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 so broadly in Toledo Newspaper Co. v. United States210 as to uphold the action of a district court judge in punishing a newspaper for contempt for publishing spirited editorials and cartoons issues raised in an action challenging a street railway’s 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.”211 In Craig v. Hecht,212 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 criticizing the action of a United States district judge in receivership proceedings.
The decision in Toledo Newspaper, 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,213 and the theory of constructive contempt based on the “reasonable tendency” rule was rejected. The defendants in the civil suit, by persuasion and the use of liquor, had 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. California214 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.215
A series of cases involving highly publicized trials and much news media attention and exploitation,216 however, caused the Court to suggest that the contempt and other powers of trial courts should be used to stem the flow of publicity before it can taint a trial. Thus, Justice Clark, speaking for the majority in Sheppard v. Maxwell,217 wrote, “If 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 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.218
- 247 U.S. 402 (1918).
- 247 U.S. at 418–21.
- 263 U.S. 255 (1923).
- 313 U.S. 33, 47–53 (1941).
- 314 U.S. 252, 260 (1941).
- 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).
- 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).
- 384 U.S. 333, 363 (1966).
- 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).