Court adopts the dictum of the First Circuit, and holds that, even if Terry believed all or part of the Preliminary Injunction to be transparently invalid, he was obligated to make a good faith effort to seek emergency relief from the Second Circuit before violating the injunction.
In the instant case, Terry, despite advice and detailed instructions from the Court in this regard,
made no such effort to directly appeal the constitutionality of the Preliminary Injunction. Therefore, even if all or part of the Preliminary Injunction were "transparently invalid," he cannot avail himself of this exception to the collateral bar rule.
In further support of this motion, Terry points to a separate provision of the Preliminary Injunction which provides that, "nothing in the Court's Order should be construed to limit defendants and those acting in concert with them from exercising their legitimate First Amendment rights." Preliminary Injunction at 5 ("the First Amendment provision"). He asserts that, because this provision was included in the Preliminary Injunction, consideration of his First Amendment arguments is necessary, by definition, in order to determine the scope of the injunction and to determine whether defendant's alleged activity violates that injunction.
The Preliminary Injunction's prohibition against "presenting or confronting . . . Governor Bill Clinton . . . with any fetus or fetuses or fetal remains in the City of New York" ("the Restraint on presentation Provision") was the subject of considerable discussion at the July 13 Hearing, and if counsel for Terry had any doubt as to this prohibition's meaning or scope, he had ample opportunity to raise questions and seek clarification at that proceeding. Indeed, the language first proposed by the Court at the July 13 Hearing was more limited: it would have enjoined defendant from "confronting. . . Governor Bill Clinton. . . ." July 13 Hearing Transcript at 48. The Court then engaged in the following discussion with Terry's counsel:
Mr. Mylott: With respect to adding this new paragraph, I do not see the need for it, your Honor, and I have trouble with the word "confronting." I do not know what that means. . . . So I think that using the word "confronting" is vague your Honor. I would oppose that. I oppose the entire paragraph as totally unnecessary.
The Court: Would you prefer the words "presenting or confronting"? In other words that pretty much covers the waterfront, presenting or confronting either with any, certainly.
. . . .
Mr. Mylott: Without waiving any right to appeal this issue and present my total opposition to the whole issue, and not to drag out this proceeding any farther, I will for this purpose consent to your "presenting and confronting" language.
Id. at 52-53. On the basis of this dialogue, the Court modified its proposed language for the preliminary injunction by adding a prohibition on "presenting." Terry's counsel did not indicate any perceived ambiguity or vagueness in that word choice. Furthermore, even if a party believes an injunction to be unconstitutionally vague, "the way to raise that question [is] to apply to the . . . courts to have the injunction modified or dissolved," not to raise that point collaterally in a contempt proceeding. Walker v. Birmingham, 388 U.S. at 317.
There is no indication from the July 13 Hearing that the Court found the Restraint on Presentation Provision to be negated by, or inconsistent with, the First Amendment Provision. If counsel for Terry had believed these two provisions to be inconsistent or that the latter negated the former, this assertion should have been raised either at the July 13 Hearing or in an appeal to the Second Circuit prior to the alleged incident with Governor Clinton. Neither course of action was taken.
This Court finds that Terry is alleged to have violated a clear and unambiguous provision of the preliminary injunction, namely a prohibition on "presenting or confronting . . . Governor Bill Clinton . . . with any fetus or fetuses or fetal remains in the City of New York." This prohibition on speech involving conduct was not "transparently invalid" nor did the Court indicate that it was inconsistent with, or negated by, the First Amendment Provision. The time to present arguments based upon the constitutionality or internal consistency of all or part of the Preliminary Injunction was at the time of its issuance or on appeal of the Preliminary Injunction prior to violating its terms. Accordingly, the motion to present constitutional arguments is denied.
For the reasons stated herein, defendant's motions to recuse, pursuant to 28 U.S.C. §§ 144 and 455(a) & (b)(1), and to present arguments that the Preliminary Injunction was in violation of the First Amendment are denied.
It is so ordered.
Dated: New York, New York
October 6, 1992
Robert J. Ward