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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The Espionage Act (June 15, 1917, c. 30, Title I, § 3, 40 Stat. 217, 219) provides that: "Whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States . . . shall be punished." Sugarman was charged with having violated this section on July 24, 1917, by words spoken in an address made at a Socialist meeting which was attended by many registrants under the Selective Service Act, sustained in Selective Draft Law Cases, 245 U.S. 366. He was tried in the District Court of the United States for the District of Minnesota, found guilty by the jury, and sentenced. See 245 Fed. Rep. 604. Thirty-one exceptions were taken to rulings of the trial judge. Instead of seeking review by the Circuit Court of Appeals under § 128 of the Judicial Code, the case is brought here under § 238.

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