Meanwhile, the newspapers had themselves come under scrutiny. On February 15, representatives of the Law and Order League formally protested the newspaper accounts of Williams’s botched hanging. Citizen complaints soon turned into a full-blown criminal investigation. On February 19, a grand jury convened before Ramsey County District Judge George Bunn, who singled out the newspapers’ violations of the Smith law. “There is but one thing I desire to call your attention to at this time,” Bunn told the grand jurors, “and that is this: I call your attention to the fact that it is the law of this state relating to executions that the newspapers shall publish only a bare statement of the fact that the convict has been executed.”
“I call your attention,” Bunn continued, to “the apparent gross violation of that law by all the newspapers of this city, with reference to the execution of Williams lately.” Although Bunn made his own views clear, he left what to do about the newspapers’ flagrant violations in the grand jury’s hands. It was the first time that a Minnesota court had ever taken notice of the gag provision of the Smith law.
On March 2, after a “lively discussion” following Judge Bunn’s highly suggestive comments, the twenty-one-member grand jury indicted three St. Paul newspapers: the St. Paul Pioneer Press, the St. Paul Dispatch, and the St. Paul Daily News. The three newspapers were indicted on “the crime of publishing a detailed account of the recent Williams hanging.” One faction of the all-male grand jury, opposing the indictments, felt that the portion of Smith’s law relating to newspapers had been “carried out in the breach rather than in the observance.” The other faction “took the view that that law was on the books and if it was a bad law the best way to defeat it would be to obey it to the letter.” After several sessions, where County Attorney Kane’s advice was frequently sought, a slight majority voted in favor of the indictments. The “true bills” were drawn up against the newspapers in their corporate capacities and not against the managers, editors, or reporters. A violation of Smith’s law was a misdemeanor, punishable by up to a $100 fine or ninety days imprisonment, but since grand jurors did not want to see any newspapermen go to jail, Kane announced that the newspapers, if found guilty, would only be fined. Although Sheriff Miesen was widely believed to have flagrantly violated the law, the grand jury did not indict him.
A rumor developed that the three St. Paul newspapers, wishing to test the constitutionality of the Smith law, actually helped to procure the indictments by bringing evidence before the grand jury. An editorial in the St. Paul Pioneer Press certainly did not dispel these rumors, perhaps even lending credence to them. The newspaper noted that it had “demurred and will carry the case to the supreme court for a ruling on the validity of the law.” Even though “its own ox” had been “gored,” the paper could find no fault with the attempt to enforce the law, saying, “If it is an improper provision either it should be declared so by the courts or it should be repealed by the legislature.” Alluding to the notion that the rule of law must be upheld, editors at the St. Paul Pioneer Press wrote: “The way to secure repeal by court or legislature is to force the issue. So long as it is on the statute books, it, like other laws, should be enforced.”
Although indicted, the St. Paul Pioneer Press sympathized with the “spirit and purposes” of the Smith law. The paper editorialized: “There has been altogether too much sickening pandering to morbid tastes and too much cultivation of those tastes by hyperbolical accounts of the doings of murderers before executions and of the executions themselves.” The paper noted that, in its news coverage, it “tried to treat the Williams hanging as it treats all other news matters.” The paper tried “to give a decent and uncolored story” and “to give essential details, omitting ghastly particulars, without pandering to the demand of the morbid.” In short, it had attempted “to avoid the methods of ‘yellow journalism,’ in which some of the other newspapers delight to revel.” The Pioneer Press argued that, had all stories of hangings been of the type it had published, “there would have been no occasion for the John Day Smith law.”
While the Pioneer Press happily attacked the journalistic integrity of its competitors, that newspaper was indignant about having been indicted under the Smith law for printing news. “We do not believe it is a safe or a proper law, so far as it attempts to regulate newspaper accounts,” the paper wrote. The Pioneer Press pointed out that newspapers themselves had exposed violations of law by reporting about Sheriff Miesen’s mishandling of Williams’s hanging. “Here was a case,” the paper said, “of atrocious bungling in the execution itself and of flat violation of the law and the direct orders of the governor.” Calling the Smith law “palpably unsafe,” the Pioneer Press criticized the law’s intended effect. Under the Smith law, it said, “newspapers could make no reference to either the execution or to the presence of witnesses prohibited by the same law or any of the other circumstances which it was of importance that the public should know.” The Pioneer Press feared the worst if newspapers were silenced. “Under the press muzzling provisions of this law,” it said, “the worst orgies could be held and even the cruelest barbarities could be practiced, and those responsible for them would be protected from criticism and exposure.”
The Pioneer Press emphasized that, ironically, it had been the first to draw attention to the lack of enforcement of Smith’s law. In printing a facsimile of one of Sheriff Miesen’s invitations to a previous hanging, it had exposed Miesen’s plan to violate the law. It was this article that had prompted Governor Johnson to pen his letter to the sheriff to remind him of the law. Only after pointing out the law’s lack of enforcement had the paper been indicted. The paper quipped, “The alleged publication of the alleged facts regarding the recent alleged hanging of a reputed convicted murderer seems to be producing more alleged effect than the alleged exposure of alleged irregularities at the time of the alleged hanging.”
St. Paul’s newspapers were soon defending their actions in court. On March 3, the three indicted newspapers were formally arraigned and pled not guilty, and later filed demurrers to the indictments on the ground that publishing execution details did not constitute “a public offense.” In appearing before Judge Bunn on March 10, all three newspapers alleged that Smith’s now infamous law contravened a clause of the state constitution that said “the liberty of the press shall forever remain inviolate and all persons may freely speak, write, and publish their sentiments on all subjects, being responsible for the abuse of such right.” The newspapers’ lawyers, raising the specter of a parade of horrors, argued that a county sheriff could carry out an execution “in a brutal manner without the public ever knowing anything about it.”
The newspapers believed that executions were newsworthy events and that the public had a right to know what was done and said at them. The Smith law, the papers’ lawyers contended, should not be allowed to prevent the publication of a condemned convict’s dying words or an execution-day admission of guilt. The State of Minnesota’s representative, charged with enforcing the state’s laws, took a decidedly different view. Ramsey County Attorney Thomas Kane asserted that the Minnesota Legislature possessed the power to enact the Smith law. He said the object of the law was to prevent the publication of execution details that appealed to morbid tastes and lowered public morals. Judge Bunn, at hearing’s end, took the matter under advisement.
Just over a month later, on April 16, 1906, Judge Bunn upheld the constitutionality of the “midnight assassination law.” His written order stated in plain language that the “object and chief purpose of the act was to avoid general publicity.” “It is quite clear that forbidding the publication of the details,” Bunn ruled, “tends strongly to accomplish the purpose of the act.” Bunn, skeptical of the value of news reportage about executions, wrote, “The purpose of the act is in a large measure defeated if the morbidly curious public, who are forbidden to see the hanging, may satisfy their curiosity by reading the ghastly details in a newspaper, and feasting their eyes on pictures of the scene.”