314 U.S. 252 (1941), 1, Bridges v. California

Docket Nº:No. 1
Citation:314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192
Party Name:Bridges v. California
Case Date:December 08, 1941
Court:United States Supreme Court

Page 252

314 U.S. 252 (1941)

62 S.Ct. 190, 86 L.Ed. 192




No. 1

United States Supreme Court

Dec. 8, 1941

Argued October 18, 21, 1940 (No.19, 1940 Term)

Reargued October 13, 1941



1. In determining whether punishment for an out-of-court publication concerning a pending case, as a contempt, is consistent with guaranties of the Federal Constitution, the problem in the case of a judgment based upon a particularized statutory declaration of the policy of a State is different from that where the judgment is based upon a common law concept of a general nature. P. 260.

2. The "clear and present danger" cases, decided by this Court, indicate that the substantive evil likely to result must be extremely serious, and the degree of imminence extremely high, before utterances can be punished. P. 263.

3. The "clear and present danger" cases do not mark the farthest constitutional boundaries of protected expression; nor do they more than recognize a minimum compulsion of the Bill of Rights. P. 263.

4. The freedom of speech and of the press secured by the First Amendment against abridgment by the United States is similarly secured to all persons by the Fourteenth against abridgment by a State. P. 263, n. 6.

5. The First Amendment's prohibition of "any law abridging the freedom of speech or of the press" must be given the broadest scope that can be countenanced in an orderly society. P. 265.

6. The First Amendment cannot be taken as approving all practices in respect to punishment for contempt which prevailed in England at the time of its ratification. P. 265.

7. The "inherent tendency" or "reasonable tendency" of an out-of-court publication to cause disrespect for the judiciary or interfere with the orderly administration of justice in a pending case is not sufficient to establish punishable contempt. P. 272.

8. Upon the facts of this case, held that convictions of a newspaper publisher and editor for contempt, based on the publication of editorials commenting upon cases pending in a state court, were violative

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of constitutional rights of freedom of speech and of the press. P. 271.

9. The conviction of a labor leader for contempt of state court, based upon his publication in the press of a telegram which he had sent to the Secretary of Labor, in which he criticized the decision of a judge in a case involving a labor dispute and indicated that enforcement of the decree would result in a strike, held violative of constitutional rights of freedom of speech and of the press. P. 275.

14 al.2d 464, 94 P.2d 983; 15 Gal.2d 99, 98 P.2d 1029, reversed.

CERTIORARI, 309 U.S. 649, 310 U.S. 623, to review, in two cases, the affirmance of convictions and sentences for contempt of court.

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BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

These two cases, while growing out of different circumstances and concerning different parties, both relate to the scope of our national constitutional policy safeguarding free speech and a free press. All of the petitioners were adjudged guilty and fined for contempt of court by the Superior Court of Los Angeles County. Their conviction rested upon comments pertaining to pending litigation which were published in newspapers. In the Superior Court, and later in the California Supreme Court, petitioners challenged the state's action [62 S.Ct. 192] as an abridgment, prohibited by the Federal Constitution, of freedom of

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speech and of the press; but the Superior Court overruled this contention, and the Supreme Court affirmed.1 The importance of the constitutional question prompted us to grant certiorari. 309 U.S. 649; 310 U.S. 623.

In brief, the state courts asserted and exercised a power to punish petitioners for publishing their views concerning cases, not in all respects finally determined, upon the following chain of reasoning: California is invested with the power and duty to provide an adequate administration of justice; by virtue of this power and duty, it can take appropriate measures for providing fair judicial trials free from coercion or intimidation; included among such appropriate measures is the common law procedure of punishing certain interferences and obstructions through contempt proceedings; this particular measure, devolving upon the courts of California by reason of their creation as courts, includes the power to punish for publications made outside the courtroom if they tend to interfere with the fair and orderly administration of justice in a pending case; the trial court having found that the publications had such a tendency, and there being substantial evidence to support the finding, the punishments here imposed were an appropriate exercise of the state's power; insofar as these punishments constitute a restriction on liberty of expression, the public interest in that liberty was properly subordinated to the public interest in judicial impartiality and decorum.2

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If the inference of conflict raised by the last clause be correct, the issue before us is of the very gravest moment. For free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them. But even if such a conflict is not actually raised by the question before us, we are still confronted with the delicate problems entailed in passing upon the deliberations of the highest court of a state. This is not, however, solely an issue between state and nation, as it would be if we were called upon to mediate in one of those troublous situations where each claims to be the repository of a particular sovereign power. To be sure, the exercise of power here in question was by a state judge. But in deciding whether or not the sweeping constitutional mandate against any law "abridging the freedom of speech or of the press" forbids it, we are necessarily measuring a power of all American courts, both state and federal, including this one.


It is to be noted at once that we have no direction by the legislature of California that publications outside the courtroom which comment upon a pending case in a specified manner should be punishable. As we said in Cantwell v. Connecticut, 310 U.S. 296, 307-308, such a "declaration of the State's policy would weigh heavily in any challenge of the law as infringing constitutional limitations." But, as we also said there, the problem is different where "the judgment is based on a common law concept of the most general and undefined nature." Id. 308. Cf. Herndon v. Lowry, 301 U.S. 242, 261-264. For here, the legislature of California has not appraised a particular kind of situation and found a specific danger3 sufficiently

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imminent to justify a restriction on a particular kind [62 S.Ct. 193] of utterance. The judgments below, therefore, do not come to us encased in the armor wrought by prior legislative deliberation. Under such circumstances, this Court has said that "it must necessarily be found, as an original question," that the specified publications involved created "such likelihood of bringing about the substantive evil as to deprive [them] of the constitutional protection." Gitlow v. New York, 268 U.S. 652, 671.

How much "likelihood" is another question, "a question of proximity and degree"4 that cannot be completely captured in a formula. In Schenck v. United States, however, this Court said that there must be a determination of whether or not

the words used 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.

We recognize that this statement, however helpful, does not comprehend the whole problem. As Mr. Justice Brandeis said in his concurring opinion in Whitney v. California, 274 U.S. 357, 374:

This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present.

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Nevertheless, the "clear and present danger" language5 of the Schenck case has afforded practical guidance in a great variety of cases in which the scope of constitutional protections of freedom of expression was in issue. It has been utilized by either a majority or minority of this Court in passing upon the constitutionality of convictions under espionage acts, Schenck v. United States, supra; Abrams v. United States, 250 U.S. 616; under a criminal syndicalism act, Whitney v. California, supra; under an "anti-insurrection" act, Herndon v. Lowry, supra, and for breach of the peace at common law, Cantwell v. Connecticut, supra. And, very recently, we have also suggested that "clear and present danger" is an appropriate guide in determining the constitutionality of restrictions upon expression where the substantive evil sought to be prevented by the restriction is "destruction of life or property, or invasion of the right of privacy." Thornhill v. Alabama, 310 U.S. 88, 105.

Moreover, the likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon freedom of speech or the press. The evil itself must be "substantial," Brandeis, J., concurring in Whitney v. California, supra, 374; it must be "serious," id., 376. And

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even the expression of "legislative preferences or beliefs" cannot transform minor matters of public inconvenience or annoyance into substantive evils of sufficient weight to warrant the curtailment of liberty of expression. Schneider v. State, 308 U.S. 147, 161.

What finally emerges from the "clear and present danger" cases is a working principle that the substantive evil must be extremely serious, and the degree of imminence extremely high, before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do...

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