Legacy of a 'miscreant' Minnesota newsman

Eight decades after the death of a reckless newspaperman named Jay Near, his phantom keeps popping up in courthouses across America.

The landmark 1931 U.S. Supreme Court case that bears his name, Near vs. Minnesota, invalidated the state's newspaper gag law, which had been used to suppress Near's Minneapolis scandal sheet, the Saturday Press.

By severely restricting the government's ability to stifle speech before it happens, the 5-4 decision effectively upheld freedom of the press in the U.S.

The decision was cited last month by a lawyer who successfully fought an effort by the Mall of America to silence social media postings about a Black Lives Matter protest. Also last month, it ensured a Hopkins man's right to criticize his condominium association. It stopped a Bloomington City Council candidate's short-lived effort in October to suppress an unflattering newspaper story.

Steven Aggergaard, a Minneapolis attorney with a particular interest in the First Amendment, found the ruling cited more than 1,200 times in published cases, although the effect of Near vs. Minnesota no doubt extends much further.

"It's a federal principle of law that government really cannot restrict speech before it has the opportunity to occur," Aggergaard said. "The U.S. Supreme Court made it clear that you can punish speech. You just can't prevent it."

Aggergaard and I are among a perhaps very small group of people to perk up whenever a judge invokes the name of Near and his famous court case. Not that Near was any paragon of journalism.

Near was "anti-Catholic, anti-Semitic, anti-black and anti-labor," former CBS executive and journalism historian Fred Friendly wrote in his 1982 book, "Minnesota Rag." Near's publications wallowed in sleaze, publishing thinly sourced allegations about crimes and sexual transgressions by prominent people that sometimes crossed the line into blackmail.

But the 1920s were a sleazy time in the Twin Cities, with gangsters infesting City Hall, and the so-called scandal sheets sometimes exposed it in ways the big daily newspapers were reluctant to do.

It's telling that my newspaper at the time supported the 1925 Public Nuisance Bill, which empowered the government to suppress any obscene or "malicious, scandalous and defamatory newspaper."

In 1927, the Hennepin County attorney and future Farmer-Labor governor, Floyd B. Olson, filed a complaint to suppress the Saturday Press, arguing that its screeds defamed him, the police chief, the mayor, Jews, even the Minneapolis Tribune.

Minnesota courts upheld the gag order. But the American Civil Liberties Union, with financial and rhetorical help from Col. Robert McCormick of the Chicago Tribune, prevailed at the nation's highest court. The Supreme Court ruled that only in extreme cases, such as matters of national security, could the government exercise "prior restraint" against the press.

Chief Justice Charles Evans Hughes wrote in his opinion: "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct."

Most famously, Near vs. Minnesota provided the underpinning of the high court's decision in 1971 to allow the New York Times to publish the Pentagon Papers.

Not many cases are on that scale, yet many are still significant. In October, Hennepin County District Judge Frank Magill cited the ruling to explain why he would not honor Johnathon McClellan's request to stop the Bloomington Sun Current from publishing an article that McClellan described as "dirty political tricks."

McClellan's bid for the Bloomington City Council was unsuccessful, but it did notch one more victory for press freedom.

In December, Hennepin County District Court Referee Richard Trachy said Near vs. Minnesota protected the right of Mel Pittel to maintain his website blasting the leadership of the Meadow Creek Condominiums homeowners association. The association had sued Pittel to shut him up.

"No material distinction between Near and this case is apparent," Trachy wrote in his Dec. 17 opinion.

Jay Near died in Minneapolis in April 1936, at age 62, his place in First Amendment history hardly noted. He might roll in his grave to know that his case helped protect the rights of Black Lives Matter protesters.

But the point of Near is that no matter how much you hate what someone is saying, it's a far greater danger to democracy to stop them from saying it in the first place.

Contact James Eli Shiffer at james.shiffer@startribune.com or 612-673-4116.