Theodore Albert Schroeder.

Obscene literature and constitutional law; a forensic defense of freedom of the press online

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by defamatory publications, to degrade the tribunal, destroy
public confidence in it, and dispose the community to disregard
and set at naught its orders, judgments and decrees. Such
publications are an abuse of the liberty of the press, and tend
to sap the very foundation of good order and well being in
society by obstructing the course of justice. If a judge is
really corrupt, and unworthy of the station which he holds,
the constitution has provided an ample remedy by impeach-
ment or address where he can meet his accuser face to face,
and his conduct may undergo a full investigation. The liberty
of the press is one thing and licentious scandal is another.
The constitution guarantees to every man the right to acquire
and hold property, by all lawful means ; but this furnishes no
justification to a man to rob his neighbor of his lands or


The California Constitution of 1879 provides: "Every citi-
zen may freely speak, write, and publish his sentiments on all
subjects, being responsible for the abuse of that right; and
no law shall be passed to restrain or abridge the liberty of
speech or of the press."

Ex parte Barry, 85 Cal. 603, 607-8; 25 Pac. 256. (1890.)
Habeas Corpus proceeding on commitment for contempt in
publishing an article attacking a judge for conduct in pending

The Court said : "This may be true in the sense that the
liberty to speak and write on any subject cannot be restricted
or prevented in advance, and that the only remedy is to punish
subsequently, for any publication that amounts to an abuse of
such liberty. That is precisely what was done in this case.
* * * The liberty of the press to fairly criticise the official
conduct of a judge or the decisions or proceedings of the
courts, and to expose and bring to light any wrongful, cor-
rupt or improper act of a judicial officer, is one that should



be carefully preserved and protected by the courts. * * *
But the publisher of a newspaper, who assumes to criticise or
censure a public officer or the proceedings of a court, must
know whereof he speaks. If he censures unjustly or charges
falsely, he must be held strictly accountable. While his right
of free speech is protected, his abuse of it must be punished.
The great trouble with the freedom of the press at the pres-
ent day, so far as it affects the courts, is that it is used in-
discriminately in many cases, not with the laudable purpose of
correcting abuses and exposing wrongdoing, but to gratify ill
will and passion, or pander to the passions or prejudices of
others. This tendency should be severely condemned and pun-
ished, not only for the protection of the courts and the pres-
ervation of a pure and independent judiciary, but as a means
of upholding the liberty of the press in its true sense." Writ

Ex parte Shortridge, 99 Cal. 526. (535). (1893.) Con-
tempt proceeding for publishing testimony in divorce case in
violation of court order, Appellant adjudged not guilty by
Supreme Court on review.

The Court said: "Liberty of the press must not be con-
founded with mere license. Liberty of the press stops where
a further exercise would invade the rights of others. This
provision of the constitution does not authorize a usurpation
of the functions of the courts. Under the plea of the liberty
of the press, a newspaper has no right to assail litigants during
the progress of a trial, intimidate witnesses, dictate verdicts
or judgments, or spread before juries its opinion of the merits
of cases which are on trial. * * *

"As the article in question does not go beyond these
limitations, and as the section under which the court below
proceeded to judgment, clearly does not authorize the order
which was made, the proceedings must be annulled."

D ailey v. Superior Court of San Francisco, 112 Cal. 94
(99,100). (1896.) Certiorari to review order forbidding the
public performance of a play based on the facts of a pending
criminal trial. Order annulled.

The Court said: "The purpose of this provision of the
constitution was the abolishment of censorship, and for courts
to act as censors is directly violative of that purpose. [Then
the court quotes with approval Blackstone and those follow-




ing him and then concludes :] In effect the order made by the
trial court was one commanding the petitioner not to commit a
contempt of court ; and such a practise is novel in the extreme.
* * * We conclude that the order made by the trial court
was an attempted restraint upon the right of free speech, as
guaranteed by the Constitution of this State, and that peti-
tioner's mouth could not be closed in advance for the purpose
of preventing an utterance of his sentiments, however mis-
chievous the prospective results of such utterance. He had the
right of free speech, but at all times was responsible to the law
for an abuse of that right."


The Colorado Constitution ( Art. II, sec. 10) provides "That
no law shall be passed impairing the freedom of speech, that
every person shall be free to speak, write or publish whatever
he will on any subject, being responsible for all abuse of that

People v. Green, 7 Colo. 244 (250,251). (1883.) Dis-
barment proceedings for insulting a judge on the public street.
Defendant found guilty and disbarred. Rehearing denied.

The Court said: "In this country, and in England also,
the utmost liberty of speech is guaranteed by statute and en-
forced by the courts ; the right to discuss all matters of public
interest or importance is everywhere fully recognized; judicial
decisions and conduct form no exceptions to the rule ; the
judge's official character, and his acts in cases fully deter-
mined, are subject to examination and criticism; in most of
the states the office is elective, and it is proper and right that
the people should be informed of the occupant's mental and
moral fitness.

"True, under the guise of criticism in the public press,
and otherwise, judges are often compelled to endure the sting
of misrepresentation and calumny, with no other redress than
an ordinary civil action ; and doubtless it sometimes happens
that their efficiency in office is hereby lessened, to the detri-
ment and injury of the public service ; but it is wisely con-
sidered better that these wrongs and injuries should be toler-
ated, than that the sacred liberty of speech, printed or spoken,
should be abridged by lodging an arbitrary power to interfere
therewith in the hands of the court of judge, so long as such
criticism or libel is not designed to influence the mind of the
judge in a cause still undetermined." * * *



"But we have found no case, and respondent has cited
none, which extends this privilege of comment and criticism
to assaults, verbal or physical, upon the judge in person."

Cooper v. People, 13 Colo. 337 (367) ; 22 Pac. R. 790;
6 L. R. A. 430 (1889.) Contempt proceeding for news-
paper censure of judicial action in pending case.

The Court, after quoting Blackstone and others accepting
him as an authority in Constitutional construction, affirming
judgment convicting defendants, said: "We would not for a
moment sanction any contraction of the freedom of the press.
Universal experience has shown that such freedom is neces-
sary to the perpetuation of our system of government in its
integrity ; but this freedom does not license unrestrained scan-
dal. By a subsequent clause of the same sentence of our state
constitution in which the liberty is guaranteed, the respon-
sibility of its abuse is fixed. With us the judiciary is elective,
and every citizen may fully and freely discuss the fitness or
unfitness of all candidates for the positions to which they
aspire; criticize freely all decisions rendered, and by legiti-
mate argument establish their soundness or unsoundness ; com-
ment on the fidelity or infidelity with which judicial officers
discharge their duties; but the right to attempt, by wanton
defamation, to prejudice the right of litigants in a pending
cause, degrade the tribunal, and impede, embarrass or corrupt
that due administration of justice which is so essential to good
government, cannot be sanctioned."

People v. Stapleton, 33 Pac. 167 (173), 18 Colo. 567
(586). (1893.) Contempt proceeding for published attack on

The Court said : "The liberty of the press is one thing.
The 'abuse of that liberty' is quite another. The former is
guaranteed by the constitution. The latter is as clearly inter-
dicted. If the liberty of the press is abused, the offender may
be held responsible therefor. Such is the common law, such is
our constitutional provision; and such offenders may be dealt
with summarily for contempt, when their fabrications are
calculated to impede, obstruct or embarrass the administra-
tion of justice. It has not been deemed expedient by our
people that any class of persons should be privileged to attack
the courts, with the view to interfere with the rights of liti-
gants, or to embarrass the administration of justice. Hence
they have never adopted any constitutional provision granting



such dangerous license. * * * There is far more danger to
our institutions, and far more danger to the rights of the
people, and especially to the rights of litigants, to be appre-
hended from the power of the press over the courts, than
from the power of the courts over the press. * * * Thought-
ful citizens now understand that the danger now threatening
our institutions is that courts are not independent enough,
instead of being too arbitary.


The Constitution provides : "Every citizen may freely
speak, write and publish his sentiments on all subjects, being
responsible for the abuse of that liberty. No law shall ever be
passed to curtail or restrain the liberty of speech or of the

Atwater v. Morning News Co., 67 Conn. 504 (518).
(1896.) Action for libel.

The Court said: "The administration of the law (the
libel law) is concerned with two most important rights; the
right of the individual to reparation for malicious injuries to
his reputation, and the right of the people to liberty of speech
and of the press. The two rights are not inconsistant, but in-
terdependent. The individual has no right to demand repara-
tion for those accidental injuries incident to organized so-
ciety. Freedom of the press is the offspring of law, not of
lawlessness; and its primary meaning excludes all notions of
malicious injury. Indeed, any true freedom of the press be-
comes impossible where malicious injuries are not forbidden
and punished ; and the strongest guaranty of that freedom
lies in an impartial administration of the law which distin-
guishes the performance of a public or social duty from the
infliction of a malicious injury."

State v. McKee, 73 Conn. 18 (28, 29). (1900.) Appeal
from conviction for selling a newspaper principally made up
of criminal news, etc., under statute. Appeal sustained on
technical grounds, but statute held constitutional and ap-

The Court said: "There is no constitutional right to
publish every fact or statement that may be true. Even the
right to publish accurate reports of judicial proceedings is
limited. * * * The primary meaning of "liberty of the press"
as understood at the time of our early constitutions were
framed, was freedom from any censorship of the press. * * *



But this fundamental guaranty [the constitutional provision
for free speech] goes further ; it recognizes the free expression
of opinion on matters of church or state as essential to the
successful operation of free government; and it also recog-
nizes the free expression of opinion on any subject as essential
to a condition of civil liberty. The right to discuss public
matters stands in part on the necessity of that right to the
operation of a government by the people, but with this ex T
ception ; the right of every citizen to freely express his senti-
ments on all subjects stands on the broad principle which sup-
ports the equal right of all to exercise gifts of property and
faculty in any pursuit in life ; in other words, upon the essen-
tial principles of civil liberty as recognized by our constitu-
tion. Every citizen has an equal right to use his mental en-
dowments, as well as his property, in any harmless occupation
or manner; but he has no right to use them so as to injure
his fellow-citizens or to endanger the vital interests of society.
Immunity in the mischievous use is as inconsistent with civil
liberty as prohibition of the harmless use. Both arise from
the equal right of all to the protection of law in the enjoy-
ment of individual freedom of action, which is the ultimate
fundamental principle. * * * The liberty protected is not
the right to perpetrate acts of licentiousness, or any act in-
consistent with the peace or safety of the State. Freedom
of speech and press does not include the abuse of the power
of tongue or pen, any more than freedom of other action in-
cludes an injurious use of one's occupation, business or prop-
erty. * * *

"The general right to disseminate opinions on all subjects
was probably specified mainly to emphasize the strong neces-
sity to a free government of criticism of public men and
measures. But it is specified as one of the conditions of civil
liberty, and, like other conditions of a similar nature, it neces-
sarily involves the protection of those who may suffer from
the wrongful exercise of any common right. * * *

"The notion that the broad guaranty of the common right
to free speech and free thought, contained in our constitution,
is intended to erect a bulwark or supply a place of refuge in
behalf of the violaters of laws enacted for the protection of
society from the contagion of moral diseases, belittles the con-
ception of constitutional safeguards and implies ignorance of
the essentials of civil liberty."



The Constitution provides that "every citizen may freely
speak and write his sentiments on all subjects, being respon-
sible for the abuse of that right, and no law shall be passed to
restrain or abridge the liberty of speech or press."

Jones v. Townsend's Administratrix, 21 Fla. 431 (450) ;
58 Am. Rep. 676. (1885.) Action for libel.

The Court said: "The liberty of the press means simply
that no previous license to publish shall be required, but not
ttiat the publisher of a newspaper shall be any less responsible
than another person for publishing otherwise the same libelous


The Constitution of Illinois (1818 and 1848) provides: "The
free communication of thoughts and opinions is one of the in-
valuable rights of man; and every citizen may freely speak,
write, and print, on any subject, being responsible for the
abuse of that liberty." The constitution of 1870 is substan-
tially the same with the first sentence omitted.

Stuart v. People, 4 ///. 395 (404, 405, 406). (1842.)
Action for contempt for publishing an article alleged to re-
flect on Court and jury, during murder trial.

The Court, reversing conviction, said: "Into this vortex
of constructive contempts have been drawn, by the British
Courts, many acts which have no tendency to obstruct the ad-
ministration of justice, but rather to wound the feelings, or
offend the personal dignity of the judge, and fines imposed,
and imprisonment denounced, so frequently, and with so little
question, as to have ripened, in the estimation of many, into
a common law principle; and it is urged that, inasmuch as
the common law is in force here, by legislative enactment, this
principle is also in force. But we have said in several cases
that such portions only of the common law as are applicable to
our institutions, and suited to the genius of our people, can be
regarded as in force. It has been modified by the prevalence
of free principles, and the general improvement of society,
and whilst we admire it as a system, having no blind devotion
for its errors and defects, we cannot but hope that, in the
progress of time, it will receive many more improvements, and
be relieved from most of its blemishes. Constitutional pro-
visions are much safer guarantees for civil liberty and per-



sonal rights, than those of the common law, however much
they may be said to protect them.

"Our Constitution has provided that the printing presses
shall be free to every person who may undertake to examine
the proceedings of any and every department of the govern-
ment; and he may publish the truth, if the matter published
is proper for public information ; and the free communication
of thoughts and opinions is encouraged.

"The contempt, in this case, was by a printer of a news-
paper, remarking on the conduct of an individual juror, who,
whilst he was engaged in the trial of a capital case, and
whilst separated from the public, and in charge of the officer
of the Court, was furnishing articles for daily publication in a
rival newspaper ; and in admitting a communication from a
correspondent, calculated to irritate the presiding judge of the
court, though not reflecting upon his integrity or in any way
impeaching his conduct. The paragraphs and communication
published had no tendency to obstruct the administration of
justice ; nor were they thrust upon the notice of the Court, by
any act of the plaintiff in error. * * *

"An honest, independent and intelligent court will win
its way to public confidence, in spite of newspaper paragraphs,
however pointed may be their wit or satire; and its dignity
will suffer less by passing them by unnoticed, than by arraign-
ing the perpetrators, trying them in a summary way; and
punishing them by the judgment of the offended party.

"It does not seem to me necessary, for the protection of
courts in the exercise of their legitimate powers, that this one,
so liable to abuse, should also be conceded to them. It may
be so frequently exercised as to destroy that normal influence
which is their best possession, until, finally, the administration of
justice is brought into disrepute. Respect to courts cannot be
compelled; it is the voluntary tribute of the public to worth,
virtue and intelligence ; and whilst they are founded upon the
judgment seats, so long and no longer will they retain the
public confidence.

"If a judge be libelled by the public press, he and his
assailant should be placed on equal grounds, and their com-
mon arbiter should be a jury of the country ; and if he has re-
ceived an injury, ample remuneration will be made.

"In restricting the power to punish for contempt, to the
cases specified, more benefits will result than by enlarging it.



It is at best an arbitrary power, and should only be exercised
on the preservative, and not on the vindictive principle. It is
not a jewel of the court, to be admired and prized, but a rod
rather, and most potent when rarely used."

People v. Wilson, 64 III. 195 (214,215). (1872.) Action
for contempt for publication reflecting on the action of the
court in a pending matter.

The Court, finding defendants guilty, said : "Let us say
here, and so plainly that our position can be misrepresented
only by malice or gross stupidity, that we do not deprecate, nor
should we claim the right to punish any criticism the press
may choose to publish upon our decisions, opinions, or official
conduct, in regard to cases that have passed from our juris-
diction, so long as our action is correctly stated, and our official
integrity is not impeached. The respondents are correct in
saying in their answers that they have a right to examine the
proceedings of any and every department of the government.

"Far be it from us to deny that right. Such freedom of
the press is indispensable to the preservation of the freedom
of the people. But certainly neither these respondents nor
any intelligent person connected with the press, and having a
just idea of its responsibilities, as well as its powers, will
claim that it may seek to control the administration of justice
or influence the decision of pending causes. * * *

"Regard it in whatever light we may, we cannot but
consider the article in question as calculated to embarrass the
administration of justice, whether it has in fact done so or
not, and, therefore, as falling directly within the definition of
punishable contempts, announced by this court, in the case of
Stuart v. The People. It is a contempt, because, in a pending
case of the gravest magnitude, it reflects upon the action of
the court, impeaches its integrity, and seeks to intimidate it
by the threat of popular clamor."

Storey v. People, 79 ///. 45 (52-53) (1875.) Contempt
proceeding for publishing article reflecting on the Grand
Jury. Conviction reversed.

The Court said : "This language, plain and explicit as it
is, cannot be held to have no application to courts, or those by
whom they are conducted. The judiciary is elective ; and the
jurors, although appointed, are, in general, appointed by a
board whose members are elected by popular vote. There is,



therefore, the same responsibility, in theory, in the judicial
department, that exists in the legislative and executive de-
partments to the people, for the diligent and faithful discharge
of all duties enjoined on it and the same necessity exists for
public information with regard to the conduct and character
of those intrusted to discharge those duties, in order that the
elective franchise shall be intelligibly exercised, as obtains in
regard to the other departments of the government."


The Indiana Constitution provides ; "No law shall be
passed restraining the free interchange of thought and opinion,
or restricting the right to speak, write, or print, freely, on any
subject whatever; but for the abuse of that right every person
shall be held responsible.

Cheadle v. State, no Ind. 301 (312,313). (1886.) Ap-
peal in contempt proceeding for publishing articles reflecting
on the Court. Appeal sustained, judgment reversed.

The Court said: "There are cases on record from which
an inference might be drawn that the statement in question
constituted a contempt, as it was doubtless considered in this
case; but it must be borne in mind that the force of public
opinion in this country, in favor of the freedom of the press,
has of late greatly restrained the courts in the exercise of
their power to punish persons for making disrespectful and
injurious publications. * * * No one ought to be found
guilty upon a doubtful charge of indirect contempt, and espe-
cially so in a case in any manner involving the freedom of the

"It is true that too often, under the guise of a guaranteed
freedom, the press transcends the limits of manly criticisms,
and resorts to methods injurious to persons and tribunals
justly entitled to moral support of all law-abiding citizens*
but such digressions are not always unmixed evils, and it is
only in rare instances that legal proceedings in repression of
such a license can, with propriety, be resorted to.

"When such a digression becomes too flagrant to be dis-
regarded, a prosecution for libel is usually the most appropri-
ate and effective remedy. In such a prosecution, both parties
go before a jury of the country on terms more nearly equal
than they can relatively occupy in a proceeding for the punish-
ment of an alleged contempt."


/ .

loemaker v. South Bend Spark Arrester Co., 135 Ind.
471 ^478). (1893.) Action for injunction to restrain "false
and malicious claims of the title," etc.

The Court, in affirming decision granting the injunction,
said: "It (the case of Life Assn. v. Boogher, p. 173) is not
only out of line with the holdings of this court upon that re-
quest; but it holds that the constitutional guarantee of the
freedom of the press and of speech is a protection to one
against equitable interference in publishing false and injurious
statements. In neither of these positions can we believe it


State v. Blair, 60 N. W. 486 (487) (Iowa). (1894.)
Indictment for publicly professing to treat diseases without a
license. The Iowa Constitution provides that "every person

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 17 of 43)