Tuesday, August 2, 2005
Page 7
PERSPECTIVES (Column)
County Bar Does Battle With Harry Bridges, Los Angeles Times
By ROGER M. GRACE
In the late 1930s, Harry Bridges was the head of the International Longshoremen-Warehousemen Union. He was left-leaning, frequently identified as a Communist. The Los Angeles Times, by contrast, was a newspaper with a conservative bent, decidedly antagonistic to organized labor. Despite their disparate outlooks, Bridges and the Times had something in common:
Both were pursued by the Los Angeles Bar Assn. for contempt of court based on their public utterances concerning pending proceedings.
In separate cases, both were found in contempt in Los Angeles Superior Court, and the California Supreme Court affirmed part of the judgment against each. The United States Supreme Court heard the two cases together.
As recounted here a week ago, the County Bar had been on a crusade to stamp out comments on pending court cases, securing the 15-day incarceration of a radio minister, adjudications that the publisher and two editors of a daily newspaper, the Los Angeles Record, were in contempt, and instigating proceedings against two local union officials.
Contempt proceedings were instituted against Bridges based on the affidavit of the executive secretary of the Los Angeles Bar Assn., J. Louis Elkins, and affidavits of the Los Angeles Superior Court’s clerk and two of his deputies.
Bridges’ supposed offense was sending a telegram on Jan. 24, 1938 to the U.S. secretary of labor, with copies disseminated to reporters by the union’s publicist. The telegram protested the “outrageous” decision by Los Angeles Superior Court Judge Ruben S. Schmidt to have a receiver put in charge of a hiring hall in San Pedro, and warned of the prospect of tie-ups at the docks.
Three lawyers who represented Elkins were appointed by the judge presiding over the contempt proceeding, Edward T. Bishop, to conduct the prosecution.
Bishop found that the labor leader was in contempt, sentencing him to a $125 fine or five days in jail, and Bridges sought review of that decision.
The California Supreme Court, in a 5-1 opinion, affirmed the judgment of contempt on Oct. 16, 1939 in an opinion by Justice Jesse W. Curtis. It rejected Bridges’ argument that the proceeding was subject to comment with impunity because it was concluded. A motion for new trial and a motion to vacate the judgment were impending, Curtis’s opinion noted. Bridges’ contention that he had a First Amendment right to voice views on the court’s decision was brushed aside.
The opinion pointed out that cases had held “that if the publication or act in question had a ‘reasonable tendency’ to interfere with the orderly administration of justice in pending actions before judicial tribunals, it amounted to a contempt of court and might be punished as such.”
If Bishop thought that press reports of the content of the telegram would have a “reasonable tendency” to induce his colleague Schmidt to alter his decision in response to possible public reaction, well, Bishop apparently viewed his colleague Schmidt as being low in fortitude.
The question that loomed was whether punishment for contempt stemming from speech concerning a court proceeding could constitutionally be predicated on a vague and subjective “reasonable tendency” standard.
Elkins also executed the charging affidavit which triggered a contempt proceeding based on five editorials in the Times. It was filed June 3, 1938, and an order to show cause re contempt was issued by the court that same day. A demurrer was sustained as to two of those counts. Two other charges were added after Elkins executed a second affidavit complaining of editorials which scored the County Bar for instigating the proceeding.
The Associated Press reported on Aug. 26, 1938:
Times-Mirror company, publisher of the Los Angeles Times, prepared for an extended legal battle today over conviction of the newspaper and two executives of contempt of court for publishing editorials commenting on various court cases.
The Times was held in contempt on five counts late yesterday by Superior Judge Emmet Wilson. Immediately, T. B. Cosgrove, counsel for The Times, announced an appeal and said the case would be carried to the United States supreme court, If necessary, because of the principles of freedom of speech and freedom of the press involved.
Judge Wilson’s decision found the corporation guilty on all five counts. He fined it $300 on one count and $100 each on the other four.
In addition, President Harry Chandler was convicted on two counts and fined $100 on each and Managing Editor L. D. Hotchkiss, also found guilty on two counts, was fined $100 on one and $50 on the other.
The wire service account went on to say:
Contempt was alleged by the Los Angeles bar association committee which asserted that editorial comment on a court case is not permissible until an action is finally concluded.
In overruling a Times demurrer recently, Judge Wilson contended that contempt is committed when newspaper comment might have influenced a judge or caused the judge a doubt in his own mind as to whether he had been unconsciously swayed by it.
When commentary has an “inherent tendency” to produce such an effect, Wilson found, it’s contemptuous.
If either that standard or the “reasonable tendency” standard prevailed in these times, former Los Angeles District Attorney Robert Philibosian and criminal defense attorney Leslie Abramson, who commented on the O.J. Simpson case on ABC television, and thousands of others who publicly analyzed the proceedings while in progress, either on the air or in print, would have run the risk of being jailed for contempt. Discussion of the sort freely taking place in living rooms, barbershops, beauty salons, restaurants, bars, and schoolyards could not have occurred in newspapers or on radio or television except at the peril of the publisher or broadcaster.
If this or any other newspaper commented adversely on a California appellate court opinion upon issuance, it would have given rise to a contempt citation under either standard based on the non-finality of the opinion for 30 days. In fact, even praise for an opinion just-issued could have been viewed as a contempt based on its supposed discouragement of a grant of rehearing to the losing party.
Standing by its “reasonable tendency” test, the California Supreme Court on Jan. 31, 1940, in a 5-2 decision, affirmed the contempt adjudication of the Times on Counts 1, 3 and 6 and against Hotchkiss on Count 1.
It scrapped the other two counts, stemming from Elkins’ second charging affidavit.
Foremost among the three surviving charges was that the Times had expressed the view in an editorial entitled “Probation for Gorillas?” that a Los Angeles judge should deny probation to two convicted union “thugs.” Dave Beck, referred to in the editorial, was at the time organizer of the Teamsters union on the West Coast (later national president of the union, and later a prison inmate, convicted of grand larceny).
The May 5, 1938, editorial said, in full:
Two members of Dave Beck’s wrecking crew, entertainment committee, goon squad or gorillas, having been convicted in Superior Court of assaulting nonunion truck drivers, have asked for probation. Presumably they will say they are “first offenders,” or plead that they were merely indulging a playful exuberance when, with slingshots, they fired steel missiles at men whose only offense was wishing to work for a living without paying tribute to the erstwhile boss of Seattle.
Sluggers for pay, like murderers for profit, are in a slightly different category from ordinary criminals. Men who commit mayhem for wages are not merely violators of the peace and dignity of the State; they are also conspirators against it. The man who burgles because his children are hungry may have some claim on public sympathy. He whose crime is one of impulse may be entitled to lenity. But he who hires out his muscles for the creation of disorder and in aid of a racket is a deliberate foe of organized society and should be penalized accordingly.
It will teach no lesson to other thugs to put these men on good behavior for a limited time. Their “duty” would simply be taken over by others like them. If Beck’s thugs, however, are made to realize that they face San Quentin when they are caught, it will tend to make their disreputable occupation unpopular. Judge A. A. Scott will make a serious mistake if the grants probation to Matthew Shannon and Kennan Holmes. This community needs the example of their assignment to the jute mill.
(A.A. Scott is the first judge I ever saw on the bench. It was in the late 1950s. He was presiding over a divorce case involving my aunt and her husband, Jerome B. Rosenthal, a lawyer who was ultimately disbarred. Scott was a crotchety, maladjusted, biased, injudicious jackass. But if he was not influenced by commonly accepted standards of judicial conduct, I cannot imagine that he would have cowed to opinions expressed in Times editorials.)
Writing
for the high court’s majority, Curtis said:
[L]ittle is said, or can be said, in defense of the publication of this editorial. Among other things, it calls by name the judge before whom the action was pending, and directly charges that the judge will make a serious mistake if he grants probation to the two convicted defendants. The editorial as a whole is a striking example of a ‘premature statement, argument, and intimidation’ respecting the case on trial….
Curtis went on to conclude
that the editorial “referred to an action which was then pending in court, and
the statements contained therein were calculated to and had a reasonable
tendency to influence the proceedings in said action, and to interfere with the
proper administration of justice by the court in which said action was
pending.”
The other two editorials were comprised of praise of a jury’s decision in convicting 22 strikers for property offenses (they had not yet been sentenced) and reflections on the downfall of a political figure, convicted of corruption (she had filed a motion for new trial).
The United States Supreme Court took up the Bridges and Times cases. A Washington columnist, Bruce Catton, on Oct. 16, 1940 wrote about the Times case, relating:
In an amicus curiae brief filed by Elisha Hanson, attorney for the American Newspaper Publishers’ association, the manner in which the contempt cases were instigated is caustically reviewed.
The Los Angeles Bar association petitioned for the contempt proceedings, says Hanson’s brief, because of long-standing dissatisfaction with the Times’ editorial policy, and following an extended search of the paper’s editorial columns “in the hope that something would turn up to support a charge of contempt.” The brief adds:
“In effect, the bar association had set itself up as a self-appointed public censor of the press. Such a ‘pervasive threat’ would impose an intolerable restraint upon the press.”
Should a bar association committee be recognized as a proper means of starting a contempt proceeding in such circumstances, the brief asserts, “then the door will be opened to other agencies with alleged grievances against the press and the constitutional guarantee will be whittled away by subsequent encroachments.”
Justice Hugo Black wrote for the 5-4 majority in reversing all contempt adjudications.
Commentary on a pending case can constitute a contempt of court only where it creates a “clear and present danger” to the administration of justice, he declared, adding that “neither ‘inherent tendency’ nor ‘reasonable tendency’ is enough to justify a restriction of free expression.”
Even if it were enough, Black said, it did not appear that either standard was met in the cases before the court.
As to Bridges’ telegram, he said it appeared that the finding of contempt was based not on the use of the word “outrageous,” but was predicated on the warnings of tie-ups at the docks should the decree be enforced. At most, Black said, he was threatening a strike and, since strikes were legal, and since a strike would not contravene the court’s decision, there was, in essence, no harm, no foul.
With respect to the editorial expressing the hope that Scott would deny probation, Black said that to view that as having a “substantial influence upon the course of justice would be to impute to judges a lack of firmness, wisdom, or honor, which we cannot accept as a major premise.”
The view that commentary on a case must await the conclusion of all proceedings—the position advanced with fervor by the County Bar—was rebuffed. Black wrote:
No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression. Yet, it would follow as a practical result of the decisions below that anyone who might wish to give public expression to his views on a pending case involving no matter what problem of public interest, just at the time his audience would be most receptive, would be as effectively discouraged as if a deliberate statutory scheme of censorship had been adopted. Indeed, perhaps more so, because under a legislative specification of the particular kinds of expressions prohibited and the circumstances under which the prohibitions are to operate, the speaker or publisher might at least have an authoritative guide to the permissible scope of comment, instead of being compelled to act at the peril that judges might find in the utterance a ‘reasonable tendency’ to obstruct justice in a pending case.
The decade-long vigilantism of the Los Angeles Bar Assn. in seeking imposition of contempt sentences on those who spoke out on pending cases thus came to an end.
Copyright 2005, Metropolitan News Company