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    STATE OF MD. v. BALTIMORE RADIO SHOW , 338 U.S. 912 (1950)

    U.S. Supreme Court

    STATE OF MD. v. BALTIMORE RADIO SHOW , 338 U.S. 912 (1950)

    338 U.S. 912

    STATE OF MARYLAND
    v.
    BALTIMORE RADIO SHOW, Inc. et al.
    No. 300.
    Decided Jan. 9, 1950.

    Messrs. Hall Hammond, Attorney General of Maryland, and Harrison L. Winter, Assistant Attorney General, for petitioner.

    Messrs. J. Purdon Wright and W. Frank Every, for respondents.

    Messrs. Elisha Hanson, William K. Van Allen and Arthur B. Hanson, amicus curiae, filed brief for the American Newspaper Publishers Association.

    Opinion of Mr. Justice FRANKFURTER respecting the denial of the petition for writ of certiorari.

    The Criminal Court of Baltimore City found the respondents guilty of contempt and imposed fines for broadcasting over local radio stations matter relating to one Eugene H. James at a time when he was in custody on a charge of murder. The facts upon which these findings were based are best narrated in the authoritative statement of the trial court:

    The Court of Appeals of Maryland reversed these convictions. 67 A.2d 497. It did so by sustaining 'the chief contention of the appellants, that the power to punish for contempt is limited by the First and Fourteenth Amendments to the Federal Constitution, and that the facts in the case at bar cannot support the judgments, [338 U.S. 912 , 917]   in the light of those amendments, as authoritatively construed by the Supreme Court.' 67 A.2d at page 507. The decision of the Court of Appeals was thus summarized in the dissenting opinion of Judge Markell: 'This court holds that under the decisions of the Supreme Court (Bridges v. California, 314 U.S. 252 , 159 A.L.R. 1346; Pennekamp v. Florida, 328 U.S. 331 , and Craig v. Harney, 331 U.S. 367 ) the judgments below violate the freedom of speech and of the press under the Fourteenth Amendment. If this is the correct interpretation of these decisions, of course they are conclusive.' 67 A.2d at page 518.

    Thereupon the State of Maryland asked this Court to issue a writ of certiorari to review the decision of its Court of Appeals. In its petition Maryland urges that while the Court of Appeals was of course bound by the decisions of this Court, that court misconceived our rulings, that the interpretation which it placed upon the Bridges, Pennekamp and Craig cases was not correct, with the result that it erroneously reversed the judgments for contempt. Since the court below reached its conclusions on a misconception of federal law, so the State of Maryland argues, only this Court can release the Maryland court from its bondage of error.

    This Court now declines to review the decision of the Maryland Court of Appeals. The sole significance of such denial of a petition for writ of certiorari need not be elucidated to those versed in the Court's procedures. It simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter 'of sound judicial discretion'. Rule 38, paragraph 5, Rules of the Supreme Court, 28 U.S.C.A. A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result. This is especially true of petitions for review on writ of certiorari to a State court. Narrowly technical reasons [338 U.S. 912 , 918]   may lead to denials. Review may be sought too late; the judgment of the lower court may not be final; it may not be the judgment of a State court of last resort; the decision may be supportable as a matter of State law, not subject to review by this Court, even though the State court also passed on issues of federal law. A decision may satisfy all these technical requirements and yet may commend itself for review to fewer than four members of the Court. Pertinent considerations of judicial policy here come into play. A case may raise an important question but the record may be cloudy. It may be desirable to have different aspects of an issue further illumined by the lower courts. Wise adjudication has its own time for ripening.

    Since there are these conflicting and, to the uninformed, even confusing reasons for denying petitions for certiorari, it has been suggested from time to time that the Court indicate its reasons for denial. Practical considerations preclude. In order that the Court may be enabled to discharge its indispensable duties, Congress has placed the control of the Court's business, in effect, within the Court's discretion. During the last three terms the Court disposed of 260, 217, 224 cases, respectively, on their merits. For the same three terms the Court denied, respectively, 1,260, 1,105, 1,189 petitions calling for discretionary review. If the Court is to do its work it would not be feasible to give reasons, however brief, for refusing to take these cases. The time that would be required is prohibitive, apart from the fact as already indicated that different reasons not infrequently move different members of the Court in concluding that a particular case at a particular time makes review undersirable. It becomes relevant here to note that failure to record a dissent from a denial of a petition for writ of certiorari in nowise implies that only the member of the Court who notes his dissent thought the petition should be granted. [338 U.S. 912 , 919]   Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.

    The one thing that can be said with certainty about the Court's denial of Maryland's petition in this case is that it does not remotely imply approval or disapproval of what was said by the Court of Appeals of Maryland. The issues canvassed in the opinions of that court, and which the State of Maryland has asked us to review, are of a nature which very readily lend themselves to misconstruction of the denial of this petition. The present instance is peculiarly one where the redundant becomes the necessary.

    It becomes necessary to say that denial of this petition carries no support whatever for concluding that either the majority or the dissent in the court below correctly interpreted the scope of our decisions in Bridges v. California, 314 U.S. 252 , 159 A.L.R. 1346; Pennekamp v. Florida, 328 U.S. 331 ; and Craig v. Harney, 331 U.S. 367 . It does not carry any implication that either, or neither, opinion below correctly applied those decisions to the facts in the case at bar.

    The issues considered by the Court of Appeals bear on some of the basic problems of a democratic society. Freedom of the press, properly conceived, is basic to our constitutional system. Safeguards for the fair administration of criminal justice are enshrined in our Bill of Rights. Respect for both of these indispensable elements of our constitutional system presents some of the most difficult and delicate problems for adjudication when they are before the Court for adjudication. It has taken centuries of struggle to evolve our system for bringing the [338 U.S. 912 , 920]   guilty to book, protecting the innocent, and maintaining the interests of society consonant with our democratic professions. One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right. On the other hand our society has set apart court and jury as the tribunal for determining guilt or innocence on the basis of evidence adduced in court, so far as it is humanly possible. It would be the grossest perversion of all that Mr. Justice Holmes represents to suggest that it is also true of the thought behind a criminal charge '... that the best test of truth is the power of the thought to get itself accepted in the competition of the market'. Abrams v. United States, 250 U.S. 616, 630 , 22. Proceedings for the determination of guilt or innocence in open court before a jury are not in competition with any other means for establishing the charge.

    I have set forth in an appendix the course of recent English decisions dealing with situations in which publications were claimed to have injuriously affected the prosecutions for crime awaiting jury determination. (As to freedom of press in England, see Report of the Royal Commission on the Press, Cmd. No. 7700, and the debate thereon in the House of Commons, July 28, 1949. 467 H.C. Deb. (5th ser.) 2683-2794.) Reference is made to this body of experience merely for the purpose of indicating the kind of questions that would have to be faced were we called upon to pass on the limits that the Fourteenth Amendment places upon the power of States to safeguard the fair administration of criminal justice by jury trial from mutilation or distortion by extraneous influences. These are issues that this Court has not yet adjudicated. It is not to be supposed that by implication it means to adjudicate them by refusing to adjudicate. [338 U.S. 912 , 921]   Appendix to Opinion of FRANKFURTER, J.

    English decisions concerning contempt of court for comments prejudicial to the fair administration of criminal justice.

    A. CASES FINDING CONTEMPT.

    1. King v. Tibbits and Windust, (1902) K.B. 77 (1901). The judgment of the court (Lord Alverstone, C.J., and Wills, Grantham, Kennedy and Ridley, JJ.) was read by Lord Alverstone, C.J. The case is adequately summarized in the headnote:

    Each of the defendants was sentenced to six weeks' imprisonment on each count of the indictment, the sentences to run concurrently.

    2. King v. Parke, (1903) 2 K.B. 432 (Lord Alverstone, C.J., Wills and Channell, JJ.). Rule for contempt of court for publication of statements by a newspaper, before the accused's commitment for trial, that he had engaged in immoral conduct and had admitted a prior conviction and imprisonment for forgery. Answering the argument that publication before commitment was not a contempt, the court through Wills, J. said: 'A moment's consideration, it seems to us, is sufficient to dispose of such a proposition. The reason why the publication of articles like those with which we have to deal is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists-namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the [338 U.S. 912 , 922]   Court which has to try the case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned (pp. 436-37).'

    The rule was made absolute, and a fine of 50 imposed.

    3. King v. Davies, (1906) 1 K.B. 32 (1905) Lord Alverstone, C.J., Wills and Darling, JJ.). Rule for contempt of court for publication in a newspaper of statements that a woman, then under arrest on a charge of abandoning a child but not committed for trial for attempted murder of the child until after the publication, had practiced wholesale baby farming and had been convicted of fraud. In delivering the judgment of the court, Wills, J. relied on King v. Parke, supra: 'We adhere to the view we expressed in that case that the publication of such articles is a contempt of the Court which ultimately tries the case after committal, although at the time when they are published it cannot be known whether there will be a committal or not. Their tendency is to poison the stream of justice in that Court, though at the time of their publication the stream had not reached it ... (p. 35).'

    The rule was made absolute, and a fine of 100 imposed.

    4. Rex v. Clarke, 27 T.L.R. 32 (K.B.1910) (Darling, Pickford and Coleridge, JJ.). Rule nisi for contempt of court based on a statement published in a newspaper that one Crippen had confessed to having killed his wife, but had denied the act was murder. Crippen was at the time in custody though not yet formally charged.

    During the course of the argument, Darling, J. stated: 'Even if a confession had really been made, it might still have been contempt to publish it; it might have been of such a kind as to be inadmissible in evidence (p. 33).'

    The pertinent part of the judgment of the court, delivered through Darling, J., was thus reported: 'In the present case, after the man was in custody the newspaper commented upon the case as to whether he had committed the crime, not to assist in unravelling the case. It was merely an attempt to minister to the idle curiosity of people as to what was passing within the prison before the trial took place. A news agent procured various telegrams from Quebec, and, when he did not get enough, he telegraphed for 1,000 words more. [338 U.S. 912 , 923]   The Daily Chronicle published a telegram from Quebec stating:-'It is generally considered here that the formal official denials that Crippen has made a confession hinge upon a distinction between the words 'admission' and 'confession." Whether it was an admission or confession the effect on the prisoner would be the same. The telegram went on:-'It is quite possible that what Crippen said may not be regarded officially as a confession, especially as he declared that he was not a 'murderer,' but that the prisoner made a statement to Inspector Dew last Monday I have reason to feel certain. I have confidence in the authority on which I cabled you the information sent last night, and I am assured to-day from the same source that Crippen admitted in the presence of witnesses that he had killed his wife, but denied that the act was murder,' and finishing up with stating that his wife died from an operation. Anything more calculated to prejudice a defense could not be imagined. The jurors were drawn from the county of Middlesex, where this paper was widely circulated.

    5. Rex v. Astor, 30 T.L.R. 10 (K.B.1913) (Ridley, Scrutton and Bailhache, JJ.). Rules nisi for contempt of court for comments in the Pall Mall Gazette and the Globe about a trial for criminal libel and a private shareholders' suit, both relating to the same person and to the same transaction. The proceedings are reported in part as follows:

    With respect to the comments in the Globe the rule was discharged without costs, since the comments on the criminal and civil proceedings were printed in separate portions of the paper.

    6. Rex v. J. G. Hammond & Co., 30 T.L.R. 491 (K.B.1914) (Darling, Avory and Rowlatt, JJ.). Rule nisi for contempt of court for the publication of comments on a prosecution for perjury then in progress before the magistrate:

    7. Rex v. Editor and Printers and Publishers of the Evening Standard, 40 T.L.R. 833 (K.B.1924) (Lord Hewart, C.J., Roche and Branson, JJ.). Rules nisi for contempt of court based upon statements printed in three newspapers, the Evening Standard, Manchester Guardian and Daily Express. The Standard had hired amateur detectives to investigate a killing and published what was uncovered at a time when a charge of murder had been made and a trial was to take place. The judgment of the court was delivered through the Lord Chief Justice and reported in part as follows:

    The rules were made absolute, and fines imposed of 1,000 for the acts of the Evening Standard and 300 each for the statements in the Manchester Guardian and Daily Express.

    8. Rex v. Editor, Printers and Publishers of the Daily Herald, 75 Sol. J. 119 (K.B. 1931) (Lord Hewart, C.J., Avory and MacKinnon, JJ.). Rule nisi for contempt for publishing a poster, which in fact related to another case, containing the words 'Another Blazing Car Murder' at a time when an accused stood committed for trial on [338 U.S. 912 , 927]   the charge of murder of a man in a motor car found burned up. As is the practice in all these cases the respondents tendered full apology to the court. In delivering the judgment, Lord Hewart, C.J., stated that the poster words might suggest that the accused had committed murder which was the issue the jury had to decide. The rule was made absolute, but only costs were assessed.

    9. Rex v. Editor, Printer and Publisher of the Surrey Comet, 75 Sol. J. 311 (K.B. 1931) (Lord Hewart, C.J., Avory and Humphreys, JJ.). Rule nisi for contempt of court. The judgment of the court is summarized as follows: 'Lord Hewart, C.J., said that the point was whether something had been published which might prejudice the trial of an accused man. In the article complained of there was a long account, carefully got together, which included at least three statements of grave prejudice against the man who afterwards was charged. A newspaper was entitled to report, fairly and accurately, what took place in open court, but, in the present case, ex concessio, nothing had taken place in court, and there was no question of reporting proceedings in court. The newspaper had busied itself in the deplorable enterprise of collecting materials which might be thought to be of interest concerning that which had been done and the person who, it was expected, would be accused. Once a newspaper departed from a fair and accurate report of what was actually stated in open court it not only took a great risk itself, but it also imperilled the unfortunate man, guilty or innocent, who was charged. For what had been done in the present case there was no conceivable excuse. His lordship added tht if that kind of cynical indifference for the interests of accused persons continued to be displayed, cases would not be met by the imposition of fines. He hoped that the case would have the effect of attracting the attention of professional journalists to the utter impropriety of an enterprise of that character. The rule would be made absolute against the editor of the newspaper, the costs paid as between solicitor and client, and the editor would be fined 500 (pp. 311-12).'

    10. Rex. v. Hutchison, (1936) 2 All Eng. 1514 (K.B.) (Swift, Humphreys and Goddard, JJ.). Rules nisi for contempt of court for showing a news film of the arrest of a man, subsequently charged with unlawful possession of firearms, with the caption: 'Attempt on the [338 U.S. 912 , 928]   King's Life.' The arrest had been made after a revolver fell close to the King's horse during a procession in which the King was riding, and it was widely feared that an attempt had been made on the King's life. Swift, J., delivered the judgment of the court making the rules absolute on the ground that the caption was likely to bring about 'derangement in the carriage of justice' (p. 1515). Because of their apologies only costs were assessed against some respondents, but another was fined 50 and costs 'to mark the court's disapproval of their conduct' (p. 1515).

    11. Rex v. Editor, Printers and Publishers of the Evening News, The Times (London), July 30, 1936, p. 4, col. 3 (K.B.) (Swift, Humphreys and Goddard, JJ.). Rule nisi for contempt of court for publishing articles describing as a 'crank' and a person regarded by the police as a 'harmless lunatic nursing a grievance' someone under arrest for unlawful possession of firearms. He was the same accused about whom the news film in Rex v. Hutchison, supra, was shown. The court's decision is summarized as follows:

    12. King v. Daily Mirror, (1927) 1 K.B. 845. Rules nisi for contempt of court for publishing in a newspaper the photograph of a person charged with a criminal offense. The bearing of such publication on the fairness of a later trial is sufficiently indicated in the judgment of Lord Hewart, C.J., with whom Avory and Talbot, JJ., concurred:

    The rules were made absolute, but, since this was the first occasion upon which the question arose with respect to the publication of a photograph of an accused person, only costs were assessed.

    13. The Times (London), Mar. 26, 1949, p. 3, col. 1, reported the recent case arising out of the prosecution of Haigh, the so-called Bluebeard, as follows:

    B. CASES FINDING NO CONTEMPT.

    1. Rex v. Editor and Publishers of The People, The Times (London), April 7, 1925, p. 5, col. 4 (K.B.) (Lord Hewart, C.J., Shearman and Salter, JJ.). Rule for contempt for publication of articles accusing one Hobbs of diabolical roguery and calling him the 'wizard crook of the underworld.' The articles were published after Hobbs' conviction for conspiracy to defraud another, but it was alleged that they were calculated to prejudice the hearing of the appeal. The relevant part of the judgment is reported as follows:

    2. Rex v. Editor of the Daily Mail, 44 T.L.R. 303 (K.B.1928) (Lord Hewart, C.J., Avory and Branson, JJ.). Rule nisi for contempt of court with respect to an article in the Daily Mail commenting on a suit for libel2 by one Factor against the newspaper based on an earlier article published therein. The article as to which contempt was charged contained material which had frequently appeared in prior issues of the paper, but did not touch on the issue of fact in the libel proceeding. The judgment of the court discharging the rule was delivered by the Lord Chief Justice and reported in part as follows: 'The Court was not satisfied that the article of December 23-coming as it did, after a long series of similar articles, being but a repetition of charges already often made against Factor and not complained of, and avoiding, as it did, any further mention of the alleged association of Factor with Montgomery-was calculated to prejudice the trial of the only issues which Factor had chosen to raise- namely, that of his association with Montgomery and of the damages which he should obtain if that issue were found in his favor (p. 307).'

    3. Rex v. Editor, Printers and Publishers of News of the World, 48 T. L.R. 234 (K.B.1932) (Lord Hewart, C.J., Avory and Hawke, JJ.). Rule nisi for contempt of court for publishing prior to the trial what purported to be a statement of the defense which would be made. The judgment of the court discharging the rule was delivered by the Lord Chief Justice and reported in part as follows: 'No doubt in some circumstances, and in some cases, the publication beforehand of what was said to be the defence of an accused person might amount to contempt of Court. They were dealing, however, not with general principles, but with the question whether those words came within the mischief against [338 U.S. 912 , 934]   which contempt proceedings were directed. They now had it from counsel supporting the rule that last December something of the same sort had actually been said to the police by the accused man himself (pp. 234-35).'

    4. Rex v. Davies, (1945) 1 K.B. 435 (Humphreys and Oliver, JJ.). Application for an order for a writ of attachment for contempt of court, based on comments in a newspaper article about one convicted of procuring miscarriage, made after notice of appeal of the conviction had been filed. The motion was refused on the ground that the particular comments did not amount to a contempt of court, but both Humphreys and Oliver JJ., agreed that there might be contempt even though the trial had ended. Portions of their opinions follow:

    Footnotes

    [ Footnote 1 ] The decision is commented upon in 207 L.T. 181 (1949) and 207 L.T. 225 (1949)

    [ Footnote 2 ] This proceeding was civil, but it is included herein for completeness.

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