1. The English and Colonial Inheritance
Inherited from English law and Colonial experience, still another area of jurisprudential repression of the press in the Early American Republic was
163 E.g., State v. Morrill,16Ark.384,1855Ark. LEXIS73(1855); McDougall v. Sheridan, Broxon, &
Cruzen,23Idaho191,128P.954(1913); People v. Wilson,64Ill.195,1872Ill. LEXIS256(1872);
Stuart v. Illinois,4Ill.395,1842Ill. LEXIS18(1842); Telegram Newspaper Co. v. Commonwealth, 172Mass.294,52N.E.445(1899);Ex ParteHickey,12Miss.751,1840Miss. LEXIS104(1840);
Missouri v. Shepherd,177Mo.205,76S.W.79(1903);In reSturoc,48N.H.428,1869N.H.
LEXIS 55(1869); People v. Freer,1Cai. R.518,1804N.Y. LEXIS200(1804); Respublica v.
Oswald,1U.S. (1Dallas)319(Sup. Ct. Pa.1788); Burdett v. Commonwealth,103Va.838,48S.E.
878(1904); West Virginia v. Frew & Hart,24W.Va.416,1884W. Va. LEXIS72(1884).SeeState v. Magee Pub. Co.,29N.M.455,224P.1028(1924).
164 As noted, there is still an unresolved issue with respect to the use of the professional code governing lawyers to punish out-of-court publications criticizing judges.SeeTresa Baldas, Bloggers Pay Price for Criticizing Judges, Conn. L. Trib., Mar.2,2009, at5.
the accepted doctrine of legislative contempt, including so-called breach of privilege, punishing critical speech and publications out of the legisla- tive chamber.165Similar in purpose and effect to criminal libel for political speech and criminal contempt for out-of-court critical publications, the doc- trine of contempt of the legislature166 protected still another branch of the government. Furthermore, like contempt of court, it provided an avenue for criminal punishment that sidestepped the protective features of the criminal law, such as the participation of grand and petit juries.
Under the English common law, the Parliament and its members were protected in numerous respects. The Parliament’s power of contempt to pun- ish persons interfering with the Legislature’s conduct of its affairs or the capability of its members to discharge their duties extended well beyond dis- obedience to the legislative orders and the members’ freedom from molesta- tion during the legislative sessions, such as arrest or assault or affront. It extended to freedom from insults and libels, the area of our particular con- cern. The power of the Legislature to use its common-law power of contempt to punish out-of-chamber critical comments and publications was uniformly recognized.167
With the doctrine of criminal contempt of the Parliament accepted as a part of the common law in the English jurisprudence,168 whatever the explanation for its origin and development may be, it became an important part of Colonial law as well. As we have seen, with the increasing tension arising between the Crown’s Colonial government and the rising Patriot movement, the Crown found that it could not rely any longer on prosecution for criminal libel as the legal instrument to criminalize dissent. As early as 1735with theZenger case,169 it had become apparent that Patriot juries would not convict persons publishing attacks condemning the Crown or its policies. Under these circumstances, Crown lawyers were forced to rely on
165 See generallyPotts, Power of Legislative Bodies to Punish for Contempt,74U. Pa. L. Rev.691 (1926) (hereinafter Potts).
166 References to “contempt of the legislature” should be read to include “breach of privilege” as well.
167 SeePotts, note165, at703.
168 Although all scholars agreed on the existence of Parliament’s power to punish for contempt, there is disagreement on whether it is derived from the view that Parliament is a form of court or whether it exists as an inherent attribute of a legislature essential for its proper functioning. Further, there is disagreement on whether or not the Parliamentary experience is indeed relevant. Justice Miller inKilbourn v. Thompson,103U.S.168,184,189(1880), for example, found it irrelevant.
SeePotts, note165, at692. This is of only academic interest because it is agreed that the power exists, supported as an inherent power, if not by its historical roots.
169 Zenger’s Case,17Howell’s State Trials626(1735).
Criminal Contempt of the Legislature 291 such doctrines as contempt of the Royal Colonial councils and assemblies to muzzle Patriot critics.170
The outstanding example of the use of legislative contempt to punish Patriot opinion before the Revolution was theMcDougallaffair. This was the jailing of Alexander McDougall, a prominent Patriot before the Revolution and a military hero during the Revolutionary War. As reported by Jeffery Alan Smith, a broadside had charged that the New York General Assembly had betrayed the colony in voting supplies for British troops stationed in New York.
When a witness identified McDougall as the one responsible, he was charged with criminal libel, indicted in April 1770, and jailed. When the witness died, the Assembly was no longer able to support the charge of criminal libel, and it was dropped. Instead, McDougall was then cited for contempt of the Assembly for conduct characterized as a “scandalous Reflection on the Conduct, Honor, and Dignity of this House.” McDougall was again arrested and remained in jail for81days until the Assembly ended its session in March 1771.171
Similarly, in1757 the Pennsylvania Assembly took affront at an assertion by a man named Moore that the Quaker Party had fraudulently procured the election of his opponent to the Assembly and condemned the publication.
When Moore persisted, the Assembly punished him with imprisonment for
“breach of privilege.” After his release, he was later involved in another series of comments about the Assembly. The Assembly ordered Moore’s rearrest, but he had fled the area.172
Jeffrey Alan Smith reports that before the Revolution, at least 20 per- sons were brought before one house or another of the Colonial legislatures because of their publications and that journalists were occasionally jailed for contempt.173In Potts’s review of the early history of contempt of the legislature in the Colonies and the New Republic, he, too, reports several instances of contempt proceedings involving out-of-chamber critical publications about
170 See, e.g., Harold L. Nelson, Criminal Libel in Colonial America,3 Am. J. Legal. Hist.160 (1959) (hereinafter Nelson); Jeffery A. Smith, A Reappraisal of Legislative Privilege and American Colonial Journalism,61Journalism Quar.97(1984) (hereinafter J. A. Smith, Legislative Privilege).
171 SeePotts note165, at705; J. A. Smith, Legislative Privilege, note170, at144–45; Nelson, note170, at169–70; Leonard W. Levy,Emergence of a Free Press76–81(1985).
McDougall was a Patriot, not an editor devoted to freedom of the press. Five years later, he led a band of armed men to destroy the press of a New York Tory printer, James Rivington.See J. Lofton,The Press as Guardian of the First Amendment5(1980).
During the Revolutionary War, McDougall rose to the rank of Major General. Washington demonstrated his great confidence in McDougall by assigning him command of West Point after Arnold’s treachery and unsuccessful attempt to surrender the fortress to the British.
172 Linenthal, note1, ch.2, at64.
173 J. A. Smith, Legislative Privilege, note170, at98,144–45.
the legislature or members. In addition, there were even more cases in which the Colonial legislatures exercised their contempt power to punish various types of contumacious behavior, including disregard of legislative orders, bribery of legislators, and assaults and affronts against legislators.174
Thus, as a jurisprudential matter, the inherent power of the legislature to punish for contempt was well established in Colonial America. However, as a practical matter, the impact of the doctrine was limited. The instances of its application were limited and episodic, hotly resisted by printers and Patriot elements of the population, and generally ineffective. Thus, Smith concludes that exercise of the legislative contempt power was, in fact, “typi- cally capricious, confused, and futile”175or “sporadic, inconsistent, and largely ineffectual.”176 Similarly, Buel brushes aside the entire area, asserting flatly that Colonial legislatures seldom exercised their power to punish for breach of privilege. However, these authors and historians generally have conceded that, as a matter of legal doctrine, there was general acceptance of the power177 and have attributed its limited effectiveness to the turbulent political climate and the strong popular opposition to the Crown.178
Writing in 1833, Justice Story had no doubt about the matter. Speaking of the common-law contempt powers of Colonial Assemblies (and inferen- tially of state legislatures by reason of the reception statutes), he wrote in his Commentary:“No man ever doubted, or denied its existence, as to our colo- nial assemblies in general, whatever may have been thought, as to particular exercises of it.”179
After Independence, the doctrine of legislative contempt established during the Colonial Era became part of the law of the new states. The common- law doctrine of the contempt powers of the legislature was still another part of the legal inheritance from English law and the Colonial experience that provided the legislatures in the new states with still another powerful legal weapon for the suppression of dissenting speech.180 Eleven of the new states went further and enacted statutes reenforcing the common-law legislative powers to punish contumacious conduct or speech as constituting a criminal
174 SeePotts, note165, at715.
175 J. A. Smith, Legislative Privilege, note170, at83–84.
176 Ibid., at103.
177 See alsoLinenthal, note1, at ch.2.
178 Richard Buel, Jr., Freedom of the Press in Revolutionary America: The Evolution of Libertarian- ism,1760–1860inThe Press & the American Revolution59,75(Bernard Bailyn and John Hench eds.1980).
179 SeeJoseph Story,3Commentaries on the Constitution of the United States306–307(1833repr.
1970) (hereinafter Story,Commentaries).
180 SeeJurney v. MacCracken,294U.S.125,148–149(1935) (Brandeis, J.); Potts, note165, at780.
Criminal Contempt of the Legislature 293 contempt of the legislature. Two of these – Maryland and Massachusetts – acted before the adoption of the federal Constitution.181In the federal system, the Congress had similar inherent contempt powers.
The doctrine rested on pragmatic consideration The legislative contempt power was seen as essential to enable the state legislatures and the new Congress, too, to perform their constitutional duties. However effectively this consideration may have served as a justification for the punishment of obtrusive contumacious conduct, such as a refusal to respond to lawful con- gressional directions with respect to such matters as appearance, answering questions, or producing documents, it still left open the question of the justifi- cation for the punishment of out-of-chamber critical publications. That aspect of the doctrine rested on the English Parliamentary tradition that contempt of the legislature also included the defense of parliamentary “privileges,” which extended to the capacity to punish any “clear violation of the undoubted right of the assembly to be treated with dignity,” extending even to out-of-chamber publications.182
Although this historical development may provide an explanation why the power to punish for contempt power or “breach of privilege” came to be regarded as an inherent power of the Parliament, it does not provide a satisfy- ing jurisprudential basis for the power in the face of constitutional guaranties of free speech and press where critical political speech is concerned. May offensive out-of-chamber criticism really be said to obstruct the legislature’s ability to perform its constitutional functions?
2. The Federal Experience
With the Revolution and the accompanying reception statutes, this repressive English doctrine, along with comparable repressive doctrines such as criminal libel, contempt of court for out-of-court speech, and blasphemy, became part of the American legal structure. As with the question of the scope of judicial power to punish for out-of-court critical speech, definitive judicial determi- nation of all the issues presented by three doctrines in the jurisprudence of the New Republic – the interrelationships of the constitutional protections of freedom of speech and press, state as well as federal, the fundamental doctrine of separation of powers, and the historic common-law recognition of
181 SeeMarshall v. Gordon,243U.S.521,534–535(1917).
182 SeeC. Beck, Contempt of Congress,2–3(1959) (hereinafter Beck).See alsoG. Campion,Intro- duction to the Procedure of the House of Commons73(2d ed. rev.1950); M. Clarke,Parliamentary Privilege in the American Colonies206(1943).
the legislative power to punish for out-of-chamber criticism – took more than a century. The Supreme Court was confronted by no fewer than five cases involving the contempt powers of the houses of the Congress before it finally determined the outer constitutional perimeters of the doctrine. This section reviews the history of this protracted development.
The federal Constitution has a series of provisions dealing with the powers, rights, and duties of each house of the Congress, including provisions dealing with the punishment, and even the expulsion, of members. However, as Justice Story commented, “It is remarkable, that no power is conferred for any contempts committed against either house.” Story adds: “yet it is obvious, that, unless such a power, to some extent, exists by implication, it is utterly impossible for either house to perform its constitutional functions.”183 a. The First Quarter Century of the Early Republic
As early as1795, the House of Representatives in the new Congress moved to exercise its contempt powers. Robert Randall was charged with the attempted bribery of a member of the House. After a trial in which Randall had had the right of counsel and an opportunity to prepare his defense, he was found guilty for attempted bribery of members of the House and incarcerated briefly.184
As we have seen, William Duane, the unbridled editor of the arch Repub- lican PhiladelphiaAurora, was one of the most unrestrained journalists in the Adams and Jefferson administrations. His slashing criticism of Federalist con- duct provoked repeated Federalist efforts to muzzle him through prosecutions for criminal libel and for contempt of court for out-of-court publications.185 The Federalists did not rely on these doctrines alone. They also invoked the doctrine of contempt of the legislature in their attempts to silence him. This continuing struggle between Duane and the Federalist Government led to the first attempt in the New Republic by the controlling party in the New Congress to respond to partisan considerations by resorting to the use of the doctrine of contempt of the legislature to silence out-of-chamber criticism by a political opponents.
Duane ran afoul of the Federalist Senate early in 1800 as the country was advancing to the crucial presidential election. As we have seen, Sen.
James Ross of Pennsylvania, a dedicated Federalist, had introduced a bill that, if enacted, could have had a profound effect on the outcome of the forthcoming election. Appropriately described by James Morton Smith as a
183 See2Story,Commentaries, note179, at §842.
184 SeeBeck, note182, at3.
185 SeeCh.4, notes162–165.
Criminal Contempt of the Legislature 295
“thoroughly vicious measure,”186the Bill would have transformed the process for determining the winner of the1800and subsequent presidential elections.
It would have subordinated the Electoral College to a Committee, comprising six Senators, six Representatives, and the Chief Justice. The Committee was to meet in secret and review the Electoral College balloting for President and Vice President. It would then have the final power to determine which electoral votes to count or disallow, to throw out electoral ballots deemed illegal, and thus to determine which candidate had been elected President.
This Committee determination was to be final and beyond review; there was to be no appeal.187
The Federalists controlling the Senate had tried to keep the contents of the Bill secret by distributing copies of the Bill only to members of the Senate.
In an episode reminiscent of contemporary America, a copy was leaked to Duane. He promptly published the full text in the Aurora and vigorously attacked the Federalist conduct. The Senate promptly approved the appoint- ment of a special Committee on Privileges and directed the Committee to ascertain how Duane got possession of the Bill. The Committee adopted a resolution finding him in contempt for the publication, characterizing it as “false, defamatory, scandalous, and malicious; tending to defame the Senate . . . and to bring them into contempt and disrepute.”188
The Senate also summoned Duane to appear before it and defend his conduct in attacking the Senate and one of its committees. He appeared and requested counsel. This was approved, and Duane arranged for two prominent Republicans – Alexander James Dallas and Thomas Cooper – to represent him. However, when Duane’s counsel were denied the opportunity to chal- lenge the Senate’s jurisdiction or to provide justification by demonstrating the truth of his assertions, they withdrew.
Duane thereupon wrote to Thomas Jefferson, then Vice President, that the lawyers he desired would not appear because of the restrictions on their defense and informed the Senate that he would not further attend the pro- ceedings. On March 26, 1800, the Senate by a largely partisan vote of 16 to 12held him guilty of contempt for violation of theorder to appear (not the underlying libel). It approved the issuance of a warrant, duly signed by Thomas Jefferson as Vice President, for a marshal to take him into custody.
However, as noted, Duane went into hiding and successfully evaded service
186 James Morton Smith,Freedom Fetters: The Alien and Sedition Laws and American Civil Liberties 289(1956) (hereinafter J. M. Smith).
187 6C Annals of the Congress,6th Cong.,1st Sess.124(1800).
188 Seesuprach.4, at119–120.
by the process server until the end of the session. Failing to apprehend Duane before adjournment, the Senate was impotent. However, the Federalists also controlled the White House. Thus, just before Congress adjourned in May 1800, the Senate Federalist leadership turned to President Adams for help.
It called upon him to take the necessary steps to have Duane indicted, and Adams did so. Duane was promptly indicted for a criminal libel of the Senate.
However, the case did not come to trial before the1800election, and, after the election, the victorious Jefferson ordered the case discontinued. (This episode in the Duane story has been previously reviewed in Chapter4of the prosecutions under the Sedition Act.)189
Reviewing the judicial experience in this early period of the Republic, Story, writing in1831, concluded that recognition of the inherent power of the legislature to punish contempts had been upheld by the highest courts in both the United States and England, citingAnderson v. Dunn, among other cases. He also reviewed the cases in the New Republic190in which the House of Representatives had punished “contempt[s] committed within the walls of the house.” Although Justice Story also referred to the attempted punishment of Duane by the Senate for his out-of-chamber contemptuous publications, he does not discuss whether this very different type of contempt presented a different issue.191
b. The Evolution of the Doctrine in the Federal Courts
Twenty years after theDuaneepisode, a House of the Congress in1818was again confronted by the attempted bribery of a member and had to consider the use of its powers of contempt. A lobbyist, Col. John Anderson, representing people in Michigan, allegedly offered a $500 bribe to a Representative. A storm of outrage broke out, with the House debating for several days whether it had the inherent power to punish for contempt. After agreeing by a vote of 119to47that it had the “power to arrest, examine, and punish” the offender, it conducted a trial. After hearing testimony by Gen. William Henry Harrison (later President) and others that Anderson had an “unblemished character”
and “displayed during the war much courage and zeal in defense of his
189 SeeCh.4, notes172–175.
190 In addition to the1795imprisonment of Randall for an attempt to corrupt a member (1St. G.
Tucker,Blackstone’s CommentariesApp.200–205note), these included the1796imprisonment of an unidentified person for challenging a member to a duel (T. Jefferson, Manual §3); Anderson v. Dunn,19U.S. (6Wheat.)204(1821),1821U.S. LEXIS358(attempted bribery)); and the1832 reprimand of Sam Houston for an assault upon a member for words reflecting on Houston’s character.See2Story,Commentaries, note179, at §845.
191 See2Story,Commentaries, note179, at §845.