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65 Wash. L. Rev. 477 (1990)
Advocacy and Contempt: Constitutional Limitations on the Judicial Contempt Power

handle is hein.journals/washlr65 and id is 491 raw text is: Copyright @ 1990 by Washington Law Review Association ADVOCACY AND CONTEMPT: CONSTITUTIONAL LIMITATIONS ON THE JUDICIAL CONTEMPT POWER PART ONE: THE CONFLICT BETWEEN ADVOCACY AND CONTEMPT Louis S. Raveson* Abstract The courts' inherent power to punish misconduct that interferes with the judi- cial process as criminal contempt often conflicts with attorneys' first amendment and due process rights, and their clients' sixth amendment rights to vigorous legal representation. In balancing these competing interests, the Supreme Court has employed seemingly diverse standards to demarcate the constitutional limitations on the substantive scope of the contempt power. Professor Raveson argues that the Constitution should limit the contempt power so that it may only be used to punish actual obstructions of the adminis- tration of justice. He maintains that because the goals of our system of justice are fre- quently in opposition, the appropriate dividing line between permissible advocacy and obstruction can be drawn only by balancing the various goals of a trial in a way that maximizes the value of these interests to the system of justice as a whole. The proper balance, in turn, can only be achieved by including within the calculus of contempt recog- nition of the actual experiences of trial participants. Professor Raveson concludes that appropriate consideration of the value of advocacy to the processes of justice requires that advocacy sometimes be permitted to interfere with competing aims of a trial. Realization of the full value of advocacy and maximization of the various goals of our trial system require that a buffer zone be constructed surrounding valuable advocacy to afford ade- quate protection from punishment and to diminish deterrence. I. INTRODUCTION .................................... 478 II. THE JUDICIAL POWER OF CONTEMPT AND THE CONSTITUTIONAL LIMITATIONS ON THAT POWER .............................................. 485 A. The Courts' Contempt Power ...................... 485 B. Constitutional Limitations on the Power of Contempt ......................................... 489 1. Procedural Due Process ........................ 491 2. The First Amendment Right of Expression ..... 497 3. The Constitutional Protection of Advocacy ..... 506 4. The Adequacy of Notice ....................... 523 * Associate Professor of Law and Director, Urban Legal Clinic, Rutgers University School of Law-Newark. B.A. 1972, Antioch; J.D. 1976, Rutgers University-Newark. The author would like to express his deep appreciation for the insights, editorial suggestions, and support of Susan Abraham, Patrick Malone, Jonathan Hyman, Eric Neiwer, Susan Oxford, Richard Shapiro, Nadine Taub, George Thomas, and the many students whose invaluable assistance made production of this Article possible: Jonathan Askin, Linda Katz, Thomas Richardson, Lisa Smith, and Anne Williams. 477

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