Abstract

In 1941, Mr. Justice Black, writing for the Court in Bridges v. California, noted that if contempt proceedings based upon out of court publications can

be justified at all, it must be in terms of some serious substantive evil which they are designed to avert. … For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions.

Again, in 1946, a unanimous Court in Pennekamp v. Florida invoked the "clear and present danger" test to reject an attempt to utilize the contempt power to punish a newspaper editor for extended comment upon the failures of the judiciary. Invoking the authority of Mr. Justice Black, the Court noted:

Bridges v. California fixed reasonably well-marked limits around the power of courts to punish newspapers and others for comments upon or criticism of pending litigation.

And again, in 1946, in Craig v. Harney, the Court vindicated a newspaper that had vehemently attacked the competency and integrity of a local judge's handling of a particular case. The Court then stated:

The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it 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. … [t]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. (emphasis added)

One would have hoped that the comparatively plain standards set down by the Court would have put to rest the general problem of abuse of the contempt power by state trial judges. Yet with some regularity one finds in the reports an opinion of a court that ignores the Bridges line of cases and revives to some extent the common law of contempt by publication explicitly rejected by Mr. Justice Black's opinion.

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