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TRIBUNE REVIEW PUB. CO. v. THOMAS

March 12, 1954

TRIBUNE REVIEW PUB. CO. et al.
v.
THOMAS



The opinion of the court was delivered by: GOURLEY

In this proceeding the plaintiffs and intervening plaintiff are newspaper publishers and the defendant is the sheriff of Westmoreland County, Pennsylvania.

 Said order as issued by the Court of Common Pleas, Court of Quarter Sessions, and Court of Oyer and Terminer of Westmoreland County, Pennsylvania, provides:

 'No one shall take any pictures inside of the courthouse during any session of the court, or the recesses between sessions, and no person, litigant, prosecutor, defendant, plaintiff, claimant or respondent, juror, or witness shall be photographed or have his or her or their pictures taken in a court room or in any of the halls, corridors or approaches thereto during any session of the court or recesses between sessions, and no prisoner, or inmate of the county jail shall be photographed in the jail or in any of the approaches thereto or on his way to or from a session of the court.'

 The defendant, sheriff of Westmoreland County, Pennsylvania, is the highest police authority in said county, and in the exercise of his duties, was empowered and directed by virtue of his office to enforce the mandate of said County Court.

 In accordance with the provisions of law, this Court requested the impaneling of a statutory three judge court. Said request was refused for the reason that the order or regulation was local in nature, being issued by a county court, and did, therefore, not relate to the action of an officer of the state or of an order made by an administrative board or commission of the state. Wilentz v. Sovereign Camp Woodmen of the World, 306 U.S. 573, 59 S. Ct. 709, 83 L. Ed. 994; 28 U.S.C.A. § 2281 et seq.

 Application was made ex-parte for a temporary restraining order, which was granted.

 American Bar Association Judicial Canon 35, as adopted September 30, 1937, provides:

 'Improper Publicizing of Court Proceedings. Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings, are calculated to detract from the essential dignity of the proceedings, degrade the court, and create misconceptions with respect thereto in the mind of the public, and should not be permitted.'

 Since I am in agreement with this Canon of the American Bar Association, the restraining order issued did not interfere with the order or regulation of the Westmoreland County Court as it related to the taking of photographs in the courtroom of any judge, or places in such close proximity thereto as to interfere with the orderly proceedings of the court, in the conduct of trials actually in progress.

 The temporary restraining order provides:

 'And Now, March 2nd, 1954, the motion of the plaintiffs, The Tribune Review Publishing Co. and David W. Mack, for temporary restraining order having been presented in open court, and it appearing to the court from the verified complaint herein that the defendant, Howard Bud Thomas, under color of a regulation adopted by the Courts of Westmoreland County, is interfering with the right of the plaintiffs, The Tribune Review Publishing Co. and David W. Mack, Managing Editor, to gather and publish news, including photographic likenesses of news worthy subjects, and that such acts amount to a denial of the plaintiffs' and other of due process of law and of freedom of speech and of freedom of the press, and that immediate and irreparable loss and damage will result to the plaintiffs before notice can be served and a hearing had on plaintiffs' motion for preliminary injunction in that the plaintiffs will be deprived of any means whatever of photographing witnesses and other news worthy subjects after they depart from the court house in Greensburg, to their residences beyond Westmoreland County, and that said acts amount to a censorship of the press in violation of the 14th Amendment to the Constitution of the United States of America, and that the right of the public to be informed on matters of public interest will be infringed, it is ordered, directed and decreed --

 '(a) That the defendant, Howard Bud Thomas, his agents, deputies and others acting under him, under color of the regulation or order of court of February 25th, 1954, on the basis of usage and custom in said county before February 25, 1954, be restrained from enforcing or attempting to enforce the same except insofar as said regulation or order of court relates to court rooms while courts are in session or recesses thereof, or places in such close proximity thereto, as to interfere with the orderly proceedings of the court in the conduct of trials actually in progress, and except insofar as said regulation purports to forbid the photographing of the defendant in custody of the court except with his written consent.

 '(b) That the defendant, Howard Bud Thomas, his agents, deputies and others acting under him, be restrained from in any manner interfering with the news camera men or others acting for the plaintiffs from photographing witnesses, litigants, prosecutors, defendant, plaintiff, claimant or respondent, or other persons of news worthy interest in the proceeding presently on trial or to be on trial for the purpose of printing and publishing the same until such time as the plaintiffs' motion for preliminary injunction can be heard on notice, and thereafter until the constitutionality of such regulation or order of court and the acts of the defendant, Howard Bud Thomas, in the enforcement of the same can be finally determined provided the consent of such person is first obtained in writing.

 'Provided that the plaintiffs first give security in the sum of $ 1,000 for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained; said bond to be approved by the Court or by the Clerk of the Court.

 'It is further ordered that this order shall expire ten days after entered unless within such time the order, for good cause shown, is extended for a longer period, or unless the defendant consents that it may be extended for a longer time.

 'It is further ordered that the plaintiffs' motion for preliminary injunction be set down for hearing on Monday, the 8th day of March, 1954, at 10 o'clock A.M., Court Room No. 2

 '3:36 P.M.

 (s) Wallace S. Gourley, C.J.'

 When a court room or facilities in close proximity thereto would be invaded by a reporter or reporters with camera, no judge, with all the power of the law at his command, can maintain the order and decorum essential to the intelligent discharge of the court's proper function.

 The defendant appealed from the granting of said restraining order to the United States Court of Appeals for the Third Circuit and also filed a writ of prohibition in said appellate court to the temporary restraining order issued by this Court. The appellate court denied the petition for writ of prohibition and dismissed the appeal for want or jurisdiction, without prejudice to the right of the defendant to move the district court for the dissolution of the temporary restraining order, and to appeal if such motion be denied or a preliminary injunction be issued after hearing.

 Application has been made for the dissolution of the temporary restraining order previously entered by this Court, a full and complete hearing has been held on said motion and testimony has been offered in support of the application for a preliminary injunction.

 Pending the determination of the questions presented, the Court extended the temporary restraining order and clarified its intention, said clarification order being as follows:

 'On the 2nd day of March, 1954, the Court entered a Temporary Restraining Order pending the disposition of the issues raised in the within proceeding wherein the defendant, his agents and other acting under him were restrained from enforcing or attempting to enforce the order of the Court of Common Pleas, Court of Quarter Sessions and Court of Oyer and Terminer, Westmoreland County, Pennsylvania, issued on the 25th day of February, 1954, if written permission was given by the defendant or the person concerned to the taking of their photograph on the premises identified as the Westmoreland County Court House, except insofar as said regulation or order of court related to court rooms while courts are in session or recesses thereof, or places in such close proximity thereto, as to interfere with the orderly proceedings of the court in the conduct of trials actually in progress.

 'It appears that some confusion exists as to the interpretation to be given the order issued by this Court on the 2nd day of March, 1954, as to the phrase 'places in such close proximity to the court rooms as to interfere with the orderly proceedings of the court in the conduct of trials actually in progress.'

 'It appears that clarification should be given to the intention of the court in the issuance of a temporary restraining order pending the final disposition of the motion to quash the temporary restraining order and the adjudication of the petition for preliminary injunction as to the enforcement of said order as issued by said Westmoreland County Courts on the 25th day of February, 1954.

 'It is not in dispute that the Orphans' Court of Westmoreland County, Pennsylvania, has not entered an order similar to that issued by the members of the Courts of Common Pleas, Quarter Sessions and Oyer and Terminer, and, therefore, no basis exists for this court to enter an order affecting the temporary restraining order pending the disposition of the issues as to the Orphans' Court of Westmoreland County, Pennsylvania.

 'It would appear to this Court in the absence of some unusual situation, places in such close proximity to the court room where court is actually being held should include only those facilities on that part of the floor of the court house where the court room is located, which is adjoining to or a part of the facilities commonly known, designated and accepted as the facilities or quarters of each judge for the performance and administration of his duties.

 'On the basis of the modification just expressed, the order issued by this Court on the 2nd day of March, 1954, together with the bond in the amount of $ 1,000.00 entered on the same date, is in each instance continued pending the entry of an order of this Court on the motion to quash the temporary restraining order and an adjudication of the petition for the entry of a preliminary injunction restraining the effectiveness of the order issued by the Westmoreland County Court on the 25th day of February, 1954'.

 Strange as it seems, the question appears to be one of first impression.

 Motion To Quash Or Dissolve Temporary Restraining Order

 Determination will, therefore, first be made of the motion to dissolve the temporary restraining order.

 It is contended that the United States District Court ought not to take jurisdiction in this proceeding for the reason that it does not really or substantially involve a dispute or controversy properly within the jurisdiction of this Court, and that the proceeding is not properly laid in the Federal District Court.

 Petitioners claim the regulation or order deprives them of their right to gather, publish and print news through the photographic reproductions of newsworthy subjects, and amounts to an illegal censorship of the press, a denial of the right of free speech, and a deprivation of their property rights without due process of law.

 Freedom of the press is a crucial cornerstone of our Anglo-Saxon democratic institutions. To impede or vitiate its tenor by administrative or legislative fiat is inimical to our cherished freedoms -- for the preservation of which the judicial branch of our state and federal governments are primarily constituted.

 There has been a tendency to interfere with the fundamental right of the people to be kept thoroughly informed as to the events of the day. The courts should be alert and vigilant to make positive that sources of news should not be undermined, such as through the growing practice of secrecy in government on national, state and local levels; the growing tendency of public officials to feel that they are not accountable to the public; that they can conduct the business of their offices in secret; that they may seal or impound public records; that they may divulge only such information as they think is good for the people to know; that they may extend 'military security' into areas of news which have no bearing on the nation's security.

 This is the pattern by which the Fascists in Italy, the Nazis in Germany, the Communists in Russia, the Peronistas in Argentina began to limit the right of their people to know, forced their newspapers into complete subjection and were able to take from them all their other democratic rights as well.

 Regrettably or not, the misfortunes and frailties of neighbors and public figures are subjects of considerable interest and discussion to the rest of the population, and the public interest in obtaining information becomes dominant over the individual's desire. Where any person has achieved or has had thrust upon him a questionable and indefinable status of a public figure, it is a news item.

 News has been defined as 'not a mirror of social conditions, but the report of an aspect that has obtruded itself.' Unusual things make news; according to the old saying of the newspaper profession that if a dog bites a man, it is not news -- but if a man bites a dog, it is.

 It is illusory, therefore, to expect the newspapers in the publication of news to retreat into the type of ivory tower to which those who sigh for the past would relegate them.

 The fact that this petition may have been precipitated and brought into glaring focus by the notorious criminal proceeding now in progress in Westmoreland County, as relates to the Phantom or Turnpike Killings, must not blur the evaluation of issues which far transcend in magnitude and significance any momentary considerations.

 For the decision to be enunciated must affect all matters which arise in the Westmoreland County Courts, whether they be actions in divorce, civil suits, or criminal trials, and the pronouncements to be entered must be of general application, providing, as they must, adequate safeguards for the dignified and judicious administration of the Courts of Westmoreland County and simultaneously safeguarding the basic American right of a free press.

 Under the Fourteenth Amendment the federal judicial power can redress the wrong done by a state officer misusing the authority of the State with which he is clothed; under such circumstances inquiry whether the State has authorized the wrong is irrelevant. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714; Barney v. City of New York, 193 U.S. 430, 24 S. Ct. 502, 48 L. Ed. 737; Home Telephone and Telegraph Company v. City of Los Angeles, 227 U.S. 278, 33 S. Ct. 312, 57 L. Ed. 510.

 The Fourteenth Amendment safeguards the freedom of the press from state aggression. Any judicial decree which violates vested rights is within the protection of this amendment. Nesbit v. Riesenman, 298 Pa. 475, 148 A. 695, ...


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