Near v. Minnesota 1931

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Near v. Minnesota 1931

Appellant: J.M. Near

Appellee: State of Minnesota, ex rel. Floyd B. Olson, County Attorney of Hennepin County

Appellant's Claim: That a state "gag law" preventing publication of his newspaper violated the First Amendment freedom of the press.

Chief Lawyers for Appellant: Weymouth Kirkland and T.E. Latimer

Chief Lawyers for Appellee: James E. Markham and Arthur L. Markve

Justices for the Court: Louis D. Brandeis, Oliver Wendell Holmes, Charles Evans Hughes (writing for the Court), Owen Josephus Roberts, Harlan Fiske Stone

Justices Dissenting: Pierce Butler, James Clark McReynolds, George Sutherland, Willis Van Devanter

Date of Decision: June 1, 1931

Decision: The law violated the freedom of the press.

Significance: This was the first time the Supreme Court declared that "prior restraints" on publication violated the First Amendment.

True or false?

In 1925, Minnesota passed a law called the Minnesota Gag Law. The law allowed judges to stop the publication of any newspaper that created a scandal or defamed (lied about) a person. The law was designed to fight "yellow journalism," which was a trend in the newspaper industry in the 1920s to print exaggerated or false stories.

J.M. Near published a newspaper in Minneapolis, Minnesota, called The Saturday Press. Near's prejudice against Catholics, Jews, and African Americans showed through in The Saturday Press. The newspaper, however, also printed articles about corruption in city politics, and many of them were true.

From September through November 1927, The Saturday Press published a series of articles that said Minneapolis was being controlled by a Jewish gangster. The articles accused the city mayor, county attorney, and chief of police of accepting bribes and refusing to stop the gangster. On behalf of the state of Minnesota, the county attorney sued Near and The Saturday Press. He charged them with violating the Gag Law by publishing scandalous and defamatory (untrue) material that lied about public officials.

Near tried to get the lawsuit thrown out of court. He argued that the Gag Law violated the First Amendment freedom of the press, which says "Congress shall make no law . . . abridging the freedom . . . of the press." Under the Due Process Clause of the Fourteenth Amendment, states also must obey the freedom of the press.

The trial judge rejected Near's defense and decided that The Saturday Press was scandalous and defamatory. He issued an order preventing Near from publishing the newspaper in the future. Near appealed the order all the way to the U.S. Supreme Court.

No prior restraints

In a close decision, the Supreme Court voted 5–4 to declare the Minnesota Gag Law unconstitutional. Writing for the Court, Chief Justice Charles Evans Hughes started by confirming what the Court had decided six years earlier. The First Amendment freedom of the press is one of the liberties, or freedoms, protected by the Fourteenth Amendment from state interference. This means that all states, including Minnesota, must obey the freedom of the press.

Chief Justice Hughes went on to explain the meaning of the freedom of the press. He told the story of how publishers in England used to need approval from government or church officials before publishing books. Justice Hughes said that the First Amendment was designed to avoid such "prior restraints" on publication. America's founders did not want the government to have the power to stop a publisher from printing what the government did not like. In fact, America's founders thought it was important for the public to be informed about the government's bad deeds so the public could be aware of and fight any government corruption.

Justice Hughes decided that the Minnesota Gag Law violated the First Amendment. Preventing Near from printing The Saturday Press in the future was a prior restraint on publication. Justice Hughes said that if the newspaper lied about public officials, those officials could sue for libel. (Libel is the publication of false information that hurts a person's reputation.) The public, however, had a right to hear about government misconduct, and the First Amendment allowed The Saturday Press to print such stories.

Decency denied

For himself and three others, Justice Pierce Butler wrote a dissenting opinion, meaning he disagreed with the Court's decision. Justice Butler thought the freedom of the press only protects the right to print "what is true, with good motives and for justifiable ends." He did not think it gave publishers the right to print material that ruins another person's reputation.

In fact, Justice Butler said that the Minnesota Gag Law was not a "prior restraint." The law punished Near and The Saturday Press only after they printed defamatory (untrue) material. It told them they could not print such material again. Justice Butler said the Court's decision threatened peace by allowing publishers to print lies about anyone.

Near's Legacy

Near has had the effect that Justice Hughes predicted and that Justice Butler feared. On the good side, it has allowed the press to be a government watchdog. For example, in 1971, the Supreme Court used Near to rule that the federal government could not stop newspapers from printing an embarrassing report about the government's involvement in the Vietnam War.

Like Justice Butler feared, however, some "tabloid" publishers today abuse the freedom of the press by printing crazy stories about people with animal bodies and babies that weigh 1,000 pounds. When these tabloids print lies about actual people, like politicians or celebrities, the injured person must file a libel lawsuit to protect his reputation.


T he dissenters in Near, Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, often voted together. By convincing just one more justice to vote with them, they were able to control the result in many of Supreme Court cases. Because of this power, they were called the Four Horsemen. This name was a comparison to Notre Dame's undefeated football offense in 1924, and to the horsemen described in the Bible's prediction of the end of the world.

In the 1930s, the Four Horsemen frequently voted against laws passed by Congress to help America get out of the Great Depression. The Great Depression was a time when many Americans lost their jobs and had trouble providing food for their families. Despite the severity of the Great Depression, the Four Horsemen saw a greater danger from passing laws that violated the U.S. Constitution. In Near, however, they were unable to stop the Court from strengthening the freedom of the press.

Suggestions for further reading

Cushman, Clare, ed. The Supreme Court Justices: Illustrated Biographies, 1789-1993. Washington, DC: Congressional Quarterly Inc., 1993.

Evans, J. Edward. Freedom of the Press. Minneapolis: Lerner Publications Company, 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

Goldman, David J. The Freedom of the Press in America. Minneapolis: Lerner Publications Company, 1967.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

Schwartz, Bernard. Freedom of the Press. New York: Facts on File, 1992.

Steins, Richard. Censorship: How Does It Conflict with Freedom? New York: Twenty-First Century Books, 1995.

White, G. Edward. American Judicial Tradition: Profiles of Leading American Judges. New York: Oxford University Press, 1988.

Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.

Zerman, Melvyn B. Taking on the Press: Constitutional Rights in Conflict. New York: Crowell, 1986.