The coalescence this month of two events concerning freedom of expression owe much to Minnesota.
They consist of President Donald Trump’s short-lived and unsuccessful effort earlier this month to stop publication or distribution of the best-selling “Fire and Fury” exposé of the White House and its chief occupant and the opening of the highly acclaimed movie “The Post” a week later.
The insinuation by the president’s attorney that a lawsuit would be brought against the book’s author, Michael Wolff, and the publisher, Henry Holt and Company, was a hollow threat. For nearly 90 years, the law in this country has barred these censorial attempts, with rare exceptions.
That proscription stems from a Minnesota lawsuit that established the principle of no “prior restraint” of communications under the freedom of speech and press provision of the First Amendment to the U.S. Constitution.
The landmark litigation, Near v. Minnesota, began in the Roaring Twenties and extended into the early Depression days of the 1930s. It concerned Minnesota’s so-called “Public Nuisance” law, a measure permitting closure of publications deemed “malicious, scandalous, and defamatory.” The law was enacted by the state Legislature in response to a handful of newly arisen newspapers that viciously accused public officials in the Twin Cities and Duluth of corruption and other perfidy.
But unlike the muckraking predecessors of the pre-World War I period, the “rags,” as they were derisively called, were laden with vitriolic racial and ethnic diatribes with heavy doses of anti-Jewish fervor at a time when Minneapolis was earning its national reputation as the “capital of anti-Semitism.”
The nuisance law allowed the authorities, led by then-Hennepin County Attorney Floyd B. Olson, later to become an esteemed liberal governor, to shutter the most notorious paper in Minneapolis, an effort upheld by a local judge and affirmed by the state Supreme Court.
But the closure was overturned in 1931 by the U.S. Supreme Court, which held the law unconstitutional in Near v. Minnesota. The majority opinion was written by Chief Justice Charles Evans Hughes, the unsuccessful Republican candidate for president in 1916. He began by characterizing the “suppression” of a publication as a matter of “grave importance.”
Reaching back to 17th century English law and the echoes of the Revolutionary War, he condemned the law for creating “an effective censorship” that constituted impermissible “prior restraint” of freedom of expression in violation of the First Amendment.
While that proposition seems self-evident today, it was not so at that time. To reach that result, the High Court had to apply the First Amendment to a state law, which had never before been done because it was commonly understood at the time that it and the other provisions of the Bill of Rights applied only to the federal government but not to states or other local units of government. In fact, a Supreme Court ruling 16 years earlier, also a case from Minneapolis, recognized that limitation on another topic: the right to a jury trial in civil cases.
But the Near case strayed far from that principle in holding the state law susceptible to the First Amendment. Brushing aside contrary precedent, the chief justice deemed it “no longer open to doubt” that the constitutional guarantee of freedom of expression applies to the states, the first in series of High Court rulings that ultimately led to imposition of nearly all of the provisions of the Bill of Rights across the board to all government bodies.
Further, the seminal case was nearly decided the other way; it was a 5-4 vote of the justices with Minnesota’s first high court jurist, Pierce Butler, writing the dissent. Joined by three archconservative colleagues, he opined that the law was a constitutionally permissible proscription on illicit journalism because “distribution of scandalous matter is detrimental to public morals and the general public.”
Nor was the majority ruling unqualified in castigating censorship. It noted some examples of expression not protected by the First Amendment, including obscenity, defamation, and national security concerns such as publication of military matters like schedules of transport ships and the “location of troops.”
Those restrictions have, to be sure, been retrenched significantly over the years, as the Near case has become the leading precedent not only against “prior restraint” but for broad First Amendment protections for expression through speech and press in all forms, including today’s social media.
Its most prominent application came 40 years later when the Nixon administration sought to prevent publication of the Pentagon Papers, revealing ineptitude, deceit, and secrecy by government officials in conducting the Vietnam War and selling it to the public. The “location of troops” phrase from the Near case was the keynote of the attempt, claiming that publication of the purloined documents would jeopardize national security and engaging in diplomacy and foreign affairs.
But the Supreme Court, in the case entitled New York Times Co. v. United States, did not buy the argument. With praise for freedom of expression, it rejected the attempt to suppress publication of the papers largely on grounds of the Near rationale against “prior restraint,” as vivified by the “The Post” movie that reached the Twin Cities last weekend.
President Trump’s misbegotten attempt to stop publication of the “Fire and Fury” book, which understandably spurred its sales, was not only of questionable strategy but legally doomed. Any lawsuit would have been far from a winner because of the Near case from Minnesota and the Pentagon Papers case that reaffirmed its vitality.
Marshall H. Tanick is a Twin Cities constitutional law attorney and historian.
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