*1 FLORIDA. PENNEKAMP et al. Argued February 8, 1946.
No. 473. 1946. Decided June *2 argued the cause Robert R. Milam and Elisha Hanson E. Mc- them brief were T. petitioners. With on the Fleming. Ilvaine Edward E. Watson, M. Florida,
J. Tom General of James Attorney J. for re- argued Carson and Giles Patterson cause spondent. With Messrs. Watson and Carson on the brief Leitner, Attorney was Sumter Assistant General. *3 K. filed
William Harrison Mizell and Osmond Fraenkel a brief for the amicus Union, American Civil Liberties as curiae, urging reversal.
Mk. Justice Reed delivered the of the Court. opinion proceeding brings This of judgment here for review a 22 Supreme Florida, Court of Fla. So. 2d which affirmed judgment guilt in contempt of of the Cir- of cuit Court Dade County, on a of Florida, peti- citation tioners by that Circuit Court.
The petitioner individual was the of associate editor the Miami Herald, newspaper general circulation, of published in Dade County, Florida, juris- and within the diction of the trial court. The corporate petitioner was publisher of the Miami Together petitioners Herald. responsible were publication of two editorials charged by the contemptuous citation to be of the Circuit judges Court and its in that were unlawfully critical of the administration of justice criminal in certain cases pending 'then before the Court.
Certiorari granted was to review petitioners’ contention the editorials did not present “a clear present danger high of imminence to the justice administration of therefore criticized were who the court” of violative as invalid contempt judgment The im- press. in the expression of free right
petitioners’ at justice administration in the issue of the portance Bridges Cali- decision this Court’s in view of time, this judgment to this years prior 252, three 314 U. S. fornia, contempt, apparent. limits well-marked reasonably fixed
Bridges v. California newspapers to punish power of courts around litiga- pending criticism of upon or comments others for of courts orderly operation placed case tion. The administration requirement and dominant primary 266. This essential justice. Pages 263, 265, was held and coercion be free of intimidation the courts to that freedom of recognition with a to be consonant compatible scope broadest press be allowed must A determinant theoretical supremacy with the of order. adopted experi- from open of the limit for discussion was adjustments conflict free- ence with other between order. This was expression dom of and maintenance of present danger consequence the clear and rule. evil of comment must “extremely degree serious and the extremely high imminence before pun- utterances can be Page ished.” 263. It was, course, recognized that this *4 formula, as would any other, inevitably had the vice of uncertainty, page 261, but it was expected that, from a decent part self-restraint on the of the press and from formula’s repeated application by courts, standards of permissible comment would emerge which guar- would antee the against courts interference and allow fair play to the good influences of open discussion. As a step toward the marking of line, we held that publica- tions there involved were within permissible limits of free discussion.
In Bridges case the clear present and danger rule was applied to the stated issue of whether the expressions there
335 judicial free “fair trials prevented consideration under was, There Page intimidation.” 259. from coercion or punish to dis- course, question power no to the Page and disorder in the room. 266. turbances court guarded The to be danger against the “substantive evil” is sought be prevented. Pages 261, 262, In the 263. Bridges case that primarily “substantive evil” was “disorderly justice.” Pages unfair administration of 270, 271, 278.1 imposed Constitution has upon this final Court
authority meaning determine the and application of those words of that instrument which require interpreta- tion to resolve issues. With that responsibility, compelled we are to examine for ourselves the statements in issue and the circumstances under which they were made to see whether not carry or do a threat of clear present danger to the impartiality good order courts whether they are of a character which the principles of the Amendment, First as adopted by the Due Process Clause of the Fourteenth Amendment, pro- tect.2 the highest When court aof state has reached a upon determination such an issue, give we respectful most reasoning attention its and conclusion but authority its final. Were it otherwise constitutional limits of free expression in the Nation would vary state lines.3
While there a division of Bridges the Court case as to whether some public expressions edi-
1Compare Schenck v. United States, 47, 52; 249 U. S. Thornhill v. 105; 310 Alabama, U. S. Carlson v. 106, 113; 310 U. S. California, 624, 633. Education v. Board 319 U. S. Barnette, 2 v. 652, 666; 268 U. S. York, Gitlow New v. Minnesota, Near 697, 707. U. S. 3Bridges v. California, Compare 314 U. S. 267. v. Chambers Florida, 227, 228; 309 U. S. Hooven Evatt, & Allison Co. *5 652, 659. S.U. press of a free the boundaries transgressed comment
torial was unanimous test, the there phrasing the and as to contempt punish to power that California’s recognition extent of the interpretation this by limited Court’s Bridges Amendment. the First by afforded protection the threat to 297. the Whether California, supra, at a must be justice orderly and administration impartial a danger, immediate grave or and present clear and and direct threat, which is close one real and substantial depends of fairness the court’s sense which disturbs or one any phrases, Under one words. a choice of upon ap- of this to brought type in cases reviewing courts desirability the on balance between the comment praise adjudication, necessity for fair and the discussion free processes. its interruption of from free 7th, 1944, 2d and of November The editorials set out below.4 to citation are court issue caused 2, 1944: November Are Established— “Courts People
For belong people. people have courts to the established “The promote justice, Punish them to insure obedience to the law and to Willfully Violate It. Those Who people providing
“The maintain the courts the salaries of officials setting up costly orderly chambers and for the courtrooms dignified procedure tribunals. judges
“Upon people depend must for the decisions and society conduct that will insure a whole and in its indi- —as against destroy peace, those would undermine or who viduals— morality living orderly community. and the “In Order should political that the courts not be amenable pressures them, placed other their determination of matters before upon Florida Circuit are called face the electorate less often than are other elective holders. office long terms, fact, county
“So are their that in Dade no Circuit judge, judge only court, one of another has come the bench public choice in the first instance. All have the others been named *6 held was a cartoon the first editorial Accompanying by court a It caricatured a public obloquy. the law up tossing judge on the bench compliant figure as a robed by resignation, governor vacancy fill death or a a caused similar circumstance. county
“Judicial terms in Dade run: years judges. 1— six each for Circuit Six years years judges. 2—Four each for Civil Court of Record two judge 3— Four 4—Four for the Criminal Court the of Record. years judge for the of the Court of Crimes. years County judge. 5—Four for years judge. 6—Four for Juvenile court majesty represent sanctity “These the the twelve and the They locally organized society law. are the first line of defense against vice, corruption crime, and the sinister machinations of underworld. the _ beyond question of, by
“It Is that American courts are and for people.
“Every person day accused has a to his in court. But when interpretative procedure recognize accept, instance and go find, every possible even technicality protect out to law to defendant, block, thwart, hinder, nullify prosecu- embarrass and tion, people’s rights jeopardized then the and the basic reason for courts stultified. seeming pat facility criminally
“The ease and with which the charged given safeguard people have been technical have set to won- dering being whether their refuges courts are subverted into for lawbreakers. “This people, through grand jury, Week the brought their into court
eight rape. Judge indictments for agreed D. Paul Barns with defense properly indictments were drawn. Back grand went jury re-presentation to the to the court. “Only gravest in the emergency judge does a take over a from case equal another jurisdiction. court of padlock A against action Brook Club was spring initiated last Judge George before Holt, E. granted injunction. temporary who months, “After five appeared Tuesday the case sky out of blue Judge before Marshall C. Wiseheart at the time Attorney Stanley State Milledge engaged grand jury. “Speedy decision was asked defense despite counsel months of “De- marked document, to hand charges formal
aside at his left close figure powerful to a dismissed,” fendant type. At drawn criminal intentionally of an arm and jury grand Attorney between had to choose stalling. The State Judge court. Wiseheart’s opera- its injunction against the club and judge dismissed “The *7 from prompt decision got delay wanted and when it tors. The defense profited it. when it the court to Judge him a suit the state abate Holt had before
“On Oct. 10 Tepee (bookmaking) the Club. nuisance at allegedly premises for who visited the persons “Five affidavits by the state over the placing were introduced purpose of bets the objection defendants. of the denying injunction out, explaining in the
“Judge Holt ruled them against Tepee the Club: “ ‘The cannot cross-examine an affidavit. The court can- defendant testifying placed upon who is and whether belief can be not determine testimony . such . . The fact that such affidavits were taken before Attorney give any weight does not them additional the State value.’ judicial may good law,
“This exact evaluation of the statutes. legal is, however, interpretation people It the character of causes eyebrows to raise questioning and shake confused heads futile wonderment. _ way criminally
“If be the for Technicalities to order and the the charged justice delay altogether prosecution either to avoid or so to cripple it, legal then profession to it behooves our courts and to the away entanglements. cut the deadwood and the possible case, people’s case, “Make it state’s for the the to be seen equal clarity vision as that accorded accused lawbreak- ers. Otherwise technicalities law, and the courts make the no matter people will legislators.” what the of the and of their November 1944:
“Why People Wonder example why “Here is people an delays wonder about the law’s obstructing and operating technicalities disadvantage the to of the people prosecutions. state —which is the —in stalling along months, “After for the padlock defense in the case against the appeared Brook Club Judge before Marshall C. Wiseheart labeled “Public bench, individual, a futile vainly protests. Interest” charges that citation the editorials
“did said upon impugn integrity reflect and Judges and in imputing Court thereof Judges of recognize accept, said Court ‘do and even go find, every possible out to law technicality protect defendant, block, thwart, hinder, nullify embarrass and prosecution/ which said acts by you tend to create a distrust said court and thereof people minds of the of this county and prevent prejudice and state tend to a fair and impartial action of the said Court and the Judges in respect thereof to the said pending case[s].” setting alleged After out details of withholding willful suppression of the whole truth publications, charges citation further
“you, by said cartoon editorial, have caused be represented public unto the concerning *8 eight of (A) cases the for (B) indictments the rape, case, said Brook (C) case, Club and the Teepee Club Judges the of this Court fairly and [had not] impartially heard and in decided the matters said editorial mentioned and thereby represented have general public unto the that notwithstanding the Attorney grand jury. for a decision. working The State with the injunction. The court out speed, dispatch, knocked There was charged immediate attention and action for those with violation of the get law. So people fast that the peep. didn’t in a way “That’s gumming up prosecution. one delay Another is to 29, Coy action. On March Jaggears, driver, L. bus was sentenced to days city fifteen jail by Judge in Curry Cecil C. on conviction of beat- ing up a operator. taxicab precipitated “The arrest result, notorious bus strike. As a Jaggears jail walked posting $200 out after appeal bond. The appeal got never further. you “There legal paradox, have working ways, two but to the purpose against same prosecution. Speed when needed. Month after delay month of when that serves the better.” Judges Court of this in the trust vested
great public honorably duties discharged their they have not as here- pending cases to said fairly respect in and to obstruct and which tends forth, all of inbefore set fairly and Judges such the said as interfere with discharg- in the administering justice and impartially prin- with the true in conformity ing of their duties recognized properly have so ciples you being in- quoted above forepart of said editorial them; . . .” them and each of upon cumbent why they should required were to show cause Petitioners contempt. not be held legit- were publications
Petitioners answered guaran- the federal comment within imate criticism and danger present created no clear and press ties of free justify justice. They sought to administration to the in their return to rule that by stating publications correct, that two of stated in the editorials were facts when the examples pending were not the cases used as made, dismissal had been comments were since orders of and that Court, entered the Circuit previously as editors forcefully if duty openly
“had the not the end that these evils to discuss these conditions that are profoundly disturbing to the citizens this county, might publications be nothing com- remedied. gener- more discuss the plained of did than ally recognized breakdown weakness and system of law call its enforcement improvement.” practicable length
It is not to comment at each of *9 challenged items. To clear make our decision as as we shall in possible, only refer detail comments concerning “Rape think fairly Cases.” These we illustrate the issues and the most difficult comments for the petitioners to defend. cases,
As to these the editorial said: people, through grand jury, “This Week the their brought eight rape. court Judge into indictments for D. agreed Paul Barns with the that in- defense properly dictments were not drawn. Back went grand to the jury re-presentation to the court.” shall the statement, “judicial We assume instance . . interpretative procedure go find, . even out to every possible technicality protect of the law to the de- . . nullify fendant . prosecution,” refers to the quashing rape well con- indictments as as other steps. demned paragraphs The comment of the last two evidently legal includes these dismissals tech- as so-called nicalities. See Note 4.
The charged citation in prosecuting open officer agreed court that the indictments so were defective make reindictment advisable. Reindictments were re- turned the day next and before the editorial. It was charged that these withholding omissions were a wanton of the full truth. charge,
As to this petitioners made this return: “That as averred in citation, a motion was made to quash the indictment in ruling upon Case which would control in the other mentioned. cases Whereupon the representative Attorney’s of the State Office stated original effect that he believed the indictment was proper form, any but to eliminate question he would have these immediately defendants re-indicted Jury the Grand thereupon, which was still then in And session. Judge said Court did sustain the motion to quash with respect to Case No. 856.” record the Criminal Division of the Circuit Court,
set out in findings of fact hearing at the on the cita- tion contempt, shows case No. 856 the court upheld the defendants’ motion to quash ap- “with the
342 the Attorney” quashed Assistant State val of the pro Rein- his on recommendation. indictments remaining arraign- day, prompt accused on the next dictment of the the accept also We setting appears. for trial ment and the facts. conclusive of record as the to find that judgment the Circuit Court’s We read “half-truths,” only Rape Cases contained comment the court, the “fairly proceedings” the report it that did not said: judgment The it “misinformation.” contained under- voluntary is a proceedings on court report “To fails who publisher when undertaken the taking but his peril. at fairly report to does so own made charges recited the find the facts “We . . .” founded; true and well citation reindictments were the fact that finding This included assign- Defendants’ pending Rape then Cases. re- challenged ruling matters ments error pending Supreme were and the ferred in the editorials 156 pending. were of Florida ruled that cases Court Fla. at 2d 883: 241,22 So. at that is agree publications also about case
“We
scandalous,
punishable
matter how
are not
closed no
general
rule but
Florida
contempt. This is
more
than
rule.”
Statute is
liberal
1941,
see also
932.03;
§
§
Cf. Florida Statutes
38.23 and
248,249,22
In 314 dissent Bridges California, 271-78, U. S. 297-302, upon this Court looked cases as fol- pending lowing completed interlocutory but actions the courts awaiting steps. In one other instance was sentence after In another, verdict. a motion for a new trial. $250
Pennekamp fined and the corporation, $1,000.00. Court Supreme of Florida restated the facts as from Rape Cases 156 Fla. at So. record. *11 the all of as to a conclusion reached It then
2d at 881. in words set out the Cases Rape as to the and so charges facts, the Court the discussion of After further below.5 2d at 883: 241,22 So. 156 Fla. at said, folly is utter recitation, it factual light “In of this the publications these object of that the suggest to the efficiency of destroy the and than to abase other court.” below issue, quote we critical the attention on
To focus certain Florida Court of Supreme the decision of from the as position its illustrate fairly we believe which excerpts law.6 to the applicable 875,882: 2d 227, 239, 22 So.
5 156Fla. state- distorted, inaccurate in was the the vice both the editorials “So false insin- scrambled statement were facts and with that ment of the partisanship and charges of to unwarranted uations that amounted judges. part the on the unfairness reveal a it does not in all these cases and was available
“The record and unfairness predicate partisanship suspicion which to on breath good they acted judges. shown rather part the It is the on advantage possible. very best case to the handled each faith and any of them entered judgment that could have been no There was facts had stated the If the editorials except that was entered. the one deduced could have been correctly, nothing correct conclusion but a contempt but here basis for have been no there would and misstatement and mixture of factual publish truth a to elected distortion, decep- insinuation, and impose that false and omission them from press the immunizes that freedom of and then contend tion punishment.” 875,884-886: 2d 227,244-249, So. 6 156Fla. against irritate, spleen may criticize, harass, vent its newspaper
“A that it judge in manner the same person who holds the office officers, Legislature but and other elective of the does a member judge presiding criticisms of a publish or libelous may not scurrilous discrediting the Court judgments purpose for the as such or his inspired by shielding Respect is not eyes public. for courts of the the judge, acquired responsibility of the This is a criticism. them from judicial proc- approaches spirit in he years over the reason, square it with the level ability the law and to humanize ess, his petitioners editorials, explanations From the clear the full truth court, and the records of the it is regard pub- of the indictments was quashing agree Rape Supreme lished. We Court that justice, thinking, consistency of his of his adherence to degree and the blocs, groups, which he holds himself aloof from techniques justice expediency.” that would sacrifice country atmosphere “Courts function in cannot a free when the charged press designed poison with the effusions of the mind of public against presiding judges clarify rather than to the issues propagate press the truth them. The about latter was the promulgated thesis, liberty Mr. Jefferson visioned when he ‘Our *12 depends press on the freedom of the and that cannot be limited with- ” being out lost.’ publish principle practice, “Freedom to one’s views is a universal of press deliberately but when proprieties the abandons the and out sets poison pabulum dragons’ to or dispense its to sow teeth and canards doing purpose wrong, for the of another a category it is no different rigid from a free safeguard man that does likewise. The most thrown press around a free protect appellants falsely would not publish- from ing announcing or clergy to the that sym- world the of Miami were in pathy practice polygamy fostering the of or were other doctrines equally approved obnoxious to moral standards.” theory system
“The of our of fair is trial that the determination of every case solely by should be induced argument open evidence and applicable law by any court and the influence, thereto and not outside private public print.” whether of talk or “The State public Courts touch the frequently much more the than they many Federal and orderly Courts have reasons to enforce admin- istration that would not arise in the power Federal If Courts. is to appellants be construed what pattern contend be the Bridges Nye cases, the and then more years than one hundred of state law subject on decisions the are turned into confusion or at set naught. . . . do think “We not this can Bridges be the law. The case was dis- ‘ posed of authority present on danger” of the “clear cases,’ which analogous are most of the state eases because arise a from different state of the Bridges law. The ultimate test in the re- case quires that extremely the ‘substantive evil must serious and the degree high extremely imminence before pun- utterances can be ished.’ if this test rule in the the Courts, they Ev.en State [be] We of the editorials. time at the pending were Cases atti the objectively state did not the editorials agree the the statement accept judges. We tude of no “There law, Florida Court under Supreme them any entered been that could have judgment 22 So. at 156 Fla. that was entered.” except the one record feel that this may although we And, 2d at 882. truth was inference that the harsh scarcely justifies pub withheld from wantonly recklessly or willfully was to publication the motive behind lic or that may courts, we efficiency of the destroy abase courts of the Florida in this case that conclusion accept .7 fact determination of as a upon intent and motive to ransack the record power ultimate is here While the accus we are controversies, in constitutional facts the state court’s examination.8 adopt tomed to result of facts or undisputed findings It is the of the state courts ordinarily furnish facts themselves undisputed federal claimed violations of appraisal basis for our rights.9 constitutional as to acceptance conclusion of state court the deter- open facts of situation leaves to this Court rights setting
mination of federal in the constitutional *13 apply by are authorized to their own law and standards unless judg- application arbitrary unreasonable, is shown to be their permits ment be in should not disturbed. The law Florida the most account, possible press liberal exercise of freedom of the but holds those who abuse it. ample
“We therefore hold that and the the cartoon editorials afford support judgment imposed properly for the and that the issues were adjudicated under Florida law.” 7 Wigmore, (3d Ed.) See IX Evidence 2557. v. United § Crawford States, 183, 203. 212 U. S. 8 v. Co., 293-94; Drivers Union Meadowmoor 312 287, U. S. Lisenba California, v. 219, 314 U. S. 238. 9 Florida, 239; Chambers v. 227, 309 Tennessee, U. S. v. Ashcraft 143, 153, 322 U. 154; 401, S. Malinski v. New York, 324 U. S. 404.
346 there was here, was Bridges case facts.10 When those the California by determination necessarily involved a tend- had, least, at a all of the editorials court that state criminal administration of ency interfere with the fair in that state. Yet this justice pending in a court of cases those editorials that two of saying Court unanimous had impact upon justify no such a court as to conviction contempt of the of the First principles the face Amendment. We must, therefore, weigh of free speech petitioners against is claimed danger of the coercion and intimidation of courts factual presented situation this record.
Free discussion of the problems of
society
a cardinal
principle of
principle
Americanism —a
which all are zeal
11
ous to preserve. Discussion that follows the termination
may
case
inadequate
to emphasize the danger to
public welfare of supposedly wrongful judicial conduct.12
It
public
does
follow that
every
comment of
character
upon pending
legal
trials or
proceedings may be as free
aas
similar comment after complete disposal of the liti
gation. Between the extremes
there
areas of discus
sion which an understanding writer will
appraise
10See the
preceding
cases
paragraph,
in the
note 8.
Pennsylvania,
Murdock v.
105, 115;
319 U. S.
Board
Education
Barnette,
v.
639;
U. S.
Collins,
Thomas v.
516, 527,
323 U. S.
530.
12Bridges California,
While a disclaimer to the sworn call attention may point we at this tempt, influ- was not to purpose that their petitioners answer For circum- appears An below.13 excerpt the court. ence danger to present a clear and stances to create required should be administration, solidity of evidence Com- find this record. be difficult to which would deny any either said editorial respondents intent “These interfere with fair and in words or otherwise to cartoon either said deny large char justice that the impartial in the of Florida and State being judge and and on the bench in the cartoon was beside acter contrary, respondents favored, but, these heard, recognized on the and said respectfully intention of said editorial and show that it was the practice system pleading and condemn and criticise cartoon to whereby Florida, such eases procedure created the laws of upon delayed technical long be and then could be dismissed could grounds in manner herein shown.” policy of the Pennekamp’s Mr. statement of the editorial
We add Miami Herald: “ enjoy Free —Free as the Constitution we We are ourselves —Free good truth, good sense. We shall be for whatever to manners defending rights adapted and liberties of the is best measure knowledge. advancing We shall labor at all times people and useful just condition, people proper sense of their inspire the with a ” pursue and rouse them to it.’ point to them their true interest out *15 348 States, v. United 665, 670; 322 U. S. Baumgartner
pare
States,
U. S. 118.
v. United
320
Schneiderman
gen-
courts of
judges were made about
comments
The
popu-
of a
by
people
selected
jurisdiction
judges
eral
—
the atti-
community. They concerned
educated
lous and
charged
toward
who were
tude of
those
during
jury
a
rulings
not comments on evidence or
crime,
try the
juries
might eventually
on
trial. Their effect
Florida is
against
the criminal laws of
alleged offenders
cases
pending
too
for discussion. Comment on
remote
It
influence
may
judges differently.
may
affect
some
judges more
are of a more sensitive
than others. Some
colleagues.
generalities
fiber than their
law deals
The
and external
depend
varying
standards and cannot
degrees
courage
stability
of moral
face of
criti-
judges may
cism which
possess any
individual
more than
it generally can depend
personal equations
on the
or indi-
Germanic,
of the tort-feasor. idiosyncrasies
vidual
Employers’
Cases,
Arizona
S. 589, 596;
Liability
U.
250 U. S.
432.
We
not willing
say
under
the circumstances of
case that
this
these editorials are a
present
clear
danger
to the fair administration of
justice in Florida. Cf.
Minnesota,
Near
What is meant by clear and present danger to a fair ad- ministration justice? No give definition could an an- swer. Certainly this criticism judges' inclinations or actions in these pending non-jury proceedings could not directly affect such administration. This criticism of their actions could not affect their ability to decide the issues. Here there is only criticism action already taken, although the cases were still pending on points other or might be by revived rehearings. For such injuries, when the statements amount to defamation, a do other libel as damages remedy has such judge servants. public intellec- though his however, that even suggested,
It pur- on his reflections affected be processes cannot tual placate desire influenced judge poses, may *16 and secure esteem public to retain accusing newspaper the rulings against at the cost of unfair presumably reelection assump- fine-drawn many In this case too an accused. must be judicial action against of independence tions the danger present clear and possibility made to call such a a judge be a follow, For there must justice. this or support than without friends ordinary less fortitude upon a rule or powerful newspaper and vindictive bent and with or uninterested policy, public ruin unconcerned truth protection the or the of their institutions. the If, as Florida have held and we have assumed, courts petitioners deliberately the the facts distorted to abase destroy efficiency and those court, misrepre- sentations with indicated motives manifested them- in the language employed by selves petitioners their editorials. objectionable The Florida courts see this an language open effort use purposely power of the press to destroy without reason the reputation the competence of courts. This clear pres- is the danger ent justice. fear to we Although realize that do not we have the same close relations with the people of Florida that are enjoyed by the courts, Florida we have no doubt in general Floridians would react to these edi- torials substantially the same way as citizens of other parts of our common country.
As we have pointed out, weigh we must impact against words protection given by the principles of the First Amendment, as adopted by the Fourteenth, to public comment on pending court cases. We conclude judicial admin- fair danger under this record to necessary immediacy
istration not the clearness has comment. When permissible public to close the door of all doors behind it. closed, door closes
Reversed. Mr. Justice Jackson took no in the consideration part or decision of this case.
Mr. Frankfurter, concurring. Justice On the basis of cartoon, two editorials and a the Circuit Court of Florida for County pub- of Dade found the lisher of the Miami Herald guilty and one of its editors contempt of court.1 The fined editor, Pennekamp, was $250 and the Publishing $1,000. Company, Deeming Bridges California, 314 U. S. not controlling, Supreme Court Florida, judges dissenting, two *17 sustained the convictions. 156 Fla. 22 So. 2d 875.
In
Bridges
case this Court recently canvassed con-
stitutional aspects
contempt
of
by publication.
of court
But it was hardly
expected
to be
problems
that other
large
field within
Bridges
which the
case moved would
not recur. This Court sits to
interpret,
appropriate
judicial controversies, a Constitution which in
Bill
its
Rights formulates the conditions of a democracy. But
democracy is the least static form of society.
Its basis
judges
1 The
contempt
who tried the
cases were
judges
the same
who
by
were criticized
the editorials.
The words of caution of Mr.
Chief Justice Taft become
delicacy
relevant:
“The
there is in the
judge’s deciding
upon
whether an
attack
his own
action is
mere criticism or
obstruction,
real
possibility
and the
impulse
may incline his
personal
to
view
vindication, are
Craig
manifest.”
Hecht, 263
U. S.
(concurring).
But
who tried
petitioners were
delicacy
sensible of the
of their position, and offered
to retire from
petitioners
if
case
they
felt
prefer
would
to be tried
by
judge.
another
and
vague
embodying
Formulas
authority.
reason
to
opportunities
tempting
offer
generalizations
uncritical
long But so
thought.
for continuous
the need
evade
Such
temptation.
this
resist
freedom
men want
when
mischievous
most
beguiling
are most
formulas
but
wrong
right
not of
claims are those
contending
well-being
to
highly important
rights, each
of two
ade-
formula
pat
available a
is there
society. Seldom
it.
of all solves
least
problem,
such a
quately analyzes
ready
answer
no such formula furnishes
Certainly
its true
exposes
even
here for decision or
question
now
what ex-
whether, and to
precise
The
issue is
elements.
justice by
protect
can
the administration
tent, a State
without
the intervention
authorizing prompt punishment,
may
out of court that
interfere
jury,
publications
of a
pending litigation.
disposition
with a court’s
Bridges
deny
case did not explicitly
The decision
protect
judicial process
to the
from
States
bearing
publication
pend-
interference
means of a
ing litigation.
atmosphere
and emanations of the
opinion, however,
any-
Court’s
were calculated to sanction
thing to be
or written outside the courtroom even
said
though
may
just
hurt or embarrass the
outcome of a
But in
which
proceeding.
presented
a series of decisions
most
the constitutional
extent of
sharply
freedom
this
had held
speech,
Court
the Constitution did not
allow
freedom of expression
absolute
freedom unre-
—a
duty
stricted
other needs
respect
fulfillment of
of man. Schenck
security
the dignity
makes for
*18
States,
States,
United
Frohwerk v. United
47;
249 U. S.
States,
Debs v. United
204;
249 U. S.
requirements of the Constitution
It
society.
free
does an ill-service to
maintenance
a
quoted judicial phrases regarding
the author of the most
him
a
speech,
tendency
freedom
make
the victim of
fought
life, whereby
which he
his
phrases
all
made
analysis by being
do service for critical
turned into
dogma.
“It is one of the
misfortunes
the law
ideas
in
encysted
phrases
long
become
and thereafter for a
time
provoke
analysis.”
J.,
cease to
further
dissent-
Holmes,
Hyde
States,
in
ing,
v. United
225 U.
at
S.
391.
Words
“are used
such
circumstances
are of
danger
such a nature as to create a
and present
clear
bring
will
Congress
about
substantive evils that
prevent,”
States,
has a
Schenck v. United
47, 52,
U.
their
S.
own
But
speak
condemnation.
it does
juristic
violence to the
philosophy
prac-
Mr.
tice of
using
Justice Holmes to assume that
phrase “a
present danger”
clear and
expressing
he was
remotely
even
an
absolutist
test or had mind a danger
in the abstract. He followed
just quoted
the observation
by
emphatic
statement
the question
is one “of
proximity
degree,”
as he conceived
most ques-
to be
tions
large,
rights
connection
guar-
undefined
by
anteed
the Constitution. And Mr.
Brandéis,
Justice
co-architect
great
constitutional structure of civil
liberties,
recognized
also
permissible
that “the
curtailment
speech
free
is
.
. . one of degree. And
because
question
of degree the field in which
may
the jury
exer-
judgment
cise its
is,
necessarily, wide one.” Schaefer
States,
v. United
every time situation whether the before us is to determine precise problem judg- of beyond allowable limits State court went the in has been holding punished ment that conduct which a contempt reasonably endanger as a to calculated duty justice in pending State’s to a impartial administer controversy. a society.2
Without free there be no free press can Free- dom of in press, however, the is not an end a itself but
2 government . . complex, “. the of administration has become more opportunities the corruption multiplied, and have malfeasance crime grown proportions, danger has most serious and the its of protection by impairment unfaithful officials of and of the funda security property by mental of life and criminal alliances and official neglect, emphasizes primary vigilant courageous need of a press, especially great liberty in press cities. The fact of the may purveyors be abused any miscreant of scandal does not make necessary immunity press less previous of the from restraint dealing with official Subsequent punishment misconduct. for such may appropriate abuses as remedy, exist is the consistent con privilege.” stitutional Minnesota, Near v. S.U. 719-20. problem, Not unrelated however, to this whole technological are the vastly economic influences that have oper- transformed the actual free, ation in the governmentally uncensored, to a sense of a press. Bigness and put concentration of impress interest have their industry. “Today flowing also on this freely, are ideas still but the tendency sources from which rise have shown evaporate. a . . . controlling The thought diversity fact in the free flow of is not opinion, diversity it is opinion diversity sources of is, —that ownership. probably . . . There are a lot more words written and spoken today in America before, than ever subjects; and on more but if true, it is suggests, this book these words and ideas are flowing through channels, fewer then our first freedom has been diminished, enlarged.” White, E. Yorker, B. in the New March 16, 1946, p. reviewing Ernst, (1946). The First Freedom There today incomparably are more effective widespread and more means for the dissemination ideas and past. information than But steady shrinkage a a ownership of diffused reaching questions raises far regarding meaning of the “freedom” of free press. society. and nature scope
means to the end of a free The must protection speech of the constitutional of freedom of light applied. in that and in light be viewed is no less a means to the independence judiciary society, functioning of an proper end of free and the press the freedom of the independent judiciary puts proper perspective. judiciary its For the cannot function if properly press reasonably what the does is calculated judgment duty capacity to disturb the its A solely act basis what is before the court. judiciary independent justice is not unless courts of *21 pressure enabled to administer law absence of from without, through whether exerted the blandishments of In words, reward or the menace of disfavor. the noble penned by Adams, John of the First Constitution of Mas- preservation sachusetts: “It is essential to the of the rights of his every individual, life, liberty, property, and character, impartial that there be an interpretation of the laws, justice. and administration of It is the judges citizen be every free, impartial, tried 3 as the lot will A independent humanity admit.” free is press preferred not to be to an independent judiciary, independent judiciary nor an to a free Neither press. primacy other; has over the both indispensable are to a society. free The freedom of in press presup- itself poses independent judiciary through an which that free- may, dom if necessary, be vindicated. And one of the for potent assuring judges means their independence is a press. free
A free press is vital a society democratic because its gives power. freedom in democracy implies Power a in responsibility its No exercise. institution a democ- racy, governmental either or private, can have absolute
3Article XXIX of Rights the Declaration of of the Constitution of Massachusetts, 1780.
356 re- which enforce power Nor can the limits power.4 power limited by finally determined sponsibility Responsibility Freedom and Becker, L. itself. See Carl English, In Way (1945). plain in the American of Life the press; with it even for responsibility freedom carries responsibility freedom from press freedom of the expressly pro- for its exercise. Most State constitutions press’s for for freedom. That liability vide abuse of legal liability granted by there such was so taken for the framers spelled of the First Amendment that it was not Responsibility out. abuse its was imbedded law.5 The First safeguarded right. Amendment generalities.
These are generalities But practical most importance in achieving proper adjust- ment between press a free independent and an judiciary.
Especially in the administration of the criminal law— that most aspect awesome of government society needs — independent justice. courts of This means free from control by the executive, free from all ties with politi- cal interests, free from all of reprisal fears or hopes of indispensable That this condition for society a free was well known to the framers of the Constitution, is the theme of Mr. Justice Brandéis dissenting opinion Myers his States, v. United U. S. *22 at 293: “The doctrine of separation powers of adopted by was the Convention 1787, of promote not to efficiency preclude but to arbitrary exercise of power. purpose was, The friction, not to avoid but, by means of the inevitable friction incident to the distribution governmental powers among three departments, to save the people from autocracy.” And see Mr. Chief Taft, parte Justice in Ex Grossman, 87, 267 U. S. 119-22. 5The State constitutions make it clear that speech of freedom press they and guarantee is not All, absolute. exception only of Massachusetts, New Hampshire, South Carolina, Vermont, and Virginia, West explicitly provide in practically identical language for the speak, publish write and freely, every one, however, “being responsible for the abuse of that right.” security of and the safety society of reward. criminal impartial and wise depend upon innocent alike undermine machinery may of its justice. Misuse individual may deprive the State; its misuse safety of the life a free dear.6 all that makes man’s of even criti- feel cramped, must not Criticism therefore justice. Weak criminal cism of the administration scope and allowed ought judges, not to be characters they are press may assume that society’s for sake con- not. No fit to be influenced judge likely to be one is by sciously by what he and hears court except sees what is his How- judicially appropriate for deliberations. ever, judges also we know than did human, are better powerful pull our forbears how is the of the unconscious and how process. treacherous the rational While the ramparts of reason have found fragile been to be more Age Enlightenment than the had supposed, the means for arousing passion and confusing judgment have been reinforced. And since judges, stalwart, however human, the delicate task justice of administering ought not to be made unduly by difficult irresponsible print.
The English bench is noted justly for sturdiness, its it was no weak-kneed judge recently who analyzed the mis- 6See, g., e. disturbing record in the Campbell, ease of New York County Association, Criminal Courts Bar In the Matter the Inves tigation Campbell Conviction M. (Feb. Bertram 22, 1946), and the decision of the New York Claims, Court of on June awarding Campbell $115,000 wrongful conviction, including dam ages earnings, for loss pardon after Dewey his Governor follow ing the confession another of the crimes for Campbell had been convicted. “He was justice the victim of a miscarriage of but fortunately for him the State has undertaken rectify the mistake possible. far as . . years, . Seven six days months elapsed and five from claimant’s arrest pardoned.” until he Campbell v. New York, 186 586, 591. Misc. *23 to extraneous nature the hardiest exposing even
chief of say or to assume fallacy “. I think it is a . . influence: be affected who cannot judge person is a presiding that and while being, He is a human information. by outside any judge, as likely that suggest I do not conveyed improperly which had been result of information he would decision which otherwise him, give would a judge that he given, embarrassing have it is to a should which he would much rather not be informed of matters him which make it much more difficult for to do hear and I duty. repeat already his To the words have read from of Wills J. Rex v. Parke judgment (1903) K. B. [ 432], ‘The like why publication reason of articles with which contempt those we have to deal is treated as a of court is because their tendency sometimes their object is to deprive doing the court of the power which is the end for which it namely, to administer exists — justice duly, impartially, and with reference solely to the facts judicially brought before it.’ . . I . venture think judge no with long experience criminal will fail to be able to recall instances in which publication of mat ters such as that to which I have referred has had the effect making the task of judge a extremely difficult, and no one has the right to publish matter which will have that effect.” Humphreys, J., Rex Davies, [1945] 1 K. B. 435, 442-43. The observations of another judge in the same case bear quoting: jurors “. . . are not only people whose minds can be affected by prejudice. One of the evils of inadmissible being matter disseminated is that no one can tell what effect particular piece of informa tion may have on his mind. Why, my Lord asked, has and I can think of no word, better should judge be ‘em barrassed’ by having put matters into his mind, the effect of which it is impossible to estimate or assess? As an illustration of this proposition, the Court of Criminal
359 thor- its times, many but not once expressed, has Appeal given is evidence which sometimes ough disapproval been man has when a at the end of a case police officers by are allegations all sorts of On such occasions convicted. character, sometimes against made a man’s frequently supported by and sometimes not hearsay the nature of disapproval ground at all. What for the evidence regarding state- Appeal of the Court of Criminal such hearing only judge who, It can be that the after ments? statements, pronounce sentence, may, quite has to judgment unconsciously, have his influenced matters which he has no consider. . . . Not all defama- to tory matter can contempt amount of court. . . . defamatory Whether matter in any amounts to contempt particular question case is a in each fact, degree case of and of Oliver, J., Davies, circumstances.” in Rex v. supra, at 445-46. Parashuram Detaram Shamdasani v. Cf. King-Emperor, [1945] A. C. 264. To deny bludg- eoning poisonous or power comment has influence, at to disturb, least the task judging is to play make- believe and to gowns assume that men in angels. are psychological aspects problem of this become particularly pertinent in the case of elected with short tenure.
“Trial newspaper,” like all catch phrases, may be loosely used but it summarizes an evil upon influence administration of justice criminal in this country. Its absence England, at least its narrow confinement there, furnishes an illuminating commentary. It will hardly be claimed press that the is less free England than in the United any States. Nor will informed person deny that the administration justice of criminal is more effective there than here. This is so despite the commonly ac- cepted English view that standards justice of criminal civilized, more or, at the least, that recognized standards of fair conduct prosecution of crime are ob- better Thus, degree” unjustly is not called “the third
served.
“the American method.”
This is not the occasion
enlarge
greater
for the
effectiveness of
upon
reasons
confidently
English
justice
may
but it
asserted
criminal
standards are
partly
is more effective
because its
so civilized.8 There are those who will resent such a state-
*25
of
praise
country
dispraise
ment as
of another
one’s
7Compare Inquiry
Regard
Interrogation by
in
to the
the Police of
Savidge,
(1928); Report
Royal
Miss
Cmd. 3147
Commission
of
Procedure,
Report
on Police
(1929),
Powers and
Cmd. 3297
on
Enforcement,
Lawlessness in
in 4
Law
National
on
Commission
Law
Reports (1931).
Observance and Enforcement
See also Wan v.
States,
1;
United
Mississippi,
278;
266 U. S.
Brown v.
297 U. S.
Florida,
Chambers v.
“There another our Rules of Debate which is relevant case, to this judice the Rule that matters are sub should not subject be the of discussion in again, terms, this House. This Rule in only applies to British Nuremberg courts. The court in is a court judges participate, which British and we have the same interest in seeing nothing atmosphere is done here to disturb its as indeed, we have perhaps greater the case British a inter- courts — est, eyes upon since the are pro- the world this new and difficult justice, consequences cedure international and the of ill-advised incalculably might interference be mischievous. think
“I that the intention of both the Rules to which I have re- ferred, preserve appearance is to the House from even the of inter- his is that one covets means really What own. surpassed conduct public country quality own elsewhere. long have justice American criminal features of
Certain judge as serious diagnosed by qualified those best been hand, some mis On the other and remediable defects. so system have been accompaniments chievous of our part of the regarded often pervasive too “trial spirit. Thus, by newspapers” exuberant American pe sometimes been as a concession to our explained has might culiar interest trials. Such interest criminal an innocent enough pastime were it not for the fact that curiosity the stimulation of such press and response to such stimulated interest have not failed to grievous cause tragedies committed under the forms law. Of course trials public public must be and the have deep interest public’s legitimate interest, trials.. however, precludes goes distortion of what *26 on inside the courtroom, dissemination of matters that do not come before the court, or other trafficking with truth intended to influence proceedings inevitably or calculated to disturb justice. course of in atmosphere a courtroom t.9 may be subtly influenced from withou See dissenting fering in the justice administration of British this should include —and trials for country which this has responsibility; some rule, and I therefore, that all the members of this pro- International Court are tected to the same judges, extent as British and that discussion of its proceedings Order, is out of way in the same as adjudi- matters under in cation a British court Parliamentary of law.” (Han- Debates sard) 599-600, Nov. 1945. 9The manner Hauptmann in which the reported trial was led to a searching inquiry by special committee of the American Bar Associa reported and it following, tion recommendations: foregoing “In the report we have tried presentation to make fair of salient facts. We have been spirit moved less of censure than by hope of remedial action. The excesses we have described differ practices from many in mainly degree. other cases “The trial of a criminal case a business that has purpose for its sole Mangum, 237 Holmes, in Frank v. of Mr. Justice
opinion tried in news 309, 345, at 349. Cases are too often U. S. justice, on without dis- the administration of and it should be carried tracting influences.
“Passing general specific from the to the we recommend: during progress “That attendance the courtroom of a criminal seating capacity trial be limited to the of the room. process subpoena any process
“That the or other court preferential any person should never be used to secure admission of or spectator; process punished contempt. that such abuse of be approaches kept clear,
“That to the courtroom be to the end that free access to the courtroom be maintained. no photographic appliances permitted
“That use of cameras or be courtroom, during in the either the session of the court or otherwise. registering “That no sound publicity permitted devices for use be operate any the courtroom at time. surreptitious procurement “That the pictures or sound records contempt be punished considered of court and be as such. “That the courtroom and the court kept house be free from news distributing equipment. devices and newspaper
“That proceedings accounts of criminal be limited to accounts of argument in court occurrences without of the case to the public. popular “That no during referendum be taken pendency of the
litigation guilt as to the or innocence of the accused. broadcasting “That arguments, giving argumentive press out of bulletins, every argument other form of or discussion addressed public, by lawyers to the during progress case litiga- of the definitely tion be forbidden. “That bulletins public defendant issued during to the progress of the trial definitely forbidden. public “That criticism of jury by the court lawyers in the case during progress litigation be not tolerated. *27 featuring “That in jurors vaudeville of or other court officers,either during or trial, after the be forbidden. giving “That paid the of interviews or writing the paid of articles by jurors, during either or trial, after be forbidden. atmosphere “That the of the adjacent courtroom and premises be maintained as one of dignity (1936) and calm.” 22 A. B. A. Journal 79-80.
363 in cast of char court, and the they are tried before papers from greatly differs in the trial too often newspaper acters at the and who appear the real who trial court persons consequences.10 may have suffer its distorted ac Newspapers newspaper men themselves have urged deplored evils, these their knowledged practices, 11 Attorney See The General’s Conference reform. (1934) Crime 82-111. One of the most zealous claimants Tribune, has prerogatives press, Chicago of the in- legal for proposed even means the correction these 10 g., 1933) See, Gilman, (June, The Truth 29 e. Behind News Mercury newspapers American 139. “It idle for such to claim that is they adopt practices public such in the interest. Their motive is increasing profits, sordid one of their unmindful of result to the may ultimately unfortunate wretch who have to his for stand trial murder.” Mr. Justice N. Z. L. News (Feb., R. 141, 148, 1946) 192 at Harper’s Blair, 150. Cf. Magazine, Attorney-General Pratt, How 97,105. the Censors Tonks Rigged [1934] professional 11 A reporting refreshing defense of crime has this bit concede, however, candor: “I will popular that had not been feeling developed by might newspapers, to fever heat Hickman living today having behind the walls some madhouse instead met Dewey, death in the (Dec. electric chair.” Crime the Press 30, 1931) Compare Commonweal 233. by the statement one experienced lawyers, most criminal Clarence Darrow: jury rapidly being destroyed “Trial the manner America newspapers in which the all handle I sensational cases. don’t know what should be done about it. The truth is that the courts and the lawyers proceed against don’t newspapers. They like to too are powerful. today As the law important stands is no there criminal newspapers case guilty where contempt day are of court day. lawyers after All it, it, know know newspapers all and all nothing know it. But is done necessary. about it. No new laws jurisdiction The court has full see no one influences a verdict everyone Quoted decision. But by Perry, is afraid to act.” Courts, Press, (Trial by Newspaper) and the Public (1931) 228, 234; (1932) 30 Mich. L. Rev. 379; (1932) U. S. Law Rev. 277, 282. 11 Phil. L. J.
364 “ ‘The Trib- justice: criminal of upon province
roads
of this
will
drastic restriction
accept
une advocates
police
of the
penetration
The
publicity.
preliminary
With
stop.
must
by journalists
the courts
system and
Though
for it.
motivation
a law there would be no
such
journalism,
in American
revolutionary
be
such a law will
it
financially
newspapers,
not
advisable for
though
”12
Restrictions must come.’
necessary.
still is
views,
these
still
express approval
It
me to
is not for
that would
less, judgment on the constitutional
issues
they
But
legislation.
if
translated into
they
arise
were
understanding
nature of our
relevant
to an
of the
pur-
They
emphasize
serve also to
problem.
press
was not to erect the
into
pose of the Constitution
in their
protect
persons
institution but to
all
privileged
it.
.
will as well as to utter
“.
.
right
print
what
less than the
liberty
press
greater
of the
is no
and no
Regina
Gray,
subject
Queen,”
liberty
every
[1900]
2
Q.
B.
36, 40, and,
the United
States,
it is no
greater
liberty
every
Republic.
citizen of the
than the
spe-
is not a
proceedings
to undermine
court
prerogative
press.
cial
377;
232;
Rev. at
11 Phil.
“Tradition and must rules must be application, domain their immediate enforced . . the court itself. . intolerable, “I think it and I cannot think that it should charge lying against any punishable, citizen irre- should be public prints, plain duty sponsibly reporting, tried in the whose is the (1936) hearing, of causes. . . .” 20 J. Am. Jud. and not Soc. 84, 86. *29 press
The does have the which is its right, professional function, to criticize gamut and to advocate. The whole of public affairs is domain for fearless and critical comment, justice. and not least the administration of public But the belongs function which to the press makes it an obligation of honor to exercise this function only with the fullest sense of responsibility. Without such a lively sense of responsibility press may a free readily be- come a powerful injustice.13 instrument of It should not and may attempt not juries to influence or before up have made their minds pending controversies. Such a restriction, which merely operation bars the of extraneous influence specifically directed to a concrete case, no wise curtails the fullest discussion of public generally. issues It suggested is not generalized that dis- cussion particular of a topic should be forbidden, or run skeptical See the Mencken, remarks of H. L. libertarian, a stout efficacy journalistic on the self-restraint:
“Journalistic codes Essentially, of ethics are all moonshine. they are as absurd as would be conductors, codes of street-car public jobholders. barbers journalism If American is to be purged present brought of its up swinishness and to a decent level repute improvement God knows that such an is needed— —and accomplished by it must be morals, the devices of not those say, honor. That accomplished by is to it must be external forces, through penalties the medium exteriorly inflicted.” Quoted by LeViness, Press, Daily in Law and Record, The Baltimore, 11,1932, p. 3, 1,4. March col. article,
The author of LeViness, Mr. reporter a Baltimore Sun lawyer, turned quotation followed the from Mr. Mencken with this comment: puts problem, “This far police as Court and goes, news
squarely belongs: back where lap it in the judiciary. The standards; Courts journals must set the the better will follow joyously gumchewers’ and the whipped sheets must be into line. The solution jurists, is fearless not afraid of double-edged contempt process; sword of intelligent jurists, able to exercise power best, this enlightened public interest.” Ibid. some merely because contempt proceedings,
the hazard in pend- a may be involved topic of such phases general influence a attempt It the focused ing is litigation. on the corroding effect may have decision particular justifies such comment justice, and is process of process. the corrective crim- law, particularly that of the administration is normally an environment law, operates
inal general but The distinctive even individual. universal or law determine whether of a case particular circumstances through case, in that a disinterested administered fairly *30 formally presented judgment of what has been on basis instead considerations, of explicit inside the courtroom on cal- being subjected psychologically to extraneous factors equi- impartial and culated disturb the exercise of an to judgment. table angels, judges
If were men, including journalists, and Angelic problems contempt be of there would no of court. judges influences and would undisturbed extraneous angelic journalists would not to influence them. The seek power punish contempt, safeguarding for a means of to as judges deciding impar- of community on behalf as tially given decide, privi- as is to the lot of men to is not a lege judges. punish accorded to con- power for is a tempt safeguard judges of court persons but for the they function which It is exercise. a condition of that indispensable free society for a function- — —that particular controversy pending before a court and await- ing judgment, beings, human however strong, should not be torn moorings from their impartiality of by the under- tow of extraneous influence. In securing freedom of speech, hardly Constitution meant create the judges juries. influence That is no more freedom speech than stuffing a ballot box is an exercise of the right to vote. dispose must considerations general for these regard
Due prob- of our at the core Since present controversy. of the basic conditions two balance between proper lem is a and of utterance democracy our constitutional —freedom judg- escape the exercise justice cannot impartial —we particular of the particular circumstances ment on in mind that since a And bear always case. we must here as the voice of judgment from a State court comes intendment State, every be accorded fair must belongs reason to action a State. charge According Supreme Court, to the Florida against petitioners that “both the editorials and the predicated inaccurate, cartoon were incom- distorted, and plete reports pending litigation, biased purpose and effect and of the editorials the cartoon were to impute part and favor on the partisanship circuit charged to those with partisan- crime that such ship pronounced was so refused to heed the voice representatives. the people’s ... So the vice both the editorials was the inaccurate distorted, statement of the facts that statement were scrambled false insinuations that amounted to unwarranted charges of partisanship part unfairness on the judges.”14 *31 The tenor of the first editorial complaint tech- nicalities and delays of the law which give seem to exces- sive protection to defendants. It suggestion makes no which could be construed attempt as an to influence the court’s in decision a matter actually pending before it. All questions in discussed the editorial had been acted on the trial judges. The editor merely indulged in general criticism of those acts as exemplifying an over- solicitous concern for defendants the law and by the judges who interpreted it. Nor was the cartoon directed toward particular a pending case. Indeed, partly serves
14Pennekamp State, 156Fla. 239, 240, 22 875, 881, 882. So. 2d general with a interpret
to the editorial as one concerned judicial suspects only hypersensitive- situation. One specifically ness would find it an animus directed. The opinion danger confusing of the court illustrates the judicial correction of interference action with con- dignity. cern over a treating lightly court’s Instead of a indistinguishable cartoon from scores of such type ephemeral products, in wholly the court saw it undeserved significance.
Again, the second editorial referred particular to a case only example. as an In that case, too, the court had made its decision. What the editor criticized was the speed of disposition and other procedure features of which attended the case. His allowable concern was that the have people give chance to their argument, prosecution criminal cases be treated as fairly as the defense. Inaccu- rate and even false comment litigation longer pend- no ing may not be dealt with by punishing for contempt as a means of just assuring the exercise of the process. Supreme Florida Court referred to the cases criti
cized as “pending.” But it did not define the scope of “pending” nor did grounds of its decision have any particular dependence on the requirement that a case be pending. The finding by a State court that a case is “pending” the sense relevant to power punish for contempt not, does of course, bar its review here. Otherwise a State court could foreclose protection our the constitutional speech of free by putting forth as ground non-federal of decision that which is an essential aspect of the federal question. Union R. Co. v. Pacific Public Service Comm’n, 248 U. S. 69-70; Ward v. Love County, 253 U. S. 17, 22; Davis v. Wechsler, 263 U. S. 22.
If it is contemptuous bring the courts of a State into disrepute and generally impair their efficiency, then it *32 with reference or what occasion no difference make can But attempted. is achieved or that event effect to what case, “pending” by is meant it is understood what when for con- purposes punishing that for plain it becomes actively pending. cases were not interference, as tempt inclusiveness with the technical “Pending” is not used in In the situations pendens. in lis phrase it has im- meaning applicability, phrase has have proceedings whether any considerations are portant whether it is put been taken to the issue into court and power contempt is punish still there. Where the asserted, technically it is not the case is important or that further as the proceedings, possibility court such is pending of a are available. “When a case rehearing, is to be technical, lawyer’s problem, deter- but by the mined substantial realities of the situation.” specific Bridges California, 252, (dis- 314 U. S. at 303-304 sent). The decisive consideration is whether the judge jury or is, presently will be, pondering a decision that comment seeks to affect. Forbidden comment is such will or may psychological throw weight into scales which the court is immediately balancing. L. Hand, J., in Cf. Ex parte Craig, 282 F. In 159-60. the situation us, before the scales had come to petitioners rest. The offended the trial court criticizing what the court had already put in scales, not by attempting themselves weights. to insert petitioners here could not have disturbed the trial
court its sense of fairness but only its sense of per- spective. The judgment I must, agree, be reversed.
Mr. Justice Murphy, concurring.
Were we to sanction judgment rendered the court below we would be approving, an effect, unwarranted restriction upon the freedom of the press. That freedom *33 something right
covers more than the and con- approve judiciary judicial process insofar as the and the done concerned. It also includes the to criticize and dis- though vitriolic, or parage, even terms scurrilous danger arising talk present erroneous. To of a clear and out of such criticism is idle unless the criticism makes it in impossible very carry real sense for a court to on the justice. administration of That situation is not even re- in motely present this case. in
Judges vigilance should be foremost their protect the freedom of castigate others to rebuke and the bench in and their refusal to by be influenced or misin- unfair formed censure. Otherwise may upon freedom rest precarious base of sensitiveness caprice. And a chain may up, reaction be set in resulting countless restrictions and limitations upon liberty. Rutledge,
Mr. Justice concurring. One can have respect no for a newspaper which is care- less with facts and with insinuations founded in its care- lessness. disregard Such a for the truth not only flouts journalistic standards of activity1 observed too often by following 1 See the published codes of Crawford, ethics in The (1924) Ethics of App. Journalism Journalism, adopted A.: Canons of by the Society Newspaper American 1923, IV; in Editors Art. Oregon Ethics, The adopted by Oregon Code of State Editorial 1922, I; Association Ethics, adopted Art. South Dakota Code of by the South Dakota Press Association “Truth Honesty”; Principles Missouri Declaration of Practice, and Code adopted the Missouri Press Association “Editorial.” And see in the same suggestions volume the from prepared extracts rules and following newspapers guidance for the of their staffs: The Brook lyn Eagle, The Monitor, Christian Science Springfield The Union, News, Newspapers The Detroit (personal The Hearst instructions given by Randolph William Hearst to his newspapers), The Sacra Bee, City mento Journal-Post, Kansas (written The Marion Star in fact who breach, bring but tends to courts those public obloquy. administer them into undeserved if every newspaper prints But critical comment justifiable fact, basis in or about courts without withholds proceedings decisions, the full reporting truth their *34 or goes done, even further and what misstates have subject punishment were on these accounts to for con- would few in such tempt, frequently there be not involved in- is no proceedings. perhaps There area of news more reported whole, with accurately factually, though exceptions, legal notable than news. some part carelessness, Some of this is due to often induced by gathered published, the haste which news is and portion more blameworthy smaller to bias or causes. in great attributed, candor, But a deal of it must be ignorance blameworthy. which frequently is not at all For newspapers are conducted men who are laymen to the for exceptions law. With too rare their capacity misunderstanding significance and legal events procedures, great. is this speak opinions, But is peculiar neither remarkable nor newsmen. For law, lawyers know, as best is full of perplexities.
In these any require view of facts which would standard accuracy in strict in reporting legal factually events commenting upon them in press impos- would be an sible one. Unless the judges put courts and are to be criticism, above no such rule can obtain. be There must Harding editing President Star). Sharkey, when The also See Journalism, The Ethics of An Address Delivered before the Press World, Geneva, Conference of the Switzerland, September 1926, 15, 10; p. Wicks, English Ideals and Newspapers, published Methods of in Affairs, Journalistic Ethics and World Addresses Delivered at the Fifteenth Annual Journalism University Week at Missouri, 1924, 32) (No. 26; 25 U. of Mo. 25, Bull. Gibbons, Newspaper Ethics etseq. (1926) 16 mis- for as well fact, misstatement room
some
as critical
to function
others
and
press
if the
judgment,
all
as for
concerning courts
democracy
in our
agencies
government.
other instruments
altogether
put
be
cannot
therefore
Courts
misstatement.
misrepresentation
reach
beyond the
obviously where
more
case,
perhaps
but
any
is true
That
in
states,
our
in most of
elective, as it is
judiciary
52;
Illinois,
79 Ill.
Storey v.
See
cluding Florida.
question,
255. The
L. Rev.
(1927) Harv.
It cannot
effects.
degree and
must be one of
standard,
inor
representation
either
falsity,
mere
placed
at
opinion,
fact or of
whether of
statement,
judgment.
false, as to
true or
character, whether
must be of such a
functioning
way the
obstruct
some clear and substantial
Bridges v.
pending
matters.
judicial process
*35
enough
It
California,
The statements in question clearly fair comment large part. Portions exceed that But boundary. record does not disclose that in any way tended block or functioning obstruct proc- of the ess. I Accordingly concur opinion Court’s judgment.
2 “Nor does the fact that the false, greatly letter was while affects quality moral act, criminality. determine its punish It is only able if justice, it interferes respect truth is harder to meet than Hand, dissenting falsehood.” parte L. Craig, Ex 282 138, 161, F. Craig aff’d Hecht, sub nom. S. 255. U. See also the dissenting opinion of Mr. Holmes, Justice 281. U. S. at But cf. In re Co., Providence Journal 28 R. I. 428; 68 A. In re San Fran cisco Chronicle, 1 Cal. 630, 36 2d P. 2d 369.