Near vs. Minnesota

A state statute authorizing courts to enjoin the publication of future issues of a newspaper or periodical, based on a finding that past issues were "malicious, scandalous, and defamatory," constitutes an invalid prior restraint on publication and violates the liberty of the press guaranteed by the Fourteenth Amendment's Due Process Clause.

• Minnesota enacted Chapter 285, Laws of 1925, declaring the business of regularly producing, publishing, or circulating a "malicious, scandalous and defamatory newspaper, magazine or other periodical" a public nuisance.
• The statute empowered county attorneys (or citizens if they refused) to bring suit to perpetually enjoin the publisher from future publication.
• Truth published with "good motives and for justifiable ends" was a defense.
• Violation of an injunction was punishable as contempt.

• Filed in District Court (Hennepin County, Minnesota).
• District Court overruled Near's demurrer challenging the statute's constitutionality and certified the question to the Minnesota Supreme Court.
• Minnesota Supreme Court upheld the statute's constitutionality (174 Minn. 457; 219 N.W. 770).
• Case remanded; District Court entered a permanent injunction abating The Saturday Press and enjoining Near from publishing any "malicious, scandalous or defamatory" periodical.
• Near appealed to the Minnesota Supreme Court, which affirmed the judgment (179 Minn. 40; 228 N.W. 326).
• Near appealed to the U.S. Supreme Court.

• Jay Near published "The Saturday Press" in Minneapolis.
• Issues published in Sept-Nov 1927 contained articles alleging:
  • A Jewish gangster controlled gambling, bootlegging, and racketeering.
  • Law enforcement officials (Chief of Police Brunskill, Mayor Leach, County Attorney Olson) were neglecting their duties, involved in graft, or failing to combat crime.
  • A grand juror was sympathetic to gangsters.
  • The County Attorney (Olson) sued under the nuisance statute, alleging the paper was "malicious, scandalous and defamatory."
  • The District Court found the paper was "chiefly devoted to malicious, scandalous and defamatory articles" and permanently enjoined its publication and any future publication of similar material.
  • Near appealed, asserting the statute violated the 14th Amendment.

• The statute imposed an unconstitutional prior restraint on publication.
• It violated the liberty of the press protected by the 14th Amendment's Due Process Clause.
• The statute effectively established censorship by allowing courts to suppress publications based on content.
• The remedy for defamation is subsequent punishment (libel suits), not prior suppression.
• The statute targeted criticism of public officials, which is essential to a free press.

• The statute was a valid exercise of the state's police power to protect public morals, peace, and welfare.
• It targeted the "business" of regularly publishing scandalous material, not isolated publications.
• The defense of truth published with good motives/justifiable ends protected legitimate speech.
• The statute addressed a nuisance (detrimental to public morals, tending to disturb peace/provoke crime) beyond simple libel.
• Existing libel laws were inadequate to suppress the evils of such scandal sheets.

• Procedural Issues: N/A
• Substantive Issues:
  • Whether the Minnesota statute, authorizing the suppression of future publications of a "malicious, scandalous, and defamatory" periodical as a public nuisance, constituted an unconstitutional prior restraint on the press in violation of the Fourteenth Amendment.

• Procedural: N/A
• Substantive: Yes. The statute is unconstitutional.
• Reasoning (SC - Hughes): - The statute's operation and effect constitute a prior restraint ("the essence of censorship"). It allows authorities to bring a publisher before a judge and, unless the publisher proves truth + good motives/justifiable ends, suppress the paper and punish future publication as contempt. - The chief purpose of the constitutional guarantee of liberty of the press is to prevent previous restraints upon publication. While not absolute, exceptions (e.g., national security, obscenity, incitement to violence) are narrow and inapplicable here. - Liberty of the press has been especially cherished for publications censuring public officials and charging official misconduct. Public officials must seek redress for false accusations through libel laws, not suppression. - Characterizing the publication as a "business" or "nuisance" does not avoid the constitutional guaranty. The publisher's right to publish without prior restraint cannot depend on publishing other content. - The defense of truth + good motives/justifiable ends does not save the statute. Requiring a publisher to prove truth and motives before publication (or to avoid suppression) is the hallmark of censorship and would reduce the constitutional protection to a "form of words." - The danger of public disturbance from scandalous publications does not justify prior restraint; the constitutional theory is that a greater evil would be caused by authority to prevent publication.

• Prior Restraint Doctrine: The core doctrine holding that government action preventing speech or publication before it occurs is presumptively unconstitutional. The SC emphasized this is the "chief purpose" of the press freedom guarantee. Prior restraints bear a "heavy presumption" against validity.
• Application: The Minnesota statute, by authorizing injunctions against future publication based on past content, was a classic prior restraint. The SC rejected arguments that targeting a "business" or providing a truth defense negated this.
• Public Official Criticism Doctrine (Emerging Principle): The SC strongly affirmed that criticism of public officials and exposure of official misconduct lie at the heart of press freedom protected by the Constitution. Remedies for false accusations must be subsequent (libel suits), not prior suppression.
• Application: The articles targeted the conduct of the Mayor, Chief of Police, County Attorney, and Grand Jury. Suppressing such criticism via prior restraint was deemed particularly offensive to constitutional values.

• "This is the essence of censorship." (p. 713) - Describing the statute's operation.
• "The chief purpose of the [First Amendment] guaranty is to prevent previous restraints upon publication." (p. 713)
• "Liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship." (p. 716)
• "The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct." (p. 720)
• "If the publisher has a right, without previous restraint, to publish them, his right cannot be deemed to be dependent upon his publishing something else, more or less, with the matter to which objection is made." (p. 720)

• Patterson v. Colorado, 205 U.S. 454 (1907): Cited for the principle that the main purpose of constitutional free press provisions is to prevent prior restraints, not freedom from subsequent punishment for improper publications. Distinguished as not involving a prior restraint statute.
• Gitlow v. New York, 268 U.S. 652 (1925): Cited to establish that liberty of the press is protected by the 14th Amendment Due Process Clause against state action.
• Schenck v. United States, 249 U.S. 47 (1919): Cited for the recognition that even speech/press freedoms have limits (e.g., "clear and present danger" in wartime), but those exceptions were inapplicable to criticism of public officials.
• Stromberg v. California, 283 U.S. 359 (1931): Cited (decided same day) reinforcing the protection of symbolic speech (red flag) under the 14th Amendment, supporting the broader principle of incorporating 1st Amendment liberties.
• Gompers v. Buck Stove & Range Co., 221 U.S. 418 (1911): Cited for the proposition that words having "all the effect of force" might be enjoined, but distinguished as not involving criticism of government.

• U.S. Const. Amend. XIV, § 1 (Due Process Clause): The basis for incorporating the First Amendment's freedom of the press guarantee against the states. The SC held the Minnesota statute violated this liberty.
• Mason's Minnesota Statutes, 1927, §§ 10123-1 to 10123-3 (Chapter 285, Laws of 1925): The statute declared unconstitutional. It defined the nuisance, authorized suits, provided defenses (truth + good motives/justifiable ends), and authorized injunctions and contempt penalties.

• N/A (No separate concurrences noted in the provided text).

• Justice Butler (Dissenting, joined by Van Devanter, McReynolds, Sutherland):
  • Argued the statute was a valid exercise of state police power to suppress a business (not isolated publications) of malicious defamation detrimental to public morals and peace.
  • Distinguished prior restraints (historical licensing by administrative officers) from this statute, which required judicial proceedings after publication and finding of nuisance.
  • Contended the defense of truth + good motives/justifiable ends was adequate protection.
  • Argued the 14th Amendment did not grant greater press freedom against states than the 1st Amendment did against Congress, and historical understanding (Blackstone, Story) permitted subsequent punishment for abuse, which this nuisance abatement resembled.
  • Emphasized the viciousness of Near's publications and the inadequacy of libel laws to address such systematic abuse.
  • Feared the decision left communities powerless against "insolvent publisher[s]" engaged in oppression, blackmail, or extortion via the press.