Arming the First Amendment

...Friendly casts him as a great hero, albeit, only for his role as the "Daddy Warbucks of the First Amendment...

...Near set the benchmark for every press freedom case that has followed...

...Despite the brevity of his well-written book, he synthesizes a daunting mountain of material and presents Near without hyperbole or oversimplification...

...It is a measureof his skill as a storyteller that our knowledge of the conclusion does not lessen the suspense building up to the courtroom climax...

...Conservatives on the Court had previously used the Fourteenth Amendment to prevent local interference with the freedom of businesses, but tended to allow the states a free hand with internal civil liberties matters...

...For by a 5-4 vote the Supreme Court, with Chief Justice Charles Evans Hughes writing the majority opinion, struck down a Minnesota law allowing judges to summarily ban any publication considered'' obscene, lewd and lascivious...

...Reviewed by Jeff Trachtman Managing editor, "The Villager" I first heard of the landmark Near v. Minnesota decision, prohibiting prior government restraint of the press, when I sued my principal over the censorship of my high school magazine in the mid-1970s...

...The author aptly quotes Senator James Reed of Missouri: "Liberty of the press is not the right to expose and defend the right...

...Above all, like Anthony Lewis' Gideon's Trumpet (on the Warren Court's rulings guaranteeing counsel for indigent defendants) and Richard Kluger's Simple Justice (on Brown v. Board ofEducation), Minnesota Rag illuminates the historical context of a crucial legal battle and the lives that were changed by it...

...in Chicago, Colonel Robert McCormick, theswash-buckling Right-wing racist who published the Tribune, responded to Near's pleas for help by making available the full legal resources of his newspaper...

...Hughes and Justice Owen Roberts, the two newcomers to theCourt, swung over to the liberals...

...malicious, scandalous and defamatory' '—thus protecting the right of journalists to freely criticize the state...

...But Hughes left open the possibility that material could be restrained if it was determined to be legally obscene, or if it posed a clear and present danger to national security—loopholes that government censors have on occasion sought to exploit...

...McCormick, who would eventually be one of Senator Joseph McCarthy's strongest supporters, was nevertheless fiercely devoted to freedom of the press...

...it is the right to advocate the wrong...

...After the gag order was upheld the following year by the Minnesota Supreme Court, another pair of strange bedfellows started to take notice of what was clearly an important constitutional dispute: In New York, pacifist Roger Baldwin of the fledgling American Civil Liberties Union (ACLU) pledged the then impressive sum of $ 150 to help the Saturday Press fight back...

...In effect, the First Amendment wasn't truly enacted until 1931...

...In a few pages, the odd threads that formed the unusual tapestry of Near v. Minnesota wend their way to their separate ends...

...Holmes, Brandeis and Justice Harlan Stone argued it was an unlawful suppression of future publication and could not be permitted under the First and Fourteenth Amendments...

...Fifty years later, Fred W. Friendly has breathed new life into this precedent known to all lawyers and students of civil liberties...

...Near, he explains, had been "something of a lifetime hobby," but he never fully appreciated its ironies prior to a chance meeting with Irving Shapiro, at the time chairman of E.I...

...When the paper drew a connection between Chief of Police Frank Brunskill and Barnett in 1929, County Attorney (and later Governor) Floyd Olson persuaded a judge to issue an injunction against it...

...The early chapters of Minnesota Rag are memorable simply for their colorful evocation of the gang wars, corruption and freewheeling journalism in Duluth and the Mesabi iron range—frontier territory in those days, booming with the discovery of the world's richest iron lodes...

...That Near's stories were usually accurate is irrelevant...

...Soon he made the crusade his own, to the exclusion of the ACLU and, quite nearly, Jay Near...

...The issue was how the Fourteenth Amendment, which extends constitutional prohibitions against abridging individual freedoms to the states, compels a state to honor the First Amendment...

...Finally, Minnesota Rag shows that good law can emerge from a murky situation...

...It was," writes Friendly, "the worst possible case...

...In words that were to be etched in marble in the lobby of the Chicago Tribune, he speaks of the increasing need to monitor government corruption and declares: "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...

...Near has been important to the student press as well, for although pre-publication censorship is still common in schools, the rights student journalists do enjoy are traceable to it...

...The legal row unfolds against this background, with a cast of characters as quirky and fascinating as that of any novel...

...The liberals, of course, held to precisely the opposite construction...

...Through an extensive review of relevant documents and interviews with survivors of the period, the author recreates the tone as well as the substance of the oral arguments before the Court and of the justices' conference on Near...

...As for the significance of the decision, Friendly shows that it was the first unambiguous declaration of the right of the press to be free from official prior restraint...

...Mur-row, Friendly has written and lectured on free press issues for a generation...

...Friendly rounds out his book by reporting the depressingly mixed press reaction to the case, and following the careers of the various participants to their conclusions: Guilford's eventual assassination in a gang war, Near's last few years of scandal-mongering before a natural death in 1936, the later fortunes of Governor Olson, Colonel McCor-mick, and Chief Justice Hughes...

...So thoroughly did Morrison offend Minnesota lawmakers that they passed a Public Nuisance Law, quickly redubbed the "gag law," for the specific purpose of shutting him up...

...Friendly highlights the fragility of the slim majority by noting that had it not been for the death of Justice Edward T. Sanford and the retirement of Chief Justice William Howard Taft, Near would almost certainly have gone the other way...

...Intrigued by the contradiction, Friendly went to Minnesota to try to piece together the history of the case...

...He found to his surprise that Near had stood up for Sam Shapiro when he was the victim of a dry cleaning protection racket...

...Thus a rabid anti-Semite with a cheap tabloid struck a crucial blow for the freedom of all journals...

...The story that finally got them into trouble, in fact, involved a Jewish mobster by the name of Mose Barnett—the very man who leaned on Sam Shapiro...

...Morrison died before he could be silenced, and the statute was subsequently brought to bear on Jay Near and Howard Guilford's equally outrageous Saturday Press...

...Shapiro told Friendly that his father, a poor Jewish dry cleaner, "thought the world" of Jay M. Near, the viciously anti-Semitic eponymous publisher...

...Trachtman v. Anker<az& no landmark (we lost in the Court of Appeals and the Supreme Court denied certiorari), but a slew of more significant and successful First Amendment battles owe their outcomes to the 1931 case...

...above blackmail and extortion," hired Near, whose fondness for racial epithets complemented his boss' penchant for sexual innuendo about local celebrities...

...In the process he also renders arcane legal reasoning intelligible to the interested layman—as he did in his The Good Guys, the Bad Guys, and the First Amendment, a work that dealt with the Fairness Doctrine in broadcasting...

...it placed freedom of the press in the worst possible light...

...Anti-Catholic, anti-Semitic, anti-black, and antilabor," writes Friendly, "Near's pen and typewriter were occasionally weapons for hire, a means of scratching out a living as a sort of scavenger of the sins and political vulnerability of others...

...DuPont de Nemours...

...Thus Justices James McReynolds, Willis Van Devanter, Pierce Butler and George Sutherland, as staunch and predictable advocates of the conservative position, contended that the gag law was a permissible sanction...

...In the Pentagon Papers case, for instance, the Supreme Court ruled 6-3 (almost 40 years to the day after Near) that the New York Times and the Washington Post could publish the documents leaked by Daniel EUsberg because the government failed to demonstrate that this posed a clear and present danger to the national security...

...And by the time he finished his exhaustive research he had patched together a crazy quilt of Gopher State lore...

...Tinker v. Des Moine, the only major students' rights case decided by the Court, is its spiritual cousin...

...Friendly also colorfully sketches each Supreme Court justice—from the ascetic Louis Brandeis to the ornery Oliver Wendall Holmes, from the dignified and cautious Chief Justice Charles Evans Hughes to the reactionary Four Horsemen who made Near's victory problematic...

...The first protagonist is John L. Morrison, a Midwestern puritan who crusaded against John Barleycorn and his evil cohorts in government in the pages of his self-righteous sheet, The Ripsaw...

...AcloseassociateofEdwardR...

...As hysterical and vile as the Saturday Press 'campaign against the "Jew gangsters running Minneapolis" was, Near and Guilford often wrote about real corruption and abuse of power...

...Guilford, a shrewd con-man "no...

...12.95...

...Hughes' opinion, reprinted as an appendix, is eloquent in its insistence upon the indispensibilty of an unshackled press to preserve our freedom...