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.
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. 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.