For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Francis, J.
On July 30, 1970 defendant Joseph Matzner was convicted of criminal contempt in the Superior Court, Law Division, Passaic County. A sentence of two days in the County jail and a fine of $500 was imposed. On its own motion this Court certified the ensuing appeal before it was argued in the Appellate Division.
Matzner is the publisher of Wayne Today, a newspaper published in the Township of Wayne and circulated in western Passaic County. His son Harold Matzner, and others, had been indicted for two separate murders and upon trial were acquitted. Thereafter, on Stephen Delaney, a private investigator for the defense, was ordered to show cause why he should not be adjudged in contempt for certain conduct he allegedly engaged in during the investigatory stage of the alleged criminal events. Over objection of Delaney's attorney, trial of the matter by jury was ordered and July 20, 1970 was fixed as the trial date.
On July 19, 1970 a long editorial appeared in Wayne Today saying "the entire charge against Mr. Delaney is incredibly stupid," that the "man who did most to uncover the truth and prevent the frame-up which emanated from
the prosecutor's office, Stephen Delaney, has himself been charged on trumped up allegations," and that "the shame of it is that Delaney cannot get a fair trial because he will be forced to go before a Passaic County jury." The editorial asserted also that "Stephen Delaney is innocent of the charge filed against him." It alleged further that a certain official of the prosecutor's office "wants Delaney's scalp because Look Magazine exposed him [the official] for being corrupt and dishonest." And it said that "[I]nside [Passaic County] that official's power is vast and his ability to influence a juror is a danger which no man can ever discount."
On July 20, the scheduled trial day of the Delaney contempt proceeding, the Law Division Judge, fearful that the editorial might improperly influence the jury panel, reversed the previous jury trial order and directed a hearing before the court alone. On the same day, the order in the proceeding now before us was issued commanding Matzner to show cause why he should not be adjudged in contempt for publishing the editorial described above. The issue on which Matzner was directed to show cause was stated in the order as:
[W]hy he should not be adjudged guilty of contempt of this Court for publication of a newspaper editorial advocating the innocence of one charged with a criminal offense and having knowledge that the trial of the latter with a jury was scheduled to begin in the county of dissemination the day after publication.
Hearing thereon took place on July 30, 1970 at which time Matzner was adjudged in contempt.
At the hearing the prosecution put the editorial in evidence and rested. It took the position that no more was necessary to prove the contempt. It contended that since the Delaney jury trial was to begin the day following publication of the newspaper, and the language of the editorial contained therein was such as to create a clear and imminent danger of substantial prejudice to the fair administration of criminal justice in that trial, the criminal contumacy
was established. That contention appears to be the test for determining whether the newspaper publication involved here constituted a contempt of court. See Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962); Craig v. Harney, 331 U.S. 367, 67 S. Ct. 1249, 91 L. Ed. 1546 (1947); Pennekamp v. Florida, 328 U.S. 331, 66 S. Ct. 1029, 90 L. Ed. 1295 (1946); Bridges v. California, 314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192 (1941); In re Bozorth, 38 N.J. Super. 184 (Ch. Div. 1955); Baltimore Radio Show, Inc. v. State, 193 Md. 300, 67 A.2d 497 (1949), cert. den. 338 U.S. 912, 70 S. Ct. 252, 94 L. Ed. 562 (1950); Goldfarb, The Contempt Power, 93-100 (1963); Note, "Fair Trial, Free Press, The Contempt Power: Its Historic and Modern Application," 3 Suffolk U.L. Rev. 484 (1969). But we need not decide on this appeal whether application of the test would justify a finding of criminal contempt. That question can await another day.
Matzner, through his counsel, denied that he wrote the offending editorial, or saw or knew of it prior to publication. It was stated also that he was present in court and prepared to so testify. The actual authors were named and the court was informed that they were also in court and ready to testify to that effect; and counsel offered to have them added as defendants in the proceeding. However, the prosecution took the position that under a broad application of the respondent superior theory the newspaper entity, Wayne Today, and Matzner as its publisher were one and that if the challenged editorial were criminally contumacious, Matzner became ipso facto, subject to the same criminal liability as the paper. On the other hand, the defense contended that criminal responsibility could not be ...