The Judicial Protection of Anti-Judicial Speech

Abstract

Blackstone appears to have relied on the views of Mr. Justice Wilmot, whose undelivered judgment in Almon's Case (1765) likewise claimed that summary punishments had long been imposed even for contempts committed out of court. 22 This case began when bookseller John Almon published a pamphlet accusing Lord Mansfield of arbitrary decision-making in a case against John Wilkes. 23 The 1764 pamphlet was itself a protest against the use of summary procedures to prosecute seditious libel. 24 It charged Lord Mansfield "with having introduced a method of proceeding to deprive the subject of the benefit of the Habeas Corpus Act" and with amending an information (i.e., a criminal charge brought without grand jury indictment) "officiously, arbitrarily, and illegally." 25 Wilmot's opinion was not delivered and remained unpublished until after his death, but then became a leading authority. 26 The opinion held that libels on a judge in his official capacity could be summarily punished (i.e., by the judge alone, without a jury trial), on the grounds that such libels "excite[] in the minds of the people a general dissatisfaction with all judicial determination and indispose[] their minds to obey them" and might also be taken as "an impeachment of [the King's]. .. wisdom and goodness in the choice of his Judges." 27 Regardless of when it emerged, this judicial practice developed into "a highly useful weapon for those in power because it provided an alternative prosecutorial remedy to criminal libel that was not dependent on a jury." 28 Not surprisingly, the practice proved 21.