CONTEMPT BY PUBLICATION IN THE UNITED STATES
| Date | 01 March 1961 |
| Published date | 01 March 1961 |
| Author | Richard C. Donnelly,Ronald Goldfarb |
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02173.x |
CONTEMPT BY PUBLICATION IN
THE
UNITED STATES
TEE
power of courts to punish summarily
for
criminal contempt is,
as
Mr.
Justice Black recently observed,
“
an anomaly in the
law.”
The Justice continued as follows
:
“
The vices of a summary trial are only aggravated by the
fact that the judge’s power to punish criminal contempt is
exercised without effective external restraint. First, the sub-
stantive scope of the offense
of
contempt is inordinately
sweeping and vague;
it
has been defined, for example, a%
‘
any
conduct that tends to bring the authority and administration
of the law into disrespect
or
disregard.’
It
would be
no
over-
statement therefore to say that the offense with the most
ill-dehed and elastic contours
in
our law is
now
punished by
the harshest procedures known to that law. Secondly, a defen-
dant’s principal assurance that he will be fairly tried and
punished
is
the largely impotent review of a cold record by an
appellate court, another body
of
judges. Once in a great’while
a particular appellate tribunal basically hostile to summary
proceedings will closely police contempt trials but such super-
vision is only isolated and fleeting, All too often the reviewing
courts stand aside readily with the formal declaration that
‘
the trial judge has not abused his discretion.’ But even at its
rare best appellate review cannot begin to take the place of
trial in the first instance by an impartial jury subject to review
on
the spot by an uncommitted trial judge. Finally, as the
law now stands there are
no
limits
on
the punishment a judge
can impose
on
a defendant whom he finds guilty of contempt
except
for
whatever remote restrictions exist
in
the Eighth
Amendment’s prohibition against cruel and unusual punish-
ments
or
in
the nebulous requirements of
‘
reasonableness
’
now promulgated by the majority.”
The power
of
English and American courts to punish summarily
for construbtive contempt-chiefly contempts by publication out of
court-is derived from the same sources, namely,
Mr.
Justice
Wilmot’s undelivered judgment in
The King
v.
Almon
and Lord
Chancellor Hardwicke’s pronouncements in
Roach
v.
Garvan.‘
In
practice today, however, there is a wide divergence.
In
England
the power to punish as contemptuous publications
“
calculated to
interfere with the due course of justice
”
has been carried by the
courts to what some consider extreme limits.
In
the United States,
1
Green
v.
United States,
356
U.S.
165
at
193 (1958).
2
Ibid.,
at
199.
3
Wilmot,
Notes
of
Opinions and Judgments,
943 (1802).
4
2
Atk.
469
(Ch.
1742).
Also
cited
as
Re
Read
and
Huggenson
and
as
the
St.
James’s Evening
Post
case.
239
240
THE
MODERN
LAW
REVIEW
VOL.
24
this power has been emasculated by statutory and constitutional
limitations. How are we to account for this difference in
direction
?
In the early years of American legal development, Blackstone
was often the sole source of authority and he had accepted the
views
of
Mr. Justice Wilmot and published them as the law of
England.s The first statute bearing
on
the contempt powers of
federal courts was enacted in the first Judiciary Act of
1789.
Section
17
stated that federal courts
''
shall have power to
.
.
.
punish by he
or
imprisonment, at the discretion of said courts,
all contempts of authority
in
any cause
or
hearing before the
same.
.
.
."
The generality of this language suggests an'intent to
codify those powers to punish for contempt possessed by English
courts at common law. In the early nineteenth century, following
what were considered several flagrant abuses of the contempt power,
Pennsylvania, New York, and the Federal Government enacted
statutes strictly curtailing the power to punish for constructive
contempt. The Federal Act of
1881
confined the summary power
of punishment to
". .
.
misbehaviour of any person
.
. .
in
the
presence of the
. .
.
courts,
or
so
near thereto as to obstruct the
administration of justice.
.
.
."
The lower federal courts, aware of
the events prompting the enactment of this statute, respected its
restrictions. Many states copied the new federal law.?
It
is clear that the Act was intended to limit drastically the
contempt power. During the following century, however, the
historical antecedents of the Act became obscured and
it
was
vitiated by a broad construction. In
Toledo Newspaper
Co.
v.
United States,8
the Supreme Court construed the
"
so
near
thereto
"
provision in a causal rather than a geographical sense.
As
a result, substantially all of the pre-1818 powers were resur-
rected. Under a
''
reasonable tendency
"
test adopted to avoid the
geographical limitation imposed by the Act, contempt proceedings
against the press were left largely in the discretion of the trial
judge. The test permitted the presiding judge to punish summarily
for contempt
if
the publication had a
"
reasonable tendency
"
or
"
an inherent tendency
"
to interfere with justice. His discretion
would not be questioned unless greatly misused.
The
Toledo Newspaper
case was the federal law of contempt by
publication until
1940
when
it
was overruled
in
Nye
v.
United
5 Sir John
Fox
has shown that Wilmot's views found their way into the
Commentaries
publishe!
in
1769, and, through them, strongly affecte!,
Anglo-
American law.
Fox,
The Summary Process
to
Punish Contempt
(1909)
25
L.Q.R.
2.38,
247, 25S254.
6
4 Stat. 487 (1831). Currently see, 18 U.S.C.A.
401
(1948).
7
For
a
history
of
this
development, see Nelles
&
King,
"
Contempt
by
pblication in the United States,"
98
Col.L.Rev.
401,
626
(1998) and Ludwig,
Journalism and Justice in Criminal Law,"
98
StJohn L.Rev. 197 (1964).
8 247
U.S.
402
(1918).
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