Near v. Minnesota

Near v. Minnesota (1931).In Near v. Minnesota, the U.S. Supreme Court by a 5–4 vote declared state gag laws an unconstitutional prior restraint on speech. These laws, enacted in response to the proliferation of yellow journalism in the 1920s, allowed judges to halt the publication of newspapers seen as engaging in malicious, scandalous, or defamatory criticism of public officials.

Near involved a newspaper that had been shut down under Minnesota's gag law for accusing a mayor and police chief of being under the control of a gangster. Instead of addressing the unsettled question of whether defamatory criticism of public officials was protected speech under the First Amendment, the Court concentrated on the means of suppression. Comparing prior restraints and subsequent sanctions, it reasoned that the former posed a far greater danger because it prevented the speech from entering the public realm. Regardless of the content of the speech, the majority ruled, the state must rely on subsequent sanction rather than prior restraint in its efforts at suppression.

The legacy of Near is threefold. First, the decision firmly established the freedom of the press against censorship and prior restraint. Second, it applied the First Amendment to the states, thereby curtailing the use of state police power to silence unpopular speech. Third, the Court adopted the marketplace‐of‐ideas rationale for protecting free speech. This rationale views speech in terms of its social value in a democratic community: enhancing the deliberative process by injecting controversial ideas that might otherwise have been excluded.
See also Abrams v. United States; Bill of Rights; Schenck v. United States.

Bibliography

Paul L. Murphy , The Meaning of Freedom of Speech, 1972.

Patrick M. Garry