(Bloomberg Opinion) -- There are plenty of reasons to sympathize with Jeff Bezos in his battle with the National Enquirer. If true, the accusations of blackmail brought by the billionaire founder of Amazon would be just the latest outrage from the tabloid, which has made a specialty of scabrous reporting and ethically questionable tactics and techniques.
But that doesn’t mean we should always applaud the campaigns of powerful moguls to silence sleazy newspapers. History shows that even the most odious publications and the worst practices of scandal sheets can inadvertently play an important role in maintaining the freedom of the press. There’s no better illustration than the sordid story of the Saturday Press.
In the early 20th century, hundreds, if not thousands of small, local newspapers began imitating the “yellow journalism” style pioneered by William Randolph Hearst. These papers, most of them small-time weeklies, wallowed in the gutter. They viciously attacked minorities; they also published lurid stories of sex and crime as well as what one historian has described as “grossly exaggerated accounts of malfeasance by public officials.”
The editors displayed a brazen disregard for journalistic ethics, creating entirely bogus stories, or hyping more modest scandals with salacious details. Then, copy in hand, they would approach the person they implicated in funny business, threatening to go public unless the victim made it worth their while to stay silent. Most victims acceded to editorial demands: Extortion was difficult to prove in court.
Among the editors accused of this practice was a miscreant from Minnesota named Howard Guilford who had a hand in several scandal sheets. It’s little surprise that the wealthy and powerful hated Guilford, and they may have been behind trumped-up accusations of counterfeiting and other crimes leveled against him. More credible, though, were multiple charges of libel and extortion, though he was only found guilty on a couple of occasions.
In 1915, Guilford published the Twin City Reporter, a paper that trafficked in sex, attacks on the wealthy and powerful, but also went after the Salvation Army, the Catholic Church and other institutions. In addition, it aimed a constant stream of epithets and invective against minority groups.
The Twin City Reporter eventually went under, but Guilford joined up with another lowlife named Jay Near a decade later to publish the Saturday Press in Minneapolis. In the first issue, the duo claimed: “No blackmail ever dirtied our hands although we are aware that the taint of blackmail sullies our reputations.”
With that out of the way, they promised to clean up the city, which was, by almost universal assent, one of the most corrupt in the country, thanks to bootlegging and other forms of organized crime. Guilford and Near wasted no time, immediately accusing the police, the mayor, and the county district attorney, Floyd Olson, of corruption.
These charges were accompanied by rank anti-Semitism.
There have been too many men in this city who have been taking orders from JEW GANGSTERS,” they warned readers. “Therefore we have Jew gangsters practically ruling Minneapolis. It is Jew thugs who have ‘pulled’ practically every robbery in this city … Practically every vendor of vile hooch, every owner of a moonshine still, every snake-faced gangster and embryonic yegg [a safecracker] in the Twin Cities is a JEW.
Minnesota’s legislature had passed a measure called the Public Nuisance Abatement Law a few years earlier. This statute, which took direct aim at scandal sheets, used the “prior restraint” doctrine to empower the state to suppress newspapers deemed “malicious, scandalous, and defamatory.” This perfectly captured the editorial line of the Saturday Press.
After the paper called Olson a “Jew lover,” the district attorney filed suit under the law, shutting it down for defaming the Jewish community, the police, and just about everyone else of importance in the Twin Cities. After a jury found the paper guilty of the charge, Guilford abandoned the cause. But Near took the case to the state Supreme Court, arguing that the state law infringed on the freedom of the press.
Near’s attorney made a novel, if honest, argument: “Every person does have a constitutional right to publish malicious, scandalous, and defamatory matter, though untrue, and with bad motives, and for unjustifiable ends.” The state, he argued, could not quash such stupidity in advance; it could only prosecute the newspaper after the fact.
Chief Justice Samuel B. Wilson, writing in the majority opinion, didn’t buy it: “No agency can hush the sincere and honest voice of the press; but our Constitution was never intended to protect malice, scandal, and defamation, when untrue or published without justifiable ends.”
The court ruled against Near, and ordered the Saturday Press shuttered for the foreseeable future.
But by this time, other newspapers, most notably the Chicago Tribune, decided to lend their support to Near – not because they admired him, but because they believed a deeper issue was at stake. Col. Robert R. McCormick, the Tribune’s publisher, had already been sued by the city of Chicago for libel. He had won that suit; now he hoped to help Near win his legal battle, too.
From late 1929 to 1931, the case rolled toward the U.S. Supreme Court, underwritten by McCormick and the American Newspaper Publishers Association. In June 1931, the Supreme Court handed down a narrow, 5-4 decision in favor of Near and declared the Minnesota statute unconstitutional.
The four conservative judges dissenting in the case focused on the fact that Guilford and Near had been disreputable, anti-Semitic rabble-rousers for many years. The judges lambasted the duo’s earlier “criminal” partnership at the Twin City Reporter, and argued that the law that had closed their subsequent collaboration at the Saturday Press was an appropriate response to publishers who “contrive and put into effect a scheme or program for oppression, blackmail or extortion.”
Chief Justice Charles Evan Hughes, writing for the majority, ignored the indefensible character of Guilford and Near, as well as the assertion that Olson may have in fact enjoyed an “impeccable” reputation prior to the attacks on his character. A bigger question was at stake: “The fact that liberty of the press can be abused does not make less necessary the immunity of the press from previous restraint.”
The case became a landmark decision that established new, expansive definitions of freedom of the press. It has since become the basis of important decisions that have nothing to do with the rants of a couple of Minnesota anti-Semites. When the New York Times fought an attempt to halt the publication of the Pentagon Papers, for example, Near v. Minnesota played a starring role, buttressing their case.
Which brings us back to the National Enquirer. At the moment, the issues in the Bezos imbroglio look pretty pedestrian. But should the billionaire pursue a legal case on the grounds of privacy or libel law, courts will rule in ways that could have profound implications for the freedom of the press down the line.
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Stephen Mihm, an associate professor of history at the University of Georgia, is a contributor to Bloomberg Opinion.
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