Evening star., 1925-08-14
FREE COURTS
and
A FREE PRESS
By Judge Robert W. Winston.

/
In discussing a matter which to
some may be considered technical II
may be wise to point out the differ
ence between actual contempt OF
court and constructive contempt. Ac-
tual contempt generally occurs in the
presence of the judge-boisterous con-
duct or other like misbehavior, for ex-
ample. Constructive contempt on the
other hand occurs outside the judges
presence. Thus, when a Toledo news
paper criticized United States judge
and was fined S7700 by the judge
attacked acting as prosecutor. jury
and judge in his own case-this was
for constructive contempt.
Now, constructive crimes have al
ways been odious. 1t was of construc-
tive treason Robert Emmet was
speaking when he declared to the
Irish judges: IF all the innocent
gathered together in one place your
lordships might swim in it.
AnnulIed by Judges.
In America, by the very first
amendment guaranteeing freedom of
speech and of the press, the fathers
thought to put an end to construc-
tive contempt. But not so. The judges
practically annulled the amendment.
so far as relates to criticism Of
themselves or the courts. Congress
thereupon passed an act curtailing
the power of judges. This act pro
V!des that only misbehavior so near
court as to disturb it's deliberations
shall constitute contempt. But this
statute met the same fate as the
amendment-the Toledo newspaper
case so deciding, though Justice
Holmes dissented. Elsewhere | have
pointed out how common is the i'm
prisonment of editors for constructive
contempt, Josephus Daniels with
others serving a Jail sentence.
Now, when there is actual contempt
no one would deny the right of judges
to infiict condign punishment; other
wise, courts could not function. But
in constructive contempt no necessity
for summary action exists. Indeed, to
railroad" an editor to Jail, without a
trial, for expressing an honest opin-
ion on public question, seems quite
undemocratic. The Toledo editor was
never in the judges actual presence
and yet, according to the court. con
structively he was and constructively
misbehaved and constructively dis
turbed his honor's court-a ruling
points out in his dissent, would be i'm
possible.
Impairs Usefulness of Courts.
But in America the oversensitive
judge. doubtless deceiving himself
that he is not actuated by wounded
pride at all but merely maintaining
the dignity of courts. has hedged him.
self about with a kind of divinity
How far this unnecessary sensitive
ness OF American judges tends to i'm
pair the US sulness of courts no one
can tell. though the polling of six
million, or was it seven million, votes
by Roosevelt's party-organiz or
opposition to courts-is significant.
Naturally the question arises what
punishment shall be handed out to the
libeler of a Judge? Why the same
punishment, and in the same way, as
though the judge were a man in the
street or the President himself
Scandal agnatum-ScandaliZi the
great-played out in England a cen
tury ago: in America, however. lese
ma jeste still prevails. For instance, il
an American new paper of today crit
| icized judge it is punished without
any trial, whereas were it to libel the
President, the editor could not be
snatched up and summarily punished
In this latter case a grand jury would
find a bill, a petit jury would be i'm
paneled-an orderly trial conducted
all by an impartial judge. Why should
American judges. in immunity from
criticism, be in a class all by them
selves. above the President, above Con
| greSs and far above English judges
| Why. indeed shall a real man bother
| his head about criticism anyway
criticism but strengthening a jus
! cause?
| Protection for Press.
| The average citizen-neither red MOI
! olshevik-therefore expects two hand
maidens of orderly government fret
press and free courts-to compost
| their differences and function side b,
1 side. Recently, when the Clayton ac
was declared constitutional, peopl,
Everywhere breathed easier-the end o
constructive contempt seemed at hand
| For. if the Clayton act, providing fol
a jury trial even in cases where
striker" strikes contrary to a Cour
order. be constitutional. how mucl
! more binding the statute that no ont
shall be punished for contempt unles:
he misbehaves in the presence of th'
lcourt.
| Does not the Clayton decision imply
| the Washington court will shortly
protect the press as it has labor from
constructive contempt proceedings
thereby placing the judiciary on {
| level with the executive and legisla
| tive departments?
1 Copyright. 1925.)