The gist of the decision in these cases is: (1) The broadcasts in question did not constitute a "clear and present danger" to the administration of justice. (2) Freedom of speech and of the press, under the Fourteenth Amendment, is paramount over the right to (a) fair trial (b) by jury, under the Fourteenth Amendment and the Maryland constitution, and includes a right to substitute trial by newspaper or radio for trial by jury. I am unable to concur in either of these conclusions or aspects of one conclusion.
In the factual aspect various contentions were urged upon us in support of this conclusion, not all urged by the same counsel or reflected in the court's opinion. It was faintly argued that it is not known how many persons *Page 332 the broadcasts reached — as if they were expected or intended to waste their poison on the desert air. The National Association of Broadcasters, which filed a brief as amicus curiae, evidently has no doubts on this score. In its brief it says, "While there are some 1,887 daily newspapers in existence, there are more than 2,631 radio stations licensed or about to be licensed to broadcast to the general public. There are now in excess of 83,000,000 radios and 1,474,416 television sets in operation in the United States. And it is estimated conservatively that every day more than 135,000,000 people utilize the services rendered by such radio broadcast licensees." The American Newspaper Publishers Association in a brief filed by it as amicus curiae says, "This membership embraces more than 780 newspaper publishers whose publications represent approximately 90% of the total daily and Sunday circulation of newspapers published in the United States. The Association is vitally interested in the issue presented in these cases, namely, as to the right of persons to publish news stories concerning matters of vital public interest which may come before a court, free from censorship or intimidation by the court." In Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 1265, 91 L.Ed. 1546, the same association filed a brief as amicus curiae, which contained a statement that was almost exactly the same as the one just quoted (except that "780" was then "700" and "approximately 90%" was "in excess of 80 per cent") and was quoted by Mr. Justice Jackson in his dissenting opinion. He prefaced the quotation by saying, "In this very case the American Newspaper Publishers Association filed a briefamicus curiae on the merits after we granted certiorari. Of course, it does not cite a single authority that was not available to counsel for the publisher involved, and does not tell us a single new fact except this one". After the quotation he remarked, "This might be a good occasion to demonstrate the fortitude of the judiciary." 331 U.S. 367, 397, 67 S.Ct. 1249, 1264, 91 L.Ed. 1546. Other contentions, which *Page 333 will not be mentioned, ranged from one pole to its opposite,viz., (a) Prejudice in a jury can always be prevented. So, why worry? (b) Prejudice in a jury can never be prevented. So, why try?
There is (we are told) a panacea for preventing prejudice in a jury, viz., examination of jurors on their voir dire. If perchance this panacea should prove to be less than a panacea, there is another one, viz., change of venue. The first part of this contention is ascribed to Judge Alvey. Garlitz v. State,71 Md. 293, 299, 18 A. 39, 41, 4 L.R.A. 601. Judge Alvey did not profess such faith — or any faith — in the questioning of jurors, an old procedure which then and now is habitually abused when there is no real prejudice but then and now is futile when actual prejudice is sufficiently deep-seated and widespread to be either unconscious or covered by perjury. In the Garlitz case a man had killed his wife on the street in Cumberland. So far as appears, no newspaper had printed more than the bare facts of the public killing, which without any printing would have quickly circulated in the community by word of mouth. The case did not involve a confession of the crime charged or other crimes or race or individual prejudice or any prejudice other than the "natural bias" of human beings against crime, which "in fair-minded men" produces impressions that are "always of a hypothetical nature" and do not prevent impartial consideration of facts and evidence. Judge Alvey, speaking for this court, refused to permit the right to challenge jurors for cause to be abused so as to exclude, not only prejudiced jurors, but all jurors except intellectual ciphers.
As a panacea, change of venue is no less futile than questioning of jurors. At best, neither panacea can avert a "clear and present danger" to the administration of justice, but either can only diminish or circumvent some consequences of an achieved obstruction of justice. Primarily, trial by jury is trial by a jury of the vicinage, selected from the whole body of those who are eligible. Change of venue is an exception, of necessity, *Page 334 to the ordinary course. If by the wilful acts of sensation-venders this necessity is created, or the ranks of the eligible are thinned to those who are unconscious of prejudice or dishonest enough to deny it, then the administration of justice is not merely endangered or threatened but actually obstructed.Downs v. State, 111 Md. 241, 73 A. 893, 18 Ann. Cas. 786, is cited as an indication of presumed toughness of fibre of jurors. It was rather an illustration of the narrow scope of review, on appeal, of the discretion of the trial judge on an application for removal. Later, in Lee v. State, 161 Md. 430, 157 A. 723, this court, by Chief Judge Bond, stated more broadly the scope of review and the question before the trial court: "The meaning of discretionary power in a trial court, and the rules governing review of discretionary orders on appeal, have often been stated in vague, loose terms which furnish no exact guidance; but for the purposes of this case it seems to us sufficient to observe only that the judgment and discretion must be exercised in solving the exact problem of the law, upon all the considerations which properly enter into the problem and form it. * * * The problem before the judges, when removing this cause from the circuit court for Worcester county, was solely that of the selection of a new jurisdiction which, so far as could be seen, was likely to be free of the hazard of an unfair prejudiced jury. * * * It was not the problem of keeping order in the town and in the courtroom, or of preventing bodily injury to the accused or his counsel, but the further problem of obtaining a fair impartial jury to decide the case in such an orderly trial. It was not a problem, again, of having it adjudicated as a fact, with certainty, that a trial in one jurisdiction or another would not be fair and impartial, but a problem of the appearance of danger of having a material amount of unfairness and prejudice drawn into the jury box with persons taken from that neighborhood. And we dwell on this distinction because, upon the representations made to this court, there would appear to us to have been confusion on the *Page 335 point in the lower court." 161 Md. at pages 441-442, 157 A. at page 727. In the Downs case eventually the jury disagreed and there was no verdict. If we should follow that case to its ultimate repository — in the gossip of forty years ago — we should find that the anti-Downs explanation of the outcome was that (a) arithmetic and bookkeeping tend more to confusion of a jury than to prejudice and (b) prejudice "backfired" by arousing a counter-prejudice against "higher-ups" supposed to be involved. In the instant cases one of the defenses was that what the appellants broadcasted the Police Commissioner had told them. This defense, now sympathetically received by this court, was first made in the Garden of Eden and is still made before juries, sometimes successfully.
Change of venue does not prevent obstruction of justice, but is only an attempt to flee from it. Flight from the radio is futile. The Maryland Reports teach us that race prejudice is usually more intense in homogeneous rural communities than in Baltimore.Dutton v. State, 123 Md. 373, 91 A. 417, Ann. Cas. 1916C, 89;Fountain v. State, 135 Md. 77, 79, 107 A. 554, 5 A.L.R. 908;Lee v. State, 161 Md. 430, 157 A. 723; Jones v. State,185 Md. 481, 45 A.2d 350. Unlike newspapers, the radio penetrates sparsely settled communities no less than large cities. The more rural the community, perhaps the fewer competing interests to distract attention from the radio.
This court mentions the fact that at James' trial before a judge without a jury his record came out [not without his consent] in medical testimony and his confession was admitted in evidence. This fact is irrelevant and also incomplete. Neither his record, which was indirectly disclosed, nor his confession, which was admitted in evidence as such, included the confession (which the broadcasts included) of rape upon an adult white woman a short time before the murder of the child. Aside from this discrepancy between the evidence admitted at the trial by law and that introduced in the *Page 336 trial by radio, comparison between the two trials is only the time-dishonored excuse or apology for lynch law, viz., that it usually reaches, more expeditiously, the same result as would be reached by due process of law. A "clear and present danger" or a "serious and imminent threat" to the administration of justice, or a "danger" or "threat" qualified by any other adjective, necessarily may be something short of an accomplished obstruction of justice. If this were not so, the danger or threat could not be averted or punished except by waiting till the victim is hanged and then proving him innocent. Mr. Justice Holmes, when he first gave utterance to the "literary phrase" "clear and present danger", in a prosecution under the Espionage Act [now 18 U.S.C.A. §§ 794, 2388] for attempting to cause insurbordination in the military forces, said, "We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206, 25 S.Ct. 3, 49 L.Ed. 154. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck's Stove Range Co., 221 U.S. 418, 439, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A., N.S., 874. The question in every case is whether 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 the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for *Page 337 words that produced that effect might be enforced. The statute of 1917 in section 4, punishes conspiracies to obstruct as well as actual obstructions. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime." Schenck v. United States,249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470.
No case has been cited, and I have found none, in which so much inflammatory matter, prejudicial to fair trial by jury, has been compacted into one short publication as was done in these broadcasts. The prejudicial nature of the ingredients of these broadcasts has been recognized by various courts, including this court. The words "clear and present danger" are no part of English law, but the fact that trial by newspaper is a clear and present danger to trial by jury is recognized by English judges. After Dr. Crippen murdered his wife and fled from England and had been arrested at Quebec, but before he was indicted, a London newspaper published a report of an alleged confession by him at Quebec. On citation for contempt the King's Bench Division (Mr. Justice Darling, Mr. Justice Pickford and Lord Coleridge) held that the court was not without jurisdiction because the publication occurred before indictment. "It is possible very effectually to poison the fountain of justice before it begins to flow". Rex. v. Parke, 1903, 2 K.B. 432, 437, quoted in GlobeNewspaper Co. v. Commonwealth, 188 Mass. 449, 450, 74 N.E. 682, 3 Ann. Cas. 761. On the facts, referring to the publication, Mr. Justice Darling said: "That was really saying that Crippen had made a confession and that he had confessed to the crime in respect of which he was charged, and that it was only a matter of dispute as to the term whether one calls it an admission or confession. The effect upon the prisoner would be precisely the same by whatever name it was called. It was that he had admitted himself guilty of the crime with which he was charged. Anything more calculated than *Page 338 that to prejudice the defense of a man can hardly be conceived. This statement is circulated among those who will be jurors at the trial, if the accused were committed for trial, because the jurors are drawn from the whole body of the county of Middlesex, in which this paper is widely circulated. No one can suppose that the jurymen entered the box in this case without ever having heard of it; but the less they hear of a case before they come to listen to the evidence the better, and newspapers do not help in the administration of justice by publishing what I can only describe as idle gossip, which at best may have been wormed out of those who had the man is custody or who were engaged in investigating the case when he was being charged before the judge in Quebec. * * * The court, therefore come to the conclusion that a contempt of court was committed here, as was admitted, once the point of law was got rid of, in the publication of this matter; and we are of the opinion that it was a very grave contempt of court. It is most important that the administration of justice in this country should not be hampered, as it is hampered in some other countries, and it is not enlarging the jurisdiction of this court — it is refusing to narrow the jurisdiction of this court — when we say that we are determined while we are here to do nothing to substitute in this country trial by newspaper for trial by jury; and those who attempt to introduce that system in this country, even in its first beginnings, must be prepared to suffer for it." Rex v. Clarke, Ex parte Crippen, 1910, K.B.D., 103 L.T.R. 636, 639-640.
On March 25, 1949, Lord Goddard, Lord Chief Justice, fined the Daily Mirror £ 10,000 and sent its editor to prison for three months for contempt of court in publishing a story about a murder case. The charge was that the publication had prejudiced the accused's defense. Lord Goddard (to quote, in the absence of an official report, the Associated Press report in the Baltimore newspapers) said: "Anybody who has had the misfortune, as this court has had, to read these articles *Page 339 must be left wondering how it can be possible for that man to obtain a fair trial after that which has been published in this paper. Not only does it describe him as a vampire and proceed to give reasons why they call him a vampire but in addition to saying he has been charged with the particular murder of which he has been charged, these articles go on to say not merely that he is charged with other murders, but that he has committed others and gives the names of persons, whom, they say, he has murdered."
This court politely passes over the English cases, as if they may reflect an un-American prejudice against trial by newspaper. Nelles and King, apologists for trial by newspaper, foes of punishment for contempt by publication and prophets of Nye v.United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, offer a less flattering explanation of the comparative paucity of American cases on the conflict between trial by newspaper and trial by jury, viz., lack of fortitude on the part of judges.Nelles and King, Contempt by Publication, (1928) 28 Columbia Law Review 401-431, 525-562. "The elimination of outside influence by publication seems impracticable where it would be most desirable, and undesirable in many cases where it might be practicable. It would be most desirable to eliminate it where it is most rampant — in sensational jury cases involving crime or sex. Obviously, however, efforts to eliminate it in such cases bulk almost negligibly. In only fifteen out of fifty-eight reported cases of publications held punishable since 1831 did the publication relate to a case on or near trial before a petit jury. Only five of these fifteen jury cases appear to have been of a character to interest the sensational press. [Two of these five were Ex parte Burns, Md. Crim. Ct. of Baltimore, 1927, before Judge O'Dunne, and Globe Newspaper Co. v. Commonwealth,188 Mass. 449 (74 N.E. 682, 3 Ann. Cas 761)]. Mr. Henry W. Taft's collection of instances in which the `trial by newspaper' of sensational cases has proceeded with impunity might easily be augmented by any reader from his own *Page 340 observation. Mr. Taft, a believer generally in a wide scope of unchecked judicial power, concedes that it is idle to expect that many judges will have the hardihood to brave the sensational press by punishing as contempts its circulation-breeding excesses. Except in this class of cases `trial by newspaper' is rarely an unmixed evil". [Footnotes omitted.] 28 Col. L.R. 548-549.
Fortunately for the administration of justice — to date — the Baltimore judges for the last decade or two (i.e., before and since adoption of Rule 904) have had the "hardihood" and also the judgment, tact and self-restraint, without exhibitions of power, personalities or pique on their part, to check and stop trial by newspaper in its worst forms. The Baltimore newspapers likewise have, in good faith and with apparent willingness, cooperated toward this end. In the instant cases, the newspapers are confronted by the possibility of "unfair competition" from the radio. Whatever the motives, one Baltimore newspaper publisher, as amicus curiae, has filed a most excellent and helpful brief in support of appellants' position.
In Globe Newspaper Co. v. Commonwealth, 1905, 188 Mass. 449,74 N.E. 682, 3 Ann. Cas. 761, a newspaper, which had published part of the evidence for the prosecution before the trial of a murder case, was convicted of contempt. In affirming the conviction the court said, "It needs no argument to show that such publications were highly improper, and were a gross interference with the administration of justice in an important criminal case. The effect of the first publication, as described in the second, was such as no newspaper publisher had a right to attempt to produce in anticipation of a trial. In Hunt v.Clarke, 58 L.J.Q.B. 490, Lord Justice Cotton said in the opinion: `If anyone discusses in a paper the rights of a case, or the evidence to be given before the case comes on, that, in my opinion, would be a very serious attempt to interfere with the proper administration of justice. It is not necessary that the court should come to the conclusion that a judge or a jury *Page 341 will be prejudiced, but if it is calculated to prejudice the proper trial of a cause, that is a contempt, and would be met with the necessary punishment in order to restrain such conduct.' The effect of this publication would naturally be to absolutely disqualify many persons to sit as jurors, and thus make more difficult the work of the court in endeavoring to impanel an impartial jury. It would be likely, even without their consciousness of bias, to affect the minds of other persons, who might be permitted to sit upon the jury, on the ground that they had not formed such an opinion as to render them unfit to perform this public duty. In other ways which it is not necessary to state, such publications might be detrimental to the public interest involved in the pending case." 188 Mass. at pages 452-453, 74 N.E. at page 684, 3 Ann. Cas. 761. The court does not say "clear and present danger" but in the words quoted describes a clear and present danger to trial by jury — not with respect to the judge, who must now be presumed to possess fortitude to surmount such danger.
Judge Bond was well aware of the danger (and the effect) of race prejudice and trial by newspaper to trial by jury. Referring to waiver of jury trial and election of trial without a jury, he said, "The reasons which prompt the choice of a trial before the court in one case and another are, of course, many and various. * * * But there are more important reasons. Fear of the effect of popular prejudice upon a jury, either because of the nature of the charge, or because of something connected with the accused personally, is a very frequent ground of choice. It is common for defendants with known bad records to prefer trial before the court alone. And when the crime has aroused anger in the community from which the jury is chosen, trial before the court is frequently preferred. * * * Charges of a revolting nature, as of crimes against women and girls, seem to be tried more frequently before the court. Trial before the court, again, has been preferred in cases in which it has been feared that newspaper discussion might *Page 342 render the jury impatient of any defense, or of some particular defense. Trial by the court offers an escape from some of the evils of `trial by newspaper', or, at least, some mitigation of them. Negro prisoners constitute a large proportion of the defendants in the criminal courts of Maryland and they frequently prefer this method of trial to avoid any race prejudice in the jury box. Negro men charged with crimes against women commonly elect trial by the court alone". The Maryland Practice of TryingCriminal Cases by Judges alone, without Juries, (1925), 11 A.B.A. Jour. 699, 702. Judge Eli Frank has expressed similar views. Trying Criminal Cases without Juries, 17 Virginia Law Review, 253.
At the argument it was suggested that because of the smoldering prejudice in any jury, courts should not try to prevent newspapers and the radio from arousing this prejudice. This suggestion is an inversion of the normal view of Mr. Justice Holmes that the greater the prejudice the greater the "clear and present danger" of fanning it into flames. Schenck v. UnitedStates, supra. Even though a Negro may eventually waive a jury trial to escape any race prejudice in a jury, he has a right to be protected, against newspapers and radio, from the necessity of such a choice. "A citizen should not be coerced to relinquish his right to a jury trial and submit to a trial before the court, in order to escape an intolerable situation of a trial before a prejudiced jury". Jones v. State, 185 Md. 481, 486,45 A.2d 350, 352.
At the argument appellants commended to our consideration the able brief for a radio station whose case has not yet been brought to hearing in this court but will actually be governed by the decision in the instant cases. In this brief we are admonished that it would be very "serious" "to place in hands of people who would condemn our system" the finding of Judge Gray "that [quoting from the brief, not Judge Gray] this man James, who by every fact was but a mad dog, had been deprived of his constitutional right of jury". Evidently the sacred right and duty of furnishing information to *Page 343 the public would stop short of letting "people who would condemn our system" know that we dispose of human "mad dogs" only by due process of law. The "mad dog" philosophy of criminal justice, which underlies lynch law, is a concise, familiar expression of precisely the kind of prejudice that was inevitably aroused by these broadcasts. (a) A Negro man, (b) who has a criminal record, is said to have confessed (c) murder of an eleven year old white girl and (d) recent rape of a white woman. Being a "mad dog", he should be disposed of as summarily as possible, without waste of time and money on an orderly trial, or even on investigation of his sanity. This philosophy may have no logical relation to race prejudice, but prejudice is not logical and a white man charged with crime against a Negro woman is not a "mad dog". This kind of prejudice is actually intensified by efforts of this court to combat it after the event. Cf. Dutton v. State, supra; Fountainv. State, supra; Lee v. State, supra, also 163 Md. 56; Jones v.State, supra. Reversals on such "technicalities" as denial of due process, and consequent new trials, are regarded as intolerable delays which illustrate the advantages of the "mad dog" philosophy.
Until this collision with the right of trial by newspaper and radio, this court has looked far to find prejudice in evidence or mention, before a jury, of other crimes or of confessions not proved to be admissible. In Dobbs v. State, 148 Md. 34, 129 A. 275, the court held that in a trial without a jury admission of evidence of another crime was reversible error. Three judges dissented because the case had been tried before three experienced judges without a jury. Four of the eight judges were of the opinion that permitting mention of other crimes in the State's Attorney's opening statement was also reversible error. This court has been unanimous in the opinion that evidence as to admissibility of a confession should be heard out of the presence of the jury, because the jury is apt to be unduly influenced by knowledge of a confession that is incompetent and *Page 344 inadmissible, although the confession may have been excluded and the jury instructed not to consider it. Smith v. State,189 Md. 596, 604-606, 56 A.2d 818, 822-823. Immediately after the argument in the instant cases, the court heard reargument of a murder case and was a second time equally divided on the question whether permitting mention, in the presence of the jury, of the fact (not the contents) of a statement by the deceased, which out of the presence of the jury was afterwards ruled not admissible as a dying declaration, was reversible error. The court now says that "we are not concerned with deliberate attempts to influence the outcome of a pending case" and that "the statements were not argumentative, but factual". A few weeks ago the relative force of "argumentative" and "factual" statements was appraised in holding that error in stopping, and directing the jury to disregard, a legitimate argument for the accused was not reversible error because the jury could have made the argument for themselves after they were directed to disregard it. Wood v.State, 192 Md. 643, 651-653, 65 A.2d 316, 320-321. Appellants understand their business and the effect of their broadcasts. They intend the natural consequences of their deliberate acts. The difference between intent and effect is not material. Our concern with appellants is not with the effect of sin upon their consciences but with the effect of their broadcasts upon the administration of justice. To hold that, after a juror is sworn to decide a case on the evidence alone, it may be assumed that he will violate his oath and pursue "factual statements" and surmises unsupported by evidence, but before he is sworn newspapers and radio have a constitutional right to poison his mind, is a grim way to keep the word of promise to the ear and break it to the hope.
In quantity, the Baltimore judges necessarily have the largest experience regarding the effect of prejudice on jury trials. In quality, Judge Gray's experience may be more varied. His circuit includes most of the second or third largest "city" in Maryland (suburban Washington) *Page 345 and also several of the most rural counties. He says, "Now, the court can not help but feel that the broadcast referred to in these cases must have had an indelible effect upon the public mind and that that effect was one that was bound to follow the members of the panel into the jury room. The court hardly needs evidence in this factual situation to reach the conclusion that Jame's free choice to either a court trial on the one hand and a jury trial on the other, has been clearly and definitely interferred with." I think Judge Gray is right.
This court holds that under the decisions of the Supreme Court (Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346; Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295, and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546) the judgments below violate the freedom of speech and of the press under the Fourteenth Amendment. If this is the correct interpretation of these decisions, of course they are conclusive. If there had been no right of trial by jury in Maryland, they would have been conclusive. In the Craig case, it is said, "Conceivably, a plan of reporting on a case could be so designed and executed as to poison the public mind, to cause a march on the court house, or otherwise so disturb the delicate balance in a highly wrought situation as to imperil the fair and orderly functioning of the judicial process." 331 U.S. at page 375, 67 S.Ct. at page 1254, 91 L.Ed. 1546. A power to punish for contempt, which comes into being only when "a march on the court house" is begun — or called, is an imponderable. For practical purposes, under the decisions to date, there is no power to punish, as contempt, publications which attempt to coerce the administration of justice by judges. This is not because the court professes no concern for the administration of justice; on the contrary it professes great concern. "The other evil feared, disorderly and unfair administration of justice, is more plausibly, associated with restricting publications which touch upon pending litigation. The very word `trial' connotes decisions *Page 346 on the evidence and arguments properly advanced in open court. Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper." Bridges v.California, 314 U.S. 252, 271, 62 S.Ct. 190, 197, 86 L.Ed. 192, 159 A.L.R. 1346. The court has not said that the fair and orderly administration of justice may be subordinated to freedom of speech and comment. In the Pennekamp case, supra, the court said: "The [Bridges] case placed orderly operation of courts as the primary and dominant requirement in the administration of justice". 328 U.S. 331, 334, 66 S.Ct. 1029, 1031, 90 L.Ed. 1295. "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."328 U.S. 331, 347, 66 S.Ct. 1029, 1037, 90 L.Ed. 1295. "Neither those cases [Bridges and Pennekamp] nor the present one raises questions concerning the full reach of the power of the state to protect the administration of justice by its courts."Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 1253, 91 L.Ed. 1546.
The reason why attempts to coerce judges by threats and other attacks are held not to be "clear and present dangers" to the administration of justice is that all judges are expected to have more "fortitude, firmness, wisdom and honor" than can be expected from everyone in private life. In the three cases this is theratio decidendi and the point of departure between the majority and the minority of the court. Mr. Justice Frankfurter, in his dissenting opinions in the Bridges case (Chief Justice Stone, Mr. Justice Roberts and Mr. Justice Byrnes concurring) and theCraig case (Chief Justice Vinson concurring) and his concurring opinion in the *Page 347 Pennekamp case, and Mr. Justice Jackson, in his dissenting opinion in the Craig case, sharply deny what Mr. Justice Jackson calls "the myth that judges are not as other men are."331 U.S. 367, 396, 67 S.Ct. 1249, 1264, 91 L.Ed. 1546. The "myth" is not a fact; it is a working fiction, i.e., it is law. It is not for us to pass upon the wisdom of these decision or the philosophy that underlies them. The decisions and the philosophy are at least understandable. Judge-baiting is now a constitutional right. The court in effect says that "judges arenot regarded as other men are." This is not flattery; it gives judges no rights or protection but imposes on them, and not on their assailants, responsibility for coercion of them.
The question that now confronts us is whether these decisions and the underlying philosophy deny the state power to prevent or punish poisoning the fountain of justice in trial by jury. The relevant features of the cases are: (a) None of the three cases involved any danger to jury trial. In the Bridges and Craig cases the accused timed their blasts at the judge after the jury had completed their function. (b) The "myth" that judges are regarded as supermen is inapplicable to jurors, who are only a cross-section of the community, hold no office and have only ephemeral existence as jurors. (c) All references to jury trial in majority or minority opinions recognize this difference between judges and jurors. (d) None of the justices have suggested that jurors may be like judges in this respect, though the dissenters, denying the "myth", have suggested that judges may be not wholly unlike jurors.
In the Bridges case, referring to one of the editorials in question, the court said, "To regard it, therefore, as in itself of substantial influence upon the course of justice would be to impute to judges a lack of firmness, wisdom, or honor, which we cannot accept as a major premise." 314 U.S. 252, 273, 62 S.Ct. 190, 199, 86 L.Ed. 192, 159 A.L.R. 1346. In the same case Mr. Justice Frankfurter said, "If it is true of juries it is *Page 348 not wholly untrue of judges that they too may be `impregnated by the environing atmosphere.' Mr. Justice Holmes in Frank v.Mangum, 237 U.S. 309, 349, 35 S.Ct. 582, 596, 59 L.Ed. 969,"314 U.S. 252, 300, 62 S.Ct. 190, 211, 86 L.Ed. 192, 159 A.L.R. 1346. In the Pennekamp case, referring to an editorial, the court said, "The comments were made about judges of courts of general jurisdiction — judges selected by the people of a populous and educated community. They concerned the attitude of the judges toward those who were charged with crime, not comments on evidence or rulings during a jury trial. Their effect on juries that might eventually try the alleged offenders against the criminal laws of Florida is too remote for discussion. Comment on pending cases may affect judges differently. It may influence some judges more than others. Some are of a more sensitive fiber than their colleagues. The law deals in generalities and external standards and cannot depend on the varying degrees of moral courage or stability in the face of criticism which individual judges may possess any more than it generally can depend on the personal equations or individual idiosyncrasies of the tort-feasor. The Germanic, 196 U.S. 589, 596, 25 S.Ct. 317, 318, 49 L.Ed. 610; Arizona Employers' Liability Cases, 250 U.S. 400, 422, 432, 39 S.Ct. 553, 556, 560, 63 L.Ed. 1058, 6 A.L.R. 1537. We are not willing to say under the circumstances of this case that these editorials are a clear and present danger to the fair administration of justice in Florida. Cf. Near v.Minnesota, 283 U.S. 697, 714-715, 51 S.Ct. 625, 630, 631, 75 L.Ed. 1357. What is meant by clear and present danger to a fair administration of justice? No definition could give an answer. Certainly this criticism of the judges' inclinations or actions in these pending non-jury proceedings could not directly affect such administration. This criticism of their actions could not affect their ability to decide the issues. Here there is only criticism of judicial action already taken, although the cases were still pending on other points or might be revived by *Page 349 rehearings." 328 U.S. 331, 348, 66 S.Ct. 1029, 1039, 90 L.Ed. 1295. Referring to a suggestion that a judge may be influenced to placate an accusing newspaper to secure reelection, the court said, "In this case too many fine-drawn assumptions against the independence of judicial action must be made to call such a possibility a clear and present danger to justice. For this to follow, there must be a judge of less than ordinary fortitude without friends or support or a powerful and vindictive newspaper bent upon a rule or ruin policy, and a public unconcerned with or uninterested in the truth or the protection of their judicial institutions." 328 U.S. 331, 349, 66 S.Ct. 1029, 1038, 90 L.Ed. 1295. In the Craig case, referring to an editorial which denounced a judge and tried to force him to grant a new trial in a landlord and tenant case after he had required a recalcitrant jury to render a directed verdict, the court said, "The fact that the jury was recalcitrant and balked, the fact that it acted under coercion and contrary to its conscience and said so were some index of popular opinion. A judge who is part of such a dramatic episode can hardly help but know that his decision is apt to be unpopular. But the law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. Conceivably a campaign could be so managed and so aimed at the sensibilities of a particular judge and the matter pending before him as to cross the forbidden line. But the episodes we have here do not fall in that category. Nor can we assume that the trial judge was not a man of fortitude." The court also said, "Judges who stand for re-election run on their records. That may be a rugged environment." 331 U.S. 367, 377, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546.
The Bridges case appears to have been cited in almost fifty cases in state courts or lower federal courts. We have been referred to no case, and I have found none, in which the effect of a publication on trial by jury was *Page 350 involved and in which either the Bridges, Pennekamp or Craig case was cited.
This court now says: "It is suggested that the Supreme Court, which has not hesitated to extend the constitutional protection to procedural due process, might take a different view where juries or potential juries are concerned, rather than trial judges. The distinction is hardly tenable. Judges are not so `angelic' as to render them immune to human influences calculated to affect the rest of mankind. Conversely, while juries represent a cross-section of the community, it cannot be denied that in every community there are citizens who by training and character are capable of the same firmness and impartiality as the judiciary". In the Pennekamp case Mr. Justice Frankfurter says, "To deny that bludgeoning or poisonous comment has power to influence, or at least to disturb, the task of judging is to play make-believe and to assume that men in gowns are angels."328 U.S. 331, 359, 66 S.Ct. 1029, 1043, 90 L.Ed. 1295. This is Mr. Justice Frankfurter's view, not the view of the majority of the court. With great respect for the opinion of my colleagues, I think the conclusion of this court (a) purports to follow the Supreme Court decisions, but (b) rejects that court's doctrine, and adopts the minority view, as to the relation of judges to publications and (c) departs from that court's decisions, and from the reasoning of all the justices, by applying the disputed doctrine, regarding judges, to jurors, to whom none of the justices have applied it.
To interpret, and apply to the facts of the instant cases, these three decisions on freedom of speech and of the press is a difficult problem. In undertaking it we cannot ignore other Supreme Court decisions on other constitutional rights during the long period of seven years since the Bridges case and the more gradual period of the previous twenty-five years. No recent constitutional development has been more marked or more rapid than the expansion of the Fourteenth Amendment *Page 351 with respect to (a) so-called "procedural due process" and the all-comprehensive right to a fair trial in criminal prosecutions and (b) both the substantive and the adjective law regarding race prejudice and discrimination. Even outside the field of constitutional rights, if Maryland were part of the District of Columbia, James' confession would not have been admissible in evidence. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170; James v. State, 193 Md. 31, 65 A.2d 888. Admission of an involuntary confession in evidence may amount to denial of due process. Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166. Within a few months we have subordinated the Maryland concept of due process to the Supreme Court decisions regarding the right to counsel in a criminal case (Raymond v. State exrel. Szydlouski, 192 Md. 602, 65 A.2d 285), and have overruled our decisions regarding covenants in deeds involving race discrimination (Goetz v. Smith, 191 Md. 707, 62 A.2d 602), to conform with Supreme Court decisions. A little earlier four justices of the Supreme Court voted to reverse a unanimous decision of this court which held that the drawing of jurors in Baltimore did not involve race discrimination. Zimmerman v.State, 191 Md. 7, 59 A.2d 675, Id., 336 U.S. 901, 69 S.Ct. 469. Unless the Supreme Court says so, I cannot believe that the broad fundamental right to a fair trial can lawfully be defeated by a blast from the radio.
I think the judgments should be affirmed. *Page 352