“A person accused of crime in this country can properly be convicted in a court of justice only upon evidence which is legally admissible, and which is adduced at his trial in legal form and shape. Though the accused be really guilty of the offense charged against him, the due course of law and justice is nevertheless perverted and obstructed if those who have to try him are induced to approach the question of his guilt or innocence with minds into which prejudice has been instilled by published assertions of his guilt, or imputations against his life and character to which the laws of the land refuse admission as evidence.”
In the state of New York the courts have permitted themselves to be deprived of the greater portion of the power which the courts of Massachusetts, in common with those of most of the states, exercise of punishing for contempt the authors of newspaper publications prejudicial to fair trials. Some twenty-five years ago the state legislature passed an act defining and limiting the cases in which summary punishment for contempt should be inflicted by the courts. Similar legislation has been attempted in other states, only to be declared unconstitutional by the courts themselves, which hold that the power to punish is inherent in the judiciary independently of legislative authority, and that, as the Supreme Court of Ohio says, “The power the legislature does not give, it cannot take away.” But while the courts of Ohio, Virginia, Georgia, Indiana, Kentucky, Arkansas, Colorado, and California have thus resisted legislative encroachment upon their constitutional powers, the highest court of New York has submitted to having its power to protect its own usefulness and dignity shorn and curtailed by the legislature. The result is that while by legislative permission they may punish the editor or proprietor of a paper for contempt, it can be only when the offense consists in publishing “a false or grossly inaccurate report of a judicial proceeding.” The insufficiency of such a power is apparent when one considers that the greater number of the cartoons and comments contained in publications fairly complained of as prejudicing individual legal rights are not, and do not pretend to be, reports of judicial proceedings at all, but are entirely accounts of matters “outside the record.” If the acts done, for example, in any of the cases cited as illustrations above, had been done under similar circumstances in New York, the New York courts would have been powerless to take any proceeding whatever in the nature of contempt against the respective offenders. The result is that in the state which suffers most from the gross and unbridled license of a sensational and lawless press the courts possess the least power to repress and restrain its excesses. A change of law which shall give New York courts power to deal summarily with trial by newspaper is imperatively needed.
To the two examples which have just been given of the direct influence which counting-house journalism seeks to exert upon judges and jurors, might be added others of equal importance, would space permit. But all improper influences upon legislators or other public officials, or upon judges or jurors, which these papers may exercise or attempt to exercise, are as naught in comparison with their systematic and constant efforts to instill into the minds of the ignorant and poor, who constitute the greater part of their readers, the impression that justice is not blind but bought; that the great corporations own the judges, particularly those of the Federal courts, body and soul; that American institutions are rotten to the core, and that legislative halls and courts of justice exist as instruments of oppression, to preserve the rights of property by denying or destroying the rights of man. No greater injury can be done to the working people than to create in their minds this false and groundless suspicion concerning the integrity of the judiciary. In a country whose political existence, in the ultimate analysis, depends so largely upon the intelligence and honesty of its judges, the general welfare requires, not merely that judges should be men of integrity, but that the people should believe them to be so. It is this confidence which counting-house journalism has set itself deliberately at undermining. It is not so important that the people should believe in the wisdom of their judges. The liberty of criticism is not confined to the bar and what Judge Grover used to call “the lawyer’s inalienable privilege of damning the adverse judge—out of court.” There is no divinity which hedges a judge. His opinions and his personality are proper subjects for criticism, but the charge of corruption should not be made recklessly and without good cause.
It is noticeable that this charge of corruption which yellow journalism makes against the courts is almost invariably a wholesale charge, never accompanied by any specific accusation against any definite official. These general charges are more frequently expressed by cartoon than by comment. The big-chested Carthaginian labeled “The Trusts,” holding a squirming Federal judge in his fist, is a cartoon which in one form or another appears in some of these papers whenever an injunction is granted in a labor dispute at the instance of some great corporation. Justice holding her scales with a workingman unevenly balanced by an immense bag of gold; a human basilisk with dollar marks on his clothes, a judge sticking out of his pocket, and a workingman under his foot; Justice holding her scales in one hand while the other is conveniently open to receive the bribe that is being placed in it—these and many other cartoons of similar character and meaning are familiar to all readers of sensational newspapers. If their readers believe the cartoons, what faith can they have left in American institutions? What alternative is offered but anarchy if wealth has poisoned the fountains of justice; if reason is powerless and money omnipotent? If the judges are corrupt, the political heavens are empty.
There is no occasion to defend the American judiciary from charges of wholesale corruption. They might be passed over in silence if they were addressed merely to the educated and intelligent, or to those familiar by personal contact with the actual operations of the courts. That there are many judicial decisions rendered which are unsound in their reasoning may be readily granted. That some of the Federal judges are men of very narrow gauge, and that, during the recent coal strike for example, in granting sweeping, wholesale injunctions against strikers they have accompanied their decrees at times with opinions so unjudicial, so filled with mediæval prejudice and rancor against legitimate organizations of working people as to rouse the indignation of right-minded men, may be admitted. But prejudice and corruption are totally dissimilar. There is always hope that an honest though prejudiced man may in time see reason. This hope inspires patience and forbearance. Justice can wait with confidence while the prejudiced or ultra-conservative judge grows wise, and the principles of law are strongest and surest when they have been established by surmounting the prejudice and doubts of many timid and over-conservative men. But justice and human progress should not and will not wait until the corrupt judge becomes honest. To thoughtful men the severest charge yet to be made against this new journalism is not merely the influence it attempts to exert, and perhaps does exert, in particular cases, but that, wantonly and without just cause, it endeavors to destroy in the hearts and minds of thousands of newspaper readers a deserved confidence in the integrity of the courts and a patient faith in the ultimate triumph of justice by law.
THE CRITIC AND THE LAW
BY RICHARD WASHBURN CHILD
I
A recent prosecution by the People of New York, represented by Mr. Jerome, of a suit for criminal libel, attracted the attention of the entire nation. The alleged libel set forth in the complaint had appeared in Collier’s Weekly, stating the connection of a certain judge with a certain unwholesome publication. The defense to this action was that the statement was true; and, somewhat to the joy of all concerned, excepting the judge, the unwholesome publication, and those who were exposed in the course of trial as being its creatures, the jury were obliged to find that this defense was sound.[[9]] From a lawyer’s point of view it was surprising to find that even professional critics and editorial writers looked upon this case as involving that part of the Common Law which prescribes the limits of criticism. It only needs to be pointed out that the statement relied upon as defamation was a statement of fact, to show that the case against the Collier editors involved no question of a critic’s right to criticise or an editor’s right to express his opinion. If the suit had been founded on the criticism of the contents of the unwholesome publication which had been offered to the public for those to read who would, then the law of fair comment would have controlled. No doubt, however, even the trained guides to the public taste seldom realize the presence of a law governing their freedom of comment. Such law is in force none the less, and, though the instinct to express only fair and honest opinion will generally suffice to prevent a breach of legal limits, it is evident that the consideration of the law upon the subject is important, not only to the professional critic, but to any man who has enough opinion on matters of public interest to be worth an expression.
[9]. The verdict for Collier’s Weekly, the defendant, was rendered on January 26, 1906. Cf. Collier’s Weekly, February 10, 1906, vol. 36, p. 23.—Ed.