Document ID: A:\NEAR.TXT NEAR v. MINNESOTA EX REL. OLSON, COUNTY ATTORNEY No. 91 SUPREME COURT OF THE UNITED STATES 283 U.S. 697; 51 S. Ct. 625; 1931 U.S. LEXIS 175; 75 L. Ed. 1357; 1 Media L. Rep. 1001 January 30, 1931, Argued June 1, 1931, Decided PRIOR HISTORY: [***1] APPEAL FROM THE SUPREME COURT OF MINNESOTA. APPEAL from a decree which sustained an injunction abating the publication of a periodi W. 770. DISPOSITION: 179 Minn. 40; 228 N. W. 326, reversed. SYLLABUS: 1. A Minnesota statute declares that one who engages "in the business of regular rizes suits, in the name of the State, in which such periodicals may be abated and their p hat his publications were true and published "with good motives and for justifiable ends." of law-enforcing officers of the State. Pp. 704, 709, 712, 722. 2. Liberty of the press is within the liberty safeguarded by the due [***2] process c 3. Liberty of the press is not an absolute right, and the State may punish its abuse. 4. In passing upon the constitutionality of the statute, the court has regard for subst 5. Cutting through mere details of procedure, the operation and effect of the statute i , that the matter consists of charges against public officials of official dereliction -- aper or periodical is suppressed and further publication is made punishable as a contempt. 6. A statute authorizing such proceedings in restraint of publication is inconsistent w 7. [***3] The chief purpose of the guaranty is to prevent previous restraints upon 8. There are undoubtedly limitations upon the immunity from previous restraint of the p 9. The liberty of the press has been especially cherished in this country as respects p 10. Public officers find their remedies for false accusations in actions for redress an 11. The fact that the liberty of the press may be abused by miscreant purveyors of scan 12. Characterizing the publication of charges of official misconduct as a "business," a 720. 13. The guaranty [***4] against previous restraint extends to publications charging 14. Permitting the publisher to show in defense that the matter published is true and i 15. Nor can it be sustained as a measure for preserving the public peace and preventing COUNSEL: Mr. Weymouth Kirkland, with whom Messrs. Thomas E. Latimer, Howard Ellis, and Edw Messrs. James E. Markham, Assistant Attorney General of Minnesota, and Arthur L. Markve Attorney, and William C. Larson, Assistant County Attorney, were on the brief, for appelle Appellant's argument is based upon an entirely erroneous construction of Chapter 285, L uch newspaper may be entirely innocent. The law does not permit of such a construction no Conceding arguendo that the "liberty" protected by the Fourteenth Amendment includes th e the unrestricted right to publish everything. The guaranty is not absolute. Gitlow v. on, 236 U.S. 273; Schenck v. United States, 249 U.S. 47; Frohwerk v. United States, 249 U. o Publishing Co. v. United States, 211 Fed. 385. The courts have power to restrain by injunction the publication of defamatory matter. The Minnesota statute merely prohibits engaging in the business of regularly or customa om engaging in a lawful calling. It is not directed against the incidental publication, d If it could be construed as prohibiting appellant from ever engaging in the publication ington, 236 U.S. 273, 277. If the language of the injunction is not justified by the statute, appellant cannot tak his assignments of error in the state court or in this Court raise that point. Milwaukee The power of a state legislature to forbid an innocent calling upon the ground that cer under the due process clause as respects the taking of property. Murphy v. California, 22 The Act is a legitimate exercise of the police power. Jacobson v. Massachusetts, 197 U v. Weiner, 271 Ill. 74; People v. Robertson, 302 Ill. 442; State v. Morse, 84 Vt. 387; St Newspapers that are largely given to scandalous matter have in some States been declare e Rapier, 143 U.S. 110, 134. See also, State v. Pioneer Press Co., 100 Minn. 173; State v. The evil which the Act seeks to suppress is a nuisance in fact. 3 Blackstone's Comm., 595; Wood on Nuisances, 3d ed., Vol. 1, p. 92, @ 70; 20 R. C. L. 428; Davis v. Sawyer, 133 . St. 243; Mohr v. Gault, 10 Wis. 513; Gifford v. Hulett, 62 Vt. 342; State v. Diamant, 73 oth v. Illinois, 184 U.S. 425, 431; Bonnard v. Perryman (1891), LXV [***9] Law Times ( JUDGES: Hughes, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Rob OPINIONBY: HUGHES OPINION: [*701] [**626] MR. CHIEF JUSTICE HUGHES delivered the opinion of the Cou Chapter 285 of the Session Laws of Minnesota for the year 1925 n1 provides for the abat "Section 1. Any person who, as an individual, or as a member or employee of a firm, or publishing or circulating, having in possession, selling or giving away. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Mason's Minnesota Statutes, 1927, 10123-1 to 10123-3. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***10] (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 herei "Participation in such business shall constitute a commission of such nuisance and rend any such periodical, or of any stock or interest in any corporation or organization which "In actions brought under (b) above, there shall be available the defense that the trut icals 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 a reputable citizen, the Attorney General, or upon like failure or refusal of the latter, ns committing or maintaining any such nuisance from further committing or maintaining it. plaintiff may demur or reply as in other cases. The action, by section three, is to be "governed by the practice and procedure applicab uing the violation and, "in and by such judgment, such nuisance may be wholly abated." The in the county jail for not more than twelve months. Under this statute, clause (b), the County Attorney of Hennepin County brought this act blished [***12] by the defendants in the city of Minneapolis. The complaint alleged t re "largely devoted to malicious, scandalous and defamatory articles" concerning Charles G Hennepin County impaneled in November, 1927, and then holding office, and other persons, a int did not so allege, it [*704] appears from the briefs of both parties that Charles 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 eering in Minneapolis, and that law enforcing officers and agencies were not energetically th gangsters, and with participation in graft. The County Attorney was charged with knowi d jury was stated to be in sympathy with the gangsters. A special grand jury and a specia ndants, who, it appears from the articles, was shot by gangsters after the first issue of th the prevalence of crimes and the failure to expose and punish them. [***14] At the beginning of the action, on November 22, 1927, and upon the verified complaint, have in their possession any editions of the periodical from September [*705] 24, 192 ation, known by any other name whatsoever containing malicious, scandalous and defamatory The defendants demurred to the complaint upon the ground that it did not state facts su fied the question of constitutionality to the Supreme Court of the State. The Supreme Cou d not only the state constitution [***15] but also the Fourteenth Amendment of the Const Thereupon, the defendant Near, the present appellant, answered the complaint. He averre denied that they were malicious, scandalous or defamatory as alleged. He expressly invok together with the issues of the publication in question, which were attached to the compl s overruled, no further evidence was presented, and the plaintiff rested. The defendant t [*706] The District Court made findings of fact, which followed the allegations of th the individuals named. The court further found that the defendants through these publicat said publication" "under said name of The Saturday Press, or any other name, constitutes a a public nuisance, "be and is hereby abated." The judgment perpetually enjoined the defen us or defamatory newspaper, as defined by law," and also "from further conducting said nui The defendant Near appealed from this judgment to the Supreme Court of the State, again With respect to the contention that the judgment went too far, and prevented the defendan been asked to modify it. The court added that it saw no reason "for defendants to constru been [*707] found to be true, and, though this was an equitable action, defendants had 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, en to doubt that the liberty of the press, and of speech, is within the liberty safeguarde liberty of the citizen was left unprotected by the general guaranty of fundamental rights ornia, ante, p. 359. In maintaining this guaranty, the authority of the State to enact la h appropriate regard to the particular subject of its exercise. Thus, while recognizing th lly be deprived of his right to a fair return, because that is deemed to be of the essence not an absolute right, and the wide field of activity in the making of contracts is sub are deemed [*708] to be certain indispensable requirements of the liberty assured, not 25, 560, 561. Liberty of speech, and of the press, is also not an absolute right, and the he present instance, the inquiry is as to the historic conception of the liberty of the pr The appellee insists that the questions of the application of the statute to appellant' utionality of the statute, however it might be applied. The appellee contends that no que e plain terms of the statute were not departed from in this case and that, even if they we ermanent injunctions were broader than were warranted by the statute; he insists that what With respect to these contentions it is enough to say that in passing upon constitution operation and effect. Henderson v. Mayor, 92 U.S. 259, 268; Bailey v. Alabama, 219 U.S. 2 v. Washington, 243 U.S. 219, 237. That operation and effect we think is clearly shown by e Supreme Court of the State. It is thus important to note precisely the purpose and effe First. The statute is not aimed at the redress of individual or private wrongs. Remedi peaking, involves more than libel." It is aimed at the distribution of scandalous matter a n order to obtain an injunction to suppress the future publication of the newspaper or per legation that the matter published was not true. It is alleged, and the statute requires as distinguished from malice inferred from the mere publication of the defamatory matter. ished with good motives and [*710] for justifiable ends. It is apparent that under th her criminal or otherwise, and the publication is thus deemed to invite public reprobation al right to publish a fact merely because it is true. It is a matter of common knowledge of such assaults seldom resort to the courts. This is especially true if their sins are ex to punish the wrongdoer. It is for the protection of the public welfare." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 Mason's Minn. Stats. 10112, 10113; State v. Shipman, 83 Minn. 441, 445; 86 N. W. 431 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Second. The statute is directed not simply at the circulation of scandalous and defamat easance in office, or serious neglect of duty. Such charges by their very nature create a g prominently and chiefly with the alleged derelictions of public officers. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 It may also be observed that in a prosecution for libel the applicable Minnesota sta h good motives and for justifiable ends," and also "is excused when honestly made, in beli st mentioned is not found in the statute in question. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*711] Third. The object of the statute is not punishment, in the ordinary sense, bu r libel do not result in "efficient repression or suppression of the evils of [***25] inued publication of scandalous and defamatory matter that constitutes the business and th ipally devoted to that purpose, that exposes it to suppression. In the present instance, public officers and in relation to the prevalence and protection of crime. In such a cas of a newspaper or periodical, undertaking to conduct a campaign to expose and to censure on for libel, but [***26] a determination that his newspaper or periodical is a public atisfy the court that, in [*712] addition to being true, the matter was published with This suppression is accomplished by enjoining publication and that restraint is the obj Fourth. The statute not only operates to suppress the offending newspaper or periodical such, resumption of publication is punishable as a contempt of court by fine or imprisonme be clear that the renewal of the publication of such charges would constitute a contempt ion. Whether he would be permitted again to publish matter deemed to be derogatory to the aving in their possession, [**630] selling or giving away any publication whatsoever w " and publications charging official misconduct are of that class. While the court, answe lic welfare to which all must yield," and said that the defendants had not indicated "any against official misconduct, the defendant would be held, under penalty of punishment for lfare. If we cut through mere details of procedure, the operation and effect of the statute in ng scandalous and defamatory matter -- in particular that the matter consists of charges a arges are true and are published with good motives and for justifiable ends, his newspaper The question is whether a statute authorizing such proceedings in restraint of publicat on, it has been generally, if not universally, considered that it is the chief purpose of n renunciation of the censorship of the press. n4 The liberty deemed to be established was ublications, and not in freedom from censure for criminal matter when published. Every fr hes what is improper, mischievous or illegal, he must take the consequence of his own teme nsorship under our constitutional system and that enjoyed in England. Here, as Madison sa prerogative, but by constitutions paramount to laws. This security of the freedom of [* ort on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. This Court said, in Pa ications as had been practiced by other governments,' and they do not prevent the subseque e preliminary freedom extends as well to the false as to the true; the subsequent punishme i sup.; 4 Bl. Com. 150." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 May, Constitutional History of England, vol. 2, chap. IX, p. 4; DeLolme, Commentarie - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***31] The criticism upon Blackstone's statement has not been because immunity from previous e liberty guaranteed by [*715] state and federal constitutions. The point of criticis t be rendered a mockery and a delusion, and the phrase itself a by-word, if, while every m . But it is recognized that punishment for the abuse of the liberty accorded to the press ivate injury, are not abolished by the protection extended in our constitutions. id. pp. t when publications directly tend to prevent the proper discharge of judicial functions. scope of subsequent punishment. For whatever wrong the appellant has committed or may com l with punishments; it provides for no punishment, except in case of contempt for violatio - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 See Huggonson's Case, 2 Atk. 469; Respublica v. Oswald, 1 Dallas 319; Cooper v. Peop torey v. People, 79 Ill. 45; State v. Circuit Court, 97 Wis. 1; 72 N. W. 193. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***33] The objection has also been made that the principle as to immunity from previous restra not absolutely unlimited. But the limitation has been recognized only in exceptional case n fight and that no Court could regard them as protected by any constitutional right." Sch the sailing dates of transports or the number and location of troops. n6 On similar ground of violence and the overthrow by force of orderly government. The constitutional guarant Co., 221 U.S. 418, 439." Schenck v. United States, supra. These limitations are not applic ples governing the exercise of the jurisdiction of courts of equity. n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Chafee, Freedom of Speech, p. 10. n7 See 29 Harvard Law Review, 640. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The exc stitution, has meant, principally although not exclusively, immunity from previous restrai to secure freedom from oppressive administration. n8 That liberty was especially cherishe Chief Justice Parker, in Commonwealth v. Blanding, 3 Pick. 304, 313, with respect to the prevent all such previous restraints upon publications as had been practiced by other gove ty of the press was to be unrestrained, but he who used it was to be responsible in case o he last right we shall mention, regards the freedom of the press. The importance of this eady communication of thoughts [***36] between subjects, and its consequential promoti ng spirit in the preparation of the First Amendment of the Federal Constitution, thus desc [*718] "In every State, probably, in the Union, the press has exerted a freedom in ca e freedom of the press has stood; on this footing it yet stands. . . . Some degree of ab e of the States, that it is better to leave a few of its noxious branches to their luxuria t to the press alone, chequered [***37] as it is with abuses, the world is indebted fo h of the lights which conducted them to the ranks of a free and independent nation, and wh ituted agents into contempt or disrepute, or that might excite the hatred of the people ag he infirmities of a sickly Confederation? Might they not, possibly, be miserable colonies - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 See n9 Journal of the Continental Congress, 1904 ed., vol. I, pp. 104, 108. n10 Report on the Virginia Resolutions, Madison's Works, vol. iv, 544. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***38] The fact that for approximately one hundred and fifty years there has been almost an en that such restraints would violate constitutional right. Public officers, whose character edress and punishment, and not in proceedings to restrain the publication of newspapers an decisions under the provisions of state constitutions. n11 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 Dailey v. Superior Court, 112 Cal. 94, 98; 44 Pac. 458; Jones, Varnum & Co. v. Town 37 Mont. 264, 275, 277; 96 Pac. 127; Howell v. Bee Publishing Co., 100 Neb. 39, 42; 158 N 88; Ulster Square Dealer v. Fowler, 111 N. Y. Supp. 16; Star Co. v. Brush, 170 id. 987; 17 Cr. 275; 22 S. W. 923; Mitchell v. Grand Lodge, 56 Tex. Civ. App. 306, 309; 121 S. W. 178; Dearborn Publishing Co. v. Fitzgerald, 271 Fed. 479, 485. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***39] The importance of this immunity has not lessened. While reckless assaults upon public tion in public opinion, it cannot be said that this abuse is greater, and it is believed t pportunities for malfeasance and corruption have multiplied, crime has grown to most serio l alliances and official neglect, emphasizes the primary need of a vigilant and courageous immunity of the press from previous restraint in dealing with official misconduct. Subseq In attempted justification of the statute, it is said that it deals not with publicatio of his newspaper charging official derelictions, it cannot be denied that he may publish this case, as well as in one edition. If previous restraint is permissible, it may be im oes not permit an invasion of the constitutional immunity against restraint. Similarly, i ht, without previous restraint, to publish them, his right cannot be deemed to be dependen Nor can it be said that the constitutional freedom from previous restraint is lost beca l sanctions, the conduct of [*721] public officers is very largely within the purview nactments. Historically, there is no such limitation; it is inconsistent with the reason The statute in question cannot be justified by reason of the fact that the publisher is rizing suppression and injunction on such a basis, is constitutionally valid, it would be tive officer (as the constitutional protection may not be regarded as resting on mere proc be done, the legislature may provide machinery for determining in the complete exercise o uthority to impose previous restraint upon publication in order to protect the community a against which the constitutional barrier was erected. The preliminary freedom, by virtue Equally unavailing is the insistence that the statute is designed to prevent the circul and in particular of official malfeasance, unquestionably create a public scandal, but th te those unfavorable sentiments against those who administer the Government, is equivalent and effect; which, again, is equivalent to a protection of those who administer the Govern 12 There is nothing new in the fact that charges of reprehensible conduct may create resen rship and restraint upon publication. As was said in New Yorker Staats-Zeitung v. Nolan, violently disagree with it, and resent its circulation by resorting to physical violence, if this consideration warranted legislative interference with the initial freedom of publi - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 Madison, op. cit. p. 549. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - For these reasons we hold the statute, so far as it authorized the proceedings in this decision rests upon the operation and effect of the statute, without regard to the questio e charges of official dereliction, may be deemed to be impeccable, cannot affect the concl Judgment reversed. DISSENTBY: BUTLER DISSENT: MR. JUSTICE BUTLER, dissenting. The decision of the Court in this case declares Minnesota and every other State powerle ial procedure has been adjudged to be a public nuisance. It gives to freedom of the press eral restriction that is without precedent. Confessedly, the Federal Constitution prior to 1868, when the Fourteenth Amendment was nd, 18 How. 71, 76. Withers v. Buckley, 20 How. 84, 89-91. [***46] Up to that time the r ntil 1925 to decide whether the "liberty" protected by the Fourteenth Amendment includes t ns. Co. v. Cheek, 259 U.S. 530, 538, 543. See Gitlow v. New York, 268 U.S. 652. Fiske v. K The record shows, and it is conceded, that defendants' regular business was the publica ace. It also shows that it was their purpose at all hazards to continue to carry on the b [***47] to compel a finding that they are false. The articles themselves show malice - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 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 "I am not taking orders from men of Barnett faith, at least right now. There have been actically ruling Minneapolis. "It was buzzards of the Barnett stripe who shot down my buddy. It was Barnett gunmen w n George Rubenstein (Ruby) while he stood in the shelter of Mose Barnett's ham-cavern on H d a refuge while the police of New York were combing the country for him. It was a gang o 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 stan t, is a fugitive from justice today. "Practically every vendor of vile hooch, every owner of a moonshine still, every snake- "Having these examples before me, I feel that I am justified in my refusal to take orde "I find in the mail at least twice per week, letters from gentlemen of Jewish faith who t any race, BUT: "When I find men of a certain race banding themselves together for the purpose of preyi pting OUR officials; assaulting business men; beating up unarmed citizens; spreading a rei . "If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin w "I'm not out to cleanse Israel of the filth that clings to Israel's skirts. I'm out to "I simply state a fact when I say that ninety per cent. of the crimes committed against "It was a Jew who employed JEWS to shoot down Mr. Guilford. It was a Jew who employed ed Jews to manipulate the election records and returns in the Third ward in flagrant viola "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 att need only to step to the front and help the decent citizens of Minneapolis rid the city o "Either Mr. Guilford or myself stand ready to do battle for a MAN, regardless of his ra "Both of us have some mighty loyal friends among the Jewish people but not one of them under our journalistic guns." "GIL'S [Guilford's] CHATTERBOX. "I headed into the city on September 26th, ran across three Jews in a Chevrolet; stoppe "Whereupon I have withdrawn all allegiance to anything with a hook nose that eats herri razy 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. Meth d get his twenty-five per cent. of the gambling rake-off. Boys will be boys and 'ganefs' "GRAND JURIES AND DITTO. "There are grand juries, and there are grand juries. The last one was a real grand jur ll bad. One petty peanut politician whose graft was almost pitiful in its size when he wa "But George, we won't bother you. [Meaning a grand juror.] We are aware that the gambl of a dog in appraising people. "We will call for a special grand jury and a special prosecutor within a short time, as ndow. Very soon we shall start smashing glass." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***48] [*725] The defendant here has no standing to assert that the statute is invalid becau erly raised in his case, the effect of applying the statute is to deprive him of his liber that is repugnant to the freedom of the press protected by the Fourteenth Amendment. Cast o. v. Pennsylvania, 232 U.S. 531, 544-546. This record requires the Court to consider the statute as applied to the business of pu The statute provides that any person who "shall be engaged in the business of regularly ous, scandalous and defamatory" [*728] is guilty of a nuisance and may be enjoined as the truth was published with good motives and for justifiable ends." The complaint charges that defendants were engaged in the business of regularly and cus eptember 25 and ending November 19, 1927, were made a part of the complaint. These are al On appeal from the order of the district court overruling defendants' demurrer to the "The constituent elements of the declared nuisance are the customary and regular dissem ated in such a way as to excite attention and interest so as [***50] to command circul scandalous matter is detrimental to public morals and to the general welfare. It tends to on of the truth, with good motives and for justifiable ends. . . . In Minnesota no agenc bad motives or without justifiable ends. . . . It was never the intention of the consti customarily engaged in a business of conducting a newspaper sending to the public maliciou The case was remanded to the district court. Near's answer made no allegations to excuse or justify the business or [***51] the ar tatute as unconstitutional. At the trial the plaintiff introduced evidence unquestionably ion "was chiefly devoted to malicious, scandalous and defamatory articles" and that the la league of citizens), Brunskill (chief of police), Olson (county attorney), the Jewish rac and customarily producing, publishing and circulating a malicious, scandalous and defamato Defendant Near again appealed to the supreme court. In its opinion (179 Minn. 40; 228 atute is constitutional. It was regularly and customarily devoted largely to malicious, s [*730] Defendant concedes that the editions of the newspaper complained of are "defam ed with bad motives, or for unjustifiable ends. . . . The contrary is true; every person t instance, though he is subject to responsibility therefor afterwards." The record, when No question was raised below and there is none here concerning the relevancy or weight blications that may be made notwithstanding the injunction. There is no basis for the suggestion that defendants may not interpose any defense or i f of its truth, or that at the time and under the circumstances it was justified as a fair The scope of the judgment is not reviewable here. The opinion of the state supreme cou had not been asked to modify the judgment. [*731] The Act was passed in the exertion of the State's power of police, and this co is [***54] measure for the preservation of the peace and good order of the State. Lin rd Ins. Co., 282 U.S. 251, 257-258. The publications themselves disclose the need and propriety of the legislation. They s In 1913 one Guilford, originally a defendant in this suit, commenced the publication of ns acquired Near's interest, and has since, alone or with others, continued the publicatio at by reason of their connection with the paper their reputation did become tainted and st In a number of the editions defendants [***55] charge that, ever since Near sold hi nd of control over public officers and the government of the city. The articles in question also state that, when defendants announced their intention to earm which he had at hand for the purpose of defending himself against anticipated assault [**637] The long criminal career of the Twin City Reporter -- if it is in fact as des he business of publishing malicious, scandalous and defamatory periodicals, by which the s It is of the greatest importance that the States shall be untrammeled and free to empl In his work on the Constitution (5th ed.) Justice Story, expounding the First Amendment "That this amendment was intended to secure to every citizen an absolute right to speak This would be to allow to every citizen a right to destroy at his pleasure the reputatio imes; might excite against him the indignation of all his fellow-citizens by the most atro weak, the timid, and the innocent; [*733] might prejudice [***57] all a man's civi corruption of his heart. Civil society could not go on under such circumstances. Men wo he frequency belonging to barbarous and brutal communities. It is plain, then, that the l or restraint, so always that he does not injure any other person in his rights, person, pr pansion of the great doctrine recently brought into operation in the law of libel, that ev [***58] but it is an inestimable privilege in a free government. Without such a limi 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 cribes the practice (Book IV, p. 152): "To subject the press to the restrictive power of a ke him the arbitrary and infallible judge of all controverted points in learning, religion - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 May, Constitutional History of England, c. IX. Duniway, Freedom of the Press in Mas et seq. Madison, Letters and Other Writings (1865 ed.) Vol. IV, pp. 542, 543. Respublica - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***59] 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 clamations, prohibitions, charters of privilege, and licenses, and finally by the decrees ed by proper licensers. On the demolition of this odious jurisdiction, in 1641, the Long during the Commonwealth (such is human frailty and the love of power even in republics!) t same subject was passed, copied, with some few alterations, from the parliamentary ordinan rnment to keep it in force; but it was [*735] so strongly resisted by Parliament that it It is plain that Blackstone taught that under the common law liberty of the press means as above shown, Story defined freedom of the press guaranteed by the First Amendment to me First Amendment. It is not suggested that the freedom of press included in the liberty pr stitutional Limitations, 8th ed., p. 886. 2 Kent's Commentaries (14th ed.) Lect. XXIV, p. The Minnesota statute does not operate as a previous restraint on publication within prescribes a remedy to be enforced by a suit in equity. In this case there was previous constitute an abuse of the right of free press. The statute denounces the things done as denounce such transgressions. The restraint authorized is only in respect of continuing t provided. . . . Whenever any such nuisance is committed . . . an action in the name of r maintaining any such [***62] nuisance. . . . The court may make its order and judgme be wholly abated. . . ." There is nothing in the statute n3 purporting to prohibit publi this statute to prevent further publication of malicious, scandalous and defamatory articl - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 @ 1. Any person who, as an individual, or as a member or employee of a firm, or asso lishing 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 herei * * * * * In actions brought under (b) above, there shall be available the defense that the truth odicals 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 abo county, an action in the name of the State of Minnesota . . . to perpetually enjoin the p @ 3. The action may be brought to trial and tried as in the case of other actions in s After trial the court may make its order and judgment permanently enjoining any and all olly abated. The court may, as in other cases of contempt, at any time punish, by fine of not more t ssued pursuant to this Act. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***63] [*737] The opinion seems to concede that under clause (a) of the Minnesota law the bu to constitutionality, between clause (a) and clause (b) under which this action was broug rstand 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 ina as the one before us are invalid because they operate as previous restraints to infringe f malicious [*738] assaults of any insolvent publisher who may have purpose and sufficien The judgment should be affirmed. MR. JUSTICE VAN DEVANTER, MR. JUSTICE McREYNOLDS, and MR. JUSTICE SUTHERLAND concur in