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Near v. Minnesota, 1931

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Black and white image of the editorial page of the Minneapolis Saturday Press, October 25, 1927.

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 its support behind Near, bankrolling the legal team to argue the case. With its 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 in 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.

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Friendly, Fred W. “Censorship and Journalists’ Privilege: the Case of Near versus Minnesota—A Half Century Later.” Minnesota History 46, no. 4 (Winter 1978): 147–151.
http://collections.mnhs.org/MNHistoryMagazine/articles/46/v46i04p147-151.pdf

——— . Minnesota Rag: Corruption, Yellow Journalism, and the Case That Saved Freedom of the Press. Minneapolis: University of Minnesota Press, 2003.

Hartmann, John E. “The Minnesota Gag Law and the Fourteenth Amendment.” Minnesota History 37, no. 4 (December 1980): 161–173. http://collections.mnhs.org/MNHistoryMagazine/articles/37/v37i04p161-173.pdf

Tanick, Marshall H. “Minnesota and the Bill of Rights.” Minnesota History 52, no. 8 (Winter 1991): 323–326.
http://collections.mnhs.org/MNHistoryMagazine/articles/52/v52i08p323-326.pdf

Related Images

Black and white image of the editorial page of the Minneapolis Saturday Press, October 25, 1927.
Black and white image of the editorial page of the Minneapolis Saturday Press, October 25, 1927.
Black and white photograph of U.S. Supreme Court Justice Pierce Butler, 1930.
Black and white photograph of U.S. Supreme Court Justice Pierce Butler, 1930.
Black and white portrait of Floyd B. Olson, c.1930.
Black and white portrait of Floyd B. Olson, c.1930.
Black and white photograph of John L. Morrison, 1916.
Black and white photograph of John L. Morrison, 1916.
Black and white photograph of U.S. Supreme Court Chief Justice Charles Evans Hughes, 1931.
Black and white photograph of U.S. Supreme Court Chief Justice Charles Evans Hughes, 1931.
Black and white photograph of U.S. Supreme Court justices, 1932.
Black and white photograph of U.S. Supreme Court justices, 1932.
Black and white photograph of Jay Near, c.1930s
Black and white photograph of Jay Near, c.1930s

Turning Point

On April 26, 1930, Near v. Minnesota is docketed at the U.S. Supreme Court, bringing a little-known case involving a little-known state law (even within the state itself) to the national stage. The result of the case would make constitutional history.

Chronology

October 25, 1924

John Morrison publishes an issue of the Duluth magazine Rip-saw that accuses three local officials of crimes and misdeeds, including corruption, patronizing prostitutes, and making death threats.

April, 1925

The Public Nuisance Bill passes both houses of the Minnesota Legislature and is signed into law by Governor Theodore Christianson.

Septem-ber 1927

Howard Guilford and Jay Near begin publication of the Saturday Press.

November 21, 1927

County Attorney Floyd Olson files a complaint with Hennepin County against the paper. Backed by the Public Nuisance Law, a temporary restraining order is granted against the Saturday Press.

April 16, 1928

The Minnesota supreme court hears the case State ex. rel. Floyd B. Olson v. Howard A. Guilford and Another, in which the constitutionality of the Public Nuisance Law is debated.

May 25, 1928

The Minnesota supreme court upholds the Public Nuisance Law.

October 10, 1928

Hennepin County Judge Mathias Baldwin indicates that the injunction against the Saturday Press will become permanent.

December 2, 1929

The Minnesota supreme court holds a hearing to decide whether Near and Guilford violated the Public Nuisance Law.

December 20, 1929

The Court decides that the Saturday Press did in fact violate the law and upholds the permanent injunction.

April 24, 1930

The American Newspaper Publishers Association throws its support behind Near, agreeing to pay the legal fees for the case.

January 30, 1931

The U.S. Supreme Court hears oral arguments for the case.

February 1931

The Minnesota Legislature votes against repealing the Minnesota Public Nuisance Law.

June 1, 1931

The U.S. Supreme Court rules that the Minnesota Public Nuisance Law of 1925 is unconstitutional.