This has not been a very good summer so far for President Donald Trump for numerous reasons, but it has been a good one for the First Amendment.
Two of the president’s legal fights to stop distribution of a pair of unfavorable books about him failed, and the reason he lost those battles is a landmark lawsuit from Minnesota. Meanwhile, the two books have been battling with each other atop the best-seller lists.
Neither of the president’s lawsuits was brought personally by him, but undoubtedly had his blessing. One, against “The Room Where It Happened,” was by the Department of Justice seeking to bar the high-profile account of Trump’s erratic antics in the White House, written by former national security adviser John Bolton. The other was a an ill-fated effort by the president’s brother, Robert, to suppress “Too Much And Never Enough,” an unflattering book about the president’s upbringing and pre-Oval Office days by their niece, Mary Trump, a psychologist.
Both suppression suits were brought under prior agreements. The one against Bolton was founded on his alleged violation of an agreement to allow pre-publication review by the administration to ferret out any sensitive national security secrets. The one against his niece was filed in probate court in New York, based upon a non-disclosure agreement (NDA) among family members signed years ago in probate proceedings regarding the death of the family patriarch, Fred, the president’s father.
Both challenges failed, but for different reasons. The Bolton book was allowed to be distributed over misgivings by the federal judge hearing the case in Washington because it was “already in publication … the damage is done.”
In the niece’s case, Trump v. Trump, a New York state surrogate court judge a few days later ruled that he lacked jurisdiction, prompting a new case that was re-filed in the state Supreme Court, the jurisdiction’s lowest level civil trial court, where a judge issued a temporary restraining order (TRO) barring publication. But an appellate court overturned the TRO on grounds that the book publisher was not a party to the NDA.
Despite their differences, the outcomes were similar – and not surprising. The courts’ refusals to prohibit the publications follow a long line of precedent. For nearly 90 years, the law in this country has almost continuously barred these censorial attempts.
Neither of these two cases turned solely on that precept. But the outcomes stemmed from a proscription in a Minnesota lawsuit that established the defense of no “prior restraint” of communications under the freedom of speech and press provision of the First Amendment.
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 Public Nuisance law, a measure known as the “Gag Law.” Enacted in 1925, the statute permitted closure by government authorities 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, Duluth and the Iron Range 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, anti-Black and ethnic diatribes with heavy doses of anti-Semitism, at a time when Minneapolis was beginning to earn what later became a national reputation as “the capital of anti-Semitism” in the United States. (Carey McWilliams in “The Mask for Privilege: Anti-Semitism in Hennepin County,” 1946.)
The 1925 nuisance law allowed the authorities, led by then-Hennepin County Attorney Floyd B. Olson, later to become governor, to shutter the most notorious paper in Minneapolis, The Saturday Press, an effort upheld twice by a Hennepin County judge.
The adversaries who squared off in this case were political as well as legal luminaries. Olson, from the north side of Minneapolis, later became an esteemed liberal governor of the state, even mentioned as possible presidential caliber before his sudden death of cancer in 1936 at age 45. The Press was represented by Thomas Latimer, who subsequently served a two–year term as mayor of Minneapolis, overlapping with Olson’s tenure as governor, both of the Farmer Labor Party, a forerunner of the DFL.
The lawsuit twice reached the state Supreme Court, which on both occasions rejected freedom of press challenges to the “gag” law. Initially, it deemed the measure an appropriate way to uphold “public morals” and the “public welfare,” equating scurrilous publications with other businesses such as “houses of prostitution,” lotteries and “noxious weeds,” among other unpleasantries in 1928. It relied only on the state free speech and press clause in Article I, § 3 of the Minnesota Constitution. But a year later, the tribunal in St. Paul reiterated that outlook under a newly raised First Amendment claim under the U.S. Constitution.
At that point, the challenger was about to drop the case and the newspaper, until Col. Robert McCormick, the conservative publisher of the Chicago Tribune, the self-proclaimed “world’s greatest newspaper,” stepped in and bankrolled his appeal to the U.S. Supreme Court.
The newspaper closure was overturned in 1931 by the Supreme Court, which held the law unconstitutional in the Near case. The majority opinion was written by Chief Justice Charles Evans Hughes. 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 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 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 in Minneapolis & St. Louis Ry. Co. v. Bombolis.
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 Supreme 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.
The seminal case was nearly decided the other way; it was a 5-4 vote of the justices. Minnesota’s first Supreme Court jurist, Pierce Butler, wrote a 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.”
But the foundation of the principle against “prior restraint” was laid.
Those restrictions have, to be sure, been retrenched somewhat 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, which revealed 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 1971 in New York Times Co. v. United States, did not buy the argument, rejecting it largely on grounds of the Near rationale against “prior restraint.”
Near is now considered by Supreme Court scholars to be one of the court’s most consequential cases.
Marshall H. Tanick is a constitutional law attorney and historian with the law firm of Meyer Njus Tanick.
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