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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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