New-York tribune., 1918-06-18
The Supreme Court lnvades the
Riqht of Public Criticism

We do not think the press Of the coun-
try has given sufficient attention to the
very remarkable decision Of the Supreme
Court, handed down week ago, lmpos-
ing an unlooked-for restraint upon the
right of public criticism of public OIL
cials--in this case of a Federal judge
named Killits, in Toledo, Ohio. AS in
the child labor law decision, to which we
last week, the opinion of the
court was sustained by bare majority.
In this case two of the judges did not sit,
and two others, Mr.. Justice Holmes and
Mr.. Justice Brandeis, radically dissented.
We shall largely confne our comments
to quotations from the dissenting opinion
of Mr.. Justice Holmes. This is his state
ment Of the cause in action:
zone of the usual controversies be-
tween a street railroad and the city that
it served had been going on for years
and had eliminated in an ordinance
establishing Scent fares that was to
90 into effect on March %, 1914. In
January of that year the people who were
operating the road began suit for an
Injunction, on the ground that the or
dinance was confscatory. 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 "a, motion was
made for a temporary injunction in the
suit they published a cartoon represent
ing the road as moribund man in bed,
with it's 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 car
toons as before. The injunction was Is
sued on September IL. The Judge (Kil-
lits) who was referred to took steps
until September 20, when he directed an
information to be filed covering publica-
tions from March "a through September
IT, This was done on October %. In
December the case was tried summarily
without jury by the judge who thought
his authority contemned, and in the fol-
lowing year he imposed a considerable
fne.r
Mr.. Justice Holmes states that the
statute in force at the time OF the alleged
contempts confined the power of courts
in cases of this sort to where there had
been "misbehavior of any person in their
presence, or so near thereto as to OBJ
struct the administration OF justice.
But before the trial took place an act
was passed by Congress, giving trial
bv Jury upon demand of the accused in
all but the aforementioned instances.
Justice Holmes says that in England the
usual course is to proceed in the usual
way, by an indictment, and then goes on
TO say;
"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, and point only, to the present pro-
lection Of the court from actual inter
ference, and not to postponed retribution
for lack OF respect for its dgnity-not to
moving to vindicate its independence
after enduring the newspapers attacks
for nearly six months, as the court did in
this case"
In an elaborate opinion delivered by
Judge Killits, who imposed the fine, it
was contended that:
'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 vim
dicate its independence"
But Justice Holmes remarks that ga
Judge of the United States is expected to
be man of ordinary firmness of char
acter, and / find it impossible to believe
that such a Judge could have found in
anything that was printed even ten
dency to prevent his performing his
sworn duty" And that appears to have
been the whole matter at issue. Justice
Holmes goes on to say that to him this
statement Of the judge himself
"is enough to show that there was no
emergency, that there was nothing that
warranted finding that the administra-
tion of justice was DISTRACTED, or resort
to this summary proceeding"
Concluding his opinion, the dissenting
justice uses the following language:
"Action like the present, in my opinion,
is wholly unwarranted By even color of
law"
In this opinion Mr.. Justice Brandeis
concurs. That is to say, two Of the ahlest
jurists of the United States, elevated to
position on the Supreme Bench Of the
United States, stated as their deliberate
opinion that action like the present is
wholly unwarranted by even color of
law ThiAis strong language.
Now, our feeling in the matter is