Influencing the Courts
Trump's Speech Was Never Entitled To Freedom
In Pennekamp v. Florida, the Supreme Court heard a case about balancing the freedom of the first amendment (in this case it was an attempt to influence via a series of press articles) but the issue is the same. If justice has to balance the rights of the defendant with the rights of the state, as many great jurists have stated, in common law this balancing of different rights is not always easy and not always clearcut. But no right is, or can ever be. I have always found Felix Frankfurter’s concurrence in this case particularly striking. But I find the relevance of Trump’s attempt to influence his judicial outcomes exceedingly troublesome, and I found Justice Frankfurter’s argument here worth being considered. Admittedly I often find Frankfurter’s jurisprudence and deference to legislative mandates often much more interpretive of civil than common law. But I side frequently with Frankfurter that freedom of speech without limits, can create chaos and can be used to destroy society. Free speech in the hands of Alex Jones is tyrannical and should not be tolerated. Donald Trump creates more harm to society by what he calls his free speech. As I have written before, the freedom to put forth ideas for debate and what can be learned can be beneficial to all. But speech used to attempt to intimidate, coerce, or threaten should never be acceptable as a person's right of expression. Speech used to profit is already illegal (“truth in advertising”). But is seldom (or never) used for political lying which is even more important.
In the last thirty years there has been a concerted effort to tell Americans that freedom of speech is an absolute right. But from our founding until recently I know of only one absolutist—Jefferson. But he was an absolutist for the reason he felt chaos and revolution an absolute good as well. You will not find such absolutists in the enlightened thinkers who originated the concept itself. I think Jefferson was correct if you believe in constantly tearing down society. Jefferson should have found no fault with January 6 because he found no fault with the French Revolution or any of its excesses.
That is what speech absolutism is. And it leads only to the breakdown of all courtesies necessary for free thought and freedom of expression. If the freedom of speech is an absolute then all other freedoms are reduced. So I thought it worth posting this great dissent.
Mr. Justice FRANKFURTER concurring.
On the basis of two editorials and a cartoon, the Circuit Court of Florida for the County of Dade found the publisher of the Miami Herald and one of its editors guilty of contempt of court. 1 The editor, Pennekamp, was fined $250 and the Publishing Company, $1,000. Deeming Bridges v. California, 314 U.S. 252 , 62 S.Ct. 190, 159 A.L.R. 1346, not controlling, the Supreme Court of Florida, with two judges dissenting, sustained the convictions. 22 So.2d 875.
In the Bridges case this Court recently canvassed constitutional aspects of contempt of court by publication. But it was hardly to be expected that other problems in the large field within which the Bridges case moved would not recur. This Court sits to interpret, in appropriate judicial controversies, a Constitution which in its Bill of Rights formulates the conditions of a democracy. But democracy is the least static form of society. Its basis [328 U.S. 331, 351] is reason not authority. Formulas embodying vague and uncritical generalizations offer tempting opportunities to evade the need for continuous thought. But so long as men want freedom they resist this temptation. Such formulas are most beguiling and most mischievous when contending claims are those not of right and wrong but of two rights, each highly important to the well-being of society. Seldom is there available a pat formula that adequately analyzes such a problem, least of all solves it. Certainly no such formula furnishes a ready answer to the question now here for decision or even exposes its true elements. The precise issue is whether, and to what extent, a State can protect the administration of justice by authorizing prompt punishment, without the intervention of a jury, of publications out of court that may interfere with a court's disposition of pending litigation.
The decision in the Bridges case did not explicitly deny to the States the right to protect the judicial process from interference by means of a publication bearing on a pending litigation. The atmosphere and emanations of the Court's opinion, however, were calculated to sanction anything to be said or written outside the courtroom even though it may hurt or embarrass the just outcome of a proceeding. But in a series of decisions which presented most sharply the constitutional extent of freedom of speech, this Court had held that the Constitution did not allow absolute freedom of expression-a freedom unrestricted by the duty to respect other needs fulfillment of which make for the dignity and security of man. Schenck v. United States, 249 U.S. 47 , 39 S.Ct. 247; Frohwerk v. United States, 249 U.S. 204 , 39 S.Ct. 249; Debs v. United States, 249 U.S. 211 , 39 S.Ct. 252.
No Justice thought more deeply about the nature of a free society or was more zealous to safeguard its conditions by the most abundant regard for civil liberty than Mr. Justice Holmes. He left no doubt that judicial protection [328 U.S. 331, 352] of freedom of utterance is necessarily qualified by the requirements of the Constitution as an entirety for the maintenance of a free society. It does an illservice to the author of the most quoted judicial phrases regarding freedom of speech, to make him the victim of a tendency which he fought all his life, whereby phrases are made to do service for critical anaylsis by being turned into dogma. 'It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.' Holmes, J., dissenting, in Hyde v. United States, 225 U.S. 347 , 384, at page 391, 32 S.Ct. 793, 808, at page 811, Ann.Cas.1914A, 614. Words which 'are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,' Schenck v. United States, 249 U.S. 47, 52 , 39 S.Ct. 247, 249, speak their own condemnation. But it does violence to the juristic philosophy and the judicial practice of Mr. Justice Holmes to assume that by using the phrase 'a clear and present danger' he was expressing even remotely an absolutist test or had in mind a danger in the abstract. He followed the observation just quoted by the emphatic statement that the question is one 'of proximity and degree,' as he conceived to be most questions in connection with the large, undefined rights guaranteed by the Constitution. And Mr. Justice Brandeis, co- architect of the great constitutional structure of civil liberties, also recognized that 'the permissible curtailment of free speech is ... one of degree; and because it is a question of degree the field in which the jury may exercise its judgment is necessarily a wide one.' Schaefer v. United States, 251 U.S. 466 , 482, at page 483, 40 S.Ct. 259, 264, at page 265 (dissenting). If Mr. Justice Brandeis' constitutional philosophy means anything, it is clear beyond peradventure that he would not deny to a State, exercising its judgment as to the mode by which speech may be curtailed by punishment [328 U.S. 331, 353] subsequent to its utterance, a field less wide than that which he permitted a jury in a federal court.
'Clear and present danger' was never used by Mr. Justice Holmes to express a technical legal doctrine or to convey a formula for adjudicating cases. It was a literary phrase not to be distorted by being taken from its context. In its setting it served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution. When those other attributes of a democracy are threatened by speech the Constitution does not deny power to the States to curb it. 'The clear and present danger' to be arrested may be danger short of a threat as comprehensive and vague as a threat to the safety of the Republic or 'the American way of life.' Neither Mr. Justice Holmes nor Mr. Justice Brandeis nor this Court ever suggested in all the cases that arose in connection with the First World War, that only imminent threats to the immediate security of the country would authorize courts to sustain legislation curtailing utterance. Such forces of destruction are of an order of magnitude which courts are hardly designed to counter. 'The clear and present danger' with which its two great judicial exponents were concerned, was a clear and present danger that utterance would 'bring about the ... evils' which Congress sought and 'has a right to prevent.' Schenck v. United States, supra. Among 'the substantive evils' with which legislation may deal is the hampering of a court in a pending controversy, because the fair administration of justice is one of the chief tests of a true democracy. And since men equally devoted to the vital importance of freedom of speech may fairly differ in an estimate of this danger in a particular case, the field in which a State 'may exercise its judgment is necessarily a wide one.' Therefore, [328 U.S. 331, 354] every time a situation like the present one comes here the precise problem before us is to determine whether the State court went beyond the allowable limits of judgment in holding that conduct which has been punished as a contempt was reasonably calculated to endanger a State's duty to administer impartial justice in a pending controversy.
Without a free press there can be no free society. 2 Freedom of the press, however, is not an end in itself but a [328 U.S. 331, 355] means to the end of a free society. The scope and nature of the constitutional protection of freedom of speech must be viewed in that light and in that light applied. The independence of the judiciary is no less a means to the end of a free society, and the proper functioning of an independent judiciary puts the freedom of the press in its proper perspective. For the judiciary cannot function properly if what the press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the court. A judiciary is not independent unless courts of justice are enabled to administer law by absence of pressure from without, whether exerted through the blandishments of reward or the menace of disfavor. In the noble words, penned by John Adams, of the First Constitution of Massachusetts: 'It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.' 3 A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.
A free press is vital to a democratic society because its freedom gives it power. Power in a democracy implies responsibility in its exercise. No institution in a democracy, either governmental or private, can have absolute [328 U.S. 331, 356] power. 4 Nor can the limits of power which enforce responsibility be finally determined by the limited power itself. See Carl L. Becker, Freedom and Responsibility in the American Way of Life (1945). In plain English, freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise. Most State constitutions expressly provide for liability for abuse of the press's freedom. That there was such legal liability was so taken for granted by the framers of the First Amendment that it was not spelled out. Responsibility for its abuse was imbedded in the law. 5 The First Amendment safeguarded the right.
These are generalities. But they are generalities of the most practical importance in achieving a proper adjustment between a free press and an independent judiciary.
Especially in the administration of the criminal law-that most awesome aspect of government-society needs independent courts of justice. This means judges free from control by the executive, free from all ties with political interests, free from all fears of reprisal or hopes of [328 U.S. 331, 357] reward. The safety of society and the security of the innocent alike depend upon wise and impartial criminal justice. Misuse of its machinery may undermine the safety of the State; its misuse may deprive the individual of all that makes a free man's life dear. 6
Criticism therefore must not feel cramped, even criticism of the administration of criminal justice. Weak characters ought not to be judges, and the scope allowed to the press for society's sake may assume that they are not. No judge fit to be one is likely to be influenced consciously except by what he sees and hears in court and by what is judicially appropriate for his deliberations. However, judges are also human, and we know better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process. While the ramparts of reason have been found to be more fragile than the Age of Enlightenment had supposed, the means for arousing passion and confusing judgment have been reinforced. And since judges, however, stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print.
The English bench is justly noted for its sturdiness, and it was no weak-kneed judge who recently analyzed the mis- [328 U.S. 331, 358] chief of exposing even the hardiest nature to extraneous influence: '... I think it is a fallacy to say or to assume that the presiding judge is a person who cannot be affected by outside information. He is a human being, and while I do not suggest that it is likely that any judge, as the result of information which had been improperly conveyed to him would give a decision which otherwise he would not have g ven, it is embarrassing to a judge that he should be informed of matters which he would much rather not hear and which make it much more difficult for him to do his duty. To repeat the words I have already read from the judgment of Wills, J., in Rex v. Parke, (1903) 2 K.B. 432: 'The reason why the publication of articles like those with which we have to deal is treated as a contempt of court is because their tendency and sometimes their object is to deprive the court of the power of doing that which is the end for which it exists- namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it.' ... I venture to think that no judge with long criminal experience will fail to be able to recall instances in which the publication of matters such as that to which I have referred has had the effect of making the task of a judge extremely difficult and no one has the right to publish matter which will have that effect.' Humphreys, J., in Rex v. Davies, (1945) 1 K.B. 435, 442-43. The observations of another judge in the same case bear quoting: '... jurors are not the only people whose minds can be affected by prejudice. One of the evils of inadmissible matter being disseminated is that no one can tell what effect a particular piece of information may have on his mind. Why, as my Lord has asked, and I can think of no better word, should a judge be 'embarrassed' by having matters put into his mind, the effect of which it is impossible to estimate or assess? As an illustration of this proposition, the Court of Criminal [328 U.S. 331, 359] Appeal has expressed not once but many times, its thorough disapproval of evidence which is sometimes given by police officers at the end of a case when a man has been convicted. On such occasions all sorts of allegations are frequently made against a man's character, sometimes in the nature of hearsay and sometimes not supported by evidence at all. What is the ground for the disapproval of the Court of Criminal Appeal regarding such statements? It can only be that the judge who, after hearing the statements, has to pronounce sentence, may quite unconsciously, have his judgment influenced by matters which he has no right to consider. ... Not all defamatory matter can amount to contempt of court ... whether defamatory matter amounts to contempt in any particular case is a question in each case of fact, of degree and of circumstances.' Oliver, J., in Rex v. Davies, supra, (1945) 1 K.B. at pages 445, 446. Cf. Parashuram Detaram Shamdasani v. King-Emperor, (1945) A.C. 264. To deny that bludgeoning or poisonous comment has power to influence, or at least to disturb, the task of judging is to play make-believe and to assume that men in gowns are angels. The psychological aspects of this problem become particularly pertinent in the case of elected judges with short tenure.
'Trial by newspaper,' like all catch phrases, may be loosely used but it summarizes an evil influence upon the administration of criminal justice in this country. Its absence in England, at least its narrow confinement there, furnishes an illuminating commentary. It will hardly be claimed that the press is less free in England than in the United States. Nor will any informed person deny that the administration of criminal justice is more effective there than here. This is so despite the commonly accepted view that English standards of criminal justice are more civilized, or, at the least, that recognized standards of fair conduct in the prosecution of crime are better ob- [328 U.S. 331, 360] served. Thus, 'the third degree' is not unjustly called 'the American method.' 7 This is not the occasion to enlarge upon the reasons for the greater effectiveness of English criminal justice but it may be confidently asserted that it is more effective partly because its standards are so civilized. 8 There are those who will resent such a statement as praise of another country and dispraise of one's [328 U.S. 331, 361] own. What it really means is that one covets for his own country a quality of public conduct not surpassed elsewhere.
Certain features of American criminal justice have long been diagnosed by those best qualified to judge as serious and remediable defects. On the other hand, some mischievous accompaniments of our system have been so pervasive that they are too often regarded as part of the exuberant American spirit. Thus, 'trial by newspapers' has sometimes been explained as a concession to our peculiar interest in criminal trials. Such interest might be an innocent enough pastime were it not for the fact that the stimulation of such curiosity by the press and the response to such stimulated interest have not failed to cause grievous tragedies committed under the forms of law. Of course trials must be public and the public have a deep interest in trials. The public's legitimate interest, however, precludes distortion of what goes on inside the courtroom, dissemination of matters that do not come before the court, or other trafficking with truth intended to influence proceedings or inevitably calculated to disturb the course of justice. The atmosphere in a courtroom may be subtly influenced from without. 9 See dissenting [328 U.S. 331, 362] opinion of Mr. Justice Holmes, in Frank v. Mangum, 237 U.S. 309 , 347, at page 349, 35 S.Ct. 582, 595, at page 596. Cases are too often tried in news- [328 U.S. 331, 363] papers before they are tried in c urt, and the cast of characters in the newspaper trial too often differs greatly from the real persons who appear at the trial in court and who may have to suffer its distorted consequences. 10
Newspapers and newspaper men themselves have acknowledged these practices, deplored their evils, and urged reform. 11 See The Attorney General's Conference on Crime (1934) 82-111. One of the most zealous claimants of the prerogatives of the press, the Chicago Tribune, has even proposed legal means for the correction of these in- [328 U.S. 331, 364] roads upon the province of criminal justice: 'The Tribune advocates and will accept drastic restriction of this preliminary publicity. The penetration of the police system and the courts by journalists must stop. With such a law there would be no motivation for it. Though such a law wil be revolutionary in American journalism, though it is not financially advisable for newspapers, it is still necessary. Restrictions must come.' 12
It is not for me to express approval of these views, still less, judgment on the constitutional issues that would arise if they were translated into legislation. But they are relevant to an understanding of the nature of our problem. They serve also to emphasize that the purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. '... the liberty of the press is no greater and no less than the liberty of every subject of the Queen,' Regina v. Gray, (1900) 2 Q.B. 36, 40, and, in the United States, it is no greater than the liberty of every citizen of the Republic. The right to undermine proceedings in court is not a special prerogative of the press. [328 U.S. 331, 365] The press does have the right, which is its professional function, to criticize and to advocate. The whole gamut of public affairs is the domain for fearless and critical comment, and not least the administration of justice. But the public function which belongs to the press makes it an obligation of honor to exercise this function only with the fullest sense of responsibility. Without such a lively sense of responsibility a free press may readily become a powerful instrument of injustice. 13 It should not and may not attempt to influence judges or juries before they have made up their minds on pending controversies. Such a restriction, which merely bars the operation of extraneous influence specifically directed to a concrete case, in no wise curtails the fullest discussion of public issues generally. It is not suggested that generalized discussion of a particular topic should be forbidden, or run [328 U.S. 331, 366] the hazard of contempt proceedings, merely because some phases of such a general topic may be involved in a pending litigation. It is the focused attempt to influence a particular decision that may have a corroding effect on the process of justice, and it is such comment that justifies the corrective process.
The administration of law, particularly that of the criminal law, normally operates in an environment that is not universal or even general but individual. The distinctive circumstances of a particular case determine whether law is fairly administered in that case, through a disinterested judgment on the basis of what has been formally presented inside the courtroom on explicit considerations, instead of being subjected to extraneous factors psychologically calculated to disturb the exercise of an impartial and equitable judgment.
If men, including judges and journalists, were angels, there would be no problems of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise. It is a condition of that function- indispensable for a free society-that in a particular controversy pending before a court and awaiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the undertow of extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote. [328 U.S. 331, 367] Due regard for these general considerations must dispose of the present controversy. Since at the core of our problem is a proper balance between two basic conditions of our constitutional democracy-freedom of utterance and impartial justice-we cannot escape the exercise of judgment on the particular circumstances of the particular case. And we must always bear in mind that since a judgment from a State court comes here as the voice of the State, it must be accorded every fair intendment that in reason belongs to action by a state.
According to the Florida Supreme Court, the charge against petitioners was that 'both the editorials and the cartoon were predicated on inaccurate, distorted, incomplete and biased reports of pending litigation, that the purpose and effect of the editorials and the cartoon were to impute part sanship and favor on the part of the circuit judges to those charged with crime and that such partisanship was so pronounced that they refused to heed the voice of the peoples' representatives. ... So the vice in both the editorials was the distorted, inaccurate statement of the facts and with that statement were scrambled false insinuations that amounted to unwarranted charges of partisanship and unfairness on the part of the judges.' 14 The tenor of the first editorial was complaint of the technicalities and delays of the law which seem to give excessive protection to defendants. It makes no suggestion which could be construed as an attempt to influence the court's decision in a matter actually pending before it. All the questions discussed in the editorial had been acted on by the trial judges. The editor merely indulged in general criticism of those acts as exemplifying an over-solicitous concern for defendants by the law and by the judges who interpreted it. Nor was the cartoon directed toward a particular pending case. Indeed, it partly serves [328 U.S. 331, 368] to interpret the editorial as one concerned with a general situation. One suspects that only judicial hypersensitiveness would find in it an animus specifically directed. The opinion of the court illustrates the danger of confusing correction of interference with judicial action with concern over a court's dignity. Instead of treating lightly a cartoon indistinguishable in type from scores of such ephemeral products, the court saw in it wholly undeserved significance.
Again, the second editorial referred to a particular case only as an example. In that case, too, the court had made its decision. What the editor criticized was the speed of disposition and other features of procedure which attended the case. His allowable concern was that the people have a chance to give their argument, that the prosecution in criminal cases be treated as fairly as the defense. Inaccurate and even false comment on litigation no longer pending may not be dealt with by punishing for contempt as a means of assuring the just exercise of the judicial process.
The Florida Supreme Court referred to the cases criticized as 'pending.' But it did not define the scope of 'pending' nor did the grounds of its decision have any particular dependence on the requirement that a case be pending. The finding by a State court that a case is 'pending' in the sense relevant to the power to punish for contempt does not, of course, bar its review here. Otherwise a State court could foreclose our protection of the constitutional right of free speech by putting forth as a nonfederal ground of decision that which is an essential aspect of the federal question. Union Pac. R. Co. v. Public Service Comm., 248 U.S. 67, 69 , 70 S., 39 S.Ct. 24, 25; Ward v. Board of County Com'rs of Love County, 253 U.S. 17, 22 , 40 S.Ct. 419, 421; Davis v. Wechsler, 263 U.S. 22 , 44 S.Ct. 13.
If it is contemptuous to bring the courts of a State into disrepute and generally to impair their efficiency, then it [328 U.S. 331, 369] can make no difference on what occasion or with reference to what event, that effect is achieved or attempted. But when it is understood what is meant by a 'pending' case, it becomes plain that for purposes of punishing for contempt as interference, the cases were not actively pending. 'Pending' is not used with the technical inclusiveness that it has in the phrase lis pendens. In the situations in which that phrase has meaning and applicability, the important considerations are whether any proceedings have been taken to put the issue into court and whether it is still there. Where the power to punish for contempt is asserted, it is not important that the case is technically in court or that further proceedings, such as the possibility of a rehearing, are available. 'When a case is pending is not a technical, lawyer's problem, but is to be determined by the substa tial realities of the specific situation.' Bridges v. California, 314 U.S. 252 , 279, at pages 303, 304, 62 S.Ct. 190, 201 at page 213, 159 A.L.R. 1346 (dissent). The decisive consideration is whether the judge or the jury is, or presently will be, pondering a decision that comment seeks to affect. Forbidden comment is such as will or may throw psychological weight into scales which the court is immediately balancing. Cf. L. Hand, J., in Ex parte Craig, 282 F. 138, 159, 160. In the situation before us, the scales had come to rest. The petitioners offended the trial court by criticizing what the court had already put in the scales, not by attempting themselves to insert weights.
The petitioners here could not have disturbed the trial court in its sense of fairness but only in its sense of perspective. The judgment must, I agree, be reversed.