Do they defiantly put themselves “above the law”?

An editor chooses to stand on principles, but he risks a jail term for himself and his newspaper’s reputation.

By Charles McCorkle Hauser

Charles McCorkle Hauser, who works as a writing coach and consultant, recently retired as executive editor of the Providence (RI) Journal Bulletin.

Author bio information is from the time of article submission and may not be current.

FineLine: The Newsletter On Journalism Ethics, vol. 1, no. 8 (November 1989), p. 7.

This case was produced for FineLine, a publication of Billy Goat Strut Publishing, 600 East Main Street, Louisville, Kentucky 40202. Reprinted with the permission of Billy Goat Strut Publishing. This case may be reproduced for classroom and research purposes. Publication of this case in electronic or printed form requires written permission from the publisher and Indiana University. An exception is granted for use in readers designed for specific academic courses.

As a matter of principle, I disobeyed the order of a federal District Court judge.

By that act of disobedience I said, in effect, that journalists are different, that we are not bound by the same rules as other people, that we have a higher duty – to our readers and to the U.S. Constitution.

By that act I put at risk my professional reputation and the reputation of the Providence Journal-Bulletin, a 160-year-old newspaper with a law-and- order editorial stance.

Those who practice civil disobedience – even journalists – must be willing to accept the consequences of their acts. Although I had no desire to go to jail to stand up for my beliefs, I was ready to do so.

But as the editor of an establishment newspaper, had I put myself “above the law,” as the judge asked me on the witness stand?

The case was a mix of legal and ethical problems. Let me tell you what happened, and how I answered the judge’s question.

In 1962, the FBI, without a warrant, broke into the Providence office of Raymond L.S. Patriarca, godfather of the New England mob, and planted a listening device. For three years, the FBI monitored everything said in that office.

In 1985, after Patriarca’s death, we used the Freedom of Information Act to obtain summaries of the bugged conversations.

Patriarca’s son, known as “Junior,” asked the U.S. District Court to restrain us from publishing them, on privacy grounds because of their illegal origin.

Although nothing in the summaries linked Junior with criminal activities, they were full of embarrassing anecdotal material, such as the time his father put pressure on the governor to keep Junior from flunking out of the University of Rhode Island.

Judge Francis J. Boyle of Providence issued a gag order and set a hearing for two days later. Press time was only hours away. We had to decide whether to defy the judge and publish.

We knew we were right, constitutionally, and the judge’s order would be lifted or overturned. So what was the harm in waiting for the hearing two days later?

Timeliness was a crucial issue – not because of the 20-year-old material in the story, but because allowing a court to interfere with time of publication would be abdicating our responsibility. If we did not stand on principle, our failure could come back to haunt us in the future, in a case where timeliness was essential. On the eve of an election, for example.

The publisher was concerned that our civil disobedience would be compared to that of Rhode Island schoolteachers, whom we had castigated editorially for striking in violation of state law. But the teachers had put personal gain ahead of their legal duty; we felt we were being true to our duty to serve our readers and to uphold the Constitution.

Late in the evening, close to deadline, the publisher gave his OK. I went to press with the banned story on Page 1.

Judge Boyle reacted harshly to our disobedience. He found us guilty of contempt, fined the paper $100,000, and sentenced me to 18 months, suspended if I performed 200 hours of community service.

The convictions were reversed by the Court of Appeals. It found the gag order “transparently invalid,” and said we were justified in ignoring it.

Finally, in 1988, the Supreme Court heard the judge’s appeal, and threw it out on procedural grounds. It had taken us two and a half years to be vindicated.

What had we accomplished?

We were proud that we had stood our ground on principle, and had not been deterred in our duty to publish. And we had made the legal point that judges may not abuse their power to restrain the press. Unfortunately, editors outside the 1st Circuit will have to make their own decisions on whether to risk punishment for principle.

But even in the newspaper industry, we did not receive unanimous approval. Anthony Lewis commented in The New York Times, “If it became the practice to ignore court orders in the belief that they will later be found invalid, the system would not work.”

And that may have been what Judge Boyle had in mind when he asked me, as I sat on the witness stand in his court: “When you violated my order, weren’t you putting yourself above the law?”

“No sir,” I responded. “I felt that I was obeying the highest law of the land – the U.S. Constitution.”