Opinion
No. 18,992.
Decided April 6, 1959.
Original proceeding in contempt against publisher of newspaper for publication of editorial relating to matter pending determination in the Supreme Court. Rule to show cause issued.
Rule Discharged.
1. CONTEMPT — Courts — Publication — Editorial Comment. When a case is completed, courts and judges are subject to the same criticisms as other people, and no comment published in connection with a completed case, however libelous or unjust, is punishable as a contempt of court.
2. Courts — Pending Matter — Publications — Tendency. The courts have inherent power and the duty to punish for contempt those who publish newspaper accounts concerning causes pending, the inherent tendency of which is to influence, intimidate, impede, embarrass or obstruct the court in the administration of justice.
3. Newspaper — Publication — Pending Action. To constitute contempt of court, the publication by a newspaper of an offensive editorial, the inherent tendency of which is to obstruct justice, must amount to a clear and present danger that the evil intended may be accomplished, hence editorial comment on pending cases, even if grossly unfair and false, is not to be adjudged contemptuous unless it constitutes an "iminent peril" to the administration of justice.
4. NEWSPAPERS — Contempt — Publication — Pending Cause. Where no member of the Supreme Court could have been influenced in any degree by publication of an unfounded attack upon the integrity of the court in a newspaper with reference to a pending cause, such publication did not amount to an iminent peril to the administration of justice.
5. CONTEMPT — Newspaper — Publication — Offensive Comment — Duty of Court. However great the provocation involved in a contempt proceeding arising out of the publication of an offensive editorial in a newspaper, the court must proceed with forbearance and restraint, lest the indignant reaction which all men experience from an unfounded attack upon their honesty and integrity be confused with the iminent peril to the administration of justice which must be present to warrant punishment for contempt.
Original Proceeding.
Mr. DUKE W. DUNBAR, Attorney General, in support of the citation.
Mr. JOHN JAMESON, pro se.
THIS is an original proceeding in this court, in which citation was issued to the respondent John Jameson directing him to show cause why he should not be punished for contempt of the Supreme Court of Colorado. Pertinent facts forming the basis for the citation are as follows:
Cause No. 18,871 entitled The People of the State of Colorado, ex rel. State Board of Equalization and Colorado Tax Commission v. Albert E. Hively, et al., was at all times here pertinent a pending action in the Supreme Court of Colorado. The issues involved in said action were of great public importance and it was urgent that an early determination of the issues should be made in order that public officials of the County of Arapahoe might discharge the duties imposed upon them under the law. The issues were highly involved and a draft opinion of the court had been submitted to all participating judges and agreed upon. This opinion consisted of thirty-two typewritten pages and before it could be announced it was necessary to re-copy the entire document with meticulous care. This court prepared a brief announcement concerning the result reached by the opinion of the court and this brief announcement was made public immediately to the end that officials of Arapahoe county might be governed accordingly. Immediately following the brief announcement, which contained the statement that the opinion of the court would shortly be filed, the respondent John Jameson, who was and is the editor of "The Englewood Herald" which terms itself "Arapahoe County's Largest Newspaper," personally wrote and caused to be published an editorial which contained inter alia the following:
"A Colorado Supreme Court ruling Thursday in the Arapahoe county valuation case deserves a close looking at and some questions on behalf of the taxpayers of Arapahoe County.
* * *
"In view of these circumstances enumerated, it seems to me that a number of questions develop in the minds of the taxpayers concerning the Colorado Supreme Court decision.
"One of these is: 'Is the supreme court still hunting for justification of its ruling and that is the reason that an opinion explaining the ruling was not filed with the ruling?'
"Could this be something like a judge who might say to a man: You're guilty. Come back next week and by then I'll have the reasons why."
"Or could this ruling — without an opinion — been a sort of a feeler, or a trial balloon as the politicians say — to find out how the public might feel?
"Could it have been that if the populace should rise up in wrath that the opinion could temper down the ruling, or, if it went almost unnoticed, the court could breathe easier and file an opinion backing up its ruling to the hilt?
"Or could it be that the justices — they are elected statewide, too — felt that the problem of getting politically powerful school teachers paid on time justifies the means used of issuing a quick ruling without legal opinion in its support?
"I don't know the answers, but I do know that unless the opinion within a week or so softens the broad terms of the sketchy ruling the court has chiseled away more of our vanishing local governmental rights."
The foregoing article was published prior to the typing and filing of the previously approved opinion of the court, and prior to the time within which a petition for rehearing might be filed.
Pursuant to the citation, respondent John Jameson made answer in writing as follows:
"March 14, 1959
"The Supreme Court of The State of Colorado. State House,
"Honorable Justices:
"This is my answer to your citation of March 5, 1959.
"You stated that the editorial was published 'apparently' with the intent of 'degrading this Court' and 'insulting and embarrassing this Court and the Judges."
"I assure you that there was no desire or intent, apparent or otherwise, to embarrass of insult the Court or its members.
"It was not my intent, and I do not believe that I did, to make any 'false, defamatory and libelous' statement concerning the Court.
"Just as you have a sacred trust in interpreting the laws, I, as a newspaper publisher, have a sacred trust to keep my readers, who are the people and taxpayers of Arapahoe county, informed on governmental affairs and make comment on the workings of the people's government, including the Courts.
"The Bill of Rights of the United States Constitution guarantees to the people of the United States and to a newspaper publisher the right to make comment.
"In this case the taxpayers of Arapahoe county stood to lose approximately $100,000 in state school aid provided by taxes and, in fact, they have lost that sum by action taken by the state treasurer under the Court's order before that order became final.
"I believe, and ask you to agree, that I was within my rights under the guarantees of the Bill of Rights to make the comment I did on the case.
"If I am not permitted to comment as I did on such matters then the constitutional right of freedom of the press is destroyed.
"Believe me, I am distressed that the highest Court in our state would entertain a thought that I, a law-abiding and responsible newspaperman for 30 years, am disrespectful of the Court, which I am not.
"I ask the Court to agree with me and find that I have done nothing that is in contempt.
"Respectfully, (Sgd.) John Jameson"
On March 18, 1959, a hearing was conducted before the court at which the Attorney General appeared in support of the citation and respondent appeared in his own behalf. In open court respondent waived his right to be represented by counsel and was informed by the acting Chief Justice that he had a right, if he elected to do so, to stand upon his answer and to decline to answer any questions which members of the court might otherwise desire to ask him. He indicated a willingness to respond and various members of the court of the court propounded questions directed to the alleged contemptuous article, all of which appears in the transcript of said proceedings.
Among the questions directed to the respondent by various members of the court, and answers made thereto, were the following:
"Q. Mr. Jameson, what inference do you think the public drew from your first comment here that we have in the citation? What inference do you think the public would draw from what was suggested as your first question here in your editorial: "Is the Supreme Court still hunting for justification of its ruling and that is the reason that an opinion explaining the ruling was not filed with the ruling? What inference do you think the public would draw from that? A. I would rather not answer that, if the Court please.
* * *
"Q. So you were not aware that when a decision or decisions are announced by this Court, that many weeks prior thereto opinions are circulated, copies to each Judge, and opinions are studied and discussed and otherwise talked over before an opinion is announced, and that is before a decision is made, a written opinion? Did you make any effort to find that out? A. No, Sir, I did not.
* * *
"Q. In your answer, Mr. Jameson, you say that as we, the Court, have a sacred trust in interpreting the laws, that you, as a newspaper publisher have a sacred trust to keep your readers who are the people and taxpayers of Arapahoe County informed on governmental affairs and make comment on the workings of the people's government, including the courts. Do you sincerely tell us now that this article and the questions which you asked were designed to inform the people of Arapahoe County about any fact? A. In my mind it was. Q. What fact? A. Of the situation. Q. Mr. Jameson, this Court is made up of men, none of whom have practiced law less than twenty years. Did you know that every man on this Court had a copy of a written opinion 32 pages in length for a week at least before this announcement was made? A. No. Sir, I did not. Q. You would indicate to the contrary in your newspaper article, wouldn't you? A. Yes, sir. Q. You made no inquiry as to what the truth was before you informed the people in the manner in which you did? Do you sincerely tell us that you think you did the right thing by this Court in publishing this kind of an article, an inflammatory article, without knowing anything about what the facts were? A. If you please, I stand on my answer, that in my own mind, I was within my rights to make the comments that I did in the newspaper.
* * *
"Q. Was there any purpose of mentioning the fact that we were elected state-wide, any purpose in that, or any purpose in talking about the politically powerful school teachers other than to create an impression that we were yielding or might yield to political pressure? A. If the Court please, I say again I think that was fair comment."
* * *
"Q. May I read one question from your article: 'Could it have been that if the populace should rise up in wrath that the opinion could temper down the ruling, or, if it went almost unnoticed, the court could breathe easier and file an opinion backing up its ruling to the hilt?' What kind of an attitude and frame of mind do you think the readers of that article would have of a Supreme Court? Do you think that was a fair thing for you to do, knowing no more than you confess you knew about the situation at the time you printed it? A. Yes, sir, I think it was."
* * *
"Q. You don't think we are being attacked when you inferentially indicate that we are listening to the way the winds blow before we issue an opinion, that we are dominated by what the public clamor may want? You don't think that is impugnment or an attack upon the Court? A. No, sir, I think it's fair comment."
* * *
"Q. I want to ask one final question. Now, in light of all we have told you about how we operate here and in the light of all the developments that have been presented to you here, you still think that your editorial was factual and the content fair comment? A. That sort of, if you please, is an all-inclusive question. Q. We will break it up. After hearing what we told you here about how we operate, do you still think that your editorial was in fact factual? A. I will say that at the time I wrote it, it was factual. Q. I am asking you, and you have heard what I said — A. You have now told me that the opinion was already prepared, and of course, I will take your word for that. Q. It would happen to be the truth. Secondly, now that we have this statement from you about the factuality of the situation, do you think it was fair comment in view of what you now know? A. Yes, sir, I still do, I think it was fair comment, if you please."
Without the slightest investigation of the facts, and in total disregard of the truth; with utter lack of consideration for the reputation of the court and the individual judges thereof, respondent by his defamatory article, in legal effect, accused this court and every judge thereof of conduct abhorrent to every esteemed tradition of the judiciary of the state and of the nation. With a reckless abandon he sought to engender a public atmosphere of hostility to the court; to create in the mind of the public by false assertions, innuendoes and suggestions, the impression that the court is swayed this way or that by political consideration and is unworthy of the confidence and respect of the people. While his answer to the citation professed a "sacred trust" to keep his readers informed, he actually betrayed that trust by giving them only untruths — a diet overburdened with the calories of misinformation.
At the hearing during which it was made clear that all of the accusations were without foundation in fact, the affront to the court was compounded by respondent who persisted in his contumacious attitude, evidencing a calloused lack of any desire to mitigate the injury to the name and reputation of the court and the judges thereof, by acknowledging any short coming on his part. Although the conduct of respondent at the hearing was such as might warrant a finding of contempt committed in the immediate presence of the court, and punishable summarily, we have chosen to confine our judgment to the matter as originally instituted, namely as an alleged constructive criminal contempt.
Addressing ourselves to the legal questions involved we consider the First and Fourteenth amendments to the Constitution of the United States and Article II, Section 10, of the Constitution of Colorado. The provision in the first above-mentioned contains the following: "Congress shall make no law * * * abridging the freedom of speech, or of the press * * *." The Supreme Court of the United States in Bridges v. California, 314 U.S. 252, 62 Sup. Ct. 190, held that the Fourteenth Amendment makes applicable to the states the same standards of freedom of expression as under the First Amendment are applicable to the Federal Government. The applicable provision of the Colorado Constitution, in pertinent part, reads as follows:
"No law shall be passed impairing the freedom of speech: every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty * * *."
Questions to be Determined.
First: Within the constitutional provisions above mentioned, under what circumstances can the publisher of a newspaper be punished for contempt of court for publishing an editorial containing matter which is false and defamatory concerning the court or judges thereof acting in an official capacity with reference to pending litigation?
Under early decisions of this court and elsewhere in the nation, very broad powers were exercised by the courts in this connection. A comprehensive review of these broad powers and the application thereof to specific incidents will be found in People v. News-Times Publishing Company, 35 Colo. 253, 84 Pac. 912. In that case the publisher of defamatory matter, though more offensive than that in the instant case, was punished for contempt. The conviction was upheld by the Supreme Court of the United States in an opinion written by Mr. Justice Holmes, Patterson v. Colorado, 205 U.S. 454. More recent decisions have in very large measure nullified the holding in the Patterson case. We glean from the authorities that at this time the law applicable to constructive criminal contempt matters is settled as follows:
(1) When a case is finished, courts and judges are subject to the same criticisms as other people and no comment published in connection with a completed case, however libelous or unjust, is punishable as a contempt of court. The remedies of the judge who suffers abuse at the hands of the press are the same as those available to persons outside the judiciary. Pennekamp v. Florida, 328 U.S. 331, 66 S. Ct. 1029; In Re Bozorth, 38 N.J. Super. 184, 118 A.2d 430.
(2) With reference to pending actions the court has inherent powers and a corresponding duty to punish for contempt those who publish newspaper accounts concerning causes pending, the inherent tendency of which is to influence, intimidate, impede, embarrass or obstruct courts in the administration of justice.
(3) The inherent tendency of the publication to thus obstruct justice must amount to a clear and present danger that the evil result intended may be accomplished. The danger must be serious and substantial. What finally emerges from the "clear 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 as a constructive contempt. Thus editorial comment on pending cases, even if it is grossly unfair and false, is not to be adjudged contemptuous unless it constitutes an "imminent peril" to the administration of justice. Craig v. Harney, 331 U.S. 367, 67 S. Ct. 1249; People v. Goss, 10 Ill. 2d 533, 141 N.E. 385; Pennekamp v. Florida, supra. See also American bar Association Journal, Vol. 41, Number 10, page 897, and Dicta, Vol. 18, page 169. The power to punish for constructive criminal contempt finds its genesis in the theory that the acts complained of constitute a public injury or offense, as distinguished from a private injury or offense.
Second: Within the contemplation of the above-mentioned principles, did the defamatory publication authored by the respondent constitute an "imminent peril" to the administration of justice?
This question is answered in the negative. It would be absurd for us to say that publication by respondent of the editorial in question amounted to a real and substantial threat to the impartial decision by this court of the issues involved in the case then pending before us. No member of this court could possibly have been influenced in the least degree in the determination of the issues then before it by the unfounded attack of the respondent upon the integrity of the court. While we agree with the assertion of Mr. Justice Frankfurter in his dissenting opinion Bridges v. California, supra, that in a proper case the court should, "* * * continue to sue time-honored safeguards to assure unsullied adjudications," we are certain that no such result could possibly have been produced by the conduct of respondent. From that opinion we take the following quotation and adopt it as a safe and sound rule. Speaking of the exercise of the power to punish for contempt. Mr. Justice Frankfurter said:
"The purpose, it will do no harm to repeat, is not to protect the court as a mystical entity of the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed. The purpose is to protect immediate litigants and the public from mischievous danger of an unfree or coerced tribunal. The power should be invoked only where the adjudicatory process may be hampered or hindered in its calm, detached, and fearless discharge of its duty on the basis of what has been submitted in court."
The belief by the public that decisions are reached in that manner is the source of the confidence on which law and the stability of our system rests. The person who seeks to destroy that confidence by publication of false statements does not necessarily subject himself to punishment for a contempt of court. By holding in the instant case that Jameson cannot be punished for contempt of court we do not infer that his conduct was justified under the law. It might well be made the subject of other litigation in which compensatory and punitive damages might be sought in a civil suit for libel or punishment for a violation of the statute defining the offense of criminal libel.
We think the history of the judiciary will support the assertion that judges are not readily susceptible to intimidation. As stated by Mr. Justice Douglas in Craig v. Harney, supra, "Judges are supposed to be men of fortitude able to thrive in a hardy climate." We are confident that the responsible leadership of the press in this state is interested in the purity and dignity of the courts, and would not tolerate or uphold the irresponsibility exhibited by the conduct of respondent in this case. We are confident that the press, generally, as the champion of the people's rights, is interested in preserving the respect due the courts of justice as evidenced by a minimum of incidents such as that now being considered.
In matters of this kind the court, of necessity, sits in judgment on its own motives and function in exercising the power to punish for contempt. However great the provocation we should proceed with forbearance and restraint lest we confuse the indignant reaction which all men experience from an unfounded attack upon their honesty and integrity, with the "imminent peril to the administration of justice" which must be present to warrant punishment for contempt.
The rule to show cause is discharged and the respondent is held to be not guilty of constructive criminal contempt.
MR. JUSTICE DAY specially concurs.
MR. CHIEF JUSTICE KNAUSS and MR. JUSTICE HALL dissent.
MR. JUSTICE SUTTON not participating.