Epic Battle for Press Freedom

In my latest Rocky Mountain News column, I detail the 1905 clash between the Colorado Supreme Court and Democratic Senator Thomas Patterson, the publisher of the Rocky Mountain News. Patterson was convicted of criminal contempt of court after he published a series of scathing editorials and cartoons accusing the court of corruption, after the court invalidated an election in Denver.

Let me add a few observations which might be of particular interest to law-oriented readers, and which couldn't fit in the 800 word limit of the printed column.

1. The underlying case involved a clash between Denver's newly-created constitutional home rule powers (Amendment 20 of the state constitution) and the rest of the constitution; specifically, did Amendment 20 give Denver the power to schedule spring elections for certain municipal offices. The court majority said that, for county officers whose existence is contemplated in the state constitution, the election must be in the November, when all state-related elections must take place. Unlike Patterson, I think that there were good legal arguments on both sides of the question.

2. The Supreme Court majority opinion in the contempt case (84 P. 912) is difficult reading, especially because the author liked to write paragraphs over a page long. Most of the opinion consists of the offending newspaper articles, plus Patterson's averments. The legal analysis does not come until the very end.

3. The dissenting opinion is beautifully-written and inspiring.

4. The Holmes opinion for the U.S. Supreme Court (205 U.S. 454) is of course well-written, but it tersely avoids the central issue. As Holmes points out, there could not possibly be a blanket rule that truth is a defense in a criminal contempt case. For example, a lawyer might disclose some information which was truthful, but which was subject to a confidentiality order. But the question in Patterson was truthful information about judicial misconduct. (Or more precisely, information which Patterson sincerely believed to be truthful.) Harlan and Brewer dissented.

5. In the 1918 case of Toledo News v. U.S., the U.S. Supreme Court upheld the authority of a federal court to use criminal contempt to punish controversial speech. Holmes dissented, and Brandeis joined the dissent.

6. In the 1941 case Nye v. U.S., a 6-3 majority of the Supreme Court, led by William Douglas, reversed the Toledo decision. William E. Doyle, a Colorado lawyer who would later serve on the Colorado Supreme Court and as a federal district judge, wrote that the Court had finally recognized that the First Amendment must prevail over a court's contempt power, and so "Thomas Patterson's beliefs have received recognition from the highest court in the land." Doyle, "Patterson Vindicated," 18 Dicta (no. 7, July 1941): 169-72.

I practice in the Colorado Supreme Court and they're a pretty dim bunch. Sad.
7.1.2006 4:31pm
Bruce Hayden (mail) (www):
Not sure of of the timing here, but somewhere around 15 years ago, they did manage to do the right thing. My father argued his third and last case before that court, and was able to persuade them to reverse the trial court and the court of appeals on what appears to me to have been 1L law (in 47 years of practice here, he won one, lost one, and then won the last one before that Court).

That said, the CO Supreme Court has been ridiculous of late. First, we had the uniform gun law being thrown out for Denver. Somehow, uniform throughout the state meant everywhere except for Denver. Then, most recently, we had them slicing and dicing in order to throw out the ballot initiative on illegal immigration on the grounds that it violated the one subject rule - despite the fact that legislative initiatives are often far more complex. Obviously, not as egregious as Dave's example from 100 years ago, but still indicative.

I did enjoy Dave's article, as I read it over lunch today, as I invariably do, but was struck by the fact that 100 years ago, the complaint was about a runaway Republican dominated Supreme Court, and today, it is about a Democratic dominated Court.
7.1.2006 8:17pm
Brian Garst (www):
Good point on that ballot initiative, that was an absurd ruling. They claimed that the fact that the changes would reduce government costs as an indication of it covering a seperate topic to the changes themselves. An utterly incomprehensible ruling because by that standard almost any initiative is covering multiple topics simply because it will either raise or lower government expenses.
7.1.2006 8:58pm
elChato (mail):
It's a pity we don't have a link to the old decision; I'd like to read it but couldn't find it online (unsurprisingly of course since it's so old).
7.2.2006 12:51am
Urijah (mail):
It would be helpful if you linked to the actual text of your column...
7.2.2006 12:07pm
James Fulford (mail):
The direct link to the column is here.
7.2.2006 2:20pm