Near v. Minnesota

Near v. Minnesota, 283 U.S. 697 (1931), argued 30 Jan. 1931, decided 1 June 1931 by vote of 5 to 4; Hughes for the Court, Butler, Van Devanter, Sutherland, and McReynolds in dissent. Responding to the 1920s burgeoning of yellow journalism, the 1925 Minnesota legislature passed a Public Nuisance Abatement Law, subsequently dubbed the Minnesota Gag Law. It permitted a judge, acting without a jury, to stop the publication of a newspaper if the judge found it “obscene, lewd, and lascivious” or “malicious, scandalous, and defamatory.” Periodicals could be abated and publishers enjoined for future violations. Further, the punishment of contempt was available for disobeying an injunction. Minnesota's experiment drew warm national approval as a desirable remedy for these evils.

The first use of the law was against the Saturday Press, a hard‐hitting weekly newspaper, which focused largely upon corruption and racketeering in Minneapolis. Flamboyant, but still reasonably accurate, its revelations outraged public officials, especially those targeted such as the mayor and police chief. As a result, the local attorney, Floyd B. Olson, successfully sought an injunction to close down this publication. Although the publisher, J. M. Near, was an unsavory character—anti‐Catholic, anti‐Semitic, anti‐black, and anti‐labor, the action alarmed many as a form of prior restraint. The American Civil Liberties Union offered to support Near and to challenge the law but was quickly elbowed aside by the conservative Chicago publisher Col. Robert R. McCormick, who put his legal staff on the case for its appeal to the U.S. Supreme Court. This proved an important test of the First Amendment and an occasion for applying the traditional, historic concept of “no prior restraint” to state laws inhibiting the dispersal of information that a large part of the journalistic world felt the public had a right to know.

Chief Justice Charles Evans Hughes, for the Court, held the law unconstitutional in a decision that firmly established the freedom of the press against censorship. But Hughes went further to say that “this statute … raises questions of grave importance, transcending the local interests involved in the particular action. It is no longer open to doubt that the liberty of the press … is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action” (p. 706). He also made clear that hostility to prior restraint is at the very core of the First Amendment. Only in exceptional circumstances could the possibility of turning to prior restraint be considered. Thus the “Gag Law” was struck down in its totality.

The “Four Horsemen,” speaking through Justice Pierce Butler, dissented. Charging that the decision gave to freedom of the press a meaning and scope not heretofore recognized and deploring the fact that the decision put upon the states “a federal restriction that is without precedent,” Butler argued strongly that the Minnesota law did not constitute prior restraint (p. 723). The malice, once it was established by reading the published writing, was perfectly susceptible to control through the exertion of the state's police power, a power that the justice viewed as constituting broad authority to prohibit a full range of questionable expression. But his position failed, and freedom of the press was now “incorporated” along with free speech, against the states (see Incorporation Doctrine).

The immediate reaction to the decision was overwhelmingly positive. The nation's press was gratified and relieved. Many newspapers quoted Col. McCormick's statement that “the decision of chief Justice Hughes will go down in history as one of the great triumphs of free thought.”

Near set forth a general principle that came to define freedom of the American press. Possibly, more importantly, the ruling stiffened the backbone of countless editors and publishers and helped stave off periodic attempts by politicians, judges, and prosecutors to muzzle the journalistic watchdog. It further represented an important development in the area of deregulation and decriminalization. It was a form of decontrol, striking at the use of state police power and informal local controls to curtail public information, essential to an informed citizenry.

See also Speech and the Press.

Paul L. Murphy