holding that a publisher, a writer, and a reporter could not be held in contempt for printing accounts of proceedings in a civil trial, because “[a] trial is a public event [and] [w]hat transpires in the court room is public property5’
How later courts described this case
- holding that a publisher, a writer, and a reporter could not be held in contempt for printing accounts of proceedings in a civil trial, because “[a] trial is a public event [and] [w]hat transpires in the court room is public property5’
- holding judge may not hold individual in contempt simply for using “strong language” or “intemperate language”
- contempt conviction of a publisher and reporter based upon newspaper articles characterizing a judge’s directed verdict in a landlord-tenant controversy as a “travesty on justice”
- "[R]obust debate among people with different viewpoints * * * is a vital part of our democracy * * *."
Written by the judges who cited it.
The opinion
Mr. Justice Jackson,
dissenting.
This is one of those cases in which the reasons we give for our decision are more important to the development of the law than the decision itself.
It seems to me that the Court is assigning two untenable, if not harmful, reasons for its action. The first is that this newspaper publisher has done no wrong. I take it that we could not deny the right of the state to punish him if he had done wrong and I do not suppose we could say that the traditional remedy was an unconstitutional one.
The right of the people to have a free press is a vital one, but so is the right to have a calm and fair trial free from outside pressures and influences. Every other right, including the right of a free press itself, may depend on the ability to get a judicial hearing as dispassionate *395 and impartial as the weakness inherent in men will permit. I think this publisher passed beyond the legitimate use of press freedom and infringed the citizen’s right to a calm and impartial trial. I do not think we can say that it is beyond the power of the state to exert safeguards against such interference with the course of trial as we have here.
This was a private lawsuit between individuals. It involved an issue of no greater public importance than which of two claimants should be the tenant of the “Playboy Cafe.” The public interest in the litigation was that dispassionate justice be done by the court and that it appear to be done.
The publisher had a complete monopoly of newspaper publicity in that locality. For reasons that are not apparent, the papers took an unusual interest in the proceeding. They first made what the court agrees was a “rather sketchy and one-sided report of a case.” This is not overstatement. The former tenant had tendered a check and the newspaper report represented it as a payment of rent; it made no reference to the fact that the check was postdated and was therefore no payment at all. Reports played up the fact that its favorite among the litigants was a veteran. The community became aroused. Then the newspaper published editorials which attacked the judge while a motion for retrial was pending with what the prevailing opinion concedes was “strong language, intemperate language, and, we assume, an unfair criticism.” The object of the publicity appears to have been to get the judge to reverse himself and to grant a new trial.
The fact that he did not yield to it does not prove that the attack was not an effective interference with the administration of justice. The judge was put in a position in which he either must appear to yield his judgment to public clamor or to defy public sentiment. The consequence of attacks may differ with the temperament of the *396 judge. Some judges may take fright and yield while others become more set in their course if only to make clear that they will not be bullied. This judge was evidently of the latter type. He was diverted from the calm consideration of the litigation before him by what he regarded as a duty to institute a contempt proceeding of his own against his tormentors.
For this Court to imply that this kind of attack during a pending case is all right seems to me to compound the wrong. The press of the country may rightfully take the decision of this Court to mean indifference toward, if not approval of, such attacks upon courts during pending cases. I think this opinion conveys a wrong impression of the responsibilities of a free press for the calm and dispassionate administration of justice and that we should not hesitate to condemn what has been done here.
But even worse is that this Court appears to sponsor the myth that judges are not as other men are, and that therefore newspaper attacks on them are negligible because they do not penetrate the judicial armor. Says the opinion: “But the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” With due respect to those who think otherwise, to me this is an ill-founded opinion, and to inform the press that it may be irresponsible in attacking judges because they have so much fortitude is ill-advised, or worse. I do not know whether it is the view of the Court that a judge must be thick-skinned or just thickheaded, but nothing in my experience or observation confirms the idea that he is insensitive to publicity. Who does not prefer good to ill report of his work? And if fame — a good public name — is, as Milton said, the “last infirmity of noble mind,” it is frequently the first infirmity of a mediocre one.
*397 From our sheltered position, fortified by life tenure and other defenses to judicial independence, it is easy to say that this local judge ought to have shown more fortitude in the face of criticism. But he had no such protection. He was an elective judge, who held for a short term. I do not take it that an ambition of a judge to remain a judge is either unusual or dishonorable. Moreover, he was not a lawyer, and I regard this as a matter of some consequence. A lawyer may gain courage to render a decision that temporarily is unpopular because he has confidence that his profession over the years will approve it, despite its unpopular reception, as has been the case with many great decisions. But this judge had no anchor in professional opinion. Of course, the blasts of these little papers in this small community do not jolt us, but I am not so confident that we would be indifferent if a news monopoly in our entire jurisdiction should perpetrate this kind of an attack on us.
It is doubtful if the press itself regards judges as so insulated from public opinion. In this very case the American Newspaper Publishers Association filed a brief amicus curiae on the merits after we granted certiorari. Of course, it does not cite a single authority that was not available to counsel for the publisher involved, and does not tell us a single new fact except this one: “This membership embraces more than 700 newspaper publishers whose publications represent in excess of eighty per cent of the total daily and Sunday circulation of newspapers published in this country. The Association is vitally interested in the issue presented in this case, namely, the right of newspapers to publish news stories and editorials on cases pending in the courts.”
This might be a good occasion to demonstrate the fortitude of the judiciary.