The Supreme Court in Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918), upheld a contempt citation that a judge had issued to a newspaper for publishing material about his court. Although it is no longer good law and primarily involved statutory interpretation, the decision when issued reflected contemporary views on freedom of the press.

A federal district court judge had held the editor of the Toledo News-Bee in contempt for articles and cartoons that he had published critical of court rulings during a six-month dispute between the city and a railroad company in which the judge was involved. In the opinion for the 7-2 Court, Chief Justice Edward D. White first addressed the wording of Section 268 of the judicial code and the act of 1831 that had preceded it. The code had limited the punishment of contempts to behaviors “of any person in their presence, or so near thereto as to obstruct the administration of justice.” White thought this language was capacious enough to cover local newspaper coverage of the events in question. The second issue he addressed was whether the First Amendment freedom of the press protected the publications. He argued that “to state” the question was “to answer it,” because freedom of the press did not give the media “the freedom to do wrong with impunity.”

The third issue White addressed involved the failure of the publications to lead to actual obstruction of justice. Utilizing the bad tendency test that the Court later presented in Gitlow v. New York (1925), White said that the publications must be judged by their “reasonable tendencies.” He opined that “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.”

In a dissent joined by Justice Louis D. Brandeis, Justice Oliver Wendell Holmes Jr. noted that the individual issuing the contempt here was judging in his own case. If the judge could issue a contempt citation, the power should apply in the course of the event, not afterwards. That the judge had waited six months to issue the contempt indicated that publication had created no emergency. Judges, Holmes thought, should have sufficient fortitude to be able to withstand public criticism. Nye v. United States (1941) reversed this decision on statutory — not constitutional — grounds.

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