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WOOD v. GEORGIA.
CERTIORARI TO THE COURT OF APPEALS OF GEORGIA.
Argued March 29, 1962.
Decided June 25, 1962.
In the midst of a local political campaign, a County Judge, in the presence of representatives of news media assembled at the Judge's request, issued a charge to a grand jury giving it special instructions to investigate rumors and accusations of alleged bloc voting by Negroes and the rumored use of money by political candidates to obtain their votes. The next day, while the grand jury was in session, petitioner, an elected Sheriff who was a candidate for reelection, issued from his office in the same building a press statement criticizing the Judge's action and urging citizens to take notice when their judges threatened political intimidation and persecution of voters under the guise of law enforcement. Petitioner was cited in the County Court for contempt, on the ground that his statement was calculated to be contemptuous of the Court and to obstruct the grand jury in its investigation and that it constituted a "clear, present and imminent danger" to the administration of justice. Petitioner issued a further statement repeating substantially his earlier charges and asserting that his defense would be that he had spoken the truth. The contempt citation was then amended by the addition of another count based on this latter statement and a charge that it constituted a clear and present danger to the grand jury investigation and to the disposition of the contempt citation against him. Without making any findings or giving any reasons for its conclusion that his conduct actually obstructed the grand jury or contempt proceedings, the trial court adjudged petitioner guilty of contempt and sentenced him to fine and imprisonment. Held: The record does not support a finding that petitioner's statements presented a clear and present danger to the administration of justice; and his conviction violated his right to freedom of speech guaranteed by the First and Fourteenth Amendments. Pp. 376-395.
103 Ga. App. 305, 119 S. E. 2d 261, reversed.
Milton Kramer argued the cause for petitioner. With him on the briefs was James I. Wood.
E. Freeman Leverett, Deputy Assistant Attorney General of Georgia, argued the cause for respondent. With [370 U.S. 375, 376] him on the briefs were Eugene Cook, Attorney General, William M. West, Solicitor General, and Jack J. Gautier, Assistant Solicitor General.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
We granted certiorari to consider the scope of the constitutional protection to be enjoyed by persons when the publication of their thoughts and opinions is alleged to be in conflict with the fair administration of justice in state courts. The petitioner, an elected sheriff in Bibb County, Georgia, contends that the Georgia courts, in holding him in contempt of court for expressing his personal ideas on a matter that was presently before the grand jury for its consideration, have abridged his liberty of free speech as protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.
On June 6, 1960, a judge of the Bibb Superior Court issued a charge to a regularly impaneled grand jury, giving it special instructions to conduct an investigation into a political situation which had allegedly arisen in the county. The jury was advised that there appeared to be "an inane and inexplicable pattern of Negro bloc voting" in Bibb County, and that "rumors and accusations" had been made which indicated candidates for public office had paid large sums of money in an effort to gain favor and to obtain the Negro vote. The charge explained that certain Negro leaders, after having met and endorsed a candidate, had switched their support to an opposing candidate who put up a large sum of money, and that this "create[d] an unhealthy, dangerous, and unlawful situation [which] tend[ed] to corrupt public office holders and some candidates for public office." The charge continued by indicating the violations of law which would be involved should the grand jury find the charges [370 U.S. 375, 377] to be founded in truth. 1 In addition, certain questions were posed to the jury which it was to investigate in inquiring into the charges of election law violations. 2 [370 U.S. 375, 378] The instructions were given in the midst of a local political campaign and the judge, in order to publicize the investigation, requested reporters for all local news media [370 U.S. 375, 379] to be present in the courtroom when the charge was delivered.
The following day, while the grand jury was in session investigating the matters set forth in the instructions delivered by the court, the petitioner issued to the local press a written statement in which he criticized the judges' action and in which he urged the citizenry to take notice when their highest judicial officers threatened political intimidation and persecution of voters in the county under the guise of law enforcement. This news release, which was published and disseminated to the general public, stated:
A month later, on July 7, 1960, the petitioner was cited in two counts of contempt based on the above statements. The citation charged that the language used by the petitioner was designed and calculated to be contemptuous of the court, to ridicule the investigation ordered by the charge, and "to hamper, hinder, interfere with and [370 U.S. 375, 381] obstruct" the grand jury in its investigation. It also alleged that the news release was issued from the Bibb County Sheriff's Office, located in the courthouse in which the grand jury had been charged and where it was deliberating, and that the language imputed lack of judicial integrity to the three judges of the court responsible for the charge. An amendment to the citation alleged that the statements "in and of [themselves] created . . . a clear, present and imminent danger to the investigation being conducted . . . and . . . to the proper administration of justice in Bibb Superior Court."
The next day the petitioner issued a further press release in which he repeated substantially the charges he had made in the release on June 7, and in which he asserted that his defense to the contempt citation would be that he had spoken the truth. The contempt citation was thereupon amended by including a third count based on this latter statement. The third count contained the same allegations as the other counts and, in addition, charged that the petitioner's action presented a clear and present danger to the handling of the contempt citation against the petitioner.
At a hearing before the trial judge, 3 certain facts were stipulated: that the petitioner's statements were made while the grand jury was in session investigating matters suggested in the charge by the court; that the grand jury had before it the voting tabulations and other documents, including endorsements by certain political groups relating to primaries and elections in which the petitioner participated as a candidate and as an active supporter for other candidates; and that the members of the grand jury and the judges themselves had seen and read the [370 U.S. 375, 382] press releases issued by the petitioner. In addition, it was stipulated that the petitioner's sworn response be admitted as evidence. The allegations in this response, which must be considered as true in the absence of contrary evidence and in the absence of findings of fact by the trial judge, included the verification that the statements were made by petitioner in his capacity as a private citizen and not as sheriff of the county; that petitioner was directly and personally interested in the outcome of the current primary election not only as a private citizen but also as an announced candidate for public office in the general election to be held the following November, and in which election the petitioner would be running against the contestant who prevailed in the democratic primary; that he believed the language employed in the charge was of such a nature that it tended to create or emphasize issues likely to have a drastic impact upon the outcome of the primary; that his purpose in issuing the statements was simply to inform the public of what he sincerely believed to be the other side of the issue created by the charge; and that the statements were not intended to be contemptuous of the court or to hinder the investigation. The petitioner also asserted that he adopted the same method of distributing his views to the general public as did the court in disseminating the grand jury charge. No witnesses were presented at the hearing and no evidence was introduced to show that the publications resulted in any actual interference or obstruction of the court or the work of the grand jury. The gravamen of the contempt citation, and of the State's case against the petitioner, was that the mere publishing of the news release and defense statement constituted a contempt of court, and in and of itself was a clear and present danger to the administration of justice.
The trial court, without making any findings and without giving any reasons, adjudged petitioner guilty on all [370 U.S. 375, 383] counts and imposed concurrent sentences of 20 days and separate fines of $200 on each. On writ of error to the Court of Appeals the convictions on counts one and three were affirmed and the conviction on count two, based on the open letter to the grand jury, was reversed. Wood v. Georgia, 103 Ga. App. 305, 119 S. E. 2d 261. After the Georgia Supreme Court, without opinion, declined to review the convictions on the first and third counts, the petitioner sought a writ of certiorari to this Court which we granted. 368 U.S. 894 .
We start with the premise that the right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government and that courts necessarily must possess the means of punishing for contempt when conduct tends directly to prevent the discharge of their functions. While courts have continuously had the authority and power to maintain order in their courtrooms and to assure litigants a fair trial, the exercise of that bare contempt power is not what is questioned in this case. Here it is asserted that the exercise of the contempt power, to commit a person to jail for an utterance out of the presence of the court, has abridged the accused's liberty of free expression. In this situation the burden upon this Court is to define the limitations upon the contempt power according to the terms of the Federal Constitution.
In Bridges v. California, 314 U.S. 252 , this Court for the first time had occasion to review a State's exercise of the contempt power utilized to punish the publisher of an out-of-court statement. The accused contended that the exercise abridged his right of free speech guaranteed against state infringement by the Fourteenth Amendment. 4 To determine the scope of this constitutional [370 U.S. 375, 384] protection, the Court reviewed the history of the contempt power, both in England and in this country. It held that "the only conclusion supported by [that] history is that the unqualified prohibitions laid down by the framers were intended to give to liberty of the press, as to the other liberties, the broadest scope that could be countenanced in an orderly society." Id., at 265. 5 Thus clarifying the exercise of this judicial power in the context of the protections assured by the First Amendment, the Court held that out-of-court publications were to be governed by the clear and present danger standard, described as "a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished." Id., at 263. 6 Subsequently, in Pennekamp v. Florida, 328 U.S. 331 , after noting that "[f]ree discussion of the problems of society is a cardinal principle of Americanism - a principle which all are zealous to preserve" (id., at 346), the Court reaffirmed its belief that the "essential right of the courts to be free of intimidation and coercion . . . [is] consonant with a recognition that freedom of the press must [370 U.S. 375, 385] be allowed in the broadest scope compatible with the supremacy of order." Id., at 334. 7 The Court's last occasion to consider the application of the clear and present danger principle to a case of the type under review was in Craig v. Harney, 331 U.S. 367 . There the Court held that to warrant a sanction "[t]he fires which [the expression] kindles 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." Id., at 376. 8
It is with these principles in mind that we consider the case before us. Initially, however, it should be noted that the Georgia courts have determined that the power to punish for contempt of court is inherent in its state judiciary 9 and the Court of Appeals thus ignored the express limitations imposed by the Georgia Legislature in punishing out-of-court statements. 10 This holding thus [370 U.S. 375, 386] deprives the judgment of coming to this Court "encased in the armor wrought by prior legislative deliberation," Bridges v. California, supra, at 261, and it is upon this basis that we proceed.
This case differs from Bridges and Pennekamp, first, in that the court below has upheld petitioner's conviction on the basis that his conduct presented a clear and present danger to the proceedings of the court and grand jury, a standard this Court has held to warrant punishment for alleged contemptuous conduct. But state courts may not preclude us from our responsibility to examine "the evidence to see whether it furnishes a rational basis for the characterization put on it" (In re Sawyer, 360 U.S. 622, 628 ) by the enunciation of a constitutionally acceptable standard in describing the effect of the conduct. The ultimate responsibility to define the limits of state power regarding freedom of speech and expression rests with this Court, Pennekamp v. Florida, supra, at 335; see Chambers v. Florida, 309 U.S. 227, 228 -229; Fiske v. Kansas, 274 U.S. 380, 385 -386; and when it is claimed that such liberties have been abridged, we cannot allow a presumption of validity of the exercise of state power to interfere with our close examination of the substantive claim presented. 11
Despite its conclusion that the petitioner's conduct created a serious evil to the fair administration of justice, [370 U.S. 375, 387] the Court of Appeals did not cite or discuss the Bridges, Pennekamp or Harney cases, nor did it display an awareness of the standards enunciated in those cases to support a finding of clear and present danger. 12 It simply adopted as conclusions of law the allegations made in the contempt citation. The court did not indicate in any manner how the publications interfered with the grand jury's investigation, or with the administration of justice. Unlike those cases in which elaborate findings have been made to support such a conclusion, 13 this record is barren of such findings. The prosecution called no witnesses to show that the functioning of the jury was in any way disturbed; no showing was made that the members of the grand jury, upon reading the petitioner's comments in the newspapers, felt unable or unwilling to complete their assigned task because petitioner "interfered" with its completion. 14 There is nothing in the record to indicate that the investigation was not ultimately successful or, if it was not, that the petitioner's conduct was responsible for its failure. And to the extent that the conviction on the third count was upheld because petitioner's last statement presented a clear and present danger to the contempt hearing, it is indeed novel that under the circumstances of this case the petitioner might be responsible for a substantial interference [370 U.S. 375, 388] with his contempt hearing because he had made public his defense to the charges made against him. What interference to petitioner's hearing or what harm this assertion might inflict on the administration of justice is not stated in the opinion. Nor is there any evidence of either in the record. 15
Thus we have simply been told, as a matter of law without factual support, that if a State is unable to punish persons for expressing their views on matters of great public importance when those matters are being considered in an investigation by the grand jury, a clear and present danger to the administration of justice will be created. We find no such danger in the record before us. The type of "danger" evidenced by the record is precisely one of the types of activity envisioned by the Founders in presenting the First Amendment for ratification. "Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political . . . truth." Thornhill v. Alabama, 310 U.S. 88, 95 . In Thornhill the Court also reiterated the thinking of the Founders when it said that a broad conception of the First Amendment is necessary
The respondent attempts to distinguish this case from Bridges by offering, as support for the Georgia court's conclusion that the petitioner's conduct presented a clear and present danger to the administration of justice, the fact that here there was an alleged interference with a grand jury and not an attempt to influence or coerce a judge. In the circumstances of this case, we find this argument unpersuasive.
First, it is important to emphasize that this case does not represent a situation where an individual is on trial; there was no "judicial proceeding pending" in the sense that prejudice might result to one litigant or the other by ill-considered misconduct aimed at influencing the outcome of a trial or a grand jury proceeding. Compare Smith v. Texas, 311 U.S. 128 ; Chambers v. Florida, 309 U.S. 227 ; Pierre v. Louisiana, 306 U.S. 354 ; Tumey v. Ohio, 273 U.S. 510 ; and Moore v. Dempsey, 261 U.S. 86 . Moreover, we need not pause here to consider the variant factors that would be present in a case involving a petit jury. Neither Bridges, Pennekamp nor Harney involved a trial by jury. In Bridges it was noted that "trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper" (314 [370 U.S. 375, 390] U.S. at 271), and of course the limitations on free speech assume a different proportion when expression is directed toward a trial as compared to a grand jury investigation. Rather, the grand jury here was conducting a general investigation into a matter touching each member of the community.
Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will. 17 Particularly in matters of local political corruption and investigations is it important that freedom of communication be kept open and that the real issues not become obscured to the grand jury. It cannot effectively operate in a vacuum. It has been said that the "ancestors of our `grand jurors' are from the first neither exactly accusers, nor exactly witnesses; they are to give voice to common repute." 2 Pollock and Maitland, History of the English Law (2d ed. 1909), 642. The necessity to society of an independent and informed grand jury becomes readily apparent in the context of the present case. For here a panel of judges, themselves elected officers and charged under state law with the responsibility of instructing a grand jury to investigate political corruption, have exercised the contempt power to hold in contempt another elected representative of the people for publishing views honestly held and contrary to those contained in the charge. And, an [370 U.S. 375, 391] effort by the petitioner to prove the truth of his allegations was rejected, the court holding irrelevant the truth or falsity of the facts and opinions expressed in the publications. 103 Ga. App. 305, 321, 119 S. E. 2d 261, 273. If the petitioner could be silenced in this manner, the problem to the people in the State of Georgia and indeed in all the States becomes evident.
The administration of the law is not the problem of the judge or prosecuting attorney alone, but necessitates the active cooperation of an enlightened public. Nothing is to be gained by an attitude on the part of the citizenry of civic irresponsibility and apathy in voicing their sentiments on community problems. The petitioner's attack on the charge to the grand jury would have been likely to have an impeding influence on the outcome of the investigation only if the charge was so manifestly unjust that it could not stand inspection. 18 In this sense discussion serves as a corrective force to political, economic and other influences which are inevitably present in matters of grave importance. The charge given to the jury indicated that the motivation for it was founded on rumor, but that the situation had existed for several years. Yet the charge was directed primarily against one group in the community and was given at the height of the highly important Democratic primary, in which, because of their elected positions, both the judges and the petitioner were interested personally and apart from their official status. The First Amendment envisions that persons be given the opportunity to inform the community of both sides of [370 U.S. 375, 392] the issue under such circumstances. That this privilege should not lightly be curtailed is ably expressed in a passage from Judge Cooley's 2 Constitutional Limitations (8th ed. 1927) 885, where he stated that the purpose of the First Amendment includes the need:
Finally, we are told by the respondent that, because the petitioner is sheriff of Bibb County and thereby owes a special duty and responsibility to the court and its judges, his right to freedom of expression must be more severely curtailed than that of an average citizen. Under the circumstances of this case, this argument must be rejected.
First, although we do not rely on the point exclusively, we noted at the outset of this opinion that there was no finding by the trial court that the petitioner issued the statements in his capacity as sheriff; in fact, the only evidence in the record on this point is the petitioner's allegation in his response, accepted as evidence by the trial court and uncontroverted by the respondent, that the statements were distributed by petitioner as a private citizen. Nowhere in the record, including the contempt citation as twice amended, can we find one word indicating that the prosecution relied on the fact that petitioner was sheriff to show a more substantial likelihood that his conduct would disrupt the administration of justice. 19 The opinion [370 U.S. 375, 394] of the Court of Appeals does not articulate any specific reliance on this fact, 20 and responses to our inquiries on this subject during oral argument were not illuminating. Moreover, the two counts before us were based on out-of-court publications which the petitioner signed without reference to his official capacity. Only in the letter sent directly to the grand jury room did the petitioner indicate in the statement that he was sheriff, and the Court of Appeals held that this statement did not present a clear and present danger to the administration of the law. In the light of this finding it is difficult to understand how the fact that the petitioner was sheriff of the county can be considered significant as to his news releases.
However, assuming that the Court of Appeals did consider to be significant the fact that petitioner was a sheriff, we do not believe this fact provides any basis for curtailing his right of free speech. There is no evidence that the publications interfered with the performance of his duties as sheriff or with his duties, if any he had, in connection with the grand jury's investigation. We are not dealing with a situation where a sheriff refuses to issue summonses or to maintain order in the court building; nor, so far as the record shows, did the petitioner do any act which might present a substantive harm to the jury's solution of the problem placed before it. We are dealing here only with public expression.
The petitioner was an elected official and had the right to enter the field of political controversy, particularly [370 U.S. 375, 395] where his political life was at stake. 21 Cf. In re Sawyer, 360 U.S. 622 . The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.
Our examination of the content of petitioner's statements and the circumstances under which they were published leads us to conclude that they did not present a danger to the administration of justice that should vitiate his freedom to express his opinions in the manner chosen.
MR. JUSTICE WHITE took no part in the consideration or decision of this case.
[ Footnote 2 ] More fully, the charge, in relevant part, contained the following:
[ Footnote 3 ] The charge that was delivered to the grand jury was prepared by the three judges of the Bibb County Superior Court, and was delivered by one of them. Another one of the three presided at petitioner's contempt hearing.
[ Footnote 4 ] Thornhill v. Alabama, 310 U.S. 88, 95 ; Schneider v. State, 308 U.S. 147, 160 ; De Jonge v. Oregon, 299 U.S. 353 ; Near v. Minnesota, 283 U.S. 697, 707 ; Gitlow v. New York, 268 U.S. 652, 666 .
[ Footnote 5 ] Specifically, the Court, after a thorough review of the history behind both the exercise of the contempt power and the adoption of the First Amendment, rejected the idea that the interests were to be accommodated by applying the common law of England at the time the Constitution was adopted. Bridges v. California, 314 U.S. 252, 263 -268. For source materials on this subject, see Chafee, Free Speech in the United States (1941), c. 1; Fox, The History of Contempt of Court (1927), passim; Stansbury, Trial of James H. Peck (1833), passim; Thayer, Legal Control of the Press (3d ed. 1956), 483 et seq. See also Deutsch, Liberty of Expression and Contempt of Court, 27 Minn. L. Rev. 296 (1943); Nelles and King, Contempt by Publication in the United States, 28 Col. L. Rev. 401, 525 (1928).
[ Footnote 6 ] The Court went on to say that the clear and present danger standard does not "purport to mark the furthermost constitutional boundaries of protected expression . . . [and that it does] no more than recognize a minimum compulsion of the Bill of Rights." Bridges v. California, supra, at 263.
[ Footnote 7 ] In Pennekamp the Court concluded that "the danger under . . . [the] record to fair judicial administration has not the clearness and immediacy necessary to close the door of permissible public comment. When that door is closed, it closes all doors behind it." 328 U.S., at 350 .
[ Footnote 8 ] In none of these cases, as is also true of the one presently under review, did the Court find it necessary to determine the full power of the State to protect the administration of justice by use of the contempt power. See Craig v. Harney, 331 U.S., at 373 .
[ Footnote 9 ] Atlanta Newspapers, Inc., v. State, 216 Ga. 399, 116 S. E. 2d 580; McGill v. State, 209 Ga. 500, 74 S. E. 2d 78; Bradley v. State, 111 Ga. 168, 36 S. E. 630. But see Townsend v. State, 54 Ga. App. 627, 188 S. E. 560.
[ Footnote 10 ] The state legislature has enacted a statute designed to limit the courts in that State in the exercise of the contempt power. Ga. Code Ann., 24-105, provides:
[ Footnote 11 ] When the claim is that such a right has been abridged by a state court, "it is incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured." Norris v. Alabama, 294 U.S. 587, 590 . See Hooven & Allison Co. v. Evatt, 324 U.S. 652, 659 ; Truax v. Corrigan, 257 U.S. 312, 325 .
[ Footnote 12 ] Compare the findings of the Court of Criminal Appeals of Texas in Ex parte Craig, 150 Tex. Cr. 598, 193 S. W. 2d 178. See this Court's discussion of these findings and of the conclusion drawn by the Texas court on the basis of those findings, Craig v. Harney, 331 U.S. 367, 370 -371, 385-389.
[ Footnote 14 ] Georgia law presumably permits grand jurors to so testify: "Grand jurors shall disclose everything which occurs in their service whenever it becomes necessary in any court of record in this State." Ga. Code Ann., 59-302.
[ Footnote 15 ] Compare Toledo Newspaper Co. v. United States, supra, note 13, at 425 (Holmes, J., dissenting).
[ Footnote 17 ] Orfield, Criminal Procedure from Arrest to Appeal (1947), 144-146. See Hale v. Henkel, 201 U.S. 43, 59 -66. See generally Note, The Grand Jury as an Investigatory Body, 74 Harv. L. Rev. 590 (1961).
[ Footnote 18 ] Compare Mr. Justice Holmes, dissenting in Gitlow v. New York, 268 U.S. 652, 673 . See also Thornhill v. Alabama, 310 U.S. 88 ; Whitney v. California, 274 U.S. 357 ; Pennekamp v. Florida, 328 U.S. 331, 370 (concurring opinion) ("To talk of a clear and present danger arising out of [every] . . . criticism is idle unless the criticism makes it impossible in a very real sense for a court to carry on the administration of justice").
[ Footnote 19 ] The amended citation, in relevant part, alleged:
[ Footnote 20 ] The decision of the Court of Appeals, affirming the overruling of petitioner's demurrer to the effect that the allegation quoted in note 19 was irrelevant and should be stricken, is of no weight in light of the trial court's failure to make a finding of fact either that the statements were issued in petitioner's official capacity or that the fact he was sheriff was relevant.
[ Footnote 21 ] Petitioner was not a civil servant, but an elected official, and hence this is not a case like United Public Workers v. Mitchell, 330 U.S. 75 , in which this Court held that Congress has the power to circumscribe the political activities of federal employees in the career public service.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, dissenting.
Whether or not the clear and present danger doctrine of Bridges v. California, 314 U.S. 252, 260 -263, 271, should be deemed to limit a state or federal court's use of the contempt power when employed against a member of its official entourage who has scandalized the conduct of the court in relation to and during the course of a pending judicial proceeding is a question which I need not reach in this case. For even under the most expansive view of Bridges and its offshoots the contempt judgment against this sheriff should be upheld. [370 U.S. 375, 396]
Over fifty years ago Mr. Justice Holmes wrote: "The theory of our [judicial] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print." Patterson v. Colorado, 205 U.S. 454, 462 . For this reason this Court has repeatedly held that a criminal conviction based on the verdict of jurors influenced by extrajudicial statements of the case cannot stand consistently with due process of law. E. g., Irvin v. Dowd, 366 U.S. 717 . But invalidation of a proceeding so infected is not the only remedy available to combat interference with judicial processes; so to hold would confer a right to frustrate those processes with impunity. And so it is that this Court has uniformly upheld the power of courts to protect themselves by citations for contempt from improper influence upon proceedings before them. Sustaining this power against a claim of freedom of speech in Patterson v. Colorado, supra, 205 U.S., at 463 , Mr. Justice Holmes wrote: "When a case is finished, courts are subject to the same criticism as other people, but the propriety and necessity of preventing interference with the course of justice by premature statement, argument or intimidation hardly can be denied." The right of free speech, strong though it be, is not absolute; when the right to speak conflicts with the right to an impartial judicial proceeding, an accommodation must be made to preserve the essence of both. Thus in Bridges v. California, supra, 314 U.S., at 271 , the Court said:
The Court professes to recognize these principles. It holds nevertheless that the contempt sanction cannot be applied in this case, arguing both that "the limitations on free speech assume a different proportion when expression is directed toward a trial as compared to a grand jury investigation," ante, p. 390, and that the findings of clear and present danger are unsupported by the record. I cannot agree with either proposition.
The grand jury is an integral part of the judicial process, Levine v. United States, 362 U.S. 610, 617 ; Gates v. State, 73 Ga. App. 824, 826, 38 S. E. 2d 311, 312; contempt sanctions are available to protect its functions. Levine v. United States, supra. Congress has recognized the need for safeguarding the deliberations of federal grand juries by making it a crime to attempt to influence a federal grand juror by extrajudicial communication. 1 Even [370 U.S. 375, 398] assuming that a State may constitutionally permit a grand jury, unlike a petit jury, to be influenced by extrajudicial statements, a question, explicitly left open in Beck v. Washington, 369 U.S. 541, 546 , it certainly does not compel them to that course.
The Court does not dispute this. But, says the Court, no individual is on trial here; and "When the grand jury is performing its investigatory function into a general problem area, without specific regard to indicting a particular individual, society's interest is best served by a thorough and extensive investigation, and a greater degree of disinterestedness and impartiality is assured by allowing free expression of contrary opinion." Ante, p. 392. This, however, is surely a policy decision with respect to which a State may legitimately take a different view. The Court does not suggest that Georgia was attempting to use the mantle of judicial proceedings in order to insulate the transaction of nonjudicial business from criticism; investigation is a traditional function of the grand jury. I see no reason why the State cannot determine for itself what shall and what shall not be considered by grand jurors in conducting any of their traditional tasks. Moreover, it is not the fact that individual rights were not at stake in this proceeding. The judge charged the jury:
It is not suggested that in declaring that grand jurors shall be protected from improper "outside" influence [370 U.S. 375, 399] Georgia has improperly departed from her own prior law. Nor could it well be maintained that the Georgia courts undertook to judge petitioner's conduct in terms of something other than the Bridges clear and present danger standard. The Georgia Court of Appeals held:
Accepting as I do for present purposes the Bridges test, this conviction must be upheld if the record supports the inference of clear and present danger.
That test is amply met here. Petitioner, a public official connected with the court, accused, from his office in the courthouse, the Superior Court judges of fomenting race hatred; of misusing the criminal law to persecute and to intimidate political and racial minorities; of political naivete, racial prejudice, and hypocrisy. He [370 U.S. 375, 400] compared the calling of the grand jury to the activities of the Ku Klux Klan. He made an undisguised effort to influence the outcome of the investigation by declaring that only the politically naive could believe Bibb County Negroes might be guilty of selling votes. It was stipulated that both of petitioner's formal statements were read by the grand jurors during the course of their investigation.
The Court considers this evidence insufficient because there was no showing of "an actual interference with the undertakings of the jury," that the jurors "felt unable or unwilling to complete their assigned task because petitioner `interfered' with its completion," that "the investigation was not ultimately successful or, if it was not, that the petitioner's conduct was responsible for its failure." Ante, p. 387. Surely the Court cannot mean that attempts to influence judicial proceedings are punishable only if they are successful. Speech creating sufficient danger of an evil which the State may prevent may certainly be punished regardless of whether that evil materializes. See Feiner v. New York, 340 U.S. 315, 320 -321. Indeed, the test suggested by the Court is even more stringent than that which it applies in determining whether a conviction should be set aside because of prejudicial "outside" statements reaching a trial jury. In such cases, although the question is whether the rights of the accused have been infringed rather than whether there has been a clear and present danger of their infringement, it is necessary only to show a substantial likelihood that the verdict was affected, and it is no answer that each juror expresses his belief that he remains able to be fair and impartial. Irvin v. Dowd, supra, 366 U.S., at 728 ; cf. Marshall v. United States, 360 U.S. 310, 312 -313; Spano v. New York, 360 U.S. 315, 324 . The test for punishing attempts to influence a grand or petit jury should be less rather than more stringent. [370 U.S. 375, 401]
I cannot agree with the Court that petitioner's statements would have been likely to affect the outcome of the investigation "only if the charge was so manifestly unjust that it could not stand inspection." Ante, p. 391. This is to discredit the persuasiveness of argument, which the Court purports to value so highly. Any expression of opinion on the merits of a pending judicial proceeding is likely to have an impact on deliberations. In this instance that likelihood was increased by two factors which were not present in Bridges, Pennekamp, or Craig, in which the Court held the evidence insufficient to show clear and present danger. None of those cases involved statements by officers of the court; and all concerned statements whose alleged interference was with the deliberations of a judge rather than a jury. Georgia law requires the sheriff to execute and return court processes and orders and to preserve order during sessions of the courts. Ga. Code Ann., 1959, 24-2813. Petitioner was thus a law-enforcement officer, whose office was in the very courthouse where the grand jury was sitting. Whether or not he issued the statements "in his capacity as sheriff," and whether or not the contempt citation alleged it, his words assumed an overtone of official quality and authority that lent them weight beyond those of an ordinary citizen.
Of equal if not greater importance is the fact that petitioner's statements were calculated to influence, not a judge chosen because of his independence, integrity, and courage and trained by experience and the discipline of law to deal only with evidence properly before him, but a grand jury of laymen chosen to serve for a limited term from the general population of Bibb County. It cannot be assumed with grand jurors, as it has been with judges, Craig v. Harney, supra, 331 U.S., at 376 , that they are all "men of fortitude, able to thrive in a hardy climate." What may not seriously endanger the independent deliberations [370 U.S. 375, 402] of a judge may well jeopardize those of a grand or petit jury. See Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 920 (opinion of FRANKFURTER, J.).
Moreover, the statements themselves were of such a nature as to distinguish this case from Bridges, Pennekamp, and Craig. It cannot be said here, as it was in Bridges, that petitioner's charges of racial bias, hypocrisy, political intimidation, persecution, and political naivete, and his comparison of the judges with the Ku Klux Klan, "did no more than threaten future adverse criticism which was reasonably to be expected anyway," or that "if there was electricity in the atmosphere, it was generated by the facts; the charge added by the . . . [petitioner's statement] can be dismissed as negligible." 314 U.S., at 273 , 278. The sheriff's remarks were not, as in Pennekamp, 328 U.S., at 348 , general criticisms with respect to rulings already made, but specific attacks directed toward the disposition of the pending investigation. They cannot be characterized, as in Craig, 331 U.S., at 374 -375, as merely unfair reports of the activities of others; unlike the editorial in that case, id., at 376-377, petitioner's criticisms went squarely to the merits of the investigation and impugned as well the motives and honesty of those conducting it. I do not understand how it can be denied that a grand juror, reading in the course of this investigation the sheriff's statement that the judges who instructed the grand jury to undertake it were racial bigots making discriminatory use of the laws for purposes of political repression, and that the charges themselves were incredibly false, might well be influenced in his deliberations.
The petitioner's last formal statement, which he and the Court characterize as a "defense," was also properly found to constitute a contempt. Defenses, like charges, should be presented to a court judicially and not through the public press. But in fact the affirmance of petitioner's conviction was not based at all on the allegation [370 U.S. 375, 403] that this defense interfered with his trial for contempt. Rather, the Court of Appeals held that this further statement had been made "in an apparent effort to hamper the grand jury which was still considering the charges given it by the court." 103 Ga. App., at 321, 119 S. E. 2d, at 273. This conclusion, based on the repetition of a number of petitioner's previous statements and the allegation that they were true, 2 was clearly justified. [370 U.S. 375, 404]
Finally, petitioner's case is not saved by the fact that both he and the judges he attacked are elected officials, or by the fact that the statement concerned an issue of some political moment. There was ample opportunity to bring the judges' performance to the voters after the investigation was closed. "Political interest" cannot be used as an excuse for affecting the result of a judicial inquiry.
I would affirm.
[ Footnote 1 ] "Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined not more than $1,000 or imprisoned not more than six months, or both.
[ Footnote 2 ] Petitioner's last statement was as follows: