283 U.S. 697 (1931)
In 1925 the Minnesota legislature enacted Chapter 285 of the Session Laws.1 This law declared that any person engaged in the business of regularly producing, publishing, or circulating a malicious, scandalous, and defamatory newspaper, magazine, or other periodical is guilty of a nuisance subject to abatement by injunction.2
Under section 2 of the statute the County Attorney of Hennepin County, Floyd B. Olson, commenced an action in the District Court of that county against J.M. Near and other defendants who published a periodical known as The Saturday Press in Minneapolis.3
The complaint alleged that on September 24, 1927, and on eight subsequent dates in October and November 1927 the defendants published and circulated editions of The Saturday Press that were largely devoted to malicious, scandalous, and defamatory articles concerning Charles G. Davis, a special law-enforcement officer, Mayor George E. Leach, Chief of Police Frank W. Brunskill, County Attorney Olson, members of the Hennepin County grand jury, and others.4 The complaint attached copies of the articles comprising 327 pages of the record.5
The articles charged in substance that a Jewish gangster controlled gambling, bootlegging, and racketeering in Minneapolis and that law-enforcement officers were failing to perform their duties.6 Most accusations were directed at the Chief of Police for neglect, illicit relations with gangsters, and graft.7
On November 22, 1927, the District Court issued an order directing the defendants to show cause why a temporary injunction should not issue.8 Meanwhile it forbade them from publishing, circulating, or possessing any editions of The Saturday Press from September 24 through November 19, 1927, or any future editions containing similar matter.9
The defendants demurred to the complaint on the ground that it failed to state a cause of action.10 They challenged the constitutionality of the statute.11 The District Court overruled the demurrer and certified the constitutional question to the Minnesota Supreme Court, which sustained the statute.12
Near answered the complaint.13 He admitted he was the sole owner of the publication.14 He admitted the publication of the described issues but denied that the articles were malicious, scandalous, or defamatory.15 He expressly invoked the due-process clause of the Fourteenth Amendment.16
At trial the plaintiff introduced the verified complaint and the attached issues of the publication.17 The defendant objected on constitutional grounds.18 He offered no further evidence.19 The court granted the plaintiff's motion for a permanent injunction that abated The Saturday Press as a public nuisance and perpetually enjoined the defendants from producing, editing, publishing, circulating, or possessing any malicious, scandalous, or defamatory newspaper.20
Near appealed to the Minnesota Supreme Court.21 The court affirmed the judgment on the authority of its earlier decision upholding the statute.22 It noted that the assignments of error did not challenge the form of the judgment and that Near had not asked the trial court to modify it.23
From the judgment as thus affirmed, Near appealed to the United States Supreme Court.24
Whether Minnesota's 1925 statute authorizing the abatement as a public nuisance of a newspaper found to be malicious, scandalous, and defamatory violates the liberty of the press protected by the Fourteenth Amendment?25
The liberty of the press protected by the due process clause of the Fourteenth Amendment principally secures immunity from previous restraints upon publication.26 A guarantee rooted in the historical rejection of licensing systems aimed at preserving the ability to criticize public officials without prior censorship, while leaving subsequent punishment for libel intact.27
Yes. The statute permits public authorities to bring the publisher before a judge on the basis of past issues, suppress the newspaper as a nuisance, and punish resumption by contempt unless the publisher proves truth plus good motives, thereby imposing the very prior restraint the Fourteenth Amendment forbids.28 In the established facts the County Attorney invoked the statute against Near after nine editions of The Saturday Press appeared, the district court issued a permanent injunction abating the paper without any allegation or proof that the charges were false, and the Minnesota Supreme Court affirmed that judgment.29
Minnesota's 1925 statute violates the liberty of the press protected by the Fourteenth Amendment.30
Related opinions on this issue
Joined by Mr. Justice Van Devanter, Mr. Justice Mcreynolds, And Mr. Justice Sutherland
Justice Butler maintained that the Minnesota statute does not impose a previous restraint within the meaning condemned by Blackstone and Story.31 It authorizes only a judicial injunction after a full trial has determined that the ongoing business constitutes a nuisance rather than any administrative licensing before publication occurs.32
He stressed that the publications were conceded to be malicious and defamatory.33 Ordinary libel remedies had proved inadequate to curb the systematic abuse detailed in the record.34 The state retains ample police power to abate such nuisances to protect public morals, peace, and order without infringing the constitutional guarantee.
He understood the guarantee as limited to freedom from prior administrative censorship.35
Whether the permanent injunction issued against future publication of The Saturday Press or any similar periodical under the statute operates as an unconstitutional prior restraint?36
A permanent injunction that suppresses all future editions of a newspaper on the basis of past publications constitutes a prior restraint.37 Such an injunction is enforceable by contempt and requires judicial approval for any resumption.38 It is forbidden by the Fourteenth Amendment except in narrowly defined circumstances such as wartime security or obscenity that are not present when the target is criticism of public officials.39
Yes. The district court judgment, affirmed by the Minnesota Supreme Court, abated The Saturday Press as a public nuisance and perpetually enjoined Near from producing, editing, publishing, circulating, or possessing any malicious, scandalous, or defamatory newspaper under that name or any other, thereby placing any future publication under continuing judicial supervision.40 In the established facts this injunction followed directly from proof of only nine prior issues and operated without any requirement that the state demonstrate falsity of the charges against the mayor, police chief, and other officials.41
The permanent injunction operates as an unconstitutional prior restraint.42
Related opinions on this issue
Joined by Mr. Justice Van Devanter, Mr. Justice Mcreynolds, And Mr. Justice Sutherland
Justice Butler contended that the injunction authorized by the statute is not a prior restraint at all.43 It merely prevents continuation of a business already adjudicated to be a nuisance after notice and trial.44 This leaves the publisher free to issue new publications that do not repeat the prohibited character of matter.45
He argued that the record demonstrated a regular course of malicious and scandalous publication that threatened community order. The state legislature had properly exercised its police power to address that evil.46 The constitutional protection of the press does not extend to immunizing such an abusive business from equitable abatement.47