How Controversial Cases Shape Strong First Amendment Precedents

The legal adage "bad facts make bad law" may hold true in some instances. However, this typically occurs when a court deviates from its commitment to neutral legal principles, often due to the influence of a particularly unappealing or persuasive litigant or lawyer. Conversely, when a court adheres to those neutral principles, even controversial cases can yield positive legal precedents. The 1927 case of Jay Near serves as a prime example.

Near, a free speech advocate profiled in our book, arrived in Minneapolis from Iowa in 1916. He began writing for Howard Guilford's Twin City Reporter, a newspaper known for sensationalist and sometimes racist headlines, such as "White Slavery Trade: Well-Known Local Man Is Ruining Women and Living Off Their Earnings". The paper also used derogatory terms like "yids" and "spades". Additionally, it had a reputation for accepting bribes from powerful local officials to publish scandalous articles about their rivals. Journalist Fred Friendly later described the paper’s journalism in his 1981 book Minnesota Rag as "a brand of journalism that teetered on the edge of legality and often toppled over the limits of propriety."

Within a few years, Guilford and Near left the newspaper. By then, the paper was under the control of a local crime syndicate that had established side deals with the city police. Near convinced Guilford to launch a rival newspaper, The Saturday Press, to expose the corrupt figures behind The Twin City Reporter.

Even before the first issue of The Saturday Press was published, Minneapolis Police Chief Frank Brunskill sought to halt its distribution. Undeterred by the threats, Guilford and Near published the first issue on September 24, 1927. The second page featured an editors’ note that criticized the owner of their former newspaper:

"[He is] an unscrupulous newspaper man, a man so devoid of moral courage that he hasn't the nerve to publish the paper himself—he prefers to lease it out to others to assume the responsibility, while he engineers the numerous blackmail deals that are committed by the firm, and waxes fat from the profits of gambling houses he has been interested in for several years past, said gambling houses being permitted through the social prestige (?) of the Twin City Reporter about the City Hall."

On page 4, Near wrote that he and Guilford had received word: "that if we persisted in our expose of conditions AS THEY ARE in this city, we would be 'bumped off.'" Their prediction proved accurate. Two days after the first issue’s publication, two men fired four shots at Guilford’s car in downtown Minneapolis, critically injuring but not killing him.

The next edition of The Saturday Press, published five days later, featured the front-page headline "Guilford's Assailants Indicted by Grand Jury" and reported that two "boys" in their early 20s had been indicted for first-degree assault. The article posed a pointed question:

"What of the ones who HIRED THEM TO KILL?"