BACKGROUNDER ON THE COURT OPINION ON THE NEAR V. MINNESOTA CASE
The First Amendment not only protects free speech, but it explicitly includes a guarantee of freedom of the press. Modern Press Clause jurisprudence begins with this landmark case, which in many ways reiterated the views of free speech going back through Holmes and Blackstone to Milton, who had protested against the British system of licensing the press.
Minnesota had authorized abatement (the prevention of publication), as a public nuisance, of any "malicious, scandalous or defamatory" publication. The law was specifically aimed at the Saturday Press, a Minneapolis tabloid that in addition to exploiting rumors had uncovered some embarrassing facts about local political and business figures. The state courts gladly "abated" the Press, which then appealed to the United States Supreme Court claiming that its First Amendment rights had been violated.
The decision is important in two respects. First, it continued the process, begun only a few years earlier, of extending the protection of the Bill of Rights to cover the states as well as the federal government. Although the First Amendment says that "Congress shall make no law ...," the Court in a series of rulings held that the Due Process Clause of the Fourteenth Amendment "incorporates" the provisions of the Bill of Rights and makes them applicable to the states as well. In effect, the First Amendment now reads, "Neither Congress nor any state shall make any law ..."
Second, the Court established, as a central tenet of the Press Clause, that the government has no power of prior restraint; that is, the government cannot censor the press and prevent publication. This did not mean that a newspaper could not be held liable for false and defamatory statements, but that would remain a matter to be proven in court. Governments could not rule that such materials were libelous and thus prevent publication.
The decision did not so much create new law as expand and confirm the older notion of freedom of the press. Chief Justice Hughes quoted approvingly from Blackstone that liberty of the press "consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published."
For further reading: Fred W. Friendly, Minnesota Rag (1981); E. Greald, The Press and the Constitution, 1931-1947 (1948); Harry Kalven, Jr. A Worthy Tradition: Freedom of Speech in America (1988).
NEAR V. MINNESOTA (1931)
Chief Justice Hughes delivered the opinion of the Court.
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 published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is 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. The liberty deemed to be established was thus described by Blackstone: "The liberty of the press is indeed 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 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." The criticism upon Blackstone's statement has not been because immunity from previous restraint upon publication has not been regarded as deserving of special emphasis, but chiefly because that immunity cannot be deemed to exhaust the conception of the liberty guaranteed by state and federal constitutions...
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. 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...These limitations are not applicable here...
The exceptional nature of its limitations places in a strong light the general conception that the liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints, or censorship...Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publications of newspapers and periodicals. 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 of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.
The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. If such a statute is valid, it would be equally permissible for the legislature to provide that at any time the publisher of any newspaper could be brought before a court, or even an administrative officer (as the constitutional protection may not be regarded as resting on mere procedural details), and required to produce proof of the truth of his publication, or of what he intended to publish and of his motives, or stand enjoined. If this can be done, the legislature may provide the machinery for determining in the complete exercise of its discretion what are justifiable ends and restrain publication accordingly. And it would be but a step to a complete system of censorship. We hold the statute, so far as it authorized the proceedings in this action, to be infringement of the liberty of the press guaranteed by the Fourteenth Amendment...
Source: 283 U.S. 697 (1931).
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