Pennekamp v. Florida, 328 U.S. 331 (1946)

Author: Justice Murphy

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Pennekamp v. Florida, 328 U.S. 331 (1946)

MR. JUSTICE MURPHY, concurring.

Were we to sanction the judgment rendered by the court below, we would be approving, in effect, an unwarranted restriction upon the freedom of the press. That freedom covers something more than the right to approve and condone insofar as the judiciary and the judicial process are concerned. It also includes the right to criticize and disparage, even though the terms be vitriolic, scurrilous or erroneous. To talk of a clear and present danger arising out of such criticism is idle unless the criticism makes it impossible in a very real sense for a court to carry on the administration of justice. That situation is not even remotely present in this case.

Judges should be foremost in their vigilance to protect the freedom of others to rebuke and castigate the bench and in their refusal to be influenced by unfair or misinformed censure. Otherwise, freedom may rest upon the precarious base of judicial sensitiveness and caprice. And a chain reaction may be set up, resulting in countless restrictions and limitations upon liberty.

1. See the following codes of ethics published in Crawford, The Ethics of Journalism (1924) App. A.: Canons of Journalism, adopted by the American Society of Newspaper Editors in 1923, Art. IV; The Oregon Code of Ethics, adopted by the Oregon State Editorial Association in 1922, Art. I; South Dakota Code of Ethics, adopted by the South Dakota Press Association in 1922, "Truth and Honesty"; Missouri Declaration of Principles and Code of Practice, adopted by the Missouri Press Association in 1921, "Editorial." And see, in the same volume, the extracts from rules and suggestions prepared by the following newspapers for the guidance of their staffs: The Brooklyn Eagle, The Christian Science Monitor, The Springfield Union, The Detroit News, The Hearst Newspapers (personal instructions given by William Randolph Hearst to his newspapers), The Sacramento Bee, The Kansas City Journal-Post, The Marion Star (written by President Harding when editing The Star). See also Sharkey, The Ethics of Journalism, An Address Delivered before the Press Conference of the World, Geneva, Switzerland, September 15, 1926, p. 10; Wicks, Ideals and Methods of English Newspapers, published in Journalistic Ethics and World Affairs, Addresses Delivered at the Fifteenth Annual Journalism Week at the University of Missouri, 1924, 25 U. of Mo.Bull. (No. 32) 25, 26; Gibbons, Newspaper Ethics (1926) 16 et seq.


Nor does the fact that the letter was false, while it greatly affects the moral quality of the act, determine its criminality. It is punishable only if it interferes with justice, and, in that respect, truth is harder to meet than falsehood.

L. Hand, dissenting in Ex parte Craig, 282 F. 138, 161, aff’d sub nom. Craig v. Hecht, 263 U.S. 255. See also the dissenting opinion of Mr. Justice Holmes, 263 U.S. at 281. But cf. In re Providence Journal Co., 28 R.I. 489, 68 A. 428; In re San Francisco Chronicle, 1 Cal.2d 630, 36 P.2d 369.


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Chicago: Murphy, "Murphy, J., Concurring," Pennekamp v. Florida, 328 U.S. 331 (1946) in 328 U.S. 331 328 U.S. 370. Original Sources, accessed January 22, 2019,

MLA: Murphy. "Murphy, J., Concurring." Pennekamp v. Florida, 328 U.S. 331 (1946), in 328 U.S. 331, page 328 U.S. 370. Original Sources. 22 Jan. 2019.

Harvard: Murphy, 'Murphy, J., Concurring' in Pennekamp v. Florida, 328 U.S. 331 (1946). cited in 1946, 328 U.S. 331, pp.328 U.S. 370. Original Sources, retrieved 22 January 2019, from