First Amendment Friday 5 – Bridges V California

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Happy Friday and welcome to the 5th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. This week we will look at two cases which deal with the Press’s right to report and comment on cases still before the Courts.

The cases were decided together in an opinion titled Bridges V California. If you are interested in the previous installments of this series you can find them at the links below:

First Amendment Friday 1 – Abrams v US

First Amendment Friday 2 – Gitlow v New York

First Amendment Friday 3 – Whitney v California

First Amendment Friday 4 – Brandenbrug V Ohio

The Facts:

In Times Mirror V California the editor of the Times Mirror, who was a very staunch anti-unionist wrote three editorials about cases where union members or leaders where convicted of various crimes.

In all three cases these editorials were published after the convictions but prior to sentencing and post trial motions.  These were found by the California Courts to be contempt of Court based on the idea that to air these strong opinions in public would unduly pressure the Judges in these cases one way or the other in regards to sentencing of the convicted.

In Bridges V California Harry Bridges was also cited for Contempt of Court.

Mr. Bridges was the President of the International Longshoremen and Warehouse Union. In 1937 the ILWU was a rival of the International Longshoremen’s Association. Most of the workers and officers in the San Pedro Harbor decided to switch from the ILA to the ILWU. The few remaining went to court to get an injunction preventing the offices and contract negotiations from being switched to this new union.

A Judge initially found for the ILA and ordered the hiring office and the contract put into receivership. This, of course caused the majority of the workers to be very upset and start to talk about striking. The judge stayed his order, and was in the process of beginning a new trail, when Mr. Bridges sent the Secretary of Labor a telegram expressing his outrage that the majority will of the workers could be overruled in favor of the minority who sued and explaining that if this course was followed their was the strong possibility of a strike.

This telegram was published in local news papers. The California Supreme Court found that this was Contempt of Court as it was interpreted as an attempt to blackmail the trail Judge with the consequences of the strike at a major port.

There was no specific legislation in California prohibiting the acts in either of these cases. The California Supreme Court found them in contempt based on English Common Law and the assertion that since this law was the basis for our Constitutional protections is need not be specifically spelled out.

The Majority Opinion:

Justice Black wrote the Opinion addressing both cases. The Court overturned all the Contempt citations on the multiple grounds. The first was that the State of California, in the form of its legislature had not provided specific guidance on this issue. The Court was wiling to give great weight to what the Legislature decided but in areas where it was silent they must fall back on the basic Constitutional issues.

Justice Black says:

For here the legislature of California has not appraised a particular kind of situation and found a specific danger3 sufficiently   imminent to justify a restriction on a particular kind of utterance. The judgments below, therefore, do not come to us encased in the armor wrought by prior legislative deliberation. Under such circumstances, this Court has said that ‘it must necessarily be found, as an original question’ that the specified publications involved created ‘such likelihood of bringing about the substantive evil as to deprive (them) of the constitutional protection.’ Gitlow v. New York,

Note that he is citing Gitlow v. New York which clarified (to an extent) the levels at which this test of  “substantial evil” might be used.

The Justice then goes on to discuss that for this test to apply there must be significant likelihood of this evil. Given the vague nature of the word likely, the Justice found there must be a very significant chance of evil to activate the first part of this test.

Justice Black:

How much ‘likelihood’ is another question, ‘a question of proximity and degree’ that cannot be completely captured in a formula. In Schenck v. United States, however, this Court said that there must be a determination of whether or not ‘the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils.’ We recognize that this statement, however helpful, does not comprehend the whole problem. As Mr. Justice Brandeis said in his concurring opinion in Whitney v. California, ‘This court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present.’

After citing several of the cases this series has looked at the Justice concludes:

What finally emerges from the ‘clerk 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. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment6 does not speak equivocally. It prohibits and law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty- loving society, will allow.

This is an opinion that shapes what we do today. The Court is saying that while there is a limit on what you can say and advocate, it is a very broad limit. As long as there is not both a high likelihood that your words will cause an immediate (as in prior to the ability of police to be summed and arrive) and very substantial evil, you are allowed to say what you like.  In practice this would mean that you can say we should march to the State House and take it by force, and you are protected. What the Court has done is separate words from actions.

This is what allows the statements of Gov. Perry on secession and Rep. Bachmann on “taking back our nation” to be not only legal but constitutionally protected speech. It is only if and when they act on these things, that they might run afoul of the law.

Based on these findings and the idea that while a judge should not be unduly pressured they are always aware of the social nature of their decisions the Court found these Contempt Citations to be an unconstitutional abridgment of the First Amendment protections on freedom of speech and press.

The Dissent

Justice Frankfurter wrote the dissent on this case. He argues:

Our whole history repels the view that it is an exercise of one of the civil liberties secured by the Bill of Rights for a leader of a large following or for a powerful metropolitan newspaper to attempt to overawe a judge in a matter immediately pending before him. The view of the majority deprives California of means for securing to its citizens justice according to law-means which, since the Union was founded, have been the possession, hitherto unchallenged, of all the states. This sudden break with the uninterrupted course of constitutional history has no constitutional warrant. To find justification for such deprivation of the historic powers of the states is to misconceive the idea of freedom of thought and speech as guaranteed by the Constitution.

Deeming it more important than ever before to enforce civil liberties with a generous outlook, but deeming it no less essential for the assurance of civil liberties that the federal system founded upon the Constitution be maintained, we believe that the careful ambiguities and silences of that majority opinion call for a full exposition of the issues in these cases.

His point is mainly that a Court is not the same as public square. Since there are both very specific rules for the proceedings and the full weight of the law of the land in play in cases before the Courts there must be a higher standard to prevent the undue influence of Judges, especially by the primary form of communication at the time, namely Newspapers.

Justice Frankfurter:

Here the substantive evil to be eliminated is interference with impartial adjudication. To determine what interferences may be made the basis for contempt tenders precisely the same kind of issues as that to which the ‘clear and present danger’ test gives rise. ‘It is a question of proximity and degree.’ Schenck v. United States, supra, 249 U.S. at page 52, 39 S.Ct. at page 249. And this, according to Mr. Justice Brandeis ‘is a rule of reason. … Like many other rules for human conduct, it can be applied correctly only by the exercise of good judgment.’ Schaefer v. United States. Has California’s judgment here undermined liberties protected by the Constitution? In common with other questions of degree, this is to be solved not by short-hand phrases but by consideration of the circumstances of the particular case. One cannot yell ‘Fire’ in a crowded theater; police officers cannot turn their questioning into an instrument of mental oppression.

He is making the argument here that it is more important to have a justice system free of outside influence than it is to have newspapers free of restrictions on what they can say and when they can say it.

There is the idea, prevalent now, of “Trial by Media” where the accusation is that one side or the other will try to put the fact of a pending case into the media and thus into the public mind in such a way that it prevents an impartial hearing in courts. The Dog believes that Nancy Grace is a prefect example of this. Under the guise of moral outrage she will spin a case against any accused or defendant in such a way that a person watching can only presume guilt. This is what Justice Frankfurter was trying to prevent by his dissent.

He concludes:

No objections were made before us to the procedure by which the charges of contempt were tried. But it is proper to point out that neither case was tried by a judge who had participated in the trials to which the publications referred. Compare Cooke v. United States, So it is clear that a disinterested tribunal was furnished, and since the Constitution does not require a state to furnish jury trials, Maxwell v. Dow, Palko v. Connecticut, , and states have discretion in fashioning criminal remedies, Tigner v. Texas, the situation here is the same as though a state had made it a crime to publish utterance having a “reasonable tendency’ to interfere with the orderly administration of justice in pending actions’, and not dissimilar from what the United States has done in 135 of the Criminal Code.

The Dog finds these particular two cases really interesting. On the one hand the majority decision has defined a big chunk of what we understand our First Amendment Protections to be, allowing us to comment on Court cases as they happen and to have greater access to opinion about them.

On the other, there seems, to the Dog, there is more of a chance of undue influence based on the media coverage of cases in flight than ever before. It is becoming more common for juries to be dismissed as they have failed to uphold there responsibility to only judge the fact presented to them in the Court. There is also the way that high profile celebrity cases are covered and decided that seem to indicate some influence by the media on both the Judges and the lawyers who bring them.

In the end the Dog is loath to give up any rights, even when they impact other areas of law. We have seen with the Fourth Amendment protections on unreasonable search and seizure there is a tendency to constantly minimize rights in favor of law and order, at the expense of the individual. This tendency makes it more important that we defend existing rights right up to the point where they make the functioning of the legal system impossible, before narrowing them.

That is it for this week. What do you think citizens? Should the press be able to comment and perhaps influence court cases which are not fully decided?

The floor is yours.

A little house keeping, this week the Dog could not find these cases at the usual Legal Information Institute so he used Find Law, you can find the entire case at this link.

Cross Posted At Square State.