Sensational Journalism and the Law

So much has been said in recent years concerning the methods and policies of sensational journalism that a further word upon a topic so hackneyed would seem almost to require an explanation or an apology. Current criticism, however, for the most part, has been confined to only one of its many characteristics, — its bad taste and its vulgarizing influence on its readers by daily offenses against the actual, though as yet ideal, right of privacy, by its arrogant boastfulness, mawkish sentimentality, and a persistent and systematic distortion of values in events.

This, the most noticeable feature of yellow journalism, is indicative rather of its character than of its purpose. In considering, however, the present subject, — sensational journalism in its relation to the making, enforcing, and interpreting of law, —we enter a different field, that of the conscious policies and objects with and for which these papers are conducted. The main business of a newspaper as defined by journalists of the old school is the collection and publication of news of general interest coupled with editorial comment upon it. The old - time editor was a ruminative and critical observer of public events. This definition of the functions of a newspaper was long ago scornfully cast aside as absurdly antiquated and insufficient to include the myriad circulation-making enterprises of yellow journalism. These papers are not simply purveyors of news and comment, but have what, for lack of a better term, may be called constructive policies of their own. In the making of law, for example, not content with mere criticism of legislators and their measures, the new journalism conceives and exploits measures of its own, drafted by its own counsel, and introduced as legislative bills by statesmen to whom flattering press notices and the publication of an occasional blurred photograph are a sufficient reward. Not infrequently measures thus conceived and drafted are supported by specially prepared “monster petitions,” containing thousands of names, badly written and of doubtful authenticity, of supposed partisans, and by special trains filled with orators and a heterogeneous rabble described in the news columns as “committees of citizens, ” who at critical periods are collected together and turned loose upon the assembled lawmakers as an impressive object lesson of the public interest fervidly aroused on behalf of the newspaper’s bill.

The ethics of persuasion is an interesting subject. It falls, however, outside the scope of this article. It is impossible to lay down any hard and fast rule by which to determine in all cases what form of newspaper influence is legitimate and what illegitimate. The most obvious characteristic of yellow journalism in its relation to lawmaking is that it prefers ordinarily to obtain its ends by the use of intimidation rather than by persuasion. The monster petition scheme just referred to is merely one illustrative expression of this preference. When a newspaper of this type is interested in having some official do some particular thing in some particular way, it spends little of its space or time in attempting to show the logical propriety or necessity for the action it desires. It seeks first and foremost to make the official see that the eyes of the people are on him, and that any action by him contrary to that which the newspaper assures him the people want would be fraught with serious personal consequences. The principal point with these papers is always “ the people demand ” (in large capitals) this or that, and the logic or reason of the demand is obscured or ignored. It is the headless Demos transformed into printer’s ink. If by any chance any official, so unfortunate as to have ideas of his own as to how his office should be conducted, proves obdurate to the demands of the printed voice of the people, he becomes the target for newspaper attacks, calculated to destroy any reputation he may previously have had for intelligence, sobriety of judgment, or public efficiency, his tormentor, so far as libel is concerned, keeping however, as Fabian says, “on the windy side of the law.” An amusing illustration of this kind of warfare occurred in New York some years ago, when for several weeks one of these newspapers published daily attacks upon the President of the Board of Police Commissioners, because this Commissioner refused to follow the newspaper theories of the proper way of enforcing, or rather not enforcing, the Excise Law. The newspaper took the position that while the powers of the Police Department were being largely turned to ferreting out saloon keepers who were keeping open after hours or on Sundays, the detection of serious crimes was being neglected, and that a “carnival of crime,” to use the picturesque wording of its headlines, was being carried on in the city. Finally in one of its issues the paper published a list of thirty distinct criminal offenses of the most serious character, murder, felonious assault, burglary, grand larceny, and the like, all alleged to have been committed within a week, and in none of which, it asserted, had any criminal been captured or any stolen property recovered. Events which followed immediately upon this last publication showed that the newspaper had erred grievously in its estimate of this particular official under attack. A few days later the Police Commissioner, Mr. Roosevelt, published in the columns of all the other newspapers in New York the result of his own personal investigation of these thirty items of criminal news, showing conclusively that twentyeight of them were canards pure and simple, and that in the remaining two police activity had brought about results of a most satisfactory kind. Following this statement of the facts was appended an adaptation of some fifteen or twenty lines from Macaulay’s merciless essay on Barrère, perhaps the finest philippic against a notorious and inveterate liar which the English language affords, so worded that they should apply not merely to the newspaper which published this spurious list of alleged crimes, but to the editor and proprietor personally. The carnival of crime ended at once.

It is, of course, impossible to determine accurately the extent of newspaper influence upon legislation and the conduct of public officials by these systematic attempts at bullying. Making all due allowance, however, there have been within recent years many significant illustrations of the influence of yellow journalism upon the shaping of public events. Mr. Creelman is quite right in saying, as he does in his interesting book On the Great Highway, that the story of the Spanish war is incomplete which overlooks the part that yellow journalism had in bringing it on. He tells us that some time prior to the commencement of hostilities a well-known artist, who had been sent to Cuba as a representative of one of these papers, and had there grown tired of inaction, telegraphed his chief that there was no prospect of war, and that he wished to come home. The reply he received was characteristic of the journalism he represented: “You furnish the pictures, we will furnish the war.” It is characteristic because the new journalism aims to direct rather than to influence, and seeks, to an extent never attempted or conceived by the journalism it endeavors so strenuously to supplant, to create public sentiment rather than to mould it, to make measures and find men.

The larger number of the readers of the great sensational newspapers live at or near the place of publication, where the half - dozen daily editions can be placed in their hands hot from the press. The news furnished in them is, for the most part, of distinctively local interest. In their columns the horizon is narrow and inexpressibly dingy. Detailed narrations of sensational local happenings, preferably crimes and scandals, are given conspicuous places, while more important events occurring outside the city limits are treated with telegraphic brevity. These papers constitute beyond question the greatest provincializing influence in metropolitan life.

The particular local functions of sensational journalism which bring it in close relation to the courts result from its self-imposed responsibilities as detective and punisher of crime and as director of municipal officials. So far as the latter are concerned, yellow journalism has apparently a good record. Many recent instances might for example be cited where these newspapers, acting under the names of “ dummy ” plaintiffs, have sought and obtained preliminary or temporary injunctions against threatened official malfeasance, or where they have instituted legal proceedings to expose corrupt jobbery. As to the actual results thus accomplished, other than the publicity obtained, the general public is not in a position to judge. Temporary injunctions granted merely until the merits of the case can be heard and determined are of no particular value if when the trial day comes the newspaper plaintiff fails to appear, the case is dismissed and the temporary injunction vacated. On such occasions, and they are more frequent than the general public is aware, the newspaper takes little pains to inform its readers of the final results of the matter over which it made such hue and cry months before.

But however fair-minded persons may differ as to the results actually obtained by these newspaper law enterprises in the civil courts, there is less room for difference of opinion as to the methods with which they are conducted. They are almost invariably so managed as to convey to the minds of their readers the idea that the decision obtained, if a favorable one, has not come as the result of a just rule of law laid down by a wise and fair-minded judge, but has been obtained rather in spite of both law and judge, and wholly because a newspaper of enormous circulation, championing the cause of the people, had wrested the law to its clamorous authority. The attitude of mind thus created is well exemplified in a remark made to me by a business man of more than ordinary intelligence, in discussing an injunction granted in one of these newspaper suits arising out of a water scandal: “Why, of course Judge - granted the injunction. Everybody knew he would. There is not a judge on the bench who would have the nerve to decide the other way with all the row the newspapers have made about it. He knows where his bread is buttered.”

One of the great features of counting-house journalism is its real or supposed abilities in the detection and punishment of crime. Whether this field is a legitimate one for a newspaper to enter need not be discussed here. It goes without saying that an interesting murder mystery sells many papers, and if as a result of skillful detective work the guilty party is finally brought to the gallows or the electric chair, it is a triumph for the paper whose reporters are the sleuths. While such efforts when crowned with success are the source probably of much credit and revenue, there are various disagreeable possibilities connected with failure which the astute managers of these papers can never afford to overlook. While verdicts in libel suits are in this country generally (compared with those in England) small, and the libel law itself is filled with curious and antiquated technicalities by which verdicts may be avoided or reversed, nevertheless there is always the possibility that an innocent victim of newspaper prosecution will turn the tables and draw smart money from the enterprising journal’s coffers. The acquittal of the person who has been thrust into jeopardy by newspaper detectives is obviously a serious matter for the paper. On the other hand, there are no important consequences from conviction except of course to the person condemned. Is it to be expected that the newspaper under such circumstances will preserve a disinterested and impartial tone in its news columns while the man in the dock is fighting for his life before the judge and jury ? Is it remarkable that during the course of such a trial the newspaper should fill its pages with ghastly cartoons of the defendant, with murder drawn in every line of his face, or that it should by its reports of the trial itself seek to impress its readers with his guilt before it be proved according to law? that it should send its reporters exploring for new witnesses for the prosecution, and should publish in advance of their appearance on the witness stand the substance of the damaging testimony it is claimed they will give? that it should go even further, and (as was recently shown in the course of a great poisoning case in New York city, the history of which forms a striking commentary on all these abuses) actually pay large sums of money to induce persons to make affidavits incriminating the defendant on trial? Unfortunately too often these efforts receive aid from prosecuting officers, whose sense of public duty is impaired or destroyed by the itch for reputation and a cheap and tawdry type of forensic triumph. Despicable enough is the district attorney who grants interviews to newspaper reporters during the progress of a criminal trial, and who makes daily statements to them of what he intends to prove on the morrow unless prevented by the law as expounded by the trial judge. A careful study of the progress of more than one great criminal trial in New York city would show how illegal and improper matter prejudicial to the person accused of crime has been ruled out by the trial court only to have the precise information spread about in thousands upon thousands of copies of sensational newspapers, with a reasonable certainty of their scare headlines, at least, being read by some of the jury. The pernicious influence of these journals on the courts of justice in criminal trials (and not merely in the comparatively small number in which they are themselves the instigators of the criminal proceedings) is that they often make fair play an impossibility. The days and weeks that are now not infrequently given to selecting jurors in important criminal cases are spent in large measure by counsel in examining talesmen in an endeavor to find, if possible, twelve men in whose minds the accused has not been already “tried by newspaper ” and condemned or acquitted. When the public feeling in a community is such that it will be impossible for a party to an action to obtain an unprejudiced jury, a change of venue is allowed to some other county where the state of the public mind is more judicial. It is a significant fact that nearly all applications for such change in the place of trial from New York city have been for many years based mainly upon complaints of the inflammatory zeal of the sensational press.

The courts in Massachusetts (where judges are not elected by the people, but are appointed by the Governor) have been very prompt in dealing in a very wholesome and summary way with editors of papers publishing matter calculated to improperly affect the fairness of jury trials. Whether it be from better principles or an inspiring fear of jail, the courts of public justice in that state receive little interference from unwarranted newspaper stories. Some of the cases in which summary punishment has been meted out from the bench to Massachusetts editors will impress New York readers rather curiously. For example, just before the trial of a case involving the amount of compensation the owner of land should receive for his land taken for a public purpose, a newspaper in Worcester informed its readers that “the town offered Loring (the plaintiff) $80 at the time of the taking, but he demanded $250, and not getting it, went to law.” Another paper published substantially the same statement, and both were summarily punished by fine, the court holding that these articles were calculated to obstruct the course of justice, and that they constituted contempt of court. During the trial of a criminal prosecution in Boston a few years ago against a railway engineer for manslaughter in wrecking his train, the editor of the Boston Traveller intimated editorially that the railway company was trying to put the blame on the engineer as a scapegoat, and that the result of the trial would probably be in his favor. The editor was sentenced to jail for this publication. The foregoing are undoubtedly extreme cases, and are chosen simply to show the extent to which some American courts will go in punishing newspaper contempts. All of these decisions were taken on appeal to the highest court of the state and were there affirmed. The California courts have been equally vigorous in several cases of recent years, notably in connection with publications made during the celebrated Durant murder trial in San Francisco. The English courts are, if anything, even more severe in this class of cases, a recent decision of the Court of King’s Bench being a noteworthy illustration. During the course of the trial of two persons for felony, the “special crime investigator ” of the Bristol Weekly Dispatch sent to his paper reports, couched in a fervid and sensational form, containing a number of statements relating to matters as to which evidence would not have been admissible in any event against the defendants upon their trial, and reflecting severely on their characters. Both of the defendants referred to were convicted of the crime for which they were indicted, and sentenced to long terms of imprisonment. Shortly after their conviction and sentence the editor of the Dispatch and this special crime investigator were prosecuted criminally for perverting the course of justice, and each of them was sentenced to six weeks in prison. Lord Alverstone, who rendered the opinion on the appeal taken by the editor and reporter, in affirming the judgment of conviction, expresses himself in language well worth repeating. He says : 1

“A person accused of crime in this country can properly be convicted in a court of justice only upon evidence which is legally admissible, and which is adduced at his trial in legal form and shape. Though the accused be really guilty of the offense charged against him, the due course of law and justice is nevertheless perverted and obstructed if those who have to try him are induced to approach the question of his guilt or innocence with minds into which prejudice has been instilled by published assertions of his guilt, or imputations against his life and character to which the laws of the land refuse admission as evidence.”

In the state of New York the courts have permitted themselves to be deprived of the greater portion of the power which the courts of Massachusetts, in common with those of most of the states, exercise of punishing for contempt the authors of newspaper publications prejudicial to fair trials. Some twenty-five years ago the state legislature passed an act defining and limiting the cases in which summary punishment for contempt should be inflicted by the courts. Similar legislation has been attempted in other states, only to be declared unconstitutional by the courts themselves, holding that the power to punish is inherent in the judiciary independently of legislative authority, and that, as the Supreme Court of Ohio says, “The power the legislature does not give,it cannot take away.” But while the courts of Ohio, Virginia, Georgia, Indiana, Kentucky, Arkansas, Colorado, and California have thus resisted legislative encroachment upon their constitutional powers, the highest court of New York has submitted to having its power to protect its own usefulness and dignity shorn and curtailed by the legislature. The result is that while by legislative permission they may punish the editor or proprietor of a paper for contempt, it can be only when the offense consists in publishing “a false or grossly inaccurate report of a judicial proceeding.” The insufficiency of such a power is apparent when one considers that the greater number of the cartoons and comments contained in publications fairly complained of as prejudicing individual legal rights are not, and do not pretend to be, reports of judicial proceedings at all, but are entirely accounts of matters “outside the record.” If the acts done, for example, in any of the cases cited as illustrations above, had been done under similar circumstances in New York, the New York courts would have been powerless to take any proceeding whatever in the nature of contempt against the respective offenders. The result is that in the state which suffers most from the gross and unbridled license of a sensational and lawless press the courts possess the least power to repress and restrain its excesses. A change of law which shall give New York courts power to deal summarily with trial by newspaper is imperatively needed.

To the two examples which have just been given of the direct influence which counting-house journalism seeks to exert upon judges and jurors might be added others of equal importance would space permit. But all improper influences upon legislators or other public officials, or upon judges or jurors which these papers may exercise or attempt to exercise, are as naught in comparison with their systematic and constant efforts to instill into the minds of the ignorant and poor, who constitute the greater part of their readers, the impression that justice is not blind but bought; that the great corporations own the judges, particularly those of the Federal courts, body and soul; that American institutions are rotten to the core, and that legislative halls and courts of justice exist as instruments of oppression and to preserve the rights of property by denying or destroying the rights of man. No greater injury can be done to the working people than to create in their minds this false and groundless suspicion concerning the integrity of the judiciary. In a country whose political existence, in the ultimate analysis, depends so largely upon the intelligence and honesty of its judges, the general welfare requires not merely that judges should be men of integrity, but that the people should believe them to be so. It is this confidence which counting-house journalism has set itself deliberately at undermining. It is not so important that the people should believe in the wisdom of their judges. The liberty of criticism is not confined to the bar and what Judge Grover used to call “ the lawyer’s inalienable privilege of damning the adverse judge — out of court.” There is no divinity which hedges a judge. His opinions and his personality are proper subjects for criticism, but the charge of corruption should not be made recklessly and without good cause. It is noticeable that this charge of corruption which yellow journalism makes against the courts is almost invariably a wholesale charge, never accompanied by any specific accusation against any definite official. These general charges are more frequently expressed by cartoon than by comment. The big-chested Carthaginian labeled “The Trusts,” holding a squirming Federal judge in his fist, is a cartoon which in one form or another appears in some of these papers whenever an injunction is granted in a labor dispute at the instance of some great corporation. Justice holding her scales with a workingman unevenly balanced by an immense bag of gold; a human basilisk with dollar marks on his clothes, a judge sticking out of his pocket, and a workingman under his foot; Justice holding her scales in one hand and with the other conveniently open to receive the bribe that is being placed in it, — these and many other cartoons of similar character and meaning are familiar to all readers of sensational newspapers. If their readers believe the cartoons, what faith can they have left in American institutions? What alternative is offered but anarchy if wealth has poisoned the fountains of justice; if reason is powerless and money omnipotent ? If the judges are corrupt the political heavens are empty.

There is no occasion to defend the American judiciary from charges of wholesale corruption. They might be passed over in silence if they were addressed merely to the educated and intelligent, or to those familiar by personal contact with the actual operations of the courts. That there are many judicial decisions rendered which are unsound in their reasoning may be readily granted. That some of the Federal judges are men of very narrow gauge, and that, during the recent coal strike for example, in granting sweeping, wholesale injunctions against strikers they have accompanied their decrees at times with opinions so unjudicial, so filled with mediaeval prejudice and rancor against legitimate organizations of working people as to rouse the indignation of right-minded men, may be admitted. But prejudice and corruption are totally dissimilar. There is always hope that an honest though prejudiced man may in time see reason. This hope inspires patience and forbearance. Justice can wait with confidence while the prejudiced or ultra-conservative judge grows wise, and the principles of law are strongest and surest when they have been established by surmounting the prejudice and doubts of many timid and overconservative men. But justice and human progress should not and will not wait until the corrupt judge becomes honest. To thoughtful men the severest charge yet to be made against this new journalism is not merely the influence it attempts to exert, and perhaps does exert, in particular cases, but that wantonly and without just cause it endeavors to destroy in the hearts and minds of thousands of newspaper readers a deserved confidence in the integrity of the courts and a patient faith in the ultimate triumph of justice by law.

George W. Alger.

  1. 1 K. B. (1902) 77.