Craig v. Harney

331 U.S. 367, 67 S. Ct. 1249, 91 L. Ed. 1546, 1947 U.S. LEXIS 2266

• Court: Supreme Court of the United States
• Decided: October 15, 1947
• Docket: 241
• Status: Published

Opinions

Opinion of the Court by

Mr. Justice Douglas,

announced by Mr. Justice Reed.

Petitioners were adjudged guilty of constructive criminal contempt by the County Court of Nueces County, Texas, and sentenced to jail for three days. They sought to challenge the legality of their confinement by applying to the Court of Criminal Appeals for a writ of habeas corpus.1 That court by a divided vote denied the writ and remanded petitioners to the custody of the county sheriff. 149 Tex. Cr. —, 193 S. W. 2d 178. The case is here on a petition for a writ of certiorari which we granted because of the importance of the problem and because the ruling of the Texas court raised doubts whether it conformed to the principles announced in Bridges v. California, 314 U. S. 252, and Pennekamp v. Florida, 328 U. S. 331.

Petitioners are a publisher, an editorial writer, and a news reporter of newspapers published in Corpus Christi, Texas. The County Court had before it a forcible de-tainer case, Jackson v. Mayes, whereby Jackson sought to regain possession from Mayes of a business building in Corpus Christi which Mayes (who was at the time in the armed services and whose affairs were being handled by an agent, one Burchard) claimed under a lease. That case turned on whether Mayes’ lease was forfeited because of non-payment of rent. At the close of the testimony each side moved for an instructed verdict. The judge instructed the jury to return a verdict for Jackson. That was on May 26, 1945. The jury returned with a verdict for Mayes. The judge refused to accept it and again instructed the jury to return a verdict for Jackson. The jury returned a second time with a verdict for Mayes. Once more the judge refused to accept it and repeated his prior instruction. It being the evening of May 26th and the jury not having complied, the judge recessed the court until the morning of May 27th. Again the jury balked at returning the instructed verdict. But finally it complied, stating that it acted under coercion of the court and against its conscience.

On May 29th Mayes moved for a new trial. That motion was denied on June 6th. On June 4th an officer of the County Court filed with that court a complaint charging petitioners with contempt by publication. The publications referred to were an editorial and news stories published on May 26, 27, 28, 30, and 31 in the newspapers with which petitioners are connected. We have set forth the relevant parts of the publications in the appendix to this opinion. Browning, the judge, who is a layman and who holds an elective office, was criticised for taking the case from the jury. That ruling was called “arbitrary action” and a “travesty on justice.” It was deplored that a layman, rather than a lawyer, sat as judge. Groups of local citizens were reported as petitioning the judge to grant Mayes a new trial and it was said that one group had labeled the judge’s ruling as a “gross miscarriage of justice.” It was also said that the judge’s behavior had properly brought down “the wrath of public opinion upon his head,” that the people were aroused because a service man “seems to be getting a raw deal,” and that there was “no way of knowing whether justice was done, because the first rule of justice, giving both sides an opportunity to be heard, was repudiated.” And the fact that there could be no appeal from the judge’s ruling to a court “familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel” was deplored.

The trial judge concluded that the reports and editorial were designed falsely to represent to the public the nature of the proceedings and to prejudice and influence the court in its ruling on the motion for a new trial then pending. Petitioners contended at the hearing that all that was reported did no more than to create the same impression that would have been created upon the mind of an average intelligent layman who sat through the trial. They disclaimed any purpose to impute unworthy motives to the judge or to advise him how the case should be decided or to bring the court into disrepute. The purpose was to “quicken the conscience of the judge” and to “make him more careful in discharging his duty.”

The Court of Criminal Appeals, in denying the writ of habeas corpus, stated that the “issue before us” is “whether the publications . . . were reasonably calculated to interfere with the due administration of justice” in the pending case. 193 S. W. 2d p. 186. It held that “there is no escape from the conclusion that it was the purpose and intent of the publishers ... to force, compel, and coerce Judge Browning to grant Mayes a new trial. The only reason or motive for so doing was because the publishers did not agree with Judge Browning’s decision or conduct of the case. According to their viewpoint, Judge Browning was wrong and they took it upon themselves to make him change his decision.” Id.., pp. 188-189. The court went on to say that “It is hard to conceive how the public press could have been more forcibly or substantially used or applied to make, force, and compel a judge to change a ruling or decision in a case pending before him than was here done.” Id., p. 189. The court distinguished the Bridges case, noting that there the published statements carried threats of future adverse criticism and action on the part of the publisher if the pending matter was not disposed of in accordance with the views of the publisher, that the views of the publisher in the matter were already well-known, and that the Bridges case was not private litigation but a suit in the outcome of which the public had an interest. Id., p. 188. It concluded that the facts of this case satisfied the “clear and present danger” rule of the Bridges case. That test was, in the view of the court, satisfied “because the publications and their purpose were to impress upon Judge Browning (a) that unless he granted the motion for a new trial he would be subjected to suspicion as to his integrity and fairness and to odium and hatred in the public mind; (b) that the safe and secure course to avoid the criticism of the press and public opinion would be to grant the motion and disqualify himself from again presiding at the trial of the case; and (c) that if he overruled the motion for a new trial, there would be produced in the public mind such a disregard for the court over which he presided as to give rise to a purpose in practice to refuse to respect and obey any order, judgment, or decree which he might render in conflict with the views of the public press.” Id., p. 189.

The court’s statement of the issue before it and the reasons it gave for holding that the “clear and present danger” test was satisfied have a striking resemblance to the findings which the Court in Toledo Newspaper Co. v. United States, 247 U. S. 402, held adequate to sustain an adjudication of contempt by publication.² That case held that comment on a pending case in a federal court was punishable by contempt if it had a “reasonable tendency” to obstruct the administration of justice. We revisited that case in Nye v. United States, 313 U. S. 33, 52, and disapproved it. And in Bridges v. California, supra, we held that the compulsion of the Eirst Amendment, made applicable to the States by the Fourteenth (Schneider v. Irvington, 308 U. S. 147; Murdock v. Pennsylvania, 319 U. S. 105, 108) forbade the punishment by contempt for comment on pending cases in absence of a showing that the utterances created a “clear and present danger” to the administration of justice. 314 17. S. pp. 260-264. We reaffirmed and reapplied that standard in Pennekamp v. Florida, supra, which also involved comment on matters pending before the court. We stated, p. 347:

“Courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offense falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.”

Neither those eases nor the present one raises questions concerning the full reach of the power of the state to protect the administration of justice by its courts. The problem presented is only a narrow, albeit important, phase of that problem — the power of a court promptly and without a jury trial to punish for comment on cases pending before it and awaiting disposition. The history of the power to punish for contempt (see Nye v. United States, supra; Bridges v. California, supra) and the unequivocal command of the First Amendment serve as constant reminders that freedom of speech and of the press should not be impaired through the exercise of that power, unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice.

In a case where it is asserted that a person has been deprived by a state court of a fundamental right secured by the Constitution, an independent examination of the facts by this Court is often required to be made. See Norris v. Alabama, 294 U. S. 587, 590; Pierre v. Louisiana, 306 U. S. 354, 358; Chambers v. Florida, 309 U. S. 227, 228-229; Lisenba v. California, 314 U. S. 219, 237-238; Ashcraft v. Tennessee, 322 U. S. 143, 147-148. This is such a case.

We start with the news articles. A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury, or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.

The articles of May 26, 27, and 28 were partial reports of what transpired at the trial. They did not reflect good reporting, for they failed to reveal the precise issue before the judge. They said that Mayes, the tenant, had tendered a rental check. They did not disclose that the rental check was post-dated and hence, in the opinion of the judge, not a valid tender. In that sense the news articles were by any standard an unfair report of what transpired.³ But inaccuracies in reporting are commonplace. Certainly a reporter could not be laid by the heels for contempt because he missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case. Conceivably, a plan of reporting on a case could be so designed and executed as to poison the public mind, to cause a march on the court house, or otherwise so disturb the delicate balance in a highly wrought situation as to imperil the fair and orderly functioning of the judicial process. But it takes more imagination than we possess to find in this rather sketchy and one-sided report of a case any imminent or serious threat to a judge of reasonable fortitude. See Pennekamp v. Florida, supra.

The accounts of May 30 and 31 dealt with the news of what certain groups of citizens proposed to do about the judge’s ruling in the case. So far as we are advised, it was a fact that they planned to take the proposed action. The episodes were community events of legitimate interest. Whatever might be the responsibility of the group which took the action, those who reported it stand in a different position. Even if the former were guilty of contempt, freedom of the press may not be denied a newspaper which brings their conduct to the public eye.

The only substantial question raised pertains to the editorial. It called the judge’s refusal to hear both sides “high handed,” a “travesty on justice,” and the reason that public opinion was “outraged.” It said that his ruling properly “brought down the wrath of public opinion upon his head” since a service man “seems to be getting a raw deal.” The fact that there was no appeal from his decision to a “judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make his decisions accordingly” was a “tragedy.” It deplored the fact that the judge was a “layman” and not a “competent attorney.” It concluded that the “first rule of justice” was to give both sides an opportunity to be heard and when that rule was “repudiated,” there was “no way of knowing whether justice was done.”

This was strong language, intemperate language, and, we assume, an unfair criticism. But a judge may not hold in contempt one “who ventures to publish anything that tends to make him unpopular or to belittle him . . . .” See Craig v. Hecht, 263 U. S. 255, 281, Mr. Justice Holmes dissenting. The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.

We agree with the court below that the editorial must be appraised in the setting of the news articles which both preceded and followed it. It must also be appraised in light of the community environment which prevailed at that time. The fact that the jury was recalcitrant and balked, the fact that it acted under coercion and contrary to its conscience and said so were some index of popular opinion. A judge who is part of such a dramatic episode can hardly help but know that his decision is apt to be unpopular. But the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Conceivably a campaign could be so managed and so aimed at the sensibilities of a particular judge and the matter pending before him as to cross the forbidden line. But the episodes we have here do not fall in that category. Nor can we assume that the trial judge was not a man of fortitude.

The editorial’s complaint was two-fold. One objection or criticism was that a layman rather than a lawyer sat on the bench. That is legitimate comment; and its relevancy could hardly be denied at least where judges are elected. In the circumstances of the present case, it amounts at the very most to an intimation that come the next election the newspaper in question will not support the incumbent. But it contained no threat to oppose him in the campaign if the decision on the merits was not overruled, nor any implied reward if it was changed. Judges who stand for reelection run on their records. That may be a rugged environment. Criticism is expected. Discussion of their conduct is appropriate, if not necessary. The fact that the discussion at this particular point of time was not in good taste falls far short of meeting the clear and present danger test.

The other complaint of the editorial was directed at the court’s procedure — its failure to hear both sides before the case was decided. There was no attempt to pass on the merits of the case. The editorial, indeed, stated that there was no way of knowing whether justice was done. That criticism of the court’s procedure — that it decided the case without giving both sides a chance to be heard— reduces the salient point of the case to a narrow issue. If the point had been made in a petition for rehearing, and reduced to lawyer’s language, it would be of trifling consequence. The fact that it was put in layman’s language, colorfully phrased for popular consumption, and printed in a newspaper does not seem to us to elevate it to the criminal level. It might well have a tendency to lower the standing of the judge in the public eye. But it is hard to see on these facts how it could obstruct the course of justice in the case before the court. The only demand was for a hearing. There was no demand that the judge reverse his position — or else.

“Legal trials are not^ like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” Bridges v. California, supra, p. 271. But there was here no threat or menace to the integrity of the trial. The editorial challenged the propriety of the court's procedure, not the merits of its ruling. Any such challenge, whether made prior or subsequent to the final disposition of a case, would likely reflect on the competence of the judge in handling cases. But as we have said, the power to punish for contempt depends on a more substantial showing. Giving the editorial all of the vehemence which the court below found in it we fail to see how it could in any realistic sense create an imminent and serious threat to the ability of the court to give fair consideration to the motion for rehearing.

There is a suggestion that the case is different from Bridges v. California, supra, in that we have here only private litigation, while in the Bridges case labor controversies were involved, some of them being criminal cases. The thought apparently is that the range of permissible comment is greater where the pending case generates a public concern. The nature of the case may, of course, be relevant in determining whether the clear and present danger test is satisfied. But, the rule of the Bridges and Pennekamp cases is fashioned to serve the needs of all litigation, not merely select types of pending cases.

Reversed.

[For concurring opinion of Mr. Justice Murphy, see post, p. 383. For dissenting opinions of Mr. Justice Frankfurter and Mr. Justice Jackson, see post, pp. 384, 394.]

APPENDIX.

On May 26,1945, a news item stated:

“Burehard further claimed that although he had not known of the option clause, when he learned of it he had immediately proffered a check for $275 rental.”

On May 27,1945, there was a news item which stated:

“At 7 p. m. Browning, without listening to argument from counsel for either side on a plaintiff’s motion presented by Dudley Tarlton for Jackson, and without giving the six-man jury opportunity to weigh the evidence, instructed the jury to find against Mayes.

“Walter M. Lewright, Mayes’ attorney, protested that the court’s arbitrary action had ruled that Tarl-ton’s ‘one-page motion’ did not need supporting argument and citation of authorities.”

On May 28,1945, an article said:

“Browning accepted Tarlton’s one-page motion, and without permitting argument or citation of authorities to support the motion, ruled that it be granted. The effect of this ruling was that Browning took the matter from the jury.”

That article also included the following statement made by Mayes’ attorney to the jury on May 27,1945:

“However, I now advise you that under the law, Judge Browning has the right to compel you, even against the dictates of your conscience, to sign the verdict he has ordered.

“As a matter of fact, it is probable that he has the power to put you in jail until such time as you do sign it, and I rather imagine, from what has heretofore taken place in this trial, that unless you do sign the verdict, he will cause you to be put in jail.

“As I and my clients feel that you have done all in your power to register your protest and revulsion of feeling at the effect of this decision reached by Judge Browning; as you are helpless to do anything further; and as making you suffer by remaining locked up will not do us a bit of good, I suggest that you sign the verdict and return to your homes with a clear conscience of having done all that you could to.protect the rights of a man whom I feel, and evidently you feel, has been done a gross injustice.

“While we have no appeal from the court’s decision in this case, we do have the right again to appeal to his conscience by presenting a motion for new trial in this action — and which motion we will file and argue strenuously with the hope that in the meantime he will see the error committed and will rectify the same.

“There cannot be any doubt but that the action of you men in registering your protest against this decision, as you have done, will affect him. At least, I can only hope that it will. I sincerely thank you.”

On May 30,1945, an editorial stated:

“Browning’s behavior and attitude has brought down the wrath of public opinion upon his head, properly so. Emotions have been aggravated. American people simply don’t like the idea of such goings on, especially when a man in the service of his country seems to be getting a raw deal . . . Then the plaintiff’s counsel offered a motion for an instructed verdict for his client. It was granted immediately, without having him cite his authority or without giving the defendant’s attorney a chance to argue against it.

“That was the travesty on justice, the judge’s refusal to hear both sides. That’s where a legal background would have served him in good stead. It is difficult to believe that any lawyer, even a hack, would have followed such high handed procedure in instructing a jury. It’s no wonder that the jury balked and public opinion is outraged.

“The fact that a serviceman is involved lends drama to the event. But it could have happened to anyone, it can happen to anyone, with a layman sitting as judge in a case where fine points of law are involved. True, the idea that only lawyers are qualified to occupy most public offices has been run into the ground, and in most instances a competent layman would be better qualified, but the county judge’s office is an exception. He should be a competent attorney as well as a competent businessman.

“It’s the tragedy in a case of this sort that the court where the controversial decision was handed down is the court of last resort. It’s too bad that appeal can’t be made to a district court and heard by a judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make his decisions accordingly . . . There is no way of knowing whether justice was done, because the first rule of justice, giving both sides an opportunity to be heard, was repudiated.”

On May 30,1945, there appeared a report of a resolution passed by the Sailor’s and Soldier’s Advisory Council of Corpus Christi “labeling County Judge Joe D. Browning’s order for a directed verdict against Mayes a ‘gross miscarriage of justice.’ ” That article further stated:

“The council’s resolution called on Browning to grant Mayes a new trial on the grounds that he had committed an error in instructing the jury to find for the plaintiff. The petition asked that Browning, upon granting the new trial, should disqualify himself to further sit as judge in the trial, and should permit the trial to be retried before another judge and jury . . . The trial reached a climax Saturday night when Browning, on motion of Dudley Tarlton, Jackson’s counsel, and without argument or citation of authority, instructed the six-man County Court jury to find for Jackson. The jury twice refused, both times bringing in verdicts in favor of Mayes and against Jackson.

“Browning had the jury confined to the court house jury room all Saturday night. Sunday morning, when the court convened, the jury reported that it still had not signed the verdict in favor of Jackson.

“Browning announced that he would lock the jury up again until Monday morning. However, Walter M. Lewright advised the jurymen that they should not continue to 'suffer’ any longer, and should sign the verdict, since Browning had the legal right to force them to do so. The jury signed the verdict, but appended a statement asserting that they did so under pressure.”

On May 31, 1945, a news story said:

“Three local groups were reported last night to be preparing petitions requesting County Judge Joe D. Browning to grant Pvt. Joe L. Mayes a new trial in the Playboy Cafe ouster suit.

“One petition is reported being drawn by a parents and teachers’ group, another by a service mothers’ group, and the third is being drawn for independent circulation among parents of men in service.

“The new petitions are said to follow the general outline of a petition adopted by the Corpus Christi Soldier’s and Sailor’s Advisory Council Tuesday night. This petition called on Browning to grant a new trial and upon doing so to disqualify himself and permit the trial to go on under another judge and jury. Action on the petitions is expected shortly.

“The council’s petition, drawn up by five veterans’ organizations with a membership of more than 1,000, followed by a few hours the filing of a motion for a new trial by Walter M. Lewright and LeGrand Woods, Mayes’ counsels ... It came to a climax Sunday when Browning Saturday night accepted without argument or citation of authority a motion by Dudley Tarlton Jackson’s lawyer, for an instructed verdict . . . The jury was kept Saturday night in the Court House. Sunday morning, following a threat by Browning to keep the jury together until they did sign, the jurymen signed the verdict, appending a statement that they did so against the dictates of their conscience.”

1 That appears to be the appropriate remedy in Texas in this type of case. Ex parte Miller, 91 Texas Cr. Rep. 607, 240 S. W. 944. As to the Texas procedure where there is an adjudication of contempt for violating an order in a civil cause, see Thomas v. Collins, 323 U. S. 516.

2 The findings which the Court in that case sustained were as follows:

“(a) Because . . . their manifest purpose was to create the impression on the mind of the court that it could not decide in the matter before it in any but the one way without giving rise to such a state of suspicion as to the integrity or fairness of its purpose and motives as might engender a shrinking from so doing, (b) Because the publications directly tended to incite to such a condition of the public mind as would leave no room for doubt that if the court, acting according to its convictions, awarded relief, it would be subject to such odium and hatred as to restrain it from doing so. (c) Because the publications also obviously were intended to produce the impression that any order which might be rendered by the court in the discharge of its duty, if not in accord with the conceptions which the publications were sustaining, would be disregarded and cause a shrinking from performing duty to avoid the turmoil and violence which the publications, it may be only by covert insinuation, but none the less assuredly, invited. And (d) because the publications were of a character, not merely because of their intemperance but because of their general tendency, to produce in the popular mind a condition which would give rise to a purpose in practice to refuse to respect any order which the court might render if it conflicted with the supposed rights of the city espoused by the publications.”

247 U. S. pp. 414-415.

3 The charge against petitioners also set forth other allegedly false statements: (1) that Mayes was not an ex-insurance man but in the insurance business at the time; (2) that terms of the contract on which Jackson sued were not disclosed; (3) that the arrangements under which the premises had been operated for some months before Mayes was inducted into the armed services were not disclosed; (4) that the articles failed to state the legal grounds on which Jackson’s motion for an instructed verdict was argued and granted; (5) that much material evidence was omitted which would have enabled the public to form a fair estimate of the nature of the controversy; (6) that the principal plaintiffs who were highly respected business and professional men of Corpus Christi were not named.

These omissions, though reflecting on the quality of the reporting, do not seem to us to be of importance here.