Editor’s note: Minnesota Lawyer is dipping into the Minnesota Historical Society’s archives and scooping out documents and artifacts exploring the state’s rich record of voting reforms, colorful personalities, constitutional crises, curious facial hair and more.
Jay M. Near and Howard A. Guilford, a pair of hard-nosed, vulgar tabloid journalists whose reputations had been sullied by spurious libel, blackmail and counterfeiting charges, joined forces in September 1927 to launch a small weekly Minneapolis newspaper. The Saturday Press would soon gain national notoriety and earn Near and Guilford a permanent place in the history of U.S. constitutional law. It would also earn them the hostility of a future governor and the unwelcome attention of murderous thugs.
The two publishers proclaimed lofty ambitions for their new venture. On the front page of its first issue, they declared regret for their previous work on a “local scandal sheet” and promised the Saturday Press would be an “ultra-intellectual” journal dedicated to the stamping out of high-level corruption. It was a bold undertaking in the Prohibition-era Twin Cities, where amoral police chiefs routinely cooperated with mobsters like John Dillinger and Al Capone.
Near and Guilford were aware of the risks, but powerless to protect themselves. “Word has been passed to Mr. Guilford and myself within the last week that if we persisted in our exposé of conditions as they are in this city we would be ‘bumped off,’” Near wrote. Three days later, Guilford was in the hospital, gutshot by two Chicago gangsters who forced his car off the road.
The response by law enforcement seemed to corroborate the paper’s accusations of corruption. Minneapolis Police Chief Frank Brunskill declined to formally investigate the shooting, which occurred 100 feet outside city limits. But he responded another way, according to Marda Woodbury’s “Stopping the Presses,” ordering his officers to tell news vendors not to sell the Saturday Press because it was “inciting to riot.”
Despite harboring a near-fatal abdominal wound, Guilford still had enough of a stomach to strike back at Brunskill. “The chief, in banning this paper from newsstands, definitely aligns himself with gangland [and] violates the law he is sworn to uphold,” the paper trumpeted in large type on the front page of its Oct. 15 edition. Writing from his hospital bed a few weeks later, Guilford slammed Hennepin County Attorney Floyd B. Olson for failing to crack down on the criminal underworld. “Go ahead and run for governor again, Floyd, and you’ll find that what you took to be a chip on my shoulder is really a tomahawk,” he wrote.
The newspaper struck a nerve with Olson, and he began looking for a legal way to suppress it. Corruption allegations could derail his career, but the future progressive governor focused his censure on the Saturday Press’s often venomous tone and its printing of bigoted and farfetched statements. “Practically every vendor of vile hooch, every snakefaced gangster and embryonic yegg in the Twin Cities is a Jew,” Near wrote in one column. “It is Jew thugs who have ‘pulled’ practically every robbery in this city.” In late November, Olson filed a restraining order against the Saturday Press, citing a public nuisance law passed by the legislature in 1925.
The 1925 law permitted the state to shutter “a malicious, scandalous, and defamatory newspaper, magazine, or other periodical.” It was, as John Hartmann wrote in Minnesota History Magazine, “the first law to provide for actual suppression of the public press since the passage of the Alien and Sedition Acts in 1798.” But the gag law had not yet been tested in court. The Legislature had passed it with the intent of targeting one particular newspaper editor, but the editor died before he could be legally censored.
Olson’s restraining order would push the nuisance law and the Saturday Press to the forefront of a national debate over the limits of the First Amendment. After a permanent injunction was issued by the Minnesota Supreme Court against the paper, out-of-state media rallied, with both ink and treasure, to defend the Press. The New York Times wrote that the Minnesota statute was “a vicious law” in kind with autocratic decrees issued by “the police bureaucrats who ruled Russia before the Revolution, or an oriental despot.” And the Literary Digest declared that “freedom of the press in Minnesota is reduced to about the freedom of a straightjacket.” But the small paper’s greatest champion was Chicago Tribune publisher Robert McCormick, who called the statute “tyrannical, despotic, un-American and oppressive” in a speech to the American Newspaper Publishers Association. He volunteered $25,000 and his law firm’s services to appeal the injunction.
By 1931, the case of Near v. Minnesota was pending before the U.S. Supreme Court. The Minnesota Supreme Court had ruled for a second time against the scrappy publishers. But with the ultimate fate of the controversial statute in limbo, Olson — recently elected governor — made a politically savvy hedge and, during his inaugural address, argued for its repeal. “I believe that the possibilities for abuse make it an unwise law,” he said. The House voted to rescind the gag law, but the Senate demurred, and the case went forward.
The Supreme Court’s decision was a resounding victory for Near, Guilford and the Saturday Press. The Minnesota nuisance law, the court ruled, was unconstitutional because imposing a “previous restraint” on what publishers can print is the “essence of censorship.” Justice Louis Brandeis, a Jew, praised the anti-Semitic publishers for their journalistic moxie. “They acted with courage,” he said during oral arguments. “They invited suit for criminal libel if what they said was not true.”
The ruling was the first time the court extended the protections of the Bill of Rights to the workings of a state or local government. The so-called incorporation doctrine is now enshrined in Americans’ understanding of their fundamental rights, but it was a daring interpretation in 1931. Justice Pierce Butler, the court’s only Minnesotan, drafted a withering dissent, insisting the Bill of Rights only applied to the federal government. “It was the creative work of this century’s judiciary,” the legendary CBS News President Fred W. Friendly said of the Near decision, “that nationalized the First Amendment.”
Prevailing in the Supreme Court’s marble halls, the ultimate vindication, did not augur a turn in Near and Guilford’s fortunes. Near resumed publication of the Saturday Press, but his appetite for confrontation had shrunk and he seemed diminished by the long legal struggle, signing his editorials as “The Old Man.” “Near’s attacks on public officials are less virulent, and the chief object of his wrath is the Communist party,” Hartmann wrote. “The tone of the paper is strangely subdued.”
Guilford, in contrast, was galvanized by the court’s decision. He rededicated himself to exposing corruption and launched a new paper that promised (in the masthead motto) to seek “fair play for the underdog.” But his dogged reporting inconvenienced his cold-hearted enemies. On Sept. 6, 1934, he was again shot during his commute, as he listened to the play-by-play of a Cubs game. This time it was fatal, a shotgun blast to the head.
Did the order for the hit come from the top? Plenty of circumstantial evidence points that way. Guilford had recently announced a series of radio talks to “tell the truth about Governor Floyd Olson’s connection with the underworld.” Though Olson’s chauffeur was suspiciously present at the police station the night of the murder, the department’s investigation was minimal, Woodbury wrote. Police didn’t interview key suspects for more than a year and didn’t search for fingerprints in a stolen vehicle evidence links to the hitmen.
McCormick, the Chicago Tribune publisher, concluded the worst. “We can only believe that murder was used by public authorities and the underworld to coerce the freedom of the press after unconstitutional law had failed,” he wrote.