State v. Gussman

• Decision Date: 07 March 1955
• Docket Number: No. A--87,A--87
• Citation: 34 N.J.Super. 408,112 A.2d 565
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Charles J. GUSSMAN, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 408

34 N.J.Super. 408

112 A.2d 565

The STATE of New Jersey, Plaintiff-Respondent, v. Charles J. GUSSMAN, Defendant-Appellant.

No. A--87.

Superior Court of New Jersey Appellate Division.

Argued Feb. 14, 1955.

Decided March 7, 1955.

James Rosen, Newark, for plaintiff-respondent (Milmed & Rosen, Newark, attorneys).

James A. Major, Hackensack, for defendant-appellant.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

Charles J. Gussman was convicted by the Municipal Court of the Township of Weehawken of contempt of court for writing and mailing a letter. The letter, which was provoked by a ticket given him for speeding through the Lincoln Tunnel, reads:

'Mr. George L. McNally,

'Judge, Municipal Court,

'Weehawken, N.J.

'Sir:

'In reference to Summons number 4934, bail receipt number 401:

'As the arresting officer is not to appear at the scheduled hearing and since all you would be called on to decide would be the veracity of the officer as against mine, it is manifestly futile for me to drive a hundred and twenty-five miles (from Mr. Gussman's residence in Pennsylvania) to attempt to establish my innocence. Hence, I shall not go to the trouble.

'This is, I realize, the reason I was chosen for the shake-down: in the corrupt municipalities along the Jersey side of the Hudson it is notorious that you arrest largely those with out-of-state licenses; they haven't a vote, they weigh inconvenience and futility against their indignation at the decadent morality they encounter.

'You, sir, are a party to this degeneracy, whether you choose to acknowledge it or not. The police lieutenant (name on bail receipt illegible) was rude and arrogant and the arresting officer dishonest and foul-mouthed because both realized they could count on being supported by the fraternity of mutual immorality you share with them.

'Let me assure you, however, that the twenty-five dollars extorted from me is not a profit to those of you whose pockets it reaches. Because I address readers of thirty-nine newspapers thru my weekly column and reach almost three million radio homes with my program Weehawken will, in adverse public relations resulting from mentions I make in years to come, suffer a loss many, many times the amount extorted from me.

'Shame on you, sir, for participating in the degradation of democratic processes.

'I am,

'Sincerely,

'Charles J. Gussman' Gussman sent copies of the letter to the Mayor of Weehawken and the Weehawken Chamber of Commerce.

The case was tried below before a judge of the Hudson County Court specially assigned to the municipal court for the cause, and Gussman was sentenced to the Hudson County Jail for ten days. Gussman by this appeal challenges the conviction, first, as violating his right of free speech and, second, as lying beyond the power of the court.

Little attempt seems ever to have been made to state broadly and with any precision the limits of the great concept of free speech. That it is not an absolute, is a commonplace observation. Kovacs v. Cooper, 135 N.J.L. 64, 68, 50 A.2d 451 (Sup.Ct.1946), affirmed 135 N.J.L. 584, 587, 52 A.2d 806 (E. & A.1947), affirmed 336 U.S. 77, 85, 69 S.Ct. 448, 93 L.Ed. 513 (1948); Thomas v. Casey, 121 N.J.L. 185, 187, 1 A.2d 866 (Sup.Ct.1938); State v. Boyd, 8 N.J.L. 75, 79, 91 A. 586 (Sup.Ct.1914), affirmed 87 N.J.L. 328, 93 A. 599 (E. & A.1915).

The State refers us to the New Jersey Constitution, Art. 1, par. 6 (a provision found in many state constitutions, 8 Cooley's Constitutional Limitations (8th ed.), 876)--

'Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.'

But this plainly gives us no standard to go by. Chafee, Free Speech in the United States 12 (1942).

Gussman cites Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946) and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947), cases of contempt. They hold, he says, that all criticism of a court is suffered by the Constitution, unless it engenders an 'extremely serious' and 'extremely' imminent likelihood, cf. State by Van Riper v. Traffic Tel. Workers' Fed. of N.J., 2 N.J. 335, 347, 66 A.2d 616, 9 A.L.R.2d 854 (1949), of producing an unfair trial.

This is the 'clear and present danger' test taken by Justice Holmes perhaps from the law of criminal attempts. Hall, 50 Harv.L.Rev. 583, 621 (1937); but cf. Howe, 55 Harv.L.Rev 695, n. 2 (1942). The question whether the law may in some cases be moving away from an adherence to this test, need not detain us. Mendelson, 52 Col.L.Rev. 313 (1952); Thorp v. Board of Trustees of Schools for Industrial Ed., 6 N.J. 498, 511, 79 A.2d 462 (1951); cf. Richardson, 65 Harv.L.Rev. 1 (1951).

For clearly the test is no universal solvent. It is no gauge controlling the law of libel and slander, rendering speech actionable only in case of a clear and present danger of some substantive evil. Cf. 8 Cooley, supra, 883. Nor, according to the accepted view, does it lead to the exoneration of all verbal contempts in the courtroom other than those which create an extremely serious and extremely imminent prospect of bringing about a miscarriage of justice. Fisher v. Pace, 336 U.S. 155, cf. 163, 69 S.Ct. 425, 93 L.Ed. 569 (1949). Indeed the Bridges case (314 U.S. at page 266, 62 S.Ct. 195) and the Pennekamp case (328 U.S. at page 335, 66 S.Ct. at page 1031) concede there was of course no question as to the power to punish for 'disturbances and disorder in the court room.'

Lacking, then, a broad standard, we must inspect the public and individual interests involved in the argument. The Bridges, Pennekamp and Craig cases were concerned with a very different matter from what we have here. There the court was concerned with comment by the public press, save that in the Bridges case there was also a threat of a strike, made by Bridges through a telegram to the person to whom he had the constitutional right to petition. There quite plainly the court was dealing with the great public interest in leaving truth to 'the competition of the market.' Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (Holmes, J., 1919). As Milton (Areopagitica 51, Hales ed. 1917) put it in his ringing words:

'And though all the windes of doctrin were let loose to play upon the earth so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple * * *.'

The rule is that all speech is to be protected, cf. Adams Theatre Co. v. Keenan, 12 N.J. 267, 277, 96 A.2d 519 (1953), save as some exception can justify itself. Here we have a public interest in maintaining a sufficient respect for the courts, at any event so that the very defendant served with a ticket may not, in place of an appearance on the return day, turn on the court and flout it to itself--and with gross accusations, insolence and, in a way, defiance. This is not a case that excites society's interest in truth and individual liberties.

In Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925), a lawyer wrote a derogatory letter to a judge and had his client deliver it to him in chambers. No one seems to have supposed he was entitled to protection under the Constitution. Here the circumstances are not so very different, and we conclude, there simply is no sensible basis for extending to them the great public concerns of free speech. Gussman's first contention fails.

His second contention is that the contumacious act here was not committed in the court's actual presence, and that this leaves the court without power in the premises.

It must be taken as settled law that municipal courts, apart from statute, have an implied authority to punish for contempt. Board of Health, Weehawken Tp. v. N.Y. Central R. Co., 10 N.J. 284, 90 A.2d 736 (1952), dealing with a conviction for contempt entered (see 10 N.J. 294 at page 298, 90 A.2d 729) 12 days before N.J.S. 2A:10--7, N.J.S.A., became effective. But it is quite another thing to say--and we express no opinion on the point--that because of the doctrine of separation of powers, this authority is one that cannot be impaired by the Legislature. See Ex parte Robinson,19 Wall. 505, 86 U.S. 505, 510, 22 L.Ed. 205 (1873), distinguishing a court which derives its existence and powers from the Constitution; Frankfurter and Landis, 37 Harv.L.Rev. 1010, n. 2 and 3, 1012 et seq. (1924); Nelles and King, 28 Col.L.Rev. 401, 523, 554 (1928) as to 'theory of power'; Fox, Contempt of Court (1927), 218, 220--223; Baltimore Radio Show v. State, 193 Md. 300, 67 A.2d 497, 506 (Ct.App.1949); cf. In re Schwartz, 134 N.J.L. 267, 269, 46 A.2d 804 (E. & A.1946); State v. Doty, 32 N.J.L. 403, 404 (Sup.Ct.1868); Swanson v. Swanson, 8 N.J. 169, 185, 84 A.2d 450 (1951).

We concern ourselves, not with the extent of inherent judicial power, but with the statutes. N.J.S. 2A:10--7, N.J.S.A. states that municipal courts and certain other courts shall have full power to punish for contempt in any case provided by N.J.S. 2A:10--1, N.J.S.A. N.J.S. 2A:10--1, N.J.S.A. declares (so far as pertinent) that this power

'to punish for contempt shall not be construed to extend to any case except the:

'a. Misbehavior of any person in the Actual presence of the court.'

N.J.S. 2A:10--1, N.J.S.A. came into our law as L.1917, c. 37, shortly after the courts decided Croasdale v. Atlantic Quarter Sessions, 88 N.J.L. 506, 97 A. 285 (Sup.Ct.1916), affirmed 89 N.J.L. 711, 99 A. 1070 (E. & A.1916), and In re Verdon, 89 N.J.L. 16, 97 A. 783 (Sup.Ct.1916)--reversed on other grounds Hudson County Quarter Sessions v. Verdon, 90 N.J.L. 494, cf. 503, 102 A. 66 (E. & A.1917). The original bill, as asserted in the statement appended to it, was modeled upon (though more restrictive than) the federal act of 1831, now 18...