Sleazy editors became free-speech heroes

hey were scumbag editors, Jay Near and Howard Guilford, pseudo-moralists who were right about a few things, wrong about most.
They were morally right about organized crime in Minneapolis and corruption in city government. About 30 years earlier, Lincoln Steffens had included Minneapolis in his “Shame of the Cities.” Things hadn’t changed much.
They were morally wrong in their hateful prejudices against Jews, Catholics, and anyone else who didn’t fit their particular definitions of civic righteousness. And, oh yes, targets of their wrath could get edited out of their columns for a fee. That is called blackmail.
They were also fearless editors. They alleged in their newspaper, The Saturday Press, that gambling, bootlegging and racketeering were controlled by “Jewish gangsters.” And they were. In fact, things were so bad in city government that a Jewish dry cleaner, Sam Shapiro, who had been beaten and had had his shop wrecked by hoodlums selling “protection,” was willing to seek help from the anti-Semitic Near and Guilford. After all, regular newspapers and law enforcement officials weren’t much interested in his plight.
Inveighing against a “Jewish conspiracy” that included the police chief and the county attorney, the editors told Shapiro’s story, starting the case on its journey to the United States Supreme Court.
For his trouble, Guilford was murdered on his way home from work in 1934. Two years later, Near died peacefully in his bed and went on to undeserved glory in American constitutional law.
Their journalism was anything but politically correct. It assaulted directly an ethnic and religious minority. It was scandalous, malicious and defamatory. And it violated a widely admired Minnesota law that permitted judges, without juries, to close down publications that were consistently “detrimental to public morals and to the general welfare,” that “tended to disturb the peace of the community,” or were likely “to provoke assaults and the commission of crime.”
The Saturday Press’s doors were locked by order of a Minnesota district court, and they stayed locked. The order prohibited Near from publishing his brand of news anywhere. The constitutionality of the state statute was affirmed by the Minnesota Supreme Court. Most Minnesota newspapers hailed the decision.
But the magisterial and ultraconservative publisher of the Chicago Tribune, Colonel Robert McCormick, himself a man of many prejudices, saw in the case a threat to First Amendment freedoms and bankrolled an appeal to the nation’s highest court.
In oral arguments before that body, a magnanimous Justice Louis Brandeis, himself a Jew, appreciated the courage of even an anti-Semitic newspaper that had “set out on a campaign to rid the city of certain evils” — in this case, an alliance between illegal gambling and public officials. “You are dealing here,” declared Justice Brandeis, “with scandal that ought to be a matter of prime interest to every citizen.”
A slim majority of the court agreed. In a 5-to-4 opinion written by Chief Justice Charles Evans Hughes, the court for the first time used the liberty clause of the 14th Amendment to protect the press from impingement by state law in the same way that the First Amendment protects the press from federal law. The Minnesota statute imposed a “prior restraint” on expression. The Constitution forbade censorship.
There could, of course, be punishment after publication: a libel suit, for example. And in rare cases, said the court, prior restraint might be permitted: where national security would be jeopardized, where words incited acts of violence, or where the bounds of decency were breached by obscenities. But not here. This was political speech in its pristine form. Local governments could not constitutionally suppress unpopular ideas.
There were other ironies, interesting sidelights, and strange alliances in the story, besides its humble beginnings in a small family owned dry-cleaning establishment. Prosecution of The Saturday Press under the Minnesota gag law was forthrightly pursued by County Attorney Floyd Olson, who would go on to become a legendary Populist governor of Minnesota and a defender of free speech.
Representing a minority of four on the U.S. Supreme Court ruling was another Minnesotan, Justice Pierce Butler, a conservative Democrat from St. Paul. In his dissenting opinion, he made a whale of a case for the constitutionality of Minnesota’s prior restraint law. It did not resemble the classic form of censorship, he argued, where editorial content had to be scrutinized by government censors before publication. After all, he observed, The Saturday Press had managed to put out several editions before it was closed down.
Two of three Minneapolis daily newspapers questioned the Supreme Court’s invalidation of the Minnesota gag law.
Perhaps the chief lesson of the case is that any commitment we might think we have to freedom of speech and the press is best tested when the speaker is generally held in contempt or, as in the case of The Saturday Press, is dedicated to sex, sensation and smear. Protecting speech that is all sweetness and light is just too easy.
— Dr. Donald Gillmor is a professor in the University’s School of Journalism and Mass Communication. This article first appeared in a 1992 Columbia University Graduate School of Journalism publication called Essential Liberty.