June 1, 1931 – U.S. Supreme Court Decides Near v. Minnesota re Freedom of the Press

Near v. Minnesota (283 U.S. 697, 1931) was a case involving freedom of the press that was paid for out of the pocket of Colonel Robert McCormick, editor and publisher of the Chicago Tribune. In this landmark ruling, the Court struck down a state law allowing prior restraint (government censorship in advance) as unconstitutional. In so finding, the Court applied the First Amendment’s protection of press freedom to the actions of state governments through the doctrine of incorporation.

McCormick subsidized the case in aid of J.M. Near, the publisher of the Minnesota Saturday Press, a scandal sheet which started in 1927. The paper attacked local officials, charging that they were complicit with gangsters, practically every one of which, Near’s paper maintained, was “a JEW.” Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law allowing such action against periodicals. The Minnesota statute (Chapter 285 of the Session Laws of Minnesota for the year 1925) provided that any person “engaged in the business” of regularly publishing or circulating an “obscene, lewd, and lascivious” or a “malicious, scandalous and defamatory” newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance.

Near – the appellant and the sole owner and proprietor of the publication in question, admitted the publication of the articles in the issues described in the complaint. But he denied that they were malicious, scandalous or defamatory as alleged. He expressly invoked the protection of the due process clause of the Fourteenth Amendment.

Col. Robert McCormick, editor and publisher of the Chicago Tribune, in an undated photo. (Chicago Herald and Examiner)

Robert McCormick was known for being rather irrationally anti-semitic, but this wasn’t why he felt compelled to bring this case to the Supreme Court. Rather, as a newspaper publisher he had a vested interest in freedom of the press. McCormick wrote afterward:

I immediately realized that the principle (of prior restraint) would put every newspaper at the mercy of any corruptible judge.”

During the case, McCormick’s attorney argued to the Supreme Court that defaming the government is “an inalienable privilege of national citizenship.”

The Tribune, looking back on the case, observed that “precisely because Near’s ideas were morally indefensible, his was the perfect case for making a point about freedom of the press, a cause dear to McCormick’s heart.”

McCormick and his attorney Weymouth Kirkland “felt strongly that if a crank didn’t have a right to publish goofy ideas, then freedom of the press was meaningless. If not, who is to say what differentiates honest criticism from malicious libel?”

During oral arguments, Justice Louis Brandeis asked about the conflict between the Minnesota law and a newspaper’s role as a government watchdog and noted:

It is difficult to see how one is to have a free press and the protection it affords a democratic community without the privilege this act seems to limit.”

Chief Justice Charles Evans Hughes, writing for the Court and joined by Justices Holmes, Brandeis, Stone, Roberts,found that the Minnesota statute comprised “the essence of censorship,” stating:

This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not unique, and raises questions of grave importance transcending the local interests involved in the particular action.”

Charles Evans Hughes, Chief Justice of the U.S. Supreme Court

He observed further:

The question is whether a statute authorizing such proceedings in restraint of publication is consistent with the conception of the liberty of the press as historically conceived and guaranteed. . . . The struggle in England, directed against the legislative power of the licenser, resulted in renunciation of the censorship of the press. The liberty deemed to be established was thus described by Blackstone:

‘The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.’”

He concluded:

If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence, there is no limit to what may be prohibited. . . .

For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication.

Judgment reversed”

In 1971, the Supreme Court, in New York Times Co. v. United States (403 U.S. 713) drew upon Hughes’ opinion in deciding that the government’s justification for trying to withhold the Pentagon Papers was, in essence, censorship.

And there were other repercussions as well. The Tribune reported:

For its part, the Tribune resolved not to be late to the game the next time evidence of presidential mischief was available. In 1974, Richard Nixon was forced to release transcripts of taped conversations in his Oval Office.

Dispatching its corporate jet and a production team to Washington, the Tribune got the transcripts into print hours before the government put them on sale.

Tribune readers got an early view of why Nixon desperately wanted to keep the public from reading the transcripts.

The transcripts witness Nixon saying: “The arts you know — they’re Jews — they’re left-wing.” He called the judge who tried the Nixon operatives for breaking into a Democratic Party office a “wop.”

The Tribune Editorial Board took Nixon to the woodshed for those grossly un-presidential utterances, under a headline, “Listen, Mr. Nixon …”

Less than three months later, Nixon resigned.”

Chicago Tribune Headlines

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