This month of June stands as a memorable epoch for landmark First Amendment litigation deeply rooted in Hennepin County jurisprudence. Within this single thirty-day span, three transformative freedom of expression cases were decided by the Supreme Court of the United States exactly 95, 55, and 35 years ago, respectively. All three major controversies owe their existence to Minnesota legal battlegrounds. The culmination of this month provides an opportune occasion to reexamine these milestones, which sequentially spanned the beginning, middle, and end of their respective Junes.
Near v. Minnesota: The Bedrock Shield Against Prior Restraint
The constitutional doctrine prohibiting the prior restraint of the press by the government appears relatively unassailable today. Yet, but for a single shifting vote on the High Court, this foundational tenet of modern liberty might neither be recognizable nor accepted.
The doctrine stems from the landmark 1931 decision in Near v. Minnesota, which held that the prior censorship of a publication—categorized by the Court as a “previous restraint”—infringes upon the core protections of the First Amendment.
The controversy arose in downtown Minneapolis during the twilight of the Roaring Twenties. Hennepin County Attorney Floyd B. Olson, a native of North Minneapolis who would later rise to prominence as a progressive, Depression-era governor, initiated a lawsuit in the Hennepin County District Court—then housed within the historic City Hall building. Olson sought to permanently shutter a local periodical known as The Saturday Press. Operated by journalistic gadfly Jay Near and his colleague Howard Guilford, the publication specialized in vitriolic exposés targeting alleged municipal malfeasance and institutional corruption within the city government and the local police department. However, these crusades were simultaneously married to virulent racism and an extreme dose of anti-Semitism.
The action was brought under the Minnesota Public Nuisance Law of 1925, a statutory mechanism authorizing judicial injunctions to close down any “scandalous, malicious, or defamatory” newspaper or periodical. The district court in Minneapolis agreed with Olson’s petition, effectively silencing the publication—frequently referred to in certain contemporary circles as “The Rag”—a decision subsequently affirmed by the Minnesota Supreme Court.
Faced with institutional suppression, Near appealed to the Supreme Court of the United States, his litigation financed at the eleventh hour by the conservative Chicago media magnate, Colonel Robert McCormick. In a razor-thin 5–4 determination issued on June 1, 1931, the High Court reversed the state tribunal.
Tracing historical jurisprudence back to English common law and cultural mores, the majority opinion, authored by Chief Justice Charles Evans Hughes, deemed the statutory scheme and its enforcement an unconstitutional violation of the First Amendment’s absolute proscription against previous restraints. Conversely, four justices dissented under the leadership of Pierce Butler—the first Supreme Court jurist appointed from Minnesota—who forcefully argued that the state legislature possessed the police power to defend the public welfare.
“…morals, peace, and good order” from the “abuse of the right of free press.”
Ultimately, Butler’s dissent fell one vote short of permitting the legal preemption and previous restraint of offensive media.
New York Times Co. v. United States: The Legacy of Executive Preemption
The anti-censorship principle articulated in Near stood at the absolute epicenter of a subsequent constitutional crisis that unfolded forty years later. Though separated by decades, the spirit of the litigation remained identical. The 1971 “Pentagon Papers” controversy arose from an aggressive attempt by the administration of President Richard Nixon to halt the ongoing publication by The New York Times, quickly joined by The Washington Post, of a classified, 7,000-page Department of Defense study detailing the systemic deception and official mendacity that characterized the federal government’s escalating involvement in the Vietnam War since the mid-1950s.
The top-secret dossier had been surreptitiously leaked to the press by Daniel Ellsberg, a government contractor working for the RAND Corporation think tank, alongside his associate Anthony Russo. This unauthorized dissemination and the subsequent journalistic reporting spawned the monumental case of New York Times Co. v. United States. Though distant in time from the Minneapolis of 1931, the litigation directly channeled the Near precedent, reaffirming that governmental suppression of political reporting is anathema to a free society.
The New York Times commenced publication of the leaked documents on June 13, 1971. Within a mere three weeks, the case accelerated through the federal judiciary with unprecedented velocity, culminating in a Supreme Court decision on June 30—belying the oft-expressed aphorism that the wheels of justice grind slowly. The ruling emerged as an unusually fractured mosaic: six of the nine justices authored individual opinions, with a shifting plurality ultimately ruling in favor of the press.
Relying squarely on the Minnesota precedent, the per curiam opinion cobbled together a strict barrier against executive censorship.
…a “heavy presumption against” the constitutional validity of prior restraint of the press.
Individual opinions within the majority rejected the executive branch’s attempts to justify the requested injunction on national security grounds. The justices noted that the study comprised a historical narrative rather than immediate military secrets, and concluded that vague assertions of national security should not abrogate the fundamental law embodied in the First Amendment.
Yet, the 6–3 victory for the press was achieved over the explicit objections of three dissenting justices. Remarkably, this minority included both members of the High Court hailing from Minnesota: the St. Paul-based boyhood friends, Chief Justice Warren Burger and his childhood companion, Justice Harry Blackmun.
Cohen v. Cowles Media Co.: General Applicability and Promissory Estoppel
While the press emerged victorious in 1931 and 1971, the First Amendment shield did not prevail in the landmark case of Cohen v. Cowles Media Co.. Decided on June 24, 1991, this 5–4 Supreme Court decision reversed a Minnesota Supreme Court ruling that had vacated a $200,000 jury verdict awarded to an outed Republican political operative, Dan Cohen.
On the eve of the 1982 gubernatorial election, Cohen had delivered derogatory public records to reporters from two major Twin Cities newspapers concerning minor, decades-old offenses committed by the DFL candidate for lieutenant governor, Marlene Johnson—the first woman endorsed for that position by a major state party. Cohen surrendered this information only after receiving explicit, binding promises of anonymity from the journalists.
However, editorial executives at the Minneapolis Star Tribune (rebranded in recent years as the Minnesota Star Tribune) and the St. Paul Pioneer Press overrode their reporters’ promises of confidentiality. Expropriating the newsrooms’ traditional autonomy, the editors identified Cohen by name, exposing him as a political insider engaged in what appeared to be an underhanded, eleventh-hour campaign maneuver. The disclosure completely backfired politically; the Republican ticket suffered a resounding defeat at the hands of the DFL slate, led by former Governor Rudy Perpich in his historic political comeback, with Johnson as his running mate.
Yet, where the political narrative concluded, a complex legal odyssey began. Cohen initiated a lawsuit in the Hennepin County District Court, alleging breach of contract and fraud based on the broken promises of anonymity. A local jury returned a verdict in his favor on both counts, awarding him $200,000 in compensatory damages and $500,000 in punitive damages for fraud.
While the punitive damages were struck down on appeal, the state Supreme Court went further, wiping out the entire compensatory verdict by ruling that enforcement of the confidentiality agreement was barred by the free press protections of the First Amendment. The U.S. Supreme Court, however, narrowly reversed this holding, establishing a critical boundary regarding press accountability.
The Legal Architecture of Press Accountability
The Supreme Court’s multi-layered legal ruling outlined specific parameters governing the intersection of civil law and journalistic privilege:
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The Doctrine of General Applicability: The majority ruled that the First Amendment does not immunize the press from laws of general applicability—such as contract or promissory liability—that apply uniformly to all citizens.
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Incidental Effects Boundaries: Regulatory and civil enforcement mechanisms do not offend the Constitution simply because they exert incidental effects on the institutional media’s capacity to gather and report the news.
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The Promissory Estoppel Framework: The enforcement of a clear and definite promise, relied upon to a party’s detriment, constitutes a valid state-law claim that cannot be preempted by claims of journalistic immunity.
Minnesota’s Justice Blackmun found himself once more in the minority, serving as one of the four vehement dissenters defending the press. He opined that the media should not be subjected to civil liability for publishing truthful information regarding a political campaign, arguing that the public interest outweighed the enforcement of the confidentiality pact.
The Lasting Echoes of Minnesota Jurisprudence
Blackmun’s dissent lacked the requisite fifth vote, and the case was remanded to the Minnesota Supreme Court. Nine months later, the state tribunal adjusted its posture, invoking the equitable doctrine of promissory estoppel to formally uphold the $200,000 award to Cohen. This brought the nearly decade-long saga to a definite close, solidifying a nationwide precedent that holds the press civilly accountable when its actions violate neutral, generally applicable laws.
The principal participants in this drama later preserved their perspectives for history. Both Cohen and his highly resourceful attorney, Elliot Rothenberg, authored compelling volumes detailing the litigation. Cohen, who passed away in 2024, penned Anonymous Source: At War Against the Media, delivering a raw account from the perspective of an embattled litigant. Conversely, Rothenberg, now retired and residing in California, published The Taming of the Press, providing an analytical, introspective autopsy of the constitutional strategy from his legal vantage point. Published in 2005 and 1999 respectively, these books remain accessible, preserving vital insights into the mechanics of the Twin Cities judicial process.
Ultimately, the historical verisimilitude of these three milestone anniversaries—Near, the Pentagon Papers, and Cohen—reaffirms Minnesota’s oversized role in shaping constitutional law. Collectively, they cast an enduring spotlight on First Amendment doctrines born within the courts of this state, yet fundamentally governing the liberty of the entire nation.
