Near v. Minnesota (1931)
Background
In 1925 Minnesota passed a law that sought to prevent newspapers, magazines, and
other publications from printing obscene, malicious, scandalous and defamatory material.
The law, called the “Minnesota gag law,” allowed either public prosecutors or private
citizens to request a court injunction to shut down such a publication as “a public
nuisance.” The Saturday Press, published by a journalist named Jay Near, had printed
articles charging that various criminal activities were controlled by gangsters, and that the
local mayor, chief of police, and county attorneys were working in connection with the
gangsters. Using the 1925 statute, the county attorney obtained an injunction
“perpetually” prohibiting Near from publishing a “malicious, scandalous or defamatory
newspaper.” Near appealed to the Minnesota Supreme Court, and when that body ruled in
the county’s favor, he appealed to the United States Supreme Court.
Constitutional Issue
One of the most treasured provisions of the Bill of Rights is the protection of freedom
to publish, as provided by the First Amendment. This protection applies to all kinds of
publications, even those that print unpopular opinions. Most censorship cases have been
attempts to suppress the written word after publication of a work. In the Near v.
Minnesota case, however, censorship was attempted before publication by closing down
the offending periodical. This attempt was made because Minnesota officials decided that
the contents of Near’s periodical would be offensive to the public. In Near v. Minnesota,
the Supreme Court had to decide whether Minnesota’s statute violated the First
Amendment’s guarantee of freedom of the press, as applied to the states by the due
process clause of the Fourteenth Amendment.
The Court’s Decision
The Court voted 5 to 4 in Near’s favor. Chief Justice Charles Evans Hughes presented
the Court’s opinion. He called the Minnesota statute “unusual, if not unique.” It pitted the
undoubted liberty of the press against the “necessarily admitted” authority of the state “to
promote the health, safety, morals, and general welfare of its people.” Both the state’s
attorney and the liberty of the press, Hughes observed, have claims and limits that must
be delineated.
Hughes declared: “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 . . . before a judge upon a charge . . . of publishing scandalous and defamatory
matter . . . 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.” This
is not to say, however, that no forms of censorship are to be permitted, Hughes stressed.
There are “exceptional cases,” as in times of war, for example, when it may be permitted.
Similarly, he wrote, “the primary requirements of decency may be enforced against
obscene publications.”
“In the present case,” Hughes continued, “we have no occasion to inquire as to the
permissible scope of subsequent punishment. For whatever wrong the appellant [Near]
has committed or may commit, by his publications, the state appropriately affords both
public and private redress by its libel laws.” Here Hughes was making the point that if, in
fact, the claims of the paper were to be proved libelous, another court case would be
called for. The Court’s decision here did not relate to whether the articles in question
were true or false.
What was at issue, Hughes stressed, is prior or previous restraint upon the press in
unexceptional cases. On that score, the “chief purpose” of the liberty of the press is “to
prevent previous restraints upon publication.” The court concluded that this in no way
places the press beyond the reach of legal action. That is, the press must generally be held
accountable after, not before, publication. In summary, Hughes wrote, “For these reasons
we hold the statute . . . to be an infringement of the liberty of the press guaranteed by the
First Amendment.”
The Near case represented a new level of Supreme Court concern for freedom of the
press. Prior censorship of the press was condemned. Near was the first case in which a
state law was held unconstitutional for violating the freedom of press protected by the
due process clause of the Fourteenth Amendment.
Questions for Analysis and Debate
1. Do the benefits of freedom of the press outweigh the effects of hurtful opinions that are
printed in newspapers or broadcast on radio or television?
2. Do you experience any kind of censorship at your school? If so, do you think censorship
may sometimes be necessary to maintain order?
3. Choose a side in this case. Choose to argue for Jay Near or for the state of Minnesota.
After you choose a side, write a list of arguments for your side of the case. As a class,
choose sides and debate this issue. Should a state have the right to censor printed material
if it contains obscene, malicious, or defamatory material? When, if at all, might it be
beneficial for the government to use censorship?