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The Minnesota Gag Law and the Fourteenth Amendment

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The Minnesota Gag Law and the Fourteenth Amendment MR, HARTMANN, a resident of Minneapolis, is enrolled in the University of Minnesota graduate school, where he is working toward a degree in American constitutional history. This is his first published article. The Minnesota GAG LAW and the Fourteenth Amendment JOHN E. HARTMANN ON JUNE 1,1931, the Supreme Court of the and the protection it affords a democratic United States handed down a decision community without the privflege this act which, according to one authority, repre­ seeks to limit." ^ sented "the climax of a striking evolution The origins of the Minnesota "gag law" in our Constitutional law whereby freedom are obscure. Some claim that it was spon­ of speech and press is at last effectively sored by a legislator intent on silencing an "nationalized'." In this decision, rendered in editor who was attacking him, and that the case of Near v. Minnesota, the court the editor died before the law could be for the first time used "the guarantee of applied to his particular publication.^ The liberty in the Fourteenth Amendment . bill was initiated in the Minnesota Senate to completely obliterate a state law."^ by Freling H. Stevens, a Minneapolis attor­ The law in question, which had been ney whose firm included his brother and enacted by the Minnesota legislature in his two sons. He was serving his second 1925, declared certain types of publications term as state senator, and politically he was a nuisance and provided for injunctions to a Progressive-Republican. When the bfll prevent their circulation. Of this Minnesota was introduced on March 27, 1925, as Sen­ measure — the first to provide for actual ate File 1181, it did not cause a furor. In suppression of the public press since the routine manner, it was referred to the com­ passage of the Alien and Sedition Acts in mittee on general legislation, which re­ 1798 — Supreme Court Justice Brandeis ported it out the following day without was reported to have remarked: "It is diffi­ recommendation, and it was then placed on cult to see how one can have a free press the general orders of business. On Aprfl 7, 1925, it came to a vote before the Senate ^Robert E, Cushman and Robert F. Cushman, and passed without dissent. Stevens him­ Cases in Constitutional Law, 698 (New York, 1958); Merlo J. Pusey, Charles Evans Hughes, self did not vote on the final passage. The 2:720 (New York, 1951). bill was then sent to the House, and on ^American Law Review, 58:614 (July-August, April 16, 1925, was passed by a vote of 1924); New York Times, January 31, 1931, sec, 1, p, 6, col, 3. eighty-two to twenty-two. Governor Theo-- 'James R. Mock, Censorship, 1917, 223 (Prince­ dore Christianson signed it into law along ton, New Jersey, 1941); New York Times, January with a large number of minor end-of- 12, 1930, sec. 1, p. 26, col. 4; Marion D. Shutter, ed,, History of Minneapolis, 3:616 (Chicago, 1923); session bills. Thus the act which within a few Miimesota, Legislative Manual, 1925, p. 682. years was to become a subject of national December 1960 161 concern passed quietly into the Minnesota groups, grossly exaggerated accounts of statute books. The Minneapolis news­ malfeasance by public officials, and scan­ papers, particularly the Minneapolis Trib­ dals revolving about prominent private citi­ une, which gave excellent coverage to zens. Some publishers went beyond the the daily sessions of the legislature, did not sensationalism which was intended to in­ report on its passage."* crease circulation and indulged in extor­ The new law was defined in its preamble tion and blackmail.* as "An act declaring a nuisance, the The procedures followed by an extorting business ... of regularly or customarfly editor are well known. Fabricating a story producing, publishing, or circulating an ob­ out of whole cloth or greatly exaggerating scene,., lewd, and lascivious newspaper, a tale involving some truth, he approached magazine, or other periodical, or a mali­ his victim with advance copy and intimated cious, scandalous, and defamatory news­ that the story could be suppressed for a con­ paper, magazine, or other periodical and sideration. The victim, usually a prominent providing for injunction and other proceed­ individual, could either meet the demands ings." It provided that the county attorney of the extortionist or suffer the conse­ or, in his absence, the attorney general or quences of unfavorable publicity. If he any citizen acting in, behaff of the county made the latter choice, he might sue for attorney, might institute proceedings in libel. In such a suit, however, the plaintiff district court for a temporary restraining bears the burden of proving that the pub­ order against any periodical which in the lished facts are untrue. Few people care to mind of the complainant violated the pro­ have their personal affairs aired in a court­ visions of the act. The district court was room. Under some circumstances, the mere then empowered to issue a temporary re­ occurrence of a trial can damage the repu­ straining order ff it so desired. In any case, tation and earning capacity of an individ­ a summons would be served on the accused ual, while he is deterred by the cost of publisher, who would have the privilege of initiating legal action. Thus many people answering the charges or demurring. The are vulnerable to an extortionist. Blackmail case would be tried before the district differs from extortion only in that the court judge, who would either rule in blackmafler is actually in possession of favor of the defense or grant a permanent some fact his 'victim wishes suppressed.'^ injunction, by which, in the language of the law, "such nuisance may be wholly * Minnesota, Senate Journal, 1925, p. 990; House abated." Failure to comply with the order Journal, 1925, p. 1463. Since the journals of the of the court would involve contempt and state legislature do not contain records of debate, would be punishable by a fine of a thou­ it is impossible to reconstruct discussion of the bill while it was under consideration. Presumably the sand dollars or a year in the county jafl.^ measure was not debated extensively. ° Miimesota, Laws, 1925, p. 358. THERE WERE in the 1920s hterally hun­ ° Lamar T, Beman, Censorship of Speech and Press, 198-205 (New York, 1930); Ernest W. Man- dreds of smaU weekly newspapers, many deville, "Gutter Literature," in New Republic, of which imitated and elaborated the tech­ 45:350 (February 17, 1926); N. W. Ayer and Son, American Newspaper Annual and Directory, 1920- niques developed by Hearst and other pub­ 29. Ayer does not hst all newspapers, since some lishers in the late 1880s and branded by were so ephemeral that they appeared and went Pulitzer as "yellow journalism." No grist out of business before their existence could be was too offensive to the public taste to be recorded. ' These crimes are usually difficult to prove in avoided by this type of scandal mfll. The court. Professor George "Void of the department of reporting which filled its pages usually in­ sociology in the University of Minnesota, who has volved crime, sex and sexual perversion, served on crime commissions and is an instructor in criminology, aided the writer in preparing this attacks on minority religious and racial description. 162 MINNESOTA HtStOTy Pubhc officials frequently have been edge of "Mr. Blackstone," indicating some singled out for attack by the sensational acquaintance with the law, but Guflford press. The nature of their position makes sheds no further light on his life before them especially vulnerable to unfavorable arriving in Minnesota at the age of twenty- publicity, and though an official may be five.9 innocent of any maffeasance, a continuous Unfortunately, no copy of the St. Paul barrage of charges inevitably casts some Reporter is preserved, but according to doubt on his honesty. A fine but definite Guilford the paper accused the St. Paul line exists between attempts by the legiti­ chief of police, Martin J. Flanagan, of neg­ mate press to expose corruption and the ligence in faihng to pursue known crimi­ sensational charges of the scandal sheet. nals. Soon after its appearance on January Rarely indeed has a conviction arisen out 17, 1913, Guilford was arrested on a coun­ of accusations made by journals of the terfeiting charge, but was subsequently latter type, while on occasion they have released. This marked the beginning of a been linked with criminal organizations or lengthy police record, which extended from interests. 1913 to 1927. In 1914 he was arrested on Of the scandal sheets established in the a charge of carrying a concealed weapon, 1920s,, many expffed 'vyifhin a. few weeks. and acquitted; he was convicted of libel Those surviving often moved from address in 1918, and fined a hundred doflars; he to address, appearing at irregular intervals was tried for extortion in 1920, and ac­ under varying editorships. The lives of quitted. In his book Guflford mentions such editors were often as shifting and three other occasions when a county attor­ unstable as their papers. In following the ney sought an indictment on charges of career of one such individual it was dis­ libel or extortion, but in each case the covered that, over a period of nine years, grand jury failed to indict him.^" the city directory listed him only five times, Meanwhile, the Reporter appeared spo­ in each instance at a different address. A radically in 1913 and 1914. Beginning in man might edit several papers in rapid 1915, the paper was published in Minne­ succession, only to turn up a short time apolis under the name of the Twin City later on the staff of an erstwhile com­ Reporter and it became a regular weekly.
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