Wrather-Alvarez Broadcasting, Inc. v. Hewicker, WRATHER-ALVAREZ

Citation147 Cal.App.2d 509,305 P.2d 236
Decision Date10 January 1957
Docket NumberWRATHER-ALVAREZ
CourtCalifornia Court of Appeals
PartiesBROADCASTING, Inc., a corporation, and Harold Keen, Petitioners, v. John A. HEWICKER, Judge of the Superior Court in and for the County of San Diego, State of California, Respondent. Civ. 5472.

Luce, Forward, Kunzel & Scripps, by Fred Kunzel, San Diego, for petitioners.

James Don Keller, Dist. Atty., and Claude B. Brown, Deputy Dist. Atty., San Diego, for respondent.

PER CURIAM.

Petitioner Wrather-Alvarez Broadcasting, Inc. operates a television broadcasting station in San Diego, and through its agent, petitioner Harold Keen, broadcasts daily news programs. Respondent judge is engaged in the trial of a certain kidnaping case attracting considerable public attention. Petitioner Keen alleges that in attending the court proceedings and reporting the news he is unable to take longhand notes rapidly enough to accurately set forth the witnesses' testimony; that on December 21, 1956, in order to assist him, he took his assistant, a shorthand secretary, with him to said court for the purpose of taking shorthand notes of certain of the proceedings so he could make an accurate broadcast of the testimony; that said judge stated to him in open court that he would not allow Harold Keen or his assistant to take shorthand notes in the courtroom; that the trial judge announced there was only one official reporter for that court and that there would be no other reporter sitting around taking shorthand notes; that if the assistant was an authorized representative of the press in her own right, designated by some newspaper in San Diego, he would let her report but that she could not do it for some other reporter; that if Harold Keen wanted a transcript of any testimony he would have to obtain it from his reporter, at the reporter's convenience, and at his own expense; and that if Mr. Keen disagreed with him he suggested that Keen obtain a writ of mandamus. Petitioner then alleges he was unable to obtain a reporter's transcript in time for his broadcast because of press of business of the reporter.

This writ is sought to compel the trial judge to allow said Harold Keen and his assistant to take shorthand notes of the testimony of such witnesses as he may desire for use in his broadcasting program. An order to show cause was issued. A demurrer to the petition was interposed and an answer was filed admitting some of these allegations, denying others, and alleging that Harold Keen was interviewing, on his program, certain of the witnesses who had testified at the trial and who had been excused, and the judge thought this might well influence the jurors if they heard it and that this might interfere with the judicial process of his court; that he had the inherent power to preclude any one in his courtroom from taking shorthand notes of the proceedings where there was an official reporter present.

Argument is made that the form of writ sought should have been a writ of prohibition rather than mandamus. Mandamus is the form of writ invited by the respondent court and it is an appropriate remedy for the enforcement of a civil right. Stone v. Board of Directors of City of Pasadena, 47 Cal.App.2d 749, 118 P.2d 866; Pacific Engine & Machine Works v. Superior Court, 132 Cal.App.2d 739, 745, 282 P.2d 937; Hays v. Superior Court, 16 Cal.2d 260, 264, 105 P.2d 975.

It is a well-known rule of law that the right of freedom of speech and press is not subject to restraints previous to publication or censorship, although the speaker shall be held accountable for what he says or prints. Dailey v. Superior Court, 112 Cal. 94, 97, 44 P. 458, 32 L.R.A. 273; Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; 11 Am.Jur. pp. 1110-1111, sec. 320. A newspaper or a reporter thereof may not be punished for contempt for reporting the truth of testimony given in a pending trial. McClatchy v. Superior Court, 119 Cal. 413, 51 P. 696, 39 L.R.A. 691.

In Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546, it was said:

'A trial is a public event. What transpires in the court room is public property. * * * Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire [in] proceedings before it.'

Publications by the press may not be punished as contempt until they interfere with and obstruct the orderly administration of justice. In re Shuler, 210 Cal. 377, 292 P. 481; Turkington v. Municipal Court, 85 Cal.App.2d 631, 193 P.2d 795. The protection given to the freedom of speech and press is extended to the medium of television, there being no distinction between the various methods of communication. Public Utilities Commission v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068; Superior Films, Inc., v. Department of Education, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329; Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098.

Under section 128 of the Code of Civil Procedure every court shall have power to preserve and enforce order in its immediate presence and to control, in furtherance of justice, the conduct of its ministerial officers and of all other persons in any manner connected with the judicial proceedings before it, in every matter pertaining thereto. Section 1209 thereof describes the acts or omissions constituting contempt such as '1. Disorderly, contemptuous,...

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11 cases
  • Weaver v. Jordan
    • United States
    • California Supreme Court
    • March 2, 1966
    ...grounds F. C. C. v. American Broadcasting Co. (1954) 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699; Wrather-Alvarez Broadcasting Inc. v. Hewicker (1957) 147 Cal.App.2d 509, 512 (5), 305 P.2d 236.) 'The right of freedom of speech and press includes not only the right to utter or to print, but the......
  • Franceschi v. Franchise Tax Bd.
    • United States
    • California Court of Appeals Court of Appeals
    • July 8, 2016
    ...enforcement of a civil right. (See Hardy v. Stumpf (1974) 37 Cal.App.3d 958, 961, 112 Cal.Rptr. 739, Wrather–Alvarez etc., Inc. v. Hewicker (1957) 147 Cal.App.2d 509, 511, 305 P.2d 236.) Such questions are more than a little troubling given that Franceschi is an experienced litigator, one w......
  • Clark v. Yosemite Community College Dist.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 25, 1986
    ...of a civil right. Hardy v. Stumpf, 37 Cal.App.3d 958, 961, 112 Cal.Rptr. 739, 741 (1974); Wrather-Alvarez Broadcasting, Inc. v. Hewicker, 147 Cal.App.2d 509, 305 P.2d 236, 238 (1957). In addition, relief in the form of damages may be granted together with a writ of mandate regarding the sam......
  • Lyles v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • September 3, 1958
    ...72 S.Ct. 777, 96 L.Ed. 1098; Public Utilities Comm. v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068; Wrather-Alvarez Broadcasting Co. v. Hewicker, 147 Cal.App.2d 509, 305 P.2d 236; Superior Films, Inc., v. Department of Education, 346 U.S. 587, 74 S.Ct. 286, 98 L.Ed. 329. We are of the......
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