A Minnesota statute made it unlawful "to interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the State of Minnesota." The indictment charged that Gilbert, at a time and place designated in the state and with the United States being at war with the kingdom and imperial government of Germany, spoke out publicly against the draft and the nation's involvement in World War I.

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Chapter 285 of the Session Laws of Minnesota for the year 1925[1] provides for the abatement, as a public nuisance, of a "malicious, scandalous and defamatory newspaper, *702 magazine or other periodical." Section one of the Act is as follows:"Section 1. Any person who, as an individual, or as a member or employee of a firm, or association or organization, or as an officer, director, member or employee of a corporation, shall be engaged in the business of regularly or customarily producing, publishing or circulating, having in possession, selling or giving away.

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