Near v. Minnesota

Summary

In 1925 Minnesota enacted a Public Nuisance Law allowing a court to abate, as a public nuisance, any business of regularly publishing an obscene, lewd and lascivious or a malicious, scandalous and defamatory newspaper or periodical. Truth published with good motives and for justifiable ends was a defense. Once a paper was enjoined, further publication was punishable as contempt of court. Critics soon called it the Minnesota gag law. In the autumn of 1927 Jay M. Near and Howard A. Guilford published nine issues of The Saturday Press in Minneapolis. The paper charged that a gangster controlled gambling, bootlegging and racketeering in the city and that the police chief, the mayor and the county attorney were negligent or worse. Many articles also attacked the city's Jewish residents in abusive language. Guilford was shot and wounded soon after the first issue. Hennepin County Attorney Floyd B. Olson brought suit under the law, the district court permanently enjoined the defendants from publishing any malicious, scandalous or defamatory newspaper, and the Minnesota Supreme Court twice upheld the statute. The question was whether the statute, by authorizing courts to suppress a newspaper and forbid future issues, violated the liberty of the press protected against the states by the Fourteenth Amendment. Near, whose appeal was financed by Chicago Tribune publisher Robert R. McCormick, argued that the law imposed a censorship the Constitution forbids, whatever remedies might exist afterward for libel. Minnesota answered that the law reached only a business already proved to be malicious and defamatory, that it supplemented inadequate libel remedies, and that the state's police power extended to protecting public peace and morals. On 1 June 1931 the Court reversed, five to four. Chief Justice Hughes held that liberty of the press is within the liberty safeguarded by the Fourteenth Amendment. Examining the statute's operation rather than its form, he found that it aimed not at redressing private wrongs but at suppressing charges against public officers, and that a publisher could resume only by satisfying a judge that his matter was true and well motivated. This, he wrote, is of the essence of censorship. The historic chief purpose of the press guarantee was to prevent previous restraints; exceptional cases such as wartime troop movements, obscenity and incitement to violence did not reach criticism of officials. Abuse by miscreant purveyors of scandal was to be met by subsequent punishment through libel law. Justice Butler, joined by Justices Van Devanter, McReynolds and Sutherland, dissented. He argued that the Court gave freedom of the press an unprecedented scope against the states, that the injunction followed a full judicial finding, and that states must be free to prevent abuses. The library text gives the majority opinion and an excerpt from Butler's dissent, without footnotes. In New York Times Co. v. United States (1971), the Pentagon Papers case, the Court relied on Near in holding that the government bears a heavy burden to justify any prior restraint.

Top Lessons

• Prior restraint and subsequent punishment

  Hughes builds on an old distinction: the law may punish a publisher afterward for libel, but it may not, except in rare cases, forbid publication in advance. The difference matters because a restraint stops words from reaching the public at all, while punishment comes only after a trial on what was actually said.

• Looking at what a law does

  Minnesota described its law as abating a nuisance, a familiar use of state power. Hughes insisted that the Court look past the label to the statute's operation, which was to suppress a newspaper and require a judge's approval before it could publish again.

• Protecting a press one may not admire

  The Saturday Press made reckless charges and printed abusive attacks on Jewish citizens, and Hughes did not defend its contents. The Court's principle was that the guarantee must cover such a paper if it is to protect honest exposure of official misconduct as well.

• Federal protection and state responsibility

  Butler argued that before the Fourteenth Amendment the states alone protected the press, and did so adequately, and that the Court was imposing a federal rule without precedent. His dissent presents a reasoned defense of state authority to address abuses close to home.

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Medical Lens

Hughes's opinion and Butler's dissent concern injunctions, libel and the history of press licensing; there is no medical subject matter.