U.S. Supreme Court Near v. Minnesota, 283
U.S. 697 (1931) 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. 283 U. S. 704 , 283 U.S. 709 , 283 U. S. 712 , 283 U. S.
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. P. 283 U. S.
707 .

															3. Liberty of the press is not an absolute right, and the State
may punish its abuse. P. 283 U. S.
708 .

															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. P. 283 U. S.
708 . Page 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. P. 283 U. S.
713 .

															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. P. 283 U. S.
713 .

															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. P. 283 U. S.
713 .

															8. There are undoubtedly limitations upon the immunity from
previous restraint of the press, but they are not applicable in
this case. P. 283 U. S.
715 .

															9. The liberty of the press has been especially cherished in
this country as respects publications censuring public officials
and charging official misconduct. P. 283 U. S.
716 .

															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. P. 283 U. S.
718 .

															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. P. 283 U. S.
720 .

															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. P. 283 U. S.
720 .

															13. The guaranty against previous restraint extends to
publications charging official derelictions that amount to crimes.
P. 283 U. S.
720 .

															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. P. 283 U. S.
721 .

															15. Nor can it be sustained as a measure for preserving the
public peace and preventing assaults and crime. Pp. 283 U. S. 721 , 283 U. S.
722 .

															179 Minn. 40; 228 N.W. 326, reversed. Page 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. Page 283 U. S. 701 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

															Chapter 285 of the Session Laws of Minnesota for the year 1925
[ Footnote 1 ] provides for the abatement, as a
public nuisance, of a "malicious, scandalous and defamatory
newspaper, Page 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 Page 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 Page 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 Page 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. Page 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 Page 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 , 268 U. S. 666 ; Whitney v. California, 274 U. S. 357 , 274 U. S. 362 , 274 U. S. 373 ; Fiske v. Kansas, 274 U. S. 380 , 274 U. S. 382 ; Stromberg v. California, ante, p. 283 U. S. 359 . 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 , 116 U. S. 331 ; Northern Pacific Ry. Co. v. North Dakota, 236 U.
S. 585 , 236 U. S. 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 , 157 U. S.
165 ), this Court has held that the power of the State
stops short of interference with what are deemed Page 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 , 261 U. S. 560 , 261 U. S. 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 , 92 U. S. 268 ; Bailey v.
Alabama , 219 Page 283 U. S. 709 U.S. 219, 219 U. S. 244 ; United States v. Reynolds, 235 U.
S. 133 , 235 U. S. 148 , 235 U. S. 149 ; St. Louis Southwestern R. Co. v. Arkansas, 235 U.
S. 350 , 235 U. S. 362 ; Mountain Timber Co. v. Washington, 243 U.
S. 219 , 243 U. S. 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. [ Footnote 2 ] 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 Page 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 public 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. [ Footnote 3 ] Page 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 Page 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 Page 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. [ Footnote 4 ] 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 Page 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 , 205 U. S.
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, 1 U.S. 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 Page 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 , 247 U. S. 419 .
[ Footnote 5 ] 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 Page 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 , 249 U. S. 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.
[ Footnote 6 ] 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 , 221 U. S.
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. [ Footnote
7 ]

															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 Page 283 U. S. 717 period and with the efforts to secure freedom from oppressive
administration. [ Footnote 8 ] 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: [ Footnote 9 ]

															"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: [ Footnote
10 ] Page 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 Page 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. [ Footnote 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 Page 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 Page 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 Page 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. [ Footnote 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) Page 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. [ Footnote 1 ]

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

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 4 ]

															May, Constitutional History of England, vol. 2, chap. IX, p. 4;
DeLolme, Commentaries on the Constitution of England, chap. IX, pp.
318, 319.

															[ Footnote 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.

															[ Footnote 6 ]

															Chafee, Freedom of Speech, p. 10.

															[ Footnote 7 ] See 29 Harvard Law Review, 640.

															[ Footnote 8 ] See Duniway "The Development of Freedom of the Press in
Massachusetts," p. 123; Bancroft's History of the United States,
vol. 2, 261.

															[ Footnote 9 ]

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

															[ Footnote 10 ]

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

															[ Footnote 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, 1 U.S. 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.

															[ Footnote 12 ]

															Madison, op. cit. p. 549.

															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, 32 U. S. 250 . Fox v. Ohio , 5
How. 410, 46 U. S. 434 . Smith v.
Maryland , 18 How. 71, 59
U. S. 76 . Withers v.
Buckley , 20 How. 84, 61 U. S. 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 Page 283 U. S. 724 in the affirmative. Cf. Patterson v. Colorado, 205 U. S. 454 , 205 U. S. 462 . Prudential Ins. Co. v. Cheek, 259 U.
S. 530 , 259 U. S. 538 , 259 U. S. 543 . See Gitlow v. New York, 268 U. S. 652 . Fiske v. Kansas, 274 U. S. 380 . Stromberg v. California, ante, p. 283 U. S. 359 .

															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.
[ Footnote 2/1 ] Page 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 Page 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. Page 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 , 168 U. S. 680 . Williams v. Mississippi, 170 U. S. 213 , 170 U. S. 225 . Yazoo & Miss. R. Co. v. Jackson Vinegar Co., 226 U. S. 217 , 226 U. S.
219 -220. Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 , 232 U. S.
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" Page 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 Page 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. " Page 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. Page 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 , 220 U. S. 79 . Gitlow v. New York, supra, 268 U. S.
668 -669. Corporation Commission v. Lowe, 281 U. S. 431 , 281 U. S. 438 . O'Gorman & Young v. Hartford Ins. Co., 282 U.
S. 251 , 282 U. S.
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, Page 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; Page 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 Page 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. [ Footnote
2/2 ]"

															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 Page 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 Page 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 [ Footnote
2/3 ] 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. Page 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 Page 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.

															[ Footnote 2/1 ]

															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."

															[ Footnote 2/2 ]

															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, 1 U.S. 325 . Rawle, A View of the
Constitution (2d ed. 1829) p. 124. Paterson, Liberty of the Press,
c. III.

															[ Footnote 2/3 ]

															"§ 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."