The Press: Free Press Y. Fair Trial

One of the most difficult problems for U.S. editors is how to reconcile two traditional U.S. constitutional guarantees: the right of the free press and the right of the defendant to a fair trial before an unprejudiced court and jury. Last week the editors got some unsolicited help from bar and bench:

¶ In Boston, President Edwin M. Otterbourg of the New York County Lawyers’ Association proposed a twelve-point code to regulate news reporting of criminal cases. He denounced the present state of affairs as “the law of the jungle.” Key clause in Otterbourg’s code: “Statements that a prisoner has confessed to a crime should not be made [in the press] until proof of a confession has been received in evidence at the trial . . .”* Three days later, Boston’s press answered Otterbourg in Page One headlines blaring the out-of-court confession of pretty, 25-year-old Stenographer Mildred McDonald, that she had shot, stabbed and burned to death a 14-year-old girl for “belittling” her by taunts about a broken romance. Said Lawyer Otterbourg: “A very reprehensible thing.” But he added that individual newspapers will probably continue to print confessions because they are news—”as long as the law of the jungle prevails.” At all such talk, Manhattan’s Daily News roared: “The height of impudence.”

¶ In Cleveland. Judge Joseph H. Silbert cited three Cleveland Press staffers for contempt of court. In defiance of Judge Silbert’s order, the Scripps-Howard Press had taken and printed a picture of an arraignment. The photograph showed ex-Judge Nelson Brewer pleading not guilty to embezzlement charges brought against him by a grand jury after the Press had exposed Brewer’s alleged misdeeds and forced his resignation from the bench (TIME, Aug. 3). In a front-page editorial, the Press defended its staffers for upholding the “right of the people to know.” But President H. Walter Stewart of the Cleveland Bar Association, which helped draft the contempt citation, thought that the Press had missed the point: “The issue is not a question of the propriety of taking a photograph in court. The real issue … is the right [of the Press’] to willfully violate a positive order of the court . . .”

* Other sample provisions: no interviews with attorneys on what they expect to prove, no reporting of witnesses’ stories until after they lave testified.