GODBOLD, Circuit Judge:
This suit was brought as a class action by six present or retired black employees of the Port Arthur, Texas, plant of Gulf Oil Company, under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2) and 42 U.S.C. § 1981. The members of the asserted class are black employees and black former employees of the Port Arthur plant, and black applicants rejected for employment with Gulf Oil (at the Port Arthur plant and elsewhere). The defendants are Gulf Oil and the Oil, Chemical and Atomic Workers’ Union.
Plaintiffs charged that Gulf discriminated against blacks in hiring, job assignments, pay scales, discipline and discharge, employed discriminatory tests and racially tainted promotion and progression practices, and denied training to blacks and refused seniority to blacks. They alleged that the union had agreed to, acquiesced in or condoned Gulf’s discriminatory practices. The district court dismissed the Title VII claim as untimely filed, granted summary judgment for defendants on the § 1981 claim, and applied laches as an additional ground for its disposition of both claims. With respect to these three holdings, we adopt parts I, II and III of the panel opinion 1 and reverse and remand to the district court. A fourth issue we will consider at length. It concerns the validity of an order of the district court restricting communications by named plaintiffs and their counsel with actual and potential class members not formal parties to the suit. By a divided vote the panel found the order valid. 596 F.2d at 1258. We hold that the order violated the First Amendment to the Constitution and Rule 23, Fed.R.Civ.P.
I. The background
The facts are accurately stated in the dissenting opinion to the panel decision, 596 F.2d at 1262-76, and the court adopts that statement. We restate the facts in condensed form.
In April 1976, Gulf and EEOC entered into an extra-judicial conciliation agreement covering alleged racial discrimination against blacks at the Port Arthur plant and providing for conciliation of alleged • discriminatory practices and for back pay to 614 present and former black employees. No employees were parties to the agreement. Plaintiffs brought this suit in May 1976, represented by local counsel in association with New York attorneys from the NAACP Legal Defense and Education Fund. Before answering and before a class was certified, Gulf filed an unsworn request [464]*464that the court enter an order limiting communication by parties and their counsel with actual or potential class members. Gulf asserted that it had received reports that one of plaintiffs’ attorneys had attended a meeting of actual and potential class members and had advised the group not to sign receipts and releases sent to them pursuant to the conciliation agreement because he could recover twice as much for them in the suit just filed.
District Judge Steger entered a temporary order on May 28.2 Gulf filed an additional unsworn charge that the same plaintiffs’ attorney had also recommended that employees, who had already signed receipts and releases should return their checks. Gulf also filed an affidavit from EEOC which stated that the issues in the suit were almost identical to those embraced in the conciliation agreement.
Plaintiffs challenged the constitutionality of the temporary order. They filed affidavits denying Gulf’s charges and a brief asserting that numerous issues in the suit were not within the matters conciliated. On June 22, without proof of the unsworn charges made by Gulf and without entering findings of fact, Chief District Judge Fisher rejected plaintiffs’ constitutional arguments and entered a modified order explicitly modeled on that suggested in the Manual for Complex Litigation, Part II, § 1.41 (1973 ed.),3 a publication widely used by federal judges. It is the validity of this modified order that is now before us.
On July 6 plaintiffs moved for permission for themselves and their counsel to communicate with members of the proposed class and also asked for guidance from the court. They attached a notice, reproduced at 596 F.2d 1266, which they proposed to distribute and asserted that they were constitutionally entitled to distribute. The notice alerted black employees to the existence of the lawsuit as an alternative to acceptance of Gulf’s conciliation offer and urged them to talk to an attorney. The time for acceptance of Gulf’s conciliation offer expired on or about August 8. On August 10, the court, without explanation, denied plaintiffs’ motion by a one-sentence order.
II. The provisions of the order
The order, described by plaintiffs as a “gag order,” is broad in scope and plenary in nature, forbidding a wide range of communications.4 [465]*465The persons enjoined are “all parties hereto and their counsel.”
The subject matter forbidden is communications with any actual or potential class member not a formal party, “concerning [this] action . . . without the consent and approval of the proposed communication and proposed addressees by order of this Court.” More specific communications that the proscription includes, but is not limited to, are: (a) solicitation of legal representation of potential and actual class members not formal parties; (b) solicitation of fees and expenses; (c) solicitation of requests by class members to opt out; and (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 order contains several exceptions, set out in the second subparagraph of 1f (2): communications between attorney' and client, and between attorney and prospective client when initiated by the prospective client, and communications in the regular course of business.
[466]*466The third subparagraph of H (2) is a much-debated provision requiring post-communication filing with the court of any communication asserted to be constitutionally protected:
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.
The order also contains a provision that the clerk of the district court send a notice to those employees covered by the conciliation agreement who have not signed receipts and releases for back pay. The notice, which is an appendix to the order, tells the employee that this case is pending, and briefly describes it, and that he has been identified as an actual or potential class member. It describes the outstanding conciliation offer from Gulf and tells the employee that he has a choice of accepting the Gulf offer or declining it and being considered at a later date for inclusion in the class in the suit. Employees are told they have 45 days in which to accept the conciliation offer.
III. The basis for the order
Presumably, since the district court made no findings, its order was based upon suggestions contained in the Manual, which recommends that procedures be devised to anticipate and prevent potential abuses in class actions, including solicitation of representation, solicitation of funds and of opt-out requests, and misrepresentations that may create confusion and reflect adversely on the court or the administration of justice. Manual, Part I, § 1.41. The Manual recommends that district courts adopt local rules imposing “in every potential and actual class action” substantially the ban on communication that is here involved, and in the absence of a local rule5 impose the ban by an order entered promptly after the filing of any actual or potential class action. Id., Part I, § 1.41; Part II, § 1.41 (Suggested Local Rule 7 and Suggested Pretrial Order No. 15).6 Our interpretation of the basis for the court’s order is reinforced by the court’s rejection of plaintiffs’ constitutional arguments on the ground that the order it had entered comported with the requirements of the Manual.
We can assume that the district court did not ground its order on a conclusion that the charges of misconduct made by Gulf were true. Nothing in its order indicates that it did, and, if it did, such a conclusion would have been procedurally improper and without evidentiary support. Rather the court appears to have acted upon the rationale of the Manual that the court has the power to enter a ban on communications in any actual or potential class action as a prophylactic measure against potential abuses envisioned by the Manual.7
IV. The order is a prior restraint
The order represents a significant restriction on First Amendment rights. Because no other court of appeals has ruled on the constitutionality8 of the Manual’s suggest[467]*467ed rule and order, and because of the broad impact of the Manual’s suggestions,9 we address the constitutional issues before us.
We hold that the order entered in this case is an unconstitutional prior restraint.
Prior restraints on freedom of speech have long been disfavored in American law. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). While a prior restraint is not unconstitutional per se, there is a heavy presumption against its constitutionality. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448, 459 (1975); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1, 5 (1971). We discuss in Part VI, below, the circumstances under which a prior restraint may be held lawful.
Prior restraint has traditionally been defined as a “predetermined judicial prohibition restraining specified expression . Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976); see also Nebraska Press Association v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683, 697-98 (1976); Near v. Minnesota, supra; Litwack, The Doctrine of Prior Restraint, 12 Harv.C.R.-C.L.Rev. 519, 520 (1977). This expansive definition has not often been further elaborated. There are, however, four separate but related features that may serve to distinguish prior restraints from limitations on free speech imposed by subsequent restraints.
1. Origin. A prior restraint is generally judicial rather than legislative in ori[468]*468gin, although an enabling statute may authorize the judicial suppression of publication. Near v. Minnesota, supra. The essence of prior restraint is that it places specific communications under the personal censorship of the judge. Kalven, Foreword: Even When a Nation is at War, 85 Harv.L.Rev. 3, 33 (1971) [hereinafter Kal-ven].10
The district court’s order is undeniably judicial in origin.11
2. Purpose. It has been suggested that the sole purpose of a prior restraint is suppression rather than punishment. Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 558-59, 95 S.Ct. at 1246, 43 L.Ed.2d at 459; Near v. Minnesota, supra, 283 U.S. at 715, 51 S.Ct. at 630, 75 L.Ed. at 1367. Unlike a criminal statute, which by its terms defines the punishment for its violation, a prior restraint “does not deal with punishments; it provides for no punishment, except in case of contempt for violation of the court’s order, but for suppression and injunction, that is, for restraint upon publication.” Near, supra, 283 U.S. at 715, 51 S.Ct. at 631, 75 L.Ed. at 1367. The justification for drawing a distinction based on this difference is that “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.” Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 559, 95 S.Ct. at 1246, 43 L.Ed.2d at 459; see also New York Times Co. v. U. S., 403 U.S. 713, 733, 91 S.Ct. 2140, 2151, 29 L.Ed.2d 822, 836 (1971) (White, J., concurring).
Without question, the purpose of the order is restraint upon publication.
3. Means of enforcement. This distinction between prior and subsequent restraints is inextricably linked to the prior restraint’s judicial origin and unique' purpose. “Punishment by contempt is an important attribute of a ‘prior restraint’ that distinguishes it from a criminal statute that forbids a certain type of expression.” Chicago Council of Lawyers v. Bauer, supra, 522 F.2d at 248. The penalty is thus both more swiftly imposed and less subject to the mitigating safeguards of the criminal justice system than is the punishment for violation of a statute. See Nebraska Press Association v. Stuart, supra, 427 U.S. at 559, 96 S.Ct. at 2802, 49 L.Ed.2d at 697-98; U. S. v. Gurney, 558 F.2d 1202, 1208 (5th Cir. 1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978). This lack of safeguards accentuates the dangers inherent in any suppression of speech. See Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 559, 95 S.Ct. at 1246, 43 L.Ed.2d at 459-60; In re Halkin, 598 F.2d 176, 184 n. 15 (D.C.Cir.1979).
The expression restrained in this case is not forbidden by any statute. The text of the order is silent as to means of enforcement,12 and there are other possible means available,13 but the appellees accept that the [469]*469means of enforcement intended is the contempt power of the court, and we agree.14
The dangers associated with the penalty of contempt inhere even though other sanctions are to some extent available. Persons subject to the order before us could reasonably conclude that the court’s contempt power extended to énforcement of the order, and the conclusion is inescapable that it was exposure to contempt that silenced plaintiffs’ attorneys and caused them to ask leave of court to send out the notice to class members.15
Moreover, the potential availability of other sanctions cannot serve to reduce the constitutional infirmity of the order. This prong of the test is concerned primarily with the lack of procedural safeguards associated with the enforcement of prior restraints. The fact that contempt is only one of several alternative sanctions does not ameliorate this concern.
4. Means of constitutional challenge. While the unconstitutionality of a statute may be raised as a defense to prosecution for its violation, a litigant who disobeys an injunction is precluded from raising its constitutional invalidity as a defense in contempt proceedings. Compare Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) with Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); see U. S. v. Dickinson, 465 F.2d 496 (5th Cir. 1972), cert. denied, 414 U.S. 979, 94 S.Ct. 270, 38 L.Ed.2d 223 (1973) (applying rule against collateral attack to judicial restriction on publication); cf. In re Timmons, 607 F.2d 120, 124-25 (5th Cir. 1979) (similar distinction between civil and criminal contempt). Thus, a prior restraint may be distinguished from a statute prohibiting publication in that the former has “an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” Nebraska Press Association v. Stuart, supra, 427 U.S. at 559, 96 S.Ct. at 2803, 49 L.Ed.2d at 698. As one commentator has eloquently observed: “Prior restraints fall on speech with a brutality and a finality all their own. Even if they are ultimately lifted they cause irremediable loss — a loss in the immediacy, the impact, of speech.” A. Bickel, The Morality of Consent 61 (1975), quoted in Nebraska Press Association v. Stuart, supra, 427 U.S. at 609, 96 S.Ct. at 2826, 49 L.Ed.2d at 727 (Brennan, J., concurring).
The impact of the present order was direct and immediate. It silenced the named plaintiffs and their attorneys during the period that Gulf’s conciliation offers were outstanding and putative class members were considering whether to accept. A named plaintiff, questioned by the black employee working next to him concerning the suit or the relative advantages of conciliation award and suit, could not reply. The order cut off dialogue16 despite the contentions of plaintiffs’ counsel that some of the [470]*470issues in the suit were not covered by the conciliation agreement to which plaintiffs and putative class members were not parties and that the conciliation benefits to the putative class were inadequate. It stopped investigation and discovery at a time when it is critical, just after suit has been filed.
Fragile First Amendment rights are often lost or prejudiced by delay. Nebraska Press Association v. Stuart, supra, 427 U.S. at 609, 96 S.Ct. at 2826, 49 L.Ed.2d at 727 (Brennan, J., concurring); Zwickier v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 397, 19 L.Ed.2d 444, 452 (1967); Collin v. Smith, 578 F.2d 1197, 1209 (7th Cir.), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978); A Quaker Action Group v. Hickel, 421 F.2d 1111, 1116 (D.C.Cir.1969); Barnett, The Puzzle of Prior Restraint, 29 Stan.L. Rev. 539, 545 (1977). Courts have therefore been commendably willing to expedite proceedings involving First Amendment rights. See New York Times Co. v. U. S., supra, (Supreme Court decision issued 15 days after first TRO, 17 days after initial publication). Here, during the pendency of the conciliation offer, potential class members were substantially deprived17 of the opportunity to confer with the attorneys presumably most knowledgeable, concerning whether they should accept Gulf’s offer or look to the suit for redress. At the time they most needed counsel they were cut off from the attorneys most available until the time to make a choice had expired.18
The ban on communications is especially egregious both because this is a race discrimination case and because 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, 422, 83 S.Ct. 328, 332, 9 L.Ed.2d 405, 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. 14 (5th Cir. 1970).
Faced with the principle that one who violates an injunction may not raise unconstitutionality as a defense in contempt proceedings, appellees construe the order to permit a defense to contempt. The constitutionally protected status of the proposed communication or the communicator’s good faith belief in that status, appellees argue, would constitute a defense to contempt. This qualified defense is not found within the order but was read into it by the panel majority. 596 F.2d at 1261.
Even if this construction is correct, the defense is so freighted with preconditions and uncertainties that it is little comfort to attorney or party. Under appellees’ construction, the filing requirement is a prerequisite to assertion of constitutionality, or good faith belief in constitutionality, as a defense.19 Indeed it is only by the vehicle of the filing requirement that appellees read into the order a defense not otherwise available in a contempt case.20 The filing requirement itself chills expression. With respect to the individual class members, filing within five days a “complete summary” of every oral communication about the case had by each class member with any of his black fellow employees, is a practical impossibility. Beyond that, knowledge of what may be constitutionally protected is not readily available to the usual employee. In a real sense, for the individual plaintiffs [471]*471silence is the only alternative. An attorney will have the knowledge, and better means, to file reports with the court as required, but if he asserts that he is constitutionally entitled to talk with prospective clients, ask financial aid, or seek support from a group or the community, filing will be a substantial burden. An attorney claiming a constitutional right to talk with witnesses could find compliance well nigh impossible. Also, the filing requirement arguably runs afoul of the attorneys’ work product rule of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
The conditional defense is accompanied by a second chilling effect, the risk of trial on criminal contempt charges, with guilt or innocence possibly turning on whether one’s assertion of constitutional protection has been made in “good faith.” Moreover, the omissions and ambiguities of the order and possible differing constructions as to when, if at all, one is protected against contempt, accentuate the chilling effect.21
Most attorneys, faced with an order like the one before us,22 would pursue the course chosen by counsel in this case and seek prior approval of the court before attempting to communicate with actual or potential class members. See In re Halkin, supra, 598 F.2d at 184 n. 15; Goldblum v. National Broadcasting Corp., 584 F.2d 904, 907 (9th Cir. 1979).
Thus despite the filing provision, and the arguable “good faith” defense, the order has the “immediate and irreversible” effect of a prior restraint.
V. The expression that is restrained is protected
Inquiry does not end with a determination that the order constitutes a pri- or restraint. The First Amendment is not absolute, and “the protection even as to previous restraint is not absolutely unlimited.” Near v. Minnesota, supra, 283 U.S. at 716, 51 S.Ct. at 631, 75 L.Ed. at 1367; accord, Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). Material unequivocally not protected by the Constitution may be the subject of a prior restraint if sufficient procedural safeguards are provided. This possibility does not exist in the present case because the communications proscribed by the order are constitutionally protected. Also, as discussed in Part VI, below, procedural safeguards are entirely lacking.
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. The attorneys may not counsel a black employee free of any effort to solicit him. We have already noted, at the beginning of Part IV, the concern expressed by the Third Circuit in Rodgers I, 508 F.2d at 162-63, 165, over the constitutional problems raised by conditioning access to class action procedures upon prohibiting communications between counsel and potential class members.
In addition to the general restraint on attorneys there is a specific restriction against solicitation in subparagraph (a) of 11 (2) of the order which forbids “solicitation directly or indirectly of legal representation of potential and actual class members who are not formal parties to the class action.” NAACP v. Button, supra, and its progeny, In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978), United Transportation [472]*472Union v. State Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971), United Mine Workers v. Illinois Bar Association, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967), and Brotherhood of 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) proscribes constitutionally protected expression. 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 415.23 The solicitation was treated as a mode of political expression effectuated through group activity falling with the sphere of associational rights guaranteed by the First Amendment. The solicitation activities considered in Button included holding meetings to explain legal steps needed to achieve desegregation. At these meetings forms were circulated which authorized Legal Defense Fund 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. 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 Legal Defense Fund 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 Legal Defense Fund 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. See also Great Western Cities, Inc. v. Binstein, 476 F.Supp. 827 (N.D.I11.1979) (holding rule similar to district court’s order constitutionally inapplicable to non-profit solicitation).
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. 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, and 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.24 Counsel for plaintiffs here have submitted affidavits attesting to the fact [473]*473that they neither received nor expect to receive from class members any compensation for their services.25
Of course, the communications of individual plaintiffs, also proscribed by the order, are at least equally protected. See Brotherhood of Railroad Trainmen v. Virginia State Bar, supra; Great Western Cities, Inc. v. Binstein, supra.
The communications covered by the order are thus protected expressions which call into play the full panoply of First Amendment safeguards against prior restraint.26
VI. The prior restraint is not justified
The order in this case is the essence of prior restraint — it places specific communications under the personal censorship of a judge. It is thus subject to the heavy presumption against its constitutionality and the rigid requirements imposed by the courts on those who seek to justify prior restraints. It must fit within one of the narrowly defined exceptions to the prohibition against prior restraints. It must prevent direct, immediate and irreparable damage, and it must be the least restrictive means of doing so. Finally, it must comport with required procedural safeguards. The order at issue meets none of these requirements.
There is a strong presumption against the constitutionality of any prior restraint, and the burden of justification is therefore heavier than that imposed in cases involving only subsequent- restrictions on freedom of expression. Southeastern Promotions, Ltd. v. Conrad, supra; New York Times Co. v. U. S., supra; Organization for a Better Austin v. Keefe, supra; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Near v. Minnesota, supra; Penthouse Int’l Ltd. v. McAuliffe, supra; Universal Amusement Co. v. Vance, 587 F.2d 159 (5th Cir.), aff’d, -U.S. -, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980).
In general, a prior restraint may be justified only if the expression sought to be restrained “surely [will] result in direct, immediate, and irreparable damage.” International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 833 (5th Cir. 1979), quoting New York Times Co. v. U. S., supra, 403 U.S. at 730, 91 S.Ct. at 2149, 29 L.Ed.2d at 834. At least three justices may have rejected even that standard as overly lenient, without explicitly defining the appropriate test. See New York Times Co. v. U. S., supra, 403 U.S. at 732-33, 91 S.Ct. at 2150-51, 29 L.Ed.2d at 835 (White, J., joined by Stewart, J., concurring), and 403 U.S. at [474]*474740-41, 91 S.Ct. at 2154-55, 29 L.Ed.2d at 840 (Marshall, J., concurring).27
To be lawful, the restraint “must fit within one of the narrowly defined exceptions to the prohibition against prior restraints,” Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 559, 95 S.Ct. at 1247, 43 L.Ed.2d at 459; that is, “[the] publication' [sought to be restrained] must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea . . . .” New York Times Co. v. U. S., supra, 403 U.S. at 726-27, 91 S.Ct. at 2148, 29 L.Ed.2d at 832 (Brennan, J., concurring); see also Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095, 1106 (1927) (Brandéis, J., concurring) (“Only an emergency can justify repression”). Indeed, one commentator has interpreted New York Times v. U. S. to hold that “there is a constitutional requirement that everything, or virtually everything, is entitled to be published at least once.” Kalven, supra, 85 Harv.L.Rev. at 34.
The order is not brought within any exception permitting prior restraints merely because it arises in the general context of the administration of justice and the particular context of Rule 23. As the Third Circuit noted in Rodgers I: “[T]he interest of the judiciary in the proper administration of justice does not authorize any blanket exception to the first amendment.” 508 F.2d at 163. It is obvious that in the conduct of trial the judge restrains expression and association in innumerable ways. But, “[w]hatever 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.” Id.
The Supreme Court has recently reaffirmed that even when the competing interest is a criminal defendant’s right to a fair trial, “the barriers to prior restraint remain high and the presumption against its use continues intact.” Nebraska Press Association v. Stuart, supra, 427 U.S. at 570, 96 S.Ct. at 2808, 49 L.Ed.2d at 704. Other courts, including this one, have echoed this sentiment. “[BJefore a prior restraint may be imposed by a judge, even in the interest of assuring a fair trial, there must be ‘an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.’ ” U. S. v. Columbia Broadcasting System, Inc., 497 F.2d 102, 104 (5th Cir. 1974). A lawyer’s First Amendment right to comment about pending or imminent criminal litigation can be proscribed only if his comments pose a “ ‘serious and imminent threat’ of interference with the fair administration of justice.” Chicago Council of Lawyers v. Bauer, supra, 522 F.2d at 249, quoting In re Oliver, 452 F.2d 111 (7th Cir. 1971). Even in the context of a criminal defendant’s right to a fair trial, then, prior restraint is “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Association v. Stuart, supra, 427 U.S. at 559, 96 S.Ct. at 2803, 49 L.Ed.2d at 697.
If the exigencies of the Sixth Amendment do not lessen the burden on those who seek to justify prior restraints, the interests of a civil litigant cannot do so. See Hirschkop v. Snead, supra, 594 F.2d at 373. The “interest of the judiciary in the proper administration of justice does not authorize any blanket exception to the first amendment.” Rodgers I, supra, 508 F.2d at 163. Thus, the general presumption against prior restraints is not mitigated by a claim that the fair and orderly administration of justice is at stake.28
[475]*475Nor does Rule 23, as a specific aspect of the administration of justice, create an exception to the principles governing prior restraints.29 See Rodgers v. U. S. Steel Corp., 536 F.2d 1001, 1008 (3d Cir. 1976) (Rodgers II) (suggesting, in context of class action, that test is “clear and present danger or a reasonable likelihood of a serious and imminent threat to the administration of justice”). The validity of a prior restraint entered under Rule 23 must be tested by the same standards utilized in other contexts. Subdivision (d) of Rule 23, which authorizes the court, in its discretion, to make appropriate orders in class actions, was designed to further “the fair and efficient conduct of the action . . . .” Advisory Committee Notes to Rule 23. Like the common law contempt power at issue in 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), the court’s discretion under Rule 23 is a facet of its general authority to regulate the conduct of litigation. To the extent that Rule 23 implements the class action as a unique litigation device, that discretion may be correspondingly broadened, and we recognize broad management powers of the court under Rule 23. But, while a legislative enactment may alter the court’s authority under common law, it may not encroach upon constitutionally protected rights. Prior restraints are no less suspect in a statutory setting than they are in a constitutional context. Allen v. Monger, 583 F.2d 438, 442 (9th Cir. 1978), pet. for cert. filed sub nom., Brown v. Allen, - U.S. -, 100 S.Ct. 1003, 62 L.Ed.2d 745 (1978). We cannot interpret Rule 23 as authorizing prior restraints without rewriting the First Amendment and the gloss put upon it by the Supreme Court. This, of course, we are not at liberty to do. Moreover, the Rules Enabling Act, 28 U.S.C. § 2072, explicitly provides that the Rules “shall not abridge, enlarge or modify any substantive right.” Finally, much of the communication prohibited by the order is both constitutionally protected and consistent with the purposes of the class action. See Coles v. Marsh, 560 F.2d 186, 189 (3d Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977); n.30 infra.
An exception to the constitutional principles limiting prior restraints cannot be constructed on the foundation of asserted potential abuses in class actions generally. In the first place, the hypothesis that abuses occur with such frequency and impact that prophylactic judicial intervention is required must be examined with the same scrutiny as other factual hypotheses. Neither the Constitution nor the judge’s duty of constitutional fact finding is subsumed by the application of the pejorative [476]*476word “abuse.” Not everything that tends to make a class action less convenient than ideal, or more difficult to manage, is an “abuse.” The same is true of such activities as solicitation of clients, or funds, or community support, that may be constitutionally protected but, at least to some, may appear only marginally ethical.30 The frequency and the effect of genuine abuses in class actions in general are not revealed by any empirical data made known to us, and judges may differ widely in their individual assessments. The Manual expressly recognizes that “abuse” of the class action is a rare occurrence, an exception and not the rule:
„It must be noted, however, that, generally, the experience of the courts in class actions has been favorable. The aforementioned abuses are the exceptions in class action litigation rather than the rule. Nevertheless, they support the idea that it is appropriate to guard against the occurrence of these relatively rare abuses by local rule or order.
Manual, Part I, § 1.41, p. 31 (1977 ed.). Its rationale is that it is desirable to anticipate and prevent these infrequent occurrences before they happen.31
In any event, the potential abuse rationale is at odds with the requirement that a prior restraint is only justified in exceptional circumstances and by a showing of direct, immediate and irreparable harm. Whether such a showing can be made may be affected by a host of factors: the occurrence of misconduct or the threat of it, the composition and size of the class, the nature of the claim, the historical policies of the district court in administering class actions, the identity, experience and standards of the lawyers, the mores of the bar, the necessity for discovery and many others. None of the four major potential abuses listed by the Manual presents any direct or immediate threat to the litigation in this case. Solicitation of clients is protected here under Button and Primus. See pp. 471-473, supra. The possibility of solicitation of funds is controverted by affidavits. See n. 25 supra. Solicitation of opt-out requests is not relevant to this Rule 23(b)(2) case. Finally, nothing justifies any inference in this case that communications are likely to “misrepresent the status, purposes and effects of the . . . action and of . [the] Court orders therein.”
There are other prerequisites to justification of a prior restraint. It must not sweep too broadly. Rather it “must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms.” CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir. 1975); see also Nebraska Press Association v. Stuart, supra; Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). There are alternatives to a total ban on communications. See n.13 supra; Developments in the Law — Class Actions, 89 Harv. L.Rev. 1318, 1600-1604 (1976); Wilson, Control of Class Action Abuses Through Regulation of Communications, 4 Class Action Reports 632 (1975). The order before us suppresses essentially everything, and one seeking to exercise his right to speech or [477]*477association must petition the court.32 No showing has been made, or even offered, that reasonable alternatives with lesser impact are unavailable.
Finally, the restraint “must have been accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech.” Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 559, 95 S.Ct. at 1247, 43 L.Ed.2d at 459. There are none here: no evidence, no way to test the potential abuse premise, no findings of particular abuses present or threatened, and no conclusions of law (except as to the desirability of conciliation). Obviously, there never can be procedural safeguards if by rule or order a wholesale restraint is directed in every case and those restrained are able to escape its impact only by showing good cause to be excepted or risking the vagaries of an arguable good faith defense.
The remaining justification for the order is the district judge’s reference to his obligations to encourage private settlement of Title VII charges. U. S. v. Allegheny-Ludlum Industries, 517 F.2d 826, 846 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976). The notice sent by the clerk gave judicial recognition to the conciliation agreement and extended the time during which employees could accept Gulf’s offer, while at the same time giving notice of the pendency of this suit. 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, “[u]nder 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 (5th Cir. 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 have freighted his choice with an across-the-board ban that restricted his access to information and advice concerning the choice.
We therefore hold that the district court’s order restricting communication by parties and their counsel with actual and potential class members is an unconstitutional prior restraint.33 This holding [478]*478makes it unnecessary for us to consider whether the order violates the First Amendment associational rights of either the individual plaintiffs or their attorneys. See Rodgers I, supra, 508 F.2d at 163; Great Western Cities, Inc. v. Binstein, supra, 476 F.Supp. at 834; cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (requiring NAACP to submit membership lists infringes associational rights); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960) (requiring list of organizations to which individual belongs or contributes infringes associational rights); Robinson v. Reed, 566 F.2d 911 (5th Cir. 1978) (requiring disclosure of facts about beliefs or associations infringes rights of privacy and association).34
VII. The order violates Rule 23
Because we hold that the order violates the First Amendment, it follows that it cannot be an “appropriate order” under Rule 23(d) of the Federal Rules of Civil Procedure.35
The order of the district court restricting communications by named plaintiffs and their counsel with actual and potential class members is VACATED, the judgment of the district court is REVERSED and the case is REMANDED to the district court for proceedings consistent with this opinion.