314 U.S. 252 (1941)
In 1937 and 1938, labor disputes in Los Angeles produced several publications that later became the basis for contempt proceedings in the Superior Court of Los Angeles County.1 Harry Bridges, president of the International Longshoremen's and Warehousemen's Union and West Coast director for the C.I.O., sent a telegram on January 24, 1938, to the Secretary of Labor criticizing a Superior Court injunction issued the previous day in a dispute between A.F. of L. and C.I.O. longshoremen locals.2 The telegram described the decision as outrageous, warned that enforcement would tie up the port of Los Angeles and the entire Pacific Coast, and stated that the union representing over 11,000 of 12,000 coastwise longshoremen did not intend to allow state courts to override the majority vote of members or the National Labor Relations Board. Portions of the telegram appeared in Los Angeles and San Francisco newspapers the following day.3
The Los Angeles Times published three editorials that also drew contempt citations.4 The first, appearing December 21, 1937, the day after a jury convicted twenty-two sit-strikers of assaulting a Douglas plant, praised the verdict and stated that Los Angeles county stood firm against union lawlessness.5 The second, published April 14, 1938, discussed the conviction of a former political figure eight days before the trial judge was scheduled to impose sentence.6 The third, published May 5, 1938, three days after two union members convicted of assault with a deadly weapon applied for probation, denounced the defendants as gorillas and declared that Judge A.A. Scott would make a serious mistake if he granted probation rather than sending them to the jute mill.7
The Superior Court adjudged the Times-Mirror Company and its managing editor L.D. Hotchkiss guilty of contempt for the three editorials and fined the company $500 in total and Hotchkiss $100.8 It also adjudged Bridges guilty of contempt for the telegram and fined him $125.9 The California Supreme Court affirmed the convictions in two separate opinions.10 The United States Supreme Court granted certiorari in both cases because of the importance of the constitutional questions presented.11
Whether out-of-court newspaper editorials and a labor leader's telegram commenting on pending litigation may constitutionally be punished as contempt by a state court?12
The First Amendment, made applicable to the states through the Fourteenth Amendment, protects out-of-court publications commenting on pending cases unless those publications create a clear and present danger of bringing about a substantive evil, specifically the obstruction of the fair and orderly administration of justice.13
No. The established facts demonstrate that the publications at issue created no such danger.14 In 1937 and 1938 labor disputes in Los Angeles generated the publications that later produced contempt proceedings in the Superior Court of Los Angeles County.15 Harry Bridges, president of the International Longshoremen's and Warehousemen's Union, sent a telegram to the Secretary of Labor on January 24, 1938, criticizing an injunction issued the previous day; the telegram described the decision as outrageous, warned that enforcement would tie up the port of Los Angeles and the entire Pacific Coast, and stated that the union did not intend to allow state courts to override the majority vote of members or the National Labor Relations Board.16 Portions of the telegram appeared in Los Angeles and San Francisco newspapers the following day.
The Los Angeles Times published three editorials commenting on pending cases: one on December 21, 1937, praising a verdict against sit-strikers; one on April 14, 1938, discussing a political figure's conviction eight days before sentencing; and one on May 5, 1938, urging denial of probation for two union members convicted of assault.17 The Superior Court adjudged the Times-Mirror Company, its managing editor, and Bridges guilty of contempt and imposed fines totaling $500 for the company, $100 for the editor, and $125 for Bridges.18 The California Supreme Court affirmed the convictions.19 Upon review, the publications did not create a clear and present danger because the telegram announced no illegal course of action, the editorials threatened only future criticism that was already expected, and the possibility of actual influence on the judges was negligible given the public nature of the controversies and the firmness of the judicial process.
The contempt convictions violate the First Amendment and must be reversed.20
Related opinions on this issue
Joined by The Chief Justice, Mr. Justice Roberts, And Mr. Justice Byrnes
Justice Frankfurter dissented on the ground that the historic power of state courts to punish publications having a reasonable tendency to interfere with the impartial administration of justice in pending cases is consistent with the Due Process Clause of the Fourteenth Amendment.21 He maintained that the majority's application of the clear and present danger test improperly deprives the states of a traditional means of protecting the judicial process from coercive outside pressure.22 Frankfurter emphasized that the Bridges telegram constituted a direct challenge to the court.23
The May 5 editorial amounted to a sustained demand that the judge impose a particular sentence.24 California should be permitted to restrain both in order to preserve the conditions necessary for fair adjudication.25
Whether the First Amendment, as applied to the states through the Fourteenth Amendment, permits punishment of publications on the basis of their inherent or reasonable tendency to interfere with the administration of justice in a pending case?26
The First Amendment prohibits punishment of publications unless the substantive evil sought to be prevented is extremely serious and the degree of imminence is extremely high; the reasonable tendency or inherent tendency test is constitutionally insufficient.27
No. The California courts explicitly relied on the reasonable tendency of the publications to interfere with the administration of justice, a standard the First Amendment rejects.28 The established facts show that the editorials and telegram were published while cases remained pending, yet the likelihood that they would actually obstruct justice was not sufficiently imminent or serious.29 The Bridges telegram announced a possible strike that California law did not prohibit, and the editorials expressed views that a judge could reasonably anticipate from the newspaper's prior labor coverage.3031 Because the degree of imminence fell short of the clear and present danger threshold, the reasonable tendency standard cannot justify the contempt convictions.32
The First Amendment does not permit punishment of publications on the basis of reasonable tendency alone.33
Related opinions on this issue
Joined by The Chief Justice, Mr. Justice Roberts, And Mr. Justice Byrnes
Justice Frankfurter dissented on the ground that the reasonable tendency test is the historic and appropriate standard for determining when publications may be punished as contempt.34 He argued that the phrase clear and present danger is merely an expression of tendency and does not displace the long-established authority of courts to protect pending proceedings from coercive interference.35 Frankfurter concluded that the California courts properly applied the reasonable tendency formulation to the specific facts of the editorials and telegram.36
The Due Process Clause permits states to retain this traditional safeguard for impartial adjudication.37