Essay by Charlene V. Martoni
The First Amendment to the United States Constitution states that no government shall make a law abridging the freedom of speech or of the press. A free press is essential to a democratic society because it provides a platform for the discussion of ideas and the exchange of information. However, there have been circumstances throughout history where attempts to limit freedom of the press were made in order to protect other basic rights or to prevent certain harms. An example of such an instance is illustrated in Minnesota Rag, a book by Fred W. Friendly that explains the situations surrounding Near vs. Minnesota. The book shows the complexity of the First Amendment, and it provides a description of how freedom of the press was protected from unjustified government interference by the appeal of the Public Nuisance Law, also known as the Minnesota Gag Law.
According to the novel, the situation that sparked Near vs. Minnesota had to do with the censorship of a Minneapolis newspaper called The Saturday Press, created in 1927 by Jay M. Near of Fort Atkinson, Iowa and Howard A. Guilford of Northampton, Massachusetts. The two men frequently attacked local political figures and officials in their paper, practicing “a brand of journalism that teetered on the edge of legality” (Friendly 31). Near and Guilford claimed to be waging a war against crime and corruption; however, those who were under scrutiny by the paper (and even other noteworthy newspapers) claimed that The Saturday Press ruthlessly defamed people. In an attempt to protect the public from “a malicious, scandalous, and defamatory publication,” Minnesota judges silenced the newspaper under the Public Nuisance Law (Friendly 50).
Though the censorship of The Saturday Press seemed to be an act on behalf of the public, it violated Near and Guilford’s First and Fourteenth Amendment rights, denying them due process of law and enacting a prior restraint on the press. In reaction, Near decided to appeal the decision, and the case reached the U.S. Supreme Court in 1930 with the support and guidance of Robert R. McCormick of The Chicago Tribune. By this time, Near’s personal endeavor behind Near vs. Minnesota was surpassed by McCormick’s determination to solidify an American press free from governmental censorship. McCormick’s main argument was that the Minnesota Gag Law was unconstitutional because “freedom of the press was a fundamental right which no state could take away” (Friendly 126). It also asserted that laws similar to the Minnesota Gag Law in England were among the primary grievances fought against in the American Revolution (Friendly 126). The argument cautioned that “it is better to suffer from such an evil [as defamation] than from the manifold evils which arise when the press is fettered” (Friendly 127).
By illustrating the oral arguments of January 1931, the novel explains how the decision in Near vs. Minnesota was settled. The case supporting the Minnesota Gag Law argued that the action against Near was not a previous restraint or censorship because “no injunction had been issued until after The Saturday Press had defamed public officials and become a nuisance” (Friendly 129). It also contended that “the law was beneficial to newspapers because it would ‘have the effect of purifying the press’” (Friendly 129). However understandable these points may be, Justice Louis Brandeis maintained that “a newspaper cannot always wait until it gets the judgment of a court” (Friendly 131). He said that Near and Guilford were acting with great courage to rid the city of “certain evils” (Friendly 131). He asked, “if that is not one of the things for which the press chiefly exists, then for what does it exist?” (Friendly 131).
Brandies’ question brings attention to the press acting as part of the marketplace of ideas, a theory that supports freedom of expression. This principle holds that all ideas are valuable, and if all sorts of ideas—good, bad, informed, misinformed, etc.—are presented to the public, the presence of the better ideas will outweigh the presence of the lesser ones. For example, if a person publishes an article with false information, others will combat that article with true information. However, the marketplace of ideas relies on the concept of mutual toleration and the belief that all citizens are competent and rational. The principal also holds that no authorities should monitor the marketplace, and that the government should not be able to decide who can speak or publish. This last point is what the Supreme Court was most concerned with when deciding Near vs. Minnesota.
In the final ruling of Near vs. Minnesota, the U.S. Supreme Court declared that the Minnesota Gag Law was unconstitutional because it endorsed the essence of censorship. Still, the majority opinion stated that the protection of the First Amendment, even as to previous restraint, “is not absolutely unlimited” (Friendly 152). The Chief Justice wrote that freedom of speech and of the press is vulnerable during times of war. He also wrote that “the primary requirements of decency may be enforced against obscene publications,” and that “the security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government” (Friendly 152).
The final ruling of Near vs. Minnesota, portrayed in Fred W. Friendly’s Minnesota Rag,shows the complexity of the First Amendment and the court system that defends it. The ruling holds valuable freedom of speech and of the press, but it also asserts that these freedoms are not unyielding. Free speech and a free press are integral to a democratic society because they help the people to monitor the government, to attain valuable information, and to communicate on a large scale, supporting the principle of a marketplace of ideas. However, complete freedom of speech and of the press could sustain the abilities to threaten personal and national safety, incite violence, and produce obscene content. The final ruling in Near vs. Minnesota shows that it is necessary to cautiously limit the parameters of free speech and of the press in certain circumstances. Still, freedom of speech and of the press should remain of utmost importance in American society, and they should be defended more often than not.
Friendly, Fred, W. Minnesota Rag. Minneapolis: University of Minnesota Press, 1981. Print.
© Charlene V. Martoni, all rights reserved