Petitioners, the publisher and the associate editor of a
newspaper, were responsible for the publication of two editorials
and a cartoon criticizing certain actions previously taken by a
Florida trial court of general jurisdiction in certain non-jury
proceedings as being too favorable to criminals and gambling
establishments. Two of the cases involved had been dismissed. In
the third, a rape case, an indictment had been quashed for
technical defects, but a new indictment had been obtained and trial
was pending. Petitioners were cited for contempt, the citation
charging,
inter alia, that the publications reflected upon
and impugned the integrity of the court, tended to create a
distrust for the court, willfully withheld and suppressed the
truth, and tended to obstruct the fair and impartial administration
of justice in pending cases. In their answer, petitioners denied
any intent to interfere with fair and impartial justice and
claimed,
inter alia, that it was their intent to condemn
and criticize the system of pleading and practice created by the
laws of Florida, that the publications were legitimate criticism
and comment within the federal guaranties of a free press, and that
they created no clear and present danger to the administration of
justice. The court found the facts recited and the charges made in
the citation to be true and well founded, adjudged petitioners
guilty of contempt, and fined them. This judgment was sustained by
the Supreme Court of Florida as being in accordance with Florida
law.
Held:
1. On this record, the danger to fair judicial administration
has not the clearness and immediacy necessary to close the door of
permissible public comment, and the judgment is reversed as
violative of petitioners' right of free expression in the press
under the First and Fourteenth Amendments.
Bridge v.
California, 314 U. S. 252. Pp.
328 U. S. 334,
328 U. S.
346-350.
2. This Court has final authority to determine the meaning and
application of those words of the Constitution which require
interpretation to resolve judicial issues. P.
328 U. S.
335.
3. In cases of this type, it must examine for itself the
statements in issue and the circumstances under which they were
made to see
Page 328 U. S. 332
whether or not they carry a threat of clear and present danger
to the impartiality and good order of the courts or whether they
are of a character protected by the principles of the First and
Fourteenth Amendments. Pp.
328 U. S. 335,
328 U. S. 336,
328 U. S.
346.
4. When the highest court of a State has reached a determination
upon such an issue, this Court gives most respectful attention to
its reasoning and conclusion; but the state court's authority is
not final. P.
328 U. S.
335.
5. This Court agrees with the Supreme Court of Florida that the
rape case was pending at the time of the publication. P.
328 U. S.
344.
6. This Court may accept the conclusion of the Florida courts
upon intent and motive as a determination of fact; but it is for
this Court to determine federal constitutional rights in the
setting of the facts. P.
328 U. S.
345.
7. Discussion that follows the termination of a case may be
inadequate to emphasize the danger to public welfare of supposedly
wrongful judicial conduct, but it does not follow that public
comment of every character upon pending trials or legal proceedings
may be as free as similar comment after complete disposal of the
litigation. P.
328 U. S.
346.
8. In borderline cases where it is difficult to say upon which
side the alleged offense falls, the specific freedom of public
comment should weigh heavily against a possible tendency to
influence pending cases. Freedom of discussion should be given the
widest possible range compatible with the essential requirement of
the fair and orderly administration of justice. P.
328 U. S.
347.
9. Since the publications concerned the attitude of the judges
toward those charged with crime, not comments on evidence or
rulings during a jury trial, their effect on juries that might
eventually try the alleged offenders is too remote to be considered
a clear and present danger to justice. P.
328 U. S.
348.
10. This criticism of the judge's inclinations or actions in
pending non-jury proceedings could not directly affect the
administration of justice, although the cases were still pending on
other points or might be revived by rehearings. P.
328 U. S.
348.
11. That a judge might be influenced by a desire to placate the
accusing newspaper to retain public esteem and secure reelection at
the cost of unfair rulings against an accused is too remote a
possibility to be considered a clear and present danger to justice.
P.
328 U. S.
349.
156 Fla. 227, 22 So. 2d 875, reversed.
Page 328 U. S. 333
Petitioners were adjudged guilty of contempt of a state court.
The Supreme Court of Florida affirmed. 156 Fla. 227, 22 So. 2d 875.
This Court granted certiorari. 326 U.S. 709.
Reversed, p.
328 U. S.
350.
MR. JUSTICE REED delivered the opinion of the Court.
This proceeding brings here for review a judgment of the Supreme
Court of Florida, 156 Fla. 227, 22 So. 2d 875, which affirmed a
judgment of guilt in contempt of the Circuit Court of Dade County,
Florida, on a citation of petitioners by that Circuit Court.
The individual petitioner was the associate editor of the Miami
Herald, a newspaper of general circulation, published in Dade
County, Florida, and within the jurisdiction of the trial court.
The corporate petitioner was the publisher of the Miami Herald.
Together, petitioners were responsible for the publication of two
editorials charged by the citation to be contemptuous of the
Circuit Court and its judges in that they were unlawfully critical
of the administration of criminal justice in certain cases then
pending before the Court.
Certiorari was granted to review petitioners' contention that
the editorials did not present "a clear and present danger of high
imminence to the administration of justice
Page 328 U. S. 334
by the court" or judges who were criticized, and therefore the
judgment of contempt was invalid as violative of the petitioners'
right of free expression in the press. The importance of the issue
in the administration of justice at this time, in view of this
Court's decision in
Bridges v. California, 314 U.
S. 252, three years prior to this judgment in contempt,
is apparent.
Bridges v. California fixed reasonably well marked
limits around the power of courts to punish newspapers and others
for comments upon or criticism of pending litigation. The case
placed orderly operation of courts as the primary and dominant
requirement in the administration of justice. Pages
314 U. S. 263,
314 U. S. 265,
314 U. S. 266.
This essential right of the courts to be free of intimidation and
coercion was held to be consonant with a recognition that freedom
of the press must be allowed in the broadest scope compatible with
the supremacy of order. A theoretical determinant of the limit for
open discussion was adopted from experience with other adjustments
of the conflict between freedom of expression and maintenance of
order. This was the clear and present danger rule. The evil
consequence of comment must be "extremely serious, and the degree
of imminence extremely high, before utterances can be punished."
Page
314 U. S. 263.
It was, of course, recognized that this formula, as would any
other, inevitably had the vice of uncertainty, page
314 U. S. 261,
but it was expected that, from a decent self-restraint on the part
of the press and from the formula's repeated application by the
courts, standards of permissible comment would emerge which would
guarantee the courts against interference and allow fair play to
the good influences of open discussion. As a step toward the
marking of the line, we held that the publications there involved
were within the permissible limits of free discussion.
In the
Bridges case, the clear and present danger rule
was applied to the stated issue of whether the expressions
there
Page 328 U. S. 335
under consideration prevented "fair judicial trials free from
coercion or intimidation." Page
314 U. S. 259.
There was, of course, no question as to the power to punish for
disturbances and disorder in the court room. Page
314 U. S. 266.
The danger to be guarded against is the "substantive evil" sought
to be prevented. Pages
314 U. S. 261,
314 U. S. 262,
314 U. S. 263.
In the
Bridges case, that "substantive evil" was primarily
the "disorderly and unfair administration of justice." Pages
314 U. S. 270,
314 U. S. 271,
314 U. S. 278.
[
Footnote 1]
The Constitution has imposed upon this Court final authority to
determine the meaning and application of those words of that
instrument which require interpretation to resolve judicial issues.
With that responsibility, we are compelled to examine for ourselves
the statements in issue and the circumstances under which they were
made to see whether or not they do carry a threat of clear and
present danger to the impartiality and good order of the courts or
whether they are of a character which the principles of the First
Amendment, as adopted by the Due Process Clause of the Fourteenth
Amendment, protect. [
Footnote
2] When the highest court of a state has reached a
determination upon such an issue, we give most respectful attention
to its reasoning and conclusion, but its authority is not final.
Were it otherwise, the constitutional limits of free expression in
the Nation would vary with state lines. [
Footnote 3]
While there was a division of the Court in the
Bridges
case as to whether some of the public expressions by editorial
Page 328 U. S. 336
comment transgressed the boundaries of a free press and as to
the phrasing of the test, there was unanimous recognition that
California's power to punish for contempt was limited by this
Court's interpretation of the extent of protection afforded by the
First Amendment.
Bridges v. California, supra, at
314 U. S. 297.
Whether the threat to the impartial and orderly administration of
justice must be a clear and present or a grave and immediate
danger, a real and substantial threat, one which is close and
direct or one which disturbs the court's sense of fairness, depends
upon a choice of words. Under any one of the phrases, reviewing
courts are brought in cases of this type to appraise the comment on
a balance between the desirability of free discussion and the
necessity for fair adjudication, free from interruption of its
processes.
The editorials of November 2d and 7th, 1944, which caused the
court to issue the citation are set out below. [
Footnote 4]
Page 328 U. S. 337
Accompanying the first editorial was a cartoon which held up the
law to public obloquy. It caricatured a court by a robed compliant
figure as a judge on the bench tossing
Page 328 U. S. 338
aside formal charges to hand a document, marked "Defendant
dismissed," to a powerful figure close at his left arm and of an
intentionally drawn criminal type. At the
Page 328 U. S. 339
right of the bench, a futile individual, labeled "Public
Interest" vainly protests.
The citation charges that the editorials
"did reflect upon and impugn the integrity of said Court and the
Judges thereof in imputing that the Judges of said Court 'do
recognize and accept, even go out to find, every possible
technicality of the law to protect the defendant, to block, thwart,
hinder, embarrass and nullify prosecution,' which said acts by you
tend to create a distrust for said court and the judges thereof in
the minds of the people of this county and state and tend to
prevent and prejudice a fair and impartial action of the said Court
and the Judges thereof in respect to the said pending case[s]."
After setting out details of alleged willful withholding and
suppression of the whole truth in the publications, the citation
further charges that
"you, by said cartoon and editorial, have caused to be
represented unto the public that concerning the cases of (A) the
eight indictments for rape, (B) the said Brook Club case, and (C)
the Teepee Club case, that the Judges of this Court [had not]
fairly and impartially heard and decided the matters in said
editorial mentioned and have thereby represented unto the general
public that notwithstanding the
Page 328 U. S. 340
great public trust vested in the Judges of this Court that they
have not discharged their duties honorably and fairly in respect to
said pending cases as hereinbefore set forth, all of which tends to
obstruct and interfere with the said Judges as such in fairly and
impartially administering justice and in the discharging of their
duties in conformity with the true principles which you have so
properly recognized in the forepart of said editorial above quoted
as being incumbent upon them and each of them; . . ."
Petitioners were required to show cause why they should not be
held in contempt.
Petitioners answered that the publications were legitimate
criticism and comment within the federal guaranties of free press
and, created no clear and present danger to the administration of
justice. They sought to justify the publications by stating in
their return to the rule that the facts stated in the editorials
were correct, that two of the cases used as examples were not
pending when the comments were made, since orders of dismissal had
been previously entered by the Circuit Court, and that they, as
editors,
"had the right if not the duty openly and forcefully to discuss
these conditions to the end that these evils, that are profoundly
disturbing to the citizens of this county, might be remedied. The
publications complained of did nothing more than discuss the
generally recognized weakness and breakdown in the system of law
enforcement and call for its improvement."
It is not practicable to comment at length on each of the
challenged items. To make our decision as clear as possible, we
shall refer in detail only to the comments concerning the "Rape
Cases." These we think fairly illustrate the issues, and are the
most difficult comments for the petitioners to defend.
Page 328 U. S. 341
As to these cases, the editorial said:
"This Week, the people, through their grand jury, brought into
court eight indictments for rape. Judge Paul D. Barns agreed with
the defense that the indictments were not properly drawn. Back they
went to the grand jury for re-presentation to the court."
We shall assume that the statement,
"judicial instance and interpretative procedure . . . even go
out to find every possible technicality of the law to protect the
defendant . . . and nullify prosecution"
refers to the quashing of the rape indictments, as well as other
condemned steps. The comment of the last two paragraphs evidently
includes these dismissals as so-called legal technicalities.
See Note 4
The citation charged that the prosecuting officer in open court
agreed that the indictments were so defective as to make
reindictment advisable. Reindictments were returned the next day,
and before the editorial. It was charged that these omissions were
a wanton withholding of the full truth.
As to this charge, the petitioners made this return:
"That as averred in the citation, a motion was made to quash the
indictment in Case 856, the ruling upon which would control in the
other cases mentioned. Whereupon the representative of the State
Attorney's Office stated in effect that he believed the original
indictment was in proper form, but, to eliminate any question, he
would have these defendants immediately reindicted by the Grand
Jury, which was still then in session. And thereupon the Judge of
said Court did sustain the motion to quash with respect to Case No.
856."
The record of the Criminal Division of the Circuit Court, set
out in the findings of fact at the hearing on the citation in
contempt, shows that, in case No. 856, the court upheld the
defendants' motion to quash "with the approval
Page 328 U. S. 342
of the Assistant State Attorney" and quashed the remaining
indictments on his recommendation. Reindictment of the accused on
the next day, prompt arraignment, and setting for trial also
appears. We accept the record as conclusive of the facts.
We read the Circuit Court's judgment to find that the comment on
the Rape Cases contained only "half-truths," that it did not
"fairly report the proceedings" of the court, that it contained
"misinformation." The judgment said:
"To report on court proceedings is a voluntary undertaking but,
when undertaken, the publisher who fails to fairly report does so
at his own peril."
"
* * * *"
"We find the facts recited and the charges made in the citation
to be true and well founded; . . ."
This finding included the fact that reindictments were then
pending in the Rape Cases. Defendants' assignments of error
challenged the ruling that the matters referred to in the
editorials were pending and the Supreme Court of Florida ruled that
the cases were pending. 156 Fla. at 241, 22 So.2d at 883:
"We also agree that publications about a case that is closed, no
matter how scandalous, are not punishable as contempt. This is the
general rule, but the Florida Statute is more liberal than the
rule."
Cf. Florida Statutes 1941, § 38.23 and § 932.03;
see also 156 Fla. at 248, 249, 22 So. 2d at 886.
In
Bridges v. California, 314 U.
S. 252,
314 U. S.
271-78, dissent
314 U. S. 297-302, this Court looked upon cases as
pending following completed interlocutory actions of the courts,
but awaiting other steps. In one instance, it was sentence after
verdict. In another, a motion for a new trial.
Pennekamp was fined $250, and the corporation $1,000.00.
The Supreme Court of Florida restated the facts as to the Rape
Cases from the record. 156 Fla. at 238, 22 So.2d
Page 328 U. S. 343
at 881. It then reached a conclusion as to all of the charges
and so as to the Rape Cases in the words set out below. [
Footnote 5] After further discussion of
the facts, the Court said, 156 Fla. at 241, 22 So.2d at 883:
"In the light of this factual recitation, it is utter folly to
suggest that the object of these publications was other than to
abase and destroy the efficiency of the court."
To focus attention on the critical issue, we quote below from
the decision of the Supreme Court of Florida certain excerpts which
we believe fairly illustrate its position as to the applicable law.
[
Footnote 6]
Page 328 U. S. 344
From the editorials, the explanations of the petitioners, and
the records of the court, it is clear that the full truth in regard
to the quashing of the indictments was not published. We agree with
the Supreme Court that the Rape
Page 328 U. S. 345
Cases were pending at the time of the editorials. We agree that
the editorials did not state objectively the attitude of the
judges. We accept the statement of the Supreme Court that, under
Florida law, "There was no judgment that could have been entered in
any of them except the one that was entered." 156 Fla. at 240, 22
So. 2d at 882. And, although we may feel that this record scarcely
justifies the harsh inference that the truth was willfully or
wantonly or recklessly withheld from the public, or that the motive
behind the publication was to abase and destroy the efficiency of
the courts, we may accept in this case that conclusion of the
Florida courts upon intent and motive as a determination of fact.
[
Footnote 7] While the ultimate
power is here to ransack the record for facts in constitutional
controversies, we are accustomed to adopt the result of the state
court's examination. [
Footnote
8] It is the findings of the state courts on undisputed facts
or the undisputed facts themselves which ordinarily furnish the
basis for our appraisal of claimed violations of federal
constitutional rights. [
Footnote
9]
The acceptance of the conclusion of a state court as to the
facts of a situation leaves open to this Court the determination of
federal constitutional rights in the setting of
Page 328 U. S. 346
those facts. [
Footnote
10] When the
Bridges case was here, there was
necessarily involved a determination by the California state court
that all of the editorials had at least a tendency to interfere
with the fair administration of criminal justice in pending cases
in a court of that state. Yet this Court was unanimous in saying
that two of those editorials had no such impact upon a court as to
justify a conviction of contempt in the face of the principles of
the First Amendment. We must, therefore, weigh the right of free
speech which is claimed by the petitioners against the danger of
the coercion and intimidation of courts in the factual situation
presented by this record.
Free discussion of the problems of society is a cardinal
principle of Americanism -- a principle which all are zealous to
preserve. [
Footnote 11]
Discussion that follows the termination of a case may be inadequate
to emphasize the danger to public welfare of supposedly wrongful
judicial conduct. [
Footnote
12] It does not follow that public comment of every character
upon pending trials or legal proceedings may be as free as a
similar comment after complete disposal of the litigation. Between
the extremes, there are areas of discussion which an understanding
writer will appraise in the
Page 328 U. S. 347
light of the effect on himself and on the public of creating a
clear and present danger to fair and orderly judicial
administration. Courts must have power to protect the interests of
prisoners and litigants before them from unseemly efforts to
pervert judicial action. In the borderline instances where it is
difficult to say upon which side the alleged offense falls, we
think the specific freedom of public comment should weigh heavily
against a possible tendency to influence pending cases. Freedom of
discussion should be given the widest range compatible with the
essential requirement of the fair and orderly administration of
justice.
While a disclaimer of intention does not purge a contempt, we
may at this point call attention to the sworn answer of petitioners
that their purpose was not to influence the court. An excerpt
appears below. [
Footnote 13]
For circumstances to create a clear and present danger to judicial
administration, a solidity of evidence should be required which it
would be difficult to find in this record.
Compare
Page 328 U. S. 348
Baumgartner v. United States, 322 U.
S. 665,
322 U. S. 670;
Schneiderman v. United States, 320 U.
S. 118.
The comments were made about judges of courts of general
jurisdiction -- judges selected by the people of a populous and
educated community. They concerned the attitude of the judges
toward those who were charged with crime, not comments on evidence
or rulings during a jury trial. Their effect on juries that might
eventually try the alleged offenders against the criminal laws of
Florida is too remote for discussion. Comment on pending cases may
affect judges differently. It may influence some judges more than
others. Some are of a more sensitive fiber than their colleagues.
The law deals in generalities and external standards, and cannot
depend on the varying degrees of moral courage or stability in the
face of criticism which individual judges may possess, any more
than it generally can depend on the personal equations or
individual idiosyncrasies of the tort-feasor.
The
Germanic, 196 U. S. 589,
196 U. S. 596;
Arizona Employers' Liability Cases, 250 U.
S. 400,
250 U. S. 422,
250 U. S. 432.
We are not willing to say under the circumstances of this case that
these editorials are a clear and present danger to the fair
administration of justice in Florida.
Cf. Near v.
Minnesota, 283 U. S. 697,
283 U. S.
714-15.
What is meant by clear and present danger to a fair
administration of justice? No definition could give an answer.
Certainly this criticism of the judges' inclinations or actions in
these pending non-jury proceedings could not directly affect such
administration. This criticism of their actions could not affect
their ability to decide the issues. Here, there is only criticism
of judicial action already taken, although the cases were still
pending on other points, or might be revived by rehearings. For
such injuries, when the statements amount to defamation, a
Page 328 U. S. 349
judge has such remedy in damages for libel as do other public
servants.
It is suggested, however, that, even though his intellectual
processes cannot be affected by reflections on his purposes, a
judge may be influenced by a desire to placate the accusing
newspaper to retain public esteem and secure reelection, presumably
at the cost of unfair rulings against an accused. In this case, too
many fine-drawn assumptions against the independence of judicial
action must be made to call such a possibility a clear and present
danger to justice. For this to follow, there must be a judge of
less than ordinary fortitude without friends or support or a
powerful and vindictive newspaper bent upon a rule or ruin policy,
and a public unconcerned with or uninterested in the truth or the
protection of their judicial institutions. If, as the Florida
courts have held and as we have assumed, the petitioners
deliberately distorted the facts to abase and destroy the
efficiency of the court, those misrepresentations with the
indicated motives manifested themselves in the language employed by
petitioners in their editorials. The Florida courts see in this
objectionable language an open effort to use purposely the power of
the press to destroy without reason the reputation of judges and
the competence of courts. This is the clear and present danger they
fear to justice. Although we realize that we do not have the same
close relations with the people of Florida that are enjoyed by the
Florida courts, we have no doubt that Floridians in general would
react to these editorials in substantially the same way as citizens
of other parts of our common country.
As we have pointed out, we must weigh the impact of the words
against the protection given by the principles of the First
Amendment, as adopted by the Fourteenth, to public comment on
pending court cases. We conclude
Page 328 U. S. 350
that the danger under this record to fair judicial
administration has not the clearness and immediacy necessary to
close the door of permissible public comment. When that door is
closed, it closes all doors behind it.
Reversed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
Compare Schenck v. United States, 249 U. S.
47,
249 U. S. 52;
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 105;
Carlson v. California, 310 U. S. 106,
310 U. S. 113;
Board of Education v. Barnette, 319 U.
S. 624,
319 U. S.
633.
[
Footnote 2]
Gitlow v. New York, 268 U. S. 652,
268 U. S. 666;
Near v. Minnesota, 283 U. S. 697,
283 U. S.
707.
[
Footnote 3]
Bridges v. California, 314 U.
S. 252,
314 U. S. 267.
Compare Chambers v. Florida, 309 U.
S. 227,
309 U. S. 228;
Hooven & Allison Co. v. Evatt, 324 U.
S. 652,
324 U. S.
659.
[
Footnote 4]
November 2, 1944:
"
Courts Are Established -- "
"
For the People"
"The courts belong to the people. The people have established
them to promote justice, insure obedience to the law and to Punish
Those Who Willfully Violate It."
"The people maintain the courts by providing the salaries of
officials and setting up costly chambers and courtrooms for the
orderly and dignified procedure of the tribunals."
"Upon the judges the people must depend for the decisions and
the judicial conduct that will insure society -- as a whole and in
its individuals -- against those who would undermine or destroy the
peace, the morality and the orderly living of the community."
"
-------"
"In Order that the courts should not be amenable to political or
other pressures in their determination of matters placed before
them, Florida Circuit judges are called upon to face the electorate
less often than are other elective office holders."
"So long are their terms, in fact, that, in Dade county, no
Circuit judge, and only one judge of another court, has come to the
bench by public choice in the first instance. All the others have
been named by a governor to fill a vacancy caused by death or
resignation, or similar circumstance."
"Judicial terms in Dade county run: "
"1 -- Six years each for six Circuit judges."
"2 -- Four years each for two Civil Court of Record judges."
"3 -- Four years for the judge of the Criminal Court of
Record."
"4 -- Four years for the judge of the Court of Crimes."
"5 -- Four years for County judge."
"6 -- Four years for Juvenile court judge."
"These twelve judges represent the majesty and the sanctity of
the law. They are the first line of defense locally of organized
society against vice, corruption and crime, and the sinister
machinations of the underworld."
"
-------"
"It Is beyond question that American courts are of, by and for
the people."
"Every accused person has a right to his day in court. But when
judicial instance and interpretative procedure recognize and
accept, even go out to find, every possible technicality of the law
to protect the defendant, to block, thwart, hinder, embarrass and
nullify prosecution, then the people's rights are jeopardized and
the basic reason for courts stultified."
"The seeming ease and pat facility with which the criminally
charged have been given technical safeguard have set people to
wondering whether their courts are being subverted into refuges for
lawbreakers."
"This Week, the people, through their grand jury, brought into
court eight indictments for rape. Judge Paul D. Barns agreed with
the defense that the indictments were not properly drawn. Back they
went to the grand jury for re-presentation to the court."
"Only in the gravest emergency does a judge take over a case
from another court of equal jurisdiction. A padlock action against
the Brook Club was initiated last spring before Judge George E.
Holt, who granted a temporary injunction."
"After five months, the case appeared Tuesday out of blue sky
before Judge Marshall C. Wiseheart at the time State Attorney
Stanley Milledge was engaged with the grand jury."
"Speedy decision was asked by defense counsel despite months of
stalling. The State Attorney had to choose between the grand jury
and Judge Wiseheart's court."
"The judge dismissed the injunction against the club and its
operators. The defense got delay when it wanted, and prompt
decision from the court when it profited it."
"On Oct. 10, Judge Holt had before him a suit by the state to
abate a nuisance (bookmaking) at the Tepee Club."
"Five affidavits of persons who allegedly visited the premises
for the purpose of placing bets were introduced by the state over
the objection of the defendants."
"Judge Holt ruled them out, explaining in denying the injunction
against the Tepee Club: "
" The defendant cannot cross-examine an affidavit. The court
cannot determine who is testifying and whether belief can be placed
upon such testimony . . . The fact that such affidavits were taken
before the State Attorney does not give them any additional weight
or value."
"This may be good law, exact judicial evaluation of the
statutes. It is, however, the character of legal interpretation
which causes people to raise questioning eyebrows and shake
confused heads in futile wonderment."
"
-------"
"If Technicalities are to be the order and the way for the
criminally charged either to avoid justice altogether or so to
delay prosecution as to cripple it, then it behooves our courts and
the legal profession to cut away the deadwood and the
entanglements."
"Make it possible for the state's case, the people's case, to be
seen with equal clarity of judicial vision as that accorded accused
lawbreakers. Otherwise, technicalities and the courts make the law,
no matter what the will of the people and of their
legislators."
November 7, 1944:
"
Why People Wonder"
"Here is an example of why people wonder about the law's delays
and obstructing technicalities operating to the disadvantage of the
state -- which is the people -- in prosecutions."
"After stalling along for months, the defense in the padlock
case against the Brook Club appeared before Judge Marshall C.
Wiseheart for a decision. The State Attorney was working with the
grand jury. The court knocked out the injunction. There was speed,
dispatch, immediate attention, and action for those charged with
violation of the law. So fast that the people didn't get in a
peep."
"That's one way of gumming up prosecution. Another is to delay
action. On March 29, Coy L. Jaggears, bus driver, was sentenced to
fifteen days in city jail by Judge Cecil C. Curry on conviction of
beating up a taxicab operator."
"The arrest precipitated the notorious bus strike. As a result,
Jaggears walked out of jail after posting a $200 appeal bond. The
appeal never got further."
"There you have the legal paradox, working two ways, but to the
same purpose against prosecution. Speed when needed. Month after
month of delay when that serves the better."
[
Footnote 5]
156 Fla. 227, 239, 240, 22 So. 2d 875, 882:
"So the vice in both the editorials was the distorted,
inaccurate statement of the facts and with that statement were
scrambled false insinuations that amounted to unwarranted charges
of partisanship and unfairness on the part of the judges."
"The record was available in all these cases, and it does not
reveal a breath of suspicion on which to predicate partisanship and
unfairness on the part of the judges. It is shown, rather, that
they acted in good faith and handled each case to the very best
advantage possible. There was no judgment that could have been
entered in any of them except the one that was entered. If the
editorials had stated the facts correctly, nothing but a correct
conclusion could have been deduced, and there would have been no
basis for contempt, but here they elected to publish as truth a
mixture of factual misstatement and omission and impose on that
false insinuation, distortion, and deception, and then contend that
freedom of the press immunizes them from punishment."
[
Footnote 6]
156 Fla. 227, 244-249, 22 So. 2d 875, 884-886:
"A newspaper may criticize, harass, irritate, or vent its spleen
against a person who holds the office of judge in the same manner
that it does a member of the Legislature and other elective
officers, but it may not publish scurrilous or libelous criticisms
of a presiding judge as such or his judgments for the purpose of
discrediting the Court in the eyes of the public. Respect for
courts is not inspired by shielding them from criticism. This is a
responsibility of the judge, acquired over the years by the spirit
in which he approaches the judicial process, his ability to
humanize the law and square it with reason, the level of his
thinking, the consistency of his adherence to right and justice,
and the degree to which he holds himself aloof from blocs, groups,
and techniques that would sacrifice justice for expediency."
"Courts cannot function in a free country when the atmosphere is
charged with the effusions of a press designed to poison the mind
of the public against the presiding judges, rather than to clarify
the issues and propagate the truth about them. The latter was the
press that Mr. Jefferson visioned when he promulgated the thesis,
'Our liberty depends on the freedom of the press and that cannot be
limited without being lost.'"
"Freedom to publish one's views is a principle of universal
practice, but when the press deliberately abandons the proprieties
and sets out to poison its pabulum or to sow dragons' teeth and
dispense canards for the purpose of doing another a wrong, it is no
different category from a free man that does likewise. The most
rigid safeguard thrown around a free press would not protect
appellants from falsely publishing or announcing to the world that
the clergy of Miami were in sympathy with the practice of polygamy
or were fostering other doctrines equally obnoxious to approved
moral standards."
"The theory of our system of fair trial is that the
determination of every case should be induced solely by evidence
and argument in open court and the law applicable thereto, and not
by any outside influence, whether of private talk or public
print."
"The State Courts touch the public much more frequently than the
Federal Courts, and they have many reasons to enforce orderly
administration that would not arise in the Federal Courts. If that
power is to be construed by what appellants contend to be the
pattern in the
Bridges and
Nye cases, then more
than one hundred years of state law and decisions on the subject
are turned into confusion or set at naught. . . ."
"We do not think this can be the law. The
Bridges case
was disposed of on authority of the "
clear and present danger'
cases," which are not analogous to most of the state cases because
they arise from a different state of the law. The ultimate test in
the Bridges case requires that the "substantive evil must
be extremely serious and the degree of imminence extremely high
before utterances can be punished." Even if this test is to [be]
the rule in the State Courts, they are authorized to apply it by
their own law and standards and, unless the application is shown to
be arbitrary and unreasonable, their judgment should not be
disturbed. The law in Florida permits the most liberal exercise
possible of freedom of the press, but holds to account those who
abuse it."
"We therefore hold that the cartoon and the editorials afford
ample support for the judgment imposed, and that the issues were
properly adjudicated under Florida law."
[
Footnote 7]
See IX Wigmore, Evidence (3d Ed.) § 2557.
Crawford
v. United States, 212 U. S. 183,
212 U. S.
203.
[
Footnote 8]
Drivers Union v. Meadowmoor Co., 312 U.
S. 287,
312 U. S.
293-94;
Lisenba v. California, 314 U.
S. 219,
314 U. S.
238.
[
Footnote 9]
Chambers v. Florida, 309 U. S. 227,
309 U. S. 239;
Ashcraft v. Tennessee, 322 U. S. 143,
322 U. S. 152,
153,
322 U. S. 154;
Malinski v. New York, 324 U. S. 401,
324 U. S.
404.
[
Footnote 10]
See the cases in the preceding paragraph,
note 8
[
Footnote 11]
Murdock v. Pennsylvania, 319 U.
S. 105,
319 U. S. 115;
Board of Education v. Barnette, 319 U.
S. 624,
319 U. S. 639;
Thomas v. Collins, 323 U. S. 516,
323 U. S. 527,
323 U. S.
530.
[
Footnote 12]
Bridges v. California, 314 U.S. at
314 U. S.
269:
"No suggestion can be found in the Constitution that the freedom
there guaranteed for speech and the press bears an inverse ratio to
the timeliness and importance of the ideas seeking expression. Yet
it would follow as a practical result of the decisions below that
anyone who might wish to give public expression to his views on a
pending case involving no matter what problem of public interest,
just at the time his audience would be most receptive, would be as
effectively discouraged as if a deliberate statutory scheme of
censorship had been adopted."
[
Footnote 13]
"These respondents deny any intent by either said editorial or
said cartoon either in words or otherwise to interfere with fair
and impartial justice in the State of Florida, and deny that the
large character in the cartoon was beside the judge and on the
bench and being heard, recognized and favored, but, on the
contrary, these respondents respectfully show that it was the
intention of said editorial and said cartoon to condemn and
criticise the system of pleading and practice and procedure created
by the laws of Florida, whereby such cases could long be delayed
and then could be dismissed upon technical grounds in the manner
herein shown."
We add Mr. Pennekamp's statement of the editorial policy of the
Miami Herald:
"'We are ourselves Free -- Free as the Constitution we enjoy --
Free to truth, good manners and good sense. We shall be for
whatever measure is best adapted to defending the rights and
liberties of the people and advancing useful knowledge. We shall
labor at all times to inspire the people with a just and proper
sense of their condition, to point out to them their true interest
and rouse them to pursue it.'"
MR. JUSTICE FRANKFURTER, concurring.
On the basis of two editorials and a cartoon, the Circuit Court
of Florida for the County of Dade found the publisher of the Miami
Herald and one of its editors guilty of contempt of court.
[
Footnote 2/1] The editor,
Pennekamp, was fined $250, and the Publishing Company $1,000.
Deeming
Bridges v. California, 314 U.
S. 252, not controlling, the Supreme Court of Florida,
with two judges dissenting, sustained the convictions. 156 Fla.
227, 22 So. 2d 875.
In the
Bridges case, this Court recently canvassed
constitutional aspects of contempt of court by publication. But it
was hardly to be expected that other problems in the large field
within which the
Bridges case moved would not recur. This
Court sits to interpret, in appropriate judicial controversies, a
Constitution which, in its Bill of Rights, formulates the
conditions of a democracy. But democracy is the least static form
of society. Its basis
Page 328 U. S. 351
is reason, not authority. Formulas embodying vague and
uncritical generalizations offer tempting opportunities to evade
the need for continuous thought. But so long as men want freedom,
they resist this temptation. Such formulas are most beguiling and
most mischievous when contending claims are those not of right and
wrong, but of two rights, each highly important to the wellbeing of
society. Seldom is there available a pat formula that adequately
analyzes such a problem, least of all solves it. Certainly no such
formula furnishes a ready answer to the question now here for
decision, or even exposes its true elements. The precise issue is
whether, and to what extent, a State can protect the administration
of justice by authorizing prompt punishment, without the
intervention of a jury, of publications out of court that may
interfere with a court's disposition of pending litigation.
The decision in the
Bridges case did not explicitly
deny to the States the right to protect the judicial process from
interference by means of a publication bearing on a pending
litigation. The atmosphere and emanations of the Court's opinion,
however, were calculated to sanction anything to be said or written
outside the courtroom even though it may hurt or embarrass the just
outcome of a proceeding. But in a series of decisions which
presented most sharply the constitutional extent of freedom of
speech, this Court had held that the Constitution did not allow
absolute freedom of expression -- a freedom unrestricted by the
duty to respect other needs fulfillment of which makes for the
dignity and security of man.
Schenck v. United States,
249 U. S. 47;
Frohwerk v. United States, 249 U.
S. 204;
Debs v. United States, 249 U.
S. 211.
No Justice thought more deeply about the nature of a free
society or was more zealous to safeguard its conditions by the most
abundant regard for civil liberty than Mr. Justice Holmes. He left
no doubt that judicial protection
Page 328 U. S. 352
of freedom of utterance is necessarily qualified by the
requirements of the Constitution as an entirety for the maintenance
of a free society. It does an ill service to the author of the most
quoted judicial phrases regarding freedom of speech to make him the
victim of a tendency which he fought all his life, whereby phrases
are made to do service for critical analysis by being turned into
dogma.
"It is one of the misfortunes of the law that ideas become
encysted in phrases and thereafter for a long time cease to provoke
further analysis."
Holmes, J., dissenting, in
Hyde v. United States,
225 U. S. 347,
225 U. S. 384,
at
225 U. S. 391.
Words which
"are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent,"
Schenck v. United States, 249 U. S.
47,
249 U. S. 52,
speak their own condemnation. But it does violence to the juristic
philosophy and the judicial practice of Mr. Justice Holmes to
assume that, in using the phrase "a clear and present danger," he
was expressing even remotely an absolutist test, or had in mind a
danger in the abstract. He followed the observation just quoted by
the emphatic statement that the question is one "of proximity and
degree," as he conceived to be most questions in connection with
the large, undefined rights guaranteed by the Constitution. And Mr.
Justice Brandeis, co-architect of the great constitutional
structure of civil liberties, also recognized that
"the permissible curtailment of free speech is . . . one of
degree. And because it is a question of degree, the field in which
the jury may exercise its judgment is, necessarily, a wide
one."
Schaefer v. United States, 251 U.
S. 466,
251 U. S. 482,
at
251 U. S. 483
(dissenting). If Mr. Justice Brandeis' constitutional philosophy
means anything, it is clear beyond peradventure that he would not
deny to a State, exercising its judgment as to the mode by which
speech may be curtailed by punishment
Page 328 U. S. 353
subsequent to its utterance, a field less wide than that which
he permitted a jury in a federal court.
"Clear and present danger" was never used by Mr. Justice Holmes
to express a technical legal doctrine or to convey a formula for
adjudicating cases. It was a literary phrase not to be distorted by
being taken from its context. In its setting, it served to indicate
the importance of freedom of speech to a free society, but also to
emphasize that its exercise must be compatible with the
preservation of other freedoms essential to a democracy and
guaranteed by our Constitution. When those other attributes of a
democracy are threatened by speech, the Constitution does not deny
power to the States to curb it. "The clear and present danger" to
be arrested may be danger short of a threat as comprehensive and
vague as a threat to the safety of the Republic or "the American
way of life." Neither Mr. Justice Holmes nor Mr. Justice Brandeis
nor this Court ever suggested in all the cases that arose in
connection with the First World War, that only imminent threats to
the immediate security of the country would authorize courts to
sustain legislation curtailing utterance. Such forces of
destruction are of an order of magnitude which courts are hardly
designed to counter. "The clear and present danger" with which its
two great judicial exponents were concerned was a clear and present
danger that utterance "would bring about the evil which Congress
sought and had a right to prevent."
Schaefer v. United States,
supra. Among "the substantive evils" with which legislation
may deal is the hampering of a court in a pending controversy,
because the fair administration of justice is one of the chief
tests of a true democracy. And since men equally devoted to the
vital importance of freedom of speech may fairly differ in an
estimate of this danger in a particular case, the field in which a
State "may exercise its judgment is, necessarily, a wide one."
Therefore,
Page 328 U. S. 354
every time a situation like the present one comes here the
precise problem before us is to determine whether the State court
went beyond the allowable limits of judgment in holding that
conduct which has been punished as a contempt was reasonably
calculated to endanger a State's duty to administer impartial
justice in a pending controversy.
Without a free press there can be no free society. [
Footnote 2/2] Freedom of the press,
however, is not an end, in itself, but a
Page 328 U. S. 355
means to the end of a free society. The scope and nature of the
constitutional protection of freedom of speech must be viewed in
that light, and in that light applied. The independence of the
judiciary is no less a means to the end of a free society, and the
proper functioning of an independent judiciary puts the freedom of
the press in its proper perspective. For the judiciary cannot
function properly if what the press does is reasonably calculated
to disturb the judicial judgment in its duty and capacity to act
solely on the basis of what is before the court. A judiciary is not
independent unless courts of justice are enabled to administer law
by absence of pressure from without, whether exerted through the
blandishments of reward or the menace of disfavor. In the noble
words, penned by John Adams, of the First Constitution of
Massachusetts:
"It is essential to the preservation of the rights of every
individual, his life, liberty, property, and character, that there
be an impartial interpretation of the laws, and administration of
justice. It is the right of every citizen to be tried by judges as
free, impartial, and independent as the lot of humanity will admit.
[
Footnote 2/3]"
A free press is not to be preferred to an independent judiciary,
nor an independent judiciary to a free press. Neither has primacy
over the other; both are indispensable to a free society. The
freedom of the press, in itself, presupposes an independent
judiciary through which that freedom may, if necessary, be
vindicated. And one of the potent means for assuring judges their
independence is a free press.
A free press is vital to a democratic society because its
freedom gives it power. Power in a democracy implies responsibility
in its exercise. No institution in a democracy, either governmental
or private, can have absolute
Page 328 U. S. 356
power. [
Footnote 2/4] Nor can
the limits of power which enforce responsibility be finally
determined by the limited power itself.
See Carl L.
Becker,
Freedom and Responsibility in the American Way of
Life (1945). In plain English, freedom carries with it
responsibility even for the press; freedom of the press is not a
freedom from responsibility for its exercise. Most State
constitutions expressly provide for liability for abuse of the
press' freedom. That there was such legal liability was so taken
for granted by the framers of the First Amendment that it was not
spelled out. Responsibility for its abuse was imbedded in the law.
[
Footnote 2/5] The First Amendment
safeguarded the right.
These are generalities. But they are generalities of the most
practical importance in achieving a proper adjustment between a
free press and an independent judiciary.
Especially in the administration of the criminal law -- that
most awesome aspect of government -- society needs independent
courts of justice. This means judges free from control by the
executive, free from all ties with political interests, free from
all fears of reprisal or hopes of
Page 328 U. S. 357
reward. The safety of society and the security of the innocent
alike depend upon wise and impartial criminal justice. Misuse of
its machinery may undermine the safety of the State; its misuse may
deprive the individual of all that makes a free man's life dear.
[
Footnote 2/6]
Criticism therefore must not feel cramped, even criticism of the
administration of criminal justice. Weak characters ought not to be
judges, and the scope allowed to the press for society's sake may
assume that they are not. No judge fit to be one is likely to be
influenced consciously except by what he sees and hears in court
and by what is judicially appropriate for his deliberations.
However, judges are also human, and we know better than did our
forbears how powerful is the pull of the unconscious and how
treacherous the rational process. While the ramparts of reason have
been found to be more fragile than the Age of Enlightenment had
supposed, the means for arousing passion and confusing judgment
have been reinforced. And since judges, however stalwart, are
human, the delicate task of administering justice ought not to be
made unduly difficult by irresponsible print.
The English bench is justly noted for its sturdiness, and it was
no weak-kneed judge who recently analyzed the mischief
Page 328 U. S. 358
of exposing even the hardiest nature to extraneous
influence:
". . . I think it is a fallacy to say or to assume that the
presiding judge is a person who cannot be affected by outside
information. He is a human being, and while I do not suggest that
it is likely that any judge, as the result of information which had
been improperly conveyed to him, would give a decision which
otherwise he would not have given, it is embarrassing to a judge
that he should be informed of matters which he would much rather
not hear and which make it much more difficult for him to do his
duty. To repeat the words I have already read from the judgment of
Wills J. in
Rex v. Parke [(1903) 2 K.B. 432],"
"The reason why the publication of articles like those with
which we have to deal is treated as a contempt of court is because
their tendency and sometimes their object is to deprive the court
of the power of doing that which is the end for which it exists --
namely, to administer justice duly, impartially, and with reference
solely to the facts judicially brought before it."
". . . I venture to think that no judge with long criminal
experience will fail to be able to recall instances in which the
publication of matters such as that to which I have referred has
had the effect of making the task of a judge extremely difficult,
and no one has the right to publish matter which will have that
effect."
Humphreys, J., in
Rex v. Davies, [1945] 1 K.B. 435,
442-43. The observations of another judge in the same case bear
quoting:
". . . jurors are not the only people whose minds can be
affected by prejudice. One of the evils of inadmissible matter
being disseminated is that no one can tell what effect a particular
piece of information may have on his mind. Why, as my Lord has
asked, and I can think of no better word, should a judge be
'embarrassed' by having matters put into his mind the effect of
which it is impossible to estimate or assess? As an illustration of
this proposition, the Court of Criminal
Page 328 U. S. 359
Appeal has expressed, not once but many times, its thorough
disapproval of evidence which is sometimes given by police officers
at the end of a case when a man has been convicted. On such
occasions, all sorts of allegations are frequently made against a
man's character, sometimes in the nature of hearsay and sometimes
not supported by evidence at all. What is the ground for the
disapproval of the Court of Criminal Appeal regarding such
statements? It can only be that the judge who, after hearing the
statements, has to pronounce sentence, may, quite unconsciously,
have his judgment influenced by matters which he has no right to
consider. . . . Not all defamatory matter can amount to contempt of
court. . . . Whether defamatory matter amounts to contempt in any
particular case is a question in each case of fact, of degree, and
of circumstances."
Oliver, J., in
Rex v. Davies, supra, at 445-46.
Cf.
Parashuram Detaram Shamdasani v. King-Emperor, [1945] A.C.
264. To deny that bludgeoning or poisonous comment has power to
influence, or at least to disturb, the task of judging is to play
make-believe and to assume that men in gowns are angels. The
psychological aspects of this problem become particularly pertinent
in the case of elected judges with short tenure.
"Trial by newspaper," like all catch phrases, may be loosely
used, but it summarizes an evil influence upon the administration
of criminal justice in this country. Its absence in England, at
least its narrow confinement there, furnishes an illuminating
commentary. It will hardly be claimed that the press is less free
in England than in the United States. Nor will any informed person
deny that the administration of criminal justice is more effective
there than here. This is so despite the commonly accepted view that
English standards of criminal justice are more civilized, or, at
the least, that recognized standards of fair conduct in the
prosecution of crime are better observed.
Page 328 U. S. 360
Thus, "the third degree" is not unjustly called "the American
method." [
Footnote 2/7] This is not
the occasion to enlarge upon the reasons for the greater
effectiveness of English criminal justice, but it may be
confidently asserted that it is more effective partly because its
standards are so civilized. [
Footnote
2/8] There are those who will resent such a statement as praise
of another country and dispraise of one's
Page 328 U. S. 361
own. What it really means is that one covets for his own country
a quality of public conduct not surpassed elsewhere.
Certain features of American criminal justice have long been
diagnosed by those best qualified to judge as serious and
remediable defects. On the other hand, some mischievous
accompaniments of our system have been so pervasive that they are
too often regarded as part of the exuberant American spirit. Thus,
"trial by newspapers" has sometimes been explained as a concession
to our peculiar interest in criminal trials. Such interest might be
an innocent enough pastime were it not for the fact that the
stimulation of such curiosity by the press and the response to such
stimulated interest have not failed to cause grievous tragedies
committed under the forms of law. Of course, trials must be public,
and the public have a deep interest in trials. The public's
legitimate interest, however, precludes distortion of what goes on
inside the courtroom, dissemination of matters that do not come
before the court, or other trafficking with truth intended to
influence proceedings or inevitably calculated to disturb the
course of justice. The atmosphere in a courtroom may be subtly
influenced from without. [
Footnote
2/9]
See dissenting
Page 328 U. S. 362
opinion of Mr. Justice Holmes in
Frank v. Mangum,
237 U. S. 309,
237 U. S. 345,
at
237 U. S. 349.
Cases are too often tried in newspapers
Page 328 U. S. 363
before they are tried in court, and the cast of characters in
the newspaper trial too often differs greatly from the real persons
who appear at the trial in court and who may have to suffer its
distorted consequences. [
Footnote
2/10]
Newspapers and newspaper men themselves have acknowledged these
practices, deplored their evils, and urged reform. [
Footnote 2/11]
See The Attorney
General's Conference on Crime (1934) 82-111. One of the most
zealous claimants of the prerogatives of the press, the Chicago
Tribune, has even proposed legal means for the correction of these
inroads
Page 328 U. S. 364
upon the province of criminal justice:
"'The Tribune advocates and will accept drastic restriction of
this preliminary publicity. The penetration of the police system
and the courts by journalists must stop. With such a law, there
would be no motivation for it. Though such a law will be
revolutionary in American journalism, though it is not financially
advisable for newspapers, it still is necessary. Restrictions must
come.' [
Footnote 2/12]"
It is not for me to express approval of these views, still less,
judgment on the constitutional issues that would arise if they were
translated into legislation. But they are relevant to an
understanding of the nature of our problem. They serve also to
emphasize that the purpose of the Constitution was not to erect the
press into a privileged institution, but to protect all persons in
their right to print what they will as well as to utter it. " . . .
the liberty of the press is no greater and no less than the liberty
of every subject of the Queen,"
Regina v. Gray, [1900] 2
Q.B. 36, 40, and, in the United States, it is no greater than the
liberty of every citizen of the Republic. The right to undermine
proceedings in court is not a special prerogative of the press.
Page 328 U. S. 365
The press does have the right, which is its professional
function, to criticize and to advocate. The whole gamut of public
affairs is the domain for fearless and critical comment, and not
least the administration of justice. But the public function which
belongs to the press makes it an obligation of honor to exercise
this function only with the fullest sense of responsibility.
Without such a lively sense of responsibility, a free press may
readily become a powerful instrument of injustice. [
Footnote 2/13] It should not and may not
attempt to influence judges or juries before they have made up
their minds on pending controversies. Such a restriction, which
merely bars the operation of extraneous influence specifically
directed to a concrete case, in no wise curtails the fullest
discussion of public issues generally. It is not suggested that
generalized discussion of a particular topic should be forbidden,
or run
Page 328 U. S. 366
the hazard of contempt proceedings, merely because some phases
of such a general topic may be involved in a pending litigation. It
is the focused attempt to influence a particular decision that may
have a corroding effect on the process of justice, and it is such
comment that justifies the corrective process.
The administration of law, particularly that of the criminal
law, normally operates in an environment that is not universal, or
even general, but individual. The distinctive circumstances of a
particular case determine whether law is fairly administered in
that case, through a disinterested judgment on the basis of what
has been formally presented inside the courtroom on explicit
considerations, instead of being subjected to extraneous factors
psychologically calculated to disturb the exercise of an impartial
and equitable judgment.
If men, including judges and journalists, were angels, there
would be no problems of contempt of court. Angelic judges would be
undisturbed by extraneous influences, and angelic journalists would
not seek to influence them. The power to punish for contempt, as a
means of safeguarding judges in deciding on behalf of the community
as impartially as is given to the lot of men to decide, is not a
privilege accorded to judges. The power to punish for contempt of
court is a safeguard not for judges as persons, but for the
function which they exercise. It is a condition of that function --
indispensable for a free society -- that, in a particular
controversy pending before a court and awaiting judgment, human
beings, however strong, should not be torn from their moorings of
impartiality by the undertow of extraneous influence. In securing
freedom of speech, the Constitution hardly meant to create the
right to influence judges or juries. That is no more freedom of
speech than stuffing a ballot box is an exercise of the right to
vote.
Page 328 U. S. 367
Due regard for these general considerations must dispose of the
present controversy. Since at the core of our problem is a proper
balance between two basic conditions of our constitutional
democracy -- freedom of utterance and impartial justice -- we
cannot escape the exercise of judgment on the particular
circumstances of the particular case. And we must always bear in
mind that, since a judgment from a State court comes here as the
voice of the State, it must be accorded every fair intendment that,
in reason, belongs to action by a State.
According to the Florida Supreme Court, the charge against
petitioners was that
"both the editorials and the cartoon were predicated on
inaccurate, distorted, incomplete and biased reports of pending
litigation, that the purpose and effect of the editorials and the
cartoon were to impute partisanship and favor on the part of the
circuit judges to those charged with crime and that such
partisanship was so pronounced that they refused to heed the voice
of the people's representatives. . . . So the vice in both the
editorials was the distorted, inaccurate statement of the facts,
and with that statement were scrambled false insinuations that
amounted to unwarranted charges of partisanship and unfairness on
the part of the judges. [
Footnote
2/14]"
The tenor of the first editorial was complaint of the
technicalities and delays of the law which seem to give excessive
protection to defendants. It makes no suggestion which could be
construed as an attempt to influence the court's decision in a
matter actually pending before it. All the questions discussed in
the editorial had been acted on by the trial judges. The editor
merely indulged in general criticism of those acts as exemplifying
an oversolicitous concern for defendants by the law and by the
judges who interpreted it. Nor was the cartoon directed toward a
particular pending case. Indeed, it partly serves
Page 328 U. S. 368
to interpret the editorial as one concerned with a general
situation. One suspects that only judicial hypersensitiveness would
find in it an animus specifically directed. The opinion of the
court illustrates the danger of confusing correction of
interference with judicial action with concern over a court's
dignity. Instead of treating lightly a cartoon indistinguishable in
type from scores of such ephemeral products, the court saw in it
wholly undeserved significance.
Again, the second editorial referred to a particular case only
as an example. In that case, too, the court had made its decision.
What the editor criticized was the speed of disposition and other
features of procedure which attended the case. His allowable
concern was that the people have a chance to give their argument,
that the prosecution in criminal cases be treated as fairly as the
defense. Inaccurate and even false comment on litigation no longer
pending may not be dealt with by punishing for contempt as a means
of assuring the just exercise of the judicial process.
The Florida Supreme Court referred to the cases criticized as
"pending." But it did not define the scope of "pending," nor did
the grounds of its decision have any particular dependence on the
requirement that a case be pending. The finding by a State court
that a case is "pending" in the sense relevant to the power to
punish for contempt does not, of course, bar its review here.
Otherwise, a State court could foreclose our protection of the
constitutional right of free speech by putting forth as a
non-federal ground of decision that which is an essential aspect of
the federal question.
Union Pacific R. Co. v. Public Service
Comm'n, 248 U. S. 67,
248 U. S. 69-70;
Ward v. Love County, 253 U. S. 17,
253 U. S. 22;
Davis v. Wechsler, 263 U. S. 22.
If it is contemptuous to bring the courts of a State into
disrepute and generally to impair their efficiency, then it
Page 328 U. S. 369
can make no difference on what occasion or with reference to
what event that effect is achieved or attempted. But when it is
understood what is meant by a "pending" case, it becomes plain
that, for purposes of punishing for contempt as interference, the
cases were not actively pending. "Pending" is not used with the
technical inclusiveness that it has in the phrase
lis
pendens. In the situations in which that phrase has meaning
and applicability, the important considerations are whether any
proceedings have been taken to put the issue into court and whether
it is still there. Where the power to punish for contempt is
asserted, it is not important that the case is technically in court
or that further proceedings, such as the possibility of a
rehearing, are available. "When a case is pending is not a
technical, lawyer's problem, but is to be determined by the
substantial realities of the specific situation."
Bridges v.
California, 314 U. S. 252,
314 U. S. 279,
at
314 U. S.
303-304 (dissent). The decisive consideration is whether
the judge or the jury is, or presently will be, pondering a
decision that comment seeks to affect. Forbidden comment is such as
will or may throw psychological weight into scales which the court
is immediately balancing.
Cf. L. Hand, J., in
Ex parte
Craig, 282 F. 138, 159-60. In the situation before us, the
scales had come to rest. The petitioners offended the trial court
by criticizing what the court had already put in the scales, not by
attempting themselves to insert weights.
The petitioners here could not have disturbed the trial court in
its sense of fairness, but only in its sense of perspective. The
judgment must, I agree, be reversed.
[
Footnote 2/1]
The judges who tried the contempt cases were the same judges who
were criticized by the editorials. The words of caution of Mr.
Chief Justice Taft become relevant:
"The delicacy there is in the judge's deciding whether an attack
upon his own judicial action is mere criticism or real obstruction,
and the possibility that impulse may incline his view to personal
vindication, are manifest."
Craig v. Hecht, 263 U. S. 255,
263 U. S. 279
(concurring). But the judges who tried petitioners were sensible of
the delicacy of their position, and offered to retire from the case
if petitioners felt they would prefer to be tried by another
judge.
[
Footnote 2/2]
". . . the administration of government has become more complex,
the opportunities for malfeasance and corruption have multiplied,
crime has grown to most serious proportions, and the danger of its
protection by unfaithful officials and of the impairment of the
fundamental security of life and property by criminal alliances and
official neglect, emphasizes the primary need of a vigilant and
courageous press, especially in great cities. The fact that the
liberty of the press may be abused by miscreant purveyors of
scandal does not make any the less necessary the immunity of the
press from previous restraint in dealing with official misconduct.
Subsequent punishment for such abuses as may exist is the
appropriate remedy, consistent with constitutional privilege."
Near v. Minnesota, 283 U. S. 697,
283 U. S.
719-20.
Not unrelated to this whole problem, however, are the
technological and economic influences that have vastly transformed
the actual operation of the right to a free, in the sense of a
governmentally uncensored, press. Bigness and concentration of
interest have put their impress also on this industry.
"Today ideas are still flowing freely, but the sources from
which they rise have shown a tendency to evaporate. . . . The
controlling fact in the free flow of thought is not diversity of
opinion, it is diversity of the
sources of opinion -- that
is, diversity of ownership. . . . There are probably a lot more
words written and spoken in America today than ever before, and on
more subjects; but if it is true, as this book suggests, that these
words and ideas are flowing through fewer channels, then our first
freedom has been diminished, not enlarged."
E. B. White, in the New Yorker, March 16, 1946, p 97, reviewing
Ernst, The First Freedom (1946). There are today incomparably more
effective and more widespread means for the dissemination of ideas
and information than in the past. But a steady shrinkage of a
diffused ownership raises far reaching questions regarding the
meaning of the "freedom" of a free press.
[
Footnote 2/3]
Article XXIX of the Declaration of Rights of the Constitution of
Massachusetts, 1780.
[
Footnote 2/4]
That this indispensable condition for a free society was well
known to the framers of the Constitution is the theme of Mr.
Justice Brandeis in his dissenting opinion in
Myers v. United
States, 272 U. S. 52,
272 U. S. 240,
at
272 U. S.
293:
"The doctrine of the separation of powers was adopted by the
Convention of 1787 not to promote efficiency, but to preclude the
exercise of arbitrary power. The purpose was not to avoid friction,
but, by means of the inevitable friction incident to the
distribution of the governmental powers among three departments, to
save the people from autocracy."
And see Mr. Chief Justice Taft in
Ex parte
Grossman, 267 U. S. 87,
267 U. S.
119-22.
[
Footnote 2/5]
The State constitutions make it clear that the freedom of speech
and press they guarantee is not absolute. All, with the exception
only of Massachusetts, New Hampshire, South Carolina, Vermont, and
West Virginia, explicitly provide in practically identical language
for the right to speak, write and publish freely, every one,
however, "being responsible for the abuse of that right."
[
Footnote 2/6]
See, e.g., the disturbing record in the case of
Campbell, New York County Criminal Courts Bar Association,
In
the Matter of the Investigation of the Conviction of Bertram M.
Campbell (Feb. 22, 1946), and the decision of the New York
Court of Claims, on June 17, 1946, awarding Campbell $115,000 for
wrongful conviction, including damages for loss of earnings, after
his pardon by Governor Dewey following the confession by another of
the crimes for which Campbell had been convicted.
"He was the victim of a miscarriage of justice, but, fortunately
for him, the State has undertaken to rectify the mistake as far as
possible. . . . Seven years, six months and five days elapsed from
claimant's arrest until he was pardoned."
Campbell v. New York, 186 Misc. 586, 591.
[
Footnote 2/7]
Compare Inquiry in Regard to the Interrogation by the Police
of Miss Savidge, Cmd. 3147 (1928); Report of the Royal
Commission on Police Powers and Procedure, Cmd. 3297 (1929),
with Report on Lawlessness in Law Enforcement, in 4
National Commission on Law Observance and Enforcement Reports
(1931).
See also Wan v. United States, 266 U. S.
1;
Brown v. Mississippi, 297 U.
S. 278;
Chambers v. Florida, 309 U.
S. 227.
[
Footnote 2/8]
The recent ruling by the Speaker of the House of Commons
regarding the limitation on the right to comment even in Parliament
on the pending proceedings against the accused Nazis before the
Nuremberg tribunal bears significantly on the attitude and
controlling standards deemed appropriate in England in order to
protect the judicial process from extraneous influences:
"The Rule to which the Noble Lord has drawn my attention that
reflections cannot be made on judges of the High Court and certain
other courts, except by way of a substantive Motion, applies only
to the courts of this country. In terms, therefore, it only covers
the two British members of this tribunal. I feel that it would be
worse than invidious -- indeed improper -- not to extend the same
protection to their colleagues on this tribunal who represent the
three other Allied Nations."
"There is, however, another of our Rules of Debate which is
relevant to this case, the Rule that matters which are
sub
judice should not be the subject of discussion in this House.
This Rule again, in terms, applies only to British courts. The
court in Nuremberg is a court in which British judges participate,
and we have the same interest in seeing that nothing is done here
to disturb its judicial atmosphere as we have in the case of
British courts -- indeed, perhaps a greater interest, since the
eyes of the world are upon this new and difficult procedure of
international justice, and the consequences of ill-advised
interference might be incalculably mischievous."
"I think that the intention of both the Rules to which I have
referred is to preserve the House from even the appearance of
interfering in the administration of British justice -- and this
should include trials for which this country has some
responsibility, and I rule, therefore, that all the members of this
International Court are protected to the same extent as British
judges, and that discussion of its proceedings is out of Order in
the same way as matters under adjudication in a British court of
law."
416 Parliamentary Debates (Hansard) 599-600, Nov. 22, 1945.
[
Footnote 2/9]
The manner in which the Hauptmann trial was reported led to a
searching inquiry by a special committee of the American Bar
Association, and it reported the following recommendations:
"In the foregoing report, we have tried to make a fair
presentation of salient facts. We have been moved less by spirit of
censure than by hope of remedial action. The excesses we have
described differ from practices in many other cases mainly in
degree."
"The trial of a criminal case is a business that has for its
sole purpose the administration of justice, and it should be
carried on without distracting influences."
"Passing from the general to the specific, we recommend: "
"That attendance in the courtroom during the progress of a
criminal trial be limited to the seating capacity of the room."
"That the process of subpoena or any other process of the court
should never be used to secure preferential admission of any person
or spectator; that such abuse of process be punished as
contempt."
"That approaches to the courtroom be kept clear, to the end that
free access to the courtroom be maintained."
"That no use of cameras or photographic appliances be permitted
in the courtroom, either during the session of the court or
otherwise."
"That no sound registering devices for publicity use be
permitted to operate in the courtroom at any time."
"That the surreptitious procurement of pictures or sound records
be considered contempt of court, and be punished as such."
"That the courtroom and the courthouse be kept free from news
distributing devices and equipment."
"That newspaper accounts of criminal proceedings be limited to
accounts of occurrences in court, without argument of the case to
the public."
"That no popular referendum be taken during the pendency of the
litigation as to the guilt or innocence of the accused."
"That broadcasting of arguments, giving out of argumentive press
bulletins, and every other form of argument or discussion addressed
to the public by lawyers in the case during the progress of the
litigation be definitely forbidden."
"That bulletins by the defendant issued to the public during the
progress of the trial be definitely forbidden."
"That public criticism of the court or jury by lawyers in the
case during the progress of the litigation be not tolerated."
"That featuring in vaudeville of jurors or other court officers,
either during or after the trial, be forbidden."
That the giving of paid interviews or the writing of paid
articles by jurors, either during or after the trial, be
forbidden.
"That the atmosphere of the courtroom and adjacent premises be
maintained as one of dignity and calm."
(1936) 22 A.B.A. Journal 79-80.
[
Footnote 2/10]
See, e.g., Gilman,
The Truth Behind the News
(June, 1933) 29 American Mercury 139.
"It is idle for such newspapers to claim that they adopt such
practices in the public interest. Their motive is the sordid one of
increasing their profits, unmindful of the result to the
unfortunate wretch who may ultimately have to stand his trial for
murder."
Mr. Justice Blair, in
Attorney General v. Tonks [1934]
N.Z.LR. 141, 148, at 150.
Cf. Pratt,
How the Censors
Rigged the News (Feb., 1946) 192 Harper's Magazine, 97,
105.
[
Footnote 2/11]
A professional defense of crime reporting has this bit of
refreshing candor:
"I will concede, however, that, had it not been for popular
feeling developed to fever heat by the newspapers, Hickman might be
living today behind the walls of some madhouse instead of having
met death in the electric chair."
Dewey, Crime and the Press (Dec. 30, 1931) 15 Commonweal 231,
233.
Compare the statement by one of the most experienced
criminal lawyers, Clarence Darrow:
"Trial by jury is rapidly being destroyed in America by the
manner in which the newspapers handle all sensational cases. I
don't know what should be done about it. The truth is that the
courts and the lawyers don't like to proceed against newspapers.
They are too powerful. As the law stands today, there is no
important criminal case where the newspapers are not guilty of
contempt of court day after day. All lawyers know it, all judges
know it, and all newspapers know it. But nothing is done about it.
No new laws are necessary. The court has full jurisdiction to see
that no one influences a verdict or a decision. But everyone is
afraid to act."
Quoted by Perry, in
The Courts, the Press, and the Public
(Trial by Newspaper) (1931) 30 Mich.L.Rev. 228, 234; (1932) 66
U.S.Law Rev. 374, 379; (1932) 11 Phil.L.J. 277, 282.
[
Footnote 2/12]
30 Mich.L.Rev. at 232; 66 U.S.Law Rev. at 377; 11 Phil.L.J. at
280. In an address before the 1936 meeting of the American Bar
Association Delegates, Sir Willmott Lewis, the veteran Washington
correspondent of The Times (London) expressed these views:
"The point I would make is that neither the tradition of orderly
legal procedure nor the obligation which the press should recognize
to the maintenance of that tradition can, in themselves, be enough
amid the pressure and vulgarity of the modern world."
"Tradition and obligation must be
buttressed by rules,
and
those rules must be enforced in the domain of their
immediate application, by the court itself. . . ."
"I think it intolerable, and I cannot think that it should not
be punishable, that a charge lying against any citizen should be
irresponsibly tried in the public prints, whose plain duty is the
reporting, and not the hearing, of causes. . . ."
(1936) 20 J.Am.Jud.Soc. 84, 86.
[
Footnote 2/13]
See the skeptical remarks of H.L. Mencken, a stout
libertarian, on the efficacy of journalistic self-restraint:
"Journalistic codes of ethics are all moonshine. Essentially,
they are as absurd as would be codes of street-car conductors,
barbers or public jobholders. If American journalism is to be
purged of its present swinishness and brought up to a decent level
of repute -- and God knows that such an improvement is needed -- it
must be accomplished by the devices of morals, not by those of
honor. That is to say, it must be accomplished by external forces,
and through the medium of penalties exteriorly inflicted."
Quoted by LeViness, in
Law and the Press, The Daily Record,
Baltimore, March 11, 1932, 1. 3, col. 1, 4.
The author of the article, Mr. LeViness, a Baltimore Sun
reporter turned lawyer, followed the quotation from Mr. Mencken
with this comment:
"This puts the problem, as far as Court and police news goes,
squarely back where it belongs: in the lap of the judiciary. The
Courts must set the standards; the better journals will follow
joyously, and the gumchewers' sheets must be whipped into line. The
solution is fearless jurists, not afraid of the double-edged sword
of contempt process; intelligent jurists, able to exercise this
power in the best, enlightened public interest."
Ibid.
[
Footnote 2/14]
Pennekamp v. State, 156 Fla. 227, 239, 240, 22 So. 2d
875, 881, 882.
MR. JUSTICE MURPHY, concurring.
Were we to sanction the judgment rendered by the court below, we
would be approving, in effect, an unwarranted restriction upon the
freedom of the press. That freedom
Page 328 U. S. 370
covers something more than the right to approve and condone
insofar as the judiciary and the judicial process are concerned. It
also includes the right to criticize and disparage, even though the
terms be vitriolic, scurrilous or erroneous. To talk of a clear and
present danger arising out of such criticism is idle unless the
criticism makes it impossible in a very real sense for a court to
carry on the administration of justice. That situation is not even
remotely present in this case.
Judges should be foremost in their vigilance to protect the
freedom of others to rebuke and castigate the bench and in their
refusal to be influenced by unfair or misinformed censure.
Otherwise, freedom may rest upon the precarious base of judicial
sensitiveness and caprice. And a chain reaction may be set up,
resulting in countless restrictions and limitations upon
liberty.
MR. JUSTICE RUTLEDGE, concurring.
One can have no respect for a newspaper which is careless with
facts and with insinuations founded in its carelessness. Such a
disregard for the truth not only flouts standards of journalistic
activity [
Footnote 3/1] observed
too often by
Page 328 U. S. 371
breach, but, in fact, tends to bring the courts and those who
administer them into undeserved public obloquy.
But if every newspaper which prints critical comment about
courts without justifiable basis, in fact, or withholds the full
truth in reporting their proceedings or decisions, or goes even
further and misstates what they have done, were subject on these
accounts to punishment for contempt, there would be few not
frequently involved in such proceedings. There is perhaps no area
of news more inaccurately reported factually, on the whole, though
with some notable exceptions, than legal news.
Some part of this is due to carelessness, often induced by the
haste with which news is gathered and published, a smaller portion
to bias or more blameworthy causes. But a great deal of it must be
attributed, in candor, to ignorance, which frequently is not at all
blameworthy. For newspapers are conducted by men who are laymen to
the law. With too rare exceptions, their capacity for
misunderstanding the significance of legal events and procedures,
not to speak of opinions, is great. But this is neither remarkable
nor peculiar to newsmen. For the law, as lawyers best know, is full
of perplexities.
In view of these facts, any standard which would require strict
accuracy in reporting legal events factually or in commenting upon
them in the press would be an impossible one. Unless the courts and
judges are to be put above criticism, no such rule can obtain.
There must be
Page 328 U. S. 372
some room for misstatement of fact, as well as for misjudgment,
if the press and others are to function as critical agencies in our
democracy concerning courts as for all other instruments of
government.
Courts and judges therefore cannot be put altogether beyond the
reach of misrepresentation and misstatement. That is true in any
case, but perhaps more obviously where the judiciary is elective,
as it is in most of our states, including Florida.
See Storey
v. Illinois, 79 Ill. 45, 52; (1927) 41 Harv.L.Rev. 254, 255.
The question, and the standard, must be one of degree and effects.
It cannot be placed at mere falsity, either in representation or in
judgment. The statement, whether of fact or of opinion, must be of
such a character, whether true or false, as to obstruct in some
clear and substantial way the functioning of the judicial process
in pending matters.
Bridges v. California, 314 U.
S. 252. [
Footnote 3/2]
It is not enough that the judge's sensibilities are affected or
that, in some way, he is brought generally into obloquy. After all,
it is to be remembered that it is judges who apply the law of
contempt, and the offender is their critic.
The statements in question are clearly fair comment in large
part. Portions exceed that boundary. But the record does not
disclose that they tended in any way to block or obstruct the
functioning of the judicial process. Accordingly, I concur in the
Court's opinion and judgment.
[
Footnote 3/1]
See the following codes of ethics published in
Crawford, The Ethics of Journalism (1924) App. A.: Canons of
Journalism, adopted by the American Society of Newspaper Editors in
1923, Art. IV; The Oregon Code of Ethics, adopted by the Oregon
State Editorial Association in 1922, Art. I; South Dakota Code of
Ethics, adopted by the South Dakota Press Association in 1922,
"Truth and Honesty"; Missouri Declaration of Principles and Code of
Practice, adopted by the Missouri Press Association in 1921,
"Editorial."
And see, in the same volume, the extracts
from rules and suggestions prepared by the following newspapers for
the guidance of their staffs: The Brooklyn Eagle, The Christian
Science Monitor, The Springfield Union, The Detroit News, The
Hearst Newspapers (personal instructions given by William Randolph
Hearst to his newspapers), The Sacramento Bee, The Kansas City
Journal-Post, The Marion Star (written by President Harding when
editing The Star).
See also Sharkey, The Ethics of
Journalism, An Address Delivered before the Press Conference of the
World, Geneva, Switzerland, September 15, 1926, p. 10; Wicks,
Ideals and Methods of English Newspapers, published in Journalistic
Ethics and World Affairs, Addresses Delivered at the Fifteenth
Annual Journalism Week at the University of Missouri, 1924, 25 U.
of Mo.Bull. (No. 32) 25, 26; Gibbons, Newspaper Ethics (1926) 16
et seq.
[
Footnote 3/2]
"Nor does the fact that the letter was false, while it greatly
affects the moral quality of the act, determine its criminality. It
is punishable only if it interferes with justice, and, in that
respect, truth is harder to meet than falsehood."
L. Hand, dissenting in
Ex parte Craig, 282 F. 138, 161,
aff'd sub nom. Craig v. Hecht, 263 U.
S. 255.
See also the dissenting opinion of Mr.
Justice Holmes, 263 U.S. at
263 U. S. 281.
But cf. In re Providence Journal Co., 28 R.I. 489, 68 A.
428;
In re San Francisco Chronicle, 1 Cal. 2d 630,
36 P.2d 369.