Richard Cortner, THE SUPREME COURT AND THE SECOND BILL OF RIGHTS
The Stromberg and Near Cases
In September of 1927, J. M. Near and Howard A. Guilford began to publish the Saturday Press as a weekly newspaper in Minneapolis, Minnesota. Both Near and Guilford had had stormy careers in Minneapolis. Guilford had been arrested for carrying concealed weapons and had been convicted of criminal libel in 1917. He had been an unsuccessful candidate for mayor in 1918, and two years later he was tried and acquitted for extor
tion. Near and Guilford had first teamed up to publish the Twin City Reporter, but they had sold that weekly to Jack Bevans and Ed Morgan. In the Saturday Press, Near and Guilford charged that the Twin City Reporter was being used for blackmail purposes and that it was behind the gambling rackets in Minneapolis. They pledged that they would "exterminate the Twin City Reporter," despite threats that had been made against them. If anything happened to either of them, Near and Guilford warned, "old Sir John Law will begin stuffing Stillwater penitentiary full of certain gentlemen and before he finishes, that model institution will be so overcrowded that the last few dozen will have to sleep with their legs out the windows.""
A few days after the initial issue of the Saturday Press appeared, Howard Guilford was shot and seriously wounded, and another attempt was made on his life while he was in the hospital. "I was told when I refused to accept a weekly envelope from the gambling syndicate in Minneapolis sometime ago that I would be `bumped off,"' he said. "But I'm just started. As soon as I can get my shoes on again I'm going through with it. " Two men were indicted for the assault on Guilford, and the Saturday Press charged that the same "mills that ground them from school to the penitentiary are the mills the Saturday Press is asking you to close: The gambling joints, owned and operated by the Twin City Reporter gang and that publication itself. "'9
The "Twin City Reporter gang," Near and Guilford charged in the Saturday Press, was composed of Mose Barnett, Ed Morgan, Jack Bevans, and "Red" Clare. As leaders of the gang, Mose Barnett was characterized by the Saturday Press as a "fatjowled Jew" and a "slimy thing too foul to fight fair," while Ed Morgan was called "a human louse" and a "blackmailer." The Minneapolis chief of police and the head of the Law Enforcement League were part of a conspiracy protecting the gang's gambling rackets, Near and Guilford charged, and even the other Minneapolis newspapers were "cringing in fear of that Jew spawn, Mose Barnett, and that ruddy‑faced blackmailer and gangster Ed Morgan and Ed's dirty rag, the Twin City Reporter. "2°
County Attorney Floyd Olson‑who would later become governor‑was not at first attacked by the Saturday Press, but in the final issues of the newspaper, Guilford and Near charged that Olson's printing bills as a candidate for governor in 1924 had been paid by the gambling syndicate. Olson, they charged, was also in the "vest pocket of the horse thieves who have been running Minneapolis," and he consistently steered evidence of wrongdoing away from county grand juries. "And now that you are out in the open with the rest of the gang," the Saturday Press asked Olson, "what are you going to do? "2`
The anti‑Semitism of the Saturday Press grew more blatant with each issue. J. M. Near charged that "ninety percent of the crimes committed against society in this city are committed by Jew gangsters." If law abiding Jews wanted to "rid themselves of the odium and stigma THE RODENTS OF THEIR OWN RACE HAVE BROUGHT UPON THEM," Near declared, "they need only step to the front and help the decent citizens of Minneapolis rid the city of these criminal Jews." Guilford also charged that he had been shot by Jews and as a result had "withdrawn all allegiance to anything with a hook nose that eats herring." The Saturday Press, he said, would soon demand a special grand jury and a special prosecutor to ferret out crime in Minneapolis. "Up to the present we have been merely tapping on the window," he warned. "Very soon we shall start smashing glass."22
Near and Guilford were unable to "start smashing glass," however, since on November 22, 1927, they were served with an order to show cause why an injunction should not be issued restraining them from "producing, publishing, editing, circulating, having in their possession, selling and giving away a malicious, scandalous, and defamatory publication known as The Saturday Press, or known by any other name, in the State of Minnesota." This order had resulted from a complaint filed by County Attorney Olson in the Hennepin County District Court charging that the Saturday Press had printed scandalous, malicious, and defamatory attacks against the head of the Law Enforcement League, the mayor and chief of police of Minneapolis, the Minneapolis Tribune and Minneapolis Journal, members of the county grand jury, the "Jewish race," and finally, Olson himself. Olson's complaint asked the district court to issue a permanent injunction against the publication of the Saturday Press .23
Olson's action was based on a statute passed by the Minnesota legislature in 1925. The statute prohibited the publication of obscene, lewd or lascivious, or malicious, scandalous, and defamatory newspapers or other periodicals. The county district courts were authorized to issue injunctions against such publications and to punish violations of their injunctions with one‑year jail, terms and thousand‑dollar fines. During the injunction proceedings under the statute, a publisher could defend himself by proving the truth of his allegations, if published with good motives and for justifiable ends.
This Minnesota "gag law," as it would be called, had been passed by the legislature in response to complaints by many state politicians that they were being attacked by "scandal sheets." The press of Minnesota generally did not oppose the gag law, and indeed many newspapers defended it. Governor Theodore Christianson, who signed the act into law, was himself the owner of a county weekly, the Dawson Sentinel, and Herman Roe, publisher of the Northfield News and former president of the National Editorial Association, was a warm defender of the gag law, as were many other publishers of weekly Minnesota newspapers. It is therefore not surprising that the impetus to the attack on the constitutionality of the gag law came from outside the state."
Counsel for Near and Guilford opposed the issuance of an injunction by the Hennepin County District Court and argued that the gag law was a violation of the freedom of the press. Judge Mathias Baldwin rejected this argument on December 9, 1927, however, ruling that the gag law was a "valid exercise of the police power of the State," which was intended to suppress publications that were "harmful to the community at large." Judge Baldwin nevertheless admitted that by its provisions, the gag law provided "for the suppression, in the most drastic manner, of any publication proscribed," and he conceded that there was "some doubt in the court's mind as to the correctness of its holding." He therefore certified to the Minnesota Supreme Court the question of whether the gag law was constitutionally valid."
Unlike Judge Baldwin, the Minnesota Supreme Court expressed no doubts regarding the constitutionality of the gag law. The publication of scandalous materials such as the Saturday Press, the court held, was detrimental to public morals and tended to disturb the peace of the community and to provoke "assaults and the commission of crime. " There was no constitutional right, it said, "to publish a fact merely because it is a fact," and indulgence in such publications as the Saturday Press "would soon deprave the moral taste of society and render it miserable. A business that depends largely for its success upon malicious scandal and defamation can be of no real service to society." The gag law therefore did not violate the right of freedom of the press, the court concluded, but rather was a valid exercise of the police power by the legislature."
The temporary injunction against the publication of the Saturday Press was thus sustained by the Minnesota Supreme Court, but J. M. Near refused to accept defeat. In June of 1928, Near sent a copy of the supreme court's decision and other materials in his case to the American Civil Liberties Union with a request for aid. The ACLU in turn had the materials in the Near case evaluated by one of its cooperating attorneys, Carol Weiss King. King reported to the Union that the freedom of the press was "seriously menaced" by the Minnesota Supreme Court's decision, since if the gag law was indeed constitutional, "then the 14th Amendment, and inferentially the 1st Amendment, no longer protects the press against previous restraints .... I do not feel that the fact that Near and his associate Guilford are fanatics has any bearing on their right to publish whatever they see fit with only the possibility of punishment afterwards if what they have already published violates the criminal law," King continued. The Saturday Press had attacked public officials, and the "right to criticize political officials would seem pre‑eminently one which the Constitution protected. "2'
"This case," King concluded, 11 more directly involves essentially civil liberties issues than any case that I have ever had anything to do with; the prospect of a successful termination of the litigation seems to me rather better than in the average case in which the Civil Liberties Union has taken an interest." King noted, however, that the decision of the Minnesota Supreme Court had sustained a temporary injunction against the Saturday Press, and that if the ACLU wished to appeal the case to the United States Supreme Court, a permanent injunction constituting a "final decision" of the state courts would have to be entered in the Near case before such an appeal would be possible .2"
The ACLU accordingly informed Near that his case appeared to be "one of the most extraordinary cases that have ever occurred in the United States. It clearly involves issues in which this organization is interested." The ACLU executive committee, Near was informed, recognized "the very great importance of an appeal to the U.S. Supreme Court. We are ready to sponsor such an appeal and are making arrangements to that end." The Union suggested a local Minneapolis attorney to Near as an appropriate person to obtain a final decision in the case in the Minnesota courts as a prelude to an appeal to the U.S. Supreme Court .29
Near, however, vehemently rejected the ACLU's suggestion, pointing out that the attorney in question was "a close personal friend and political henchman of our county attorney, Floyd B. Olson," who had invoked the gag law against the Saturday Press. In addition, Near charged that the attorney recommended by the ACLU did not have "one fluid ounce of liberalism in his body" and was "[c]old blooded as a fish, crafty and cunning ‑but never a liberal." The attorney chosen by the ACLU, Near continued, "wouldn't fight for the rights of his great aunt unless the old lady layed [sic] down the currency in advance," and "wouldn't defend Christ if the Pilates of our political and official spoils system told him not to." "I never suspected . . . ," Near told the ACLU, "when I wrote those first few issues [of the Saturday Press], that the scum of the underworld lapped milk from the same saucer as our law enforcement bodies, city and county ‑and I am not at all certain that many of our state officials cannot be included." It did not matter to him personally, he said, "whether the infernal injunction law is wiped out or not. I can gouge and bite a living out of the world despite that injunction . . . . " But if the gag law was allowed to stand, he warned, the United States would soon have a "censorship of the press such as we have not had since Star Chamber days." If the ACLU was going to pursue his case, Near concluded, he preferred the attorney who had represented him all along without compensation, Tom Latimer. Latimer had lost the case in the Minnesota Supreme Court "not through any fault of his, but because the pressure of gangland is felt in this state, from highest to the most lowly official. "30
Because of his closeness to County Attorney Floyd Olson, Near predicted that the Minneapolis attorney favored by the ACLU would not accept the Near case, and on this point he was correct. In response to the ACLU's request that he undertake the Near case, the attorney replied that the Saturday Press "was all that was claimed by the state to be, a scandalous and defamatory sheet." The character of the Saturday Press and its "motives and objects, to say [the] least, are so questionable, that it is doubtful that the United States Supreme Court will reverse the holding of the [Minnesota] Supreme Court." "There is an odor about this particular case," the attorney continued, "which is bound to obscure the real issues involved." Floyd Olson was himself a member of the Civil Liberties Union, the attorney said, and he asked, "Will it not be time enough to have this law, or a similar one in another jurisdiction, tested in a case which makes a meritorious appeal to us on the facts as well as the law? "
Given this rejection of the Near case by its first choice of Minnesota counsel, the ACLU acquiesced in Near's insistence upon representation by Tom Latimer, while it retained Walter Pollak to pursue the appeal in the U.S. Supreme Court .32 Near assured the ACLU that he was "staking my faith in your organization and if it fails me, I'll fight on, some way, but damn [if I] will stand to be licked by this gang of outlaws." If the Civil Liberties Union were ever to "hear me say I've quit or sold out," he said, "have me shot at sunrise. "33
Near, however, was soon suffering the pangs of unemployment, and reported to the ACLU that the "fact of the matter is, I am BROKE . . . ." To extricate himself from his financial predicament, he wanted to resume publishing and to defy "this jackassical court order . . . ." "I don't want to turn gunman; I don't want to become a thief and there's no money in bootlegging! There's too many `good citizens' engaged in that business as it is." "Tell me what to do," Near asked the ACLU. "Defy the court order or quit eating." Although Roger Baldwin felt Near could take the chance of resuming his publishing career, Carol Weiss King advised him against it. "If contempt proceedings are instituted against you," King informed Near, "it will tend to embarrass us. We should like to have the record in this case completely closed up after the injunction against you has been made permanent without tag ends of contempt tending to [cloud] the main issue. "34
The role of the ACLU in the Near case ended precipitiously, however, when it was informed on November 30, 1928, that Near had turned his case over to attorneys from the Chicago Tribune .35 A representative of the Tribune had visited Minneapolis to investigate his case, Near explained later, and "after a long talk, I wrote a letter to the editor of the Tribune and told him I would be glad to have them take the case and give it full publicity as well as the necessary legal remedy. They at once sent a battery of attorneys to Minneapolis and opened the fight . . . . " The Tribune was prepared to spend ten to fifteen thousand dollars on the case, Near reported, adding that "I simply had to do something and the Tribune offered me what seemed to be the only immediate avenue through which I could escape the Olson stranglehold . . . . "36
The ACLU informed the Tribune that "we could not be in the least unfriendly to sponsorship of the case by anybody else or by any other organization which might feel a similar interest to ours. We are therefore pleased that the Chicago Tribune has taken upon itself the rendering of this high public service." "At the same time," the Union added, "we cannot help feeling that there was a clear breach of faith on Mr. Near's part in allowing us to go to expense in this matter before he put it in the hands of the Chicago Tribune," and the Union inquired whether the Tribune would be willing to reimburse it for its expenses 3' The managing editor of the Tribune, E. S. Beck, replied that the paper was under no obligation either "legal or moral" to reimburse the ACLU, and the Tribune subsequently also rejected an offer by the ACLU to file an amicus curiae brief in the Near case in the Supreme Court. The Near case thus proceeded to the Supreme Court under new management .38
This new management of the Near case consisted of a combination of the Chicago Tribune and the American Newspaper Publishers' Association (ANPA). In 1928, the ANPA created a Committee on Freedom of the Press, with Colonel Robert R. McCormick, publisher of the Tribune, as its chairman. Through the Freedom of the Press Committee, McCormick declared, the press was "in close touch with the movements menacing it. "39 Thus, the Tribune's attorneys again challenged the gag law in the Minnesota trial court, but their arguments were overruled, and a permanent injunction was issued prohibiting Near from publishing the Saturday Press or any other malicious, scandalous, or defamatory publication. The Tribune then sponsored another appeal to the Minnesota Supreme Court, but on December 20, 1929, that court again upheld the gag law and ruled that it violated "neither the State nor Federal Constitution. "40
At this point in the litigation in the Near case, Colonel McCormick felt that the case should be formally sponsored by the American Newspaper Publishers' Association, and a poll of the membership of the association resulted in an overwhelming vote in favor of sponsoring the case to the United States Supreme Court. The ANPA, however, was without funds to finance the appeal, and the Chicago Tribune continued to finance the litigation. It was vital to the freedom of the press, Colonel McCormick declared, for the Supreme Court to invalidate the gag law, since that law constituted "the greatest attack upon freedom of the press in the history of the republic" and was "tyrannical, despotic, un‑American and oppressive." No newspaper could withstand the kind of attack that had been launched against the Saturday Press, he continued, and the gag law had to be declared unconstitutional "because it is a menace to good government, a shield for official corruption and rascality, and a formidable device for keeping the public in ignorance of facts which it is entitled to know. ""
McCormick's views of the gag law were seconded by a resolution adopted at the ANPA convention in 1930. The resolution declared that the gag law was "violative of the First and Fourteenth Amendments of the Constitution of the United States, a peril to the right of property, and a menace to republican institutions . . . ." The law was a "dangerous and vicious invasion of personal liberties," the ANPA said, and it pledged to "cause its annulment and to prevent the enactment of similar legislation. "42
The Supreme Court agreed to hear the appeal of Near v. Minnesota in the spring of 1930…
Minnesota counsel did assert in the Near case that the gag law did not violate either the First or Fourteenth Amendments, since the First Amendment "is a limitation of the right of congress and not on the rights of the states," but this argument was not pressed, and Minnesota counsel quickly turned to the merits .'6
On the merits, counsel for Near argued that the Minnesota gag law allowed the imposition of a prior restraint upon freedom of the press, a restriction that was outlawed by the constitutional protection of freedom of the press in America. A permanent injunction against the publication of the Saturday Press was a form of prior restraint, it was argued, since such a restriction on publication assumed that future issues of the Press would be scandalous, malicious, or defamatory, rather than allowing publication of those issues and punishing such offenses if they occurred.
Minnesota counsel, on the other hand, denied that the gag law authorized the imposition of prior restraints on publication. Near was free to publish the Saturday Press under the trial court's injunction, it was argued, as long as he did not publish scandalous, malicious, or defamatory materials. In any case, Minnesota counsel continued, the gag law was not aimed at legitimate newspapers, but at "the scandal monger and professional defamer. To such a class the liberty of the press affords no sanctuary. The Constitution of the United States does not safeguard them in the practice of their nefarious trade. ""
The Court that heard the arguments in Stromberg v. California and Near v. Minnesota during January and April of 1931 had undergone significant personnel changes during the previous year. Chief Justice Taft had become almost paranoid with concern over what he perceived as dangerously liberal trends both on the Court and in the country at large. Writing privately in 1929, Taft said that "as long as things continue as they are, and I am able to answer in my place, I must stay on the court in order to prevent the Bolsheviki from getting control . . . . " The dissents of Holmes, Brandeis, and Stone from the conservative majority's decisions also increasingly irritated the chief justice, and he especially resented Brandeis's trips to Harvard, where he "communed with Frankfurter and that crowd." Frankfurter, Taft felt, seemed "to be in touch with every Bolshevik, Communist movement in the country. "8'
Taft also wrote to Justice Butler in 1929, expressing the hope that the conservative majority would remain intact and "prevent disastrous reversals of our present attitude." With Butler, Van Devanter, Sutherland, Sanford, and McReynolds on the Court, he said, "there will be five to steady the boat . . . . We must not all give up at once." Within a year, however, deteriorating health forced Taft to retire, and Justice Sanford died in 1930, diminishing the conservative bloc to four--Butler, Sutherland, Van Devanter, and McReynolds.
To replace Taft, President Hoover appointed Charles Evans Hughes as chief justice, and after the Senate rejection of Court of Appeals Judge John J. Parker, Owen Roberts was appointed to the Sanford vacancy.83 These personnel changes were probably crucial to the outcome of the litigation in Near v. Minnesota, since the four conservatives dissented in that case. Had Taft and Sanford still been on the bench, the Near case would probably have been decided differently.
Two weeks after the decision in the Stromberg case, the Court decided Near v. Minnesota, and with Chief Justice Hughes again writing for the Court, it repeated its validation of the Gitlow assumption in declaring the Minnesota gag law unconstitutional. "It is no longer open to doubt," Hughes said, "that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the 14th Amendment. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property.""6
Tracing the evolution of the right of freedom of the press in England and in America, Hughes pointed out that it had been "generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication." Blackstone, he noted, had thus said that the "liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published." And the "fact that for approximately one hundred and fifty years," Hughes said, "there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep‑seated conviction that such restraints would violate constitutional right. "o'
The injunctions authorized by the Minnesota gag law, Hughes held, constituted prior restraints upon the press, and in light of the historic purposes of freedom of the press, the law was unconstitutional. "The recognition of authority to impose previous restraint upon publications in order to protect the community against the circulation of charges of misconduct, and especially of official misconduct," Hughes concluded, "necessarily would carry with it the admission of the authority of the censor against which the constitutional barrier was erected."""
Justices McReynolds and Butler dissented in the Stromberg case, and Butler also explicitly acknowledged the important step the Court was taking in validating the Gitlow assumption. The Court, he said, had held that the first clause of the Red flag law "denied the right of free speech, and the court holds that right to be included in the concept of `liberty' safeguarded against state action by the due process clause of the 14th Amendment." On the basis of the record in the Stromberg case, Butler argued, "the court is not called on to decide whether the mere display of a flag as the emblem of a purpose, whatever its sort, is speech within the meaning of the constitutional protection of speech and press or to decide whether such freedom is a part of the liberty protected by the 14th Amendment . . . . "89
Justice Butler, joined by Justices Van Devanter, Sutherland, and McReynolds, again dissented in the Near case and again noted the significance of the step the Court was taking. The federal Constitution did not protect freedom of speech or of the press against state action prior to the adoption of the Fourteenth Amendment, he noted, and the Court "was not called on until 1925 to decide whether the `liberty' protected by the 14th Amendment includes the right of free speech or press." That question, Butler pointed out, "has now been finally answered in the affirmative." But even assuming the Court was correct in its ruling on this point, he argued that scandalous, defamatory, or malicious publications such as the Saturday Press could not legitimately claim protection under a proper construction of the freedom of the press.90
Howard Guilford and J. M. Near resumed their careers as publishers in Minneapolis after the gag law was invalidated in the Near case. On September 6, 1934, however, Guilford was again ambushed as he drove home. Another car pulled alongside him, and Guilford was hit in the head by a shotgun blast that killed him instantly. Near charged that Guilford had been assassinated by Communists. "Undoubtedly Howard was killed by hired assassins," he said, "and I think the killers were hired by Communists. Of course, Guilford had plenty of personal enemies, but I'm positive they had nothing to do with his murder." Near himself escaped such a violent death. He died of natural causes on April 18, 1936, at the age of sixty-two.92
The legal difficulties of…Howard Guilford, and J. M. Near had led to decisions by the Court in which freedom of speech and freedom of the press were finally explicitly acknowledged as guarantees of the Due Process Clause of the Fourteenth Amendment. In retrospect, it seems somewhat startling that this development was not the subject of more vigorous argument before the Court than was the case. After Walter Pollak persuaded the Court to state its assumption in the Gitlow case, appellants in the subsequent cases simply took that assumption for granted and devoted little time to questioning the validity of that assumption. Aside from two or three anemic attacks on the Gitlow assumption, counsel for the states did not really contest the issue. Freedom of speech and freedom of the press were read into the Due Process Clause, therefore, with little real debate over the significance of the step the Court was taking.
This lack of debate by litigants before the Court was apparently also matched by a lack of debate inside the Court. Professor Klaus Heberle has examined the papers of the justices on the Court during the period in question and has discovered little evidence of any full consideration of the step the Court was taking. The process of reading freedom of speech and freedom of the press into the Due Process Clause, he concluded, was apparently a process of "absent-minded incrementalism. "93
This lack of any thorough debate--either on or off the Court--on the issue of nationalizing freedom of speech and freedom of the press may explain the lack of agreement on the part of close observers of the Court , as well as among the justices themselves, as to when freedom of speech and freedom of the press were in fact made applicable to the states. Justice Stone, writing to Justice Frankfurter, later asserted that "free speech was held to be guaranteed by the 14th Amendment in Fiske v. Kansas by a unanimous Court, Sanford writing in 1926."95 Not only was Stone's date wrong, but others who had participated in the Gitlow-Fiske-Stromberg-Near line of cases disagreed with his assessment of the Fiske case. Chief Justice Hughes left a memorandum in his autobiographical notes referring to the Stromberg and Near cases and stating that it "fell to my lot as Chief justice in 1930 to write the opinions of the Court . . . holding that freedom of speech and of the press was embraced by the Fourteenth Amendment. "96
Hughes's date, like Stone's, was incorrect, but his position is buttressed by the dissents in the Stromberg and Near cases. Justices Butler, McReynolds, Sutherland, and Van Devanter had also participated in the Gitlow-Fiske-Stromberg-Near line of cases, and Butler, speaking for the four in the Near case, clearly indicated that the Court was taking a step it had not taken previously. The Court had not been called upon to answer the question of whether freedom of speech or freedom of the press were guaranteed by the Due Process Clause until 1925, Butler said, but that "question has now been finally answered in the affirmative." It seems apparent that Butler and the other conservatives did not believe that the Fiske case had supplied such an affirmative answer .9'
It would appear, therefore, that some justices--Stone, and perhaps Brandeis and Holmes--accepted the Gitlow assumption as an immediate reality that was soon confirmed by the Fiske case, even though the Court did not mention freedom of speech in that case. Other justices‑notably Butler, McReynolds, Sutherland, and Van Devanter‑apparently felt that the Gitlow assumption left the question of nationalizing freedom of speech and freedom of the press undecided, and the issue was not decided for them until the Stromberg and Near cases. It is probably most accurate, therefore, when speaking of the nationalization of freedom of speech and of the press, to say that the process occurred in the minds of different justices at different times during the Gitlow-Fiske-Stromberg-Near line of cases, but that a majority of the Court did not explicitly acknowledge what had happened until the Stromberg and Near cases in 1931. Perhaps the most accurate summation of what had occurred is Justice Sutherland's statement in 1936 that freedom of speech and freedom of the press had been held to be guarantees of the Due Process Clause in "a series of decisions of this court, beginning with Gitlow v. New York . . . and ending with Near v. Minnesota. . . ."98
Despite the lack of agreement on the question of when freedom of speech and freedom of the press were nationalized, the Court quickly closed ranks on the question of whether those freedoms were guarantees of the Due Process Clause. The unity of the Court on this point was symbolized in 1936 by its unanimous decision in Grosjean v. American Press Company, invalidating a Louisiana tax on newspapers that was measured by circulation. The tax violated the freedom of the press, Justice Sutherland declared for the Court, and "the states are precluded from abridging freedom of speech or of the press by force of the due process clause of the Fourteenth Amendment. "v9 And this momentum in favor of the nationalization of First Amendment freedoms continued on into 1937, when the Court, again unanimously, held in DeJonge v. Oregon that the First Amendment's guarantee of freedom of assembly and petition was also embraced by the Due Process Clause.100