Opinion: When truth was no defense

Colorado has a way of gaining national attention over the right to free speech.

This month, the U.S. Supreme Court is expected to issue a decision in the closely watched case of 303 Creative v. Elenis, which involves a Denver-area web and graphic designer who is opposed to same-sex marriage. The designer, Lorie Smith, argues that Colorado’s anti-discrimination law would violate her free speech rights by compelling her to create website designs for the wedding of a gay couple.

Generations ago, long before websites or legally sanctioned same-sex marriages, a prominent Coloradan also took a momentous free speech case to the Supreme Court.

The case had its roots in the state’s 1904 elections, when Republicans in the Colorado General Assembly, with their allies on the state Supreme Court, alleged that state elections had been tainted by widespread fraud. The Republicans leveraged favorable rulings by the courts and State Board of Canvassers to successfully capture the governorship, as well as cement their majorities in the legislature and Supreme Court and even expel local Democratic officeholders in reliably Democratic precincts of Denver.

This political maneuvering enraged Thomas Patterson, the publisher of both the Rocky Mountain News and the Denver Times. A diehard Democrat and unyielding advocate for the working class, he was an influential politician who served a term in the U.S. Senate in addition to his newspaper duties.

Patterson never shied away from a good fight — he engaged in physical brawls with the mayor of Denver and the publisher of the Denver Post during his long and colorful career — and he accused the state’s political and business leadership of stealing the elections. As explained in a 1995 biography, Tom Patterson: Colorado Crusader for Change, Patterson’s newspapers turned their fire directly on the state Supreme Court, claiming the justices were in cahoots with corporate agents. Patterson even ran a front-page cartoon in the Rocky Mountain News showing the court beheading Democratic officials, with the chief justice labeled “The Lord High Executioner.”

This proved to be a dangerous gambit at a time when judges in many states claimed the authority to punish newspaper publishers and editors for criticizing judicial proceedings. Sure enough, the very Colorado Supreme Court justices whom Patterson had attacked in print swiftly retaliated by citing the publisher for contempt of court. They swept aside his attempts to prove the truthfulness of the newspaper coverage and fined him $1,000 — a hefty sum when the weekly wage for an adult male worker averaged about $11.

Patterson, emphasizing the right to free speech, appealed to the U.S. Supreme Court. The 1907 case, known as Patterson v. Colorado, set an important precedent because the nation’s highest tribunal had rarely weighed in on First Amendment matters or addressed the question of whether a newspaper could be penalized for factual content.

Patterson’s legal team contended that no one could be punished in the United States for telling the truth. The justices, however, saw the matter differently. They rejected Patterson’s appeal in part because, they reasoned, federal courts should not second-guess state judges in such a case. Moreover, Justice Oliver Wendell Holmes Jr., who wrote the majority opinion, took a remarkably narrow view of the First Amendment. He wrote that newspapers could indeed be punished if they criticized courts in a way that would “tend to obstruct the administration of justice.”

The ruling, as it turned out, would have fateful consequences. Just a decade later, Patterson v. Colorado helped provide legal sanction for the suppression of free speech when the United States entered World War I. President Woodrow Wilson in 1917 and 1918 signed a pair of laws, the Espionage and Sedition Acts, making it a crime to criticize the American war effort.

More than 2,000 people would ultimately face prosecution, some for merely questioning if the war was worth it. In Denver, a tuberculosis patient named Perley Doe was sentenced to 15 months in federal prison for engaging in such prohibited activities as mailing a letter to his sister in Boston in which he compared military service to slavery. The federal courts, relying on Patterson v. Colorado and other precedents, consistently upheld the convictions.

But the crackdown also exposed the absurdity of policing even innocuous expression. In one of the most infamous cases, a film director named Robert Goldstein faced 10 years in prison because his 1917 movie about the American Revolution portrayed the British in an unflattering light at a time when the British had become important allies during World War I.

Holmes proposed a more expansive view of the First Amendment after World War I ended, and other Supreme Court justices eventually followed his lead. By the 1960s, the court decisively entrenched the right to free speech in a pair of landmark cases shielding the New York Times in an Alabama libel case and siding with a Ku Klux Klan leader in Ohio who had faced charges for making racist and anti-Semitic statements.

In recent decades, the justices have applied the First Amendment in ways that would have been unrecognizable in the days of Patterson v. Colorado. They declared a constitutional right to burn the American flag and defined campaign contributions as a form of free speech. Just five years ago, the court reasoned that a Lakewood baker had the right to refuse to create a custom wedding cake celebrating the marriage of a gay couple — a ruling that may hold implications for the current case of 303 Creative v. Elenis.

Such decisions, while winning the approval of many First Amendment advocates, have at times infuriated partisans on both the left and right of the political spectrum.

The expansion of free speech rights came far too late for Patterson. Having lost his appeal in 1907, he dutifully wrote a check for the $1,000 fine — plus $424.40 in court costs. But at a time when free speech meant the right to criticize those in power, the fiery publisher refused to concede any wrongdoing.

“I am not now and never will be ashamed of printing only the truth about public officials, whether they be judges or governors or legislatures,” he wrote in the Rocky Mountain News on the day after the U.S. Supreme Court handed down its ruling. “The truth only offends those whom it hurts.”

David Hosansky, of Louisville, is a historian, science writer, and former senior writer for Congressional Quarterly.