The Colonel's Finest Campaign: Robert R. McCormick and near V. Minnesota

By Easton, Eric B. | Federal Communications Law Journal, March 2008 | Go to article overview

The Colonel's Finest Campaign: Robert R. McCormick and near V. Minnesota


Easton, Eric B., Federal Communications Law Journal


I.    NEAR V. MINNESOTA: BACKGROUND
II.   INCORPORATION: THE NECESSARY PRECONDITION
III.  COL. MCCORMICK TAKES CHARGE OF NEAR
IV.   BEFORE THE SUPREME COURT
V.    THE DECISION
VI.   THE AFTERMATH

"The mere statement of the case makes my blood boil."

So wrote Weymouth Kirkland to his most illustrious client, Col. Robert R. McCormick of The Chicago Tribune ("Tribune") on Sept. 14, 1928. (1) The prominent Chicago attorney was writing about a case then styled State ex rel. Olson v. Guilford, (2) but which would make history as Near v. Minnesota (3) when it reached its conclusion in the United States Supreme Court nearly three years later. Both McCormick and Kirkland were to become principal players in Near, and together they created a role for the institutional press as "strategic litigator," shaping the First Amendment doctrine under which journalists operate.

Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so.

To be sure, such groups as the American Newspaper Publishers Association ("ANPA") (now the Newspaper Association of America) and, to a lesser extent, the American Society of Newspaper Editors, had routinely lobbied and litigated on behalf of their members' business interests: antitrust regulation, copyright protection, postal rates, taxes, and similar matters. (4) But litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall.

In my previous work on this subject, I have shown that the institutional press has been relatively successful in shaping First Amendment doctrine, at least with respect to content regulation, through litigation in the United States Supreme Court. (5) In this Article, I demonstrate that, although incorporation of First Amendment values through the Due Process Clause of the Fourteenth Amendment made this kind of litigation possible, the press was nevertheless reluctant to become involved. Through extensive use of Col. McCormick's correspondence and the Tribune's coverage, I show that McCormick's personal and financial commitment to press freedom in general, and the Near case in particular, ultimately persuaded the institutional press to pursue doctrinal litigation in their own interest.

Part I briefly outlines the background of the Near case, while Part II discusses the role of incorporation in making a First Amendment challenge feasible. Part III traces McCormick's efforts to draw the institutional press into the Near litigation. Part IV covers the proceedings before the Supreme Court, while Part V describes the landmark opinion itself. Finally, Part VI discusses the aftermath of Near v. Minnesota and the mobilization of the institutional press.

I. NEAR V. MINNESOTA: BACKGROUND

The story of Near v. Minnesota begins, not with Jay Near and Howard Guilford, Near's partner in sleaze, but with John L. Morrison, a highly religious, crusading prude with a venomous pen who waged a one-man crusade against the purveyors of booze and prostitutes in the wild and wooly iron mining town of Duluth, Minnesota, in the mid-1920s. (6)

Morrison's muck-raking newspaper, the Duluth Rip-saw, also went after the politicians who protected Duluth's rather crude entertainment industry. They were not amused and took their pique to the state legislature. In 1925, the Minnesota legislature--with some drafting help by Minneapolis newspapers, no less (7)--enacted a Public Nuisance Law, or "gag" law, that provided for abatement as a public nuisance of any "malicious, scandalous and defamatory newspaper, magazine or other periodical.

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