Newspaper article MinnPost.com

Rejecting Prior Restraint: 1931 'Near V. Minnesota' Case Set Important First Amendment Precedent

Newspaper article MinnPost.com

Rejecting Prior Restraint: 1931 'Near V. Minnesota' Case Set Important First Amendment Precedent

Article excerpt

In early June 1931, the U.S. Supreme Court ruled that a little- known Minnesota statute was unconstitutional. The 1925 Public Nuisance Bill had been designed to close down newspapers deemed obscene or slanderous. The court's decision set a national precedent for freedom of the press and censorship issues.

In 1925, as a reaction to personal attacks printed in John Morrison's Duluth newspaper Rip-saw, State Senator Mike Boylan and State Representative George Lommen drafted a bill that quickly became law. The bill allowed a judge -- without jury -- to shut down a publication if it was deemed obscene or scandalous. Before the law could be used against Rip-saw, however, Morrison died.

Two years later, Howard Guilford and Jay Near began publishing the Saturday Press in Minneapolis. The paper was vehemently anti- Semitic and purported to expose government involvement with the criminal underworld. In particular, it attacked Police Commissioner Frank Brunskill and County Attorney Floyd B. Olson. As a result, Olson filed a complaint against the paper. Backed by the 1925 law, in November 1927 Judge Mathias Baldwin issued a temporary restraining order against the Saturday Press.

The case was brought to the State Supreme Court on April 16, 1928. Near's lawyer, Thomas Latimer, argued that the Public Nuisance Law was unconstitutional. He claimed that it violated the right to freedom of the press guaranteed by the First Amendment; to trial by jury, guaranteed by the Sixth Amendment; and to due process, guaranteed by the Fifth Amendment (made applicable to the states by the Fourteenth Amendment).

The heart of the issue was the 1925 bill's allowance for prior restraint of the press (e.g., enjoining a paper before it published anything slanderous). Existing libel laws punished publishers after the fact. The court, however, ruled in favor of the Public Nuisance Law; the order against the Saturday Press was thus upheld. Judge Baldwin made the temporary injunction against the paper permanent. This was then appealed at the State Supreme Court, which upheld Baldwin's ruling.

Around this time, the nascent American Civil Liberties Union and Robert McCormick (the influential publisher of the Chicago Tribune and a staunch defender of the First Amendment) became interested in the case. …

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