Section 17 of the Judiciary Act of 1789 vested U.S. courts with the power “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” Under English common law, courts had had intended the power to punish individuals who showed contempt for their authority on the theory that such contempts were contempts of the king. In the U.S. system of government, civil contempts are directed at individuals who refuse to do something that a court has ordered done for the benefit of another party; complying with the order usually settles the issue at hand. Criminal contempts, which are more likely to raise First Amendment issues, involve trespassing against the dignity of the court itself.

Demonstrating how the criminal contempt power can conflict with the First Amendment freedoms of speech and press, in 1827 James H. Peck, a judge on the U.S. Federal District Court of Missouri, found an individual in contempt for responding through the newspapers to a decision that Peck had published concerning land claims. The House of Representatives subsequently impeached Peck, but the Senate did not convict him. As a result of this incident, however, Congress adopted a law in 1831 limiting the Court’s power to punish contempts to behavior carried out in the direct presence of the courts “or so near thereto as to obstruct the administration of justice.” The Supreme Court upheld this law in Ex parte Robinson (1874) and limited the punishment of contempts to jail time or fines.

Despite this new law, many state courts continued to allow contempts for out of court behavior. In Patterson v. Colorado (1907), at a time when the Court had not yet applied the Bill of Rights to the states, Justice Oliver Wendell Holmes Jr. wrote an opinion upholding the conviction of a newspaper editor for articles and a cartoon he had published criticizing a decision in a pending case. In Toledo Newspaper Co. v. United States (1918), Chief Justice Edward D. White wrote an opinion for the Court (over Holmes’s dissent) upholding the contempt conviction of an editor who had published articles and cartoons criticizing a judge over a six month period. In Craig v. Hecht (1923), the Court overturned a habeas corpus petition that Craig, the comptroller of New York, had filed seeking release from the punishment of a contempt issued by a district judge after Craig wrote and published a letter to the public service commissioner because of actions the judge had taken in pending receivership proceedings.

By contrast in 1941 Justice Hugo L. Black authored the Court’s opinion in Bridges v. California (1941), in which the justices overturned a contempt citation against a publisher who had criticized a local judge in California. Justice Felix Frankfurter, who had coauthored an article on the contempt power, wrote a vigorous dissent. A few years later, in Pennekamp v. Florida (1946), the Court overturned another conviction of a publisher who had used editorials and cartoons to criticize a state court’s handling of criminal cases. Modern cases suggest that courts can only issue contempt citations for criticism directed against their judgments when such citations are necessary to avoid a “clear and present danger” of substantive evils.

In-court declarations pose more obvious threats to courtroom decorum than statements made outside court and are more likely to involve conduct than mere speech. At the same time, they must be balanced against the obligations of attorneys to represent their clients vigorously. In Eaton v. City of Tulsa (1974), the Court reversed the contempt conviction of an individual who had referred to his assailant as “chicken shit,” but had not directed similar language to the judge or other court personnel.

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