The opinion
EDMONDS, J., Dissenting.
The charge against the petitioner is that he published a statement concerning Judge Schmidt and the merits of a case which had not been finally decided. But the legislature has declared that “no speech or publication reflecting upon or concerning any court or 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 manner as to actually interfere with its proceedings ’ ’ (sec. 1209, Code Civ. Proc.) is constitutional. This law, passed in 1891, expresses the constitutional guarantees of free speech and a free press and should be upheld.
The California statute upon this subject is in substantially the same form as those of many other states. Unquestionably the legislative purpose has been to prevent abuses of uncontrolled power. However, such enactments, with few exceptions, have been swept aside as unconstitutional efforts to trench upon judicial authority. These decisions are posited *495 upon the assumption that the right to hold one guilty of either a direct or a constructive contempt, summarily and without a jury trial, is “inherently necessary” to judicial administration and is founded upon “immemorial usage” at common law. Yet neither the declarations of the courts in support of their dignity and independence, nor the enactments of legislative bodies upholding freedom of speech and the press, have settled the seemingly irreconcilable conflict. Whenever vital issues affecting the public interest are presented for adjudication, and editors or citizens of positive views comment upon either the facts of a case or the principles which are claimed to govern the result, the question whether a judge may punish for contempt usually arises, Phoenix-like, from the ashes of earlier controversies.
Modern legal scholars have made an extended study of the principles upon which the law of contempt by publication rests, and conclude that much of what has been judicially relied upon as authority to punish for such an act is fiction. The writers of an exceptionally well-considered article in the Columbia Law Review, after a most thorough investigation, assert that the rules of the common law do not support the claims which have been made for them. (Nelles and King, Contempt by Publication in the United States, 28 Col. L. Rev. 401, 525.) In short, it now appears that in this branch of the law, the courts have built a structure of judicial reasoning upon the sands of precedents which do not exist.
The first enactment upon the subject of contempts was that of the statute of Westminster (13 Ed. 1, c. 39) which was adopted seventy years after the date of Magna Charta. This statute concerns contempts in resisting the process of the King’s courts, a class defined by Blackstone as “consequential contempts,” and it seems most unlikely that this legislation would have been enacted if the power to punish such offenses constituted a part of the law of the land which existed so long before Magna Charta as to be considered a maxim of jurisprudence. In any event, the first newspapers were established three hundred and fifty years after the date of Magna Charta, and the offense of contempt by publication must, therefore, be of much later origin.
Early in our own national history the question whether one might be summarily punished for a constructive contempt was presented by a case in Pennsylvania which arose out of the *496 campaign for ratification of the federal Constitution. A newspaper editor named Oswald, who was the leader of the opposition to ratification, was arrested for a libel. He countered in the columns of his newspaper with the charge that the prosecution was prompted by political motives, and for this publication he was ordered to show cause why he should not be attached for contempt. In support of the attachment, counsel relied upon Blackstone and a dictum in Roach v. Garvan, 2 Atkyns, 469 (1742), which was a decision by the English Court of Chancery not based upon any common law precedent. (See Fox, Contempt of Courts, p. 22.) Chief Justice McKean of Pennsylvania, in deciding the case, stated that “proceeding by attachment is as old as the law itself and no act of the legislature, or section of the Constitution, has interposed to alter or suspend it” and he concluded that since the Constitution guaranteed trial by jury only “as heretofore”, the summary procedure was proper. (Respublica v. Oswald, 1 Dallas, 319 [ 1 L. Ed. 155 , 1 Am. Dec. 246 ].)
According to Blackstone’s Commentaries, either “speaking or writing contemptuously of the Court or Judges, acting in their judicial capacity” or “printing false accounts of causes then pending in judgment” was punishable by immediate attachment. In such a proceeding, Blaekstone said, the court’s power “results from the first principles of judicial establishments and must be an inseparable attendant upon every superior tribunal”. (4 Blacks. Com. 284 et seq.) Largely upon the authority of Blaekstone’s views, the Pennsylvania court concluded that summary process and trial was proper in all contempt proceedings. Oswald was fined and imprisoned, but upon his release he memorialized the legislature for the impeachment of the justices of the Supreme Court. After consideration of the charges, a resolution was adopted denying articles of impeachment. Later a proposal to define the nature and extent of contempts was introduced in the legislature, but the measure was defeated by a Federalist majority. (See note to Respublica v. Oswald, supra, p. 329 et seq.)
The concept of freedom of the press, stated by Blaekstone, is completely foreign both in time and place to the fundamental principles of American institutions. The doctrine that “the liberty of the press . . . consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published” (5 Blacks. Com. 151) *497 is a statement of the British law at a time when seditious libel was punishable as a crime; it is not the interpretation of a Constitution. Moreover, that law has been very differently declared in the last one hundred and twenty-five years. (See Chaffee, Freedom of Speech, (1920) 8 et seq.)
It now appears probable that Blackstone’s notions of “immemorial usage” concerning the authority of a court to summarily punish for contempt by publication were based upon the draft of an “opinion” in The King v. Almon written by Wilmot, J., about 1765, three or four years before the publication of the Commentaries. (See Fox, Contempt of Courts, p. 21.) A rule nisi had been obtained to attach John Almon, a bookseller, for publishing a libel on the Chief Justice, Lord Mansfield, and after argument Wilmot prepared an opinion. In answer to the contemnor’s claim that summary procedure by attachment was inappropriate, he stated: “The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution; it is a necessary incident to every court of justice, whether of record or not, to fine and imprison for a contempt to the court, acted in the face of it, 1 Yentris I, and the issuing attachments by the supreme courts of justice in Westminster Hall for contempts out of court stands upon the same immemorial usage as supports the whole fabric of the common law; it is as much the lex terrae and within the exception of Magna Charta as the issuing of any other legal process whatsoever. . . . And though I do not mean to compare and contrast attachments with trials by jury, yet truth compels me to say that the mode of proceeding by attachment stands upon the very same foundation and basis as trial by juries do— immemorial usage and practice. (Wilmot’s Notes, p. 254.) ” (Fox, supra, pp. 7, 8.)
The proceeding against Almon was aborted by a procedural defect and was subsequently abandoned with a change of ministry; consequently, Wilmot’s decision was never delivered. However, almost forty years later it was published with his other papers, and has been cited and relied upon as a correct statement of the. law ever since. Sir John Fox comments upon it as follows: “Never pronounced in court/ this extrajudicial opinion did not possess the binding effect of a decision, but it acquired the singular distinction of becoming a leading authority by citation and approval in sub *498 sequent eases, the earliest of which was decided fifty-six years after the opinion was written. No higher testimony to Mr. Justice Wilmot’s reputation for learning and ability could be given than this, that his opinion was adopted by succeeding judges without question and without examination of earlier authorities.” (Fox, supra, p. 8.)
Here is one of the strangest stories in the history of the law. The most remarkable part of it is that the earlier authorities, with the exception of the decisions of the Star Chamber, required prosecution by indictment, presentment and arraignment for contempts committed by “strangers” to the court, and the contemner was entitled to a trial by jury. (See Solly-Flood: “Prince Henry and Chief Justice Gascoigne,” Transactions of the Royal Historical Society, vol. 3, N. S., p. 47; Fox, supra, p. 227 et seq.) But Blackstone followed the posthumous views of his friend Wilmot, and the Supreme Court of Pennsylvania in the Oswald case based its decision upon a doctrine which was historically incorrect. Thus the opinion of an English judge in an undecided case was given the authority of a precedent in the new country.
A decade later the same question was reviewed in the case of Bayard v. Passmore, 3 Yeates (Pa.), 438, 440. Passmore, by posting a notice in the exchange room of the city tavern, denounced his adversary in a pending appeal as “a liar, a rascal and a coward”. For this he was attached for contempt and was found guilty and sentenced to fine and imprisonment. The controversy then passed from the court to the legislature, but by this time the Federalists were in a minority, and articles of impeachment were preferred against the three Federalist judges who had found Passmore guilty. In the state senate the vote was 13 to 11—-two votes short of the necessary two-thirds for impeachment. (See Nelles and King, supra, p. 414.) But shortly afterward a statute was passed restricting the judicial power over con-tempts to its true historic limits: (1) official misconduct of court officers; (2) disobedience of process; and (3) misbehavior in the actual presence of the court which actually obstructs the administration of justice. (1808-1809 Pa. Acts, ch. 78, p. 146.) Although the statute has since been amended, it has stood as the law of Pennsylvania from the date of its enactment to the present time. (17 P. S., secs. 2041-2045.)
*499 The history of legislation in New York concerning punishment for contempt has a similarly interesting background. In 1803, Chancellor Kent asserted the same broad summary power which had been maintained by Chief Justice McKean in Pennsylvania. (People v. Freer, 1 Caines (N. J.), 518.) However, the power was moderately used in New York, and only once did public clamor arise over its exercise. That occasion grew out of an attachment of one Yates, who was charged with illegally practicing as a solicitor—a contempt which is within the historic scope of the power to punish summarily. Yates sought habeas corpus in the Supreme Court and the writ was dismissed, after which he appealed to the “Court for the Trial of Impeachment and the Correction of Errors”, which consisted of the justices of the Supreme Court and the members of the state senate. That body reversed the Supreme Court and held that Yates should have been discharged. (Case of J. V. N. Yates v. People, 6 Johns. (N. Y.) 337.)
Yet it was not until 1829 that New York limited the judieial power in contempt proceedings. By legislation then adopted, with the exception of permitting punishment of “a false, or grossly inaccurate report of its proceedings”, the summary powers of the New York courts were confined to direct contempts tending to interrupt the proceedings of these courts and to any resistance to or disobedience of their orders or process. (N. Y. Rev. Stat. of 1829, part 3, chap. 3, title 2, art. 1, sec. 10.) Historically, it is said that this statute reflects the views of Edward Livingston, who considered the power of summary punishment to be repugnant “to all the fundamental principles which secure private rights in the administration of justice”, and argued that there is no true necessity for a court to undertake the punishment of its own offenders. (See Nelles and King, supra, p. 419.)
The early development of the contempt power in the federal courts presents a true parallel to the Pennsylvania experience. Section 17 of the Judiciary Act of 1789 empowered the courts of the United States “to punish by fine or imprisonment ... all contempts of authority in any cause or hearing before the same”. There were several cases under this provision containing intimations of “inherent” power (United States v. Hudson, 7 Cranch, 32 [ 3 L. Ed. 259 ] ; Anderson v. Dunn, 6 Wheat. 204, 227 [ 5 L. Ed. 242 ]), but *500 the first decision'directly passing .upon a conviction for contempt by publication, summarily imposed, did not arise until the notorious Peck-Lawless controversy in 1826.
With the acquisition of the Louisiana territory earlier in the century, there was a wild speculative scramble for land claims. Although public lands in the territory had not yet been opened up for preemption, previous grants by Spanish and French authorities were recognized. In efforts to prove such grants fraud and forgery were rife, and there was great public interest in litigation over land claims. Lawless, who was an attorney representing a large group of claimants, appeared as counsel in a case brought to test the validity of such a grant. Judge Peck, the federal judge for Missouri, decided one case against him, and Lawless countered with a newspaper article criticizing the decision. Judge Peck promptly attached Lawless for contempt and, after a hearing, found him guilty, imposing a sentence of one day’s imprisonment and suspension from practice for eighteen months.
Lawless, who had influential friends in Washington, then memorialized Congress for Peck’s impeachment. After a trial which consumed a large part of the session of 1830—1831, Judge Peck was acquitted by a narrow margin. (See Stansbury, Trial of James H. Peck (1833).) However, the episode immediately precipitated legislation on the question of summary judicial power in contempt proceedings. A federal statute enacted in 1831 provided that “the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts . . . and the disobedience or resistance by any officer . . . party, juror, witness or any other person ... to any lawful writ, process, order, rule, decree or command of the said courts”.
The words “misbehavior ... so near thereto as to obstruct the administration of justice” were inserted to include, within the definition of contempts, breaches of the peace near the courthouse which might interrupt judicial proceedings. (See Nelles and King, supra, p. 530.) By other provisions of the statute, acts formerly designated as contempts, *501 such as attempts to influence jurors, witnesses or officers or attempts to obstruct or impede the administration of justice by threats or force were made punishable by the regular process of indictment and trial. (Act of March 2, 1831, c. 99; 4 Stat. 487 ; now U. S. Code, secs. 385 and 241.) Again, by legislation, summary judicial power was expressly restricted to its true historic limits.
General public agreement with the policy exemplified by the federal statute and those of Pennsylvania and New York is indicated by the fact that numerous other states soon adopted similar laws. By 1860, twenty-three of the thirty-three states of the Union had adopted acts limiting the summary power to punish for contempt. (See Nelles and King, supra, p. 533.) And with the exception of New Hampshire and Arkansas, these limitations were respected in every jurisdiction where they were questioned. (Ex parte Poulson, Fed. Cas. No. 11350, 1205-1209 (1835); United States v. Holmes, Fed. Cas. No. 15383 (1842); Stuart v. People, 3 Scram. 395 (Ill. 1842); Ex parte Hickey, 4 Smedes & M. 751 (Miss. 1844); Dunham v. State, 6 Iowa, 245 (1858) ; Brown & Calkins Case (1854), see State v. Eau Claire, 97 Wis. 1, 11 [ 72 N. W. 193 , 65 Am. St. Rep. 90 , 38 L. R. A. 554]; Foster v. Commonwealth, 8 Watts & S. 77 (Pa. 1844).)
The New Hampshire court held that the writer of an article constituting a contempt might be punished summarily, notwithstanding the statute of that state, but in reaching that conclusion it relied upon Respublica v. Oswald, supra, which, as has been pointed out, followed the fallacious doctrine of Blackstone based upon the writing of Judge Wilmot. (Tenney’s Case, 23 N. H. 162, 185.) This decision has not attracted general attention and is referred to infrequently. However, the case of State v. Morrill, 16 Ark. 384 , like The King v. Almon, supra, has had on unusual influence in shaping the law concerning contempts. It has been cited and relied upon as an authority in many states, including California, and as it is the first decision in the United States which set aside a statute limiting a court’s jurisdiction over alleged contempts, it merits particular attention.
In an editorial in his newspaper, Morrill intimated that the justices of the state Supreme Court had been guilty of bribery in a criminal case. They summoned him to show cause why he should not be adjudged in contempt. In a lengthy opin *502 ion, which added little that was new to the subject, the court sustained its power to punish summarily notwithstanding legislative limitation to specified acts “and no others”. By constant repetition, factitious weight was given to the assumption that such power is inherent, necessary, and traditional. The court quoted at length from Blackstone, Roach v. Garvan, supra; Respublica v. Oswald, supra; The King v. Almon, supra, and from earlier Arkansas cases of direct contempt. Cases which had sustained the limitations placed by Congress upon the federal courts were held inapplicable upon the ground that the lower federal courts were the creatures of Congress and not of the Constitution. The Peck-Lawless case was distinguished upon the ground that Lawless had “published a criticism upon the opinion, not impugning the motives or charging corruption upon the judge, but discussing the correctness of the opinion” and “the distinction between constitutional freedom, and licentious abuse of the press, is now so well understood in this country, that no American judge could consider himself authorized to punish as for contempt, authors of publications of the character of that made by Mr. Lawless”.
Morrill was finally discharged upon filing a response under oath denying any intention to commit a contempt. (State v. Morrill, 16 Ark. 384, 412 .) But this decision led the way for a series of cases which cast off the legislative fetters in almost every jurisdiction where they had been imposed. (See Nelles and King, supra, pp. 554, 562.) The basis of the asserted authority of a court to ignore statutory regulation of the power to summarily punish for contempt was, most frequently, said to be that it is unconstitutional, as trenching upon an inherently necessary and immemorially exercised power. (See for example, State v. Shepherd, 177 Mo. 205 [ 76 S. W. 79 , 99 Am. St. Rep. 624 ] ; State v. Frew, 24 W. Va. 416 [ 49 Am. Rep. 257 ].) Other cases hold that legislation on the subject of inherent judicial power is merely declaratory and is not binding on the courts. (See Dale v. State, 198 Ind. 110 [ 150 N. E. 781 , 49 A. L. R. 647].)
In a third class of cases the same result was achieved by construing the phrase “in the presence of the court or so near thereto”, adopted from the federal statute, as applying to contempts by publication, upon the theory that a widely circulated newspaper is constructively present in or near to the *503 court. (See People v. Wilson, 64 Ill. 195 [ 16 Am. Rep. 528 ]; Myers v. State, 46 Ohio St. 473 [ 22 N. E. 43 , 15 Am. St. Rep. 638 ].) Only in Pennsylvania, New York, Kentucky and (probably) South Carolina have the legislative limitations been respected. (Ex parte Steinman, 95 Pa. St. 220 [ 40 Am. Rep. 637 ] ; Rutherford v. Holmes, 5 Hun, 317 , 319, affd. 66 N. Y. 368 ; Adams v. Gardner, 176 Ky. 252 [ 195 S. W. 412 ]), but it is worthy of note that the courts of these states have become neither contemptible nor inefficient.
For some seventy-five years, the federal courts construed the congressional statute as a limitation upon their power to summarily punish for a constructive contempt. (Ex parte Poulson, (1835) supra; Ex parte Robinson, (1873) 19 Wall. 505, 510 [ 22 L. Ed. 205 ].) After 1900, moreover, there were indications that the requirement of physical proximity might be interpreted so as to include newspaper comment (Ex parte McLeod, (1903) 120 Fed. 130, 140 ; United States v. Huff, (1913), 206 Fed. 700, 704 ), but it was not until 1915 that the “constructive presence” doctrine was extended to contempts by publication. In that year the Toledo News-Bee published articles and cartoons which intimated that a United States district judge was biased in litigation pending between the city of Toledo and a traction company. The newspaper and its editor were adjudged guilty of contempt in a summary proceeding (United States v. Toledo Newspaper Co., 220 Fed. 458 ) ; and the judgment was sustained by the United States Supreme Court in Toledo Newspaper Co. v. United States, 247 U. S. 402 [38 Sup. Ct. 560, 62 L. Ed. 1186 ], Justices Holmes and Brandéis dissenting. Chief Justice White, who wrote the majority opinion, held that it was “essential to recall the situation existing at the time of the adoption of the Act of 1831 in order to elucidate its provisions”, but his research apparently stopped with his own opinion written a year and a half earlier in Marshall v. Gordon, 243 U. S. 521 [37 Sup. Ct. 448, 61 L. Ed. 881 , Ann. Cas. 1918B, 371, L. R. A. 1917F, 279], dealing with the power of Congress to punish summarily for contempt. An analogy was drawn between the powers of Congress and those of the courts, and he asserted that each was based upon the “right of self-preservation”. This is the doctrine of “inherent necessity” in a new garb.
*504 Regardless of the fact that judicial power had been limited' by the Statute of 1831, the court had “no doubt that the provision conferred no power not already granted and imposed no limitations not already existing”. This conclusion is palpably and demonstrably incorrect when considered in the light of the historical background in which the federal statute was conceived. The federal courts, although by statute stripped of their power to punish contumacious editors, had transacted judicial business for almost a century without loss of either prestige or independence, yet Justice White said that freedom of the press “cannot be held to include the right virtually to destroy”. The omission in the federal act of the tautological provision of the Pennsylvania act expressly abolishing contempts by publication, was considered by him to be “the strongest possible evidence of the purpose not to enact such provision”. (For a searching criticism of the majority opinion, see Frankfurter and Landis: Power of Congress over Procedure in Criminal Contempts, 37 Harv. L. R. 1010.)
In California the first legislature expressly provided that the courts might punish for contempts. (Stats. 1850, chap. 33, sec. 13.) Under this statute the “power to punish in a summary manner, by fine or imprisonment, or either, for contempts offered to them while in session, or to any process, writ, rule, or order of said courts issued and made, or for disobeying any writ, process, or order thereof, or for obstructing or preventing the execution of the same, and the judgments, decrees, and determinations of said Courts in such cases shall be final and conclusive. ...”
The law was soon put to a test. Early in 1851 William Walker, the editor of the San Francisco Herald, published an article referring to Judge Parsons with biting scorn. Also attacking the courts generally, the writer said: “They cover crime with the folds of the ermine; they lift their impotent arms to scourge an unfettered press with the rods of justice, as they style it. They drop the tears of a bastard mercy upon the robbers and the assassins who threaten our lives and our. property; they turn with a scowl of wrath and an arm of vengeance upon the press which dares to complain of the tenderness with which offenders are treated.”
Cited for contempt of court in summary proceedings, Walker was adjudged guilty, his punishment was fixed at a *505 fine of five hundred dollars and he was ordered to stand committed until the same should be paid. In a written opinion Judge Parsons pointed out that the legislature had not defined “what shall or shall not be a contempt”, and relying upon some statements of Chancellor Kent in People v. Freer, supra, he held that the power to punish summarily had existed in English and American courts “time out of mind” and “is exercised ... in all the states of the Union, unless a statute exists expressly taking away from the courts that power”. (Matter of Impeachment, 1 Cal. 542 .)
Immediately upon his commitment, Walker memorialized the assembly of the legislature for the impeachment of Judge Parsons. A special committee submitted a report taking as precedents the Peck-Lawless and Respublica v. Oswald cases and recommending impeachment. But the assembly refused to adopt the report, and appointed another special committee. The second committee found in early expressions of Chief Justice McKean of Pennsylvania and Chancellor Kent of New York, common law sanction for the use of summary power and declared that section 13 of the District Court Act did not explicitly limit that power; hence “If there be fault anywhere, it is attributable to the obscurity of this section of the act, rather than to the interpretation put upon it by the court.” The committee, therefore, concluded that Walker’s charges “show no cause for impeachment” of Judge Parsons but was “induced to recommend the passage of a law, more explicitly defining contempts of court and the power of courts to punish them”.
At the second session of the legislature, section 480 of the Practice Act was enacted. (Stats. 1851, chap. 5, tit. 13, p. 126.) In general, this section defined contempt of court as any misbehavior or breach of the peace in the presence of the court or its immediate vicinity which tends to interrupt the due course of trial or any disobedience of process. Section 1209 of the Code of Civil Procedure, enacted in 1872, adopted the Practice Act definition of contempt, together with several additions to it. Official misconduct of judicial officers, abuse of process, acting as an officer of the court or attorney without authority or license, interference with jurors or witnesses, and disobedience of the order of a superior court by an inferior tribunal were brought within the *506 summary power, as was also “any other unlawful interference with the process or proceedings of a court”. (Subd. 9.)
Not until 1890 did anyone challenge the application of this section to contempts by publication. At that time one Barry, who was editor of the San Francisco Weekly Star, published a particularly violent denunciation of Francis W. Lawler, a superior court judge, for sustaining a demurrer to a suit to oust a city supervisor from office. Barry was found guilty of contempt in a summary proceeding before three other judges of the superior court. The Supreme Court denied his application for habeas corpus upon the ground that the editorial was an “unlawful interference with the proceedings of a court” within the meaning of subdivision 9 of section 1209 of the Code of Civil Procedure. (Ex parte Barry, 85 Cal. 603 [ 25 Pac. 256 , 20 Am. St. Rep. 248 ].)
Criticism of the decision soon appeared in several San Francisco newspapers. The Morning Call characterized the court as “accuser and judge” and argued that the accused should have been allowed a jury trial, as was then the practice of the federal courts in such eases. The San Francisco Evening Bulletin of September 13, 1890, stated in part, “The decision of the Supreme Court in the case of Editor Barry is exciting a great deal of unfavorable comment. Whether he libelled or not one of the Superior Judges cuts no figure in the case. The main fact is that he is to be punished without a hearing. ...” In the San Francisco Chronicle of September 22, 1890, appeared an editorial which concluded: “All that can be done, if the Supreme Court adheres to its ruling in the Barry case, is to amend the statute by a negative clause, declaring that an attack upon the integrity of a judge made in the columns of a newspaper or other publication is not a contempt of court. If it come within the definition of a libel, the proprietor of the newspaper must stand the consequences. That is the responsibility which the Constitution and the law impose upon the newspaper, and which it cannot escape if it would; but to have its mouth closed thereafter, and to be precluded from making its defense before a jury, is not in harmony with either the spirit or the letter of the law, organic as well as statutory.”
It is interesting to note that within a few months after this decision the legislature of 1891 amended section 1209 of the Code of Civil Procedure by providing that “no speech *507 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”. But this restriction upon the judicial power was soon declared unconstitutional. (In re Shortridge, 99 Cal. 526, 532 [ 34 Pac. 227 , 37 Am. St. Rep. 78 , 21 L. R. A. 755].) The “inherent necessity” doctrine, said Justice Paterson, is “founded upon the principle—which is coeval with the existence of the courts, and as necessary to the right of self-protection—that it is a necessary incident to the execution of the powers conferred upon the court, and is necessary to maintain its dignity, if not its very existence”. Admitting that the legislature had the right “to regulate the procedure and enlarge the power”, the court also held that it could not “without trenching upon the constitutional powers of the court and destroying the autonomy of that system of checks and balances, which is one of the chief features of our triple department form of government, fetter the power itself”.
To support the court’s conclusions it cited only the Arkansas case of State v. Morrill, supra, which was said to be “in line with all of the authorities”. But aside from the lack of precedent for the decision, it is entitled to no consideration in defining the law of contempt because the judgment against the offending editor was set aside upon the ground that, considering all of the facts, “the publication could not, under any circumstances, constitute a contempt”. Yet in People v. Durrant, 116 Cal. 179, 209 [ 48 Pac. 75 ], it was cited for the obiter statement that a publication calculated to influence a decision is punishable as a contempt. Also, the same dictum, was quoted in Lamberson v. Superior Court, 151 Cal. 458, 461 [ 91 Pac. 100 , 11 L. R. A. (N. S.) 619], Paddon v. Superior Court, 65 Cal. App. 34 [ 223 Pac. 91 ], and In re Mason, 69 Cal. App. 598 [ 232 Pac. 157 ], but in each of these eases the petitioner was charged with a direct contempt, and no question concerning the constitutionality of that portion of section 1209 of the Code of Civil Procedure relating to contempts by publication was properly before the court. In the Lamberson case, the petitioner had filed a contumacious affidavit charging a judge with bias and lack of integrity. This, the court held, was a contempt committed in the presence of the court. The acts complained *508 of in the Paddon and Mason cases were contempts of the same character, and were spoken of as having been done “in the face of the court”. In the former, the petitioner refused to obey a subpoena and filed an affidavit in court stating his refusal; the contemner in the Mason case violated a court order.
In McClatchy v. Superior Court, 119 Cal. 413 [ 51 Pac. 696 , 39 L. R. A. 691], it appears that the court was of the opinion that a false report of pending litigation was punishable as a contempt, but the order committing the alleged contemner was annulled upon the ground that he had not been given a fair hearing. However, In re Lindsley, 75 Cal. App. 122 [ 241 Pac. 934 ], and Lindsley v. Superior Court, 76 Cal. App. 419 [ 245 Pac. 212 ], each holds that the publication of newspaper comment on pending litigation is a contempt of court punishable in a summary proceeding, although the question of the validity or applicability of subdivision 13 of section 1209 of the Code of Civil Procedure does not appear to have been raised, and it was not discussed in either opinion. The first case cites 13 C. J. 34 to the effect that “it is a contempt to issue publications which are calculated to prejudice or prevent fair and impartial action in a cause of judicial investigation then pending”. The second case, which arose out of the same proceeding in the superior court, holds that a contempt under subdivision 9 of section 1209 was sufficiently proved.
The dictum of In re Shortridge, supra, was again quoted in Blodgett v. Superior Court, 210 Cal. 1 [ 290 Pac. 293 , 72 A. L. R. 482], which is another ease in which the facts show that there was a direct contempt. In re Hallinan, 126 Cal. App. 121 [ 14 Pac. (2d) 797 ], is in the same category. The Shortridge case was there relied upon to sustain the trial court’s power to punish an attorney who was guilty of disorderly conduct during the course of a trial.
In Ex parte Shuler, 210 Cal. 377, 397 [ 292 Pac. 481 ], and In re San Francisco Chronicle, 1 Cal. (2d) 630 [ 36 Pac. (2d) 369 ], this court for the first time directly held that the limitation upon the power of the courts to punish contemners by publication is unconstitutional. Little consideration was given to the subject in either opinion, the court relying entirely upon the dictum in the Shortridge case and the intervening cases which cited that case or quoted from it. However, mere reiterations of the doctrines of “inherent neces *509 sity” and “immemorial usage” are not authority for their validity.
The notion that contumacious publications have been subject to the summary power from time immemorial has been shown to be historically incorrect. Also, the experience of Pennsylvania and other jurisdictions where immunity of the press has long been maintained conclusively proves that no such power is necessary to maintain either the existence of courts or the respect for them. It is not necessary to the wholesome administration of justice in this state that judicial officers have uncontrolled discretion in passing upon alleged constructive contempts of court. The opportunity for arbitrary punishment often provides the occasion for it. Noise, interruptions, violence of any kind in the course of judicial proceedings must be repressed; obedience to all lawful orders must be enforced. To uphold its authority when challenged by such affronts to the judicial procedure, a court may and should summarily punish the offender. But indirect con-tempts, particularly publications in a newspaper, are entirely different in their nature and consequences.
The rights of freedom of speech and of the press have their roots deep in the soil of this nation’s organic law. Five days before the Declaration of Independence was proclaimed, the patriots of Virginia declared in their- Constitution “that the freedom of the press is the great bulwarks of liberty, and can never be restrained but by despotic governments.” For more than a century and a half our nation has consistently upheld this right of expression by a free people as a vital principle which the founders of our national and state governments stated in the respective constitutions as necessary to a democracy.
“Congress shall make no law . . . abridging the freedom of the press.” (Art. I, U. S. Const.) The positive scope of this guarantee was stated by Mr. Justice Harlan in the celebrated case of Patterson v. Colorado, 205 U. S. 454 [27 Sup. Ct. 556, 51 L. Ed. 879 , 10 Ann. Cas. 689]), as follows: “I go further and hold that the privileges of free speech and of a free press, belonging to every citizen of the United States, constitute essential parts of every man’s liberty ... It is, I think, impossible to conceive of liberty, as secured by the Constitution against hostile action, whether by the nation or by the states, which does not embrace the right to enjoy free speech and the right to have a free press.” Similarly *510 our state Constitution ordains that “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” (Art. I, see. 9, Cal. Const.)
These provisions are binding upon the courts, and no claims of judicial necessity can outweigh them. When free speech is fettered, liberty is a meaningless word.
The judgment should be annulled.
Rehearing denied. Edmonds, J., Carter, J., and Gibson, J., voted for a rehearing.