Near v. Minnesota, 283 U.S. 697 (1931).
Issue: Prior restraint (pre-publication censorship by government). With good reason, prior restraint is called the most hated form of censorship. If government can stop a message completely before it gets to the public, that is far more threatening to freedom than punishment after the fact of publication.
Facts: J.M. Near and Howard Guilford were publishing The Saturday Press, a Minneapolis “smear sheet” that delighted in attacking public officials. The newspaper published accusations that gangsters controlled gambling in Minneapolis, and bootlegging and racketeering were allowed to flourish because government and police officials were not doing their jobs. The Saturday Press also attacked Jews and Catholics. Local authorities found an old, unused statute on the books, one allowed prior restraint of “nuisance” or “undesirable” publications. The statute said that a publisher found guilty of producing such a nuisance sheet could be halted by a judge’s injunction to stop all publication activities. The judge made his injunction permanent, but told Near that he could again publish if he could convince the court that he would run a newspaper without objectionable content. Near and Guilford appealed to the Minnesota Supreme Court, which upheld the trial court’s prior restraint order, ruling that freedom of the press did not protect publications “devoted to scandal and defamation.”1
Legal Question: Is censorship by prior restraint of a newspaper allowed under the First Amendment?
Decision: No, except in crisis situations such as reports of troop movements, or incitement to violence or overthrow of government, or publication of obscene material.
Reasons: Chief Justice Charles Evans Hughes delivered the opinion of the Court. Invoking Anglo-American legal history, Hughes found that the English legal scholar Sir William Blackstone would have allowed no prior restraint whatsoever, but would have punished criticism of government after publication as seditious libel. Chief Justice Hughes, in a double modification of Blackstone, wrote that prior restraint could be used by government in limited circumstances, but declared that Americans have a right—perhaps even a duty—to discuss and debate the character of conduct of public officers.2 Hughes wrote that prior restraint could occur in wartime, for example, to suppress information about movements of troop ships. Similarly obscene publications could be halted, as could incitements to violence or threats to overthrow government.
Hughes emphasized the need for a vigilant and courageous press, especially in large cities. Then he wrote: “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any less 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.”
Note: The Near decision was the first case nationalizing the First Amendment, applying the First Amendment against state actions through the language of the Fourteenth Amendment.
1 Near v. Minnesota ex rel Olson, 283 U.S. 697, 702-707 (1931).
2 Ibid., pp. 719-720.