*1 251 (lend, legally illegally whether made, cannot, analysis, impose irreparable City. harm on the For ex ample, City we note that Agreement under the 1907 specifically given is only option not purchase, but power acquire also the all the assets of Company (its property, franchises) leaseholds and proceedings, condemnation City which event the pay only would for them their value. if Moreover, fair City Company, believes that the promptly which is paying adeqnately its maintaining rent, the three adequate facilities leased to there are it, remedies for enforcement of the covenants as lease, well as for including pro breach or breaches thereof, ceeding Utility before the Public Commission. See Du quesne Light Upper Township, Co. v. St. Clair 377 Pa. Telephone Telegraph 105 A. 2d 323, 287; York Co. Pennsylvania Utility v. Public 181 Pa. Su Commission, perior Ct. 2d 605. A. foregoing

For Gity reasons it is clear that the legal standing bring present has no or status to equity enjoin payment suit in a dividend. I would, reverse the order of therefore, the Court below, injunction City’s dissolve the and dismiss the com- plaint. Appeal.

Mack *2 Argued January 13, 1956. Before C. Stern, J., JJ. Jones, Musmanno Bell, Chidsey, Arnold, E. Charles with him T. Kenworthy, Walter Me- *3 and Gough Reed, Shaio é for Smith, appel- McClay, lants.

Fred B. J. J. Vincent R. Trescher, Snyder, Jr., and Smith, Kunlcle and for Trescher, appellants.

Paul K. with him II. McCormick, Reginald Belden, appellees. by Opinion October 1956: 5, Mr. Justice Arnold, The seven defendants from severally appeal judg- and ment sentence by the court each of finding below them guilty contempt, upon each a imposing fine and five imprisonment in days jail. the county The appeals were and will be argued together disposed of in one opinion.

The respective were judgments sentences sus- tained below that defend- by upon court findings ants violated rule court No. Westmoreland County 6084. The rule provides: or be

“(a) pictures No shall photographs taken, or this court immediately, during sessions of preceding or in court sessions, any recesses between rooms the.

254 feet of in the house within place forty

or at any court to court room. any entrance or court shall be broadcast “.(b) proceeding No televised. party or to photographs any No

“(c) pictures or shall be a civil or criminal juror witness, action, office or other room taken the Law or Library and con- except knowledge court with house, or persons photographed. sent of person jail or inmate of county “(d) prisoner No or on his jail way shall be photographed a court.”1 from session of are set facts we con-

As forth hereunder, rule, subsections only (a) (d) cerned our will be limited these. decision Wable, a J. known verdict By jury Wesley of first had been found “Turnpike Killer,” guilty as the pen- of the death murder with recommendation degree had called for he been 28, On December alty. the court court below, by Judge sentence Bauer house. This fourth floor of the court No. on the room defendants. ef common knowledge a matter shaped floor consists of octagonal fourth and a chambers court flanked judge’s room, is reached means of a foot The corridor corridor. Entrance to court elevator and stairway. *4 room door room is from the corridor. Near court took surreptitiously photographs the defendants he was escorted to being Wable and sheriffs as deputy to the sher- who was manacled Wable, the court room. from the first county jail had been conveyed iff, to the and thence elevator house, of the court by floor app.roacli- officers were he and While fourth floor.. the. 1 regulations. adopted Many similar -See federal courts have n journal Vol, February' Society, 37,- 1935' the American Judicature

255 40 feet the entrance the court and within ing room, each prearrangement the defendants, by thereof, These photographs question.2 took the others, court’s consent or the procured were without Wable’s sheriff and or attention knowledge. fact, photographer. deputies decoy his was distracted by of infra red rays taken means photographs The were no causing and the use of flash bulbs not requiring these photo- following commotion noise. The day the defendants. published were graphs all of committed The defendants admit these acts acts and also that hereinbefore described, plea Their them. performed were by agreement among is in of “confession avoidance.” the nature court is The first is that the rule of contention in constitutions conflict with the federal state as pointed volving press. However, of free right the Christian Sci Erwin D. Editor of Canham, out by is not a right press ence “freedom of the Monitor, instant By is a press. people.”3 It dignity to preserve rule the court was attempting insur trial, thereby of the court and the decorum To be valid, of justice. administration ing orderly in American Communications Thus be reasonable. such rule must 382, 399, v. 339 U.S. Douds, Assn C.I.O. ., is regulated held: “When conduct particular results the regulation public order, the interest Columbia, 11; Among Colorado, Rule District Rule these are County rule; very Mexi- New similar the Westmoreland districts) ; Minnesota, (northern, co, western eastern and Oklahoma Wisconsin, substantially District of Colum- to the similar which is bia; Kansas; Dakota. and North floor, photograph after sen on the first was also taken Oné imposed upon had been defendant. tence Implications Mid-Century, of Scien Social See article Burchard, Cambridge, Ely editor, Progress, York New John tific Mass.; T., p. Technology 261- I.M. 1950. Press of *5 256

in an partial of indirect, conditional, abridgement . . press] ., duty the courts is [freedom determine which these two de- interests conflicting mands the greater protection under the cir- particular cumstances In presented.” v. Fitzgerald Philadelphia, 376 Pa. 102 2d “'Of 379, A. this Court held: 387, 887, it is constitutional course, accepted doctrine that these fundamental human . rights are not absolute . . The essential of the First in- rights Amendment in some stances are subject to the need elemental for order with- out which the guarantees rights civil to others would ” be a mockery.’ whether or not

Therefore, freedom the press here involved is since such is sub- immaterial, freedom ject to reasonable rules maintenance seeking court’s and the dignity orderly administration of jus- tice.

The defendants assert repeatedly do contend for pictures to take Avithin the court even the infra red method room, by which is ac- ray companied no or by disorder. But it be display must conceded that if we sustain their contention that this rule of court their infringes upon rights of freedom the press, the court likewise would have no power to pictures forbid the the court taking room which were no accompanied disorder or disturbance. Yet has Rule adopted 223 of the Pennsylvania Rules of Civil has the which effect of a Procedure, stat- the trial of ute,4 provides: actions “During the court shall prohibit taking photographs and motion the court room and the pictures transmis- sion of communications by telegraph, telephone, in or from the room.” radio court Canon addition, 1937, 19S2, 21, of June P. L. as Act Act amended of March 30, 1939, 17 PS §61-65. P. L. *6 as follows: Bar Association reads of the American

35 fitting with in should be conducted court “Proceedings in of photographs decorum. The taking and dignity or recesses of the court sessions during court room, the or of televising the broadcasting and sessions, between to detract from are calculated court proceedings . . . degrade essential of the dignity proceedings, thereto misconceptions respect and create court, permitted.”5 mind of the and should not be public incorporates The Westmoreland rule County proceeds Pa. E. P. 223 and then of C. provisions (b), and limitations by to state further restrictions the dignity to preserve deemed and proper necessary The taking the decorum of trial. of the court and does certainly of a called for sentence picture person and facts, material inform the as to not tastes to the lower pander no purpose except serves houses and court individuals. Court rooms of some had are not and trials places entertainment, are instinct of sadistic purpose satisfying any for the sensationalism. public seeking did not oc- in this case contempt The fact of the court, in the precincts cur in the court but room, . . the Court, “. the rule unreasonable. does not make of the part present every session, at least when use of its for the its use, set own place apart 5 by approved and state bar state courts has been This Canon associations. promulgated Procedure Buies of Criminal The Federal taking photo- States, provide: Supreme “The United Court of the judicial proceed- progress during graphs room in the court ings permitted is bind- eourt.” This rule . . . shall not be ing upon reason basis for can find no federal courts. We all unwilling unconstitutional, declaring to sanc- and are such rules pictures taking Nor we court room. can within the tion the prohibition a limited area of the outside find that extension court’s discretion. abuse the court room is an jurors any officers, and misbehavior witnesses; place presence where such is misbehavior in the court”: Ex Parte As 280. stated Savin, U.S. parte (Md) in Ex 136 A. 312 : “It is essential Sturm, integrity independence judicial to the tribunals power shall have the to enforce their own judgment incompatible as to. what conduct is with the proper orderly procedure.” course of their County proper long Westmoreland rule is so as it bears sought: a reasonable relation to the aim maintenance dignity orderly of the court and the administra *7 justice. Certainly tion of in this case the area affected as are the limitations of and the reasonable, action, prohibiting pictures taking rule the of the stated within power limits is the well within of the court. See also City City Ogden, Robinson v. 2d 185 P. for of (Utah) People (Ill.) 256 v. 34 N.E. 2d 393 ; Ulrich, People Amicus cites v. Curiae the case of Jelke, N.Y. 123 N.E. 2d in conviction was re 56, 769, public representatives versed where the and of the press during were excluded from the court room taking testimony. of But the court stated that the rea son for the reversal in that case that such exclu deprived impartial public sion the defendant an of bearing trial. That case has no on the instant case. freely Here the enter the defendants were entitled to press precincts, room and its and the court was accord coverage. opinion by in ed full an written Moreover, opinion judge same in the cited case, who wrote Appeals right the New York of denied the Newspaper Publishers to be Press Associations proceed report present and to at the trial of Jelke, ings, further court “. . . this is a case held: not press right . . . . . and . . the as freedom ... (cid:127) petitioners by is not embraced within the con serted provision guaranteeing those freedoms .... stitutional abridged press way is in But freedom the no op- newspapermen exclusionary ruling which denies transpired.’ portunity . The hear . to ‘see and what . petitioners of disseminat- are the business fact special right privilege, gives ing not no or them news possessed by . . .”6 See other members of the 123 N.E. v. 162 Ohio Clifford, 370, Ohio also State of 349 U. S. 929. certiorari denied, 2d 8, rules court of The defendants also violated the County, insure made to Westmoreland which were right privacy no There can be of the defendant. recognizes question jurisprudence that American question being right only privacy; its limits. See Bight Privacy,” D. Warren and “The Samuel As Louis D. 4 Harvard 193. Beview, Law Brandéis, Bight page Privacy, at stated 77 C.J.S., 397, jurisdictions of such but in all the existence some, right recognized, of statu has been even in the absence jurisdiction regulation. tory find no basis In this we denying its enforce existence such opinion Judge ability. See excellent Alessan Clayman cf. & v. 38 D. C. Bernstein, droni 101. also 36 D. & C. See Harlow v. Buno Co., Inc., *8 Waring Broadcasting Pa. v. 327 Station, WDAS Inc., opin concurring particularly A. and the 194 631, 433, page appearing Maxey Be- and of Justice at 456; ion §867. statement, Torts, charged with as are all was courts,

The court below, prisoner. protect right privacy duty the to a powerless prisoner that It be doubted cannot by any and such control; his so means within to do duty all reason- to use inherent the court has an case safeguard right. It is true that, that to able means 71, 6 (Judge), N.Y. v. Valente 308 United Press Associations 2d 777. 123 N.E. has prisoner been set from the sense, apart gen-

eral and has become “public Yet he figure.” subject of court involuntary restraint en- the. titled to the of his individual safeguard right pri- as the court is him vacy, just to charged securing his of a fair trial and other too rights numerous to mention. this case the defendant was found of murder in the first guilty degree verdict of the by at but the same time he was a jury, ward the court who must be his protected the invasion of against as press public. well as the All reason- rights able to the rules establishment of such safe- looking must be sustained. It needs guards no citation of cases prove innocent have been many persons found and sentenced guilty upon criminal charges, later released their freedom when from has been guilt established. See v. Commonwealth Pa. Zampogna, Superior Ct. and Commonwealth v. 81 Pa. Fideli, Superior Ct. 79. opinion

The able of President Judge Richard D. for court Laird, writing below, justifies amply of these sustaining judgments. since these However, are “test” prefer we cases, modify the sentences by the provision therefrom striking imprisonment, the sentence intact as leaving of fine imposition and costs.

With determination so far as in- rules, are here, volved and not reasonable, an abuse of the court’s judgment as discretion, so sentences, are affirmed. modified,

Concurring Dissenting Opinion Mr. Justice ll : Be

IWhile agree with Court’s decision prohibiting *9 a photographing prisoner at the entrance of the Court- photo- emphatic opposition my I wish record to to room, (with graphing rays) or televis- or without infra red ing proceedings. question broadcasting This or may argued specifically not in tbis but have been case, argued unreported companion by it was the Press an aptly says, case. so if the as Justice Arnold Moreover, present defendants is sustained the Court contention of power taking pictures have to would no forbid in the Courtroom. press right publish freely

Freedom to of the —the plant growth. fearlessly criticize—was a slow full-grown spring did Minerva did It as from the quickly Jupiter, as did the war broiv of nor rise as dragon’s riors teeth. It was when soAvedthe Cadmus freedom-loving planted by many hardy, souls and nur public opinion for centuries before tured several grew gigantic to Government both be tree of stature. constantly England tried to States United press suppress destroy or it. became Freedom Eight recognized only and as a result after inherent City Zenger York in New of the famous libel case Zenger’s lawyer, Hamil AndreAv 1735. that case argued vigorously Philadelphia,* ton truthfully freely newspaper criticize of a to governmental The officials. and conduct of acts press, recognize theory freedom the to refused prove permit defense; as a “Truth” Hamilton charge ignoring jury, of the Court, nevertheless opinion acquitted Zenger. rallied the cause Public press grad pleaded of the and freedom which Hamilton Eight ually recognized as inalienable became * Philadelphia lawyer”, origin phrase as a “Smart The legal profession, Andrew denoting top is attributed Zenger. Press” “Ordeal See Hamilton’s brilliant defense University Busser, Esquire, published of Penn- by Ralph O. sylvania Magazine, 1954. General Winter

262 was ordained and affirmed in the Constitution of United States and Constitution Pennsylvania. it is an often truism nei overlooked that

However, ther speech freedom of nor freedom nor press, freedom of constitute our religion, together bulwark of is absolute and un great freedom, Country’s limited: v. New Poulos 345 395; U. S. Hampshire, Beauharnais v. 343 U. S. v. Illinois, 250; Garner Los 341 U. S. v. Angeles Dennis United Board, 716; States, 341 American U. S. v. 94; Communications Assn. 339 382; S. Kovacs v. 336 S. Douds, 77; U. U. Cooper, United Public America v. Workers 330 Mitchell, U. S. v. 75; Whitney 274 U. S. 357; Gitlow California, v. New 268 U. S. v. 652; Gilbert 254 York, Minnesota, S. v. U. United 325; 47; Schenck 249 U. S. States, Frohwerk v. U. S. v. United 249 Debs States, 204; 249 S. United U. Abrams v. United States, 211; States, 239; 250 S. Pierce v. United 252 616; U. S. States, U. v. 251 S. United States, 466; U. Fitzgerald Schaefer v. 376 Pa. A. 2d 102 Wort ex 379, 887; Philadelphia, Inc. v. Textile Workers 369 Pa. Mills, 363, Union, 359, 85 A. 2d 851; Commonwealth v. 168 Pa. Geuss, Supe rior A. 2d Ct. 76 368 Pa. 81 A. 2d 22, 500, 290, 553; State Ohio v. 123 N.E. 2d 8. See also: Eule Clifford, 223 Eules of (b), Civil Pennsylvania Procedure; Canon Canons of Judicial American Bar Associa Ethics, tion.

In Workers United Public America v. Mitchell, 330 U. Court said : “Of S., (page 95) supra, course, it is that accepted constitutional doctrine these funda- human are not rights absolutes. . . . mental The essen- First tial rights Amendment some instances subject are to the elemental need for order without which the of civil guarantees to others rights would be a mockery.” Douds, Assn. v. American Communications “Although said : (page 394)

U. S., supra, make shall provides Congress First Amendment or as press no the freedom of speech, law abridging free those it has been established long sembly, con power are upon doms themselves dependent . . . Freedom stitutional to survive. government speak comprehend thus does not speech *11 at . . . the right time. subject any First though evils of even protected conduct, be from are thereby or groups Amendment rights persons con frequent has received some manner infringed, . . . this Court. recognition [Citing sistent by cases.] are freedoms absolute. never held that such We have Hughes is Mr. Justice put reason As Chief plain. Constitution, as it, ‘Civil liberties, guaranteed maintain society the existence of imply organized an itself be which would ing liberty order without v. abuses.’ Cox. lost in the excesses of unrestrained at 574.” U. S. supra New Hampshire, 569] [312 the Court S., supra, v. New 268 U. York, Gitlow long principle, : “It a fundamental said is (page 666) of the press speech the freedom established, not confer does Constitution, is secured responsi or without speak publish, absolute right or an unrestricted one choose, whatever bility, may possi immunity every license that gives unbridled punishment prevents language use of ble on the Consti 2 Story this freedom. who abuse those Baldwin, v. Robertson 634; p. 5th tution, ed., §1580, 205 S.U. Colorado, v. Patterson 281; U. S. 275, 165 276; 236 S. 273, U. Washington, Fox v. 462; 454, Frohwerk 52; 249 S. 47, v. U. States, Schenck United Debs v. United 206; 249 S. 204, U. States, v. United States, Schaefer v. United 213; 211, U. S. 249 States, 325, S. Minnesota, v. 254 474; Gilbert U. S.U. 251 332; Warren v. United States, (C.C.A.) 183 Fed. 718, 721. it said Reasonably limited, by Story passage this cited, freedom is an inestimable privilege in a free government; without such might limitation, become the scourge republic.”

In Wort ex Inc. v. Textile Mills, Workers Union, Pa., Court said : supra, (page 363) “Freedom of speech is not absolute or unlimited —for example, man not slander or libel may he not another; may pub licly blaspheme the he in loud Deity; engage may sound speaking trucks certain hours through during inor certain of a and he parts not assemble city; may with others to commit a breach the peace or to in cite to riot or to advocate the commission of crimes. Freedom of speech no co gives of intimidation or right ercion and no injure or another’s busi damage ness or . . . .” property,

To hold Freedom Speech Press absolute and unlimited would produce ridiculous situ- ations and often result disorder, confusion or Judi- *12 cial or For the governmental paralysis. under example, absolute freedom could persons talk or theory, lewdly or all at or even loudly once, shout “Fire” a Court- and room; representative every press freedom- every citizen in loving the Courtroom the could, during trial, take noiseless of photographs Judge, defendant' jury, persons and all connected with or the tidal. witnessing one’s if Having picture it is to taken, especially likely fatal appear papers, possesses a fascination for such many persons. theory Under the. practice,, witnesses.; attention of the Judge, stenographer be trial had- would diverted which distracted, ¿very a interest would intoi large public degenerate aroused (cid:127) of "Or- show, respect people' a circus side Law, and; would diminish der immensely, Courts a of travesty become Justice. many trials-wo.uld the news is an in while of Furthermore, gathering part owned dispensable newspaper privately it is that important point out freedom business, press does not a give constitutionally protected Press Associations v. right gather news: United 2d Valente New 123 N.E. (Court Appeals York), 778. reflection refute any Sober 777, contrary will require For the Constitution does view. example, press to submit to interro persons interviewed in or to furnish data or answer or gation questions press formation. Freedom of the means constitution censor protected news without right publish ally but even have neither is, as we ship, seen, nor unlimited. absolute have not overlooked authori-

Appellants only have ties cited and but likewise quoted, hereinabove overlooked important analogous very authority upon from which they cuts out under them ground their Freedom of the build basic contention absolute has States Press. of the United Supreme Court Rule Court, Rule of following viz., promulgated Title Procedure, of the Federal Rules Criminal room in the court of photographs “The taking U.S.C.A.: or radio of judicial proceedings during progress from the court judicial proceedings broadcasting court.” shall permitted room not be proceedings If the taking photographs First “Congress privileged by Amendment — speech, freedom of make no . . . abridging law shall the Supreme .. .”—it unthinkable press or have adopted States would of the United . Rule of Court. above quoted maintain its would *13 is and authorities, reasons of these light and the inter-: power, has the that a manifest and orderly Justice preservation and est for (1) the law, prohibit taking should administration 266 (as well as the photographs and tele- broadcasting of Court

vizing) proceedings, (2) photograph- of all persons connected ing Courtrooms therewith, if or within a reasonable dis- and, necessary advisable, from the thereto. tance entrances What is a reason- able distance in each the facts. case, depend upon will, does power Court’s not extend other However, or offices are in building rooms the same non-judicial are or occupied by public officials, even is entire called a Court House. though building To is clear Rule of summarize: It Court No. 6084 of Westmore- (a) (b) adopted by Courts is land valid and constitutional. County, I do with the However, agree majority’s opin nor its subject prohibiting ion on of privacy, pictures prisoner of a while taking who, custody, near his from the Court but not way is on or It to me that a right seems person’s Courtroom. is limited in some lost when he instances privacy or In such a case is convicted crime. charged limita a with certain public figure who, becomes he is in when he the Courtroom example as tions, subject is to being photographed in the County jail, a proper and for on a occasion place, proper a public in public I in such believe purpose. case, to the aforesaid) paramount pri is as (subject terest Pictures have color or interest. become vate right Taking photo a newspaper. important ful and part public news, gathering of a figure, like. graphs First Amend the protection not within while not be un which should important ment* v. Har Craig or restrained. Cf. shackled reasonably v. U. S. Pennekamp Florida, S. 367; 331 U. ney, 252. See also, v. 314 U. S. Bridges California, 331; in Dennis of Justice Opinion Concurring Frankfurter 529-553. States, United U. S. v. *14 of Massachu- Supreme of the

The language Publishing Newspaper in v. New England setts Themo to the applicable is particularly 306 Mass. 54, 58, Co., a pic- convicted of taking of the who was appellant case “The on the floor of the Courthouse: ture of Wable first us to decide whether require any cases do not present of this of is the law Com- recognized by privacy If does not one from exists, protect monwealth. any his his likeness in appear newspaper name or having is in when there interest his legitimate existence, his his his or experiences, words, acts.”

I would hold of Rule 6084 (1) part (d) in- prohibits which or photographing prisoner mate of the Jail on his to or from a ses- County way sion of the but not at the entrance to the Court- Court, room this case three floors (in invalid; and away), the conviction of one of (2) appellants these there- under should be reversed.

Dissenting Opinion by Mr. Justice Musmanno:

I. seven defendants this case were found guilty contempt of court Westmoreland because County 6084) violation of a Rule of alleged (No. inter prohibited, alia, photographing any on his prisoner to or from a way court, session any person room of the any courthouse without and consent of the knowledge person photographed, or the taking photographs within 40 place any feet of the entrance to courtroom. de- The seven fendants are William Block, publisher Pitts- Post-Gazette; Andrew burgh Bernhard, editor Post-Gazette; David W. Pittsburgh Mack, publisher Review; Tribune Greensburg Daily and Morning Pittsburgh Vince staff Johnson, writer of the Post- Purdy, Pittsburgh Gazette; Robert free-lance camera- Bindyke Klingensmith, and Don man, and James G. Pittsburgh photographers. Post-Gazette participated

On December the defendants 28, 1954, *15 photographic operation (cid:127)in a which resulted the tak- ing pictures Wesley of several of John con- Wable, way victed while he was on his to and from murderer, County courtroom the Westmoreland courthouse. It was the belief of William Block, Andrew Bernhard, publishers and David W. as and editors of re- Mack, sponsible newspapers, they duty to the owed pictures supply his Wable because of who, public safety, figure gen- menace to had become a They eral interest and concern. also believed that the County Westmoreland Rule of No. Court 6084 violated Speech guaranty the Freedom in the Constitution they acting frame- and were within the that, therefore, organic they law the land when directed work photograph They did their cameramen Wable. not, participate any way personally ac- however, photographic episode. tual scrupulous

Every effort exerted Messrs. was together photog- and with the Block, Bernhard, Mack, (and raphers signally in this suc- themselves were accomplished cessful) photography the desired to have way tranquility, in no disturbed the in a manner which dignity orderly procedure, In and the of the Court. introduced into the courtroom no were cameras fact, pictures anywhere taken in the nor at were time, Further- in session. while courthouse pictures employed to take the few the cameras more, operated so unob- and so small were involved were inconspicuously silently, trusively, that no one, and exception photographers themselves, clicked. shutters had been camera even aware were the solicitous and care with Despite painstaking the cameras were handled so as not to stir the calm of the court slightest ripple atmospheric the Westmoreland house, adjudicated County the defendants of direct contempt criminal guilty sentenced William Andrew Bloch, Bernhard, David W7.Mack the costs of pay prosecution, plus a fine of and to be committed to the each, county $500 jail Johnson period Reporter for a of 5 Vince days. Don Robert photographers Purdy, Bindyke, James G. were sentenced to costs of Klingensmith pay a fine of and to be committed prosecution, each, $100 to the for a of 5 jail period county days.

The defendants to this and the ma appealed Court, has affirmed conviction. of this Court now jority it has struck a blow Free doing so, stinging against dom of tlie Press. Article Section 7 of the Pennsyl I, *16 “The provides: printing press vania Constitution shall undertake to examine person be free to who every may of the branch proceedings Legislature any the no shall be made to restrain and law ever government, The free communication of thoughts thereof. right is one of the invaluable rights man, and opinions write and print citizen every may freely speak, for the abuse of that libe responsible being subject, rty.”* are a of government.

The branch courts, course, 11 of the Constitution Pennsylvania Article Section I, This means open”. “All courts shall be that declares: not to the but also open only shall be the courts the entire represent public. Obviously to those who never enter can County of Westmoreland population a certain to witness given on any day the courthouse of the newspaper provides lamp the Aladdin’s but trial, * throughout, mine. Italics phenomenon magic of vicarious attendance,

carpet photograph takes and into of a the reader to easily transports him a courthouse as as it across sea. quoting Majority Opinion, Ervin D. Cahnam, says that

Editor of the Christian Science Monitor, press right press. It is not a “Freedom the people.” Despite right of the the eminence is a of the opinion journal quoted, one the statement is the of but opinion it is an while which, individual besides, proclaim great only seeming in exe- to succeeds truth, gymnastics. cuting It must be an exercise verbal press any high school student that when the obvious necessarily battles for the for its freedom, contends press. people right to have a free When a law- of the rights yer of the constitutional his behalf lifts voice personal pleading for his own his client he is person presenting prerogatives: the claims of the he is through speaks. newspaper, its When a he whom legislative representative, halls seeks admittance right in the interests of the it asserts courtrooms press people. say is not that freedom of the Thus, people, press right is as trite as but of the speak right in the senate saying of a senator to right people right have who but is not his own represents. bim Freedom of the he and whom elected through people informed press to be is the press communication. media of and other argue high hour in the at this have to should That we *17 press rights of the day in behalf of civilization reporting obtaining unrestrictedly in speak and act astonishing. have decisions which After all the is news have been written, which the books rendered, been waged, the sermons which have been crusades been preached, lectures which have and the been have every press; witnessing after of the freedom on delivered almost freedom is day, press that every hour, on the living, breathing thing, constantly blossoming tree of it seems like tangible defending demonstration, the North Star to descant at on the need of a free length in press a free And democracy. appears yet, from time to time the most is attacked obvious truism and the most as a commonplace virtue is derided, and, one finds oneself consequence, defending integrity the multiplication love, of mother’s table, sanctity and the need of milk for growing children. can or should is the question press

Who that a free foundation of democratic institu- Anglo-Saxon very tions? in Amer-

“It is recognized England, Canada fact ica, every English speaking government, potent is one of the factors the establishment press of free an en- and maintenance known to governments civilization. The framers the Constitution lightened and of our States State were Constitutions, United this fact into these not unmindful of when wrote speech freedom of provisions guaranteeing instruments A free has never tolerated government and of the press. of free press speech. muzzling stifling held those who its freedom enjoy At it has only most, v. (Barton City for an abuse thereof.” answerable 173 So. 234 Ala. 626, 628; 20, rev’s’g 173 So. Bessmer, App. 413.) 27 Ala. people Americans are the best informed reason an un- the benefits of is that they enjoy in the world the best And the reason we have press. trammeled all by receiving in the world that, government based people intelligence American can, news, will for themselves what policy determine knowledge, of their freedoms and in the retention them serve best of their toward destiny progression further horizons opportunity. and broader welfare improved *18 press throughout today, there free the world Were population groaning of its would under one-third not be despotism. yoke history of of the bolshevistic The usurpation rights people tyrannical of the of during years country country twenty-five after the last press. history shackling muzzling is the and of the strangled If and Stalin had not Hitler, Mussolini, newspapers respective their free in their sub- realms, straight- jects goose-stepped, been could never have jacketed, whipped camps, and into war, concentration despair. and destruction, press society is

There is a civilized a free where newspapers necessary free schools. not as as Moreover, sup- degree beyond the mere serve the human race to a newspapers, plying of If there were no a decent news. people orderly demand creation. and would their News- vigilance papers daily are reminders that eternal life, passport happiness. safety, With health, is the hap- story every untoward accident, crime, unspoken preachment pening goes the that the reader unfortunate himself the fateful and re- could have been punishment, injury, cipient or of the sorrow related, temptation, had the same or been if he had succumbed to equally to be had allowed himself drawn careless, or pernicious to the circumstance similar one into a web engross depicted his atten- columns now newspaper is in its if a curtailed freedom tion. But present all means is not allowed to the facts, — pictures language extent reader to that is —the opportunity deprived be forewarned wreaking as forces bent on havoc as fortuitous, well evil, destruction. extraordinary Majority view of freedom takes press says: freedom “whether or not when it press such is since free- is here involved immaterial, subject seeking rules to reasonable maintenance dom dignity orderly court’s and the administration justice.” speaks When one of freedom of kind, naturally one intends freedom within reasonable rules *19 goes beyond because boundary what of reasonable- longer aggression. ness is no freedom but Freedom of press operation linotype is not restricted to the printing presses. press machines rotary and A needs print material raw like a flour mill needs wheat. A shop print meaning- without material to would be as vineyard grapes, less as a without an orchard without or a trees, lawn without verdure. press gather

Freedom of the means freedom to publish write news, and it, circulate it. it, When integral operations one of these is freedom interdicted, press Gathering of the becomes a river without water. photographing printing of news embraces of the news, reproduction photographs, photo- of the of the graphs newspaper. prohibit in the finished To the tak- ing photographs infringement is less no of free- press prohibit presence dom of the than to of a reporter. news photo part

The action has become as much a of the newspaper today reports. deny as the weather To newspaper pictures personalities reader on the day away paper. events of the is to tear one-half of Ms have become Pictures wedded to the written word every dissemination of the information in field of human endeavor. pictures (and may they may)

If taken be with and caution in church that no such care one feels that holy edifice has been the sacredness violated, prohibited why should be a courthouse? It is pictures fallacious notion that courtroom create dis- contrary respect The is true. Pictures for the law. being proceedings properly dig- which are of court only nifiedly increase confidence conducted can oyer place processes the lens To a blinder of the law. partially press every courthouse is to camera people right all of to know who have blindfold the temple justice. happening in the what Following II the whole world Avanted World War men about the had the to know and indeed know precipitating global charged conflict which beings and so unbalanced human killed 20,000,000 equilibrium brink still teeters on the of the earth to see the faces wished of annihilation. Civilization frightful engineered so catas- could have those who judges powers trophe. Inter- Allied photography agreed that Tribunal national War Crimes accordingly arrangements were made in order and placing Nuremberg for the of Justice at in the Palace *20 persons pro- and courtroom so that the of cameras interrupting photographed ceedings be without could procedure orderly slightest of the historical in the pictures came from to unfold. The Avhich about trials devising assist mankind means to Avill those cameras unprece- repetition prevent of monstrous and of the acts Nuremberg brutality at the trials. revealed dented judges Nuremberg I attest at can As one of photography way in no courtroom disturbed dignity procedure of the trials.

II. Opinion Majority in this case The advances the peculiar argument taking pic- that: “The of a rather person certainly of a called sentence does not ture public any as to material and serves facts, inform except pander purpose no to the lower tastes of some individuals.” object printing

The and when one inform, subject any degree is informed on stated ishe to that equipped particular adversary better to face battle for survival which never knows armistice. The Wesley had the to know about John Wable ordinary person. —for he nowas had He become the Pennsylvania Turnpike. consternation of the While lay asleep vehicles, truck drivers in the cabs of their parked refreshing highway, which were off the them- long journey selves for the and arduous still ahead, up this uncommon human creature on stole them and poured revolver fire into their heads in order to de- spoil personal money belongings. them of their and banditry In the execution of this macabre he killed two helpless hapless seriously and motorists and wounded public, knowing identity a third. The of this “phantom brutal him as kill- referred to assassin, many turnpike, er.” For of the motorists on the ter- bumpers ror rode the of their cars. No one knew phantom, dragnets where the had all who eluded spread by fog police, strike next. A would apprehension Pennsylva- mist of mortal hovered over newspapers thoroughfare. nia’s famous carried “phantom page killings”, front stories headlin- pic- ing illustrating type stories with those appropriate sensa- tures to the momentousness tragic tional events. telegraph

Finally, flashed on October wires 12,1953, Albuquerque, that a John Mexico, bulletins from New captured Wesley after a 30-mile auto- who Wable, *21 robbery, following the commission of mobile chase person pawn from ticket for a watch taken on his had killings. turnpike It also was victims of the one the pistol matched the calibre of his that the ascertained body of one of the. from the of a bullet taken calibre Pennsylvania. of this incriminat- Because in victims prisoner, plus ing the he statements made evidence, charged to and taken Westmoreland with murder was Pennsylvania, murder of County, for the to be tried F. had who been killed within the Harry geo- Pitts, of Westmoreland graphical confines County.

Public happenings interest these sensational crescendoed with the of Wable in arrival Pennsylvania, the and the looked to general public eagerly forward to trial of the attend expected which accused, they the intervention of their which through newspapers report would the intense court- story picture with the room drama about On March 1, 1954, ensue. had con- trial Some one hundred who began. persons, cast members the unconsciously become sciously had the the turnpike killings enacted story hand, and the later the were on capture killer, ready these were news- persons all testify. Practically his family, them were the defendant, worthy. Among the the counsel for the deceased truck family driver, the the and counsel for the prosecution jury, defense, had lived trial home Wable judge, the whose girl her at time of commission of the offense and led had information which both of whom given father, bro- pawn apprehension, to the defendant’s ultimate one the victims was ker the watch of whom records per- checked the police officer who pawned, sheriff and watch, deputy taining pawned participated New Mexico who officers from other State of Wable, Pennsylvania the chase arrest tire mark experts, ballistic experts, Police, trucks and had made pictures who photographer shootings. Many the fatal marks involved of tire in the newspapers been mentioned had these persons know wished to natural and it was only demean like and how would- they looked what of-the trial. rose on the stage as curtain themselves n disappointed. to be however, 'The public, a rule of County promulgated Westmoreland *22 forbidding taking pictures person court the connected with the case. figure

But the interest in as central Wable, the the was drama, not one as “lower tastes,” character- by Majority. ised the General human behavior was in- extraordinary important happening. volved in this represent particular type Did Wable being? of human guard against persons Should motorists be on such who looked like Wable? What did Wable look like? Vince reporter Pittsburgh Johnson, Post-Gazette and one of the defendants, testified: reason it [the “The extensively Wable case] so ivas covered is the case had top aroused national interest; issue as that, apprehend- to whether or not the correct man been had certainly important ed was to the motorists who used Pennsylvania Turnpike, very per- who have a would safety Turnpike. sonal interest in the It is for coverage given; that reason that extensive it is sentencing for that reason we continued to cover of Wable.” affirming decision of the Westmoreland

County Majority of this does Court, not offer why one substantial as to should reason Wable not have photographed. gained been What was to be shield- ing photographers? this convicted murderer from Hid- ing implied him from the cameras almost concealment mysterious Why from of some fact. this se- crecy? Secrecy, public importance where events of are always suggests suppression, suppression, involved, generates in its own rumors; and turn, rumors, planted suspicion eventually are the soil send plant perverted ugly forth the truth.

Addressing subject, Supreme very itself to this people Ohio has said: “The have being know what is done their free ob- courts, utmost freedom of servation discussion *23 is that public of tribunals consistent proceedings public truth and tends to the welfare.” decency (State v. 255.) 75 Ohio Hensley, of New the State

Only recently highest v. N.Y. People 56), York (December, 1954, Jelke, a the and the from public held excluding press of the criminal trial constitutes a nullification judicial or to a public accordingly defendant’s trial, mentions this dered new trial. The Majority Opinion to decision to dismiss it referring monumental only by in case another enunciated the principles but the case, dismissed People summarily. of v. Jelke cannot be said: “A variety of New York State Appeals of of pub to the principle of has been ascribed purposes af in is that of judicial Foremost licity proceedings. ad the individual to fording greater security to justice. inquisi contrast secret ministration a free alien to society, which are techniques, tional unjust persecu serves publicity safeguard against as him insuring an far toward goes tion of accused . knowledge he . . ‘The fair trial to which is entitled contemporaneous to subject criminal trial is every is effective public opinion review the forum . . Due power.’ . judicial abuse of possible restraint on trial demand to a rights public defendant’s regard lacking legisla valid certainly, at the very ed, least — the possible not deprived he be tive sanction —that press.” attendance benefits other observations than some More extraordinary in this case is Opinion its Majority made rooms and sardonically one which announces: “Court - trials entertainment, are not places court houses of. and. sadistic purpose satisfying are not had’ for. If sensationalism.” public seeking of the instinct out not then shut prevail,, why reasoning is type also bar Why all from courthouses? public people Legislature tlie doors halls of Congress, may always the halls of for there exist the possibility that the drama of the courtroom and the ex- legislative might citement of halls cause “some indi- regard “places Congress viduals” to the courts and as part of entertainment”? This censure on the Majority inis the nature of an indictment of the whole American because interest famous and im- portant is trials as intense as the desire follow the fortunes of baseball, football, basketball teams. It part knowledgeableness enthusiastic way American of life. *24 argument against public Majority par-

The the ticipation viewing proceedings in the of court is the argument days sought same which in ancient to defend proceedings, inquisi- star chamber sanctioned secret and authorized tions, rack, the torture and the which always operated beyond eye public. the of the in- Yes, why not deed, turn back the clock of civilization and give unappealable power judges? to Let no records be kept, photographic By process or otherwise. the public opportunity will never have satisfy their instincts —not for but for information sensationalism, supposed doing. as to what their servants are Opinion Majority To as the assume, does in this private prize fight that the courtroom a connection, is presided over a robed referee whose actions and de- subjected public scrutiny must not cisions be is to sight usurp lose of the inclination of human nature to powers autocratic where criticism is not left nothing history it. free curb There is to reassure citizen who is the concerned the for freedoms of his country affecting that decisions the welfare and des- tiny of Ms fellow-citizens, are arrived at secretly, tyrannical will rendered be free of tendencies egotistical absolutism. 280 Supreme Court of States originated United “The formidable that: utterance, quoted, already criminal trial is to con subject

knowledge every in the temporaneous public opinion review forum is an abuse possible judicial effective restraint on power.” subject Re On this 257) U. S. (In Oliver, Arizona Supreme spoke Court of also with wisdom: “. . . Protection from or arbitrariness oppression be its and the will courts, officers, prosecuting officer, as news assured so trained and long discriminating are at close paper reporters trial, keeping present done and critical watch of everything said, A publication press. larger purpose daily acquainted made with the salient facts public is it is through press even while trial, progressing, doors of open than to reach possible through 457) courtroom.” v. Ariz. (Keddington State,

III. lower decision, affirmation Court’s the American Bar Associa- 35 of cites Canon Majority con- in court should be “Proceedings reads: tion which taking and decorum. The fitting ducted dignity during court sessions room, of photographs *25 and the broad- or recesses between sessions, the court are calculated televising proceedings of court casting or of the proceedings, from the essential dignity to detract and create misconceptions . . degrade court, . in mind and should thereto

respect not be permitted.”

This was occasioned Canon, adopted felt all men of law over resentment properly which Bruno reigned at the atmosphere the circus-like One in on that Jersey. trial New Hauptman looking edified with the spectacle photog- had to be trial while bulbs about like flash leaping acrobats, raphers over lights glared, tripped witnesses klieg exploded, and broadcasting equipment, specta- electric wires deplorable periodically tors demonstrated. But this spectacle which startled the American Bar Association enacting typical into Canon 35 Courts melancholy of the United States. The breakdown judicial Hauptman strictly control in the trial was exceptional up one and should not be held as a general happened evil to be at combatted. What Hauptman trial could not and be would not today worthy tolerated name. photography photog- In is to the addition, raphy of 1935 what the modern automobile is to the Tripods, powder, Ford car T-model of 1915. box flash enveloping hoods are archaic. cameras, Small pocket capture images skillfully, cameras can now so unobtrusively, inaudibly subjects that the and sur- rounding persons are unaware that a lens has been photographic aimed and a lever has moved. Opinion Majority states that Colorado has a

Buie of similar to the one of Westmoreland County. may It be that at one time Colorado had such a if it but ever rule, existed has dissolved in the reappraisement photog- tide of modern of courtroom raphy. January year, of this Justice Moore Supreme acting Colorado on behalf of the entire Court, experiments hearings conducted Court, on the sub- ject of Canon 35 of the Bar American Association. On February Supreme Court of 27, 1956, Colorado adopted unanimously report, part Justice Moore's declared: “We are concerned with realities and conjecture. not with Canon 35 assumes fact to be that use of camera, radio and television instruments every must case interfere with the administration justice particulars above mentioned . . . For days six I listened to evidence and witnessed demon- proved conclusively assump- strations which that the *26 wholly tion facts as stated in the canon is without 282 photographs

support reality. At least one hundred stages hearing were taken at various which were printed All as exhibits. of them were and introduced or interference taken without the least disturbance exceptions, proceedings, one or two with with and, part knowledge my photograph any a without being taken . . . functioning “Only regular lighting at all times room room court in the court was used, proceedings adequate sunlight ordinary court would for lighting dignity require . . . The or deco- additional no (In not in the least disturbed.” rum of the court was Concerning 568.) Hearings P. Canon 2d 35, 465, Re extending hearings and demon- As a of these result Supreme lifted the Colorado strations, against photography and au- courtroom absolute ban judges to determine them- State thorized the what ex- own individual courtrooms, their selves photography radio as as well allow tent would broadcasting: thus “The broad discretion television ample protection against given affords the trial court of freedom of the constitutional abuses cooperative press, as to a effort between lead will press protect, preserve, judiciary and the justice upon process judicial portray the level of (In Hearings actually attains.” re Canon it to which 472.) supra, p. piece artillery formidable it is not Canon instinctively presence does not command Its once was. upon engender examina- Indeed, awe. it does not fear, something than martial ex- less to be it is found tion pression truth and unassailable incontrovertible exaggerates its calibre of logic. it In fact somewhat something more than factuality. For instance, photo- taking say that realism to unadorned dig- “from essential graphs detracts in courtroom *27 of the nity And proceedings.” it is rhetorical certainly magnification say could “degrade photography the Court and create misconceptions with respect theret o.”* This is being recognized more and more bench and bar of today. the American Bar Recently Association’s public relations chairman reported that a special committee is the canon and studying implied it would recommend a sharp modification.** United States General Attorney Herbert has Brownell, Jr., suggested the desirability “another look” at Canon 35. In Cleveland, thirteen Ohio, judges Cuya hoga bench County recommended to the American Bar Association that it re-examine the In Canon. the early part and while the year, present case pend in this ing Court, Judge Vincent A. Carroll Court Common Pleas of al Philadelphia County iov/ed pictures to be taken during important trial in his courtroom. on the he Commenting experiment said: “The photographers didn’t interfere the con with duct of the trial as much as coughing spectator section of the courtroom did.” Even reports today come in from Warren County Judge Alexander presiding there courtroom allowing pictures Flick of a trial in his robbery Court. The United States Appeals and the Federal District the District of Columbia have relaxed their rules for taking photographs allowing, courthouses, with the consent of the judges, photographing event other than a trial or in which a hearing judge of a court is presiding.

I have devoted this much time and space to discuss- ing Canon 35 because the only has wheeled Majority * up “broadcasting proceed: This connected of Court is. ings” which, supervision, unless done under could be strictest disconcerting.

[**] Pittsburgh Press, September 4, 1956. attempted support itsof decision. into action in legal point reality, if 35 had even Canon however, Pennsylvania, has it could not, which it effect on trains its fire This Canon touch the defendants. in this defendants in courtrooms but the cameramen threshold of the Westmoreland case did not cross the sentencing County to the Wable courtroom devoted defendant-photographers used December 1954. first and in the corridors of the *28 invisible cameras their pictures on the The of the courthouse. fourth floors prior courtroom) (floor taken of were fourth floor the presiding convening of and before the the to Court photograph- slight judge bench. The had mounted the ing had occurred after Court on the first floor separated floor from courtroom risen and was heavy layers beams, concrete, cement, three of steel possessed person Only of and marble. stone beams, imagination conclude that could a rather vivid functioning camera could inaudible of invisible, superincumbent through penetrate bar- this three-floor dignity not con- of a that was rier to disturb the Court empty sitting that in a courtroom vened—and and deserted. Opinion goes say, Majority on however, to pictures photographers take out-

if this Court allows prevent powerless them it will be side courtroom invading Ma- must read the from the courtroom. One jority’s language order that a twice in to be assured paralogistie so but here utter statement, could if we sustain their is: it must be conceded that “But infringes upon their of court rule contention press pictures rights outside [to of of take freedom the pow- would have no the court likewise the courtroom], pictures taking room court to forbid the er accompanied by disturb- no disorder or which were Majority might of the not dan- ance.” This statement so gle in mid-air if helplessly futilely the Majority would go explain further why cannot a, forbid the taking of pictures inside even courtroom, it would itself though declare powerless to forbid the taking pictures the courtroom beyond or outside the courthouse or in the public square.

The Pennsylvania General Assembly, which, is the only sovereign course, speak can for body has people State, spoken subject contempt court. Act of June 16, 1836, §23 784,17 §2041, P. L. power PS limits the courts inflict summary punishments to: contempt “III. To misbehavior person in the presence of the court, thereby obstructing the administration of jus- tice.” can

How there be an “obstructing administra- tion of justice” act when the complained of cannot be seen, heard, felt? The Sheriff of Westmoreland Bud Howard County, accompanied the Thomas, pris- oner Wable for the specific purpose his preventing *29 the being photographed. AH end of the he journey he had Ms thought accomplished What purpose! more effective conld there be testimony that the photograph- of the defendant ing was done without misbehavior?

The from Ex Parte Majority, quoting Savin, , session, S. “. . U. the at least in 280, says: when Court, in present part of the every place set apart its own for the its use of use, officers, jurors wit- nesses and misbehavior ; such is mis- anywhere place behavior presence of the court.” But where was there session of the And any where was there Court? misbehavior? Braden sheriff any who Leasure, deputy was at Wable’s side when the inaudible clicked, cameras “Q. testified: When off the you came got bridge, onto on the corridor the first did notice floor, you any around there? A. There on people were the first people had Q. that didn’t notice sure. You anybody floor, any A. I didn’t see taking pictures? who were cameras Q. com- unusual sir. Did notice you any cameras, no, A. I didn’t no, any Oh, or disturbance of sort? motion Q. the pris- When you brought disturbance. see any long rotunda, from the into the court room oner com- notice any fourth did floor, you corridor on the Q. brought A. kind No. When you there? motion any did first the stairs to the floor, down him downstairs, A. was There unusual commotion there? notice you any watch a around rotunda people gathered lot that’s see the prisoner, wanted to down; him going I Q. A. didn’t kind? disturbance natural. No disturbance, that there was no we see see Thus any.” not And certainly cameras. no visible commotion, no ob- there the misbehavior. whisper Where administration of justice? struction of the the- seems to Opinion proceed The Majority though even many citation of authorities, ory facts to the not applicable because entirely irrelevant, to its con- substantiation legal will supply this case, Rules from the Federal Thus, quotes clusions. Supreme promulgated Procedure, Criminal “The taking photographs States: of the United pro- judicial during progress court room How court.” permitted . . shall not be . ceedings and admitted by has demonstrated, it been often in this case were the photographs Majority, taken during prog- and not courtroom taken judicial proceedings? ress

. the ir- accentuating Majority Opinion, again . “. . emphasising extraneous, says: relevant *30 adopted has Rule 223 Pennsylvania this Cburt has of stat- of which effect a Procedure, Rules Civil the trial actions provides: and which ‘During ute, of court, the. of prohibit taking photographs shall and the. pictures the transmission and in the court room motion telephone, by telegraph, radio communications of no case at bar, room.” or from court But “during photographs of actions”, the trial taken were communications there was “no transmission or telegraph, telephone, from in or or radio court room.”

IV. Majority says was “entitled The further that Wable right privacy,” safeguard, to the of his individual duty protect that the him a to lower Court owed press rights by him Ms as well from “invasion of public” But of the court”. since “he was a ward as prosecution, and Wable was defendant a murder speak speak privacy is trial at privacy in a window. show striking most most vital feature indeed very fact that

a criminal trial America is the pri- public. the basis defendant’s If, reporters vacy, photographed, then he is to be prohibited describing from him in written should be language, experienced can a skilled and writer because revealing picture as often draw can be a word press photograph. be should also as a artists Thus, pen-and-ink prohibited drawing ac- sketches of an from cused.

Bights privacy, many rights, like so are relative. community Everyone orderly lives in an is called who prerogatives upon relinquish in ex- certain inherent change great his would not be benefits which against primitive in a or hermitic state. Protection citi- the returns the violence are fires, floods, robbers, Society, enjoys Human In- his investment in zen from party litigants corporated. I Nor do believe that privacy expect their the isolation and witnesses -they may They dis- a courthouse. when enter homes- *31 288

like as being photographed dislike may being but that in instance cross-examined, they know their business is the public’s business and the public has the is right know what One can- transpiring. not stand at the crossroads of the world and expect solitude of a cloistered cell. The United States Court of Third on this de- Appeals, Circuit, speaking subject, in clared that one’s “interest alone” is “over- left being balanced in interest general public being kept informed.” F. v. Pub. 192 2d (Leverton Curtis Co., 976.) 974,

Where one becomes subject of legitimate public of his name or does not interest, printing picture constitute an actionable invasion of the of right pri- In the case vacy. of v. Berg Minneapolis Star .

Tribune 79 F. sued Supp. plaintiff Company, of a owner the news- newspaper, contending had invaded his paper rights a privacy by printing him picture of taken a in divorce during hearing pro- which he had instituted his ceedings wife. The against States District held that (Minnesota) United his lacked merit: complaint plaintiff “The does not contend that the article the photograph accompanying in an inaccurate or distorted presents picture any way Nor is it proceedings. contended that the pic- him in ture other than the normal or depicts light any natural other if the item pose. news con- words, news the seems picture stitutes legitimate entirely ap- If cor- to the news. propriate court, therefore, the news the defend- holding published rect ant constitutes regarding custody proceedings and it would news seem that no other legitimate item, situation, be entertained under the view- can admitted picture it must follow that the publishing Berg’s indicated-did not violate right pri- the.nmnner . . . note law writer vacy^-which,the may. .afford L.B.A. article the sub- who covers extended right page ject privacy, 'it 78 that states on publication person’s or is settled that name picture in connection with news historical event legitimate an ac- interest does not constitute privacy’.” tionable invasion of the *32 unwillingly, willingly an be- When or individual, part public rights privacy of of de- his event, comes proportion rights public know crease to the of the to transpired. derogation his has This is of what not privileges, of but in defense the welfare constitutional part. per- public, integral is an The which he injured unfortunately is in a railroad accident son who complain photo- may legally the camera not because sweep graphing the includes him in the of its event The man has the to be robbed who misfortune lens. unwilling part has en- an event which becomes an right photo- public to realm. be into His tered superior public right graphed must bow to the protection protected; part of well to be that could help photography for and can in the search lie apprehension man who himself of the robber. The implicated object being in crime to has been cannot object being any photographed more than can to he questioned police finger-printed, if in- and, develop though being it should even dicted, tried, eventually ac- A one who has he is innocent. fortiori, part tually of crime becomes been tried and convicted right public he no has business State public picture more than from his to withhold public story of his crime. withhold from the he can being Suppose taken while a defendant fry to him, seize a mob should a courtroom, or from circum- hold under those intend to this Court does Suppose, pictures, while be taken? no could stances . courthouse, a through prisoner:Js the. transít in.. stairway collapse, fire should break out or a would required signatures cameramen be first to obtain of all persons picture in the scene before could take a public which would inform the and the authorities of happened calamity? the threatened or Ky. In the case of Jones v. Harold Post Co., 227, Supreme Kentucky Court of said: “There are times, willingly when whether or becomes however, one, not, general an actor in an occurrence of interest. place, emerges When takes he from his seclusion, privacy pub- and it is not an his invasion of photograph lish his account of such occur- rence.” Supreme in the citation al- Colorado

ready (In Hearings Concerning referred to re Canon 465), speaks rights privacy 2d 296 P. under uphold Canon 35 as “To follows: Canon 35 *33 ground prevents that it a violation of the individual’s ‘right privacy’ repudiate provision would be to by of our rule of and make effec- to court, constitution prior upon publish, tive the restraint al- freedom though prohibits expressly the constitution such re- by clearly indicating remedy straints for abuse that the right publish of the constitutional ‘whatever he will any subject’ publisher ‘responsi- is that the shall be liberty.’ ble for all abuse of that can it How be con- prior upon imposed tended that the restraint conduct clearly is valid the constitution in- canon when ‘right pri- remedy for abuse of the dicates 470). (p. vacy’ compensatory character?” must be in its England Newspaper v. In the of Themo New case Supreme Publishing 306 Mass. 54, 58, Co., present require not Massachusetts said: cases do “The right privacy recognized any us to decide whether If exists, the law of this Commonwealth. having protect his his like- does one from name

29Í appear newspaper legitimate ness there is when experiences, interest in his his existence, his or his acts.” words,

Perhaps proposition startling the most in the Ma- jority’s Opinion in the case at is the inference that bar, protected privacy Wable’s had to be because possibility might it was within the realm of that Wable Majority points later be found innocent, for, out, prove many “it needs no citation of cases to in- persons guilty nocent have been found and sentenced upon charges, criminal and later released when their guilt freedom from has been established.” This solici- part Majority tude on the seems to me to be a wholly precaution. protection unnecessary All the against publication picture the world of Wable’s be of will little avail him. He can be released never prison. from

Wable is dead.

Wable was executed and his bones have been buried deep ground he stained with the blood of the uttering victims he killed. I refrain cannot from at juncture the observation that it must come as a surprise public, to the if not a to learn that after shock, rendering the decision which authorized Wable’s elec- Majority suggests possibility trocution, now might conceivably that Wable have been innocent. participated Since I in the decision which affirmed degree, Wable’s conviction of murder the first I equivocation hasten to state without that not thin- *34 my nest of a shadow doubt crosses mind that Wable premeditated guilty long was murder and so that, part capital punishment as remains of the of the law richly he he deserved what received. land, justice There can be no certain decision un- meeting is a of the minds on the facts. The less there stranger Majority in this is a decision case justice premise because it is based which has no Majority factual existence. The asserts that the rule “dignity of the Court below was instituted for the the court and the decorum of trial.” But the defend- dignity ants here did not nor disturb the of the court, did disconcert the decorum of a There trial. day photographers appeared, no trial on the and, already as did enter defendants not once stated, Majority arguing the courtroom. is for a Thus, dignity spiritedly never ruffled and defend- which was jostled. ing a decorum which was never As heretofore pictures judges did not know were declared, being repeatedly as taken. asserted this fact, exception photograph- Opinion, no with the one, op- ers were aware that cameras had themselves, been erated.

y. Up point 1 to this have discussed the merits of this rights as but case insofar substantive are concerned, declaring a more momentous reason for there even decision here monumental error. That the Court’s points gaping to a niche which should never be reason namely, in a fairness. A left unfilled Court’s decision, judgment which overlooks elements of tribunal’s dealing respect square can never achieve the which adjunct inseparable any adjudication be an should being stig- The defendants this case are in the law. punished for an Act in- matized which and authorized. vited February

On 25, 1954, Pleas, Courts Common Oyer Quarter and Terminer and Jail Sessions, General Delivery County promulgated of Westmoreland an or- prohibited photographers ap- der in effect from proaching entering jail the courthouse or of West- County. application moreland The strict of the order

293 meant Westmoreland would County pictorial be denied embraced within news heretofore purview newspaper service. The Tribune Review and the Company Publishing Post-Gazette decided to test the Pittsburgh workability of the order and sent to the photographers accordingly principals courthouse to take Greensfourg pictures in the trial. The witnesses Wable Sheriff West- moreland halted the and ordered photographers County them He deposit their cameras his office. also them that attempt part warned on their defy ban result in dire photographic consequences would to them. Confronted with this stone wall in the legal State court to which could for relief only apply turned to the Tribune Review Publishing Company Federal denial of due of law. averring process courts, under the Act of provisions Congress Acting pub- June 1948 (28 Greenburg U.S.C.A. 25, 1343), Post-Ga- joined Pittsburgh later lishing firm, as petitioned zette United intervening plaintiff, for a States District Court of Western Pennsylvania order to the Sheriff of Westmore- prevent restraining of the or- land from the restrictions enforcing County order issued der in A question. restraining temporary The Sheriff then made a motion the same day. on this and, dissolve the restraining order, Court an extensive the District went into

issue joined, were on the matter. Numerous witnesses hearing taken were nearly pages testimony heard, phase controversy. on every speak- Court, March the United States 1954,

On directed ordered, through Judge Chief ing Gourley, be in this court stayed and decreed that “proceedings to be brought determination of proceedings pending Supreme promptness with reasonable adjudicated legality to have Pennsylvania order or issued regulation the Courts of Westmore- land County.”

With promptness reasonable the Tribune Review *36 its Publishing Company, publisher David W. applied to this for Mack, Court a writ of prohibition against of the judges Courts Westmoreland on the that County ground their rule of court contra- vened the of the rights petitioners under Article Sec- I, tion 7 of the Pennsylvania and under the Constitution, 1st and 14th Amendments to the Constitution of the United an States, being abridgement rights to freedom of petitioners and of speech press. The of the Courts of Westmoreland judges filed County petition answer for the writ of prohibition and both sides then prepared, published, presented to this extensive briefs on Court the question at issue. The Pennsylvania Newspapers Publishers Association as an additional intervened and filed party plaintiff brief. The National Press Photographers Association, as amicus filed a acting brief. The curiae, case was to this in an Court oral presented argument which lasted or five hours. four the petition

On June for a 29, 1954, writ of pro- hibition was not because of dismissed, lack of merit any in in behalf petitioners’ argument of freedom of this press but no because, said, justiciable was involved the lawsuit. question the dis- However, missal not it did not conclusive; close the books did not on the it seal the controversy; Court’s judg- ment. It fact the petitioners invited again. try “Such The announced: dismissal Opinion made with- as to the merits of the question out prejudice presently consideration raised or future thereof if presented case.” a proper order to reassure the petitioners that this Court stood to re-hear the ready matter, emphasized Opinion: petition is dismissed at end of the “The prejudice.” without But even before these written re- question effect the final re- assurances to the that had been dur- made, mained oral overtures undecided, ing argument, by one or two members bench petitioners if or others their behalf chal- lenged directly, and this chal- lower Court’s rule lenge by prosecution, Court would was followed ques- then welcome the determination of the undecided present Opinion from the tion. writer stated approve of such a bench at the time that he did procedure implied the Law itself was because precepts. invoking own Furthermore, a violation of its necessity All another lawsuit. the in- he saw no adjudication gredients were at hand. for a definitive *37 Bule con- Even had formulated the the Court which a final on the Buie ceded that the elements for decision present in June, us 1954. were when case was before attorneys, speaking through In their their brief, Quar- majority Court of of CommonPleas, Court Oyer of West- of and Terminer ter Sessions and Court “The County Sheriff said at the time: moreland County by to the Court instructed Westmoreland prevent Buie of of the said enforce the violation day . W. . . David of March, 1954, On the first Court. causing petitioners this after case, in one of the Mack, acquired the intention, to notified his Sheriff be Pyle, photographer, J. and accom- Castle services County court house panied him to the Westmoreland validity purpose testing said Buie for the the Sheriff to enforce and the of Court Pyle J. David W. Mack and Castle said same. The attempt they by that should the Sheriff were advised during photographs ses- in the court house take to of court, sessions between or the recesses sion of court mould they apprehended be and taken the court before ” appropriate action for required? Pyle’s What more was Was camera be body prison smashed and his into cast before the action ripe adjudication? be would When the Sheriff Pyle attempted picture, warned that if he to take a he punished, being be would there came into a fait ac- compli required upon peti- this suitable Court, prohibition tion, decide whether a writ of should or against charged should not issue the Court with violat- ing rights. constitutional majority of this Court said in that June, 1954, originate County

a new case should in Westmoreland might so that this Court have the benefit of the views of the Court which had authored the controverted Rule of Court. But to ask for the views the lower Court seeking in this matter was like owls Athens. That already spoken decisively unequivocally, had Court my both words deeds. It is earnest belief that County the Westmoreland Court not have would im- posed the sentences entered this case were compelled it felt do so this Court’s decision in promul- 1954. The Westmoreland June, had gated petitioners its Rule it had warned Court; they punished. if violated would be it, But, thing its effect said that one decision, required: penalty imposed more was had to be before *38 jurisdiction. take could Certainly nothing way was else needed the of in- argument. sup- The formation Court below had plied 39-page pages a brief. had We the benefit of 300 testimony in the United States as well taken Court Opinion 41-page Judge as the exhaustive Chief that-any- It is in that Court. inconceivable Ootjeley parties thing by the more could added have been Neverthe- or citation authorities. testimony way should return petitioners that the less this ruled Court the path and travel place again starting to the now lead to the were. place would they recommenda- petitioners The followed Court’s In an tion. David W. Mack himself arrested. got this six desires, abundance of Court’s acquiescence others of submitted themselves the Fourth Estate also test enlighten satisfied that would arrest, its situ- newspaper profession rights what were of being legalized ation of this kind. however, Instead, volun- experiménteos a court-authenticated test, contempt criminal teers found convicted of themselves and imprisonment plus pay- sentenced five days’ cleared away ment fines and costs. When the smoke assur- to this with the undoubted appealed Court they sug- had been ance that since had done what they only would be reversed this the convictions gested by Court, constitu- on the legality world informed Rule 8984. No. tionality affair came before

On the whole January 13, 1356, told tale was this The again. many-times-told been pre- which had again. once same arguments expounded again made were attorneys viously had been pre- at the same situations which length, But explored. more examined were once viously decision, to render time willing announced. It has af- has been decision today has modified however, firmed the It, conviction. lamb by to the shorn It tempered

sentence. wind the teeth punishment from the extracting gale of this the Ma- grace, explanation imprisonment. “these are cases.” Test’ of the Court says jority of sav- purpose cases for these cases test But if are test to be have prison, from ing the defendants *39 cases for the purpose from relieving not them, only the payment of fines and from but costs, judgment of guilt which, republic honor and reputation, can be as hurtful to the as a spirit few days’ imprison- ment can be to the A test a body. cannot be half-test. It either is a whole test or it is not test at all. It cannot be half-test and half-defiance. It cannot be half-amicable half-bellicose.

The Court’s modification of the sentence is damning with faint The defendants are leniency. entitled to acquittal. less outright than that Anything is, my a reflection on this estimation, tribunal. The defend- ants are not criminals nor have done they anything for court or suggestive contempt law. are men They of excellent name and committed no reputation, they or civic. legal, moral, performed an They act offense — of public service. They where there sought light asked for darkness, clarification they where there was petitioned ambiguity, they determination of their constitutional rights. worked with the They law, against law.

At the time the pictures were William taken, Block, publisher of the Pittsburgh Post-Gazette said: “Cer- no one wishes to interfere tainly with the orderly pro- cedures of the courtroom or detract from any way of the court.” David dignity publisher W. Mack, of the Greensburg Tribune-Review Publishing Com- said: “The pany, picture was not taking done thought- but lessly thoughtfully.” The other defendants acted and decorum in dignity accomplishment their mission. designated caused no They disturbance, no offended they. person, no displayed attitude disdain for suggestive contempt the Court. hearing

At the Westmoreland County April no 32, 1955, verdict criminal contempt would have *40 prosecution’s presentation possible of been tes- witnesses alone. None of the Commonwealth case pictures. taken It was that the defendants had tified made defendants themselves which the candor of the possible of the the nar- the reconstruction whole event, culminating clearly so revealed that the rative of which episode urging a test of this the result Court’s For this now to declare the defendants case. Court contempt, guilty on the of criminal when acted judgment of the is to write Court, recommendation insensibility bearing parchment the seal not on a injustice. justice but of

VI. entrap- guilty stand is To let this verdict to avow constitutionally government may agency ment. No law-abiding perform induce a citizen to an act which prosecute illegal government intends to as an act. Supreme has said The Court United States contrary policy, that “it is unconscionable, punish and to the established law of the land to a man for the commission of offense of the like of which guilty, thought either in or in he had never been deed, evidently guilty have if never would been inspired, persuaded, had officers of the law not incited, attempt ( and lured him to to commit it.” v. Sorrells 444.) highest S. court United U. States, that “the in the land said further Government cannot permitted guilty that he [the accused] be contend government officials of a crime where are the in- stigators conduct.” of his entrap- consciously

That this did not intend clearly configuration etched ment does alter entrapment. picture being ren- The decision pronounced today by could have been this Court dered question legal 1954. The which was eventu- in June, be passed ally upon was as obvious as the morning sun from the inception very All controversy. that has followed since the summer of 1954 could have been avoided this Court. When the Westmoreland Court announced its Rule in County February, 1954, and the rights of the defendants had obligations taken concrete form. It was for them to unnecessary subject themselves to criminal in order to proceedings have those If rights obligations adjudicated. Westmoreland Rule of County Court, Court had, by from prohibited general public the court- entering could have intervened to house, certainly *41 strike down so unconstitutional a obviously ban.

fact that the ban was less than a something wholesale does not lessen the this prohibition power of Court to determine the of the rule constitutionality actually This has pass made. Court ac- duty upon any tion of a lower Court which with charged jeopardiz- the constitutional We have ing rights people. so declared times. many

The Tribune Review Publishing Company, publish- at seat of newspapers Westmoreland ing county had for taken in about years photographs County, courthouse in Greensburg. Suddenly right was It was not asserted that public voided. se- anywhere or morals public dictated the curity, health, interdiction. photographic Depriving newspapers affected the photographic privileges prop- materially of the OAvners. on that score erty rights They were, entitled to due of law process determina- alone, as to question tion of the whether confisca- illegal had taken place. tion

In the writ of refusing prohibition requested in said that this Court “cannot undertake 1954, June, adopted or edit rules courts of inferior by ju- to revise unless and until their their application risdiction —not application -gives right to but their actual threatened — subject appellate grievance remedy.” review and get application,” In order to the “actual newspaper photographers asked were the for, Court brandishing required by undertake their violence in the face of the Sheriff of Westmoreland cameras County standing by guards admonitory who was deputies? threatening Did this need upheaval upon passing of an as a basis for kind rights of citizens of the States? constitutional United This has never said before that it could not charged intervene where lower Court with abus power. ing In fact it has on numerous its occasions just contrary. Carpenter to the the case of declared Laird, v. Pa. town we said: “The Coal &Coke Co. power controlling action of inferior courts is so comprehensive general and that it has never lim been prescribed procedure by par forms of ited employed ticular nature of the writs for its exercise. pointed may out that It further be Article section V, permits expressly 3 of the the exercise Constitution original jurisdiction in cases of manda this Court prohibition jurisdiction, mus to of inferior courts counterpart only is the exact mandamus, differ *42 being things commands ence that the latter certain to prohibition doing forbids the be done whereas of cer things ought not to be done.” tain which necessary past, in the It has not been where a lower illegal threatened an or unconstitutional act, Court subject had to himself to the threatened that citizen pro illegality this could order a before Court writ of power. of constitutional to restrain abuse hibition peti Pa. this Court, In Petition, 60, Park’s prohibi attorney, issued a the district writ of tion of assignment County judge prevent the of a to Court tion Oyer and Terminer in in the Court of Al- hold court legheny In the County. case of Communist Pe- Party 365 Pa. this tition, Court issued a 549, Writ of Pro- hibition Quarter an order of abating Court Ses- sions of Allegheny County which had padlocked premises Communist Party Pittsburgh.

McNair’s 324 Pa. Petition, petitioning mayor obtained an order from this a Court prohibiting grand jury investigation.

In the of Carpentertown case Coal & Coke Co. v. 360 Pa. this Court that: “It Laird, 94, supra, explained writ does seek prohibition] relief from any [the alleged wrong threatened an adverse indeed it by party; is not a private between proceeding at all but litigants between two a solely courts, superior an inferior, the means being former exercises by superin- tendence over the latter and it keeps within the lim- its of its and jurisdiction.” rightful powers has

Over over Court made clear that if a exceeds its lower Court Writ of Prohibition power, it will be utilized to back to its bounda- bring proper “There has been the limita- jurisdiction: always ries to make rules power tion on this for the [of of its rules of court must transaction business] law or unreasonable ... A court not be contrary divest itself of a which is duty placed cannot rule ... Nor can a rule divest a citizen of law upon Corp. America v. Primos (Equipment legal right.” 435.) 285 Pa. 432, Vanadium Co., heed its had own authorita- given If this Court have declared in it would June, 1954, utterances, tive Westmoreland Hule of County controverted or unconstitutional —and that was constitutional how- litigation. Instead, have terminated would it, the issue before squarely brought deciding ever, for further de- proceedings by the way paved the Court whether “Any action, stated: as already claring, *43 nature of contempt proceedings otherwise, to test brought of the rule validity complained of, should be initiated the court of its authorship.”

This later Court that acknowledged had author ized the when the stated test, Majority May 25,1955: order of this “The court in the Tribune case . . . held there was nothing justiciable before us for deci petition dismissed the sion, without prejudice, sug that a test proper case gested be might presented.”* It is add unnecessary suggestion highest Court of the Commonwealth implies as much an obedience as did the invitation of the monarchs of old. And that this Court then accepted the present case as the test it “suggested” is estab conclusively lished its also statement, made on 25, 1955: May “A test case has since been instituted and decided in Common Pleas of Westmoreland County, has been appealed to our court, will be argued at the Fall Session of the court in Pittsburgh.”**

That “test case” is the one before us now. The de- fendants followed this faithfully Court’s instructions, acted to they “test the of the rule validity complained initiated the of,” they proceeding “the court of its as authorship.” And, consequence, are being branded of violation Court, of law. This is the I have strangest procedure witnessed in all my many at the law. years

In a filed in pleading Dauphin County of Common Pleas on December D. 8, (1 & 2ndC. following statement in connection

535), appears awith related to the over West- proceeding controversy Rule of moreland Court No. 6084: “At the con- County sultation on November re- 9, Chief Justice 1954,

* Eldredge, Musmanno, Appellant v. 167, 382 Pa. 169. ** Appellant Musmanno, Eldredge, v. 382 Pa. 169.

304- membership he had lated to the entire of the Court that an amicable ease be- made several efforts have test gun County. he had in He stated that Westmoreland spoken petitioners and he related counsel judges of that he had had interviews with various also subject County ami- on the the Westmoreland bench or test It was stated further that one cable action. present inter- Justices at the more the other were County judges." view with the Westmoreland This or between members conference conversation present present) (the writer was not of this Court County further members Westmoreland pro- “testing" nature whole demonstrates ceeding. question Opinion Majority answer the

The fails to anyone suggest followed itself to who has which must two-year-old litigation, this over the vicissitudes of namely: Why court has this affirmed rule of rights pub- definitely abridging the while which, public? Where liberties are meets no need of lic, purpose overriding any way, an in there must be limited danger met, is the that is to be But where to be served. where threat is to be is the confronted, where the evil to be faced? affirming which this Court is of Court Rule County, Pennsylvania. Allegheny anomaly In an in

is exceeds that of Westmore- court business where the permitted any- photography by many is times, land’s except actually in in courtrooms the courthouse where Nor in there restriction court session. moving

photographing to and defendants from court. largest county Philadelphia, in Common- pictures may be without restraint taken wealth, City Hall which houses most of the Phila- corridors of Superior Supreme delphia as the as well courts, Pennsylvania. Courts approve can

How this Court county a rule in one counterpart which has no in the other counties? On logic, justice what foundation may law, abstract judgment pronounces this Court build a the de- guilty contempt fendants this case of criminal County performed Westmoreland when others who the. Philadelphia same acts and Warren Counties suffer legal penalty? no What makes a wholesome test in County illegality Westmoreland while a similar test Philadelphia County Lawyers is free of taint? *45 lay expect citizens consistency have the to in the consistency present Where is law. there the harmony state of affairs? Where there the of deci- symbolize jurisprudence sion which should of a Commonwealth? unjust punish

I submit that it is most these de- cooperating highest fendants for with the Court in the As Commonwealth. wise as are the defendants in the being experienced ways newspaper life, would men, Supreme never have occurred to them that the preservers not stand would with life them save urged in the event that the had been ice, might weight. under have broken their test, judges proclaim- immemorial From time have been ignorance ing of the law is no excuse for its viola- history but this will be first time tion, punished men our revered Commonwealth where can be following judges. the instruction of 1 dissent to the ultimate.