Brief Fact Summary. The Petitioner, Near (Petitioner), was prohibited from producing any newspaper because he published an article criticizing the local police. A 1927 state law prohibited such publishing activity that was described as “malicious, scandalous and defamatory.”
Synopsis of Rule of Law. The government may not censor expression in advance either legislatively or judicially.
In 1927, Minnesota passed a law prohibiting the publication of any newspaper, periodical or magazine that was “malicious, scandalous and defamatory or obscene, lewd and lascivious.” Anyone who distributed such materials was prohibited from continuing production and was charged with creating a public nuisance. In late 1927, the Petitioner published several article in The Saturday Press what indicated that the local law enforcement was not “energetically” pursuing the head of the local mob. The Petitioner was then forced to stop production, as he was convicted of producing a public nuisance.
Issue. Is a court order enjoining a publisher from producing a magazine a prior restraint in violation of the Fourteenth Amendment rights of freedom of the press?
Held. Yes. To allow the court to enjoin the activity without providing the publisher an opportunity to show that the matter is true, is a step towards total censorship of the press.
Discussion. Points of Law - for Law School Success
The protection even as to previous restraint is not absolutely unlimited. View Full Point of Law
The press is allowed to publish articles that may criticize the government or other actors, as long there is an element of truth to the publication. The government cannot prevent unflattering reports from being circulated simply because it looks bad. In other words prior restraints are not appropriate. However, if the item relates to sensitive issues such as national security or certain wartime efforts, the government may impose a communication blackout.