The larger number of the readers of the great sensational newspapers live at or near the place of publication, where the half-dozen daily editions can be placed in their hands hot from the press. The news furnished in them is, for the most part, of distinctively local interest. In their columns the horizon is narrow and inexpressibly dingy. Detailed narrations of sensational local happenings, preferably crimes and scandals, are given conspicuous places, while more important events occurring outside the city limits are treated with telegraphic brevity. These papers constitute beyond question the greatest provincializing influence in metropolitan life.
The particular local functions of sensational journalism which bring it in close relation to the courts result from its self-imposed responsibilities as detective and punisher of crime and as director of municipal officials. So far as the latter are concerned, yellow journalism has apparently a good record. Many recent instances might, for example, be cited where these newspapers, acting under the names of “dummy” plaintiffs, have sought and obtained preliminary or temporary injunctions against threatened official malfeasance, or where they have instituted legal proceedings to expose corrupt jobbery. As to the actual results thus accomplished, other than the publicity obtained, the general public is not in a position to judge. Temporary injunctions granted merely until the merits of the case can be heard and determined are of no particular value if, when the trial day comes, the newspaper plaintiff fails to appear, the case is dismissed, and the temporary injunction vacated. On such occasions, and they are more frequent than the general public is aware, the newspaper takes little pains to inform its readers of the final results of the matter over which it made such hue and cry months before.
But, however fair-minded persons may differ as to the results actually obtained by these newspaper law enterprises in the civil courts, there is less room for difference of opinion as to the methods with which they are conducted. They are almost invariably so managed as to convey to the minds of their readers the idea that the decision obtained, if a favorable one, has not come as the result of a just rule of law laid down by a wise and fair-minded judge, but has been obtained rather in spite of both law and judge, and wholly because a newspaper of enormous circulation, championing the cause of the people, has wrested the law to its clamorous authority. The attitude of mind thus created is well exemplified in a remark made to me by a business man of more than ordinary intelligence, in discussing an injunction granted in one of these newspaper suits arising out of a water scandal: “Why, of course Judge ——— granted the injunction. Everybody knew he would. There is not a judge on the bench who would have the nerve to decide the other way with all the row the newspapers have made about it. He knows where his bread is buttered.”
II
One of the great features of counting-house journalism is its real or supposed ability in the detection and punishment of crime. Whether this field is a legitimate one for a newspaper to enter need not be discussed here. It goes without saying that an interesting murder mystery sells many papers, and if as a result of skillful detective work the guilty party is finally brought to the gallows or the electric chair, it is a triumph for the paper whose reporters are the sleuths. While such efforts, when crowned with success, are the source probably of much credit and revenue, there are various disagreeable possibilities connected with failure which the astute managers of these papers can never afford to overlook. While verdicts in libel suits are in this country generally small (compared with those in England), and the libel law itself is filled with curious and antiquated technicalities by which verdicts may be avoided or reversed, nevertheless there is always the possibility that an innocent victim of newspaper prosecution will turn the tables and draw smart money from the enterprising journal’s coffers. The acquittal of the person who has been thrust into jeopardy by newspaper detectives is obviously a serious matter for the paper. On the other hand, there are no important consequences from conviction except, of course, to the person condemned. Is it to be expected that the newspaper, under such circumstances, will preserve a disinterested and impartial tone in its news columns while the man in the dock is fighting for his life before the judge and jury? Is it remarkable that during the course of such a trial the newspaper should fill its pages with ghastly cartoons of the defendant, with murder drawn in every line of his face, or that it should by its reports of the trial itself seek to impress its readers with his guilt before it be proved according to law? that it should send its reporters exploring for new witnesses for the prosecution, and should publish in advance of their appearance on the witness stand the substance of the damaging testimony it is claimed they will give? that it should go even further, and (as was recently shown in the course of a great poisoning case in New York City, the history of which forms a striking commentary on all these abuses) actually pay large sums of money to induce persons to make affidavits incriminating the defendant on trial?
Unfortunately, too often these efforts receive aid from prosecuting officers whose sense of public duty is impaired or destroyed by the itch for reputation and a cheap and tawdry type of forensic triumph. Despicable enough is the district attorney who grants interviews to newspaper reporters during the progress of a criminal trial, and who makes daily statements to them of what he intends to prove on the morrow unless prevented by the law as expounded by the trial judge. A careful study of the progress of more than one great criminal trial in New York City would show how illegal and improper matter prejudicial to the person accused of crime has been ruled out by the trial court, only to have the precise information spread about in thousands upon thousands of copies of sensational newspapers, with a reasonable certainty of their scare headlines, at least, being read by some of the jury.
The pernicious influence of these journals upon the courts of justice in criminal trials (and not merely in the comparatively small number in which they are themselves the instigators of the criminal proceedings) is that they often make fair play an impossibility. The days and weeks that are now not infrequently given to selecting jurors in important criminal cases are spent in large measure by counsel in examining talesmen in an endeavor to find, if possible, twelve men in whose minds the accused has not been already “tried by newspaper” and condemned or acquitted. When the public feeling in a community is such that it will be impossible for a party to an action to obtain an unprejudiced jury, a change of venue is allowed to some other county where the state of the public mind is more judicial. It is a significant fact that nearly all applications for such change in the place of trial from New York City have been for many years based mainly upon complaints of the inflammatory zeal of the sensational press.
The courts in Massachusetts (where judges are not elected by the people, but are appointed by the governor) have been very prompt in dealing in a very wholesome and summary way with editors of papers publishing matter calculated to affect improperly the fairness of jury trials. Whether it be from better principles or an inspiring fear of jail, the courts of public justice in that state receive little interference from unwarranted newspaper stories. Some of the cases in which summary punishment has been meted out from the bench to Massachusetts editors will impress New York readers rather curiously. For example, just before the trial of a case involving the amount of compensation the owner of land should receive for his land taken for a public purpose, a newspaper in Worcester informed its readers that “the town offered Loring [the plaintiff] $80 at the time of the taking, but he demanded $250, and not getting it, went to law.” Another paper published substantially the same statement, and both were summarily punished by fine, the court holding that these articles were calculated to obstruct the course of justice, and that they constituted contempt of court. During the trial of a criminal prosecution in Boston a few years ago against a railway engineer for manslaughter in wrecking his train, the editor of the Boston Traveler intimated editorially that the railway company was trying to put the blame on the engineer as a scapegoat, and that the result of the trial would probably be in his favor. The editor was sentenced to jail for this publication. The foregoing are undoubtedly extreme cases, and are chosen simply to show the extent to which some American courts will go in punishing newspaper contempts. All of these decisions were taken on appeal to the highest court of the state and were there affirmed. The California courts have been equally vigorous in several cases of recent years, notably in connection with publications made during the celebrated Durant murder trial in San Francisco.
The English courts are, if anything, even more severe in this class of cases, a recent decision of the Court of King’s Bench being a noteworthy illustration. During the trial of two persons for felony, the “special crime investigator” of the Bristol Weekly Dispatch sent to his paper reports, couched in a fervid and sensational form, containing a number of statements relating to matters as to which evidence would not have been admissible in any event against the defendants on their trial, and reflecting severely on their characters. Both of the defendants referred to were convicted of the crime for which they were indicted, and sentenced to long terms of imprisonment. Shortly after their conviction and sentence the editor of the Dispatch and this special crime investigator were prosecuted criminally for perverting the course of justice, and each of them was sentenced to six weeks in prison. Lord Alverstone, who rendered the opinion on the appeal taken by the editor and reporter, in affirming the judgment of conviction, expresses himself in language well worth repeating. He says:[[8]]—
[8]. 1 K. B. (1902), 77.—G. W. A.