discussions.^[288])  While Professor Kurland did not review the historical record in any detail or depth,^[289] he asserted that the original understanding of press freedom under the First Amendment was basically Sir William Blackstone’s view that freedom of the press meant absence of prior restraint with no protection from criminal punishment for any publication deemed by a court to have a harmful tendency.

Professor Kurland enlisted an unlikely source in support of this view of press freedom: none other than Justice Oliver Wendell Holmes, renowned for his libertarian opinions after World War I urging a broad interpretation of the First Amendment.^[290] But a decade earlier, Holmes in 1907 wrote the majority Supreme Court opinion in Patterson v. Colorado,^[291] which proclaimed that freedom of the press under the First Amendment permitted criminal punishment on people for writing that was disliked by the authorities, without any proof of any connection to action. Patterson had published an editorial cartoon accusing members of the Colorado supreme court of corruption; the judges retaliated by jailing Patterson for criminal contempt of court. The U.S. Supreme Court upheld the conviction, with Holmes writing an opinion asserting that the First Amendment did not prohibit punishing people for accusing judges of corruption, even if the accusations were true.^[292]

The sole authority that Holmes cited in support of this

[288] Memo from Carolyn B. Kuhl to Tex Lehar, February 9, 1982, at p.2, found at http://www.archives.gov/news/john-roberts/accession-60-98-0832/035-chron...

[289] Kurland ignored all of the evidence set forth in this monograph to the contrary. Indeed, Kurland did not acknowledge or even reference Leonard Levy’s work, although at the time Kurland wrote, Levy was viewed by many as the leading authority on the early history of press freedom in America.

[290] Kurland, supra, 29 Drake LR at 5.

[291] 205 U.S. 454 (1907). Holmes cited Blanding as precedent for his narrow view of press freedom in Patterson. Holmes view was not unanimously accepted. The first Justice John Harlan dissented, arguing that the contempt conviction infringed on press freedom as protected under the First and Fourteenth Amendments. Justice Brewer also dissented on narrower grounds. Id., at 462, citing Commonwealth v. Blanding, supra.

[292] Holmes was very selective in his discussion of precedent. In particular he did not discuss a similar case to Patterson v. Colorado, which arose out of a federal judge’s jailing of a lawyer for contempt of court based on the publication of a newspaper article critical of he judge. This incident led to the judge’s impeachment by the House of Representatives. led to the judge’s impeachment by the House of Representatives. The impeachment seems to have reflected sentiment in Congress that the judge had violated the guarantee of press freedom. See Lofton, John, The Press as Guardian of the First Amendment (1980) at 65-76. The judge, James Peck, was acquitted by the Senate, apparently on grounds that his misconduct did not rise to the level of an impeachable offense, although there seems to have been no dispute it violated press freedom. A federal law was passed due to this affair, limiting contempt power of judges to acts in the presence of the court or actually obstructing administration of justice. 4 Stat. 487 (1831) reprinted in The Founders Constitution, Volume 4, Article 3, Section 1, Document 36. This law, called a “declaratory act” could be understood to mean that punishment for contempt based on publication of criticism of a court violated press freedom. See Ex Parte Paulson, 19 Fed. Cas. 1205 (E.D. Pa. 1835), reprinted in The Founders Constitution, Volume 4, Article 3, Section 1, Document 39 (holding that the declaratory act left the press free to publish material that might tend to influence or intimidate a federal court). Although Kurland asserted that Patterson v. Colorado reflected the original meaning of press freedom, see 29 Drake L.R. at 5, he did not discuss this historical evidence, included in a collection he himself edited, showing that earlier on it was indeed regarded as a violation of the press freedom guarantee to  use the contempt power to punish people for publishing criticism of courts.