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

• 283 U.S. 697 (1931)
• Vote: 5–4
• For the Court: Hughes
• Dissenting: Butler, Van Devanter, Sutherland, and McReynolds

In 1927 Jay Near and Howard Guilford established the Saturday Press in Minneapolis. Near, an experienced journalist, was known for his bigotry against Catholics, blacks, Jews, and organized labor. He specialized in reporting scandals in a sensational manner.

From its first issue, the Saturday Press hammered away at alleged ties between gangsters and police in a series of sensational stories. The paper proved especially tough on city and county government officials.

The Saturday Press attacked, among others, county prosecutor Floyd Olson, who later became a three-term Minnesota governor. The Saturday Press called him “Jew lover” Olson and accused him of dragging his feet in the investigation of organized crime. Olson was enraged. On November 21, 1927, he filed a complaint under Minnesota's Public Nuisance Abatement Law with the county district judge. Olson charged that the Saturday Press had defamed various politicians, the county grand jury, and the entire Jewish community.

The county judge issued a temporary restraining order against the Saturday Press prohibiting publication of the paper under the Public Nuisance Abatement Law. That law was known as a “gag law” because it authorized a form of censorship called prior restraint. Prior restraint allows government officials to restrict a newspaper or magazine in advance from publishing materials of which they disapprove.

Near and Guilford obeyed the restraining order issued against them. They claimed, however, that it was unconstitutional. As the Minnesota courts dealt with this case, Howard Guilford withdrew from the legal battle. More important, Near recruited a rich and powerful ally. Robert McCormick, the publisher of the Chicago Tribune, sympathized with Near for a number of reasons. Like Near, the bigoted McCormick disliked blacks, Jews, and other minorities. McCormick had also fought numerous legal battles over articles published in his paper. These struggles had taught McCormick the importance of defending the 1st Amendment. He did not want the Illinois legislature to copy the Minnesota gag law. And so the interests of the rich publisher in Chicago and those of the poor scandalmonger in Minnesota coincided. Near wanted his little paper back in business; McCormick wanted a free press. McCormick committed the Tribune's full reSources to the case. His lawyers represented Near in future legal proceedings.

The Minnesota Supreme Court decided against Near and upheld the Public Nuisance Abatement Law. Near, with McCormick's support, appealed to the U.S. Supreme Court.

The Issue

Near's attorney claimed that the Minnesota Public Nuisance Abatement Law allowed prior restraint and thus violated the 1st Amendment, which guarantees freedom of speech and press, and the 14th Amendment, which forbids the states to “deprive any person of life, liberty, or property, without due process of law.” He argued that the Constitution guaranteed freedom of the press as a fundamental right. No state could take the right away through prior restraint.

Near's attorney admitted that the Saturday Press article was “defamatory” of government officials. But, he added, “So long as men do evil, so long will newspapers publish defamation.” The attorney argued, “Every person does have a constitutional right to publish malicious, scandalous and defamatory matter, though untrue and with bad motives, and for unjustifiable ends.” Such a person could be punished afterward. The remedy, then, was not censorship of an offending newspaper by prior restraint. Rather, the state should bring specific criminal charges against such a newspaper after it published the material.

Minnesota argued that the Public Nuisance Abatement Law was constitutional and that the injunction against the Saturday Press was not prior restraint. The injunction was issued only after the Saturday Press had attacked the reputations of public officials. Thus, the law punished an offense already committed. The Constitution was designed to protect individual freedoms, not serve the purposes of wrongdoers, such as Near and his scandalous Saturday Press.

Opinion of the Court The Court ruled in favor of Jay Near and held that the Minnesota Public Nuisance Abatement Law was a prior restraint on the press that violated both the 1st Amendment and the due process clause of the 14th Amendment.

Chief Justice Charles Evans Hughes, in the majority opinion, declared the Minnesota law “the essence of censorship.” He stated that libel laws, not newspaper closures, should counter false charges and character assassinations. He emphasized that the right to criticize government officials was one of the foundations of the American nation.

Hughes stressed that “this statute [the Public Nuisance Abatement Law] 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.”

Dissent

Justice Pierce Butler argued that the Minnesota law was not an example of prior restraint. Rather, it allowed public officials to control unacceptable publications after reading the published material. Butler also argued that the U.S. Supreme Court had imposed on a state government “a federal restriction that is without precedent.” He was referring to the fact that this decision was the first time that the Court used the due process clause of the 14th Amendment to apply the 1st Amendment right to freedom of the press to a state. Butler and his colleagues in dissent said this should not be done.

Significance

Jay Near was triumphant when he learned of the Court's verdict. In October 1932 Near again began to publish the Saturday Press. The paper did not survive, however, and in April 1936 Near died in obscurity.

The Court's ruling also pleased Colonel McCormick. He wrote Chief Justice Hughes: “I think your decision in the Gag Law case will forever remain one of the buttresses of free government.”

As a result of Near v. Minnesota, the United States has built a tradition against prior restraints unlike any other in the world. This tradition has helped keep the free press from censorship by government officials merely because it is critical of them.

In 1971 the Supreme Court relied on the Near precedent in the Pentagon Papers case (New York Times Co. v. United States). In that case the federal government attempted to stop the New York Times from publishing secret documents describing the history of U.S. involvement in the Vietnam War. The Court ruled against the government and permitted publication of the documents.

See also Freedom of press and speech; Incorporation doctrine; New York Times Co. v. United States; Prior restraint

Sources

• Fred W. Friendly, Minnesota Rag: The Dramatic Story of the Landmark Court Case That Gave New Meaning to Freedom of the Press (New York: Random House, 1981).
• Paul L. Murphy, “The Case of the Miscreant Purveyor of Scandal”, in Quarrels That Have Shaped the Constitution, edited by John A. Garraty (New York: Harper & Row, 1987)

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.

Near v. Minnesota
Supreme Court of the United States
Argued January 30, 1930 Decided June 1, 1931
Full case name: J. M. Near v. Minnesota, ex rel. Floyd B. Olson, County Attorney, Hennepin County, Minnesota Citations: 283 U.S. 697; 51 S. Ct. 625; 75 L. Ed. 1357; 1931 U.S. LEXIS 175; 1 Media L. Rep. 1001 Prior history: Temporary injunction granted, 11-27-27; defendants' demurrer denied, State ex rel. Olson v. Guilford, Hennepin County District Court; affirmed, 219 N.W. 770 (Minn. 1928); judgment and injunction for plaintiffs, Hennepin County District Court; affirmed, 228 N.W. 326 (Minn. 1929) Subsequent history: None
Holding
A Minnesota law that imposed permanent injunctions against the publication of newspapers with "malicious, scandalous, and defamatory" content violated the First Amendment, as applied to the states by the Fourteenth. Minnesota Supreme Court reversed.
Court membership
Chief Justice: Charles Evans Hughes Associate Justices: Oliver Wendell Holmes, Jr., Willis Van Devanter, James Clark McReynolds, Louis Brandeis, George Sutherland, Pierce Butler, Harlan Fiske Stone, Owen Josephus Roberts
Case opinions
Majority by: Hughes Joined by: Holmes, Brandeis, Stone, Roberts Dissent by: Butler Joined by: Van Devanter, McReynolds, Sutherland
Laws applied
U.S. Const. amends. I, XIV; Minn. Stat. §§ 10123-1 to 10123-3 (1925)

Near v. Minnesota, 283 U.S. 697 (1931), was a United States Supreme Court decision that recognized the freedom of the press to be free from prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence. The Court ruled that a Minnesota law that targeted publishers of "malicious" or "scandalous" newspapers violated the First Amendment to the United States Constitution (as applied through the Fourteenth Amendment). Legal scholar and columnist Anthony Lewis called Near the Court's "first great press case."^[1] It gave the Justices the precedent to resist the Nixon administration's attempt to enjoin publication of the Pentagon papers.

Background of the case

October 15 1927 edition of The Saturday Press

In 1927, Jay M. Near, who has been described as "anti-Catholic, anti-Semitic, anti-black and anti-labor"^[2] began publishing The Saturday Press in Minneapolis with Howard A. Guilford, a former mayoral candidate who had been convicted of criminal libel.

The paper claimed that Jewish gangs were "practically ruling" the city along with the police chief, Frank W. Brunskill, who was accused of participation in graft. Among the paper's other targets were mayor George E. Leach, Hennepin County attorney and future three-term governor Floyd B. Olson, and the members of the grand jury of Hennepin County, who the paper claimed were either incompetent or willfully failing to investigate and prosecute known criminal activity.

Shortly after the first issue was distributed, Guilford was gunned down and hospitalized, where a further attempt on his life was made. At least one of the stories printed in The Saturday Press led to a successful prosecution of a gangster called Big Mose Barnett who had intimidated a local dry cleaner by destroying his customers' clothing.

First trial court proceeding

Olson filed a complaint against Near and Guilford under the Public Nuisance Law of 1925.^[3] Also known as the "Minnesota Gag Law", it provided permanent injunctions against those who created a "public nuisance," by publishing, selling, or distributing a "malicious, scandalous and defamatory newspaper." Olson claimed that the allegations raised against him and the other named public officials in all nine issues published between September 24 1927, and November 19 1927, as well as the paper's overall anti-Semitic tone, constituted a violation of this law. On November 22 1927, Judge Matthias Baldwin of the Hennepin County District Court issued a temporary injunction that barred the defendants from editing, publishing, or circulating The Saturday Press or any other publication containing similar material. This injunction was granted without notice to either defendant on an ex parte hearing between Olson and the judge, and was to extend until the hearing on the judge's order for the defendants to show cause as to why they should not be permanently enjoined from publishing their paper. The hearing was held December 9, and future Minneapolis mayor, Thomas Latimer, argued that the defendants' activities were protected by the U.S. and Minnesota constitutions and demurred to the complaint.

Judge Baldwin denied the demurrer and was affirmed by the Minnesota Supreme Court on appeal.

First Minnesota Supreme Court decision

The State Supreme Court wrote that a scandalous publication "annoys, injures and endangers the comfort and repose of a considerable number of persons," and so constituted a nuisance just as surely as "places where intoxicating liquor is illegally sold," "houses of prostitution," "dogs," "malicious fences," "itinerant carnivals," "lotteries," and "noxious weeds." The court considered that a newspaper may also endanger safety, because "scandalous material" tended to disturb the peace and provoke assaults. The court cited to previous Minnesota decisions that upheld the right of the state to enjoin the publication of "details of execution of criminals" and the teaching of "things injurious to society." Restricting the publication of a newspaper based on its harmful content accordingly fell within the legitimate power of "the people speaking through their representatives" to preserve "public morals" and the "public welfare." The court stated that it had to give heavy deference to such decisions, because "[i]t is the prerogative of the legislature to determine not only what the public interests require but also the measures necessary to protect such interests."

Regarding Near and Guilford's defense of freedom of the press under article 1, section 3 of the Minnesota Constitution, the State Supreme Court did not believe that the right was intended to protect the publishing of "scandalous material", but that it only provided "a shield for the honest, careful and conscientious press," not the "defamer and the scandalmonger." Instead, "[h]e who uses the press is responsible for its abuse." The court also ruled that the state constitution's due process clause did not extend any additional protection.

The trial court's decision after remand

The case then returned to the Hennepin County District Court, and Near and Guilford renewed their objection to the constitutionality of the Public Nuisance Law. Judge Baldwin again overruled their objection. Only the verified complaint that Olson had filed and the newspaper issues themselves were entered as evidence, and the defendants did not try to argue that the Saturday Press did not fit the definition under the statute, or that their published stories were in fact true. Baldwin ruled that the newspapers contained nothing but scandalous and defamatory material, and permanently enjoined the defendants "from producing, editing, publishing, circulating, having in their possession, selling or giving away any publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law," and also "from further conducting said nuisance under the name and title of said 'The Saturday Press or any other name or title."^[4]

Second Minnesota Supreme Court decision

On appeal once again, the Minnesota Supreme Court ruled that its first decision left little question as to the constitutionality of the statute, both under the defendants' state constitutional challenge and a new argument based on due process under the 14th Amendment to the U.S. Constitution. The defendants also argued that the trial court's injunction went too far because it effectively prevented them from operating any newspaper, but their appeal did not request a modification of the order. The court in any case disagreed with their interpretation of the order's scope, stating that it did allow them to publish a newspaper, so long as it was operated "in harmony with the public welfare."

Only Near appealed from this decision to the U.S. Supreme Court, which reversed the decision of the Minnesota Supreme Court and ruled that the Public Nuisance Law of 1925 was unconstitutional.

The Court's decision

The U.S. Supreme Court held that, except in rare cases, censorship is unconstitutional. The court held:

"For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) [723] of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication."

Note that the paragraph above cites the Fourteenth and not the First Amendment. This is because the Fourteenth Amendment incorporates the First and makes it applicable to the States. As literally written, the First Amendment applies to "Congress" and the federal government, not the states.

This case strengthened the notion that a "prior restraint" of the press violates the First Amendment. However, it left a loophole which would be used later for other prior restraint cases, citing certain circumstances in which prior restraint could potentially be used:

"The objection has also been made that the principle as to immunity from previous restraint is stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its error that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' (Schenck v. United States). No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government."

Subsequent developments

Guilford later joined the staff of the Twin City Reporter. He continued to draw the ire of organized crime in Minneapolis and was shot and killed on September 6 1934.

The Court closed off one of the few outlets remaining to censor the press under Near in New York Times Co. v. Sullivan, which seriously limited the grounds upon which a public official could sue for libel. Statements made regarding their official conduct were only actionable if made with "actual malice," meaning a knowing or reckless disregard for the truth.

Hustler Magazine v. Falwell excluded parodies from even this limited standard, as they included no actionable statements of fact. Hustler made clear this protection extended beyond merely defamation suits to cover other torts such as intentional infliction of emotional distress.

Notes

1. ^ Lewis, Anthony. Make No Law, p. 90.
2. ^ By Fred W. Friendly in Minnesota Rag: Corruption, Yellow Journalism, and the Case That Saved Freedom of the Press, his book on the case.
3. ^ The law was passed to suppress Ripsaw, a newspaper first published in 1917 by a self-proclaimed Christian reformer in Duluth, Minnesota who criticized local business and politics. The city was at the heart of the "Iron Range", a region integral to the nation's steel interests, and so the paper's editorial attacks on local leaders eventually motivated members of the Minnesota Legislature from Duluth to pass the law. Ripsaw was the first target to be prosecuted under the new law, but its publisher died before his first day in court.
4. ^ The description of the proceedings after remand were found in the brief of the Minnesota attorney general to the U.S. Supreme Court, which offered a more detailed description though did not appear to contradict Near's account in his own brief. The order granting and describing the permanent injunction was quoted in the U.S. Supreme Court's opinion.

References

• "Near v. Minnesota" on Wikisource.
• Full text of the Supreme Court's decision
• Friendly, Fred W. Minnesota Rag May 1981 (Random House) ISBN 0-394-50752-5; Reprinted May 2003 (University of Minnesota Press) ISBN 0-8166-4161-7
• Lewis, Anthony Make No Law, pp. 90-99
• The Supreme Court and the Second Bill of Rights, by Richard Cortner.
• http://www.class.uh.edu/comm/comm_law/near/nearvsminnesotahistory.html

See also

• List of United States Supreme Court cases, volume 279
• Prior restraint
• New York Times Co. v. United States
• Pentagon papers
• Newspaper
• Yellow journalism
• Muckraking
• Kid Cann, one of the most notable gangsters in Minneapolis

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