Russian gag law recalls Minnesota history | Essay

March 31, 2022 6:00 am

Minnesota has an ignominous history of suppressing speech. Image by Steve Buissinne/Pixabay.

The Russian Federal Assembly enacted a measure in early March imposing punishment on journalists and others critical of official government policies and practices, including the invasion of Ukraine. 

Russian President Vladimir Putin pushed the so-called “anti-hooliganism” law through his puppet legislative body, criminalizing criticism of his policies or reporting about that dissent. Spurred by the outpouring of dissatisfaction with his brutal military assault on Ukraine, the measure carries penalties of up to 15 years imprisonment and large fines, if the perpetrators have any money left after the wreckage wrought on the country’s economy.

In place only a few weeks, it has already deterred domestic and foreign reporting about the reactions in Russia to Putin’s aggression. To his credit, the rapidity with which he got the law enacted was breathtaking compared to the more delayed pace of American legislation; there are no filibusters in the Kremlin.

The latest to fall prey to Putin’s “gag” law was Novaya Gazeta, Russia’s last major media outlet critical of the invasion, which recently shuttered. Called “the most independent newspaper in Russia today” by chair of a Nobel Prize Committee, it suspended publication Monday.

Putin’s perversion of freedom of expression — a slender commodity in Russia before the invasion — is not alien to the United States or Minnesota, however.

Similar legislation has been enacted and enforced in this country, and Minnesota has been Ground Zero, in times of both war and peace.

Minnesota Measures

During World War I, the Minnesota Legislature created a Committee of Public Safety, which had a mission of ferreting out and suppressing anti-war views and conduct. The watchdog agency was bolstered by a state sedition law proscribing expression of views antithetical to the country’s participation in the war, the drafting of men into military service, or impeding the conscription process then underway. 

The Minnesota measure was comparable to ones at the federal level and some that sprung up in other states as the United States entered the Great War. They ignited litigation that established ground-breaking doctrines concerning freedom of expression under the First Amendment that still resonate today, more than a century later.

A number of criminal prosecutions reached the U.S. Supreme Court immediately following the end of the war and into the Roaring Twenties, a period of prosperity for many — coupled with political and social turmoil agitated by others.

While generally upholding the laws and the criminal convictions, the Supreme Court rulings created a new framework for adjudicating claims arising under the First Amendment, which up to that time had not been considered applicable to state laws and was rarely raised in challenging federal legislation.

One notable instance was a 1919 case from Pennsylvania entitled Schenck v. United Stateswhich upheld a criminal conviction for violating federal law. The highlight of the litigation was a concurring opinion by Justice Oliver Wendell Holmes articulating the famous “clear and present danger” standard for adjudicating free expression cases. That portion of the decision, evoking the dramatic aphorism forbidding yelling “fire in a crowded theatre,” became the hallmark of First Amendment law.

The mantra, later transformed into a proscription of words that incite “imminent” lawless behavior, has formed the foundation of freedom of expression law in this country for more than a century. 

The next year, the Supreme Court followed similar reasoning in a parallel case from Minnesota. Entitled Gilbert v. State, it upheld the conviction under the state sedition law of a Red Wing man who gave a rousing anti-war speech in that community, asserting the inequity of the draft because it weighed heaviest on less affluent men. The Court endorsed the state statute suppressing speech because “discouragement” of the war effort “was not an advocacy that the citizen had a right to make.”

At the federal level, a version of that reasoning underlied conviction of a Vietnam War protester more than 50 years later for burning his draft card in violation of a statutory requirement that draft age men maintain their cards in their possession, which the Supreme Court upheld as a permissible law in 1968 in United States v. O’Brien.

On the civil front, Minnesota became a short-lived poster child for suppression of free speech and press, before it would become an important harbinger of First Amendment rights.

A few years after the Gilbert case, the Legislature enacted a “gag” law allowing authorities to close down publications that authorities regarded as “scandalous,” “defamatory,” or otherwise offensive.

Minnesota trial and appellate courts upheld the law, but the U.S. Supreme Court struck it down in 1931 in a landmark 5-4 ruling in Near v. Minnesota, which deemed the law an impermissible “previous restraint” on freedom of expression. 

Holmes, still on the Court in his early 90s, cast the decisive vote against the statute, overcoming a strident dissent by the four members of the tribunal’s ultra-conservative majority, written by Pierce Butler, Minnesota’s first Supreme Court justice. 

Persecution and punishment

These suppressive laws — both criminal and civil — were derived from the ignominious Alien and Sedition Acts enacted by the administration of John Adams in the late 1790s, in response to criticism of his policies supporting Great Britain in its feuding with the post-revolutionary French government. The measures led to the persecution, prosecution and punishment of anti-Adams administration editors and others, who faced fines and jail terms.

The laws were a major factor in Thomas Jefferson’s victory over Adams in the ensuing election of 1800, albeit by a narrow margin in the House of Representatives after none of the multiple candidates received a majority of electoral votes. Many of Jefferson’s adherents were swept into Congress. That outcome prompted Adams to leave the nation’s capital in a huff and not attend his successor’s inauguration, an incivility followed by very few of his successors until President Donald Trump pulled off that stunt last year.

The Jeffersonians, fulfilling a campaign promise, promptly repealed the odious laws, although not without prosecuting a few opposition publishers. 

Although President Joe Biden walked back his call for the ouster of Putin as Russian president, it may take a similar regime change there for the Russian people to replicate that repeal result here.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.