WOOD v. GEORGIA

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Argument of Milton Kramer

Justice Hugo L. Black: Number 369, Milton Kramer against E. Freeman Leverett.

Mr. Milton Kramer: Mr. Justice Black and may it please the Court.

This case is here on certiorari from the Court of Appeals of Georgia, the Supreme Court of Georgia having declined to review it.

The facts are these.

In the midst of a local political campaign, the judge of the Superior Court of Bibb County, on behalf of all three judges of that court, delivered a special charge to a grand jury.

Before delivering that special charge, the local press had been notified to have reporters present.

They did have reporters present.

In that charge, the judge, after advising the grand jury, he was speaking on behalf of all three judges, said among other things, “we find what appears to be an inane and inexplicable pattern of Negro bloc voting.”

Justice John M. Harlan: What page is this?

Mr. Milton Kramer: Beginning on page 6 of the record.

The part I just read is the last part of the paragraph ending just below the middle of the page.

He then continued, and I'm skipping some unimportant phrases and clauses, “there is an answer which should be brought to life so that people of the community may understand what is going on.

The people are entitled to know how one candidate or another is able to gather to himself thousands of Negro votes in bloc where there is no apparent reason for it.”

Then, over in the next page --

Justice Potter Stewart: Mr. Kramer, where is Bibb County, which --

Mr. Milton Kramer: It's Macon.

Justice Potter Stewart: Macon?

Mr. Milton Kramer: Macon is the big city in Central Georgia.

Justice Potter Stewart: Alright, thank you.

Mr. Milton Kramer: At the top of the page, he advised the grand jury “bloc voting is apparent.”

Then, the last sentence of that paragraph ending on that page, “we do not mean to say to you that Negros do not have the vote -- the right to bloc vote, if they wish to do so if their self-interest is a factor in their decision,” presumably, otherwise, they have no such right in the view of the judge.

The next paragraph, “issues, principles, or policies may under some circumstances, justify certain groups in casting similar votes, but if the vote is a right, it is an individual right and carries with it the duty and obligation of intelligent determination by the individual claiming the right.

There is no right of a vote to be bartered, nor is there any right to a vote to be cast in bloc.”

Now, at the bottom of the page, “there is no doubt that when the vast majority blindly follow the leaders and vote as they are told, it actually amounts to a purchase of thousands of votes by the favorite candidate.”

Now, over on page 10, after instructing the grand jury on the existence of certain election laws which had not been enforced for over 50 years, they had a law on the books at that time which made it illegal to pay anybody to campaign for you.

All campaigning had to be by volunteer, but that had been ignored for 50 years and he refers to that on page 10, the first paragraph starting that page, “some may say that the hiring of people for the purpose of canvassing and influencing voters to vote for one candidate rather than another is a common practice in elections and, therefore, should be overlooked,” but he tells them not to overlook it in the case of Negro bloc voting.

On page 11, in the third paragraph, “it is not unusual to hear a candidate proclaim that there are no racial issues involved and that he represents no special interest.

That he is beholden to no particular individual or group and yet we find on election day getting an almost solid Negro bloc vote and no satisfactory explanation is ever offered.”

That was on June the 6th.

After he delivered his charge, copies of his charge were available for distribution in the judge's chambers.

The next day, the petitioner in this case, who also was the Sheriff of the County, issued a news release, and that appears on page 12.

In that, he said among the following, and this was the basis for his first citation --

Justice William J. Brennan: I'm sorry, Mr. Kramer, perhaps you've already said something and I wasn't attentative.

Was there any indication that these remarks of the judge in any way implicated the sheriff?

Mr. Milton Kramer: No, but there is some --

Justice William J. Brennan: Or (Voice Overlap) bad name or anything else?

Mr. Milton Kramer: There was no implication about that but, later, there was a stipulation of facts that at the time he made this statement, the grand jury had in its possession the records of some earlier elections in which he had been a candidate but there was no implication that they were aimed at him, except that he had -- the fact is he had gotten large support from, at least I think he had, from the Negro vote.

Justice Potter Stewart: Through the sheriff, the petitioner?

Mr. Milton Kramer: Well, yes.

Justice Potter Stewart: Presumably at least.

Mr. Milton Kramer: Presumably.

There's no evidence of the fact.

Justice Potter Stewart: Well, are -- but his prompt reaction, are we to infer --

Mr. Milton Kramer: I think you can infer nothing from the prompt reaction.

This man had been active in politics and it doesn't show in the record but he had not been in the judge's camp.

Justice Potter Stewart: The sheriff is in elective office.

Mr. Milton Kramer: He's in elective office and so was the judge.

Justice Potter Stewart: And so was the judge.

Justice William J. Brennan: What's the term of the judge?

Mr. Milton Kramer: Four years, I think, and the sheriff also.

This is the Superior Court of Bibb County.

Each county has at least one judge.

This particular one has three.

Justice William J. Brennan: That's the court of general jurisdiction.

Mr. Milton Kramer: That's right.

It's not (Inaudible) court.

The petitioner then issued his news release, which appears on -- beginning on page 12.

In it, he said “the people of Bibb -- he distributed this to reporters “the people of Bibb County should take notice when their highest judicial officers threaten political persecution carried out under the guise of law enforcement.”

Whatever the judge's intention, the action of the Superior Court judges ordering a Bibb County grand jury to investigate Negro bloc voting “will be considered one of the most deplorable examples of race agitation to come out of the middle Georgia in recent years,” and skipping down to the paragraph after the next, “no one would question the duty of a grand jury to investigate any at all election law violations.

However, simple justice would demand that the judge not single out the Negro people for particular investigation.

If we seriously wish to enforce the old law against hiring workers for canvassing or influencing voters, then let us start by indicting our U.S. Senators, Congressmen, and Governors, and almost all elected state officials.

If we overlook the mountain of white candidates and campaign workers who have violated this old law to investigate the mole hill of a few Negro campaign workers, then truly we are manipulating the law in a manner to persecute the few.

This is the type of political legal action which brings down ridicule and demands for civil right legislation against the south.

Then, he got a little stronger.

“Negro people will find little difference in principle between attempted intimidation of their people by judicial summons and inquiry and attempted intimidation by physical demonstration such as used by the KKK.”

Justice William J. Brennan: Mr. Kramer.

Mr. Milton Kramer: Yes?

Justice William J. Brennan: Is Mr. Wood also a lawyer?

Mr. Milton Kramer: He is a member of the bar, yes.

Justice William J. Brennan: Of the Georgia Bar?

Mr. Milton Kramer: Yes.

Justice William J. Brennan: Is he practicing?

Mr. Milton Kramer: Yes, and he's -- he has not been suspended from practice.

Justice William J. Brennan: But, does this conviction --

Mr. Milton Kramer: No, he is practicing law today.

This conviction does not deprive him of the right to continue to practice.

“It is hoped that the present grand jury will not let its high office be a party to any political attempt to intimidate the Negro people in this community.”

Then, down at the end, “it further seems a height of hypocrisy to dust off an old blue law that has been ignored for 50 years and suddenly order its rigid enforcement against the minority group of voters.

However, politically popular the judge's action may be at this time, they are employing a practice far more dangerous to free elections than anything they want investigated.”

Justice Hugo L. Black: May I ask you to follow up Justice Brennan's question?

What other grounds that disbars him under the laws in Georgia?

Mr. Milton Kramer: I don't know.

Justice Hugo L. Black: How was he barred?

Mr. Milton Kramer: I just don't know.

On July 7, a month later, the Solicitor General of the county filed a petition for contempt.

A contempt citation was issued the same day.

The following day, the petitioner did two things.

He wrote a letter and issued another press release.

I will overlook the letter now and come back to it later.

The letter formed -- later formed the grounds for count 2 of the contempt citation.

I'll skip that for the time being and go to the second news release.

In his second news release, he said simply, in substance and nothing else, “my defense will be that I told the truth.”

Justice Hugo L. Black: What page is that?

Mr. Milton Kramer: 19 and that's the very first line of his second press release.

“My defense will be simply that I have spoken the truth” and then, he goes on to elaborate, “when I said so and so, wasn't -- was I not telling the truth, and when I said so and so, wasn't I telling the truth” and so on.

The petition for contempt was thereupon amended to add two new counts of contempt.

One with respect to the letter, which I'll discuss later and the third, Count 3, that this statement that he told the truth the first time was an independent ground of contempt.

The petitioner demurred -- he filed lots of demurrers apparently in Georgia, 75 demurrers.

Justice Hugo L. Black: Where is that amendment?

Mr. Milton Kramer: Which amendment, the latest am -- the last amendment?

Justice Hugo L. Black: Yes, the added counts.

Mr. Milton Kramer: Oh so add the counts, 14 of the record.

It begins on 14 of the record and they add count 2 and 3.

The day that the two new counts were filed, the judge cited him for the additional contempt and then, in view of the demurrer that had been filed, the petition for contempt was further amended to add an allegation that these things in and of themselves constituted contempt of court.

They added an allegation to that effect.

They did not add an allegation to the effect that the statements were untrue, although some of the demurrers were based on the absence of an allegation that anything he said was untrue.

They did not amend it to allege that they were untrue.

All the demurrers were overruled.

Now, in Georgia practice, one files not only demurrers but at the same time, a response or an answer in an ordinary civil suit.

The plaintiff filed a response in which he denied the allegation that his actions were part of a course of conduct designed to be contemptuous and -- of the court and to ridicule it and to investigate and to interfere with the grand jury that had been alleged and he denied it.

He alleged that the judge's charge was given in the midst of a political campaign and he alleged affirmatively that the reason he gave the -- made this statement was that he wanted the people of the county to know what he verily and sincerely believed.

At the hearing, there was no oral testimony, none at all.

The only facts before the court appear by reason of two stipulations.

One of the stipulations on page 45 simply state, first, that he is the sheriff of the county and on the county's payroll.

Second, that he released the two news releases to the press and that, at the time he did it, the grand jury had before it the records of some earlier elections in which he had been a candidate.

Thirdly, that the judges had read the story and, fourth, that the grand jurors had been disturbed.

Those were the only facts before the court except, by reason of the stipulation which appears on page 47, to the effect that his statements -- the petitioner's statements in his sworn response would be accepted as evidence.

That was the stipulation approved by the court.

So --

Justice Potter Stewart: What page is that in the record?

Mr. Milton Kramer: The stipulation is on page 47.

Justice Potter Stewart: 47.

Justice William J. Brennan: Mr. Kramer, is there anything at all in the record regarding the duties of a sheriff in Georgia in relation to the courts and the county (Voice Overlap)?

Mr. Milton Kramer: No, I think they are prescribed by statute and they may appear in the appendix to the -- the statute may appear in an appendix to the respondent's brief.

I'm not sure that it does, but there's nothing in the record.

Justice William J. Brennan: Well, I gather that -- perhaps I better ask you a question, was the support for this holding, in part, based upon the fact that, as sheriff, he was an officer of the Superior Court?

Mr. Milton Kramer: Well, one doesn't know because the judge who found him in contempt simply said “I have considered the record and heard arguments of counsel and I find you guilty on all three counts.”

Justice William J. Brennan: Well, what -- isn't there something in the Supreme Court opinion?

It's been a while since I've read it as to that effect though that --

Mr. Milton Kramer: No, no.

The Sup -- the Court of Appeals opinion did say that the demurrer, asking that the allegation that he was sheriff be stricken was properly overruled, that's all.

Justice William J. Brennan: Well, what I'm getting at is whether the support from the conviction rests at all on his being sheriff or would this have happened if he'd just been a plain citizen and not a sheriff.

Mr. Milton Kramer: So far as the record is concerned, it could've been the same had he been a plain citizen because the court made no findings and gave no reasons for his conclusion.

He simply says “I consider the thing and I find you guilty.”

And, in the petitioner's response, he affirmatively stated, well this may be a conclusion but anyway he affirmatively stated that he was not acting as sheriff at the time.

He was simply acting as a private citizen who's interested in political matters, and that was not controverted.

Justice Felix Frankfurter: The petition for contempt makes anything of the fact that he held the sheriff office at the time?

Mr. Milton Kramer: It says he was the sheriff, yes, but they -- and that is admitted.

He was the sheriff at the time but he responded by saying that he was not acting as a sheriff.

He was simply acting as a private citizen and, as I said, that was not controverted.

These are all the facts that the court had before it and incidentally, although no point was made of this in the court below, the judge who tried him of course it was one of the three judges who had prepared this special charge for the grand jury.

Justice Tom C. Clark: What did you mean a while ago when you said it was in the middle of the campaign?

Mr. Milton Kramer: Primary campaign.

Justice Tom C. Clark: Primary campaign?

Mr. Milton Kramer: Yes.

Justice Tom C. Clark: When was the date of the election at the time?

Mr. Milton Kramer: The next month, July something, I don't recall.

Justice Tom C. Clark: The charge was in June.

Mr. Milton Kramer: The charge was in June.

Justice Tom C. Clark: And the contempt is before or after the election?

Mr. Milton Kramer: The contempt was --

Justice Tom C. Clark: July 7.

Mr. Milton Kramer: July 7 and whether that was before or after, I don't know.

I think the election was at 12, but I'm--

Justice William J. Brennan: And were these judges running for reelection?

Mr. Milton Kramer: They -- oh yes.

Justice William J. Brennan: I mean, in that particular primary?

Mr. Milton Kramer: Well, the record doesn't show.

My information is that they run every four years and that's all and that all --

Justice William J. Brennan: But you don't know whether any of these judges were then running.

Mr. Milton Kramer: Well, I am reasonably sure they were.

The record doesn't show, but I'm reasonably sure that all of them run every four years.

Justice Potter Stewart: But they probably -- I don't know, they probably have overlapping here.

Mr. Milton Kramer: Well, it might be.

Justice John M. Harlan: Grant that is so --

Mr. Milton Kramer: That's right.

Justice John M. Harlan: Supposing this exact situation that there is minus one factor, namely that what the charge had been was improper alleged duty of bloc voting without reference to Negroes.

What would your position be as to the validity of this conviction?

Mr. Milton Kramer: It would certainly change the facts very materially because it would not be singly -- well, this news release would never have been made because it was singling out a minority group when everybody was doing it and was singling out the minority and saying “told the grand jury investigate the bloc voting of this small minority,” well not so small but of this minority group when everybody was doing it.

Justice John M. Harlan: In other words, the essence of your position is that this is a racial case.

Mr. Milton Kramer: Well, that the judge was trying to inject a racial issue into the campaign and the petitioner was of the view that the judge was trying to intimidate the Negroes against voting as they had theretofore voted because if they continue to vote that way then some of them might get indicted.

That was the petitioner's sincere belief that the judge was trying to intimidate them.

Justice William J. Brennan: Mr. Kramer, I asked you earlier whether the Supreme Court had rested at all on the fact that he was sheriff.

At page 34 of their opinion, in the petition for certiorari --

Mr. Milton Kramer: Yes, and all these done by --

Justice William J. Brennan: The opinion seems to be (Voice Overlap)

Mr. Milton Kramer: Page 34?

Justice William J. Brennan: 34 of the petition for certiorari.

Perhaps the opinion is in the record but I have it here on appended to the decision.

Those last several lines and all these carried on by the sheriff, an officer of the law and of the court, at times during which the grand jury properly had before it the consideration of charge of court.

We can only conclude that the sheriff's intent for his actions constitute contempt.

That's what I have reference to this --

Mr. Milton Kramer: Well, whether that --

Justice William J. Brennan: Affirming to the contempt conviction as part at least by the Supreme Court rested on that fact.

Mr. Milton Kramer: They seem to say that that -- that seems to mean that it's a little worse if the sheriff does it, but he would -- it does not say he was acting as sheriff, but because he was a sheriff.

Justice William J. Brennan: Well, it might be significant as the case is before us whether they rested this on the fact that as sheriff and officer of the court.

Mr. Milton Kramer: Well, there is a statute which provides for holding the sheriff in contempt under certain circumstances.

Well, here we are on pages 36 and 37 of the respondent's brief, this is the respondent's brief.

It gives the duties of the sheriff and then holds that the court then provides, in the next section on page 37, that if the sheriff fails to perform his official duties, the court may hold him in contempt.

Now, I think, impliedly, that means not otherwise except for contempt in open court, I suppose.

Justice John M. Harlan: Where is that statute, Mr. Kramer?

Mr. Milton Kramer: This is the respondent's brief, not mine, the other side.

Justice John M. Harlan: Yes, I understand.

(Voice Overlap) Yes, I have the brief in my possession.

Justice Tom C. Clark: Does the sheriff wait on the court?

By that, I mean the sheriff stand to the court?

Mr. Milton Kramer: Yes, he waits on the court.

In this particular county, the sheriff, himself, does not attend the grand jury, some bailiffs do.

Justice Tom C. Clark: When the court is sitting while he waits on the court and acts as an officer there who would maintain order while the sheriff is before it, a bailiff would call --

Mr. Milton Kramer: Yes, I know.

I think not.

I don't know.

I can find out.

Justice Tom C. Clark: Going back to Justice Brennan's --

Mr. Milton Kramer: He furthers his bailiff.

He doesn't do it himself.

Justice Tom C. Clark: What (Voice Overlap)

Justice Felix Frankfurter: The bailiff (Inaudible)

Mr. Milton Kramer: Yes.

Justice Tom C. Clark: Going back to the court's opinion, Justice Brennan asked you this last sentence to be a part of it where the court says “we can only conclude that the sheriff's, the sheriff's intent or his actions constitutes contempt and the conviction on counts 1 and 3 were processed.”

Mr. Milton Kramer: Yes.

Well, I think that was simply an appellation rather than describing his official capacity.

Justice Tom C. Clark: What did he do with the other count?

Mr. Milton Kramer: Well, the -- I was going to come to count 2.

They reversed count 2 and, in my view, I think count 2, if he did anything apprehensible, was the most apprehensible, but they reversed his conviction on that one and the respondent makes much of it.

He kept referring it to count 2 in their brief, although they did not appeal from the reversal or seek review of the reversal of the conviction on count 2.

That was the letter he wrote also on July 8 --

Justice Felix Frankfurter: (Inaudible) What would you say of the remark of the court (Inaudible)

Mr. Milton Kramer: I think that might be a cause for dismissing him but I don't think it will be contempt.

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: I don't think so.

Justice Tom C. Clark: Suppose they didn't dismiss him, but (Inaudible) the sheriff.

Mr. Milton Kramer: Well, I don't know that you can't dismiss him.

I think the sheriff can be impeached.

Justice Tom C. Clark: By the court, by the legislation?

Mr. Milton Kramer: No, I really don't know.

Justice Tom C. Clark: I can assure you I think that in most cases (Inaudible) what you said?

Mr. Milton Kramer: No.

Well, I doubt that the judge would hold -

Justice Tom C. Clark: (Inaudible)

Mr. Milton Kramer: -- will conduct the impeachment proceedings.

Count 2 was a letter, an open letter to the grand jury which he gave to the bailiff to deliver to the grand jury, and it was so delivered and read, in which he said in substance that “if you're going to investigate bloc voting by the Negroes, investigate bloc voting by the groups controlled by the Democratic Executive Committee of this county.

They have bloc voting, too and why don't you investigate what they're doing?”

Now --

Justice Tom C. Clark: On that point, the bailiff, was that a deputy sheriff?

Mr. Milton Kramer: In effect, a deputy.

Justice Tom C. Clark: In other words (Inaudible)

Mr. Milton Kramer: Yes, but the -- he was convicted for contempt on that count and that conviction was reversed and the repeated discussions about it in the respondent's brief, I submit, are improper because that's not in this case anymore.

It's dead.

They sought no review.

They're not seeking review.

The only contempt citations that are before this Court are in counts 1 and 3.

The petitioner appealed to the Court of Appeals of Georgia.

That court held in substance that conduct that has a tendency to obstruct a grand jury is contempt.

Justice Felix Frankfurter: May I ask you briefly, Mr. Kramer.

Mr. Milton Kramer: Yes?

Justice Felix Frankfurter: Suppose the sheriff is (Inaudible) suppose the sheriff has said that all (Inaudible)

Mr. Milton Kramer: I think not.

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: Well, I said I think -- I think it would still not be contempt.

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: What I said was I think it will not -- still would not be contempt because the statute provides --

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: Yes.

Justice Felix Frankfurter: (Inaudible)

Justice Hugo L. Black: (Inaudible)

Mr. Milton Kramer: Absolutely not.

Now, for example, they have an allegation also that he was on the public payroll and he asked that that be stricken as irrelevant and that --

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: An a fortiori is what's contempt here.

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: That's right.

I mean, they are not equivalent.

Justice Felix Frankfurter: I understand (Inaudible)

Mr. Milton Kramer: The Court of Appeals held on review, a conduct that has a tendency to obstruct the grand jury is contempt.

It held also that the truth or falsity of the statements were irrelevant, that even if true, it was contempt.

It held, thirdly, that attacks on a judge which could have had the effect of diverting the grand jury is contempt.

It held that the allegation that the petitioner was on the public payroll was not an irrelevant allegation, just on the public payroll, not the sheriff and then, I would like to read some from what he said, beginning on page 63 of the record.

Now, I must apologize to the Court for the fact that in our brief, some of this is quoted -- indicated that it came from the court itself while what the court was doing was quoting from an earlier decision but the effect is the same.

They were quoting and, apparently, with approval, saying things that sound to me like the old discarded scandalizing the court.

And, at one time, scandalizing the court was the doctrine in Georgia.

Beginning on page 63, it says “if there is any one thing in democratic society which must be presumed conclusively until judicial determination to the contrary by a court of law or impeachment, it is the integrity of the courts,” then skipping down to the middle of the paragraph, “when a judge is accused of wrongdoing, it is an attack and an undermining of one of the most important supports of the government.

If a judge is corrupt or incompetent, there may be a remedy by suit, prosecution, impeachment, or at the polls.

Now, how do you go about defeating somebody at the polls or impeaching him without criticizing his -- without criticizing him?

It's difficult to understand.

Skipping down to the bottom of page 64, this is again quoting from one of their prior decisions, “the power of the judiciary rests upon the faith of the people in its integrity and intelligence.

Take away this faith and the moral influence of the courts is gone and respect for the law is destroyed, indicating that that's their starting point.”

That's what -- that's their -- the premise from which they reason whether the conduct of the petitioner constituted contempt.

Justice Felix Frankfurter: What (Inaudible)

Mr. Milton Kramer: Accusing the court of delivering a special charge for political purposes and directing it to a minority group without being -- without direct -- without directing a criminal investigation or alike and trying to intimidate a minority group from voting as they had theretofore voted.

And, they know exactly how they vote because they have segregated voting in Bibb County.

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: Yes, well, imputing to the court an attempt to intimidate the minority group.

Justice Felix Frankfurter: Was it with reference to somebody who has too much (Inaudible)

Mr. Milton Kramer: Pardon?

Justice Felix Frankfurter: Was it with reference to a person or a group then before the court or --

Mr. Milton Kramer: No.

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: No.

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: Well, one of them, I submit, is scandalizing the court.

It's imputing their integrity.

That's one, second -- secondly, diverting the attention of the grand jury.

Now, the grand jury is a part of the judicial system and I think it's established in Georgia that --

Justice Felix Frankfurter: This was made while the grand jury was deliberating.

Mr. Milton Kramer: Yes.

Justice Felix Frankfurter: That's no charge.

Mr. Milton Kramer: Yes.

Well, that is so stipulated.

Justice John M. Harlan: It was sent to the grand jury.

Mr. Milton Kramer: Pardon?

Justice John M. Harlan: Wasn't the communication sent to the grand jury?

Mr. Milton Kramer: No, the conviction on that count was reversed.

These were two press releases.

It was not -- they were not sent to the grand jury.

The grand jury read it in the newspapers.

Justice Hugo L. Black: Suppose a member of the grand jury hadn't accepted that (Inaudible)

Mr. Milton Kramer: If a member of the grand --

Justice Hugo L. Black: (Voice Overlap) would that have been a --

Mr. Milton Kramer: If --

Justice Hugo L. Black: (Inaudible)

Mr. Milton Kramer: If a member of the grand jury said it to the grand jury?

Justice Hugo L. Black: Yes, if he --

Mr. Milton Kramer: In public?

Justice Hugo L. Black: Yes, either way.

Mr. Milton Kramer: Well, I --

Justice Hugo L. Black: (Inaudible)

Mr. Milton Kramer: Will that be contempt in Georgia?

Under this portion of the opinion that I read, I presume it would.

Justice Hugo L. Black: Do you know whether or not, in Georgia, the grand jury is the most (Inaudible) what other grand juror say, what they actually know, have they done away with that old common law rule?

Mr. Milton Kramer: I don't know, Your Honor.

Justice Felix Frankfurter: Do you say that because the grand jury (Inaudible)

Mr. Milton Kramer: He is not injecting or --

Justice Felix Frankfurter: I'm not saying he was.

I'm just asking if he requested that the test of whether outside (Inaudible)

Mr. Milton Kramer: Well, as I understood the entire question, it was whether a grand jury could say it outside.

Justice Hugo L. Black: I said outside.

I didn't intend to use or to draw the test if we may have to formulate when the case is over.

I was simply asking you the fact that the law --

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: Of course not.

Well --

Justice Hugo L. Black: It depends on what the court holds as to that law.

Mr. Milton Kramer: In very --

Justice Hugo L. Black: Or what members of the court can hold it, one or the other.

Mr. Milton Kramer: In very -- in very large part.

Well, I've gone into the facts in considerable detail because it seems to me that, having discussed them that much, the -- there was a very little to discuss about the law.

Obviously, I rely primarily --

Justice Potter Stewart: One -- one statement that you made in the course of your -- giving us the facts interested to me.

You say they have segregated voting.

Mr. Milton Kramer: Yes.

In the respondent's brief, they tell you that such and such an election, 1,001 out of 1,200 so and so Negroes voted --

Justice Potter Stewart: You're not -- you mean by that only that in certain localities the voting is predominant?

Mr. Milton Kramer: No.

Justice Potter Stewart: Probably Negro population?

Mr. Milton Kramer: No, no it's separate building they vote in.

Voting is in the same building, it's on separate floors.

Now, this isn't in the record and I don't like to present the facts that aren't in the record, but that is the fact.

They --

Justice Potter Stewart: The same voting rights --

Mr. Milton Kramer: The Negroes vote in the Negro high school and the White people vote in the White high school.

In the courthouse, Negroes vote in the basement and White people vote on the first floor.

Justice Potter Stewart: People from the same precinct or ward?

Mr. Milton Kramer: Yes.

You vote by race.

You go different places by race.

Justice Potter Stewart: The same ballots?

Mr. Milton Kramer: It's the same ballot, but I'm really departing from the record.

I don't like to do that.

Your tax returns are on different colored paper, depending on whether you're White or Negro.

Justice Felix Frankfurter: Well (Inaudible)

Mr. Milton Kramer: I missed one word, white what?

Justice Felix Frankfurter: White witnesses and the Negro.

Mr. Milton Kramer: Yes.

Justice Felix Frankfurter: You don't have to get the meaning in the record of that.

Mr. Milton Kramer: No.

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: I think it's still there today.

The legal argument is really very simple.

I -- the court below held that a conduct that has a tendency to obstruct or, in another place, condunce -- conduct that could have had the effect of diverting the grand jury is enough to constitute contempt.

Now, Bridges against California, Pennekamp against Florida and Craig against Harney are all clearly to the contrary.

I might point out that the dissent in Pennekamp against Florida was predicated primarily on the fact that there was an attempt at intimidation.

Now, we have nothing here about the petitioner who was held in contempt trying to intimidate anybody.

He was simply criticizing someone else's conduct.

Also in the Pennekamp and the Craig against Harney cases, this Court held that it examines the facts for itself to determine whether there is a clear and present danger which must be shown and, I'm sure you've heard the words many times, solid evidence and that the effect must be a very serious one and something more than probable must be very imminent and so on.

This case meets none of those tests.

I said the dissent and two of them, or at least one of them was predicated primarily on intimidation and we have no intimation of intimidation here.

What we have here is an admitted attempt to dust off a law that hadn't been enforced for years.

The judge, himself in his charge, recognized that that this law hadn't been enforced for a great many years and he was asking the jury to consider enforcing it against the Negroes and, the petitioner said he thought it was unfair for the judge to do that.

The other thing he did was to say that if bloc voting is investigated, investigate it all over not just by Negroes and he said further that if the judge's charge being limited to Negroes would be construed as intimidation and all his criticism was of the judge, not of the grand jury.

In the Pennekamp case, the Court indicated, it didn't hold, that criticism of a judge in a case that was going to a petit jury there would have too speculative effect to warrant, holding it to be in contempt.

Now, I'd like to mention another consideration.

In Craig against Harney, both the majority opinion and the dissent of Mr. Justice Jackson indicated that they were of the view that the range of permissible comment about judicial proceedings would be greater in a case where public issues were involved than it would be in the ordinary private litigation.

Now, this Court has held that, it has indicated it.

Now, if that is the consideration then, certainly, it would strengthen the position of the petitioner here because this charge to the grand jury was obviously a matter of great public importance and of public interest.

I submit, you need not decide that here because even if the range of the permissible conduct for that were narrower, it would still not be contempt.

I would like to turn now to the brief for the respondent to point out certain errors.

We did not file a reply brief.

I'd like to point them out here.

First, on page 6 --

Justice Felix Frankfurter: You filed -- did you file a brief, a separate brief under (Inaudible)?

Mr. Milton Kramer: Under petition for certiorari?

Justice Felix Frankfurter: Yes.

Mr. Milton Kramer: Yes, we did.

Justice John M. Harlan: The blue?

Mr. Milton Kramer: The blue one.

Unknown Speaker: What about the (Inaudible)

Mr. Milton Kramer: No, there are two blue ones.

It's a small one.

It's very thin.

Unknown Speaker: It's this (Inaudible)

Mr. Milton Kramer: Yes.

It's the one where my name is over in the left inside of it.

Chief Justice Earl Warren: Mr. Kramer, (Inaudible)

Mr. Milton Kramer: The respondent says that he said so.

You mean was he in fact or was he thinking of being -- the -- he -- the fact is he was not a candidate.

He did make a statement to the effect that he expected to run in the, not in the primary, but in the November election against whoever was chosen in this primary.

But --

Unknown Speaker: He was (Inaudible)

Mr. Milton Kramer: Now, on page 6 in the second full paragraph of the respondent's brief, they say that the press release -- the open letter to the grand jury implied that the judge's charge was false.

It made no such implication.

And, secondly, there, they are talking about count 2, the open letter to the grand jury.

The conviction on which it was reversed and review was not sought.

This is a -- they start out right here, relying on things in count 2 because maybe the conviction on count 2 should have been sustained.

Therefore, the conviction on counts 1 and 3 should be sustained.

I just don't follow the reasoning but they keep relying on count 2.

On page 8, they say that the petitioner offered no evidence in support of his allegations.

Well, that is just not so.

It was stipulated, and the stipulation approved by the court, that his statements and his response would be accepted as evidence.

It is the state that offered no evidence.

They offered none at all.

Justice John M. Harlan: Would you think that conviction of count 2 would've been sustainable?

Mr. Milton Kramer: I think I would've had a little harder time not because of what's in it but because he had it delivered inside the jury room.

That's what would make it harder, not because of any -- not because of its contents.

I suppose that it is seriously reprehensible to cause documents to be delivered into the jury room with indictment.

Justice Felix Frankfurter: (Inaudible)

Mr. Milton Kramer: No, I'm sure not -- sure not -- of course not, but that is not before us.

That was reversed and no review sought of the reversal.

It is the states that offered no evidence at all.

We did have evidence in there in support of all our allegations.

All they had was that stipulation that he was the sheriff, that the judge read it, that the jury read it, and that the jury was -- has certain documents in there pertaining to an election in which he had been a candidate.

Now, on page 19 of the respondent's brief, and without indicating --

Justice Potter Stewart: So that I understand, Counts 1 and 3 were both news releases.

Mr. Milton Kramer: That's right.

Justice Potter Stewart: Count 2 was the so-called open letter to the grand jury.

Mr. Milton Kramer: That's right.

Justice Potter Stewart: Thank you.

Mr. Milton Kramer: Now, on page 19, again, the respondent's brief quotes apparently indicating that it's relevant to this case about sending a letter to a grand jury.

Again, they're referring to count 2 to show how reprehensible this conduct was and count 2 was not before the court.

Now, on page 24, near the top, they say that the trial court simply called to the attention of the grand jury a Georgia criminal statute.

Well, I even comment on that, it obviously did a great deal more than that.

On pages 28-29, they say that the petitioner did not mention truth as a defense.

Well, in his demurrers, he certainly did.

He complained about the absence of an allegation of untruth and, in his press release, he -- of which they criticize him -- in his response to the petition for contempt, he said that the reason he made it was that he wanted the people of the county to know what he verily and sincerely believed.

Now, I take it that is an allegation of truth.

Now, you can get to some things that are almost amusing.

They say truth is an affirmative defense in Georgia which must be raised and untruth need not be alleged.

Now, as I've shown, it was raised, but their citations in support of the proposition that truth is an affirmative defense and must be raised are such things as, well, in one place here, “Section 105708,” which we cite is relevant to that proposition.

105707 provides that if a White woman is charged with having had sexual intercourse with a colored man, that should be slander without proof of damage and then 708 says that truth could be a defense.

Now, what relevance that has to a case like this is beyond my comprehension.

The other citations in support of that proposition are similar.

They -- all of them relate to the admission in evidence of the taking into consideration the court's admitting in evidence the truth of the libel and -- of the statement in a criminal libel case.

Justice John M. Harlan: Supposing a lawyer instead of the sheriff that's involved here, a lawyer whose client was being subject to – was being investigated by the grand jury, had issued this press release, do you think he would've been subject to discipline?

Mr. Milton Kramer: You say his client was before the court and the lawyer gives you the custody --

Justice John M. Harlan: The lawyer knows that his client is involved in the grand jury investigation of this alleged bloc voting and he issued these press releases, would he be subject to discipline?

Mr. Milton Kramer: I think not.

Now, if he -- if he issued different kinds of press releases in which he said that this is -- that my client is an honest man and he didn't steal the goods and the grand jury shouldn't believe anybody who says otherwise, well, that would be tampering with the grand jury, I suppose.

That would be different, but issue a press release on a political matter and purely political matter, he wasn't telling the grand jury what to find or what not to find.

He was complaining of the judge's discriminatory charge singling out the minority group to be investigated and no one else, and complaining that that would be construed or might have the effect of intimidation.

I would like to mention one more thing --

Justice Tom C. Clark: What if the lawyer didn't have a suggestion (Inaudible) would he then have been convicted on that count?

Mr. Milton Kramer: No.

Justice Tom C. Clark: That was their ground.

Mr. Milton Kramer: That was their ground that he has the right to call the attention of the grand jury to other things that were going on.

It's apparently stopped with as accepted in Georgia but I must point out some other deficiencies in the respondent's brief on page 31.

On page 31, they say that we didn't prove anything and that if we had proven certain things, they would've proven something else.

First, near the top, they say that if the paci -- if the -- but had petitioner sought to adduce proof establishing the truth of this emulated allegations, the -- if we had and we did.

It's in the sworn response which was accepted in evidence in which he said that he believed in.

They say that then they would've been prepared.

They would've proven something else.

Now, that's something else, of course it's not in the record and it should be disregarded because we did prove it and even if we hadn't, it's entirely outside the record.

And, that's what they tell you that 1,001 out of 1,262 Negro votes had been cast the same way in some election.

Then, they say that also reliable reports indicated, now, that's not in the record.

Then they say the response alleged that petitioner was himself a candidate.

They say had we proven that, well, the response does prove it because the response was accepted into evidence.

They say had we proven it, they would've proven something else.

Well, that something else is not in the record and they have no right to insert it here as a factual statement.

But, I submit, apart from all that, that this case falls far short of the standards this Court set forth in Bridges, Pennekamp, and Craig against Harney and, even had it been much worse, the convictions should have been reversed.

I'll save the remaining time for rebuttal.

Argument of E. Freeman Leverett

Mr. E. Freeman Leverett: Mr. Chief Justice --

Chief Justice Earl Warren: Mr. Leverett.

Mr. E. Freeman Leverett: Mr. Chief Justice and may it please the Court.

Before starting my argument in proper, I would like to dispose of one or two questions that have been raised here during the argument of Mr. Kramer.

The implication was sought to be made that the Georgia statute in question here related only to campaign workers.

That is not so.

That statute was two-pronged, the first and foremost part concern the buying and selling of votes.

It enumerated a number of other offenses and then, down at the end, dealt with the matter of campaign workers.

Secondly, there was also a stipulation in the record that was sent to this Court, but it was not printed that the response would be taken as traversed without the necessity of the state having to file a formal traverse.

The stipulation relating to the response also was that it would be accepted as a tentative evidence only as to the statements of fact and not as to the statements of opinion.

Now, thirdly, petitioner says that it can't be determined definitely whether or not his status as a sheriff had anything to do with the affirmance of the convictions on the two counts.

It seems to me that he has admitted himself out of court because under the rule of Stembridge versus Georgia, if it's possible that the case was disposed of, not that it appears that it was but if it was a mere possibility that it was deposed of -- disposed of on a nonfederal ground that that is sufficient to dismiss certiorari as has been improvidently granted.

I would call --

Justice William J. Brennan: How does that make it a nonfederal ground?

I don't follow.

Mr. E. Freeman Leverett: If, as our contention it will make further on, that this man was also dealt with as an officer of court, as a discipline matter as distinguished from merely a contempt which is an entirely different thing, the Sawyer case.

Justice William J. Brennan: You mean that then would remove the federal constitutional question he raised?

Mr. E. Freeman Leverett: I think that that would certainly remove the application of the Bridges case.

There might be some other question there involved, but I think that it would take out the main constitutional question.

I'll put it that way.

Justice William J. Brennan: Well, would it still leave any federal constitutional question even if this was a disciplinary matter?

Mr. E. Freeman Leverett: It would live one.

I do not believe that it would be anything likely substantial as the issue that's made with perspective of Bridges rule proper.

At page 72 --

Justice John M. Harlan: I don't understand that.

Mr. E. Freeman Leverett: If it please the Court, our contention is that the state here was dealing with this man in two aspects.

As Mr. Kramer says, it's not definite.

You cannot say that the court actually held that it was disciplining an officer of court.

The purpose there, when you proceed against an officer of court, is not so much to prevent obstruction to a pending proceeding, which is the Bridges question, as it is to discipline an officer of court for his contemptuous conduct toward the court.

We say that if this case can be supported on the discipline proposition, that that certainly removes the major constitutional question.

I will not go so far as to say that it removes it entirely because he --

Justice William J. Brennan: Well, he had -- wasn't Sawyer, I forgotten that.

I should remember but I don't.

Sawyer was a lawyer --

Mr. E. Freeman Leverett: Right.

Justice William J. Brennan: Who made a speech?

Mr. E. Freeman Leverett: Right.

Justice William J. Brennan: And we reversed a contempt conviction there.

Mr. E. Freeman Leverett: Because the evidence was insufficient and because that's a Lewisville case there.

Justice William J. Brennan: I just want to be clear.

We'd still have a constitutional question --

Mr. E. Freeman Leverett: I think, in fairness, I should say that if you would but I do not believe it would be anything as substantial as the other one.

That was my point.

I did not -- at page 72 of the record -- 69, I beg the Court's pardon.

Demurrer number 14 moves to strike the allegation in counts 1 and 3 to the effect that he was at all times during the contemptuous acts to the society was Sheriff of Bibb County.

The fact that the defendant was in fact the Sheriff of Bibb County at the time and he is such an officer in the honorable court was relevant to the inquiry and, also, in the concurring opinion of Mr. Justice T -- presiding Judge Townsend, he emphasized that fact at page 72.

Now, the fourth point.

So far as I know, there was no judge of the court that was up for election in this primary.

I do not -- I'll be frank.

I do not know precisely.

I could not say definitely, but my understanding is that no judge was running for reelection in this primary.

Justice Potter Stewart: What are the terms of the judge, six years?

Mr. E. Freeman Leverett: Four years in the state as a general.

Now, Fulton County has a special constitutional amendment.

Justice Potter Stewart: What about Bibb County?

Mr. E. Freeman Leverett: Bibb County is four years.

That's correct sir.

Justice Potter Stewart: Bibb County.

Mr. E. Freeman Leverett: That's right.

Justice Potter Stewart: Was it overlapped or what?

I mean, with standard terms.

They don't all -- they won't all three run every four years or --

Mr. E. Freeman Leverett: I don't think they -- I'm not certain about that.

I don't think that they did in this case.

Now, a great deal has been said about our reference to count 2 which the Court of Appeals reversed.

We put that in to show a -- the intention, a calculated effort.

This Court so held that you could consider the -- this matter in the context of the statements preceeding and following the statement which is actually in question, that's in the Craig case 331 U.S. 367 at page 376.

That is the reason that we refer to count 2.

That's the reason that we ask that that statement, it was a letter -- open letter, be sent up.

We aren't trying to get a reversal on that, but we think it can be considered to show -- to remove any doubt that this was a patent effort to influence the grand jury in a pending proceeding.

Now, Mr. Kramer also said that contempt here was directed at the -- at the judges in every place where the Court of Appeals dealt with this question.

It emphasized the fact that it was contempt because of an attempted interference with the proceedings of a lay grand jury.

The statement has also been made in argument that -- about truth.

Under Georgia law, I think the necessary effect of reading these statutes is that truth is an affirmative defense that the defendant himself must raise.

The state does not have to negative it or in a libel case, in a slander case, the state does not have to negative the issue of truth.

That is for the defendant to raise it.

Statement has also been made that this case was not decided on clear and present danger, page 67, with respect to the question as to whether these acts of the defendant constituted a clear, present, or imminent danger or serious threat to the administration of justice.

It is to be noted that the citation so amended so charges.

The court below has, by its conviction, so found and the evidence supports the finding.

Of more importance is the fact there -- that the conviction on count 2 was reversed because, as the court said, the state had failed to show a clear and present danger.

Now, Georgia has a statute which declares it a crime, anyone to engage in the buying or selling of votes.

There's nothing particularly unusual or certainly nothing harsh about this statute.

It differs little from Section 597 of the Criminal Code.

It's been on the books since 1833.

Its constitutionality is not under attack in this proceeding.

Bibb County, Georgia is one of the large metropolitan area counties in the State of Georgia.

On June 6, one of the three judges of that court delivered the charge which has been referred to here previously.

The court directed the jury to consider the statute with respect to widespread reports of voting or buying of votes by certain political candidates from certain political leaders of the Negro race.

It was pointed out that these charges, they derive corroboration from the fact that in prior elections in which there were no racial issues whatever involved, that there had been des -- demonstrated an inane palate of Negro bloc voting.

The court further advised the jury of other charges to the effect that reports have been made that the candidates had met with some of these Negro leaders and had been promised their support only to later have that support go to another candidate who had met with these leaders and paid them large sums of money.

Sometimes, so the court stated, this money was paid ostensibly for advertising in radio or published and so forth but that it appeared that it was in fact understood by the parties to be an outright purchase of the votes.

That is the implication of the charge.

There was nothing improper or objectionable about this charge.

It was phrased in a conventional sober language of the courtroom.

Strong adjectives, coarse phrases, inflammatory etiquettes were avoided.

The charge called no names nor did it assume that offenses had in fact been committed.

It left it clear that the responsibility of resolving these factual issues was on the jury.

The court was capital to state that bloc voting was not illegal per se but only when it was as the result of a bargain and sale or when there was some conspiracy by domineering organizations.

No effort was made to intimidate, harass or threaten anyone.

There was no appeal to racial prejudice or to inflame racial passions.

Racial prejudice is -- is crept into this case.

It is there because the petitioner put it there and not because of the state.

The court here simply discharged its traditional function, charging the jury with respect to a state criminal statute and widespread reports of its violation.

Chief Justice Earl Warren: Mr. Leverett, is there any concluding practice in Georgia as to (Inaudible)

Mr. E. Freeman Leverett: My understanding is, if it please the Court, is that it is always done in open court.

Chief Justice Earl Warren: (Inaudible)

Mr. E. Freeman Leverett: That's right.

I may be -- I may not be right, but I -- that's my understanding.

Now, we say the fact that Negro political leaders happen to be involved in this case doesn't change it in the least.

They aren't immune from the law.

Well, much has been said here in the briefs about prejudice.

We would like to tell to the res -- the petitioner to take heath lest that he himself (Inaudible).

The record does not show and this --

Justice William J. Brennan: I didn't get that.

Mr. E. Freeman Leverett: To rephrase it, I was simply saying, Mr. Justice Brennan, that the prejudice in this case has been injected by the petitioner himself.

This Court cannot assume that the facts, circumstances, and conditions referred to in the court's charge did not in fact exist.

Unknown Speaker: (Inaudible) Negro bloc voting?

Mr. E. Freeman Leverett: No, sir.

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: No, sir, the record does not.

We pointed out in our brief that if he might have gone to the evidentiary stage, we think we could've shown that it was primarily a municipal election that had been held in that year, but that's not in the record.

Chief Justice Earl Warren: (Inaudible)

Mr. E. Freeman Leverett: That, I could not answer.

I do not know.

It has apparently been interpreted or construed --

Chief Justice Earl Warren: (Inaudible)

Mr. E. Freeman Leverett: I think that it certainly should, yes, sir.

Justice Tom C. Clark: When was the primary?

Mr. E. Freeman Leverett: The primary was, I believe the June 20th.

If I'm not mistaken, it is in the record somewhere.

Justice Tom C. Clark: The sheriff was not a candidate?

Mr. E. Freeman Leverett: No, sir.

He was not a candidate in this election.

I do not think he actually ran in the general election in November.

Justice William J. Brennan: He now seems to run possibly for the public.

Mr. E. Freeman Leverett: Right, sir.

Justice Tom C. Clark: Were the judges candidates?

Mr. E. Freeman Leverett: No, sir.

That does not -- I have previously stated at the outset that my understanding is that they were not and none of them were running, but I do not have definite information.

Unknown Speaker: Mr. Leverett (Inaudible)

Mr. E. Freeman Leverett: Macon, Georgia about the second or third or fourth largest city in the state.

We say that to make a charge that this was prejudice is itself an instance of prejudice where there are no facts at all to substantiate the charges that the petitioner --

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: How can you assume that they are if they're not in the record?

The judges are presumed to follow the law and to form that unit properly.

Justice Hugo L. Black: (Inaudible) does that mean that the state concludes that what he is charged does not effect?

Mr. E. Freeman Leverett: No --

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: No, sir, because he did not at any time undertake to prove that it was not true what the court had said.

He filed his response, but his response did not and we contest that --

Unknown Speaker: Wasn't it under oath?

Mr. E. Freeman Leverett: It was under oath but it did not raise the issue of truth. His demurrers raised the issue of truth and that was a question of pleading.

If he had -- if he had sought to prove truth, then the state would have brought in evidence to show the background in all the various circumstances relative to support --

Unknown Speaker: (Inaudible)

Mr. E. Freeman Leverett: I don't think that it technically would have under this Court's decision in Patterson versus Colorado, but where someone makes an offer of proof, I don't think there's anything to prevent the state from rebutting it for purposes of appellate record.

Chief Justice Earl Warren: What the counsel have said in response under oath and the petitioner had stated (Inaudible) that everything that he just said was true (Inaudible).

Mr. E. Freeman Leverett: I don't believe it was quite that strong.

I think he said that he barely -- he wanted to present his opinion or something to that effect.

Chief Justice Earl Warren: Where does that appear in the record?

Would that be in (Inaudible)?

Unknown Speaker: Page 38.

Chief Justice Earl Warren: Page 38.

Mr. E. Freeman Leverett: I was just getting to that.

Chief Justice Earl Warren: (Inaudible) for further evidence to show that the purpose of issue (Inaudible) was simply to face the general public on what (Inaudible) verily and sincerely believed the other side of the issue created by the charge of the grand jury.

Mr. E. Freeman Leverett: If it please the Court, I interpret that merely to mean a disavow of any contemptuous intent.

I do not construe that to mean to be a plea of truth.

Chief Justice Earl Warren: It was before that when it says (Inaudible)

Mr. E. Freeman Leverett: If it please the Court, likewise, I do not interpret that as a plea of truth.

In fact, the petitioner's -- one of his contentions is he does not himself contend that this was an effort to prove truth because one of his contentions that he presented in his brief was that we prevented him from proving truth as a defense.

We will answer that in due course.

Justice Hugo L. Black: (Inaudible)

Mr. E. Freeman Leverett: No, sir.

I don't believe -- the Supreme Court did not write an opinion.

It just denied certiorari.

Justice Hugo L. Black: Do you think that had any relevance to the conviction that -- to the formulation of the law based on --

Mr. E. Freeman Leverett: I do not think that it did under this Court's opinion in the Patterson case and the holding in this case.

We do say that if there had been an effort to prove truth, if the state would have set and rebutted it, regardless of whether it was proper or not as a matter of strategy at the time that it came up.

Justice Tom C. Clark: Was he convicted on the tax return?

Mr. E. Freeman Leverett: No, sir.

He was convicted of contempt pursuant to a statute, two statutes, one dealing with officers only and another dealing with --

Justice Tom C. Clark: Which one did convicted him?

(Inaudible)

Mr. E. Freeman Leverett: It's not clear from the opinion because of --

Justice William J. Brennan: I gather, from the opinion, I thought it was not.

Maybe I'm wrong.

Mr. E. Freeman Leverett: Well, the court did not actually decide either way because they said that the statute is 24105, I believe it is, that it is not declaratory of the contempt file of a constitutional court.

Justice Tom C. Clark: What is the limit, 20?

Mr. E. Freeman Leverett: 20 days $200.

Justice Tom C. Clark: (Inaudible)

Mr. E. Freeman Leverett: I do not know.

Justice Tom C. Clark: The statute.

Mr. E. Freeman Leverett: Well, the Georgia's courts recognize that the power of the General Assembly of Georgia to limit the punishment, there's no question about that.

They have simply said that the matter defining the acts cannot be bound – we cannot be bound by the legislature's declaration as to that.

Justice Tom C. Clark: What is the limit?

Mr. E. Freeman Leverett: 20 days and $200.

Justice Tom C. Clark: What's the sentence?

Mr. E. Freeman Leverett: The sentences were concurred as to time, 20 days on all three, but the fine was $200 cumulative, total of $600.

Justice Felix Frankfurter: (Inaudible)

Mr. E. Freeman Leverett: I'm not certain.

I believe the court said that it's not necessary to resolve the issue as to whether this conduct comes within the meaning of this statute.

The Georgia Supreme Court had just recently interpreted this 24105 and it reversed the Court of Appeals decision which had adopted our case as being definitive of the geographical nearness proposition of the Night case.

Justice Felix Frankfurter: (Inaudible)

Mr. E. Freeman Leverett: That is possible.

I do not -- I cannot say that the opinion, at least to me, to my reading, clearly advances a decision one with --

Justice Felix Frankfurter: (Inaudible)

Mr. E. Freeman Leverett: I would say that it could rest only either or both.

Justice Felix Frankfurter: (Inaudible)

Mr. E. Freeman Leverett: I think it said that the so near thereto, that we're not bound by that.

Justice William J. Brennan: The what?

I'm sorry.

Mr. E. Freeman Leverett: The so near thereto language of 24105 which is similar to --

Justice Felix Frankfurter: So therefore it cannot be bound by that (Inaudible)

Mr. E. Freeman Leverett: That could be.

I cannot say that it --

Justice Felix Frankfurter: (Inaudible)

Mr. E. Freeman Leverett: Yes, they --

Justice Felix Frankfurter: (Inaudible)

Mr. E. Freeman Leverett: There is a residual.

Now what I was -- what I was getting at was that I could not say whether or not it was necessary to go to that residual in this case or not, the Bradley case and the --

Justice Felix Frankfurter: (Inaudible)

Mr. E. Freeman Leverett: Right, sir.

That is correct.

Justice Felix Frankfurter: (Inaudible)

Mr. E. Freeman Leverett: Right, sir.

Justice Felix Frankfurter: (Inaudible)

Mr. E. Freeman Leverett: From the Constitution of Georgia.

Justice Hugo L. Black: What is the later case that was referred after this?

Mr. E. Freeman Leverett: I believe the Supreme Court decision had just been decided prior to this case.

It's the -- I believe it's the Grimes case, if it please the Court.

It's in a footnote in our brief.

I beg your pardon it's Atlanta Newspapers versus State on a footnote in page 18 of our brief.

This charge was delivered on June 6, the next day.

Rather, that day, the grand jury retired to consider its deliberations.

The following day, while it was actually engaged in investigating this very matter, Sheriff Wood issued this press release from the same courthouse in which the grand jury was sitting.

The statement in vitriolic language attacked the courts and, in effect, told the jury not to consider the investigation that the court had directed them to make.

The court's charge was characterized as race agitation, a crude attempt to judicial intimidation, persecution of the few, racial prejudice, and intimidation no different in principle than that from the K-- used by the KKK.

The following day, he also delivered his open letter to the grand jury itself in which he very care -- shrewdly mimicked the court's charge.

He followed it almost step by step and said “it's really not who the court has said that is guilty of this violation of the law but it's a Democratic Executive Committee.”

It was stipulated that both of this documents were actually raised by members of the grand jury while they were considering the very issue in question.

Justice Hugo L. Black: (Inaudible)

Mr. E. Freeman Leverett: Right, sir.

The grand jury proceeding continued and approximately one month later, on June -- on July the 7th and an attachment for contempt was issued against petitioner, charging him with contempt of court in making the first press release.

The following day, July the 8th, petitioner released another statement in which he again reiterated most of his prior charges and just went down the line practically and said “I said this and I'm saying it now” and he further said that his defense would be true.

He -- again, the investigation was still pending and this statement was read also by members of the grand jury.

Subsequent amendments added the open letter --

Justice Tom C. Clark: (Inaudible)

Mr. E. Freeman Leverett: I think it's stipulated in the record.

Subsequent amendments to the contempt proceedings added the open letter as count 2 and the July 8 press release is count 3.

Petitioner filed demurrers in response.

After hearing, the court imposed the sentences.

Justice Tom C. Clark: (Inaudible)

Mr. E. Freeman Leverett: No, sir.

It's privileged under Georgia law.

I don't think you could get it that far.

Justice Tom C. Clark: Well, that means he is indicted (Inaudible)

Mr. E. Freeman Leverett: Record does not show that.

The record does not show that, one way or another.

Unknown Speaker: Did they make a report?

Mr. E. Freeman Leverett: Yes, sir.

They made a report.

It's not in the record.

Justice William J. Brennan: (Inaudible)

Mr. E. Freeman Leverett: No, sir.

They made findings that they had been widespread violations, that there were two groups there that were accepting money but that is not in the record.

Justice William J. Brennan: What group?

Mr. E. Freeman Leverett: Two -- one group involving an Alexander and another involving the Hoopa, that they were leaders of certain factions and that they had received money --

Unknown Speaker: White or Colored?

Mr. E. Freeman Leverett: I believe they -- the Neg -- the leaders were of the Negro Voters Association.

The money is allegedly been paid by White candidates to the Negro leaders.

Unknown Speaker: What about the charge made (Inaudible)?

Mr. E. Freeman Leverett: I don't recall anything having been said about that.

We feel that there are two questions and two questions only that are really presented by this petition for certiorari.

The first one is what was the test applied by the Court of Appeals in evaluating these statements.

The second question is, assuming that this test was clear and present danger, as we contend, was the test properly applied?

Now, there is a third issue that the petitioner seeks to make here which we will show was not raised in the trial court, in the Court of Appeals, in the Supreme Court of Georgia or in the petition for certiorari filed in this Court, and that relates to his contention that he was deprived of the opportunity of proving truth as a defense.

Eight years prior to this Court's 1944 decision in the Bridges case, the Court of Appeals of Georgia had rejected the common law scandalizing the court test in Townsend versus State.

And, what has become to be the leading case in Georgia on constructive contempt, the McGill case, cited in 1953.

The Court declared that the common law rule was no longer in effect in Georgia by virtue of the constitutional guarantees of speech and press.

The Court in this case declared that while the power to punish for contempt was inherent in courts of record, that this inherent power itself was limited by the constitutional provisions or freedom of speech and of the press.

Justice Hugo L. Black: (Inaudible) on page 65?

Mr. E. Freeman Leverett: No, sir.

I interpret that at the bottom of the paragraph on page 66. Count 2 must stand alone to meet the test of whether it constitutes a clear and present danger to the administration of justice, McGill versus State, and it fails to meet this test.

The court erred in holding the defendant in contempt.

Justice Hugo L. Black: But before the claim (Inaudible) was here, this charge does not reflect on the judgment of that motion. (Inaudible)

Mr. E. Freeman Leverett: I think that the court is saying before that this did not -- could not on its face be construed as being an attempt or having the effect of influencing the grand jury and we cannot consider that this is a part of a pattern.

We've got to interpret this by itself.

It think that's not -- the court was not necessary to go that far in view of the Craig case, but the Court of Appeals did and, of course, it's presumed in it's binding here.

In the present case, the amended petition for contempt allege that petitioner's statements were issued while the grand jury deliberation was in progress and that they constituted a clear, present, and imminent danger to the investigation and administration of justice, page 43.

Throughout the proceedings in the trial court and in the Court of Appeals, emphasis was placed on the fact that this was an interference, an obstruction with a pending grand jury investigation.

The opinion of the Court of Appeals repeatedly referred to petitioner's statements as being contemptuous because of the obstruction and interference with the pending proceeding, and the court specifically held that the evidence on both counts supports the finding clear and present danger.

A compelling significance, as I have just stated, is the fact that in reversing on count 2, the Court of Appeals assigned as its reason the fact that it did not meet the test of clear and present danger.

Now petitioner's argument that clear and present danger was not used is based entirely upon some statements taken from Carr versus State which counsel for the petitioner has already conceded, were misquoted in his brief.

In that connection, we say that, while undoubtedly, the castigating of the -- excuse me.

Print this transcript Transcript: 

Argument of E. Freeman Leverett

Chief Justice Earl Warren: Mr. Leverett, you may continue your argument.

Mr. E. Freeman Leverett: May it please the Court.

Before the recess, I was undertaking to show that, in this case, the Georgia Court of Appeals had in fact applied to a clear and present danger test.

Only seven months after the Wood decision, a decision in this case, the Court of Appeals stated in the Renfro case "but even constitutional courts are limited to the extent that there must be a clear and present danger to the administration of justice," citing the Wood case as authority for that holding.

That decision was rendered by a judge of the same division of the Court of Appeals of Georgia as the judge who wrote the decision -- the majority decision in the Wood case.

Coming now to the application by the court of that route, we might state as a matter of state substantive law that the grand jury, as an arm of the court and that its proceedings constitute a judicial proceeding.

Consequently, any effort to interfere, to influence the grand jury is punishable to the same extent, so the cases say, there's an effort to influence or interfere with the petit jury.

Judge Field's famous charge delivered in 1872 to the grand jury, he deplored the frequent efforts of "private prosecutors to intrude themselves into your presence to obtain or prevent to present one or indictment of parties."

The significance attached to grand jury proceedings is very well borne out by the decisions of this Court with reference to jury selection.

The court has held that even though a defendant is convicted by a jury in which there was no discrimination and in which there was ample evidence to support the verdict of conviction.

Nevertheless, if there was discrimination in selection of the grand jury, the conviction will be set aside.

Justice John M. Harlan: One thing bothers me.

How do you reconcile your state court's decision as to count two which has gone unsubstantiated because no clear and present danger has been shown handing this letter of communication to the grand jury foreman?

Was its finding that the -- there was a clear and present danger in the other two?

Mr. E. Freeman Leverett: I do not -- I do not attempt to explain it.

I think it's wrong, but the state did not undertake to have it reviewed below and, of course, I say you can't do so in this juncture.

Justice John M. Harlan: Well, I know, but you're defending the Counts 1 and 2, aren't you?

Mr. E. Freeman Leverett: Right.

Well, yes sir.

Justice John M. Harlan: In the framework of Bridges, etcetera.

Mr. E. Freeman Leverett: Right, sir.

Justice John M. Harlan: The question I am putting to you is that, if there was no clear and present danger as your state court found involved in the Count 2 was reversed, what remains to be said in defense of the holding if there was a clear and present danger in respect to the other two counts in which you prevail?

Mr. E. Freeman Leverett: I would simply say that I think the Court of Appeals erred in so holding the count two.

Justice John M. Harlan: You would think what?

Mr. E. Freeman Leverett: I would simply say that, in my opinion, the Court of Appeals erred in count two, in holding that there was no clear and present danger.

I think that there was.

But I think, there, our whole reasoning was based upon the assumption that they could consider only that particular letter and that on its face, that letter did not indicate that it would interfere, that it perhaps was bringing something new to the attention of the grand jury.

In some states do permit that so long as a communication to a grand jury does not deal with a pending matter if it undertakes to inject a new claim or a new charge that they commit that.

That has been upheld in some states.

I know of no particular authority in Georgia one way or another.

Efforts to influence grand juries are declared crimes by Title 18 Section 1504.

They are uniformly held punishable as contempt by the state cases.

Now, coming to the application of the test, the three decisions of this Court, applying the clear and present danger test, all involved entirely different factual considerations.

The Bridges, Pennekamp, and Craig cases involved criticism of judicial action already taken or statements which it most could be construed as efforts to influence the trial judge himself, not the lay jury and a great emphasis was placed upon that in concurring opinions in the Shepherd case, Shepherd versus Florida, that was reiterated time and time again in Mr. Justice Reed's decision, I believe, in the Pennekamp case, the assumption being that judges are supposed to be superior individuals who can resist these external pressures.

This case is, in a sense, the first in which a full court has been faced with the very issue here.

The case most likely or liken to it is People versus Parker, an Illinois case where the defendant was convicted of contempt in sending the letter to the grand jury urging them to investigate the Chicago Tribune.

This Court granted certiorari and affirmed by an equally divided vote.

Even there, however, that case is not as strong as this because there, as I just previously said, was an effort to bring a new charge to the attention of the grand jury.

Here, there was an effort to obstruct and to interfere with a charge that had already been given to the grand jury by the court.

Another case which somewhat approaches this problem is Maryland versus Baltimore Radio Show.

In that case, the Maryland court, under its interpretation of the Bridges formula, it set aside the contempt conviction of a radio station.

This station had published or, rather, had broadcast extensively the fact, about two days after a brutal crime had been committed, that the accused had been arrested, that he had confessed, that he'd gone out and reenacted the crime, and that he picked up the bloody knife from underneath some leaves and they also broadcast his prior record.

The Maryland court, applying the Bridges formula, found that there had been no clear and present danger.

However, we say that case is distinguishable.

To begin with, the opinion denying certiorari by this Court was very careful to point out that the denial in no way was to be construed either as an approval or disapproval of a decision of the Maryland court.

Secondly, the broadcast was made the day following the arrest of the person.

It had a certain news value at that time.

The Maryland court expressly declared "that it was not concern with deliberate attempts to influence the outcome of a pending case for the reason that the statements there made were news reports and were not argumentative in nature."

Now here, on the other hand, we say that this case is framed in the strongest possible light.

The proceeding was pending.

In one pending just in a technical lawyer sense.

It was pending in a realistic sense to the extent that the jury was then considering the very matter in issue.

These statements by their clear urging told the jury to do one thing when the court had just charged it to do something else.

Justice Hugo L. Black: Would it be contempt in Georgia for a man who wanted the grand jury to investigate an alleged crime to write them a letter telling them about it or is that customarily done?

Mr. E. Freeman Leverett: I do not know, sir.

I cannot answer the question.

I don't think there has been a case on that.

Chief Justice Earl Warren: Mr. Leverett, do you make any distinction between this case and a case where a client or his lawyer makes a statement that what is under investigation that this is merely political persecution?

We read of that daily -- almost daily in the newspapers whenever there's anything that involves political situation.

The first thing they said is that its political persecution.

Now, is that any different from your case?

Mr. E. Freeman Leverett: I think, of course, that one distinct difference is that there was no evidence here, no proof that this man was under investigation.

This charge of the court did not call any names.

It just said there'd been reports.

Chief Justice Earl Warren: Well, maybe the -- maybe it was -- would be of his partner or his family or someone, some group that he belonged to.

Would there be any difference between that and this case?

Mr. E. Freeman Leverett: I -- there had been -- there are some cases cited in the brief dealing with situations where comments were made pending a grand jury investigation.

I believe that one of them is either the Kilpatrick of the -- one of the tribune cases in there in which they held if he went to a certain extent, that it would be.

In one case, I think he threatened to sue the grand jurors and they said that was very clearly a contempt of court.

It was an effort to influence a pending proceeding.

Thirdly -- or fourthly, these statements were made in the same courthouse where the grand jury was sitting.

They were made by a high office of court whose duty was to attend upon and to assist the grand jury that he was seeking to influence.

They were actually read by members of the grand jury.

We submit that unless --

Justice Hugo L. Black: Do you think that that distinction would be enough to draw a difference on whether it is in contempt?

Mr. E. Freeman Leverett: Which distinction?

Justice Hugo L. Black: Back in the members in the courthouse who maybe have a job.

Mr. E. Freeman Leverett: It certainly puts the --

Justice Hugo L. Black: Frequently, the men who hold a political job are the very ones who make public statements about political matters.

Mr. E. Freeman Leverett: Mr. Justice Black, I would answer that by saying that I believe that, to the mind of a layman, a statement made by a sheriff in the courthouse where the jury was sitting would be far more likely to have an effect upon a juror's mind than if the statement had been made by someone who was not the sheriff or made at a distance from the court.

Justice Hugo L. Black: Suppose the lawyer makes this outside the court or inside the court.

Would it make any difference where the -- judging him guilty of contempt whether he's inside the court or outside the court, unless he had some way inside the court actually interrupt the court proceedings?

Mr. E. Freeman Leverett: I think that it certainly would have some relevance.

Justice Hugo L. Black: Issued a state -- he just issued a statement from the courtroom, public on the outside.

Mr. E. Freeman Leverett: I think that it would.

I think that in the mind of -- a lay juror could very well say that, gather some impression from it regardless of whether or not we, as lawyers, would.

The question here is the effect upon the jury, not upon -- on a lawyer or a judge.

Justice Hugo L. Black: It wouldn't make any difference on whether or not it was contempt where the statement came from, if it was a statement issued to the public.

I'm not talking now about this order or the motion or something actually inside the courtroom.

Mr. E. Freeman Leverett: Apparently, the thought here was that we were getting into the now question, I presume, there.

Chief Justice Earl Warren: I noticed here that, in the response, the petitioner says that before the judge gave his charge in this case that he summoned all of the news media to the courthouse and then, as soon as the charge was given, he distributed the -- he had distributed copies to all of the newspapers and that the petitioner was merely answering in exactly the same way, publicizing his own side of the case the same way the judge had done his.

Mr. E. Freeman Leverett: That's his con --

Chief Justice Earl Warren: But the way that in which the judge do it have anything to do with the guilt or innocence of the person?

Mr. E. Freeman Leverett: I would not think so.

I think the purpose for the court's doing that was -- so that if anyone had any information, they could bring it into before the grand jury in the proper manner by going to the Solicitor General and saying that "I have some evidence.

Would you see if the grand jury would like me to testify?"

I think that would be the purpose of the court's doing.

Chief Justice Earl Warren: I see.

Is there anything in your law which says that's the only way that a person can bring any information to the grand jury is through the Solicitor General.

Mr. E. Freeman Leverett: I don't think the law actually says that.

I think that has been perhaps the procedure.

I'm not even certain about that.

Of course you can always bring it before the grand jury by taking out a warrant.

Then, the grand jury inevitably will summon you and let you testify in support of your warrant.

Chief Justice Earl Warren: But in -- in Georgia, is it illegal for a citizen to personally bring information to the attention of the grand jury that he consider it should be investigated?

Mr. E. Freeman Leverett: This is the first case that I know of that has actually dealt with this question.

I do not know of any case.

Chief Justice Earl Warren: The reason I -- the reason I asked you is because, in some states, it is --

Mr. E. Freeman Leverett: That's true.

Chief Justice Earl Warren: -- it is not to this -- it's -- it's a common practice for --

Mr. E. Freeman Leverett: That's quite true.

Chief Justice Earl Warren: -- for citizens to bring information to the grand jury.

In fact, they're -- they're instructed that they should take cognizance of any complaints of that kind to come to them.

Mr. E. Freeman Leverett: As to new charges, not as to charges already pending.

That, generally, I think, is --

Chief Justice Earl Warren: Well, I don't -- in some states, I don't think there is any differentiation between the two.

Mr. E. Freeman Leverett: I was basing my assumption on the law review article in 39 Journal of Criminal Law.

I believe that --

Chief Justice Earl Warren: Yes.

Mr. E. Freeman Leverett: -- leads to that question.

Chief Justice Earl Warren: Yes.

Justice William J. Brennan: Mr. Leverett, I gather, you think our decision in Sawyer has no relevancy to our problem here.

Mr. E. Freeman Leverett: Indirectly, I will come to that, Mr. Justice Brennan.

I think it's inevitable that the freedoms of speech will become -- at some time, come into conflict with the necessity for a fair trial.

And, in this case, as in the case of any conflict between any other to freedoms, this Court has to weigh the situation in the light of all the circumstances.

As stated in the Pennekamp case, The comments must be appraised on a balance between the desirability of free discussion and the necessity for fair adjudication.

And, what is the interest here?

The interest of the State of Georgia and this is a very weighty interest, it's no less important to Georgia than the threat from internal subversion.

The interest is two-fold, unhampered grand jury proceedings as a general matter.

On the Georgia law, it's necessary to have a grand jury indictment to prosecute all felonies.

The defendant cannot even waive a grand jury indictment in a capital felony.

He can in non-capital felonies, in writing, waive the indictment but an indictment is an essential beginning point for a criminal prosecution.

And, of course, there's a danger that improper influences creep into the grand jury room.

The indictment, itself, would be subject to being quashed on motion.

Secondly, we think that the other weighting interest that the State of Georgia has is the necessity of enforcing its voting laws.

And, I know -- also, I think it's important to point out here that the choice here was not between silence and the right of this petitioner to speak his views.

He very conceivably might have been on a different position entirely if he waited until after this grand jury proceeding was over.

But, let's assume, in the words of the Bridges case, that freedom does not bare an inverse ratio or up to the timeliness of the assertions seeking expression.

Even here, I don't think that that would make any difference for this reason.

The petitioner could have asked to testify before the grand jury.

I understand that he actually did.

That's not in the record but that's my understanding.

Chief Justice Earl Warren: He did ask to testify?

Mr. E. Freeman Leverett: I don't know whether he asked.

I understood he testified.

Chief Justice Earl Warren: Oh, he did testify?

Mr. E. Freeman Leverett: He did appear.

Chief Justice Earl Warren: Yes.

Mr. E. Freeman Leverett: Well, let's assume further that he asked and was refused.

Let's assume even further that he, himself, was being investigated.

This Court has already passed on such a situation and found that there is no sufficient societal interest in that type of utterance.

In Hannah versus Larche, this Court held that no one has a right to appear before a grand jury and state his contentions because of the disruptive influence their injection would have on the proceedings.

And, what we've said we think would be sufficient, even as against a private person, a fortiori, whereas, here, the defendant was himself an officer of the court.

The Sawyer case, I think, comes into this case in this respect.

In that case, a lawyer was being disciplined for doing just what we have conceded that a private person could not, that is scandalizing the judge.

This Court did not pass on the constitutionality of it but it's conceded.

But it seemed to assume that, as to a lawyer, that that would be a permissible rule of conduct to be applied.

That the -- the court's opinion turned on the fact that the utterances there were not aimed at the judge but were aimed in general at this mere fact and there was no effort to scandalize the judge in that particular proceeding.

And, also, another point about this dual personality of Mr. Wood, I think, Mr. Justice Brennan, that the opinion there stated that it's immaterial whether or not Mrs. Sawyer was counsel in that particular case or not that the official transaction thing doesn't have too much to do in that particular context.

Chief Justice Earl Warren: Mr. Leverett, would it make any difference in your conclusion if -- if Mr. Wood, instead of being the sheriff, had been a reporter or the auditor who are in no sense -- who could in no sense become officers --

Mr. E. Freeman Leverett: No, sir.

Chief Justice Earl Warren: -- of the court.

Mr. E. Freeman Leverett: I think it makes it strong.

Chief Justice Earl Warren: I beg your pardon?

Mr. E. Freeman Leverett: I think it makes it stronger than he was.

I do --

Chief Justice Earl Warren: Are you suppose --

Mr. E. Freeman Leverett: -- not think it's --

Chief Justice Earl Warren: -- to say --

Mr. E. Freeman Leverett: -- essential that he have to.

Chief Justice Earl Warren: Do you think it changes the constitutional question?

Mr. E. Freeman Leverett: I think it changes it.

I do not think that if he had not been sheriff, that there was not sufficient evidence here to uphold the clear and present danger test.

We say that, because he was sheriff, that it makes it even stronger.

Now, even if we resurrect this Blackstone and Fox controversy and invest it with constitutional dignity, we would reach the same result because Fox says that, while these constructive contempt have not pry to Blackstone's comments with reference to the Ollman case, had not been dealt with summarily that, historically and traditionally contempts by -- contempts by officers of the court had been treated summarily.

And here, the court had instructed the jury to perform a stated function.

The defendant interjected himself and told them not to.

One last contention I think that should be discussed with respect to the application of this test, concerns the assertion made that you must show that the obstruction actually succeeded.

That's not what this Court held in the Bridges case.

It held that you must show that there was a danger, not that the obstruction actually succeeded.

Now, petitioner says that the Pennekamp case holds that the danger must be shown by solid evidence but that's not what the court said.

The court said that the circumstances likely to give rise to a clear and present danger test must be shown by "a solidity of evidence."

If actual obstruction is shown, there's no need for a rule phrased in terms of a danger because the evil itself, and not just its danger, would already, thereby, be a theatre colloquy.

One thing we certainly do not dispute and that is that the mere utterances themselves are sufficient in the same sense that, in a tort action, certain utterance is -- would be conce -- deemed libelous per se.

We say you have to consider the circumstances surrounding the time and manner the -- the nature of the pending proceedings, susceptibility of the particular fact-finding body in any and all other circumstances which will have any relevance on the question as to whether the substantive evil would likely come about.

This was the procedure followed in the great cases of Bridges, the Pennekamp, and the Craig cases.

In the Pennekamp case -- or rather, in the Bridges case, emphasis was placed on the fact that the statements were made after trial and did not communicate any information which the court did not already know anyway.

There was no effort to influence the jury.

In the Pennekamp case, you have substantially the same thing.

Criticism was a judicial action already taken, page 348.

It did not deal with rulings during the jury trial, also page 348.

And, the Florida court had expressly questioned the applicability of the Bridges rule to that particular case.

That's at page 345 at footnote 6.

In the Craig case, the pertinent facts were that the publications were simply news reports or public business and it most could be construed as calculated to influence not the jury but the judge who the court said, "is supposed to be a man of fortitude, able to strive in a hearty climate."

Petitioners also argue that a prejudicial and inflammatory charge should not be made the basis of contempt.

Well, to begin with, we do not concede that the statement of the charge of the court was prejudicial and inflammatory.

We say, on the contrary, that it was entitled probably to respect.

Well, even assuming arguendo otherwise, the law is that even an erroneous ruling of a court does not excuse contemptuous conduct.

This Court, therefore, let it link in the United Mine Workers case.

Now, there are three cases that are cited for this contention.

The Louisiana and the Nebraska cases simply hold that a lawyer should not be adjudged in contempt for filing a motion to caution indictment in which he alleges that that indictment was obtained as the result of an improper charge by the grand jury or by the court.

Obviously, we don't contest that.

The Mississippi case simply held that a lawyer -- that -- rather than an indictment itself should be quashed where the judge had in effect, directed the return of an indictment by a charge which actually assumed that crimes had been committed.

The last contention that I come to deals with a point that, as we contend, has not been made in this case.

The demurrers -- that is the issue of truth, the demurrers themselves raise the question that the petition for contempt did not allege that the statements made were false or untrue.

However, as I -- as we've previously stated, we do not believe that his answer or his response raised the issue of truth.

That would be a plea on the Georgia practice.

It would have to be a little more formality attached to it in many some statements of opinion.

Justice William J. Brennan: Was there any finding as to this or any, rather, statement of the -- to that effect in the opinion?

Mr. E. Freeman Leverett: Yes, sir.

Justice William J. Brennan: Where is that?

Mr. E. Freeman Leverett: It's in the -- in dealing with the rulings on the demurrers, page 67.

Justice William J. Brennan: Thank you.

Mr. E. Freeman Leverett: It's a rule -- it's a ruling by the Court of Appeals only as a question of pleading.

That is the question.

Justice Hugo L. Black: May I ask you if you think it would make any difference if Wood, here, a sheriff, was a lawyer, had been running against the judge at that time and had made the exact remarks he made in a campaign speech against the judge.

Mr. E. Freeman Leverett: If he made those statements in a campaign --

Justice Hugo L. Black: Precise -- statements to be made in a campaign against the judge and in the campaign they have mentioned.

Mr. E. Freeman Leverett: If he had made it at this particular time --

Justice Hugo L. Black: Made it by the same time while he's a candidate, running together.

Giving as an example why this judge is not fit to be a judge in his judgment.

Mr. E. Freeman Leverett: I think that that would be different for this reason.

There, the purpose --

Justice Hugo L. Black: Do you think that it could be cited and convicted for contempt?

Mr. E. Freeman Leverett: I would not know go so far as to say that he couldn't, but I think it would certainly be a stronger case for this reason.

There, the purpose of the statement was to -- for a political campaign for office.

Here, it was obviously for the purpose of obstructing a grand jury.

Justice Hugo L. Black: Was it?

Why do you say that?

It might be that he had a view of the public servant citizens.

He wanted to call attention to things that he thought were injurious to the public.

Certainly, that would be one argument, wouldn't it?

Mr. E. Freeman Leverett: It would be an argument but I don't concede the validity of it.

Justice Hugo L. Black: Do you think if he then saw that the law was being flagrantly used or thought he saw it's flagrantly used for the purpose of bringing about and brought in judgment for a large number of people, he commented on that publicly in which you couldn't draw an inference that maybe he did it because he was a public servant citizen?

Mr. E. Freeman Leverett: I don't think you could in this case.

I think you might in your hypothetical case because, there, he's running.

He's in a race.

He's actually in a race.

But, here, he was not.

He had already announced he wasn't running.

Chief Justice Earl Warren: No.

It says here --

Mr. E. Freeman Leverett: Primary.

Chief Justice Earl Warren: Respondent shows that he was directly interested.

This is on page 38 number 9.

Respondent shows that he was directly interested in the outcome of said election not only as a private citizen, but also as one who was an announced candidate for public office in the general election to be held in November 1960.

Mr. E. Freeman Leverett: That's right.

Chief Justice Earl Warren: And it was a primary for that election.

Mr. E. Freeman Leverett: (Inaudible)

Chief Justice Earl Warren: And then, he goes on to say that respondent felt and believed that the language which was employed in the charge to the grand jury was of such a nature that it tended to create or emphasize issues likely to have a drastic impact for the outcomes and democratic primary.

So, wouldn't that put it in exactly the same position as the hypothetical that Justice Black asked you about?

Mr. E. Freeman Leverett: No, sir.

I don't think so.

I think that, in one case, the man was actually out campaigning against the judge.

That was the hypothetical output to me.

In this case, he was not running in this -- in this primary election.

He says a campaign was in afoot, but he was not a part of it.

Justice Felix Frankfurter: Since you're tolerant toward argument, you might even say it was an argument that that would make it only worse.

Mr. E. Freeman Leverett: Possibly sir.

In any event --

Justice Hugo L. Black: The fact that he was a candidate, do you think that will make it worse?

Justice Felix Frankfurter: That's what I mean.

Justice Hugo L. Black: The fact that he was a candidate against him, do you think it would be worse for him to point out what he thought was the judge's decision?

Mr. E. Freeman Leverett: He was not a candidate against the judge.

Justice Hugo L. Black: I mean, are you agreeing to -- I understood you'd agree to some question or to some suggestion or comment that was made to the effect that it will make it worse for him to make a statement about the judge if he was a candidate for judge.

Mr. E. Freeman Leverett: No, sir, I didn't say --

Justice Felix Frankfurter: All I ask you is whether you might not call it an argument, whatever it's worth.

Mr. E. Freeman Leverett: Yes, sir.

Getting back to this issue of truth, the Georgia practice requires that a party make an offer of proof and that a special assignment of error be presented in the bill of exceptions.

That was not done in this case.

The issue was not raised in the petition for certiorari to the Supreme Court.

That alone was failed.

You've got to have a special assignment bearing petition for certiorari.

The first time that he sought to make this issue was in his petition for reconsideration that he filed in the Georgia Supreme Court that was too late at that juncture.

He al -- he mentioned it in his application for stay to this Court, but he did not mention it in his petition for certiorari.

Under Rule 23, I believe it can't be considered for that reason.

Now, he goes on to say that he was prevented from raising by certain amendments that were filed to the pleadings, and the primary thrust of his argument there is that the petition was amended to make it clear that if he did undertake to prove truth, that he would be held in con -- direct contempt in that respect.

That's not true.

This amendment that was filed was filed after a hearing on demurrers when, for the first time, the demurrers of the petitioner were filed in which he said that the petition is fatal because it fails to allege that this conduct create a clear and eminent danger.

Subsequent to that, the court granted an extension of time for amendment.

This amendment was filed five days later, on August the 10th, for the purpose of meeting this -- what the Solicitor apparently feared might be a defect in his petition.

He amended it by setting out the circumstances surrounding the making of the utterances.

Then, he concluded in this paragraph with the language that's narrowed out upon his foreclosing the issue of truth by saying that the making of these utterances under these circumstances, in effect, was in it of itself a clear and present danger to the administration of justice.

So, we say that he has not been foreclosed from making this issue as a defese.

The Court of Appeals ruled on it solely as a question of pleading and if he had actually made it, his offer of proof might have failed for a number of reasons and the issue would not be here in any event.

And, we think that he's trying to inject into this case a hypothetical issue that has not been presented or decided below.

Chief Justice Earl Warren: Mr. Kramer.

Argument of Milton Kramer

Mr. Milton Kramer: The issue of truth was injected, as Your Honor pointed out in the response on page 38 of the record.

He did respond saying that he truly and sincerely believed what he said, and that was accepted as evidence by stipulation.

I would like to close this comment on the response that was made to a question that the Chief Justice presented to Mr. Ed -- Mr. Leverett.

The Chief Justice asked him whether it is common practice in Georgia for charges to the grand jury to be in open court, and the answer was yes.

It is not common practice in Georgia or anywhere else to summon the members of the press to be present and to have verbatim copies available in chambers for distribution.

I think he --

Justice William J. Brennan: It's not a common practice, you say, in Georgia?

Mr. Milton Kramer: It is not common practice in Georgia or, I believe, anywhere.

Justice William J. Brennan: Well, I used to charge grand jury as a state judge and it was not an uncommon practice of mine.

Mr. Milton Kramer: Well, in Bibb County, it is not the common practice to summon the press to be present and to distribute in chambers, copies of what the charge was.

This --

Justice William J. Brennan: We used to have them all mimeographed.

Mr. Milton Kramer: Well, it is not the practice in -- the answer -- the answer to that was given to the question should be supplemented with the statement that it is not common practice to summon the jury and distribute copies in the judge's chambers.

Justice Felix Frankfurter: Respectable -- respectable federal judges has been known to summon the press and, in their presence, hold the court under sentence they're about to impose or have imposed.

Mr. Milton Kramer: Perhaps the political nature.

Justice Felix Frankfurter: I'm not suggesting that I think well of it.

I'm suggesting what is done.

Mr. Milton Kramer: Yes, but the political nature of the charge is highlighted by the fact that it was done here when it is not done otherwise.

Chief Justice Earl Warren: Very well.