Bridges v. State

• Decision Date: 08 December 1941
• Docket Number: Nos. 1,TIMES-MIRROR,3,s. 1
• Parties: BRIDGES v. . Re
• Court: U.S. Supreme Court

314 U.S. 252

62 S.Ct. 190

86 L.Ed. 192

BRIDGES

v STATE OF CALIFORNIA.

TIMES-MIRROR CO. et al.

v. SUPERIOR COURT OF STATE OF CALIFORNIA, IN AND FOR

LOS ANGELES COUNTY.

Nos. 1, 3.

Reargued Oct. 13, 1941.

Decided Dec. 8, 1941.

Messrs. Osmond K. Fraenkel, of New York City, and A. L. Wirin, of Los Angeles, Cal., for petitioner Bridges.

[Argument of Counsel from pages 253-254 intentionally omitted] Messrs. T. B. Cosgrove and John N. Cramer, both of Los Angeles, Cal., for petitioners Times Mirror Co. and another.

[Argument of Counsel from Page 255 intentionally omitted] Mr. Allen W. Ashburn, of Los Angeles, Cal., for respondents Superior Court Los Angeles County.

Mr. Allen W. Ashburn, of Los Angeles, Cal., for respondent State of California.

[Argument of Counsel from pages 256-257 intentionally omitted] 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 as an abridgment, prohibited by the Federal Constitution, of freedom of 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, 60 S.Ct. 807, 84 L.Ed. 1001; 310 U.S. 623, 60 S.Ct. 1098, 84 L.Ed. 1395.

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 court room 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; in so far 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 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.

I

It is to be noted at once that we have no direction by the legislature of California that publications outside the court room 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, 60 S.Ct. 900, 904, 905, 84 L.Ed. 1213, 128 A.L.R. 1352, 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., 310 U.S. at page 308, 60 S.Ct. at page 905, 84 L.Ed. 1213, 128 A.L.R. 1352. Cf. Herndon v. Lowry, 301 U.S. 242, 261—264, 57 S.Ct. 732, 740-742, 81 L.Ed. 1066. For here the legislature of California has not appraised a particular kind of situation and found a specific danger³ sufficiently imminent to justify a restriction on a particular kind 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, 45 S.Ct. 625, 631, 69 L.Ed. 1138.

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, 47 S.Ct. 641, 648, 71 L.Ed. 1095: '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.'

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, 40 S.Ct. 17, 63 L.Ed. 1173; 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, 60 S.Ct. 736, 745, 84 L.Ed. 1093.

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, 274 U.S. at page 374, 47 S.Ct. at page 647, 71 L.Ed. 1095; it must be 'serious', Id., 274 U.S. at page 376, 47 S.Ct. at page 648, 71 L.ed. 1095. And 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, 60 S.Ct. 146, 151, 84 L.Ed. 155.

What finally emerges from the 'clerk 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 we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment⁶ does not speak equivocally. It prohibits and law 'abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

II

Before analyzing the punished utterances and the circumstances surrounding their publication, we must consider an argument which, if valid, would destroy the relevance of the foregoing discussion to this case. In brief, this argument is that the publications here in question belong to a special category marked off by history, a category to which the criteria of constitutional immunity from punishment used where other types of utterances are concerned are not applicable. For, the argument runs, the power of judges to punish by contempt out-of-court publications tending to obstruct the orderly and fair administration of justice in a pending case was deeply rooted in English common law at the time the Constitution was adopted. That this historical contention is dubious has been persuasively argued elsewhere. Fox, Contempt of Court, passim, e.g., 207. See also Stansbury, Trial of James H. Peck, 430. In any event it need not detain us, for to assume that English common law in this field became ours is to deny the generally accepted historical belief that 'one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.'⁷ Schofield, Freedom of the Press in the United States. 9 Publications Amer. Sociol. Soc., 67, 76.

More specifically, it is to...