How an Awful Newspaper Rescued the First Amendment

Jacob Mchangama and Jeff Kosseff, authors of The Future of Free Speech, have a colorful piece in The Volokh Conspiracy about a foundational free speech case that you probably have never heard of – Near v. Minnesota – but without which America might have taken a dark turn.

The case involves a Minneapolis writer and editor, Jay Near, who published The Saturday Press in the 1930s. This publication was dedicated to muckraking – and it spewed muck by the gallons. For starters, it was intensely antisemitic, conflating the crimes of a local Jewish gangster – believed to have ordered the shooting of Near’s co-editor – with all Jews: “If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin whom I rightly call ‘Jews’ they can easily do so BY THEMSELVES CLEANING HOUSE.” Near also asserted that 90 percent of crimes were perpetrated by Jews.

If the local Jewish community was alarmed, local officials were livid, angered by Near’s accusations that they were in cahoots with gangsters. The chief of police worked with a state attorney to use a state law to shut down The Saturday Press. They based their case on a statute that made it a crime to publish “a malicious, scandalous and defamatory newspaper, magazine or other periodical.”

When the case landed before the Minnesota Supreme Court, the judges upheld the law: “It was never the intention of the Constitution to afford protection to a publication devoted to scandal and defamation.” But the U.S. Supreme Court reversed the state court and struck down the state statute as unconstitutional in 1931. Chief Justice Charles Evans Hughes found that the Minnesota law amounted to prior restraint, which he called “the essence of censorship.”

But the Court’s ruling was close, a 5-4 decision.

Mchangama and Kosseff note that if “one more justice” had sided against Chief Justice Hughes, “governments across the nation would have been free to shut down publications they deemed sufficiently ‘scandalous.’”

That narrow victory for the First Amendment made all the difference. Near v. Minnesota became so foundational that it was cited by the Court in its 1971 opinion rejecting prior restraint in the publication of the Pentagon Papers.

This case is worth keeping in mind today. Antisemitic rhetoric and conspiracy theories are once again in vogue, spread across the internet by the likes of Tucker Carlson and Candace Owens. The means to stop these speakers cold – through deplatforming and other forms of cancellation – are much more sophisticated and powerful than the clumsy legal efforts of Depression-era law enforcement.
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The temptation to shut up vile speech with these means is strong. But such censorship is self-defeating. It amplifies the speech it would curtail. It endows the Jay Nears of the world with the glamor of martyrdom, while encouraging the spread of their message through alternate channels. The maxim of Justice Louis Brandeis remains as true as ever: “Sunlight is the best disinfectant.”

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