Newspapers’ freedom to publish, though embraced in 1789, wasn’t enforced until a Chicago publisher stepped in nearly a century and a half later
By Joe Mathewson
How did a loathsome, convicted publisher of a scandalous Minneapolis weekly newspaper come to be represented by a distinguished Chicago lawyer who persuaded the United States Supreme Court to recognize for the very first time the freedom of the press?
It was the handiwork of another prominent Chicagoan, also a newspaper publisher, but a haughty aristocrat who inhabited the opposite end of the economic, professional and social spectrum from the obscure Minnesotan.
The defendant: Jay M. Near, of The Saturday Press.
The lawyer: Weymouth Kirkland, of mighty Kirkland & Ellis.
The ringmaster: Colonel Robert R. McCormick, of the Chicago Tribune.
The cause: Near v. Minnesota, the “first great press case.”
The year: 1931.
Weymouth Kirkland and Robert “Bertie” McCormick had worked together before, seeking court acknowledgement of the freedom of the press guaranteed by the First Amendment. Surprisingly, in today’s rear-view mirror, it wasn’t easy. In earlier cases the Supreme Court had upheld contempt-of-court convictions of a Colorado publisher (indeed, a former United States senator!) and an Ohio editor for publishing criticisms of judges, and in a series of sedition prosecutions that grew out of verbal dissent during World War I, the justices affirmed the convictions, giving short shrift to the First Amendment.
Nevertheless, the feisty McCormick, who would later become a prominent opponent of the New Deal and of U.S. entry into World War II, was zealous in defense of freedom of the press. The skillful Kirkland was an apt ally. He had risen to the top of the law firm co-founded two decades earlier by McCormick himself (after law studies at Northwestern University) before he followed his famous grandfather Joseph Medill and his uncle Robert W. Patterson Jr. into running the Tribune.
Weymouth Kirkland artfully defended the newspaper in high-profile libel cases brought by none other than Henry Ford (he won, but was awarded only six cents in damages) and idiosyncratic Chicago Mayor William “Big Bill” Thompson (he lost).
Thus when McCormick, so prominently devoted to freedom of the press, received an appeal for financial and legal help from the impecunious Jay M. Near of Minneapolis, he couldn’t bring himself to ignore it. Near’s cantankerous weekly had been shut down and he was convicted of violating a Minnesota statute that empowered local officials to close any “malicious, scandalous and defamatory” publication. The paper had alleged repeatedly that a Jewish gangster was in control of gambling, bootlegging and racketeering in Minneapolis, and that he operated with impunity by bribing the police chief and with the acquiescence of the mayor and the county prosecutor. Shutting the paper down, Near protested, constituted a prior restraint of publication, a form of censorship clearly targeted by the drafters of the First Amendment.
Near, however, was not a sympathetic personality on which to build an important test of freedom of the press. Like McCormick, he was anti-Communist, but he was also, in the words of Fred W. Friendly, former CBS news president who wrote a book about the case in 1981 (see link below) , “anti-Catholic, anti-Semitic, antiblack and antilabor.” Nevertheless, McCormick embraced his cause.
Inconveniently, Kirkland was preoccupied with other matters, so his partner, Howard Ellis, argued Near’s appeal before the Minnesota Supreme Court. He lost, causing Near to send McCormick an angry letter, quoted by Friendly, protesting that if the Colonel intended Ellis to take the case to the U.S. Supreme Court, “there isn’t one bit of use spending your money or tapping my slim stock of patience going higher... ”
Undaunted, McCormick pressed on. He rounded up near-unanimous support from his fellow publishers, members of the American Newspaper Publishers Association, though they offered no financial backing. They left that responsibility to McCormick.
This time, before the U.S. Supreme Court, Near’s case was argued by Weymouth Kirkland. He won, but by a single vote, 5-4. Curiously, the Court paid little attention to the First Amendment, but acknowledged a “liberty of the press” protected by the due process clause of the Fourteenth Amendment, interpreting it as making the guarantees of the Bill of Rights applicable to the states as well as to the federal government. The Minnesota statute and thus the actions of the Minnesota officials, the Court declared, were unconstitutional.
Though a narrow victory, it was a watershed ruling. Anthony Lewis of The New York Times, in a later book, called it the Court’s “first great press case.” Four decades after the decision it was cited by the Supreme Court as the precedent for its historic ruling in the electrifying Pentagon Papers case, Nixon v. New York Times Co., which all but prohibited governmental prior restraint of publication.
The irascible McCormick is remembered now as anti-British, anti-United Nations, sometimes openly bigoted himself, a rigid conservative who immodestly labeled the Tribune “The American Paper for Americans” and “The World’s Greatest Newspaper.” Unfortunately, it’s forgotten that he also was a hero of freedom of the press.
Joe Mathewson teaches journalism at Northwestern University’s Medill School. He previously covered the U.S. Supreme Court for The Wall Street Journal and practiced law in Chicago. This article is adapted from his book, The Supreme Court and the Press: The Indispensable Conflict, to be published in winter 2011 by the Northwestern University Press in the Medill School’s “Visions of the American Press” series edited by David Abrahamson.
Near v. Minnesota (1931) Supreme Court ruling
Near v. Minnesota (Wikipedia) Good background of the case
Minnesota Rag: Corruption, Yellow Journalism, and the Case That Saved Freedom of the Press by Fred W. Friendly
Weymouth Kirkland (Illinois Institute of Technology)