Paul Carrington 2013-06-27 02:42:48
Publicity on an intense scale could not but follow the assassination of a President. Especially when the events involved were so shocking and were so dramatic a departure from the gala day planned for November 22nd. As rapidlyoccurring events of that day were reported and these reports were supplemented and repeated so frequently during the next day and night, all of us were crammed with bizarre theories as to the motives for the criminal attack upon President Kennedy, Governor Connally and Policeman Tippitt and as to possible conspirators with the man accused of firing the fatal shots. The development of media for publicity has been so great since the last preceding event of comparable import, that an unprecedented surge of publicity probably could not have been avoided. Beginning early Friday afternoon, reporters from all over the nation and from other countries flew to Dallas. A large group of highly talented reporters gathered in Dallas. Beginning Friday evening and throughout Saturday and Saturday evening there were repeated presentations of the crimes that had been committed, with nearly everybody hanging on every new report. These reports detailed everything that could be learned about the circumstances of the crimes, about the prisoner charged with committing them, the life he had led, and about all with whom he had been associated in the past. These reports were continuous except that there were interruptions for eulogies for the deceased President. I limit the period of time under discussion to events ending Saturday night and thus omit all reference to the death of Oswald Sunday morning and to the events and reports that followed it since litigation with reference to it is still pending. The points I wish to make can be adequately presented, despite this limitation. To an extent never before known, all of the people of this country shared in a single emotional tension. At the time experienced reporters doubtless appreciated more than others of us the excited desire of most people for all possible information. The demands of the reporters for all information possessed by everyone were insatiable. Now that the reporters, the news media and the public have less of the heat and excitement of those dreadful days, it seems to me that we must all attempt to understand how naturally the reporters acted in so aggressively pressing repetitive demands upon everyone having or suspected of having any information and how naturally law enforcement officers reacted to such demands. These officers had never before been faced with such a deluge or with a situation so saturated with the keenest of public interest. Both the reporters and the officers, it seems to me, were acting without adequate standards of conduct adopted to guide them in such an emergency. Both did the best they knew how to draw a line that cannot be intelligently drawn by any individual in such a situation on a spur-of-the-moment impulse, between what information could with propriety be sought from law enforcement officers or given by them and what should not. I prefer now to assume that every reporter was honestly doing his duty as he saw it to inform all of us as fully as possible, and that every law enforcement official was doing his best to perform his duty to Oswald and also to perform what he deemed to be duties to the public in such a situation. If on publication of full reports there are developed isolated instances that are exceptions to my assumption, I confidently predict that the exceptions will be rare and that the large majority of the reporters and of the law enforcement officials will be found to have violated no ethical standard which has ever been adopted to define their duty on the subject of publicity with respect to crimes or those charged with crime. Discredit to Justice And yet, what did occur was nonetheless an orgy of publicity that should never be repeated. In the eyes of members of the legal profession across the country that orgy of publicity about Oswald and his alleged crimes and the giving of details that would be evidence on any trial relating to such crimes, constituted an abuse of the freedom of the press, constituted an abuse of Oswald and created a serious hazard that, if convicted, his conviction might be reversed on account of the publicity. This excess of publicity has been called a “discredit to the American system of justice.” Assuming all this, I wish to urge that steps now be started to establish definite standards for the guidance not only of all lawyers involved in any such emergency but of all law enforcement officials and of all reporters and others connected with news media. As stated by Mr. Justice Jackson in Shepherd vs. Florida, 241 U.S. at 53, “Newspapers, in the enjoyment of their constitutional rights, may not deprive accused persons of their right to fair trial.” The opinion of Mr. Justice Jackson continued to state that whenever freedoms of the press are “so abused as to make fair trial in the locality impossible,” a conviction must be reversed and the case removed for trial to a forum “beyond its probable influence.” See also Irvin vs. Dowd, 366 U.S. 717, Rideau vs. Louisiana, 373 U.S. 723 and Craig vs. Harney, 331 U.S. 367. Assume that upon an Oswald trial the atmosphere of that trial was the result of continuing intense publicity to that date. In that event it would seem to me that publicity sufficient to prevent a fair trial in the locality probably would prevent a fair trial in any forum in the United States. Undeniably the area of influence of the publicity during the period that we are talking about was nationwide. With the development of the facilities of the news media such a situation may well develop with respect to persons charged with crimes of statewide or national interest. Does not this argue for limitations adopted in advance and imposed automatically in such an event? Now that the media of publicity can and do intensify and magnify scenes of violence and carry them into a very large proportion of our homes, not homes in the vicinity alone but those across the entire country, how otherwise can we assure a fair trial for a Sacco or Vanzetti? Or for a Dr. Shepherd? Or a Merriwether? Or a Hauptman? Great emotion does develop from reports of crime involving others than celebrities. Whether or not the publicity relates to people already famous, the consequences to our profession and to our system of justice may become tragic. Of course, limitations should be imposed and enforced upon all members of the bar. Constitutional problems as to enforcing restrictions upon members of the press would not apply here. The American Bar and the Texas Bar have long had provisions in their codes of ethics relating to publicity by lawyers with reference to trials or prospective trials. Our State Bar committee, considering revision of our Texas code of ethics, recommended a change in Canon 17, dealing with this subject, more explicitly forbidding attorneys “to aid or abet in any way, the publicizing … by newspaper, television, radio or otherwise” of trials or prospective evidence or developments as to prospective trials of pending matters (see December 1963 issue of the Texas Bar Journal at page 1001.) This committee recommendation was made and with the printer before November 22. I favor the strengthening of Canon 17 quite soon, especially in the light of our recent lesson about publicity. But the mere adoption of a more explicit canon dealing with the subject will not be enough. Should we not explain the impact of the amended canon so that he who runs cannot fail to understand? Should not standards based on it be formulated or at least a series of opinions of our State Bar Committee on Professional Ethics interpret it in detail? We should be sure that others to whom we are proposing restrictions upon publicity understand that we are enforcing even stricter limitations upon the members of our own profession. When we consider formulating limitations for law enforcement officials who are not members of the bar, it would seem worthy of consideration to what extent they may also be officers of a court and subject to restrictions that may be imposed on them in that capacity. I suggest that a new State Bar Committee be named to study the problems of too much publicity about pending court matters and that it study that approach. A more effective approach would probably be for the committee studying the formulation of such standards for the guidance of law enforcement officials of this state who are not attorneys to suggest the appointment of a committee by a statewide organization of such officials; then conferences with such a committee could develop standards of conduct, rules or perhaps canons of ethics that might be voluntarily assumed by law enforcement officials. If the limitations so formulated are clear and reasonable and the necessity for such limitations effectively presented, a practical solution for most situations might be achieved. To whatever extent such efforts do not achieve the results we desire such a State Bar committee might propose state legislation to be enforceable against all law enforcement officials of this state, in proceedings in court for contempt. Though there may have been efforts to develop such limitations as to non lawyer law enforcement officials in other states, I have not heard of them and know of none in Texas. But when we consider limitations upon news media and associated individuals, we face difficulties that need careful study by a State Bar committee such as I am suggesting. We cannot obtain our objective by merely “adopting” the English precedents. In England it has long been recognized by the press, the law enforcement officials and by everyone, that a trial court can and will rigidly protect its own procedures for attaining justice by punishing for contempt anyone who participates in the publication of evidence in advance of the trial that if believed would cause conviction of one charged with crime. Mr. Justice Black, in Bridges vs. California, 314 U.S. 258, at 263-265, presents the problem. In reversing in a single opinion convictions by the state courts of California of contempt of court by the publisher and the managing editor of the Los Angeles Times and also of Harry Bridges, Mr. Justice Black stated: “For, the argument runs, the power of judges to punish by contempt out-of-court publications tending to obstruct the orderly and fair administration of justice in a pending case, was deeply rooted in English common law at the time the Constitution was adopted. That this historic contention is dubious has been persuasively argued elsewhere** In any event it need not detain us. For to assume that English common law in this field became ours is to deny the generally accepted historic belief that ‘one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press’** More specifically it is to forget the environment in which the First Amendment was ratified** No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition, than the people of Great Britain had ever enjoyed.” Although Mr. Justice Black was speaking for the majority of the Supreme Court and there were four dissenters, it seems clear that in the intervening years there has been increased acceptance in the court of his views about the absolute imperative nature of the freedoms guaranteed by the First Amendment. Accordingly, I cannot say what the law now is in the absence of a statute, as to restricting members of the press in the exercise of the freedoms asserted by them under the First Amendment. This is true even though what they publish may impair the administration of justice in the trial of a case. In Bridges, the majority stated that no summary conviction for contempt of court based on a publication relating to court proceedings may validly be imposed by a state in an attempt to protect the administration of justice in its own courts, unless the situation involves a “clear and present danger” that “an extremely serious” interference with justice will occur; even then, that there must be a “degree of imminence extremely high before utterances can be punished.” Query whether these standards permitting a state to convict for a contempt of court under limited circumstances might have applied to so traumatic a situation as that we are discussing, assuming, of course, that the proceeding is not summary, is after appropriate notice, and involves a full hearing with all of the protective procedures necessary to assure a fair trial of the person charged. I would prefer that such a study committee fully consider the elimination in Texas of most, if not all, proceedings for summary convictions for contempt, certainly whenever the principle of freedom of utterance may be urged as a defense. It should also fully consider recommending procedures for trials on charges of contempt when interference with the administration of justice by publicity is concerned. It seems to me that, if feasible, it would be well for our Texas statutes or rules of court to define such procedures more definitely than they do. But as applied to the field of publicity, to which this article is limited, I am far from certain how such a proposal of our State Bar would fare in the Texas Legislature, particularly if we espouse an abstract principle of the administration of justice and are opposed by spokesmen for the news media asserting that the people have a right to know. We have learned from the recent experience of the Arizona Bar with realtors that we must seek realistic solutions to a problem involving conflict with an industry expert in public relations. It has long been recognized in state and federal courts that the power of a court to impose sanctions for contempt of court can be regulated by statute, at least to the extent that the legislation regulates statutory rather than constitutional courts: Frankfurter and Landis, 37 Harv. Rev. 1010 (1924). For generations there have been statutes limiting the contempt powers of courts, for example, the Pennsylvania statute of 1809, the New York statute of 1829 and the Act of Congress of 1831 (now U.S. Code Title 18, Section 401). Thus, trial courts may be legislatively restricted with respect to contempts; but statutory definition of the right of a court to punish for contempt of court, even if the right defined is a limited one, is subject to constitutional limitations including those arising under the First Amendment or under comparable provisions of a state constitution. Convictions under such a statutory procedure were reversed in Bridges, supra. In this area the proposed State Bar committee should thoroughly study the alternative possibilities and make its recommendations in the light of them. I commend to the members of such a committee, as a starting point, a report by a Los Angeles bar committee on the subject: 17 Federal Rules Decisions, 167-182. In the light of all that has happened I believe that such a State Bar committee should study anew the impact on all that is referred to in this article, on the Canons of Judicial Ethics of the American Bar Association, Canon 35 in particular, and last fall’s action of the Judicial Section of the Texas State Bar as to Texas Canons of Judicial Ethics. Should the discretion now vested in the Texas trial judge of permitting or forbidding the taking of photographs during court proceedings or the broadcasting or televising of court proceedings remain as at present, be limited or entirely eliminated as to criminal proceedings? If limited, should the court ever permit such publicity during a criminal trial without the written consent of counsel for the defense and for the state? Comparably, is it feasible to prohibit by statute or court rule the dissemination of photographs or the publicizing or televising of a picture of one charged with crime, at any time up to trial, or the publicizing of any evidence relating to the alleged crime or to the guilt or innocence of the accused, unless the publication be with a consenting order of the trial court based on the written consent of counsel for the defense and the prosecutor? I fear the possibility that such a statute or rule of court might be held to infringe the constitutional guaranty of freedom of utterance of the person contending for his right to publish, even if the only sanction for the violation of the statute or rule were a small fine imposed only after a fair trial on the guilt or innocence of the contempt charge. If not this formula, some other formula must be found if reasonable restraints voluntarily accepted by the news media cannot be negotiated or upon adoption are not observed. The decisions of the Supreme Court about reversals of convictions, if after too much publicity, plus the decisions of the Supreme Court greatly restricting sanctions against those who assert a constitutional right to publish, may develop into a dilemma from which the legal profession must find an escape. In conclusion, I wish to emphasize that I am attempting only to raise questions to be solved and not to propose their solution. To that end, I urge that a State Bar committee be directed to explore all the possibilities for avoiding in the future excesses of publicity on the part of attorneys and officers of our courts, on the part of all law enforcement officials, and on the part of all news media and those connected with them, whenever the publicity relates to a crime or the alleged criminal. It is essential that we avoid a repetition of the excess of the 22nd and 23rd of November. PAUL CARRINGTON Former State Bar President, Paul Carrington is the senior partner of the Carrington, Johnson & Stephens firm of Dallas. He has also served the Bar as vice-president, director, chairman of the Labor Law Section, Section on Corporation, Banking and Business Law and the Committee on Revision of Corporation Laws. Currently he is chairman of the Advisory Committee. Mr. Carrington is a former president of the Dallas Bar Association, member of the House of Delegates of the American Bar Association and chairman of the ABA Section on Corporation, Banking and Business Law. He is a graduate of Harvard Law School and was admitted to the bar in 1919.
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