Jan 202014
 

Owen Courreges

If I ever become a judge, I think I’ll issue an injunction requiring a party not to speak about politics or religion and mandating that he quarter American soldiers in his house.  I’ll also tack on a provision stating that he not go near any polling station (so that he can’t vote in elections) and another requiring him to issue statements that incriminate himself.  If he violates it, I’ll send him to jail.

Apparently judges can do that.  Their power over the parties before them trumps the Constitution itself.

Today is Martin Luther King Day, the day we have set aside to honor the most notable hero of the American Civil Rights movement.   One of the most notable incidents in King’s life was when he was made to serve a brief sentence in Birmingham from which he wrote his now-iconic “Letter From a Birmingham Jail.”

However, few people realize exactly why King did time in that Birmingham jail.  It was not because King was convicted of a crime by some racist white jury.  Quite the opposite; it was because judges rallied the wagons to protect their own absolute authority to jail people for contempt of court, even if that violation consisted of the exercise of basic constitutional freedoms.

Here’s what happened: A judge in Birmingham issued a temporary restraining order forbidding King from marching, singing, or praying in public in Birmingham.  This order was the most unequivocal violation of the First Amendment imaginable.

Because it was a temporary restraining order, it was issued ex parte, or without a hearing – King didn’t have any opportunity to challenge it before it was issued.  Of course, the order never should have been issued because it clearly restricted King’s basic freedom to express himself.  To top it off, the timing was actually by design, as King had a protest march scheduled a day-and-a-half later.

King went forward with the demonstration anyway and was arrested for violating the illegal restraining order issued against him.  In his letter written from jail, King wrote: “I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”

The interesting issue in King’s case is that the highest law is supposed to be that of the U.S. Constitution, and by that standard, King was not violating the law.  Rather, he was violating an illegal order issued by a judge.  The only “law” he was disobeying was the collateral bar rule.

What’s the collateral bar rule? The collateral bar rule provides that a court order must be obeyed even if it is blatantly unconstitutional, so that the violator cannot challenge the order as unlawful if he violates it.  This means that constitutionally-protected activities can land you in jail with no hope of reversal.

The question eventually made it before the U.S. Supreme Court in Walker v. City of  Birmingham, 388 U.S. 207 (1967).  A noted proponent of civil rights, Justice Potter Stewart, wrote the majority opinion upholding King’s incarceration.  Stewart argued that the collateral bar rule is essential to the administration of justice, because “no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion.”

The problem, of course, is that when a judge can issue a recklessly illegal order without allowing those affected the benefit of a hearing, and a party is forced into a Catch-22 between acquiescing to a temporary deprivation of their liberty or risking jail time, the only administration occurring is the administration of injustice.  Although “no man can be judge of his own case,” requiring that men feebly submit to having their basic rights curtailed and become subjects of a rogue judge hardly constitutes a reasonable solution to the problem.

The brick wall that King ran into in Birmingham was the same he had faced before – whites who claimed to believe in basic rights but were willing to see them violated wholesale in the name of order.  As King wrote:

I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.”

The collateral bar rule is still a force in this country.  Some states have modified it somewhat, allowing exceptions in extreme case, but it is still in force here.  In United States v. Dickenson, 476 F.2d 373 (E.D. La. 1973), the Eastern District for the State of Louisiana upheld the re-imposition of a contempt citation against reporters for violating an illegal court order restraining anyone from revealing the contents of testimony in a case before the court.  That was a clear prior restraint on freedom of speech and therefore illegal, but the judge was arrogant and refused to correct his order.

This is one battle King never won, largely because it was not central to his fight.  It’s an abstruse legal issue, little more than a curiosity to most folks.  It is not, however, something to be overlooked.  It is the reason King was placed in the Birmingham jail.  It is the reason why supposedly liberal jurists were willing to explain away and defend his incarceration.

It was wrong then and it is wrong now.   As long as the judiciary prefers the imposition of its “order” to justice, as long as men cannot stand up for their own rights without being accused of judging their own case, there will be an unresolved injustice lingering in King’s legacy.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

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  • Deux amours

    People are free to ignore court orders, just as King did. Civil disobedience, when properly asserted, is a powerful legal statement. It is true that we have many dumb and crazy judges who issue all sorts of illegal orders that must be followed unless successfully appealed. It is true that one result may be that the the order is reversed but it should have been followed as a matter of law, I’m sure that some are absolutely null. If a judge orders you to shoot your wife, don’t do it. The question of what a person may do when unlawfully arrested is vexing, but I think the main line is that orders issued by duly constituted authorities must be obeyed, with exception taken later.

    • Owen Courrèges

      Deux,

      My point is that when a judge’s order is later found to be unconstitutional, a resulting contempt citation should be subject to reversal and a remedy should be provided. No “duly constituted author[ity]” should be above the constitution, not even temporarily. Nobody should accept the idea that an errant judge should be able to squelch whomever he wants and never be answerable to the people he harms.

      • Deux amours

        The judge in the King case was not able to squelch King, so we don’t have to accept that judges can squelch anyone they want. I’m not sure what remedy you contemplate, and I don’t agree that refusal to obey an order later reversed is never contempt. Legal proceedings take time to play out, and while they do, court orders should generally be obeyed. I don’t know the law, but I assume that even judges can be sued for damages in cases of actual malice or criminal conduct.

        • Owen Courrèges

          Deux,

          King was indeed squelched. He started to protest, and then they arrested him. Being arrested will tend to stop you from protesting very quickly.

          My point is that the highest law always needs to be the Constitution. Contempt citations based on unlawful orders, especially blatantly unlawful orders, should be reversed and a remedy provided (perhaps a vehicle for a civil rights lawsuit). No remedy at all exists now. People are expected to simply endure the deprivation of their Constitutional rights and accept the fact that they will never be compensated for that.

          And no, judicial immunity is absolute. They can never be sued for their conduct on the bench.

          • Deux amours

            . I think King’s protest was not stopped by his unlawful arrest. If anything it was enhanced, but assuming it was, giving him some remedy later would not have helped. Are you really suggesting that the judge should be sued for money damages?

          • Owen Courrèges

            Deux,

            King’s protest was indeed stopped. He stopped protesting when he was arrested. He could no longer march. Granted, the arrest actually enhanced his message in the end due to extrinsic factors, but that’s not usually what happens with court orders that violate the First Amendment.

            My position is that in extreme cases, where a judge has somebody arrested for the violation of an order than is the result of corruption or is clearly illegal, I think the judiciary should be liable for damages. I don’t think absolute judicial immunity is justified. And yes, having a remedy later does help — it provides compensation for the wrong and thus deters future violations.