Looking back on Bridges v. California (1941) — Some random thoughts inspired by Floyd Abrams’ new book
The Bridges opinion was “a judicial Declaration of Independence for the First Amendment, freeing it from English law.” — Benno C. Schmidt
One sign of a good book is its ability to engage readers, to pique curiosity, and to urge one to return anew to something largely known but mostly forgotten. By that measure, Floyd Abrams’ latest book (The Soul of the First Amendment) is a valuable book.
In reading this so-called “modest essay” — Abrams tags it “ruminations about certain aspects of American constitutional law” — I was drawn back to a Bridges v. California (1941), the contentpt of court case involving the militant Harry Bridges, the then conservative Los Angeles Times, and their unrestrained comments on a then pending case.
Abrams devotes the better part of a concise chapter to this First Amendment majority opinion authored by Justice Hugo Black. The Court divided 5-4 with Justice Felix Frankfurter registering a stinging dissent.
Bridges is “a seminal but too-little recalled First Amendment case” writes Abrams. I agree. Many con-law casebooks do not even cite the case anymore.
After reading the Bridges chapter, which is rich with important observations and comments, I went back and did some research on the case. Here is what I found — several revealing facts nearly lost to time.
The Importance of a Forgotten State-Court Dissent: Does the name Douglas Lyman Edmonds (1887-1962) ring a bell? There is no reason it should except for the fact that he authored a powerful lone dissent when the California Supreme Court ruled on the case in 1939.
- Edmonds’ dissent drew in part on a 1928 Columbia Law Review article entitled “Contempt by Publication in the United States.” It was written by Walter Nelles (co-founder of the ACLU and co-counsel in Gitlow v. New York and Whitney v. California) and Carol Weiss King (one of Bridges’ lawyers and one of the founders of the National Lawyers Guild).
- After discussing British constitutional history, Edmonds wrote: “The concept of freedom of the press, stated by Blackstone, is completely foreign both in time and place to the fundamental principles of American institutions. The doctrine that ‘the liberty of the press … consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published’ . . . is a statement of the British law at a time when seditious libel was punishable as a crime; it is not the interpretation of a Constitution. Moreover, that law has been very differently declared in the last one hundred and twenty-five years. (See Chaffee, Freedom of Speech, (1920), 8 et seq.”
- And then following more extended discussions of federal and state laws (decisional and statutory laws), Edmonds declared: “The notion that contumacious publications have been subject to the summary power from time immemorial has been shown to be historically incorrect. Also, the experience of Pennsylvania and other jurisdictions where immunity of the press has long been maintained conclusively proves that no such power is necessary to maintain either the existence of courts or the respect for them. It is not necessary to the wholesome administration of justice in this state that judicial officers have uncontrolled discretion in passing upon alleged constructive contempts of court.”
- “The rights of freedom of speech and of the press,” Edmonds added, “have their roots deep in the soil of this nation’s organic law. Five days before the Declaration of Independence was proclaimed, the patriots of Virginia declared in their Constitution ‘that the freedom of the press is the great bulwarks of liberty, and can never be restrained but by despotic governments.’ For more than a century and a half our nation has consistently upheld this right of expression by a free people as a vital principle which the founders of our national and state governments stated in the respective constitutions as necessary to a democracy.”
- He closed his dissent with these words: “When free speech is fettered, liberty is a meaningless word.”
More, much more, can be said about this remarkable dissent, but that is a task for another day.
The Importance of the Counsel in the Case: Turning back the pages of history reminds us that two rather important ACLU lawyers represented Bridges in the U.S. Supreme Court:
- Osmond K. Fraenkel argued the case. Earlier, he represented the defendants in the Sacco-Vanzetti case and was one of the attorneys for Scottsboro boys. Fraenkel argued 26 cases in the Supreme Court. He was the lead counsel for the petitioners in De Jonge v. Oregon, Kunz v. New York and Schneider v. New Jersey. [Roger K. Newman, ed., The Yale Biographical Dictionary of American Law (2009), p. 200]
- A. L. Wirin was with Fraenkel on the Bridges brief. Wirin was the first full‐time lawyer for the ACLU and served as chief counsel of the ACLU of Southern California for four decades. As Sam Walker noted: Wirin “particularly distinguished himself during the Japanese-American internment when he and the ACLU affiliate sought an aggressive challenge to the government’s catastrophic program.” Wirin was counsel for the petitioner in Korematsu v. United States
→ Here is an excerpt from the Fraenkel-Wirin brief, a passage that apparently got the attention of Justice Black when he authored his majority opinion:
“The ‘Inherent Tendency’ and ‘Reasonable Tendency’ rule applied by the California Courts to publications pertaining to issues pending in the courts are too vague and indefinite… They offend due process of law and deprive the petitioner of freedom of speech and freedom of the press… Only the application of the ‘clear and present danger’ or the ‘actual obstruction’ principle to publications alleged to be in contempt of court will reconcile the independence of the judiciary with freedom of the press.”
The Importance of Fate: The Bridges case was first argued on Friday October 18th and on Monday October 21st of 1940. At the time of the conference, Chief Justice Charles Evans Hughes found it to be an easy case. In conference he was straightforward: “The facts here transcend the limits of reasonable discussion and I think [the lower court] should be affirmed.” (Roger K. Newman, Hugo Black: A Biography (1994), p. 290). With that he assigned the majority opinion to Justice Frankfurter with Black, Reed and Douglas in dissent. But then Fate changed things.
As Anthony Lewis noted, on February 1, 1941, Justice James McReynolds retired. “That left a five-to-three majority for affirmance.” And then Justice Frank Murphy jumped ship and joined with the dissenters. That left the vote at four-to-four. “At the end of the term,” Lewis added, “Chief Justice Hughes retired, leaving only three votes to affirm the contempt convictions.” [Anthony Lewis, “Justice Black and the First Amendment,” in Tony Freyer, Justice Hugo Black and Modern America (1990), pp. 237-252.]
And then two new members joined the Court: Justices James Byrnes and Robert Jackson. Byrnes voted to affirm, Jackson to reverse. The result: a new majority with Black writing for the Court and Frankfurter dissenting.
The Importance of the Date: The 5-4 ruling in Bridges v. California came down on December 8, 1941 — the day after the attack on Pearl Harbor. That was also the day when President Roosevelt spoke to Congress at noon to request a declaration of war from the House.
Meanwhile, at the Court there was great division. On the one hand, Justice Black declared that “[h]istory affords no support for the contention” that speech could be abridged merely because it was directed at a judge sitting in a case. On the other hand, Justice Frankfurter was adamant that “[o]ur whole history repels the view [that a] newspaper to attempt to overawe a judge in a matter immediately pending before him.”
While war was afoot in the nation, freedom was being debated in the nation’s highest Court.
The Importance of Four Unpublished Sentences: In a draft of his original dissent, Justice Black penned the following words, which never appeared in his majority opinion:
First in the catalogue of human liberties essential to the life and growth of a government of, for, and by the people are those liberties written into the First Amendment to our Constitution. They are the pillars upon which popular government rests and without which a government of free men cannot survive. History persuades me that the moving forces which brought about the creation of the safeguards contained in the other sections of our Bill of Rights sprang from a resolute determination to place the liberties defined in the First Amendment in an area wholly safe and secure against any invasion — even by government. [Howard Ball, Hugo L. Black: A Cold Steel Warrior (1996), p. 191]
And then there was this line: Narrow abridgments have a way of broadening themselves. [Newman, supra, at p. 290, n. *]
The Importance of the Bridges Test: Justice Black harbored no fondness for Holmes’ clear-and-present danger test. Still, in Bridges he did give it a judicial nod of sorts, but then pointed beyond it:
What finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.
The Importance of Three Precedents: As Anthony Lewis saw it, Bridges was part of a trilogy of First Amendment cases that changed the conceptual landscape of American free-speech law. The other two cases were Near v. Minnesota and New York Times Co. v. Sullivan. Here is how Lewis put it:
- What Near did for our law of prior restraints from English tradition, and Bridges for our law of contempt, the 1964 decision in . . . Sullivan did for libel.
What is also key to these three rulings, and what also links them together, is that unlike earlier First Amendment cases that “focused on the harm speech could do,” Near, Bridges and Sullivan focused instead on “the good it could do.”
- “Chief Justice Hughes found affirmative reasons for a free press.”
- “Justice Brennan spoke of our ‘profound commitment to the principle that debate on public issues should be ‘uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'”
- And then there was Justice Black: “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.”
* * * * *
As Frankfurter told it, Justice Brandeis allegedly agreed with him and disfavored Black’s view in Bridges: “Black and Co.,” he had Brandeis saying, “have gone mad on free speech.” [H.N. Hirsch, The Enigma of Felix Frankfurter (1981), p. 158] Professor Hirsch noted that it was not “possible to verify this story.” [Id. at 240, n. 115].
True or not, one thing was certain: “Bridges cut deeply into Frankfurter’s sense of well-being.” [Id. at p. 158] And perhaps that explains FF’s need to find a purported ally in Brandeis.
Lewes was understandably skeptical: “I should not leave unquestioned any assumption that Justice Brandeis would in the end have disagreed with the Black view in Bridges if he had still been on the Court. No doubt fair trial was an important value for him, and he might well have been reluctant to limit the power of judges to punish comments threatening that fairness. But it is also true that Brandeis considered freedom of speech a positive good, and he made the case for that belief with compelling eloquence.” [Lewes, supra, at p. 245]
The battle between Black and Frankfurter continued for decades thereafter. Ultimately, however, the spirit of Brandeis’ free-speech jurisprudence pointed more towards Black’s expansive views than towards Frankfurter’s cramped ones. Perhaps that explains why Mr. Abrams began his book with an epigraph quote from Justice Black:
The very reason for the First Amendment is to make the people of the country free to think, speak, write and worship as they wish, not as the Government commands.
And to think that much of that heroic spirit traced back to Bridges . . . first in Justice Edmonds’s dissent, then in the work done by Fraenkel and Wirin, followed by the Black dissent that became a majority opinion, and ultimately capped by Tony Lewis’s revealing explanation of it all.