|Punishing Newspapers for Contempt –A Balancing of Competing Interests
By Kwame Clement,
|The current case involving the Supreme Court and Rodney Sieh, Editor of Frontpage Africa, raises important questions dealing with the exercise of the courts’ power to punish for contempt by publication and the freedom of the press to criticize judges and comment on matters pending before the courts. The inherent power of the courts to punish for contempt by publication, which like much of our legal traditions, is rooted in English common law, applies in two principal situations. The first is when the publication touches on a matter that is sub judice, meaning a matter that is pending before the courts. The second is where comments or criticisms are said to “scandalize” the courts, whether or not those comments are made when a matter is pending before the courts.
The concern when newspapers comment on matters pending before a court is that such comments may prejudice a person’s right to a fair trial. This is a concern that should not be taken lightly. It is certainly conceivable that public comments, including comments about the guilt of a defendant in a criminal proceeding, may have the effect of influencing the outcome of a trial. In such a case, the defendant’s guilt or innocence may not be determined by evidence produced in court, but by matters printed in newspapers or other news organs. The problem in such a case is that the extrajudicial statements and expressions of opinion on which guilt or innocence is founded have not been tested by all of the procedures, including cross examination of witnesses and application of evidentiary rules to test the reliability of evidence, that have been built into our legal system over the years to ensure fair trials.
The concern where comments or criticisms are said to scandalize the courts is that undue and unfair criticisms of judges and the courts may undermine public confidence in our judicial system. The fear is that this could, in turn, lead to a loss of respect for the courts and their decisions, all of which would not augur well for the maintenance of the rule of law that is so critical to ensuring peace and stability in our country.
It is hardly arguable that the policy objectives of ensuring fair trials and respect for the courts that undergird the judicial power to punish for contempt by publication are laudable and well-meaning. However, all too often the exercise of this power clashes with an equally important policy objective of the law in our constitutional democracy: ensuring the freedom of speech and a free and robust press.
In balancing these two, often competing, policy objectives, courts in many countries have adopted a heightened standard that makes it exceedingly difficult to punish newspapers for contempt by publication. The courts in these countries, which include the United States, Canada and even England, have reasoned that the benefit society gains from punishing news organs and individuals for contempt by publication pales in comparison to the serious erosions of free speech rights and press freedom that result from such punishment.
The lead United States Supreme Court case deciding the power of courts to punish for contempt by publication is Bridges v. California, 314 U.S. 252. In that case, decided in 1942, California state courts held the editors of two different newspapers in contempt for commenting on pending cases and criticizing the courts and the decisions of judges.
On appeal, the United States Supreme Court reversed the California courts. In so doing, the U.S. Supreme Court established what has come to be known as the “clear and present danger” test for determining when it is proper for a court to punish for contempt by publication. To punish a newspaper for contempt by publication under this test, there must be a determination that “the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils.” Bridges, 314, U.S at 261 (emphasis added).
Applying this standard to decide issue of whether the need to preserve respect for the judiciary is sufficient justify contempt punishment against newspapers that are critical of the courts and judges, the Supreme Court opined in clear and unambiguous language that:
“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”
Bridges, 314, U.S at 270.
Moreover, noting that far from fostering respect for the courts, punishing the editors would produce the opposite result, the Supreme Court pointedly concluded that:
“an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”
Bridges, 314, U.S at 27-271
As it pertains to whether holding the editors in contempt was necessary to prevent comments that may affect the fair outcome of a pending matter, the Supreme Court held that it was simply wrong “to start with the assumption that . . . publications” that are generally critical of the courts “actually do threaten to change the nature of legal trials.” Hence, the Supreme Court ultimately concluded that it was not “necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases.” Id.
The clear and present danger standard set by the United States Supreme Court in Bridges has made it virtually impossible for courts in the United States to hold newspapers or individuals in contempt for commenting on matters pending before a court or for criticizing judges. To be sure, courts in other countries, such as Nigeria, India, and Singapore, have adopted a less stringent standard than the clear and present danger standard and in those countries courts more routinely impose contempt punishment on media institutions.
The question for Liberia, though, is which route should Liberian courts follow—the route set out by the United States Supreme Court in Bridges, or the less difficult standard adopted by courts in some other countries?
To properly answer this question, we must objectively assess which standard best vindicates the strong interest our country has in maintaining respect for the courts and the right to a fair trial while at the same time ensuring the right to freedom of expression and a vibrant and uninhibited press.
Let us first look at the twin goal of maintaining respect for the judiciary while protecting the right to freedom of expression. Respect for the courts is based inherently on the public’s perception of the judiciary as fair and impartial. But a court’s impartiality, the very basis of the respect it rightly deserves, is likely to be drawn into question where the court is sitting as judge and jury—as is naturally to happen in a contempt proceeding—in a matter in which the court itself has a direct interest. Indeed, in a contempt proceeding, it is the court that is complaining that a wrong as been done to it and the entire judiciary. And it is the same judiciary that is deciding the guilt or innocence of the accused and imposing punishment. The public is likely to view the court as not impartial in such a situation. Hence, a contempt proceeding, carried out in the name of preserving the dignity of the bench and the courts’ image as a fair adjudicator of disputes, is more likely to be counter-productive.
It is not surprising that contempt proceedings against newspapers for criticizing the courts would produce such a result. The English common law, from which courts derive the power to punish for contempt by publication has its roots in English feudal and monarchic traditions. Feudal England with its absolute monarchies was far from democratic. It follows that some of the attributes of English common law, like contempt punishments, are not necessarily in keeping with our modern democratic traditions. In feudal England, for example, one who publicly criticized the king or queen and other leaders was very likely to be punished just as one who publicly criticized the courts. Today, in our modern democracy, we can freely criticize the leaders of other branches of government, including the president and members of the legislature, without the fear of punishment.
The judiciary, by insisting on contempt punishment for those who criticize the courts, whether fairly or unfairly, will stand out as the only branch of government that puts itself beyond criticism. This is an image that the judiciary should shun. In order to ensure that judges operate and fairly decide cases without any political considerations, our Constitution wisely provides for the appointment rather than the election of judges. This means that as the only branch of government whose members are not elected, the judiciary derives its legitimacy not from the will of the people expressed at the ballot box. Instead, more than any other branch of government, the judiciary derives legitimacy and public trust and confidence from being perceived as fair and impartial. The judiciary therefore has an institutional interest in doing everything possible, including eschewing the easy resort to contempt punishment of newspapers, that would undermine in the eyes of the public the role of the courts as neutral dispensers of justice.
Further, the judiciary should expect that it would be subject to criticism because of the very nature of what it does. The business of the courts is to decide cases and render decisions in matters that are sometimes controversial and likely to generate impassioned public comment and criticism. The courts’ decisions may determine who would face the death penalty, who is guilty and should go to jail, who is innocent and should be set free, or who should gain or lose the right to property. Sometimes, the courts’ decisions establish precedents that affect society at large and not just the parties before the courts. Also, where cases are decided by the Supreme Court, the decisions are final and binding and we are required to and should obey them, without any recourse.
The judiciary then should understand that there will be criticisms of its conduct and actions. Sometimes, these criticisms, coming as they often do from people who are unfamiliar with the law and how courts work, would be completely off the mark and wrong. But at the end of the day, the court cannot engender respect for itself by resorting to contempt punishment because of criticisms that may be unfounded. The judiciary can best ensure respect for its role in our society by issuing well-reasoned and persuasive opinions and letting those opinions peak for themselves.
The analysis above amply demonstrates that contempt punishments carried out in the name of preserving respect for the courts are unlikely to produce the desired result. In fact, such punishments are more likely than not to produce precisely the opposite result. Let’s now compare this with the benefits gained or the harm suffered with respect to free speech rights when the courts impose contempt punishment on newspapers for criticisms that are said to scandalize the judiciary.
The harm that contempt punishment poses to free speech rights is plainly evident. It is easy to envisage a situation where newspapers engage in self-censorship and refrain from publishing any criticisms of the courts because editors fear they would be hauled before judges to face contempt charges. Such self-censorship would no doubt keep out flawed and unfounded criticisms of the judiciary. But it would also, as editors err on the side of caution to avoid contempt citations, stifle valid and legitimate criticisms. The end result is that we could live in a society where the public is unable to engage in useful comments about and criticisms of the courts out of fear that those who do so would be punished for contempt. This is certainly not a society in which we would want to live.
This is not to say that inaccurate comments and criticisms of the courts should not be challenged and corrected. In the United States, for example, judges are required by rules of ethics not to comment on or respond to any public criticisms of their conduct as judges. This is meant to ensure that when it comes to deciding cases, judges should speak only through their decisions and not get drawn into undignified public back and forth and exchanges with critics about matters on which the courts may be call upon to render judgment. However, in certain circumstances, particularly where criticisms of the courts are not only unfounded but could lead to loss of confidence in the court system, local bar associations are encouraged to publicly respond and correct the record. Individual lawyers may also take it upon themselves to respond to and correct unfounded criticisms of the courts. Ordinary citizens are free to do the same. And a judge who believes he has been defamed by unfair comments and criticisms has the right to sue in his private capacity on a claim for defamation.
For the reasons stated above, there is a strong case to be made that our society can best achieve the goal of ensuring respect for the judiciary while protecting the right to free speech if we were to adopt the Bridges standard under which courts may punish for contempt only where there is a showing of a clear and present danger of a substantive evil resulting from criticisms of the judiciary.
Let’s now turn to the issue of whether adopting the Bridges standard can best protect both the right to a fair trial and the right to freedom of expression in circumstances where a news organ comments on a matter pending before the courts. As the United States Supreme Court noted in Bridges, there is certainly something to be said about the fact that published statements about a pending case may affect a person’s right to a fair trial. But jurors who often decide cases are humans who might be influenced by opinions or comments that are not necessarily published in newspapers. At the end of each court session (and before the case is turned over to them for their verdict), jurors go home, where they are likely to hear from their families and friends comments and opinions about the cases on which they are sitting. Thus, newspaper stories and editorials or opinion pages are not the only sources of information and views that could influence a jury verdict.
Accordingly, if the court believes that a case is of such importance and public comments about it are likely to influence the jury verdict, the best option to ensure a fair trial in such a circumstance is not to use the blunt instrument of a contempt punishment that may have the effect of chilling speech and press freedom. The better option that properly balances the right to free speech and the right to a fair trial might be to sequester the jury—keep jurors in a place where they have no access to newspapers as well as the comments and opinions of their families, friends and other members of the public regarding the case. Of course, sequestering juries can be expensive for the court system and burdensome to jurors, who may not be able to see their families until the case they are hearing has ended. But that is a price we all as a society should be willing to pay as we strive to attain the twin goal of ensuring the right to a fair trial while at the same time protecting our cherished right to freedom of the speech and the press.
Moreover, there is a compelling argument that where, as in the matter involving the Supreme Court and Sieh, it is a court and not a jury that is deciding the case which is the subject of public comment, there is less of a need to fear that such comment would affect the outcome of the case as to justify contempt punishment. Unlike jurors, lawyers (and judges and Supreme Court Justices are first and foremost lawyers) are trained to decide cases on the merits and not on what is said or done outside of the court. In order to punish Sieh for contempt on the basis that the opinions he carried in his newspaper would affect the outcome of the case at issue, the members of the Supreme Court would effectively be saying that despite their professional training as lawyers, their decision would be swayed by public comments and not by evidence adduced at trial.
We should point out that the analysis and discussion above deal with contempt punishment for opinions and statements made or expressed outside of a court. The standard for contempt punishment for statements or conduct by a person before a court is less stringent than the standard for statements made out of court. This more relaxed standard is to ensure that court’s proceedings are not disrupted by unruly or disrespectful conduct. Accordingly, the Court could more easily punish Sieh for conduct or statements made before them—say, interrupting the justices, or not obeying their instructions to stop speaking. However, the Court’s readiness to impose contempt punishment for such conduct by Sieh must be tempered by the fact that he appeared without the benefit of a lawyer who could explain to him the procedures, formalities, and decorum required by the courts.
I should note that as a lawyer, I have the outmost respect for the Liberian Supreme Court and its Justices. I know some of the Justices reasonably well. Chief Justice Johnnie Lewis taught me at the Louis Arthur Grimes School of Law. The criminal law textbook he authored and which we used to study criminal law was the model of what a good law school text book should be in terms of the selection of cases and the commentaries highlighting the relevant legal principles. Besides attending law school in Liberia, I also have attended law school in the United States. I can state unequivocally that Chief Justice Lewis’ skills and abilities as a lawyer and a law professor equal and, in fact, surpass those of many law professors I encountered while attending law school in the United States.
I am convinced that he and his fellow justices recognize the far-reaching precedent their decision and conduct in this matter involving Sieh are likely to set as it pertains to free speech rights and the need to ensure respect for the courts and for the right to a fair trial. Accordingly, I believe that in the end, they will do what is right and proper under the circumstances.