Near v. Minnesota
283 U.S. 697 (1931)

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U.S. Supreme Court

Near v. Minnesota, 283 U.S. 697 (1931)

Near v. Minnesota

No. 91

Argued January 30, 1931

Decided June 1, 1931

283 U.S. 697


1. A Minnesota statute declares that one who engages "in the business of regularly and customarily producing, publishing," etc., "a malicious, scandalous and defamatory newspaper, magazine or other periodical," is guilty of a nuisance, and authorizes suits, in the name of the State, in which such periodicals 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 "with good motives and for justifiable ends." Disobedience of an injunction is punishable 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. 283 U. S. 704, 283 U. S. 709, 283 U. S. 712, 283 U. S. 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. 283 U. S. 707.

3. Liberty of the press is not an absolute right, and the State may punish its abuse. P. 283 U. S. 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. 283 U. S. 708.

Page 283 U. S. 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. 283 U. S. 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. 283 U. S. 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. 283 U. S. 713.

8. There are undoubtedly limitations upon the immunity from previous restraint of the press, but they are not applicable in this case. P. 283 U. S. 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. 283 U. S. 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. 283 U. S. 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. 283 U. S. 720.

12. Characterizing the publication of charges of official misconduct as a "business," and the business 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. 283 U. S. 720.

13. The guaranty against previous restraint extends to publications charging official derelictions that amount to crimes. P. 283 U. S. 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. 283 U. S. 721.

15. Nor can it be sustained as a measure for preserving the public peace and preventing assaults and crime. Pp. 283 U. S. 721, 283 U. S. 722.

179 Minn. 40; 228 N.W. 326, reversed.

Page 283 U. S. 699

APPEAL from a decree which sustained an injunction abating the publication of a periodical as malicious, scandalous and defamatory, and restraining future publication. The suit was based on a Minnesota statute. See also s.c., 174 Minn. 457, 219 N.W. 770.

Page 283 U. S. 701

Primary Holding
Prior restraints on speech are generally unconstitutional, such as when they forbid the publication of malicious, scandalous, and defamatory content.
In a Minneapolis newspaper called The Saturday Press, Jay Near and Howard Guilford alleged that the police chief, the mayor, a prosecutor, and grand jury members were neglecting their duties to prosecute known criminal activity. The anti-Semitic newspaper suggested that these authority figures were colluding with Jewish gangs. Despite two ensuing assassination attempts on Guilford, the newspaper's disclosures resulted in the conviction of a local gangster.

The prosecutor, Floyd Olson, sought a permanent injunction against The Saturday Press on the grounds that it violated the Public Nuisance Law because it was malicious, scandalous, and defamatory. He received a temporary injunction after an ex parte hearing, prior to a hearing at which Near and Guilford would be required to show cause for why they should not be permanently enjoined from publishing the newspaper.

The state Supreme Court upheld both the temporary injunction and the permanent injunction that eventually issued from the trial court. With assistance from the publisher of the Chicago Tribune, Robert R. McCormick, Near appealed to the U.S. Supreme Court.

Procedural History

Minnesota Supreme Court - 219 N.W. 770 (Minn. 1928)

Defendants' demurrer denied. The temporary injunction was appropriate because a newspaper is capable of disturbing the public peace and causing violence, which the state could prevent by exercising its police powers. The First Amendment does not apply to this type of publication, but only to media that is honest and conscientious.

Minnesota Supreme Court - 228 N.W. 326 (Minn. 1929)

Permanent injunction affirmed. The order is not too broad because it does not prohibit the defendants from running another newspaper that supports the public welfare, and the law is constitutional.



  • Charles Evans Hughes (Author)
  • Oliver Wendell Holmes, Jr.
  • Louis Dembitz Brandeis
  • Harlan Fiske Stone
  • Owen Josephus Roberts

In a 5-4 decision, the Court issued a strong prohibition against prior restraints, or government censorship. Hughes noted that his decision was based on an analysis of the law's general applications, not the specific context of this case. According to the majority opinion, government officials could not be trusted with the responsibility of regulating speech before it even reaches the public. Hughes used the incorporation doctrine, echoing Gitlow v. New York, to apply the rights granted under the Bill of Rights to the states under the Fourteenth Amendment. However, he admitted that the ban on prior restraints was not categorical. In some situations, such as when speech is obscene, incites violence, or reveals military secrets, the government might be able to justify a prior restraint.


  • Pierce Butler (Author)
  • Willis Van Devanter
  • James Clark McReynolds
  • George Sutherland

Case Commentary

The government does not have the right to prohibit negative speech about it if there is some truth to it. There must be a case-specific analysis to determine whether the allegations have a basis in truth, although war or other types of national emergency may reduce the protections of the press.

Continuing with his inflammatory activities, Guilford remained in the Minneapolis newspaper business. He was assassinated three years after this decision, probably by members of a gang that he had denounced.

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