Richard Nisley

Minnesota Rag: the bizarre case of Near v. Minnesota
History - American Released - Nov 10, 2018
It was the least likely of cases to come before the U.S. Supreme Court. The defendant Jay Near did not have the money nor the inclination to appeal his case all the way to the Supreme Court. What he wanted was to have a gag order lifted so he could resume publication of his newspaper, a scurrilous rag known as the Saturday Press. Only events played out far differently than he or anyone could have imagined. The ACLU took an interest in the case, and the publisher of the Chicago Tribune put up the money to pay legal fees to carry out an appeal.

The Supreme Court agreed to hear the case but the chances of a favorable ruling did look promising until two conservative judges died within days of each other. As fate would have it, president Herbert Hoover appointed two moderates to the bench, one of whom would end up writing the Court’s majority opinion. In 1931 Near v. Minnesota was decided 5 to 4 in Near’s favor—a decision that bears directly on freedom of the press today. In the book, "Minnesota Rag" journalist Fred W. Friendly does a bang up job in recounting Near’s incredible story from muckraking journalist to First Amendment hero, in a whirlwind 179 pages.

The Twin Cities of 1920s Minnesota was, according to a cop on the beat at the time named Ed Ryan, a “wide open town with gambling joints, slot machines, houses of prostitution . . . You name it we had it . . . When you see slot machines and gambling all over the place, there has to be a pay-off (to public officials).” The respectable newspapers, with a number of reporters on the take, turned a blind eye to the corruption. Not publisher Howard A. Guilford. He practiced a brand of journalism that, as the author put it, “tattered on the edge of legality and often toppled over the limits of propriety.” Enter Jay M. Near, who joined his crusade as co-publisher. He ratcheted it up a notch—several notches—by indulging his anti-Catholic, anti-Semitic, anti-black, and anti-labor prejudices in his seamy accounts of wide-spread city corruption. Despite this, much of what the two men published was true, or at least more true than false.

Rather than go after the paper for libel, the state’s attorney general got a restraining order to stop publication. Backed by a newly-enacted Public Nuisance Law—popularly known as the “Minnesota gag law”—the judge ordered the Saturday Review to cease publication. Guilford and Near appealed their case up through the Minnesota appeals court system—losing each round—until reaching the Supreme Court. By then, Guilford had dropped out, disappointed and exhausted from the process, and by then the ACLU, and Robert McCormick, the publisher of the Chicago Tribune, had stepped in to take up their cause. Though disgusted with much of the content of the Saturday Press, the ACLU focused their attention on the Public Nuisance Law, citing is as “a menace to the freedom of the country,” and singled out a phrase that would become central to the High Court’s decision: “prior restraint.” What drew McCormick’s interest was his zeal for protecting the First Amendment guarantee of freedom of the press.

Had Near’s appeal reached the Supreme Court one year earlier, it’s likely he would have lost, due to the conservative majority then presiding. But with the sudden deaths of Chief Justice William Howard Taft and Associate Justice Edward T. Sanford, the Court adopted a more moderate view with the appointments of Owen T. Roberts and, as the new chief justice, Charles Evans Hughes. Hughes appointed himself to write the Court’s majority opinion.

Hughes scolded the plaintiffs—“whose character and conduct remain open to debate and free discussion in the press”—for not seeking legal remedies for false accusations “in actions under libel laws for redress and punishment, and not in proceedings to restrain the publication of papers and periodicals.” Further on he wrote: “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.

“Judgement reversed,” he concluded.

The term “previous restraint” would morph into “prior restraint” and become central to a series of landmark decisions, particularly New York Times Co. v. U.S., better known as the Pentagon Papers case.

Final note: Near v. Minnesota marked a significant change in the Court’s direction, away from conservative judicial activism that had undermined the working class, the civil rights of minorities, and free speech, toward a more liberal era of judicial restraint, signaled by West Coast Hotel v. Parrish (1937), better known as "The switch in time that saved nine,” where, for the first time the Court upheld a state minimum wage law.

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