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Free Speech
How Bad Facts Make Good First Amendment Law
Jay Near was a hateful man whose litigation set a vital precedent for free speech.
Jacob Mchangama and Jeff Kosseff | 5.4.2026 9:20 AM
The old legal saying, "bad facts make bad law," might be true in some cases. But that usually occurs when a court strays from its commitment to a neutral set of legal principles, often because a litigant or lawyer is particularly repulsive or persuasive. If a court sticks to those neutral principles, bad facts could make good law when the court demonstrates that the rule of law endures, even in the most difficult circumstances.
Jay Near is among the free speech anti-heroes profiled in our book. After arriving in Minneapolis from Iowa, in 1916 he started writing for Howard Guilford's Twin City Reporter, which boasted sensationalist and sometimes racist headlines, such as "White Slavery Trade: Well-Known Local Man Is Ruining Women and Living Off Their Earnings," and used terms like "yids" and "spades." The paper had a reputation for taking bribes from powerful local officials to write scandalous articles about their rivals. As journalist Fred Friendly would write in Minnesota Rag, a 1981 book about Near, Guilford and Near "practiced a brand of journalism that teetered on the edge of legality and often toppled over the limits of propriety."
Within a few years, Guilford and Near left the newspaper, and Near had moved first to California and then back to Minnesota. Their former newspaper was in the hands of a local crime syndicate that had worked out side deals with the city police, so Near convinced Guilford to start a rival newspaper, The Saturday Press, which would expose the corrupt crooks running The Twin City Reporter. Police Chief Frank Brunskill wanted to stop the distribution of this upstart paper even before the first edition came out.
Despite the threats, Guilford and Near published their first issue on September 24, 1927. The second page contained an editors' note that criticized the owner of their former newspaper:
"[He is] an unscrupulous newspaper man, a man so devoid of moral courage that he hasn't the nerve to publish the paper himself—he prefers to lease it out to others to assume the responsibility, while he engineers the numerous blackmail deals that are committed by the firm, and waxes fat from the profits of gambling houses he has been interested in for several years past, said gambling houses being permitted through the social prestige (?) of the Twin City Reporter about the City Hall."
On page 4, Near wrote that he and Guilford recently received word "that if we persisted in our expose of conditions AS THEY ARE in this city, we would be 'bumped off.' "
Their prediction proved true. Two days after publication of their paper's first edition, two men fired four shots at Guilford's car as he drove in........