Parties: Pennekamp v. Florida
Date: 1946-06-03
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Paragraph: 34 - Courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offense falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.
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Paragraph: 46 - He N22* left no doubt that judicial protection of freedom of utterance is necessarily qualified by the requirements of the Constitution as an entirety for the maintenance of a free society. It does an illservice to the author of the most quoted judicial phrases regarding freedom of speech, to make him the victim of a tendency which he fought all his life, whereby phrases are made to do service for critical anaylsis by being turned into dogma. N23* 'It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.' Holmes, J., dissenting, in Hyde v. United States, 225 U.S. 347, 384, at page 391, 32 S.Ct. 793, 808, at page 811, 56 L.Ed. 1114, Ann.Cas.1914A, 614. Words which 'are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,' Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, speak their own condemnation. But it does violence to the juristic philosophy and the judicial practice of Mr. Justice Holmes to assume that an using the phrase 'a clear and present danger' he was expressing even remotely an absolutist test or had in mind a danger in the abs ract. He followed the observation just quoted by the emphatic statement that the question is one 'of proximity and degree,' as he conceived to be most questions in connection with the large, undefined rights guaranteed by the Constitution. And Mr. Justice Brandeis, co-architect of the great constitutional structure of civil liberties, also recognized that 'the permissible curtailment of free speech is * * * one of degree; and because it is a question of degree the field in which the jury may exercise its judgment is necessarily a wide one.' Schaefer v. United States, 251 U.S. 466, 482, at page 483, 40 S.Ct. 259, 264, at page 265, 64 L.Ed. 360 (dissenting). If Mr. Justice Brandeis' constitutional philosophy means anything, it is clear beyond peradventure that he would not deny to a State, exercising its judgment as to the mode by which speech may be curtailed by punishment subsequent to its utterance, a field less wide than that which he permitted a jury in a federal court.
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Paragraph: 47 - N24* 'Clear and present danger' was never used by Mr. Justice Holmes to express a technical legal doctrine or to convey a formula for adjudicating cases. It was a literary phrase not to be distorted by being taken from its context. In its setting it served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution. When those other attributes of a democracy are threatened by speech the Constitution does not deny power to the States to curb it. 'The clear and present danger' to be arrested may be danger short of a threat as comprehensive and vague as a threat to the safety of the Republic or 'the American way of life.' Neither Mr. Justice Holmes nor Mr. Justice Brandeis nor this Court ever suggested in all the cases that arose in connection with the First World War, that only imminent threats to the immediate security of the country would authorize courts to sustain legislation curtailing utterance. Such forces of destruction are of an order of magnitude which courts are hardly designed to counter. 'The clear and present danger' with which its two great judicial exponents were concerned, was a clear and present danger that utterance would 'bring about the * * * evils' which Congress sought and 'has a right to prevent.' Schenck v. United States, supra. Among 'the substantive evils' with which legislation may deal is the hampering of a court in a pending controversy, because the fair administration of justice is one of the chief tests of a true democracy. And since men equally devoted to the vital importance of freedom of speech may fairly differ in an estimate of this danger in a particular case, the field in which a State 'may exercise its judgment is necessarily a wide one.'
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Paragraph: 48 - Without a free press there can be no free society. Freedom of the press, however, is not an end in itself but a means to the end of a free society. The scope and nature of the constitutional protection of freedom of speech must be viewed in that light and in that light applied.
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Paragraph: 49 - freedom carries with it responsibility even for the press; freedom of the press is not a freedom from responsibility for its exercise. Most State constitutions expressly provide for liability for abuse of the press's freedom.
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Paragraph: 60 - In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote.
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Paragraph: 61 - at the core of our problem is a proper balance between two basic conditions of our constitutional democracy—freedom of utterance and impartial justice—we cannot escape the exercise of judgment on the particular circumstances of the particular case.
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Paragraph: 4 - This essential right of the courts to be free of intimidation and coercison was held to be consonant with a recognition that freedom of the press must be allowed in the broadest scope compatible with the supremacy of order.
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Paragraph: 48 - N27* 'It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.' A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society.
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Paragraph: 45 - The decision in the Bridges case did not explicitly deny to the States the right to protect the judicial process from interference by means of a publication bearing on a pending litigation. The atmosphere and emanations of the Court's opinion, however, were calculated to sanction anything to be said or written outside the courtroom even though it may hurt or embarrass the just outcome of a proceeding. But in a series of decisions which presented most sharply the constitutional extent of freedom of speech, this Court had held that the Constitution did not allow absolute freedom of expression—a freedom unrestricted by the duty to respect other needs fulfillment of which make for the dignity and security of man.
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Phrase match: the right to protect the judicial
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Paragraph: 46 - No Justice thought more deeply about the nature of a free society or was more zealous to safeguard its conditions by the most abundant regard for civil liberty than Mr. Justice Holmes. He left no doubt that judicial protection of freedom of utterance is necessarily qualified by the requirements of the Constitution as an entirety for the maintenance of a free society.
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Paragraph: 46 - Words which N24* 'are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,' Schenck v.
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Paragraph: 53 - N25* 'I venture to think that no judge with long criminal experience will fail to be able to recall instances in which the publication of matters such as that to which I have referred N26* has had the effect of making the task of a judge extremely difficult and no one has the right to publish matter which will have that effect.'
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Paragraph: 57 - They serve also to emphasize that the purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. '* * * the liberty of the press is no greater and no less than the liberty of every subject of the Queen,' Regina v. Gray, (1900) 2 Q.B. 36, 40, and, in the United States, it is no greater than the liberty of every citizen of the Republic. The right to undermine proceedings in court is not a special prerogative of the press.
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Paragraph: 60 - In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote.
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Phrase match: the right to vote
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Paragraph: 68 - Were we to sanction the judgment rendered by the court below we would be approving, in effect, an unwarranted restriction upon the freedom of the press. That freedom covers something more than the right to approve and condone insofar as the judiciary and the judicial process are concerned. It also includes the right to criticize and disparage, even though the terms be vitriolic, scurrilous or erroneous. To talk of a clear and present danger arising out of such criticism is idle unless the criticism makes it impossible in a very real sense for a court to carry on the administration of justice.
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Phrase match: the right to approve and condone
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Paragraph: 60 - In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote.
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Phrase match: freedom of speech, the Constitution hardly
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