Jay M. Near flaunted his good looks in flashy suits and elevator shoes. His rampant prejudices were exhibited elsewhere -- in the columns of a scandal sheet called the Saturday Press -- where Near hurled crude insults against Jews. The Saturday Press had a short run in 1927 before it was silenced by a county judge in Hennepin County, Minnesota. Invoking a newly enacted state law, the judge declared Near's Saturday Press to be a public nuisance, unworthy of further publication. That might have been the end of the story but, in fact, it was only the beginning of a legal saga that became a critical chapter in our constitutional literature on freedom of the press.
In Minnesota Rag , Fred W. Friendly brings the story vibrantly to life. Digging deeply into Minnesota history, the author vividly describes the times and politics that produced the Saturday Press , the state "gag" law that stopped it and, finally, the legal process that culminated in the historic U.S. Supreme Court decision of Near v. Minnesota . Every chapter of Friendly's excellent book is sprinkled with colorful profiles of the leading characters in the drama, including the sleek, sleazy Jay M. Near, the egotistical publisher of the Chicago Tribune , Colonel Robert R. "Bertie" McCormick, and the Chief Justice of the United States, Charles Evans Hughes.
Friendly reveals Near as an unprincipled opportunist who picked up random rumors, embellished them with his own bigoted views and printed them as fact. But the author also shows that Near and other scandalmongers in Minnesota at the time had plenty of material to work with, for many of Minneapolis' politicians and other public figures in the 1920s were corrupt. It was just that Near's wanton prejudices tainted almost every line that appeared in the Saturday Press . Near was never satisfied to report links between mobsters and public officials. He wrote that "JEW GANGSTERS" ruled Minneapolis and that "practically every vendor of vile hooch, every owner of a moonshine still, every snakefaced gangster and embryonic yegg in the Twin Cities is a JEW."
The Saturday Press presented a perfect target for the state's new law which provided that a newspaper could be shut down as a public nuisance if a judge declared it to be "malicious, scandalous or defamatory." And, indeed, a county judge had no trouble shutting down the Saturday Press under the new law. "The judge," writes Friendly, "seemed to regard the injunction against the Saturday Press as he would an order against a garbage dump or a burlesque show that was harmful to the public welfare."
Enter the powerful publisher of the Chicago Tribune , Colonel McCormick, who sensed that the crackdown on the Saturday Press posed a threat to other, reputable, publications. If a single Hennepin County judge could stop the publication of the Saturday Press , another judge might find a worthier newspaper to be "malicious" and shut down as well. And if such a law thrived in Minnesota, similar laws could sprout up in other states. McCormick sent the Tribune's lawyers to Minnesota to represent Near.
After Near's appeals in the Minnesota courts failed, the action moved to the U.S. Supreme Court. At oral argument Associate Justice Louis D. Brandeis lectured the attorney for the state of Minnesota about the meaning of the First Amendment. "Of course, there was defamation," Brandeis conceded. "You cannot disclose evil without naming the doers of evil. It is difficult to see how one can have a free press and the protection it affords in the democratic community without the privilege this act seems to limit. You are dealing here not with a sort of a scandal too often appearing in the press, and which ought not to appear to the interest of anyone, but with a matter of prime interest to every American citizen. What sort of matter could be more privileged?" No more impressive lesson on civil liberties could have been delivered; Justice Brandeis, a Jew, was defending an anti-Semite's right to publish stories of official corruption, slurs and all.
When Friendly approaches the secret deliberations of the justices in conference, he acknowledges his problem. "It is impossible to reconstruct a debate that was known only to nine men, the last of whom died in 1955," he writes. Still, the author is able to present a highly plausible scenario, assisted by letters from some of the justices, conversations with their families and former clerks and the final drafts of their opinions. He describes the care and conviction with which Chief Justice Hughes, writing for a bare five man Court majority, including Justice Brandeis, declared the Minnesota law that had shut down the Saturday Press unconstitutional. "The fact that the liberty of the press may be abused by miscreant purveyors of scandal," wrote Hughes, "does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct." Colonel McCormick was so impressed with the chief justice's eloquence that he had the passage chiseled in marble in the Chicago Tribune Building lobby.
There is never a doubt where Friendly, the passionate advocate of press freedom, stands on the issue in Near . His longtime commitment to a free press is conspicuous throughout his book, from his rather cumbersome subtitle to his very last chapter. But in Minnesota Rag , Friendly eschews sermons in favor of facts. In the process, he destroys a myth that has surrounded the case. As long as Near v. Minnesota has been studied, it has been common to assume that the charges leveled by Near in the Saturday Press were false. That assumption is effectively countered by Friendly whose research shows that most of Near's charges of corruption in public office were true. It is this revelation that suggests the singular importance of Near v. Minnesota as a constitutional document. The decision stands for the proposition that, with rare exception, our press must be free from government censorship. And the freedom to publish even extends to unscrupulous bigots like Jay M. Near.