Near v. Minnesota

Near v. Minnesota

No. 91

SUPREME COURT OF THE UNITED STATES

283 U.S. 697

January 30, 1931

June 1, 1931

Syllabus

1. A Minnesota statute declares that one who engages

producing, publishing,

periodical,

may be abated and their publishers enjoined from future violations. In such a suit, malice may be inferred

from the fact of publication. The defendant is permitted to prove, as a defense, that his publications were

true and published

as a contempt. Held unconstitutional, as applied to publications charging neglect of duty and corruption

upon the part of law-enforcing officers of the State. Pp. 704, 709, 712, 722.

2. Liberty of the press is within the liberty safeguarded by the due process clause of the Fourteenth

Amendment from invasion by state action. P. 707.

3. Liberty of the press is not an absolute right, and the State may punish its abuse. P. 708.

4. In passing upon the constitutionality of the statute, the court has regard for substance, and not for form;

the statute must be tested by its operation and effect. P. 708. [698]

5. Cutting through mere details of procedure, the operation and effect of the statute is that public authorities

may bring a publisher before a judge upon a charge of conducting a business of publishing scandalous and

defamatory matter -- in particular, that the matter consists of charges against public officials of official

dereliction -- and, unless the publisher is able and disposed to satisfy the judge that the charges are true and

are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and

further publication is made punishable as a contempt. This is the essence of censorship. P. 713.

6. A statute authorizing such proceedings in restraint of publication is inconsistent with the conception of the

liberty of the press as historically conceived and guaranteed. P. 713.

7. The chief purpose of the guaranty is to prevent previous restraints upon publication. The libeler, however,

remains criminally and civilly responsible for his libels. P. 713.

8. There are undoubtedly limitations upon the immunity from previous restraint of the press, but they are not

applicable in this case. P. 715.

9. The liberty of the press has been especially cherished in this country as respects publications censuring

public officials and charging official misconduct. P. 716.

10. Public officers find their remedies for false accusations in actions for redress and punishment under the

libel laws, and not in proceedings to restrain the publication of newspapers and periodicals. P. 718.

11. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make

any the less necessary the immunity from previous restraint in dealing with official misconduct. P. 720.

12. Characterizing the publication of charges of official misconduct as a

nuisance, does not avoid the constitutional guaranty; nor does it matter that the periodical is largely or

chiefly devoted to such charges. P. 720.

13. The guaranty against previous restraint extends to publications charging official derelictions that amount

to crimes. P. 720.

14. Permitting the publisher to show in defense that the matter published is true and is published with good

motives and for justifiable ends does not justify the statute. P. 721.

15. Nor can it be sustained as a measure for preserving the public peace and preventing assaults and crime.

Pp. 721, 722.

179 Minn. 40; 228 N.W. 326, reversed. [699]

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

Chapter 285 of the Session Laws of Minnesota for the year 1925 [note 1] provides for the abatement, as a

public nuisance, of a

periodical.

Section 1. Any person who, as an individual, or as a member or employee of a firm, or association or

organization, or as an officer, director, member or employee of a corporation, shall be engaged in the

business of regularly or customarily producing, publishing or circulating, having in possession, selling or

giving away

(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or

(b) a malicious, scandalous and defamatory newspaper, magazine or other periodical, is guilty of a nuisance,

and all persons guilty of such nuisance may be enjoined, as hereinafter provided.

Participation in such business shall constitute a commission of such nuisance and render the participant

liable and subject to the proceedings, orders and judgments provided for in this Act. Ownership, in whole or

in part, directly or indirectly, of any such periodical, or of any stock or interest in any corporation or

organization which owns the same in whole or in part, or which publishes the same, shall constitute such

participation.

In actions brought under (b) above, there shall be available the defense that the truth was published with

good motives and for justifiable ends and in such actions the plaintiff shall not have the right to report (sic)

to issues or editions of periodicals taking place more than three months before the commencement of the

action.

Section two provides that, whenever any such nuisance is committed or exists, the County Attorney of any

county where any such periodical is published or circulated, or, in case of his failure or refusal to proceed

upon written request in good faith of a reputable citizen, the Attorney General, or, upon like failure or

refusal of the latter, any citizen of the county may maintain an action in the district court of the county in the

name of the State to enjoin [703] perpetually the persons committing or maintaining any such nuisance from

further committing or maintaining it. Upon such evidence as the court shall deem sufficient, a temporary

injunction may be granted. The defendants have the right to plead by demurrer or answer, and the plaintiff

may demur or reply as in other cases.

The action, by section three, is to be

injunctions,

guilty of violating the Act from continuing the violation, and,

be wholly abated.

temporary or permanent injunction by fine of not more than $$1,000 or by imprisonment in the county jail for

not more than twelve months.

Under this statute, clause (b), the County Attorney of Hennepin County brought this action to enjoin the

publication of what was described as a

periodical

complaint alleged that the defendants, on September 24, 1927, and on eight subsequent dates in October and

November, 1927, published and circulated editions of that periodical which were

malicious, scandalous and defamatory articles

Minneapolis Tribune, the Minneapolis Journal, Melvin C. Passolt, George E. Leach, the Jewish Race, the

members of the Grand Jury of Hennepin County impaneled in November, 1927, and then holding office, and

other persons, as more fully appeared in exhibits annexed to the complaint, consisting of copies of the

articles described and constituting 327 pages of the record. While the complaint did not so allege, it [704]

appears from the briefs of both parties that Charles G. Davis was a special law enforcement officer

employed by a civic organization, that George E. Leach was Mayor of Minneapolis, that Frank W. Brunskill

was its Chief of Police, and that Floyd B. Olson (the relator in this action) was County Attorney.

Without attempting to summarize the contents of the voluminous exhibits attached to the complaint, we

deem it sufficient to say that the articles charged in substance that a Jewish gangster was in control of

gambling, bootlegging and racketeering in Minneapolis, and that law enforcing officers and agencies were

not energetically performing their duties. Most of the charges were directed against the Chief of Police; he

was charged with gross neglect of duty, illicit relations with gangsters, and with participation in graft. The

County Attorney was charged with knowing the existing conditions and with failure to take adequate

measures to remedy them. The Mayor was accused of inefficiency and dereliction. One member of the grand

jury was stated to be in sympathy with the gangsters. A special grand jury and a special prosecutor were

demanded to deal with the situation in general, and, in particular, to investigate an attempt to assassinate one

Guilford, one of the original defendants, who, it appears from the articles, was shot by gangsters after the

first issue of the periodical had been published. There is no question but that the articles made serious

accusations against the public officers named and others in connection with the prevalence of crimes and the

failure to expose and punish them.

At the beginning of the action, on November 22, 1927, and upon the verified complaint, an order was made

directing the defendants to show cause why a temporary injunction should not issue and meanwhile

forbidding the defendants to publish, circulate or have in their possession any editions of the periodical from

September [705] 24, 1927, to November 19, 1927, inclusive, and from publishing, circulating, or having in

their possession,

name whatsoever containing malicious, scandalous and defamatory matter of the kind alleged in plaintiff's

complaint herein or otherwise.

The defendants demurred to the complaint upon the ground that it did not state facts sufficient to constitute a

cause of action, and on this demurrer challenged the constitutionality of the statute. The District Court

overruled the demurrer and certified the question of constitutionality to the Supreme Court of the State. The

Supreme Court sustained the statute (174 Minn. 457, 219 N.W. 770), and it is conceded by the appellee that

the Act was thus held to be valid over the objection that it violated not only the state constitution, but also

the Fourteenth Amendment of the Constitution of the United States.

Thereupon, the defendant Near, the present appellant, answered the complaint. He averred that he was the

sole owner and proprietor of the publication in question. He admitted the publication of the articles in the

issues described in the complaint, but denied that they were malicious, scandalous or defamatory as alleged.

He expressly invoked the protection of the due process clause of the Fourteenth Amendment. The case then

came on for trial. The plaintiff offered in evidence the verified complaint, together with the issues of the

publication in question, which were attached to the complaint as exhibits. The defendant objected to the

introduction of the evidence, invoking the constitutional provisions to which his answer referred. The

objection was overruled, no further evidence was presented, and the plaintiff rested. The defendant then

rested without offering evidence. The plaintiff moved that the court direct the issue of a permanent

injunction, and this was done. [706]

The District Court made findings of fact which followed the allegations of the complaint and found in

general terms that the editions in question were

articles

publications,

a malicious, scandalous and defamatory newspaper,

Saturday Press, or any other name, constitutes a public nuisance under the laws of the State.

thereupon entered adjudging that

as a public nuisance,

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,

further conducting said nuisance under the name and title of said The Saturday Press or any other name or

title.

The defendant Near appealed from this judgment to the Supreme Court of the State, again asserting his right

under the Federal Constitution, and the judgment was affirmed upon the authority of the former decision.

179 Minn. 40, 228 N.W. 326. With respect to the contention that the judgment went too far, and prevented

the defendants from publishing any kind of a newspaper, the court observed that the assignments of error did

not go to the form of the judgment, and that the lower court had not been asked to modify it. The court

added that it saw no reason

newspaper in harmony with the public welfare, to which all must yield,

had been [707] found to be true, and, though this was an equitable action, defendants had not indicated a

desire

From the judgment as thus affirmed, the defendant Near appeals to this Court.

This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not unique,

and 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, and of speech, is within the liberty safeguarded by the

due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to

conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of

fundamental rights of person and property.

Gitlow v. New York,

268 U.S. 652, 666;

Whitney v. California,

274 U.S. 357, 362, 373;

Fiske v. Kansas,

274 U.S. 380, 382;

Stromberg v. California,

ante, p. 359. In

maintaining this guaranty, the authority of the State to enact laws to promote the health, safety, morals and

general welfare of its people is necessarily admitted. The limits of this sovereign power must always be

determined with appropriate regard to the particular subject of its exercise. Thus, while recognizing the

broad discretion of the legislature in fixing rates to be charged by those undertaking a public service, this

Court has decided that the owner cannot constitutionally be deprived of his right to a fair return, because that

is deemed to be of the essence of ownership.

Railroad Commission Cases,

116 U.S. 307, 331;

Northern

Pacific Ry. Co. v. North Dakota,

236 U.S. 585, 596. So, while liberty of contract is not an absolute right, and

the wide field of activity in the making of contracts is subject to legislative supervision (

Frisbie v. United

States,

157 U.S. 161, 165), this Court has held that the power of the State stops short of interference with

what are deemed [708] to be certain indispensable requirements of the liberty assured, notably with respect

to the fixing of prices and wages.

Tyson Bros. v. Banton,

273 U.S. 418;

Ribnik v. McBride,

277 U.S. 350;

Adkins v. Children's Hospital,

261 U.S. 525, 560, 561. Liberty of speech, and of the press, is also not an

absolute right, and the State may punish its abuse.

Whitney v. California,

supra;

Stromberg v. California,

supra.

Liberty, in each of its phases, has its history and connotation, and, in the present instance, the inquiry

is as to the historic conception of the liberty of the press and whether the statute under review violates the

essential attributes of that liberty.

The appellee insists that the questions of the application of the statute to appellant's periodical, and of the

construction of the judgment of the trial court, are not presented for review; that appellant's sole attack was

upon the constitutionality of the statute, however it might be applied. The appellee contends that no question

either of motive in the publication, or whether the decree goes beyond the direction of the statute, is before

us. The appellant replies that, in his view, the plain terms of the statute were not departed from in this case,

and that, even if they were, the statute is nevertheless unconstitutional under any reasonable construction of

its terms. The appellant states that he has not argued that the temporary and permanent injunctions were

broader than were warranted by the statute; he insists that what was done was properly done if the statute is

valid, and that the action taken under the statute is a fair indication of its scope.

With respect to these contentions, it is enough to say that, in passing upon constitutional questions, the court

has regard to substance, and not to mere matters of form, and that, in accordance with familiar principles, the

statute must be tested by its operation and effect.

Henderson v. Mayor,

92 U.S. 259, 268;

Bailey v. Alabama,

219 [709] U.S. 219, 244;

United States v. Reynolds,

235 U.S. 133, 148, 149;

St. Louis Southwestern R. Co. v.

Arkansas,

235 U.S. 350, 362;

Mountain Timber Co. v. Washington,

243 U.S. 219, 237. That operation and

effect we think is clearly shown by the record in this case. We are not concerned with mere errors of the trial

court, if there be such, in going beyond the direction of the statute as construed by the Supreme Court of the

State. It is thus important to note precisely the purpose and effect of the statute as the state court has

construed it.

First.

The statute is not aimed at the redress of individual or private wrongs. Remedies for libel remain

available and unaffected. The statute, said the state court,

existing business which, generally speaking, involves more than libel.

scandalous matter as

of the community

to suppress the future publication of the newspaper or periodical, it is not necessary to prove the falsity of

the charges that have been made in the publication condemned. In the present action, there was no allegation

that the matter published was not true. It is alleged, and the statute requires the allegation, that the

publication was

of malice in fact, as distinguished from malice inferred from the mere publication of the defamatory

matter.[note 2] The judgment in this case proceeded upon the mere proof of publication. The statute permits

the defense not of the truth alone, but only that the truth was published with good motives and [710] for

justifiable ends. It is apparent that, under the statute, the publication is to be regarded as defamatory if it

injures reputation, and that it is scandalous if it circulates charges of reprehensible conduct, whether criminal

or otherwise, and the publication is thus deemed to invite public reprobation and to constitute a public

scandal. The court sharply defined the purpose of the statute, bringing out the precise point, in these words:

knowledge that prosecutions under the criminal libel statutes do not result in efficient repression or

suppression of the evils of scandal. Men who are the victims of such assaults seldom resort to the courts.

This is especially true if their sins are exposed and the only question relates to whether it was done with

good motives and for justifiable ends. This law is not for the protection of the person attacked, nor to punish

the wrongdoer. It is for the protection of the pubic welfare.

Second.

The statute is directed not simply at the circulation of scandalous and defamatory statements with

regard to private citizens, but at the continued publication by newspapers and periodicals of charges against

public officers of corruption, malfeasance in office, or serious neglect of duty. Such charges, by their very

nature, create a public scandal. They are scandalous and defamatory within the meaning of the statute, which

has its normal operation in relation to publications dealing prominently and chiefly with the alleged

derelictions of public officers. [note 3] [711]

Third.

The object of the statute is not punishment, in the ordinary sense, but suppression of the offending

newspaper or periodical. The reason for the enactment, as the state court has said, is that prosecutions to

enforce penal statutes for libel do not result in

Describing the business of publication as a public nuisance does not obscure the substance of the proceeding

which the statute authorizes. It is the continued publication of scandalous and defamatory matter that

constitutes the business and the declared nuisance. In the case of public officers, it is the reiteration of

charges of official misconduct, and the fact that the newspaper or periodical is principally devoted to that

purpose, that exposes it to suppression. In the present instance, the proof was that nine editions of the

newspaper or periodical in question were published on successive dates, and that they were chiefly devoted

to charges against public officers and in relation to the prevalence and protection of crime. In such a case,

these officers are not left to their ordinary remedy in a suit for libel, or the authorities to a prosecution for

criminal libel. Under this statute, a publisher of a newspaper or periodical, undertaking to conduct a

campaign to expose and to censure official derelictions, and devoting his publication principally to that

purpose, must face not simply the possibility of a verdict against him in a suit or prosecution for libel, but a

determination that his newspaper or periodical is a public nuisance to be abated, and that this abatement and

suppression will follow unless he is prepared with legal evidence to prove the truth of the charges and also

to satisfy the court that, in [712] addition to being true, the matter was published with good motives and for

justifiable ends.

This suppression is accomplished by enjoining publication, and that restraint is the object and effect of the

statute.

Fourth.

The statute not only operates to suppress the offending newspaper or periodical, but to put the

publisher under an effective censorship. When a newspaper or periodical is found to be

scandalous, and defamatory,

contempt of court by fine or imprisonment. Thus, where a newspaper or periodical has been suppressed

because of the circulation of charges against public officers of official misconduct, it would seem to be clear

that the renewal of the publication of such charges would constitute a contempt, and that the judgment

would lay a permanent restraint upon the publisher, to escape which he must satisfy the court as to the

character of a new publication. Whether he would be permitted again to publish matter deemed to be

derogatory to the same or other public officers would depend upon the court's ruling. In the present instance,

the judgment restrained the defendants from

giving away any publication whatsoever which is a malicious, scandalous or defamatory newspaper, as

defined by the law.

defamatory,

objection that the judgment was too broad, saw no reason for construing it as restraining the defendants

defendants had not indicated

manifest inference is that, at least with respect to a [713] new publication directed against official

misconduct, the defendant would be held, under penalty of punishment for contempt as provided in the

statute, to a manner of publication which the court considered to be

with the public welfare.

If we cut through mere details of procedure, the operation and effect of the statute, in substance, is that

public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a

charge of conducting a business of publishing scandalous and defamatory matter -- in particular, that the

matter consists of charges against public officers of official dereliction -- and, unless the owner or publisher

is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are

published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further

publication is made punishable as a contempt. This is of the essence of censorship.

The question is whether a statute authorizing such proceedings in restraint of publication is consistent with

the conception of the liberty of the press as historically conceived and guaranteed. In determining the extent

of the constitutional protection, it has been generally, if not universally, considered that it is the chief

purpose of the guaranty to prevent previous restraints upon publication. The struggle in England, directed

against the legislative power of the licenser, resulted in renunciation of the censorship of the press. [note 4]

The liberty deemed to be established was thus described by Blackstone:

essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and

not in freedom from censure for criminal matter when published. Every freeman has an [714] undoubted

right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press;

but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own

temerity.

§

1884, 1889. The distinction was early

pointed out

and that enjoyed in

against legislative as well as against executive ambition.

prerogative, but by constitutions paramount to laws. This security of

it should be exempt not only from previous restraint by the Executive, a in

legislative restraint also.

said, in

Patterson v.

205 U.S. 454, 462:

constitutional provisions is

by other governments,

contrary to the public welfare.

Commonwealth v. Blanding,

3 Pick. 304,

Respublica v. Oswald,

1

Dallas 319, 325. The preliminary freedom extends as well to the false as to

punishment may extend as well to the true as to the false. This was the law of criminal

statute in most cases, if not in all.

Commonwealth v. Blanding,

ubi sup.; 4 . 150.

The criticism upon Blackstone's statement has not been because immunity from previous restraint upon

cannot be

constitutions. The point of

all that is secured by the

mockery and a delusion, and the phrase itself a byword, if, while

he pleased, the public authorities might nevertheless punish him for

., 8th ed., p. 885. But it is recognized that punishment for the abuse of the liberty accorded

press is essential to the protection of the public, and that the common law rules that subject the libeler to

extended

There is also

prevent the proper

Patterson v. Colorado,

supra;

Toledo Newspaper Co. v.

United States,

247 U.S.

permissible scope of subsequent

commit by his publications the State

As has been noted, the statute in question

except in case of contempt for violation of the

restraint upon publication.

The objection has also been made that the principle as to immunity from previous restraint is stated too [716]

to

cases:

effort that their

protected by any

Schenck v. United States,

249 U.S. 47, 52. No one would question

but that a government might prevent actual

sailing dates of transports or the number and location

requirements of decency may be enforced against obscene

may be protected against incitements to acts of violence and the

The constitutional guaranty of free speech does not

that may have all the effect of force.

Gompers v. Buck

221 U.S. 418, 439.

Schenck v.

United States,

supra.

These limitations are not applicable here. Nor are we now concerned with

as to the extent of authority to prevent publications in order to protect private rights according to the

The exceptional nature of its limitations places in a strong light the general conception that liberty of the

press,

exclusively,

this country had

freedom from

afforded from previous

misconduct. As was said by Chief

Commonwealth v. Blanding,

3 Pick. 304, 313, with

respect to the constitution of

on this provision for the liberty of the press, that it

publications as had been practiced by other

patriots towards enlightening their fellow subjects

the press was to be unrestrained, but he who used it was

sent by the Continental Congress (October 26, 1774) to the Inhabitants of Quebec, referring to the

great rights,

importance of this consists, besides the

diffusion of liberal sentiments on the

between subjects, and its consequential

shamed or intimidated into more honourable and

leading spirit in preparation of the First amendment of the Federal Constitution, thus described the practice

and sentiment which led to the guaranties of liberty of the press in state constitutions:

In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and

measures of public men of every description which has not been confined to the strict limits of the common

law. On this footing the freedom of the press has stood; on this footing it yet stands. . . . Some degree of

abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the

press. It has accordingly been decided by the practice of the States that it is better to leave a few of its

noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those

yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press

alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by

reason and humanity over error and oppression; who reflect that to the same beneficent source the United

States owe much of the lights which conducted them to the ranks of a free and independent nation, and

which have improved their political system into a shape so auspicious to their happiness? Had

Acts,

that might excite the hatred of the people against the authors of unjust or pernicious measures, been

uniformly enforced against the press, might not the United States have been languishing at this day under the

infirmities of a sickly Confederation? Might they not, possibly, be miserable colonies, groaning under a

foreign yoke?