McCann v. New York Stock Exchange

• Decision Date: 09 December 1935
• Docket Number: No. 140.,140.
• Citation: 80 F.2d 211
• Parties: McCANN v. NEW YORK STOCK EXCHANGE et al.
• Court: U.S. Court of Appeals — Second Circuit

80 F.2d 211 (1935)

McCANN v. NEW YORK STOCK EXCHANGE et al.

No. 140.

Circuit Court of Appeals, Second Circuit.

December 9, 1935.

Gene McCann, pro se.

Charles H. Tuttle, of New York City, for appellees.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The plaintiff appeals from an order fining him $250 for contempt of court and directing that he be committed until he pays. He had sued the New York Stock Exchange, the Curb Exchange, and over six hundred other defendants to recover damages for a conspiracy under the Anti-Trust Acts; the action is at issue in the District Court. Meanwhile he has kept up a sporadic fusillade of broadsides sent to all members of the exchange, of whom many are defendants, abusing the exchange and its officers, the Better Business Bureau, a defendant, and some of the attorneys retained to defend the action. Becoming annoyed at the violence and continuance of these attacks, the defendants applied to the District Court to enjoin the plaintiff from circulating them, and on April 18, 1935, procured an order forbidding him to communicate with them except with the consent of their attorneys, or to circulate among them or their attorneys or counsel "any threatening or derogatory communications." The plaintiff did not appeal from that order, but on April 27, 1935, sent out a leaflet, which was "derogatory" to the governors of the exchange and might be considered "threatening." Thereupon the defendants moved to punish him for contempt. Without preliminary consultation with, or authorization of, the judge, they served a notice of motion for an order, (1) "punishing the plaintiff for contempt of court through willful violation" of the injunction; (2) "for obstructing and attempting to obstruct, the administration of justice" by doing those things which the injunction had forbidden. The notice was supported by affidavits setting forth the order of April 18 and the leaflet of April 27, 1935; the plaintiff appeared and filed an affidavit in opposition; the judge entered an order declaring that he had "willfully knowingly and understandingly violated" the injunction, and had "committed contempt of this court in that under date of April 27," he had "issued * * * to and circulated among * * * many of the defendants herein," including those who had retained certain named attorneys, "a printed communication or letter * * * which * * * was threatening and derogatory and was sent * * * in willful violation of the said order." It then ordered that "because of such contempt of court the plaintiff be * * * fined the sum of $250 and that such fine be paid to the clerk of this court * * * and * * * upon plaintiff's default" he "shall stand committed." This is the order appealed from.

The defendants seek to support it on two grounds: First, because the plaintiff violated the order of April 18th; second, because his communication was ipso facto a contempt of court. The second is thought to follow from the powers of the District Court granted by the original statute of which section 385 of title 28, U.S. Code (28 U.S.C.A. § 385), is the present form. The question turns upon the meaning of the phrase, "so near thereto as to obstruct the administration of justice," introduced (4 Stat. 487), in 1831, after the failure of the impeachment of Judge Peck, and intended to circumscribe the powers of the court as they had existed both under the original statute and at common law. Ex parte Robinson, 19 Wall. 505, 510, 511, 22 L.Ed. 205. That phrase is not indeed to be spatially construed. In re Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150; In re Cuddy, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154; Kirk v. United States, 192 F. 273 (C.C.A. 9). Attempts to intimidate or debauch judges, jurors, or witnesses may be contempts, though they are made far from the courtroom; and while it is true that before Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186, it had been debatable whether public criticism of a judge by a newspaper pending his decision could "obstruct the administration of justice," that decision settled that it could, a doctrine somewhat extended in Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293. Froelich v. United States, 33 F.(2d) 660 (C.C.A. 8), went as far as any decision by holding it a contempt to send letters to a prosecuting attorney advising him that the judge who was to preside at the trial was biased; this on the theory that it might obstruct the trial to induce the prosecutor to recuse the judge. We need not say how far we should agree, for the plaintiff's broadsides are unlike these letters or any of the other acts which have been held to be within the limiting phrase. We may lay aside at once any imputation against the integrity of the district judges; it would be fatuous to suppose that this could affect them, and as mere insult they may not summarily punish it. The defendants' theory seems to be that by undermining their confidence in their attorneys the course of justice may be impeded; at any rate, that is their only even colorable support, for they cannot enjoin, and a fortiorari cannot punish as a contempt, mere abuse of themselves, or of their companies, or of the officers of the exchanges, even though it be libelous. Francis v. Flinn, 118 U.S. 385, 6 S.Ct. 1148, 30 L.Ed. 165; American Malting Co. v. Keitel, 209 F. 351, 353-355 (C.C.A. 2). It is indeed possible to conjure up a situation in which a person might so interpose between client and attorney as to obstruct justice; for instance, he might kidnap the attorney on the eve of trial. We need not say that in no case would such an interloper expose himself to a prosecution for criminal contempt. But we should lose all sense of proportion, were we to extend such a doctrine, if it be a doctrine, to situations like this, for there is not the faintest reason to suspect that any of the defendants have been, or will be, moved a hair's breadth by the fustian emanating from this plaintiff. And indeed it would not obstruct the administration of justice, even though they changed their attorneys; if they did so in season, the trial would go on as planned; if they waited till the eleventh hour, the judge would scarcely grant them a continuance. No doubt it is annoying to be pestered by repeated irresponsible attacks, but only a...