Caseflicks

Supreme Court of the United States • 1931

Near v. Minnesota Ex Rel. Olson

283 U.S. 697 | 51 S. Ct. 625 | 75 L. Ed. 1357 | 1931 U.S. LEXIS 175

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Takeaway

In short, this case established the modern rule that prior restraints on publication are presumptively unconstitutional, even when a state labels a newspaper’s allegedly defamatory campaign a public nuisance.

Background

Minnesota’s 1925 Public Nuisance Law authorized an injunction against anyone regularly publishing an obscene or a “malicious, scandalous and defamatory” newspaper or periodical. In an action concerning allegedly defamatory matter, truth was a defense only if the publisher also proved good motives and justifiable ends. A violation of an injunction could be punished as contempt.

Hennepin County Attorney Floyd Olson invoked the law against Jay Near’s Minneapolis newspaper, The Saturday Press. The paper accused public officials, including the mayor, police chief, and county attorney, of failing to confront gambling, bootlegging, and organized crime; it also contained virulent antisemitic accusations. The State alleged that nine issues were largely devoted to malicious, scandalous, and defamatory material.

On the verified complaint, a Minnesota trial court temporarily barred Near from publishing past or future editions of The Saturday Press and similar publications. Near challenged the statute under the Fourteenth Amendment, but the Minnesota Supreme Court upheld the law. After trial, at which the State introduced the complained-of editions and Near offered no evidence, the trial court permanently enjoined Near from publishing any malicious, scandalous, or defamatory newspaper. The Minnesota Supreme Court affirmed. Near appealed to the U.S. Supreme Court.

Issues

Issue #1

Whether freedom of speech and of the press are liberties protected against state action by the Fourteenth Amendment’s Due Process Clause.

Holding

Yes. Liberty of speech and of the press are fundamental liberties safeguarded from state infringement by the Fourteenth Amendment.

Reasoning

The Court treated this proposition as settled by its recent decisions, including Gitlow v. New York. Although states retain broad police powers to protect health, safety, morals, and general welfare, those powers must be exercised consistently with the essential attributes of liberties the Fourteenth Amendment protects.

Freedom of the press is not absolute. States may impose subsequent civil or criminal liability for abuses such as libel, and courts may punish publications that directly obstruct judicial functions. But the existence of permissible post-publication remedies does not authorize a state to suppress expression before it is published.

Issue #2

Whether Minnesota could permanently enjoin a newspaper as a public nuisance because it regularly published material deemed malicious, scandalous, and defamatory.

Holding

No. As applied through clause (b), the statute imposed an unconstitutional prior restraint on the press in violation of the Fourteenth Amendment.

Reasoning

The Court looked to the statute’s practical operation, rather than to Minnesota’s characterization of the publishing business as a nuisance. The law allowed public officials to obtain suppression of a newspaper based on its past publications and made future publication punishable as contempt. That mechanism was a restraint on publication, not merely a punishment for completed wrongdoing.

The historic core of press freedom is immunity from prior restraints or censorship. The constitutional tradition permits a person to publish first and then face responsibility for unlawful material, but it generally does not permit the government to require advance judicial approval before publication. This protection is especially important for criticism of public officials and allegations of official misconduct.

The statute created precisely the kind of censorship the constitutional guarantee was designed to prevent. Once a court found a periodical malicious, scandalous, and defamatory, the publisher could resume publishing only at the risk of contempt and under conditions effectively dictated by the court. The publisher had to prove not only the truth of accusations but also good motives and justifiable ends to avoid suppression.

Calling the publication of defamatory material a continuing business or a nuisance did not change the constitutional analysis. If a publisher has a right to publish criticism of official misconduct without prior restraint in one issue, that right does not disappear because the publisher makes repeated accusations or devotes much of the paper to them.

The Court acknowledged that prior restraints might be permissible in exceptional settings, such as preventing disclosure of troop movements in wartime, enforcing basic standards against obscenity, or preventing incitement to violence or overthrow by force. Minnesota’s effort to suppress allegedly defamatory attacks on officials did not fit those narrow exceptions.

The possibility that criticism may provoke resentment, violence, or public disorder was insufficient. The Court reasoned that allowing suppression whenever hostile audiences might react violently would empower those most offended by exposure to silence the press. The appropriate remedy for defamatory abuses was subsequent punishment or civil redress under libel law, not prepublication suppression.

Dissents

Justice Butler

Reasoning

Justice Butler, joined by Justices Van Devanter, McReynolds, and Sutherland, viewed the statute as a valid exercise of Minnesota’s police power against a demonstrated public nuisance. In his view, the record established that Near’s business regularly circulated malicious, scandalous, and defamatory matter, and Near had not offered evidence to justify the publications or establish their truth and proper purpose.

He rejected the majority’s conclusion that the injunction was an unconstitutional prior restraint. The historical evil of prior restraint, he argued, was licensing or administrative censorship before publication by an official exercising arbitrary discretion. Minnesota instead provided a judicial proceeding after a publisher had already engaged in a continuing course of harmful publication, with an injunction limited to continuation of the adjudicated nuisance.

Butler maintained that the Court should decide only the statute as applied to Near’s actual conduct, rather than invalidate it based on possible unconstitutional applications in other cases. He stressed that the state courts had found the newspaper to be chiefly devoted to malicious and defamatory material, and the scope of the particular decree was not properly before the Supreme Court because Near had not preserved an objection to its form.

He also saw no meaningful constitutional distinction between enjoining a continuing business of obscene publications and enjoining a continuing business of malicious defamation. Both, in his view, could threaten public morals, peace, and good order. Because ordinary libel remedies might be inadequate against an insolvent publisher engaged in blackmail, extortion, or sustained defamatory attacks, he would have affirmed Minnesota’s authority to abate the nuisance.