Petitioners Brief — Bridges v. California

SUPREME COURT OF THE UNHED--STATES

OCTOBER TERM, 1940

No. 64

q THE TIMES-MIRROR COMPANY, 4a Corporation, AND

L. Db. HOTCHKISS,

' Petitioners,

VS.

THE SUPERIOR COURT OF THE STATE OF CALI

FORNLA, IN AND FOR THE COUNTY OF LOS

ANGELES,

Respondent.

On Writ of Certiorari to the

Supreme Court of California

PETITIONERS’ BRIEF.

T. B. Coserove,

Y Joun N. CRAMER,

Counsel for Petitioners.

F. B. Yoakum, JR.,

of Counsel.

INDEX.

SusyecT INDEX.

PAGE

Precienemnerd” WAGE cecincsececncensesncncormecserenrevvcrene Lose hbamanisacaliins 1

Opinions below ..........--------sc----c-s-eeseceseeseeeeeeenenneneanenens 1

Statement dis-iosing basis of jurisdiction..............--..---- 2

Seeeeneet OF TE CBO vacccnccoseccecccsncceeesesesesenienreesewernrecss 3

Specification of errors.........-2-----:-:--ceceeeseeeeeeeeeeeeeeeeeeeneeee 7

The questions presented .............---------:-2:00-++ vf abel alie. 8

ALQUMENt ........-.---ccesoeeeeessacreneeeceoneenerernencaseeesecenntaneeenes 8

Summary of the argument. ..............-..-.---2:--e-s-e eos 8

NIE Bio o cssicscutincsneebchbatnvicieneczopinenotonveniermonnmnes 9

The ‘‘clear and present danger” doctrine should

Rewer Dees MNO «nes cin ese sc coccrc con ncveesnessoorsevens 9

Application of the “clear and present danger”

doctrine discloses that the publications consti-

tuted a proper exercise of the constitutional

guarantee of freedom of the press.................-.-. 12

Former decisions of this court dealing with con-

structive contempt by publication were rendered

prior to adoption of the “clear and present dan-

ger” doctrine ..........:.. chee ates CES

The doctrine has not been restricted in its appli-

cation to utterances creating an imminent danger

of overthrow of organized government ......... 15

Assuming that the “reasonable tendency” stand-

ard may have been the ancient criterion govern-

ing constructive contempt by publication, this

does not justify its application under the terms

of the Federal Constitution. .....................--..2+: 16

Prevention of assumed disturbances of judicial

calm does not justify suppression of expression... 17

ee tr ee eee i ee

il INDEX

PAGE

Protection of the courts is not more important

than protection of organized government.......... 17

The vagueness of the ‘reasonable tendency” test

is condemned in the Cantwell decision.............. ne }

Uncertainty of the ‘reasonable tendency” test is

SU IN acs cise ceceeinecectesedpnpemraeens 19

Proscription of comment until the point of final-

ity announced by the state court has been reached

amounts to judicial censorship...................-...-.-- 2U

The ‘clear and present danger” test is objective:

the ‘‘reasonable tendency” test subjective............ 22 :

PE Bist cess scccttceeaiindsetcceuctetsscteustmkecenaat Alea: 23

Realization by a judge that his decision will be

unpopular is no indication of influence................ 26

’ ‘ ae ; , e

No one of the editorials interfered ur was calcu-

lated to interfere with the administration of

IE Re tittecnicncies Rai rmaineea dedi ie'tss 27

In practical ettect the judgment below forbids the ,

exercise of freedom of the press respecting judi-

ey I cise etter aces ees 33

OIE oe noice Leo ae as eae 34

EUII cosine cna alee cd ee een rie 4] ‘

at

*

RTE ge

INDEX il

TABLE OF CASES CITED.

PAGE

Associated Press Co. vy. National Labor Relations Board,

Ce snnatinubosuntes 14,15

Bee Publishing Company Vv. State, 107 Neb. ee 4i

Bridges V. Superior Court, 14 Cal. ¢ fee OS BSB

Cantwell v. Connecticut,

310 U.S. 296.......... 2,9, 10, 13, 15, 16, 17, 18, 30, 31, 32, 39

Carlson V. California, 310 U.S. 106....0.0.02.222. eee 2,10, 15

ee i sseecvveseswesencvnersenses 4!

Fortenbury, Ex parte, 101 Pac. (2d) 105....00000000.0eeeeeee. 35

Fulton, Estate of, 8 Cal. App. (2d) 423....00....0000.. eects 33

Grosjean V. American Press Co., 297 U.S. 233................ 26, 36

Herald-Republican Publishing Co. v. Lewis, 42 Utah 188.... 41

Herndon Vv. Lowry, 301 U.S. 242..............-2..cccccccsseeeceeeees 10, 23

Hickey, Ex parte, 4 Smedes & M. ( Miss.) 751................... 34

Independent Publishing Co., Inre (C.C.A.9), 240 Fed.

Neen eee a ssneusiovtunesebvererenees 42

Lindsley, In re, 75 Cal. App. See 42

Lovell v. Griffin, 303 U.S. 444............ 2 eS eae 8.9

Lyons, fare, 2) Cal. Ape. (2d) 295...................-.ccc00e0000.-. 35

Near V. Minnesota, 283 U.S. 697......... ona TAs: ER

Nixon v. State, 207 Ind. 426................... Sikh. Uaioe OOO 17, 43

Palko ¥. Connecticut, 302 U.S. 319................-..-..0.<0-.----. 8, 39

Patterson vy. Colorado, 205 U.S. 454................ 9, 28, 29, 32, 43

People vy. Blankenship, 16 Cal. App. (2d) 606.................... 7

PW Ce Mle TE) Bacon none cnn snne sce esecsneenens ns ZI

ce ke 8 | ee 7

People v. Freithofer, 103 Cal. App. 168 ..0...0...00...0...0020020- 7

People v. Jones, 87 Cal. App. 482...................... leat ahdsiavehess 7

People vy. News-Times Publishing Co., 35 Colo. 253 ....... 14, 29

ee E.R 43

Reynolds v. United States, 98 U.S. 145.000.0000. ccc e ee i ae

San Francisco Chronicle, Inre, 1 Cal. (2d), 630............. 14, 44

Schneider v. New Jersey, 308 U.S. 147..............2,9, 10, 15, 37

shefheld, In re, 18 Cal. App. (2d), 177000000000. 6,31

Shortridge, In re, 99 Cal. 526.............. Deir ek teed aessuncteese ai 44

SN I chicprncdacessdusuensaneve 34, 44

Sinclair v. United States, 279 U.S. 749.0000... 14, 15, 32, 45

State V. American-News Co., 648. D. 385.000. 17, 36

IV INDEX

— PAGE

Nr i escadsenececentembencbounis 18

OGRE V, COU EE TIER Cv oceisceseccesicenimnsaceoncsotsnccvorses 45

NE I, hr es Civ creer cctosieviriendsecanectnaneneeennse 45

Os I, BE Be FO icencicccncscnictitcceesercensesocscesaceoree 45

SN hs HP WI I scrnicssctceerensevie-rocetovesnctunnnssecssnncs 36

State Vv. New Mexican Printing Co., 25 N. Mex. 102... ........ 46

GONE TF, 2 PE, Bev cceessveceverersinnecoravsonsennaesenns 46

SOP Oe, MEO OF, SO TA. BE. FIG nec sccvereceesevecentneseeerveeees 47

Be re I Bi vergscctserctinnss pevnerorsesenssiondoionniacmoies 47

Telegram Newspaper Co. v. Commonwealth, 172 Mass.

SPP seissibtebin vadarhialesinvbiaiaiibiesnmianiateedtuincdqenremsnics boveniiancsoieensie 47

Thornhill v. Alabama, 310 U.S. 88............ 2, 10, 15, 27, 28, 38

Times-Mirror Co. v. Superior Couri, 15 Cal. (2d) 99... 8

Toledo Newspaper Co. v. United States,

pk i m a

United States v. Toledo Newspaper Ce. , 220 Fed. 458...... '4

Whitney v. California, 274 U.S. 357.020.0000. cececceeeeee 10, 15

STATUTES CITED.

Judicial Code, Sec. 237b (43 Stat. 937) 0000. eS

California Penal Code:

eR EEO SRS eas non ee tk ae Ee 3

BE I soe ccc castes, LL PR ot th wey Arlene EF EIS PPT 5

A ae AA nN fe RN ONE RT a 31

United States Constitution:

gS SLATER LAELIA EE 2 |

LATA OTL —

Texts CITep.

Brandeis, Mr. Justice (Yale University Press, 1932),

i I cotaiehcciorriclahdediisacdaeaecnnaniiraseirecirreucxadutncmncessieimicsontsen 19

Chafee—Freedom of Speech, p OR | ESRC rte 22

28 Columbia Law Review, 401-431, 525-553... 13

37 Harvard Law Review, 1010200000000... Sl sancctetuapeabics 13

Holmes—The Common Law, p. 1.0.0.0 cee... 27

Stansbury, Benjamin—Trria! of James Peck...

. sera

GP OTR OT 5 OU HE OE SF

- Pm ND

+> Penenne:

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940

No. 64

THE TIMES-MIRROR COMPANY, a Corporation, anpD

L. D. HOTCHKISS,

Petitioners,

vs.

THE SUPERIOR COURT OF THE STATE OF CALI-

FORNIA, IN AND FOR THE COUNTY OF LOS

ANGELES,

Respondent.

On Writ of Certiorari to the

Supreme Court of California

PETITIONERS’ BRIEF.

5.

Opinions Below.

The majority opinion (R. 120) of the Supreme Court

of California is reported in 15 Cal. (2d) 99. The dis-

senting opinions (R. 139, 140) are reported in 15 Cal.

(2d) 121, 122. The unreported opinion of the trial judge

may be found (R. 95).

adie

II.

Statement Disclosing Basis of Jurisdiction.

1. Jurisdiction is invoked under Sec. 237b of the Judi-

cial Code, as amended by Act of February 13, 1925 (43

Stat. 937).

2. Judgment of the Supreme Court of California was

entered January 3!, 1940 (R. 148). Petition for Rehear-

ing, timely filed, was denied February 29, 1940 (R. 149).

3. Upon argument on demurrer to a criminal contempt

of court Citation, petitioners asserted reliance upon the

First and Fourteenth Amendments to the United States

Constitution, guaranteeing freedom of speech and of the

press (R. 4, 28). The trial court overruled the demurrer

(R. 94) and ruled that petitioners were not protected by

these guarantees (R. 98-106). The guarantees were as-

serted in the California Supreme Court (R. 61). The

Supreme Court of California affirmed the convictions,

holding that petitioners were not shie!ded by these guar- }

antees (R. 134-137). There were two dissenting opinions

(R. 139-140).

4. The following cases are believed to sustain juris-

diction:

Cantwell v. Connecticut, 310 U. S. 296;

Thornhill v. Alabama, 310 UV. S. 88;

Carlson v. Cultfornia, 310 U.S. 106;

Schneider v. -'’ew Jersey, 308 U. S. 147, and cases

therein cited in Footnote 8; )

Near v. Minnesota, 283 U. S. 697;

Toledo Newspaper Co. v. United States, 247 U. S.

402, 411.

=

a

III.

Statement of the Case.

The Times-Mirror Company and Hotchkiss. are the

publisher and managing editor, respectively, of the Los

Angeles Times (hereinafter called ‘“Times”), a news-

paper of general circulation in the City of Los Angeles

and State of California (R. 10).

On December 21, 1937, there was published in the

Times an editorial entitled “SIT-STRIKERS CON-

VICTED” (R. 10-11); on April 14, 1938, an editorial

entitled “THE FALL OF AN EX-QUEEN” (R. 17),

and on May 5, 1938, an editorial entitled ‘PROBATION

FOR GORILLAS?” (R. 23).

On June 3, 1938, summary ' contempt of court proceed-

ings were instituted against petitioners for the publication

of said editorials (R. 25). The Times was adjudged

guilty ot criminal contempt for the publication of each

of the editorials, and Hotchkiss as to “SIT-STRIKERS

CONVICTED” (R. 60). Separate fines were imposed

(with alternative jail sentence as to Hotchkiss) for each

editorial (R. 60-61).

No evidence of interference with any court proceed-

ing wes offered, and no showing was made that the

editorials created a “clear and present danger” of inter-

! The proceedings were summary—the state Supreme Court declaring

unconstitutional the California statute prohibiting summary punish-

ment for constructive contempt (R. 121); cf. Bridges v. Superior

Court, 14 Cal. (2d) 464, 479 et seq. Petitioners were not prose-

cu’ *d for violatio. of California Penal Code Sec. 166, Subd. 8,

which is relied on by respondent to sustain the judgment in respect

to “PROBATION FOR GORILLAS?” (Br. Opp. Cert. 25).

ference (R. 66-88, 148). The trial judge expressly re-

jected the “clear and present danger” rule (R. 175-106).

In affirming the convictions the California Supreme

Court, which in Bridges v. Superior Court, 14 Cal. (2d)

464,* had also rejected this rule, concluded that “a rea-

sonable tendency to interfere with the orderly adminis-

tration of justice’ (R. 122), constituting punishable

contempt, appeared from the tenor of the editorials (R.

128, 130, 133).

Thereupon The Tin.es-Mirror Company and L. D.

Hotchkiss petitionea this court for a writ of certiorari!

(October Term 1939, No. 972), which was granted (R.

151, 310 U. S. ——}).

“SIT-STRIKERS CONVICTED” (R. 11) was pub-

lished the day following the rendition by a jury of a

verdict of guilty against twenty-two defendants charged

with a felony (R. 10). It spoke with approval of the

courts, juries, and law enforcement officers of Los Angeles

County following the prosecution and conviction of per-

sons committing acts of violence in connection with a

sit-down strike at a local airplane factory (R. 46). It

stated in effect that the verdict was a warning that Union

terrorism Wis. uvc be tolerated in Los Angeles, particu-

larly directing the wa:ning to the Teamsters’ Union,

which was threatening; to extend its political control to

Los Angeles and vicinity (R. 48, 49). The attituae of the

Times toward the open shop, and its inflexible opposition

to the closed shop and the sit-down strike, were well

known, and the editorial was but a reiteration of its fre-

2 Certiorari granted No. 19, October Term 1940.

ST RPO ee

A TL gee er SE PN ot

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ow oe

quently announced views on such matters (R. 43-48).

At the time of publication, although the verdict of guilty

had been returned by a jury, judgment had not yet been

pronounced, nor sentence imposed (R. 10).

“THE FALL OF AN EX-QUEEN” (R. 17) was

pubiish<d two days following the rendition by a jury of a

verdict of guilty as charged against two defendants in-

dicted for felonies, namely, attempted grand theft and

violating Sec. 653f of the Penal Code (soliciting a bribe)

(R. 16-17). The editoriai was an analytical discussion of

the sordidness of “boss-ship” in politics. It attempted to

point out a persuasive moral. It did “not refer to the case

which was then pending” (R. 130), nor did it contain

any suggestion respecting future court proceedings.

“PROBATION FOR GORILLAS?” (R. 23) was

published about two weeks subsequent to the rendition

of jury verdicts of guilty as charged against two defen-

dants charged with a felony, namely, assault with a

deadly weapon (R. 23). At the time of publication the

corvicted defendants had applied for probation and the

trial judge had set a date (five weeks subsequent to the

date of the publication of the editorial) for hearing the

application and pronouncing judgment (R. 23). The

editorial contained a statement of the Times’ well-known

views regarding the use of violence in labor disputes (R.

146-147). It vigorously opposed the granting of proba-

tion to the two men convicted of assaulting non-union

truck drivers (R. 23). It stated that the trial judge

(mentioned by name) ‘will make a serious mistake if he

4

idiiea

grants probation,” and that the “community needs the

example of their assignment to the jute mill’ (R. 24).

The editorials did not assail or comment unfavorably

upon the courts or any judge thereot. There was no inti-

mation of threat or dissatisfaction with proceedings had

and taken or contemplated.

The editorial “SIT-STRIKERS CONVICTED”

commented favorably upon court proceedings and iaw

enforcement agencies, which proceedings resulted in the

conviction of numerous defendants. There was no refer-

ence to any pending or contemplated action or proceeding.

The editorial “THE FALL OF AN EX-QUEEN”

made no reference to any court proceeding. (The Su-

preme Court of California so admits, R. 130.) In mild

und temperate language the editorial pointed a moral,

viz., the normal and inevitable consequences of the law’s

violation, even though, as the editorial pointed out, the

convicted defendant was actuated by ambition for power

rather than a desire for money. It might well have t

emanated from the professor, the parent, or the pulpit.

The editorial “PROBATION FOR GORILLAS?”

LE MBLE REARS

Bese an

~~

related directly to a pending application for probation ,

by two defendants who stood convicted of a felony. :

Under the California law:

|. Probation could not be granted,’ and

,

2. Probation proceedings do not involve questions of

3 In re Sheffield, 18 Cal. App. (2d) 177, 178. ;

= =

law and the established rules for the conduct of trials are

not applicat le.* ,

There was no showing that any of the editorials came

to the attention of any of the judges before whom the

related matters were pending; that any trial judge felt

that he was influenced or embarrassed because of any of

them; that any of the defendants in the related cases sug-

gested or complained that any prejudice resulted to them

because of the editorials; nor was there any showing of

an intent on the part of petitioners to influence or em-

barrass the proceedings in the related cases. Petitioners

under oath denied the existence of any such intent (R.

31, 33, 35, 37, 39, 41).

IV.

Specification of Errors.

The Supreme Court of California erred:

1. In refusing to adopt the “clear and present danger”

test as the criterion by which the propriety of the edi-

terials should be measured.

2. In adopting the “reasonable tendency” test as the

criterion by which the propriety of the editorials was

measured.

3. In concluding that the editorials had a “reasonable

tendency” to interfere with the orderly administration of

justice.

* People v. Jones, 87 Cal. App. 482;

Pecple v. Freithofer, 103 Cal. App. 165;

People v. Fields, 131 Cal. App. 56;

People v. Blankenship, 16 Cal. App. (2d) 606.

—8-—

V.

The Questions Presented.

1. Is the “clear and present danger”’ test, rather than

the “reasonable tendency” test, applicable in proceedings

to punish for constructive contempt by publication?

2. If not, did the editorials in question have a “reason-

able tendency” to interfere with the orderly administra-

tion of justice?

VI.

ARGUMENT.

Summary of the Argument.

Point 1. The “clear and present danger” test, rather

than the “reasonable tendency” test, should be applied

to determine the propriety of language claimed to inter-

fere with the judiciary as well as to utterances claimed

to offend against conventional penal statutes. This test

affords a definite and certain standard. It will guarantee

the exercise of an “essential liberty” ° without jeopardiz-

ing the independence of the judiciary.

Point 2. The erroneous conclusion of the state court

that the editorials had a “reasonable tendency” to inter-

fere with the orderly administration of justice has sac-

tificed a freedom that “is the matrix, the indispensable

» 6 “for

condition, of neariy every other form of freedom

a need which its fancied rather than real.” *

® Lovell v. Griffin, 303 U.S. 444, 452.

© Palko wv. Connecticut, 302 U.S. $19, 327.

* Times-Mirror Co. v. Superior Court, 15 Cal. (2d) 99. dissent of

Mr. Justice Gibson (R. 140).

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POINT |.

The ‘‘clear and present danger’’ test, rather than

the ‘‘reasonable tendency’’ test, should be applied to

determine the propriety of language claimed to inter-

fere with the judiciary as well as to utterances claimed

to offend against conventional penal statutes. This

test affords a definite and certain standard. It will

guarantee the exercise of an ‘‘essential liberty’’ with-

out jeopardizing the independence of the judiciary.

The ‘‘Clear and Present Danger'’ Doctrine

Should Have Been Applied.

The California Supreme Court held that the editorials

were contemptuous because they had ‘‘a reasonable ten-

dency to interfere with the orderly administration of

justice” in pending actions (R. 122), relying principally

upon Bridges v. Superior Court, 14 Cal. (2d) 464,"

Toledo Newspaper Co. v. United States, 247 U.S. 402.

and Patterson v. Colorado, 205 U.S. 454. The court ex-

pressly rejected the “clear and present danger” test in the

Bridges decision (14 Cal. (2d) 491) and accordingly re-

jected it in the instant proceeding. The trial court cate-

gorically refused to apply such test (R. 105-106).

Censorship (direct or devious) of freedom of speech

or of the press cannot be imposed by legislative,” execu-

tive,"’ or judicial ‘' arms of the government—federal or

*Certiorari granted No. 19, October Term, 1940.

* Schneider +. New Jersey, 308 U.S. 147.

" Lovell v. Griffin, 303 U.S. 444.

" Cantwell v. Connecticut, 310 U.S. 29%.

_ oe

state. Recent decisions make clear that an utterance may

not be punished as a crime

“* * * unless speech would produce, or is intended

to produce, a clear and imminent danger of some

substantive evil which the state constitutionally may

seek to prevent * * * .”’”

This doctrine (“clear and present danger”) was first

adopted by a majority of this court in Herndon v. Lowry,

301 U. S. 242, 256. During the October Term, 1939, this

court applied the test on three occasions * and in effect

invoked it on a fourth.”* Perhaps its fullest exposition

appears in Mr. Justice Brandeis’ concurring opinion in

the Whitney case. It is there declared that to support a

finding of a “clear and present danger” it must be shown:

|. That immediate serious violence was expected

or advocated or that the past conduct of the speaker

furnished reason to believe that such advocacy was

then contemplated (274 U. S. 376);

2. That no danger flowing from speech shall be

deemed clear and present unless the incidence of the

evil apprehended is so imminent that it may occur

before there is a chance for full discussion (274

U. 8. 377):

3. That speech cannot be prohibited in order to

avert ? relatively trivial harm to society (274 U. S.

377) ;

42 Justices Brandeis and Holmes concurring in Whitney v. Californu,

274 U.S. 357, 373.

13 Thornhill v. Alabama, 310 U.S. 88;

Carlson v. California, 310 U.S. 106;

Cantwell v. Connecticut, 310 U.S. 296.

14 Schneider v. New Jersey, supra.

ee

per: Oe

4. The fact that speech is likely to result in vio-

lence is not enough to justify its suppression; there

must bé a probability cf serious injury to the state

(274 U. S. 378).

if this criterion is applied to alleged constructive con-

tempts by publication, it would seem necessary that it be

shown :

1. That an immediate and serious interference

with the adm_aistration of justice was expected or

advocated: or

2. That the past conduct of the publisher fur-

nished reason to believe that such advocacy was then

contemplated; and

3. That the event of the interference is so immi-

nent that it may occur before there is a chance for full

discussion.

A fanciful disturbance of judicial calm or a specula-

tive prejudice to litigants as a result of the utterances will

not suffice. There is a greater social interest in the preser-

vation of freedom of speech and of the press than there

's in the elimination of hypothetical evils.

| an

Application of the ‘‘Clear and rresent

Danger’’ Doctrine Discloses That the Pub-

lications Constituted a Proper Exercise of

the Constitutional Guarantee cf Freedom of

the Press.

Judged by the “clear and present danger” standard,

the contempt convictions cannot be supported. No proof

was adduced that any judge had read the editorials or

even heard of them. No judge testified that he had been

embarrassed or made to feel apprehensive that, if he ex-

tended leniency to any of the convicted defendants, he

would meet with reprisal, criticism or condemnation.

There was no showing that any of the defendants con-

tended they were or might be prejudiced as a result ot

the editorials, nor did it appear that the past conduct of

petitioners furnished reason to believe that if the courts

decided contrary to the assumed views of the Times,

denuaciation or criticism of the judges would appear in

the columns of the paper. The juries that convicted the

defendants had been dismissed. With the exception of

“PROBATION FOR GORILLAS?" there was no

“suggestion” as to what should be done with any of the

defendants. ‘PROBATION FOR GORILLAS?” was

published five weeks prior to the time se* for hearing the

application for probation (R. 23). Is the evii which ine

California court assumed would arise from this so im-

minent that punishment may constitutionally be imposed ¢

No judge or court was exposed to ridicule or obloquy.

We feel with Mr. Justice Gibson that “no disturbance

of judicial calm occurred until after the accusations were

hled” (R. 148).

»

—Ils—

The record is void of any evidence of an obvious or

imminent serious danger of interference with the func-

tioning of the courts as a consequence of these utterances.

The assumed dangers were by no means as proximate as

those involved in the Cantwell case. Cantwell’s phono-

graph record, expounding strictures against the Roman

Catholic Church (in a neighborhood composed of ninety

per cent Roman Catholic residents (310 U. S. 301)), was

highly offensive to the persons Cantwell had apprvuached,

one testifying that he felt like hitting Cantwell; the other

that he was tempted to throw him off the street (310

U.S. 309).

There is greater need, from the standpoint of protec-

tion of freedom of speech, that the “clear and present

danger” standard be applied in proceedings to punish for

constructive contempt by publication than in conventional

criminal proceedings seeking to punish utterances claimed

to offend against espionage laws, syndicalism acts or leg-

islation of similar purport. In the latter classes of cases

the accused has the benefit of a jury. But in California,

In constructive contempt proceedings, no jury is tolerated.

The courts have declared unconstitutional the legislative

intention that such contempts shall not be punished sum-

marily.'” A majority of state courts vet mistakenly adhere

to the doctrine that the legislature may not defeat the

“inherent” right of the courts to proceed summarily in

constructive contempt proceedings." The judge before

u6 Bridges v. Superior Court, 14 Cal. (2d) 464, 478, 479-484.

37 Harvard Law Review, 1010; 28 Celumbia Law Review, 401

431, 525-553.

. onhiin

whom an alleged contemner is hailed is the sole arbiter

of his fate. Frequently the very judge or court allegedly

contemned passes upon the guilt of the speaker or editor.”

Former Decisions of This Court Dealing

With Constructive Contempt by Publication

Were Rendered Prior to Adoption of the

‘Clear and Present Danger’’ Doctrine.

Counsel for respondent assert (Br. Opp. Cert. 40) that

the “clear and present danger” test was not intended to

apply to constructive contempt proceedings, basing their

contention upon the fact that to date this court has not

applied the doctrine to such causes. Reliance is placed

upon Toledo Newspaper Co. v. United States, 247 U. S.

402, Sinclair v. United States, 279 U. S. 749, and Asso-

ciated Press Co. v. National Labor Relations Board, 301

U.S. 103. Of these decisions the Toledo case alone deals

with constructive contempt by publication. It was de-

cided prior tu the adoption of the “clear and present dan-

ger’ doctrine. The constant and repeated intemperate

attacks upon the court and the railroad company (which

came to the personal attention of the district judge (220

Fed. 461)), the urging of the public to disregard the

court’s injunction, the inflamed local feeling and the ex-

hortations to indulge in force, constitute a fundamentally

different and readily distinguishable factual situation than

exists in the Times case.

'T Trial of James Peck, by Benjamin Stansbury ;

People v. News-Times Publishing Co., 35 Colo. 253 (Patterson

case):

In re San Francisco Chronicle, 1 Cal. (2d) 639:

United States v. Toledo Newspaper Co.. 220 Fed. 458 (Toledo

case). si

sides

The Sinclair decision involved jury-shadowing. It was

not a free-speech case. Thd@onstitution does not guaran-

tee the right to shadow juries. It does guarantee the right

of free speech. The states have broad discretion in the

regulation of overt acts, but not so in attempts to restrict

the exercise of freedom of speech.**

The cursory statement in the Associated Press case that

newspapers are subject to punishment for contempt of

court, is not helpful iu solving the problem here

presented.

The Doctrine Has Not Been Restricted in Its

Application to Utterances Creating An Im-

minent Danger of Overthrow.of Organized

Government.

The “clear and present danger” doctrine has not been

restricted in application to utterances creating imminent

danger of overthrow of organized government, as stated

by respondent (Br. Opp. Cert. 42). During the October

Term, 1939, it was applied by this court in the Thornhill

and Carlson cases to picketing activities, and in the Cant-

well case to the activities of members of Jehovah’s

Witnesses. Counsel for respondent (Br. Opp. Cert. 42)

quote an excerpt from the opinion of the trial court in

which it is asserted that application of the “clear and

present danger” criterion would ‘mean that one con-

tempt, or possibly two or more, would of neccssity be

passed by as unimportant, that the court could act only

—

ef. Mr. Justice Brandeis in Whitney v. California, 274 U.S. 277-

378:

Schneider vo. New Jersey, 308 U.S. 147, 161.

Po

after so many contempts had been committed that the

courts and the government would have been under-

mined * * * ” (R. 106). This excerpt clearly indicates

the failure of the trial court and counsel for respondent

to appreciate the true effect of the “clear and present

danger’ doctrine. The test, if applied to contempt pro-

ceedings, would not justify interference with one judge

or one judicial proceeding. It does not mean “that the

court could act only after * * * the courts and the gov-

ernment would have been undermined.” All that need

appear is that an immediate and serious interference with

a court proceeding was advocated or was to be expected.

vor. «ewsae Tendency”’

Standard May Have Been the Ancient Cri-

terion Governing Constructive Contempt by

Publication, This Dees Not Justify Its Appli-

cation Under the Terms of the Federal

Constitution.

Respondent’s counsel attempt to justify the “reason

able tendency” criterion on the ground that it “is the

ancient common law standard applicable to contempt of

court” (Br. Opp. Cert. 51). This begs the question

whether the standard is sufficiently definite to enable a

person to differentiate between right and wrong. The

“tendency to provoke disorder,’ which was held to be a

crime by the Connecticut courts in the Cantwell case,

was ‘“‘a common law concept” (310 U. S. 296, 308) ; this

recourse to antiquity did not sustain Cantwell’s con

viction.

ae

Prevention of Assumed Disturbances of

Judicial Calm Does Not Justify Suppression

of Expression.

In the final analysis respondent's contention is that 1;

the editorials had been seen by the judges, they mug it

have been embarrassed, disturbed or unconsctous!y «.n-

fluenced by them (Br. Opp. Cert. 52). Under respon-

dent's conception of the problem these effects are

undesirable and therefore the publications are a con-

tempt. The answer to this contention is complete, viz.,

a court “may not unduly suppress free commurication

of views, religious or other, under the guise of conserving

9” 1YW

desirable conditions.

Protection of the Courts Is Not More Im-

portant Than Protection of Organized

Government.

Protection of the courts from interference, we believe,

is not more important than protection of the state from

destruction. The courts are but an arm of the state. This

arm may not restrain or punish speech unless it consti-

tutes a “clear and present danger” of serious interference.

To hold otherwise is to say that preservation of the limb

is more essential than preservation of the trunk—that

a part is greater than the whole.

The Supreme Courts of South Dakota *" and Indiana *'

have refused to apply the “reasonable tendency” test in

proceedings for constructive contempt by publication.

—

Cantwell «. Connecticut, 310 U.S. 296. 308.

“" State v. American-News Co., 64.5. D. 385.

*" Nixon «. State, 207 Ind. 426

a.

These recent and enlightened decisions give proper rec-

ognition to the impurtance of maintaining the right of

frec speech and a free press.

The Vagueness of the ‘‘Reasonable Ten-

dency’’ Test Is Condemned In the Cantwell

Decision.

The “reasonable tendency” test applied by the Cali-

fornia court is analogous in its vagueness and uncertainty

to the common law offense of inciting a breach of the

peace condemned by this court in the Cantwell case.

There the indictment charged that the phonograph

record played by Cantwell had disturbed public tran-

quility by “tending to provoke or excite others * * * to

break the peace” (126 Conn. 1, 2). In reversing Cant-

well’s conviction this court declared :

“ * * * the judgment is based on a common law

concept of the most general and undefined nature.

* * *

“Here we have a situation analogous to a convic-

tion under a statute sweeping in a great variety of

conduct under a general and indefinite character-

ization, and leaving to the executive and judicial

branches too wide a discretion in its application.”

310 U. S. 296, 308.

Freedom of speech (when claimed to conflict with the

judiciary) will exist in theory but not in practice if its

exercise must be made at the risk of some judge con-

cluding from a subjective consideration of the statement

that the utterance had a “reasonable tendency” to inter-

fere with the orderly administration of justice. This

nebulous standard—‘reasonable tendency’ —amounts in

.~

— oa

application to judicial censorship of comment upon court

proceedings. So serious may be the consequences result-

ing from a public utterance concerning judicial pro-

ceedings, so indefinite the zone where a permissible “point

of finality” of the proceeding is reached, and so uncertain

will be the average citizen whether his utterance may

have a “reasonable tendency” to interfere with the or-

derly administration of justice, that, impelled by the

apprehension of criminal prosecution, he will remain

silent despite his constitutional right of freedom of dis-

cussion. Thus will “oblique metiiods’*” of censorship

be established.

Uncertainty of the ‘‘Reasonable Tendency'’

Test Is Here Demonstrated.

That uncertainty exists in judicial circles concerning

the scope of the “reasonable tendency” test is established

by the history of this proceeding. The Contempt Com-

mittee of the Bar Association charged petitioners with

seven contempts arising out of seven published editorials

(R. 109; 111-114; 116-117). The trial court held that

two of the editorials were not (R. 112, 114), but that five

were contemptuous (R. I11, I13, 1!6-117). Of these

five, a majority of the California Supreme Court held

that but three of the editorials were contemptuous (R.

139). Two justices dissenting held that no one of the

five was contemptuous (R. 140, 148).

With such divergence and conflict of opinion among

jurists and judges, what may be expected of the layman

“2 Mr. Justice Brandeis (Yale University Press, 1932), p. 111.

—the editor—the orator—the pv5lic-—wishing to exer-

cise the p .vilege of free discussion of matters of public

consequence?

Of the “reasonable tendency” test, Mr. Justice Gibson

in his dissent stated :

“This test is so vague and elastic, varying with the

viewpoint of the individual judge who cites the of-

fender, that it necessarily places an unreasonable

restraint upon free speech and press.

Se FF ©

“* * * the test permits the placing of restraints

on speech and press as varied as the sensitivities of

a particular judge.”

(R. 143.)

Proscription of Comment Until the Point

of Finality Announced by the State Court

Has Been PReached Amounts to Judicial

Censorship.

Not only is the “reasonable tendency’ test vague,

elastic and varied, but until such point of finality has been

reached that the case no ionger will be newsworthy, com-

ments on causes, in which verdicts of guilty kave been

returned, are prohibited. The California Supreme Court

has held that so long as the case is pending such com-

ment “comes within those prohibited acts, the commis-

sion of which renders those responsible therefor liable

to the punitive powers of the court” (R. 130).

As we have stated, the perid of prohibition is indefi-

nite. It certainly may extend for at least five weeks, as is

shown in the criminal action referred to in the third

editorial, “PROBATION FOR GORILLAS?” (R.

23). The extent of the period of prohibition may be de-

x PEs ane aatomine aes Ae hs POE Cae grat, ke Pete hee yest SCT NAP Ti FRO $3% x Or =

calli

termined by the trial judge in his discretion from con-

siderations of convenience of court or counsel, or for

other reasons peculiar to the particular case and having

no logical relation to public interest. It is not necessary

that a motion for new trial or application for probation

be actually pending, for the period of prohibition con-

tinues as long as the defendants have the right to pursue

such remedies (R. 125). The California Supreme Court

declares: “It cannot be successfully contended that the

verdict was decisive of the case or was a final determina-

tion of the fate of the defendants” (R. 125). The lan-

guage of the majority opinion just quoted is inconsistent

with the letter and the spirit of the Federal Constitution,

and if enforced would destrov privileges guaranteed by

the Bill of Rights and would lead to absurd results.

If two men are convicted of murder, “a final deter-

mination of the fate of the defendants” would date from

the time of their execution. Employing the language of

the majority opinion, until the time of their execution

it cannot be successfully contended that the verdict was

Gecisive of the case or was a final determination of the

fate of the defendants.” If one charged with murder

pleads guilty and is sentenced to death, prior to his exe-

Cution newspapers may not comment upon the enormity

of the crime or the depravity of the defendant, for the

reason that a writ of error coram nobts is still available.

Such writ, with its accompanying delay, is occasion-

ally, and recently has been, successfully resorted to in

California.”

23 People v. Campos, 3 Cal. (2d) 15.

The ‘‘Olear and Present Danger’’ Test Is

Objective; the ‘Reasonable Terdency’’ Test

Subjective.

The “clear and present danger” test is not the same as

the “reasonable tendency” test, as respondent asserts (Br.

Opp. Cert. 42-44). The former is objective; the latter

subjective. The “clear and present danger” test submits

to the trier of the proceedin, the task of passing upon

facts, viz., the circumstances under which the utterance

is made, its tenor, the temper of the times, the past con-

duct of the speaker relative to matters of similar import,

and whether the utterance ever came to the attention of

the court. Such matters men are qualified to appraise

rationally. But a presumed “tendency” cannot be ac-

curately or objectively evaluatec. The “tendency” of an

utterance is goud or bad, as it conforms with or differs

from the subjective opinion or sensibilities of the civil

magistrate.™

3 Reynolds v. United States, 9 U.S. 145, 1603;

Jerterson's Preamble to Virginia Act for Establishing Religious

Freedom, quoted in Chafee—Freedom of Speech, p. 31.

”

ete B EAE GOT Se ERLE «IM LE RELIES LL BELA &

-

-

POINT 2.

The erroneous conclusion of the State Court that the

editorials had a ‘“‘reasonable tendency’’ to interfere

with the orderly administration of justice has sacri-

ficed a freedom that ‘‘is the matrix, the indispensable

condition, of nearly every other form of freedom’’ ‘‘for

a need which is fancied rather than real.’

If this court concludes that the “reasonable tendency”

test of the California Supreme Court is sufficiently defi-

nite and affords a proper latitude to the expression of

opinion, we then submit for consideration that the edi-

torials had no “reasonable tendency” to interfere with the

orderly administration of justice. The contrary conclu-

sion of the California Supreme Court resuits from an

improper application of the test and an untenable con-

struction of the language of the editorials. This ccurt

will inquire whether such application and construction

have deprived petitioners of the right of freedom of

speech and of the press.”

Concerning certain statements appearing in “SIT-

STRIKERS CONVICTED,” the California Supreme

Court said:

“It cannot reasonably be said that they would have

no tendency to influence the trial judge * * * .”

(R. 128.)

Thus, punishment is inflicted—not because the edi-

torial had a “reasonable tendency” to interfere, but be-

cause “it cannot reasonably be said” that it “would have

no tendency to influence.”

2° Herndon v. Lowry, 301 U.S. 242, 247, 255.

nee ri ir te cai tcst n

Despite petitioners’ denial of any intention to influence,

the California Supreme Court declared:

“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 con-

victed men, and, furthermore, that should the court

act contrary to the suggestions contained in the edi-

torial, it might well expect adverse criticism in the

columns of the Times. Viewing the editoria) in the

light of these considerations, we are satisfied that its

\ reasonable tendency was to interfere * * * .”

» (R. 128.)

IAnuendoes are ascribed to the editorial which wer:

neither pleaded nor proved, and a construction placed

upon it other than the one which the California Supreme

Court concedes may have been intended by its author.

This indicates persuasively the dangers to freedom of

speech when its exercise is claimed to have interfered

with the proper functioning of the judiciary.

The Chandler affidavit (R. 42-52) was stipulated to be

true (R. 134). It sets forth ai iength the policy of the

Times toward labor violence and the sit-down strike, and

makes clear that the editorial “SIT-STRIKERS CON-

VICTED” was but a reiteration of the opinion of the

Times on the use of violence in labor controversies, ex-

pressed on numerous occasions during the past fifty years.

Though the California Supreme Court pointed out that

the statements in the affidavit were true, it said that the

affidavit did no more than create a conflict in the evi-

dence which the irial court had resolved against peti-

tioners (R. 134). The court did not point out the evi-

dence with which the affidavit conflicted. Aside from the

ee ee

eA GID IL LT nl RR ELIE ELE EDL LIGNE A as I A IED

~ =

affidavit there is no evidence in the record on the subject.

Despite the uncontradicted facts of the affidavit, which

the Supreme Court declares are true (R. 134), the trial

court nevertheless considering the editorial subjectively

—i. ¢., independent of the record—concluded otherwise.

This conclusion of the trial court, the Supreme Court

says created a conflict in the evidence (R. 134).

Mr. Justice Gibson states in his dissent:

“Could there be any possible doubt in the mind of

any informed resident of Los Angeles on the attitude

of the Times in regard to the use of violence in labor

disputes. The position maintained by the Times over

many years on these matters is clearly established by

the record. Its Los Angeles readers would find noth-

ing unusual in the editorial; a judge who felt that it

was obstructive or embarrassing would have to con-

fess ignorance of one of the most familiar facts of the

daily life cf his community.”

(R. 146-147.)

We do not comprehend how this editorial (fairly con-

strued) could have a “reasonable tendency” to influence

or affect a judge possessed of ‘‘a mind of reasonable forti-

tude.”*

26 Mr. Justice Holmes dissenting in Toledo Newspaper Co. v. United

States, 247 U.S. 402, 425.

bY

— —

Realization by a Jadge That His Decision

Will Be Unpopuiar Is No Indication of

Infteence.

Possibly a local judge might realize (is ch matters

are given consideration by him) that if he extended leni-

ency to the defendants, the Times would regard such a

ruling as a mistake. Likewise he would realize, as stated

by the Times in “PROBATION FOR GORILLAS?,”

that, if probation were granted, the Times would consider

that he had mace a serious mistake. Likewise, he would

realize that if he did not extend leniency to the defen-

dants, the labor groups of the community would consider

that he had made a serious mistake. Doubtless his feeling

in this respect would be the same irrespective of the pub-

lication of the editorials. But it cannot be the rule that

merely because a judge realizes that his decision will not

find favor in all quarters, he is thereby influenced. If this

be the criterion, then in all cases wherein public interest

is aroused, the judge will know prior to rendition of his

decision that a “reasonable tendency” to influence exists.

He will appreciate that his ruling will be viewed with

dissatisfaction by that group entertaining contrary views.

Realization of diverse public opinion is a necessary and

probably desirable concomitant of our system of govern-

ment. A free press, free assemblage, and free discussion

contribute in large measure to the formation of public

opinion.” In this country judges cannot be immunized

against the apprehension of criticism. Judges do not ren-

27 Grosjean v. American Press Co., 297 U.S. 233, 250.

cenit LEE EEE PONS IE ELE

~~ =

der decisions in a legal vacuum.” Public interest is usu-

ally greater in contemporary than in past events; discus-

sion should accompany the event; if discussion is delayed,

the speaker’s message “will be ignored,”™” or the moment

for its consideration may have passed.

No One of the Editorials Interfered or Was »

Oalculated to Interfere With the Adminis- ti

tration of Justice. pra

There is nothing in ‘“‘SIT-STRIKERS CON-

VICTED” which constitutes a threat against any judge

or a suggestion of reprisal in event of a decision contrary

to the views expressed in the editorial, as is assumed by

respondent (Br. Opp. Cert. 16-21). In fact, no suggestion

is made in the editorial respecting any pending matter or

its future disposition. It does not follow, from the cir-

cumstance that the judge might feel distressed if required

to deal with defendants in a manner other than that

“suggested” by the Times, that the courts “may impair

the effective exercise of the right to discuss freely indus-

trial relations which are matters of public concern.’”™

This editorial, fairly interpreted in the ligh: of existing

local conditions and the well-known views of the Times

upon labor disputes, did not have the “potentiality of in-

ducing action in the interests of one rather than another

28“The felt necessuy of the time, the prevalent moral and political

theories, intuitions of public policy, avowed or unconscious, even

the prejudice which jud zes share with their fellow-men, have had

a good deal more to do than the syllogism in determining the rules

by which men should be governed.” (Holmes— The Common

Law, yp. 1.)

** Mr. Justice Gibson dissenting (R. 147).

© Thornhill v. Alabama, 310 U.S. 88, 104.

= on

group in society.”™ If it had such potentiality, we under-

stand the Thornhill decision to condone it. If a judge

were so lacking in mental fortitude that this editorial

would cause him to fear and submit to fear of adverse

criticism by the Times, the existence of such isolated

mental susceptibility will not justify abridgment of free-

dom of speech.

“PROBATION FOR GORILLAS ?,” published five

weeks prior (R. 23) to the time set for hearing an appli-

cation for probation of two individuals convicted by a

jury of felunious assault upon non-union truck drivers

(R. 51-52), vigorously opposed the granting of probation

and stated that Judge Scott (the trial judge) “will make

a serious mistake if he grants probation” (R. 24). The

California Supreme Court characterized the editorial as

“a striking example of a ‘premature statement, argu-

ment, and intimidation’ respecting the case on trial

which the court condemned and held to be contuma-

cious in the case of Patterson v. Colorado.”

(R. 131.)

Comparison of the editorial with those involved in Patter-

son v. Colorado lucidly indicates the erroneous manner

in which the “reasonable tendency” test was applied in

the Times case. Patterscn’s editorials charged the Colo-

rado Supreme Court “and certain of its judges, with hav-

ing been influenced by corrupt motives in their rulings

theretofore made in pending causes, and that they would

be so influenced in the final disposition of the same. Such

articles further charged that such motives would operate

3! Thornhill v. Alabama, supra, \04.

_ a Me Hye ty ECHO TS Sea tN e eA

—=

’ on the court in its final decision of a pending cause * * *

in which no action had as yet been taken by the court.”™

There is no direct suggestion or implication reasonably

to be implied from the Times editorials even remotely

approaching the scandalous language appearing in the

several editorials involved in the Patterson case.

“PROBATION FOR GORILLAS?,” like “SIT-

STRIKERS CONVICTED,” was but the expression of

the well-known policy of the Times regarding violence

in labor disputes. From the Chandler affidavit it appears

that it is established practice to invite opinion in proba-

tion matters; that probation officers send out requests for

such opinions (R. 52) ; and that sometime prior thereto,

but following the granting of an application for proba-

tion, the Times had published an article ciiticising the

granting of probation, whereupon the presiding judge of

the Superior Court ef Los Angeles County advised the

Times that its objection should have been made known

while the application for probation was pending, rather

than subsequent to action taken thereon (R. 52). In the

Yoakutn affidavit it is pointed out that opinions concern-

ing the propriety of granting probation are attached by

the probation officer to his report which he sends to the

judge, that the probation officer does likewise with refer-

ence to voluntary letters which he receives (R. 53-54),

and that in one instance the District Attorney’s office

wrote a judge respecting the penalty to be imposed on an

applicant for probation (R. 54). The California Su-

preme Court stated that these circumstances had no bear-

% Peaple v. News-Times Publishing Ce., 35 Colo. 253, 391.

—— ooo — -

- =

ing upon the legality of the editoriai, declaring that if

the Times could publicly comment, some other newspaper

could likewise comment, suggesting leniency, and that

there would then exist

“the deplorable situation of a heated newspaper con-

troversy being carried on in the community while

the question of probation was before the court for

determination. That such a situation would con-

tribute to the orderly administration of justice, we

think no one would contend.”

{R. 132.)

Whether the existence oi such a situation would “contrib-

ute to the orderly administration of justice” we believe is

open to sincere difference of opinion; but regardless, the

suggestion is clearly beside the point. Petitioners were

not convicted of failure to contribute to, but for inter-

fering with, the orderly administration of justice. “ * * *

a State may not unduly suppress free communication of

views * * * under the guise of conserving desirable

conditions.””

The California Supreme Court pointed out that it was

proper to communicate with the judge respecting the

propriety, or lack thereof, of probation, provided, how-

ever, that this were done through the medium uf the pro-

batiou officer (R. 132-133). If the press or an individual

should desire to influence a judge, this could be accom-

plished much more readily by a clandestine approach to

the judge through a probation officer than by a frank

editorial in public print. An editoriai is intended pri-

marily, if not entirely, to advance the opinion of the

33 Cantwell v. Connecticut, 310 U.S. 296, 308.

— Se

editor to his reading public, and to impress upon the

public the importance of the matter under discussion.

Finally, although no mention of this appears in the

opinion of the California Supreme Court, it should be

noted that persons convicted of an assault with a ceadly

weapon were not, under California law, entitled to

probation.”

The editorial was further condemned for the reasons

stated by the court in its discussion of “SIT-STRIKERS

CONVICTED” (R. 133).

Respondent’s analysis of “PROBA TION FOR GOR-

ILLAS?” (Br. Opp. Cert. 21-26) is founded on the un-

supported theory that the Times regarded the sentences

imposed upon the sit-strikers as light and that it was

determined that in the future sentences imposed upon

persous convicted in labor disputes should be severe. Nei-

ther the record nor the facts support this assertion.

The excerpt quoted by respondent from the Cantwell

decision (Br. Opp. Cert. 22) has been taken from its con-

text and urged as authority for condemning the reference

in “PROBATION FOR GORILLAS?” to the defen-

dants as “gorillas” and “sluggers for pay.” The Cantwell

decision makes clear that resort to epithets or personal

abuse directed to the person of the hearer “is not in any

proper sense communication of information or opinion

safeguarded by the constitution” (310 U. S. 310). The

editorial was not directed to the convicted defendants, but

*% Cal. Penal Code, Sec. 1203: “. . . probation shall not be granted

. ... to a defendant who used or attempted to use 2 deadly weapon

in connection with the perpetration of the crime of which he was

convicted .. .""; In re Sheffield, 18 Cal. App. (2d) 177, 178.

|

to the public. It was the expression of the opinion of

the Times upon an industrial and social matter of con-

sequence. Its characterization of defendants convicted

of assault with a deadly weapon in connection with a

iabor dispute as ‘gorillas’ or as “sluggers for pay”’ con-

stituted the publisher’s conclusion arrived at upon the

facts stated. The conclusion, whether correct or not,

would be accepted or not by the readers’ attitude or opin-

ion. It did not constitute vilification. If it did, the Cant-

weli deciston recognizes that in the discussion of matters

of public concern the pleader at times “resorts to exag-

geration, to vilification * * *, and even to false state-

ment” (310 U. S. 310), but that in the long view it is

better that these excesses be tolerated than that freedom

of speech be curtailed.

Concerning “THE FALL OF AN EX-QUEEN”

(R. 17}, the California Supreme Court said:

“While the editorial does not refer to the case

which was then pending * * * it is hardly conceivable

that those in charge of its publication were ignorant

of the pendency of said action.”

(R. 130.)

This editorial, said the California Supreme Court:

“would have a disturbing effect upon the judge bde-

fore whom the case was pending when the time came

for pronouncing judgment.”

(R. 130.)

The court concluded that the editorial fell within the

category of the acts prohibited by authorities previously

cited in its opinion (R. 130), namely, Patterson v. Colo-

rado, 208 U. S. 454, and Sinclair v. United States, 279

U.S. 749 (which was not a free-speech case).

a _

Counsel for respondent quote an excerpt from a state-

ment attributed to an unnamed local trial judge respect-

ing an item he had read in the public press concerning

the Werner case. Counsel urge that the state courts would

judicially notice this excerpt (Br. Opp. Cert. 15). The

doctrine of judicial notice will bear no such interpreta-

tion.*” Again it is a complete answer to point our that the

excerpt is not a part of the record; the judge to whom the

statement is ascribed was not referring to the editoriz.!

“THE FALL OF AN EX-QUEEN,” but to published

statements of the defendants; the accusation upon which

the contempt proceedings were instituted and prosecuted

charged that the editorial had an inherent tendency to

influence; it did not charge and there was no proof of an

actual interference or ot knowledge of the editorial by

the judge pr«siding at subsequent proceedings in the

Werner case. The California courts adopted the theory

of “reasonable tendency” and made no mentioa of this

excerpt not of record. On the contrary, the California

Supreme Court conceded that the editorial contained no

reference to any pending or contemplated proceeding

(R. 130).

In Practical Effect the Judgment Below For-

bids the Exercise of Freedom of the Press

Respecting Judicial Proceedings.

If these rulings are permitted to stand, no public com-

ment may be made on problems of social, economic or

moral consequence involved in court proceedings, even

though the procee iings have passed the stage of finality

35 Estate of Fulton, 8 Cal. App. (2d) 423, 425.

EE *

a sent te

34

tollowing the entry of verdict of a jury or the judgment of

a

court. The voices of the soap-box orator and radio

commentator are stilled, the newspaper presses are

stopped,” until some indefinite future time—and this

irrespective of any clear showing that serious interference

with the administration of justice might result.

CONCLUSION.

The most dearly prized offspring of our national

liberty, is the freedom of the press.”

Ex parte Hickey, + Smedes & M. (Miss.), 751,

781.

Not all of the appeliate tribunals of the State of Calli-

fornia are unmindful of the importance or unaware of the

trend of thought and decision respecting the great con-

stitutional right here under consideration. Concerning

this right the District Court of Appeal for the Fourth

Appeliate District lately (June 1938) declared:

‘‘As we have seen, a secondary boycott peacefully and

properly conducted is legai in California under the

constitutiona] guaranty of the right of free speech.

It is now too late for us to question such right. In a

36“No difference can be discerned between the rights of the citizen

and the proper limitation thereof under his aforesaid constitutional

guaranty, whether that citizen be a minister speaking from his

pulpit, cr a broadcaster through the radio, or an editor through

his newspaper, or a curbstone orator from his soap box, or an

anarchist from whatever forum he may find for the exploitation

of his doctrines . . .

“*".. what may be spoken may be written, and the converse of

the proposition is true that what may not be spoken under such

circumstances may not be written.’ "’ (Jn re Shuler. 210 Cal. 377,

402-403.)

Republic it is necessary that the rights of freedom of

speech and freedom of the press be zealously guarded

by the courts. Those rights form the life stream of

liberty. History teaches us that when those rights

are suspended, the right to possess and enjoy private

property rapidly vanishes.”

In re Lyons, 27 Cai. App. (2d) 293, 306.

Recently (April 1940) Mr. Justice White, of the Dis-

trict Court of Appeal, dissenting in Ex parte Fortenbury,

10: Pac. (2d) 105 (not officially reported), warned:

“Let us not alone boast of the priceless heritage

that is ours in the constitutional guaranties and 1ib-

erties we enjoy, but let us as well uphold and defend

them. * * * let us remember the salutary words of

Thomas Jefferson in his first inaugural address, when

he said, ‘. . . freedom of religion, freedom of the

press, and freedom of person, under the protection of

the habeas corpus, and trial by juries impartially

selected. These principles form the bright constella-

tion which has gone before us and guided our step

threugh an age of revolution and reformation. * * *

should we wander from them in moments of error

or of alarm, let us hasten to retrace our step to re-

gain the road which alone leads to peace, liberty

and safety.’

101 Pac. (2d) !15.

The highest courts of other states have likewise em-

phatically stated the importance of and necessity for

preservation of freedom of the press:

“The battles for a free Press are a part of the

march of democracy. From complete strangulation

by an autocratic monarchy in England in the seven-

/

imei.

teenth century the Press has risen through heroic

efforts to occupy a distinguished and necessary place

in our form of government. Increased freedom and

privileges were secured dvring the eighteenth and

nineteenth centuries from legislatures and courts.

As the people became enfranchised, the Press has

been made free. In return it has been the duty of the

Press to protect the public by bringing the activities

and officials of government to the bar of public opin-

ion through the publication of accurate facts and

enlightened comment.”

State v. American News Co., 64 S. D. 385, ——.

“Any citizen has the right to publish the proceed-

ings and decisions of this court, and if he deem it

necessary tor the public good, to comment upon them

freely, discuss their correctness, the fitness or unfit-

ness of the judges for their stations, and the fidelity

with which they perform the important public trusts

reposed in them, but he has no right te attempt, by

defamatory publications, to degrade the tribunal,

destroy public confidence in it, and dispose the com-

munity to disregard and set at naught its orders,

judgments, and decrees.”

State vw. Morrill, 16 Ark. 384, 403.

Mr. Justice Sutherland, in announcing the unanimous

opinion of this court in Grosjean v. American Press Co., zy

297 U.S. 233, 250, declared :

“The predominant purpose of the grant of im-

munity here invoked was to preserve an untrammeled

press as a vital source of public information. The

newspapers, magazines and other journals of the

country, it is safe to say, have shed and continue to

shed, more light on the public and business affairs of

is

the nation than any other instrumentality of publicity;

and since informed public opinion is the most po-

tent ot all restraints upon misgovernment, the sup-

pression or abridgment of the publicity afforded by

a free press cannot be regarded otherwise than with

grave concern. * * * A free press stands as one of the

great interpreters between the government and the

people. To allow it to be fettered is to fetter our-

selves.”

In Near v. Minnesota, 283 U. S. 697, this court, quot-

ing James Madison, said:

“«* * * to the press alone, chequered as it is with

abuses, the world is indebted for all the triumphs

which have been gained by reason and humanity

over error and oppression; * * * .’”

283 U. S. 718.

During the October Term, 1939, this court on several!

occasions declared in unmistakabiy clear language the

need for preservation of freedom of speech and of the

press:

“This court has characterized the freedom of

speech and that of the press as fundamental personal

rights and liberties. The phrase is not an empty one

and was not lightly used. It reflects the belief of the

framers of the Constitution that exercise of the rights

lies at the foundation of free government by free

men. It stresses, as do many opinions of this court,

the importance of preventing the restriction of en-

joyment of these liberties.”

Schneider v. New Jersey, 308 U.S. 147, 161.

“The power of the licensor against which John Mil-

ton directed his assault by his ‘Appeal for the Liberty

sini

of Unlicensed Printing’ is pernicious not merely by

rezson of the censure of particular comments but by

reason of the threat to censure comments on matters

of public concern. It is not merely the sporadic abuse

of power by the censor but the pervasive threat in-

herent in its very existence that constitutes the danger

to freedom of discussion. * * * A like threat is

inherent in a penal statute, like that in question here,

which does nct aim specifically at evils within the

allowable area of state contro] but, on the contrary,

sweeps within its ambit other activities that in ordi-

nary circumstances constitute an exercise of freedom

of speech or of the press.”’

Thorshill v. Alabama, 3i0 U. S. 88, 97.

“The freedom of speech and of the press guaran-

teed by the Constitution embraces at the least the

liberty to discuss publicly and truthfully all matters

of public concern without previous restraint or fear

of subsequent punishment.”

Ld. 101-102.

“In the realm of religious faith, and in that of

political belief, sharp differences arise. In both fields

the tenets of one man may seem the rankest error to

his neighbor. To persuade others to his own point

of view, the pleader, as we know, at times, resorts to

exaggeration, to vilification of men who have been,

=

or are, prominent in church or state, and even to false

statement. But the people of this nation have or-

dained in the light of history, that, in spite of the

probability of excesses and abuses, these liberties are,

in the long view, essential to enlightened opinicn and

right conduct on the part of the citizens of a de-

mocracy.”

Cantwell v. Connecticut, 310 U. S. 296, 310.

This court, in the final opinion delivered by Mr. Justice

Cardozo, spoke as follows:

“We reach a different plane of social and moral

values when we pass to the privileges and immunities

that have been taken over from the earlier articles of

the federal bill of rights and brought within the

Fourteenth Amendment by a process of absorption.

These in their origin were effective against the fed-

eral government alone. If the Fourteenth Amend-

ment has absorbed them, the process of absorption

has had its source in the belief that neither liberty

nor justice would exist if they were sacrificed. Twin-

ing v. New Jersey, supra, p. 99. This is true, for illus-

tration, of freedom of thought, and speech. Of that

freedom one may say that it is the matrix, the indis-

pensable condition, of nearly every other form of

freedom.”

Palko v. Connecticut, 302 U. S. 319, 326-327.

wee

Without the United States there is not today in all the

world an exact counterpart of our constitutional guar-

antee of freedom of speech and of the press. It may be

correct to say that the pages of history do not recount an

era when the effect of suppression and denial of these

rights and liberties has been so manifest. In the United

States of America we have not reached a point from which

we shall retrace our steps. The judgment of conviction

below is a command to halt and look and proceed back-

ward. The opinion of the Supreme Court of California

stands alone. In the literature of American decisions there

may be found no decision of an appellate tribunal to sus-

tain the judgment below.

The judgment of the Supreme Court of California

shouid be reversed.

Respectfully submitted,

T. B. COSGROVE,

JOHN N. CRAMER,

Counsel for Petitioners.

F. B. YOAKUM, JR.,

Of Counsel.

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APPENDIX.

Resume of Contempt of Court Decisions Cited by the

California Supreme Court in its Opinion in the Bridges

or the Times Case.

Bee Publishing Co. v. State, 107 Neb. 74.

Prior to the trial of a criminal proceeding, the news-

paper published an article commenting unfavorably on

the integrity of witnesses who had appeared before the

grand jury and who of necessity would be witnesses at

the trial. The article indulged in violent comment and

declared the innocence of the accused. Its conviction for

contempt of court was affirmed.

Cheadle v. State, 110 Ind. 301.

After a mistrial in a criminal action due to tardiness of

the defendant in attending a court session, a newspaper

editor pubiished a facetious account of the cou. proceed-

ings ieading up to the mistrial and stating that the trial

judge had lost his temper “badly” and had revrimaaded

the attorneys for the defendant. Subsequently the editor

published an article sharply criticising the trial judge for

delaying action on the defendant’s application for a writ

of habeas corpus (the tardy defendant having been im-

prisoned when apprehended). The conviction for con-

tempt of court was reversed.

Herald-Republican Publishing Co. v. Lewis, 42 Utah 188.

The day following commencement of a murder trial, a

newspaper published a resume of the court proceedings

—

of the opening day of trial, and published a copy of a

purported confession uf one of the defendants, which pur-

porteu confession had not been introduced in evidence.

The court stated that a publication which “merely tends

or is Calculated to do so [interfere with judicial proceed-

ings] is not enough” to constitute a contempt—“it must

naturally and necessarily have such effect” {42 Utah 202).

The contempt of court conviction was reversed.

In re Independent Publishing Co., 240 Fed. 849

(C.C.A. 9).

During the course of a mail fraud prosecution, the only

morning newspaper published at the place of trial printed

an article stating that the defendant had previously been

ccnvicted of embezzlement and was out on parole. The

article was read by members of the jury and the court

declared a mistrial. The newspaper did not deny that the

article constituted an interference with the due admizis-

tration of justice. The conviction for contempt of court

was affirmed.

In re Landsley, 75 Cal. App. 122.

Lindsley was the defendant in a criminal libel action

which had been set for triai and the jury panel had al-

ready been selected. Thereafter !:e published in four

issues of his newspaper (which circulated at the place of

trial and had many subscribers in the county wherein the

trial would be held) statements attacking the county

District Attorney, impugning his motives respecting his

prosecution of the criminal action, and reflecting upon

the character and veracity of the prosecuting witness.

=

Among other things he stated, concerning the prosecuting

witness, that he was ‘‘a former admitted stool pigeon, and

the man who made a perjured expense bill against the

county, later stolen from the supervisors’ file” (75 Cal.

Ap;y. 124). The editor was convicted of contempt of

court and the appellate court refused to issue habeas

corpus.

Nixon v. State, 207 Ind. 426.

A newspaper article severely criticised a tria! judge for

the appointment of a particular person as receiver. The

criticism appeared subsequent to the time of the appoint-

ment, but during the pexdency of the receivership pro-

ceeding. The conviction for contempt of court was

reversed.

Pattersow v. Colorado, 205 U. S. 454.

Resume appears in brief, ante p. 28.

People v. Wilson, 64 Ill. 195.

During the pendency of an appeal to the Supreme

Court in Illinois of a person convicted of murder, a news-

paper published an article stating that money raised for

. the appeal was “operating splendidly”; prophesying that

the conviction would be reversed and asserting that

$1,400.00 “is enough nowadays to enable a man to pur-

chase immunity from the consequences of any crime,”

and that “the courts are now completeiy in control of

corrupt and mercenary shysters—the jackals of the legal

profession.” The Supreme Court of Illinois issued a con-

tempt citation to the editor of the paper and by a four-to-

three decision held him in contempt of court.

a

In re San Francisco Chronicle, | Cal. (2d) 630.

The Supreme Court of California issued a contempt

citation and prosecuted and convicted the editor of a news.

paper of contempt cf court for publishing an article pur-

porting to disclose the judgment of the Supreme Court

reversing a judgment of conviction below in a capital case

which was then pending before it and as to which no

judgment or opinion had been made public. The effect

of the article would lead the readers of the newspaper to

believe that the paper had a secret means of obtaining, in

advance of their publication, decisions of the California

Supreme Court.

In re Shortridge, 99 Cal. 526.

Shertridge was convicted of contempt of court for pub-

lishing an article containing excerpts from evidence “of a

filthy nature” adduced during a divorce trial. The Su-

preme Court of California annulled his conviction, stat-

ing that there was no “real danger” (99 Cal. 534) that the

publication of the evidence would deter timid or sensitive

witnesses from testifying to the truth.

In re Shuler, 210 Cal. 377.

Reverend Shuler was convicted of contempt of court

for uttering a series of radio addresses assailing the mo-

tives and impugning the integrity of the judges of the

Superior Court of Los Angeles County with respect to

certain cases then pending before them. The California

Supreme Court denied his petition for habeas corpus.

et ae

Sinclatz v. United States, 279 U.S. 749.

The defendant in a pending criminal trial caused the

jurors, their families and friends to be shadowed and

investigated. This circumstance contributed to an entry

of a mistrial in the criminal proceeding. The conviction

for contempt of court was affirmed by this court.

State v. Circuit Court, 97 Wis. 1. .

During a judicial election campaign, viclent strictures

assailing the integrity of the incumbent judge (also a can-

didate for reelection) were written and published by a

rival candidate and an opposition newspaper. The in-

cumbent judge sought to punish for contempt and the

Supreme Court issued an alternative writ of prohibition

which thereafter was made absolute, the court holding

that such comment dia not constitute « contempt of court.

State v. Howell, 80 Conn. 668.

Shertly prior to and during the course of a jury trial, a

community newspaper published articles summing up the

evidence which would be introduced, commenting

thereon, and reflecting upon the parties and expressing an

opinion on the merits. Its conviction for contempt of

court was affirmed.

State v. Lovell, 117 Neb. 710.

During the pendency of a civil appeal before the Su-

preme Court of Nebraska, defendant published a news-

paper article wherein he prophesied that the case would

be affirmed; he mentioned gossip to the effect that there

was a certain person who believed that interests friendiy

— os

to the appellants were in a position to influence the judges

of the Supreme Court and that the unnamed person

offered to bet that the judgment would be reversed. The

article defended the integrity of the judges but suggested

that the confidence of the public in the judiciary would

be enhanced if the decision were rendered prior to the

coming general election. The Supreme Court cited the

editor and held him guilty of contempt of court and

imposed a jail sentence.

State v. New Mexican Printing Co., 25 New Mex. 102.

During the pendency of civil and criminal libel actions

against the New Mexican Printing Co., it published an

article stating that the suits were political in their nature

and that the trial judge was a strong supporter of the

political boss in control of the county wherein the causes

were pending. The conviction of contempt ef court was

reversed.

State v. Tugwell, 19 Wash. 238.

Shortly after the rendition of a decision by the Supreme

Court of Washington (but prior to expiration of the time

within which a petition for rehearing might have been

acted upon), an editor published comment bitterly criti-

cising the decision and vigorously impugning the integ-

rity of at least one of the members of the court. The

Supreme Court of Washington held that the publication

was a contempt of court.

~

Re. eed

Matter of Sturoc, 48 N. H. 428.

Sturoc, a lawyer, caused to be published a a newspaper

circulated in a small town where a criminal prosecution |

was pending, while the court was in session and during

the term in which it would likeiy try the proceeding, an

article severely criticising the prosecution and using abu-

sive terms. The conviction for contempt of court was

afirmed.

Tate v. State, 132 Tenn. 131.

During the course of a jury trial in a will contest, the

editor of a newspaper caused to be published an article

referring to ‘mysterious affidavits” offered in evidence,

but rejected by the trial court, in the absence of the jury.

The conviction of the editor for contempt of court was

afirmed.

Telegram Newspaper Co. v. Commonwealth, |72 Mass

294.

Pending a jury trial in an action to recover damages

for taking of property by a public body, a newspaper

published that the public body had offered the plaintiff

$50.00 damages at the time it took his property, but that

plaintiff demanded $250.00, and, not getting it, “went to

law.’ The conviction of the newspaper for contempt of

court was affirmed.

Toledo Newspaper Co. v. United States, 247 U. d. 402.

Resume appears in brief, ante, p. 14.