314 U.S. 252
BRIDGES
v.
STATE OF CALIFORNIA.
TIMES-MIRROR CO. et al.
v.
SUPERIOR COURT OF STATE OF CALIFORNIA, IN AND FOR LOS ANGELES COUNTY.
Nos. 1, 3.
Reargued Oct. 13, 1941.
Decided Dec. 8, 1941.
[314 U.S. 252, 253] Messrs. Osmond K. Fraenkel, of New
York City, and A. L. Wirin, of Los Angeles, Cal., for petitioner Bridges.
[314 U.S. 252, 255] Messrs. T. B. Cosgrove and John N.
Cramer, both of Los Angeles, Cal., for petitioners Times Mirror Co. and
another.
[314 U.S. 252, 256] Mr. Allen W. Ashburn, of Los
Angeles, Cal., for respondents Superior Court Los Angeles County.
Mr. Allen W. Ashburn, of Los Angeles, Cal., for respondent State of
California.
[314 U.S. 252, 258]
Mr. Justice BLACK delivered the opinion of the Court.
These two cases, while growing out of different circumstances and
concerning different parties, both relate to the scope of our national
constitutional policy safeguarding free speech and a free press. All of the
petitioners were adjudged guilty and fined for contempt of court by the
Superior Court of Los Angeles County. Their conviction rested upon comments
pertaining to pending litigation which were published in newspapers. In the
Superior Court and later in the California Supreme Court, petitioners
challenged the state's action as an abridgment, prohibited by the Federal
Constitution, of freedom of [314 U.S. 252, 259] speech and of the press, but the Superior
Court overruled this contention, and the Supreme Court affirmed. 1 The importance of the constitutional question prompted us to grant
certiorari. 309 U.S. 649 , 60 S.Ct. 807; 310 U.S. 623 , 60 S.Ct. 1098
In brief, the state courts asserted and exercised a power to punish
petitioners for publishing their views concerning cases not in all respects
finally determined, upon the following chain of reasoning: California is
invested with the power and duty to provide an adequate administration of
justice; by virtue of this power and duty, it can take appropriate measures for
providing fair judicial trials free from coercion or intimidation; included
among such appropriate measures is the common law procedure of punishing
certain interferences and obstructions through contempt proceedings; this
particular measure, devolving upon the courts of California by reason of their
creation as courts, includes the power to punish for publications made outside
the court room if they tend to interfere with the fair and orderly administration
of justice in a pending case; the trial court having found that the
publications had such a tendency, and there being substantial evidence to
support the finding, the punishments here imposed were an appropriate exercise
of the state's power; in so far as these punishments constitute a restriction
on liberty of expression, the public interest in that liberty was properly
subordinated to the public interest in judicial impartiality and decorum. 2 [314 U.S. 252, 260] If the inference of conflict raised by the last
clause be correct, the issue before us is of the very gravest moment. For free
speech and fair trials are two of the most cherished policies of our
civilization, and it would be a trying task to choose between them. But even if
such a conflict is not actually raised by the question before us, we are still
confronted with the delicate problems entailed in passing upon the
deliberations of the highest court of a state. This is not, however, solely an
issue between state and nation, as it would be if we were called upon to
mediate in one of those troublous situations where each claims to be the
repository of a particular sovereign power. To be sure, the exercise of power here
in question was by a state judge. But in deciding whether or not the sweeping
constitutional mandate against any law 'abridging the freedom of speech or of
the press' forbids it, we are necessarily measuring a power of all American
courts, both state and federal, including this one.
I
It is to be noted at once that we have no direction by the legislature
of California that publications outside the court room which comment upon a
pending case in a specified manner should be punishable. As we said in Cantwell
v. Connecticut, 310 U.S. 296, 307 , 308 S., 60 S.Ct. 900, 904, 905,
128 A.L.R. 1352, such a 'declaration of the State's policy would weigh heavily
in any challenge of the law as infringing constitutional limitations.' But as
we also said there, the problem is different where 'the judgment is based on a
common law concept of the most general and undefined nature.' Id., 310 U.S. at
page 308, 60 S. Ct. at page 905, 128 A.L.R. 1352. Cf. Herndon v. Lowry, 301 U.S. 242 , 261-264, 57 S.Ct. 732, 740-742.
For here the legislature of California has not appraised a particular kind of
situation and found a specific danger3 sufficiently [314 U.S. 252,
261] imminent to
justify a restriction on a particular kind of utterance. The judgments below,
therefore, do not come to us encased in the armor wrought by prior legislative
deliberation. Under such circumstances, this Court has said that 'it must
necessarily be found, as an original question' that the specified publications
involved created 'such likelihood of bringing about the substantive evil as to
deprive (them) of the constitutional protection.' Gitlow v. New York, 268 U.S. 652, 671 , 45 S.Ct. 625, 631.
How much 'likelihood' is another question, 'a question of proximity and degree'4
that cannot be completely captured in a formula. In Schenck v. United States,
however, this Court said that there must be a determination of whether or not
'the words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive
evils.' We recognize that this statement, however helpful, does not comprehend
the whole problem. As Mr. Justice Brandeis said in his concurring opinion in
Whitney v. California, 274 U.S. 357, 374 , 47 S.Ct. 641, 648: 'This court has
not yet fixed the standard by which to determine when a danger shall be deemed
clear; how remote the danger may be and yet be deemed present.' [314
U.S. 252, 262] Nevertheless,
the 'clear and present danger' language5 of the Schenck case has afforded
practical guidance in a great variety of cases in which the scope of
constitutional protections of freedom of expression was in issue. It has been
utilized by either a majority or minority of this Court in passing upon the
constitutionality of convictions under espionage acts, Schenck v. United
States, supra; Abrams v. United States, 250 U.S. 616 , 40 S.Ct. 17; under a criminal
syndicalism act, Whitney v. California, supra; under an 'anti-insurrection'
act, Herndon v. Lowry, supra; and for breach of the peace at common law, Cantwell
v. Connecticut, supra. And very recently we have also suggested that 'clear and
present danger' is an appropriate guide in determining the constitutionality of
restrictions upon expression where the substantive evil sought to be prevented
by the restriction is 'destruction of life or property, or invasion of the
right of privacy.' Thornhill v. Alabama, 310 U.S. 88, 105 , 60 S.Ct. 736, 745.
Moreover, the likelihood, however great that a substantive evil will
result cannot alone justify a restriction upon freedom of speech or the press.
The evil itself must be 'substantial', Brandeis, J., concurring in Whitney v.
California, supra, 274 U.S. at page 374, 47 S.Ct. at page 647; it must be
'serious', Id., 274 U.S. at page 376, 47 S.Ct. at page 648, 71 L.ed. 1095. And [314
U.S. 252, 263] even
the expression of 'legislative preferences or beliefs' cannot transform minor
matters of public inconvenience or annoyance into substantive evils of
sufficient weight to warrant the curtailment of liberty of expression.
Schneider v. State, 308 U.S. 147, 161 , 60 S.Ct. 146, 151.
What finally emerges from the 'clerk and present danger' cases is a
working principle that the substantive evil must be extremely serious and the
degree of imminence extremely high before utterances can be punished. Those
cases do not purport to mark the furthermost constitutional boundaries of
protected expression, nor do we here. They do no more than recognize a minimum
compulsion of the Bill of Rights. For the First Amendment6 does not speak
equivocally. It prohibits and law 'abridging the freedom of speech, or of the
press.' It must be taken as a command of the broadest scope that explicit
language, read in the context of a liberty- loving society, will allow.
II
Before analyzing the punished utterances and the circumstances
surrounding their publication, we must consider an argument which, if valid,
would destroy the relevance of the foregoing discussion to this case. In brief,
this argument is that the publications here in question belong to a special
category marked off by history, a category to which the criteria of
constitutional immunity from punishment used where other types of utterances
are concerned are not applicable. For, the argument runs, the power of judges
to punish by contempt out-of-court publications tending to obstruct the orderly
and fair administration of justice in a pending case was deeply [314
U.S. 252, 264] rooted
in English common law at the time the Constitution was adopted. That this
historical contention is dubious has been persuasively argued elsewhere. Fox,
Contempt of Court, passim, e.g., 207. See also Stansbury, Trial of James H.
Peck, 430. In any event it need not detain us, for to assume that English
common law in this field became ours is to deny the generally accepted
historical belief that 'one of the objects of the Revolution was to get rid of
the English common law on liberty of speech and of the press.' 7 Schofield, Freedom of the Press in the United States. 9 Publications Amer. Sociol. Soc., 67, 76.
More specifically, it is to forget the environment in which the First
Amendment was ratified. In presenting the proposals which were later embodied
in the Bill of Rights, James Madison, the leader in the preparation of the
First Amendment, said: 'Although I know whenever the great rights, the trial by
jury, freedom of the press, or liberty of conscience, come in question in that
body (Parliament), the invasion of them is resisted by able advocates, yet
their Magna Charta does not contain any one provision for the security of those
rights, respecting which the people of America are most alarmed. The freedom of
the press and rights of conscience, those choicest privileges of the people,
are unguarded in the British Constitution.' 1 Annals of Congress 1789-1790,
434. And Madison elsewhere wrote that 'the state of the press ... under the
common law, cannot ... be the standard of its freedom in the United States.' VI
Writings of James Madison 1790-1802, 387. [314 U.S. 252,
265] There are
no contrary implications in any part of the history of the period in which the
First Amendment was framed and adopted. No purpose in ratifying the Bill of
Rights was clearer than that of securing for the people of the United States
much greater freedom of religion, expression, assembly, and petition than the
people of Great Britain had ever enjoyed. It cannot be denied, for example,
that the religious test oath8 or the restrictions upon assembly9 then prevalent
in England would have been regarded as measures which the Constitution
prohibited the American Congress from passing. And since the same unequivocal
language is used with respect to freedom of the press, it signifies a similar
enlargement of that concept as well. 10 Ratified as it was while the memory of many
oppressive English restrictions on the enumerated liberties was still fresh,
the First Amendment cannot reasonably be taken as approving prevalent English
practices. On the contrary, the only conclusion supported by history is that
the unqualified prohibitions laid down by the framers were intended to give to
liberty of the press, as to the other liberties, the broadest scope that could
be countenanced in an orderly society. [314 U.S. 252,
266] The implications
of subsequent American history confirm such a construction of the First
Amendment. To be sure, it occurred no more to the people who lived in the
decades following Ratification than it wuold to us now that the power of courts
to protect themselves from disturbances and disorder in the court room by use
of contempt proceedings could seriously be challenged as conflicting with
constitutionally secured guarantees of liberty. In both state and federal
courts, this power has been universally recognized. See Anderson v. Dunn, 6
Wheat. 204, 227. But attempts to expand it in the post-Ratification years
evoked popular reactions that bespeak a feeling of jealous solicitude for
freedom of the press. In Pennsylvania and New York, for example, heated
controversies arose over alleged abuses in the exercise of the contempt power,
which in both places culminated in legislation practically11 forbidding summary
punishment for publications. See Nelles and King, Contempt by Publication, 28
Col.L.Rev. 401, 409-422.
In the federal courts, there was the celebrated case of Judge Peck,
recently referred to by this Court in Nye v. United States, 313 U.S. 33, 45 , 61 S.Ct. 810, 814. The impeachment
proceedings against him, it should be noted, and the strong feelings they
engendered, were set in motion by his summary punishment of a lawyer for
publishing comment on a case which was on appeal at the time of publication [314
U.S. 252, 267] and
which raised the identical issue of several other cases then pending before
him. Here again legislation was the outcome, Congress proclaiming in a statute
expressly captioned 'An Act declaratory of the law concerning contempts of
court,'12 that the power of federal courts to inflict summary punishment for
contempt 'shall not be construed to extend to any cases except the misbehaviour
of ... persons in the presence of the said courts, or so near thereto as to
obstruct the administration of justice ....' When recently called upon to
interpret this statute, we overruled the earlier decision of this Court in
Toledo Newspaper Co. v. United States, 247 U.S. 402 , 38 S.Ct. 560, in the belief that
it improperly enlarged the stated area of summary punishment. Nye v. United
States, supra. Here, as in the Nye case, we need not determine whether the
statute was intended to demarcate the full power permissible under the
Constitution to punish by contempt proceedings. But we do find in the enactment
viewed in its historical context, a respect for the prohibitions of the First
Amendment, not as mere guides to the formulation of policy, but as commands the
breach of which cannot be tolerated.
We are aware that although some states have by statute or decision
expressly repudiated the power of judges to punish publications as contempts on
a finding of mere tendency to interfere with the orderly administration of
justice in a pending case, other states have sanctioned the exercise of such a
power. (See Nelles and King, loc. cit. supra, 536- 562, for a collection and
discussion of state cases.) But state power in this field was not test in this
Court for more than a century. 13 Not until 1925, with the [314
U.S. 252, 268] decision
in Gitlow v. New York, supra, did this Court recognize in the Fourteenth
Amendment the application to the states of the same standards of freedom of
expression as, under the First Amendment, are applicable to the federal
government. And this is the first time since 1925 that we have been called upon
to determine the constitutionality of a state's exercise of the contempt power
in this kind of situation. Now that such a case is before us, we cannot allow
the mere existence of other untested state decisions to destroy the historic
constitutional meaning of freedom of speech and of the press.
History affords no support for the contention that the criteria
applicable under the Constitution to other types of utterances are not
applicable, in contempt proceedings, to out-of-court publications pertaining to
a pending case.
III
We may appropriately begin our discussion of the judgments below by considering
how much, as a practical matter, they would affect liberty of expression. It
must be recognized that public interest is much more likely to be kindled by a
controversial event of the day then by a generalization, however penetrating,
of the historian or scientist. Since they punish utterances made during the
pendency of a case, the judgments below therefore produce their restrictive
results at the precise time when public interest in the matters discussed would
naturally be at its height. Moreover, the ban is likely to fall not only at a
crucial time but upon the most important topics of discussion. Here, for
example, labor controversies were the topics of some of the publications.
Experience shows that the more acute labor controversies are, the more likely [314
U.S. 252, 269] it
is that in some aspect they will get into court. It is therefore the
controversies that command most interest that the decisions below would remove
from the arena of public discussion.
No suggestion can be found in the Constitution that the freedom there
guaranteed for speech and the press bears an inverse ratio to the timeliness
and importance of the ideas seeking expression. Yet, it would follow as a
practical result of the decisions below that anyone who might wish to give
public expression to his views on a pending case involving no matter what
problem of public interest, just at the time his audience would be most
receptive, would be as effectively discouraged as if a deliberate statutory
scheme of censorship had been adopted. Indeed, perhaps more so, because under a
legislative specification of the particular kinds of expressions prohibited and
the circumstances under which the prohibitions are to operate, the speaker or
publisher might at least have an authoritative guide to the permissible scope
of comment, instead of being compelled to act at the peril that judges might
find in the utterance a 'reasonable tendency' to obstruct justice in a pending
case.
This unfocussed threat is, to be sure, limited in time, terminating as
it does upon final disposition of the case. But this does not change its
censorial quality. An endless series of moratoria on public discussion, even if
each were very short, could hardly be dismissed as an insignificant abridgment
of freedom of expression. And to assume that each would be short is to overlook
the fact that the 'pendency' of a case is frequently a matter of months or even
years rather than days or weeks. 14 [314 U.S. 252,
270] For these
reasons we are convinced that the judgments below result in a curtailment of
expression that cannot be dismissed as insignificant. If they can be justified
at all, it must be in terms of some serious substantive evil which they are
designed to avert. The substantive evil here sought to be averted has been
variously described below. 15 It appears to be double: disrespect for the
judiciary; and disorderly and unfair administration of justice. The assumption
that respect for the judiciary can be won by shielding judges from published
criticism wrongly appraises the character of American public opinion. For it is
a prized American privilege to speak one's mind, although not always with
perfect good taste, 16 on all public institutions. And an enforced silence,
however limited, [314 U.S. 252, 271] solely in the name of preserving the dignify of
the bench, would probably engender resentment, suspicion, and contempt much
more than it would enhance respect.
The other evil feared, disorderly and unfair administration of justice,
is more plausibly associated with restricting publications which touch upon
pending litigation. The very would 'trial' connotes decisions on the evidence
and arguments properly advanced in open court. Legal trials are not like
elections, to be won through the use of the meeting- hall, the radio, and the
newspaper. But we cannot start with the assumption that publications of the
kind here involved actually do threaten to change the nature of legal trials,
and that to preserve judicial impartiality, it is necessary for judges to have
a comtempt power by which they can close all channels of public expression to
all matters which touch upon pending cases. We must therefore turn to the
particular utterances here in question and the circumstances of their
publication to determine to what extent the substantive evil of unfair
administration of justice was a likely consequence, and whether the degre of
likelihood was sufficient to justify summary punishment.
The Los Angeles Times Editorials. The Times-Mirror Company, publisher of
the Los Angeles Times, and L. D. Hotchkiss, its managing editor were cited for
contempt for the publication of three editorials. Both found by the trial court
to be responsible for one of the editorials, the company and Hotchkiss were
each fined $100. The company alone was held responsible for the other two, and
was fined $100 more on account of one, and $300 more on account of the other.
The $300 fine presumably marks the most serious offense. The editorial
thus distinguished was entitled 'Probation for Gorillas?'. After vigorously
denouncing two members of a labor union who had previously been [314
U.S. 252, 272] found
guilty of assaulting non-union truck drivers, it closes with the observation:
'Judge A. A. Scott will make a serious mistake if he grants probation to
Matthew Shannon and Kennan Holmes. This community needs the example of their
assignment to the jute mill.' 17 Judge Scott had previously set a day (about a
month after the publication) for passing upon the application of Shannon and
Holmes for probation and for pronouncing sentence.
The basis for punishing the publication as contempt was by the trial
court said to be its 'inherent tendency' and by the Supreme Court its
'reasonable tendency' to interfere with the orderly administration of justice
in an [314 U.S. 252, 273] action then before a court for consideration. In accordance with what we
have said on the 'clear and present danger' cases, neither 'inherent tnedency'
nor 'reasonable tendency' is enough to justify a restriction of free
expression. But even if they were appropriate measures, we should find exaggeration
in the use of those phrases to describe the facts here.
From the indications in the record of the position taken by the Los
Angeles Times on labor controversies in the past, there could have been little
doubt of its attitude toward the probation of Shannon and Holmes. In view of
the paper's longcontinued militancy in this field, it is inconceivable that any
judge in Los Angeles would expect anything but adverse criticism from it in the
event probation were granted. Yet such criticism after final disposition of the
proceedings would clearly have been privileged. Hence, this editorial, given
the most intimidating construction it will bear, did no more than threaten
future adverse criticism which was reasonably to be expected anyway in the
event of a lenient disposition of the pending case. 18 To regard it, therefore, as in itself of
substantial influence upon the course of justice would be to impute to judges a
lack of firmness, wisdom, or honor, which we cannot accept as a major premise.
Cf. Holmes, J., dissenting in Toledo Newspaper Co. v. United States, 247 U.S. 402, 424 , 38 S.Ct. 560, 565. [314
U.S. 252, 274] The
other two editorials publication of which was fined below are set out in the
lower margin. 19 With respect to these two editorials, there is
no divergence of conclusions among the members of this Court. We are all of the
opinion that, upon any fair construction, their possible influence on the
course of justice can be dismissed as negligible, [314 U.S. 252,
275] and that
the Constitution compels us to set aside the convictions as unpermissible
exercises of the state's power. In view of the foregoing discussion of
'Probation for Gorillas?', analysis of these editorials and their setting is
deemed unnecessary.
The Bridges Telegram. While a motion for a new trial was pending in a
case involving a dispute between an
__________ not in sympathy with it, what should be the terms and
conditions of working, has proved to be within the control of labor peace
officers and authorities.
'Nobody ran off to Washington to get this
affair handled. It was attended to right here.
'Government may have broken down in other
localities; whole States may have yielded to anarchy. But Los Angeles county
stands firm; it has officers who can do their duty and courts and juries which
can function.
'So long as that is the case, davebeckism
cannot and will not get control here; nor johnlewisism either.'
The second of these editorials, entitled 'The Fall of an Ex-Queen', was
published in The Los Angeles Times of April 14, 1938. Here, too, publication
took place after a jury had found the subject of the editorial guilty, but
before the trial judge had pronounced sentence. The editorial follows in its
entirety:
'Politics as we know it is an essentially
selfish business, conducted in the main for personal profit of one kind or
another. When it is of the boss type, it is apt to be pretty sorbid as well.
Success in boss-ship, which is a denial of public rights, necessarily implies a
kind of moral obliquity if not an actually illegal one.
'So that it is something of a contradiction of
sense if not of terms to express regret that the political talents of Mrs.
Helen Werner were not directed to other objectives than those which, in the
twilight of her active life, have brought her and her husband to disgrace. If
they had been, she would not have been in politics at all and probably would
never have been heard of in a public way. Her natural flair was purely
political; she would have been miscast in any other sphere of activity.
'Mrs. Werner's primary mistake seems to have
been in failing to recognize that her political day was past. For years she
enjoyed the unique distinction of being the country's only woman boss-and did
she enjoy it! In her heyday she had a finger in every political pie and many were
the plums she was able to extract therefrom for those [314 U.S. 252,
276] A.F. of L.
union and a C.I.O. union of which Bridges was an officer, he either caused to
be published or acquiesced in the publication of a telegram which he had sent
to the Secretary of Labor. The telegram referred to the judge's decision as
'out said that attempted enforcement of it would tie up the port of Los Angeles
and involve the entire Pacific Coast; and concluded with the announcement that
the C.I.O. union, representing some twelve thousand members, did 'not intend to
allow state courts to override the majority vote of members in choosing its
officers and representatives and to override the National Labor Relations
Board.' 20 [314 U.S. 252,
277] Apparently
Bridges' conviction is not rested at all upon his use of the word 'outrageous.'
The remainder of the telegram fairly construed appears to be a statement that
if the court's decree should be enforced there would be a strike. It is not
claimed that such a strike would have been in violation of the terms of the
decree, nor that in any other way it would have run afoul of the law of
California. On no construction, therefore, can the telegram be taken as a threat
either by Bridges or the union to follow an illegal course of action.
Moreover, this statement of Bridges was made to the Secretary of Labor,
who is charged with official duties in connection with the prevention of
strikes. Whatever the cause might be, if a strike was threatened or possible
the Secretary was entitled to receive all avaialble information. Indeed, the
Supreme Court of California recognized that, publication in the newspapers
aside, in sending the message to the Secretary, Bridges was exercising the
right of petition to a duly accredited representative of the United States
government, a right protected by the First Amendment. 21
It must be recognized that Bridges was a prominent labor leader speaking
at a time when public interest in the particular labor controversy was at its
heeight. The observations we have previously made here upon the time- [314
U.S. 252, 278] liness
and importance of utterances as emphasizing rather than diminishing the value
of constitutional protection, and upon the breadth and seriousness of the
censorial effects of punishing publications in the manner followed below are
certainly no less applicable to a leading spokesman for labor than to a powerful
newspaper taking another point of view.
In looking at the reason advanced in support of the judgment of
contempt, we find that here, too, the possibility of causing unfair disposition
of a pending case is the major justification asserted. And here again the gist
of the offense, according to the court below, is intimidation.
Let us assume that the telegram could be construed as an announcement of
Bridges' intention to call a strike, something which, it is admitted, neither
the general law of California nor the court's decree prohibited. With an eye on
the realities of the situation, we cannot assume that Judge Schmidt was unaware
of the possibility of a strike as a consequence of his decision. If he was not
intimidated by the facts themselves, we do not believe that the most explicit
statement of them could have sidetracked the course of justice. Again, we find
exaggeration in the conclusion that the utterance even 'tended' to interfere
with justice. If there was electricity in the atmosphere, it was generated by
the facts; the charge added by the Bridges telegram can be dismissed as
negligible. The words of Mr. Justice Holmes, spoken in reference to very
different facts, seem entirely applicable here: 'If confess that I cannot find
in all this or in the evidence in the case anything that would have affected a
mind of reasonable fortitude, and still less can I find there anything that
obstructed the administration of justice in any sense that I possibly can give
to those words.' Toledo Newspaper Co. v. United States, supra, 247 U. S. at
page 425, 38 S.Ct. at page 566.
Reversed. [314 U.S. 252, 279]
Mr. Justice FRANKFURTER, with whom concurred the CHIEF JUSTICE, Mr.
Justice ROBERTS and Mr. Justice BYRNES, dissenting.
Our whole history repels the view that it is an exercise of one of the
civil liberties secured by the Bill of Rights for a leader of a large following
or for a powerful metropolitan newspaper to attempt to overawe a judge in a
matter immediately pending before him. The view of the majority deprives
California of means for securing to its citizens justice according to law-means
which, since the Union was founded, have been the possession, hitherto
unchallenged, of all the states. This sudden break with the uninterrupted
course of constitutional history has no constitutional warrant. To find
justification for such deprivation of the historic powers of the states is to
misconceive the idea of freedom of thought and speech as guaranteed by the
Constitution.
Deeming it more important than ever before to enforce civil liberties
with a generous outlook, but deeming it no less essential for the assurance of
civil liberties that the federal system founded upon the Constitution be
maintained, we believe that the careful ambiguities and silences of that majority
opinion call for a full exposition of the issues in these cases.
While the immediate question is that of determining the power of the
courts of California to deal with attempts to coerce their judgments in
litigation immediately before them, the consequence of the Court's ruling today
is a denial to the people of the forty-eight states of a right which they have
always regarded as essential for the effective exercise of the judicial
process, as well as a denial to the Congress of powers which were exercised
from the very beginning even by the framers of the Consitution themselves. To
be sure, the majority do not in so many words hold that trial by newspapers has
constitutional [314 U.S. 252, 280] sanctity. But the atmosphere of their opinion
and several of its phrases mean that or they mean nothing. Certainly, the
opinion is devoid of any frank recognition of the right of courts to deal with
utterances calculated to intimidate the fair course of justice-a right which
hitherto all the states have from time to time seen fit to confer upon their
courts and which Congress conferred upon the federal courts in the Judiciary
Act of 1789, 1 Stat. 73. If all that is decided today is that the majority deem
the specific interferences with the administration of justice in California so
tenuously related to the right of California to keep its courts free from
coercion as to constitute a check upon free speech rather than upon impartial
justice, it would be well to say so. Matters that involve so deeply the powers of
the states and that put to the test the professions by this Court of
self-restraint in nullifying the political powers of state and nation, should
not be left clouded.
We are not even vouchsafed reference to the specific provision of the
Constitution which renders states powerless to insist upon trail by courts
rather than trial by newspapers. So far as the Congress of the United States is
concerned, we are referred to the First Amendment. That is specific. But we are
here dealing with limitations upon California-with restraints upon the states.
To say that the protection of freedom of speech of the First Amendment is
absorbed by the Fourteenth does not say enough. Which one of the various
limitations upon state power introduced by the Fourteenth Amendment absorbs the
First? Some provisions of the Fourteenth Amendment apply only to citizens, and
one of the petitioners here is an alien; some of its provisions apply only to
natural persons, and another petitioner here is a corporation. See Hague v.
C.I.O., 307 U.S. 496, 514 , 59 S.Ct. 954, 963, and cases
cited. Only the Due Process Clause assures constitutional protection of civil
liberties to aliens and corporations. Corporations [314 U.S. 252,
281] cannot
claim for themselves the 'liberty' which the Due Process Clause guarantees.
That clause protects only their property. Pierce v. Society of Sisters, 268 U.S. 510, 535 , 45 S.Ct. 571, 573, 39 A.L.R. 468.
The majority opinion is strangely silent in failing to avow the specific
constitutional provision upon which its decision rests.
These are not academic debating points or technical niceties. Those who
have gone before us have admonished us 'that in a free representative
government nothing is more fundamental than the right of the people, through
their appointed servants, to govern themselves in accordance with their own
will, except so far as they have restrained themselves by constitutional limits
specifically established, and that, in our peculiar dual form of government,
nothing is more fundamental than the full power of the state to order its own
affairs and govern its own people, except so far as the Federal Constitution,
expressly or by fair implication, has withdrawn that power. The power of the
people of the states to make and alter their laws at pleasure is the greatest
security for liberty and justice .... We are not invested with the jurisdiction
to pass upon the expediency, wisdom, or justice of the laws of the states as
declared by their courts, but only to determine their conformity with the
Federal Constitution and the paramount laws enacted pursuant to it. Under the
guise of interpreting the Constitution we must take care that we do not import
into the discussion our own personal views of what would be wise, just, and
fitting rules of government to be adopted by a free people, and confound them with
constitutional limitations.' Twining v. New Jersey, 211 U.S. 78, 106 , 107 S., 29 S.Ct. 14, 22.
In a series of opinions as uncompromising as any in its history, this
Court has settled that the fullest opportunities for free discussion are
'implicit in the concept of ordered liberty, and thus, through the Fourteenth
Amendment,' protected against attempted invasion by [314 U.S. 252,
282] the States.
Palko v. Connecticut, 302 U.S. 319, 324 , 325 S., 58 S.Ct. 149, 152. The
channels of inquiry and thought must be kept open to new conquests of reason,
however odious their expression may be to the prevailing claimate of opinion.
But liberty 'in each of its phases, has its history and connotation'. Whether a
particular state action violates 'the essential attributes of that liberty'
must be judged in the light of the liberty that is invoked and the curtailment
that is challenged. Near v. Minnesota, 283 U.S. 697, 708 , 51 S.Ct. 625, 628. For 'the
recognition of a privilege does not mean that it is without conditions or
exceptions. The social policy that will prevail in many situations may run foul
in others of a different social policy, competing for supremacy. It is then the
function of a court to mediate between them, assigning, so far as possible, a
proper value to each, and summoning to its aid all the distinctions and
analogies that are the tools of the judicial process'. Clark v. United States, 289 U.S. 1, 13 , 53 S.Ct. 465, 469.
Free speech is not so absolute or irrational a conception as to imply
paralysis of the means for effective protection of all the freedoms secured by
the Bill of Rights. Compare Lincoln's Message to Congress in Special Session,
July 4, 1861, 7 Richardson, Messages and Papers of the Presidents, pp.
3221-3232. In the cases before us, the claims on behalf of freedom of speech
and of the press encounter claims on behalf of liberties no less precious.
California asserts her right to do what she has done as a means of safeguarding
her system of justice.
The administration of justice by an impartial judiciary has been basic
to our conception of freedom ever since Magna Carta. It is the concern not merely
of the immediate litigants. Its assurance is everyone's concern, and it is
protected by the liberty guaranteed by the Fourtenth Amendment. That is why
this Court has outlawed mob domination of a courtroom, Moore v. Dempsey, 261 U.S. 86 , 43 S.Ct. 265, mental coercion of a
defendant, Chambers v. [314 U.S. 252, 283] Florida, 309 U.S. 227 , 60 S.Ct. 472, a judicial system
which does not provide disinterested judges, Tumey v. Ohio, 273 U.S. 510 , 47 S. Ct. 437, 50 A.L.R. 1243, and
discriminatory selection of jurors, Pierre v. Louisiana, 306 U.S. 354 , 59 S.Ct. 536; Smith v. Texas, 311 U.S. 128 , 61 S.Ct. 164.
A trial is not a 'free trade in ideas', nor is the best test of truth in
a courtroom 'the power of the thought to get itself accepted in the competition
of the market'. Compare Mr. Justice Holmes in Abrams v. United States, 250 U.S. 616, 630 , 40 S.Ct. 17, 22. A court is a
forum with strictly defined limits for discussion. It is circumscribed in the
range of its inquiry and in its methods by the Constitution, by laws, and by
age-old traditions. Its judges are restrained in their freedom of expression by
historic compulsions resting on no other officials of government. They are so
circumscribed precisely because judges have in their keeping the enforcement of
rights and the protection of liberties which, according to the wisdom of the
ages, can only be enforced and protected by observing such methods and
traditions.
The dependence of society upon an unswerved judiciary is such a
commonplace in the history of freedom that the means by which it is maintained
are too frequently taken for granted without heed to the conditions which alone
make it possible. The role of courts of justice in our society has been the
theme of statesmen and historians and constitution makers. It is perhaps best
expressed in the Massachusetts Declaration of Rights: 'It is essential to the
preservation of the rights of every individual, his life, liberty, property,
and character, that there be an impartial interpretation of the laws, and
administration of justice. It is the right of every citizen to be tried by
judges as free, impartial and independent as the lot of humanity will admit.'
Const.Mass. pt. 1, art. 29.
The Constitution was not conceived as a doctrinaire document, nor was
the Bill of Rights intended as a collection of popular slogans. We are dealing
with instruments [314 U.S. 252, 284] of government. We cannot read into the
Fourteenth Amendment the freedom of speech and of the press protected by the
First Amendment and at the same time read out age-old means employed by states
for securing the calm course of justice. The Fourteenth Amendment does not
forbid a state to continue the historic process of prohibiting expressions
calculated to subvert a specific exercise of judicial power. So to assure the
impartial accomplishment of justice is not an abridgment of freedom of speech
or freedom of the press, as these phases of liberty have heretofore been
conceived even by the stoutest libertarians. In fact, these liberties
themselves depend upon an untrammeled judiciary whose passions are not even
unconsciously aroused and whose minds are not distorted by extrajudicial
considerations.
Of course freedom of speech and of the press are essential to the
enlightenment of a free people and in restraining those who wield power.
Particularly should this freedom be employed in comment upon the work of courts
who are without many influences ordinarily making for humor and humility, twin
antidotes to the corrosion of power. But the Bill of Rights is not
self-destructive. Freedom of expression can hardly carry implications that
nullify the guarantees of impartial trials. And since courts are the ultimate
resorts for vindicating the Bill of Rights, a state may surely authorize
appropriate historic means to assure that the process for such vindication be
not wrenched from its rational tracks into the more primitive me le e of
passion and pressure. The need is great that courts be criticized but just as
great that they be allowed to do their duty.
The 'liberty' secured by the Fourteenth Amendment summarizes the
experience of history. And the power exerted by the courts of California is
deeply rooted in the system of administering justice evolved by liberty- loving
English speaking peoples. From the earliest days of the [314
U.S. 252, 285] English
courts, they have encountered obstructions to doing that for which they exist,
namely, to administer justice impartially and solely with reference to what
comes before them. These interferences were of diverse kinds. But they were all
covered by the infelicitous phrase 'contempt of court', and the means for
dealing with them is historically known as the power of courts to punish for
contempt. As is true of many aspects of our legal institutions, the settled
doctrines concerning the mode of procedure for exercising the power of contempt
became established on dubious historical authority. Exact legal scholarship has
controverted much pertaining to the origin of summary proceedings for contempt.
See Sir John Fox, The History of Contempt of Court, passim. But there is no
doubt that since the early eighteenth century, the power to punish for contempt
for intrusions into the living process of adjudication has been an unquestioned
characteristic of English courts and of the courts of this country.
The judicatures of the English-speaking world, including the courts of
the United States and of the forty-eight states, have from time to time
recognized and exercised the power now challenged. (For partial lists of cases,
see Nelles and King, Contempt by Publication in the United States, 28
Col.L.Rev. 401, 525, 554; Sullivan, Contempts by Publication, p. 185 et seq.) A
declaratory formulation of the common law was written into the Judiciary Act of
1789 ( 17, 1 Stat. 73, 83) by Oliver Ellsworth, one of the framers of the
Constitution, later to become Chief Justice; the power was early recognized as
incidental to the very existence of courts in a succession of opinions in this
Court (United States v. Hudson, 7 Cranch 32; Anderson v. Dunn, 6 Wheat. 204,
227; Ex parte Kearney, 7 Wheat. 38); it was expounded and supported by the
great Commentaries that so largely influenced the shaping of our law in the
late eighteenth and early nineteenth cen- [314 U.S. 252,
286] turies,
those of Blackstone, Kent and Story; its historic continuity withstood attack
against state action under the Due Process Clause, now again invoked,
Eilenbecker v. Plymouth County, 134 U.S. 31 , 10 S.Ct. 424; and see Ex parte
Robinson, 19 Wall. 505; Ex parte Terry, 128 U.S. 289 , 9 S.Ct. 77; Ex parte Savin,
Petitioner, 131 U.S. 267 , 9 S.Ct. 699.1 [314
U.S. 252, 287] As
in the exercise of all power, it was abused. Some English judges extended their
authority for checking interferences with judicial business actually in hand,
to 'lay by the heel' those responsible for 'scandalizing the court', that is,
bringing it into general disrepute. Such foolishness has long since been
disavowed in England and has never found lodgment here. But even the technical
power of punishing interference with the court's business is susceptible of
abuse. As early as 1809, Pennsylvania restricted the power to inflict summary
punishment for contempts to a closely defined class of misconduct, and provided
the ordinary criminal procedure for other forms of interferences with a pending
cause. 1808-09 Pa.Acts, c. 78, p. 146.2 The flagrant case of Judge Peck3 led
Con- [314 U.S. 252, 288] gress to pass the Act of March 2, 1831, 4 Stat. 487, 28 U.S.C. 385, 28
U. S.C.A. 385, the scope of which we recently considered. Nye v. United States,
313 U.S. 33 , 61 S.Ct. 810. A number of states copied
the federal statute. It would be pedantic to trace the course of legislation
and of adjudication on this subject in our half-hundred jurisdictions. Suffice
it to say that the hitherto unchallenged power of American states to clothe
their courts with authority to punish for contempt was thus summarized only
recently by Mr. Chief Justice Hughes in the leading case vindicating the
liberty of the press against state action: 'There is also the conceded
authority of courts to punish for contempt when publications directly tend to
prevent the proper discharge of judicial functions.' Near v. Minnesota, 283 U.S. 697, 715 , 51 S.Ct. 625, 630.4 [314
U.S. 252, 289] It
is trifling with great issues to suggest that the question before us is whether
eighteenth-century restraints upon the freedom of the press should now be
revived. The question is rather whether nineteenth- and twentieth-century
American institutions should be abrogated by judicial fiat.
That a state may, under appropriate circumstances, prevent interference
with specific exercises of the process of impartial adjudication does not mean
that its people lose the right to condemn decisions or the judges who render
them. Judges as persons, or courts as institutions, are entitled to no greater
immunity from criticism than other persons or institutions. Just because the
holders of judicial office are identified with the interests of justice they
may forget their comon human frailties and fallibilities. There have sometimes
been martinets upon the bench as there have also been pompous wielders of
authority who have used the paraphernalia of power in support of what they
called their dignity. Therefore judges must be kept mindful of their
limitations and of their ultimate public responsibility by a vigorous stream of
criticism expressed with candor however blunt. 5 'A [314 U.S. 252, 290] man cannot be summarily laid by the heels
because his words may make public feeling more unfavorable in case the judge
should be asked to act at some later date, any more than he can for exciting
public feeling against a judge for what he already has done.' Mr. Justice
Holmes in Craig v. Hecht, 263 U.S. 255, 281 , 282 S., 44 S.Ct. 103, 107, 108.
But the Constitution does not bar a state from acting on the theory of our
system of justice, that the 'conclusions to be reached in a case will be
induced only by evidence and argument in open court, and not by any outside
influence, whether of private talk or public print.' Patterson v. Colorado, 205 U.S. 454, 462 , 27 S.Ct. 556, 558, 10 Ann.Cas.
689. The theory of our system of justice as thus stated for the Court by Mr.
Justice Holmes has never been questioned by any member of the Court. It was
questioned neither by Mr. Justice Harlan nor by Mr. Justice Brewer in their
dissents in the Patterson case. The differences in that case concerned the
question whether 'there is to be found in the 14th Amendment a prohibition
similar to that in the 1st', and, if so, what the scope of that protection is.
The first question was settled in the affirmative by a series of cases
beginning with Gitlow v. New York, 268 U.S. 652 , 45 S.Ct. 625. And that the scope
of the First Amendment was broader than was intimated in the opinion in the
Patterson case, was later recognized by Mr. Justice Holmes, speaking for the
Court, in Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247. But that the
conventional power to punish for contempt is not a censorship in advance but a
punishment for past conduct and, as such, like prosecution for a criminal
libel, is not offensive either to the First or to the Fourteenth Amendments,
has never been doubted throughout this Court's history.
This conception of justice, the product of a long and arduous effort in
the history of freedom, is one of the greatest achievements of civilization,
and is not less to be cherished at a time when it is repudiated and derided by [314
U.S. 252, 291] powerful
. 'The right to use and defend in the courts is the alternative of force. In an
organized society it is the right conservative of all other rights, and lies at
the foundation of orderly government.' Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 , 28 S.Ct. 34, 35. This has nothing
to do with curtailing expression of opinion, be it political, economic, or
religious, that may be offensive to orthodox views. It has to do with the power
of the state to discharge an indispensable function of civilized society, that
of adjudicating controversies between its citizens and between citizens and the
state through legal tribunals in accordance with their historic procedures.
Courts and judges must take their share of the gains and pains of discussion
which is unfettered except by laws of libel, by selfrestraint, and by good
taste. Winds of doctrine should freely blow for the promotion of good and the
correction of evil. Nor should restrictions be permitted that cramp the feeling
of freedom in the use of tongue or pen regardless of the temper or the truth of
what may be uttered.
Comment however forthright is one thing. Intimidation with respect to
specific matters still in judicial suspense, quite another. See Laski,
Procedure for Constructive Contempt in England, 41 Harv.L.Rev. 1031, 1034;
Goodhart, Newspapers and Contempt in English Law, 48 Harv.L.Rev. 885. A
publication intended to teach the judge a lesson, or to vent spleen, or to
discredit him, or to influence him in his future conduct, would not justify exercise
of the contempt power. Compare Judge Learned Hand in Ex parte Craig, 2 Cir.,
282 F. 138, 160, 161. It must refer to a matter under consideration and
constitute in effect a threat to its impartial disposition. It must be
calculated to create an atmospheric pressure incompatible with rational,
impartial adjudication. But to interfere with justice it need not succeed. As
with other offenses, the state should be able to proscribe attempts that fail
because of the danger that attempts may succeed. The pur- [314
U.S. 252, 292] pose,
it will do no harm to repeat, is not to protect the court as a mystical entity
or the judges as individuals or as annointed priests set apart from the
community and spared the criticism to which in a democracy other public servants
are exposed. The purpose is to protect immediate litigants and the public from
the mischievous danger of an unfree or coerced tribunal. The power should be
invoked only where the adjudicatory process may be hampered or hindered in its
calm, detached, and fearless discharge of its duty on the basis of what has
been submitted in court. The belief that decisions are so reached is the source
of the confidence on which law ultimately rests.
It will not do to argue that a state cannot permit its judges to resist
coercive interference with their work in hand because other officials of
government must endure such obstructions. In such matters 'a page of history is
worth a volume of logic.' New York Trust Co. v. Eisner, 256 U.S. 345, 349 , 41 S.Ct. 506, 507, 16 A.L.R. 660.
Presidents and governors and legislators are political officials traditionally
subject to political influence and the rough and tumble of the hustings, who
have open to them traditional means of self-defense. In a very immediate sense,
legislators and executives express the popular will. But judges do not express
the popular will in any ordinary meaning of the term. The limited power to
punish for contempt which is here involved wholly rejects any assumption that
judges are superior to other officials. They merely exercise a function
historically and intrinsically different. From that difference is drawn the
power which has behind it the authority and the wisdom of our whole history.
Because the function of judges and that of other officials in special
situations may approach similarity, hard cases can be put which logically may
contradict the special quality of the judicial process. 'But the provisions of
the Constitution are not mathematical formulas having their essence in their
form; [314 U.S. 252, 293] they are organic, living institutions transplanted from English soil.
Their significance is vital not formal; it is to be gathered not simply by
taking the words and a dictionary, but by considering their origin and the line
of their growth.' Gompers v. United States, 233 U.S. 604, 610 , 34 S. Ct. 693, 695, Ann.Cas.1915D,
1044.
We are charged here with the duty, always delicate, of sitting in
judgment on state power. We must be fastidiously careful not to make our
private views the measure of constitutional authority. To be sure, we are here
concerned with an appeal to the great liberties which the Constitution assures
to all our people, even against state denial. When a substantial claim of an
abridgment of these liberties is advanced, the presumption of validity that
belongs to an exercise of state power must not be allowed to impair such a
liberty or to check our close examination of the merits of the controversy. But
the utmost protection to be accorded to freedom of speech and of the press
cannot displace our duty to give due regard also to the state's power to deal
with what may essentially be local situations.
Because freedom of public expression alone assures the unfolding of
truth, it is indispensable to the democratic process. But even that freedom is
not an absolute and is not predetermined. By a doctrinaire overstatement of its
scope and by giving it an illusory absolute appearance, there is danger of
thwarting the free choice and the responsibility of exercising it which are
basic to a democratic society. While we are reviewing a judgment of the
California Supreme Court and not an act of its legislature or the voice of the
people of California formally expressed in its constitution, we are in fact
passing judgment on 'the power of the state as a whole.' Rippey v. Texas, 193 U.S. 504, 509 , 24 S.Ct. 516, 517; Skiriotes v.
Florida, 313 U.S. 69, 79 , 61 S.Ct. 924, 930; United Gas Co.
v. Texas, 303 U.S. 123, 142 , 58 S.Ct. 483, 492; Missouri v.
Dockery, 191 U.S. 165, 171 , 24 S.Ct. 53, 54, 63 L.R.A. 571;
Iowa-Des Moines Bank v. Bennett, 284 U.S. 239, 244 , 52 S.Ct. 133, 135. [314
U.S. 252, 294] By
the constitution of California, as authoritatively construed by its Supreme
Court and therefore as binding upon this Court as though ratified by all the
voters of California, the citizens of that state have chosen to place in its
courts the power, as we have defined it, to insure impartial justice. If the
citizens of California have other desires, if they want to permit the free play
of modern publicity in connection with pending litigation, it is within their
easy power to say so and to have their way. They have ready means of amending
their constitution and they have frequently made use of them. We are, after
all, sitting over three thousand miles away from a great state without intimate
knowledge of its habits and its needs in a matter which does not cut across the
affirmative powers of the national government. Some play of policy must be left
to the states in the task of accommodating individual rights and the overriding
public well-being which makes those rights possible. How are we to know whether
an easy-going or stiffer view of what affects the actual administration of
justice is appropriate to local circumstances? How are we to say that
California has no right to model its judiciary upon the qualities and standards
attained by the English administration of justice, and to use means deemed
appropriate to that end by English courts. 6 It is surely an arbitrary judgment to say that the [314
U.S. 252, 295] Due
Process Clause denies California that right. For respect for 'the liberty of
the subject' though not explicitly written into a constitution, is so deeply
embedded in the very texture of English feeling and conscience7 that it
survives, as the pages of Hansard abundantly prove, the exigencies of the life
and death struggle of the British people. See, e.g., Carr, Concerning English
Administrative Law, c. 3 ('Crisis Legislation').
The rule of law applied in these cases by the California court forbade
publications having 'a 'reasonable tendency' to interfere with the orderly
administration of justice in pending actions'. (94 P.2d 983, 995) To deny that
this age-old formulation of the prohibition against interference with
dispassionate adjudication is properly confined to the substantive evil is not
only to turn one's back on history but also to indulge in an idle play on words
unworthy of constitutional adjudication. It was urged before us that the words
'reasonable tendency' had a fatal pervasiveness, and that their replacement by
'clear and present danger' was required to state a constitutionally permissible
rule of law. The Constitution, as we have recently had occasion to remark, is
not a formulary. Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 , 61 S.Ct. 246, 249, 130 A.L.R.
1229. Nor does it require displacement of an historic test by a phrase which
first gained currency on March 3, 1919. Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247. Our duty is not
ended with the recita- [314 U.S. 252, 296] tion of phrases that are the
short-hand of a complicated historic process. The phrase 'clear and present
danger' is merely a justification for curbing utterance where that is warranted
by the substantive evil to be prevented. The phrase itself is an expression of
tendency and not of accomplishment, and the literary difference between it and
'reasonable tendency' is not of constitutional dimension.
Here the substantive evil to be eliminated is interference with
impartial adjudication. To determine what interferences may be made the basis
for contempt tenders precisely the same kind of issues as that to which the
'clear and present danger' test gives rise. 'It is a question of proximity and
degree.' Schenck v. United States, supra, 249 U.S. at page 52, 39 S.Ct. at page
249. And this, according to Mr. Justice Brandeis 'is a rule of reason. ... Like
many other rules for human conduct, it can be applied correctly only by the
exercise of good judgment.' Schaefer v. United States, 251 U.S. 466, 482 , 483 S., 40 S.Ct. 259, 264, 265.
Has California's judgment here undermined liberties protected by the
Constitution? In common with other questions of degree, this is to be solved
not by short-hand phrases but by consideration of the circumstances of the
particular case. One cannot yell 'Fire' in a crowded theater; police officers
cannot turn their questioning into an instrument of mental oppression. Chambers
v. Florida, 309 U.S. 227 , 60 S.Ct. 472.
If a rule of state law is not confined to the evil which may be dealt
with but places an indiscriminate ban on public expression that operates as an
overhanging threat to free discussion, it must fall without regard to the facts
of the particular case. This is true whether the rule of law be declared in a
statute or in a decision of a court. Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736; Cantwell v.
Connecticut, 310 U.S. 296 , 60 S.Ct. 900, 128 A.L.R. 1352. In
the cases before us there was no blanket or dragnet prohibition of utterance
affecting courts. Freedom to criticize their work, to assail generally [314
U.S. 252, 297] the
institution of courts, to report and comment on matters in litigation but not
to subvert the process of deciding-all this freedom was respected. Only the
state's interest in calm and orderly decisions, which represented also the
constitutional right of the parties, led it to condemn coercive utterances
directed towards a pending proceeding. California, speaking through its courts,
acted because of their conclusion that such utterances undermined the
conditions necessary for fair adjudication.
It is suggested that threats, by discussion, to untrammeled decisions by
courts are the most natural expressions when public feeling runs highest. But
it does not follow that states are left powerless to prevent their courts from
being subverted by outside pressure when the need for impartiality and fair
proceeding is greatest. To say that the framers of the Constitution sanctified
veiled violence through coercive speech directed against those charged with
adjudication is not merely to make violence an ingredient of justice; it mocks
the very ideal of justice by respecting its forms while stultifying its
uncontaminated exercise.
We turn to the specific cases before us:
The earliest editorial involved in No. 3, 'Sit-strikers Convicted',
commented upon a case the day after a jury had returned a verdict and the day
before the trial judge was to pronounce sentence and hear motions for a new
trial and applications for probation. On its face the editorial merely
expressed exulting approval of the verdict, a completed action of the court,
and there is nothing in the record to give it additional significance. The same
is true of the second editorial, 'Fall of an Ex- Queen', which luridly draws a
moral from a verdict of guilty in a sordid trial and which was published eight
days prior to the day set for imposing sentence. In both instances imposition
of sentences was immediately pending at the time of publication, but in neither
case was there any declaration, [314 U.S. 252, 298] direct or sly, in regard to this. As
the special guardian of the Bill of Rights this Court is under the heaviest
responsibility to safeguard the liberties guaranteed from any encroachment,
however astutely disguised. The Due Process Clause of the Fourteenth Amendment
protects the right to comment on a judicial proceeding, so long as this is not
done in a manner interfering with the impartial disposition of a litigation.
There is no indication that more was done in these editorials; they were not
close threats to the judicial function which a state should be able to
restrain. We agree that the judgment of the state court in this regard should
not stand.
'Probation for Gorillas?' the third editorial,
is a different matter. On April 22, 1938, a Los Angeles jury found two
defendants guilty of assault with a deadly weapon and of a conspiracy to
violate another section of the penal code. On May 2nd, the defendants applied
for probation and the trial judge on the same day set June 7th as the day for
disposing of this application and for sentencing the defendants. In the Los
Angeles Times for May 5th appeared the following editorial entitled 'Probation
for Gorillas?':
'Two members of Dave Beck's wrecking crew,
entertainment committee, goon squad or gorillas, having been convicted in
Superior Court of assaulting nonunion truck drivers, have asked for probation.
Presumably they will say they are 'first offenders,' or plead that they were merely
indulging a playful exuberance when, with slingshots, they fired steel missiles
at men whose only offense was wishing to work for a living without paying
tribute to the erstwhile boss of Seattle.
'Sluggers for pay, like murderers for profit,
are in a slightly different category from ordinary criminals. Men who commit
mayhem for wages are not merely violators of the peace and dignity of the
State; they are also conspirators against it. The man who burgles because his [314
U.S. 252, 299] children
are hungry may have some claim on public sympathy. He whose crime is one of
impulse may be entitled to lenity. But he who hires out his muscles for the
creation of disorder and in aid of a racket is a deliberate foe of organized
society and should be penalized accordingly.
'It will teach no lesson to other thugs to put
these men on good behavior for a limited time. Their 'duty' would simply be
taken over by others like them. If Beck's thugs, however, are made to realize
that they face San Quentin when they are caught, it will tend to make their
disreputable occupation unpopular. Judge A. A. Scott will make a serious
mistake if he grants probation to Matthew Shannon and Kennan Holmes. This
community needs the example of their assignment to the jute mill.'
This editorial was published three days after the trial judge had fixed
the time for sentencing and for passing on an application for probation, and a
month prior to the date set. It consisted of a sustained attack on the
defendants, with an explicit demand of the judge that they be denied probation
and be sent 'to the jute mill'. This meant, in California idiom, that in the
exercise of his discretion the judge should treat the offense as a felony, with
all its dire consequences, and not as a misdemeanor. Under the California Penal
Code the trial judge had wide discretion in sentencing the defendants: he could
sentence them to the county jail for for one year or less, or to the state
penitentiary for two years. The editorial demanded that he take the latter alternative
and send the defendants to the 'jute mill' of the state penitentiary. A
powerful newspaper admonished a judge, who within a year would have to secure
popular approval if he desired continuance in office, that failure to comply
with its demands would be 'a serious mistake'. Clearly, the state court was
justified in treating this as a threat to impartial adjudication. It is [314
U.S. 252, 300] too
naive to suggest that the editorial was written with a feeling of impotence and
an intention to utter idle words. The publication of the editorial was hardly
an exercise in futility. If it is true of juries it is not wholly untrue of
judges that they too may be 'impregnated by the environing atmosphere'. Mr.
Justice Holmes in Frank v. Mangum, 237 U.S. 309, 349 , 35 S.Ct. 582, 596. California
should not be denied the right to free its courts from such coercive,
extraneous influences; it can thus assure its citizens of their constitutional
right of a fair trial. Here there was a real and substantial manifestation of
an endeavor to exert outside influence. A powerful newspaper brought its full
coercive power to bear in demanding a particular sentence. If such sentence had
been imposed readers might assume that the court had been influenced in its
action; if lesser punishment had been imposed, at least a portion of the
community might be stirred to resentment. It cannot be denied that even a judge
may be affected by such a quandary. We cannot say that the state court was out
of bounds in concluding that such conduct offends the free course of justice.
Comment after the imposition of sentence-criticism, however unrestrained, of
its severity or lenience or disparity, cf. Ambard v. Attorney General for
Trinidad and Tobago, (1936) A.C. 322,-is an exercise of the right of free
discussion. But to deny the states power to check a serious attempt at
dictating from without the sentence to be imposed in a pending case, is to deny
the right to impartial justice as it was cherished by the founders of the
Republic and by the framers of the Fourteenth Amendment. It would erect into a
constitutional right opportunities for abuse of utterance interfering with the
dispassionate exercise of the judicial function. See Rex v. 'Daily Mail',
(1921) 2 K.B. 733, 749; Attorney General v. Tonks, (1939) N.Z.L.R. 533.
In No. 1, Harry R. Bridges challenges a judgment by the Superior Court
of California fining him $125 for con- [314 U.S. 252,
301] tempt. He
was president of the International Longshoremen's and Warehousemen's Union, as
affiliate of the Committee for Industrial Organization, and also West Coast
director for the C.I.O. The I.L.W.U. was largely composed of men who had
withdrawn from the International Longshoreman's Association, an affiliate of
the American Federation of Labor. In the fall of 1937 the rival longshoremen's
unions were struggling for control of a local in San Pedro Harbor. The officers
of this local, carrying most of its members with them, sought to transfer the
allegiance of the local to I.L.W.U. Thereupon, longshoremen remaining in I.L.A.
brought suit in the Superior Court of Los Angeles county against the local and
its officers. On January 21, 1938, Judge Schmidt, sitting in the Superior
Court, enjoined the officers from working on behalf of I.L.W.U. and appointed a
receiver to conduct the affairs of the local as an affiliate of the A.F. of L.,
by taking charge of the outstanding bargaining agreements of the local and of
its hiring hall, which is the physical mainstay of such a union. Judge Schmidt
promptly stayed enforcement of his decree, and on January 24th the defendants
in the injunction suit moved for a new trial and for vacation of the judgment.
In view of its local setting, the case aroused great public interest. The
waterfront situation on the Pacific Coast was also watched by the United States
Department of Labor, and Bridges had been in communication with the Secretary
of Labor concerning the difficulties. On the same day that the motion for new
trial was filed, Bridges sent the Secretary the following wire concerning Judge
Schmidt's decree:
'This decision is outrageous considering I.L.A.
has 15 members (in San Pedro) and the International Longshoremen-Warehousemen's
housemen's Union has 3000. International Longshoremen-Warehousemen Union has
petitioned the Labor Board for certification to represent San [314
U.S. 252, 302] Pedro
longshoremen with International Longshoremen Association denied representation
because it represents only 15 men. Board hearing held; decision now pending.
Attempted enforcement of Schmidt decision will tie up port of Los Angeles and
involve entire Pacific Coast. International Longshoremen-Warehousemen Union,
representing over 11,000 of the 12,000 longshoremen on the Pacific Coast, does
not intend to allow state courts to override the majority vote of members in
choosing its officers and representatives and to override the National Labor
Relations Board.'
This telegram duly found its way into the metropolitan newspapers of
California. Bridges' responsibility for its publication is clear. His
publication of the telegram in the Los Angeles and San Francisco papers is the
basis of Bridges' conviction for contempt.
The publication of the telegram was regarded by the state supreme court
as 'a threat that if an attempt was made to enforce the decision, the ports of
the entire Pacific Coast would be tied up' and 'a direct challenge to the court
that 11,000 longshoremen on the Pacific Coast would not abide by its decision'.
This occurred immediately after counsel had moved to set aside the judgment
which was criticized, so unquestionably there was a threat to litigation
obviously alive. It would be inadmissible dogmatism for us to say that in the context
of the immediate case-the issues at stake, the environment in which the judge,
the petitioner and the community were moving, the publication here made, at the
time and in the manner it was made-this could not have dominated the mind of
the judge before whom the matter was pending. Here too the state court's
judgment should not be overturned.
The fact that the communication to the Secretary of Labor may have been
privileged does not constitutionally protect whatever extraneous use may have
been made [314 U.S. 252, 303] of the communication. It is said that the
possibility of a strike, in case of an adverse ruling, must in any event have
suggested itself to the private thoughts of a sophisticated judge. Therefore
the publication of the Bridges telegram, we are told, merely gave that
possibility public expression. To afford constitutional shelter for a definite
attempt at coercing a court into a favorable decision because of the
contingencies of frustration to which all judicial action is subject, is to
hold, in effect, that the Constitution subordinates the judicial settlement of
conflicts to the unfettered indulgence of violent speech. The mere fact that
after an unfavorable decision men may, upon full consideration of their
responsibilities as well as their rights, engage in a strike or a lockout, is a
poor reason for denying a state the power to protect its courts from being
bludgeoned by serious threats while a decision is hanging in the judicial
balance. A vague, undetermined possibility that a decision of a court may lead
to a serious manifestation of protest is one thing. The impact of a definite
threat of action to prevent a decison is a wholly different matter. To deny
such realities is to stultify law. Rights must be judged in their context and
not in vacuo. Compare Aikens v. Wisconsin, 195 U.S. 194, 205 , 25 S.Ct. 3, 5; Badders v. United
States, 240 U.S. 391, 393 , 394 S., 36 S.Ct. 367, 368;
American Bank & Trust Co. v. Federal Bank, 256 U.S. 350, 358 , 41 S.Ct. 499, 500, 25 A.L.R. 971.
'All rights are derived from the purposes of the society in which they exist;
above all rights rises duty to the community.' Mr. Justice Brandeis in Duplex
Co. v. Deering, 254 U.S. 443, 488 , 41 S.Ct. 172, 184, 16 A.L.R. 196.
The question concerning the narrow power we recognize always is-was
there a real and substantial threat to the impartial decision by a court of a
case actively pending before it? The threat must be close and direct; it must
be directed towards a particular litigation. The litigation must be immediately
pending. When a case is pending is [314 U.S. 252, 304] not a technical, lawyer's problem,
but is to be determined by the substantial realities of the specific situation.
8 Danger of unbridled exercise of judicial power because of immunity from
speech which is coercing is a figment of groundless fears. In addition to the
internal censor of conscience, professional standards, the judgment of fellow
judges and the bar, the popular judgment exercised in elections, the power of
appellate courts, including this Court, there is the corrective power of the
press and of public comment free to assert itself fully immediately upon
completion of judicial conduct. Because courts, like other agencies, may at
times exercise power arbitrarily and have done so, resort to this Court is open
to determine whether, under the guise of protecting impartiality in specific
litigation, encroachments have been made upon th eliberties of speech and
press. But instances of past arbitrariness afford no justification for
reversing the course of history and denying the states power to continue to use
time-honored safeguards to assure unbullied adjudications. All experience
justifies the states in acting upon the conviction that a wrong decision in a
particular case may best be forestalled or corrected by more rational means
than coercive intrusion from outside the judicial process.
Since courts, although representing the law, United States v. Shipp, 203 U.S. 563, 574 , 27 S.Ct. 165, 166, 8 Ann.Cas. 265,
are also sitting in judgment, as it were, on their own function in exercising
their power to punish for contempt, it should be used only in flagrant cases
and with the utmost forbearance. It is al- [314 U.S. 252,
305] ways better
to err on the side of tolerance and even of disdainful indifference.
No objections were made before us to the procedure by which the charges
of contempt were tried. But it is proper to point out that neither case was
tried by a judge who had participated in the trials to which the publications
referred. Compare Cooke v. United States, 267 U.S. 517, 539 , 45 S.Ct. 390, 395. So it is clear
that a disinterested tribunal was furnished, and since the Constitution does
not require a state to furnish jury trials, Maxwell v. Dow, 176 U.S. 581 , 20 S.Ct. 448, 494; Palko v.
Connecticut, 302 U.S. 319, 324 , 58 S.Ct. 149, 151, and states have
discretion in fashioning criminal remedies, Tigner v. Texas, 310 U.S. 141 , 60 S.Ct. 879, 130 A.L.R. 1321, the
situation here is the same as though a state had made it a crime to publish
utterance having a "reasonable tendency' to interfere with the orderly
administration of justice in pending actions', and not dissimilar from what the
United States has done in 135 of the Criminal Code. 9
[ Footnote 1 ] Bridges v. Superior Court, 14
Cal.2d 464, 94 P.2d 983; Times-Mirror Co. v. Superior Court, 15 Cal.2d 99, 98
P.2d 1029. In the Times-Mirror case, the affidavits of complaint contained
seven counts, each based upon the publication of a different editorial. The
Superior Court for Los Angeles County sustained a demurrer to two of the
counts, and of the five remaining counts on which conviction rested, the
California Supreme Court affirmed as to three, reversed as to two.
[ Footnote 2 ] See The Times-Mirror Co. v.
Superior Court, supra, 15 Cal.2d at page 118, 98 P.2d at page 1040, where the
following is quoted with approval: 'Liberty of the press is subordinate to the
independence of the judiciary ....'
[ Footnote 3 ] Indeed, the only evidence we have
of the California legislature's appraisal indicates approval of a policy
directly contrary to that here followed by the California courts. For Section
1209, subsection 13, of the California Code of Civil Procedure (1937 Ed.)
provides: '... no speech or publication reflecting upon or concerning any court
or any officer thereof shall be treated or punished as a contempt of such court
unless made in the immediate presence of such court while in session and in
such a manner as to actually interfere with its proceedings.' The California
Supreme Court's decision that the statute is invalid under the California
constitution is an authoritative determination of that point. But the
inferences as to the legislature's appraisal of the danger arise from the
enactment, and are therefore unchanged by the subsequent judicial treatment of
the statute.
[ Footnote 4 ] Schenck v. United States, 249 U.S. 47, 52 , 39 S.Ct. 247, 249.
[ Footnote 5 ] Restatement of the phrase 'clear
and present danger' in other terms has been infrequent. Compare, however: '...
the test to be applied ... is not the remote or possible effect.' Brandeis, J.,
dissenting in Schaefer v. United States, 251 U.S. 466, 486 , 40 S.Ct. 259, 266; '... we should
be eternally vigilant against attempts to check the expression of opinions that
we loathe and believe to be fraught with death unless they so imminently
threaten immediate interference with the lawful and pressing purposes of the
law that an immediate check is required to save the country.' Holmes, J.,
dissenting in Abrams v. United States, 250 U.S. 616, 630 , 40 S.Ct. 17, 22. 'To justify
suppression of free speech there must be reasonable ground to fear that serious
evil will result if free speech is practiced. There must be reasonable ground
to believe that the danger apprehended is imminent.' Brandeis, J., concurring
in Whitney v. California, 274 U.S. 357, 376 , 47 S.Ct. 641, 648. The italics are
ours.
[ Footnote 6 ] 'The freedom of speech and of the
press secured by the First Amendment against abridgment by the United States is
similarly secured to all persons by the Fourteenth against abridgment by a
state.' Schneider v. State, 308 U.S. 147, 160 , 60 S.Ct. 146, 150.
[ Footnote 7 ] Compare James Buchanan, quoted in
Stansbury, Trial of James H. Peck, 434: 'At the Revolution we separated
ourselves from the mother country, and we have established a republican form of
government, securing to the citizens of this country other and greater personal
rights, than those enjoyed under the British monarchy.'
[ Footnote 8 ] 16 Geo. II, c. 30. This was not repealed
until 1828. 9 Geo. IV, c. 17.
[ Footnote 9 ] 1 Geo. I, stat. 2, c. 5. Cf. also
36 Geo. III, c. 8, and discussion in Buckle, History of Civilization in
England, Vol. I, 351.
[ Footnote 10 ] Compare VI Writings of James
Madison, 1790-1802, 389: 'To these observations one fact will be added, which
demonstrates that the common law cannot be admitted as the universal expositor
of American terms, ... The freedom of conscience and of religion are found in
the same instruments which assert the freedom of the press. It will never be
admitted that the meaning of the former, in the common law of England, is to
limit their meaning in the United States.' See also Near v. Minnesota, 283 U.S. 697, 716 , 717 S., 51 S.Ct. 625, 631;
Thornhill v. Alabama, supra, 310 U.S. at page 102, 60 S.Ct. at page 744, 84
L.ed. 1093.
[ Footnote 11 ] The New York statute specifically
made 'the publication of a false, or grossly inaccurate report' of court
proceedings punishable by contempt proceedings, however. New York
Rev.Stat.1829, Part III, c. III, tit. 2, art. 1, 10(6). The Pennsylvania
statute contained no such proviso. It explicitly stated that 'all publications
out of court ... concerning any cause pending before any court of this commonwealth,
shall not be construed into a contempt of the said court, so as to render the
author, printer, publisher, or either of them, liable to attachment and summary
punishment for the same.' Pa.Acts 1808-1809, c. 78, p. 146.
[ Footnote 12 ] 4 Stat. 487 (1831), 28 U.S.C.A.
385.
[ Footnote 13 ] Patterson v. Colorado, 205 U.S. 454 , 27 S.Ct. 556, 10 Ann.Cas. 689, the
only case before this Court during that period in which a state court's power
to punish out-of-court publications by contempt was in issue, cannot be taken
as a decision squarely on this point. Cf.: 'We leave undecided the question
whether there is to be found in the 14th Amendment a prohibition similar to
that in the 1st.' Id., 205 U.S. at page 462, 27 S.Ct. at page 558, 10 Ann.Cas.
689.
[ Footnote 14 ] Compare Nelles and King, loc. cit.
supra, 549: 'While the Sacco- Vanzetti case was in the courts (six years), it
was not, we believe, suggested as desirable that public expression on either
side be dealt with as contempts.' In public utility rate regulation, to take
one of many examples that might be given of a field in which public interest is
strong and public opinion divided, cases commonly remain 'pending' for several
years. See St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 , 88-92, 56 S.Ct. 720, 741-743;
McCart v. Indianapolis Water Co., 302 U.S. 419, 435 , 58 S.Ct. 324, 331.
[ Footnote 15 ] Cf.: '... said telegram ... had,
an inherent tendency ... to embarrass and influence the actions and decisions
of the judge before whom said action was pending.' Bridges v. Superior Court,
supra, 14 Cal.2d at page 471, 94 P.2d at page 986. 'The published statement was
not only a criticism of the decision of the court in an action them pending
before said court, but was a threat that if an attempt was made to enforce the
decision, the ports of the entire Pacific Coast would be tied up.' Id., 14
Cal.2d at page 488, 94 P.2d at page 995. '... the test ... is whether it had a
reasonable tendency to interfere with the orderly administration of justice
....' Times-Mirror Co. v. Superior Court, supra, 15 Cal.2d at pages 103, 104,
98 P.2d at page 1032. '... the editorial (had) ... reasonable tendency ... to
interfere with the ordinary administration of justice.' Id., 15 Cal.2d at page
110, 98 P.2d at page 1035. The italics are ours.
[ Footnote 16 ] Compare the following statements
from letters of Thomas Jefferson as set out in Padover, Democracy, 150-151: 'I
deplore ... the putrid state into which our newspapers have passed, and the
malignity, the vulgarity, and mendacious spirit of those who write them. ...
These ordures are rapidly depraving the public taste.
'It is however an evil for which there is no
remedy, our liberty depends on the freedom of the press, and that cannot be
limited without being lost.'
[ Footnote 17 ] The whole editorial, published in
The Los Angeles Times of May 5, 1938, was as follows:
'Two members of Dave Beck's wrecking crew,
entertainment committee, goon squad or gorillas, having been convicted in
Superior Court of assaulting nonunion truck drivers, have asked for probation.
Presumably they will say they are 'first offenders,' or plead that they were
merely indulging a playful exuberance when, with slingshots, they fired steel
missiles at men whose only offense was wishing to work for a living without
paying tribute to the erstwhile boss of Seattle.
'Sluggers for pay, like murderers for profit,
are in a slightly different category from ordinary criminals. Men who commit
mayhem for wages are not merely violators of the peace and dignity of the
State; they are also conspirators against it. The man who burgles because his
children are hungry may have some claim on public sympathy. He whose crime is
one of impulse may be entitled to lenity. But he who hires out his muscles for
the creation of disorder and in aid of a racket is a deliberate foe of
organized society and should be penalized accordingly.
'It will teach no lesson to other thugs to put
these men on good behavior for a limited time. Their 'duty' would simply be
taken over by others like them. If Beck's thugs, however, are made to realize
that they face San Quentin when they are caught, it will tend to make their
disreputable occupation unpopular. Judge A. A. Scott will make a serious
mistake if the grants probation to Matthew Shannon and Kennan Holmes. This
community needs the example of their assignment to the jute mill.'
[ Footnote 18 ] Cf. Times-Mirror Co. v. Superior
Court, supra, 15 Cal.2d at pages 109, 110, 98 P.2d at page 1035: 'The editorial
may not have been intended, but it is capable of being construed, as a notice
to the trial judge that no leniency should be extended to the convicted men,
and, furthermore, that should the court act contrary to the suggestions
contained in the editorial, it might well expect adverse criticism in the
columns of The Times.' Although the foregoing statement was made with respect
to another of the editorials, the opinion of the California Supreme Court later
said it was applicable to 'Probation for Gorillas?'. Id., 15 Cal.2d at pages
114, 115, 98 P.2d at page 1038.
[ Footnote 19 ] The first of these editorials,
entitled 'Sit-Strikers Convicted', was published in the Los Angeles Times of
December 21, 1937, the day after the jury had returned a verdict that the
'sit-strikers' in question were guilty, and the day before the trial judge was
to hold court for the purpose of pronouncing sentence, hearing motions for a
new trial, and passing upon applications for probation. The editorial follows
in its entirety:
'The verdict of a jury finding guilty the
twenty-two sit-strikers who led the assault on the Douglas plant last February,
will have reverberations up and down the Pacific Coast and in points farther
east.
'The verdict means that Los Angeles is still
Los Angeles, that the city is aroused to the danger of davebeckism, and that no
kind of union terrorism will be permitted here.
'The verdict may have a good deal to do with
sending Dave Beck back to Seattle. For, while the United Automobile Workers
have no connection with Beck, their tactics and his are identical in motive;
and if Beck can be convinced that this kind of warfare is not permitted in this
area he will necessarily abandon his dreams of conquest.
'Already the united farmers and ranchers have
given Beck a severe setback. The Hynes hay market is still free and it has been
made plain that interference with milk deliveries to Los Angeles will not be
tolerated.
'Dist. Atty. Fitts pledged his best efforts to
prevent and punish union terrorism and racketeering in a strong radio address,
and followed it up yesterday with a statement congratulating the jury that
convicted the sit-downers and the community on one of the 'most farreaching
verdicts in the history of this country.'
'In this he is correct. It is an important
verdict. For the first time since the present cycle of labor disturbances
began, union lawlessness has been treated as exactly what it is, an offense
against the public peace punishable like any other crime.
'The seizure of property by a militant
minority, which arrogated to itself the right of dictating not only to
employers, but to other workers
who played ball with her. From small beginnings she utilized every
opportunity to extned her influence and to put officeholders and promising
political material under obligations to her. She became a power in the
backstage councils of city and county affairs and from that place of strategic
advantage reached out to pull the strings on State and legislative offices as
well.
'Those were the days when Mrs. Werner was
'Queen Helen' and it is only fair to say that to her the power was much more
important than the perquisites. When the inevitable turning of the political
wheel brought new figures to the front and new bosses to the back, she found
her grip slipping and it was hard to take. The several cases which in recent
years have brought her before the courts to defend her activities seem all
examples of an energetic effort to regain and reassert her onetime influence in
high places. That it should ultimately have landed her behind the bars as a
convicted bribe-seeker is not illogical. But if there is logic in it, the money
meant less to Mrs. Werner than the name of still being a political power, one
who could do things with public officials that others could not do. To herself
at least she was still Queen Helen.'
[ Footnote 20 ] The portions of the telegram
published in newspapers of general circulation in San Francisco and Los Angeles
on January 24 and 25, 1938, were as follows:
'This decision is outrageous considering I.L.A.
has 15 members (in San Pedro) and the International Longshoremen-Warehousemen
Union has 3000. International Longshoremen-Warehousemen Union has petitioned
the labor board for certification to represent San Pedro
longshoremen with International Longshoremen Association denied
representation because it represents only 15 men. Board hearing held; decision
now pending; Attempted enforcement of Schmidt decision will tie- up port of Los
Angeles and involve entire Pacific Coast. International
Longshoremen-Warehousemen Union, representing over 11,000 of the 12,000
longshoremen on the Pacific Coast, does not intend to allow state courts to
override the majority vote of members in choosing its officers and
representatives and to override the National Labor Relations Board.'
[ Footnote 21 ] See Bridges v. Superior Court,
supra, 14 Cal.2d at page 493, 94 P. 2d 983. Cf. White v. Nicholls, 3 How. 266.
[ Footnote 1 ] 'Certain implied powers must
necessarily result to our Courts of justice from the nature of their
institution. ... To fine for contempt- imprison for contumacy-inforce the
observance of order, &c. are powers which cannot be dispensed with in a
Court, because they are necessary to the exercise of all others'. United States
v. Hudson, 1812, 7 Cranch 32, 34.
That 'the safety of the people is the supreme law,' not only comports
with, but is indispensable to, the exercise of those powers in their public
functionaries, without which that safety cannot be guarded. On this principle
it is, that courts of justice are universally acknowledged to be vested, by
their very creation, with power to impose silence, respect and decorum in their
presence, and submission to their lawful mandates, and as a corollary to this
proposition, to preserve themselves and their officers from the approach and
insults of pollution.
'It is true, that the courts of justice of the
United States are vested, by express statute provision, with power to fine and
imprison for contempts; but it does not follow, from this circumstance, that
they would not have exercised that power, without the aid of the statute, or
not in cases, if such should occur, to which such statute provision may not
extend; on the contrary, it is a legislative assertion of this right, as
incidental to a grant of judicial power, and can only be considered only as an instance
of abundant caution, or a legislative declaration, that the power of punishing
for contempt shall not extend beyond its known and acknowledged limits of fine
and imprisonment.' Anderson v. Dunn, 1821, 6 Wheat. 204, 227, 228.
'The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.' Ex parte Robinson, 1874, 19 Wall. 505, 510.
'The act of 1789 did not define what were
contempts of the authority of the courts of the United States in any cause or
hearing before them, nor did it prescribe any special procedure for determining
a matter of contempt. Under that statute the question whether particular acts
constituted a contempt, as well as the mode of proceeding against the offender,
was left to be determined according to such established rules and principles of
the common law as were applicable to our situation.' Ex parte Savin,
Petitioner, 1889, 131 U.S. 267, 275 , 276 S., 9 S.Ct. 699, 701.
[ Footnote 2 ] For the history leading up to the
Pennsylvania legislation, see Respublica v. Oswald, 1788, 1 Dall. 319,
particularly note beginning at page 329; Respublica v. Passmore, 3 Yeates, Pa.,
441, 2 Am. Dec. 388; Hamilton, Report of the Trial and Acquittal of Justices of
the Supreme Court of Pennsylvania (1805). Cf. Hollingsworth v. Duane, Fed.Cas.
No.6,616, Wall.Sr. 77; United States v. Duane, Fed.Cas.No.14,997, Wall.Sr. 102.
[ Footnote 3 ] The charge against Judge Peck was
that he punished counsel for contempt after the final decree of the particular
litigation had been rendered and the necessary steps for an appeal had been
taken, and after the judge had published his opinion in a newspaper and
plaintiff in reply had submitted to the public 'a concise statement of some of
the principal errors into which your petitioner (the accused counsel) had
fallen'. Stansbury, Report of the Trial of James H. Peck (1833). In view of
their immediate professional responsibility, the eminent lawyers who had charge
of the impeachment proceedings against Judge Peck would naturally take the
least tolerant view of the power of courts to punish for contempt. Yet all the
managers of the House of Representatives (James Buchanan of Pennsylvania,
George E. McDuffie of South Carolina, Ambrose Spencer and Henry Storrs of New
York, Charles E. Wickliffe of Kentucky) acknowledged the historic power to
punish interferences calculated to obstruct the exercise of the judicial
function in a pending cause. They did so substantially in the terms now here
challenged. Ibid., pp. 91, 291, 293, 382, 400. The following from Mr. Storrs'
argument is a fair sample:
'The law of contempts, when confined to the
protection of the courts in their proper constitutional action and duties, and
to the punishment of every direct or indirect interference with the exercise of
their powers and the protection of those who are concerned in them as parties,
jurors, witnesses and officers of justice in aid of the administration of their
functions, was too well established and too well sustained by principle as well
as positive law, to be doubted or disturbed; and, confined to its proper
limits, admitted of all reasonable certainty in its definitions of crime. But
if extended to the case of general libel, there was no security for personal
liberty but the discretion or feeling of a judge.' Ibid., p. 400.
[ Footnote 4 ] It is relevant to add that this
expressed the view of Mr. Justice Holmes and Mr. Justice Brandeis whose opinions
have had such a powerful influence in pressing the Due Process Clause to the
service of freedom of speech and of the press. In two earlier cases of summary
punishment for contempt they strongly dissented because they found that the
limits set by the Act of 1831 had been exceeded. Toledo Newspaper Co. v. United
States, 247 U.S. 402 , 38 S.Ct. 560, and Craig v. Hecht, 263 U.S. 255 , 44 S.Ct. 103. But in neither case
did they suggest any constitutional difficulty in the exercise of the contempt
power arising from the prohibition of the First Amendment.
[ Footnote 5 ] See the Lincoln Day, 1898, address
of Mr. Justice Brewer, Government by Injunction, 15 Nat.Corp.Rep. 848, 849: 'It
is a mistake to suppose that the Supreme Court is either honored or helped by
being spoken of as beyond criticism. On the contrary, the life and character of
its justices should be the objects of constant watchfulness by all, and its
judgments subject to the freest criticism. The time is past in the history of
the world when any living man or body of men can be set on a pedestal and
decorated with a halo. True, many criticisms may be, like their authors, devoid
of good taste, but better all sorts of criticism than no criticism at all. The
moving waters are full of life and health; only in the still waters is
stagnation and death.'
[ Footnote 6 ] 'It is most important that the
administration of justice in this country should not be hampered as it is
hampered in some other countries, and it is not enlarging the jurisdiction of
this court-it is refusing to narrow the jurisdiction of this court-when we say
that we are determined while we are here to do nothing to substitute in this
country trial by newspaper for trial by jury; and those who attempt to
introduce that system in in this country, even in its first beginnings, must be
prepared to suffer for it. Probably the proper punishment-and it is one which
this court may yet have to award if the punishment we are about to award proves
insufficient-will be imprisonment in cases of this kind. There is no question
about that, because we cannot shut our eyes to the fact that newspapers are
owned by wealthy people, and it may even happen that they will take the chances
of the fine and pay it cheerfully and will not feel that they have then paid
too much for the advertisement.' Rex v. Clarke, 103 L.T.R., N.S., 636, 640.
[ Footnote 7 ] Thus, in England, the 'third
degree' never gained a foothold, and its emergence was impressively resisted
long before it was outlawed here. See 217 Parl. Deb. (Commons) cols. 1303 et seq. (May 17, 1928); Inquiry in regard to
the Interrogation by the Police of Miss Savidge, Cmd. 3147 (1928 ); Report of
the Royal Commission on Police Powers and Procedure, Cmd. 3297 (1929).
[ Footnote 8 ] The present cases are very different from the situation that evoked dissent in Craig v. Hecht, 263 U.S. 255, 281 , 44 S.Ct. 103, 108: 'It is not enough that somebody may hereafter move to have something done. There was nothing awaiting decision when the petitioner's letter was published.' And see Glasgow Corporation v. Hedderwick & Sons (1918) Sess. Cas. 639. Compare State ex rel. Pulitzer Pub. Co. v. Coleman, Mo.Sup.1941, 152 S.W.2d 640.
[ Footnote 9 ] 35 Stat. 1113, 18 U.S.C. 241, 18
U.S.C.A. 241: 'Whoever corruptly, or by threats or force, or by any threatening
letter or communication, shall endeavor to influence, intimidate, or impede any
witness, in any court of the United States or before any United States
commissioner or officer acting as such commissioner, or any grand or petit
juror, or officer in or of any court of the United States, or officer who may
be serving at any examination or other proceeding before any United States
commissioner or officer acting as such commissioner, in the discharge of his
duty, or who corruptly or by threats or force, or by any threatening letter or
communication, shall influence, obstruct, or impede, or endeavor to influence,
obstruct, or impede, the due administration of justice therein, shall be fined
not more than $1,000, or imprisoned not more than one year, or both.'