Evening star., 1936-02-12
COURT DECISIONS
=. HELD CONSISTENT
High Tribunals Conflictions
Seen Based on Different
Principles.
RY DAVID LAWRENCE.

Twice In tIRG ldol lO1 WAAoSAo
and critics who are adopting the New
Deal attitude toward the Supreme
Court-namely, that the courts opin-
ions are arbitrary and hence polltl-
cal-have pointed to instances OF al
legged contradiction between opin-
ions rendered this year and on pre-
vious occasions.
While there have always been and
probably always will be differences
of opinion in the court, as reflected
in their decisions, the fact remains
that an examination of these sup
posedly contradictory opinions usu-
ally shows that the cases either in
volved a different set of facts or that
conclusions were based on an en-
tirely different principle of consti-
tutional law.
1t is asserted, for instance. that
Justice Sutherland, who on Monday
of this week delivered, on behalf Of
unanimous Supreme Court. an opin-
ion upholding the freedom of the
press, joined in 1881 with three other
justices to dissent from the opinion
rendered by the five justices who up
held the freedom of the press.
1t is further asserted that the
5-to-4 decision Of 1881 now has
caused the minority to change its
mind and that hence similar prog
ress" might well be expected with
respect to issues such as were con-
tanned in the A. A. A.
Minority Accepts Decision.
But what are the facts? For one
thing, when once q principle Is set
tied by 5-to-4 decision, the minor
ity accepts it as binding upon them
In a subsequent case. That's the way
constitutional law is developed in
America. For instance, on January
. 6 of this year the Supreme Court,
by vote of 6 to 8. invalidated the
A. A. A. processing tax and on
January 13-iust seven days later
the rice millers' processing tax case
was settled by unanimous opinion.
Now, the majority of January 6 did
not change the minds of the minority.
They might well retain their original
views. But they recognized the bind
ing character of the precedent.
Entirely apart, however, from this
aspect concerning uniformity of prin-
ciple, there is to be found in reading
up the Minnesota gag" law case
that the issue there was vastly differ
ent from the one raised by the
Louisiana State tax law taxing news
papers. The Minnesota law was
aimed at newspapers primarily pub
fishing scandalous and defamatory
matter.
Justice Butler Dissents.
Justice Butler, who wrote the dis
senting opinion, said:
The recori shows, and it Is con-
ceded that defendants regular busi-
ness was the publication Of malicious.
scandalous and defamatory articles
concerning the principal public Off
GERS, leading newspapers of the city,
many private persons and the Jewish
race. 1t also showed that it was their
purpose at all hazards to continue
10 carry on the business.
In every edition, slanderous and
defamatory matter predominates to
the practical exclusion of all else.
Many of the statements are so highly
improbable as to compel a finding
that they are false. The articles them
selves show malice"
The dissenting justices insisted
that an ''insolvent publisher" against
whom the laws of libel could not
effectively operate, could damage the
property and liberty of the citizen.
mo iyaio 1o1l tIa%
was still adequate methods Of securing
redress and refused to consider the
Minnesota statue as valid. Chief
Justice Hughes said:
1T is recognized that punishment
for the abuse of the liberty accorded
to the press is essential to the pro-
lection of the public, and that the
common law rules that subject the
hbeler to responsibility for the public
odense, as well as for the private
injury, are not abolished by the pro-
lection extended in our constitutions
The law of criminal libel rests
upon that secure foundation. There
also is the conceded authority of
courts to punish for contempt when
publications directly tend to prevent
the proper discharge of judicial func-
tions."
Differed Only on Protection.
So, neither the majority nor minor
ity opinion in that Minnesota case
in any way doubted that limita tions
on the freedom of the press exist
II the laws of libel are violated. The
Supreme Court justices differed only
on the extent to which the citizen
could be protected from abuse by |
defamatory newspapers and on what |
remedy was available to him, and
there was not in the minority opinion
the slightest suggestion of a denial |
OF the freedom of the press, as popu-
larly understood. In the Louisiana |
case, on the other hand. the issue
turned on the right of a State to |
single out newspapers and punish |
them for hostile criticism
Another alleged contradiction was
commented on by critics last week |
when, by 6-to-3 decision, the ST. |
preme Court held that the North Da-
kota Tax Commission had used an |
arbitrary method of valuation of the |
Great Northern Railway property. |
This was contrasted with a 6-to-3
opnion-by the same justices in the
majority and minority-last June in
q telephone rate case.
Consistency in Cases.
Instead of inconsistency there was
consistency in these two cases. In the
one, the majority held that the North |
Dakota Tax Commission used an ar
bitrary method in valuing the Great |
Northern Railway property for pur-
poses Of taxation and, in the other,
the court held that the Maryland |
Utilities Commission in valuing the
property for the purpose OF rate-mak-
ing also used an arbitrary method.
The minority's objections were like