C. §1988 is not 

limited to civil rights actions).

The First Amendment freedoms of 
parties to class actions and their counsel 

are admittedly not absolute. However, 
any restrictions on such rights must 

satisfy strict constitutional standards. 
Whether analyzed as a prior or subsequent 
restraint on speech, the order entered in 
the case at bar fails to fulfill such 
requirements.
B. A BLANKET RESTRICTION ON ALL COMMUNI­

CATIONS BETWEEN PARTIES, OR THEIR 
COUNSEL, AND CLASS MEMBERS VIOLATES 
ESTABLISHED CONSTITUTIONAL STANDARDS 
IN THE AREA OF FIRST AMENDMENT 
RIGHTS

1. The Non-Communication Order 
Is Not Justified By The Need 
To Protect A Compelling Counter­
vailing Interest

-24-



The non-communication order entered
in this case is a classic example of a 

prior restraint, "a predetermined judicial 

prohibition restraining specified expres­

sion. ..." Chicago Council of Lawyers v. 

Bauer, 522 F.2d at 248; see Nebraska 
Press Association v. Stuart, 427 U .S.
539, 556 (1976). As such, it bears a 

heavy presumption against its constitu­
tional validity. Id. at 558; Organization 
for a Better Austin v. Keefe, 402 U.S. 

415, 419 (1971). The proponents of a

prior restraint must demonstrate that the 
expression sought to be restrained "surely 

[will] result in direct, immediate and 

irreparable damage" to a compelling 
public or private interest, New York 

Times Co. v. United States, 403 U.S. 713, 
730 (1971) (Stewart, J. concurring), or
that it presents a clear and present

-25-



danger to an asserted interest. Thomas
v. Collins, 323 U.S. 516, 530 (1945).

While the fair and proper administra­

tion of justice may justify some restraints 

on speech, "it does not authorize any 

blanket exception to the First Amendment." 
Rodgers v. United States Steel Corporation, 
508 F.2d 152, 162 (3d Cir.), cert, denied, 

423 U.S. 832 (1975) (citing Wood v. Georgia, 
370 U.S. 375 (1962); Craig v. Harney, 331 

U.S. 367 (1947); Pennekamp v. Florida,
328 U.S. 331 (1946); Bridges v. California, 
314 U.S. 252 (1941)). Free speech rights 
"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." Craig v.

Harney, 331 U.S. at 373.

Even if rules or orders restricting 
communications concerning class actions

- 2 6 -



may not be characterized as prior restraints, 
Chicago Council of Lawyers v. Bauer,
522 F.2d at 248-49, they are still subject 

to exacting judicial scrutiny. Before 

a court can so limit fundamental rights, 

there must be a showing that the restraint 

on speech protects "a subordinating 
interest that is compelling." Bates 
v. Little Rock, 361, U.S. 516, 524 (1959).

In the case at bar, the Fifth Circuit 
noted that the district court entered 
the non-communication order in the absence 
of proof of the petitioners' unsworn 
charges of abuses by the respondents' 
attorneys and without making findings 
of fact. 619 F.2d at 464. It concluded 
that the court based its order on the 

recommendations of the Manual that district 

courts enact rules or enter orders limiting 
communications in actual or potential

-27-



class actions in order to protect against 

potential abuses of the class action 
device. 619 F.2d at 466.

The fact that abuses of the class 

action device have occurred in scattered 
cases or the remote possibility that the 
attorneys or parties in this action might 
commit some unknown abuse in the future 
does not establish a threat to the fair 
administration of justice sufficient to 

justify the entry of a wide-ranging 
communications ban. Moreover, many of 
the so-called abuses mentioned in the 

Manual in support of a communications 
bar, e.g., seeking a declaratory judgment 

as to the liability of one defendant, 

seeking to withdraw class allegations in 

an effort to effectuate an individual 
settlement, and negotiating a settlement 
with a second set of attorneys after the

-28-



first set had declined the offer, would 
not be prevented by a non-communication 

order. It is questionable whether other 

potential abuses mentioned in the Manual, 

e.g., solicitation of additional plain­
tiffs in class actions already filed, are 

actually abuses at all. See Zarate v. 
Younglove, 86 F.R.D., 80, 98 (C.D. Ca.
1980) .

Thus, it is unclear what interests 

the order is intended to protect, how the 
prohibited communications threaten any 
legitimate interest, or whether the order 
is a reasonable means of protecting a 
countervailing interest. Restriction of 

First Amendment rights cannot be bottomed 

on such uncertainty, especially in light 

of the Manual 1s recognition that "generally, 
the experience of the courts in class 
actions has been favorable.... [A]buses

-29-



are the exception in class action litiga­

tion rather than the rule." Id. at 36- 

37 .
2. The Restriction On All Communi­

cations With Class Members 
Is Impermissibly Overbroad

The First Amendment requires that 

restrictions on speech and associational 

activities be drawn carefully to avoid 
needless inhibition of constitutional 
rights. "[T]he limitation of First 
Amendment freedoms must be no greater 

than is necessary or essential to the 
protection of the particular government 
interest involved." Procunier v. Martinez, 

416 U.S. 396, 413 (1974). A legitimate 
and substantial government interest 

may not be protected "by means that 
broadly stifle fundamental personal 
liberties when the end can be narrowly 
achieved. The breadth of legislative 
abridgement must be viewed in light

-30-



of less drastic means for achieving 

the same basic purpose." Shelton v.

Tucker, 364 U.S. 479, 488 (1960). See 

Schaumburg v. Citizens for a Better 

Environment, 444 U.S. 620, 637 (1980).
The order here, like its counterparts 

in the Manual, suffers from overbreadth.
The prohibition against all communications, 
direct or indirect, undoubtedly restricts 

protected speech and associational activities 

that pose no conceivable threat to the 
fair administration of justice or any 
other legitimate interest. In fact, 
it encompasses communications that actually 

would facilitate the fair and effective 
functioning of the judicial system.
Only a narrowly-tailored order limiting 
only those communications which constitute 
specific abuses of the class action

-31-



device can satisfy constitutional stan­

dards.5 Limitations on freedom of speech 

and association must not go beyond what 
is necessary to protect an established 

countervailing interest. Talley v.

California, 362 U.S. 60, 64-65 (1960).
3. The Non-Communication Order 

Is Unconstitutionally Vague

Restrictions on fundamental liberties 

must satisfy constitutional standards

5 The special treatment of consti­
tutionally protected speech in the order, 
and in the most recent version of the 
rule proposed in the Manual, does not 
cure its overbreadth. An attorney or 
party who communicates with class members 
in the belief that such communications 
are constitutionally protected may, 
nonetheless, be called upon to establish 
the basis for his belief, thus risking 
a possible contempt citation. The chilling 
effect on the exercise of First Amendment 
rights is surely as great as an outright 
prohibition of all speech.

-32-



of specificity. Specificity is especially 
critical where, as here, rights of free 

speech and association are involved.

[W]here a vague statute 
"abut[s] upon sensitive areas 
of basic First Amendment freedoms," 
it "operates to inhibit the exer­
cise of those freedoms." Uncer­
tain meanings inevitably lead 
citizens to 'steer far wider of 
the unlawful zone'...than if the 
boundaries of the forbidden areas 
were clearly marked."

Grayned v. City of Rockford, 408 U.S.

104, 109 (1972) (footnotes omitted). A

restriction on speech "so vague and

indefinite in form...as to permit within

the scope of its language the punishment
of incidents fairly within the protection

of the guarantee of free speech is void
on its face as contrary to the Fourteenth

Amendment." Winters v. New York, 333
U.S. 507 , 509 (1948) .

The order entered here, like its
model in the Manual, is replete with

-33-



vague terms offering no guidance to 
attorneys, parties, or judges as to 

what behavior is permitted and what 
is prohibited. For example, the "indirect" 

communication prohibited by the order 
is susceptible of no limiting definition.

Under this language, respondents or 

their attorneys risk violating the order 

if they respond to a reporter's questions 
concerning the class action, because 

they thereby may be communicating "indirectly" 

with class members. The ban on all 
communications certainly would encompass 

requests for information from class 
members. A lawyer therefore, risks 
punishment if he seeks information relevant 

to his client's case from persons with 

knowledge of the facts because they may 

be potential class members. As a result 
he may not satisfy his obligation to his 

client to investigate the facts fully.
-34-



Even the specific, but non-inclusive, 
prohibitions of the order are subject to 

widely varying interpretations. The line 

between prohibited "solicitation" and the 

mere transmission of information is diffi­

cult to draw, and the two messages are 

often part and parcel of the same communi­

cation.® The order offers no guidelines

® This Court recently reiterated 
its view that solicitation is often in­
extricably entwined with First Amendment 
activity:

Solicitating financial 
support is undoubtedly subject 
to reasonable regulation but 
the latter must be undertaken 
with due regard for the reality 
that solicitation is character­
istically intertwined with 
informative and perhaps persuasive 
speech seeking support for 
particular causes or for particular 
views on economic, political 
or social issues, and for the 
reality that without solicitation 
the flow of information would 
likely cease.

Schaumburg v. Citizens for a Better Environ­
ment , 444 U.S. at 632.

-35-



for distinction. The prohibition on 

communications that tend to misrepresent 

the action or reflect adversely on the 

court, the parties, or their counsel 

likewise provide no indication of what 
is prohibited and what is permitted.

Such vagueness forces parties and their 
attorneys to refrain from speaking at 

all in order to protect themselves against 

possible remote effects on their comments. 
See Chicago Council of Lawyers v, Bauer,
522 F .2d at 259 (prohibition against 

public comment on matter that is "reasonably 

likely to interfere with a fair trial" 
is unconstitutionally vague).

The order entered in this case, 

as well as the proposed rule and order 

after which it is modelled, do not 

comport with constitutional standards 
where restriction of First Amendment

-36-



freedoms is involved. Specific remedies 

and sanctions for specific abuses, such 

as discipline of attorneys who exceed 

ethical limitations in communicating with 

class members, are available and satisfy 

constitutional requirements. Abuses of 
the class action device are a legitimate 

area of concern for the district courts.
At the same time, no court can ignore 

speech and associational rights guaranteed 
by the First Amendment in attempting to 
deal with such abuses.

II

BROAD RESTRICTIONS, BY ORDER 
OR RULE, UPON COMMUNICATIONS 

BETWEEN PARTIES OR THEIR COUNSEL 
AND ACTUAL OR POTENTIAL CLASS 
MEMBERS EXCEED THE AUTHORITY 

OF THE DISTRICT COURTS

The authority of the district courts 

to prescribe rules and enter orders re­
garding class litigation is limited by 
Fed. R. Civ. P. 23(d) and 83 and by

-37-



28 U.S.C. §2071. Rule 23(d) states

that the court may make "appropriate 

orders" in the conduct of class actions.

Rule 83 permits the district courts to 

"make and amend rules governing [their] 
practice not inconsistent with" the Federal 
Rules of Civil Procedure, and in cases 

not provided for by rule, to "regulate 
their practice in any manner not inconsis­

tent with these rules." Section 2071 

allows them to prescribe rules which 
"shall be consistent with Acts of Congress 

and rules of practice and procedure pre­

scribed by the Supreme Court." Rules and 
orders affecting class litigation must, 

therefore, comport with the policies of 

Fed. R. Civ. P. 23, which governs the 

initiation and maintenance of class actions. 

Rodgers v. United States Steel Corporation; 
Zarate v. Younglove, 86 F.R.D. 80, 93-94

-38-



(C.D. Cal. 1980) .

The objectives of Rule 23 include

the efficient resolution 
of the claims and liabilities 
of many individuals in a single 
action, the elimination of repe­
titious litigation and possibly 
inconsistent adjudications in­
volving common questions, related 
events, or requests for similar 
relief, and the establishment of 
an effective procedure for those 
whose economic position is such 
that it is unrealistic to expect 
them to seek to vindicate their 
rights in separate lawsuits.

7 C. Wright and A. Miller, Federal Practice 

and Procedure §1754, p. 343 (1972) [herein­

after cited as "Wright and Miller"]- See 
also Hohmann v. Packard Instrument Company, 

399 F .2d 711, 714-715 (7th Cir. 1968); 

Dubose v. Harris, 434 F. Supp. 227, 230 

(D. Conn. 1977); Rutherford v. United 
States, 429 F. Supp. 506, 508 (W.D. Okla. 

1977) (citing Wright and Miller); Contract 

Buyers League v. F&F Investment, 48 

F.R.D. 7, 12-13 (N.D. 111. 1969). This

-39



Court recently summar ized the purpose of 

class actions brought pursuant to Fed. R. 

Civ. P. 23(b)(3):

The aggregation of indivi­
dual claims in the context of a 
class-wide suit is an evolutionary 
response to the existence of 
injuries unremedied by the regula­
tory action of government. Where 
it is not economically feasible 
to obtain relief within the 
traditional framework of a mul­
tiplicity of small individual 
suits for damages, aggrieved 
persons may be without any 
effective redress unless they 
may employ the class-action 
device.

Deposit Guaranty National Bank v. Roper, 

445 U.S. 326, 339 (1980).
In Cal ifano v. Yamasaki, 442 U.S. 

682, 701 (1979), it commented upon the 
desirability of class litigation in 

certain cases:

[W]e note that class relief 
for claims such as those presented 
by respondents in this case is 
peculiarly appropriate. The issues 
involved are common to the class 
as a whole. They turn on questions 

-40-



of law applicable in the same 
manner to each member of the 
class....[E]ach individual 
claim has little monetary 
value. It is unlikely that 
differences in the factual^ 
background on each claim will 
affect the outcome of the legal 
issue. And the class-action 
device saves the resources of 
both the courts and the parties 
by permitting an issue poten­
tially affecting every social 
security beneficiary to be 
litigated in an economical 
fashion under Rule 23.
Rules and orders, such as those 

recommended in the Manual, the order 
entered in the case at bar, and former 

Rule 22 of the District Court for the 

Northern District of Illinois, which 
impose far-reaching restrictions on the 

ability of litigants and attorneys in 

actual or purported class actions to 
communicate with class members, conflict 

squarely with the policies embodied in 

Rule 23 and severely impede the proper 
conduct of class litigation. By limiting 

virtually all discussion concerning class

-41



actions they deprive Rule 23 of much of 

its force. Such restrictions deny parties 

and their counsel access to crucial infor­

mation relating to the number of potential 

claimants or defendants involved in a 
particular action, the size and similarity 
of their claims or defenses, and the 

appropriateness of a formal party as 

class representative. The proponents 
of a communications bar have themselves 

recognized that "[i]n many such cases 
class members will have knowledge of 

facts relevant to the litigation and to 

require a party to develop the case without 
contact with such witnesses may well 

constitute a denial of due process." Manual, 
p. 34 .

The lack of such information makes 

it exceedingly difficult, if not impossible, 
for parties and their attorneys to make 

an informed decision as to the propriety
-42-



and feasibility of proceeding with liti­

gation on a class basis. Restrictions 

on communication thus, hinder meaningful 

access to the courts by actual or potential 

members of a class, see Zarate v. Younglove, 

86 F.R.D. at 97 (it is especially desirable 

to involve class members in Rule 23(b)(2) 

class actions because they do not have 
the right to opt out of the class), and 
discourage the resolution of disputes 
common to many in the class action form.

Restrictions on communication also 

interfere with the effective, fair and 

efficient functioning of the judicial 
system. The trial court's decision on 

the propriety of class certification 

depends largely on evidence provided by 

counsel for the formal parties. If counsel 
cannot freely obtain information concerning 

the size of a potential class, the nature of 

the claims involved, the interests of the

-43-



potential class members, and the adequacy 
of the class representation, such infor­

mation will, most likely, never reach the 

court. The unavailability of information 
on the very factors which govern the 

outcome of the class certification issue 
may often lead the district court to an 

improper decision to certify a class or 
to deny class certification.

The hazards created by broad non­
communication orders do not cease with 
class certification. Once a class is 

certified, restrictions on communication 
with class members present formidable 

obstacles to class representatives and 

their counsel in fulfilling their obliga­
tions to members of the class and in 

effectively conducting litigation. Such 

restrictions interfere with their duty to 

"fairly and adequately protect the interests
-44-



of the class" as required by Fed. R. Civ.
P. 23(a) (4). A communications bar disrupts 

the development of litigation strategy, 

discovery, and trial preparation for 
plaintiffs and defendants alike, and 

inhibits the flow of information to class 

members on matters affecting their interests. 

Moreover, unless a sufficient number of 

class representatives can be obtained 

through free communication with class 
members, the inevitable effects of attri­
tion, particularly in long, complex cases, 

may result in dismissal of a meritorious 
suit.

The fact that communications are 

subjected to the prior approval of the 
district court rather than absolutely 

prohibited does not mitigate the deleterious 

effects on the commencement and maintenance 
of class actions. A requirement that all

-45-



proposed communications be submitted to 

the court and opposing counsel may deter 

counsel for class representatives from 

making necessary contacts with class 

members in light of the duty to maintain 

the confidentiality of attorney-client 

communications. Furthermore, obtaining 

prior court approval of every proposed 
communication is not feasible when such 
communications may necessarily be on an 

ongoing basis. A rule or order that 

requires prior court approval of all 

communications with class members will, 

in a practical sense, stop such contacts 
almost as effectively as an absolute 
prohibition on communications.

In a frequently-cited, comprehensive, 

and thoughtful article entitled Developments 

in the Law -- Class Actions, 89 Harv. L.

Rev. 1318 (1976), the authors have summarized
-46



the serious problems that orders such as 

the one involved here pose for the effec­

tive maintenance of class actions:

The present practice in 
some federal courts of prohi­
biting communications with the 
class by both the class attorney 
and the class opponent in the 
absence of prior court approval, 
although responsive to concerns 
of abuse, seems overbroad and 
potentially dysfunctional. Class 
attorneys and class opponents 
may limit their communications 
with a class in order to avoid 
the time consuming process of 
obtaining prior judicial clear­
ance and limit the risk of anta­
gonizing the judge. As a result, 
class attorneys may be handicapped 
in their efforts to obtain a 
picture of the different situa­
tions of class members, informa­
tion-gather ing and necessary 
business communications by class 
opponents may be impaired, class 
members may be denied legal 
advice, and the court itself may 
be deprived of information poten­
tially relevant to its litigation 
decision.

Id. at 1600-01.

The district courts are not absolutely 
without power to monitor communications

-47-



in the class action context. However, in 

order to avoid conflict with the important 

policies of Rule 23, any restriction on 

communications concerning actual or poten­

tial class litigation must be based upon 

"a specific record showing by the moving 
party of the particular abuses by which 
it is threatened," and must be formulated 

to afford "the narrowest possible relief 

which would protect the respective parties. 

Coles v. Marsh, 560 F.2d 186, 189 (3d 

Cir.) , cert. denied sub nom., Blue Cross 

v. Marsh, 434 U.S. 985 (1977). This 
standard is not met where, as here, 

a non-communication order is based solely 
on theoretical abuses or the occurrence 

of activities which encourage participa­

tion in the litigation of common claims 

and provide potential class members with 
information concerning the nature of a 

suit commenced on their behalf. Id.
-48-



Rules which generally constrain 

communications between formal parties or 

their counsel and class members in every 

potential and actual class action are 

necessarily made in the absence of any 

specific showing of actual or imminent 

abuse of the class action device. Hence, 

they too must fall when viewed in the 

light of the important objectives served 
by Rule 23. Rodgers v. United States 

Steel Corporation, 508 F.2d at 163-164.
CONCLUSION

For the foregoing reasons, amicus 
curiae the Chicago Council of Lawyers 

respectfully urges that the decision

-49-



of the Court of Appeals below should 

be affirmed.

Dated:

Respectfully submitted,

Richard F. Watt 
Martha A. Mills 
Ellen J. Morgan 
COTTON, WATT, JONES,
KING & BOWLUS 

One IBM Plaza 
Suite 4750
Chicago, Illinois 60611 
(312) 467-0590
Attorneys for Amicus 
Curiae The Chicago 
Council of Lawyers

March 2, 1981

-50-



CERTIFICATE OF SERVICE

It is hereby certified that three 

(3) copies of the foregoing Brief of 

the Chicago Council of Lawyers as Amicus 

Curiae in Support of Respondents have 

been served this 2nd day of March, 1981, 

by United States Mail, postage prepaid, 
upon the following counsel of records:

Patrick 0. Patterson, Esq.
10 Columbus Circle
Suite 2030
New York, New York 10019

William G. Duck, Esq.
Post Office Box 3725
Houston, Texas 77001

Carl A. Parker, Esq.
449 Stadium Road
Post Arthur, Texas 77640

Martha A. Mills 
Attorneys for Amicus 
Curiae

-51-