NEAR vs MINNESTOTA, 283 U.S.

697
No. 91
Argued January 30, 1931
Decided June 1, 1931

In Near v. Minnesota, a Minnesota public official sued Jay Near, who published “The Saturday Press,” under a Minnesota State statute
that allowed for temporary and permanent injunctions against those who created a “public nuisance,” by publishing, selling, or
distributing a “malicious, scandalous and defamatory newspaper.” The state court held in favor of the public official and ordered the
cessation of “The Saturday Press.” The State’s supreme court affirmed, and Near appealed to the United States Supreme Court.

The Supreme Court reversed the State court holding that prior restraint of the press is unconstitutional. The First Amendment protects
citizen’s freedom of speech from the federal government’s censorship. The Supreme Court used the Fourteenth Amendment (doctrine
of incorporation) to apply the First Amendment to state governments. The Supreme Court reasoned that the relevant statute allowing
prior restraint could lead to a system of complete censorship under the guise of preventing public nuisance. The Minnesota statute
required publications to seek official approval before publication by showing “good motives and justifiable ends” for their content, or risk
censorship. However, under the First Amendment, even if the liberty of press is abused by miscreant purveyors of scandal, it “does not
affect the requirement that the press has immunity from previous restraints when it deals with official misconduct.” Therefore, neither
the federal nor any state government could censor publications in advance (with certain exceptions such as wartime). Subsequent
punishment for such abuses may be a more appropriate remedy.

FACTS:

In a Minneapolis newspaper called The Saturday Press, Jay Near and Howard Guilford accused local officials of dereliction of
duty; specifically, the articles stated that a Jewish gangster was in control of gambling, bootlegging, and racketeering in
Minneapolis and that law enforcement officers and agencies were not energetically performing their duties. Minnesota officials
then sought a permanent injunction against the paper on the grounds that it violated a 1925 Minnesota Act (Public Nuisance
Law) because it was malicious, scandalous, and defamatory. The law provided that any person "engaged in the business" of
regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or
periodical was guilty of a nuisance and could be enjoined from further committing or maintaining the nuisance; hence, the
injunction prohibits the printing of the newspaper. The state supreme court upheld both the temporary injunction and the
permanent injunction that was eventually issued by the trial court.

- One of the targeted law enforcement officers was Floyd B. Olson, the Hennepin County attorney at the time and future
Minnesota governor.
- The defendant argued that the statute unfairly denied it liberty of the press because an injunction issued under the
statute would restrain any future newspaper publication. The state appellate court affirmed. Defendant-appellant sought
further review.

ISSUE:

Does the issuance of an injunction, pursuant to a 1925 state nuisance law, prohibiting the publication of the article by the
defendant newspaper violate its freedom of speech and of the press? (Does the Minnesota "Public Nuisance Law" violate the
free press provision of the First Amendment?)

RULING: Yes.

The recognition of authority to impose previous restraint upon publication in order to protect the community against the
circulation of charges of misconduct, and especially of official misconduct, necessarily would carry with it the admission of the
authority of the censor against which the constitutional barrier was erected. The preliminary freedom, by virtue of the very
reason for its existence, does not depend on proof of truth.

CONCLUSION / RATIO DECIDENDI:

5–4 DECISION FOR NEAR, MAJORITY OPINION BY CHARLES E. HUGHES

Under the Free Press Clause of the First Amendment, and with limited exceptions, the government may not censor or prohibit a
publication in advance.

The Supreme Court of the United States reversed the previous rulings. The Court held that the Minnesota nuisance statute of
1925, as applied against the newspaper publisher, infringed the freedom of the press guaranteed by the Fourteenth
Amendment. The language of the statute at issue placed a prior restraint on the newspaper publisher to avoid language that
might not be protected, thereby denying him the right of publication. This freedom, by virtue of its very reason for its existence,
did not depend on proof of truth.

The Court explained that the Minnesota statute cannot be justified by reason of the fact that the publisher is permitted to show,
before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. If such a
statute, authorizing suppression and injunction on such a basis, is constitutionally valid, it would be equally permissible for the
legislature to provide that at any time the publisher of any newspaper could be brought before a court. The Court concluded that,
so far as it authorized the proceedings in this action under the 1925 statute, to be an infringement of the liberty of the press
guaranteed by the Fourteenth Amendment. The Court qualified its holding by adding that the instant decision rests upon the
operation and effect of the statute, without regard to the question of the truth of the charges contained in the defendant's
periodical.

In an opinion authored by Chief Justice Charles Hughes, the Court held that the statute authorizing the injunction was facially
unconstitutional, meaning the decision was based on an analysis of the law's general applications, not the specific context of this
case. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment.
(The majority used the incorporation doctrine to apply the rights granted under the Bill of Rights to the states under the
Fourteenth Amendment.) The Court established as a constitutional principle the doctrine that, with some narrow exceptions, the
government could not censor or otherwise prohibit a publication in advance, even though the communication might be
punishable after publication in a criminal or other proceeding. In some situations, such as when speech is obscene, incites
violence, or reveals military secrets, the government might be able to justify a prior restraint.

Justices Butler, Van Devanter, McReynolds, and Sutherland dissented in an opinion written by Justice Butler.

EXTRAS

Supreme Court says Government cannot restrain the press from publishing:

Writing for the majority, Chief Justice Charles Evans Hughes began by affirming: “It is no longer open to doubt that the liberty of
the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion
by state action.”

Hughes then recast William Blackstone’s famous definition of press freedom in First Amendment terms. In his Commentaries on
the Laws of England (1765–1769), Blackstone had defined “liberty of the press” as consisting of “laying no prior restraints upon
publications.” Referring to the Minnesota Public Nuisance Law, Chief Justice Hughes observed that the law was “the essence of
censorship.”

Justice Charles Evans Hughes wrote that imposing prior restraints upon publications relating to public officers is counter to a
"deep-seated conviction that such restraints would violate constitutional right."

Understood in these terms, the permanent injunction of The Saturday Press runs counter to the conception of liberty deeply
embedded in Anglo-American jurisprudence:

“The fact that for approximately 150 years there has been almost an entire absence of attempts to impose previous restraints
upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints
would violate constitutional right.”

Although individuals could sue Near for libelous remarks, the government did not have the power to bar the publication of his
writings in advance. This would constitute an impermissible prior restraint on expression.

Split decision includes four justices who dissented about the meaning of press liberty:

Justice Pierce Butler and three other dissenters rejected both the Near majority’s view of the First Amendment’s applicability to
the states and its interpretation of the First Amendment.

“The decision of the Court,” Butler argued, “declares Minnesota and every other state powerless to restrain by injunction the
business of publishing and circulating among the people malicious, scandalous, and defamatory periodicals that ... [have] been
adjudged ... a public nuisance. It gives to freedom of the press a meaning and a scope not heretofore recognized and construes
‘liberty’ in the due process clause of the Fourteenth Amendment to put upon the states a federal restriction that is without
precedent.
MR. CHIEF JUSTICE HUGHES (Opinion)

- The statute for the suppression of public nuisance is unusual. It is no doubt that the liberty of the press is within the
liberty safeguarded by the due process clause of the 14th amendment.
- In maintaining the statute, the authority of the State to enact laws to promote health, safety, morals, and general welfare
must be admitted. The owner should not be deprived of his right to a fair return (essence of ownership).
- With the present instance, the statute has to be reviewed on whether it violates the liberty of the press (First
Amendment).
- The appellee insists that what was done was properly done only if the statute is valid and taken in a fair indication of its
scope.
- The passing of or implementing of statute must be tested by its operation and effect.

REASONS WHY UNCONSTITUTIONAL:

(1) The statute is not aimed at the individual’s redress or private wrongs. Remedies for libel remain available and
unaffected. The law is not for the protection of the person attacked, nor to punish the wrongdoer; it is for the protection
of the public welfare. (pwede raman unta libel)
(2) The statute is not directed to the circulation of scandalous and defamatory statement but at the continued publication.
The publication is indeed scandalous and defamatory, but it is the alleged dereliction of the officers.
(3) Third. The object of the statute is suppression of the offending newspaper/periodical and not punishment. The
suppression is accompanied by enjoining the publication and that restraint is the object and effect of the statute
(4) Fourth. The statute also puts the publisher under an effective censorship.

- Liberty of the press is essential to the nature of a free state; but it is no absolute. The punishment for abuse of liberty is
accorded and essential for the protection of the public.
- The statute in question does not deal with punishments, but for suppression and injunction, which is a restraint for the
publications.
- Restraints can be implemented in exceptional cases: When a nation is at war. (Example, Schenck v. United States). No
one must question the government that might obstruct its recruiting service or the publication of dates, transports, or the
location of troops. THE LIMITATIONS IS NOT APPLICABLE IN THIS CASE.
- The statute does not deal with the publication but the business of publishing defamation.

MR. JUSTICE BUTLER (Dissenting)

- There is nothing in the statute that prohibits the publication that have not been adjudged with nuisance. The
enforcement of the statue is to prevent further publication of malicious, scandalous, and defamatory articles.
- The opinion concedes that under clause a, the business may be enjoined as a nuisance. Justice Butler finds it hard to
understand why a regular business of malicious defamation cannot be enjoined.
- Existing libel laws are inadequate to effectively suppress evils; the judgement should be affirmed.

MR. JUSTICE VAN DEVANTER, MCREYNOLDS, SUTHERLAND (Concur)

- Mr. Olson’s statements are ad infinitum (again and again), ad nauseam (done repeatedly making it tiresome)
- Jew gangsters have been dominating in the crimes.