concurring in part and dissenting in part:
I concur in Parts I through III of the majority opinion. I dissent from Part IV, which upholds the validity of the district court’s order restricting communications by named parties and their counsel with any actual or potential class member not a formal party.
The issue is important. The critical part of the order in question follows the form suggested in the Manual for Complex Litigation, 1977 ed., Pt. 2, § 1.41.1 This ease presents in this circuit for the first time the validity of such an order. Another circuit has taken a position contrary to the majority’s decision.2
*1263In other cases I have vigorously asserted the power of the district court to manage class actions and other complex cases.3 But, in my opinion, the restraints imposed in this case contravene Rule 23, F.R.Civ.P., and violate freedom of speech and freedom of association as guaranteed by our Constitution.
I. The history
Understanding the issues requires a more complete history than the brief statement made by the majority. In April 1976 Gulf and EEOC entered into a conciliation agreement covering alleged racial discrimination by Gulf against black employees at its Port Arthur, Texas plant, pursuant to which Gulf agreed to cease alleged discriminatory practices, establish an affirmative action program, and offer back pay to alleged discriminatees, ranging, for various employees and various periods, between $2.81 per month of service and $5.62 per month of service. The affected employees were not parties to the agreement. Gulf agreed to notify affected employees of the back pay agreed upon; failure of the employee to respond would be regarded as acceptance. According to Gulf, back pay was offered to 614 present and former black employees of the Port Arthur plant.4
In May 1976, while implementation of the conciliation agreement was in progress, six present or retired black employees of the Port Arthur plant brought this class suit, under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, on behalf of black employees, black former employees of the plant, and black applicants rejected for employment with Gulf Oil Company (not limited to the Port Arthur plant). Plaintiffs were represented by Stella Morrison, of Port Arthur, Charles E. Cotton, of New Orleans, and three New York attorneys from the NAACP Legal Defense and Education Fund, Jack Greenberg, Barry L. Goldstein and Ulysses Gene Thibodeaux. Plaintiffs asked injunctive and declaratory relief and damages. The defendants are Gulf and the Oil, Chemical and Atomic Workers’ Union. Plaintiffs charged that Gulf discriminated against blacks in hiring and job assignments, employed discriminatory tests, paid unequal pay, employed racially tainted promotion and progression practices, denied training to blacks, refused seniority to blacks, and discriminatorily discharged and disciplined blacks. They alleged that the union had agreed to, acquiesced in or condoned Gulf’s discriminatory practices.
According to affidavits later filed by plaintiffs’ counsel, a meeting of black employees who were members of the alleged class was held May 22 at the request of the named plaintiffs, plaintiffs’ counsel were invited to attend, and some did attend. Gulf was served with process May 24. On May 27, before Gulf filed responsive pleadings, it filed a two-sentence, unsworn request that the court enter an order limiting communications by parties and their counsel with actual or potential class members. The motion was accompanied by an un-sworn brief asserting that Ulysses Gene Thibodeaux, one of plaintiffs’ attorneys, had recommended to actual and potential class members at a meeting that they not sign receipts and releases sent them pursuant to the conciliation agreement. Further, the brief said that it had been reported to Gulf that Thibodeaux advised the group that they should mail back to Gulf checks received pursuant to the conciliation agreement because he could recover twice as much for them by the pending suit. Gulf asserted in its brief that these actions violated standards imposed on attorneys by law and by the Canons of Ethics. It asserted that an order of the court was necessary to prevent further communication of the type alleged and that the statements by *1264plaintiffs’ attorney would prejudice its defense of the case and the conciliation efforts. In its brief Gulf said that when the summons was served on it approximately 452 of the 643 employees entitled to back pay had received checks and executed general releases.
On May 28, after oral argument by the parties, District Judge Steger entered a temporary order effective until Chief Judge Fisher could return and assume control and administration of the case. His order is substantially the same as paragraph 2 of the modified order, which appears as note 9 of the majority opinion, that is, it contained the restraints without the exceptions. Judge Steger made no findings.
On June 8, Gulf filed an unverified motion to modify the temporary order to permit it to resume offering back pay awards and to receive receipts and releases, as provided by the conciliation agreement. Gulf added, again by an unsworn brief attached to its motion, a new allegation of misconduct by saying that it had been reported to Gulf that Thibodeaux had recommended to the persons at the meeting that even if an employee had signed a receipt and release he should return his check to Gulf. Gulf also filed an affidavit from EEOC stating that it felt the issues in this suit were “almost identical” to those embraced by the conciliation agreement.
Plaintiffs filed an unsworn responsive brief, squarely raising the constitutionality of the order and the district court’s authority to issue it. Judge Fisher conducted a hearing on June 10 and allowed time for additional briefs. With their next brief plaintiffs filed affidavits by Thibodeaux, Morrison and Goldstein, covering several points. Thibodeaux denied that he advised potential class members not to accept Gulf’s offer of settlement and denied that he stated that plaintiffs’ counsel could get employees twice as much back pay by suit. According to the affidavits, none of the lawyers accepted or expected compensation from the named plaintiffs or any additional named plaintiffs or from members of the class; the only anticipated compensation was by attorneys’ fees awarded by the court against the defendants, and in the case of the LDF attorneys any fees awarded them would be paid over to LDF. The affidavits also set out that it was necessary for plaintiffs and their counsel to communicate with members of the proposed class to investigate systematic and individual racial discrimination, complete discovery, and define issues in the case, and that, because of the back pay offers made by Gulf under the conciliation agreement, it was of crucial importance that plaintiffs’ attorneys be able to inform class members of their rights and answer their questions and concerns. In their brief, plaintiffs asserted that many of the issues (specifying several of them) encompassed by the suit were not included within the matters covered by the conciliation agreement.
On June 22, without requiring Gulf to verify its charges of improper and unethical conduct by Thibodeaux, and without making findings of fact, Judge Fisher entered the modified order. He rejected plaintiffs’ contention that the order was constitutionally invalid.
I turn to the contents of the modified order. Its opening language is plenary in form. I discuss below the exceptions that appear further on in the order.
The persons enjoined are “all parties hereto and their counsel.”5
The subject matter forbidden is communications “concerning [this] action . without the consent and approval of the proposed communication and proposed addressees by order of this court.” More specific communications which the proscription includes, but is not limited to, are: (a) solicitation of legal representation of poten*1265tial and actual class members not formal parties; (b) solicitation of fees and expenses; (c) solicitation of requests by class members to opt out; (d) “communications from counsel or a party which may tend to misrepresent the status, purposes and effects of the class action, and of any actual or potential Court orders therein which may create impressions tending, without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice.”
The means of communication forbidden are “directly or indirectly, orally or in writing.”
The persons with whom communication is forbidden are potential and actual class members.
The second subparagraph of 1 (2) sets out exceptions as provided in the Manuals suggested form: communications between attorney and client, and attorney and prospective client when initiated by the prospective client, and communications in the regular course of business. The third subparagraph of H (2) is the “constitutional right” exception:
If any party or counsel for a party asserts a constitutional right to communicate with any member of the class without prior restraint and does so communicate pursuant to that asserted right, he shall within five days after such communication file with the Court a copy of such communication, if in writing, or an accurate and substantially complete summary of the communication if oral.
In the modified order Judge Fisher added to the Manual’s proposed form a provision that the clerk mail a notice to employees covered by the conciliation agreement stating that they had 45 days in which to accept Gulf’s offer and that all who delivered receipts and releases within 55 days would be deemed to have accepted. See f (4) and K (9) of the order. In 1 (8) the court restated the restraints on communication that it had imposed in the earlier part of the order.
On July 6, pursuant to the “constitutional right” exception, plaintiffs moved for permission for themselves and their counsel to communicate with members of the proposed class. They attached the following notice which they proposed to distribute and asserted that they were constitutionally entitled to distribute it:
Illustration to follow.
*1266
Plaintiffs alleged in their motion that neither Gulf’s offer to employees nor the notice sent by the clerk explained the terms of the conciliation agreement. They asked the court to declare that the notice was constitutionally protected. They noted that under the “constitutional right” exception to the order they were entitled to distribute the notice and file it with the court within five days thereafter. However, because of what they considered to be the vagueness of the order, and “for reasons of prudence,” the plaintiffs asked for the court’s guidance. Their reasons for asking guidance were not unreasonable. The first subpara-graph of If (2) of the order required that any proposed communication be presented in writing for prior approval. Paragraph (3) restated all the restraints. The “constitutional right” exception appeared to permit retrospective filing in place of prior court approval. But counsel already charged with unethical and illegal conduct cannot be faulted for electing not to gamble on their *1267interpretation of the order or upon the possibility that if they sent the notice without preclearance the court might find it not constitutionally protected and their assertion of constitutional protection not made in good faith.6 As it turned out, their prudence was justified because the court ultimately denied permission to send the notice.
The request for guidance from the court, filed July 6, was appropriate and respectful, and it deserved timely court action. To be effective the notice that plaintiffs proposed to send needed to be distributed promptly. The 45 days for acceptance of Gulf’s offer, described in the Clerk’s notice, expired on or about August 8. The court did not act on plaintiffs’ motion until August 10, when it denied the motion by a one-sentence order without explanation.
II. Misuse of discretion
I believe that the court misused its discretion in entering the orders in this case.7
(1.) Non-compliance with Rule 23(d)
Rule 23(d) gives the following authority to the court:
In the conduct of actions to which this rule applies, the court may make appropriate orders: . . . (3) imposing conditions on the representative parties. (Emphasis added.)
This provision, added in 1966, gives the trial court “extensive power” to control the conduct of a class action. 7A C. Wright & A. Miller, Federal Practice and Procedure § 1791 (1972). There will be situations in which it will be “appropriate” for the court to restrict communications between counsel and potential class members. But, however, broad “appropriate” may be it is certainly no broader than the limits imposed by the Constitution, as discussed in Part III, below. Pretermitting constitutional limits, it seems to me that the district court must find that restrictions are “appropriate” upon a factual showing by the moving party that unsupervised communications between counsel and named plaintiffs on one hand and potential class members on the other have materialized into actual abuses of the class action device or that abuses are imminently threatened.8 In this case, “appropriateness” was not proved and no finding of “appropriateness” was made by either district judge.
The only arguable grounds I perceive for the order’s being “appropriate” are the un-sworn statements by Gulf that were denied by plaintiffs’ attorney under oath, the discussions in the Manual of possible abuses of class actions, and the existence of the conciliation agreement in the process of implementation.
With respect to the presence of plaintiffs’ counsel at the meeting of employees, it seems to me singularly inappropriate for the district court to rely — if it did rely— upon Gulf’s representations that Thibo-deaux made statements which violated both the law and the Canons of Ethics. Gulf never presented proof of this hearsay. Under oath, Thibodeaux denied making such statements.9
*1268Nor should a judicial decision on “appropriateness” be rested upon the discussions in the Manual. With deference to the opinions of the distinguished Board of Editors concerning the possibility of abuses in class actions, a trial court should not merely presume that in the case before it — indeed in all class actions coming before it — abuses are either present or threatened.10
The oraer in this case was entered pursuant to the authority given the district court under Rule 23(d). That rule requires the district judge to exercise his discretion in making orders. He is only authorized to make “appropriate orders,” and a determination of what is appropriate requires the exercise of discretion. What is appropriate for one case is inappropriate in another. If communications between counsel and actual and potential members of a class action were always abusive of the class action device then it would be appropriate to automatically enter an order restricting communications. Such communications, however, in many instances serve to effectuate the “purposes of Rule 23 by encouraging common participation in [a lawsuit].” Coles v. Marsh, supra at 189. The decision whether to restrict communications in a particular case, therefore, requires an inquiry into the likelihood of abuse and the potential for benefits. The Manual’s general discussion of potential abuses flowing from unrestrained communications is no substitute for reasoned inquiry into the harms and benefits on the particular facts of each case. The rule requires no less.11 Here, at the appellate level, the majority grounds its decision on possibilities rather than actualities. It refers to what the parties “may do,” to what the trial judge “could have easily concluded,” how the order “could be helpful” to the judge in exercising his Rule 23 duties, to what the judge “may believe” *1269and of how communications “may mislead.” This is not the stuff of which judicial decisions are made.
The final potential justification for the court’s order is the strong emphasis upon settlement of Title VII disputes by conciliation rather than in the courtroom. U. S. v. Allegheny-Ludlum Industries, Inc., 517. F.2d 826, 846 (CA5, 1975). But, as we noted in Allegheny-Ludlum,
the “final responsibility for enforcement of Title VII is vested with federal courts,” . . . [T]he various legal remedies for employment discrimination are cumulative and complementary. From the grievant’s standpoint, “[ujnder some circumstances, the administrative route may be highly preferred over the litigatory; under others the reverse may be true.”
Id. at 848 & n.26 (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147, 156 (1974), and Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295, 302 (1975)). In Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (CA5, 1974), vacated on other grounds, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), we commented on the possible divergence of governmental interests in remedying employment discrimination and the interests of the individuals who were the victims of discrimination:
While the Government may be willing to compromise in order to gain prompt, and perhaps nationwide, relief, private plaintiffs, more concerned with full compensation for class members, may be willing to hold out for full restitution.
Id. at 66. The choice between the lawsuit and accepting Gulf’s back pay offer and giving a general release was for each black employee to make. The court could not make it for him, nor should it freight his choice with restrictions that were not “appropriate” under the circumstances. Gulf had represented to the court that the conciliation agreement was fair and embraced substantially the same issues as the suit. But plaintiffs’ counsel had represented that the conciliation agreement was seriously deficient; that on its face it neither made the black employees whole nor satisfied the dictates of Title VII; that the relief supplied was inadequate because the goals were statistically improper, there was no firm commitment to timetables, and there was no relief from illegal testing. Plaintiffs had set out other objections as well. According to plaintiffs, the notices sent out by Gulf did not even explain how back pay was computed.
The conclusion is inescapable that the court’s limitation on communications was intended to further employees’ accepting conciliation awards in preference to participating in the suit.12 Pretermitting whether a court can ever appropriately do this, in this instance it could not, in deciding “appropriateness,” elect to favor conciliation and frustrate or chill the right of black employees to choose the litigation route by cutting them off from talking with the named plaintiffs and with the only attorneys who had direct expertise about the suit.
The majority has failed to take into consideration the benefits flowing from communication between the parties and the potential class members. In racial discrimination cases group solidarity may be vital to trigger and to sustain the willingness to resort to legal remedies for the removal of discrimination, but the court order bars black plaintiffs from all communication with fellow blacks employed by Gulf concerning this case. The majority also does not give weight to the need and desire of potential class members for advice of counsel concerning back pay versus lawsuit. The order permits a potential class member to confer with attorneys for plaintiffs at the prospective class member’s request. Pragmatically this is a dubious exception. *1270A prospective class member must find out who the attorneys are and when and where to see them, but the actual class members are forbidden to give him this information — or any other information about the case — without prior court approval, nor can counsel furnish this information to potential class members generally.
The wide disparity between what was done here and normal judicial procedures is demonstrated by posing this question: “What would have happened if Gulf had asked for a temporary injunction imposing the exact restrictions that were imposed in this case?” I believe that the court would have insisted upon requirements of notice, time limits, proof of likelihood of harm, the public interest and similar familiar requirements, and this court would have reviewed an injunction under the usual standards, especially since constitutional rights are involved.
The limitations I suggest do not diminish the significance of the potential problems seen by the draftsmen of the Manual and by the majority here. I would simply require a showing that the problems are real and not imaginary.
To the extent the majority bases its approval of the lower court’s orders on the premise that it is always appropriate to restrict communications in class actions, that premise is peculiarly unfounded in this case. The counsel silenced without factual showing include those from the Legal Defense Fund, recognized by the Supreme Court’ as having “a corporate reputation for expertness in presenting and arguing the difficult questions of law that frequently arise in civil rights litigation,” NAACP v. Button, 371 U.S. 415 at 422, 83 S.Ct. 328 at 332, 9 L.Ed.2d 405 at 411-12 (1963), and engaged in “a different matter from the oppressive, malicious or avaricious use of the legal process for purely private gain.” Id. at 443, 83 S.Ct. at 343, 9 L.Ed.2d at 424. See also Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 539 n.4 (CA5, 1970).
(2.) Court involvement in conciliation
Apart from the order’s limit on communications, it inappropriately involved the court in the extra-judicial conciliation effort. Gulf had mailed out back pay offers before suit was filed. In its motion to modify Judge Steger’s order, Gulf asked the court to direct the clerk to send notices to all employees who had not accepted its offer and signed releases. Gulf’s theory was that the court could do this under its power to supervise a settlement. The court granted the motion and extended the time for acceptance to 55 days from the date of the clerk’s notice. The back pay offers were not offers to settle a lawsuit. The nudge given to black employees who had not accepted Gulf’s offer, given under the official imprimatur of the court, was not permissible.
I would hold that the order was improvidently entered under the terms of Rule 23(d). Perhaps Rule 23(d) merely restates an implied power of the court. If that is so, exercise of the power is limited by the same restraints on the court’s discretion that I have already discussed. I turn then to constitutional limitations.
III. The constitutional issues
The general rule is that otherwise protected utterances concerning the courts may be punished by contempt only if they pose “an imminent, not merely a likely threat to the administration of justice.” Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546, 1552 (1947). The likelihood must be great that a serious evil will result, and the evil itself must be substantial. Bridges v. California, 314 U.S. 252, 260-63, 62 S.Ct. 190, 192-94, 86 L.Ed. 192, 202-03 (1941). Significantly, it is these two cases to which the Manual turns in addressing constitutional limitations. Pt. 2, § 141, n.33. Nor does the constitutional rule change when applied to lawyers, even when they participate in the judicial process. In re Halkin,-U.S.App.D.C. -, 598 F.2d 176, 47 Cr.L.Rep. 2413 (1979). A lawyer’s First Amendment rights to comment about pending or imminent litigation can be proscribed only if his comments pose a “ ‘serious and imminent threat’ of inter-*1271ferenee with the fair administration of justice.” Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 249 (CA7, 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976) (quoting In re Oliver, 452 F.2d 111 (CA7, 1971)); accord, Chase v. Robson, 435 F.2d 1059, 1061 (CA7, 1970); cf. U. S. v. Tijerina, 412 F.2d 661, 666 (CA10), cert. denied, 396 U.S. 990, 90 S.Ct. 478, 24 L.Ed.2d 452 (1969) (reasonable likelihood that comments by criminal defendants will prevent a fair trial justifies court order prohibiting extrajudicial comments).
In this case the subject matter of the restraint on counsel’s right to talk with potential class members about the case is plenary. The restraint is not limited to prohibiting solicitation of potential clients, discussed below. The attorneys may not counsel a black employee free of any effort to solicit him. The Third Circuit, in Rodgers, in holding invalid a local rule that contained a similar prohibition on communications between counsel and potential class members13 did not reach the constitutional issue but noted the problem:
The imposition of such a condition upon access to the Rule 23 procedural device certainly raises serious first amendment issues. See New Jersey State Lottery Comm’n v. United States, 491 F.2d 219 (3d Cir.), cert. granted, 417 U.S. 907, 94 S.Ct. 2603, 41 L.Ed.2d 211 (1974). There is no question but that important speech and associational rights are involved in this effort by the NAACP Legal Defense and Education Fund, Inc. to communicate with potential black class members on whose behalf they seek to litigate issues of racial discrimination. See, e. g., United Transportation Union v. State Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). And the interest of the judiciary in the proper administration of justice does not authorize any blanket exception to the first amendment. See Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962); Craig v. Harney, 331 U.S. 367, 67 S. Ct. 1249, 91 L.Ed. 1546 (1947); Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). Whatever may be the limits of a court’s powers in this respect, it seems clear that they diminish in strength as the expressions and associations sought to be controlled move from the courtroom to the outside world. See T. Emerson, The System of Freedom of Expression 449 et seq. (1970).
508 F.2d at 162-63.
Next I turn from the general restraint on the attorney to the specific restriction against solicitation in subparagraph (a) of If 2 of the order: “[Sjolicitation directly or indirectly of legal representation of potential and actual class members who are not formal parties to the class action.” NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), and its progeny, In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971), United Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967), and Railroad Trainmen v. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), mandate the conclusion that subparagraph (a) is unconstitutional. In Button, the Court concluded that NAACP solicitation of persons to bring civil rights suits was protected activity under the First and Fourteenth amendments. 371 U.S. at 428-29, 83 S.Ct. at 335, 9 L.Ed.2d at 415.14 The solicitation was treated as a mode of political expression effectuated through group activity falling within the sphere of associational rights guaranteed by the First Amendment. The solicitation activities considered in Button included hold*1272ing meetings to explain legal steps needed to achieve desegregation. At these meetings forms were circulated which authorized LDF attorneys “to represent the signers in legal proceedings to achieve desegregation.” 371 U.S. at 421, 83 S.Ct. at 332, 9 L.Ed.2d at 411.
In view of Gulf’s statements to the trial court and the countering affidavit by plaintiffs’ attorney, we do not know whether there has been express solicitation in this case similar to the distribution of forms in Button.15 Whether plaintiffs’ attorneys’ attendance at the meeting was solicitation is not determinative. Here, as in Button, the subject matter is racial discrimination. Plaintiffs’ attorneys are already engaged on behalf of black employees in seeking to vindicate their civil rights through court action, while in Button they were seeking clients to begin a suit. In both cases the activities at issue are those of LDF lawyers. The only material difference is that here employees must choose between the lawsuit and a conciliation offer while in Button there had been no conciliation and offer. The people attending the meetings held by the LDF lawyers in Button, however, did have to choose between initiating a lawsuit and not participating in a lawsuit. The type of choice the people would have to make here and in Button is not so different that the solicitation that could have occurred in this case was outside the scope of activity protected by Button. The characteristics of the solicitation that brought it within constitutional protection in Button are equally present in this case.
The continued vitality of Button was recently affirmed by the Supreme Court in In re Primus, supra. There the Court reversed a disciplinary reprimand issued against an ACLU lawyer for solicitation, 436 U.S. at 419, 98 S.Ct. at 1899, 56 L.Ed.2d at 427. The Court considered the economic relationship between the lawyer and the person solicited, the purpose of the litigation and the possibility of a conflict of interest between counsel and prospective client. Because the lawyer had no direct financial stake in the case, the case was a means of expressing a political belief, and there was no evidence of overreaching or misrepresentation, the Court concluded that South Carolina’s punishment of Primus for solicitation violated her First Amendment rights.16
Because the activity prohibited by sub-paragraph (a) of the district court’s order is constitutionally protected activity it is necessary to consider whether there is a compelling government interest that justifies the prohibition and whether the means used are sufficiently specific “ ‘to avoid unnecessary abridgment of associational freedoms.’ ” Id. at 432, 98 S.Ct. at 1905, 56 L.Ed.2d at 434-35 (quoting Buckley v. Va-leo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659, 691 (1976)). The Primus Court recognized that “the prevention of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, [and] lay interference,” 436 U.S. at 432, 98 S.Ct. at 1905, 56 L.Ed.2d at 435, are evils the state may guard against and that these problems sometimes result from lawyer solicitation of clients. The Court went on to state, however, that prophylactic rules intended to guard against such evils are not *1273permissible when aimed against constitutionally protected forms of solicitation because of their impact on First Amendment rights. Id. When dealing with Button-type solicitation, as opposed to commercial forms of solicitation, see Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), discussed in note 16, supra, there must be a showing that the solicitation “in fact involved the type of misconduct” 56 L.Ed.2d at 436, that may be constitutionally guarded against. A showing of potential danger does not suffice.17 The lower court made no findings whether the substantive evils the court was constitutionally entitled to guard against had occurred. Without such findings sub-paragraph (a) of the order cannot stand.18
Subparagraph (d) of 12 is applicable to this case and is in my view facially unconstitutional. It is narrower than the plenary proscription in the first sentence of the order, which prohibits all communications concerning the suit. Subparagraph (d) prohibits what might be called “objectionable communications.” It prohibits all communications “which may tend to misrepresent [the class action] . . . and . which may create impressions tending, without cause to reflect adversely on any party, any counsel, this Court or the administration of justice.” (Emphasis added.) The order is overbroad because it is not limited to the clear and present danger test. “May tend to misrepresent,” and “may create impressions” are not enough to justify suppression of protected speech. See Chicago Council of Lawyers v. Bauer, supra at 249. Also, while speech that poses an imminent threat to the fair administration of justice may be properly prohibited, speech that reflects adversely on any party or counsel may not. The only interests to which the First Amendment may be subordinated are compelling government interests. The government has no compelling interest in assuring that nothing unflattering will be said about Gulf or its attorneys.
It seems to me unnecessary to dwell at length on the vagueness of the order, particularly subparagraph (d). In advising a *1274potential class member of the relative merits of class action versus back pay offered under the conciliation award, counsel will almost inevitably say something that will be construed to reflect upon Gulf’s offer— indeed that is at the heart of this whole matter of lawsuit versus settlement. If counsel goes to an employees’ meeting at all,19 the only safe advice to him is to remain mute.
In a thoughtful analysis of the constitutional issues involved in this case, District Judge Boyle, in Waldo v. Lakeshore Estates, Inc., 433 F.Supp. 782 (E.D.La., 1977), rejected a constitutional attack on his district’s Local Rule 2.12(e) which is identical to the Manual’s suggested rule. The court recognized that its rule
restricts not only certain expressions by parties and counsel, but also impinges upon the constitutionally-derived interest of the recipient(s) to secure the communication. . . . Likewise limited by the rule’s operation is the opportunity of the plaintiff organization to communicate concerning legal redress with those members who are not formal parties to the suit, which activity ordinarily would be entailed in the freedom of association and the collective right of an organizational membership to achieve effective judicial access.
Id. at 787 (citations and footnote omitted). The court then went on to catalogue the interests served by the Local Rule: (1) prohibition of solicitation of representation or funds protects laymen from unscrupulous attorneys and helps preserve the legal profession’s image; (2) preservation of the court’s obligation “to direct the ‘best notice practicable' to class members, advising them of their privilege to exclude themselves from the class,” id. at 790, pursuant to Rule 23(c)(2) for class actions brought under Rule 23(b)(3); and (3) the administration of justice by preventing misrepresentations. Id. at 790-91. The court found these objectives sufficiently important to override the inhibitions on First Amendment rights and that the rule is the least drastic alternative.
I have several problems with the district court’s analysis. First, the three categories of interests served by the rule can be tied to the specific prohibitions. The court does not explain how the plenary prohibition against all communications absent prior approval serves the specified goals other than to note that “the ingenuity of those determined to wrongly take advantage of the class action procedure would likely prevail over any . . . attempt at prohibition by itemization.” Id. at 791—92. I think the plenary prohibition in the first sentence of 12 of the order is facially overbroad. Communications that do not threaten any of the interests enumerated by the court are prohibited. When dealing with First Amendment rights, greater specificity is required.
District Judge Bue of the Southern District of Texas reached the same conclusion as I reach in his analysis of the amendments his district adopted to the Manual’s suggested rule. The Southern District’s rule contains only the specific prohibitions, dropping the across-the-board restraints. The primary reason for the change was to avoid a violation of the First Amendment by overbreadth: “The key to a constitutional rule which regulates class communication is to narrow down those instances in which a prior restraint is imposed to those in which the types of communications subject to judicial review before dissemination are clearly defined and clearly capable of Rule 23 abuse.” Bue, Analysis of Proposed Revision of Local Rule 6 of the United States District Court for the Southern District of Texas, (quoted in Bulletin, Manual for Complex Litigation, Federal Judicial Center, 9-10 (Aug. 25, 1978)).
Also, Waldo fails to distinguish between commercial forms of solicitation and Button-type solicitation. The significance of this distinction has already been discussed. Because the rule does not make this distinc*1275tion, its prohibition on solicitation is over-broad. The government interests that may legitimately be protected by prohibiting commercial solicitation do not usually need to be protected when Button -type solicitation is involved because it does not pose the same dangers as commercial solicitation. Moreover, the constitutional scrutiny given to a ban on commercial solicitation or punishment for engaging in such solicitation is significantly lower than the scrutiny given prohibitions on Button -type solicitation. Commercial solicitation is protected only by the commercial speech doctrine, which requires a lower level of scrutiny than required when there is an infringement of the constitutional rights of association and political expression which occurs when Button-type solicitation is prohibited. Compare In re Primus, supra, with Ohralik v. Ohio State Bar Association, supra.
The Waldo court’s concern with protecting the administration of justice from misrepresentations of cases pending before it is legitimate. But the “reasonable likelihood” standard incorporated in the rule simply fails to comply with constitutional standards.
The proviso permitting post-distribution filing of a notice thought to be constitutionally protected is not a cure. “This provision does not eliminate — indeed it highlights— the overbreadth and resultant chilling ef-feet of the [Manual’s] proposed rule.” Comment, 88 Harv.L.Rev. 1911, 1922 n. 74 (1975). The majority’s conclusion that the assertion of a good faith belief gives total protection is disingenuous. The district court would still be entitled to inquire into the bona fides of counsel’s belief.20 Because counsel may be called upon to establish the basis for his good faith belief, and therefore is put at risk for possibly violating the court’s order, the good faith exception does not ameliorate the chilling effect of the order. It is little comfort for a conscientious attorney to be told that he may communicate with potential class members but that at a later time may be called upon by the court to justify the communication.21 Even if facially a cure, the constitutional exception is no cure as applied to these plaintiffs who prudently asked for pre-distribution approval of the leaflet reproduced above rather than risk post-distribution filing and were given a belated denial.
IV. Conclusion
The district court misused its discretion under Rule 23(d) and violated the constitutional rights of plaintiffs’ counsel, named plaintiffs and all other actual or potential members of the class by entering the orders. I dissent from Part IV of the majori*1276ty opinion. and would vacate the district court’s order as modified.
. Sample Pretrial Order No. 15. The suggested form is a reprint of a pretrial order entered by the District Court for the Western District of Missouri. Manual, Pt. 2, § 1.41 n.33.
. Coles v. Marsh, 560 F.2d 186 (CA3), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977). See also Rodgers v. United States Steel Corp., 508 F.2d 152 (CA3), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).
. In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1012 & n.8 (CA5, 1977); Huff v. N. D. Cass Co., 485 F.2d 710, 712-13 (CA5, 1973) (en banc).
. And 29 female employees.
. The majority refer several times to the order’s restricting communication by the parties. Elsewhere they refer to the interests of plaintiffs’ attorneys in communicating with putative class members. The order bars both named parties and counsel.
. See Rodgers v. United States Steel, 508 F.2d 152, 161 (CA3), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975): “The attorneys for the plaintiffs, with appropriate caution, declined to test an ambiguous order by violating it and risking contempt.”
. The district court had not adopted a local rule concerning limiting communications in class actions. We are, therefore, not concerned with rule-making power but with the authority of the court, inherent or conferred by Congress through the Rules, to impose the limit on communications. The Manual, Pt. 2, § 1.41, contains a suggested local rule, an earlier version of which was held invalid in Rodgers v. United States Steel, supra.
. The Third Circuit in Coles v. Marsh, 560 F.2d 186, 189 (CA3), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977), discussed the validity of a similar order restraining communications in terms of the district court’s power and held it invalid. Although I reach the same result as the Coles court, I think it is preferable to analyze the question in terms of the district court’s discretion.
. In this appeal Gulf restates the hearsay as though it were fact proved and found. Also it throws in this alternative argument:
By affidavit, one of the Appellants’ attorneys admits to attending the discussions, but denies making any improper statements. Whether the statements, in fact, are true is *1268immaterial since the admitted appearance by Appellants’ attorneys at such a meeting provides the potential for abuse of the class action process which the Manual and Rule 23 seeks to prevent.
Br. p. 42. Counsel for Gulf treat more lightly charging an attorney with unethical and improper conduct than I would be willing to do.
. The Manual cites Weight Watchers of Philadelphia v. Weight Watchers International, Inc., 455 F.2d 770 (CA2, 1972), as confirming an “almost unreviewable discretion” in trial courts to regulate communications between counsel and active and potential class members. Weight Watchers rests upon the unreviewability of discretionary orders by mandamus. The issue is before us by appeal. In Rodgers, the Third Circuit said:
[T]he committee which drafted the Manual probably went too far in its apparent assumption that Craig v. Harney, [331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947)] and Bridges v. California, [314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941)] would permit the vesting of unreviewable discretion in a district court to impose a prior restraint on communication or association. 1 J. Moore, [Federal Practice ¶ 1.41, at 29 n. 28, (2d ed. 1974, Part 2)].
508 F.2d at 165. Rodgers granted mandamus against use of a local rule then appearing in the Manual and since amended. I discuss in Part III, below, the constitutional limitations imposed by Craig v. Harney and Bridges v. California.
. In Waldo v. Lakeshore Estates, Inc., 433 F.Supp. 782 (E.D.La., 1977), the district court rejected the claim that it exceeded its rule-making authority under Rule 83 by adopting its Local Rule 2.12(e), identical to the Manual’s suggested Rule. The court concluded that “[t]he potential abuses attendant upon . unregulated communication clearly undermine the efficacy of the class action device.” Id. at 794. The local rule was, therefore, consistent with the Federal Rules of Civil Procedure, the standard for judging the validity of a local rule. The difficulty with the district court’s analysis is that Rule 2.12(e) applies to every case. It does not permit the district judge in an individual case the discretion to not restrict communications, although in some cases it would be inconsistent with the policies of the Federal Rules to restrict communication. A refined approach that does not sweep so broadly that it does away with the benefits of attorney-client contact and recognizes the interests that putative class members have in receiving communications is called for. The need for such an approach was recognized by District Judge Bue in his report accompanying the Southern District of Texas’ amendments to its local rule restricting communications, discussed infra. Judge Bue’s discussion focuses primarily on constitutional problems with the Manual's rule. A similar need for a narrow rule that successfully guards against abuses while not doing away with the benefits of communication is also required so that it does not run afoul of Rule 83’s mandate that district courts adopt only local rules that are consistent with the policies of the Federal Rules.
. If not otherwise clear, the court’s approach was made clear by its direct entry into the conciliation effort (discussed below), and its withholding action on plaintiffs’ request for permission to send the proposed notice until after the time had expired for accepting back pay awards.
. The local rule in issue in Rodgers did not include the “constitutional right” exception which has been added to the suggested form in the Manual. I discuss below that this does not remove the constitutional issue.
. Because this case involves a restriction imposed by a federal court, the Fourteenth Amendment is not implicated.
. The notice that plaintiffs asked leave to send does not explicitly solicit persons to engage plaintiffs’ attorneys or to join in the class but urges employees to seek legal advice and to become informed. It tells employees that plaintiffs’ attorneys will talk to them without charge, suggests as an alternative talking to some other attorney, and emphasizes that the class action will proceed. No one is expressly urged to join the class, reject a release, or return a check.
. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), decided the same day as Primus, sustained, against constitutional objections, bar sanctions of an attorney for solicitation. For purely pecuniary gain he visited in the hospital a person injured in an automobile accident and solicited her as a client. No political expression or associational rights or vindication of illegal racial discrimination was involved. Ohralik based his constitutional claim solely on the commercial speech doctrine. See also Pace v. Florida, 368 So.2d 340 (Fla. 1979); Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175 (Penn. 1978).
. As stated by the Primus Court
Rights of political expression and association may not be abridged because of state interests asserted by appellate counsel without substantial support in the record or findings of the state court. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 789, 98 S.Ct. 1407, [1423,] 55 L.Ed.2d 707 (1978); United Transportation Union v. Michigan Bar, 401 U.S., at 581, 91 S.Ct. 1076 [, at 1080] 28 L.Ed.2d 339; Sherbert v. Verner, 374 U.S. 398, 407, 83 S.Ct. 1790, [1795,] 10 L.Ed.2d 965 (1963); Button, 371 U.S. at 442-443, 83 S.Ct. 328 [, at 342-343], 9 L.Ed.2d 405; Wood v. Georgia, 370 U.S. 375, 388, 82 S.Ct. 1364, [1371,] 8 L.Ed.2d 569 (1962); Thomas v. Collins, 323 U.S. 516, 530, 536, 65 S.Ct. 315 [322, 325,] 89 L.Ed. 430 (1945).
436 U.S. at 434 n. 27, 98 S.Ct. at 1906 n. 27, 56 L.Ed.2d at 436 n. 27.
. Subparagraph (b) of 12 of the order forbids solicitation of fees and expenses despite the affidavit setting out that the NAACP provides its services free of charge. Arguably this hypothetical restraint does no injury except to the extent it adds to the overall chilling effect. However, I think it is appropriate to comment on it since it is part of the Manual’s form. In United Transportation Union v. State Bar of Michigan, supra, the Supreme Court interpreted Button and cases following it to stand for the proposition that “collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.” Id. at 585, 91 S.Ct. at 1082, 28 L.Ed.2d at 347. In at least some situations the collection or solicitation of funds to defray litigation costs is a necessary adjunct to obtaining meaningful access to the courts. I would, therefore, give such activity constitutional protection in appropriate cases. The degree of protection would vary according to the use to which the funds are to be put. If they are to be used to pay lawyers, the solicitation presents some of the dangers recognized in Primus and Ohralik that a state or court may properly guard against. If the funds are to be used to defray litigation expenses, the solicitation is closer to the heart of gaining access to the courts. See Norris v. Colonial Commercial Corp., 77 F.R.D. 672, 673 (S.D.Ohio, 1977) (solicitation of funds to defray litigation expenses of class action permitted with certain requirements imposed on the content of the solicitation letter). See also Sayre v. Abraham Lincoln Federal Savings & Loan Ass'n, 65 F.R.D. 379, 384-86 (E.D.Penn., 1974), modified, 69 F.R.D. 117 (1975).
Subparagraph (c) of 2, relating to solicitation of “opt out” íequests, seems to me to have no application to this case. It applies only to Rule 23(b)(3) class actions, and this action was brought pursuant to 23(b)(2).
. Assuming merely being there is not “indirect communication” as Gulf would seem to contend, see n. 9, supra.
. Although Screws v. U. S„ 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), probably requires a showing of specific intent to violate the court’s order, that is certainly not the total protection from punishment envisioned by the majority; indeed, it indicates that assertion of good faith is not total protection.
. The majority argues that “[ojnce plaintiffs submitted the proposed communication to the district judge . . . the exemption for communications they asserted were constitutionally protected was no longer relevant.” The issue before the district court on a motion for permission to distribute would be whether the proposed communication is constitutionally protected, but the issue on this appeal is the constitutionality vel .ion of the order. In our examination of this issue, the constitutional exception provision is certainly relevant; indeed the unwillingness of the attorneys to rely on the exception in distributing the leaflet demon,::.ates the order’s chilling effect. It is the proof of the pudding. Having lost on their motion to have the order restraining their communications declared unconstitutional, the reasonable — and respectful — course for them to follow was to ask the court’s guidance before distributing the leaflet rather than take their chances under the constitutional exception. I assume that the majority does not mean that had the plaintiffs specifically renewed their constitutional objection to the order at the time they requested permission to distribute the leaflet the chilling effect of the order could not have been considered by the district court. Such a position would be untenable. It is not necessary to disobey a court order to be able to make a chilling effect attack on it. Indeed, the exact opposite is normally required. A party may not violate a court order and then in a contempt proceeding for violating the order challenge its constitutionality. Walker v. City of Birmingham, 388 U.S. 307, 316-17, 87 S.Ct. 1824, 1830, 18 L.Ed.2d 1210, 1217 (1967).