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Rejecting prior restraint: 1931 ‘Near v. Minnesota’ case set important First Amendment precedent

Editorial page of the Minneapolis Saturday Press, October 25, 1927.

In early June 1931, the U.S. Supreme Court ruled that a little-known Minnesota statute was unconstitutional. The 1925 Public Nuisance Bill had been designed to close down newspapers deemed obscene or slanderous. The court’s decision set a national precedent for freedom of the press and censorship issues.

In 1925, as a reaction to personal attacks printed in John Morrison’s Duluth newspaper Rip-saw, State Senator Mike Boylan and State Representative George Lommen drafted a bill that quickly became law. The bill allowed a judge — without jury — to shut down a publication if it was deemed obscene or scandalous. Before the law could be used against Rip-saw, however, Morrison died.

Two years later, Howard Guilford and Jay Near began publishing the Saturday Press in Minneapolis. The paper was vehemently anti-Semitic and purported to expose government involvement with the criminal underworld. In particular, it attacked Police Commissioner Frank Brunskill and County Attorney Floyd B. Olson. As a result, Olson filed a complaint against the paper. Backed by the 1925 law, in November 1927 Judge Mathias Baldwin issued a temporary restraining order against the Saturday Press.

The case was brought to the State Supreme Court on April 16, 1928. Near’s lawyer, Thomas Latimer, argued that the Public Nuisance Law was unconstitutional. He claimed that it violated the right to freedom of the press guaranteed by the First Amendment; to trial by jury, guaranteed by the Sixth Amendment; and to due process, guaranteed by the Fifth Amendment (made applicable to the states by the Fourteenth Amendment).

The heart of the issue was the 1925 bill’s allowance for prior restraint of the press (e.g., enjoining a paper before it published anything slanderous). Existing libel laws punished publishers after the fact. The court, however, ruled in favor of the Public Nuisance Law; the order against the Saturday Press was thus upheld. Judge Baldwin made the temporary injunction against the paper permanent. This was then appealed at the State Supreme Court, which upheld Baldwin’s ruling.

Around this time, the nascent American Civil Liberties Union and Robert McCormick (the influential publisher of the Chicago Tribune and a staunch defender of the First Amendment) became interested in the case. Through McCormick’s pugnacious efforts, the American Newspaper Publishers Association threw their support behind Near, bankrolling the legal team to argue the case. With their help, the case rose to the national stage. On April 26, 1930, Near v. Minnesota was docketed at the U.S. Supreme Court. It was the first time a First Amendment case involving prior restraints was heard at the court.

The court itself had undergone significant change in March as a result of the deaths of Chief Justice William Howard Taft and Justice Edward Sanford. The Taft court was solidly conservative and would have likely spelled doom for Near’s case. Even after the appointment of two new justices, Owen Roberts and Chief Justice Charles Evans Hughes, the case was not a sure thing. Only Justices Oliver Wendell Holmes and Louis Brandeis could be counted on to side with Near. On the other hand, four justices were certain to support the law—most notably Minnesotan Pierce Butler, who would go on to pen a scathing dissent for the case.

In a strange twist, however, the Minnesota Legislature, prodded by Representative Lommen and newly elected governor Floyd Olson, discussed whether to repeal the law, which would make any Supreme Court ruling unnecessary. The house voted to repeal but was blocked by the Senate.

Oral arguments were heard in late January 1931, and four months later the Supreme Court handed down its decision. By the smallest margin (five to four), the justices sided with Near; the Minnesota Public Nuisance Law was ruled unconstitutional.

The decision established that prior restraint of the press was a direct violation of the First Amendment. Even more fundamental, it made clear that the Bill of Rights applied to the states and not just the federal government. The ruling is thus considered a landmark and has been cited regularly in other cases dealing with censorship and freedom of the press.

For more information on this topic, check out the original entry on MNopedia.

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Minnesota Rag

For more on this case, I recommend "Minnesota Rag: Corruption, Yellow Journalism, and the Case That Saved Freedom of the Press" by Fred W. Friendly, published by the University of Minnesota Press.

More at:

https://www.upress.umn.edu/book-division/books/minnesota-rag