Chapter 19

I HADN’T BEEN Editor of The Press very long when I got into my first major piece of trouble. On July 15, 1929, I stood before Judge Frederick P. Walther in his Common Pleas Court. At my side was Carlton K. Matson, Chief Editorial Writer of The Press. We were there as defendants.

The Judge had cited us for contempt and had decided he would sit both as judge and jury in his own contempt action. Matson and I were in contempt, he insisted, because The Press had published a few days earlier an editorial which had this caption: “If This Be Contempt.”

The editorial leveled both barrels at the Judge because of a court order he had issued at the instance of a syndicate of gamblers who owned a Cleveland racetrack. The purpose of the order, we contended editorially, was to interfere with the Sheriff’s obligation to do his sworn duty.

It was illegal to bet at a race track in Ohio. Yet betting was going on at this track, which the gambling syndicate had picked up for a song. The betting was not only in itself illegal; it was rigged against the betters. The Press smashed at the gamblers and the track. The Sheriff made a  halfhearted attempt, under Press prodding, to stop them.

One Saturday morning I had received a telephone call from a long-time friend in city politics. In guarded tones, obviously talking where he didn’t wish to be overheard, he advised me to have someone watch Common Pleas Court during the noon hour — particularly, he added, Judge Walther’s Court.

Newspapers receive tips like that frequently. Some of them turn out to be valuable, other simply lead to wild-goose chases, but they are all checked. We sent a man around to Judge Walther’s Court.

At noon, just before the Judge was leaving for lunch, attorneys for the gambling syndicate appeared. They asked the Judge to sign a writ, saying they were in a hurry. Their claim was that the Sheriff intended to wreck their race track. They advised the Judge, further, that the particular type of betting in progress at the track was conducted under an arrangement known as “the contribution system,” which, they assured him, was perfectly legal.

The Judge apparently took the word of the gamblers’ attorneys, for he said he didn’t know about the situation personally. He picked up a pen and wrote a few extra words on the order which had been prepared and submitted on behalf of the gambling syndicate. In effect the Sheriff was ordered not to confiscate anything at the race track, unless the betting was “unlawful.”

The Press blasted the Judge’s order. In our editorial we described both the Judge and the Sheriff as pawns for the gamblers. In part it said:

This judge issues an if-and-and injunction which is either monstrous, or ridiculous. If it enjoins the Sheriff from doing his sworn duty, it is monstrous. If it merely enjoins him from interfering with a legal enterprise, it is ridiculous. The law already protects legal enterprises.

Undoubtedly, what the injunction amounts to is really a bluff. Some might call it a feint. Walther should know this, if he knows any law at all. The Thistledown gang certainly knows it. But the Thistledown crowd is trading on your natural lack of nerve, Sheriff. They figure that you won’t stand up against a judicial injunction, no matter how much of a travesty it is upon its very name.

When our trial came up, the courtroom was so crowded that the doors had to be shut. It was filled with lawyers, clerks, reporters, shysters, legislators, councilmen, bailiffs, stenographers, prosecutors, fixers, loafers, and some of the gambling syndicate whose lawyers had duped the Judge into issuing the absurd writ.

The case instantly attracted national attention. Reporters from papers all over the country were there. William Randolph Hearst went to Page One on all of his newspapers with an editorial, from which I quote:

It is astonishing that in this Republic, which sought to abolish tyranny, there should still exist judicial tyranny, exercised through the power to punish for contempt of court. The tyranny of judges can be just as great as the tyranny of kings.

Hundreds of similar editorials were published.

Tempers flared in the courtroom. John A. Cline was chosen by Judge Walther to represent him. He was a sharp-tongued lawyer with whom The Press had tangled on many occasions. He was also quick, resourceful, and able. The Press was represented by my old friend and adviser, Newton D. Baker. The calmest and most relaxed man in the courtroom was Mr. Baker.

Cline argued that the law had been violated, that the Court had been made to appear contemptible in the public eye, and, therefore, that we, Matson and I, should be given the full limit. Mr. Baker argued that The Press had exercised its right to comment upon the behavior of public officials, including the Court, and that it was fair and justified comment.

The case took days. It took volumes of testimony. It took long and tedious examinations. The time came for the final arguments. Judge Walther adjourned for the day saying that the arguments would be heard when Court convened the following morning. The lawyers gathered up books and papers to prepare for the arguments — all except Mr. Baker. He simply put on his hat, excused himself, and said, “I’m going home and read a book.”

Few in America equaled Newton D. Baker’s avidity as a reader. He had one of the most extensive personal libraries in the country. Visitors at his home used to joke about the fact that the contents of the hundreds of volumes stacked on shelves reaching to the ceiling had been transferred to the mind of so tiny a man. Reading was his sole relaxation.

I called his home at nine o’clock in the evening on the pretense that I wished to ask a question about the Walther case. Actually, I called simply to allay my misgivings. The case was important to The Press — and to me. I had been Editor only a short time, and already the paper was in trouble. Also, this was a big issue, and we felt that the underlying principle was too great to be jeopardized.

Mrs. Baker answered, and explained, “Louie, he fell asleep an hour ago with a book in his hand.”

I asked what book it was.

“One of his favorites,” she said. “Shakespeare’s Midsummer Night’s Dream.”

I didn’t go to sleep that night nearly so peacefully, nor so soon, as Mr. Baker. I had my own midsummer night’s dream. It was more like a nightmare.

The following morning I was in the courtroom early. Mr. Baker came in just before Judge Walther opened Court, and the Judge motioned to him to proceed with his argument.

Mr. Baker rose. He looked smaller than ever as he stood before the high bench, his thumbs tucked in the corners of his trousers’ pockets. He had no notes. He had taken off his glasses. In a singularly calm voice, he then presented what lawyers all over America agree is the classic argument of modern times in behalf of a free press and free speech. In precisely phrased English, documented by innumerable cases which he called to his mind while on his feet, without resort to law book or note, the famous Cleveland lawyer held the entire courtroom — including Judge Walther himself — spellbound for hours.

Mr. Baker based his argument upon preserving “the American prerogative of criticizing any, and all public officials, as long as there is no interference with justice.”

“Originally,” he explained, “chancellors were representatives of sovereigns, and to speak ill of the chancellor was to speak ill of the sovereign. There was a time in England when no man above the level of a dark cellar dared speak ill of Lord Jeffrey. Germany has the crime of ‘lese majesty.’ Italy prohibits any words of criticism directed at its ruler. But not so in a free country, unless it has the effect of hampering justice.

“Rigid application of the contempt laws goes back into the dark days of history, to the days when the judge was the representative of the monarch, and the public was efficiently gagged. The strength of the American government lies in the fact that citizens may criticize their officials to their heart’s content, unless the criticism interferes with the performance of duty and the administration of justice.”

Mr. Baker launched into an attack on gambling, and, standing before Judge Walther, he sharply criticized the Judge’s order. He described the Judge as a dupe of his friends. When the Judge protested, Mr. Baker read into the record laudatory remarks the Judge had made about these same friends upon many occasions.

“There never has been such an injunction in the history of equity practice in this country,” Mr. Baker said, his chin jutting out toward the Judge for the first time in the proceedings. “If you can produce anything like it, I will waive the remainder of the argument.”

He asked the Judge to cite such a case. The Judge remained silent.

“Whether you know it or not, you were induced by the agitation of your friends to interpose the powers of this Court, the Common Pleas Court, between the Sheriff and the performance of his duty,” Mr. Baker said, his voice rising in emphasis.

Judge Walther half rose on his bench to protest that he did not restrict the Sheriff in the performance of his sworn duty.

“Then,” thundered back Mr. Baker, “you didn’t do anything at all, and, therefore, the editorial was right on either or both counts in describing your injunction as ‘monstrous’ or ‘ridiculous.'”

Judge Walther found Matson and myself guilty of contempt. He sentenced each of us to serve thirty days in jail and each to pay a fine of $500, and we were promptly whisked off to the County Jail.

By a curiously perverse circumstance, we had been criticizing the Sheriff editorially, not only for his half-heartedness in going after the gambling syndicate, but also because he had bought enough apple butter to feed twenty times the number of prisoners in his custody. We had thus made “apple butter” almost a household byword in the town.

When Matson and I were being booked at the County Jail, jail attendants shouted:

“Feed them apple butter!”

Mr. Baker came to our rescue before we were put behind bars, and we were released on bail. He notified the Court that he intended to take the case to a higher court.

We went straight back to The Press office. In the very next edition we carried an editorial under the heading: “We Would Do It Again.” The editorial in part read:

The principle for which we were fighting was that of justice. We made our comment in what we thought was the furtherance of justice, not its hindrance. We have made no retraction or apologies. We intend to make none.

If we have to pay the price of thirty days in jail and $500 fine, we consider it a small price to pay in a fight for a principle. Journalism is still a profession. Considerations of right and honor make it that. There comes a time when a word of common honesty, without consideration of hazard, is the greatest contribution a newspaper can make to its community.

That editorial, no matter what the outcome of the contempt case, was our position. Not only was it our position in that case; it has been our position during all the time that I have had anything to do with the paper.

The case went to the higher court, and in a scathing reversal of Judge Walther his verdict of guilty against us was set aside. The decision of the Court of Appeals included the following remarks:

Now the thought in the mind of the Editor of The Press evidently was that here was a situation which called for strong remarks; and one must admit that in the editorials they did give utterance to strong remarks — but when one thinks of a judicial officer exercising the strong power of injunction to prevent an officer, elected and sworn to enforce the criminal law — I say, when one thinks that a court grants an injunction against said officer performing his duty, one cannot help but think that such action did call for strong remarks.

We think that the court erred in sitting in this case and in hearing the evidence. He could have plainly sent it to another judge. We think he was not in a fit condition to give unbiased judgment. He sought to wreak vengeance upon the plaintiffs. Whether the court’s order was designed to befuddle the Sheriff’s mind we don’t know. Many sheriffs would have been befuddled by such a writ. The order was not worth the paper upon which it was written; and if the order was not worth the paper upon which it was written, then how could a comment, however severe, upon the paper, be contempt.

We had won our first major fight for a principle, since I had become Editor of The Press. It was by no means the last. It had been a hard one, but we had been brilliantly defended by Newton D. Baker.

There was an interesting sequel — one which was to test our ability to set aside personal feelings and to make our judgments exclusively upon fair and impartial considerations.

Judge Walther served out several remaining years of the term during which he had cited us for contempt, and then came up for re-election. The Press was confronted with the decision of what to do. In the several years subsequent to his action against us Judge Walther had shown himself to be a good judge. He resisted pressure on several notable occasions where he might have yielded, which was proof to us that he was conscientiously doing his best.

Many people assumed that The Press would, of course, be opposed to Judge Walther’s re-election in view of his action against us, and particularly in view of the vicious remarks he had made in open court about the paper and myself. However, his opponents were not, in our opinion, as competent as he. The Press endorsed Walther, and he was re-elected.

He came into my office after our editorial endorsement appeared, and said, “Louie, I don’t know whether I will win or lose for re-election, but 1 want you to know this. The fight we had was good for me. I hope that it was good for you.”

It was, as Judge Walther suggested, “good for” me. It was a lesson in fighting hard when the principle justified it; it was also a lesson in not letting that fight cloud later judgments.