Pennekamp v. State of Florida

Decision Date03 June 1946
Docket NumberNo. 473,473
Citation90 L.Ed. 1295,66 S.Ct. 1029,328 U.S. 331
PartiesPENNEKAMP et al. v. STATE OF FLORIDA
CourtU.S. Supreme Court

[Syllabus from pages 331-333 intentionally omitted] Messrs. Elisha Hanson, of Washington, D.C., and Robert R. Milam, of Jacksonville, Fla., for petitioners.

Messrs. Elisha Hanson, of Washington, D.C., and Robert R. Milam, of Jacksonville, Fla., for petitioners.

Messrs. J. Tom Watson, of Tallahassee, Fla., Giles J. Patterson, of Jacksonville, Fla., and James M. Carson, of Miami, for respondent.

Mr. Justice REED delivered the opinion of the Court.

This proceeding brings here for review a judgment of the Supreme Court of Florida, 22 So.2d 875, which affirmed a judgment of guilt in contempt of the Circuit Court of Dade County, Florida, on a citation of petitioners by that Circuit Court.

The individual petitioner was the associate editor of the Miami Herald, a newspaper of general circulation, published in Dade County, Florida, and within the jurisdiction of the trial court. The corporate petitioner was the publisher of the Miami H rald. Together petitioners were responsible for the publication of two editorials charged by the citation to be contemptuous of the Circuit Court and its judges in that they were unlawfully critical of the administration of criminal justice in certain cases then pending before the Court.

Certiorari was granted, 66 S.Ct. 146, to review petitioners' contention that the editorials did not present 'a clear and present danger of high imminence to the administration of justice by the court's or judges who were criticized and therefore the judgment of contempt was invalid as violative of the petitioners' right of free expression in the press. The importance of the issue in the administration of justice at this time in view of this Court's decision in Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346, three years prior to this judgment in contempt, is apparent.

Bridges v. California fixed reasonably well marked limits around the power of courts to punish newspapers and others for comments upon or criticism of pending litigation. The case placed orderly operation of courts as the primary and dominant requirement in the administration of justice. 314 U.S. at pages 263, 265, 266, 62 S.Ct. at pages 194, 195, 86 L.Ed. 192, 159 A.L.R. 1346. This essential right of the courts to be free of intimidation and coercison was held to be consonant with a recognition that freedom of the press must be allowed in the broadest scope compatible with the supremacy of order. A theoretical determinant of the limit for open discussion was adopted from experience with other adjustments of the conflict between freedom of expression and maintenance of order. This was the clear and present danger rule. The evil consequence of comment must be 'extremely serious and the degree of imminence extremely high before utterances can be punished.' 314 U.S. at page 263, 62 S.Ct. at page 194, 86 L.Ed. 192, 159 A.L.R. 1346. It was, of course, recognized that this formula, as would any other, inevitably had the vice of uncertainty, 314 U.S. at page 261, 62 S.Ct. at page 193, 86 L.Ed. 192, 159 A.L.R. 1346, but it was expected that from a decent self-restraint on the part of the press and from the formula's repeated application by the courts standards of permissible comment would emerge which would guarantee the courts against interference and allow fair play to the good influences of open discussion. As a step toward the marking of the line, we held that the publications there involved were within the permissible limits of free discussion.

In the Bridges case the clear and present danger rule was applied to the stated issue of whether the expressions there under consideration prevented 'fair judicial trials free from coercion or intimidation.' 314 U.S. at page 259, 62 S.Ct. at page 192, 86 L.Ed. 192, 159 A.L.R. 1346. There was, of course, no question as to the power to punish for disturbances and disorder in the court room. 314 U.S. at page 266, 62 S.Ct. at page 195, 86 L.Ed. 192, 159 A.L.R. 1346. The danger to be guarded against is the 'substantive evil' sought to be prevented. 314 U.S. at pages 261, 262, 263, 62 S.Ct. at pages 193, 194, 86 L.Ed. 192, 159 A.L.R. 1346. In the Bridges case that 'substantive evil' was primarily the 'disorderly and unfair administration of justice.' 314 U.S. at pages 270, 271, 278, 62 S.Ct. at pages 197, 201, 86 L.Ed. 192, 159 A.L.R. 1346. 1

The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are co pelled to examine for ourselves the statements in issue and the circumstances under which they were made to see whether or not they do carry a threat of clear and present danger to the impartiality and good order of the courts or whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.2 When the highest court of a state has reached a determination upon such an issue, we give most respectful attention to its reasoning and conclusion but its authority is not final. Were it otherwise the constitutional limits of free expression in the Nation would vary with state lines.3

While there was a division of the Court in the Bridges case as to whether some of the public expressions by edi- torial comment transgressed the boundaries of a free press and as to the phrasing of the test, there was unanimous recognition that California's power to punish for contempt was limited by this Court's interpretation of the extent of protection afforded by the First Amendment. Bridges v. California, supra, 314 U.S. at page 297, 62 S.Ct. at page 210, 86 L.Ed. 192, 159 A.L.R. 1346. Whether the threat to the impartial and orderly administration of justice must be a clear and present or a grave and immediate danger, a real and substantial threat, one which is close and direct or one which disturbs the court's sense of fairness depends upon a choice of words. Under any one of the phrases, reviewing courts are brought in cases of this type to appraise the comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes.

The editorials of November 2d and 7th, 1944, which caused the court to issue the citation are set out below.4 Accompanying the first editorial was a cartoon which held up the law to public obloquy. It caricatured a court by a robed compliant figure as a judge on the bench tossing aside formal charges to hand a document, marked 'Defendant dismissed,' to a powerful figure close at his left arm and of an intentionally drawn criminal type. At the rightof the bench, a futile individual, right of the bench, a futile individual,

The citation charges that the editorials 'did reflect upon and impugn the integrity of said Court and the Judges thereof in imputing that the Judges of said Court 'do recognize and accept, even go out to find, every possible technicality of the law to protect the defendant, to block, thwart, hinder, embarrass and nullify prosecution,' which said acts by you tend to create a distrust for said court and the judges thereof in the minds of the people of this county and state and tend to prevent and prejudice a fair and impartial action of the said Court and the Judges thereof in respect to the said pending case(s).'

After setting out details of alleged willful withholding and suppression of the whole truth in the publications, the citation furthe charges that

'you, by said cartoon and editorial, have caused to be represented unto the public that concerning the cases of (A) the eight indictments for rape, (B) the said Brook Club case, and (C) the Teepee Club case, that the Judges of this Court (had not) fairly and impartially heard and decided the matters in said editorial mentioned and have thereby represented unto the general public that notwithstanding the great public trust vested in the Judges of this Court that they have not discharged their duties honorably and fairly in respect to said pending cases as hereinbefore set forth, all of which tends to obstruct and interfere with the said Judges as such in fairly and impartially administering justice and in the discharging of their duties in conformity with the true principles which you have so properly recognized in the forepart of said editorial above quoted as being incumbent upon them and each of them; * * *'

Petitioners were required to show cause why they should not be held in contempt.

Petitioners answered that the publications were legitimate criticism and comment within the federal guaranties of free press and created no clear and present danger to the administration of justice. They sought to justify the publications by stating in their return to the rule that the facts stated in the editorials were correct, that two of the cases used as examples were not pending when the comments were made, since orders of dismissal had been previously entered by the Circuit Court, and that they as editors

'had the right if not the duty openly and forcefully to discuss these conditions to the end that these evils that are profoundly disturbing to the citizens of this county, might be remedied. The publications complained of did nothing more than discuss the generally recognized weakness and breakdown in the system of law enforcement and call for its improvement.'

It is not practicable to comment at length on each of the challenged items. To make our decision as clear as possible, we shall refer in detail only to the comments concerning the 'Rape Cases.' These we think fairly illustrate the issues and are the most difficult comments for the petitioners to defend.

As to these cases, the editorial said:

'This Week the people, through their...

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