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CRS Annotated Constitution

Article III -- Table of ContentsPrev | Next

First Amendment Limitations on the Contempt Power.—The phrase “in the presence of the Court or so near thereto as to obstruct the administration of justice” was interpreted in Toledo Newspaper Co. v. United States175 so broadly as to uphold the action of a district court judge in punishing for contempt a newspaper for publishing spirited editorials and cartoons on questions at issue in a contest between a street railway company and the public over rates. A majority of the Court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but “the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty.” Similarly, the test whether a particular act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but “the reasonable tendency of the acts done to influence or bring about the baleful result . . . without reference to the consideration of how far they may have been without influence in a particular case.”176 In Craig v. Hecht,177 these criteria were applied to sustain the imprisonment of the comptroller of New York City for writing and publishing a letter to a public service commissioner which criticized the action of a United States district judge in receivership proceedings.

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The decision in the Toledo Newspaper case, however, did not follow earlier decisions interpreting the act of 1831 and was grounded on historical error. For these reasons, it was reversed in Nye v. United States,178 and the theory of constructive contempt based on the “reasonable tendency” rule was rejected in a proceeding wherein defendants in a civil suit, by persuasion and the use of liquor, induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. The events in the episode occurred more than 100 miles from where the court was sitting and were held not to put the persons responsible for them in contempt of court. Although Nye v. United States was exclusively a case of statutory construction, it was significant from a constitutional point of view because its reasoning was contrary to that of earlier cases narrowly construing the act of 1831 and asserting broad inherent powers of courts to punish contempts independently of, and contrary to, congressional regulation of this power. Bridges v. California179 was noteworthy for the dictum of the majority that the contempt power of all courts, federal as well as state, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press.180

A series of cases involving highly publicized trials and much news media attention and exploitation,181 however, caused the Court to suggest that the contempt and other powers of trial courts should be utilized to stem the flow of publicity before it can taint a trial. Thus, Justice Clark, speaking for the majority in Shepard v. Maxwell,182 noted that “[i]f publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. Neither prosecutors, counsel for defense, the accused, witness, court staff nor law enforcement officers coming under the[p.629]jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.” Though the regulation the Justice had in mind was presumably to be of the parties and related persons rather than of the press, the potential for conflict with the First Amendment is obvious as well as is the necessity for protection of the equally important right to a fair trial.183

Due Process Limitations on Contempt Power: Right to Notice and to a Hearing versus Summary Punishment.—Included among the notable cases raising questions concerning the power of a trial judge to punish summarily for alleged misbehavior in the course of a trial is Ex parte Terry,184 decided in 1888. Terry had been jailed by the United States Circuit Court of California for assaulting in its presence a United States marshal. The Supreme Court denied his petition for a writ of habeas corpus. In Cooke v. United States,185 however, the Court remanded for further proceedings a judgment of the United States Circuit Court of Texas sustaining the judgment of a United States district judge sentencing to jail an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: “The important distinction . . . is that this contempt was not in open court. . . . To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law.”186

As to the timeliness of summary punishment, the Court at first construed Rule 42(a) of the Federal Rules of Criminal Procedure, which was designed to afford judges clearer guidelines as to the exercise of their contempt power, in Sacher v. United States,187 as to[p.630]allow “the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay [would] prejudice the trial. . . . [On the other hand,] if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.”188 However, subsequently, interpreting the due process clause and thus binding both federal and state courts, the Court held that, although the trial judge may summarily and without notice or hearing punish contemptuous conduct committed in his presence and observed by him, if he does choose to wait until the conclusion of the proceeding he must afford the alleged contemnor at least reasonable notice of the specific charge and opportunity to be heard in his own defense. Apparently, a “full scale trial” is not contemplated.189

Curbing the judge’s power to consider conduct as occurring in his presence, the Court, in Harris v. United States,190 held that summary contempt proceedings in aid of a grand jury probe, achieved through swearing the witness and repeating the grand jury’s questions in the presence of the judge, did not constitute contempt “in the actual presence of the court” for purposes of Rule 42(a); rather, the absence of a disturbance in the court’s proceedings or of the need to immediately vindicate the court’s authority makes the witness’ refusal to testify an offense punishable only after notice and a hearing.191 Moreover, when it is not clear the judge was fully aware of the contemptuous behavior when it occurred, notwithstanding the fact it occurred during the trial, “a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete.”192


Footnotes

175 247 U.S. 402 (1918).
176 Id., 418–421.
177 263 U.S. 255 (1923).
178 313 U.S. 33, 47–53 (1941).
179 314 U.S. 252, 260 (1941).
180 See also Wood v. Georgia, 370 U.S. 375 (1962), further clarifying the limitations imposed by the First Amendment upon this judicial power and delineating the requisite serious degree of harm to the administration of law necessary to justify exercise of the contempt power to punish the publisher of an out–of–court statement attacking a charge to the grand jury, absent any showing of actual interference with the activities of the grand jury.
It is now clearly established that courtroom conduct to be punishable as contempt “must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.” Craig v. Harney, 331 U.S. 367, 376 (1947); In re Little, 404 U.S. 553, 555 (1972).
181 E.g., Estes v. Texas, 381 U.S. 532 (1965); Marshall v. United States, 360 U.S. 310 (1959); Sheppard v. Maxwell, 384 U.S. 333 (1966).
182 384 U.S. 333, 363 (1966).
183 For another approach, bar rules regulating the speech of counsel and the First Amendment standard, see Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
184 128 U.S. 289 (1888).
185 267 U.S. 517 (1925).
186 Id., 535, 534.
187 343 U.S. 1 (1952).
188 Id., 11.
189 Taylor v. Hayes, 418 U.S. 488 (1974). In a companion case, the Court observed that although its rule conceivably encourages a trial judge to proceed immediately rather than awaiting a calmer moment, “[s]ummary convictions during trials that are unwarranted by the facts will not be invulnerable to appellate review.” Codispoti v. Pennsylvania, 418 U.S. 506, 517 (1974).
190 382S.162 (1965), overruling Brown v. United States, 359 U.S. 41 (1959).
191 But see Green v. United States, 356 U.S. 165 (1958) (noncompliance with order directing defendants to surrender to marshal for execution of their sentence is an offense punishable summarily as a criminal contempt); Reina v. United States, 364 U.S. 507 (1960).
192 Johnson v. Mississippi, 403 U.S. 212, 215 (1971) (citing In re Oliver, 333 U.S. 257, 275–276 (1948)).
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