Bridges v. California

252 *

BRIDGES CALIFORNIA. Argued 18, (No. Reargued 1. 21, 19, 1940 Term). No. October 13, 8,

October 1941. Decided December * Together 3, Superior with No. Times-Mirror et al. v. Co. Court of County Angeles, Los on also writ of California cer tiorari, Supreme to the Argued U. Court S. of California. (No. 21, 1940 64, 1940Term); reargued October 13, 14, 1941, October Fraenkel, with Mr. A. Wirin K. whom L. Mr. Osmond in No. 1. reargument petitioner on the brief, onwas original argument. brief and on the Mr. Wirin Cosgrove, with whom T. B. Messrs. John N. Mr. Jr. were on Yoakum, and F. B. peti- Cramer brief, in No. tioners Ashburn,

Mr. Allen W. with whom Messrs. J. H. O’Con- McKesson, nor, Wm. and Michael B. G. Luddy were on the brief, for respondents. the opinion delivered

Me. Justice Black Court. growing out of different while circum- cases,

These two parties, different both relate to the concerning and stances policy safeguarding national constitutional of our scope All petitioners were press. a free speech free contempt for court guilty and fined adjudged Their conviction Angeles County. of Los Court Superior litigation pending pertaining comments rested In Superior newspapers. published which were Court, peti- Supreme in the Court, and later California abridgment, an action as challenged the state’s tioners of freedom Constitution, the Federal prohibited by Superior but the Court overruled press; and of speech Supreme Court and the affirmed.1 The contention, this question the constitutional prompted us importance U. 309 U. S. 649; certiorari. S. grant courts asserted and exercised brief, power In the state publishing for views petitioners concerning to punish finally respects determined, upon the fol- all cases reasoning: California is invested lowing chain of with the adequate an administration duty provide power this duty, virtue of can take justice; by fair judicial free providing measures trials appropriate among included or intimidation; ap- coercion such from the common law of procedure pun- measures is propriate through obstructions con- certain interferences and ishing particular measure, devolving this proceedings; tempt reason by courts of California creation upon the for punish publications includes the to courts, as room if to the court tend interfere with outside made in orderly and administration pend- the fair a having found the publications the trial court ing case; being there tendency, a and substantial evidence had such imposed the here were finding, punishments the support to in of the far power; exercise state’s so as appropriate an restriction on of ex- punishments liberty these constitute a liberty interest was public properly the pression, judicial the public impartiality interest subordinated decorum.2 1Bridges Superior Court, Times- 983; 14 464, v. Cal. 2d 94 P. 2d Court, Superior 99, 2d Co. 15 Cal. 2d P. In the Mirror counts, Times-Mirror case, complaint contained seven the affidavits Superior a publication of different editorial. The each based Angeles County sustained a demurrer to two of the Los Court rested, remaining counts, five counts on which conviction and of the Supreme three, two. Court affirmed reversed as to the California Court, Superior supra, Times-Mirror Co. where See “Liberty quoted press is following approval: is subordinate judiciary. independence . . .” If the of conflict inference raised the last clause be correct, issue before us very gravest moment. speech For free fair trials are two the most cherished policies of our and it civilization, would be trying a task to choose between them. But* if even a such conflict is not actually raised question before we are us, still confronted with the problems delicate entailed passing upon the deliberations of the highest of a court state. This not, however, solely an issue between state and itas be if nation, would we were called upon mediate in one of those troublous situations each where claims to be repository of particular sovereign power. To sure, be the exercise of power question here in aby judge. deciding But in state or whether not the sweeping against constitutional mandate any law “abridging the freedom of speech press” it, forbids we are neces- sarily measuring power all courts, of American both state federal, including this one.

I It is to be at noted once that we have direction n.o legislature that publications California outside the court room which comment upon a pending case a speci fied manner should punishable. As we said Cant Connecticut, well 296, 310 307-308, U. S. such a “decla ration of the State’s policy weigh would heavily in any challenge of the infringing law as constitutional limita tions.” But as we also said there, problem is different “the judgment where is based on a common law concept general the most and undefined nature.” Id. Cf. 308. Herndon v. 301 Lowry, U. 242, S. 261-264. For here the legislature of California has not appraised particular kind of situation and found a specific danger3 sufficiently 3Indeed, only evidence legislature's we have of the California appraisal approval indicates policy directly contrary of a to that here

261 imminent to justify a restriction on particular kind of judgments utterance. The below, therefore, do not come us wrought encased the armor by prior legislative deliberation. Under such circumstances, this Court has said that “it must necessarily found, an original that the question,” specified publications involved created bringing “such likelihood of about the substantive evil as deprive of the constitutional protection.” Git [them] York, low Newv. 268 U. 652, S. 671. How much “likelihood” is another question, question “a

of proximity degree” that cannot be completely cap- tured a formula. In States, Schenck v. United how- ever, this Court said that there must be a determination whether or not “the words used are used in such cir- are of cumstances and such a nature as to create a clear danger present that they will bring about the sub- recognize stantive evils.” We that statement, this how- ever does not helpful, comprehend the whole problem. As Mr. Justice Brandéis said his concurring opinion Whitney California, S. 357, U. 374: “This Court has yet fixed the standard which to determine when a danger shall be deemed how clear; danger remote the may yet be and be deemed present.” followed the California courts. For 1209, 13, subsection § “,. (1937 ed.) California Code of Civil provides: Procedure . . no

speech publication reflecting upon concerning or or any any court or punished officer thereof shall be contempt treated as a of such court presence unless made in the immediate of such court while in session actually in such a manner as to interfere proceedings.” with its Supreme The California decision Court’s the statute is invalid under California constitution is an authoritative determination of point. legislature’s But the inferences as to the appraisal of the danger from the enactment, arise and are unchanged therefore judicial subsequent treatment of the statute. Schenck v. United 249 U. S.

262

Nevertheless, present danger” language5 “clear and of the Schenck in practical guidance case has afforded great variety of cases which the scope of constitutional protections of freedom of It expression was issue. has been utilized either a majority minority or of this Court in passing upon the constitutionality of under convictions espionage States, Schenck acts, supra; v. United Abrams States, v. United 250 under syndical U. S. a criminal 616; ism act, California, Whitney supra; under v. an “anti- insurrection” Lowry, act, supra; and breach Herndon v. peace Connecticut, at common Cantwell v. law, supra. very recently And we that suggested have also “clear and present danger” guide appropriate is an determining the constitutionality of restrictions ex pression where the sought substantive to be prevented evil by the restriction is “destruction of life or or property, Alabama, invasion of right Thornhill privacy.” v. 310 U. S. 88, 105.

Moreover, likelihood, great, however a sub- justify stantive evil will result cannot alone a restriction upon freedom speech press. or evil itself must “substantial,” Brandéis, concurring Whitney v. J., California, “serious,” supra, must be id. 376. And 374;

5 phrase danger” present Restatement of the “clear and in other infrequent. Compare, terms has been however: “. . . test to be applied Brandéis, J., is dis possible ... the remote effect.” senting 466, 486. “. . . we States, U. S. United Schaefer eternally vigilant against attempts expression should be to check the fraught death, opinions and believe to be with that we loathe unless imminently so threaten immediate interference lawful required pressing immediate check is purposes the law that an dissenting country.’’ Holmes, J., in Abrams v. United save the speech justify suppression of free 616, 630; “To there 250 U. S. will result if free ground that serious evil must be reasonable fear ground to speech believe practiced. be reasonable There must concurring in Brandéis, J., danger apprehended is imminent.” are ours. The italics Whitney U. S. California, preferences or beliefs” “legislative the of expression even of public matters inconvenience cannot transform minor weight into evils of sufficient annoyance substantive or Schnei expression. of liberty the warrant curtailment of State, der 308 U. S. 147, 161. present dan- finally emerges from the “clear and

What the evil working principle is a ger” cases substantive degree the imminence extremely be of must serious high punished. can Those extremely before utterances the do not to mark furthermost constitu- purport cases of here. protected tional boundaries nor do expression, we compulsion minimum recognize do no more than a They does Rights. Bill of For Amendment6 the First any “abridging equivocally. prohibits It law speak press.” of the It be taken speech, the freedom of must scope explicit language, of the broadest as command allow. liberty-loving society, the context will of read II cir- the and the analyzing punished Before utterances surrounding publication, we must con- cumstances valid, destroy if would the rele- argument which, an sider In foregoing this case. brief, of discussion to vance in question here publications argument is that this off by history, marked category belong special to a —a immunity criteria of constitutional which the category to types of other utterances from used where punishment argument runs, For, applicable. are not are concerned by contempt out-of-court punish judges of orderly ad- obstruct the and fair tending to publications deeply case pending in a of ministration press First of secured speech 6 "The freedom similarly se against abridgment States is the United Amendment abridgment against by a state.” Fourteenth persons all cured to 147, 160. State, S. Schneider U. in English

rooted common law at the time the Constitu- adopted. tion was That this historical contention is has been persuasively argued Fox, dubious elsewhere. Contempt Court, passim, Stansbury, e. 207. See g., also Peck, Trial H. In any James event need not us, English detain to assume that common law this field became his- deny generally ours accepted objects torical belief that “one of the the Revolution get was to of the English rid common liberty law on speech and the press.” Freedom Schofield, Press in the United 9 Publications Amer. Sociol. Soc., forget

More it in specifically, is to the environment the First Amendment In presenting was ratified. which the proposals which were later in embodied the Bill of Madison, the in Rights, James leader the of preparation the First said: Amendment, “Although know I .when- ever the great rights, the trial the jury, freedom of or of press, liberty come in in conscience, question that body the [Parliament], invasion of them is resisted advocates, able yet Magna Charta does not contain any one for provision security the of rights, those respect- ing people which the of America are most alarmed. freedom of press rights the of conscience, those choic- est privileges people, unguarded the are in the British of Congress Constitution.” Annals 1789-1790, 434. And Madison elsewhere wrote that “the state of the press . . . under the common law, cannot ... the be in standard of freedom the United States.” VI Writ- ings of James Madison 1790-1802, 387. 7Compare Buchanan, quoted James Stansbury, Trial James Peck,

H. separated 434: “At the Revolution we ourselves from the country, gov mother and we republican have established form of ernment, securing country greater to the citizens of this other and personal rights, enjoyed monarchy.” than those under the British no contrary There are implications any part of the history period which the First Amendment was adopted. framed and No purpose ratifying the Bill Rights was than securing clearer that of for the people greater United much States freedom of religion, assembly, petition the expression, people than Britain enjoyed. had It cannot denied, Great ever be religious that example, test oath restrictions upon assembly9 prevalent then in England would have regarded been measures as which the Constitution pro- Congress hibited the American passing. from And since unequivocal same language used with respect signifies freedom the it press, enlargement similar concept as well.10 as Ratified while the was mem- English ory many oppressive restrictions on the enu- merated liberties still fresh, the First Amendment reasonably cannot be taken approving prevalent Eng- practices. lish On contrary, only sup- conclusion ported by history unqualified prohibitions laid down intended give framers were to liberty of the press, as to other liberties, broadest scope that could countenanced an orderly society. II, repealed

8 16 c. 30. Geo. This until 1828. 9 IV, Geo. 17. e. 9 8, Cf. I, 2, II, 1 stat. c. 5. also Geo. Geo. 36 c. and discussion in Buckle, History England, of Civilization I, in Vol.

10 Compare Writings Madison, of VI James 1790-1802, 389: “To added, will these observations one fact be which that demonstrates expositor common cannot be admitted as the universal law of Ameri terms, religion can . The freedom of conscience of . . are found the same press. in instruments which assert freedom of the It will never be admitted meaning former, the common law England, meaning of limit in the United See States.” also Minnesota, Near v. Alabama, 283 rnhill 697, U. S. 716-717; v. Tho supra, 310 U. S. 102. 266 history con

The American implications subsequent of be Amendment. To firm such a construction of the First in the it occurred no more to the who lived sure, people us now than it would to following Ratification decades from dis themselves power protect that the of courts to of con by use turbances and disorder in the court room challenged tempt seriously could proceedings lib constitutionally conflicting guarantees secured has In erty. both state and federal this courts, Dunn, 6 recognized. See Anderson universally been it in the post- attempts expand Wheat. 227. But 204, bespeak reactions that years popular evoked Ratifieation feeling jealous press. a solicitude for freedom con York, example, New for heated Pennsylvania In in the abuses exercise alleged troversies arose over places which both culminated contempt power, summary legislation practically11 forbidding punishment King, Contempt publications. for See Nelles and Publication, 401, Col. L. Rev. 409-422. 28

In there was celebrated ease courts, the federal Nye Judge Peck, recently referred to this Court pro- 45. The United 33, impeachment U. S. strong noted, and the against him, should be ceedings feelings by his sum- they engendered, were set motion comment lawyer publishing a for mary punishment of the time of appeal publication a case which was on at on specifically publication false, The York statute made “the New report” proceedings punishable court con grossly inaccurate III, 1829, tempt proceedings, York Rev. Stat. Part however. New Pennsylvania Ill, 2, (6). statute contained no 1, tit. o. art. § publications “all explicitly out of proviso. stated such It any this any pending before court of concerning . cause court . . contempt of the said commonwealth, be construed into shall not them, printer, publisher, or author, either of court, toas render the so punishment summary same.” Pa. Acts liable to attachment and 146, q, p. 1808-1809, 267 other cases issue of several the identical and which raised legislation was the again him. Here pending then before expressly cap- in a statute outcome, Congress proclaiming concerning con- the law declaratory “An Act tioned of federal courts tempts court,”12 power not be for “shall summary contempt inflict punishment the misbehaviour any except to extend to cases construed courts, or . . . of the said persons presence the administration so near thereto as to obstruct interpret called justice recently . . When Court of this statute, the earlier decision this we overruled 402, U. 247 S. in Toledo Co. v. United Newspaper enlarged the stated area of improperly in the belief that it States, supra. United Nye v. summary punishment. whether case, we need not determine Here, Nye as power per- demarcate the full intended to the statute was to punish contempt under the Constitution missible viewed But we do find the enactment proceedings. a for the context, respect prohibitions its historical guides mere to the formulation Amendment, not as First cannot the breach of which but as commands policy, be tolerated. although some states have statute aware that

We are judges repudiated power expressly or decision finding of mere contempts on publications punish administration of orderly interfere with the tendency to case, other states have sanctioned in a pending (See King, loc. cit. Nelles power. of such a exercise of state and discussion 536-562, for collection supra, in this field was not tested this cases.) power But state century.13 Not until with the 1925, more than a Court 12 (1831). 4 Stat. Colorado, only case this Patterson v. U. S. before punish period court’s during in which a state Court issue, contempt was in publications by cannot taken out-of-court York, supra, did U. S. decision Gitlow v. New Amendment recognize this in the Fourteenth Court standards of freedom application to the states of the same Amendment, appli- First are expression as, under the first time government. to the And this is the cable federal upon since 1925 that we been called to determine have constitutionality contempt of a state’s exercise of the this kind of Now that such a case is situation. before cannot mere existence of other us, we allow the the historic destroy untested state decisions to constitu- meaning speech press. tional of freedom of and of the History support affords no for the contention that the applicable criteria under the Constitution to other types utterances are not in contempt proceedings, applicable, publications to out-of-court to a pertaining pending case.

Ill may appropriately begin judg- We our discussion of the ments by considering much, below how practical as a matter, they liberty would affect It expression. must recognized that public likely interest is much more be kindled day controversial than a event generalization, however penetrating, of historian or they scientist. Since punish during utterances made pendency case, of a the judgments below produce therefore their restrictive at results time when precise public interest the matters discussed would naturally be at height. Moreover, the ban likely to fall not only at a crucial time but the most important topics of dis- Here, cussion. for example, labor controversies were the of some topics publications. Experience shows more acute labor controversies the more likely are, squarely a decision point. on this Cf.: leave “We undecided the question whether there is to be found in the Fourteenth Amendment prohibition similar to that in the First.” Id. It get will into court. aspect is that some that command interest therefore the controversies most that the decisions remove from arena of below would discussion. public suggestion

No can be found Constitution the freedom guaranteed there and the speech press an bears inverse ratio timeliness and importance of the ideas seeking expression. itYet, would follow as result practical a of the decisions below that anyone who might give to public expression to his views on a wish involving case pending no matter what problem of public just interest, at the time his audience would be most re- ceptive, would be as effectively if discouraged as a de- liberate statutory scheme of censorship had been adopted. Indeed, perhaps so, more legislative because under a specification of the particular kinds of expressions pro- hibited and the circumstances under which the prohibi- tions are to operate, the speaker or publisher might at least have an guide authoritative to permissible scope of comment, instead of being compelled to act at the peril judges might that find in the utterance a “reasonable tendency” to obstruct in a pending case.

This unfocussed is, threat sure, be limited time, terminating itas does final disposition of the case. But this not change does its censorial An quality. endless series of moratoria public on discussion, if even each were very short, could hardly be dismissed an insignificant abridgment of freedom of expression. And to assume that each would be short is to overlook the fact that “pendency” of a case is frequently matter of months years even rather than days or weeks.14 14Compare King, Nelles and supra, loc. cit. 549: “While the Sacco- Vanzetti case was in the courts years], it not, [six believe, sug we gested as desirable public that expressions on either side be dealt contempts.” with as public In utility rate regulation, to take one many examples might given that be of a field in public which

270 judgments we are convinced that

For these reasons in a cannot be expression below result curtailment justified at insignificant. all, If can be dismissed as which it some serious substantive evil must terms of evil here designed avert. The substantive they are below.15 variously to be has described sought averted been for the disrespect judiciary; It to be double: appears justice. disorderly and unfair administration judiciary won by for the can be assumption respect ap- shielding judges published wrongly from criticism For opinion. American praises public character of mind, one's al- privilege speak American prized always good though perfect taste,16 public on all however limited, institutions. And an enforced silence, opinion divided, commonly strong public cases remain interest years. Joseph “pending” See Stock Yards v. United for several St. Co. Indianapolis Co., 88-92; McCart v. S. Water U. 419, 435. U. S. ,. telegram tendency . . . had an inherent ... Cf.: . said judge and decisions embarrass and actions before influence Bridges Superior Court, supra, pending.” whom said action was only 471; published “The statement was not p. 14 2d at a criticism Cal. pending court, an action then before said decision the court the of of attempt decision, to that if an made enforce the but was a threat “ up.” 488; tied Id. of the entire Pacific Coast would be ... ports the tendency had to ... is whether it a reasonable the test interfere justice . orderly . .” Times-Mirror Co. v. Su the administration of 103-104; Court, supra, “. . perior 2d at . the editorial Cal. [had tendency ordinary ... with the admin . reasonable to . . a] interfere justice.” 110. The italics ours. istration of Id. axe following from Compare statements letters of Thomas Jefferson the 150-151; deplore Padover, putrid “I . . . Democracy, the out set passed, malignity, newspapers our have and the the state which into spirit write them. . . . These vulgarity, those who and mendacious rapidly depraving public taste. are the ordures remedy, liberty no an evil for which there is our “It is however depends press, without the and that cannot be limited freedom of on the lost,” being dignity bench, the of preserving name solely in the resentment, and con- engender suspicion, probably would enhance respect. more than it would much tempt feared, disorderly and unfair administra- The other evil with restrict- plausibly associated justice, is more tion litigation. upon pending which touch ing publications on “trial” connotes decisions the evidence very The word Legal court. open advanced arguments properly and elections, through be won use of not like to trials are But radio, newspaper. we meeting-hall, assumption that publications with the cannot start actually change threaten to do here involved kind judicial im- legal trials, preserve and that nature for necessary judges contempt it is to have partiality, all can close channels ex- public which upon pending matters which touch all cases. pression the particular turn to utterances must therefore here We and the circumstances of their publication question evil of what extent the substantive unfair determine likely consequence, was a administration to justify likelihood was degree sufficient whether summary punishment. Angeles Los Times Editorials. The Times-Mirror

The Angeles Times, and L. of the Los D. Company, publisher editor, contempt cited for Hotchkiss, managing were Both found three editorials. publication editorials, for one of the responsible to be trial court $100. were each fined The com- and Hotchkiss company two, responsible for the other and was was held pany alone $300 more on one, on account of ac- fined more $100 the other. count of $300 fine marks the most serious presumably distinguished thus was entitled

offense. editorial After vigorously denouncing for Gorillas?” “Probation previously who had been a labor union two members of assaulting drivers, found it closes guilty nonunion truck with the will make a “Judge A. A. observation: Scott grants serious mistake if he Shan- probation Matthew non community and Kennan needs the Holmes. This assignment Judge of their mill.”17 example jute to the Scott had set a a month after the previously day (about for publication) passing application Shannon probation pronouncing and Holmes for and for sentence. The basis for punishing contempt publication was trial tendency” court said to be its “inherent Supreme tendency” Court its “reasonable interfere orderly with the administration an Angeles editorial, published in May 5, The whole The Los Times of 1938, was as follows: wrecking crew,

“Two members Beck’s Dave entertainment com- mittee, goon squad gorillas, having or Superior been convicted in Court assaulting drivers, truck probation. nonunion have for asked Pre- sumably they say they will are plead they ‘first offenders/ merely indulging playful were a when, exuberance slingshots, they only steel men fired missiles at whose offense wishing to work living paying for a without tribute to the erstwhile boss Seattle. “Sluggers pay, profit, slightly for like murderers for are different category from ordinary mayhem criminals. Men who commit wages merely peace are not violators of and dignity State; they conspirators against are also burgles it. The man who because his hungry may children are sympathy. have some public claim on whose, He impulse crime is may lenity. one of be entitled to But he who hires out his muscles for the creation of disorder aid of a organized is a deliberate racket foe of society penalized and should be accordingly.

“It will thugs teach no put lesson to other good men these on behavior for a limited time. Their ‘duty’ simply be would taken over by others like them. thugs, however, If Beck’s are made to realize they Quentin face San when are caught, it will tend disreputable make their occupation unpopular. Judge A. A. Scott will grants make serious mistake if probation he to Matthew Shannon Kennan Holmes. community This example needs of their assignment jute to the . mill.” . In accord- court for consideration. action then before a the “clear and present have on with what we said ance nor “reason- tendency” “inherent danger” neither cases, of free enough justify to a restriction tendency” is able measures, if they appropriate But even were expression. phrases in the use of those exaggeration find we should facts here. describe the in the of the taken position the indications record From in Times labor controversies Angeles on Los been little doubt of its attitude there could have past, In of Shannon and Holmes. view probation toward it long-continued militancy this paper’s field, judge Angeles would any inconceivable that Los but adverse criticism from it expect anything granted. were Yet such criticism after probation event proceedings clearly would disposition final have editorial, given this most privileged. been Hence, intimidating bear, construction it will did no more than which reasonably threaten future adverse criticism anyway the event of a lenient expected disposi- regard case.18 To pending it, therefore, tion of the inas justice of substantial influence the course of itself impute judges be to a lack of firmness, wisdom, would honor, we cannot accept major as a premise. —which J., dissenting Newspaper Toledo Co. v. Holmes, Cf. United 247 U. S. 402, Superior Court, supra, Cf. Times-Mirror Co. 2d 15 Cal. may “The intended, capable

109-110: editorial not have been but it being construed, judge leniency notice to the trial that no men, and, furthermore, should be extended to the convicted contrary suggestions should the court act to the contained in the editorial, might expect well adverse criticism in the columns of Although foregoing respect The Times.” statement was made with editorials, Supreme opinion to another of the the California applicable later said it was Id. Court to “Probation for Gorillas?” 114-115. editorials, other two publication which was fined

below, are in the margin.19 set out lower respect With two divergence these there is no editorials, conclusions among the members this Court. We are opin- all of the ion fair that, upon any construction, their possible influ- ence on course of can be dismissed as negligible, first editorials, The Convicted,” of these entitled was “Sit-Strikers published Angeles in the day Los Times of 21,1937, December after the jury the had returned question a verdict that the “sit-strikers” in were guilty, day judge and the the before trial was to hold court for the purpose pronouncing hearing sentence, trial, motions for a new passing applications probation. The editorial follows in entirety: jury finding guilty twenty-two “The verdict of a the sit-strikers Douglas plant February, who led assault on the last will have re- up verberations and down the Pacific and in points Coast farther east. Angeles Los

“The verdict means that is still Los Angeles, that danger city davebeckism, is aroused to the and that no kind of permitted will union terrorism be here. may good verdict a sending

“The have deal to do with Dave Beck For, back Seattle. while United to Automobile Workers have no Beck, connection their tactics and his are identical motive; Beck can be kind of per- and if convinced this warfare not necessarily conquest. in this he will his mitted area abandon dreams of “Already given the united farmers and ranchers have Beck a severe Hynes hay The market is still free and setback. it has been made Angeles milk to plain that interference with deliveries Los will not tolerated. Atty. pledged prevent punish

“Dist. Fitts his efforts to best racketeering strong address, union terrorism and a radio followed up yesterday congratulating jury it with a statement that con- the community sit-downers and on one victed the of the 'most far- reaching history country.7 verdicts in the of this important this he is It Is an correct. verdict. For the first

“In cycle began, present of labor disturbances union time since exactly is, against treated as it an lawlessness has been what offense peace punishable any public like other crime. arrogated property minority, seizure a to

“The militant which dictating right only employers, but other to workers itself compels and that the the con- Constitution us set aside power. victions exercises of the state’s unpermissible foregoing for' In view discussion “Probation setting and their analysis of these editorials Gorillas?”, deemed unnecessary. Bridges Telegram. While a motion for new trial a pending involving case between dispute an sympathy not in the terms it, with what should be and conditions of working, proved peace has to be within the control of local officers and authorities.

“Nobody Washington get ran off to this affair handled. It was right attended to here. may localities;

“Government have broken down in other whole may yielded anarchy. Angeles county States have But Los stands firm; duty officers who can juries has do and courts and which can function. long case, get

“So as that is davebeckism cannot and will not johnlewisism here; control nor either.” editorials,

The second of these entitled “The Fall of Ex-Queen,” an published Angeles April 14, was in Los Here, The Times of 1938. publication too, place jury subject took after a had found the of the judge guilty, pronounced editorial trial but before the had sentence. entirety: The editorial follows in its essentially

“Politics as business, we know it is an selfish conducted personal profit for kind in the main of one or another. When it is of type, apt pretty in boss-ship, the boss it is to be sordid as well. Success necessarily public rights, implies which is a kind of a denial of moral actually illegal obliquity if an one. not something

“So that it is of a contradiction of sense if not of terms regret express political talents of Helen to Mrs. Werner the were objectives which, twilight directed to other than those in not brought life, disgrace. her her active have and her husband If they been, politics in probably had she would not have been at all and would way. been public purely never have heard of in a natural flair Her was political; any sphere activity. would been she have miscast other primary failing

“Mrs. mistake seems Werner’s to have been in day years recognize political past. enjoyed that her was For she being country’s only unique distinction woman boss—and did enjoy finger every heyday political pie In her she had a she it! plums many and were the she was able to extract therefrom those A. P. of L. union and a I.C. union Bridges of which was an he either caused officer, to be published or ac- quiesced in publication telegram of a which he had sent to the Secretary of Labor. telegram The referred to judge’s decision as said that “outrageous”; attempted enforcement of it would tie up port Angeles of Los and involve the entire Pacific and Coast; concluded with the announcement I. 0. union, C. representing some twelve members, thousand did “not intend to allow state courts to override the majority vote of members choosing its officers representatives and to override the National Labor Relations Board.”20 played who ball with her. From beginnings small every she utilized opportunity to her put extend and to prom- influence officeholders and ising political obligations material under to her. power She became a backstage in the city county councils of place affairs and from that strategic advantage pull out strings reached on State and legislative offices as well. days “Those 'Queen were the when Mrs. Werner was Helen’ and only say it is fair that to her the important was much more perquisites. than the turning When the inevitable political brought figures wheel new to the front and new bosses to the back, grip slipping she found her and it hard to take. The several cases years brought which in have recent her before the courts to defend examples energetic her activities seem all of an regain effort to high places. reassert her onetime influence in ultimately That it should have landed her behind the bars as a convicted bribe-seeker illogical. logic it, But if money there meant less to Mrs. Werner than being political the name of still power, one who could things do public officials that others could To not do. herself Queen at she least was still Helen.” portions telegram published newspapers general Angeles January circulation in Francisco and Los San on 24 and 1938, were as follows: outrageous considering (in

“This decision is I. L. A. has 15 members Pedro) Longshoremen-Warehousemen’s San International and the Longshoremen-Warehousemen Union International has 3000. Union petitioned represent has the board for labor certification San Pedro rested at all is not Bridges’ conviction Apparently The remainder “outrageous.” his use of the word to be a statement construed telegram fairly appears be a there would if be enforced the court’s decree should have a strike would strike. It is not claimed that such in decree, nor that terms of the been violation of the of Cali- it have run afoul of the law any way other would telegram can the construction, therefore, fornia. On no Bridges the union to threat either be taken as a action. illegal follow an course of Bridges statement was made to the

Moreover, this charged with official duties in Secretary Labor, who is the prevention with the strikes. Whatever connection if was threatened or might possible be a strike the cause all available Secretary was entitled to receive information. recognized that, of California Supreme Court Indeed, newspapers aside, sending mes- publication Bridges exercising right was sage Secretary, United duly representative accredited petition right Amend- Government, protected First States ment.21 recognized Bridges a prominent

It must at a time when interest speaking public leader labor controversy was at height. labor the particular previously have made here upon we the time- observations Longshoremen International longshoremen with Association denied represents only hearing held; because 15 men. representation Board Attempted pending. enforcement of now Schmidt decision decision Angeles port of Los and involve entire Pacific up Coast. will tie Inter- Longshoremen-Warehousemen Union, representing over national longshoremen 12,000 Coast, on Pacific does not in- 11,000 majority courts allow state to override vote members tend to choosing representatives and to override the Na- its officers and Board.” Labor Relations tional supra, Bridges Superior Court, 14 Cal. 2d at Cf. See 493. White Nicholls, 3 How. liness and importance of utterances as rather emphasizing diminishing than the protection, value constitutional the breadth and seriousness of the censorial of punishing publications effects in the manner followed certainly below, leading are no applicable spokes- less to a man powerful taking for labor than to a newspaper another point of view.

In looking the at reason advanced support of the judgment of contempt, too, we find here, that the possi- bility causing unfair disposition of a pending case major justification again And gist asserted. here offense, according below, court intimi- dation. us telegram

Let assume that the could be construed as Bridges’ an announcement of intention strike, to call a something which, it is admitted, neither the general law California nor the court’s decree With an prohibited. eye on the realities of the we cannot assume situation, that Judge Schmidt was unaware of the possibility of a strike consequence of his If decision. he was not intimidated by the facts themselves, we do not believe that the most explicit statement of them could have sidetracked justice. course of exaggeration we find Again, the con- clusion that the utterance even “tended” to interfere with justice. If was electricity there in the atmosphere, it was generated by the charge added facts; Bridges telegram can be as negligible. dismissed words Holmes, Justice spoken Mr. reference to very different entirely seem “I facts, applicable here: confess I that find in this or in cannot all evidence any- case thing that would have affected mind of reasonable forti- tude, and still less I can find anything there obstructed the administration of in any sense I possibly can give those words.” Newspaper Toledo Co. supra, United 247 U. S. at 425.

Reversed. whom concurred Frankfurter, Mr. Justice and Mr. Justice Justice, Roberts Mr. Justice Chief Byrnes, dissenting. that it is an exercise the view repels history whole

Our Rights Bill of by the of the civil liberties secured of one metro- following powerful or for a large of a leader for a in a judge to to overawe newspaper attempt politan The view the him. of before immediately pending matter its securing for to of means majority California deprives which, the justice according law—means since to citizens hitherto founded, possession, have been the Union break with of the states. This sudden unchallenged, all history has no of constitutional uninterrupted course the justification find for such dep- warrant. To constitutional is mis- the of the states historic powers rivation of speech as thought the idea of freedom conceive Constitution. the guaranteed to enforce important it more than ever before Deeming generous outlook, deeming but no liberties with a it civil for assurance of civil liberties that the essential the less main- founded the Constitution be system upon federal tained, ambiguities believe the careful silences we that for full of the majority opinion exposition call the issues these cases. question that of the determining

While the immediate is attempts to deal with courts California judgments litigation immediately before to coerce ruling is a them, today of the Court’s consequence the right of a forty-eight the states people denial to always regarded have as the effec- they which essential judicial as a denial to process, tive exercise of the as well from the Congress of which were exercised powers the beginning very even the framers of the Constitution in many sure, majority To do not so themselves. be by newspapers that trial has constitutional words hold sanctity. But the atmosphere opinion of their and several phrases mean that nothing. mean Cer- tainly, opinion of any recognition devoid frank right of courts deal with utterances calculated to fair justice right intimidate course of which —a hitherto all.the states have from to time fit time seen confer upon Congress their courts and which conferred upon the federal the Judiciary courts Act of 1789. If all today is decided the majority deem specific interferences administration of tenuously California so related to right of California to keep its courts free from coercion to constitute a check speech free rather upon impartial than justice, say would so. Matters that involve so deeply well powers states, put and that to the the pro- test fessions this Court self-restraint nullifying the and political powers nation, state should not be left clouded.

We are vouchsafed even reference to the specific provision of the Constitution which renders states power upon less to insist by trial courts rather than trial by So far as the newspapers. Congress of the United States concerned, is we are referred to the First Amendment. specific. That is But we are here dealing with limitations upon California —with upon restraints the states. To say the protection of freedom of speech of the First Amendment is absorbed Fourteenth does not say enough. Which one of the various limitations upon state power introduced Fourteenth Amendment absorbs the First? Some provisions Fourteenth Amend ment apply only to citizens and one of the petitioners here an alien; is some of provisions apply its only natural persons, and another here is petitioner corporation. See Hague O., I. 496, 514, C. U. S. cases cited. Only protection Due Process Clause assures constitutional corporations. civil liberties to aliens and Corporations cannot claim for “liberty” themselves the which the Due Process guarantees. Clause only That clause protects property. their Pierce Society Sisters, 268 U. S. 510, The majority opinion strangely failing silent specific avow the provision constitutional which decision rests.

These are not academic debating points or technical niceties. Those gone who have before us have admon us ished “that a free representative government nothing is more fundamental right than the of the people through appointed govern servants to themselves accord with their ance own will, except so far have restrained themselves by constitutional limits specifically and that our established, peculiar dual gov form of ernment nothing more fundamental than the full power to order State its own govern affairs and its own except far so as the Federal people, Constitution expressly or by implication fair has withdrawn power.

power of the people of the States to make and alter their laws at pleasure greatest is the security liberty and justice ... We are not invested with the jurisdiction pass upon the expediency, wisdom or of the laws States as declared their courts, but only to deter conformity mine their with the Federal Constitution and paramount enacted pursuant to it. Under laws guise interpreting the Constitution we must take care that we do not import into the discussion our own per just sonal views of what would be wise, fitting rules government to be adopted by a free people con found them with constitutional limitations.” Twining v. New Jersey, 211 U. S. 78, 106-07.

In a series of as opinions uncompromising any as history, this has Court settled that the fullest oppor- tunities for free discussion are “implicit the concept of ordered liberty, and through thus, the Fourteenth Amendment,” protected against attempted invasion

282 the states. Palko Connecticut, 302 U. S. 324-25. 319, The channels of inquiry thought and kept open must be conquests new of reason, however odious their expres may sion be to the prevailing opinion. climate of But “in each of its liberty, history has its and connota phases, tion.” particular Whether a state action “the violates es sential attributes of that liberty” judged must be light of the liberty that is invoked and the curtailment challenged. is Minnesota, Near v. 697, 708. U. S. For recognition “the privilege does not mean that it is without conditions or exceptions. The policy social that will prevail in many may situations run in others foul of a different policy, social competing for supremacy. It is then the function of a court to mediate between them, far so assigning, possible, proper value to each, summoning to its aid all the analogies distinctions and judicial are the tools of the process.” Clark United 1, 13. 289 U. S. speech

Free is not so conception absolute or irrational a paralysis as to imply of the means for effective protection of all the freedoms secured by Rights. the Bill of Com- pare Lincoln’s Message to Congress Special Session, July 4, 1861, Messages Papers Richardson, Presidents, pp. 3221-3232. In the cases us, before claims on behalf of freedom of speech press and of the encounter claims on behalf liberties precious. no less California asserts her right to do what she has done as a system justice. means of her safeguarding The administration of an impartial judiciary been conception has basic to our of freedom ever since Magna Carta. It is the merely concern not of the imme- litigants. diate concern, Its assurance everyone’s protected liberty guaranteed by the Four- teenth Amendment. That is why this Court has outlawed mob domination of a Moore v. courtroom, Dempsey, U. S. mental coercion of a Chambers v. defendant, Florida, judicial 227, system S. which 309 U. does judges, Ohio, provide Tumey disinterested 273 U. S. 510, and discriminatory Louisiana, selection of Pierre v. jurors, Texas, 306 U. Smith v. 354; S. 311 U. S. 128. ideas,” in

A trial is not “free trade nor is the best test of truth in a courtroom “the thought get itself in accepted of competition the market.” Compare Mr. v. United Justice Holmes Abrams 250 U. court strictly S. 630. A is a forum with defined limits for discussion. It is range circumscribed of its inquiry and in its by methods Constitution, and by age-old laws, judges traditions. Its are restrained in their freedom expression of compulsions historic resting on no other officials of government. They are so precisely circumscribed judges because have their keep- ing the enforcement rights protection and the of lib- which, according erties to the wisdom of the ages, can only be protected enforced by observing such methods and traditions.

The dependence society upon an unswerved judiciary is such a commonplace the history of freedom that the means which-it is maintained are too frequently taken granted without heed to the conditions which alone make it possible. role of courts of in our so- ciety has been theme of statesmen and historians and constitution It makers. perhaps expressed best Massachusetts Rights: Declaration of

“It is preservation essential to the rights every individual, his life, liberty, character, property, and there be an impartial interpretation laws, ad- justice. ministration of It is the right every citizen to be tried by judges free, as impartial independent the lot of will humanity admit.”

The Constitution was not as a doctrinaire conceived document, nor the Bill Rights intended as a collec- slogans. tion of popular dealing We are with instruments We the Fourteenth government. cannot read into press pro- Amendment the’.freedom of and of the speech by tected the First Amendment and at the same time read age-old securing the by out means states for employed justice. calm does course of The Fourteenth Amendment not forbid a to continue the of process pro- state historic exer- hibiting expressions specific calculated to subvert judicial of power. impartial cise So to assure the accom- plishment justice abridgment of not an of freedom of speech press, liberty or freedom of the as these of phases by have heretofore been conceived the liber- even stoutest In fact, depend upon tarians. these liberties themselves untrammeled even judiciary passions an whose are not unconsciously and whose minds are distorted aroused extra-judicial by considerations. and speech press

Of course freedom of are essen- enlightenment tial to the free and people of a restrain- ing those who wield free- power. Particularly should this courts, dom be in comment the employed work of making who are without influences many ordinarily for humility, humor twin antidotes to the corrosion of ..$nd Rights the Bill of poweri But is not self-destructive. hardly can expression carry implications Freedom of that nullify guarantees impartial the of trials. And since resorts for Bill of vindicating courts are ultimate Rights, may surely appropriate a state authorize historic that for process means to assure such vindication be rational into primi- not wrenched from its tracks the more pressure. The passion great tive melée of need is criticized, just great that but be they courts duty. do their allowed to “liberty” secured the Fourteenth Amendment

The experience history. of And the power summarizes deeply the courts of California is rooted exerted administering by liberty-loving of evolved system From peoples. days English-speaking earliest do- encountered obstructions they have English courts, to administer they exist, namely, ing for which to what comes with reference solely justice impartially kinds. were diverse These interferences of them. before “con- phrase the infelicitous were all But covered them is dealing with the means for court,” tempt for punish of courts historically power known as legal insti- many our aspects is true of As contempt. concerning pro- the mode doctrines the settled tutions, became estab- contempt exercising for cedure legal Exact authority. historical on dubious lished origin to the much pertaining has controverted scholarship Fox, John contempt. See Sir summary proceedings But there is Contempt Court, passim. History early eighteenth century, the that, since no doubt living for intrusions into the contempt for punish to power charac- unquestioned has been an adjudication of process the of this courts and of courts English teristic of country. world, includ English-speaking the of judicatures forty-eight the and of the United States

ing the courts of recognized to time and exercised time have from states, cases, of (For lists see challenged. partial now power the in the United Contempt by Publication King, Nelles and Sullivan, Contempts 525, L. 401, 554; Rev. States, 28 Col. A formula seq.) declaratory et Publication, pp. 185 Judiciary law written into the the was tion of common Ellsworth, 83) Oliver one (§ 17,1 73, Act of 1789 Stat. of the later Chief Constitution, framers to become early recognized the as incidental to Justice; power in a opinions existence of courts succession very Hudson, (United States 7 32; v. Ander this Cranch Court Dunn, Ex 204, 227; parte Kearney, 6 Wheat. 7 son great and 38); expounded supported by it was Wheat. largely so shaping that influenced Commentaries eighteenth late cen- early our nineteenth law 286

turies, Blaekstone, Story; those of Kent and its historic continuity withstood attack state action under against the Due invoked, Process Eilenbecker Clause, again now Plymouth County, 31; parte 134 U. and see Ex Robin S. son, Terry, Savin, 19 505; parte 289; Wall. Ex 128 U. S. Petitioner, 131 U. S. 267.1 implied powers necessarily “Certain must to result our Courts of justice from the con nature their institution. ... To for fine

tempt imprison contumacy order, for the observance &c. — —inforce powers are dispensed Court, they which cannot with a be because necessary are exercise Hudson, of all others.” United States v. (1812). Cranch safety people law,’ only “That ‘the is supreme not com- ports with, indispensable to, but the exercise powers of those public functionaries, their safety guarded. without which that cannot be principle is, justice On this that Courts of universally are acknowl- edged vested, very creation, to be impose their power silence, with respect, decorum, in their presence, and submission to lawful mandates, and, corollary as proposition, preserve to this them- approach selves and their officers from pollution. and insults of true, “It that the Courts of vested, of the United are States by express power provision, statute to fine imprison for con- tempts; follow, circumstance, but it does not this from would power not not, have exercised that without the aid statute, cases, occur, if such should provision may which such statute legislative extend; contrary, on the it is a right, assertion of this grant judicial power, only incidental to and can considered either caution, legislative as an instance of abundant declaration, or a contempt beyond punishing shall not extend its known acknowledged imprisonment.” and limits of fine and v. Anderson (1821). Dunn, 204, 227-28 6 Wheat. power punish contempts courts; “The to for is inherent in all preservation judicial proceed- of existence is essential to the order in ings, judgments, orders, and to the enforcement of the the and writs of courts, consequently justice. and to the due administration of The moment the courts of the States were into United called existence and jurisdiction any subject, possessed invested with over became of power.” parte (1874). Robinson, 505, this Ex 510 19 Wall. contempts authority act 1789 did “The of what were of define the hearing them, of the the cause any courts of United before

287 in the exercise all power, As of it was abused. Some their English judges authority extended for in checking judicial actually “lay terferences business hand, to by the heel” those for responsible “scandalizing court,” the general that is, bringing it disrepute. into Such foolish long ness England has since been disavowed and has lodgment never found here. But even the power technical of interference with punishing the court’s business of susceptible early abuse. As as re Pennsylvania 1809, power stricted the inflict summary to punishment for con- a tempts closely to defined class of and misconduct, pro ordinary procedure vided the criminal for other of forms interferences with pending cause. c. Acts, 1808-09 Pa. 78, 146.2 The p. flagrant case of Peck3 Judge led Con any prescribe special procedure nor did it determining for a matter contempt. question of Under that the particular statute whether acts mode of as contempt, constituted a the proceeding against well the offender, left according determined such established rules to our situation.” principles of the and common law as applicable were Savin, Petitioner, 267, (1889). 131 275-76 U. S. history up leading For Pennsylvania legislation, see Oswald, Respublica (1788), v. 1 Dall. 319 particularly note beginning Respublica p. 329; Passmore, at v. (Pa.) 441; Yeates Hamilton, Report Acquittal of the Trial Supreme of Justices of the Court (1805). Pennsylvania Hollingsworth of Cf. Duane, 77, Wall. Sr. 6616; Duane, Fed. Cas. No. United States Wall. Sr. Fed. Cas. No. 14997. charge against Judge Peck punished was that he counsel for contempt particular litigation after final decree had been necessary steps appeal for rendered and an had taken, been judge opinion published had his newspaper after the plaintiff reply public submitted had to the concise “a statement of some principal your errors petitioner into which [the accused counsel] Stansbury, Report had fallen.” the Trial of James Peck H. (1833). In view of professional responsibility, immediate lawyers charge impeachment eminent who proceedings had against Judge naturally Peck would take least tolerant view managers punish contempt. courts Yet all the (James Representatives Pennsylvania, House Buchanan

288 gress the Act pass of March 4 2, 1831, Stat. 28 487, 385, scope § U. S. C. of which we recently considered. Nye United States, A U. S. 33. number of states copied federal statute. It would be pedantic to trace legislation adjudication the course of and of on this sub ject in jurisdictions. our half-hundred say Suffice it to that the hitherto unchallenged power of American states to clothe their courts with authority punish for con tempt was only thus summarized Mr. Chief recently Hughes leading Justice case vindicating liberty press against state action: “There is also the con ceded of authority punish courts to for when contempt publications directly prevent tend to the proper discharge functions.” Near Minnesota, judicial U. S. 715.4 697,

George E. Carolina, Spencer South Ambrose Henry McDuffie York, Kentucky) Storrs New Charles E. Wickliffe of acknowledged punish the historic interferences calculated to obstruct judicial pending exercise function in a They cause. did so sub- stantially challenged. in the terms now here Ibid., pp. 91, 291, 293, following argument 400. The from Mr. Storrs’ sample: is a fair contempts, “The protection law of when confined to the of the courts proper duties, their constitutional action and punishment and to the every direct or indirect interference with the powers exercise protection and the of those who are concerned parties, in them as jurors, witnesses and officers of in aid of the administration of their func- tions, was too well established and too well principle sustained positive law, disturbed; well as to be doubted or and, confined to proper limits, certainty admitted of all reasonable in its definitions But general of crime. if extended to the case of libel, there was no personal liberty security for feeling but the discretion judge.” of a Ibid., p. 400. 4It expressed is relevant to add that this the view of Mr. Justice opinions Holmes and Mr. Justice Brandéis whose have had such a powerful pressing influence in the Due Process Clause to the service speech press. of freedom of summary In two earlier cases of punishment contempt they strongly dissented because found set limits Act of 1831 had been exceeded. Toledo News- suggest ques- that the issues trifling great with It is restraints eighteenth-century whether us is tion before now be revived. press of the should the freedom upon nineteenth- and twentieth- is rather whether question abrogated be institutions should century American judicial fiat. circumstances, appropriate pre under may,

That a state process exercises of the specific with interference vent people does not mean that adjudication impartial of judges decisions or who right to condemn lose or as institu Judges persons, as courts them. render immunity from criticism greater entitled to no are tions, institutions. Just because other or than persons identified with the judicial are interests of office holders their common human frailties justice may forget they been martinets There have sometimes fallibilities. and wielders pompous there have also been the bench as power paraphernalia authority who have used Therefore dignity. of what called support mindful their limitations and of be kept must judges vigorous by a stream public responsibility their ultimate blunt.5 with candor however “A expressed of criticism Craig Hecht, 402, 263 v. United 247 U. S. Co. paper any they suggest constitutional diffi ease did in neither But 255. U. S. arising prohibition from the contempt culty in the exercise Amendment. First Govern Brewer, 1898, Day, address of Mr. Justice Lincoln See Corp. Rep. 848, is a mistake to Injunction, 15 Nat. 849: “It ment being helped by Supreme is either honored Court suppose that char contrary, the life and beyond On criticism. spoken of as objects constant watchfulness be the justices should of its acter subject The time is freest criticism. judgments to the by all, ifs body living of men any man or history world when past in the many True, halo. pedestal and decorated on a be set can good taste, but better authors, devoid of may be, like their criticisms moving waters are at all. The no criticism of criticism than sorts all ' stagnation death.” health; only the still waters is full life and laid summarily man cannot be the heels because his may feeling words make more public unfavorable in case the judge should be asked to act any at some later date, more exciting than he can for public feeling against the judge for already what he has done.” Mr. Justice Holmes Craig Hecht, 263 U. 255, 281-82. S. But the Consti tution not bar a state from acting theory does on the of our system of that the justice, “conclusions be reached case will induced only by evidence and argument open and not by any outside court, influence, whether of private public talk or print.” Colorado, Patterson v. U. S. The theory of our system of thus stated for the Court Mr. Justice Holmes has never been questioned by any member of the Court. It was questioned neither by Mr. Justice Harlan nor Mr. Brewer in Justice their dissents in the Patterson case. in differences that case concerned question whether “there is to be found in the Fourteenth Amend prohibition ment a . . . similar in First,” that to if so, scope of that and, protection is. The first what question was in settled the affirmative by a series of cases beginning with Gitlow New York, 268 U. S. 652. And the scope that of the First Amendment was broader than was intimated in the in opinion the Patterson case, was recognized later by Mr. Justice Holmes, speaking for the in Schenck United Court, 249 U. S. 47. But that the conventional power punish to for contempt is not a in censorship punishment advance but a for past conduct like and, such, prosecution for a criminal libel, is not offensive either to the First or to the Fourteenth Amend has never been ments, throughout doubted this Court’s history.

This conception justice, of the product of a long and arduous effort in history of freedom, is one of the greatest civilization, achievements of and is not less to be cherished at a time it is repudiated when and derided in the right to sue and defend “The régimes. powerful society organized In an of force. is the alternative courts rights, and lies at other of all right conservative it is the Chambers v. orderly government.” the foundation has This Co., 142, 148. R. 207 U. S. Ohio Baltimore & itbe opinion, curtailing expression with nothing to do offensive may that be economic, religious, political, state with It has to do views. orthodox society, function of civilized discharge indispensable an and between its citizens controversies adjudicating legal tribunals through citizens and state between and Courts historic procedures. with their accordance dis- gains pains take their share must judges libel, by self- except by laws of which is unfettered cussion taste. Winds of doctrine should by good restraint, and the correction good the promotion blow for freely cramp permitted restrictions Nor should evil. tongue regard- or pen use of feeling of freedom the what be uttered. may truth of or the temper less of thing. forthright is one Intimida- however Comment judicial matters still specific respect tion Laski, Procedure for Con- another. See quite suspense, 41 Harv. L. Rev. England, Contempt structive English Contempt Newspapers Goodhart, 1034; A intended publication Rev. Harv. L. Law, 48 or to discredit spleen, or to judge lesson, a vent the teach conduct, him in future would not influence his to him, or Judge contempt power. Compare justify exercise Craig, 138, 282 F. 160-61. It parte in Ex Hand Learned and constitute under consideration refer to a matter must It must be impartial disposition. to its a threat in effect pressure incompatible atmospheric to create an calculated interfere adjudication. But to rational, impartial with offenses, other it need not succeed. As with that fail be- attempts able to proscribe should be the state The pur- succeed. danger may the that attempts cause it will harm to is not the pose, repeat, protect do no mystical judges court as a or the individuals or entity as communitjr from the and priests apart anointed set in spared democracy public criticism which other exposed. servants are The is to imme- purpose protect litigants danger public diate and the from mischievous unfree should power of an or coerced tribunal. be only the adjudicatory process may invoked where be or hindered its hampered calm, detached, and fearless discharge duty of its on the been basis what has sub- The belief so mitted court. that decisions are reached source confidence which ultimately on law rests. argue

It not will do to that a state permit cannot judges to resist coercive interference with their work government hand because other officials of must endure In such such page history obstructions. matters “a York Eisner, New logic.” Trust Co. worth a volume of governors S. legis- U. Presidents and and political traditionally subject lators are officials to political rough and influence and tumble of hustings, who open to traditional have them means of In self-defense. sense, legislators immediate and very express executives judges will. But popular do express the popular any ordinary meaning will of the term. The limited power punish contempt which is here involved rejects wholly any assumption judges superior are They other officials. merely exercise a function histor- intrinsically From ically different. that difference is which drawn has behind it authority whole history. the wisdom our Because the function judges of other officials special situations may approach similarity, hard cases can put which logically may contradict the special quality judicial process. “But the provisions of the Constitution are not mathematical formulas having their essence in their form;

293 from transplanted living institutions organic are it is formal; not significance is vital Their English soil. and a dic- taking the words simply by not gathered to be of the line origin their by considering but tionary, 604, U. 233 S. growth.” Gompers v. United 610. of delicate, always duty, here charged are with

We must be fastid- We sitting judgment power. on state the measure views private not to make our iously careful here con- we are sure, To authority. constitutional of the Con- which to liberties appeal great with an cerned de- against state all even people, our stitution assures these abridgment an claim of nial. When a substantial validity that be- advanced, the presumption liberties be allowed to must not an of state longs to exercise examination close liberty or to check our impair such a utmost controversy. protec- But the of the of merits speech press be accorded freedom tion to give regard also to our due displace duty cannot may essentially be local to deal what state’s power situations. public expression alone assures

Because freedom unfolding truth, indispensable democratic freedom is But even that not an absolute and process. By a doctrinaire overstatement of predetermined. is not giving illusory appearance, it an scope absolute danger thwarting there is the free choice and the re it which are basic to exercising a demo sponsibility society. judgment cratic While we are reviewing a legislature Supreme Court and an of its California act the people voice of of California formally expressed we constitution, passing judgment in its are fact on Texas, “the State as a whole.” Rippey v. power of Florida, Skiriotes 504, 509; 193 U. S. 69, 79; v. 313 U. S. Texas, Gas United Co. v. Missouri U. 123, 142; S. Dockery, 191 U. Iowa-Des Moines Bank 165, 171; S. Bennett, U. S. authoritatively

By California, the constitution of as by Supreme binding Court therefore as construed and by upon though this Court as ratified all the voters of the of that state have chosen to place citizens California, im power, it, its courts the as we have defined to insure justice. partial If the other citizens of California have if free they permit play want to the of modern desires, litigation, it publicity pending connection with is within easy to and say way. They so to have their ready amending have means their constitution and made frequently have use them. We are, all, after sit ting away great state, over three thousand miles from a knowledge without intimate of its habits its needs, in a matter does cut the not pow across affirmative 'which government. ers of the national play policy Some must to the left states the task accommodating indi rights the overriding vidual public well-being which rights possible. makes those How are we to know whether an easy-going or stiffer view of what the affects actual justice administration of is appropriate to local circum How we say stances? are to that has California no right judiciary to model its qualities and standards at by English tained of justice, administration and to use means deemed appropriate to that end English surely It arbitrary courts.6 is an judgment say that the important 6 “It is most justice that the administration of in this country hampered hampered should not be it in some other countries, enlarging jurisdiction and it is not of this court —it jurisdiction refusing narrow say of this court —when we that we nothing are determined while we are here to do substitute in country by newspaper by jury; this trial for trial and those who at tempt system country, to introduce that in this begin even in its first nings, prepared Probably must be to suffer for proper punish it. may yet it is which this court ment —and one have to award if the punishment proves we about to award impris are insufficient—will be question onment in cases of kind. that, this There is no about because eyes we shut our fact newspapers cannot are owned For re right. California Due Clause denies Process though explicitly subject,” spect liberty “the in the embedded constitution, deeply written is so into a conscience7 that very English feeling and texture of abundantly prove, pages as the survives, Hansard struggle of the British the life death exigencies of English Administra g., e. Concerning people. See, Carr, Legislation”). (“Crisis tive c. 3 Law, California law cases applied rule of these tendency “a reasonable publications having court forbade orderly with the administration to interfere formula deny age-old To this actions.” pending dispas interference with against tion of prohibition the the substan adjudication confined to properly is sionate history back on but not to turn one’s only tive evil is unworthy of indulge play idle on words, also an adjudication. urged us that It was before constitutional wprds pervasive had a tendency” “reasonable fatal present by “clear and replacement and that ness, constitutionally permis required to state danger” was a recently Constitution, as we have law. The rule of sible Wisconsin formulary. not a remark, is had occasion require Nor it Penney does Co., 311 U. S. 435, 444. v. J. C. which first by phrase a an historic test of displacement United 3, 1919. Schenck v. currency on March gained States, duty ended with the recita- not S. Our is 249 U. they happen may will the chances wealthy people, even take and it cheerfully have then not feel that pay it and will and of fine Clarke, 103 L. Rex v. R. T. for the advertisement.” paid too much (N. S.) 636, 640. 7 gained foothold, degree” a and Thus, England, “third never long outlawed before it was impressively resisted emergence seq. (May et (Commons) 1303 cols. Parl. here. Deb. See by of Police Miss regard Interrogation 1928); Inquiry in Royal on Commission (1928); Report Savidge, of Cmd. (1929). Procedure, Cmd. 3297 Police Powers and

tion of that are the of phrases short-hand a complicated process. phrase The present danger” historic “clear and justification is merely curbing utterance where that by is warranted substantive prevented. evil be itself phrase expression tendency anis and not of ac- literary and the difference it complishment, between tendency” “reasonable constitutional dimension.

Here the substantive evil to eliminated is inter ference impartial adjudication. To determine what interferences may be made the contempt basis for tenders precisely the kind same that to issues as which the “clear present danger” test gives rise. “It is question proximity degree.” States, supra Schenck United this, at 52. And according to Mr. Justice Brandéis “is a rule of reason . . . Like many other rules for human correctly can be conduct, applied only by the exercise good judgment.” United 251 U. S. Schaefer 466, 482-83. judgment Has California’s here undermined protected liberties In Constitution? common with questions other this to be solved not degree, short phrases hand but consideration circumstances of the particular yell case. One cannot “Fire” in a crowded police officers cannot turn theater; their questioning into an instrument of mental oppression. Florida, Chambers v. U. 227. 309 S.

If a rule of state law is confined to the evil which may places be dealt with but an indiscriminate ban on public expression operates anas overhanging threat regard to free it must fall discussion, without to the facts This particular case. is true whether the rule of in in law be declared a statute or a decision of a court. Alabama, Thornhill 88; Cantwell U. S. Connecti cut, In U. us there S. cases before was no dragnet prohibition blanket or utterance affecting generally courts. work, Freedom to criticize their assail the institution courts, report and comment on mat- ters in litigation but not to subvert the process of decid- ing this freedom was respected. Only the state’s —all interest calm orderly which represented decisions, also constitutional right the parties, led it to con- demn coercive utterances directed towards a pending pro- ceeding. California, through speaking its courts, acted because of their conclusion that such utterances under- mined the necessary adjudication. conditions for fair

It is suggested that threats, by discussion, to untram- meled decisions courts are the most natural expressions when public feeling highest. runs But it does not follow that states are left powerless to prevent courts from being subverted by outside when for im- pressure the need partiality and fair proceeding greatest. To say that the framers of the Constitution sanctified veiled violence through speech against coercive directed charged those adjudication merely is not to make violence an in- gredient of justice; very mocks the ideal of respecting its while stultifying forms its uncontaminated exercise.

We turn to the specific cases before us: The earliest editorial involved No. “Sit-strikers Convicted,” commented upon a case the day after a jury had returned a verdict day and the before the trial judge pronounce was to sentence and hear motions for a new trial and applications for probation. On face the edi- merely torial expressed exulting approval of the verdict, a completed action and there court, nothing give record significance. it additional The same is true editorial, second “Fall of Ex-Queen,” an which lur- idly from draws a moral a verdict of guilty a sordid trial and which published was eight days prior to the day imposing set for In sentence. both instances imposition of sentences immediately pending at the time of pub- lication, but neither case was there any declaration, guardian in sly, regard direct or As the special this. Rights, of the Bill of is under the heaviest this Court responsibility safeguard guaranteed the liberties from any encroachment, astutely disguised. The Due however Process Clause of the Fourteenth Amendment protects right judicial to comment on this proceeding, long a so is not done a interfering impartial manner with the disposition litigation. of a There is no indication that more was done these they were not close editorials; judicial threats to the function which a state should able to agree judgment restrain. We that the of the state court regard this should stand.

“Probation for Gorillas?”, the third editorial, is a differ- ent matter. April On 22, 1938, Angeles jury a Los found two defendants guilty of assault with deadly weapon a conspiracy of a to violate another section of the code. penal May On 2nd, the applied defendants probation for the trial judge on day the same set June 7th as the for day disposing of this application and for sentencing the de- fendants. In the Angeles Los Times for May ap- 5th peared the following editorial entitled “Probation for Gorillas?”:

“Two members of Dave Beck’s wrecking crew, enter- tainment committee, goon squad or gorillas, having been convicted Superior Court of assaulting nonunion truck drivers, have asked probation. for will Presumably they say they are 'first offenders,’ plead they were merely indulging playful when, exuberance with sling- shots, they fired steel missiles at men only whose offense wishing living work for a without paying tribute to the erstwhile boss of Seattle.

“Sluggers like pay, murderers for are profit, slightly different category from ordinary criminals. Men commit mayhem who for wages are not merely violators of the peace dignity the State; are also con- against spirators it. burgles The man who because his sym- public claim on have some hungry may children are entitled may impulse one of whose crime is He pathy. the cre- for his muscles he hires out lenity. But who to deliberate a a racket and in aid of disorder ation of accord- be penalized organized and should society foe of ingly. thugs these men to put no to other

“It will teach lesson ‘duty’ would limited time. Their for on behavior good If Beck’s like them. over others be taken simply San they that face realize are made to however, thugs, make their it will tend to they caught, are Quentin when Judge A. A. Scott occupation unpopular. disreputable to if grants probation he a serious mistake will make commu- Holmes. This and Kennan Matthew Shannon assignment jute to the example nity needs mill.” three the trial days was after published

This editorial sentencing and for on passing fixed the time for judge had month probation, prior for and a date an application defendants, attack on the It consisted a sustained set. judge be denied they demand of the that explicit with an in meant, jute mill.” This and be sent “to probation idiom, discretion the that the exercise his California treat with all its dire judge felony, the offense as should misdemeanor. the Cali- consequences, and not as a Under had judge Penal Code the trial wide discretion fornia sentencing the he could sentence them to the defendants: year one jail less, or to the county penitentiary state The demanded years. for two editorial that he take the “jute latter alternative and send the defendants to mill” A penitentiary. of the state powerful newspaper judge, admonished a who year within a have would approval secure if popular he desired in office, continuance to comply failure with its demands would be “a seri- ous mistake.” Clearly, justified the state court treating this as a impartial adjudication. threat It is

too naive suggest that the editorial was written with a feeling impotence and an intention to utter idle words. publication of the editorial was hardly an exercise futility. juries If it is true of it is wholly untrue of judges may too be “impregnated by the environ- ing atmosphere.” Justice Mr. Holmes Frank v. Man gum, 237 U. S. California should not be denied right to free its courts from such coercive, extraneous it can influences; thus assure its of citizens their constitu tional right of a fair trial. Here there was a real and sub stantial manifestation of an endeavor exert outside in A fluence. powerful newspaper brought its full coercive power in to bear demanding particular sentence. If such sentence had been imposed, might readers assume that the court had been in influenced its action; if lesser punishment had been imposed, at least a portion of the community might be stirred to resentment. It cannot be denied that judge may even a be affected by such a quan dary. We cannot say that the state court was out of in concluding bounds that such conduct offends the free justice. course Comment after the imposition of sen criticism, however unrestrained, of its severity or tence — lenience or disparity, cf. Ambard v. Attorney General for Trinidad and Tobago, ^[1936] A. C. 322, —is an exercise of right of free discussion. But to deny the states to check a serious attempt at dictating, from without, the sentence to be imposed pending case, is to deny the right impartial itas was cherished by the found Republic ers of the the framers of the Fourteenth Amendment. It would erect into a constitutional right, opportunities for abuse of utterance interfering with the dispassionate judicial exercise of the function. See Rex v. Daily Mail, ^[1921] 2 K. B. 733, 749; Attorney General v. Tonks, ^[1939] N. Z. L. R. 533. 1, Harry

In Bridges No. R. challenges a judgment by the Superior Court of California fining him $125 for con- Longshore- International was president He tempt. affiliate the Com- an Union, men’s and Warehousemen’s also Coast Organization, Industrial West mittee for largely L. W. U. director for C. I. O. I. had from Interna- men who withdrawn composed of Longshoremen’s Association, an of the tional affiliate Federation of Labor. In the fall of American 1937 the struggling longshoremen’s rival unions were for control of a local San Pedro Harbor. The officers of this local, them, sought of its members with carrying most trans- local W. U. allegiance fer the I. Thereupon, L. longshoremen remaining brought I. L. A. suit Angeles county against Superior Court Los the local January 1938, and its officers. On Judge Schmidt, in the sitting Superior Court, enjoined the officers from behalf working on of I. L. W. and appointed U. a receiver to conduct affairs of the an local as affiliate by taking charge F. L., A. the outstanding bargaining agreements hiring local and of its hall, which is the mainstay of such a physical union. Judge Schmidt stayed enforcement promptly of his decree, and on Janu- 24th the ary injunction defendants the suit moved for for a new trial and vacation of judgment. the In view of setting, its local the case aroused great public interest. The on waterfront situation the Pacific Coast was also the watched United States Department of Labor, and Bridges been in had communication the Secretary concerning of Labor the difficulties. On the same day that the for motion trial new filed, was Bridges sent the Secretary the following wire concerning Judge Schmidt’s decree:

“This is outrageous decision considering I. L. A. has 15 (in members San Pedro) and the Long- International shoremen-Warehousemen’s Union has 3,000. Interna- Longshoremen-Warehousemen tional Union peti- has tioned Labor the Board for certification to represent San Longshoremen with International longshoremen

Pedro it represents because denied representation Association hearing pending. decision now only held; 15 men. Board tie up decision will Attempted enforcement Schmidt Pacific Coast. Angeles and entire of Los involve port Union, Longshoremen-Warehousemen rep- International 12,000 longshoremen the on 11,000 of the resenting over to intend allow courts Coast, Pacific does not to state its choosing of members majority the vote override and National to override the representatives officers Board.” Labor Relations duly found its the telegram way metropolitan into

This Bridges’ responsibility of California. for its newspapers the publication telegram is clear. His publication papers Erancisco the basis of Angeles Los San the contempt. for Bridges’ conviction telegram regarded the was the The publication “a threat if court as that an was supreme attempt state of the entire Pacific decision, ports enforce made to direct up” challenge be tied “a would Coast longshoremen on the 11,000 Pacific Coast that court decision.” by This imme- not abide occurred would moved set judgment counsel had aside the diately after there unquestionably so was a threat criticized, which was -be alive. It would obviously inadmissible litigation the context imme- say us dogmatism stake, at the environment which issues diate case—the moving, and the petitioner community were judge, at time and manner here made, publication mind not have dominated the made —this could Here pending. the matter was before whom judge not be overturned. court’s should the state judgment too Secretary to the the communication fact constitutionally does may privileged have been Labor made may use have been extraneous protect whatever It is said that the possibility the communication. in any in must case of an adverse event strike, ruling, a thoughts private sophisti- to the of a suggested have itself Therefore the judge. publication Bridges cated merely gave possibility public arewe told, telegram, shelter for To afford constitutional a definite expression. coercing a court into a favorable decision be- attempt at contingencies judi- of frustration to which all cause is effect, that the subject, cial Consti- hold, action judicial settlement of tution subordinates conflicts to indulgence speech. of violent The the unfettered mere an unfavorable decision men that after fact may, responsibilities as well full consideration as their a strike or is a engage poor reason rights, lockout, denying power protect a state courts from by serious threats while being bludgeoned a decision is A balance. judicial vague, in the hanging undetermined may that a decision a court lead to possibility a serious protest is one The thing. impact manifestation of a to prevent of action threat decision is definite a wholly deny To such matter. realities is to stultify different law. in their judged be context and must Rights vacuo. Wisconsin, Aikens 194, 195 U. S. Compare 205; Badders 393-94; 240 U. S. American 391, Bank & United Bank, Federal 256 U. S. “All 358. 350, rights Trust Co. v. purposes society from the which are derived rights duty community.” rises above all Mr. exist; Duplex Deering, Co. v. U. Brandeis S. Justice concerning the narrow recognize we question The there a real and substantial is—was threat to the always aby court of a case actively pending decision impartial direct; threat must be close and it must The before it? litigation. particular litigation towards a diréeted be pending When a case is immediately pending. must 304 lawyer’s

not a but is to problem, technical, determined realities of the by specific substantial situation.8 Dan judicial power of unbridled exercise of ger because im speech from which is munity coercing figment is a In addition groundless fears. to the internal censor of conscience, professional standards, the judgment of fellow judges popular judgment and the bar, exercised in elec tions, the power appellate courts, including this Court, power there is the corrective of the press and public free fully comment to assert itself immediately upon com judicial pletion of conduct. Because like courts, other may exercise power at times agencies, arbitrarily and have open done resort to this Court is so, to determine whether, guise protecting under the in impartiality specific liti gation, encroachments have been made the liberties press. But speech instances of past arbitrariness justification for reversing afford no the course of history denying power states to continue to use time- safeguards j honored to assure unbullied ad udieations. All justifies the in experience acting upon states the conviction wrong decision a particular may case best be forestalled corrected more rational means than coer judicial intrusion from outside the process. cive courts, although representing Since the law, United States v. Shipp, 203 are sitting U. S. also 563, 574, judg it were, on their own function ment, exercising their it punish contempt, should be used only flagrant cases and with the utmost forbearance. It is al-

8 very present cases different are from the situation that evoked Craig Hecht, enough S. 281: “It dissent U. somebody may something hereafter move to have done. There was nothing awaiting petitioner’s decision when the letter pub then Glasgow Corporation v. Hedderwick & Sons (1918) And see lished.” Coleman, ex rel. Pulitzer Co. Compare State Pub. Sess. Cas. 639. 1941). (Mo. 2d 640 S. W. the side of to err on tolerance and even of ways better indifference. disdainful made before us objections procedure

No were charges contempt were tried. But is proper which neither was tried point judge out that case who in the trials to which the participated publications had Cooke v. United Compare referred. S. 517, 267 U. fur So it is clear that a disinterested tribunal was state require and since Constitution does a nished, Dow, Maxwell jury trials, to furnish 176 U. S. 581; v. Connecticut, Palko have 319, 324, 302 U. S. states Tigner in fashioning discretion criminal remedies, Texas, 310 U. situation here is same as S. 141, a crime utterance though publish state had made having “reasonable to interfere with the or tendency actions,” justice administration derly pending not dissimilar from what States has done United § of the Criminal Code.9 1113, 18 corruptly, or threats C. 241. “Whoever Stat. U. S. § by any threatening communication, force, letter or shall endeavor

or or any intimidate, impede any ‘witness, in influence, or court any or officer United States commissioner States or before United grand any petit juror, or or officer acting commissioner, or as such may serving any officer who court of the or or of United any States com any proceeding before United examination or other at discharge commissioner, in the acting as such his missioner or officer any threatening force, or or duty, corruptly or threats or who obstruct, impede, or en influence, or communication, shall letter impede, administration the due influence, obstruct, or deavor dollars, or one thousand not more than therein, shall be fined imprisoned year, or both.” not more than one

Case Details

Case Name: Bridges v. California

Court Name: Supreme Court of the United States

Date Published: Dec 8, 1941

Citation: 314 U.S. 252

Docket Number: Nos. 1, 3

Court Abbreviation: SCOTUS