Constitutionalizing the Collateral Bar Rule

Abstract

This Comment proposes constitutionalizing the collateral bar rule under the First Amendment by recognizing the rule’s operation as part of a system of prior restraint. Recognizing this fact would lead to the application of the First Amendment presumption against prior restraints to the collateral bar rule. In practical terms, this means that in a contempt proceeding where the order at issue operated as a prior restraint on an individual’s speech, the proponent of the order must bear the burden of proving that the collateral bar rule should apply under a two-part test. This shift properly places the burden on the order’s proponent — often the government — to prove that the injunction should be shielded from review in a collateral attack. Otherwise, courts will presume that the order can be challenged, allowing the contemnor to attack the violated order on its merits and attempt to reverse the contempt conviction. This new approach changes the collateral bar rule from an inflexible and frequently unjust part of a system of judicially imposed prior restraints, resolves the tension that arises from a doctrinal backdrop that strongly disfavors any support of prior restraints, and still retains much of what has recommended the rule to courts in the first place.