State v. Bee Publishing Co.

Sullivan, J. This proceeding for contempt, instituted by the attorney general at the request of the court, is based upon certain newspaper articles relating to the case of State v. Kennedy, 60 Nebr., 300, which was, at the time of the publications, pending before us for decision. The defendant is a corporation engaged in the publication, of a newspaper which has a general circulation throughout the state. The editor is Edward Rosewater, who has also been cited to show cause why he should not be punished for contempt, and who has, at his own request, been awarded a separate trial. Some of the articles were obviously designed to prevent one member of the court from participating in the decision, while others threatened two members of the court with public odium and reprobation in case they should give judgment in favor of the state. One article, which was entitled “Worthy of Serious Consideration,” after declaring that Judge Holcomb, before coming to the bench, had expressed an opinion upon the question involved in the Kennedy Case, proceeds as follows: “Having prejudged the case, Judge .Holcomb must certainly realize that it would be in conflict with the spirit, if not the letter, of the constitution and the laws for him to use his judicial position to sustain himself in his former declarations. To set the precedent by participating in this case, after having formed and expressed an opinion, would lower the standard of the tribunal in which impartial and equal justice is expected to be administered and whose unbiased interpretation of the constitution is the bulwark of our free institutions.” Soon afterward the following article appeared: “Fusion ward heelers in Omaha are again giving advance tips to the effect that the fusion judges of the supreme court will hand down a decision at their sitting two weeks from next Tuesday, ousting the present fire and police commissioners and seating the pretended board appointed by Governor Poynter. Has it not come to a pretty pass — 294 — when supreme court decisions are retailed in this manner in third ward resorts and street corners?” A little later there was published an article entitled “Politics in the Courts” (reprinted from the Grand Island Journal), which is as follows: “It is reported that the fusionists in Omaha are preparing to profit by the action of the fusion supreme court when it reverses the ruling of the court in the fire and police commission case. If Judges Sullivan and Holcomb lend their aid to the scheme of the Omaha bunco steerers, they will be a disgrace to the legal profession and the laughing stock of every lawyer in the land. It is to be hoped that the fusion members of the supreme court will prove more manly than their heelers at the metropolis would have them be.” Another article, entitled “The Ethics of Justice,” published May 8, 1900, is too long for insertion in this opinion, but its character is sufficiently indicated by the following excerpt: “A due appreciation of the sacred duties of the judicial office and the inviolable right of every citizen to speedy and impartial justice should counteract all pressure of political partisans anxious to use the judicial ermine to cloak their schemes for political power and preferment. If it does not, then Nebraska’s motto, ‘Equality before the law,’ becomes a delusion and a snare.” Defendant appeared in court by counsel and defended the accusation against it upon the grounds: (1) that no disrespect to the court, or to any member of the court, was intended; (2) that the case of State v. Kennedy was not pending; and (3) that the publications were made with good motives, and were not calculated to obstruct the due administration of justice. The Kennedy Case was pending; of that we have judicial knowledge, and the defendant must surely have known that the case was in court and undetermined, for it appears that the attorney for the respondents brought his brief to Mr. Rosewater’s office and that the article headed “Worthy of Serious Consideration” immediately followed the meeting between the editor and the lawyer. It also — 295 — appears from the evidence that the article was written for the express purpose of calling public attention to the alleged impropriety of Judge Holcomb participating in the decision of the court. The first and third defenses are puerile. They amount only to a denial that the defendant intended to violate the law. Under the conceded facts the course pursued by it was indefensible; its conduct is not susceptible of an innocent construction. The statute declares that any willful attempt to obstruct the proceedings, or hinder the due administration of justice in any suit, proceeding or process pending before any court shall constitute a criminal contempt and be punishable as such. Code of Civil Procedure, sec. 669. This statute is merely declaratory of the law as it has existed for hundreds of years. It is a legislative recognition of the authority of the courts to deal in a summary manner with persons who do any wanton, deliberate or intentional act calculated to embarrass them in the discharge of their important duties. In the history of American jurisprudence there can be found no case in which this power has been harshly or oppressively exercised by a court of final jurisdiction. Indeed, such courts have not often called publishers to account for constructive contempts, because it has rarely happened that a public journal, wielding any considerable influence, has deliberately employed outlaw methods in attempting to control judicial action. The exceptional cases which we have examined are these: People v. Stapleton, 18 Colo., 568; People v. Wilson, 64 Ill., 195; In re Hughes, 43 Pac. Rep. [N. Mex.], 692; State v. Morrill, 16 Ark., 384; State v. Faulds, 17 Mont., 140; State v. Frew, 24 W. Va., 416. Cases of this kind originating in the lower courts are very numerous. We will not take the time to cite them or any of them. As said by the supreme court of Iowa in the case of Field v. Thornell, 106 Ia., 7, 15, it seldom happens “that an honorable journalist so far forgets his self-respect as to trespass upon the rights of the judiciary, or seek to control or improperly influence its conclusions.” — 296 — We have, of course, no desire to restrain, in the slightest degree, the freedom of the press or to maintain the dignity of the court by inflicting penalties on those who may assail us with defamatory publications. Our decisions and all our official actions are public property, and the press and the people have the undoubted right to comment on them and criticise and censure them as they see fit. Judicial officers, like other public servants, must answer for their official actions before the chancery of public opinion; they must make good their claims to popular esteem by excellence and virtue, by faithful and ■efficient service and by righteous conduct. But while we concede to the press the right to criticise freely our. decisions when made, we deny to any individual or to any class of men the right to subject us to any form of coercion with the view of affecting our judgment in a pending case. In the Iowa case above cited it is said, p. 15: “Courts are constantly passing on questions affecting the life and liberty of the citizen, as well as the rights of property; and the freedom of the judiciary to investigate and decide is quite as important to the well-being of society as the freedom of the press.” “Men,” said one who knew them well, “are flesh and blood and apprehensive.” Pew stand unmoved by the clamor of the multitude. Various motives, of course, conspire to make people deny, and even to disguise from themselves, the fact that they are amenable, in any degree, to the force of popular opinion. But it is folly to deceive ourselves, and it is futile to attempt to deceive others. Threats of public clamor have before .now swayed the judgments and flexed the purposes of resolute men; and it will be well to remember that what has happened • may recur. Men have in the past yielded to the demands of an angry populace, and it is quite possible that they may yield again. Moral fiber is not stronger now than it ever was before. Courts are charged with the function of administering justice, and it is their duty not only to give to every suitor his de — 297 — mandable right, but to give him assurance that no banned and hostile influence shall operate against him while his cause is under consideration. A litigant is entitled not only to a just decision, but to a decision altogether' free from the suspicion of having been coerced. Nothing else will satisfy him; nothing less can fill the measure of his expectations. He has no standard with which to gauge judicial firmness; and if the court has been exposed to influences calculated, as in the Kennedy Case, to tell against him, he will not know whether an adverse decision is the voice of the law or an echo of the mob. Our views upon this matter are well expressed in the following excerpt from the opinion of Lawrence, O. J., in People v. Wilson, supra, p. 214: “A court will, of course, endeavor to remain wholly uninfluenced by publications like that under consideration, but will the community believe that it is able to do so? Can it even be certain in regard to itself? Can men always be sure of their mental poise? A timid man might be influenced to yield, while a combative man would be driven in the opposite direction. Whether the actual influence is on one side or the other, so far as it is felt at all, it becomes dangerous to the administration of justice. Even if a court is happily composed of judges of such firm and equal temper that they remain wholly uninfluenced in either direction, nevertheless a disturbing influence has been thrown into the council chamber which it is the wise policy of the law to exclude.” Equally pertinent are the following remarks of Elliott, J., in People v. Stapleton, supra, p. 580: “Judges are human; they are possessed of human feelings; and when accusations are publicly made, as by a newspaper article, charging them directly or indirectly with dishonorable conduct in a cause pending before them and about to be determined, it is idle to say that they need not be embarrassed in their consideration and determination of such cause, they will inevitably suffer more or less embarrassment in the discharge of their duties, according to the nature of the charges and — 298 — the source from which such charges emanate. When a judge tries and determines a cause in connection with which public charges against his judicial integrity have been published, the public as well as parties interested are frequently led by the publication of the charges to distrust the honesty and impartiality of the decision; and thus confidence in the administration of justice is impaired. It is not only important that the trial of causes shall be impartial, and that the decisions of the courts shall be just, but it is important that causes shall be tried and judgments rendered without bias, prejudice, or improper influence of any kind. It is not merely a private wrong against the rights of litigants and against the judges — it is a public wrong — a crime againstv the state — to undertake by libel or slander to impair confidence in the administration of justice. That a party does not succeed in such undertaking lessens his offense only in degree.” We feel quite sure that the publications here in question have not in the least deterred us from discharging with fidelity our duty in the case of State v. Kennedy. But they were manifestly intended to overawe and intimidate us. They appear to have been put forth for the purpose of preventing a decision in favor of the state. They were, under the circumstances, palpable acts of journalistic lawlessness, calculated to weaken the independence of the court and destroy confidence in its judgment. To justify them is to deny the supremacy of the law and assert the doctrine of newspaper absolutism. To admit that publishers may promote their interests in pending litigation by resorting to methods not available to others, is to strike down our much vaunted principle of “equality before the law” and to declare that journalists, who choose to become malefactors, are a privileged class and entitled as such to go unwhipped of justice. But the law recognizes no such distinction'; it never has recognized such a distinction. It . accords to publishers no rights but such as are common to all. They have just the — 299 — same rights as the rest of the community have, and no more. King v. Root, 4 Wend. [N. Y.], 113. A distinguished judge has said: “A man who speaks in a newspaper has no greater right than he who speaks out of it. A newspaper is no sanctuary behind which a person can shield himself for breaking the laws of the land.” We have not acted in this case out of any spirit of resentment. Indeed, we have no reason to feel specially aggrieved, for the offensive articles do not charge us, or any of us, with official misconduct. Their natural tendency, however, was to interfere with and obstruct the due administration of justice; and it was the unanimous opinion of the court, when the citation issued, that it was our duty to take notice of them and call the defendant to account. And it is still the judgment of the members of the court who take part in this decision that we acted wisely, and that we could not have ignored the defendant’s attempt to coerce our decision without being guilty of a craven faithlessness to duty. Whatever may have been the motive of the publishing company, its conduct was plainly unlawful. The articles in question did not, it is true, bring about a miscarriage of justice in the Kennedy Case, but their manifest tendency was in that direction. We can not escape the conclusion that the necessity for this proceeding has resulted from the fact that the services of the journalist were enlisted by interested parties to press upon the attention of the court, in a very important case, illegitimate arguments — reasons for a decision which, it is well understood, counsel could not, with propriety, advance. The defendant is guilty as charged in the information, and it is the sentence of the court that it pay a fine of $500 and the taxable costs. It will, however, have leave to move for a modification of the judgment during the present term upon showing that it has published a fair and truthful- account of the cause and occasion for this proceeding. Since the above was written it has been suggested that the testimony of Edward Rosewater was not intended to — 300 — be regarded as a part of the proceedings in this case. Granting that, our conclusions must remain unchanged. The guilt of the defendant is conclusively established without considering Mr. Rosewater’s testimony. Norval, O. J., for the reasons heretofore stated by him, having refrained from taking part in the hearing, offered no opinion.