The requirement in the Fourteenth Amendment of due process of
law does not take up the special provisions of the state
constitution and laws into the Fourteenth Amendment for the purpose
of the case, and in that way subject a state decision that they
have been complied with to revision by this Court.
Whether an information for contempt is properly supported, and
what constitutes contempt, as well as the time during which it may
be committed, are all matters of local law.
As a general rule, the decision of a state court upon a question
of law is not an infraction of the due process clause of the
Fourteenth Amendment and reviewable by this Court on writ of error
merely because it is wrong or because earlier decisions are
reversed.
While courts, when a case is finished, are subject to the same
criticisms as other people, they have power to prevent interference
with the course of justice by premature statements, arguments, or
intimidation, and the truth is not a defense in a contempt
proceeding to an improper publication made during the pending
suit.
Page 205 U. S. 455
In punishing a person for contempt of court, the judges act
impersonally, and are not considered as sitting in their own case.
United States v. Shipp, 203 U. S. 563,
203 U. S.
574.
The facts are stated in the opinion.
Page 205 U. S. 458
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a writ of error to review a judgment upon an information
for contempt. 84 P. 912. The contempt alleged was the publication
of certain articles and a cartoon, which, it was
Page 205 U. S. 459
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 Fourteenth Amendment to the
Constitution of the United States. This was overruled, and
thereupon an answer was filed admitting the publication, denying
the contempt, also denying that the cases referred to were still
pending, except that the time for motions for rehearing had not
elapsed, and averring that the motions for rehearing subsequently
were overruled, except that in certain cases the orders were
amended so that the Democratic officeholders concerned could be
sooner turned out of their offices. The answer went on to narrate
the transactions commented on at length, intimating that the
conduct of the court was unconstitutional and usurping, and
alleging that it was in aid of a scheme, fully explained, to seat
various Republican candidates, including the governor of the state,
in place of Democrats who had been elected, and that two of the
judges of the court got their seats as a part of the scheme.
Finally, the answer alleged that the respondent published the
articles in pursuance of what he regarded as a public duty,
repeated the previous objections to the information, averred the
truth of the articles, and set up and claimed the right to prove
the truth under the Constitution of the United States. 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 difficulties with those most
pressed is that they raise questions of local law which are not
open to reexamination here. The requirement in the Fourteenth
Amendment of due process of law does not take up the special
provisions of the state constitution and laws into the Fourteenth
Amendment for the purposes of the case, and in that way subject a
state decision that they have been complied with to revision by
this Court.
French v.
Page 205 U. S. 460
Taylor, 199 U. S. 274,
199 U. S. 278;
Rawlins v. Georgia, 201 U. S. 638,
201 U. S. 639;
Burt v. Smith, 203 U. S. 129,
203 U. S. 135.
For this reason, if for no other, the objection that the
information was not supported by an affidavit until after it was
filed cannot be considered.
See further, Ex Parte Wall,
107 U. S. 265. The
same is true of the contention that the suits referred to in the
article complained of were not pending. Whether a case shall be
regarded as pending while it is possible that a petition for
rehearing may be filed, or, if in an appellate court, until the
remittitur is issued, are questions which the local law can settle
as it pleases without interference from the Constitution of the
United States. It is admitted that this may be true in some other
sense, but it is not true, it is said, for the purpose of fixing
the limits of possible contempts. But here again, the plaintiff in
error confounds the argument as to the common law, or as to what it
might be wise and humane to hold, with that concerning the state's
constitutional power. If a state should see fit to provide in its
Constitution that conduct otherwise amounting to a contempt should
be punishable as such if occurring at any time while the court
affected retained authority to modify its judgment, the Fourteenth
Amendment would not forbid. The only question for this Court is the
power of the state.
Virginia v. Rives, 100 U.
S. 313,
100 U. S. 318;
Missouri v. Dockery, 191 U. S. 165,
191 U. S. 171.
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
Page 205 U. S. 461
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 Fourteenth 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.
In re Kemmler, 136 U.
S. 436. We do not pause to consider whether the claim
was sufficient in point of form, although it is easier to refer
to
Page 205 U. S. 462
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 Fourteenth Amendment a
prohibition similar to that in the First. 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.
Commonwealth v. Blanding, 3 Pick. 304,
313-314;
Respublica v.
Oswald, 1 Dall. 319,
1 U.S. 325. 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.
Commonwealth v. Blanding, ubi supra; 4 B1.Com.
150.
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 nonetheless 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
Page 205 U. S. 463
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.
Ex Parte Terry,
128 U. S. 289;
Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294;
State v. Hart, 24 W.Va. 416;
Myers v. State, 46
Ohio St. 473, 491;
Hunt v. Clarke, 58 L.J.Q.B. 490, 492;
King v. Parke [1903], 2 K.B. 432. It is objected that the
judges were sitting in their own case. But the grounds upon which
contempts are punished are impersonal.
United States v.
Shipp, 203 U. S. 563,
203 U. S. 574.
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 First 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, 109 U. S.
1,
109 U. S. 20, it
was adjudged that
Page 205 U. S. 464
the Thirteenth 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, 92 U. S. 542,
92 U. S. 552,
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 First Amendment against
hostile legislation by Congress -- was an attribute of "national
citizenship." So the First 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 Fourteenth 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
First 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 Fourteenth Amendment was made a
part of the Constitution.
Now the Fourteenth 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
First 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 Fourteenth 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
Fourteenth Amendment a prohibition as to the rights of free
Page 205 U. S. 465
speech and a free press similar to that in the First. 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 practiced 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 Fourteenth 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 Fourteenth
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
Page 205 U. S. 466
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.