Fisher v. Pace/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

The power to punish for contempt committed in open court was recognized long ago as a means of vindicating the dignity and authority of the court. See Ex parte Terry, 128 U.S. 289, 301-304, 9 S.Ct. 77, 78, 79, 32 L.Ed. 405 and cases cited. But its exercise must be narrowly confined lest it become an instrument of tyranny. Chief Justice Taft in Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 396, 69 L.Ed. 767, warned that its exercise by a federal court is 'a delicate one, and care is needed to avoid arbitrary or oppressive conclusions.' The same restraint is necessary under our constitutional scheme when state courts are claiming the right to take a person by the heels and fine or imprison him for contempt without a trial or an opportunity to defend. In Bridges v. State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346; Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546, we narrowly restricted the power to punish summarily for constructive contempts in order to maintain freedom of press and of speech in their preferred position. Freedom of speech in the courtroom deserves the same protection.

Fisher's conviction is sustained because it is said that he persisted in trying to tell the jury what the judge held to be improper. I do not so read the record. The judge sustained an objection to Fisher's attempt to get the average weekly compensation of the injured person before the jury, as appears from the following colloquy:

'By Mr. Cox: The jury is not concerned with the computation; it has only one series of issues. That is not before the jury.

' y the Court: That has all been agreed upon.

'By Mr. Fisher: I think it is material, Your Honor, to tell the jury what the average weekly compensation is of this claimant so that they can tell where he is.

'By the Court: They are not interested in dollars and cents.

'By Mr. Fisher: They are interested to this extent-

'By the Court: Don't argue with me. Go ahead. I will give you your exception to it.

'By Mr. Fisher: Note our exception.

'By the Court: All right.'

Fisher never again tried to get the amount of weekly compensation of the injured person into the record. He abided by the ruling of the judge. What next happened was as follows:

'By Mr. Fisher: This negro, as I stated, can only recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law.

'By Mr. Cox: I am objecting to that discussion, Your Honor, as to what the plaintiff can recover.

'By the Court: Gentlemen! Mr. Fisher, you know the rule, and I have sustained his objection.

'By Mr. Fisher: I am asking-

'By the Court: Don't argue with me. Gentlemen, don't give any consideration to the statement of Mr. Fisher.

'By Mr. Fisher: Note our exception. I think I have a right to explain whether it is a specific injury or general injury.' Fisher's statement that, 'This negro, as I stated, can only recover one hundred and twenty-five weeks compensation, at whatever compensation the rate will figure under the law,' did not mention the matter of 'dollars and cents' that the judge held irrelevant. It was not a new attempt by Fisher to get the 'average weekly compensation' before the jury. Yet the record can be read as meaning that they were the only specific matters on which the judge had ruled. As Justice Sharp, dissenting in the Texas Supreme Court, stated (206 S.W.2d 1008), 'This statement does not indicate that relator was disobeying the ruling of the court, but, on the contrary, shows that he was trying to obey same.' It also means to me that he was seeking to perfect the record so as to preserve all of his points.

It is said that the statement was improper under Texas practice. But it took a ruling of the Texas Supreme Court to make it so, and even then Justice Sharp dissented. If Texas law on the point is so uncertain that the highest judges of the State disagree as to what is the permissible practice, is a lawyer to be laid by the heels for pressing the point? Yet it was for pressing the point of law on which the Supreme Court of Texas divided that Fisher was held in contempt.

It is said, however, that such elements of misbehavior as expression, manner of speaking, bearing, and attitude of Fisher may have given the words a contemptuous flavor that the cold record does not reveal. I do not think freedom of speech should be so readily sacrificed, even in a courtroom. If that were the offense, it is not too much to ask that the judge make it the ground of his ruling. Certainly the judge did not purport to fine and imprison Fisher for the manner of making the objection, for the tone of his voice, or for this facial expression. The dispute was merely over the bounds of permissible comment before a jury. Fisher having been stopped at one point tried another strategy. He was acting the role of a resourceful lawyer. The decision which penalizes him for that zeal sanctions censorship inside a courthouse where the ideals of freedom of speech should flourish.

There is for me only one fair inference from the record-that the judge picked a quarrel with this lawyer and used his high position to wreak vengeance on him. It is shown, I think, by the commencement of the critical colloquy:

'By the Court: I will declare a mistrial if you mess with me two minutes and a half, and fine you besides.

'By Mr. Fisher: That is all right. We take exception to the conduct of the Court.

'By the Court: That is all right; I will fine you $25.00.'

This lawyer was the victim of the pique and hotheadedness of a judicial officer who is supposed to have a serenity that keeps him above the battle and the crowd. That is as much a perversion of the judicial function as if the judge who sat had a pecuniary interest in the outcome of the litigation. Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243.