Fanning the Flames: The Freedom Project Blog

3.28.2009

Decision Ends Gag on Press

By Shawn Healy
This was the June 2, 1931, headline of the Chicago Tribune in response to the landmark Supreme Court decision, Near v. Minnesota. With a narrow 5-4 majority, the Court struck a sweeping blow to state prior restraint laws impacting private presses, emboldening the industry to perform their watchdog role essential to a proper functioning democracy. Nowadays, with the print industry on life support nursing a broken economic model, we are obligated to look to the past for guidance, and there is no better place to begin than the Near decision.

Eric Easton's March 2008 journal article titled "The Colonel's Finest Campaign" reviews the Near case through the lens of its benefactor, the venerable Robert R. McCormick, then publisher of the Chicago Tribune and the namesake of the Foundation that funds the Freedom Museum. Others have documented the case and cemented its importance, no one better than the late Fred Friendly in Minnesota Rag, but Easton focuses specifically on McCormick's role in the case, namely his push for the professional media industry to litigate on its own behalf.

McCormick assumed leadership of the American Newspaper Publishers Association in the spring of 1928, and soon thereafter pressed for the organization's support of Jay Near, the publisher of a disreputable Minneapolis newspaper that documented local corruption, but was laden with Antisemitism and racism. Minnesota used a 1925 state public nuisance law to shut down Near's publication of The Saturday Press, inviting court scrutiny of whether state's could impose a prior restraint on private presses.

Contrary to popular conception, Near v. Minnesota did not incorporate freedom of speech and the press to state and local laws; Gitlow v. New York accomplished this in 1925. It did hold that prior restraint laws like the "gag" mechanism imposed in Minnesota at the time were unconstitutional, leaving libel suits after the fact as the proper recourse for defamation and reckless disregard for the truth.

Beyond this, McCormick, a First Amendment champion for both idealistic and selfish reasons, realized that most battles concerning civil liberties are fought on the fringes. How could the Chicago Tribune feel safe in taking local government officials to task if smaller-scale operations were threatened with closure by elected officials wary of written scrutiny?

Toward this end, McCormick instantly recognized the importance of the Near decision upon is announcement:

The decision...will go down in history as one of the greatest triumphs of free thought. The Minnesota gag law was passed by a crooked legislature to protect criminals in office and supported by a state court as feeble in public spirit as it was weak in legal acumen.

Never one to pull punches, the Colonel warned that the battle to subvert freedom was a perennial one:

We must not bind ourselves to the fact that subversive forces have gone far in this country when such a statute could be passed by any legislature and upheld by any court, and must be on guard against further encroachments.

McCormick ended on an optimistic note, and I am hopeful that the current captains of the newspaper industry will heed his call during these trying times:

The newspapers of America will realize the responsibilities devolving upon them under this decision and will maintain and increase the high principles which has guided them since the inception of a free press.

The free press as we know it is threatened today not by an overarching government (although Illinois' since departed Governor did attempt to remove an unfriendly Tribune editorial board member last year), but by fading advertising revenues, migration of readers to the Internet, and most disconcerting, public apathy and ignorance. We all have a role to play in order to reverse these fortunes, and it is our hope that the Foundation that bears the Colonel's name can live his legacy and play a small part in moving the needle back to the glory days of Near.

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SHAWN HEALY

Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project


Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.



Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.


First Amendment journalism initiative


The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at



Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project


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