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Contempt by Publication in the United States (with R. Goldfarb), 24 Modern Law Review 239 (1961)

Abstract

The power of courts to punish summarily for criminal contempt is, as Mr. Justice Black recently observed, “ an anomaly in the law.” The Justice continued as follows : “ The vices of a summary trial are only aggravated by the fact that the judge’s power to punish criminal contempt is exercised without effective external restraint. First, the substantive scope of the offense of contempt is inordinately sweeping and vague; it has been defined, for example, any conduct that tends to bring the authority and administration of the law into disrespect or disregard.’ It would be no overstatement therefore to say that the offense with the most ill-dehed and elastic contours in our law is now punished by the harshest procedures known to that law. Secondly, a defendant’s principal assurance that he will be fairly tried and punished is the largely impotent review of a cold record by an appellate court, another body of judges. Once in a great while a particular appellate tribunal basically hostile to summary proceedings will closely police contempt trials but such supervision is only isolated and fleeting, All too often the reviewing courts stand aside readily with the formal declaration that ‘ the trial judge has not abused his discretion.’ But even at its rare best appellate review cannot begin to take the place of trial in the first instance by an impartial jury subject to review on the spot by an uncommitted trial judge. Finally, as the law now stands there are no limits on the punishment a judge can impose on a defendant whom he finds guilty of contempt except for whatever remote restrictions exist in the Eight Amendment’s prohibition against cruel and unusual punishments or in the nebulous requirements of ‘ reasonableness ’ now promulgated by the majority.” The power of English and American courts to punish summarily for constructive contempt chiefly contempts by publication out of court-is derived from the same sources, namely, Mr. Justice Wilmot’s undelivered judgment in The King v. Almon and Lord Chancellor Hardwicke’s pronouncements in Roach v. Garvan.‘ In practice today, however, there is a wide divergence. In England the power to punish as contemptuous publications “ calculated to interfere with the due course of justice ” has been carried by the courts to what some consider extreme limits. In the United States, this power has been emasculated by statutory and constitutional limitations. How are we to account for this difference in direction ?

Date of Authorship for this Version

1961

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