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MCGILL et al. v. STATE OF GEORGIA, by DAVIS, Solicitor-General.
Contempt. Before Judge Nichols. Floyd Superior Court. April 29, 1952.
DUCKWORTH, Chief Justice.
1. Article 1, section 1, paragraph 15 of the Constitution of Georgia guarantees the liberty of speech and of the press, but does not protect an abuse of that liberty.
2. Constitutional courts of Georgia have the inherent power to define as contempt misbehavior in the presence of the court or so near thereto as to obstruct the administration of justice, but such courts are without power to punish as for contempt the publishing in a newspaper of matters shown by the official records of the State relating to the enforcement of traffic laws when such publication in no wise obstructs the administration of justice in the courts.
Ralph McGill, Editor of The Atlanta Constitution, a morning newspaper in Atlanta with a general circulation throughout the State, and W. H. Fields, Managing Editor thereof, Were cited by Judge H. E. Nichols of the Superior Court of Floyd County to appear before said court and show cause why they should not be adjudged in contempt, said rule setting out that McGill and Fields did cause to be published in The Atlanta Constitution on April 21, 1952, an article which was delivered to and read by the judge of said court; that the article, by its language, tends to impede and embarrass and obstruct the due administration of justice of that court; that laid article constitutes a false, contemptuous, and defamatory reflection upon the court and its officers; that Fields and McGill were fully apprised of its falsity and contemptuous nature, and wilfully failed and refused to retract it, but persisted in allowing it to remain published as the truth; that the contemnors published other articles in regard to the matter; and that all of said articles and actions of Fields and McGill "constitute a false, contemptuous, and defamatory reflection upon the integrity of the court and its officers."
The alleged contemptuous portions of the articles attached to the rule as exhibits "A", "B", "C", and "D" were articles Written in regard to the disposition of traffic cases throughout Georgia counties as taken from a survey of the State Patrol records and the resulting statements and exceptions of Judge Nichols with reference to a traffic case in the City Court of Floyd County. Exhibit "A" is as follows: "Motorists who 'know the ropes' find easy ways and means of getting around traffic charges in many Georgia counties. A survey of State Patrol records shows, for instance . . . Troopers arrested a man in Floyd County (Rome) on charges of speeding, driving on the wrong side of the road and attempting to force the patrol car off the highway when they attempted to halt him. Records show they were unable to find the disposition of the case . . ." Exhibit "B" is an article from the newspaper about a statement of Judge Nichols in open court that he was considering issuing a contempt warrant against the reporter of the article above, and this article repeated the substance of the first one and stated why Judge Nichols took exception thereto. Exhibit "C" is an article in which it is stated that Judge Nichols denied threatening to cite the reporter for contempt, and this article gives a statement by Judge Nichols to reporters in regard to the traffic case in question, which explains that it was in the Floyd City Court and not the Superior Court, that a warrant was issued and bond was made in the sheriff's office, and that Judge Nichols felt that the Constitution story failed to bring out all the facts, and that he was calling upon the Constitution "to do just that." Exhibit "D" Was an article written in the Constitution quoting a telegram received from Judge Nichols by Editor Fields, in which he accused the Constitution of presenting a misleading and dishonest story and suppressing facts, and requested that "you publish the photographic record as furnished your reporters, on the front page of Friday's edition, with a black border giving it the same prominence that you gave the traffic ticket in your Wednesday's edition purporting to show no record in the case. I also request that you publish the statement that your reporters saw the records in this case and that the records speak for themselves. Otherwise I have no alternative but to conclude that you are acting in contempt of this court."
The respondents demurred to this rule on the ground: that it was issued by the court on its own motion without any information for contempt or written motion being filed in court on which to base same; that the facts alleged therein were based on facts which occurred outside of the presence of the court, and when taken in their entirety are not sufficient to authorize adjudicating the respondents in contempt; and that said rule should be dismissed because it amounts to restraining the liberty of speech and of the press, depriving the respondents of their right to speak and publish their sentiments on a matter of public interest in violation of art. 1, sec. 1, par. 15 of the Constitution of Georgia (Code, Ann., 2-115), and would amount to a violation of the equal-protection and due-process clauses of the 14th amendment of the United States Constitution and section 1 of the 1st amendment thereof, providing that Congress shall not abridge the freedom of speech and of the press, if the proceeding was allowed to proceed to a judgment for contempt.
The trial court, after hearing argument, overruled these demurrers on each and all grounds thereof, and error is assigned on these rulings. After a hearing on evidence the respondents were adjudged to be in contempt and exceptions here are also to that final judgment. An equal division of the Court of Appeals, sitting as a body, having occurred, Judges Gardner, Sutton, and Carlisle favoring reversal, and Judges Felton, Townsend, and Worrill favoring affirmance, the Supreme Court has jurisdiction of the matter under the authority of Code (Ann.) 2-3704, 2-3708.
In large measure the fate of individual freedom depends upon the maintenance of a free and independent press and independent courts with full power to compel obedience to court orders. These two in our system of popular government are given the high and noble mission of preserving freedom. Since the functions of the one complement the work of the other in the attainment of this common objective, it would be regrettable if, at any time a claim of excessive power by either as relates to the other should be allowed to create a conflict between them. If either could destroy the other, it would thereby pull down upon its own head a fortress dedicated to the protectiOn of the freedom not only of the individual citizen but that of the destroyer also. The present case requires a decision marking the dividing line between the respective powers and rights of both. To insure the benefits of a free press, the people of this State wrote into the Constitution article 1, section 1, paragraph 15 (Code, Ann., 2-115), which declares: "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." Libel is an abuse for which the laws of this State hold the press answerable in damages. 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. "The inherent power of the courts to punish any publication calculated to interfere with the administration of justice is not restricted by the constitutional guaranties of liberty of the press, for liberty of the .press is subordinate to the independence of the judiciary and the proper administration of justice. Liberty of the press must not be confounded with license or abuse of that liberty." 12 Am. Jur. 413, 32. "The power of the Courts to punish for contempt shall be limited by legislative acts." Constitution, art. 1, sec. 1, par. 20 (Code, Ann., 2-120). The legislature enacted Code 24-105, wherein it is sought to restrict the powers of the courts to issue attachments for contempt to those cases only where there has been misbehavior in the presence of the court or so near thereto as to obstruct the administration of justice. This court in Bradley v. State, 111 Ga. 168, 175 (36 S. E. 630), said: "The constitutional provision giving the legislature power to limit the power to punish for contempts does not authorize it to define or classify contempts, but only to fix the maximum amount of punishment to be imposed after the contempt has been adjudicated." It was further held in that case that, in so far as the legislature, by the above Code section, sought to limit the jurisdiction of a constitutional court to punish for contempts to certain, specified acts, it was not binding upon the courts, and that they may go beyond the provisions of that statute and preserve and enforce their constitutional powers
by treating as contempts "acts which clearly invade them." Yet, as stated in a special concurrence by Jenkins, J., in Cobb v. State, 187 Ga. 448, 453 (200 S. E. 796, 121 A. L. R. 210), at the time the above Code section was enacted constitutional courts had the inherent power to define all the acts specified in the Code section as contempt and to punish therefor, but this inherent power went no further, and in virtue of that inherent power the superior courts of this State and all constitutional courts have the power to punish as for contempt acts committed in the presence of the court or so near thereto as to obstruct the administration of justice by the courts. This definition of the limits of the power of courts to define contempt is in accord with the rule stated by the Supreme Court of the United States, wherein it is required that there must be a "clear and present danger to the administration of justice." Bridges v. California, 314 U. S. 252 (62 Sup. Ct. 190); Pennekamp v. Florida, 328 U. S. 331 (66 Sup. Ct. 1029, 90 L. ed. 1225); Craig v. Harney, 331 U. S. 367 (67 Sup. Ct. 1249, 91 L. ed. 1546). The rule at common law was broader than the rule in this State, and no doubt lawyers and judges have been led into error by considering the common law only without taking into account our constitutional guaranties of free speech and liberty of the press. Merely writing contemptuously about a judge is constructive contempt under the common law, but this rule is founded upon the theory that the judge is the representative of the king, who it is assumed can do no wrong and, hence, the acts of the judge are beyond question. Free speech and liberty of the press in our system of popular government are diametrically opposed to any theory that any public officer shall be immune to criticism and searching examination of his official conduct. The freedom of the individual might well depend upon the unshackled discussion of all matters affecting the public, especially the conduct of those who fill positions of public trust, and this includes the judges of our courts. Criticism of the conduct of a judge with respect to past cases or matters finally disposed of generally does "not constitute contempt, even though libelous." 17 C. J. S. 44, 30. Character of judges like the decisions of the court can not be strengthened by any defense that the judge in question might offer. It is more likely that his defense will weaken rather than strengthen either. Character is a quality of the soul and can not be destroyed by mere man. Reputation is the mirror through which character is reflected and may be me assured. If a worthy judge may employ contempt of court process to silence unjust criticism of his official conduct which stops short of obstructing the administration of justice, then this same rule would enable an unworthy judge to silence the press in its just criticism of his official conduct and, in this manner, unfaithfulness to public trust might never be known by those who have been betrayed. On the other hand, if the press is allowed to abuse with immunity its constitutional liberty by publications that obstruct the administration of justice by the courts, it will thereby destroy the only instrumentality to which it can appeal for the protection and preservation of its own liberty.
The rule for contempt here involved, which is set out in the statement preceding this opinion, shows on Ifs face that no grounds whatever to sustain a conviction for contempt existed. That rule is fatally defective in the following particulars: (1) The publications complained of were true. (2) They related to a matter in another court and in no wise referred to the court issuing the rule. Ormond v. Ball, 120 Ga. 916 (48 S. E. 383). (3) Even if they had been untrue and had related to the Superior Court of Floyd County, they would not have been grounds for contempt, in that they could not have obstructed or impaired the administration of justice in that court. (4) Since the space in the paper is the private property of the owners of the paper, the judge was utterly without power to require or compel publication therein without pay of the photograph which he requested them to publish.
The publication states plainly that it is taken from the records in the State Patrol office. Would anyone wish such public records kept by an agency of the government concealed from the public? Those records justify every conclusion stated by the reporter. The one traffic case in the jurisdiction of the court issuing the rule correctly states what the record kept by the State Patrol shows.
The court erred in overruling the demurrer to the rule, and this rendered the subsequent trial and sentences nugatory.
Chastain Parker, Solicitor-General, John W. Davis, Solicitor-General, Robert E. Coker, G. W. Langford, Fariss & Fariss, Shaw & Shaw, Gleason & Painter and Andrew Cain, contra.
Arnold, Gambrell & Arnold, James A. Branch and James Maddox, for plaintiffs in error.
Saturday May 23 04:18 EDT

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