Near v. Minnesota

Near was one of the most important cases concerning freedom of the press that the Court ever decided. Afterward, it was clear that the prohibition against prior restraint--the very heart of the First Amendment--applied to states as well as the federal government.

In 1925, Minnesota passed a statute, also known as the Minnesota Gag Law, which permitted a judge, acting without a jury, to stop publication of any newspaper, magazine, or other periodical publication the judge found "obscene, lewd, and lascivious" or "malicious, scandalous, and defamatory." The law provided that a periodical could be permanently enjoined from future publication.

The Minnesota Gag Law was a response to the spread of "yellow journalism"--sensationalistic news accounts--across the country in the 1920s. In general, the law was regarded approvingly, and the American public watched to see how Minnesota would proceed.

The law was first applied to the Saturday Press, a weekly newspaper published in Minneapolis by the controversial J. . Near. Actually, Near's paper was controversial, too, although its muckraking accounts of corruption in city politics were largely accurate. Near himself was far more disreputable: he was anti-Catholic, anti-Jewish, anti-black, and anti-labor. Still, journalists and the American Civil Liberties Union (ACLU) rallied to his cause when Floyd B. Olson, the county attorney, tried to use the gag law to close down the Saturday Press. (The state of Minnesota sued on his behalf, or "ex relation.")

Near's defenders were concerned because the gag law constituted a form of prior restraint, an attempt by government to prohibit communication of information before publication. In essence, prior restraint amounts to the kind of censorship specifically ruled out by First Amendment guarantees of freedom of speech and press.

After the Minnesota Supreme Court upheld the injunction preventing publication of the Saturday Press, the conservative Chicago publisher, Colonel Robert R. McCormack, substituted his legal staff for the ACLU's. Near then appealed his case to the U.S. Supreme Court.

Although the vote was close, the opinion of the Court written by Chief Justice Hughes came out squarely against the gag law. In the minds of the majority, there was no question but that the First Amendment ruled out prior restraint, at the state as well as the federal level:

This statute . . . raises questions of grave importance transcending the local interests involved in the particular action. It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion of state action.

In fact, said Hughes, "it is the chief purpose of the guaranty [of a free press] to prevent previous restraints upon publication." The ban on prior restraint goes right to the heart of the First Amendment.

Speaking for the four dissenters, Butler argued otherwise. In his view, the majority's decision would put unprecedented restrictions on states, which had traditionally used their police powers to promote public welfare. Prohibiting publication of scandalous or defamatory claims such as those allegedly published by the Saturday Press surely fell within this purview.

The view of the majority in Near, however, was quickly adopted by the American people. The principle it set forth has prevented journalists from being censored by politicians and prosecutors and, in fact, permitted the press to act as a public watchdog. There is a straight line connecting J. M. Near's criticism of police corruption in Minneapolis in the 1930s to the New York Times's publication of the "Pentagon Papers" in 1971. Had it not been for Near v. Minnesota, the American people might never have learned the truth about the federal government's undertaking of the war in Vietnam.