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

Freedom of the press is not absolute; for example, the possibility of being sued for the tort of defamation makes a newspaper careful not to something that a plaintiff might consider to constitute libel. Whether a plaintiff can prevent something defamatory from being published, in advance of its publication—the notion of prior restraint—is an issue that predates the Constitution.

A Minnesota statute provided that anyone engaged in the publication of a ‘‘malicious, scandalous and defamatory newspaper’’ was guilty of nuisance, and allowed either a county attorney or an aggrieved private citizen to seek an injunction to prevent publication of such material.

Near, the owner of a newspaper in Minneapolis, published a series of articles and editorials in which he claimed that Jewish gangsters were in control of the city. The articles charged that the mayor, chief of police, county attorney, and several other officials were either derelict in their law enforcement duties or were taking bribes from this gangster. The officials sought an injunction to prohibit further publication of material of this type.

The Supreme Court agreed that the material was scandalous and defamatory. However, the prior restraint of publication was the type of censorship that had been prohibited in England long before the American Revolution, and the Framers of the First Amendment certainly intended to preserve that freedom.

The Court said that prior restraint might be allowed in cases of national security, citing Schenck v. United States (1919), or to prevent the publication of obscenity. Here, however, the plaintiffs’ sole remedy was an action for defamation, after the fact.

ELI C. BORTMAN

Cases and Statutes Cited

• Mason’s Minnesota Statutes, 1927, 10123-1 to 10123-3
• Schenck v.United States, 249 U.S. 47 (1919)

See also Blackstone and Common Law Prohibition on Prior Restraints; Defamation and Free Speech; National Security Prior Restraints; Obscenity; Prior Restraints