Near v. Minnesota

No. 91

Argued January 30, 1931

Decided June 1, 1931

283 U.S. 697

APPEAL FROM THE SUPREME COURT OF MINNESOTA

Syllabus



1. A Minnesota statute declares that one who engages "in the business of

regularly and customarily producing, publishing," etc., "a malicious,

scandalous and defamatory newspaper, magazine or other periodical," is

guilty of a nuisance, and authorizes suits, in the name of the State, in

which such periodicals may be abated and their publishers enjoined from

future violations.  In such a suit, malice may be inferred from the fact

of publication.  The defendant is permitted to prove, as a defense, that

his publications were true and published "with good motives and for

justifiable ends."  Disobedience of an injunction is punishable as a

contempt.  Held unconstitutional, as applied to publications charging

neglect of duty and corruption upon the part of law-enforcing officers

of the State.  Pp. 704, 709, 712, 722.



2. Liberty of the press is within the liberty safeguarded by the due

process clause of the Fourteenth Amendment from invasion by state

action.



3. Liberty of the press is not an absolute right, and the State may

punish its abuse.



4. In passing upon the constitutionality of the statute, the court has

regard for substance, and not for form; the statute must be tested by

its operation and effect.   [283 U.S. 698]



5. Cutting through mere details of procedure, the operation and effect

of the statute is that public authorities may bring a publisher 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 officials of official dereliction -- and, unless

the publisher is able and disposed 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 the essence of censorship.



6. A statute authorizing such proceedings in restraint of publication is

inconsistent with the conception of the liberty of the press as

historically conceived and guaranteed.



7. The chief purpose of the guaranty is to prevent previous restraints

upon publication.  The libeler, however, remains criminally and civilly

responsible for his libels.



8. There are undoubtedly limitations upon the immunity from previous

restraint of the press, but they are not applicable in this case.



9. The liberty of the press has been especially cherished in this

country as respects publications censuring public officials and charging

official misconduct.



10. Public officers find their remedies for false accusations in actions

for redress and punishment under the libel laws, and not in proceedings

to restrain the publication of newspapers and periodicals.



11. 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

from previous restraint in dealing with official misconduct.



12. Characterizing the publication of charges of official misconduct as

a "business," and the business as a nuisance, does not avoid the

constitutional guaranty; nor does it matter that the periodical is

largely or chiefly devoted to such charges.



13. The guaranty against previous restraint extends to publications

charging official derelictions that amount to crimes.



14. Permitting the publisher to show in defense that the matter

published is true and is published with good motives and for justifiable

ends does not justify the statute.



15. Nor can it be sustained as a measure for preserving the public peace

and preventing assaults and crime.  Pp. 721, 722.



179 Minn. 40; 228 N.W. 326, reversed. [283 U.S. 699]



APPEAL from a decree which sustained an injunction abating the

publication of a periodical as malicious, scandalous and defamatory, and

restraining future publication.  The suit was based on a Minnesota

statute.  See also s.c., 174 Minn. 457, 219 N.W. 770. [283 U.S. 701]

HUGHES, J., lead opinion



MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.



Chapter 285 of the Session Laws of Minnesota for the year 1925 provides

for the abatement, as a public nuisance, of a "malicious, scandalous and

defamatory newspaper, [283 U.S. 702] magazine or other periodical." 

Section one of the Act is as follows:



Section 1.  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



(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.



Participation in such business shall constitute a commission of such

nuisance and render the participant liable and subject to the

proceedings, orders and judgments provided for in this Act.  Ownership,

in whole or in part, directly or indirectly, of any such periodical, or

of any stock or interest in any corporation or organization which owns

the same in whole or in part, or which publishes the same, shall

constitute such participation.



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.



Section two provides that, whenever any such nuisance is committed or

exists, the County Attorney of any county where any such periodical is

published or circulated, or, in case of his failure or refusal to

proceed upon written request in good faith of a reputable citizen, the

Attorney General, or, upon like failure or refusal of the latter, any

citizen of the county may maintain an action in the district court of

the county in the name of the State to enjoin [283 U.S. 703] perpetually

the persons committing or maintaining any such nuisance from further

committing or maintaining it.  Upon such evidence as the court shall

deem sufficient, a temporary injunction may be granted.  The defendants

have the right to plead by demurrer or answer, and the plaintiff may

demur or reply as in other cases.



The action, by section three, is to be " governed by the practice and

procedure applicable to civil actions for injunctions," and, after

trial, the court may enter judgment permanently enjoining the defendants

found guilty of violating the Act from continuing the violation, and,

"in and by such judgment, such nuisance may be wholly abated."  The

court is empowered, as in other cases of contempt, to punish

disobedience to a temporary or permanent injunction by fine of not more

than $1,000 or by imprisonment in the county jail for not more than

twelve months.



Under this statute, clause (b), the County Attorney of Hennepin County

brought this action to enjoin the publication of what was described as a

" malicious, scandalous and defamatory newspaper, magazine and

periodical" known as " The Saturday Press," published by the defendants

in the city of Minneapolis.  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.  While the complaint did not so allege, it [283

U.S. 704] appears from the briefs of both parties that Charles G. Davis

was a special law enforcement officer employed by a civic organization,

that George E. Leach was Mayor of Minneapolis, that Frank W. Brunskill

was its Chief of Police, and that Floyd B. Olson (the relator in this

action) was County Attorney.



Without attempting to summarize the contents of the voluminous exhibits

attached to the complaint, we deem it sufficient to say that the

articles charged in substance that a Jewish gangster was in control of

gambling, bootlegging and racketeering in Minneapolis, and that law

enforcing officers and agencies were not energetically performing their

duties.  Most of the charges were directed against the Chief of Police;

he was charged with gross neglect of duty, illicit relations with

gangsters, and with participation in graft.  The County Attorney was

charged with knowing the existing conditions and with failure to take

adequate measures to remedy them.  The Mayor was accused of inefficiency

and dereliction.  One member of the grand jury was stated to be in

sympathy with the gangsters.  A special grand jury and a special

prosecutor were demanded to deal with the situation in general, and, in

particular, to investigate an attempt to assassinate one Guilford, one

of the original defendants, who, it appears from the articles, was shot

by gangsters after the first issue of the periodical had been published.

 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.



At the beginning of the action, on November 22, 1927, and upon the

verified complaint, an order was made directing the defendants to show

cause why a temporary injunction should not issue and meanwhile

forbidding the defendants to publish, circulate or have in their

possession any editions of the periodical from September [283 U.S. 705]

24, 1927, to November 19, 1927, inclusive, and from publishing,

circulating, or having in their possession, "any future editions of said

The Saturday Press" and any publication, known by any other name

whatsoever containing malicious, scandalous and defamatory matter of the

kind alleged in plaintiff's complaint herein or otherwise.



The defendants demurred to the complaint upon the ground that it did not

state facts sufficient to constitute a cause of action, and on this

demurrer challenged the constitutionality of the statute.  The District

Court overruled the demurrer and certified the question of

constitutionality to the Supreme Court of the State.  The Supreme Court

sustained the statute (174 Minn. 457, 219 N.W. 770), and it is conceded

by the appellee that the Act was thus held to be valid over the

objection that it violated not only the state constitution, but also the

Fourteenth Amendment of the Constitution of the United States.



Thereupon, the defendant Near, the present appellant, answered the

complaint.  He averred that he was the sole owner and proprietor of the

publication in question.  He admitted the publication of the articles in

the issues described in the complaint, but denied that they were

malicious, scandalous or defamatory as alleged.  He expressly invoked

the protection of the due process clause of the Fourteenth Amendment. 

The case then came on for trial.  The plaintiff offered in evidence the

verified complaint, together with the issues of the publication in

question, which were attached to the complaint as exhibits.  The

defendant objected to the introduction of the evidence, invoking the

constitutional provisions to which his answer referred.  The objection

was overruled, no further evidence was presented, and the plaintiff

rested.  The defendant then rested without offering evidence.  The

plaintiff moved that the court direct the issue of a permanent

injunction, and this was done. [283 U.S. 706]



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.  The court further found

that the defendants, through these publications, did engage in the

business of regularly and customarily producing, publishing and

circulating a malicious, scandalous and defamatory newspaper, and that

"the said publication" "under said name of The Saturday Press, or any

other name, constitutes a public nuisance under the laws of the State." 

Judgment was thereupon entered adjudging that "the newspaper, magazine

and periodical known as The Saturday Press," as a public nuisance, "be

and is hereby abated."  The Judgment perpetually enjoined the defendants

from producing, editing, publishing, circulating, having in their

possession, selling or giving away any publication whatsoever which is a

malicious, scandalous or defamatory newspaper, as defined by law, and

also "from further conducting said nuisance under the name and title of

said The Saturday Press or any other name or title."



The defendant Near appealed from this judgment to the Supreme Court of

the State, again asserting his right under the Federal Constitution, and

the judgment was affirmed upon the authority of the former decision. 

179 Minn. 40, 228 N.W. 326.  With respect to the contention that the

judgment went too far, and prevented the defendants from publishing any

kind of a newspaper, the court observed that the assignments of error

did not go to the form of the judgment, and that the lower court had not

been asked to modify it.  The court added that it saw no reason 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 [283 U.S. 707] 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."



From the judgment as thus affirmed, the defendant Near appeals to this

Court.



This statute, for the suppression as a public nuisance of a newspaper or

periodical, is unusual, if not unique, and 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 by state action.  It

was found impossible to conclude that this essential personal liberty of

the citizen was left unprotected by the general guaranty of fundamental

rights of person and property.  Gitlow v. New York, 268 U.S. 652, 666;

Whitney v. California, 274 U.S. 357, 362, 373; Fiske v. Kansas, 274 U.S.

380, 382; Stromberg v. California, ante,   In maintaining this guaranty,

the authority of the State to enact laws to promote the health, safety,

morals and general welfare of its people is necessarily admitted.  The

limits of this sovereign power must always be determined with

appropriate regard to the particular subject of its exercise.  Thus,

while recognizing the broad discretion of the legislature in fixing

rates to be charged by those undertaking a public service, this Court

has decided that the owner cannot constitutionally be deprived of his

right to a fair return, because that is deemed to be of the essence of

ownership.  Railroad Commission Cases, 116 U.S. 307, 331; Northern

Pacific Ry. Co. v. North Dakota, 236 U.S. 585, 596.  So, while liberty

of contract is not an absolute right, and the wide field of activity in

the making of contracts is subject to legislative supervision (Frisbie

v. United States, 157 U.S. 161, 165), this Court has held that the power

of the State stops short of interference with what are deemed [283 U.S.

708] to be certain indispensable requirements of the liberty assured,

notably with respect to the fixing of prices and wages.  Tyson Bros. v.

Banton, 273 U.S. 418; Ribnik v. McBride, 277 U.S. 350; Adkins v.

Children's Hospital, 261 U.S. 525, 560, 561.  Liberty of speech, and of

the press, is also not an absolute right, and the State may punish its

abuse.  Whitney v. California, supra; Stromberg v. California, supra. 

Liberty, in each of its phases, has its history and connotation, and, in

the present instance, the inquiry is as to the historic conception of

the liberty of the press and whether the statute under review violates

the essential attributes of that liberty.



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.  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 appellant replies that,

in his view, the plain terms of the statute were not departed from in

this case, and that, even if they were, the statute is nevertheless

unconstitutional under any reasonable construction of its terms.  The

appellant states that he has not argued that the temporary and permanent

injunctions were broader than were warranted by the statute; he insists

that what was done was properly done if the statute is valid, and that

the action taken under the statute is a fair indication of its scope.



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 statute must be tested by its operation and effect. 

Henderson v. Mayor, 92 U.S. 259, 268; Bailey v. Alabama, 219 [283 U.S.

709] U.S. 219, 244; United States v. Reynolds, 235 U.S. 133, 148, 149;

St. Louis Southwestern R. Co. v. Arkansas, 235 U.S. 350, 362; Mountain

Timber Co. v. Washington, 243 U.S. 219, 237.  That operation and effect

we think is clearly shown by the record in this case.  We are not

concerned with mere errors of the trial court, if there be such, in

going beyond the direction of the statute as construed by the Supreme

Court of the State.  It is thus important to note precisely the purpose

and effect of the statute as the state court has construed it.



First.  The statute is not aimed at the redress of individual or private

wrongs.  Remedies for libel remain available and unaffected.  The

statute, said the state court, "is not directed at threatened libel, but

at an existing business which, generally speaking, involves more than

libel."  It is aimed at the distribution of scandalous matter as

"detrimental to public morals and to the general welfare," tending "to

disturb the peace of the community" and "to provoke assaults and the

commission of crime."  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.  In the present action, there was no allegation

that the matter published was not true.  It is alleged, and the statute

requires the allegation, that the publication was "malicious."  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.  The judgment in this case

proceeded upon the mere proof of publication.  The statute permits the

defense not of the truth alone, but only that the truth was published

with good motives and [283 U.S. 710] for justifiable ends.  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

reprobation and to constitute a public scandal.  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.  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.  Men who

are the victims of such assaults seldom resort to the courts.  This is

especially true if their sins are exposed and the only question relates

to whether it was done with good motives and for justifiable ends.  This

law is not for the protection of the person attacked, nor to punish the

wrongdoer.  It is for the protection of the pubic welfare.



Second.  The statute is directed not simply at the circulation of

scandalous and defamatory statements with regard to private citizens,

but at the continued publication by newspapers and periodicals of

charges against public officers of corruption, malfeasance in office, or

serious neglect of duty.  Such charges, by their very nature, create a

public scandal.  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. [283 U.S. 711]



Third.  The object of the statute is not punishment, in the ordinary

sense, but suppression of the offending newspaper or periodical.  The

reason for the enactment, as the state court has said, is that

prosecutions to enforce penal statutes for libel do not result in

"efficient repression or suppression of the evils of scandal." 

Describing the business of publication as a public nuisance does not

obscure the substance of the proceeding which the statute authorizes. 

It is the continued publication of scandalous and defamatory matter that

constitutes the business and the declared nuisance.  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.  In the present

instance, the proof was that nine editions of the newspaper or

periodical in question were published on successive dates, and that they

were chiefly devoted to charges against public officers and in relation

to the prevalence and protection of crime.  In such a case, these

officers are not left to their ordinary remedy in a suit for libel, or

the authorities to a prosecution for criminal libel.  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 [283 U.S. 712]

addition to being true, the matter was published with good motives and

for justifiable ends.



This suppression is accomplished by enjoining publication, and that

restraint is the object and effect of the statute.



Fourth.  The statute not only operates to suppress the offending

newspaper or periodical, but to put the publisher under an effective

censorship.  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.  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.  Whether he would be permitted again to publish matter

deemed to be derogatory to the same or other public officers would

depend upon the court's ruling.  In the present instance, the judgment

restrained the defendants from publishing, circulating, having in their

possession, selling or giving away any publication whatsoever which is a

malicious, scandalous or defamatory newspaper, as defined by law. The

law gives no definition except that covered by the words "scandalous and

defamatory," and publications charging official misconduct are of that

class.  While the court, answering the objection that the judgment was

too broad, saw no reason for construing it as restraining the defendants

"from operating a newspaper in harmony with the public welfare to which

all must yield," and said that the defendants had not indicated "any

desire to conduct their business in the usual and legitimate manner,"

the manifest inference is that, at least with respect to a [283 U.S.

713] new publication directed against official misconduct, the defendant

would be held, under penalty of punishment for contempt as provided in

the statute, to a manner of publication which the court considered to be

"usual and legitimate" and consistent with the public welfare.



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.  This is of the

essence of censorship.



The question is whether a statute authorizing such proceedings in

restraint of publication is consistent with the conception of the

liberty of the press as historically conceived and guaranteed.  In

determining the extent of the constitutional protection, it has been

generally, if not universally, considered that it is the chief purpose

of the guaranty to prevent previous restraints upon publication.  The

struggle in England, directed against the legislative power of the

licenser, resulted in renunciation of the censorship of the press.  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. 

Every freeman has an [283 U.S. 714] undoubted right to lay what

sentiments he pleases before the public; to forbid this is to destroy

the freedom of the press; but if he publishes what is improper,

mischievous or illegal, he must take the consequence of his own

temerity. 4 Bl.Com. 151, 152; see Story on the Constitution,  1884,

1889.  The distinction was early pointed out between the extent of the

freedom with respect to censorship under our constitutional system and

that enjoyed in England.  Here, as Madison said, the great and essential

rights of the people are secured against legislative as well as against

executive ambition.  They are secured not by laws paramount to

prerogative, but by constitutions paramount to laws.  This security of

the freedom of the press requires that it should be exempt not only from

previous restraint by the Executive, a in Great Britain, but from

legislative restraint also. Report on the Virginia Resolutions,

Madison's Works, vol. IV, p. 543.  This Court said, in Patterson v.

Colorado, 205 U.S. 454, 462: In the first place, the main purpose of

such constitutional provisions is "to prevent all such previous

restraints upon publications as had been practiced by other

governments," and they do not prevent the subsequent punishment of such

as may be deemed contrary to the public welfare.  Commonwealth v.

Blanding, 3 Pick. 304, 313, 314; Respublica v. Oswald, 1 Dallas 319,

325.  The preliminary freedom extends as well to the false as to the

true; the subsequent punishment may extend as well to the true as to the

false.  This was the law of criminal libel apart from statute in most

cases, if not in all.  Commonwealth v. Blanding, ubi sup.; 4 Bl.Com.

150.



The criticism upon Blackstone's statement has not been because immunity

from previous restraint upon publication has not been regarded as

deserving of special emphasis, but chiefly because that immunity cannot

be deemed to exhaust the conception of the liberty guaranteed by [283

U.S. 715] state and federal constitutions.  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 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. 2 Cooley, Const.Lim., 8th ed., p. 885.  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.  Id., pp. 883, 884.  The law

of criminal libel rests upon that secure foundation.  There is also the

conceded authority of courts to punish for contempt when publications

directly tend to prevent the proper discharge of judicial functions. 

Patterson v. Colorado, supra; Toledo Newspaper Co. v. United States, 247

U.S. 402, 419.  In the present case, we have no occasion to inquire as

to the permissible scope of subsequent punishment.  For whatever wrong

the appellant has committed or may commit by his publications the State

appropriately affords both public and private redress by its libel laws.

 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.



The objection has also been made that the principle as to immunity from

previous restraint is stated too [283 U.S. 716] broadly, if every such

restraint is deemed to be prohibited.  That is undoubtedly true; the

protection even as to previous restraint is not absolutely unlimited. 

But the limitation has been recognized only in exceptional cases: When a

nation is at war, many things that might be said in time of peace are

such a hindrance to its effort that their utterance will not be endured

so long as men fight, and that no Court could regard them as protected

by any constitutional right. Schenck v. United States, 249 U.S. 47, 52. 

No one would question but that a government might prevent actual

obstruction to its recruiting service or the publication of the sailing

dates of transports or the number and location of troops.  On similar

grounds, the primary requirements of decency may be enforced against

obscene publications.  The security of the community life may be

protected against incitements to acts of violence and the overthrow by

force of orderly government.  The constitutional guaranty of free speech

does not protect a man from an injunction against uttering words that

may have all the effect of force.  Gompers v. Buck Stove & Range Co.,

221 U.S. 418, 439. Schenck v. United States, supra.  These limitations

are not applicable here.  Nor are we now concerned with questions as to

the extent of authority to prevent publications in order to protect

private rights according to the principles governing the exercise of the

jurisdiction of courts of equity.



The exceptional nature of its limitations places in a strong light the

general conception that liberty of the press, historically considered

and taken up by the Federal Constitution, has meant, principally,

although not exclusively, immunity from previous restraints or

censorship.  The conception of the liberty of the press in this country

had broadened with the exigencies of the colonial [283 U.S. 717] period

and with the efforts to secure freedom from oppressive administration. 

That liberty was especially cherished for the immunity it afforded from

previous restraint of the publication of censure of public officers and

charges of official misconduct.  As was said by Chief Justice Parker, in

Commonwealth v. Blanding, 3 Pick. 304, 313, with respect to the

constitution of Massachusetts: Besides, it is well understood, and

received as a commentary on this provision for the liberty of the press,

that it was intended to prevent all such previous restraints upon

publications as had been practiced by other governments, and in early

times here, to stifle the efforts of patriots towards enlightening their

fellow subjects upon their rights and the duties of rulers.  The liberty

of the press was to be unrestrained, but he who used it was to be

responsible in case of its abuse. In the letter sent by the Continental

Congress (October 26, 1774) to the Inhabitants of Quebec, referring to

the "five great rights," it was said: The last right we shall mention

regards the freedom of the press.  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. Madison, who was the leading spirit in the

preparation of the First Amendment of the Federal Constitution, thus

described the practice and sentiment which led to the guaranties of

liberty of the press in state constitutions:{10} [283 U.S. 718]



In every State, probably, in the Union, the press has exerted a freedom

in canvassing the merits and measures of public men of every description

which has not been confined to the strict limits of the common law.  On

this footing the freedom of the press has stood; on this footing it yet

stands. . . .  Some degree of abuse is inseparable from the proper use

of everything, and in no instance is this more true than in that of the

press.  It has accordingly been decided by the practice of the States

that it is better to leave a few of its noxious branches to their

luxuriant growth than, by pruning them away, to injure the vigour of

those yielding the proper fruits.  And can the wisdom of this policy be

doubted by any who reflect that to the press alone, chequered as it is

with abuses, the world is indebted for all the triumphs which have been

gained by reason and humanity over error and oppression; who reflect

that to the same beneficent source the United States owe much of the

lights which conducted them to the ranks of a free and independent

nation, and which have improved their political system into a shape so

auspicious to their happiness?  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?  Might they

not, possibly, be miserable colonies, groaning under a foreign yoke?



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.  Public officers, whose character and [283

U.S. 719] 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.  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.{11}



The importance of this immunity has not lessened.  While reckless

assaults upon public men, and efforts to bring obloquy upon those who

are endeavoring faithfully to discharge official duties, exert a baleful

influence and deserve the severest condemnation in public opinion, it

cannot be said that this abuse is greater, and it is believed to be

less, than that which characterized the period in which our institutions

took shape.  Meanwhile, the administration of government has become more

complex, the opportunities for malfeasance and corruption have

multiplied, crime has grown to most serious proportions, and the danger

of its protection by unfaithful officials and of the impairment of the

fundamental security of life and [283 U.S. 720] property by criminal

alliances and official neglect, emphasizes the primary need of a

vigilant and courageous press, especially in great cities.  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.



In attempted justification of the statute, it is said that it deals not

with publication per se, but with the "business" of publishing

defamation.  If, however, the publisher has a constitutional right to

publish, without previous restraint, an edition of his newspaper

charging official derelictions, it cannot be denied that he may publish

subsequent editions for the same purpose.  He does not lose his right by

exercising it.  If his right exists, it may be exercised in publishing

nine editions, as in this case, as well as in one edition.  If previous

restraint is permissible, it may be imposed at once; indeed, the wrong

may be as serious in one publication as in several.  Characterizing the

publication as a business, and the business as a nuisance, does not

permit an invasion of the constitutional immunity against restraint. 

Similarly, it does not matter that the newspaper or periodical is found

to be "largely" or "chiefly" devoted to the publication of such

derelictions.  If the publisher has a right, without previous restraint,

to publish them, his right cannot be deemed to be dependent upon his

publishing something else, more or less, with the matter to which

objection is made.



Nor can it be said that the constitutional freedom from previous

restraint is lost because charges are made of derelictions which

constitute crimes.  With the multiplying provisions of penal codes, and

of municipal charters and ordinances carrying penal sanctions, the

conduct of [283 U.S. 721] public officers is very largely within the

purview of criminal statutes.  The freedom of the press from previous

restraint has never been regarded as limited to such animadversions as

lay outside the range of penal enactments.  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 statute in question cannot be justified by reason of the fact that

the publisher is permitted to show, before injunction issues, that the

matter published is true and is published with good motives and for

justifiable ends.  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.  If this can be done,

the legislature may provide machinery for determining in the complete

exercise of its discretion what are justifiable ends, and restrain

publication accordingly.  And it would be but a step to a complete

system of censorship.  The recognition of authority to impose previous

restraint upon publication in order to protect the community against the

circulation of charges of misconduct, and especially of official

misconduct, necessarily would carry with it the admission of the

authority of the censor against which the constitutional barrier was

erected.  The preliminary freedom, by virtue of the very reason for its

existence, does not depend, as this Court has said, on proof of truth. 

Patterson v. Colorado, supra.



Equally unavailing is the insistence that the statute is designed to

prevent the circulation of scandal which tends [283 U.S. 722] to disturb

the public peace and to provoke assaults and the commission of crime. 

Charges of reprehensible conduct, and in particular of official

malfeasance, unquestionably create a public scandal, but the theory of

the constitutional guaranty is that even a more serious public evil

would be caused by authority to prevent publication.



To prohibit the intent to excite those unfavorable sentiments against

those who administer the Government is equivalent to a prohibition of

the actual excitement of them, and to prohibit the actual excitement of

them is equivalent to a prohibition of discussions having that tendency

and effect, which, again, is equivalent to a protection of those who

administer the Government, if they should at any time deserve the

contempt or hatred of the people, against being exposed to it by free

animadversions on their characters and conduct.{12} There is nothing new

in the fact that charges of reprehensible conduct may create resentment

and the disposition to resort to violent means of redress, but this well

understood tendency did not alter the determination to protect the press

against censorship and restraint upon publication.  As was said in New

Yorker Staats-Zeitung v. Nolan, 89 N.J. Eq. 387, 388, 105 Atl. 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 its circulation by resorting to physical violence, there is

no limit to what may be prohibited. The danger of violent reactions

becomes greater with effective organization of defiant groups resenting

exposure, and if this consideration warranted legislative interference

with the initial freedom of publication, the constitutional protection

would be reduced to a mere form of words.



For these reasons we hold the statute, so far as it authorized the

proceedings in this action under clause (b) [283 U.S. 723] of section

one, to be an infringement of the liberty of the press guaranteed by the

Fourteenth Amendment.  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

fact that the public officers named in this case, and those associated

with the charges of official dereliction, may be deemed to be impeccable

cannot affect the conclusion that the statute imposes an

unconstitutional restraint upon publication.



Judgment reversed. BUTLER, J., dissenting



MR. JUSTICE BUTLER, dissenting.



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 be a public nuisance.  It gives to freedom of the press a

meaning and a scope not heretofore recognized, and construes "liberty"

in the due process clause of the Fourteenth Amendment to put upon the

States a federal restriction that is without precedent.



Confessedly, the Federal Constitution, prior to 1868, when the

Fourteenth Amendment was adopted, did not protect the right of free

speech or press against state action.  Barron v. Baltimore, 7 Pet. 243,

250.  Fox v. Ohio, 5 How. 410, 434.  Smith v. Maryland, 18 How. 71, 76. 

Withers v. Buckley, 20 How. 84, 89-91.  Up to that time, the right was

safeguarded solely by the constitutions and laws of the States, and, it

may be added, they operated adequately to protect it.  This Court was

not called on until 1925 to decide whether the "liberty" protected by

the Fourteenth Amendment includes the right of free speech and press. 

That question has been finally answered [283 U.S. 724] in the

affirmative.  Cf. Patterson v. Colorado, 205 U.S. 454, 462.  Prudential

Ins. Co. v. Cheek, 259 U.S. 530, 538, 543.  See Gitlow v. New York, 268

U.S. 652.  Fiske v. Kansas, 274 U.S. 380.  Stromberg v. California,

ante,



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 also shows that it

was their purpose at all hazards to continue to carry on the business. 

In every edition, slanderous and defamatory matter predominates to the

practical exclusion of all else.  Many of the statements are so highly

improbable as to compel a finding that they are false.  The articles

themselves show malice. [283 U.S. 725]



The defendant here has no standing to assert that the statute is invalid

because it might be construed so as to violate the Constitution.  His

right is limited solely to [283 U.S. 726] the inquiry whether, having

regard to the point properly raised in his case, the effect of applying

the statute is to deprive him of his liberty without due process of law.

 [283 U.S. 727] This Court should not reverse the judgment below upon

the ground that, in some other case, the statute may be applied in a way

that is repugnant to the freedom of the press protected by the

Fourteenth Amendment.  Castillo v. McConnico, 168 U.S. 674, 680. 

Williams v. Mississippi, 170 U.S. 213, 225.  Yazoo & Miss. R. Co. v.

Jackson Vinegar Co., 226 U.S. 217, 219-220.  Plymouth Coal Co. v.

Pennsylvania, 232 U.S. 531, 544-546.



This record requires the Court to consider the statute as applied to the

business of publishing articles that are, in fact, malicious, scandalous

and defamatory.



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" [283 U.S. 728] is guilty of a nuisance, and may be enjoined

as provided in the Act.  It will be observed that the qualifying words

are used conjunctively.  In actions brought under (b) "there shall be

available the defense that the truth was published with good motives and

for justifiable ends."



The complaint charges that defendants were engaged in the business of

regularly and customarily publishing "malicious, scandalous and

defamatory newspapers" known as the Saturday Press, and nine editions

dated respectively on each Saturday commencing September 25 and ending

November 19, 1927, were made a part of the complaint.  These are all

that were published.



On appeal from the order of the district court overruling defendants'

demurrer to the complaint, the state supreme court said (174 Minn. 457,

461, 219 N.W. 770):



The constituent elements of the declared nuisance are the customary and

regular dissemination by means of a newspaper which finds its way into

families, reaching the young as well as the mature, of a selection of

scandalous and defamatory articles treated in such a way as to excite

attention and interest so as to command circulation. . . .  The statute

is not directed at threatened libel, but at an existing business which,

generally speaking, involves more than libel.  The distribution of

scandalous matter is detrimental to public morals and to the general

welfare.  It tends to disturb the peace of the community.  Being

defamatory and malicious, it tends to provoke assaults and the

commission of crime.  It has no concern with the publication of the

truth, with good motives and for justifiable ends. . . .  In Minnesota

no agency can hush the sincere and honest voice of the press; but our

constitution was never intended to protect malice, scandal and

defamation when untrue or published with bad motives or without

justifiable ends. . . .  It was never the intention of the constitution

to afford protection [283 U.S. 729] to a publication devoted to scandal

and defamation. . . .  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.



The case was remanded to the district court.



Near's answer made no allegations to excuse or justify the business or

the articles complained of.  It formally denied that the publications

were malicious, scandalous or defamatory, admitted that they were made

as alleged, and attacked the statute as unconstitutional.  At the trial,

the plaintiff introduced evidence unquestionably sufficient to support

the complaint.  The defendant offered none.  The court found the facts

as alleged in the complaint, and, specifically, that each edition "was

chiefly devoted to malicious, scandalous and defamatory articles" and

that the last edition was chiefly devoted to malicious, scandalous and

defamatory articles concerning Leach (mayor of Minneapolis), Davis

(representative of the law enforcement league of citizens), Brunskill

(chief of police), Olson (county attorney), the Jewish race, and members

of the grand jury then serving in that court; that defendants, in and

through the several publications, did thereby engage in the business of

regularly and customarily producing, publishing and circulating a

malicious, scandalous and defamatory newspaper.



Defendant Near again appealed to the supreme court.  In its opinion (179

Minn. 40, 228 N.W. 326), the court said: No claim is advanced that the

method and character of the operation of the newspaper in question was

not a nuisance if the statute is constitutional.  It was regularly and

customarily devoted largely to malicious, scandalous and defamatory

matter. . . .  The record presents the same questions, upon which we

have already passed. [283 U.S. 730]



Defendant concedes that the editions of the newspaper complained of are

"defamatory per se," and he says: It has been asserted that the

constitution was never intended to be a shield for malice, scandal, and

defamation when untrue, or published with bad motives, or for

unjustifiable ends. . . .  The contrary is true; every person does have

a constitutional right to publish malicious, scandalous, and defamatory

matter though untrue, and with bad motives, and for unjustifiable ends,

in the first instance, though he is subject to responsibility therefor

afterwards. The record, when the substance of the articles is regarded,

requires that concession here.  And this Court is required to pass on

the validity of the state law on that basis.



No question was raised below, and there is none here, concerning the

relevancy or weight of evidence, burden of proof, justification or other

matters of defense, the scope of the judgment or proceedings to enforce

it, or the character of the publications that may be made

notwithstanding the injunction.



There is no basis for the suggestion that defendants may not interpose

any defense or introduce any evidence that would be open to them in a

libel case, or that malice may not be negatived by showing that the

publication was made in good faith in belief of its truth, or that, at

the time and under the circumstances, it was justified as a fair comment

on public affairs or upon the conduct of public officers in respect of

their duties as such.  See Mason's Minnesota Statutes,  10112, 10113.



The scope of the judgment is not reviewable here.  The opinion of the

state supreme court shows that it was not reviewable there, because

defendants' assignments of error in that court did not go to the form of

the judgment, and because the lower court had not been asked to modify

the judgment. [283 U.S. 731]



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.  Lindsley v. Natural Carbonic Gas

Co., 220 U.S. 61, 79.  Gitlow v. New York, supra,   Corporation

Commission v. Lowe, 281 U.S. 431, 438.  O'Gorman & Young v. Hartford

Ins. Co., 282 U.S. 251, 257-258.



The publications themselves disclose the need and propriety of the

legislation.  They show:



In 1913 one Guilford, originally a defendant in this suit, commenced the

publication of a scandal sheet called the Twin City Reporter; in 1916,

Near joined him in the enterprise, later bought him out and engaged the

services of one Bevans.  In 1919, Bevans acquired Near's interest, and

has since, alone or with others, continued the publication.  Defendants

admit that they published some reprehensible articles in the Twin City

Reporter, deny that they personally used it for blackmailing purposes,

admit that, by reason of their connection with the paper their

reputation did become tainted, and state that Bevans, while so

associated with Near, did use the paper for blackmailing purposes.  And

Near says it was for that reason he sold his interest to Bevans.



In a number of the editions, defendants charge that, ever since Near

sold his interest to Bevans in 1919, the Twin City Reporter has been

used for blackmail, to dominate public gambling and other criminal

activities, and as well to exert a kind of control over public officers

and the government of the city.



The articles in question also state that, when defendants announced

their intention to publish the Saturday Press, they were threatened, and

that, soon after the first publication, [283 U.S. 732] Guilford was

waylaid and shot down before he could use the firearm which he had at

hand for the purpose of defending himself against anticipated assaults. 

It also appears that Near apprehended violence, and was not unprepared

to repel it.  There is much more of like significance.



The long criminal career of the Twin City Reporter -- if it is, in fact,

as described by defendants -- and the arming and shooting arising out of

the publication of the Saturday Press, serve to illustrate the kind of

conditions, in respect of the business of publishing malicious,

scandalous and defamatory periodicals, by which the state legislature

presumably was moved to enact the law in question.  It must be deemed

appropriate to deal with conditions existing in Minnesota.



It is of the greatest importance that the States shall be untrammeled

and free to employ all just and appropriate measures to prevent abuses

of the liberty of the press.



In his work on the Constitution (5th ed.), Justice Story, expounding the

First Amendment, which declares "Congress shall make no law abridging

the freedom of speech or of the press," said ( 1880):



That this amendment was intended to secure to every citizen an absolute

right to speak, or write, or print whatever he might please, without any

responsibility, public or private, therefor is a supposition too wild to

be indulged by any rational man.  This would be to allow to every

citizen a right to destroy at his pleasure the reputation, the peace,

the property, and even the personal safety of every other citizen.  A

man might, out of mere malice and revenge, accuse another of the most

infamous crimes; might excite against him the indignation of all his

fellow citizens by the most atrocious calumnies; might disturb, nay,

overturn, all his domestic peace, and embitter his parental affections;

might inflict the most distressing punishments upon the weak, the timid,

and the innocent; [283 U.S. 733] might prejudice all a man's civil, and

political, and private rights, and might stir up sedition, rebellion,

and treason even against the government itself in the wantonness of his

passions or the corruption of his heart.  Civil society could not go on

under such circumstances.  Men would then be obliged to resort to

private vengeance to make up for the deficiencies of the law, and

assassination and savage cruelties would be perpetrated with all the

frequency belonging to barbarous and brutal communities.  It is plain,

then, that the language of this amendment imports no more than that

every man shall have a right to speak, write, and print his opinions

upon any subject whatsoever, without any prior restraint, so always that

he does not injure any other person in his rights, person, property, or

reputation, and so always that he does not thereby disturb the public

peace or attempt to subvert the government.  It is neither more nor less

than an expansion of the great doctrine recently brought into operation

in the law of libel, that every man shall be at liberty to publish what

is true, with good motives and for justifiable ends.  And, with this

reasonable limitation, it is not only right in itself, but it is an

inestimable privilege in a free government.  Without such a limitation,

it might become the scourge of the republic, first denouncing the

principles of liberty and then, by rendering the most virtuous patriots

odious through the terrors of the press, introducing despotism in its

worst form. (Italicizing added.)



The Court quotes Blackstone in support of its condemnation of the

statute as imposing a previous restraint upon publication.  But the

previous restraints referred to by him subjected the press to the

arbitrary will of an administrative officer.  He describes the practice

(Book IV, p. 152): To subject the press to the restrictive power of a

licenser, as was formerly done both before and since the revolution [of

1688], is to subject all freedom [283 U.S. 734] of sentiment to the

prejudices of one man and make him the arbitrary and infallible judge of

all controverted points in learning, religion, and government.



Story gives the history alluded to by Blackstone ( 1882):



The art of printing, soon after its introduction, we are told, was

looked upon, as well in England as in other countries, as merely a

matter of state, and subject to the coercion of the crown.  It was,

therefore, regulated in England by the king's proclamations,

prohibitions, charters of privilege, and licenses, and finally by the

decrees of the Court of Star-Chamber, which limited the number of

printers and of presses which each should employ, and prohibited new

publications unless previously approved by proper licensers.  On the

demolition of this odious jurisdiction, in 1641, the Long Parliament of

Charles the First, after their rupture with that prince, assumed the

same powers which the Star-Chamber exercised with respect to licensing

books, and during the Commonwealth (such is human frailty and the love

of power even in republics), they issued their ordinances for that

purpose, founded principally upon a Star-Chamber decree of 1637.  After

the restoration of Charles the Second, a statute on the same subject was

passed, copied, with some few alterations, from the parliamentary

ordinances.  The act expired in 1679, and was revived and continued for

a few years after the revolution of 1688.  Many attempts were made by

the government to keep it in force, but it was [283 U.S. 735] so

strongly resisted by Parliament that it expired in 1694, and has never

since been revived.



It is plain that Blackstone taught that, under the common law liberty of

the press means simply the absence of restraint upon publication in

advance as distinguished from liability, civil or criminal, for libelous

or improper matter so published.  And, as above shown, Story defined

freedom of the press guaranteed by the First Amendment to mean that

"every man shall be at liberty to publish what is true, with good

motives and for justifiable ends."  His statement concerned the definite

declaration of the First Amendment.  It is not suggested that the

freedom of press included in the liberty protected by the Fourteenth

Amendment, which was adopted after Story's definition, is greater than

that protected against congressional action.  And see 2 Cooley's

Constitutional Limitations, 8th ed., p. 886.  2 Kent's Commentaries

(14th ed.) Lect. XXIV, p. 17.



The Minnesota statute does not operate as a previous restraint on

publication within the proper meaning of that phrase.  It does not

authorize administrative control in advance such as was formerly

exercised by the licensers and censors but prescribes a remedy to be

enforced by a suit in equity.  In this case, there was previous

publication made in the course of the business of regularly producing

malicious, scandalous and defamatory periodicals.  The business and

publications unquestionably constitute an abuse of the right of free

press.  The statute denounces the things done as a nuisance on the

ground, as stated by the state supreme court, that they threaten morals,

peace and good order.  There is no question of the power of the State to

denounce such transgressions.  The restraint authorized is only in

respect of continuing to do what has been duly adjudged to constitute a

nuisance.  The controlling words are All persons guilty of such nuisance

may be enjoined, as hereinafter [283 U.S. 736] provided. . . .  Whenever

any such nuisance is committed . . . , an action in the name of the

State may be brought to perpetually enjoin the person or persons

committing, conducting or maintaining any such nuisance, from further

committing, conducting or maintaining any such nuisance. . . .  The

court may make its order and judgment permanently enjoining . . .

defendants found guilty . . . from committing or continuing the acts

prohibited hereby, and in and by such judgment, such nuisance may be

wholly abated. . . . There is nothing in the statute purporting to

prohibit publications that have not been adjudged to constitute a

nuisance.  It is fanciful to suggest similarity between the granting or

enforcement of the decree authorized by this statute to prevent further

publication of malicious, scandalous and defamatory articles and the

previous restraint upon the press by licensers as referred to by

Blackstone and described in the history of the times to which he

alludes. [283 U.S. 737]



The opinion seems to concede that, under clause (a) of the Minnesota

law, the business of regularly publishing and circulating an obscene

periodical may be enjoined as a nuisance.  It is difficult to perceive

any distinction, having any relation to constitutionality, between

clause (a) and clause (b) under which this action was brought.  Both

nuisances are offensive to morals, order and good government.  As that

resulting from lewd publications constitutionally may be enjoined, it is

hard to understand why the one resulting from a regular business of

malicious defamation may not.



It is well known, as found by the state supreme court, that existing

libel laws are inadequate effectively to suppress evils resulting from

the kind of business and publications that are shown in this case.  The

doctrine that measures such as the one before us are invalid because

they operate as previous 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 [283 U.S. 738] 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.  The judgment

should be affirmed.



MR. JUSTICE VAN DEVANTER, MR. JUSTICE McREYNOLDS, and MR. JUSTICE

SUTHERLAND concur in this opinion. Footnotes HUGHES, J., lead opinion

(Footnotes)



1. Mason's Minnesota Statutes, 1927, 10123-1 to 10123-3.



2. Mason's Minn.Stats. 10112, 10113; State v. Shipman, 83 Minn. 441,

445, 86 N.W. 431; State v. Minor, 163 Minn. 109, 110, 203 N.W. 596.



3. It may also be observed that, in a prosecution for libel, the

applicable Minnesota statute (Mason's Minn.Stats., 1927,  10112, 10113)

provides that the publication is justified "whenever the matter charged

as libelous is true and was published with good motives and for

justifiable ends," and also is excused when honestly made, in belief of

its truth, and upon reasonable grounds for such belief, and consists of

fair comments upon the conduct of a person in respect to public affairs.

The clause last mentioned is not found in the statute in question.



4. May, Constitutional History of England, vol. 2, chap. IX, p. 4;

DeLolme, Commentaries on the Constitution of England, chap. IX, pp. 318,

319.



5. See Hugonson's Case, 2 Atk. 469; Respublica v. Oswald, 1 Dallas 319;

Cooper v. People, 13 Colo. 337, 373, 22 Pac. 790; Nebraska v. Rosewater,

60 Nebr. 438, 83 N.W. 353; State v. Tugwell, 19 Wash. 238, 52 Pac. 1056;

People v. Wilson, 64 Ill. 195; Storey v. People, 79 Ill. 45; State v.

Circuit Court, 97 Wis. 1, 72 N.W.193.



6. Chafee, Freedom of Speech, p. 10.



7. See 29 Harvard Law Review, 640.



8. See Duniway "The Development of Freedom of the Press in

Massachusetts," p. 123; Bancroft's History of the United States, vol. 2,

261.



9. Journal of the Continental Congress, 1904 ed., vol. I, pp. 104, 108.



10. Report on the Virginia Resolutions, Madison's Works, vol. iv, 544.



11. Dailey v. Superior Court, 112 Cal. 94, 98, 44 Pac. 458; Jones,

Varnum & Co. v. Townsend's Admx., 21 Fla. 431, 450; State ex rel.

Liversey v. Judge, 34 La. 741, 743; Commonwealth v. Blanding, 3 Pick,

304, 313; Lindsay v. Montana Federation of Labor, 37 Mont. 264, 275,

277, 96 Pac. 127; Howell v. Bee Publishing Co., 100 Neb. 39, 42, 158

N.W. 358; New Yorker Staats-Zeitung v. Nolan, 89 N.J.Eq. 387, 105 Atl.

72; Brandreth v. Lane, 8 Paige 24; New York Juvenile Guardian Society v.

Roosevelt, 7 Daly 188; Ulster Square Dealer v. Fowler, 111 N.Y.Supp. 16;

Star Co. v. Brush, 170 id. 987, 172 id. 320, 172 id. 851; Dopp v. Doll,

9 Ohio Dec.Rep. 428; Respublica v. Oswald, 1 Dall. 319, 325; Respublica

v. Dennie, 4 Yeates 267, 269; Ex parte Neill, 32 Tex.Cr. 275, 22 S.W.

923; Mitchell v. Grand Lodge, 56 Tex.Civ.App. 306, 309, 121 S.W. 178;

Sweeney v. Baker, 13 W.Va. 158, 182; Citizens Light, Heat & Power Co. v.

Montgomery Light & Water Co., 171 Fed. 553, 556; Willis v. O'Connell,

231 Fed. 1004, 1010; Dearborn Publishing Co. v. Fitzgerald, 271 Fed.

479, 485.



12. Madison, op. cit. p. 549. BUTLER, J., dissenting (Footnotes)



1. The following articles appear in the last edition published, dated

November 19, 1927: FACTS NOT THEORIES



"I am a bosom friend of Mr. Olson," snorted a gentleman of Yiddish

blood, "and I want to protest against your article," and blah, blah,

blah, ad infinitum, ad nauseam.



I am not taking orders from men of Barnett's faith, at least right now. 

There have been too many men in this city and especially those in

official life, who HAVE been taking orders and suggestions from JEW

GANGSTERS, therefore we HAVE Jew Gangsters, practically ruling

Minneapolis.



It was buzzards of the Barnett stripe who shot down my buddy.  It was

Barnett gunmen who staged the assault on Samuel Shapiro.  It is Jew

thugs who have "pulled" practically every robbery in this city.  It was

a member of the Barnett gang who shot down George Rubenstein (Ruby)

while he stood in the shelter of Mose Barnett's ham-cavern on Hennepin

avenue.  It was Mose Barnett himself who shot down Roy Rogers on

Hennepin avenue.  It was at Mose Barnett's place of "business" that the

"13 dollar Jew" found a refuge while the police of New York were combing

the country for him.  It was a gang of Jew gunmen who boasted that, for

five hundred dollars, they would kill any man in the city.  It was Mose

Barnett, a Jew, who boasted that he held the chief of police of

Minneapolis in his hand -- had bought and paid for him.



It is Jewish men and women -- pliant tools of the Jew gangster, Mose

Barnett, who stand charged with having falsified the election records

and returns in the Third ward.  And it is Mose Barnett himself, who,

indicted for his part in the Shapiro assault, is a fugitive from justice

today.



Practically every vendor of vile hooch, every owner of a moonshine

still, every snake-faced gangster and embryonic yegg in the Twin Cities

is a JEW.



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.



I find in the mail at least twice per week letters from gentlemen of

Jewish faith who advise me against "launching an attack on the Jewish

people."  These gentlemen have the cart before the horse.  I am

launching, nor is Mr. Guilford, no attack against any race, BUT:



When I find men of a certain race banding themselves together for the

purpose of preying upon Gentile or Jew; gunmen, KILLERS, roaming our

streets shooting down men against whom they have no personal grudge (or

happen to have); defying OUR laws; corrupting OUR officials; assaulting

businessmen; beating up unarmed citizens; spreading a reign of terror

through every walk of life, then I say to you in all sincerity that I

refuse to back up a single step from that "issue" -- if they choose to

make it so.



If the people of Jewish faith in Minneapolis wish to avoid criticism of

these vermin whom I rightfully call "Jews," they can easily do so BY

THEMSELVES CLEANING HOUSE.



I'm not out to cleanse Israel of the filth that clings to Israel's

skirts. I'm out to "hew to the line, let the chips fly where they may."



I simply state a fact when I say that ninety percent of the crimes

committed against society in this city are committed by Jew gangsters.



It was a Jew who employed JEWS to shoot down Mr. Guilford.  It was a Jew

who employed a Jew to intimidate Mr. Shapiro and a Jew who employed JEWS

to assault that gentleman when he refused to yield to their threats.  It

was a JEW who wheedled or employed Jews to manipulate the election

records and returns in the Third ward in flagrant violation of law.  It

was a Jew who left two hundred dollars with another Jew to pay to our

chief of police just before the last municipal election, and:



It is Jew, Jew, Jew, as long as one cares to comb over the records.



I am launching no attack against the Jewish people As A RACE.  I am

merely calling attention to a FACT.  And if the people of that race and

faith wish to rid themselves of the odium and stigma THE RODENTS OF

THEIR OWN RACE HAVE BROUGT UPON THEM, they need only to step to the

front and help the decent citizens of Minneapolis rid the city of these

criminal Jews.



Either Mr. Guilford or myself stands ready to do battle for a MAN,

regardless of his race, color or creed, but neither of us will step one

inch out of our chosen path to avoid a fight IF the Jews ant to battle.



Both of us 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. GIIL's [Guilford's] CHATTERBOX



I headed into the city on September 26th, ran across three Jews in a

Chevrolet; stopped a lot of lead, and won a bed for myself in St.

Barnabas Hospital for six weeks. . . .



Whereupon I have withdrawn all allegiance to anything with a hook nose

that eats herring.  I have adopted the sparrow as my national bird until

Davis' law enforcement league or the K.K.K. hammers the eagle's beak out

straight.  So if I seem to act crazy as I ankle down the street, bear in

mind that I am merely saluting MY national emblem.



All of which has nothing to do with the present whereabouts of Big Mose

Barnett.  Methinks he headed the local delegation to the new "Palestine

for Jews only."  He went ahead of the boys so he could do a little

fixing with the Yiddish chief of police and get his twenty-five percent

of the gambling rake-off.  Boys will be boys, and "ganefs" will be

ganefs. GRAND JURIES AND DITTO



There are grand juries, and there are grand juries.  The last one was a

real grand jury.  It acted.  The present one is like the scion who is

labelled "Junior."  That means not so good.  There are a few mighty good

folks on it -- there are some who smell bad.  One petty peanut

politician whose graft was almost pitiful in its size when he was a

public official has already shot his mouth off in several places.  He is

establishing his alibi in advance for what he intends to keep from

taking place.



But George, we won't bother you.  [Meaning a grand juror.]  We are aware

that the gambling syndicate was waiting for your body to convene before

the big crap game opened again.  The Yids had your dimensions,

apparently, and we always go by the judgment of a dog in appraising

people.



We will call for a special grand jury and a special prosecutor within a

short time, as soon as half of the staff can navigate to advantage, and

then we'll show you what a real grand jury can do.  Up to the present,

we have been merely tapping on the window.  Very soon, we shall start

smashing glass.



2. May, Constitutional History of England, c. IX. Duniway, Free dom of

the Press in Massachusetts, cc. I and II.  Cooley, Constitutional

Limitations (8th ed.) Vol. II, pp. 880-881.  Pound, Equitable Relief

against Defamation, 29 Harv.L.Rev. 640, 650 et seq.  Madison, Letters

and Other Writings (1865 ed.) Vol. IV, pp. 542, 543.  Respublica v.

Oswald, 1 Dall. 319, 325.  Rawle, A View of the Constitution (2d ed.

1829) p. 124.  Paterson, Liberty of the Press, c. III.



3.



1. 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



(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. *    *    *    *



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

[resort] to issues or editions of periodicals taking place more than

three months before the commencement of the action.



2.  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. . . .



3.  The action may be brought to trial and tried as in the case of other

actions in such District Court, and shall be governed by the practice

and procedure applicable to civil actions for injunctions.



After trial, the court may make its order and judgment permanently

enjoining any and all defendants found guilty of violating this Act from

further committing or continuing the acts prohibited hereby, and in and

by such judgment, such nuisance may be wholly abated.



The court may, as in other cases of contempt, at any time punish, by

fine of not more than $1,000, or by imprisonment in the county jail for

not more than twelve months, any person or persons violating any

injunction, temporary or permanent, made or issued pursuant to this Act.

