Morning Sentinel
First Amendment protects even 'scandalous, malicious' papers
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David B. Offer Kennebec Journal & Morning Sentinel 07/21/2009

By all accounts, Jay Near was a nasty guy -- anti-Catholic, anti-Semitic, anti-black, anti-labor and personally unpleasant. Not the sort of fellow you'd invite to dinner.

Students in my class at the University of Alaska-Fairbanks will be talking about Near in September because, despite his ugly beliefs, Near's disreputable career as a journalist led to one of the nation's most important press law cases.

A 1931 U.S. Supreme Court decision in Near v. Minnesota established principles protecting freedom of the press that stand today.

Near was publisher of the Saturday Press in Minneapolis in the 1920s. His paper specialized in scandal and bigotry. In 1925, Minneapolis passed a law aimed at Near declaring that a business could be shut down if it was found to be printing "obscene, lewd, scandalous, malicious, defamatory material."

That was a pretty good description of Near's paper.

The governor of Minnesota went to court to get an order closing the newspaper. The case bounced through the Minnesota courts, eventually finding its way to the state Supreme Court, which declared the Saturday Press "a scandalous publication (that) annoys, injures and endangers the comfort and repose of a considerable number of people." The court said the paper was a public nuisance just as much as bars selling illegal liquor, houses of prostitution, "malicious fences, itinerant carnivals, lotteries and noxious weeds."

The court also said the paper could endanger public safety because printing scandalous material tended to provoke assaults.

After more legal maneuvering, Near was permanently barred from "producing, editing, publishing ... selling or giving away any publication whatsoever which is malicious, scandalous or defamatory."

Near appealed to the U.S. Supreme Court which overturned the Minnesota ruling in a decision that remains the keystone to press freedom.

In a 5 to 4 decision, the court said that if the paper damaged anyone, the remedy was a libel suit for damages, not a ruling that halted publication.

Chief Justice Charles Evans Hughes wrote that except in rare circumstances -- largely related to military secrets in wartime -- there could be no prior restraint on the press, even on scandal sheets like Near's.

The Near case and other matters of press law will be an early focus in my class.

I like to talk and write about Near because he was such a colorful character and because his court case illustrates the fact that freedoms are meaningful only when they protect those who are unpopular, not just people who agree with the majority.

Press freedom is just one part of the seminar I'll be teaching to journalism students. I'll also be talking about responsibility and ethics.

One of the most important assignments I plan to make is also one of the saddest.

I'll give each student the name of one person to research on the Internet. It won't take much digging to discover that the person is -- or was -- a journalist involved in plagiarism. It's sad that there are so many bad examples to consider. Students need to know about these unethical journalists and to understand that there are consequences -- usually, getting fired -- for unethical behavior.

The final few weeks of my first semester seminar will deal with questions that neither I nor anyone else can answer with confidence.

We'll consider the economic future of the newspaper industry. That certainly will interest my students, who are considering journalism careers.

I bring experience to the class, but no crystal ball.

Still, despite newspaper closings, staff layoffs and dismal projections from large newspaper companies, I remain optimistic about at least part of the industry where I spent more than 40 years as a reporter and editor.

Some newspaper companies that have gone deeply in debt -- including some large newspapers and newspaper companies -- are struggling and may fail. But I think smaller newspapers -- like those where I worked in La Crosse, Wis., Newport, R.I. and here in central Maine -- can succeed. They are close to readers and advertisers and provide local information that the community wants and, I think, will pay to receive.

I will tell my students that I think the Internet is less a threat to community newspapers than to major dailies because there is not enough commercial support to pay for enough Web-based journalists to gather the local information people need. Smaller newspapers are deeply involved in the communities they serve. That gives them valuable credibility. I think that unless they are burdened with too much debt, community newspapers can make enough money to support newsgathering and still return a reasonable profit.

I hope I'm right.

In Near v. Minnesota the Supreme Court emphasized that a free and robust press is a vital part of democracy. It remains so today.

I'm looking forward to helping young journalists in Alaska begin careers that could be as exciting for them as my years were for me.

David B. Offer is the retired executive editor of the Kennebec Journal and the Morning Sentinel. E-mail davidboffer@hotmail.com.

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