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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A Minnesota statute passed in 1925 provided for the "abatement" of a "malicious, scandalous and defamatory newspaper, magazine or other periodical." Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 701-02 (1931). J.M. Near published a newspaper called The Saturday Press, which contained articles complaining of the mayor, district attorney, and chief of police, among others, and alleging a Jewish gambling conspiracy. As a result, the county attorney filed an action against the paper to prevent it from publishing any more issues. Near argued that the law violated the First and Fourteenth Amendments of the Constitution.

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