Near v. Minnesota/A History
The Court and Near
Why Near is Important
Robert R. McCormick
Near v. Minnesota/A History
This information is taken from Minnesota Rag by Fred W. Friendly.
John L. Morrison and the Rip-Saw
The paper that started this situation was the Rip-saw, first published by John L. Morrison in1917, in Duluth, Minnesota. Morrison considered himself a Christian reformer.
Duluth was in the heart of the Iron Range. Carnegie, Rockefeller and others mined there. U.S. Steel was formed, in part because of mining interests there, in 1901. One of the towns on the Iron Range was Babbitt, which is where Sinclair Lewis got the name of the main character in Main Street.
Morrison reported on and editorially attacked what was going on in Duluth at the time. In one instance, Morrison was convicted of criminal libel, although the complaint was dropped after Morrison apologized.
By 1925, legislators from Duluth managed to get a bill through the legislature called the Public Nuisance Law of 1925. It was popularly known as the "gag law."
The intent of the law was to give the state the right to suppress scandalous and libelous newspapers.
The essence of the law:
The law was used against John L. Morrison and the Rip-saw in May 1926. But, before Morrison could appear in court, he became ill and died.
Guilford and The Reporter
In St. Paul, Howard A. Guilford had begun The Reporter in 1913. It became the Twin-Cities Reporter in 1914 when Guilford moved the paper to Minneapolis. In 1916, he hired Jay M. Near.
Near was anti-Catholic, anti-Semitic, antiblack and antilabor. In Minnesota Rag, Fred Friendly described him this way:
In 1917 Guilford sold the paper to Jay Near and Jack Bevans for $30,000. Near sold his interest to Edward J. Morgan.
The Saturday Press
In 1927, Guilford and Jay Near began publishing The Saturday Press. On September 26, 1927, the Monday after the first issue, Guilford was injured when he was shot in an ambush. Near continued running the paper.
Near and Guilford claimed that Jewish gangsters were running gambling, bootlegging and racketeering in Minneapolis and that the city government and the police force were doing nothing about it. Their editorial in the November 19, 1927, issue read:
On November 21, 1927, County Attorney Floyd Olson (whom Guilford had branded a "Jew lover") filed a complaint against the paper under the Public Nuisance Law. Judge Mathias Baldwin issued a temporary restraining order, which was to last for more than a year.
That is, the paper was closed down.
Guilford and Near went to court on December 1, 1927, to try to get the restraining order removed. Their lawyer, Thomas Latimer (later mayor of Minneapolis), argued admirably.
An irony: the Minneapolis Journal that same week had an editorial about press freedom, aimed at Mussolini's Italy.
A related case: Near wrote pieces for the Beacon during this time, and as a result he and Harold Birkeland, who put out the Beacon, were charged with criminal libel. They were acquitted.
On April 16, 1928, the Near-Guilford case was heard by the state supreme court. On May 25, the court unanimously upheld the application of the Public Nuisance Law against The Saturday Press.
Roger Baldwin had started the American Civil Liberties Union, and he committed $150 to the defense. Already the ACLU had been attacked as an agent of the Soviet Union. And the Minneapolis Evening Tribune attacked the ACLU for its interest in Near case.
Enter Robert Rutherford McCormick of The Chicago Tribune.
He was the third grandson of Joseph Medill, who had owned the Tribune. His cousins were Joseph Medill Patterson, whose father, Robert Patterson, had been editor in chief of The Tribune, and Medill McCormick. Medill McCormick bowed out, and Joe started the New York Daily News.
McCormick had many things in common with Near. He was also a bigot. He used unsuitable words to describe people of different ethnic backgrounds. He was known to make fun of Jews in public.
Weymouth Kirkland, former law partner and friend of McCormick, encouraged McCormick to take on the Near case.
On October 10, 1928, Judge Mathias Baldwin convened another hearing on the case. This was 26 months after the paper had been ordered closed. Thomas Latimer, still Near's lawyer, argued that the 14th Amendment made the First Amendment applicable.
Then the case went back to the state supreme court and again on December 2, 1929, the court ruled against Near.
Near didn't like the approach taken by The Tribune lawyers and - typical of his behavior - wrote a scathing letter to McCormick. But, McCormick and Weymouth stayed on the case.
A Lack of Support
The American Newspaper Publishers Association refused to support financially the Near appeal to the U.S. Supreme Court, but McCormick made the ANPA poll its members. 254 of the 259 members indicated their support as long as The Tribune paid the costs.
Among the publications critical of the appeal were the Christian Science Monitor and the Literary Digest, one of the most popular magazines of the time.
Before the Supreme Court
Oral arguments before the United States Supreme Court were on January 30, 1931. Weymouth Kirkland argued the case for Near.
On June 1, 1931, just before the Supreme Court adjourned and two weeks after the Stromberg v. California ruling (on May 18), Chief Justice Charles Evans Hughes, writing for the majority, read the opinion. It was his third opinion on freedom on speech/press - the others were in the Whitney and Stromberg cases.
The decision was 5 to 4, with two recently nominated justices - Chief Justice Hughes and Owen J. Roberts - swinging the decision.
In the 1760s, Sir William Blackstone defined freedom of the press as freedom from "previous restraint." For years much had been written about that concept. Near was the first case in which the court actually had to pass on the subject.
The U.S. Supreme Court, for the first time, ruled that previous restraint of the press was unconstitutional.
The Hughes Opinion
In his opinion, Chief Justice Hughes called the Minnesota law the essence of censorship. Reviewing the history of the press, the chief justice said that the general conception of the liberty of the press has meant freedom from prior restrain. He quoted James Madison in saying that it is better to suffer some of the bad than to kill off the benefits of the press.
The case is Near v. Minnesota ex rel. Olson, 283 U.S. 697, June 1, 1931.
Return To Top
The Court and Near
Saturday, March 8, 1930, turned out to be a significant day in the history of the United States Supreme Court, and a turning point in American history.
On that day, Edward T. Sanford, an associate justice of the Supreme Court, died. He was in a dentist's chair. He was 63.
On the same day, the recently retired chief justice died. He was William Howard Taft, who had resigned a month earlier -- on February 3, 1930. He died five hours after Sanford. He was 72.
Taft was the only former president to serve on the Supreme Court. He had been appointed to the court on June 30, 1921, by Warren G. Harding. Being on the court had been a longtime goal for Taft. He had turned down an appointment to the court in 1902 when he was governor of the Philippines. [He had designs on the presidency at that time.]
Taft was big, weighing about 300 points during the time he served on the court. But, he walked the three miles to and from the court every day. Finally, heart trouble developed. He is buried in Arlington National Cemetery.
Taft was elected president in 1908 after Roosevelt retired. But, he split with Roosevelt later and finished third behind Wilson and Roosevelt in 1912 -- getting only eight electoral votes.
On the same day that Sanford and Taft died, Justice Oliver Wendell Holmes turned 89.
Holmes had been on the court since being appointed by Theodore Roosevelt in 1902. He was always an associate justice, never the chief justice. The question was when would he retire?
Taft considered himself a strict constructionist and considered his main duty that of directing the court in a conservative way. It was during his tenure that the first of the free speech/free press issues emerged.
The Significance of Gitlow
Gitlow v. New York was decided in 1925. The opinion by Justice Sanford for the first time said that the 14th Amendment made the First Amendment applicable to the states. Nevertheless, the court
sided with the state and against Gitlow.
However, the Gitlow case created a precedent for state cases involving the First Amendment and the Bill of Rights to be heard
by the Supreme Court.
The first time the court sided with an individual and against the
state was in the Stromberg case, decided on May 18, 1931. This
set the stage for Near decided two weeks later on June 1, 1931.
Herbert Hoover was president from 1929 to 1933 and it fell to him to choose the successor to Taft and Sanford.
Hoover offered the position as chief justice to Charles Evans Hughes of New York. He had been a member of the court from 1910 to 1916. He was 68. He looked like a chief justice. Former Solicitor General Erwin Griswold said, "He looked more like God than any man I ever knew." As an associate justice he wrote 150 opinions. The nomination as chief justice was made on February 13, 1930, just 10 days after the resignation of William Howard Taft.
Hughes had been the Republican nominee for president in 1916 against Woodrow Wilson. Everyone thought Hughes was going to be a conservative chief justice, in the image of Taft.
His confirmation was rocky. One of the senators who fought it the hardest was Hugo Black of Alabama (later a member of the same court). But Hughes turned out to be different than he was perceived.
President Hoover nominated Owen J. Roberts to replace Sanford on May 20, 1930.
Everyone was watching for how the Near decision would go. As a prelude to that decision the court on May 18, 1931, overturned part of the California law that made it a felony to display a red flag in any public assembly.
The case was Stromberg v. California. The person involved, Yetta Stromberg, had been sentenced to five years in prison.
The decision in Stromberg on May 18 was 7 to 2 with only Justices James C. McReynolds and Pierce Butler dissenting.
Hughes wrote the opinion.
Near v. Minnesota was argued on January 30, 1931. The opinion was returned on June 1, 1931.
The vote on Near:
Voting to rule the Minnesota law unconstitutional: Owen J. Roberts, Harlan Fiske Stone, Louis D. Brandeis, Oliver Wendell Holmes and Charles Evans Hughes.
The dissenters supporting the law: Pierce Butler, George Sutherland, James C. McReynolds, Willis Van Devanter.
The appointments by Hoover of Charles Evans Hughes and Owen J. Roberts turned a 6-3 court against Near into a 5-4 court in favor of Near.
Hughes wrote the majority opinion.
Return To Top
Why Near is Important
Why is this such an important case?:
Let's look at it this way: The Dred Scott case was in 1857, Plessy v. Ferguson was in 1896 and Brown v. Board of Education was in 1954. So that first 39 then 58 years passed before the Supreme Court overturned previous decisions. From Dred Scott to Brown was a total of 97 years.
Had Near gone the other way, other states would have imitated Minnesota and passed the equivalent of public nuisance laws.
The effect would have been to give control over the media to public officials, even officials as low as justices of the peace or even municipal judges. So that, any offensive media could in theory have been shut down.
And, because the Supreme Court is the law of the land, any challenges to that law would have been upheld. Why? In keeping with established precedent. The more they would have been upheld, the stronger the grip on the media would have been.
The out provided by Brown v. Board of Education was the schools. The original Plessy case was in theory only meant for public accommodations. But, of course, a whole range of Jim Crow laws followed and they dealt with every aspect of public life.
When the court finally ruled favorably in Brown v. Board of Education the door opened for the possibility that other aspects of public life could be similarly affected. That happened as a resulted of congressional action supported by the courts.
Who can say what the political climate would have been in the years after Near had it gone the other way? But, by deciding the way it did, the Supreme Court avoided the damage that otherwise might have continued for years.
For this reason, Near v. Minnesota can be considered the most significant Supreme Court decision related to the First Amendment. It established that the government could not prohibit publication. This concept was tested again in the Pentagon Papers case.
Return To Top
Robert R. McCormick
The main newspaper family in the Midwest was descended from Joseph Medill, who helped bring The Chicago Tribune to prominence in the second half of the 19th century.
The company is one of the major media companies in America today.
Joseph Medill had two daughters. One married a McCormick (the brother of Cyrus H. McCormick) and one a Patterson. They produced three sons and one daughter -- two McCormicks and two Pattersons. All were to figure in 20th century journalism.
One of them was Medill McCormick, who was a United States senator and not involved in the operation of the newspaper. Another, Joseph Medill Patterson, founded the New York Daily News in 1919. His sister, Eleanor Medill Patterson, was to become owner of the Washington Times-Herald (later sold to The Washington Post and incorporated into it).
And they were:
Medill McCormick, who was a U.S. senator and then became a recluse.
Robert R. McCormick, who later ran the newspaper.
Mrs. Patterson had a son and a daughter.
And they were:
Joseph Medill Patterson, who founded the New York Daily News.
His daughter was Alicia Patterson, who married Harry Guggenheim. He founded Newsday and gave it to her. His father built the museum.
Eleanor Medill Patterson, known as Sissy, who owned the Washington Times-Herald.
He was a Republican who was totally Midwestern. He was suspicious of anything Eastern. He was against labor unions, the Bolsheviks in Russia and the New Deal. He was an isolationist.
He served in the Army during World War I and was called colonel all his life.
He was one of the great champions of freedom of the press. His involvement in the Near case was the most important factor in winning the decision before the Supreme Court.
Return To Top