Max Heerman: Minnesota's gift to press freedom

What's the most notorious judicial decision in Minnesota history? Arguably, it happened 80 years ago this month -- in December 1927 -- when Hennepin County Judge Mathias Baldwin shut down publication of a small Minneapolis newspaper, deeming it a public nuisance. The case became known as Near vs. Minnesota, and resulted in a groundbreaking U.S. Supreme Court decision extending the freedom of the press. This state was not exactly "Minnesota Nice" back in the 1920s. City governments were corrupt, with prosecuting attorneys, police chiefs and mayors accepting bribes from known criminals. In exchange, they turned a blind eye to gambling, prostitution and even murder. The big newspapers under-reported the truce between bootleggers, gamblers and pimps, on the one hand, and the city fathers on the other, because many reporters were on the take, too. That left exposure of corruption to the small papers, including so-called "scandal sheets."

The state Legislature passed a public nuisance law in 1925 that "any person" could be enjoined from "producing, publishing, or circulating, having in possession, selling or giving away, (a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or (b) a malicious, scandalous and defamatory newspaper."

The public nuisance law was first applied to the Saturday Press, an embryonic Minneapolis scandal sheet published by a disagreeable con-man named Howard Guilford. The primary reporter for this new enterprise was Jay M. Near, a rail-thin, fancy-dressing reporter who was hostile to all forms of authority. Before its first issue hit the street, Guilford and Near were warned by Minneapolis officials to close shop. But they didn't listen, and the opening issue of the Saturday Press made the newsstands in September 1927. It probably was not coincidence that the next Monday, two thugs ran Guilford off the road while he was commuting from Robbinsdale to Minneapolis. The hit-men fired four bullets into Guilford's car, one of which punctured his abdomen and sent him to the hospital.

Guilford survived. While he recovered, the second edition of the Saturday Press was authored by a resentful and unrestrained Near. It was a caustic exposé on links between gambling syndicates and police. Subsequent editions included more of Near's style of journalism, including anti-Semitic attacks and rants about endemic corruption. It was all too much for the young county attorney, Floyd B. Olson, who decided to shut down the Saturday Press under the public nuisance law.

Olson filed a complaint in Hennepin County Court charging that the Saturday Press had defamed the chief of police and the mayor, among a long list of others. The county attorney asked for a restraining order barring Near and Guilford or anyone else from publishing under the name Saturday Press. Olson -- who eventually became a Minnesota political legend for his service as governor during the Great Depression -- later claimed that he considered the public nuisance law to be unwise and unconstitutional. But he nevertheless felt duty-bound to prosecute.

Near and his paper lost before Judge Mathias Baldwin, who rejected the notion that "the protection of newspapers by the Constitution" rendered the public nuisance law inoperable. "The designation of such publications as 'nuisances' immediately puts them into that class of things that are harmful to the community at large," he wrote.

But soon, the legal playing field was pitched in Near's favor. When news of Judge Baldwin's order hit the desk of Col. Robert McCormick, the right-wing isolationist publisher of the Chicago Tribune, McCormick opened his checkbook to finance the Saturday Press' appeals. McCormick treated the case as an opportunity to cement a legal principle that he considered vital to the newspaper business and the country: that governments could not place "prior restraints" on the press. Whether the drafters of the First Amendment embraced the notion that prior restraint was strictly forbidden had never been considered by the Supreme Court.

Free speech theory may have interested McCormick, but the publishers of the Saturday Press just wanted to be able to earn a living. When McCormick's attorneys sleepwalked through the appeal to the Minnesota high court -- having set their sights on a subsequent high-profile appeal to the U.S. Supreme Court -- Near, in particular, was devastated.

Near and Guilford remained constrained by Judge Baldwin's order while McCormick's attorneys briefed the case for the nine Supreme Court justices. As hard as the delay was on the principals at the Saturday Press, it turned out to be fortuitous. Chief Justice William H. Taft retired in February 1930 (and died a month later), and Justice Edward T. Sanford died in March of that year while having a tooth extracted. Had they remained on the Court, Taft and Sanford would almost certainly have voted to uphold the Minnesota law. But President Hoover appointed Charles Evans Hughes -- a former Supreme Court associate justice, Republican presidential candidate, and secretary of state -- to replace Taft. As chief justice, Hughes took an immediate interest in the cause of the Saturday Press. To replace Sanford, Hoover appointed Owen J. Roberts, who joined the Hughes-led 5-4 majority striking down the Minnesota statute.

The Near opinion, authored by Hughes, famously reads:

"The fact that 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. Subsequent punishment for such abuses as may exist is the appropriate remedy consistent with constitutional privilege."

Victory at the Supreme Court did little to improve the lives of the shady characters whose muckraking paper was at the center of the case. Near and Guilford attempted to revive the Saturday Press under the caption "The Paper That Refused to Stay Gagged." But their paper made little headway with serial attacks on Floyd Olson, who had prosecuted the Saturday Press before becoming Minnesota's most beloved governor. Attacks on Minneapolis Mayor William A. Anderson didn't stick, either. After Guilford vowed to run for mayor himself, he was shot dead by gunmen in a mysterious black sedan in 1934. Near, who charged that Guilford's assassins were "hired by Communists," died two years later, at age 62, of natural causes.

The victory meant considerably more to Col. McCormick. He was so proud of the decision that he engraved portions of Chief Justice Hughes' opinion into the side of the Tribune building on Michigan Avenue in downtown Chicago. The words remain engraved on that edifice today.

Near vs. Minnesota established the fundamental concept that once the press learns newsworthy information, the government can rarely, if ever, prohibit its publication. The most famous progeny of Near vs. Minnesota is the Pentagon Papers case, in which the Supreme Court held that a newspaper has the right to publish information that the president has concluded would harm the national security.

Constitutional law scholars are seemingly able to find fault in almost any Supreme Court decision, but in the decades since Near came down, almost no scholar has argued that the Supreme Court should have upheld the Minnesota public nuisance law. Some scholars have, however, criticized the "prior restraint" doctrine that originated with Near as a crutch that free speech advocates, and some judges, use to attack any perceived restriction on freedom of the press.

Regardless of whether the "prior restraint" doctrine is sometimes overapplied, there is no question that the case is a landmark of constitutional law. It may be the most important, and most interesting, case in Minnesota legal history.

Max Heerman, Minneapolis, is an attorney.