Near v. Minnesota Ex Rel. Olson
The Supreme Court struck down a Minnesota law that let judges permanently shut down newspapers found to publish "malicious, scandalous and defamatory" material, ruling that the law amounted to an unconstitutional system of censorship.
The decision established for the first time that the First Amendment's protection against government censorship of the press applies not just to the federal government but to the states as well, making prior restraint on publication almost always unconstitutional even when the material published is offensive or true but damaging.
“This is of the essence of censorship.”
The Court's central conclusion that Minnesota's nuisance law operated as a censorship scheme.
How it got here: Minnesota trial and appellate courts upheld the nuisance law and permanently enjoined the paper's publication; Near appealed to the U.S. Supreme Court on federal constitutional grounds.
The Case in Depth
What happened
Jay Near and Howard Guilford published "The Saturday Press" in Minneapolis, which ran articles accusing the mayor, police chief, county attorney, a grand juror, and others of corruption, gangster ties, and neglecting organized crime, and also disparaged the Jewish community. Under a 1925 Minnesota law, the county attorney sued to have the paper declared a public nuisance and permanently shut down.
The question before the Court
Could Minnesota shut down a newspaper permanently as a "public nuisance" because it printed scandalous accusations against public officials?
The Court's answer
No — the Court ruled that Minnesota could not use its "public nuisance" law to permanently shut down a newspaper for printing scandalous accusations against public officials, even accusations that were harsh, offensive, or unproven. The Court held that the law functioned as a system of prior censorship, because it let a judge silence a publisher in advance and forced him to prove the truth and good motives of anything he might print in the future or face jail for contempt.
The Court explained that the core historical purpose of a free press has always been freedom from this kind of advance restraint, leaving publishers answerable only afterward, through ordinary libel suits, for what they actually publish. Because the newspaper's central offense was criticizing corrupt officials — exactly the kind of speech the free press exists to protect — Minnesota's law crossed a constitutional line the states cannot cross.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Newspapers and publishers gained lasting protection from being shut down in advance for printing unflattering or scandalous material about public officials, even material that turns out to be defamatory. Instead, officials and private citizens harmed by false publications are limited to suing for libel after the fact, rather than asking a court to silence a publication before it happens.
What changes now
The judgment against Near was reversed, meaning the injunction shutting down The Saturday Press could not stand, and Near was free to resume publishing subject only to ordinary libel liability after the fact. The ruling permanently barred Minnesota and other states from using similar nuisance-abatement statutes to shut down newspapers in advance, establishing prior restraint doctrine that would shape future press-freedom cases for decades.
What this does not decide
The Court did not decide that the press is immune from all restraint — it left open that a government could act in advance in narrow situations like obstructing wartime troop movements, publishing obscenity, or inciting violence. It also did not decide that Near was immune from being sued afterward for libel over the same articles.
Concurrences and dissents
Dissent — Justice Butler
“The judgment should be affirmed.”Butler's closing statement that he would have upheld Minnesota's power to shut down the newspaper.
Justice Butler argued the majority gave 'liberty of the press' an unprecedented new scope never before applied against the states, and that Near's own record showed his business was truly devoted to malicious and defamatory content, which the record required the Court to accept as fact. Butler argued the Minnesota law was not a true 'previous restraint' like the licensing systems Blackstone described, because it only restrained further publication after a business had already been proven in court to be a nuisance, and that states should remain free to combat abuses of the press through such equitable remedies.
How the Court got there
The legal reasoning, step by step
- The Court first established that the liberty of the press is part of the 'liberty' protected from state interference by the Fourteenth Amendment's due process clause, extending First Amendment press protections to actions by state governments, not just the federal government.
- The Court then asked what the historic core of 'liberty of the press' has always meant, concluding that its central purpose — going back to English resistance to licensing and to the framers' own writings — was to prevent previous restraints on publication, meaning government action stopping speech before it happens, as opposed to punishing it afterward.
- Applying that history, the Court examined how the Minnesota statute actually operated: it let a judge, without a jury, permanently silence a newspaper based on its past content and effectively required the publisher to prove the truth and good motives of future publications in advance or face a contempt charge for printing more.
- The Court held that this operation made the law function as a system of censorship, because a publisher who wanted to keep publishing on official misconduct would have to satisfy a judge in advance rather than simply publish and risk being sued for libel afterward.
- Recognizing that previous restraint is not absolutely forbidden in every circumstance (for example, wartime military secrets, obscenity, or incitement to violence), the Court found none of those narrow exceptions applied here, since the case involved ordinary charges of official corruption.
- The Court concluded that allowing prior restraint of a newspaper because it exposes or criticizes public officials would gut the historic protection of the press, regardless of whether the paper's charges were true, malicious, or offensive.
Doctrinal impact
Cases affected by this decision
Reaffirms Gitlow v. New York (268 U.S. 652)
Relied on to confirm that free speech liberty is protected against state action through the Fourteenth Amendment.