MacK Appeal

Concurring and Dissenting Opinion by

Mr. Justice Bell:

While I agree with the Court’s decision prohibiting photographing a prisoner at the entrance of the Court *261 room, I wish to record my emphatic opposition to photographing (with or without infra red rays) or televising or broadcasting Court proceedings. This question may not have been specifically argued in tbis case, but it was argued by the Press in an unreported companion case. Moreover, as Justice Arnold so aptly says, if the present contention of defendants is sustained the Court would have no power to forbid the taking of pictures in the Courtroom.

Freedom of the press — the right to freely publish and fearlessly criticize — was a plant of slow growth. It did not spring full-grown as Minerva did from the broiv of Jupiter, nor rise as quickly as did the warriors when Cadmus soAved the dragon’s teeth. It was planted by many hardy, freedom-loving souls and nurtured by public opinion for several centuries before it grew to be a tree of gigantic stature. Government both in England and the United States constantly tried to suppress or destroy it. Freedom of the press became a recognized inherent Eight only after and as a result of the famous Zenger libel case in New York City in 1735. In that case Zenger’s lawyer, AndreAv Hamilton of Philadelphia, * argued vigorously for the right of a newspaper to criticize freely and truthfully the acts and conduct of governmental officials. The Court refused to recognize the theory of freedom of the press, or permit Hamilton to prove “Truth” as a defense; nevertheless the jury, ignoring the charge of the Court, acquitted Zenger. Public opinion rallied to the cause which Hamilton pleaded and freedom of the press gradually became recognized as an inalienable Eight which *262 was ordained and affirmed in the Constitution of the United States and in the Constitution of Pennsylvania.

However, it is an often overlooked truism that neither freedom of speech nor freedom of the press, nor freedom of religion, which together constitute our Country’s great bulwark of freedom, is absolute and unlimited: Poulos v. New Hampshire, 345 U. S. 395 ; Beauharnais v. Illinois, 343 U. S. 250 ; Garner v. Los Angeles Board, 341 U. S. 716 ; Dennis v. United States, 341 U. S. 94 ; American Communications Assn. v. Douds, 339 U. S. 382 ; Kovacs v. Cooper, 336 U. S. 77 ; United Public Workers of America v. Mitchell, 330 U. S. 75 ; Whitney v. California, 274 U. S. 357 ; Gitlow v. New York, 268 U. S. 652 ; Gilbert v. Minnesota, 254 U. S. 325 ; Schenck v. United States, 249 U. S. 47 ; Frohwerk v. United States, 249 U. S. 204 ; Debs v. United States, 249 U. S. 211 ; Abrams v. United States, 250 U. S. 616 ; Pierce v. United States, 252 U. S. 239 ; Schaefer v. United States, 251 U. S. 466 ; Fitzgerald v. Philadelphia, 376 Pa. 379 , 102 A. 2d 887 ; Wortex Mills, Inc. v. Textile Workers Union, 369 Pa. 359, 363 , 85 A. 2d 851 ; Commonwealth v. Geuss, 168 Pa. Superior Ct. 22 , 76 A. 2d 500 , 368 Pa. 290 , 81 A. 2d 553 ; State of Ohio v. Clifford, 123 N.E. 2d 8 . See also: Eule 223 (b), Pennsylvania Eules of Civil Procedure; Canon 35, Canons of Judicial Ethics, American Bar Association.

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

*263 In American Communications Assn. v. Douds, 339 U. S., supra, the Court said (page 394) : “Although the First Amendment provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of constitutional government to survive. . . . Freedom of speech thus does not comprehend the right to speak on any subject at any time. . . . the right of the public to be protected from evils of conduct, even though First Amendment rights of persons or groups are thereby in some manner infringed, has received frequent and consistent recognition by this Court. [Citing cases.] . . . We have never held that such freedoms are absolute. The reason is plain. As Mr. Chief Justice Hughes put it, ‘Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.’ Cox. v. New Hampshire, supra [ 312 U. S. 569 ] at 574.”

In Gitlow v. New York, 268 U. S., supra, the Court said (page 666) : “It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 2 Story on the Constitution, 5th ed., §1580, p. 634; Robertson v. Baldwin, 165 U. S. 275, 281 ; Patterson v. Colorado, 205 U. S. 454, 462 ; Fox v. Washington, 236 U. S. 273, 276 ; Schenck v. United States, 249 U. S. 47, 52 ; Frohwerk v. United States, 249 U. S. 204, 206 ; Debs v. United States, 249 U. S. 211, 213 ; Schaefer v. United States, 251 U. S. 466, 474 ; Gilbert v. Minnesota, 254 U. S. 325, *264 332 ; Warren v. United States, (C.C.A.) 183 Fed. 718, 721 . Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.”

In Wortex Mills, Inc. v. Textile Workers Union, 369 Pa., supra, this Court said (page 363) : “Freedom of speech is not absolute or unlimited — for example, a man may not slander or libel another; he may not publicly blaspheme the Deity; he may not engage in loud speaking through sound trucks during certain hours or in certain parts of a city; and he may not assemble with others to commit a breach of the peace or to incite to riot or to advocate the commission of crimes. Freedom of speech gives no right of intimidation or coercion and no right to damage or injure another’s business or property, . . . .”

To hold that Freedom of Speech or of the Press is absolute and unlimited would produce ridiculous situations and often result in disorder, confusion or Judicial or governmental paralysis. For example, under the absolute freedom theory, persons could talk lewdly or loudly or all at once, or even shout “Fire” in a Courtroom; every press representative and every freedom-loving citizen in the Courtroom could, during the trial, take noiseless photographs of Judge, jury, defendant' and all persons connected with or witnessing the tidal. Having one’s picture taken, especially if it is likely to appear in the papers, possesses a fatal fascination for many persons. Under such theory and practice,, the. attention of the Judge, stenographer and witnesses.; would be diverted and distracted, ¿very trial which had-aroused a large public interest would degenerate intoi a circus side show, respect of the people' for Law, "Or- • der and the Courts would diminish immensely, and; many trials-wo.uld become a travesty of Justice.

*265 Furthermore, while gathering of the news is an indispensable part of the privately owned newspaper business, it is important to point out that freedom of the press does not give a constitutionally protected right to gather news: United Press Associations v. Valente (Court of Appeals of New York), 123 N.E. 2d 777, 778 . Sober reflection will refute any contrary view. For example, the Constitution does not require persons interviewed by the press to submit to interrogation or to answer questions or furnish data or information. Freedom of the press means a constitutionally protected right to publish news without censorship, but even that right is, as we have seen, neither absolute nor unlimited.

Appellants have not only overlooked the authorities hereinabove cited and quoted, but have likewise overlooked a very important analogous authority which cuts out from under them the ground upon which they build their basic contention of absolute Freedom of the Press. The Supreme Court of the United States has promulgated the following Rule of Court, viz., Rule 53 of the Federal Rules of Criminal Procedure, Title 18, U.S.C.A.: “The taking of photographs in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the court room shall not be permitted by the court.”

If the taking of photographs of Court proceedings was privileged by the First Amendment — “Congress shall make no law . . . abridging the freedom of speech, or of the press .. .” — it is unthinkable that the Supreme Court of the United States would have adopted or would maintain its above quoted Rule of Court. .

In the light of these reasons and authorities, it is manifest that a Court has the power, and in the inter-: est and for the preservation of Justice and the orderly administration of law, should prohibit (1) the taking *266 of photographs (as well as the broadcasting and televizing) of Court proceedings, and (2) the photographing of all persons connected therewith, in Courtrooms and, if necessary or advisable, within a reasonable distance from the entrances thereto. What is a reasonable distance will, in each case, depend upon the facts. However, the Court’s power does not extend to other rooms or offices which are in the same building and are occupied by public or non-judicial officials, even though the entire building is called a Court House.

To summarize: It is clear that Rule of Court No. 6084 (a) and (b) adopted by the Courts of Westmoreland County, is valid and constitutional.

However, I do not agree with the majority’s opinion on the subject of privacy, nor its prohibiting the taking of pictures of a prisoner who, while in custody, is on his way to or from the Court but not near the Courtroom. It seems to me that a person’s right of privacy is limited and in some instances lost when he is charged with or convicted of crime. In such a case he becomes a public figure who, with certain limitations, as for example when he is in the Courtroom or in the County jail, is subject to being photographed in a public place, on a proper occasion and for a proper purpose. I believe that in such a case, the public interest is (subject as aforesaid) paramount to the private right or interest. Pictures have become a colorful and important part of a newspaper. Taking photographs of a public figure, like. gathering public news, while not within the protection of the First Amendment* is an important right which should not be unreasonably shackled or restrained. Cf. Craig v. Harney, 331 U. S. 367 ; Pennekamp v. Florida, 328 U. S. 331 ; Bridges v. California, 314 U. S. 252 . See also, Concurring Opinion of Justice Frankfurter in Dennis v. United States, 341 U. S. 529 -553.

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

I would hold (1) that that part of Rule 6084 (d) which prohibits the photographing of a prisoner or inmate of the County Jail on his way to or from a session of the Court, but not at the entrance to the Courtroom (in this case three floors away), is invalid; and (2) the conviction of one of these appellants thereunder should be reversed.

The origin of the phrase “Smart as a Philadelphia lawyer”, denoting the top of the legal profession, is attributed to Andrew Hamilton’s brilliant defense of Zenger. See “Ordeal of the Press” by Ralph O. Busser, Esquire, published by the University of Pennsylvania in The General Magazine, Winter 1954.