67 A.2d at p. 518.
Thereupon, the State of Maryland asked this Court to issue a
writ of certiorari to review the decision of its Court of Appeals.
In its petition, Maryland urges that, while the Court of Appeals
was, of course, bound by the decisions of this Court, that court
misconceived our rulings, that the interpretation which it placed
upon the
Bridges, Pennekamp, and
Craig cases was
not correct, with the result that it erroneously reversed the
judgments for contempt. Since the court below reached its
conclusions on a misconception of federal law, so the State of
Maryland argues, only this Court can release the Maryland court
from its bondage of error.
This Court now declines to review the decision of the Maryland
Court of Appeals. The sole significance of such denial of a
petition for writ of certiorari need not be elucidated to those
versed in the Court's procedures. It simply means that fewer than
four members of the Court deemed it desirable to review a decision
of the lower court as a matter "of sound judicial discretion." Rule
38, paragraph 5, Rules of the Supreme Court. A variety of
considerations underlie denials of the writ, and as to the same
petition different reasons may lead different Justices to the same
result. This is especially true of petitions for review on writ of
certiorari to a State court. Narrowly technical reasons
Page 338 U. S. 918
may lead to denials. Review may be sought too late; the judgment
of the lower court may not be final; it may not be the judgment of
a State court of last resort; the decision may be supportable as a
matter of State law, not subject to review by this Court, even
though the State court also passed on issues of federal law. A
decision may satisfy all these technical requirements and yet may
commend itself for review to fewer than four members of the Court.
Pertinent considerations of judicial policy here come into play. A
case may raise an important question, but the record may be cloudy.
It may be desirable to have different aspects of an issue further
illumined by the lower courts. Wise adjudication has its own time
for ripening.
Since there are these conflicting and, to the uninformed, even
confusing reasons for denying petitions for certiorari, it has been
suggested from time to time that the Court indicate its reasons for
denial. Practical considerations preclude. In order that the Court
may be enabled to discharge its indispensable duties, Congress has
placed the control of the Court's business, in effect, within the
Court's discretion. During the last three terms, the Court disposed
of 260, 217, 224 cases, respectively, on their merits. For the same
three terms, the Court denied, respectively, 1,260, 1,105, 1,189
petitions calling for discretionary review. If the Court is to do
its work, it would not be feasible to give reasons, however brief,
for refusing to take these cases. The time that would be required
is prohibitive, apart from the fact, as already indicated, that
different reasons not infrequently move different members of the
Court in concluding that a particular case at a particular time
makes review undesirable. It becomes relevant here to note that
failure to record a dissent from a denial of a petition for writ of
certiorari in nowise implies that only the member of the Court who
notes his dissent thought the petition should be granted.
Page 338 U. S. 919
Inasmuch, therefore, as all that a denial of a petition for a
writ of certiorari means is that fewer than four members of the
Court thought it should be granted, this Court has rigorously
insisted that such a denial carries with it no implication whatever
regarding the Court's views on the merits of a case which it has
declined to review. The Court has said this again and again; again
and again the admonition has to be repeated.
The one thing that can be said with certainty about the Court's
denial of Maryland's petition in this case is that it does not
remotely imply approval or disapproval of what was said by the
Court of Appeals of Maryland. The issues canvassed in the opinions
of that court, and which the State of Maryland has asked us to
review, are of a nature which very readily lend themselves to
misconstruction of the denial of this petition. The present
instance is peculiarly one where the redundant becomes the
necessary.
It becomes necessary to say that denial of this petition carries
no support whatever for concluding that either the majority or the
dissent in the court below correctly interpreted the scope of our
decisions in
Bridges v. California, 314 U.
S. 252;
Pennekamp v. Florida, 328 U.
S. 331; and
Craig v. Harney, 331 U.
S. 367. It does not carry any implication that either,
or neither, opinion below correctly applied those decisions to the
facts in the case at bar.
The issues considered by the Court of Appeals bear on some of
the basic problems of a democratic society. Freedom of the press,
properly conceived, is basic to our constitutional system.
Safeguards for the fair administration of criminal justice are
enshrined in our Bill of Rights. Respect for both of these
indispensable elements of our constitutional system presents some
of the most difficult and delicate problems for adjudication when
they are before the Court for adjudication. It has taken centuries
of struggle to evolve our system for bringing the
Page 338 U. S. 920
guilty to book, protecting the innocent, and maintaining the
interests of society consonant with our democratic professions. One
of the demands of a democratic society is that the public should
know what goes on in courts by being told by the press what happens
there, to the end that the public may judge whether our system of
criminal justice is fair and right. On the other hand, our society
has set apart court and jury as the tribunal for determining guilt
or innocence on the basis of evidence adduced in court, so far as
it is humanly possible. It would be the grossest perversion of all
that Mr. Justice Holmes represents to suggest that it is also true
of the thought behind a criminal charge " . . . that the best test
of truth is the power of the thought to get itself accepted in the
competition of the market."
Abrams v. United States,
250 U. S. 616,
250 U. S. 630.
Proceedings for the determination of guilt or innocence in open
court before a jury are not in competition with any other means for
establishing the charge.
I have set forth in an
338
U.S. 912app|>appendix the course of recent English decisions
dealing with situations in which publications were claimed to have
injuriously affected the prosecutions for crime awaiting jury
determination. (As to freedom of press in England,
see
Report of the Royal Commission on the Press, Cmd. No. 7700, and the
debate thereon in the House of Commons, July 28, 1949. 467 H.C.
Deb. (5th ser.) 2683-2794.) Reference is made to this body of
experience merely for the purpose of indicating the kind of
questions that would have to be faced were we called upon to pass
on the limits that the Fourteenth Amendment places upon the power
of States to safeguard the fair administration of criminal justice
by jury trial from mutilation or distortion by extraneous
influences. These are issues that this Court has not yet
adjudicated. It is not to be supposed that by implication it means
to adjudicate them by refusing to adjudicate.
Page 338 U. S. 921
|
338
U.S. 912app|
APPENDIX TO OPINION OF FRANKFURTER, J.
English decisions concerning contempt of court for comments
prejudicial to the fair administration of criminal justice.
A. CASES FINDING CONTEMPT.
1.
King v. Tibbits and Windust, [1902] K.B. 77. The
judgment of the court (Lord Alverstone, C.J., and Wills, Grantham,
Kennedy and Ridley, JJ.) was read by Lord Alverstone, C.J. The case
is adequately summarized in the headnote:
"During the course of the trial of two persons for felony, the
reporter for a certain newspaper sent to the editor articles
affecting the conduct and character of the persons under trial
which would have been inadmissible in evidence against them. The
editor published the articles, and, after the conviction and
sentence of the two persons, he and the reporter were convicted on
an indictment charging them with unlawfully attempting to pervert
the course of justice by publishing the articles in question and
with conspiring to do so."
"Held, that the conviction must be affirmed."
Each of the defendants was sentenced to six weeks' imprisonment
on each count of the indictment, the sentences to run
concurrently.
2.
King v. Parke [1903] 2 K.B. 432 (Lord Alverstone,
C.J., Wills and Channell, JJ.). Rule for contempt of court for
publication of statements by a newspaper, before the accused's
commitment for trial, that he had engaged in immoral conduct and
had admitted a prior conviction and imprisonment for forgery.
Answering the argument that publication before commitment was not a
contempt, the court through Wills, J. said:
"A moment's consideration, it seems to us, is sufficient to
dispose of such a proposition. 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. Their tendency is to reduce the
Page 338 U. S. 922
Court which has to try the case to impotence so far as the
effectual elimination of prejudice and prepossession is
concerned."
Pp. 436-437.
The rule was made absolute, and a fine of � 50 imposed.
3.
King v. Davies [1906] 1 K.B. 32 (1905) (Lord
Alverstone, C.J., Wills and Darling, JJ.). Rule for contempt of
court for publication in a newspaper of statements that a woman,
then under arrest on a charge of abandoning a child but not
committed for trial for attempted murder of the child until after
the publication, had practiced wholesale baby farming and had been
convicted of fraud. In delivering the judgment of the court, Wills,
J. relied on
King v. Parke, supra:
"We adhere to the view we expressed in that case that the
publication of such articles is a contempt of the Court which
ultimately tries the case after committal, although at the time
when they are published it cannot be known whether there will be a
committal or not. Their tendency is to poison the stream of justice
in that Court, though at the time of their publication the stream
had not reached it. . . ."
P. 35.
The rule was made absolute, and a fine of � 100 imposed.
4.
Rex v. Clarke, 27 T.L.R. 32 (K.B.1910) (Darling,
Pickford and Coleridge, JJ.). Rule
nisi for contempt of
court based on a statement published in a newspaper that one
Crippen had confessed to having killed his wife, but had denied the
act was murder. Crippen was at the time in custody, though not yet
formally charged.
During the course of the argument, Darling, J. stated:
"Even if a confession had really been made, it might still have
been contempt to publish it; it might have been of such a kind as
to be inadmissible in evidence."
P. 33.
The pertinent part of the judgment of the court, delivered
through Darling, J., was thus reported:
"In the present case, after the man was in custody, the
newspaper commented upon the case as to whether he had committed
the crime, not to assist in unraveling the case. It was merely an
attempt to minister to the idle curiosity of people as to what was
passing within the prison before the trial took place. A news agent
procured various telegrams from Quebec, and, when he did not get
enough, he telegraphed for 1,000 words more.
Page 338 U. S. 1923
The Daily Chronicle published a telegram from Quebec
stating:"
"It is generally considered here that the formal official
denials that Crippen has made a confession hinge upon a distinction
between the words 'admission' and 'confession.'"
"Whether it was an admission or confession, the effect on the
prisoner would be the same. The telegram went on:"
"It is quite possible that what Crippen said may not be regarded
officially as a confession, especially as he declared that he was
not a 'murderer,' but that the prisoner made a statement to
Inspector Dew last Monday I have reason to feel certain. I have
confidence in the authority on which I cabled you the information
sent last night, and I am assured today from the same source that
Crippen admitted in the presence of witnesses that he had killed
his wife, but denied that the act was murder,"
"and finishing up with stating that his wife died from an
operation. Anything more calculated to prejudice a defense could
not be imagined. The jurors were drawn from the county of
Middlesex, where this paper was widely circulated."
"The Court had come to the conclusion that a contempt of the
Court had been committed in the publication of this matter, and
that it was a very grave contempt. It was most important that the
administration of justice in the country should not be hampered. To
hold otherwise would be to narrow the jurisdiction of the Court,
and his Lordship added that, so long as they sat there, they were
determined that trial by newspaper should not be substituted for
trial by jury. The primary punishment in a case of this kind was
imprisonment. The Court could not be blind to the fact that
newspapers were frequently owned by wealthy people who would take
their chance and cheerfully pay any fines that might be inflicted
for the sake of the advertisement. If this practice was not
stopped, the Court would have to inflict the primary punishment.
But the Court did not intend to do so in the present case. Mr.
Perris had seen that he was in the wrong, and had apologized. The
apology was due to the people wronged, and to the public. The Court
had no feeling in regard to the matter. The Court therefore did not
punish him as if he persisted in his wrongdoing. But,
notwithstanding this, a very grave offence had been committed. His
Lordship expressed the hope that what he had said and what would be
said would be the means of putting a stop to this kind of thing.
The order of the Court was that Mr. Perris
Page 338 U. S. 924
should pay to the Court � 200 and the costs, and that he should
be imprisoned until the sum was paid."
Pp. 34-35.
5.
Rex v. Astor, 30 T.L.R. 10 (K.B.1913) (Ridley,
Scrutton and Bailhache, JJ.). Rules
nisi for contempt of
court for comments in the Pall Mall Gazette and the Globe about a
trial for criminal libel and a private shareholders' suit, both
relating to the same person and to the same transaction. The
proceedings are reported in part as follows:
"Counsel continuing said that, if the rule was made absolute, it
would amount to an embargo on the Press, when a trial was pending,
from publishing any item of news which could in any way be thought
to prejudice the trial. It would be a very poor compliment to the
jury to suppose that they would be influenced by the
paragraph."
"Mr. Justice Scrutton (referring to the Gazette) said that, if a
paper took upon itself to mix up together the reports of criminal
proceedings and of civil proceedings relating to the same share
transaction, he could come to no other conclusion than that it
might tend to prejudice the jury trying the case, who were not
trained lawyers able to distinguish the exact relevance of a charge
of that kind. But he agreed that, having made ample apologies, the
respondents need only pay the costs."
P. 12.
With respect to the comments in the Globe, the rule was
discharged without costs, since the comments on the criminal and
civil proceedings were printed in separate portions of the
paper.
6.
Rex v. J. G. Hammond & Co., 30 T.L.R. 491
(K.B.1914) (Darling, Avory and Rowlatt, JJ.). Rule
nisi
for contempt of court for the publication of comments on a
prosecution for perjury then in progress before the magistrate:
"Dealing with the main question in the case, he [Mr. Justice
Darling] said he could not entertain the slightest doubt that the
comments made in Modern Society were a contempt of Court. It seemed
to him that they were absolutely intended to damage the prosecutor,
Sir. J. B. Robinson, and to glorify and extol Mr. Louis Cohen. That
being so, they were clearly calculated to prejudice the conduct of
the trial, and were therefore a contempt of Court. He could not
accept as sincere the expressions of regret made by the two
companies and by Mr. Harris in the affidavits read to them. The
judgment of the Court would be
Page 338 U. S. 925
that Mr. Harris must pay a fine of � 50 and the costs of the
proceedings. Harris was out of the jurisdiction at present, and it
was necessary that the order of the Court should be in a particular
form. The rule would be made absolute against him, but the writ of
attachment would be superseded if he paid the fine of � 50. With
regard to the two limited companies, in their judgment, there was
nothing to be said in mitigation of the offense which they had
committed, and the order with regards to each would be that they
must pay a fine of � 50 and the costs of the proceedings, the fine
to be levied upon the goods of the respective companies."
P. 492.
7.
Rex v. Editor and Printers and Publishers of the Evening
Standard, 40 T.L.R. 833 (K.B.1924) (Lord Hewart, C.J., Roche
and Branson, JJ.). Rules
nisi for contempt of court based
upon statements printed in three newspapers, the Evening Standard,
Manchester Guardian, and Daily Express. The Standard had hired
amateur detectives to investigate a killing and published what was
uncovered at a time when a charge of murder had been made and a
trial was to take place. The judgment of the court was delivered
through the Lord Chief Justice and reported in part as follows:
"It was urged on behalf of one respondent on the previous day
that it was part of the duty of a newspaper when a criminal case
was pending to elucidate the facts. If he understood that
suggestion when clearly expressed it came to something like this:
that, while the police or the Criminal Investigation Department
were to pursue their investigations in silence and with all
reticence and reserve, being careful to say nothing to prejudice
the trial of the case, whether from the point of view of the
prosecution or the point of view of the defence, it had come to be
somehow for some reason the duty of newspapers to employ an
independent staff of amateur detectives, who would bring to an
ignorance of the law of evidence a complete disregard of the
interests whether of the prosecution or the defence. They were to
conduct their investigation unfettered, to publish to the whole
world from time to time the results of these investigations,
whether they conceived them to be successful or unsuccessful
results, and by so doing to perform what was represented as a duty,
and, one could not help thinking, to cater for the public appetite
for sensational matter."
"It was not possible for that Court, nor had it any inclination,
to suggest to the responsible editors of those newspapers what
Page 338 U. S. 926
were the lines on which they ought to proceed. Any such task as
that was entirely beyond the province of that or any other
tribunal. Those who had to judge by the results could see what a
perilous enterprise this kind of publication was. It was not
possible even for the most ingenious mind to anticipate with
certainty what were to be the real issues, to say nothing of the
more difficult question what was to be the relative importance of
different issues in a trial which was about to take place. It might
be that a date, a place, or a letter, or some other one thing
which, considered in itself, looked trivial, might prove in the end
to be a matter of paramount importance. It was impossible to
foresee what was important."
P. 835.
"His Lordship added that, in all the cases, the fines would be
increased by the payment of costs. He said that nobody who knew
anything of the organization and management of a newspaper office
could be ignorant of the fact that the work of newspapers was very
often done in circumstances of great hurry by many different minds
not always fully aware of what others might be doing. The result
was a composite thing, but there must be central responsibility. It
was impossible to say that men occupying responsible positions
should be excused because they themselves were not personally aware
of what was being done. The practice was really becoming prevalent,
and it was quite obvious that there were those who thought that
publications of this kind were not only legitimate, but even
commendable. In the hope that that day's proceedings would show
that, in the opinion of that Court, that view was entirely wrong,
the Court had merely imposed a fine, but if the practice were
repeated, the Court would not again be disposed to adopt that
merciful alternative."
P. 836.
The rules were made absolute, and fines imposed of � 1,000 for
the acts of the Evening Standard and � 300 each for the statements
in the Manchester Guardian and Daily Express.
8.
Rex v. Editor, Printers and Publishers of the Daily
Herald, 75 Sol.J. 119 (K.B. 1931) (Lord Hewart, C.J., Avory
and MacKinnon, JJ.). Rule
nisi for contempt for publishing
a poster, which in fact related to another case, containing the
words "Another Blazing Car Murder" at a time when an accused stood
committed for trial on
Page 338 U. S. 927
the charge of murder of a man in a motor car found burned up. As
is the practice in all these cases, the respondents tendered full
apology to the court. In delivering the judgment, Lord Hewart,
C.J., stated that the poster words might suggest that the accused
had committed murder, which was the issue the jury had to decide.
The rule was made absolute, but only costs were assessed.
9.
Rex v. Editor, Printer and Publisher of the Surrey
Comet, 75 Sol. J. 311 (K.B. 1931) (Lord Hewart, C.J., Avory
and Humphreys, JJ.). Rule
nisi for contempt of court. The
judgment of the court is summarized as follows:
"Lord Hewart, C.J., said that the point was whether something
had been published which might prejudice the trial of an accused
man. In the article complained, of there was a long account,
carefully got together, which included at least three statements of
grave prejudice against the man who afterwards was charged. A
newspaper was entitled to report, fairly and accurately, what took
place in open court, but, in the present case,
ex
concessio, nothing had taken place in court, and there was no
question of reporting proceedings in court. The newspaper had
busied itself in the deplorable enterprise of collecting materials
which might be thought to be of interest concerning that which had
been done and the person who, it was expected, would be accused.
Once a newspaper departed from a fair and accurate report of what
was actually stated in open court, it not only took a great risk
itself, but it also imperiled the unfortunate man, guilty or
innocent, who was charged. For what had been done in the present
case there was no conceivable excuse. His lordship added that if
that kind of cynical indifference for the interests of accused
persons continued to be displayed, cases would not be met by the
imposition of fines. He hoped that the case would have the effect
of attracting the attention of professional journalists to the
utter impropriety of an enterprise of that character. The rule
would be made absolute against the editor of the newspaper, the
costs paid as between solicitor and client, and the editor would be
fined � 500."
Pp. 311-12.
10.
Rex. v. Hutchison (1936) 2 All Eng. 1514 (K.B.)
(Swift, Humphreys and Goddard, JJ.). Rules
nisi for
contempt of court for showing a news film of the arrest of a man,
subsequently charged with unlawful possession of firearms, with the
caption: "Attempt on the
Page 338 U. S. 928
King's Life." The arrest had been made after a revolver fell
close to the King's horse during a procession in which the King was
riding, and it was widely feared that an attempt had been made on
the King's life. Swift, J., delivered the judgment of the court
making the rules absolute on the ground that the caption was likely
to bring about "derangement in the carriage of justice" (p. 1515).
Because of their apologies, only costs were assessed against some
respondents, but another was fined � 50 and costs "to mark the
court's disapproval of their conduct" (p. 1515).
11.
Rex v. Editor, Printers and Publishers of the Evening
News, The Times (London), July 30, 1936, p. 4, col. 3 (K.B.)
(Swift, Humphreys and Goddard, JJ.). Rule
nisi for
contempt of court for publishing articles describing as a "crank"
and a person regarded by the police as a "harmless lunatic nursing
a grievance" someone under arrest for unlawful possession of
firearms. He was the same accused about whom the news film in
Rex v. Hutchison, supra, was shown. The court's decision
is summarized as follows:
"Mr. Justice Swift, in giving judgment, said that proceedings
for contempt of Court were not taken to vindicate the dignity of
the Court or the person of a Judge, but to prevent undue
interference with the administration of justice. It was essential
that, when a criminal charge was made against anyone, there should
be no tampering of any sort or kind with those who would ultimately
have to decide the matter."
"It was not disputed that the article complained of was a gross
contempt of Court in the sense that it was bound to influence the
minds of those who read it against the man who was accused of a
crime before he could be brought to trial."
"The Court thought that it was an extremely serious matter; but
it took into account the unqualified, unreserved, and sincere
apology which had been made for what had been done. The Court also
recognized that there might have been circumstances which
alleviated part, but only part, of what had been published. No
regard seemed to have been paid by the newspaper to the position of
the accused man at all. His state of mind, his conduct in the past,
the names under which he had gone, whether the statements made were
true or untrue, were all put before the public and those members of
the public who would ultimately form the tribunal to try him."
"The judgment of the Court would be that the rule should be made
absolute, and that the editor and the printers and
Page 338 U. S. 929
publishers of the newspaper should each be fined � 500 and be
ordered to pay the costs of the application."
12.
King v. Daily Mirror [1927] 1 K.B. 845. Rules
nisi for contempt of court for publishing in a newspaper
the photograph of a person charged with a criminal offense. The
bearing of such publication on the fairness of a later trial is
sufficiently indicated in the judgment of Lord Hewart, C.J., with
whom Avory and Talbot, JJ., concurred:
"The phrase 'contempt of court,' as has been observed more than
once, is, in relation to the kind of subject matter with which we
are now concerned, a little misleading. The mischief referred to
consists not in some attitude towards the Court itself, but in
conduct tending to prejudice the position of an accused person. In
other words, what is really in question is nothing attacking the
status of the Court as a court, but something which may profoundly
affect the rights of citizens [p. 847]."
"Nobody would excuse a police officer in the conduct of a case
if, collecting together all the various persons among whom
identifying witnesses might be found, he said: 'I have arrested a
man, and I am going to put him up for identification by you,' and
then showed to those persons a photograph of the suspected person.
The unfairness of that course is manifest, because the witness
approaches the difficult and it may be the crucial task of
identification with his mind prejudiced by the knowledge that this
particular person has been arrested and is in the hands of the
police. What does a newspaper do when it prints a photograph in
these circumstances? It invites the whole country to scrutinize the
features of the accused who has been arrested. That it does that
act not in the course of preparation of the case for the
prosecution, but merely in the course of the conduct of a
money-making business, does not excuse in a newspaper that which
would be reprehensible in a police officer. In my opinion, in the
publication of a photograph no less than in narrative, it is the
duty of a newspaper to take care to avoid publishing that which is
calculated to prejudice a fair trial. To approach the matter in a
mood of cynical indifference is obviously wrong. There is a duty to
take care lest, by the publication of matter, whether in the form
of a photograph or of printed words, prejudice should be caused to
a person about
Page 338 U. S. 930
to stand his trial. That, of course, does not mean, nor am I for
a moment suggesting, that a newspaper is not entitled in any
circumstances to publish a photograph of a person who is a party to
either civil or criminal proceedings. But I am no less clear upon
the point that there is a duty to refrain from the publication of
the photograph of an accused person where it is apparent to a
reasonable man that a question of identity may arise. If, in these
circumstances, a newspaper prints a photograph, it is taking a
grave risk, which in one sense affects the accused person and in
another sense affects the newspaper."
Pp. 849-850.
The rules were made absolute, but, since this was the first
occasion upon which the question arose with respect to the
publication of a photograph of an accused person, only costs were
assessed.
13. The Times (London), Mar. 26, 1949, p. 3, col. 1, reported
the recent case arising out of the prosecution of Haigh, the
so-called Bluebeard, as follows:
"A Divisional Court of the King's Bench -- the Lord Chief
Justice [Goddard], Mr. Justice Humphreys, and Mr. Justice Birkett
-- yesterday, on the two motions for writs of attachment for
contempt of Court made on behalf of John George Haigh (who is at
present in custody on a charge of murdering Mrs. Olive
Durand-Deacon) against Mr. Silvester Bolam, the editor of the Daily
Mirror, and Daily Mirror Newspapers, Limited, the Court ordered
that Mr. Bolam should be committed to prison for three calendar
months, and that the company should pay a fine of � 10,000 and the
costs of the proceedings."
"The Lord Chief Justice, delivering the judgment of the Court,
said that Sir Walter Monckton had moved for a writ of attachment
against Mr. Silvester Bolam, the editor of the Daily Mirror, for
contempt of Court. In view of the gravity of the case, the Court
directed that the proprietors of the newspaper, a limited company,
Daily Mirror Newspapers, Limited, should also be summoned before
the Court to answer for the contempt committed by the publication
in the newspaper of the matters complained of. It appeared that a
man named Haigh had been arrested and charged with murder. He had
been brought before the examining justices at Horsham, and the case
had not yet been opened. No more was known than that he had been
charged with murder. "
Page 338 U. S. 931
"On March 4, three issues of the Daily Mirror were published --
three separate editions. Those editions contained articles,
photographs, and headlines in the largest possible type, of a
character which the Court could only describe as a disgrace to
English journalism as violating every principle of justice and fair
play which it had been the pride of this country to extend to the
worst of criminals."
"To use the language of Lord Hardwicke in 1742 in the case of
the St. James's Evening Post -- it is a case of prejudicing mankind
against persons before their case is heard."
"Anyone who had had the misfortune, as the members of the Court
had, to read the articles must be left wondering how it could be
possible for this man to obtain a fair trial after what had been
published. Not only did the articles describe him as a vampire and
give reasons for that description of him, but, after saying that he
had been charged with one murder, they went on to say not merely
that he was charged with other murders, but that he had committed
others, and gave the names of persons whom, they said, he had
murdered. A photograph was given of a person whom he was said to
have murdered, with a description of the way in which the crime was
committed."
"In the long history of the present class of case, there had
never, in the opinion of the Court, been one of such gravity as
this, or one of such a scandalous and wicked character. It was of
the utmost importance that the Court should vindicate the common
principles of justice and, in the public interest, see that condign
punishment was meted out to persons guilty of such conduct. In the
opinion of the Court, what had been done was not the result of an
error of judgment, but was done as a matter of policy in pandering
to sensationalism for the purpose of increasing the circulation of
the newspaper."
"After it had come to the knowledge of the Commissioner of
Police that the Daily Mirror or some other paper might be likely to
publish some details of the case, in the course of the evening, a
warning was sent from the office of the Commissioner of Police to
this newspaper. That that had any real effect on this newspaper, in
spite of what had been said in the affidavit, it was difficult to
believe. It was true that there was some, but very little,
alteration in the last edition. That edition was itself a gross
contempt, not perhaps quite so bad as the other two which had been
issued. The fact that the police had given a warning did not affect
the question one way or the other. It
Page 338 U. S. 932
was an offense whether notice had been given or not. It might
aggravate the case that more attention was not paid to the
warning."
"As he had said, in view of the gravity of the case, the Court
had ordered the proprietors of the newspaper to be brought before
the Court. He would add a word of warning: let the directors
beware; they knew now the conduct of which their employees were
capable and the view which the Court took of the matter. If, for
the purpose of increasing the circulation of their paper, they
should again venture to publish such matter as this, the directors
themselves might find that the arm of that Court was long enough to
reach them and to deal with them individually. The Court had taken
the view that there must be severe punishment."
"His Lordship then called on Mr. Bolam to stand up, and,
addressing him, said: 'The writ of attachment will be issued, and
you will be taken in the custody of the tipstaff and committed to
Brixton Prison for three calendar months.'"
"Continuing, his Lordship said that the respondent company would
be fined � 10,000 and pay the costs of the proceedings. [
Footnote 1]"
B. CASES FINDING NO CONTEMPT.
1.
Rex v. Editor and Publishers of The People, The
Times (London), April 7, 1925, p. 5, col. 4 (K.B.) (Lord Hewart,
C.J., Shearman and Salter, JJ.). Rule for contempt for publication
of articles accusing one Hobbs of diabolical roguery and calling
him the "wizard crook of the underworld." The articles were
published after Hobbs' conviction for conspiracy to defraud
another, but it was alleged that they were calculated to prejudice
the hearing of the appeal. The relevant part of the judgment is
reported as follows:
"The Lord Chief Justice, in his judgment, said that the argument
had traveled over various matters which in his opinion did not
arise upon this rule, the sole ground of which was that the
articles were calculated to prejudice the fair hearing of the
appeal."
"The Court, continued his Lordship, is not a school of taste;
however deplorable, however disgusting these articles may be or be
thought to be, the question of censure to be passed on
Page 338 U. S. 933
them by men of taste or men of discretion does not arise. The
only question is whether they are calculated to prejudice the fair
hearing of the appeal. In my opinion, whatever may be the remedies
of Hobbs otherwise, or the views of a
censor morum or
tasteful critic about these articles, they do not come within this
branch of the law of contempt, and the rule will be
discharged."
2.
Rex v. Editor of the Daily Mail, 44 T.L.R. 303
(K.B.1928) (Lord Hewart, C.J., Avory and Branson, JJ.). Rule
nisi for contempt of court with respect to an article in
the Daily Mail commenting on a suit for libel [
Footnote 2] by one Factor against the newspaper
based on an earlier article published therein. The article as to
which contempt was charged contained material which had frequently
appeared in prior issues of the paper, but did not touch on the
issue of fact in the libel proceeding. The judgment of the court
discharging the rule was delivered by the Lord Chief Justice and
reported in part as follows:
"The Court was not satisfied that the article of December 23 --
coming as it did, after a long series of similar articles, being
but a repetition of charges already often made against Factor and
not complained of, and avoiding, as it did, any further mention of
the alleged association of Factor with Montgomery -- was calculated
to prejudice the trial of the only issues which Factor had chosen
to raise -- namely, that of his association with Montgomery and of
the damages which he should obtain if that issue were found in his
favor"
P. 307.
3.
Rex v. Editor, Printers and Publishers of News of the
World, 48 T.L.R. 234 (K.B.1932) (Lord Hewart, C.J., Avory and
Hawke, JJ.). Rule
nisi for contempt of court for
publishing prior to the trial what purported to be a statement of
the defense which would be made. The judgment of the court
discharging the rule was delivered by the Lord Chief Justice and
reported in part as follows:
"No doubt in some circumstances, and in some cases, the
publication beforehand of what was said to be the defence of an
accused person might amount to contempt of Court. They were
dealing, however, not with general principles, but with the
question whether those words came within the mischief against
Page 338 U. S. 934
which contempt proceedings were directed. They now had it from
counsel supporting the rule that last December something of the
same sort had actually been said to the police by the accused man
himself."
Pp. 234-35.
4.
Rex v. Davies [1945] 1 K.B. 435 (Humphreys and
Oliver, JJ.). Application for an order for a writ of attachment for
contempt of court, based on comments in a newspaper article about
one convicted of procuring miscarriage, made after notice of appeal
of the conviction had been filed. The motion was refused on the
ground that the particular comments did not amount to a contempt of
court, but both Humphreys and Oliver JJ., agreed that there might
be contempt even though the trial had ended. Portions of their
opinions follow:
"Humphreys, J. . . . Can the publication of any defamatory
matter, or of any matter which would amount to a contempt of court
if it had been published before the applicant in the present case
had been tried by a jury, be said to be calculated to interfere
with the due course of law and justice by prejudicing the fair
hearing of the applicant's appeal? In considering this question,
one must remember what are the powers of the Court of Criminal
Appeal. If that court existed for the sole purpose of deciding
questions of law which come before it, the answer to the question I
put above might well be in the negative. It might be said that it
is inconceivable that any court considering a pure question of law
could be affected by anything written in a newspaper about the
character of one of the parties in a civil or criminal case. It is,
indeed, inconceivable that, if one of the judges of such a court
had happened to have read the particular newspaper in question, it
could have the smallest effect on him. Those observations, however,
do not apply in the case of the Court of Criminal Appeal. That
court has many functions to perform. One of the powers which it
possesses, as was decided by the House of Lords in
Crane v.
Director of Public Prosecutions ([1921] 15 Cr.App.R. 183), is
that, when it finds that proceedings on an indictment are for any
reason void, it may order a trial of the indictment in question. It
therefore has the power, which used to exist in the court for the
consideration of Crown Cases Reserved, of awarding
venire de
novo. The effect of that is that, in any case coming before
it, the Court of Criminal Appeal may direct that a jury shall
Page 338 U. S. 935
be sworn to try the issue on the indictment which has never
properly been tried. It is therefore quite a fallacy to treat this
case as if all that the Court of Criminal Appeal could do with
regard to it would be to decide a question of law. It may be true
in a sense that they are deciding a question of law, but the effect
of their decision may be that a jury will have to try the question
of fact. It follows that any matter which is published between the
date of a conviction and the date of the hearing by the Court of
Criminal Appeal may come to the attention of a juryman who has to
try the question of the guilt or innocence of some person on the
indictment in respect of which
venire de novo has been
awarded. . . . There is another matter regarding which I desire to
say a few words. I think it is a fallacy to assume that the only
object of imposing punishment for contempt of court in a criminal
case is to prevent a juryman who may be trying the person affected
from reading matter of which he ought to know nothing. There is
also the judge to be considered, and, while I am not saying for a
moment that any person sitting in a judicial capacity, who may, be
it remembered, be a chairman of quarter sessions, who may or may
not be a lawyer, or a recorder, or it may be, of course, one of the
judges of the King's Bench Division, would be affected by anything
he might read, 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. . . . It is my own opinion, and I express it as such, but 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."
Pp. 441-443.
"Oliver, J. . . . One of the evils of inadmissible matter's
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
Page 338 U. S. 936
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 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. It is unnecessary to go through the
authorities, but that appears in case after case. Whether
defamatory matter amounts to contempt in any particular case is a
question in each case of fact, of degree, and of circumstances.
Obviously far less would amount to contempt of court if the matter
were published before the hearing by a jury than would be required
before a hearing by a judge or by the Court of Criminal Appeal. . .
. Much is said today about the freedom of the press, and I only
wish to point out that our decision in this case comes to no more
than this: that everything the public has a right to know about a
trial of the kind with which we are here concerned -- that is to
say, everything that has taken place in open court, may be
published, and beyond that, there is no need or right to go."
Pp. 445-446.
[
Footnote 1]
The decision is commented upon in 207 L.T. 181 (1949) and 207
L.T. 225 (1949).
[
Footnote 2]
This proceeding was civil, but it is included herein for
completeness.