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THE OPEN MIND
May 18, 1958
Moderator: Richard D. Heffner
Guests: Norton Mockridge, Florence Kelley, Eleazar Lipsky
ANNOUNCER: The Open Mind, free to examine, to question, to disagree. Our subject today, “The Courts and a Free Press, Part II.” Your host on The Open Mind is Richard D. Heffner; Historian, Author and Lecturer at the New School for Social Research.
HEFFNER: Today’s program is very definitely a continuation of our Open Mind program of two weeks ago. I suppose I can say that the major question before us is: what is the proper relationship between the right of free press arid free speech and the citizen’s right to a fair trial? And I think it’s appropriate to recall that we began the program last time by quoting from Clarence Darrow. Part of the quote went this way:
“Trial by jury is being rapidly destroyed in America by the manner in which the newspapers handle sensational cases. It is a species of mob law more insidious and dangerous than ordinary mob law.” Now I think today we ought to begin on the other side by quoting Thomas Jefferson, who said: “I do deplore the…into which our newspapers have passed, and the malignantly, vulgarity, and mendacious spirit of those who write them. It is, however, an evil for which there is no remedy. Our liberty depends upon freedom of the press and that cannot be limited without being lost.” At which point Miss Kelley said: “Well, then it comes down to a question, doesn’t it, whether or not the press should be the judge of whether it would be a proper thing to print something, or whether the judge of the proceedings might be in a better position to make this decision.” And in the very, very last seconds of the show, when somebody was signaling me to stop it all, you Mr. Mockridge said: “He might be, Miss Kelley, but don’t you think the press of the city of New York or of this country is in a better position to judge what the people should know than perhaps a judge who is named to the bench by a Tammany politician?” Miss Kelley, I throw that to you now. The last time you had three seconds in which to answer and we sort of called it off.
KELLEY: As a matter of fact, you asked me and then said: Answer the question “yes or no.” Now I judge that I’m not being limited today.
HEFFNER: (laughing) We have thirty minutes.
KELLEY: Well, I’m not going to take 30 minutes. But I would say to Mr. Mockridge that whether or not you feel that the system by which a judge is chosen is a good one, or whether you like the particular judge that is chosen, is not the determining factor of the problem as we have now, I think gotten down to it. It seems to be the conflict between two rights, one of the right of free press and the other of the individual to a fair trial. And I think when you bring in the possibility of not liking a particular judge, that’s absolutely irrelevant.
MOCKRIDGE: Well, but don’t you think, Miss Kelley, although whether or not you like a judge is, I grant, more or less irrelevant, that whether or not that judge is likely to give the facts in a case, or to give a fair, impartial viewpoint–that, I think, is the crux of it. I think that in the city of New York: here we have many judges on the bench who are suspect, who are not likely to give the press the kind of material that we want, who are not likely necessarily to give a man a fair trial.
HEFFNER: May I ask this question: If we had a system of selecting Judges that would please you, and therefore put on the bench judges who would please you in respect to their dignity and their fairness, etc.–would you then revert back to the point that Miss Kelley made that it should be the legal officials who decide what should not in these cases be permitted to so to the press?
MOCKRIDGE: Well, no Mr. Heffner; I don’t think that. First, that’s a hypothetical situation that we have. I don’t think you could ever possibly have a set of judges all over the country that would be acceptable to the press or to anybody else. But, even if you did, I still say that a judge might be influenced by his own thinking or his own by the man who put him on the bench; or by the litigants and there are judges who are influenced by those litigants–I that that judge has no right to decide whether or not his trial going to be held secretly.
KELLEY: This test of a judge…You’re trying to say that a judge could, if he gives you the information you want, and that he’s no…if he doesn’t. I don’t think that’s a proper test of a good or bad judge.
MOCKRIDGE: No, Miss Kelley, I don’t want the judge to give us the information; I want us to have the right to be there to hear it, that’s all.
LIPSKY: Isn’t the real question whether you have the right to print the information while the trial is pending? You always have a right to the information. The question is whether you have the right to influence a trial while it’s pending in such a way as may prejudice the right of the man who’s on trial.
MOCKRIDGE: How do we influence the trial while it’s pending? The jurors are not supposed to read the papers.
LIPSKY: They’re not but before it gets into court, their headlines and the climate of opinion can be established.
MOCKRIDGE: Oh, well, that’s true. We argued that last week and Mr. Williams conceded, for instance, that if such a situation occurred; you could ask for a change of venue, or a postponement for a certain time until that climate changes.
LIPSKY: Can you give us any reason why the newspapers must have this right to prejudice a trial one way or the other, before a man gets the verdict of the Jury? What is involved here except the propertied interest of the newspapers?
MOCKRIDGE: Mr. Lipsky, I deny that we prejudice the trial. When you insinuate that—
LIPSKY: Well, you must influence the trial in some way if you give it inflammatory publicity.
MOCKRIDGE: (interrupting) I don’t think so. I don’t think that you can recall one single case that you ever had when you were an assistant district attorney that was prejudiced by any of our stories.
LIPSKY: I’m afraid I was guilty once of making a statement in court about the guilt of a man, and had to eat my words the next time it came up for a hearing. It was a hit-and-run case and I was convinced the man was guilty. I made a statement in court and denounced him and asked for high bail. Two weeks later I was embarrassed by the fact that we saw he had no connection with the crime at all. And I withdrew the statement on the record. The first statement got a column, a full column in the newspaper, about the offender who ran away from a hit-and-run case. The next time, when I withdrew the statement, there wasn’t a stick of type in any newspaper.
MOCKRIDGE: Well, don’t you think we were generous in not calling attention to your mistake? (general laughter) The man got a fair trial, though, didn’t he? And he was not prosecuted.
LIPSKY: He was acquitted.
MOCKRIDGE: Well, there you are.
HEFFNER: Well, let me address something here. The man got a fair trial, didn’t he?
HEFFNER: All right. Now, are you satisfied sufficient answers to Mr. Lipsky when character had been defamed, in print, received an apology didn’t bother to print it. Are you… the acquittal in court?
MOCKRIDGE: No, no. I’m sure that can’t be the case.
LIPSKY: (interrupting) Well, I have the file, in my showing that to be the fact. I was the guilty party.
MOCKRIDGE: Yes, you have the file that you made; you don’t have the file that no paper ever carried this. It is a cardinal rule at the World Telegram and Sun that acquitted or if there is a change in the case, we will carry…
LIPSKY: Well, just take my word that never happened.
MOCKRIDGE: Now take this case in Jersey the other day. A little boy was accused of killing his mother with a boy-scout knife: a nicer little type of boy you couldn’t find.
KELLEY: Has this case been disposed of yet?
MOCKRIDGE: Yes. We carried the story, naturally. The public has a right to know about little boys running around with boy-scout knives and killing their mothers. This kid confessed to this, and he confessed twice.
LIPSKY: And still he might have been innocent after a confession.
MOCKRIDGE: He confessed twice. We carried that. Then it turned out that relatives were able to account for every hour that that boy spent around the time of the murder. And we carried a longest story about that reversal than you ever saw. The boy finally was dismissed and was carried fully by the World Telegram and Sun.
HEFFNER: What about the question Mr. Lipsky asked before…why is it so important?
MOCKRIDGE: I do agree with Mr. Thomas Jefferson—
LIPSKY: (interrupting) The second part of what he had to say.
MOCKRIDGE: He says that some of our stories get a little out of line. There’s no doubt about it. That’s only human nature, as some of these judges get out of line. But I say that only publicity can awaken the public to the prevalence and the importance and the constancy of crime. If you suppress it, nobody knows what’s going on. I think it was Rebecca West who said one time that “the face of our living nation must be laid before the public-the real facts and face, or else we live in a world of fantasy. Now you start to deny the public the right to know and you have the first step of a totalitarian state.
KELLEY: But it seems to me that two rights here can exist together; that the true facts can be, and should be, made public to the whole country. We should know how many…been committed. But I don’t get this terrific importance of the press setting into it before there has been a disposition of the case.
LIPSKY: Well, let me put this to you: in England, where they seem to have a rule which suppresses this sort of thing, they are a far more democratic system of government than we have here, because, among other things the courts enjoy higher prestige, civil liberties are more intact, just because of the lack of pressure from…
HEFFNER: Yes, I was very amazed last time when I brought up that point and Mr. Williams seemed to think that this was a very terrible thing even in England. But I would come back to the point that Miss Kelley just made, that I don’t think this is a conflict between on the one hand the press saying: “We have a right to print the news concerning crimes committed and criminals convicted in this country: — it is very important and certainly part of the news. And what Miss Kelley says: “Why is it so important to print this information before the criminals come to trial, before the decisions are made as to whether they are or are not cr1minals?” This really has nothing to do with public information, does it?
MOCKRIDGE: The public has, under the Constitution, a complete right to know. The newspapers have a duty and an obligation to provide that knowledge, to gather it, to know everything that’s going on.
LIPSKY: Why should they have this right?
MOCKRIDGE: Because it’s guaranteed.
LIPSKY: If there’s a law which prevents such publication, they don’t have the legal right, and there seems to me no moral right whatsoever to bring additional pressure on the man…trail, where his liberty is involved.
MOCKRIDGE: Yes, but I say to you that you cannot show me one single case where we have done this—
LIPSKY: (interrupting) Well, I’ll give you an example. One of our mutual friends, an editor, who we met socially not too long ago, Miss Kelley, had been complaining about being exposed to public view due to testimony he was giving a Congressional committee- at the very same time that his newspaper was publishing the arrest of an actress in Los Angeles on a charge of prostitution. Not convicted; no evidence stated; but a picture was set up there in sv.ch a way that would forever bar her from decent society. Now she was completely disposed of in the trial by newspaper by having her picture printed. Now I see no reason in the world why in New York a newspaper has to publish such a story about a person who might very well have been innocent of the charge. Now there’s another example I could give you and name names later on—
MOCKRIDGE: (interrupting) Mr. Lipsky, that’s not someone who’s on rial. You’re talking about—
LIPSKY: But this was an arrest!
LIPSKY: And no proof of guilt!
HEFFNER: This seems to be the whole point, Mr. Mockridge, I think–that as a lay person, and not involved as a newspaperman or as a lawyer, the question comes up in my mind: Why, before the trial has been finished? Certainly it’s important to make known statistics of carnality, etc, but why before the trial? Why should there be this picture in any way? And it brings to mind, the question Mr. Lipsky raised at the beginning. He, I think, insinuated or said: “This has to do less with constitutional rights or moral rights than with the profits that a newspaper might make –through printing of pictures, through sensational headlines, through stories.” But if you talk about right, wouldn’t you say that the right to a fair trial possibly, in this instance–where no one wants to limit publication of news concerning conviction–takes precedence over the right of a newspaper to let everyone know what is going on before accused criminals–accused people –come to trial?
MOCKRIDGE: No, I think that as events happen they should be publicized, so that people can read them. It makes a lot of difference, for instance in your hiring a firm, to your employing an attorney, if you know about that man. If, for instance, Mr. Lipsky here were about to be engaged by you as an attorney, and we had not printed that he had been arrested for some heinous crime. But if he were in this…you would go ahead, perhaps and encourage him…. Particular position, which might prejudice your case in the long run, I think you would look for another attorney,
LIPSKY: (laughing) I think you’re making me very guilty.
MOCKRIDGE: No, I don’t think I am.
KELLEY: This hypothetical question–
might very well have been innocent of the charge, Now there’s another example I could give you1 and name names later on—-
MOCKRIDGE: (interrupting) All right.
KELLEY: (continuing) –you say that your paper would be in possession of information that Mr. Lipsky at one time had been arrested-
MOCKRIDGE: No, no; I think you misunderstand me.
HEFFNER: (laughing) You used…Williams last time, so you’re fair game.
KELLEY: It’s the fact that he or anybody else had been arrested for a crime…this is the very thing we’re trying to get at: that he’d been arrested for it but never been convicted of it. It doesn’t seem to me that this is fair kind of information to be given to anybody.
MOCKRIDGE: Oh I think it has to be! You have to know everything that you need to know about a person or everything…about a corporation—
LIPSKY: (interrupting) Can’t you limit yourself to the noting the fact that an arrest had taken place period? The practice in New York County, as far as the District Attorney’s Office is concerned–and everyone praises this practice–is not to issue comment. Now why cant’s we go one step beyond that and say that the paper shall not publish comment beyond certain limited areas of… in which the public conceivably is interested. Then all of the things that you’re talking about can be taken care of in the event that there’s a disposition of the case.
MOCKRIDGE: Mr. Lipsky, what you’re saying has a mild fascist ring about it.
LIPSKY: (interrupting) On the contrary—
MOCKRIDGE: (continuing) This kind of thing could get us into a great deal of trouble. I am completely opposed to District Attorney Frank Hogan or any other district attorney announcing: “We have arrested Mr. Jones on this charge, and that it is being presented to the Grand Jury.” From then on you know nothing about this case. What could happen to that man?
LIPSKY: Well, very simply, many examples arise where after there is a wrongful conviction, the newspapers have then done their job and done very good ones. Your own newspaper in—
MOCKRIDGE: (interrupting) Yes, surely.
LIPSKY: (continuing) –Hafner case, showed that a man had been wrongfully convicted.
MOCKRIDGE: Surely. That’s right.
LIPSKY: But what about the case where the newspaper helps bring about a wrongful conviction?
MOCKRIDGE: Well, I don’t think there ever has been such a case.
KELLEY: You keep saying that you don’t, that you aren’t familiar with any case in which a newspaper, by printing a story, has help to convict a defendant.
KELLEY: But I wish that you had talked with many petit jurors, as I have, who will tell you that they were influenced by something they read in the paper.
MOCKRIDGE: Oh, I think, seriously, Miss Kelley that almost every juror who comes into court might have read something about some man stealing a car in these petty cases, and might have thought: “Well, he probably stole it because the ‘police arrested him.” I don’t think that that influences a juror when the case is presented in court—
KELLEY: (interrupting) No, if it’s a jury trial, it’s not such a petty case.
MOCKRIDGE: Well, I’ll say grand larceny then, if you wish. But I mean….I’m perfectly certain that, as I said last week; that the American public is spirited enough to understand that a story might have influenced them momentarily, but when they sit there and see the case presented and unfolded day by day, how can they not make up their minds in the correct way?
HEFFNER: Well, I guess the trouble here is that Miss Kelley is making the point that she, in her dealings, has met innumerable jurors who have said they have been influenced–that I…trouble. I don’t think it’s a matter so much of possibly even a principle in this instance, as of the experience; and I think after you can concede the facts, or the experience, then maybe you have to make the decision that despite this, it…difference–that as Jefferson said–you cannot limit the press in any way.
LIPSKY: Well, I think that’s obviously wrong, because the freedom of the press is constantly limited in many ways.
LIPSKY: Well, by the libel laws. I had an experience up to one of our big important newspapers on a syndicated basis telling them a story that they were about to print was printed nevertheless, afterwards, with a great deal of humiliation on the part of the editor. Not your newspaper.
MOCKRIDGE: No. That’s precisely it. There are prescribed rules. If we break one we have to pay a penalty.
KELLEY: But I don’t know of any limitations on the constitutional right to a fair trial.
MOCKRIDGE: No, nor do I know any on the constitutional right to the freedom of the press.
HEFFNER: Now wait a minute. There has been–we’ve just talked about–a limitation upon that right—
MOCKRIDGE: (interrupting) If we’re inaccurate.
HEFFNER: Yes. But I think Miss Kelley raises a very interesting point: that there is no limitation on the constitutional right to a fair trial.
MOCKRIDGE: How can a right to a fair trial be inaccurate? You’re comparing two different things.
HEFFNER: Well, that’s just the trouble, that we are dealing here with judgments, because the whole question has resolved itself as we noted at the beginning–into what the relationship is…right of free speech and a free press to the right to a fair trial…
MOCKRIDGE: Well, may I say this: the minute that we stop looking at our courts and publishing every single scrap of information that we can get about them, that minute we set up a plan which could lead to unbelievable corruption. Even without printing every scrap or information that we know, we have had judges like Martin Manton, who was one of the most crooked federal judges that ever sat on the bench, exposed by the World Telegram and Sun and he died in jail. We have had cases of where a man like Thomas A. Aurelio wanted to be a judge all his life, and the day he got the nomination for it he got on the phone and he called Frank Costello and he said: “Thank you, Frank, you have my undying loyalty.” How can—
HEFFNER: (interrupting) Yes, but you see you’re going back again, Mr. Mockridge, to the thing that Miss Kelley—I think we sort of agreed that we’d dispose of it at the beginning by saying that we can single out individuals, and I think you can single out many individuals in the other direction–we’re really talking about a structure, a system, and I think this is a little more important. I wonder if you feel that you can prove to a certain extent–I suppose none of us can do that; this isn’t a courtroom in the first place—the value of this absolute freedom in terms of a fair trial. In other words, whether the freedom what you’re requiring has an instrument in guaranteeing the freedom that our…are concerned with.
MOCKRIDGE: Let me say this: that even if you show me one or two cases when under our freedom to publish, that a man was denied a fair trial–and nobody has shown me that yet–even if that were so, I’d be perfectly willing to have one or two to be denied a fair trial for the greater good of everyone else.
LIPSKY: I’d like to make this point: it seems that what you’re talking about is the right to criticize public officials, to protect the people as individuals against the pressure of crookedness.
MOCKRIDGE: (interrupting) Sure. That’s part of it.
LIPSKY: Well can’t we make a distinction there and say the freedom of the press shall flourish where there is suspicious dereliction of duty on the part of public officials–because when they get elected to public office they assume that burden. But that the ordinary individual who is unwillingly a…and put to trial shall be protected until disposition. Then if you decide that something went either he was acquitted through a fix, or he was convicted wrongfully as in the Campbell case, and other cases–then you can just go to town after the event. Nobody is trying to limit…
MOCKRIDGE: But Mr. Lipsky, how can we go to town after the man is convicted or freed, when we don’t know what was that brought him to trial?
LIPSKY: You can go to court; you can go to court and get all the information, and then go to town. You’ve done it! You’ve done it!
MOCKRIDGE: Look, what is presented in court is not always what happens. Many things have been put before a grand jury, which is in secret, and they never appear in court, because there’s a fix between the prosecutor and the judge thing we want to know about.
LIPSKY: This is the kind of…Well, I wouldn’t eliminate your right to expose that sort of thing—
MOCKRIDGE: (interrupting) That’s what we want to get. That’s what we’re talking about.
LIPSKY: But how about the ordinary citizen, the cases I’ve been bringing up?
HEFFNER: Well, let me ask this, since Mr. Mockridge is an excellent example of a responsible newspaperman and feels as strongly as he does–and you people feel as strongly as you do–it would seem to me that the question is: how do we project this into the future? What is liable to happen if we’re not going to assume that there’s going to be a limitation upon the right of the press to report as it does? Do you think there’s any possibility that we may find ourselves with a jury system that has been outmoded, and maybe we’re approaching this question of a fair trial?
MOCKRIDGE: I think that’s a much better way to approach it.
HEFFNER: If we insist upon the right to maintain a free press and free speech–and nobody denies that this is important….Mr. Mockridge feels that prior knowledge and prior publication before disposition is important–do you think possibly we’re going to get to the point where we eliminate the jury and depend upon the judges, who Mr. Mockridge sort of—
LIPSKY: (interrupting) I would say that’s a subject for an entirely different occasion–whether or not we should eliminate the jury system. I think we have it. What Mr. Mockridge says demonstrates what’s wrong with his argument. Because what he’s saying is that the jury should be influenced by newspapers…
MOCKRIDGE: (interrupting) No, no. Where did you get that idea?
LIPSKY: Well, now look: if the jury is not supposed…the newspaper, and is not supposed to know what’s going on, then the newspaper supposedly–has no effect on the trial whatsoever.
MR. MOCKRIDGE: (interrupting) Supposedly…
LIPSKY: (continuing) Then how does publication influence the disposition of the case?
MOCKRIDGE: I don’t think it does.
HEFFNER: He doesn’t want it to. He doesn’t maintain that it should. He’s talking about the public knowing–
LIPSKY: (interrupting) All of us know that it does in important cases.
MOCKRIDGE: If you would name me one—
LIPSKY: (interrupting) The Shepard case.
MOCKRIDGE: The Shepard case! If the newspapers hadn’t brought out the fact that Sam Shepard was involved in this murder in Cleveland, and that the officials there were doing nothing bought it, he never would have come to trial.
LIPSKY: And perhaps he wouldn’t have been convicted if it hadn’t been for those newspapers,
HEFFNER: You say possibly, Mr. Mockridge. Doesn’t this, in a sense destroy your—
MOCKRIDGE: (interrupting) No, it doesn’t; because I say “Possibly.” How can I say “yes” or “no” to that—exactly as Miss Kelley couldn’t say “yes” or “no” to—?
LIPSKY: (interrupting) An eminent colleague of mine, Erle Stanley Gardner, has been writing extensively indicating that there was no basis for the conviction in the Shepard case.
MOCKRIDGE: Mr. Erle Stanley Gardner is trying to sell himself exactly as many other people are. His hypothesis is a highly salable one; that’s why he’s making it.
LIPSKY: Well, now I think you’re making the wrong argument, because if you read the record, it is a very dubious proposition-¬
MOCKRIDGE: (interrupting) “Read the record”! I wrote the whole trial.
LIPSKY: Then I’m afraid that what you wrote isn’t going to be persuasive to anybody who studies it carefully.
HEFFNER: Miss Kelley?
KELLEY: But this isn’t your point, is it, Mr. Mockridge? Really? That you believe in what you call the freedom of the press to print everything that it can–in order to influence prosecution?
KELLEY: But you said…you just said that in the Shepard case…
KELLEY: (continuing)—that if the newspapers hadn’t done this, there wouldn’t have been a trial.
MOCKRIDGE: That wasn’t prosecution; that was leading to an investigation and a grand jury inquiry into it. I didn’t make grand jurors indict Sam Shepard and I certainly didn’t influence the jury to convict him.
KELLEY: Well, I don’t think I can agree with you on that.
HEFFNER: You mean we have a case here that was tried by two newspapermen? You see—
KELLEY: More than two.
HEFFNER: More than two. But in this instance, two in particular.
LIPSKY: I’m not trying to say that Shepard was innocent or Shepard was guilty; what I do say is that there was a tremendous amount of moral pressure brought on that community which certainly had an effect, and which could have had nothing else but an effect. That’s what Clarence Darrow said.
HEFFNER: Well, could I just say this—
MOCKRIDGE: (interrupting) Well, naturally he would.
LIPSKY: He defended many a man.
MOCKRIDGE: Look at the way Sam Leibowitz when he was a defense attorney, he screamed and howled and protected their rights. Today, as a judge, he said only the other day: “I would put every professional criminal on a Devil’s Island.” It’s all which side of the fence you’re on, you know.
HEFFNER: I would like to make just this last point. And that is that you say the question of the jury system is not at…here, but actually we haven’t been talking about the jury system versus a free press. We’ve been talking about a fair trial versus a free press, or its relationship. And I wonder if we shouldn’t–we have exactly 30 seconds left–
MR. LIPSKY: (interrupting) In my opinion, judges are just as susceptible to this type of moral pressure as jurors, if not more so.
KELLEY: Probably they are.
MOCKRIDGE: But I still would like to see one case of where someone didn’t really get a fair trial because of our publications.
HEFFNER: You mean in the days to come, tomorrow and the next day we’re going to have to get briefs from Miss Kelley and Mr. Lipsky—
MOCKRIDGE: (interrupting) I’ll read them with great interest.
LIPSKY: There’s been a book published by Professor Borchard which has some bearing on this, in which he has about 32 cases that he happened to fish up, and everybody’s experience is along these lines.
HEFFNER: And that ends our program. Thanks so much for joining me today. We’ll be back with The Open Mind in two weeks, when our subject will be “All Of The News”. We’ll see you then. Our guest will be I.F. Stone, and we’ll be talking about all the news that is and is not, printed. See you then in two weeks.
ANNOUNCER: WRCA has just presented The Open Mind. Your host on The Open Mind is Richard D. Heffner. Mr Heffner’s guests today were Mr. Norton Mockridge, Miss Florence Kelley, and Mr. Eleazar Lipsky. If you have any comments or questions on today’s program or if you have any suggestions for future programs, please send them to The Open Mind.