U.S. Supreme Court NEAR v. STATE OF MINNESOTA EX REL. OLSON, 283 U.S. 697 (1931)
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U. S. 219, 244, 31 S. Ct. 145; United States v. Reynolds, 235 U.S. 133, 148, 149 S., 35 S. Ct. 86; St. Louis Southwestern Railway Company v. Arkansas, 235 U.S. 350, 362, 35 S. Ct. 99; Mountain Timber Company v. Washington, 243 U.S. 219, 237, 37 S. Ct. 260, Ann. Cas. 1917D, 642. 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 these 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 (174 Minn. 457, 219 N. W. 770, 772, 58 A. L. R. 607), '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 'the 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
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for justificable 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 reprodation 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 motive 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 scandalou and defamatory statements with regard to private citizens, but at the continued publication by newspapers and periodical 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]
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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 consorship.
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 renuciation 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
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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 errort that their utterance will not be endured so long as men fignt and that no Court could regard them as protected by any constitutional right.' Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 249. 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 frce. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 139, 31 S. Ct. 492, 34 L. R. A. (N. S.) 874.' 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]
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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]
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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 tendeny an d effect; which, again, is equivalent to a protection of those who administer the Government, if they should at any time deserve the contempt or hatrad 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 restrain upon publication. As was said in New Yorker Staats-Zeitung v. Nolan, 89 N. J. Eq. 387, 388, 105 A. 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 it 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.
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swered in the affirmative. Cf. Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 10 Ann. Cas. 689; Prudential Ins. Co. v. Cheek, 259 U.S. 530, 538, 543 S., 42 S. Ct. 516, 27 A. L. R. 27. See Gitlow v. New York, , 45 S. Ct. 625; Fiske v. Kansas, 274 U.S. 380, 47 S. Ct. 655; Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532
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 1]
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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
Footnote 1 Mason's Minnesota Statutes, 1927, 10123-1 to 10123-3.
Footnote 2 Mason's Minn. Stats. 1927, 10112, 10113; State v. Shippman, 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 justificable 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 of public affairs.' The clause last mentioned is not found in the statute in question.
Footnote 4 May, Constitutional History of England, vol. 2, c. IX, p. 4; De Lolme, Commentaries on the Constitution of England, c. IX, pp. 318, 319.
Footnote 5 See Huggonson's Case, 2 Atk. 469; Respublica v. Oswald, 1 Dall. 319; Cooper v. People, 13 Colo. 337, 373, 22 P. 790, 6 L. R. A. 430; Nebraska v. Rosewater, 60 Neb. 438, 80 N. W. 353; State v. Tugwell, 19 Wash. 238, 52 P. 1056, 43 L. R. A. 717; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; Storey v. People, 79 Ill. 45, 22 Am. Rep. 158; State v. Circuit Court, 97 Wis. 1, 72 N. W. 193, 38 L. R. A. 554, 65 Am. St. Rep. 90.
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 P. 458, 32 L. R. A. 273, 53 Am. St. Rep. 160; Jones, Varnum & Co. v. Towsend's Adm'x, 21 Fla. 431, 450, 58 Am. Rep. 676; State ex rel. Liversey v. Judge, 34 La. Ann. 741, 743; Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 313, 15 Am. Dec. 214; Lindsay v. Montana Federation of Labor, 37 Mont. 264, 275, 277, 96 P. 127, 18 L. R. A. (N. S.) 707. 127 Am. St. Rep. 722; Howell v. Bee Publishing Co., 100 Neb. 39, 42, 158 N. W. 358, L. R. A. 1917A, 160, Ann. Cas. 1917D, 655; New Yorker Staats-Zeitung v. Nolan, 89 N. J. Eq. 384, 105 A. 72; Brandreth v. Lance, 8 Paige (N. Y.) 24, 34 Am. Dec. 368; New York Juvenile Guardian Society v. Roosevelt, 7 Daly (N. Y.) 188; Ulster Square Dealer v. Fowler, 58 Misc. Rep. 325, 111 N. Y. S. 16; Star Co. v. Brush, 103 Misc. Rep. 631, 170 N. Y. S. 987; Id., 104 Misc. Rep. 404, 172 N. Y. S. 320; Id., 185 App. Div. 261, 172 N. Y. S. 851; Dopp v. Doll, 9 Ohio Dec. 428; Respublica v. Oswald, 1 Dall. 319, 325; Respublica V. Dennie, 4 Yeates (Pa.) 267, 269, 2 Am. Dec. 402; Ex parte Neill, 32 Tex. Cr. R. 275, 22 S. W. 923, 40 Am. St. Rep. 776; Mitchell v. Grand Lodge, 56 Tex Civ. App. 306, 309, 121 S. W. 178; Sweeney v. Baker, 13 W. Va. 158, 182, 31 Am. Rep. 757; Citizens Light, Heat & Power Co. v. Montgomery Light & Water Co. (C. C.) 171 F. 553, 556; Willis v. O'Connell (D. C.) 231 F. 1004, 1010; Dearborn Publishing Co. v. Fitzgerald (D. C.) 271 F. 479, 485.
Footnote 12 Madison, op. cit. p. 549.
[Footnote 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 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 Gangters, 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 Minnoapolis 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 exbryonic 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 house. 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 business men; 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 calls '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 per cent 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, 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 with to rid themselvs of the odium and stigma THE RODENTS OF THEIR OWN RACE HAVE BROUGHT 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 stand 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 want to battle.'Both of use 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.''GIL'S (Guilford's) CHATTERBOX.'I headed into the city on September 26th, ran across three Jews in a Chrevolet; 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 east herring. I have adopted the sparrow as my national bird unit 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 per cent of the gambling take-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 polician 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 has 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] May, Constitutional History of England, c. 1X. Duniway, Freedom 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; Rawle, A iew of the Constitution (2d Ed. 1829) p. 124; Paterson, Liberty of the Press, c. III.
[Footnote 3] 1. Any person who, as an individual, or as a member or employee of a firm, or association or organization, ganization, 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. Laws Minn. 1925, c. 285.