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Censorship and Journalists' Privilege From the Archives An occasional series spotlighting captivating and relevant scholarship from back issues of Minnesota History. “Censorship and Journalists’ Privilege” was an edited version of a talk given by journalist Fred Friendly at the 1978 annual meeting and history conference of the Minnesota Historical Society. It was published in the Winter 1978 issue. meantime restrained, and they are hereby forbidden to Censorship and produce, edit, publish, circulate, have in their possession, Journalists’ Privilege sell or give away any publication known by any other name whatsoever containing malicious, scandalous, and The Case of Near versus Minnesota— defamatory matter of the kind alleged in plaintiff’s com- A Half Century Later plaint herein or otherwise.”4 His order was upheld five months later when Chief Justice Samuel B. Wilson declared for the majority of the Fred W. Friendly Minnesota Supreme Court: “In Minnesota no agency can hush the sincere and honest voice of the press; but our Although journalists tend to give all credit to the Constitution was never intended to protect malice, scan- Founding Fathers for freedom of the press, it was the dal, and defamation, when untrue or published without creative work of this century’s judiciary— Charles Evans justifiable ends.” By way of comparison Justice Wilson Hughes, Oliver Wendell Holmes, Louis D. Brandeis, noted that the constitutional guarantee of freedom of among others— that nationalized the First Amendment. assembly does not protect illegal assemblies, such as For it was only forty- eight years ago, in its [1931] decision riots, nor does it deny the state power to prevent them.5 in Near v. Minnesota, that the United States Supreme The case might have ended there had not Colonel Court reinforced the prohibition against prior restraints Robert R. McCormick, publisher of the Chicago Tribune, and decided that the due process clause of the Fourteenth committed $25,000 and his own law firm to appeal the Amendment protects newspapers from the heavy hand of Minnesota high court’s judgment.6 state action.1 When Near v. Minnesota was argued in the United In 1925 the Minnesota legislature passed a public States Supreme Court, Justice Brandeis, himself a Jew, nuisance bill that permitted the state to close down “an asked the most probing questions. “It is difficult to see,” obscene, lewd and lascivious news paper, magazine, or Brandeis observed, “how one is to have a free press . other periodical, or a malicious, scandalous, and defama- without the privilege this Minnesota Act seeks to limit. tory newspaper, magazine, or other periodical.”2 These editors seek to expose coordination between crimi- Two years later a small Minneapolis scandal sheet, the nals and public officials profiting from gambling. You Saturday Press, was silenced by a restraining order sought are dealing here with scandal that ought to be a matter of by County Attorney Floyd B. Olson of Hennepin County. prime interest to every citizen.” The publishers, Jay M. Near and Howard A. Guilford, “Assuming it to be true,” argued James E. Markham, St. self- admitted scandalmongers and occasional blackmail- Paul attorney, for the state of Minnesota. ers, had charged that Jewish gangsters were controlling “No,” Justice Brandeis snapped back. “A newspaper can- gambling and bootlegging in Minneapolis: “Practically not always wait until it gets the judgment of a court. These every vendor of vile hooch . every snake faced gangster men set out on a campaign to rid the city of certain evils.” and embryonic yegg in the Twin Cities is a JEW. Jew, “So they say,” Markham interrupted. Jew, Jew, as long as one cares to comb over the records.” “Yes, of course, so they say,” answered Brandeis. “They Prosecutor Olson (later to be governor) was among the pol- acted with courage. They invited suit for criminal libel if iticians accused of being a pawn of the Jewish conspiracy.3 what they said was not true.” The justice concluded: “Now The county judge ruled: “Said defendants Howard A. if that campaign was not privileged, if that is not one of Guilford and J. M. Near and divers and sundry other per- the things for which the press exists, then for what does it sons whose names are to the plaintiff unknown, be in the exist?”7 SPRING 2021 239 and construes ‘liberty’ in the due process clause of the 14th Amendment to put upon the states a Federal restric- tion that is without precedent.”[9] The majority opinion was careful to state that the First Amendment is not absolute. Chief Justice Hughes wrote: No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the com- munity life may be protected against incitement to acts of violence and the overthrow by force of orderly Floyd B. Olson (left, 1936) and Saturday Press publisher Jay M. Near. government. The constitutional guaranty of free speech does not protect a man from an injunction against utter- ing words that may have all the effect of force.[10] Those present when the Near case was argued sensed it would be a close call. Justice Pierce Butler, himself from Minnesota, read lengthy anti- Semitic quotations from In the forty- eight years since the Near case, the the Saturday Press and argued that the gag order was not a court has held the line against prior restraints of news prior restraint as that concept had evolved in the English and opinion. In the 1971 Pentagon Papers case, a six-to- legal system. He saw nothing in the Constitution to pre- three majority of the Supreme Court refused to enjoin vent the banning of lewd or malicious defamation. the New York Times and other newspapers from publish- [ . ] ing classified material not demonstrably essential to the Chief Justice Charles Evans Hughes, the swing vote nation’s security.[11] In other landmark cases since then, in the 1931 decision that overturned the Minnesota law, Near v. Minnesota has been the central rivet in the First wrote the majority opinion: “The fact that for approxi- Amendment. mately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications . is sig- nificant of the deep- seated conviction that such restraints would violate constitutional right.” To require a publisher to prove in a court of law truth without malice before publication “is the essence of censorship.”[8] The four conservative justices, Pierce Butler, Willis Van Devanter, George Sutherland, and James C. McReynolds, took vigorous issue with the majority. In his dissent, Butler wrote: “The decision of the court in this case declares Minne- sota and every other state powerless to restrain by injunction the business of publishing and circu- lating . malicious, scandalous and defamatory periodicals . It gives to freedom of the press a meaning and a scope not heretofore recognized The Nov. 19, 1927, issue of The Saturday Post, which accused Hennepin County Attorney Floyd B. Olson and other politi- cians of being pawns of a conspiracy of Jewish gangsters, was quoted in the Supreme Court decision Near v. Minnesota. 240 MINNESOTA HISTORY Further reading on Near v. Minnesota • Alam, Ehsan. “Near v. Minnesota,” MNopedia, http://www.mnopedia.org/event/near-v-minnesota. • Friendly, Fred. Minnesota Rag: The Dramatic Story of the Landmark Supreme Court Case That Gave New Meaning to Freedom of the Press (Random House, 1981). • Hartmann, John E. “The Minnesota Gag Law and the Fourteenth Amendment,” Minnesota History, Winter 1960. • Tanick, Marshall H. “Minnesota and the Bill of Rights,” Minnesota History, Winter 1991. Now in 1978 we are engaged in another great First newsroom and order and fairness in the courtroom are Amendment debate. Does the freedom of the press identi- indivisible. Some in the media have permitted themselves fied by Hughes in 1931 include a constitutionally protected to wave a First Amendment flag as if there was nothing right to gather news? Or does Near v. Minnesota and its else in the Constitution’s Bill of Rights. [ . ] progeny simply mean that government (including judges) Some judges, on the other hand, are permitting their can impose no prior restraints? rhetoric about [New York Times reporter Myron] Farber This constitutional debate [. .] has been heating up [who refused to appear as a witness and give up his notes for the last decade. [. .] The press- court argument can and sources in a 1975 case Friendly details in the speech], be divided into two strands. The first, the right to publish the Times, and the press in general to deteriorate into virtually anything unless damaged to the nation’s security sweeping denunciations, rooted in the outmoded mis- can be proved was established by the Near decision and conception that investigative reporting is designed to sell reinforced time and again, most notably by the Pentagon newspapers. [ . ] Papers case. Every time the federal or state government I would warn my colleagues in the media that attacks has tried to impose prior censorship the courts have on the court make little sense for a profession which, from turned them down. [. .] Near, to Times v. Sullivan, to the Pentagon Papers, has So the legacy of Near v. Minnesota is quite clear on the won most of the protections it has sought. The press has subject of prior restraints— no prior restraints means NO been telling its critics— from Faubus to George Wallace prior restraints. And except in a very few areas, govern- to Nixon and Agnew— that, like it or not, Supreme Court ment will have a very difficult time when it attempts to judgments are the law of the land.
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