'Both of use have some mighty loyal friends among the Jewish people but not one of them comes whining to ask that we 'lay off' criticism of Jewish gangsters and none of them who comes carping to us of their 'bosom friendship' for any public official now under our journalistic guns. There is no question but that the articles made serious accusations against the public officers named and others in connection with the prevalence of crimes and the failure to expose and punish them. pp. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs. 'It was a Jew who employed JEWS to shoot down Mr. Guilford. 269; Withers v. Buckley, 20 How. 542, 543; Respublica v. Oswald, 1 Dall. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. That operation and effect we think is clearly shown by the record in this case. 4^ May, Constitutional History of England, vol. The appellee contends that no question either of motive in the publication, or whether the decree goes beyond the direction of the statute, is before us. The clause last mentioned is not found in the statute in question. the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications. State governments, on the other hand, routinely censored newspapers. The distribution of scandalous matter is detrimental to public morals and to the general welfare. (a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or, (b) a malicious, scandalous and defamatory newspaper, magazine or other periodical, is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided. The business and publications unquestionably constitute an abuse of the right of free press. Y.) . 265; Mountain Timber Company v. Washington, 243 U. S. 219, 237, 37 S. Ct. 260, 61 L. Ed. Any person who, as an individual, or as a member or employee of a firm, or association or organization, ganization, or as an officer, director, member or employee of a corporation, shall be engaged in the business of regularly or customarily producing, publishing or circulating, having in possession, selling or giving away. J.M. It is apparent that under the statute the publication is to be regarded as defamatory if it injures reputation, and that it is scandalous if it circulates charges of reprehensible conduct, whether criminal or otherwise, and the publication is thus deemed to invite public reprodation and to constitute a public scandal. They show: In 1913 one Guilford, originally a defendant in this suit, commenced the publication of a scandal sheet called the Twin City Reporter. Fourth. The defendant here has no standing to assert that the statute is invalid because it might be construed so as to violate the Constitution. (b) a malicious, scandalous and defamatory newspaper, magazine or other periodical. Ownership, in whole or in part, directly or indirectly, of any such periodical, or of any stock of interest in any corporation or organization which owns the same in whole or in part, or which publishes the same, shall constitute such participation. 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 publication of newspapers and periodicals. Second. Co. v. North Dakota, 236 U.S. 585, 596. 'I am not taking orders from men of Barnett faith, at least right now. It also shows that it was their purpose at all hazards to continue to carry on the business. The statute provides that any person who 'shall be engaged in the business of regularly or customarily producing, publishing or circulating' a newspaper, magazine or other periodical that is (a) 'obscene, lewd and lascivious' or (b) 'malicious, scandalous and defamatory' is guilty of a nuisance and may be enjoined as provided in the act. In attempted justification of the statute, it is said that it deals not with publication per se, but with the "business" of publishing defamation. 283 U.S. 697. Commonwealth v. Blanding, ubi supra; 4 Bl. He expressly invoked the protection of the due process clause of the Fourteenth Amendment. The struggle in England, directed against the legislative power of the licenser, resulted in renunciation of the censorship of the press. 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 are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. 387, 388, 105 Atl. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The district court made findings of fact, which followed the allegations of the complaint and found in general terms that the editions in question were 'chiefly devoted to malicious, scandalous and defamatory articles' concerning the individuals named. For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) [p723] of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. The appellee contends that no question either of motive in the publication, or whether the decree goes beyond the direction of the statute, is before us. 304, 313, 15 Am. 191; United States v. Reynolds, 235 U. S. 133, 148, 149, 35 S. Ct. 86, 59 L. Ed. IX, pp. At the trial the plaintiff introduced evidence unquestionably sufficient to support the complaint. Whenever any such nuisance is committed or is kept, maintained, or exists, as above provided for, the County Attorney of any county where any such periodical is published or circulated * * * may commence and maintain in the District Court of said county, an action in the name of the State of Minnesota * * * to perpetually enjoin the person or persons committing, conducting or maintaining any such nuisance, from further committing, conducting, or maintaining any such nuisance. Up to the present we have been merely tapping on the window. NEAR V. MINNESOTA (1931) Chief Justice Hughes delivered the opinion of the Court. With respect to these contentions it is enough to say that in passing upon constitutional questions the court has regard to substance and not to mere matters of form, and that, in accordance with familiar principles, the state must be tested by its operation and effect. for defendants to construe the judgment as restraining them from operating a newspaper in harmony with the public welfare, to which all must yield, that the allegations of the complaint had been [p707] found to be true, and, though this was an equitable action, defendants had not indicated a desire "to conduct their business in the usual and legitimate manner.". App. 2^ Mason's Minn.Stats. Historically, there is no such limitation; it is inconsistent with the reason which underlies the privilege, as the privilege so limited would be of slight value for the purposes for which it came to be established. The general principle that the constitutional guaranty of the liberty of the press gives immunity from previous restraints has been approved in many decisions under the provisions of state constitutions.[10]. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse. 785, 24 A. L. R. 1238). The doctrine that measures such as the one before us are invalid because they operate as revious restraints to infringe freedom of press exposes the peace and good order of every community and the business and private affairs of every individual to the constant and protracted false and malicious assaults of any insolvent publisher who may have purpose and sufficient capacity to contrive and put into effect a scheme or program for oppression, blackmail or extortion. 1912C, 160; Gitlow v. New York, supra, 268 U. S. 668-669, 45 S. Ct. 625, 69 L. Ed. It is for the protection of the pubic welfare. It is the continued publication of scandalous and defamatory matter that constitutes the business and the declared nuisance. Defendant Near again appealed to the supreme court. Mason's Minnesota Statutes, 1927, §§ 10123-1 to 10123-3. 91. Third. His right is limited solely to the inquiry whether, having regard to the points properly raised in his case, the effect of applying the statute is to deprive him of his liberty without die process of law. In order to obtain an injunction to suppress the future publication of the newspaper or periodical, it is not necessary to prove the falsity of the charges that have been made in the publication condemned. When a newspaper or periodical is found to be "malicious, scandalous, and defamatory," and is suppressed as such, resumption of publication is punishable as a contempt of court by fine or imprisonment. The defendants have the right to plead by demurrer or answer, and the plaintiff may demur or reply as in other cases. 71, 76, 15 L. Ed. There is also the conceded authority of courts to punish for contempt when publications directly tend to prevent the proper discharge of judicial functions. In attempted justification of the statute, it is said that it deals not with publcati on per se, but with the 'business' of publishing defamation. In actions brought under (b) above, there shall be available the defense that the truth was published with good motives and for justifiable ends and in such actions the plaintiff shall not have the right to report (sic) to issues or editions of periodicals taking place more than three months before the commencement of the action. 72: 'If the township may prevent the circulation of a newspaper for no reason other than that some of its inhabitants may violently disagree with it, and resent it circulation by resorting to physical violence, there is no limit to what may be prohibited.' * * * The record presents the same questions … The act expired in 1679, and was revived and continued for a few years after the revolution of 1688. 387, 388, 105 A. 264, 275, 277, 96 P. 127, 18 L. R. A. Such charges, by their very nature, create a public scandal. The Background of Near v. Minnesota (1931) J.M. Journal of the Continental Congress (1904 Ed.) The defendant objected to the introduction of the evidence, invoking the constitutional provisions to which his answer referred. SUPREME COURT OPINIONS OOOONEAR v. MINNESOTA, 283 U.S. 697. 1138; Whitney v. California, 274 U. S. 357, 362, 373, 47 S. Ct. 641, 71 L. Ed. In the case of public officers, it is the reiteration of charges of official misconduct, and the fact that the newspaper or periodical is principally devoted to that purpose, that exposes it to suppression. Chapter 285 of the Session Laws of Minnesota for the year 1925[1] provides for the abatement, as a public nuisance, of a "malicious, scandalous and defamatory newspaper, [p702] magazine or other periodical." Lect. The Judgment perpetually enjoined the defendants. Rep. 676; State ex rel. And it would be but a step to a complete system of censorship. OLSON, Co. Atty. For example, abolitionist newspapers in the South and pro-slavery newspapers in the North prior to the Civil War faced censorship. 178; Sweeney v. Baker, 13 W.Va. 158, 182; Citizens Light, Heat & Power Co. v. Montgomery Light & Water Co., 171 Fed. The point of criticism has been "that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions", and that. Thus, where a newspaper or periodical has been suppressed because of the circulation of charges against public officers of official misconduct, it would seem to be clear that the renewal of the publication of such charges would constitute a contempt, and that the judgment would lay a permanent restraint upon the publisher, to escape which he must satisfy the court as to the character of a new publication. -is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided. It is thus important to note precisely the purpose and effect of the statute as the state court has construed it. Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. 2, 261. The importance of this immunity has not lessened. As has been noted, the statute in question does not deal with punishments; it provides for no punishment, except in case of contempt for violation of the court's order, but for suppression and injunction-that is, for restraint upon publication. In the present instance, the judgment restrained the defendants from. 91. Schenck v. United States, 249 U.S. 47, 52. [4] 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. 735, L. R. A. 10^ Report on the Virginia Resolutions, Madison's Works, vol. If such a statute, authorizing suppression and injunction on such a basis, is constitutionally 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. 'But George, we won't bother you. Near v. Minnesota SUPREME COURT OF THE UNITED STATES 283 U.S. 697 June 1, 1931. 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 5^ See Hugonson's Case, 2 Atk. Ann. * * * The statute is not directed at threatened libel but at an existing business which, generally speaking, involves more than libel. It is a matter of common knowledge that prosecutions under the criminal libel statutes do not result in efficient repression or suppression of the evils of scandal. . Remedies for libel remain available and unaffected. The act was passed in the exertion of the state's power of police, and this court is by well-established rule required to assume, until the contrary is clearly made to appear, that there exists in Minnesota a state of affairs that justifies this measure for the preservation of the peace and good order of the state. Section one of the Act is as … The decision of the Court in this case declares Minnesota and every other state powerless to restrain by injunction the business of publishing and circulating among the people malicious, scandalous, and defamatory periodicals that in due course of judicial procedure has been adjudged to the a public nuisance. But the previous restraints referred to by him subjected the press to the arbitrary will of an administrative officer. There is also the conceded authority of courts to punish for contempt when publications directly tend to prevent the proper discharge of judicial functions. Under this statute, a publisher of a newspaper or periodical, undertaking to conduct a campaign to expose and to censure official derelictions, and devoting his publication principally to that purpose, must face not simply the possibility of a verdict against him in a suit or prosecution for libel, but a determination that his newspaper or periodical is a public nuisance to be abated, and that this abatement and suppression will follow unless he is prepared with legal evidence to prove the truth of the charges and also to satisfy the court that, in [p712] addition to being true, the matter was published with good motives and for justifiable ends. From the judgment as thus affirmed, the defendant Near appeals to this Court. The complaint alleged that the defendants, on September 24, 1927, and on eight subsequent dates in October and November, 1927, published and circulated editions of that periodical which were 'largely devoted to malicious, scandalous and defamatory articles' concerning Charles G. Davis, Frank W. Brunskill, the Minneapolis Tribune, the Minneapolis Journal, Melvin C. Passolt, George E. Leach, the Jewish Race, the members of the grand jury of Hennepin county impaneled in November, 1927, and then holding office, and other persons, as more fully appeared in exhibits annexed to the complaint, consisting of copies of the articles described and constituting 327 pages of the record. 790; Nebraska v. Rosewater, 60 Nebr. The appellee insists that the questions of the application of the statute to appellant's periodical, and of the construction of the judgment of the trial court, are not presented for review; that appellant's sole attack was upon the constitutionality of the statute, however it might be applied. This was the law of criminal libel apart from statute in most cases, if not in all. Had 'Sedition Acts,' forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing at this day under the infirmities of a sickly Confederation? They are scandalous and defamatory within the meaning of the statute, which has its normal operation in relation to publications dealing prominently and chiefly with the alleged derelictions of public officers.3. 179 Minn. 40, 228 N. W. 326. 39, 42, 158 N.W. He does not lose his right by exercising it. The present one is like the scion who is labelled 'Junior.' First. But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions. Public officers, whose character and [p719] 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 publication of newspapers and periodicals. If his right exists, it may be exercised in publishing nine editions, as in this case, as well as in one edition. 713. And with this reasonable limitation it is not only right in itself, but it is an inestimable privilege in a free government. Schenck v. United States, supra. Messrs. James E. Markham, of St. Paul, Minn., and Arthur L. Markve, of Minneapolis, Minn., for appellee. This is of the essence of censorship. May, Constitutional History of England, vol. The defendant objected to the introduction of the evidence, invoking the constitutional provisions to which his answer referred. Any person who, as an individual, or as a member or employee of a firm, or association or organization, or as an officer, director, member or employee of a corporation, shall be engaged in the business of regularly or customarily producing, publishing or circulating, having in possession, selling or giving away. From the judgment as thus affirmed, the defendant Near appeals to this Court. 11^ Dailey v. Superior Court, 112 Cal. We are aware that the gambling syndicate was waiting for your body to convene before the big crap game opened again. But, as in prosecutions for libel, there is no requirement of proof by the state of malice in fact as distinguished from malice inferred from the mere publication of the defamatory matter.2 The judgment in this case proceeded upon the mere proof of publication. 'It was buzzards of the Barnett stripe who shot down my buddy. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. Near v. Minnesota in the Context of Historical Developments Paul L. Murphy Follow this and additional works at:https://scholarship.law.umn.edu/mlr Part of theLaw Commons This Article is brought to you for free and open access by the University of Minnesota Law School. The fact that, for approximately one hundred and fifty years, there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right. The plaintiff moved that the court direct the issue of a permanent injunction, and this was done. 104, 108. * * * Defendants stand before us upon the record as being regularly and customarily engaged in a business of conducting a newspaper sending to the public malicious, scandalous, and defamatory printed matter.'. 913, 56 A. L. R. 1327; Adkins v. Children's Hospital, 261 U. S. 525, 560, 561, 43 S. Ct. 394, 67 L. Ed. Near v. Minnesota, 283 U.S. 697 (1931), is a landmark United States Supreme Court decision that found that prior restraints on publication violate freedom of the press as protected under the First Amendment, a principle that was applied to free speech generally in subsequent jurisprudence. Many of the statements are so highly improbable as to compel a finding that they are false. 'If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin whom I rightfully calls 'Jews' they can easily do so BY THEMSELVES CLEANING HOUSE. 438, 80 N. W. 353; State v. Tugwell, 19 Wash. 238, 52 P. 1056, 43 L. R. A. The court sharply defined the purpose of the statute, bringing out the precise point, in these words: 'There is no constitutional right to publish a fact merely because it is true. In order to obtain an injunction to suppress the future publication of the newspaper or periodical, it is not necessary to prove the falsity of the charges that have been made in the publication condemned. 155; Respublica V. Dennie, 4 Yeates (Pa.) 267, 269, 2 Am. Near v Minnesota 1931 Facts A Minnesota law that "gagged" a periodical from publishing derogatory statements about local public officials was held unconstitutional by the Supreme Court of the United States. 'Having these examples before me, I feel that I am justified in my refusal to take orders from a Jew who boasts that he is a 'bosom friend' of Mr. Olson. The record shows, and it is conceded, that defendants' regular business was the publication of malicious, scandalous, and defamatory articles concerning the principal public officers, leading newspapers of the city, many private persons, and the Jewish race. It is alleged, and the statute requires the allegation, that the publication was "malicious." It is alleged, and the statute requires the allegation that the publication was 'malicious.' This is of the essence of consorship. As has been noted, the statute in question does not deal with punishments; it provides for no punishment, except in case of contempt for violation of the court's order, but for suppression and injunction, that is, for restraint upon publication. protect a man from an injunction against uttering words that may have all the effect of force. Both nuisances are offensive to morals, order, and good government. Near 's interest, and Arthur L. Markve, of st. Paul, Minn., for appellee the Resolutions..., 47 S. Ct. 532, 75 L. Ed. which his answer referred Near interest. Licenser, resulted in renunciation of the press is also the conceded authority of courts to punish wrongdoer. 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