Opinion
November 5, 1929.
Lester G. Fant, U.S. Atty., of Holly Springs, Miss.
W.H. Watkins, of Jackson, Miss., for defendant.
Proceeding by the United States by way of information charging Frederick Sullens with criminal contempt of court. Defendant found guilty of contempt.
This is a proceeding by way of information filed by the United States attorney, charging Frederick Sullens, editor of the Jackson Daily News, with criminal contempt of court in writing and publishing an article commenting adversely to the prosecution upon certain criminal proceedings, pending in this court at the time of the publication, and forecasting an acquittal of the defendants.
There were pending in the Jackson, Biloxi, and Meridian Divisions of this court several indictments against various and sundry defendants for violations of, and conspiracies to violate, an act of Congress forbidding the sale of one's influence to secure any appointive office under the United States. These indictments were against Perry W. Howard and others, and were commonly known as the "Patronage Cases."
Trial was had on one of the indictments against Howard and his codefendants in December, 1928, which resulted in an acquittal.
Another was pending and about to be called for trial at Meridian. While that court was in session the article complained of was published in Jackson, the newspaper having a daily circulation of about 25,000 in the state, and 500 in the Eastern Division of the Southern District of Mississippi, from which the venire to try the case was drawn and in attendance upon the court.
The defendant went to Meridian to report the case, and on the eve of the trial published the article which said substantially that politics was the sole issue that would be considered; that regardless of the guilt or innocence of the defendants, they would be acquitted, because the jury would be composed exclusively of white Democrats, who would be unwilling to convict, as such a result would help to establish a Lily White Republican Party in Mississippi, which, it stated, was politically objectionable to the jury. The United States attorney immediately moved to quash the venire, to continue the pending criminal cases, and to cite the editor for contempt of court. Judge Allen Cox, of the Northern District of Mississippi, who was presiding over the court at the time, sustained the motion, and directed the citation for contempt to be returnable before another judge at a later date. By consent of all the parties the matter was transferred from the Eastern Division to the Jackson Division, and heard in open court on the merits; the defendant, having entered a plea of not guilty, expressly waived all technical or jurisdictional questions, and requested an immediate hearing on the merits.
It is argued that the defendant had an animosity against Mr. Crosby, a Mississippi Republican, and Mrs. Willebrandt, an Assistant Attorney General, but there is no evidence of this except such, if any, as may be contained in the articles to be set forth later.
It is further charged "that the editorials and other articles that appeared in his paper were done willfully and with a determined purpose, if possible, to make the jurors who should try the case * * * decide not entirely the question of their guilt or innocence," but solely the question "whether or not it was better for the welfare of the State of Mississippi to have a negro, Perry Howard, in supreme charge of the patronage matters of the United States Government in the state, rather than a committee composed entirely of white men."
The District Attorney continues: "The contemnor, being so thoroughly sold to his view that this was the sole question to be decided by the jury, prostituted his high position as editor of one of the leading daily papers of the State of Mississippi to bring about a miscarriage of justice, and to prevent the trial being had in keeping with the rules of evidence and the law applicable to said case."
The defendant denies any such intention, but admits that he wrote and published the articles referred to. He contends that he was merely giving his readers an accurate account of the situation existing at the time and place of the trial, and that he had a perfect right to do so under the constitutional guaranty of freedom of the press.
The article complained of is one of a series published by the defendant in the Jackson Daily News, the first appearing Sunday, December 9, 1928, the day before the first trial of Howard and his associates was scheduled to take place. It is as follows:
"The Patronage Cases
"Regardless of the guilt or innocence of Perry W. Howard, negro Republican national committeeman for Mississippi, to be placed on trial here this week for alleged traffic in Federal patronage, it is an unquestioned fact that much sympathy is being manifested in his behalf.
"The belief generally prevails that Republican leaders are trying to make Perry Howard the scapegoat in their hypocritical campaign of political housecleaning in the South; that the prosecution was instituted last summer for the sole and only purpose of winning votes for the Republican ticket, and to make it appear that the Hoover campaign managers wanted to eliminate the negro from political affairs in the South.
"The investigation conducted by the Federal grand jury under the direction of Mrs. Mabel Willebrandt, was not in good faith — at least, not so far as the Department of Justice was concerned. If the authorities at Washington had been honest and sincere in the matter, similar investigations would have been conducted in other Southern states where alleged corruption in patronage affairs is notoriously worse than it is reported to be in Mississippi.
"In brief, the patronage probe in Mississippi was instigated for the purpose of ousting Perry Howard from political power, and not prompted by any high sense of justice prevailing at Washington. Nor is there any reason to believe that the morals of the Republican party in Mississippi would be improved by the conviction of Perry Howard and putting Lamont Rowlands, or any other white man, at its head. On the contrary, the change would only serve to bring the negro more actively back into politics than ever before, and eventually mean that the Republican party will put tickets in the field for all state offices. That has been the experience in Tennessee, Kentucky, and other border states, and history would merely repeat itself in Mississippi.
"This, of course, has no direct bearing on the guilt or innocence of Perry Howard, and other parties under indictment. The cases will be submitted on their merits, and, with Judge Edwin Holmes on the bench, it is certain that the defendants will be given fair and impartial hearings. But a strong element of sympathy has been entered into the matter because of the shallow hypocrisy of the authorities at Washington in singling out one state for an alleged housecleaning when it is a notorious fact that patronage traffic has been far more flagrant in other commonwealths."
This article was published in Jackson, Miss., where the first trial was held and which resulted in an acquittal of the defendants.
The next article was published March 19, 1929, the day before the scheduled trial of Howard and his associates in Meridian. It appeared in the same paper, which admittedly has a large circulation in that division, the defendant stating on the stand that the charge about the size of the circulation of the Daily News was about the only truthful allegation in the information of contempt. This article, in part, follows:
"Barter Cases Will Start Wednesday "U.S. Aides Gather. "Unfinished Civil Case Delays Proceedings; "Meridian Thronged. "By Frederick Sullens
"Meridian, March 19 (Special) — Stage settings have been practically finished and all is in readiness for the trial of Perry W. Howard, Republican national committeeman, James G. Buchanan, former United States Marshal, Ed. L. Patton, negro Republican Politician of Jackson, and George F. McLellan, former postmaster at Newton, under indictment for trafficking in federal patronage.
"Original plans were to start the trial this morning, but an unfinished civil case caused postponement until Wednesday.
"Meridian is filled to overflowing with federal officials and witnesses and late arrivals from Jackson last night encountered much trouble in finding hotel accommodations.
"Judge Allen Cox, now United States District Judge for North Mississippi, made his debut on the bench, opening the court term in lieu of Judge Edwin Holmes, who is busily engaged with a number of cases submitted in vacation. * * *
"Attorneys for both government and defense were astir early this morning, and a series of conferences with witnesses will keep them occupied throughout the day. * * *
"The department of justice has taken the case practically out of the hands of the duly constituted prosecutors for the southern district. Hon. E.E. Hindman, of Jackson, United States district attorney, arrived early this morning, and stated that he will not take an active part in the trial. While not publicly expressing his private opinion, it is known that Hindman entertains serious doubts as to the ability of the government to secure a conviction. * * *"
The article which caused the citation appeared the next day, March 20, 1929, and is as follows:
"Acquittal is Foreseen in Patronage Trials; "Cases Still Delayed. "Politics and Not Guilt of Defendants Lone Issue In Meridian Court. "By Frederick Sullens"Meridian, March 20 — Guessing on what a woman will do and what verdict a jury may reach is always hazardous, but the first best bet concerning the Federal patronage trial at Meridian, involving four defendants, is that Uncle Sam is going to come out second best in the encounter.
"Which is but another way of saying that a verdict of acquittal is more than likely, and the worst the defendants may expect is a hung jury.
"If a verdict of guilty is reached it will be somewhat akin to a 100 to 1 shot winning the Kentucky derby — one of those things that nobody expects to happen, and in the ordinary course of human events, simply can't happen.
"The Meridian trial in all its psychological aspects, is not unlike the trial staged in Jackson several weeks ago in which Perry Howard, the two Redmonds, and E.L. Patton, all negroes, were acquitted by a jury composed exclusively of white men in the face of evidence supposedly conclusive submitted by white men.
"Don't Want G.O.P.
"In other words, it is not altogether a case of whether the defendants are guilty or innocent, but whether a jury will be willing to encourage the establishment of a white Republican party in Mississippi. Regardless of how illogical it may sound, the idea is rather firmly implanted in many minds that this is the real issue at stake.
"Perry Howard, Ed. Patton, J.G. Buchanan, and George McLellan, the two last named being former Federal officers, will face a jury composed of white Democrats who supported the party ticket last November, and it is hardly to be expected that they are in hearty sympathy with the ambition of the Hoover administration to establish a white Republican party in this state, and the guilt and innocence of the defendants, consciously or unconsciously, will be a secondary issue. * * *
"Defense Watches Jury
"Perry Howard, chief defendant, who has more at stake than any of the defendants, is apparently confident of acquittal.
"`I am confident the white men of Mississippi will give me a square deal, and that is all I am asking — just a square deal,' says Howard. "They gave me that in Jackson, and I have every reason to believe I will get the same thing in Meridian.'
"A veteran member of the Meridian bar, after a careful study of the list of 25 jurors chosen as members of the regular panel for the court term says:
"`It's a ten to one bet that the defendants will never be convicted by a jury from that list. The Federal government has about the same chance that a rank amateur would have with a bunch of professional poker players using marked cards.'"
On Thursday, on motion of the district attorney, the editor of the Daily News was cited to answer a charge of contempt of court, and the patronage cases were continued until the next month.
On Friday, March 22, after the citation for contempt and while the cases were still pending, the defendant republished the objectionable article with extensive comments, in part, as follows:
"Cited for Contempt
"In the United States district court at Meridian on Thursday the editor of the Daily News was cited to answer a charge of contempt of court filed by Hon. Lester G. Fant, assistant United States district attorney for the Northern district of Mississippi.
"In granting the motion, Judge Allen Cox, presiding judge of the Northern district, stated that while the article written by the editor of the Daily News in reference to the Federal patronage indictments pending before the tribunal might be construed as contempt of court, the sole controlling factor was the motive behind it.
"Judge Cox then directed that the editor of the Daily News appear before Judge Edwin Holmes, of the Southern district, on the 25th of April, to answer charges filed by Mr. Fant.
"Well and good. The editor of the Daily News will be there on the date named, providing an earlier appearance cannot be arranged. * * *
"(The editor here republishes the article which caused the citation for contempt)
"The editor of the Daily News does not desire to add or take away one word from the above article. It stands as written.
"As for the charge of being in contempt of court in presenting the situation at Meridian during the past few days, as observed by the editor of the Daily News, it is downright ridiculous.
"For the Federal tribunals in Mississippi, the Daily News cherishes a feeling of profound admiration and sincere respect. They are presided over by two of the ablest jurists in the commonwealth; men who cannot be swayed by passion or disconcerted by popular opinion; men who have proven their worth; men who have conscientiously endeavored to hold the scales of justice evenly balanced, and whose records as wearers of the judicial ermine will compare favorably with those of occupants of similar offices anywhere in the nation.
"The charge of contempt of court is therefore absurd on its face. It implies lack of respect, and nothing could have been more remotely removed from the mind of the editor of the Daily News when the article above quoted was written.
"As for our good friend, Lester Fant, whom we have known somewhat intimately for more than a quarter of a century, the editor of the Daily News hastens to assure him that we do not cherish a feeling of contempt for either the man or the office he happens to hold. Quite to the contrary, we think that he is doing his dead level best with a damnably unpleasant and utterly hopeless task — a task assigned to him by the Department of Justice at Washington, and he had to either accept it or resign. Being a good fighter, he took the first horn of the dilemma.
"Mr. Fant, however, is evidently unable to appreciate or understand that a newspaper writer owes his first duty to his readers; that he is entrenched behind the constitutional guaranty of the liberty of the press, and that an editor regards it not only as his privilege, but his duty as well to comment on facts and draw his conclusions therefrom.
"And that is exactly what the editor of the Daily News did at Meridian, after a very careful study of the situation, backed by a thorough knowledge of the amazing political conditions that have developed in Mississippi during the past year.
"* * * The Daily News has a state-wide circulation, and our circulation is growing very rapidly in all sections of the commonwealth.
"At the risk of incurring his (The District Attorney's) displeasure — yea, even at the risk of going to jail, if such a risk can possibly be interpolated in this utterly ridiculous situation — the Daily News is going to give its readers some additional facts concerning these patronage indictments, based on information that we consider reliable, and will so consider unless the contrary is proven.
"* * * If our Washington correspondent is correct — and he always has been up to this moment — the Department of Justice did not want to prosecute the charges against Perry Howard, Ed. L. Patton, George McLellan, and J.G. Buchanan, and several of the ablest assistants to the Attorney General advised that the indictment be dropped, but Mrs. Mabel Willebrandt, who started all this hell-raising in Mississippi about the bartering of Federal offices, insisted that the case docketed for the Meridian court term be put to trial, and in deference to Mrs. Mabel instructions were accordingly issued. Lester Fant was directed to take charge of the prosecution, and Mr. Millar McGilchrist, assistant to the Attorney General, who apparently has no love whatsoever for Perry Howard, despite the fact that they work side by side in Washington on terms of perfect social equality, was instructed to return to Mississippi and see if he could not establish a better batting average than he showed when a somewhat similar case resulted in a verdict of acquittal at the last Federal court sitting in Jackson.
"* * * At the same time, it is our candid opinion, based on an intensive study of the case, that the evidence against Perry Howard, et al., is much weaker than that offered at the trial in Jackson last year when the jury returned a verdict of acquittal.
"Furthermore, we are still of the opinion that politics, whether consciously or unconsciously, will, to a considerable extent, influence the minds of the jurors in reaching their conclusion, regardless of who may constitute the panel.
"Notwithstanding the result of the last Presidential election, the preservation of a white man's government in Mississippi is still an important issue and we cannot maintain that form of government with a so-called white Republican party firmly entrenched in Mississippi, for it will inevitably mean the return of the negro as a menacing factor in political affairs.
"If this be contempt of court, make the most of it."
After a continuance by the court of all of the patronage cases, and while they were still pending and undisposed of, the defendant published on the front page of the same paper the following editorial; the emphasis being that of the editor published in bold black type. This editorial was published March 27, after the previous trial at Meridian had been continued on account of the editorial activities of the defendant, and when new jurors were ordered to be drawn for April 7 from the entire Southern District, the district constituting over half of the state, and the Jackson News having a daily circulation of about 25,000 copies. New jurors were to be drawn to try the patronage cases and there was no political campaign on in Mississippi, either state or national.
"HERBERT THE INNOCENT. "(An Editorial)
"* * * The displacement of Howard, Redmond, and other leaders of the Republican organization, if it is brought about, is of no great importance, save the fact that a sense of fair play ought to suggest that they at least be given a fair and impartial trial on the evidence against them before such summary action is taken.
"It should be borne in mind that these negroes, despite the numerous charges against them, have not yet been convicted, and the law presumes them innocent until proven guilty. In one trial they were very promptly acquitted by a jury of white Democrats after the Federal government had exhausted every resource at its command to place them behind prison bars. In another case, slated for trial at Meridian last week, the Federal prosecutors demanded a continuance after the defendants had announced readiness for trial.
"As justice is interpreted in the courts of Mississippi, even a negro Republican politician is entitled to a square deal. If Howard and his associates are guilty they should be punished. If innocent they are entitled to acquittal. But for the Federal government to dodge a trial, and then launch a movement to displace them from political power, will strike the average lover of justice as being far short of fair play.
"If President Hoover expects to hear thunderous applause in Mississippi, Georgia, and South Carolina following his edict of banishment for the negro leaders, he is going to be sadly disappointed. Quite to the contrary, he will be greeted with the thunders of silence.
"The actuating motive behind the edict, of course, is an unholy ambition to establish a Republican party in Mississippi that will compete with the Democratic party in all county, state, and national contests.
"* * * Speaking for Mississippi, this old state is going to remain solidly Democratic. In the last presidential election, despite hysterical efforts of bolters, deserters, rabid reformers, and a motley array of the riff-raff, rag-tag and bobtail of creation, Mississippi gave a five to one majority for the party ticket. About 130,000 Democrats who felt that they could not conscientiously vote for Governor Smith remained away from the polls, unwilling to vote for a Republican candidate. They thus preserved their party standing.
"If Herbert the Innocent believes that by substituting white leaders, in whom the people of Mississippi have no confidence whatever, he can form a white Republican party strong enough to compete with entrenched Democracy, then he belongs in a home for the simple-minded rather than the White House.
"* * * It is going to take something more than the spectacle of a few negroes tossed overboard from the ship of state to convince us that it would be a good thing to have a so-called white Republican party in the South, engaged in `healthy contests' with the hosts of Democracy.
"In the first place, it wouldn't work out that way at all. The exact opposite would be the result. Hoover's unholy ambition to make the South Republican means a return of the negro to active instead of nominal participation in political contests. It means that both Democratic and Republican leaders will be bidding for the negro vote, and eventually give to the qualified electors of that race the balance of power, as is now the case in Tennessee and several large midwestern cities having a large negro population, notably St. Louis and Chicago.
"Governor Bilbo stated a frank if somewhat unpleasant truth last night in commenting on this situation when he said:
"`As between the black-and-tan organization that has been in power, and the leaders whom Mr. Hoover will probably select, I prefer the negroes.'
"And that's the way an overwhelming majority of the white Democrats in Mississippi feel about it. No doubt a similar sentiment exists in other states that have been seduced by the siren songs of the G.O.P. A nominal Republican party, led by white men, most of them of Northern birth, means the opening of a veritable Pandora's box of political ills, and will inevitably lead to troubles akin to those of reconstruction days.
"As for Mr. Hoover's statement that recent exposures of abuses in the distribution of Federal patronage `are repugnant to the ideals and purposes of the Republican party,' please excuse us if we refuse to be impressed by his crocidile tears.
"The ideals and purposes of the Republican party have not been so damnably high in recent years as to justify Mr. Hoover in getting excited because possibly a few of its negro leaders in the South have collected a little cash in exchange for endorsements. While all this was going on, men high in the ranks of Republicanism boldly pilfered multiplied millions of dollars from the public treasury, right under the eyes of a presidential cabinet of which Mr. Hoover was a member, and thus far none of them have been punished. Quite to the contrary, justice was outrageously debauched when several of them were acquitted.
"Insofar as the Daily News is concerned, the song of the siren and the voice of the tempter fall on deaf ears. We feel exactly as we felt during the campaign of last summer —
"`To hell with the Republican party.'"
On Sunday, May 12, after a verdict of acquittal had been rendered at Meridian in the second patronage case tried in Mississippi, but while other patronage cases were still pending, the defendant published the following:
"Concerning Contempt
"If everybody in Mississippi who expressed opinions to the effect that the Federal government would not succeed in convicting the alleged patronage grafters were sent to jail for contempt of court, it would cause a complete suspension of business in the commonwealth.
"And if everybody who had expressed contempt and derision concerning the hypocritical declaration of the Republican leaders that they intend to make the party decent in Mississippi should be sent to jail, it would cost about twenty million dollars to build enough jails to hold them."
A consideration of the general principles applicable to criminal contempt is necessary to a legal analysis of the facts.
The power of courts under the ancient common law to punish for contempt was dealt with so far as the federal courts are concerned by the Act of March 2, 1831, 4 Stat. 487, which is now section 268 of the Judicial Code (28 USCA § 385), the pertinent provisions of which are as follows: "The said courts [United States Courts] shall have power * * * to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice. * * *"
The leading case on the subject is Toledo Newspaper Co. et al. v. United States, 247 U.S. 402, 38 S. Ct. 560, 62 L. Ed. 1186, in which the court held that said section 268 is merely declaratory of the inherent power of the federal courts to punish summarily for contempt, and does no more than express a limitation imposed by the Constitution. It announced that the test of the power is the character of the act done, and its direct tendency to prevent and obstruct the discharge of judicial duty. It held that comment and cartoons, having reference to pending judicial action, published at the place where the proceedings were pending, in a daily newspaper with a large circulation, may fairly be said to "obstruct the administration of justice," where such is the reasonable tendency of such publication, although it is not shown that the newspapers containing them were seen by the judge or were circulated in the courtroom, and although there is no proof that the mind of the judge in the particular case was influenced, or his purpose to do his duty obstructed or restrained, by the publication.
In Craig v. Hecht, 263 U.S. 277, 44 S. Ct. 103, 106, 68 L. Ed. 293, the court said: "The matter heard by Judge Mayer was an ordinary contempt proceeding and Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S. Ct. 560, 62 L. Ed. 1186, is enough to show that the District Court had power to entertain it, decide whether the evidence established an offense within the statute and determine petitioner's guilt or innocence."
Mr. Chief Justice Taft said:
"I concur fully in the opinion of the Court. It is of primary importance that the right freely to comment on and criticize the action, opinions and judgments of courts and judges should be preserved inviolate; but it is also essential that courts and judges should not be impeded in the conduct of judicial business by publications having the direct tendency and effect of obstructing the enforcement of their orders and judgments, or of impairing the justice and impartiality of verdicts. * * * If the publication is intended and calculated to obstruct and embarrass the court in a pending proceeding in the matter of the rendition of an impartial verdict, or in the carrying out of its orders and judgments, the court may, and it is its duty to protect the administration of justice by punishment of the offender for contempt.
"The federal statute concerning contempts as construed by this court in prior cases vests in the trial judge the jurisdiction to decide whether a publication is obstructive or defamatory only."
In the recent case of Sinclair v. United States, 279 U.S., at page 763, 49 S. Ct. 471, 476, 73 L. Ed. 938, the court reaffirmed Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S. Ct. 560, 62 L. Ed. 1186, and quoted from it as follows: "True, it is urged that, although the matters which were made the basis of the findings were published at the place where the proceedings were pending and under the circumstances which we have stated in a daily paper having large circulation, as it was not shown that they had been seen by the presiding judge or had been circulated in the court room, they did and could form no basis for an inference of guilt. But the situation is controlled by the reasonable tendencies of the acts done and not by extreme and substantially impossible assumptions on the subject. Again, it is said there is no proof that the mind of the judge was influenced or his purpose to do his duty obstructed or restrained by the publications and, therefore, there was no proof tending to show the wrong complained of. But here again not the influence upon the mind of the particular judge is the criterion but the reasonable tendency of the acts done to influence or bring about the baleful result is the test. In other words, having regard to the powers conferred, to the protection of society, to the honest and fair administration of justice and to the evil to come from its obstruction, the wrong depends upon the tendency of the acts to accomplish this result without reference to the consideration of how far they may have been without influence in a particular case. The wrongdoer may not be heard to try the power of the judge to resist acts of obstruction and wrongdoing by him committed as a prelude to trial and punishment for his wrongful acts."
In the Sinclair Case, supra, the court further said:
"Under the doctrine so stated, we think the trial judge rightly held it unnecessary to allege or show actual contact between an operative of the detective agency and a juror, or that any juror had knowledge of being observed. The reasonable tendency of the acts done is the proper criterion. Neither actual effect produced upon the juror's mind nor his consciousness of extraneous influence was an essential element of the offense.
"That the acts here disclosed, and for which three of the appellants were certainly responsible, tended to obstruct the honest and fair administration of justice, we cannot doubt. The jury is an essential instrumentality — an appendage — of the court, the body ordained to pass upon guilt or innocence. Exercise of calm and informed judgment by its members is essential to proper enforcement of law."
In the light of these authorities, let us analyze the facts of the case on trial.
It is not claimed that the defendant intended to reflect upon any judge of this court, but the contention is that the publication was intended and calculated to obstruct and embarrass the court in a pending proceeding in the matter of the rendition of an impartial verdict.
The question is whether the defendant willfully wrote and published the article which in itself was reasonably calculated to prevent the rendition of an impartial verdict, or intentionally did so in reckless disregard of its consequences. There is no doubt that he intended to write the editorial and to publish it at a time when he was fully cognizant of its natural and probable consequences. To say that he did not intend to obstruct the administration of justice and to prevent a fair and impartial verdict is not a defense if such was the natural and probable consequence which a reasonable man should have expected to follow directly and proximately from the thing done.
When the article was published, court was in session, "the stage was set" (as the article itself said), and all was in readiness for the trial. Meridian was "filled to overflowing," and "late arrivals from Jackson last night encountered much trouble finding hotel accommodations." The editor was there in person to report the case. To buttonhole a juror and tell him that it was not altogether a case of whether the defendants were guilty or innocent, but whether the juror would be willing to encourage the establishment of a white Republican party in Mississippi, would clearly have been improper, and the defendant would not have thought of doing it. To write that much and more under his own name and print it on the front page of a large newspaper which circulates in the vicinity of the trial, and which is sold at public news stands and in the hotels of Meridian, was of equal, if not greater, harmful tendency toward the prevention of an impartial verdict, as the power of the printed page is stronger than the spoken word.
Even after Judge Cox had entered a mistrial and continued the cases because of the article, and before the cases had been disposed of, he republished the article with the additional comment that the evidence against Howard was weaker than that offered at Jackson last year when there was an acquittal; that he was still of the opinion that politics would influence the jurors in reaching their conclusions; and that "notwithstanding the result of the last Presidential election, the preservation of a white man's government in Mississippi is still an important issue, and we cannot maintain that form of government with a so-called white Republican party firmly entrenched in Mississippi, for it will inevitably mean the return of the negro as a menacing factor in political affairs."
In conclusion, he says: "If this be contempt of court, make the most of it."
This was written on March 22, with the cases reset for trial on April 7th, or about two weeks off.
The defendant says that be merely predicted a verdict of acquittal. He did more than this. He vigorously insisted that a verdict of guilty would overthrow the Democratic Party and white supremacy in Mississippi, which in the circumstances was reasonably calculated to obstruct the rendition of an impartial verdict. By a series of publications he impregnated in the minds of the people from whom the jurors had to come the idea that Democratic predominance and white racial supremacy were dependent on the result of the trial and that a verdict of conviction might bring the negro back into power.
That an acquittal should be effected through race prejudice or partisan politics is reprehensible, but that a conviction might be brought about in the same way is destructive of the foundation principles of justice. If once the race issue in Mississippi may be used to bring about an acquittal, the next time it may be employed to secure a conviction, which might convert the jurors into a mob.
To publish broadcast in a responsible paper of large circulation the argument or prediction that white supremacy in Mississippi will be imperiled or affected by a particular verdict is calculated to prevent an impartial consideration of the case by a jury in this state. It would be difficult by anything printed in a newspaper to adopt a more effective method to influence improperly a jury's verdict than to impregnate in the minds of the people from whom the jurors are to be drawn the idea that racial supremacy, consciously or unconsciously, will be included in the result of the trial.
But the defendant claims a constitutional right to do what he did. As a newspaper man, he claims the right to comment freely on pending criminal proceedings. He admits no restrictions on this right. Trial by jury, due process of law, the liberty of the citizen, and every other sacred right of Magna Charta and the Constitution must give way to the freedom of the press, even to an abuse of that freedom. So strong was he in this claim or belief, that he repeatedly published similar articles.
But absolute rights are necessarily limited to avoid trespasses upon other rights of equal dignity.
The First Amendment safeguards freedom of speech as well as of the press, and, we have observed, to have spoken these things to waiting jurors would have been highly contemptuous.
The immunity of the press from laws abridging its freedom is not paramount to other privileges guaranteed the citizen under the Constitution. A contrary doctrine would destroy the right of trial by an impartial jury which the Constitution says the accused shall enjoy.
Trial by jury and the freedom of the press were coeval with, and are coequal under, the Constitution. Each is supreme in its own sphere. Properly understood, there should be no conflict between them.
That the article complained of was one of a series written by the defendant, which was intended and calculated to imbue the minds of the public, including prospective jurors, with the idea that racial and political supremacy were linked up with the result of the trial, is as certain as the inference that the defendant meant what he said. That the article was reasonably calculated to bring about a particular verdict, regardless of the guilt or innocence of the defendants on trial, is beyond all reasonable doubt. This was its reasonable and probable tendency, and renders the defendant guilty of contempt of court.
So much for the guilt or innocence of the defendant. What of the punishment, always a difficult question for the judge but a peculiarly delicate and unwelcome one in contempt proceedings because of the unusual discretion given him.
Ordinarily, the judge has a wide discretion in the fixation of punishment, but offenses are generally classified as felonies or misdemeanors, and maximum and minimum fines and imprisonments are fixed by statute.
In this regard criminal contempt is sui generis, neither the classification of the offense nor the amount of the punishment being set down by statute, or limited except by the facts of the case and the exercise of a sound judicial discretion.
The idea of punishment is corrective and not retaliatory. To deter others and reform the defendant are the primary considerations. That the editor thought he was within his rights as a newspaper man when he wrote the article is strongly maintained by his word and conduct, but that he was mistaken in this is equally clear from the authorities.
A mistake of law is no defense when the intention to do the thing prohibited is proven, but it is a matter to be taken into consideration in the exercise of the discretion mentioned.
The court should further take into consideration the character of the right to be preserved and the nature and frequency of the evil to be remedied; that is, the right of publicity and the evil of obstructing justice.
The administration of justice and the freedom of the press, though separate and distinct, are equally sacred, and neither should be violated by the other. The press and the courts have correlative rights and duties and should co-operate to uphold the principles of the Constitution and laws, from which the former receives its prerogative and the latter its jurisdiction. The right of legitimate publicity must be scrupulously recognized and care taken at all times to avoid impinging upon it. In a clear case where it is necessary, in order to dispose of judicial business unhampered by publications which reasonably tend to impair the impartiality of verdicts, or otherwise obstruct the administration of justice, this court will not hesitate to exercise its undoubted power to punish for contempt. But the channels of justice may easily be polluted by a hostile press in a way beyond the reach of the law, and the difficulties which are sure to be incurred in administering so drastic a remedy, as well as the harm that is likely to result to the administration of justice, make it the duty of the court to try to avoid such action and obtain, if possible, the co-operation and assistance of the press in securing a fair and impartial administration of the law.
In short, this jurisdiction of punishing for contempt, being practically unlimited and potentially arbitrary, should be most zealously guarded by the courts and exercised by them with the greatest anxiety only in the most extreme cases where there is no other pertinent remedy which can be found in order to enable justice to be properly administered without pernicious interference.
This court must be permitted to proceed with the disposition of its business in an orderly manner free from outside interference obstructive of its constitutional functions. This right will be insisted upon as vital to an impartial court, and, as a last resort, as an individual exercises the right of self-defense, it will act to preserve its existence as an unprejudiced tribunal. But such a case as this has never before occurred in the history of the state, so far as I know, and it is hoped will never occur again.
For the first conviction of its kind, not only of the defendant but of any one in this state, a probationary sentence will be worth more than a punitive one if the press shall willingly understand that it may not obstruct or pollute the even flow of justice in a pending proceeding. This is therefore deemed a proper case for the application of the probation law.
Accordingly, the imposition of sentence will be suspended during good behavior, and the defendant placed on probation for a period of five years.
It is not intended to exercise any censorship over the editor of the Daily News, but probation as granted in this case means that, the defendant having in writing and in open court accepted the decision of the court as the law of the case and promised in good faith not to commit another offense of a similar nature, only the commission by him of another such offense will be construed as a violation of its terms.