Epic battle for press freedom

In 1905, News owner took on a compromised supreme court

July 1, 2006

by David Kopel

In celebrating Independence Day, we should remember that our liberties, including freedom of the press, must be won anew in every generation. Consider, for example, the epic battle for freedom of the press that took place a century ago in Colorado between the Rocky Mountain Newsand a despotic Colorado Supreme Court.

The Newswas the state's leading Democratic paper, and its owner, Thomas Patterson, was Colorado's Democratic U.S. senator. Patterson also published The Denver Times,an afternoon paper that competed with the then- solidly Republican Denver Post.

On June 24, 1905, the Newsheadlined "Supreme Court Holds that the People Cannot Amend Constitution so as to Express their Will." The divided court had just invalidated the election of Democrats to various city of Denver offices, and had installed Republicans in their place. Although Denver had recently become a home-rule city as a result of an amendment to the state constitution, the court ruled that Denver did not have the authority to schedule a spring election for certain municipal offices, because these local officials were, in a sense, state officials.

The Newsaccused the Supreme Court of treating a constitutional amendment as a mere statute (a criticism that has also been leveled at the modern Colorado Supreme Court regarding many other provisions of the state constitution).

But that was just the beginning. For the next week, the front pages of the Newsand the Timesran scathing editorials and cartoons, castigating the Colorado Supreme Court as the corrupt tool of corporations. Patterson alleged a deal in which Republican Gov. James H. Peabody had stolen an election from Democrat Alva Adams, the state Senate had been stolen from the Democrats, and Peabody had sold two Supreme Court appointments to corporations.

Particularly outrageous, in the view of the Post, was a front-page Sunday Newscartoon that depicted the Supreme Court executing Democrats (reproduced here). The Posturged that Patterson be prosecuted for contempt of court.

At the behest of the chief justice, Colorado's attorney general filed charges.

Patterson refused to retreat. He penned another editorial stating he had personally written or approved every one of the attacks on the Colorado court.

An attorney, Patterson represented himself in the contempt hearing before the Supreme Court. He insisted that everything he had written about the court was true, and that truth ought to be a defense to charges of criminal contempt.

To punish newspapers for criticizing courts, said Patterson, would empower "a chosen body of men who may commit any crime, who may falsify justice; who may defy constitutions and spit upon the laws, and yet no man dare make known the fact."

Patterson was clearly contemptuous of the court, but was he in contempt of court? The common-law power of judges to punish contempt of court had been created to prevent interference with judicial proceedings, not to prevent criticism of judges.

Patterson insisted that he would take whatever punishment the court meted out, which could include imprisonment for as long as the justices wanted to keep him locked up. No matter what, he would devote himself to eradication of the "tyrannical power, of such just and dangerous prerogative" that would subject newspapers to punishment for publishing the truth about courts.

Rejecting precedents that limited the contempt power, and sitting as a self-interested judge in its own case, the Colorado Supreme Court affirmed the broadest possible reading of its authority. (The case is found in Volume 84 of the Pacific Reporter, beginning on Page 912.) Patterson was fined $1,000 (equivalent to more than $20,000 in modern dollars) - a small amount for a man of Patterson's wealth, but large enough to intimidate many other publishers.

In a dissent that carefully explicated recent cases, the procedural abuses of the persecution of Patterson, the infamous Star Chamber of England, and the trial of colonial New York publisher John Peter Zenger, Justice Robert W. Steele concluded that the majority's "infinitely" greatest mistake was "in holding the truth to be immaterial."

Patterson appealed to the U.S. Supreme Court (United States Reports, Vol. 205, Page 454). With two justices dissenting, Justice Oliver W. Holmes delivered the majority opinion: the First Amendment applied only to the federal government, not to the states.

Today, no one risks fine or imprisonment for criticizing an allegedly lawless decision of our courts. What rescued the First Amendment from its nadir in the early 20th century was not the beneficence of the judiciary, but the courage of publishers like Thomas Patterson, and many other dissidents, determined to speak truth to power, no matter the cost.

For more on the legal aspects of the battle, see this blog post by Kope.


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