Supreme Court decision
By: Oliver Wendell Holmes Jr.; John Marshall Harlan; David J. Brewer
Date: April 5, 1907
Source: Holmes, Oliver Wendell, Jr., John Marshall Harlan, David J. Brewer Patterson v. Colorado. 205 U.S. 454 (1907). Available online at (accessed November 6, 2002).
About the Authors: Oliver Wendell Holmes Jr. (1841–1935), a Union Army veteran, served on the Massachusetts Supreme Court for sixteen years. At age sixty-one he was appointed to the Supreme Court, where he served for thirty years.
John Marshall Harlan (1841–1935) served on the Court for thirty-four years, becoming known as "the Great Dissenter" because of his dissents in such cases as Plessy v. Ferguson.
David Brewer (1837–1910) served on the Supreme Court from 1889 until 1910. He was a graduate of Yale University and attended Albany Law School.
The First Amendment was added to the Constitution of the United States in 1789, as part of the Bill of Rights. However, the exact meaning of the amendment, especially in the areas of freedom of speech and freedom of the press, has never been clear. Some have argued that it should operate only to ban prior restraints on publishing and speaking, while others have posited that it works to prohibit all governmental interference. One factor limiting the debate, particularly in the nineteenth and early twentieth centuries, was that the U.S. Supreme Court did not hear many cases dealing with the First Amendment. The first governmental intrusion into freedom of speech and the press were the Alien and Sedition Acts, which banned criticism of the government in 1798. These acts were never tested by the Court, and many historians have considered them a mistake. The next time the freedoms of speech and the press became a major issue was during the Civil War (1861–1865), when President Abraham Lincoln imprisoned people who spoke out against the war. He also revoked the writ of habeas corpus (the right of the accused to be informed of the nature of his or her crime). Once again, the constitutionality of these restrictions was never directly ruled on by the Court.
By 1900, the Supreme Court had made few rulings on these issues, even though they had been touched on by lower federal courts. States and the federal government were also acting to control speech and the press during this period. The federal government had passed the Comstock Act (1873), which regulated items transmitted by mail and included a ban on birth-control information. States generally had passed anti-libel and anti-slander ordinances as well. The Court directly addressed the First Amendment in Patterson v. Colorado. The case resulted when Thomas M. Patterson, a Colorado newspaper publisher, was arrested for contempt of court—meaning he had treated a court with disrespect—for publishing cartoons and other matter critical of the Colorado Supreme Court. Patterson claimed that his actions were protected under the First Amendment.
Patterson was found guilty of contempt, and his conviction was upheld by the Supreme Court in its decision on Patterson v. Colorado. Oliver Wendell Holmes Jr. took a narrow view of the First Amendment in this case, holding that only when a government prohibited publication of an item, a process called prior restraint, was the First Amendment violated. In Holmes' view, the First Amendment offers no protection when one publishes something and then is sued for libel or arrested for contempt. This narrow interpretation continued to be held throughout World War I (1914–1918), when the government imposed censorship upon the press. During the war, Holmes and Justice Louis Brandeis began to offer a wider view of the First Amendment, arguing that only those items that presented a "clear and present danger" could be criminalized or punished. These two justices were, however, in the minority.
Another problem for those who wished to publish freely is that the First Amendment, on its face, restrains only the federal government. The Fourteenth Amendment prohibits a state from denying an individual "liberty" without "due process of law," but the meanings of "liberty" and "due process" are unclear. In the nineteenth century, the Supreme Court had held that not all of the Bill of Rights was applied to the states through the Four-teenth Amendment. In 1925, however, the Supreme Court remarked, in passing, that First Amendment protections limit a state's power. In 1931, the First Amendment was used for the first time to strike down a statute as being in violation of First Amendment rights. More due process guarantees have been added as being applicable against states by succeeding courts, even though recent courts have begun to narrow individual rights again.
Primary Source: Patterson v. Colorado [excerpt]
SYNOPSIS: Oliver Wendell Holmes Jr. comments that the Supreme Court can reverse a contempt conviction only if a constitutional violation has occurred. He next argues that the First Amendment, via the Fourteenth, may apply, but that it does not prevent a contempt citation, and that, on the whole, the court has no jurisdiction. In presenting the dissent, John Marshall Harlan argues that the Fourteenth Amendment does apply and prevents a conviction. David J. Brewer, in another dissent, argues that the court does have jurisdiction.
Mr. Justice Holmes delivered the opinion of the court:
This is a writ of error to review a judgment upon an information for contempt… The contempt alleged was the publication of certain articles and a cartoon, which, it was charged, reflected upon the motives and conduct of the supreme court of Colorado in cases still pending, and were intended to embarrass the court in the impartial administration of justice. There was a motion to quash on grounds of local law and the state Constitution and also of the 14th Amendment to the Constitution of the United States. This was overruled and thereupon an answer was filed, … Upon this answer the court, on motion, ordered judgment fining the plaintiff in error for contempt.
The foregoing proceedings are set forth in a bill of exceptions, and several errors are alleged… The only question for this court is the power of the state.…
It is argued that the decisions criticized, and in some degree that in the present case, were contrary to well-settled previous adjudications of the same court, and this allegation is regarded as giving some sort of constitutional right to the plaintiff in error. But while it is true that the United States courts do not always hold themselves bound by state decisions in cases arising before them, that principle has but a limited application to cases brought from the state courts here on writs of error. Except in exceptional cases the grounds on which the circuit courts are held authorized to follow an earlier state decision rather than a later one, or to apply the rules of commercial law as understood by this court rather than those laid down by the local tribunals, are not grounds of constitutional right, but considerations of justice or expediency. There is no constitutional right to have all general propositions of law once adopted remain unchanged. Even if it be true, as the plaintiff in error says, that the supreme court of Colorado departed from earlier and well-established precedents to meet the exigencies of this case, whatever might be thought of the justice or wisdom of such a step, the Constitution of the United States is not infringed. It is unnecessary to lay down an absolute rule beyond the possibility of exception. Exceptions have been held to exist. But, in general, the decision of a court upon a question of law, however wrong and however contrary to previous decisions, is not an infraction of the 14th Amendment merely because it is wrong or because earlier decisions are reversed.
It is argued that the articles did not constitute a contempt. In view of the answer, which sets out more plainly and in fuller detail what the articles insinuate and suggest, and in view of the position of the plaintiff in error that he was performing a public duty, the argument for a favorable interpretation of the printed words loses some of its force. However, it is enough for us to say that they are far from showing that innocent conduct has been laid hold of as an arbitrary pretense for an arbitrary punishment. Supposing that such a case would give the plaintiff in error a standing here, anything short of that is for the state court to decide. What constitutes contempt, as well as the time during which it may be committed, is a matter of local law.
The defense upon which the plaintiff in error most relies is raised by the allegation that the articles complained of are true, and the claim of the right to prove the truth. He claimed this right under the Constitutions both of the state and of the United States, but the latter ground alone comes into consideration here, for reasons already stated… We do not pause to consider whether the claim was sufficient in point of form, although it is easier to refer to the Constitution generally for the supposed right than to point to the clause from which it springs. We leave undecided the question whether there is to be found in the 14th Amendment a prohibition similar to that in the 1st. But even if we were to assume that freedom of speech and freedom of the press were protected from abridgments on the part not only of the United States but also of the states, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is "to prevent all such previous restraints upon publications as had been practiced by other governments," and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare… The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.…
In the next place, the rule applied to criminal libels applies yet more clearly to contempts. A publication likely to reach the eyes of a jury, declaring a witness in a pending cause a perjurer, would be none the less a contempt that it was true. It would tend to obstruct the administration of justice, because even a correct conclusion is not to be reached or helped in that way, if our system of trials is to be maintained. The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.
What is true with reference to a jury is true also with reference to a court. Cases like the present are more likely to arise, no doubt, when there is a jury, and the publication may affect their judgment. Judges generally perhaps are less apprehensive that publications impugning their own reasoning or motives will interfere with their administration of the law. But if a court regards, as it may, a publication concerning a matter of law pending before it, as tending toward such an interference, it may punish it as in the instance put. When a case is finished courts are subject to the same criticism as other people; but the propriety and necessity of preventing interference with the course of justice by premature statement, argument, or intimidation hardly can be denied… It is objected that the judges were sitting in their own case. But the grounds upon which contempts are punished are impersonal… No doubt judges naturally would be slower to punish when the contempt carried with it a personal dishonoring charge, but a man cannot expect to secure immunity from punishment by the proper tribunal, by adding to illegal conduct a personal attack. It only remains to add that the plaintiff in error had his day in court and opportunity to be heard. We have scrutinized the case, but cannot say that it shows an infraction of rights under the Constitution of the United States, or discloses more than the formal appeal to that instrument in the answer to found the jurisdiction of this court.
Writ of error dismissed.
Mr. Justice Harlan, dissenting:
I cannot agree that this writ of error should be dismissed.
By the 1st Amendment of the Constitution of the United States, it is provided that "Congress shall make no law respecting an establishment of religion, or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble and to petition the government for redress." In the civil Rights Cases … it was adjudged that the 13th Amendment, although in form prohibitory, had a reflex character, in that it established and decreed universal civil and political freedom throughout the United States. In United States v. Cruikshank … we held that the right of the people peaceably to assemble and to petition the government for a redress of grievances—one of the rights recognized in and protected by the 1st Amendment against hostile legislation by Congress—was an attribute of "national citizenship." So the 1st Amendment, although in form prohibitory, is to be regarded as having a reflex character, and as affirmatively recognizing freedom of speech and freedom of the press as rights belonging to citizens of the United States; that is, those rights are to be deemed attributes of national citizenship or citizenship of the United States. No one, I take it, will hesitate to say that a judgment of a Federal court, prior to the adoption of the 14th Amendment, impairing or abridging freedom of speech or of the press, would have been in violation of the rights of "citizens of the United States" as guaranteed by the 1st Amendment; this, for the reason that the rights of free speech and a free press were, as already said, attributes of national citizenship before the 14th Amendment was made a part of the Constitution.
Now, the 14th Amendment declares, in express words, that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." As the 1st Amendment guaranteed the rights of free speech and of a free press against hostile action by the United States, it would seem clear that, when the 14th Amendment prohibited the states from impairing or abridging the privileges of citizens of the United States, it necessarily prohibited the states from impairing or abridging the constitutional rights of such citizens to free speech and a free press. But the court announces that it leaves undecided the specific question whether there is to be found in the 14th Amendment a prohibition as to the rights of free speech and a free press similar to that in the 1st. It yet proceeds to say that the main purpose of such constitutional provisions was to prevent all such "previous restraints" upon publications as had been practised by other governments, but not to prevent the subsequent punishment of such as may be deemed contrary to the public welfare. I cannot assent to that view, if it be meant that the legislature may impair or abridge the rights of a free press and of free speech whenever it thinks that the public welfare requires that to be done. The public welfare cannot override constitutional privileges, and if the rights of free speech and of a free press are, in their essence, attributes of national citizenship, as I think they are, then neither Congress nor any state, since the adoption of the 14th Amendment, can, by legislative enactments or by judicial action, impair or abridge them. In my judgment the action of the court below was in violation of the rights of free speech and a free press as guaranteed by the Constitution.
I go further and hold that the privileges of free speech and of a free press, belonging to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the 14th Amendment forbidding a state to deprive any person of his liberty without due process of law. It is, I think, impossible to conceive of liberty, as secured by the Constitution against hostile action, whether by the nation or by the states, which does not embrace the right to enjoy free speech and the right to have a free press.
Mr. Justice Brewer, dissenting:
While not concurring in the views expressed by Mr. Justice Harlan, I also dissent from the opinion and judgment of the court. The plaintiff in error made a distinct claim that he was denied that which he asserted to be a right guaranteed by the Federal Constitution. His claim cannot be regarded as a frivolous one, nor can the proceedings for contempt be entirely disassociated from the general proceedings of the case in which the contempt is charged to have been committed. I think, therefore, that this court has jurisdiction and ought to inquire and determine the alleged rights of the plaintiff in error. As, however, the court decides that it does not have jurisdiction, and has dismissed the writ of error, it would not be fit for me to express any opinion on the merits of the case.
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