The Colonel's finest campaign: Robert R. McCormick and Near v. Minnesota.

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." (8)

University of Minnesota historian Paul L. Murphy attributes enactment of the gag law to "public exasperation" with the yellow journalism of the time and the "emergence of a number of cheap, ephemeral scandal sheets, which were used for extortion, blackmailing petty crooks, or pressuring concessions from venal public officials." (9) Murphy points out that "Minnesota's experiment quickly drew warm national approval" as a practical alternative to administrative censorship, which would have been too costly, or civil or criminal libel actions, which had proved ineffective. (10)

Although Murphy does not discuss the importance of the Rip-saw to its adoption, a target of that paper, then-State Sen. Michael J. Boylan, came to be known as the "father" of the gag law. (11) In any event, Publisher Morrison died of a blood clot in the brain before he could be prosecuted under it. Of course, there was no shortage of scandalous newspapers in that era; (12) Near and Guilford were ready targets down in Minneapolis. (13) Near was not nearly as self-righteous (or righteous at all, for that matter) as Morrison but was a complete scoundrel and bigot: antisemitic, antiblack, antilabor, (14) and unfailingly hostile to Minneapolis area officials.

In 1927, Near and Guilford launched The Saturday Press, a scurrilous rag that, among other things, alleged that Jewish gangsters were responsible for bootlegging, gambling, and racketeering in Minneapolis (which probably didn't bother anyone), and that certain law enforcement officials--especially Hennepin County Prosecutor Floyd B. Olson--were letting the gangsters run amok (which certainly did). (15)

Olson undertook to put Near out of business and filed a complaint on November 21, 1927, alleging multiple instances of defamation. (16) Describing the newspaper as "malicious, scandalous, and defamatory," the "magic words" of the Public Nuisance Law, Olson sought an injunction under that act. (17) A temporary restraining order was issued the same day, enjoining Near and Guilford from publishing The Saturday Press or anything like it. (18) The Saturday Press never recovered, but that TRO, which lasted more than a year, (19) became the predicate for the most important press freedom case in American history up to that date.

At first, Near was represented only by local counsel, Thomas Latimer, a prominent Minneapolis attorney and, in Fred Friendly's words, a "self-appointed Legal Aid Society." (20) When Near finally got to court in December 1927, Latimer argued that the Public Nuisance Law was a "subterfuge" to avoid the state constitution and the requirements of its libel law. (21) Although he compared it to laws in fascist Italy and communist Russia, his argument fell on deaf ears. Judge Mathias Baldwin, who had himself been a target of The Saturday Press, refused to lift the restraining order but did certify the case to the Minnesota Supreme Court. (22)

On May 25, 1928, the Minnesota Supreme Court unanimously upheld the validity of the statute as an exercise of the state's police powers. (23) "A business that depends largely for its success upon malice, scandal and defamation can be of no real service to society," wrote Chief Justice Samuel Bailey Wilson for a unanimous court. "It is not a violation of the liberty of the press or of the freedom of speech for the Legislature to provide a remedy for their abuse." (24) Four and a half months later, Judge Baldwin made the temporary restraining order a permanent injunction, (25) prohibiting Near and Guilford from publishing until they agreed to publish only the truth, "with good motives and for justifiable ends." (26)

As outrageous as the Minnesota Supreme Court's opinion might seem today, the journalism of the day may have been even more outrageous. Murphy points out that, "with the rise of the tabloid, 1920's journalism offended many older, more serious Americans, who were still guided by a vigorous Victorian-Progressive morality and decorum." (27) Indeed, "[t]he national student debate topic for 1930 was: Resolved: That the Minnesota Nuisance Law should be adopted by every state in the Union." (28)

By then, however, word of the case had reached New York and the American Civil Liberties Union ("ACLU"), which had been formed in 1920. (29) Although the ACLU announced that it would take the case to the United States Supreme Court, there were doubts about the group's financial wherewithal, and its involvement in the case was ultimately minimal. (30) Word also reached Chicago and Col. McCormick, who sent the case file on to Weymouth Kirkland.

II. INCORPORATION: THE NECESSARY PRECONDITION

Before turning to Kirkland's response, and McCormick's decision to take charge of the case and use it to establish modern prior restraint doctrine, we must remember that less than a decade earlier, such litigation would not have been possible. Until incorporation, usually attributed to Gitlow v. New York (31) in 1925, the First Amendment could not be invoked against state gag laws; only Congress was precluded from abridging freedom of the press under the federal Constitution. (32)

Madison's proposed draft of the First Amendment had not been so constrained on that point: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." (33) That language appears to have passed in the House, but the Senate changed the subject of the sentence to "Congress." Paul Starr points out, however, that without a record of the discussion, there is no way to know whether the change was meant to be substantive. (34)