Press v. Bench

Last week Common Pleas Judge Frederick P. Walther of Cleveland answered "No" to the question: Can a newspaper editorial criticize a court-order? (TIME, July 22). For criticism of a Walther court-order he fined Editor Louis B. Seltzer of the Cleveland Press and Chief Editorial Writer Carlton Kingsbury Matson, $500 each, ordered them to spend 30 days in jail.

Attorney for Defendants Seltzer and Matson was Wilsonian Secretary of War Newton Diehl Baker, able orator. His pleas: 1) That freedom of the press was in danger. 2) That the criticized Walther injunction, which restrained Sheriff Hanratty from closing down Thistledown Race Track "if same be not in violation of the law,"* was no injunction at all. 3) That the editorial was not contempt, because it did not interfere with justice in view of the fact that the case was not still pending. Furthermore, said Lawyer Baker:

"When these editorials! were read, Your Honor made the observation that, if what was said in those editorials was true, then Your Honor, as I quote your own phrase, 'was not fit to sit upon that bench' . . . As a matter of fact, the question of a judge's fitness to sit on a bench cannot be decided by him. ... If a man be a judge, and if some other man thinks he is an improper person to be a judge, the judge does not become proper by restraining the person."

Deaf to polite, subtle Baker arguments was Judge Walther. After sentencing the Pressmen, he refused stay of execution, ordered his critics to start serving their prison terms at once. Defendants Seltzer and Matson issued a statement. In closing, it said:

"Thirty days in jail and a $500 fine are a small price to pay, if such a price must be paid, in the contest revolving around such a principle."

But not for six or seven months, at least, will they have to start their 30 days, if at all. Court not long over, Lawyer Baker went before Appellate Judge Willis Vickery, who released the Pressmen on $1,000 each to await an autumn court with many a case preceding theirs on the busy Vickery calender. It will be the second time a Walther contempt sentence has come before Judge Vickery. The first time Judge Walther was reversed.

Other newspapers, interested in a question so close to them, gave the case top-page headlines, columns of space. Many published the Baker plea in full. Some editorialized. Said the New York Herald Tribune. "It is difficult to see how it [the editorial] can have interfered with the administration of the law. . . ." Most friendly was the Cleveland Plain Dealer toward its rival and neighbor. In part it said: "The Plain Dealer congratulates the editors ... for bringing a vital public issue before the people. It congratulates Newton D. Baker for his masterly presentation of the question. . . . Walther's so-called injunction . . . was an inexcusable act. . . . [He] indulged in meaningless phrases. . . . Unless newspapers are to be permitted to point out such facts as these--to tell a judge he blunders when reason shows he blunders--newspapers will lose one of their most important functions. . . ."

* Sheriff Hanratty threatened to close the track because of its "contribution and refund" system, whereby bettors get around the law by "contributing" to a "prize" for the horse they hope (bet) will win. If the horse wins the "contributor" gets a "refund" larger than his "contribution." Last week in Geauga County, next-door to Cleveland, the county prosecutor refused to interfere with the system at Bainbridge Race Track, explaining: "Every time a case is carried up, the State Supreme Court sets it aside." The same system is in use on tracks in Xenia, Toledo, Cincinnati.

/-Only one' editorial was in question but it was revised in different editions of the Press.