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A daily essay on history, freedom, and democracy, read aloud. Not from a historian or a journalist, but from a tour guide and traveler who has spent as much of life inside America as out of it. Field Notes on the Republic is one person learning out loud, writing toward an America that treats education as a virtue and means it when it calls itself a melting pot. New episodes every day.
On June 1, 1931, the Supreme Court decided a case in favor of a newspaper that almost nobody would want to defend. The paper was a Minneapolis weekly called the Saturday Press. It was a scandal sheet. It was anti-Semitic. It accused city officials of working with gangsters, and it did so in language that was ugly even by the standards of its day. The Court ruled for it anyway, by a single vote, and in doing so settled one of the most important questions in American press freedom.
That is the strange shape of this case, and it is worth sitting with before we go any further. The principle the Saturday Press won was not won because the paper was good. It was won because the principle has to cover the bad paper too, or it covers nothing.
In 1925, Minnesota passed a law, the Public Nuisance Abatement Law, better known as the Minnesota Gag Law. It allowed a judge, sitting without a jury, to declare a newspaper a public nuisance if it was "malicious, scandalous and defamatory." Once a paper was declared a nuisance, the judge could order it shut down, and could forbid the publisher from printing anything like it again.
Read that twice, because the second clause is the one that matters. The law did not only punish a newspaper for what it had already printed. It reached forward. It let a court stop a publisher from printing in the future.
That forward reach has a name. Lawyers call it prior restraint. It is the difference between two very different kinds of government power. One kind says: print what you like, and if you libel someone, they may sue you afterward. The other kind says: show us what you intend to print, and we will decide whether you may print it at all. The first leaves the press free and answerable. The second puts a government official between the writer and the page.
Hennepin County used the 1925 law against the Saturday Press, and the Minnesota courts agreed. The paper was enjoined. The state's own supreme court upheld the order. By the time the case reached Washington, the question was no longer about one tabloid. It was about whether a state could license the press in advance.
The decision came down 5 to 4. Chief Justice Charles Evans Hughes wrote for the majority, and he wrote plainly. The Minnesota law, he held, was the essence of censorship. The First Amendment did not exist to protect the comfortable or the respectable. It existed, in large part, to protect exactly the kind of speech a government would most like to stop: criticism of officials, accusations of misconduct, the reporting that makes those in power uncomfortable.
Hughes was careful, and his care is part of why the decision lasted. He did not say prior restraint could never happen. He allowed that in narrow cases, a government might block publication, troop movements in wartime was his example. And he was clear that the ruling did not leave anyone defenseless. If the Saturday Press libeled a man, that man could still sue. What the state could not do was decide, before the ink was dry, that the paper would not print at all.
There is a second thing this case did, quieter but just as large. Until the early twentieth century, the First Amendment restrained only the federal government. A state could censor a newspaper, and the First Amendment, on its own terms, had nothing to say about it. Near v. Minnesota is one of the decisions that changed that. The Court used the Fourteenth Amendment, and its guarantee that no state may deny liberty without due process of law, to apply the First Amendment's protection to the states. After Near, the freedom of the press was not only a shield against Congress. It was a shield against every statehouse too.
I want to slow down here, because this is the part of the case worth carrying.
It would have been easy, in 1931, to let the Saturday Press lose. It was not a noble publication. It trafficked in bigotry. A judge who wanted to be rid of it could find good reasons. And that is precisely the danger the Court saw. A power that can be used against the worst newspaper in Minneapolis is a power that exists, and a power that exists can be turned. The next paper a court declares a nuisance might not be a scandal sheet. It might be the one asking hard questions about the county attorney.
The freedom only means something if it does not depend on the character of the person claiming it. A principle that protects only admirable speech is not a principle. It is a preference, and preferences shift with whoever holds the gavel. Near v. Minnesota holds because it refused that shift. It located the protection in the act of publishing, not in the worth of the publisher.
That is a hard idea, and it should be. Defending the speech you find repellent is not comfortable, and the Court did not pretend it was. It simply understood that the alternative, a government with the power to license the press in advance, was worse than any single bad newspaper could ever be.
Prior restraint is one of those phrases that sounds technical and turns out to be foundational. It marks a line. On one side, a free press that can be sued, argued with, and proven wrong. On the other, a press that must ask permission. Near v. Minnesota put the line where it remains, and forty years later, when the government tried to stop newspapers from printing the Pentagon Papers, it was Near the Court reached back to.
The case asks something of a reader, too. It asks us to notice that the test of a freedom is never the easy case. The easy case is the admirable speaker saying the popular thing. The real test is the unlovable one, the paper we would rather not defend, the speech that offends us. A republic keeps the freedom of the press by keeping it for them as well. That was true in 1931. It is true now.
Field Notes on the Republic was written and read by Michael Fowler. It was produced for Quorum (Supply Co.), an American civic purveyor. Music is "When Johnny Comes Marching Home," performed by the U.S. Military Academy Band, West Point.