Near v. Minnesota ex rel. Olson, 283 U.S. 697; 51 S. Ct. 625; 75 L. Ed. 1357 (1931)

Facts—A Minnesota statute provided for the abatement, as a public nuisance, of a “malicious, scandalous and defamatory newspaper, magazine, or other periodical.” The county attorney of Hennepin County brought action against a publication known as The Saturday Press, published by the defendants in the city of Minneapolis. The periodical in various issues charged certain public officers with gross neglect of duty or grave misconduct in office.

Question—Does the closing of a newspaper as a public nuisance infringe the liberty of the press as guaranteed by the Fourteenth Amendment?

Decision—Yes.

Reasons—C.J. Hughes (5–4). It is no longer questioned that liberty of the press is one of the personal freedoms protected by the Fourteenth Amendment. However, the police powers of the state must be admitted and the limits determined. The liberty of the press in the meaning of the Constitution is principally immunity from previous restraint. The statute cannot be justified by giving a publisher an opportunity to present his evidence. It would be only a step to a complete system of censorship. “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.”

Scandal that tends to disturb the peace is a serious public evil, but the threat to liberty is even more so. The statute, by its operation and effect was unconstitutional.

Note—Near was the first case in which the Supreme Court invalidated a state law regarding freedom of the press under the Fourteenth Amendment. Although condemning prior restraint of the press, which he considered to be of the very essence of censorship, the chief justice cited a limited number of occasions (many dealing with information about battle plans during war) where such censorship would be admissible.