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.
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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