OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.

On June 14, 1965, the Justices submitted the following answers to questions propounded to them by the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order adopted

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by the House on June 3, 1965, and transmitted to us on June 7. The order recites the pendency before the General Court of a bill, House No. 3991, a copy of which was transmitted with the order. The bill is entitled, "An Act protecting trial by jury from influence by the divulgence, broadcast or publication of certain information." The order declares that grave doubt exists as to the constitutionality of the bill, if enacted.

The bill inserts a new Section 39 in G. L. c. 268, which is entitled "Crimes against Public Justice." The section in its entirety is as follows:

"[1] [a] No officer of the court shall divulge to any newspaper, magazine, radio station, television station, or any other news-disseminating agency, or to any employee, servant or agent thereof, any information prejudicial to a defendant's right to a fair and impartial trial by jury in a criminal proceeding; [b] and no newspaper, magazine, radio station, television station, or any other news-disseminating agency or employee, servant or agent thereof, shall publish or broadcast, or cause to be published or broadcast, any statement or information prejudicial to a defendant's right to a fair and impartial trial by jury in a criminal proceeding.

"[2] Any statement or information, whether fact or opinion, shall be deemed to be prejudicial to a defendant's right to a fair and impartial trial by jury if it relates (a) that any person has confessed to a crime; or (b) the contents of any confession or part thereof; or (c) that any person arrested for having committed a crime has ever committed, been suspected of, accused of, arrested for, indicted for [,] convicted of or acquitted of the commission of any other crime; or (d) transcripts, reports or summaries of occurrences taking place during the course of proceedings from which the jury has been excluded by the trial court.

"[3] Repetition in the same news media of any publication, broadcast or divulgence which violates this section shall not be considered an additional violation of this section

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but shall be considered as a factor in determining punishment [;] however, repeated publication, broadcast or divulgence after a conviction under this section shall be deemed to be a new violation.

"[4] It shall be no defense to a prosecution under this section that a statement, information, opinion, publication or broadcast (a) has no prejudicial effect on the trial; or (b) was issued without intent to prejudice the trial; or (c) is true.

"[5] Violation of this section by any person shall be a contempt of the court which has trial jurisdiction over the criminal proceeding and such person may be prosecuted upon complaint verified upon oath and be punished for such contempt.

"[6] Any person prosecuted under this section shall have the right to a trial by jury. Nothing in this section shall be construed so as to alter the contempt power of any court."

The questions are:

"1. Is the proposed bill a violation of the First Amendment of the Constitution of the United States relative to free speech?

"2. Is the proposed bill a violation of Article XVI of the Declaration of Rights?"

The main purpose of the bill is to put an end, wherever possible, to prejudicial trial publicity generated or disseminated outside the court room. This evil of growing magnitude has been deplored in decisions of ours and of the Supreme Court of the United States. See, for example, Commonwealth v. Geagan, 339 Mass. 487, 501; Sandrelli v. Commonwealth, 342 Mass. 129, 138; Commonwealth v. Crehan, 345 Mass. 609; Irvin v. Dowd, Warden, 366 U.S. 717; Rideau v. Louisiana, 373 U.S. 723. See also Delaney v. United States, 199 F. 2d 107 (1st Cir.). Undoubtedly the Legislature can provide safeguards to insure to defendants in criminal cases the right to a fair and impartial trial by jury. Indeed, the Supreme Court of the United States has indicated that weight would be accorded to legislation in

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protection of the constitutional right. Bridges v. California, 314 U.S. 252, 260-261. Wood v. Georgia, 370 U.S. 375, 385-386. See Cantwell v. Connecticut, 310 U.S. 296, 307-308. See also Maryland v. Baltimore Radio Show, Inc. 338 U.S. 912, 919-920.

The basic problem is whether House No. 3991 is repugnant to either Constitution because it is an unreasonable interference with the rights of free speech and freedom of the press. There are also puzzling subsidiary questions due to vagueness and lack of clarity in various parts of the proposed act. See Commonwealth v. Carpenter, 325 Mass. 519, 521, and cases cited.

Section 39 does not create an offence for which a specific penalty is provided. Paragraph 5 shows that the bill seeks to make certain acts, none too clearly described, by any of two classes of potential offenders who are outlined in paragraph 1, "a contempt of the court which has trial jurisdiction over the criminal proceeding." These acts, as broadly given in paragraph 1, relate to statements divulging, in some circumstances, "information prejudicial to a defendant's right to a fair and impartial trial by jury in a criminal proceeding."

The prohibited statements prejudicial to a defendant's right are somewhat more closely specified in paragraph 2 as being of four kinds, although there well may be others. The first is "(a) that any person has confessed to a crime." We are not sure whether "person" is intended to be restricted to the defendant whose right to a fair and impartial trial by jury is sought to be protected, and whether the "crime" which is "confessed" must be the one which is the subject of that trial. The second is "(b) the contents of any confession or part thereof." Doubt continues as to the confession as to which this is a reference. The third is "(c) that any person arrested for having committed a crime has ever committed, been suspected of, accused of, arrested for, indicted for [,] convicted of or acquitted of the commission of any other crime." Presumably, "any person" is the one so described in (a), whoever that may

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turn out to be, but it would not have to be. The fourth is "(d) transcripts, reports or summaries of occurrences taking place during the course of proceedings from which the jury has been excluded by the trial court." The last phrase looks very much as though this allusion is to a particular pending trial, but it need not be.

Further uncertainty arises when the provisions herein-before discussed are considered with the phrase in paragraph 4 to the effect that it shall be no defence to a prosecution under this section if what was done "(a) has no prejudicial effect on the trial." The question poses itself that if there must be a choice made between the constitutional right of fair trial on the one hand and the constitutional rights of speech and freedom of the press on the other, whether the latter should give way in a situation where there is no effect upon the former.

An idea of the intended scope of the proposed Section 39 appears from paragraph 1, which shows that the bill is aimed against two classes. The first class are officers of the court, a title not otherwise defined. The term clearly applies to members of the bar (Matter of Keenan, 313 Mass. 186, 198) including public officeholders and prosecutors (State v. Van Duyne, 43 N. J. 369, 389), as well as to other persons having duties in the administration of the courts, such as court officers, and clerks of courts, and their subordinates. United States v. McCabe, 129 Fed. 708, 709 (1st Cir.). United States v. Swift, 139 Fed. 225, 227 (1st Cir.). We are unable to say whether sheriffs and their subordinates or a police officer conducting a court prosecution is included. We do not speculate as to what, if any, other classes of individuals might be embraced by the term.

The second class at which the bill is aimed are newspapers, magazines, radio stations, television stations, or any other news-disseminating agencies, or their employees, servants, or agents. There is no definition as to what the term "other news-disseminating agency" may include. We deem it to be free from doubt that those we have classified as court officers have no right to divulge to news media

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information prejudicial to any defendant's right to a fair and impartial trial in a criminal proceeding, and the news media have no reasonable cause for complaint in this limitation upon their sources of information. We express the thought that there could be a constitutional question based upon the failure to include other publications of the same material, such as books and legal periodicals.

Whether the proposed bill is in violation of the First Amendment protecting the right of free speech or freedom of the press will be entirely dependent upon decisions of the Supreme Court of the United States, many of which are by a divided court. Pennekamp v. Florida, 328 U.S. 331, 335. Craig v. Harney, Sheriff, 331 U.S. 367, 373. The approach of that court to such questions has been through the use of the admittedly indefinite phrase, "clear and present danger," which has developed into somewhat of a cliche. In Schenck v. United States, 249 U.S. 47, 52, Mr. Justice Holmes said: "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." In Gitlow v. New York, 268 U.S. 652, 671, the question presented was said by Mr. Justice Sanford in the opinion of the court to be whether the publications created "such likelihood of bringing about the substantive evil as to deprive . . . [them] of the constitutional protection." Mr. Justice Holmes and Mr. Justice Brandeis disagreed (p. 672) as to the application of the "clear and present danger" doctrine. In Bridges v. California, 314 U.S. 252, Mr. Justice Black in referring to the quotation from the Gitlow case said (p. 261), "How much `likelihood' is another question, `a question of proximity and degree' that cannot be completely captured in a formula." After making the above quotation from the Schenck case, it was said (p. 261-263): "We recognize that this statement, however helpful, does not comprehend the whole problem. As Mr. Justice Brandeis said in his concurring opinion in

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Whitney v. California, 274 U.S. 357, 374: `This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present.' Nevertheless, the `clear and present danger' language of the Schenck case has afforded practical guidance in a great variety of cases in which the scope of constitutional protections of freedom of expression was in issue. . . . What finally emerges from the `clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law `abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."

We cite three cases of similar import, where, as in the Bridges case, supra, the citation for contempt was for interference with a trial before a judge and not a jury. Pennekamp v. Florida, 328 U.S. 331, 336. Craig v. Harney, Sheriff, 331 U.S. 367, 372-373. Wood v. Georgia, 370 U.S. 375, 383-385. See New York Times Co. v. Sullivan, 376 U.S. 254, 272-273.

In the Bridges case, supra, 260, the opinion of the court, almost at its inception, states that "free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them." It would be an even more trying task for us to prognosticate the choice members of that court would make. Accordingly, all things considered, we feel unable to predict what might be held in the Supreme Court of the United States, and accordingly beg to be excused from making further answer to question 1.

Any attempt by us to answer question 2 must be subject to a possible ruling of clear and present danger by the

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Supreme Court of the United States acting under the idea that "the compulsion of the First Amendment, made applicable to the States by the Fourteenth . . . forbade the punishment by contempt for comment on pending cases in absence of a showing that the utterances created a `clear and present danger' to the administration of justice. [Bridges case,] 314 U.S. pp. 260-264." Craig v. Harney, Sheriff, 331 U.S. 367, 372.

Left to our own devices, we would answer "No" to question 2, provided that the many equivocal statements in Section 39 are satisfactorily clarified.

A subject as to which no question is asked calls for a precautionary statement. Paragraph 6 of Section 39 seeks to give the right to a trial by jury in prosecutions under it, but at the same time provides that nothing in the section "shall be construed so as to alter the contempt power of any court." This may have been included in the light of such cases as Walton Lunch Co. v. Kearney, 236 Mass. 310, 315 et seq., Dolan v. Commonwealth, 304 Mass. 325, 340, New England Novelty Co. Inc. v. Sandberg, 315 Mass. 739. Compare United States v. Barnett, 376 U.S. 681, 694-695n, 700. While paragraph 6 may be construed to permit a defendant to request a trial by jury, if construed as giving him such a right, "a serious constitutional question" would be raised. John Bath & Co. Inc. v. Commonwealth, 348 Mass. 78, 82.

RAYMOND S. WILKINS

JOHN V. SPALDING

ARTHUR E. WHITTEMORE

R. AMMI CUTTER

PAUL G. KIRK

JACOB J. SPIEGEL

PAUL C. REARDON