Speech criticizing courts, and the American abandonment of English speech law

Excerpted, by permission of Yale University Press, from "The Soul of the First Amendment" by Floyd Abrams, 2017.

In 1907, Thomas Patterson was a Denver newspaper publisher who favored municipal-owned and -operated electric power, which could come about only if cities such as Denver were permitted to engage in home rule. Colorado voters voted to amend the state constitution to permit just such home rule, but the Colorado Supreme Court held that the new home rule constitutional amendment was itself unconstitutional.

In response to the ruling, Patterson published this editorial in his newspaper:

The people of St. Louis and San Francisco, who have been enjoying the full benefits of just such a system of government as the [home rule] amendment provides, will be astonished to learn that they no longer live in a republic—for the Colorado supreme court holds that such a government is so unrepublican that it cannot be tolerated in Colorado …. What next? If somebody will let us know what next the utility corporations of Denver and the political machine they control will demand, the question will be answered.

Patterson was held in contempt by the Colorado Supreme Court, the very body he had criticized. He fared no better in the U.S. Supreme Court, where Justice Oliver Wendell Holmes wrote the opinion. According to Justice Holmes, writing for a majority of his colleagues and echoing long-established English law, truth was irrelevant. The First Amendment existed primarily to protect against prior restraint of speech, not punishment after it was uttered.

"The preliminary freedom," wrote Holmes, "extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false." "[I]f 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" by using its power to hold the speaker or publisher in contempt since "the propriety and necessity of preventing interference with the course of justice by premature statement, argument or intimidation hardly can be denied."

Those views were in all respects consistent with the views expressed by the renowned English scholar William Blackstone in the eighteenth century, with American state cases that echoed Blackstone's views and with two English cases cited by Holmes as if it were self-evident that in this area of law, the law of the mother country guided in that of her doting child as well.

By the time the Court returned to the issue of when speech about pending judicial proceedings could constitutionally lead to a finding of contempt, in Bridges v. California in 1941, Holmes was no longer on the Supreme Court. In the intervening years, however, he had starkly changed his views about the First Amendment, writing (mostly in dissent) some of the Supreme Court's most enduring defenses of freedom of speech. But his contempt decision in Patterson v. Colorado remained in effect and was applied by the California Supreme Court when a case arose involving an editorial published by the Los Angeles Times about a pending application seeking probation by two union members who had been convicted of attacking non-union workers. The three-paragraph editorial was aimed directly at the judge deciding the application.

For the California Supreme Court, the issue of whether the newspaper should be held in contempt was not difficult. "Little is said, or can be said," the Court concluded, "in defense of the publication of this editorial." It had gone so far as to name the judge involved; it had explicitly urged him not to grant probation; and the legal issue in the case of whether contempt was a proper remedy had been decided by Patterson, since what was involved in both cases was a "premature statement, argument, and intimidation" of a judge.

But when the U.S. Supreme Court decided the case, it rejected not only Patterson but, at least implicitly, its underlying reliance on long-standing English law. Indeed, from a legal perspective, the Court's five-to-four opinion was nothing less than a new declaration of American independence.

Holmes had concluded in Patterson that the critical editorial language could "tend to obstruct" and thus interfere with the administration of justice. Justice Hugo Black, writing for the five-to-four majority of the Court in Bridges, applied a far more demanding standard, rooted in another and later formulation by Holmes—the clear and present danger test. The issue, Black wrote, was nothing less than whether the language posed a "clear and present danger to the administration of justice." To suppress or punish speech, Black wrote, "the substantive evil must be extremely serious and the degree of imminence extremely high."

Holmes had relied on well-established and much-repeated case law that traced its philosophical roots to English law in effect for hundreds of years. To that, Black responded: "No purpose," he wrote, "in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed."

With that audacious, if historically debatable statement, the link between American and English law in the area of freedom of expression was irrevocably broken.