APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN T. REARDON, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Defendants, Rockford Newspapers, Inc., and Cove Hoover, its former publisher and president, appeal from an order finding them in contempt and fining the newspapers $2,000 and Hoover $1,000. This is the third in a series of appeals arising from plaintiff's charge that he was libeled by the defendants. Following the filing of Cooper's libel complaint a temporary injunction was issued at his request which enjoined the defendants from editorializing about the libel suit. A petition was thereafter filed by the plaintiff seeking to find defendants in contempt for publishing an editorial allegedly in violation of the temporary injunction. The hearing on the contempt petition was continued pending the resolution of the appeal from the temporary injunction order. Subsequently the original libel suit was dismissed for failure to state a cause of action. On plaintiff's appeal we affirmed the judgment of dismissal. (See Cooper v. Rockford Newspapers, Inc., 50 Ill. App.3d 247 (1977).) Prior to the contempt hearing, upon defendants' appeal from the order issuing the temporary injunction, we reversed on the basis that the restraint was unconstitutional on first amendment grounds. Cooper v. Rockford Newspapers, Inc., 34 Ill. App.3d 645.
Following our mandate in the appeal from the temporary injunction the trial court held a hearing on the contempt petition. This resulted in the order adjudging defendants in contempt which is the subject of this appeal. The Reporters Committee for Freedom of the Press and the Roger Baldwin Foundation of the American Civil Liberties Union have intervened and filed amicus curiae briefs. The Attorney General of the State of Illinois has intervened and filed a brief on behalf of the plaintiff.
The principal issue before us is whether the contempt order was proper following the reversal of the underlying injunction on constitutional grounds. An alternative question is whether the editorial violates the restraining order.
The defendants first contend that the temporary injunction which we found to be an unconstitutional prior restraint on publication is a void judgment or is "transparently invalid" and therefore cannot support a contempt judgment.
• 1 As a general rule, an injunction order entered by a court having jurisdiction over the person and the subject matter is not "void," and although it may be declared erroneous it, again as a general rule, must be obeyed and will support a contempt order. See, e.g., United Mine Workers of America Union Hospital v. UMW, 52 Ill.2d 496, 501 (1972); Board of Trustees v. Cook County Teachers Union, 42 Ill. App.3d 1056, 1063 (1976); People v. Mulgrew, 19 Ill. App.3d 327, 332 (1974). See also Walker v. City of Birmingham, 388 U.S. 307, 18 L.Ed.2d 1210, 87 S.Ct. 1824, 1829 (1967).
The trial court clearly had jurisdiction over the persons of the defendants in the original libel action who were found in contempt; and it had jurisdiction to enter the preliminary injunction order pursuant to sections 1 and 3-1 of the Injunction Act (Ill. Rev. Stat. 1975, ch. 69, pars. 1, 3-1).
The defendants do not dispute the general rule but argue that it has no application here. They contend that the temporary injunction which we reversed (34 Ill. App.3d 645) was beyond the court's authority to issue either on the theory that no prior restraint of publication can be constitutionally valid or on the basis that the particular order was transparently unconstitutional. Related to the latter argument is the claim that an order clearly in excess of the court's authority may be challenged by an appeal from an adjudication of contempt.
• 2 The argument that every prior restraint on press reporting is forbidden under the first amendment is not fully supported. In the cited case of Nebraska Press Association v. Stuart, 427 U.S. 539, 569, 49 L.Ed.2d 683, 704, 96 S.Ct. 2791, 2808 (1976), Mr. Chief Justice Burger states:
"However difficult it may be, we need not rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint. This Court has frequently denied that First Amendment rights are absolute and has consistently rejected the proposition that a prior restraint can never be employed."
Likewise in our opinion, filed prior to the Nebraska Press Association case, which ruled on the preliminary injunction, we did not rule out the possibility that an order could be drawn "so as not to prohibit speech which will be within first amendment rights and which will not prevent a fair trial." (Cooper v. Rockford Newspapers, Inc., 34 Ill. App.3d 645, 652 (1975).) We therefore conclude that the order is not void since the court had jurisdiction over the subject matter and the parties.
There is dicta in Walker v. City of Birmingham, 388 U.S. 307, 315, 18 L. Ed.2d 1210, 1217, 81 S.Ct. 1824, 1829 (1967) ("And this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity") from which it might be concluded that an order clearly invalid on its face may be tested by violation without subjecting a person to punishment for contempt. However, even if we assume this as an exception to the general rule that orders of a court with jurisdiction over the person and subject matter must be obeyed until modified or reversed, the state of the law prior to Nebraska Press Association could not be fairly said to have made the order transparently invalid or frivolous at the time it was issued.
The argument that an order may be so clearly in excess of a court's lawful authority as to permit a challenge to it by an appeal from an order of contempt for violating the order is supported in some jurisdictions. (See In re Berry, 68 Cal.2d 137, 147, 436 P.2d 273, 280, 65 Cal.Rptr. 273, 280, (1968); State ex rel. Superior Court v. Sperry, 79 Wn.2d 69, 78, 483 P.2d 608, 613 (1971); Wood v. Goodson, 253 Ark. 196, 203, 485 S.W.2d 213, 217 (1972).) We have found no similar expression of the doctrine of "excess of jurisdiction" as a defense to the charge of disobedience of a court order in the Illinois cases.
There is, however, a line of Illinois cases cited by the defendants in which alleged violations of prior restraints have not resulted in punishment for contempt. Collateral attack on the validity of pretrial production orders has been permitted as a defense to a charge of contempt for failure to produce. (See Stimpert v. Abdnour, 24 Ill.2d 26, 27 (1962); People ex rel. Hawthorne v. Hamilton, 9 Ill. App.3d 551, 553 (1973); People v. Smith, 5 Ill. App.3d 429, 430 (1972). Cf. People v. Ryan, 30 Ill.2d 456, 462 (1964).) These cases apparently rest on the fact that the production order itself, unlike the injunction order before us, is not itself appealable. The appeal from the contempt citation therefore has been held to be a permissible way to test the validity of the production order.
People v. Sears, 49 Ill.2d 14 (1971), does give some support to defendants' argument although it is perhaps distinguishable. The jurisdiction over the party and the subject matter was certainly present in the classical ...