United States v. Toledo Newspaper Co.

• Decision Date: 23 January 1915
• Parties: UNITED STATES v. TOLEDO NEWSPAPER CO. et al.
• Court: U.S. District Court — Northern District of Ohio

220 F. 458

UNITED STATES v. TOLEDO NEWSPAPER CO. et al.

United States District Court, N.D. Ohio, Western Division.

January 23, 1915

Syllabus by the Court

The constitutional guaranty of free speech and a free press is not infringed by summary process and conviction in contempt because of publications respecting a pending cause and tending to obstruct the administration of justice therein.

The act of March 2, 1831 (Rev. St. Sec. 725; Judicial Code, Sec. 268 (Comp. St. 1913, Sec. 1245)), declaratory of the law of contempt, was not intended to, nor does it, exempt publishers and editors from attachment for contempt for publications improperly affecting a pending case.

It is provided in section 268, Judicial Code, that this court may punish as contempt of its authority misbehavior so near its presence 'as to obstruct the administration of justice ' Held, that the criterion whether an alleged misbehavior is within this provision of the act is not the physical or topographical propinquity of the act to the court; but having reference to all the pertinent circumstances attending its commission, it is the nature of the act as tending directly to affect the administration of justice.

Publications in a newspaper of general circulation in the city wherein the court sits, which publications are of a nature to embarrass the judge of the court in his consideration of a pending cause, or which tend to appeal to prejudice against the court or against a party to the cause respecting a pending case may be misbehavior so near the presence of the court as to obstruct the administration of justice, wherefore they may subject the publisher or the editor, or both, to summary process in contempt under section 268, Judicial Code.

In order to produce a conviction, as contempt of court, for a newspaper publication affecting a pending cause, it is not necessary that the proof should show either that the publication ever came to the attention of the judge of the court, or that it had any influence on the consideration of the cause to which it refers. It is sufficient if, excluding any other reasonable interpretation of the language of the publication, after applying the ordinary rules for construing the English language and considering how it may be reasonably understood by ordinary readers, the state of public feeling on the subject-matter of the publication, and any other relevant matter which may reasonably aid in understanding the necessary effect of such publication respecting the pending cause, it is seen to tend to obstruct the administration of justice therein.

In considering whether a publication is a contempt of court, in that it tends to obstruct the administration of justice in a pending case, the court may consider other publications on the same subject by the same publisher.

It is no defense to a charge of contempt of court by publications respecting a pending case that the court was without jurisdiction to entertain such pending case.

U. G. Denman, U.S. Atty., of Toledo, Ohio, and William L. Day, of Cleveland, Ohio, Special Counsel, for the government.

Lawrence Maxwell and Jay W. Curts, both of Cincinnati, Ohio, and Charles S. Northup, of Toledo, Ohio, for respondents.

KILLITS District Judge.

The respondents, the Toledo Newspaper Company and Negley D. Cochran, respectively the publisher and editor in chief of a daily newspaper published in the city of Toledo, Ohio, known as the 'Toledo News-Bee,' are before the court to answer to charges of contempt for publications in that paper between the dates of March 24 and September 17, 1914, inclusive.

The information is in three counts, and is filed by the district attorney by order of the court. The first count deals with publications between March 24 and September 12, 1914, affecting a cause pending in this court entitled Henry L. Doherty et al., Partners as Henry L. Doherty & Company, v. Toledo Railways & Light Co.

The second count offers publications of September 12 and 14, 1914, touching the proceedings in contempt in this court against one John Quinlivan; the rule to show cause against said Quinlivan in the contempt proceedings being entitled in the civil case whose title is given above.

The third count deals with a publication on September 17, 1914, relating to a proceeding in contempt in this court against Harry J. Howard, managing editor of the Toledo News-Bee.

The publications complained of, with the contexts of which they are a part, are set out in full in the information. They are so numerous and many of them so long that to reproduce them in a statement of fact, even by reasonable editing in condensation, would be to very greatly tax the situation. Besides, as not unusual in the style of journalism which the newspaper in question affects, they were so embellished with exaggerated headlines and other typographical display, operating as emphasis upon certain features, that their full effect cannot be exhibited in a practical attempt at reproduction in an opinion. For the present purpose, it is sufficient to set forth a superficial view of their scope, although that will of necessity be extended.

The information charges that the publications involved in the first count were calculated and intended to produce two effects: First, an influence on the court's consideration of the pending traction case, by attempting an impression that a decision contrary to the wishes of the paper would not only be very unpopular in the community but likely to be met with active opposition; and, secondly, an encouragement to popular resistance to any order the court might make following such unpopular decision.

These purposes are alleged to have been effected by violent attacks on the parties to the case who were interested against the city, attacks calculated to influence public sentiment; by comment on the personality of the judge of the court and on proceedings in the case under him, tending to the impression that the court was liable to influence against the city out of proportion to the law and facts; by encouraging, through intensive comment and extravagant headings and other typographical embellishments, a plan for popular uprising against the traction company in spite of any order the court might make in the case; by misrepresenting, especially through prominent headlines, the action of the court through successive steps in the case; and by 'featuring' attacks on the court from local organizations while the case was pending.

The proceedings concerning which publications are pleaded as offensive in the second and third counts were outgrowths of the traction case. It is alleged that these publications tended and were intended to embarrass the court in its consideration of the respective causes, by impugning the motives of the judge thereof and by attempting to belittle him in public estimation.

It is admitted that the paper in question containing these publications circulated to the extent of more than 50,000 copies daily in and about the city of Toledo, wherein sat the court in question and resided the judge thereof subject to comment in said publications. The order directing the district attorney to file the information and signed by the judge of the court recites the fact of his residence in the city of Toledo, and that, as a daily reader of the newspaper in question, the several publications had come to his personal attention.

Before entering into a more detailed description of the publications, it is proper to picture briefly the local situation and recent history of the city, as well as to outline the traction case referred to by title above, although the full force of the effect upon the paper's readers of the publication charged as offensive can be properly appreciated and gauged only by those who have seen the manner in which they were set forth and embellished from time to time with typographical exaggerations, and who, through residence in the city, are familiar with local conditions.

The testimony shows that Toledo has had a street railway franchise problem confronting it for more than ten years, and that agitation concerning it of the familiar extreme type had accompanied the attempt of every administration to deal with it, and that it had figured as the issue in five or six municipal electoral contests.

Franchises for some of the most important lines expired in 1910, and others, disintegrating the system, with March 27, 1914, although it was contended in the case, by both plaintiffs and the traction company, that they continued until October, 1915.

For years the News-Bee had violently opposed the local company which it had nicknamed the 'Big Con.' The paper's policy was three-fold-- opposition to a franchise renewal, insistence on a straight three-cent fare, and for municipal ownership.

In the spring of 1913 a New York partnership, H. L. Doherty & Co., took over the management of the system and began negotiations in behalf of the company for a renewed franchise, meeting persistent and vigorous opposition from the News-Bee.

In the municipal election of 1913, all of the candidates promised three-cent fare, but those opposed by the News-bee defeated those favored by it by a very large majority. The election amounted to a defeat for the incumbent administration, which after the election, and within 40 days of its vacation of power to the incoming officiary, and four months before the franchises expired, passed an ordinance called the 'Schreiber Ordinance,' to require the company to operate its cars, after March 27, 1914, at the pleasure of the city, at the maximum fare of three cents with free transfers, and also to pay a rental of $250 per day for the use of the streets. Other terms were : An attempt to make mere continuance of operation...