Before Campbell, Chief Judge, Robson, Acting Chief Judge, and
Perry and Napoli, District Judges, the Executive Commitee.
The opinion of the court was delivered by: Per Curiam.
MEMORANDUM, FINDINGS OF FACT, CONCLUSION OF LAW AND ORDER
On November 6, 1969 respondent Frank W. Oliver, a member of the
bar of this court, on behalf of a number of other attorneys
practicing in criminal cases, filed with this court a suit
captioned Petition in Re: Trials of Pending
Future Criminal Cases, No. 69 C 2339, 306 F. Supp. 333 and
requested consideration and relief. Essentially the petition
stated concern that criminal cases were likely to be affected by
what the petitioners seemed to consider "extraordinary events"
which they attributed to the trial of the case of United States
of America v. David Dellinger et al No. 69 CR 180.
Immediately after filing said petition, and before the court
could possibly give the petition any consideration whatsoever,
respondent conducted a prearranged conference with the
communications media, appeared on television and issued public
statements all of which related to and commented upon the
petition he had just filed with the court.
The petition filed by Mr. Oliver was in due course considered
and determined by this Committee to be frivolous and impertinent
and was ordered stricken. (Executive Committee Order, November
13, 1969). In that order we noted that respondent had issued
statements to the press and other media in this district, on
November 6, 1969, in violation of the Canons of Professional
On November 14, 1969 this Committee issued a citation ordering
respondent to show cause why he should not be disciplined for
violation of the Canons of Professional Ethics and of this
court's mandate to the bar promulgated as a Policy Statement on
November 12, 1965 in response to a directive of the Judicial
Conference of the United States through its Committee on Free
Press — Fair Trial. That mandate reads as follows:
"The members of the bar of this court are reminded
that they as well as the Judges should, in accordance
with the Canons of Judicial and Legal Ethics, refrain
from commenting on and attempting to explain through
any source of news media, action taken or anticipated
in any pending litigation. Extra-judicial comments
and out of court explanations or statements by the
bar notwithstanding their being an attempt to avoid
criticism frequently tend to create rather than
resolve misconceptions and suspicions in the mind of
Violations of this policy by any member of the bar of
this court would be a subject of discipline pursuant
to Rule 8."
At the hearing held upon the Show Cause Order Mr. Oliver filed
a written response in which he admitted that at the time of his
cited misconduct "he knew of the provisions of the applicable
rules" and that "prior to the filing of the petition,
arrangements were made for his interview by the news media, all
with his consent." He further unequivocally states, "That at the
time of that interview he was aware that the conduct in which he
was engaged was violative of the Policy Statement of this court
dated November 12, 1965." Furthermore respondent boldly informed
the court, "that he intends to continue to make such statements
to the news media and other persons who will listen, as seemed to
him to touch upon matters of public importance, whether or not
they concern the judiciary or the administration of justice, with
the single exception that as in the past he will make no
statements that will tend to contaminate or improperly influence
any trier of facts."
The only defense raised by respondent is a defiant statement
that his conduct was a constitutionally protected activity.
Respondent also filed a two page brief in which he lists the
First Amendment to the United States Constitution and a number of
First Amendment decisions.
In regard to that case, Mr. Oliver admits that he was fully
aware of the mandate of this court prohibiting the comments
complained of, yet made those comments anyway — in total
disregard thereof and in open defiance of the authority and duty
of this court to enforce its mandate. His conduct is aggravated
by his contumacious pronouncement that he intends to continue
violating in the future. We find no reasons, constitutional or
otherwise, justifying this contemptuous and insolent conduct.
We find nothing in our Policy Statement, in the report of the
Judicial Conference upon which it is based, or in the Canons of
Professional Ethics which impinge upon First Amendment freedoms.
We have not unreasonably limited the rights of members of the bar
of this court to discuss any public issues they feel merit their
wisdom. We have only asked and have been required to order our
bar that matters they submit to this court to be litigated in a
judicial proceedings not be litigated in the communications media
while they are pending in court. If any member of the bar feels
compelled by his great charisma or self admitted dramatic ability
to litigate his case in the forum of public opinion via the
communications media instead of in court he need only withdraw as
active counsel in his case.
Nor has respondent any right to select those orders of this
court which he chooses to obey and those he shall disregard
simply on his belief, no matter how well founded, that certain of
the orders of this court may be void or invalid. Our system of
justice provides adequate means to challenge in an orderly
manner, any laws, rules or orders of court which may be thought
to be invalid. Respondent has chosen to ignore these procedures
and to take upon himself the right to decide those he shall obey
and those he ...