Opinion
20984.
ARGUED SEPTEMBER 15, 1960.
DECIDED OCTOBER 6, 1960. REHEARING DENIED OCTOBER 18, 1960.
Contempt; constitutional question. Fulton Superior Court. Before Judge Pye. April 22, 1960.
B. P. Gambrell, John E. Dougherty, W. Glen Harlan, Edward W. Killorin, for plaintiff in error.
Paul Webb, Solicitor-General, J. Walter LeCraw, contra.
1. The power to punish contempts is inherent in every court of record. If the court is created by the Constitution, the legislature cannot, without express constitutional authority, define what are contempts and declare that the court shall have jurisdiction over no acts except those specified.
(a). A statute which attempts to invade the constitutional power of the courts to preserve and enforce their constitutional powers is not binding upon such courts.
2. (a) Freedom of speech and of the press, as guaranteed by the Constitution, is essential to the preservation of a free society; but its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution.
(b) The press should be given the widest latitude possible in the exercise of its freedom which is consonant with the orderly administration of justice, trial by a fair and impartial jury, and the freedom and independence of the courts in the exercise of their constitutional powers and duties.
3. A responsible press, appreciating as it must the great power of the press in a democratic society, should refrain from publishing and distributing news articles which, in the normal course of events would, or which it could reasonably anticipate would, interfere with the trial of a criminal case by an impartial jury; and to do so may subject it to punishment for contempt of court.
4. (a) A jury in a criminal case must be kept together until the conclusion of the trial, but this is a privilege which the defendant may waive.
(b) If, during the trial, the jury is allowed to disperse, it is the duty of the court to instruct the jury not to discuss the case among themselves or with anyone else or to permit anyone to discuss it with them, not to read newspaper articles about the case, and not to listen to radio or television reports concerning the case during the recess of the court.
5. The publication of newspapers containing articles about a case on trial which are distributed after the trial has begun would not be calculated to come to the attention of the jurors trying the case, where the trial court is required to keep the jurors together until the conclusion of the trial, or, if he permits them to disperse, to admonish them not to read articles in the newspapers about the case. The publisher could not reasonably have anticipated that publication and distribution of his papers under such circumstances would interfere with a fair and impartial trial of the case, and he would not be in contempt of court for so doing.
ARGUED SEPTEMBER 15, 1960 — DECIDED OCTOBER 6, 1960 — REHEARING DENIED OCTOBER 18, 1960.
This case originated on a citation issued by Judge Durwood T. Pye, of the Superior Court of the Atlanta Circuit, against Atlanta Newspapers, Inc., directing it to show cause why it should not be held in contempt of court for publishing and distributing in Atlanta two newspaper articles, one appearing in the Atlanta Journal the afternoon of June 2, 1959, and the other in the Atlanta Constitution the following morning, during the trial in Fulton Superior Court of James Meriwether, charged with robbery, each article containing information about the defendant Meriwether as to previous convictions, describing him as "formerly Georgia's number one wanted man," self-admitted hold-up artist, etc., all of which would not have been admissible as evidence in the trial of his case. The facts are more fully set out in the decision of the Court of Appeals in Atlanta Newspapers, Inc. v. State of Ga., 101 Ga. App. 105 ( 113 S.E.2d 148), where that court reversed the judgment of the trial court overruling the defendant's general demurrer to the citation.
After the remittitur from the Court of Appeals was returned to the trial court and before and without making the judgment of the Court of Appeals its judgment, the trial court amended the original citation by adding thereto an allegation that the original citation was not brought under Code § 24-105, and by adding six additional counts to the citation. In the additional counts, the citation alleged that Code § 24-105 violated numerous provisions of the Constitution of the State of Georgia and alleged that copies of the newspapers containing the articles were distributed in the Fulton County courthouse during the trial of the case and that the reporters who wrote the articles and who were the agents of the defendant gathered information for the articles in the Fulton County courthouse and were in the court room during the trial of the case; that during the first day of the trial the court heard testimony of eight witnesses for the State and that before recessing at noon the court warned the jury not to discuss the case among themselves or to permit anyone to discuss the case with them during the trial of the case, which warning the court called to their attention prior to the recess of the case at the close of the day; that when the court reconvened the next day, after hearing evidence that certain of the jurors during the recess read the articles appearing in the papers, the court declared a mistrial in the case; that, after the court declared the mistrial, the defendant's agents and reporters were in the court room and interrogated the jurors; that 150 additional jurors were drawn and appeared for service the next day; and that, of the 150 jurors, the jury was selected with only seventeen unexamined and that many of them disqualified because of bias and prejudice from having read the articles.
The defendant filed a general demurrer to the amended citation and motion to strike, which was overruled and the case proceeded to trial. After hearing evidence which substantiated the allegations of the citation, the court found the defendant in contempt of court and fined it $20,000.
To the judgment of the court overruling the general demurrer and motion to strike and judgment finding the defendant in contempt of court, the defendant excepts.
1. This court denied certiorari in the original case ( Atlanta Newspapers, Inc. v. State of Ga., 101 Ga. App. 105, 113 S.E.2d 148) because we were of the opinion that the judgment of the Court of Appeals was correct. However, we did not agree with the reason upon which the decision was based. The Court of Appeals held that the respondent's demurrer to the citation should have been sustained because the citation did not allege misbehavior of the respondent in the presence of the court or so near thereto as to obstruct the administration of justice, as required by Code § 24-105. The Court of Appeals stated "that a publication made in a newspaper about a pending case cannot be contempt of court, so as to be summarily punishable, so long as Code § 24-105 . . . remains unamended by the General Assembly." The ruling of the Court of Appeals is in conflict with the ruling of this court in the unanimous opinion of Bradley v. State, 111 Ga. 168 (1,2) ( 36 S.E. 630, 50 L.R.A. 691, 78 Am. St. Rep. 157), which held: "1. The power to punish contempts is inherent in every court of record. If the court is created by the Constitution, the legislature cannot, without express constitutional authority, define what are contempts and declare that the court shall have jurisdiction over no acts except those specified.
"2. The provision of the Constitution which declares that `The power of the courts to punish for contempts shall be limited by legislative acts' does not confer such authority, but only the power to prescribe the punishment, after conviction. Consequently section 4046 of the Civil Code [ Code § 24-105], in so far as it seeks to limit the jurisdiction of a constitutional court to punish contempts to certain specified acts, is not binding upon such courts. They may go beyond the provisions of the statute, in order to preserve and enforce their constitutional powers by treating as contempts acts which clearly invade them."
This court in Cobb v. State, 187 Ga. 448 ( 200 S.E. 796), followed the ruling in the Bradley case, expressly refused to overrule it, and stated that it considered that opinion correct. See also In re Fite, 11 Ga. App. 665 (2) ( 76 S.E. 397). This court in McGill v. State of Ga., 209 Ga. 500 (2) ( 74 S.E.2d 78) recognized the inherent power of constitutional courts of this State to define and punish for contempt of court. The legislature cannot abridge or destroy the power of a constitutional court to punish for contempt. See 121 A.L.R. 210 and decisions cited.
2. The Constitution of Georgia in art. 1, sec. 1, par. 15 ( Code § 2-115) provides: "No law shall ever be passed to curtail, or restrain the liberty of speech, or of the press; any person may speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that liberty."
Freedom of speech and of the press, as guaranteed by the Constitution, is essential to the preservation of a free society; but its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution. The independence of the judiciary and the fair and impartial administration of justice are also necessary to a free society. In the words of John Adams in the first Constitution of Massachusetts, "It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there bean impartial interpretation of the laws, and the administration of justice."
The Constitution of Georgia in art. 1, sec. 1, par. 5 ( Code § 2-105) provides that every person charged with a criminal offense "shall have a public and speedy trial by an impartial jury," and the United States Constitution in art. 3, sec. 2 ( Code § 1-304), provides for trial by jury.
The determination of the proper balance between two basic constitutional rights — freedom of the press and fair and impartial administration of justice — as applied to the facts in this case, is our problem.
"The Constitution of Georgia guarantees the liberty of speech and of the press, but does not protect an abuse of that liberty," and, "Obstructing the administration of justice by the courts of this State is an abuse of that liberty and will subject the abuser to punishment for contempt of court." McGill v. State of Ga., 209 Ga. 500 (1), 503, supra. "No freedoms, including the freedoms of speech and press, are absolute," and, "Liberty of the press is subordinate to the independence of the judiciary and the proper administration of justice." Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74 (1, 3) ( 114 S.E.2d 421). The latter is necessarily true, for only in the courts can freedom of the press and other constitutional rights be preserved. "The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated." Pennekamp v. Florida, 328 U.S. 331, 355 ( 66 S. Ct. 1029, 90 L. Ed. 1295).
Unquestionably, the framers of both our State and Federal Constitutions intended to give to liberty of the press, freedom of speech, as well as to all other liberties, the broadest scope that could be countenanced in an orderly society.
The press should be given the widest latitude possible in the exercise of its freedom that is consonant with the orderly administration of justice, trial by a fair and impartial jury, and the freedom and independence of the courts in the exercise of their constitutional rights and duties.
A responsible press, appreciating as it must the great power of the press in a democratic society, should refrain from publishing and distributing news articles which, in the normal course of events would, or which it could reasonably anticipate would, interfere with the trial of a criminal case by an impartial jury; and to do so may subject it to punishment for contempt of court. In this instance, the article did not appear until after the jury had been impaneled and the trial had proceeded for the greater part of a day. The law requires that a jury in a criminal case be kept together until the conclusion of the trial ( Berry v. State, 10 Ga. 511, 512 (9)), unless counsel for both the State and the accused agree otherwise ( Buttersworth v. State, 200 Ga. 13 (1), 36 S.E.2d 301; Hannah v. State, 212 Ga. 313, 319, 92 S.E.2d 89), and then only after the court's admonishing the jurors that, not only should they not communicate with anyone about the case or permit anyone to communicate with them about it, but that they should not read newspaper articles or listen to radio or television broadcasts about the case, or, if necessary, not to read newspapers or listen to radio and television at all during recess. It is common knowledge that this is the usual practice in this State. In our opinion, the defendant newspaper corporation would not be required to have reasonably anticipated that the publication and distribution of the articles in question would have come to the attention of the jurors or have interfered with the trial of the Meriwether case by an impartial jury; for they had a right to expect that the jury would have been kept together until the conclusion of the trial or otherwise properly instructed upon being permitted to disperse. It was not necessary in the trial of this case to subordinate the freedom of the press in order to secure a trial by an impartial jury.
Accordingly, the citation as amended did not state facts sufficient to establish that the respondent was in contempt of court, and the trial court erred in overruling the general demurrer to the citation and in entering judgment finding the defendant in contempt of court and imposing a fine.
In view of the ruling here made, it is not necessary to pass upon numerous other questions raised.
Judgment reversed. All the Justices concur.