Ex Parte Sturm

Urner, J., delivered the opinion of the Court. The five appellants were adjudged to be in contempt of the court below for violation of its orders in regard to the taking, for publication, of photographs at the trial of Eichard Eeese Whittemore on an indictment for murder. About half an hour before the beginning of the trial in the Criminal ¹¹⁶ Court of Baltimore City, a flashlight photograph of Whittemore, as he was entering the lookup in the court house, was taken by a staff photographer of the Baltimore Hews. The noise of the flash operation was heard by Judge O’Dunne in his private office adjacent to the court room.

He at once had the photographer, William Klemm, brought to his office, and, after stating that an order was about to be publicly announced in the court room prohibiting the taking of pictures, he told Klemm that the picture which had been taken of Whittemore would have to be surrendered. Klemm then removed from the camera and handed to Judge O’Dunne a plate on which the picture of Whittemore was understood by the judge to have been taken, and the photographer was then allowed to depart. The plate given to the judge was a blank one, which Klemm had placed in the camera immediately after photographing Whittemore, the plate used for that purpose having been withdrawn by Klemm and put in his pocket. This fact was not mentioned to Judge O’Dunne, but he was misled by the photographer into the belief that the plate actually used in taking the picture of Whittemore was being delivered into the court’s possession.

In ignorance of the deception thus practiced, Judge O’Dunne entered the court room, and, after opening the session, made a statement from which we quote as follows: “In my judgment it is not compatible with judicial dignity or the dignity of the administration of the law, to allow the court room to be used, or the precincts of the court, for the taking of any photographs for moving pictures or the press or any other agency. One such picture has been taken this morning in the lockup and has been confiscated. “The Baltimore Sun asked over the phone whether the privilege was going to be allowed to take pictures and they were told ‘no,’ — which, of course, not only applies to them, but, impartially, must apply to everybody and every agency, and any breach of this decorum of the court by any person or persons of whatsoever agency will be treated as a contempt of court. * * * The prisoner is in the precincts of the court, under the protection of the court, and is not able, therefore, ¹¹⁷ to protect himself, and he will be protected by this court from any publicity of that character.” After this announcement, William Sturm, another photographer of the Baltimore News, who was in the court room, sent a message to Mr. Clark, the city editor of the News, informing him of the court’s order against the taking of photographs, and received in reply from Mr. Clark instructions to “go ahead and take the pictures.” This he proceeded to do, and in the course of the day took seven pictures, using a small camera while seated at the table provided for representatives of the press, of whom there were about twenty in attendance. The camera was used secretly, and the trial judge was not aware that his order was being violated. Two of Sturm’s photographs, showing the group at the trial table, including the prisoner and his counsel,-and the prosecuting attorneys, were reproduced in the regular editions of the Baltimore News on the first day of the trial, and in the first edition of the Baltimore American, published under the same ownership and control, and issued early on the morning of the following day.

In those editions of the two papers the picture of Whittemore taken by Klemm also appeared. After learning of the publication of the pictures, Judge O’JDunne instituted contempt proceedings, which included citations of the managing editors of the News and American, the city editor of the News, and the two photographers. At the hearing on the contempt charges all of the cited defendants testified with evident candor. The subterfuge wliich made possible the use of the “lockup” picture of Whittemore was freely admitted.

Mr. CO ark, city editor of the News, frankly stated that he directed Sturm to disregard the order forbidding the use of cameras in the court room, and that he liad tlie pictures developed, submitted them to the managing editor of the News and published them, notwithstanding the court's prohibition. He also' ordered the development and publication of the “lockup” picture, although he was informed of the deceptive means by which the court’s effort to prevent its use had been frustrated. Mr. Ellison, managing editor of the News, testified that he authorized the publica ¹¹⁸ tion of the pictures with knowledge that they had been obtained in circumvention of the trial judge’s purpose and orders to the contrary. The issue was plainly and definitely stated by Mr. Ellison when, in explaining why he authorized the publication of the pictures although he knew of the court’s prohibitive .action, he said: “I don’t believe the court has the right to forbid the taking of pictures in the court.” Mr. DeLand, managing editor of the American, testified that when the first edition of that paper, containing the Whittemore “lockup” and trial pictures, was printed and issued, he did not know of the court’s action in reference to such photographs, and that upon becoming informed on the subject, he had the pictures excluded from the later editions.

The report of the trial in the first edition of the American referred to the prohibitory order, but this escaped Mr. DeLand’s notice until that edition had been printed and was being distributed. The fundamental question in the case is whether the trial judge had competent authority to forbid the' removal of the picture of Whittemore taken at the entrance to the lockup before any order against the taking of pictures had been announced, and to prohibit the use of cameras in the court room; during the progress of the! trial. For the purposes of the present inquiry, it is not necessary to consider whether, in the absence of inhibition by the court, the acts of the photographers and the editors, in securing and publishing the pictures in question, would make them legally subject to prosecution for contempt. It was for the deliberate violation of the court’s mandates that the charges of contempt-were preferred.

The effort of the court was to prohibit the taking of pictures in or near the court room with a view to their publication. It was not merely to preserve the dignity and decorum of the tribunal, but to protect the prisoner and other participants from an unnecessary and perhaps objectionable degree of publicity, that the preventive measures were adopted. There is consequently no reason to restrict the application of the court’s order to the ¹¹⁹ mere act of taking photographs, when the purpose to prevent the publication of pictures procured in that manner was unmistakable. If it was within the proper scope of the trial court’s authority to protect the prisoner from photographic exploitation, and the sessions of the- court from possibly disquieting activities, by the orders which have been challenged, then it is clear that they could not be violated with impunity.

Contempt of court has been defined as: “The disobedience or resistance of a lawful order of a court or judge.” Rapalje on Contempt, sec. 10. It was said by Justice Brewer for the Supreme Court of the United States, in the case of In re Debbs, 158 U. S. 594 : “But the power of a court to make an order carries with it the equal power to punish for a. disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court.” As to the existence of requisite power in the court below to accomplish the purposes to which its action in this case was directed we can have no doubt. The picture of Whittemore taken at the lockup in the Court House shows that he tried to shield his face from, exposure to the camera. It was evidently against his will that he was photographed in such a situation.

The ordeal of his approaching trial was one to which he was required to submit. But it was not essential that his humiliation should be intensified by his compulsory submission to a photographic portrayal, for publicity purposes, of his appearance as he was brought within the precincts of the court to stand trial for his life. As he was then under the court’s control, it was natural and just that the court should have a sense of responsibility for his protection against unauthorized invasions of his personal rights. If he had not been in custody, he might have defended himself against the photographer’s objectionable act.

It was entirely justifiable for the court to intervene under the circumstances, in order to guard him against the special publicity to which he was. ¹²⁰ about to be subjected. The liberty of the press does not include the privilege of taking advantage of the incarceration of a person accused of crime to photograph his face and figure against his will. As the Supreme Court of Georgia said in Pavesich v. New England Life Ins. Co., 122 Ga. 190 , 21 7 “The constitutional right to speak °and print does not necessarily carry with it the right to reproduce the form and features of an individual.” The interference of the court was with an act which was committed in the court house so near to the time and place of trial that the noise of the photographic flash was audible to the judge, who was about to open the session at which the prisoner was to be arraigned.

If the photographer of the Raltimore Xews was to be permitted to succeed in his effort to obtain Whittemore’s picture for publication, a similar privilege could not be fairly denied to photographers of other newspapers. The confusion possibly incident to the general exercise of such a privilege in close proximity to the court, as well as its rightful concern that the prisoner under its control should receive proper treatment, were considerations amply supporting its authority to prevent the consummation of the photographer’s design. The purpose of the court could not have been defeated by open defiance, but it was foiled by an artifice which certainly did not make the contempt any less real or reprehensible. One of the grounds mentioned in the Act of 1853, ch. 450 (Code, art. 26, sec. 4), for the exertion of the court’s power to punish summarily for contempt, is “the misbehavior of any person or persons in the presence of the said court, or so near thereto as to obstruct the administration of justice.” The deceit practiced upon Judge O’Eunne, for the purpose and with the result of obstructing the performance of a legitimate function of his office, was a very flagrant form of misbehavior.

The judicial power to punish for contempt did not emanate from the statute just cited. It is a common law power possessed, independently of statute, by our courts of constitutional origin. As this Court said in Kelly v. Montebello ¹²¹ Park Co., 141 Md. 205 , quoting from the opinion of Judge Bartol in Ex parte Maulsby, reported in 13 Md. 625 : “A contempt is an offense at common law; it is not created by the Act of 1853 (Code, art. 26, sec. 4), nor is the jurisdiction to punish it conferred by that act