A summary conviction for criminal contempt is not within the
jurisdiction of this Court by writ of error, but reviewable by
certiorari.
Judicial Code § 268 (Act of March 2, 1831), is merely
declaratory of the inherent power of the federal courts to punish
summarily for contempt, and, in providing that the power
"shall not be construed to extend to any cases except the
misbehavior of any person in their presence or so near thereto as
to obstruct the administration of justice,"
does no more than express a limitation imposed by the
Constitution. The power, as in the case of the legislature
(
Marshall v. Gordon, 243 U. S. 521) is
essentially one of self-preservation.
The test of the power is in the character of the acts in
question: when their direct tendency is to prevent or obstruct the
free and unprejudiced exercise of the judicial power, they are
subject to be restrained through summary contempt proceedings.
Newspaper publications, concerning injunction proceedings
pending in the district court and tending in the circumstances to
create the impression that a particular decision would evoke public
suspicion of the judge's integrity or fairness and bring him into
public odium and would be met by public resistance, and tending in
the circumstances to provoke such resistance in fact,
held
contemptuous, rendering the company owning the paper and its editor
subject to summary conviction and punishment.
Such wrongful publications are not within the "freedom of the
press," nor does the Act of 1831,
supra, Jud.Code § 268,
intend to sanction them.
As it is the reasonable tendency of such publications that
determines their contemptuous character, it is not material that
they were not circulated in the courtroom or seen by the judge, or
that they did not influence his mind.
In determining whether there was any evidence to justify
attributing such a tendency to the publications in question, this
Court considers the evidentiary facts found by the district court
only so far as to
Page 247 U. S. 403
determine whether they have any reasonable tendency to sustain
the general conclusions of fact based upon them by that court and
the circuit court of appeals.
In a summary proceeding for criminal contempt,
semble
that a single penalty based upon a conviction under all of several
distinct charges in the information cannot be upheld unless all of
the charges are sustained by the facts.
But where the circuit court of appeals, upon concluding that the
conviction was justified under one count and the facts relative
thereto, affirmed the district court without considering other
counts upon which the punishment was also based, this Court
examined the findings as to all the counts, and, holding them
sufficient, affirmed the judgment.
237 F. 986, affirmed.
The case is stated in the opinion.
Page 247 U. S. 410
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
This case is before us on error to review the action of the
court below affirming a judgment of the trial court holding the
defendants guilty of a summary contempt and imposing a fine upon
them both. There is also pending an application for certiorari made
upon the assumption that, if jurisdiction on error was wanting, the
case involved questions of such importance as to justify our
interposition.
We are of opinion that a motion to dismiss the writ of error
must prevail, since it is settled that a conviction for a criminal,
although summary, contempt is, for the purposes of our reviewing
power, a matter of criminal law not within our jurisdiction on
error.
Cary Manufacturing Co. v. Acme Flexible Clasp Co.,
187 U. S. 427,
187 U. S. 428;
O'Neal v. United States, 190 U. S. 36,
190 U. S. 38;
Bessette v. W. B.
Conkey
Page 247 U. S. 411
Co., 194 U. S. 324,
194 U. S. 335;
In re Merchants' Stock & Grain Co., 223 U.
S. 639;
Gompers v. United States, 233 U.
S. 604,
233 U. S. 606.
But this does not relieve us from the duty of exerting
jurisdiction, as we are of opinion that the case calls for the
exertion of the discretionary power with which we are vested. The
writ of certiorari is therefore granted, and we proceed to examine
and dispose of the case to the extent rendered necessary by that
conclusion.
The case is this: the Toledo Railways & Light Company, in
1913, controlled and operated practically all the street railways
in Toledo. The franchises under which it did so, however, it was
generally considered, expired on the 27th of March, 1914. In
anticipation of this fact, negotiations as to the terms upon which
they should be renewed were broached between the city and the
company, and pronounced differences were manifested. This gave rise
to public agitation and discussion over the question, which had
become acute in November, 1913. In that month, evidently in order
to enable the city to secure from the company such terms of
agreement as it might impose, an ordinance was passed without
giving any new franchise or in terms making any new contract with
the company, providing that, on and after the 27th of March, 1914,
the assumed day of the expiration of the franchises, three-cent
fares should be charged from day to day. Complaint alleging the
injustice of this provision and the wrong which the railroad
asserted would be produced by giving it effect increased the
agitation.
In January, 1914, creditors of the company filed in the district
court of the United States their bill against the company to enjoin
it from obeying the ordinance on the ground that to do so would
confiscate the property which they held in the company and would
destroy the franchises which the company enjoyed and which, it was
asserted, only expired in the following October. On March 24th,
Page 247 U. S. 412
the creditors filed a supplemental bill making the city a party
to the suit and asking preliminary and permanent injunctions
against the city. On the same day, the company also filed its bill
against the city seeking to restrain the enforcement of the
ordinance both by preliminary and final injunctions.
At this juncture and before action had been taken by the court,
the Toledo News-Bee, a daily paper published in Toledo by the
Toledo Newspaper Company, began publications adverse to the rights
asserted against the city by the creditors and the railway company,
and in no uncertain terms avouched the right of the city to have
enacted the ordinance which the suits assailed and challenged the
right of the court to grant the relief prayed. On March 30th, the
court, after hearing on the applications for preliminary
injunctions, denied them on the ground that the assailed ordinance
was not self-enforcing, that it required an application for
judicial power to put it into effect, and that it would be time
enough when the city invoked such relief by such power to assert by
way of defense the matters which were made the basis of the prayer
for affirmative relief in the pending controversies.
In September following, under a new prayer, the court
reconsidered its action and awarded the preliminary injunction
prayed on the ground that, as the city had in the meanwhile treated
the ordinance as enforceable without resort to judicial process,
and was acting against the company and the creditors and their
alleged rights on that assumption, the duty was cast upon the court
of protecting such rights pending the decision of the causes. In
the meanwhile, however, the agitation over the questions which the
suits involved had unremittingly continued, and was beyond doubt
fanned by continuous publications on the subject in the stated
newspaper into a more exaggerated -- not to use a stronger word --
and
Page 247 U. S. 413
vociferous expression which embraced the whole field; that is,
not only the relative rights of the city and the corporation, but
also, at least by indirection, the duty and power of the court and
its right to afford any relief in the matters before it.
Immediately preceding the action of the court taken on September
12th granting the preliminary injunction, and while that subject
was before it for consideration, an attachment for contempt was
issued against one Quinlivan for words spoken by him at a meeting
of a labor union concerning the court and the matter which it was
then engaged in considering. And, a few days following, on
September 15th, a similar process was issued against the managing
editor of the Toledo News-Bee for publications written by him in
the paper concerning the action of the court in the Quinlivan
case.
On September 29th following, the court directed the district
attorney to present an information for contempt against the
newspaper company and its editor for the publications which had
been made concerning the controversy, and on October 28th, giving
effect to this order, an information was filed charging the
newspaper company and the editor with contempt. The charges were
stated in three counts. The first embraced matters published during
the pendency of the suit from the time, March 24th, when the action
was taken to make the city a party and the respective preliminary
injunctions were prayed, up to and including the time when the
ultimate action of the court on the subject in September was taken.
The two other counts related, the one to publications made at the
time of and concerning the attachment for contempt against
Quinlivan, and the other to publications concerning the attachment
against the managing editor. The defendants demurred on the ground
that the information stated no act within the power of the court
to
Page 247 U. S. 414
punish for contempt, and, on the overruling of the demurrer,
they answered, not disputing the publications charged, but
challenging the innuendoes by which in the information they were
interpreted and reiterating the denial of all power in the court to
punish.
Coming to dispose of the information, the court found both of
the defendants guilty under all the counts, and imposed upon both a
punishment by way of fine. The court sustained its authority to so
act by an elaborate opinion, which, after stating the evidentiary
facts -- the publications and their environment -- drew from them
ultimate conclusions of fact and held that from such conclusions it
clearly resulted that the publications complained of constituted a
contempt within the power of the court to punish, because, by their
terms, they manifestly tended to interfere with and obstruct the
court in the discharge of its duty in a matter pending before it.
Condensing for the sake of brevity and looking at the substance of
things, these conclusions of the court embraced four grounds: (a)
because, leaving aside the attempted ridicule, not to say
vituperation, concerning the court which was expressly or impliedly
contained in the publications, their manifest purpose was to create
the impression on the mind of the court that it could not decide in
the matter before it in any but the one way without giving rise to
such a state of suspicion as to the integrity or fairness of its
purpose and motives as might engender a shrinking from so doing;
(b) because the publications directly tended to incite to such a
condition of the public mind as would leave no room for doubt that,
if the court, acting according to its convictions, awarded relief,
it would be subject to such odium and hatred as to restrain it from
doing so; (c) because the publications also obviously were intended
to produce the impression that any order which might be rendered by
the court in the discharge of its duty, if not in accord with the
conceptions
Page 247 U. S. 415
which the publications were sustaining, would be disregarded and
cause a shrinking from performing duty to avoid the turmoil and
violence which the publications, it may be only by covert
insinuation, but nonetheless assuredly, invited; and (d) because
the publications were of a character, not merely because of their
intemperance but because of their general tendency, to produce in
the popular mind a condition which would give rise to a purpose in
practice to refuse to respect any order which the court might
render if it conflicted with the supposed rights of the city
espoused by the publications. 220 F. 458.
The affirmance by the court below of the action of the trial
court thus stated is the matter now before us for review. That
court, not asserting the right or attempting to exert the power to
review the merely evidentiary facts found by the trial court, but
accepting them, in express terms sanctioned the inferences of
ultimate fact drawn from them by the trial court. The court
said:
"The publications had reference to pending judicial action, and
there is a finding of fact ('as alleged in the information') that
they tended and were intended to provoke public resistance to an
injunction order, if one should be made, and there is a finding
that they constituted an attempt to intimidate -- at least unduly
to influence -- the district judge with reference to his decision
in the matter pending before him. That each of these findings is
supported by competent evidence, and for that reason binding upon
this Court, is too clear for dispute, but we may rightly go further
and say that it is difficult to see how any other findings could
have been made."
This view, however, was restricted to the matters embraced by
the first count, since it was decided that it was irrelevant to
consider whether the same view would obtain as to the subject
matters of the second and third counts because it was held that, in
any event, the finding of guilt under the first
Page 247 U. S. 416
count was adequate to justify the penalty imposed, thus
rendering a consideration of the other two counts unnecessary. 237
F. 986.
Under the case and the action of the courts below concerning it,
nothing further would seem to be required to establish the
correctness of that action, since no other course under the
statement is possible compatibly with the sacred obligation of
courts to preserve their right to discharge their duties free from
unlawful and unworthy influences, and, in doing so, if needs be, to
clear from the pathway leading to the performance of this great
duty all unwarranted attempts to pervert, obstruct or distort
judgment. Nevertheless in view of the gravity of the subject, we
proceed to consider and dispose of the elaborate arguments pressed
to the contrary. They are all embraced by the three following
propositions: first, that there was a total want of power in the
court to treat the matters charged in the information as a contempt
and punish it accordingly as a result of the provisions of § 268 of
the Judicial Code (embodying the text of the Act of March 2, 1831,
c. 99, 4 Stat. 487); second, that, irrespective of the prohibitions
of that act, there was a want of power to abridge the freedom of
the press by punishing as for a summary contempt comments made by a
newspaper upon matters of public concern, and third, that, whatever
be the view of the two former propositions, as there was an entire
absence of proof sustaining the ultimate inferences of fact upon
which the court based its conclusion, such conclusion was wholly
erroneous as a matter of law. We dispose of these propositions
under separate headings.
1.
Section 268 of the Judicial Code and its forerunner, the
Act of 1831.
It is essential to recall the situation existing at the time of
the adoption of the Act of 1831 in order to elucidate its
provisions. In
Marshall v. Gordon, 243 U.
S. 521, the power of Congress to summarily punish for
contempt
Page 247 U. S. 417
came under consideration, and it was there pointed out that the
enlarged legislative power on that subject which prevailed in
England prior to the separation, whether based upon the commingling
of legislative and judicial authority or upon any other cause, was
necessarily in this country greatly restricted and changed by the
effect of the adoption of the Constitution and the operation of the
division of powers and the guaranties and limitations which that
instrument embodied. Considering this condition in the light of the
colonial legislation on the subject and the previous state
constitutions, it was pointed out that it had come to be
established, either by express constitutional or legislative
provisions or by inevitable implications resting upon the very
existence of government, that, while the limitations as to mode of
accusation of crime and methods of trial had fundamentally changed
the situation which had previously existed, such change had not
deprived the legislative power of the right, irrespective of its
authority by legislation to provide for the trial and punishment of
criminal acts, in addition to summarily deal by way of contempt
proceedings with wrongful acts obstructing the legislative power in
the performance of its duty. This authority, it was held, was but
an incident of the powers conferred, and indeed that its exertion
in ultimate analysis was a means of securing the effective
operation of the constitutional limitations as to mode of
accusation and methods of trial. It was pointed out that the
authority thus recognized automatically inhered in the government
created by the Constitution, was sanctioned by a long line of
judicial decisions and by state and federal practice, although the
legislative power, doubtless as a mere consequence of a
reminiscence of what had gone before and momentarily forgetful of
the limitations resulting from the Constitution, had sometimes
exerted authority in excess of that which it was decided was really
possessed.
Page 247 U. S. 418
While the
Marshall case concerned the exercise of
legislative power to deal with contempt, the fundamental principles
which its solution involved are here applicable to the extent that
they may not be inapposite because of the distinction between
legislative and judicial power. Indeed, the identity of the
constitutional principles applicable to the two cases, subject to
the differences referred to, was pointed out on pages
243 U. S.
542-543, where it was said:
"So also, when the difference between the judicial and
legislative powers are considered and the divergent elements which
in the nature of things enter into the determination of what is
self-preservation in the two cases, the same result is established
by the statutory provisions dealing with the judicial authority to
summarily punish for contempt -- that is, without resorting to the
modes of trial required by constitutional limitations or otherwise
for substantive offenses under the criminal law. Act of March 2,
1831, 4 Stat. 487."
The pertinent provision of § 268 of the Judicial Code is as
follows:
"The said courts [United States courts] shall have power . . .
to punish, by fine or imprisonment at the discretion of the court,
contempts of their authority:
Provided, that such power to
punish for contempts shall not be construed to extend to any cases
except the misbehavior of any person in their presence, or so near
thereto as to obstruct the administration of justice. . . ."
Clarified by the matters expounded and the ruling made in the
Marshall case, there can be no doubt that the provision
conferred no power not already granted, and imposed no limitations
not already existing. In other words, it served but to plainly mark
the boundaries of the existing authority resulting from and
controlled by the grants which the Constitution made and the
limitations which it imposed. And this is not at all modified
Page 247 U. S. 419
by conceding that the provision was intended to prevent the
danger by reminiscence of what had gone before of attempts to
exercise a power not possessed which, as pointed out in the
Marshall case, had been sometimes done in the exercise of
legislative power. The provision, therefore, conformably to the
whole history of the country, not minimizing the constitutional
limitations nor restricting or qualifying the powers granted, by
necessary implication recognized and sanctioned the existence of
the right of self-preservation -- that is, the power to restrain
acts tending to obstruct and prevent the untrammeled and
unprejudiced exercise of the judicial power given by summarily
treating such acts as a contempt and punishing accordingly. The
test, therefore, is the character of the act done and its direct
tendency to prevent and obstruct the discharge of judicial duty --
a conclusion which necessarily sustains the view of the statute
taken by the courts below and brings us to the second question,
which is:
2.
The asserted inapplicability of the statute under the
assumption that the publications complained of related to a matter
of public concern and were safeguarded from being made the basis of
contempt proceedings by the assuredly secured freedom of the
press.
We might well pass the proposition by because to state it is to
answer it, since it involves in its very statement the contention
that the freedom of the press is the freedom to do wrong with
impunity, and implies the right to frustrate and defeat the
discharge of those governmental duties upon the performance of
which the freedom of all, including that of the press, depends. The
safeguarding and fructification of free and constitutional
institutions is the very basis and mainstay upon which the freedom
of the press rests, and that freedom therefore does not and cannot
be held to include the right virtually to destroy such
institutions. It suffices to say that, however complete
Page 247 U. S. 420
is the right of the press to state public things and discuss
them, that right, as every other right enjoyed in human society, is
subject to the restraints which separate right from wrongdoing.
The contention so earnestly pressed that the express provision
found in a statute enacted in Pennsylvania in 1809 following the
impeachment proceedings against Judge Peck dealing with the extent
of the power to base a contempt proceeding upon a newspaper
publication should be, by implication, read into the Act of 1831,
and by filtration implied in § 268, Judicial Code, we think is
answered by its mere statement, since, if it be conceded for
argument's sake only that the provision in the Pennsylvania statute
relied upon had the significance now attributed to it, and that the
Pennsylvania statute was the model of the Act of 1831, the omission
from that act of the provision referred to as it existed in the
Pennsylvania law is the strongest possible evidence of the purpose
not to enact such provision. And thus we come to the third and
final subject, which is:
3.
The contention that there was no evidence whatever to
justify attributing to the publications the consequence of
obstruction, and therefore no legal basis for the conclusion of
guilt and resulting right to impose penalties.
It is to be observed that our power, in disposing of this
objection, is not to test divergent contentions as to the weight of
the evidence, but simply to consider the legal question whether the
evidentiary facts found had any reasonable tendency to sustain the
general conclusions of fact based upon them by the courts below.
Considering the subject in this aspect, again we are constrained to
say that the contention on the face of the record is too plainly
devoid of merit to require any detailed review. Indeed, we are of
opinion that the court below was right in saying, concerning the
ultimate conclusions of fact upon which its action was based, that
it was "difficult
Page 247 U. S. 421
to see how any other findings could have been made." True, it is
urged that, although the matters which were made the basis of the
findings were published at the place where the proceedings were
pending and under the circumstances which we have stated in a daily
paper having a large circulation, as it was not shown that they had
been seen by the presiding judge or had been circulated in the
courtroom, they did and could form no basis for an inference of
guilt. But the situation is controlled by the reasonable tendencies
of the acts done, and not by extreme and substantially impossible
assumptions on the subject. Again, it is said there is no proof
that the mind of the judge was influenced or his purpose to do his
duty obstructed or restrained by the publications, and therefore
there was no proof tending to show the wrong complained of. But,
here again, not the influence upon the mind of the particular judge
is the criterion, but the reasonable tendency of the acts done to
influence or bring about the baleful result is the test. In other
words, having regard to the powers conferred, to the protection of
society, to the honest and fair administration of justice and to
the evil to come from its obstruction, the wrong depends upon the
tendency of the acts to accomplish this result, without reference
to the consideration of how far they may have been without
influence in a particular case. The wrongdoer may not be heard to
try the power of the judge to resist acts of obstruction and
wrongdoing by him committed as a prelude to trial and punishment
for his wrongful acts.
This disposes of the case, for, although the court below, we
think mistakenly, considered that it was not under the duty to
determine how far the facts sustained the charges under counts 2
and 3 because the conviction might be referred wholly to the first
count (
Gompers v. Bucks Stove & Range Co.,
221 U. S. 418,
221 U. S.
440), we are of opinion, after examining the facts as to
both of
Page 247 U. S. 422
those counts, that they also sustain the conviction within the
principles which we have just previously stated.
Affirmed.
MR. JUSTICE DAY and MR. JUSTICE CLARKE took no part in the
decision of this cause.
MR. JUSTICE HOLMES, dissenting.
One of the usual controversies between a street railroad and the
city that it served had been going on for years, and had culminated
in an ordinance establishing three-cent fares that was to go into
effect on March 28, 1914. In January of that year, the people who
were operating the road began a suit for an injunction on the
ground that the ordinance was confiscatory. The plaintiffs in
error, a newspaper and its editor, had long been on the popular
side, and had furnished news and comment to sustain it, and when,
on March 2, a motion was made for a temporary injunction in the
suit, they published a cartoon representing the road as a moribund
man in bed with his friends at the bedside, and one of them saying
"Guess we'd better call in Doc Killits." Thereafter, pending the
controversy, they published news, comment, and cartoons as before.
The injunction was issued on September 12. The Judge (Killits) who
was referred to took no steps until September 29, when he directed
an information to be filed covering publications from March 24
through September 17. This was done on October 28. In December, the
case was tried summarily without a jury by the judge who thought
his authority contemned, and in the following year he imposed a
considerable fine. The question is whether he acted within his
powers under the statutes of the United States.
The statute in force at the time of the alleged contempts
confined the power of courts in cases of this sort to where
Page 247 U. S. 423
there had been "misbehavior of any person in their presence or
so near thereto as to obstruct the administration of justice."
Section 268, Jud.Code, Act of March 3, 1911, c. 231, 36 Stat. 1163.
Before the trial took place, an act was passed giving a trial by
jury upon demand of the accused in all but the above-mentioned
instances. October 15, 1914, c. 323, §§ 22, 24, 38 Stat. 738, 739.
In England, I believe, the usual course is to proceed in the
regular way by indictment. I mention this fact and the later
statute only for their bearing upon the meaning of the exception in
our law. When it is considered how contrary it is to our practice
and ways of thinking for the same person to be accuser and sole
judge in a matter which, if he be sensitive, may involve strong
personal feeling, I should expect the power to be limited by the
necessities of the case "to insure order and decorum in their
presence," as it is stated in
Ex parte
Robinson, 19 Wall. 505.
See Prynne, Plea
for the Lords 309, cited in McIlwain, The High court of Parliament
and its Supremacy 191. And when the words of the statute are read,
it seems to me that the limit is too plain to be construed away. To
my mind, they point only to the present protection of the court
from actual interference, and not to postponed retribution for lack
of respect for its dignity -- not to moving to vindicate its
independence after enduring the newspaper's attacks for nearly six
months, as the court did in this case. Without invoking the rule of
strict construction, I think that "so near as to obstruct" means so
near as actually to obstruct -- and not merely near enough to
threaten a possible obstruction. "So near as to" refers to an
accomplished fact, and the word "misbehavior" strengthens the
construction I adopt. Misbehavior means something more than adverse
comment or disrespect.
But suppose that an imminent possibility of obstruction is
sufficient. Still I think that only immediate and necessary action
is contemplated, and that no case for summary
Page 247 U. S. 424
proceedings is made out if, after the event, publications are
called to the attention of the judge that might have led to an
obstruction, although they did not. So far as appears, that is the
present case. But I will go a step farther. The order for the
information recites that, from time to time, sundry numbers of the
paper have come to the attention of the judge as a daily reader of
it, and I will assume, from that and the opinion, that he read them
as they came out, and I will assume further that he was entitled to
rely upon his private knowledge, without a statement in open court.
But a judge of the United States is expected to be a man of
ordinary firmness of character, and I find it impossible to believe
that such a judge could have found in anything that was printed
even a tendency to prevent his performing his sworn duty. I am not
considering whether there was a technical contempt at common law,
but whether what was done falls within the words of an act intended
and admitted to limit the power of the courts.
The chief thing done was to print statements of a widespread
public intent to board the cars and refuse to pay more than three
cents even if the judge condemned the ordinance, statements
favoring the course, if you like, and mention of the city officials
who intended to back it up. This popular movement was met on the
part of the railroad by directing its conductors not to accept
three cent fares, but to carry passengers free who refused to pay
more, so that all danger of violence on that score was avoided,
even if it was a danger that in any way concerned the court. The
newspaper further gave one or two premature but ultimately correct
intimations of what the judge was going to do, made one mistaken
statement of a ruling which it criticized indirectly, uttered a few
expressions that implied that the judge did not have the last word
and that no doubt contained innuendoes not flattering to his
personality. Later there was an account
Page 247 U. S. 425
of a local socialist meeting at which a member, one Quinlivan,
spoke in such a way that the judge attached him for contempt, and
thereupon, on the same day that the decree was entered in the
principal case, the paper reported as the grounds of the attachment
that Quinlivan had pronounced Judge Killits to have shown from the
first that he was favorable to the railroad, had criticized
somewhat ignorantly a ruling said to put the burden of proof on the
city, and had said that Killits and his press were unfair to the
people, winding up "impeach Killits." I confess that I cannot find
in all this or in the evidence in the case anything that would have
affected a mind of reasonable fortitude, and still less can I find
there anything that obstructed the administration of justice in any
sense that I possibly can give to those words.
In the elaborate opinion that was delivered by Judge Killits to
justify the judgment, it is said:
"In this matter, the record shows that the court endured the
News-Bee's attacks upon suitors before it and upon the court
itself, and carried all the embarrassment inevitable from these
publications, for nearly six months before moving to vindicate its
independence."
It appears to me that this statement is enough to show that
there was no emergency, that there was nothing that warranted a
finding that the administration of justice was obstructed, or a
resort to this summary proceeding, but that, on the contrary, when
the matter was over, the Judge thought that the "consistently
unfriendly attitude against the court," and the fact that the
publications tended "to arouse distrust and dislike of the court"
were sufficient to justify this information and a heavy fine. They
may have been, but not, I think, in this form of trial. I would go
as far as any man in favor of the sharpest and most summary
enforcement of order in court and obedience to decrees, but when
there is no need for immediate action, contempts are like any other
breach of law, and should be dealt with as the law
Page 247 U. S. 426
deals with other illegal acts. Action like the present, in my
opinion, is wholly unwarranted by even color of law.
MR. JUSTICE BRANDEIS concurs in this opinion.