Near at 85: A look back at the landmark decision

Prior restraint ruling continues to resonate
Feature
Page Number: 
10
Kevin Delaney

AP Photo

Chief Justice Charles Evans Hughes in 1933

This year marks the 85th anniversary of Near v. Minnesota, the milestone U.S. Supreme Court decision that created the presumption that prior restraints — government restriction of speech prior to publication — are unconstitutional.

Although a lifetime has passed between 1931 when the Court issued its opinion and 2016, Near’s holding continues to resonate.

On Near’s 85th birthday, we look back at the case that, if not for a change in the composition of the court, could have been decided differently and assess its continued impact on journalism.

Challenging the Public Nuisance Law

A 1925 Minnesota law gave courts within the state the power to enjoin as a public nuisance — that is, stop the publication of — any “malicious, scandalous and defamatory newspaper, magazine or other periodical.” The Public Nuisance Law, as it was called, gave those charged under it the defense of showing that they published the truth with good motives and for justifiable ends.

Jay Near challenged the constitutionality of the Public Nuisance Law in the U.S. Supreme Court after a Minnesota trial court used the law to stop the publication of his paper, The Saturday Press.

According to the dissenting opinion in Near, The Saturday Press regularly published “malicious, scandalous and defamatory articles concerning the principal public officers, leading newspapers of the city, many private persons and the Jewish race.” It added, “Many of the statements [contained within the paper] are so highly improbable as to compel a finding that they are false.”

“Near’s journalism was garbage. It was a terrible, terrible paper,” Eric B. Easton, a First Amendment professor at the University of Baltimore School of Law said. “I certainly wouldn’t want to be associated with his [Near’s] editorial content.”

Notwithstanding The Saturday Press’s flaws, the Court, in a 5-4 decision, deemed the Public Nuisance Law unconstitutional. Citing the famed English jurist William Blackstone, Chief Justice Charles Evans Hughes wrote that press freedoms were granted primarily to ensure that prior restraints could not be imposed. According to Hughes, a public officer who believes the press has falsely assailed his character should bring a libel action.

AP Photo/Jim Wells

The precedent set in Near v. Minnesota led the U.S. Supreme Court to allow The New York Times to resume printing The Pentagon Papers in 1971.

Especially important to Hughes was ensuring the press remained free to criticize government officials. Hughes worried that government officials may use the Public Nuisance Law as a way to prevent criticism by bringing a publisher before a judge on a charge that he regularly published scandalous and defamatory matter. Once there, the publisher, to defend himself, would be forced to show that he published not only the truth but also that he did so with good motives and for justifiable ends. This, according to Hughes, is “the essence of censorship.”

Although creating a presumption against prior restraints, the Court did not rule out the possibility that the government may impose one in limited circumstances, such as when someone is preparing to publish “the number and location of troops.”

A change in the lineup might have made a change in the law

Easton said the Court might have reached a different outcome had a change in who sat on the Court not occurred less than a year before the oral arguments.

On the same day in March of 1930, Chief Justice William Howard Taft and Associate Justice Edward T. Sanford died roughly five hours apart. Although Sanford was on the Court at the time of his death, Taft had resigned five weeks earlier.

According to an academic journal article by Easton, Taft, Sanford, and the four justices who dissented in Near made up a firm conservative voting bloc. Had Taft and Sanford not been replaced by successors who voted in Near’s favor — Charles Evans Hughes and Owen J. Roberts — Easton questions whether the decision would have gone the other way.

“Nobody can predict what would have happened,” Easton said in a phone interview, “and I would never say unequivocally that but for that sequence of personnel changes on the Court that the case would have come out the other way. But I think [it would have been] a very, very close call, and I don’t think anybody would have been surprised if [Near] had lost.”

The dissent advocated a definition of the First Amendment under which freedom of the press is limited to meaning that “every man shall be at liberty to publish what is true, with good motives and for justifiable ends.”

Ruling resonates

The late First Amendment scholar and Pulitzer Prize-winning journalist Anthony Lewis described Near as “a turning point for freedom of the press” and a “bulwark of American press freedom.”

After Near, court-imposed prior restraint orders are rarely upheld in the United States. This is different from Britain, where, Lewis wrote, “courts routinely do such things as prohibit the publication of a book when someone asserts that he will be libeled in it.”

But Near’s impact extends beyond limiting when a prior restraint can be imposed.

After Near, Easton said, “The Court seemed to take First Amendment claims much more seriously,” which began “a real change in the strength of the press freedom argument.”

Easton cannot say whether Near itself is responsible for that change. He speculated that the Court’s favorable approach to First Amendment cases after Near resulted from the shift in the Court’s composition as well as the Court’s adoption of the view, in the 1925 case Gitlow v. New York, that the First Amendment applied to the states in addition to the federal government.

But he noted that after Near, a power to win free speech cases existed that was not present before.

Near’s positive impact can be seen in New York Times Co. v. United States, a case in which the U.S. Supreme Court addressed whether the government could restrain The New York Times and The Washington Post from publishing the contents of a classified study on the history of the Vietnam War. In a decision that resulted in nine separate concurring and dissenting opinions, many of which mentioned Near, the Court decided that the government had not overcome the “heavy presumption” against prior restraints.

Clay Calvert, a media law professor in the College of Journalism and Communications at the University of Florida, added that Near remains important because of the Court’s decision to protect speech at the outer limits of the First Amendment. Calvert said the decision “suggests that the First Amendment doesn’t just protect [papers like] The Washington Post, The New York Times, [and] USA Today.... It also protects the National Enquirer, and the tabloid press that we have today.”

He added: “The Court could have said that Jay Near had a trashy publication and we are going to somehow create and draw a line. .... But the Court ... said that some degree of abuse is inseparable in anything and in no case is this more profound than in the First Amendment.”

According to Easton, Near also marked the first time the press came together as an interest group to advocate on behalf of freedom of expression. “In terms of editorial freedom, the press for decades prior to Near had been too partisan to come together,” he said. “During the World War I period that preceded Near, you had mainstream press arguing that there is no problem if the socialist press got shut down. They didn’t see their community of interests in that area.”

Due in large part to the efforts of Robert Rutherford McCormick, the editor and publisher of the Chicago Tribune, things changed with Near. McCormick, an ardent supporter of press freedom, feared a scenario in which other states would enact laws similar to Minnesota’s, greatly reducing the power of the press. In addition to providing Near with a legal team to take his case to the U.S. Supreme Court, McCormick successfully lobbied groups like the American Newspaper Publishers Association and the American Society of Newspaper Editors to mount a united front against the Public Nuisance Law.

“[After Near] you had a new sense of community in the press that saw itself as the protector of First Amendment rights,” Easton said. He stated that this sense of community has culminated in the creation of various press-freedom interest groups, such as the Reporters Committee, and helped shaped First Amendment doctrine.