The record-union., 1893-09-14
THE CONTEMPT CASE AND THE
RIGHT OF FREE SPEECH.

The facts and the decision in the con-
tempt case of the San Jose Mercury
should be clearly understood. The Supe-
riOr Court of Santa Clara County had on
trial an action for divorce. The court
ordered the trial to be held with closed
doors because the evidence would prob
ably be of filthy nature. 1t also ordered
that no public report or publication of
any character of the testimony in the case
be made
The next morning the Mercury in an
article referring to this court order pub
lished what purported to be a report of
the testimony of witnesses. The pub
Usher of the Mercury was cited to appear
for contempt, was found guilty and fined.
though he disclaimed any intention to
reflect upon the court or show contempt
for tribunal of the people of the State,
but protested that he exercised a consti-
tutional right in publishing fair and
true report of its proceedings.
On writ of certiorari the case was heard
by the Supreme Court. The respondent
replied that the court order was made
under the statute-Section 125, c. C. p,
authorizing the court in its sound discre-
ton to direct a private trial in cases of
divorce or breach of promise of marriage,
and to exclude witnesses from the hear
ing of the testimony. Also, that under
Section 1909, c. c. P, disobedience of any
lawful judgment, order or process OF
court, or any unlawful interference with
the process or proceedings Of court is
contempt.
The Supreme Court holds that the pub
. Usher was not party, witness or officer
of court in the trial, and as no order was
made excluding witnesses, that the ques-
tions therefore whether the court may
punish those over whom it has jurisdic-
tion for publishing an account of the pro-
ceedings after the making of the order,
and whether it is contempt to publish
such proceedings on the part of a news
paper after an order excluding witnesses
from the courtroom, must be eliminated
from consideration.
the case then comes down to the
ground on which the Superior Court
planted itself, that the evident purpose of
the statute is that in case OF divorce the
entire evidence shall be withheld from
publicity in the interest of the promotion
ofpublic morals.
The Supreme Court agrees with the Su-
perior Court that such policy is wise as
viii prevent publication such as referred
to. But it holds that the law quoted is
not subject to the construction given it
by the Superior Court.
Denial of the right to discuss the con-
duct OF public offices is opposed to the
genius of our institutions; on the con-
trary,
The greatest publicity TO the acts of those
holding positions Of public trust and the
greatest freedom in the discussion Of the pro-
eeeGinss OF public tribunals that is consistent
with truth and decency are regarded as essen
tal 10 the pubic welfare.
Abridgement of this right of discussion
must be found, if at all, in Limitations
expressly imposed by the law-making
power,o the right to exercise the author
ity claimed must be implied as essential
to the execution Of the powers conferred.
Had the Legislature intended to prohibit
the publication of proceedings in cases
tried with closed doors it would have
been easy for it to have declared its will
in express terms. 1t did not do so. The
right claimed by the Superior Court is
not essential to the execution of the au
thority conferred upon it by the section
of the code referred to.
The object of the statute was not to pro-
tect the public from revelation of filthy
details, but to secure decorum in trials
and protect witnesses OF refined sensibil-
tiles from trying ordeals.
The public have the right to know and
discuss all judicial proceedings, unless
there is express Introduction by constitu-