NEAR V. MINNESOTA

freedom of the press is a bedrock constitutional principle. However, the presumption that the press cannot be restrained from publishing stories was not established until 1931, when the U.S. Supreme Court issued its landmark ruling in Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357. This first amendment decision has become a core constitutional precedent that protects the press from unwarranted government interference in the newsroom.

The case grew out of the state of Minnesota's disgust at the rise of yellow journalism. Sensationalistic newspapers peddled the alleged financial and sexual misdeeds of prominent politicians and community leaders. These papers angered the subjects of the lurid stories, who demanded that something be done. In response the Minnesota legislature enacted a law in 1925 that provided for the abatement (prevention of publishing), as a public nuisance, of a "malicious, scandalous and defamatory newspaper, magazine or other periodical." Under the law, which was dubbed the Minnesota Gag Law, a judge could also stop the publication of a newspaper if the judge concluded it was "obscene, lewd, and lascivious." The judge determined these facts without a jury and was empowered to enter an injunction ordering no future publication. A person who violated the injunction and continued to publish could be charged with contempt, fined $1000, and sentenced up to 12 months in jail. A publisher could defend the periodical using truth as a defense, but the publisher had to demonstrate "good motives" and "justifiable ends."

The city of Minneapolis used the law to prosecute J.M. Near, the publisher of the Saturday Press. The paper reported stories about police corruption and racketeering and did so in a lively but reasonably accurate manner. Near's stories angered the mayor and police chief, who were alleged to have connections with organized crime and may have been guilty of dereliction of their duties. Near's newspaper was tinged with anti-Semitism, anti-labor, and anti-Catholic sentiments, so he drew little sympathy. In November 1927 the court issued an injunction ordering Near to destroy the last three months of the Press and forbidding him to publish any future editions of the newspaper or any publication that contained the same type of material. The judge had effectively prevented Near from publishing anything that did not conform to the good taste of Minnesota judges. The Minnesota Supreme Court upheld the law and the order against Near, paving the way for the U.S. Supreme Court to hear the case.

The U.S. Supreme Court, in a 5–4 decision, overturned the injunction and ruled the Minnesota statute unconstitutional as a prior restraint on the press. Chief Justice charles evans hughes, in his majority opinion, noted that the law was "unusual, if not unique," yet it raised important issues concerning freedom of the press and freedom of speech. In prior decisions the Court had begun to read some of the provisions of the bill of rights into the fourteenth amendment, thereby making these rights applicable to the actions of state governments as well as the federal government. Hughes stated that there was "no doubt" that freedom of the press and freedom of speech were protected by the Fourteenth Amendment's due process clause against actions by state and local governments. However, these freedoms were not absolute, and the state could punish those who abuse these freedoms.

Chief Justice Hughes dismissed "mere errors" by the trial court and went to the constitutional issues. He pointed out that the gag law did not seek to redress individual wrongs, such as libel against the police chief or mayor. These officials remained free to sue Near for libel and extract damages from him for his defamatory statements. Instead, the gag law was meant to protect the "public morals" and "general welfare" of the community. The law was in part troubling because the prosecutor did not have to prove the falsity of the charges in the newspaper. Moreover, the defense of truth was limited by a showing of good motives and justifiable ends. The Minnesota court made these points clear when it stated that there is "no constitutional right to publish a fact merely because it is true."

The Minnesota statute also troubled the majority because it protected public as well as private citizens. Charges against public officials "by their very nature, create a scandal." Another concern was that the object of the statute was not punishment "in the ordinary sense of the word" but the suppression of the newspaper. Therefore, a publisher who ignored the law and the court order in order to continue to expose official corruption will be shut down by the state. A publisher who seeks to continue publication must bow to official censorship and produce a newspaper that is not "malicious, scandalous, or defamatory."

Having laid out the features of the law and the Court's initial concerns, Hughes reviewed the history of freedom of the press in England and quoted approvingly from Blackstone that liberty of the press consists in laying no previous restraints upon publication and not in freedom from censure for criminal matter when published. Hughes concluded that this principle had been honored since the birth of the Republic and that there had been "almost an entire absence of attempts to impose previous restraints upon publications." Public officials must have their actions subject to public investigation and criticism. If the charges are false they may sue under libel laws. Only in exceptional circumstances should the government be granted a prior restraint.

Justice pierce butler, in a dissenting opinion joined by Justices george sutherland, William Van Devanter, and james mcreynolds, criticized the Court for broadening the scope of freedom of the press. Moreover, the Court's decision had violated principles of federalism by using the Fourteenth Amendment to overturn a state law. Butler also contended that the action of the law did not constitute a prior restraint. Once the court concluded that writings were malicious, the state's police power could be used to prohibit many types of questionable expression.

Near was a landmark case because it applied the First Amendment's freedom of the press and freedom of speech provisions to state government actions through the Fourteenth Amendment. In addition, the case announced a principle that has defined freedom of the press. Absent exceptional circumstances, editors and publishers know they are free to print their stories about public officials without fear of retribution through state censorship.

further readings

Friendly, Fred. 1981. Minnesota Rag: The Scandal Sheet that Shaped the Constitution. New York: Random House.

Meyerson, Michael I. 2001. "Rewriting Near v. Minnesota: Creating a Complete Definition of Prior Restraint." Mercer Law Review 52 (spring).

Pilgrim, Tim A. 1991. "Dictum Recasts the First Amendment: A Revisionist Examination of Near v. Minnesota." Communications and the Law 13 (June).

"Symposium: Near v. Minnesota, 50th Anniversary." 1981. Minnesota Law Review 66 (November).

cross-references

Censorship; Freedom of Speech; Freedom of the Press.

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

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

NEAR V. MINNESOTA

NEAR V. MINNESOTA, 283 U.S. 697 (1931), invalidated an act of the state of Minnesota that provided for the suppression of, as a public nuisance, a "malicious, scandalous, and defamatory newspaper, magazine, or other periodical." The Saturday Press of Minneapolis had been so suppressed, and the editor was perpetually enjoined from further engaging in the business. The Supreme Court declared the statute unconstitutional on the grounds that it violated freedom of the press and therefore the due process clause of the Fourteenth Amendment. The measure also went far beyond existing libel laws.

BIBLIOGRAPHY

Rosenberg, Norman L. Protecting the Best Men: An Interpretive History of the Law of Libel. Chapel Hill: University of North Carolina Press, 1986.

HarveyPinney/a. r.

See alsoCensorship, Press and Artistic ; Due Process of Law ; Libel .