1. The publication in a newspaper of news articles, which
unfairly reported events in a case pending in a state court, and an
editorial which vehemently attacked the trial judge (a layman
elected for a short term) while a motion for a new trial was
pending, did not, in the circumstances of this case, constitute a
clear and present danger to the administration of justice, and the
conviction of the newspapermen for contempt violated the freedom of
the press guaranteed by the First and Fourteenth Amendments.
Following
Bridges v. California, 314 U.
S. 252, and
Pennekamp v. Florida, 328 U.
S. 331. Pp.
331 U. S.
368-370,
331 U. S.
375-378.
2. The present case is one of the type in which this Court is
required to make an independent examination of the facts to
determine whether a State has deprived a person of a fundamental
right secured by the Constitution. Pp.
331 U. S.
373-374.
3. There is no special perquisite of the judiciary which enables
it, as distinguished from other institutions of democratic
government, to suppress, edit, or censor reports of occurrences in
judicial proceedings. P.
331 U. S.
374.
4. One reporting the news of a judicial trial may not be held
for contempt because he missed the essential point in the trial or
failed to summarize the issues to accord with the views of the
trial judge. P.
331 U. S.
375.
5. The vehemence of the language used in a publication
concerning a pending case is not alone the measure of the power to
punish for contempt; the threat to the administration of justice
must be imminent. P.
331 U. S.
376.
6. The law of contempt is not designed for the protection of
judges who may be sensitive to the winds of public opinion. P.
331 U. S.
376.
7. Although the nature of a case may be relevant in determining
whether the clear and present danger test is satisfied, the rule of
the
Bridges and
Pennekamp cases is fashioned to
serve the needs of all litigation, not merely particular types of
pending cases. P.
331 U. S.
378.
149 Tex.Cr. ___, 193 S.W.2d 178, reversed.
Page 331 U. S. 368
Petitioners' application to a state court for a writ of habeas
corpus to obtain their release from imprisonment for contempt was
denied. 193 S.W.2d 178. This Court granted certiorari. 329 U.S.
696.
Reversed, p.
331 U. S. 378.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioners were adjudged guilty of constructive criminal
contempt by the County Court of Neuces County, Texas, and sentenced
to jail for three days. They sought to challenge the legality of
their confinement by applying to the Court of Criminal Appeals for
a writ of habeas corpus. [
Footnote
1] That court, by a divided vote, denied the writ and remanded
petitioners to the custody of the county sheriff.
Ex parte
Craig, 193 S.W.2d 178. The case is here on a petition for a
writ of certiorari which we granted because of the importance of
the problem and because the ruling of the Texas court raised doubts
whether it conformed to the principles announced in
Bridges v.
California, 314 U. S. 252, and
Pennekamp v. Florida, 328 U. S. 331.
Page 331 U. S. 369
Petitioners are a publisher, an editorial writer, and a news
reporter of newspapers published in Corpus Christi, Texas. The
County Court had before it a forcible detainer case,
Jackson v.
Mayes, whereby Jackson sought to regain possession from Mayes
of a business building in Corpus Christi which Mayes (who was at
the time in the armed services and whose affairs were being handled
by an agent, one Burchard) claimed under a lease. That case turned
on whether Mayes' lease was forfeited because of nonpayment of
rent. At the close of the testimony, each side moved for an
instructed verdict. The judge instructed the jury to return a
verdict for Jackson. That was on May 26, 1945. The jury returned
with a verdict for Mayes. The judge refused to accept it, and again
instructed the jury to return a verdict for Jackson. The jury
returned a second time with a verdict for Mayes. Once more, the
judge refused to accept it, and repeated his prior instruction. It
being the evening of May 26th and the jury not having complied, the
judge recessed the court until the morning of May 27th. Again the
jury balked at returning the instructed verdict. But finally it
complied, stating that it acted under coercion of the court and
against its conscience.
On May 29th, Mayes moved for a new trial. That motion was denied
on June 6th. On June 4th, an officer of the County Court filed with
that court a complaint charging petitioners with contempt by
publication. The publications referred to were an editorial and
news stories published on May 26, 27, 28, 30, and 31 in the
newspapers with which petitioners are connected. We have set forth
the relevant parts of the publications in the appendix to this
opinion. Browning, the judge, who is a layman and who holds an
elective office, was criticized for taking the case from the jury.
That ruling was called "arbitrary action" and a "travesty on
justice." It was deplored that a layman, rather than a lawyer, sat
as judge. Groups of
Page 331 U. S. 370
local citizens were reported as petitioning the judge to grant
Mayes a new trial, and it was said that one group had labeled the
judge's ruling as a "gross miscarriage of justice." It was also
said that the judge's behavior had properly brought down "the wrath
of public opinion upon his head," that the people were aroused
because a serviceman "seems to be getting a raw deal," and that
there was "no way of knowing whether justice was done, because the
first rule of justice, giving both sides an opportunity to be
heard, was repudiated." And the fact that there could be no appeal
from the judge's ruling to a court "familiar with proper procedure
and able to interpret and weigh motion and arguments by opposing
counsel" was deplored.
The trial judge concluded that the reports and editorials were
designed falsely to represent to the public the nature of the
proceedings and to prejudice and influence the court in its ruling
on the motion for a new trial then pending. Petitioners contended
at the hearing that all that was reported did no more than to
create the same impression that would have been created upon the
mind of an average intelligent layman who sat through the trial.
They disclaimed any purpose to impute unworthy motives to the judge
or to advise him how the case should be decided or to bring the
court into disrepute. The purpose was to "quicken the conscience of
the judge" and to "make him more careful in discharging his
duty."
The Court of Criminal Appeals, in denying the writ of habeas
corpus, stated that the "issue before us" is "whether the
publications . . . were reasonably calculated to interfere with the
due administration of justice" in the pending case. 193 S.W.2d at
186. It was held that
"there is no escape from the conclusion that it was the purpose
and intent of the publishers . . . to force, compel, and coerce
Judge Browning to grant Mayes a new trial. The only reason or
motive for so doing was because the publishers did not agree with
Judge Browning's decision
Page 331 U. S. 371
or conduct of the case. According to their viewpoint, Judge
Browning was wrong, and they took it upon themselves to make him
change his decision."
Id., pp. 188-189. The court went on to say that
"It is hard to conceive how the public press could have been
more forcibly or substantially used or applied to make, force, and
compel a judge to change a ruling or decision in a case pending
before him than was here done."
Id., p. 189. The court distinguished the
Bridges case, noting that there the published statements
carried threats of future adverse criticism and action on the part
of the publisher if the pending matter was not disposed of in
accordance with the views of the publisher, that the views of the
publisher in the matter were already well known, and that the
Bridges case was not private litigation, but a suit in the
outcome of which the public had an interest.
Id., p. 188.
It concluded that the facts of this case satisfied the "clear and
present danger" rule of the
Bridges case. That test was,
in the view of the court, satisfied
"because the publications and their purpose were to impress upon
Judge Browning (a) that, unless he granted the motion for a new
trial, he would be subjected to suspicion as to his integrity and
fairness and to odium and hatred in the public mind; (b) that the
safe and secure course to avoid the criticism of the press and
public opinion would be to grant the motion and disqualify himself
from again presiding at the trial of the case, and (c) that, if he
overruled the motion for a new trial, there would be produced in
the public mind such a disregard for the court over which he
presided as to give rise to a purpose in practice to refuse to
respect and obey any order, judgment, or decree which he might
render in conflict with the views of the public press."
Id., p. 189.
The court's statement of the issue before it and the reasons it
gave for holding that the "clear and present danger" test was
satisfied have a striking resemblance to the findings which the
Court in
Toledo Newspaper Co.
v.
Page 331 U. S. 372
United States, 247 U. S. 402,
held adequate to sustain an adjudication of contempt by
publication. [
Footnote 2] That
case held that comment on a pending case in a federal court was
punishable by contempt if it had a "reasonable tendency" to
obstruct the administration of justice. We revisited that case in
Nye v. United States, 313 U. S. 33,
313 U. S. 52,
and disapproved it. And in
Bridges v. California, supra,
we held that the compulsion of the First Amendment, made applicable
to the States by the Fourteenth (
Schneider v. Irvington,
308 U. S. 147;
Murdock v. Pennsylvania, 319 U. S. 105,
319 U. S. 108)
forbade the punishment by contempt for comment on pending cases in
absence of a showing that the utterances created a "clear and
present danger" to the administration of justice. 314 U.S. at
314 U. S.
260-264. We
Page 331 U. S. 373
reaffirmed and reapplied that standard in
Pennekamp v.
Florida, supra, which also involved comment on matters pending
before the court. We stated, p.
328 U. S.
347:
"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."
Neither those cases nor the present one raises questions
concerning the full reach of the power of the state to protect the
administration of justice by its courts. The problem presented is
only a narrow, albeit important, phase of that problem -- the power
of a court promptly and without a jury trial to punish for comment
on cases pending before it and awaiting disposition. The history of
the power to punish for contempt (
see Nye v. United States,
supra; Bridges v. California, supra) and the unequivocal
command of the First Amendment serve as constant reminders that
freedom of speech and of the press should not be impaired through
the exercise of that power unless there is no doubt that the
utterances in question are a serious and imminent threat to the
administration of justice.
In a case where it is asserted that a person has been deprived
by a State court of a fundamental right secured by the
Constitution, an independent examination of the facts by this Court
is often required to be made.
See Norris v. Alabama,
294 U. S. 587,
294 U. S. 590;
Pierre v. Louisiana, 306 U. S. 354,
306 U. S. 358;
Chambers v. Florida, 309 U. S. 227,
309 U. S.
228-229;
Lisenba v. California, 314 U.
S. 219,
314 U. S.
237-238;
Page 331 U. S. 374
Ashcraft v. Tennessee, 322 U.
S. 143,
322 U. S.
147-148. This is such a case.
We start with the news articles. A trial is a public event. What
transpires in the courtroom is public property. If a transcript of
the court proceedings had been published, we suppose none would
claim that the judge could punish the publisher for contempt. And
we can see no difference though the conduct of the attorneys, of
the jury, or even of the judge himself may have reflected on the
court. Those who see and hear what transpired can report it with
impunity. There is no special perquisite of the judiciary which
enables it, as distinguished from other institutions of democratic
government, to suppress, edit, or censor events which transpire in
proceedings before it.
The articles of May 26, 27, and 28 were partial reports of what
transpired at the trial. They did not reflect good reporting, for
they failed to reveal the precise issue before the judge. They said
that Mayes, the tenant, had tendered a rental check. They did not
disclose that the rental check was postdated, and hence, in the
opinion of the judge, not a valid tender. In that sense, the news
articles were, by any standard, an unfair report of what
transpired. [
Footnote 3] But
inaccuracies in reporting are
Page 331 U. S. 375
commonplace. Certainly a reporter could not be laid by the heels
for contempt because he missed the essential point in a trial or
failed to summarize the issues to accord with the views of the
judge who sat on the case. Conceivably, a plan of reporting on a
case could be so designed and executed as to poison the public
mind, to cause a march on the courthouse, or otherwise so disturb
the delicate balance in a highly wrought situation as to imperil
the fair and orderly functioning of the judicial process. But it
takes more imagination than we possess to find in this rather
sketchy and one-sided report of a case any imminent or serious
threat to a judge of reasonable fortitude.
See Pennekamp v.
Florida, supra.
The accounts of May 30 and 31 dealt with the news of what
certain groups of citizens proposed to do about the judge's ruling
in the case. So far as we are advised, it was a fact that they
planned to take the proposed action. The episodes were community
events of legitimate interest. Whatever might be the responsibility
of the group which took the action, those who reported it stand in
a different position. Even if the former were guilty of contempt,
freedom of the press may not be denied a newspaper which brings
their conduct to the public eye.
The only substantial question raised pertains to the editorial.
It called the judge's refusal to hear both sides "high-handed," a
"travesty on justice," and the reason that public opinion was
"outraged." It said that his ruling properly "brought down the
wrath of public opinion upon his head," since a serviceman "seems
to be getting a raw deal." The fact that there was no appeal from
his decision to a
"judge who is familiar with proper procedure and able to
interpret and weigh motions and arguments by opposing counsel and
to make his decisions accordingly"
was a "tragedy." It deplored the fact that the judge was a
"layman," and not a "competent attorney." It concluded that the
"first rule of justice" was to give both
Page 331 U. S. 376
sides an opportunity to be heard, and when that rule was
"repudiated," there was "no way of knowing whether justice was
done."
This was strong language, intemperate language, and, we assume,
an unfair criticism. But a judge may not hold in contempt one "who
ventures to publish anything that tends to make him unpopular or to
belittle him. . . ."
See Craig v. Hecht, 263 U.
S. 255,
263 U. S. 281,
Mr. Justice Holmes dissenting. The vehemence of the language used
is not alone the measure of the power to punish for contempt. The
fires which it kindles must constitute 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.
We agree with the court below that the editorial must be
appraised in the setting of the news articles which both preceded
and followed it. It must also be appraised in light of the
community environment which prevailed at that time. The fact that
the jury was recalcitrant and balked, the fact that it acted under
coercion and contrary to its conscience, and said so, were some
index of popular opinion. A judge who is part of such a dramatic
episode can hardly help but know that his decision is apt to be
unpopular. But the law of contempt is not made for the protection
of judges who may be sensitive to the winds of public opinion.
Judges are supposed to be men of fortitude, able to thrive in a
hardy climate. Conceivably a campaign could be so managed and so
aimed at the sensibilities of a particular judge and the matter
pending before him as to cross the forbidden line. But the episodes
we have here do not fall in that category. Nor can we assume that
the trial judge was not a man of fortitude.
The editorial's complaint was two-fold. One objection or
criticism was that a layman, rather than a lawyer, sat on the
bench. That is legitimate comment, and its relevancy
Page 331 U. S. 377
could hardly be denied, at least where judges are elected. In
the circumstances of the present case, it amounts, at the very
most, to an intimation that, come the next election, the newspaper
in question will not support the incumbent. But it contained no
threat to oppose him in the campaign if the decision on the merits
was not overruled, nor any implied reward if it was changed. Judges
who stand for reelection run on their records. That may be a rugged
environment. Criticism is expected. Discussion of their conduct is
appropriate, if not necessary. The fact that the discussion at this
particular point of time was not in good taste falls far short of
meeting the clear and present danger test.
The other complaint of the editorial was directed at the court's
procedure -- its failure to hear both sides before the case was
decided. There was no attempt to pass on the merits of the case.
The editorial, indeed, stated that there was no way of knowing
whether justice was done. That criticism of the court's procedure
-- that it decided the case without giving both sides a chance to
be heard -- reduces the salient point of the case to a narrow
issue. If the point had been made in a petition for rehearing, and
reduced to lawyer's language, it would be of trifling consequence.
The fact that it was put in layman's language, colorfully phrased
for popular consumption, and printed in a newspaper does not seem
to us to elevate it to the criminal level. It might well have a
tendency to lower the standing of the judge in the public eye. But
it is hard to see on these facts how it could obstruct the course
of justice in the case before the court. The only demand was for a
hearing. There was no demand that the judge reverse his position-or
else.
"Legal trials are not like elections, to be won through the use
of the meeting hall, the radio, and the newspaper."
Bridges v.
California, supra, p.
314 U. S. 271. But there was here no threat or menace to
the integrity of the trial. The
Page 331 U. S. 378
editorial challenged the propriety of the court's procedure, not
the merits of its ruling. Any such challenge, whether made prior or
subsequent to the final disposition of a case, would likely reflect
on the competence of the judge in handling cases. But, as we have
said, the power to punish for contempt depends on a more
substantial showing. Giving the editorial all of the vehemence
which the court below found in it, we fail to see how it could in
any realistic sense create an imminent and serious threat to the
ability of the court to give fair consideration to the motion for
rehearing.
There is a suggestion that the case is different from
Bridges v. California, supra, in that we have here only
private litigation, while, in the
Bridges case, labor
controversies were involved, some of them being criminal cases. The
thought apparently is that the range of permissible comment is
greater where the pending case generates a public concern. The
nature of the case may, of course, be relevant in determining
whether the clear and present danger test is satisfied. But the
rule of the
Bridges and
Pennekamp cases is
fashioned to serve the needs of all litigation, not merely select
types of pending cases.
Reversed.
|
331
U.S. 367app|
APPENDIX
On May 26, 1945, a
news item stated:
"Burchard further claimed that, although he had not known of the
option clause, when he learned of it he had immediately proffered a
check for $275 rental. "
Page 331 U. S. 379
On May 27, 1945, there was a
news item which
stated:
"At 7 p.m., Browning, without listening to argument from counsel
for either side on a plaintiff's motion, presented by Dudley
Tarlton for Jackson, and without giving the six-man jury
opportunity to weigh the evidence, instructed the jury to find
against Mayes."
"Walter M. Lewright, Mayes' attorney, protested that the court's
arbitrary action had ruled that Tarlton's 'one-page motion' did not
need supporting argument and citation of authorities."
On May 28, 1945, an
article said:
"Browning accepted Tarlton's one-page motion and, without
permitting argument or citation of authorities to support the
motion, ruled that it be granted. The effect of this ruling was
that Browning took the matter from the jury."
That article also included the following statement made by
Mayes' attorney to the jury on May 27, 1945:
"However, I now advise you that, under the law, Judge Browning
has the right to compel you, even against the dictates of your
conscience, to sign the verdict he has ordered."
"As a matter of fact, it is probable that he has the power to
put you in jail until such time as you do sign it, and I rather
imagine, from what has heretofore taken place in this trial, that,
unless you do sign the verdict, he will cause you to be put in
jail."
"As I and my clients feel that you have done all in your power
to register your protest and revulsion of feeling at the effect of
this decision reached by Judge Browning; as you are helpless to do
anything further, and as making you suffer by remaining locked up
will not do us a bit of good, I suggest that you sign the verdict
and return to your homes with a clear conscience
Page 331 U. S. 380
of having done all that you could to protect the rights of a man
whom I feel, and evidently you feel, has been done a gross
injustice."
"While we have no appeal from the court's decision in this case,
we do have the right again to appeal to his conscience by
presenting a motion for new trial in this action -- and which
motion we will file and argue strenuously with the hope that in the
meantime, he will see the error committed and will rectify the
same."
"There cannot be any doubt but that the action of you men in
registering your protest against this decision, as you have done,
will affect him. At least I can only hope that it will. I sincerely
thank you."
On May 30, 1945, an
editorial stated:
"Browning's behavior and attitude has brought down the wrath of
public opinion upon his head, properly so. Emotions have been
aggravated. American people simply don't like the idea of such
goings on, especially when a man in the service of his country
seems to be getting a raw deal. . . . Then the plaintiff's counsel
offered a motion for an instructed verdict for his client. It was
granted immediately, without having him cite his authority or
without giving the defendant's attorney a chance to argue against
it."
"That was the travesty on justice, the judge's refusal to hear
both sides. That's where a legal background would have served him
in good stead. It is difficult to believe that any lawyer, even a
hack, would have followed such high-handed procedure in instructing
a jury. It's no wonder that the jury balked, and public opinion is
outraged."
"The fact that a serviceman is involved lends drama to the
event. But it could have happened to anyone, it can happen to
anyone, with a layman sitting as
Page 331 U. S. 381
judge in a case where fine points of law are involved. True, the
idea that only lawyers are qualified to occupy most public offices
has been run into the ground, and in most instances a competent
layman would be better qualified, but the county judge's office is
an exception. He should be a competent attorney as well as a
competent businessman."
"It's the tragedy in a case of this sort that the court where
the controversial decision was handed down is the court of last
resort. It's too bad that appeal can't be made to a district court
and heard by a judge who is familiar with proper procedure and able
to interpret and weigh motions and arguments by opposing counsel
and to make his decisions accordingly. . . . There is no way of
knowing whether justice was done, because the first rule of
justice, giving both sides an opportunity to be heard, was
repudiated."
On May 30, 1945, there appeared a
report of a
resolution passed by the Sailor's and Soldier's Advisory Council of
Corpus Christi "labeling County Judge Joe D. Browning's order for a
directed verdict against Mayes a
gross miscarriage of
justice.'" That article further stated:
"The council's resolution called on Browning to grant Mayes a
new trial on the grounds that he had committed an error in
instructing the jury to find for the plaintiff. The petition asked
that Browning, upon granting the new trial, should disqualify
himself to further sit as judge in the trial, and should permit the
trial to be retried before another judge and jury. . . . The trial
reached a climax Saturday night when Browning, on motion of Dudley
Tarlton, Jackson's counsel, and without argument or citation of
authority, instructed the six-man County Court jury to find for
Jackson. The jury twice refused,
Page 331 U. S. 382
both times bringing in verdicts in favor of Mayes and against
Jackson."
"Browning had the jury confined to the courthouse jury room all
Saturday night. Sunday morning, when the court convened, the jury
reported that it still had not signed the verdict in favor of
Jackson."
"Browning announced that he would lock the jury up again until
Monday morning. However, Walter M. Lewright advised the jurymen
that they should not continue to 'suffer' any longer, and should
sign the verdict, since Browning had the legal right to force them
to do so. The jury signed the verdict, but appended a statement
asserting that they did so under pressure."
On May 31, 1945, a
news story said:
"Three local groups were reported last night to be preparing
petitions requesting County Judge Joe D. Browning to grant Pvt. Joe
L. Mayes a new trial in the Playboy Cafe ouster suit."
"One petition is reported being drawn by a parents and teachers'
group, another by a service mothers' group, and the third is being
drawn for independent circulation among parents of men in
service."
"The new petitions are said to follow the general outline of a
petition adopted by the Corpus Christi Soldier's and Sailor's
Advisory Council Tuesday night. This petition called on Browning to
grant a new trial and, upon doing so, to disqualify himself and
permit the trial to go on under another judge and jury. Action on
the petitions is expected shortly."
"The council's petition, drawn up by five veterans'
organizations with a membership of more than 1,000, followed by a
few hours the filing of a motion for a new trial by Walter M.
Lewright and LeGrand Woods, Mayes' counsels. . . . It came to a
climax Sunday
Page 331 U. S. 383
when Browning Saturday night accepted without argument or
citation of authority a motion by Dudley Tarlton Jackson's lawyer,
for an instructed verdict. . . . The jury was kept Saturday night
in the Court House. Sunday morning, following a threat by Browning
to keep the jury together until they did sign, the juryman signed
the verdict, appending a statement that they did so against the
dictates of their conscience."
[
Footnote 1]
That appears to be the appropriate remedy in Texas in this type
of case.
Ex parte Miller, 91 Tex.Cr. App. 607, 240 S.W.
944. As to the Texas procedure where there is an adjudication of
contempt for violating an order in a civil cause,
see Thomas v.
Collins, 323 U. S. 516.
[
Footnote 2]
The findings which the Court in that case sustained were as
follows:
"(a) Because . . . their manifest purpose was to create the
impression on the mind of the court that it could not decide in the
matter before it in any but the one way without giving rise to such
a state of suspicion as to the integrity or fairness of its purpose
and motives as might engender a shrinking from so doing. (b)
Because the publications directly tended to incite to such a
condition of the public mind as would leave no room for doubt that,
if the court acting according to its convictions awarded relief, it
would be subject to such odium and hatred as to restrain it from
doing so. (c) Because the publications also obviously were intended
to produce the impression that any order which might be rendered by
the court in the discharge of its duty, if not in accord with the
conceptions which the publications were sustaining, would be
disregarded, and cause a shrinking from performing duty to avoid
the turmoil and violence which the publications, it may be only by
covert insinuation, but nonetheless assuredly invited. And (d)
because the publications were of a character, not merely because of
their intemperance, but because of their general tendency, to
produce in the popular mind a condition which would give rise to a
purpose in practice to refuse to respect any order which the court
might render if it conflicted with the supposed rights of the city
espoused by the publications."
247 U.S. pp.
247 U. S.
414-415.
[
Footnote 3]
The charge against petitioners also set forth other allegedly
false statements: (1) that Mayes was not an ex-insurance man, but
in the insurance business at the time; (2) that terms of the
contract on which Jackson sued were not disclosed; (3) that the
arrangements under which the premises had been operated for some
months before Mayes was inducted into the armed services were not
disclosed; (4) that the articles failed to state the legal grounds
on which Jackson's motion for an instructed verdict was argued and
granted; (5) that much material evidence was omitted which would
have enabled the public to form a fair estimate of the nature of
the controversy; (6) that the principal plaintiffs, who were highly
respected business and professional men of Corpus Christi, were not
named.
These omissions, though reflecting on the quality of the
reporting, do not seem to us to be of importance here.
MR. JUSTICE MURPHY, concurring.
While joining in the opinion of the Court, I believe that the
importance of the problem raised by this case cannot be
overemphasized. A free press lies at the heart of our democracy,
and its preservation is essential to the survival of liberty. Any
inroad made upon the constitutional protection of a free press
tends to undermine the freedom of all men to print and to read the
truth.
In my view, the Constitution forbids a judge from summarily
punishing a newspaper editor for printing an unjust attack upon him
or his method of dispensing justice. The only possible exception is
in the rare instance where the attack might reasonably cause a real
impediment to the administration of justice. Unscrupulous and
vindictive criticism of the judiciary is regrettable. But judges
must not retaliate by a summary suppression of such criticism for
they are bound by the command of the First Amendment. Any summary
suppression of unjust criticism carries with it an ominous threat
of summary suppression of all criticism. It is to avoid that threat
that the First Amendment, as I view it, outlaws the summary
contempt methods of suppression.
Silence and a steady devotion to duty are the best answers to
irresponsible criticism, and those judges who feel the need for
giving a more visible demonstration of
Page 331 U. S. 384
their feelings may take advantage of various laws passed for
that purpose which do not impinge upon a free press. The liberties
guaranteed by the First Amendment, however, are too highly prized
to be subjected to the hazards of summary contempt procedure.
MR. JUSTICE FRANKFURTER, with whom THE CHIEF JUSTICE concurs,
dissenting.
Today's decision, in effect though not in terms, holds
unconstitutional a power the possession of which by the States this
Court has heretofore deemed axiomatic.
It cannot be repeated too often that the freedom of the press so
indispensable to our democratic society presupposes an independent
judiciary which will, when occasion demands, protect that freedom.
To help achieve such an independent judiciary and to protect its
members in their independence, the States of the Union, from the
very beginning and throughout our history, have provided for prompt
suppression and punishment of interference with the impartial
exercise of the judicial process in an active litigation.
Interference was punished not by the ordinary criminal process of
trial before a jury, but through a distinctive proceeding, summary
in character in the sense that a judge without a jury might impose
punishment. Such protective measures against publications seriously
calculated to agitate the disinterested operation of the judicial
process in a litigation awaiting disposition have been deemed part
of the constitutional authority of the States to establish courts
to do justice as between man and man and between man and
society.
The opinion of the Court reviews the Texas Court as though we
were merely reviewing the judgment of a court lower in the
judiciary hierarchy. Formally, no doubt, we have before us the
correctness of a decision of the Court of Criminal Appeals of
Texas. But that decision is challenged as offending the Due Process
Clause
Page 331 U. S. 385
of the Fourteenth Amendment. We are not, therefore, merely
reviewing a decision of the Texas Court; we are passing upon the
power of the Texas. "The question before us must be considered in
the light of the total power the State possesses. . . ."
Skiriotes v. Florida, 313 U. S. 69,
313 U. S. 79. To
paraphrase what was said in
Rippey v. Texas, 193 U.
S. 504,
193 U. S. 509,
the question for us is this: if Texas had expressly provided in its
Constitution that publications in the circumstances here found by
the Texas Court shall constitute contempt of court, would this
Court hold that such finding by the Texas Court and such a
provision in the Texas Constitution collide with the Constitution
of the United States?
Texas, speaking through its authoritative judicial voice,
says:
"When the several publications in the instant case are
considered together and in their chronological order of appearance,
there is no escape from the conclusion that it was the purpose and
intent of the publishers thereof to force, compel, and coerce Judge
Browning to grant Mayes a new trial. The only reason or motive for
so doing was because the publishers did not agree with Judge
Browning's decision or conduct of the case. According to their
viewpoint, Judge Browning was wrong, and they took it upon
themselves to make him change his decision."
Tex.Cr. App. 193 S.W.2d 178, 188, 189.
After a painstaking examination of the series of publications in
the setting of the circumstances of the case, and an extended
hearing, all of which comprises a record here of more than 400
pages, the Court below reached this conclusion:
"It is hard to conceive how the public press could have been
more forcibly or substantially used or applied to make, force, and
compel a judge to change a ruling or decision in a case pending
before him than was here done. The publications were not only
reasonably calculated to accomplish that purpose, but there was
also a 'clear and present danger' that they would, and the
likelihood
Page 331 U. S. 386
that such result would follow was 'extremely serious,' and the
degree of 'imminence extremely high.' 193 S.W.2d at 189. It must be
emphasized that the publications in question were made after it was
notorious that a motion for a new trial had already been made and
would shortly be heard. In the light of this crucial fact -- that
the trial judge would shortly be called upon to reconsider his
instruction to the jury to find for the plaintiff -- the court
below found that"
"the publications and their purpose were to impress upon Judge
Browning (a) that, unless he granted the motion for a new trial he
would be subjected to suspicion as to his integrity and fairness
and to odium and hatred in the public mind; (b) that the safe and
secure course to avoid the criticism of the press and public
opinion would be to grant the motion and disqualify himself from
again presiding at the trial of the case, and (c) that, if he
overruled the motion for a new trial, there would be produced in
the public mind such a disregard for the court over which he
presided as to give rise to a purpose in practice to refuse to
respect and obey any order, judgment, or decree which he might
render in conflict with the views of the public press."
193 S.W.2d at 189.
The Court minimizes these findings by pointing to a likeness
between them and those that were made in
Toledo Newspaper Co.
v. United States, 247 U. S. 402, and
found inadequate by Mr. Justice Holmes' dissent, an inadequacy
subsequently supported by our decision in
Nye v. United
States, 313 U. S. 33. The
Court also draws on
Craig v. Hecht, 263 U.
S. 255, as though what was said there applies here. But
those three case involved only the construction of the federal
statute. Congress decided to allow the power to punish for contempt
theretofore vested in the lower federal courts, when invoked
against misbehavior
Page 331 U. S. 387
not in the presence of the court, only when such misbehavior was
"so near" the presence of the court "as to obstruct the
administration of justice." Act of March 2, 1831, 4 Stat. 487, §
268 of the Judicial Code, 28 U.S.C. § 385;
Nye v. United
States, supra. Texas, however, has seen fit not to restrict
the power of its courts to punish for contempt as does the federal
statute. The power to punish for contempt which the Texas
legislature granted to its courts more than 100 years ago is not
restricted as Congress restricted the contempt power of the lower
federal courts.
See Acts 1846, p. 200, Vernon's Texas
Statutes, Art. 1955. It is an inadmissible jump from finding that
conduct is not contempt within the federal Act to finding that an
exertion of State power offended the Fourteenth Amendment. Yet the
Court now finds that Texas has transgressed the implications of the
Due Process Clause by punishing conduct which this Court in the
Toledo case thought was within the scope even of the
federal Act -- a construction which it occurred to no member of the
Court to question on constitutional grounds.
The difference between the issue before us and that raised by
the
Toledo and
Craig cases is basic. In those
cases, the Court had before it, and Mr. Justice Holmes was
concerned only with, the proper application of a federal statute
setting a narrowly confined scope to the power to punish for
contempt. The Court was not concerned with the Constitutional power
of the States to enforce a broader contempt policy. Such a power,
in fact, had been assumed to be beyond doubt.
"When a case is finished, courts are subject to the same
criticism as other people; but the propriety and necessity of
preventing interference with the course of justice by premature
statement, argument, or intimidation hardly can be denied."
So wrote Mr. Justice Holmes for this Court.
Patterson v.
Colorado, 205 U. S. 454,
205 U. S. 463.
To be sure, he wrote this 40 years
Page 331 U. S. 388
ago, and on several occasions thereafter, as part of the
formulation of his profound tolerance for freedom of expression, he
spoke out against misuse of the power to punish for contempt. But
nothing that that great judge ever wrote qualified in the slightest
his conviction that the theory of our system of justice is
"that the conclusions to be reached in a case will be induced
only by evidence and argument in open court, and not by any outside
influence, whether of private talk or public print."
Patterson v. Colorado, supra, 205 U.S. at
205 U. S. 462.
Mr. Justice Holmes had no tolerance whatever for any special claim
by judges to immunity from criticism. He was against anything that
smacked of summary proceeding for what was known as "scandalizing
the court," that is, speaking ill of a court as an institution, and
thereby argumentatively bringing it into disrepute. He would allow
summary punishment of conduct calculated to affect a judge in the
discharge of his duty only as to matters "pending" before him in
the active sense of that term. "It is not enough that somebody may
hereafter move to have something done." So he wrote, dissenting, in
Craig v. Hecht, supra, at
263 U. S. 281.
And, in his misapplied dissent in the
Toledo case, he
expressed his impatience with federal judges who take notice of
newspaper comments to which a judge should be indifferent. But his
opinion in that case conveys not a doubt as to the power of States
to enforce a policy for the punishment of contempt in relation to a
pending case, though the State policy be not limited as Congress
limited the power of the federal courts to punish for contempt.
There is not a breath of a suggestion in the opinion in the
Nye case that the restricted geographic meaning which the
Court gave to the Act of Congress designed to limit the power of
the lower federal courts was required by constitutional
considerations. The opinions of Mr. Justice Holmes contain not the
remotest hint that
Page 331 U. S. 389
the Due Process Clause withdrew from the States the power to
base a finding of contempt on publication aimed at a particular
outcome of a matter awaiting adjudication. And it is worthy of note
that, in the very opinion in which the phrase "clear and present
danger" was first used by Mr. Justice Holmes, he referred to his
opinion in the
Patterson case, and not with disapproval.
See Schenck v. United States, 279 U. S.
47,
279 U. S.
51-52.
We are not dealing here with criticisms, whether temperate or
unbridled, of action in a case after a judge is through with it, or
of his judicial qualifications, or of his conduct in general.
Comment on what a judge has done -- criticism of the judicial
process in a particular case after it has exhausted itself -- no
matter how ill informed or irresponsible or misrepresentative, is
part of the precious right of the free play of opinion. Whatever
violence there may be to truth in such utterances must be left to
the correction of truth.
The publications now in question did not constitute merely a
narrative of a judge's conduct in a particular case, nor a general
commentary upon his competence or his philosophy. Nor were they a
plea for reform of the Texas legal system to the end that county
court judges should be learned in the law and that a judgment in a
suit of forcible detainer may be appealable. The thrust of the
articles was directed to what the judge should do on a matter
immediately before him -- namely, to grant a motion for a new
trial. So the Texas Court found. And it found this not in the
abstract, but on the particular stage of the happenings and in the
circumstances disclosed by the record. The Texas Court made its
findings with reference to the locality where the events took place
and in circumstances which may easily impart significance to the
Texas Court but may elude full appreciation here.
Page 331 U. S. 390
Corpus Christi, the locale of the drama, had a population of
less than 60,000 at the last census, and Nueces County about
92,000. The three papers which published the articles complained of
are under common control, and are the only papers of general
circulation in the area. It can hardly be a compelling presumption
that such papers so controlled had no influence at a time when
patriotic fervor was running high, in stirring up sentiment of
powerful groups in a small community in favor of a veteran to whom,
it was charged, a great wrong had been done. It would seem a
natural inference, as the court below in effect found, that these
newspapers whipped up public opinion against the judge to secure
reversal of his action, and then professed merely to report public
opinion. We cannot say that the Texas Court could not properly find
that these newspapers asked of the judge, and instigated powerful
sections of the community to ask of the judge, that which no one
has any business to ask of a judge except the parties and their
counsel in open court -- namely, that he should decide one way
rather than another. Only if we can say that the Texas Court had no
basis in reason to find what it did find can we deny that the
purpose of the articles, in their setting, was to induce the judge
to grant a new trial. Surely a jury could reach such a conclusion
on these facts. We ought not to allow less leeway to the Texas
Court in drawing inferences than we would to a jury. Because it is
a question of degree, the field in which a court, like a jury, may
"exercise its judgment is necessarily a wide one." Mr. Justice
Brandeis, in
Schaefer v. United States, 251 U.
S. 466,
251 U. S. 483.
Of course, the findings by a State court of what are usually deemed
facts cannot foreclose our scrutiny of them if a constitutional
right depends on a fair appraisal of those facts. But it would be
novel doctrine indeed to say that we may consider the record as it
comes before us from
Page 331 U. S. 391
a State court as though it were our duty or right to ascertain
the facts in the first instance. A State cannot, by torturing
facts, preclude us from considering whether it has thereby denied a
constitutional right. Neither can this Court find a violation of a
constitutional right by denying to a State its right to a fair
appraisal of facts and circumstances peculiarly its concern.
Otherwise, in every case coming here from a State court, this Court
might make independent examination of the facts, because every
right claimed under the Constitution is a fundamental right. The
"most respectful attention" which we have been told is due to a
State would then be merely an empty profession.
See Pennekamp
v. Florida, 328 U. S. 331,
328 U. S.
335.
If, under all the circumstances, the Texas Court here was not
justified in finding that these publications created "a clear and
present danger" of the substantive evil that Texas had a right to
prevent -- namely the purposeful exertion of extraneous influence
in having the motion for a new trial granted -- "clear and present
danger" becomes merely a phrase for covering up a novel, iron
constitutional doctrine. Hereafter, the States cannot deal with
direct attempts to influence the disposition of a pending
controversy by a summary proceeding, except when the misbehavior
physically prevents proceedings from going on in court or occurs in
its immediate proximity. Only the pungent pen of Mr. Justice Holmes
could adequately comment on such a perversion of the purpose of his
phrase.
Changes are rung on the remark of Mr. Justice Holmes in the
Toledo case that "a judge of the United States is expected
to be a man of ordinary firmness of character." 247 U.S. at
247 U. S. 424.
But it is pertinent to observe that that was said by an Olympian
who was so remote from the common currents of life that he did
not
Page 331 U. S. 392
read newspapers. Even a conscientious judge not a layman, and
not merely one serving under a short judicial tenure, may find
himself in a dilemma when subjected to a barrage pressing a
particular result in a case immediately before him. He may not
unnaturally be moved to do what is urged, or he may be impelled to
display his independence and not give to the arguments on behalf of
the motion for a new trial that serene and undisturbed
consideration which often leads judges to grant such a motion. It
has not been unknown that judges persist in error to avoid giving
the appearance of weakness and vacillation. Thus, one or another of
the litigants before the Court may have been denied that
disinterested exercise of judgment which is of the essence of the
judicial process. The demands found to have been made upon the
judge by these papers may agitate even a conscientious judge. He
may himself be unaware of the extent to which his powers of reason
have not the sway they would otherwise have. Or a judge, proud of
his independence, may unconsciously have his back stiffened, and
thereby his mind, when hearing the motion for a new trial and
passing on its validity. Judges are not merely the habitations of
bloodless categories of the law which pursue their predestined
ends.
The fact that it cannot be demonstrated how the delicate balance
of an adjudication was tampered with, or whether it was, does not
prove that it was not tampered with. To rely on the assumption that
judges are men of fortitude and that no judge "worthy of the name"
would be influenced in his decision by a publication directed
toward a particular disposition of a pending litigation, is to say
in effect that the Due Process Clause precludes a State from
believing that there may be such a psychological danger, short of
the fantastic situation where a judge confesses that he decided as
he did because of newspaper
Page 331 U. S. 393
pressure, or avows that he came awfully close to being derelict
in his judicial duty because of such pressure. In
Bridges v.
California, 314 U. S. 252,
this Court did not profess to make a constitutional dogma of so
questionable a psychological assumption. It did not condemn
outright the power of a State summarily to punish for contempt a
publication uttered outside of court but brought to bear upon a
pending case. The opinion of the Texas Court gives every indication
of scrupulous obedience to the requirements of the
Bridges
case. Nor did the dissenting judge find conflict with the
Bridges case. If we accord "most respectful attention" to
what the State court has decided, I am unable to find any ground
for rejecting the application which the Texas Court made to the
circumstances of this case of the principles which it drew from the
Bridges case.
Is it conceivable that even the most doctrinaire libertarian
would think it consonant with the impartiality which adjudication
presupposes to publish a poll regarding the outcome desired by a
community in a pending case? How can the insertion into the scales
of justice of a newspaper's own notion of the desire of a community
for a particular result in a pending case be more permissible than
the report of public feeling as ascertained by a public poll?
Again, suppose the newspaper articles here in controversy had been
enclosed in a letter to the judge urging, on the basis of these
articles, a new trial. Would the Constitution of the United States
forbid a State to deal with such conduct through the corrective
process of contempt? But a denial of this power to the States where
newspapers carry the same articles directed to the same end can
only be on the basis that private correspondence has less
constitutional protection than have newspapers.
To agree with a principle in principle only to depart from it in
practice has not been so fruitful of good in the
Page 331 U. S. 394
world of diplomacy as to suggest its importation into the
judicial process. If it be deemed that the Due Process Clause put
an end to the historic power of States to allow summary proceedings
for contempt by interference with an actually pending controversy,
or even if it be deemed offensive to due process for the judge
whose conduct is called in question to sit in judgment upon the
contemnor because self-interest is too great,
see Tumey v.
Ohio, 273 U. S. 510, and
Cooke v. United States, 267 U. S. 517,
267 U. S. 539,
such a break with the past had best be completely candid. It may
well be the deeper wisdom to treat with intelligent neglect
paragraphs that are calculated and intended to influence the
disposition of litigation. But the wisdom of such wisdom is not the
measure of the constitutional power of the several States to deal
with extraneous influence designed to affect the outcome of a
particular case.
We think the judgment should be affirmed.
MR. JUSTICE JACKSON, dissenting.
This is one of those cases in which the reasons we give for our
decision are more important to the development of the law than the
decision itself.
It seems to me that the Court is assigning two untenable, if not
harmful, reasons for its action. The first is that this newspaper
publisher has done no wrong. I take it that we could not deny the
right of the state to punish him if he had done wrong, and I do not
suppose we could say that the traditional remedy was an
unconstitutional one.
The right of the people to have a free press is a vital one, but
so is the right to have a calm and fair trial free from outside
pressures and influences. Every other right, including the right of
a free press itself, may depend on the ability to get a judicial
hearing as dispassionate
Page 331 U. S. 395
and impartial as the weakness inherent in men will permit. I
think this publisher passed beyond the legitimate use of press
freedom, and infringed the citizen's right to a calm and impartial
trial. I do not think we can say that it is beyond the power of the
state to exert safeguards against such interference with the course
of trial as we have here.
This was a private lawsuit between individuals. It involved an
issue of no greater public importance than which of two claimants
should be the tenant of the "Playboy Cafe." The public interest in
the litigation was that dispassionate justice be done by the court,
and that it appear to be done.
The publisher had a complete monopoly of newspaper publicity in
that locality. For reasons that are not apparent, the papers took
an unusual interest in the proceeding. They first made what the
court agrees was a "rather sketchy and one-sided report of a case."
This is not overstatement. The former tenant had tendered a check,
and the newspaper report represented it as a payment of rent; it
made no reference to that fact that the check was postdated, and
was therefore no payment at all. Reports played up the fact that
its favorite among the litigants was a veteran. The community
became aroused. Then the newspaper published editorials which
attacked the judge while a motion for retrial was pending with what
the prevailing opinion concedes was "strong language, intemperate
language, and, we assume, an unfair criticism." The object of the
publicity appears to have been to get the judge to reverse himself
and to grant a new trial.
The fact that he did not yield to it does not prove that the
attack was not an effective interference with the administration of
justice. The judge was put in a position in which he either must
appear to yield his judgment to public clamor or to defy public
sentiment. The consequence of attacks may differ with the
temperament of the
Page 331 U. S. 396
judge. Some judges may take fright and yield, while others
become more set in their course, if only to make clear that they
will not be bullied. This judge was evidently of the latter type.
He was diverted from the calm consideration of the litigation
before him by what he regarded as a duty to institute a contempt
proceeding of his own against his tormentors.
For this Court to imply that this kind of attack during a
pending case is all right seems to me to compound the wrong. The
press of the country may rightfully take the decision of this Court
to mean indifference toward, if not approval of, such attacks upon
courts during pending cases. I think this opinion conveys a wrong
impression of the responsibilities of a free press for the calm and
dispassionate administration of justice, and that we should not
hesitate to condemn what has been done here.
But even worse is that this Court appears to sponsor the myth
that judges are not as other men are, and that therefore newspaper
attacks on them are negligible because they do not penetrate the
judicial armor. Says the opinion:
"But the law of contempt is not made for the protection of
judges who may be sensitive to the winds of public opinion. Judges
are supposed to be men of fortitude, able to thrive in a hardy
climate."
With due respect to those who think otherwise, to me this is an
ill founded opinion, and to inform the press that it may be
irresponsible in attacking judges because they have so much
fortitude is ill advised, or worse. I do not know whether it is the
view of the Court that a judge must be thick-skinned or just
thick-headed, but nothing in my experience or observation confirms
the idea that he is insensitive to publicity. Who does not prefer
good to ill report of his work? And if fame -- a good public name
-- is, as Milton said, the "last infirmity of noble mind," it is
frequently the first infirmity of a mediocre one.
Page 331 U. S. 397
From our sheltered position, fortified by life tenure and other
defenses to judicial independence, it is easy to say that this
local judge ought to have shown more fortitude in the face of
criticism. But he had no such protection. He was an elective judge,
who held for a short term. I do not take it that an ambition of a
judge to remain a judge is either unusual or dishonorable.
Moreover, he was not a lawyer, and I regard this as a matter of
some consequence. A lawyer may gain courage to render a decision
that temporarily is unpopular because he has confidence that his
profession over the years will approve it, despite its unpopular
reception, as has been the case with many great decisions. But this
judge had no anchor in professional opinion. Of course, the blasts
of these little papers in this small community do not jolt us, but
I am not so confident that we would be indifferent if a news
monopoly in our entire jurisdiction should perpetrate this kind of
an attack on us.
It is doubtful if the press itself regards judges as so
insulated from public opinion. In this very case, the American
Newspaper Publishers Association filed a brief
amicus
curiae on the merits after we granted certiorari. Of course,
it does not cite a single authority that was not available to
counsel for the publisher involved, and does not tell us a single
new fact except this one:
"This membership embraces more than 700 newspaper publishers
whose publications represent in excess of eighty percent of the
total daily and Sunday circulation of newspapers published in this
country. The Association is vitally interested in the issue
presented in this case -- namely, the right of newspapers to
publish news stories and editorials on cases pending in the
courts."
This might be a good occasion to demonstrate the fortitude of
the judiciary.