Wednesday, April 28, 2010

The unconstitutional video cabinet location

Alternate title: Who was Jay Near, and what does he have to teach us?

Update: Post syllabus

When it tried to evict The Uptake the day after it signed a lease with it, the State of Minnesota committed act of prior press restraint, unconstitutional under Near v. Minnesota. The Capitol’s Department of Administration was acting at the behest of some of the mainstream media organizations who already had space in the press corps area in the basement of the Capitol.

Most of you are familiar with The Uptake, the “citizen video news service.” I’ve provided video for The Uptake, most recently from the Tea Party rally at the Capitol on April 15th, although I think most of the stuff we shot that day has wound up here. (Links are in the sidebar.) Anyway.

The Uptake assigns “citizen journalists” to cover events around town, often ones that do not attract MSM television coverage. In addition, The Uptake streams hours and hours of committee hearings, floor debates and press conferences from the Capitol. (Watching this, by the way, is a lot like watching NASCAR races: lots of watching things go around and around, with the occasional spectacular crackup.) The Capitol stuff used to be done, to some degree anyway, by public television, but it apparently decided its viewers were better served by a stream of do-wop reviews, self-help gurus, and a steady Saturday morning diet of painful Julia Child send-ups. Anyway, again.

The Uptake has had a video cabinet in a hallway in the Capitol press corps warrens for some time. But on the untimely death of a member of the MSM, the people who manage the press corps area told The Uptake it could rent some space if it was willing to clean out the rotting corpse. Kidding.

Mainstream media cutbacks created the vacancy. Last year, Fargo-based Forum Communications laid off one of its two Capitol reporters, relinquishing the $28-a-square-foot office it split with KARE. This session, the Post-Bulletin took half of what Forum left behind, but the rest remained unused.

You can see what is coming here, can’t you? Here’s a little more from David Brauer:

Although The Uptake is credentialed by the state House and Senate, the Post-Bulletin regards the group’s press-room presence as illegitimate. Or at least it did. Since the controversy broke, the paper’s managing editor, Jay Furst, has blogged about “raising legitimate questions” about the inclusion of ideological journalists in workspace. When we talked, he emphasized engaging the debate rather than settling it, and says he'll accept Admin's decision [as though he had a choice; very magnanimous of him].

Furst didn’t want to have to share space with the riff raff; that’s really what this is about. Especially progressive riff raff. There were some TPT reporters who felt the same way.

Most media organizations have an editorial function as well as a news function, however, the Post-Bulletin included.

The long and the short — well long, at 370 words so far — of it is that the the Capitol’s administrative staff cancelled the lease with The Uptake the day after it was signed.

As an interim solution to the situation, it has been agreed by The Uptake and the administration that The Uptake can have its spot in the hallway back.

Still with me? Good. The long preamble was necessary to understand the point of the post.

In 1925, the Minnesota Legislature passed the Public Nuisance Law, which permitted the courts to shut down “malicious, scandalous, or defamatory newspapers.”

There was a fellow named Jay Near who published a newspaper that pretty well fit the bill under the statute, and the law enforcement in Hennepin County tried to shut the Saturday Press down. One of Near’s favorite causes, though, was trying to expose the relationship between local Jewish gangs and public officials — and there certainly was some of that.

Near lost at both the trial court and the Minnesota Supreme Court level. Near was not assisted or encouraged by the mainstream media of the day. (It would be interesting to go back and see what the Post-Bulletin or its predecessor newspapers thought about the case.)  Near appealed to the U.S. Supreme Court, and he found a champion in Robert McCormick, the publisher of the Chicago Tribune. Weymouth Kirkland — a pretty famous name in legal circles — and the Tribune’s lawyer, argued the case before the United States Supreme Court.

Weymouth won a reversal for Near, and the case has stood ever since for the proposition that no prior restraint against the press can survive constitutional scrutiny. The opinion, Near v. Minnesota, is a landmark and founding principle in freedom of the press law.

Justice Louis Brandeis, in hearing the case, said that Near was attempting to expose “combinations between criminals and public officials” while observing that such combinations did, in fact, exist.

Near v. Minnesota is directly applicable to The Uptake situation. Just like the situation that Jay Near faced, the local MSM — at least parts of it — don’t support The Uptake; we can attribute a number of motives for this, some benign, but also some that are not so benign: protecting cozy relationships with politicians, staffers, and communication directors.

By cancelling the lease — the day after it was signed — the state also engaged in a transparently unconstitutional act of prior restraint. It obviously did so on the basis of complaints from the MSM about renting the upstarts some space.

The space in the Capitol for the press was not created for it to establish a guild hall. And although it would obviously come as a big surprise to some members of the Capitol press corps, the press is not the beneficiary of freedom of the press in the First Amendment. The people are.

In preparing this post, I relied on dim memories from a room in Fraser Hall, the opinion linked above, and Anthony Lewis’ terrific book, Freedom for the Thought that We Hate.

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