Happy Friday and welcome to the 17th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:
"Originally posted at Squarestate.net"
First Amendment Friday 1 - Abrams v US
First Amendment Friday 2 - Gitlow v New York
First Amendment Friday 3 - Whitney v California
First Amendment Friday 4 - Brandenbrug V Ohio
First Amendment Friday 5 - Bridges V California
First Amendment Friday 6 – Planned Parenthood V ACLA
First Amendment Friday 7 - New York Times V Sullivan
First Amendment Friday 8 - Butts V Curtis
First Amendment Friday 9 - Gertz v Welch Inc.
First Amendment Friday 10 - Hustler V Falwell
First Amendment Friday 11 - Bartniki V Vopper
First Amendment Friday 12- Landmark V Virginia
First Amendment Friday 13 - Nebraska Press Assoc. V Stuart
First Amendment Friday 14 - New York Times V. US - The Pentagon Papers
First Amendment Friday 15 - Gooding V. Wilson
First Amendment Friday 16 - Lovell v City of Griffin
This week we will be looking at a Supreme Court decision which is relied on heavily to this day in regards to the level of prior restraint the government can impose.
The Case:
Mr. Near the publisher of The Saturday Press was enjoined under Minnesota statute from publishing the newspaper because it was found to be public nuisance.
The Facts:
In September of 1927 Mr. Nears "The Saturday Press" published several editions in which he made various strong and frankly anti-Semitic claims against the Mayor of Minneapolis, the Chief of Police and the County Attorney for Minneapolis claiming they were either in league with or ignoring the actions of Jewish Mobster.
Mr. Near was cited under a Minnesota statute which read:
Section 1. Any person who, as an individual, or as a member or employee of a firm, or association or organization, 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.
Participation in such business shall constitute a commission of such nuisance and render the participant liable and subject to the proceedings, orders and judgments provided for in this Act. Ownership, in whole or in part, directly or indirectly, of any such periodical, or of any stock or interest in any corporation or organization which owns the same in whole or in part, or which publishes the same, shall constitute such participation.
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 (sic) to issues or editions of periodicals taking place more than three months before the commencement of the action.
Mr. Near was and his paper where cited under section (b).
The Procedural History:
An order was made in District Court that the publisher of "The Saturday Press" show cause why a temporary injunction should not be issued and until that time forbidding the publication, circulation or the defendants having in their possession any editions of the paper from Sept. 24, 1927 to Nov. 19, 1927.
The defendant refused to make this showing on the grounds the statute was unconstitutional and the complaint did not have sufficient facts for a legal action.
The District Court overruled the lack of facts, but sent the constitutional question to the State Supreme Court for certification.
The State Supreme Court sustained the statute.
Mr. Near conceded the Act was thus held to be valid over the objection it was violated the state and the United States Constitution, as well as the Fourteenth Amendment.
The case proceeded to trial.
The District Court made findings of fact at the trail that the defendant did indeed:
did engage in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper,
and that the paper under the name The Saturday Press or any other name was a public nuisance and under this law was enjoined:
from producing, editing, publishing, circulating, having in their possession, selling or giving away any publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law,
Mr. Near appealed to the State Supreme Court again arguing that his rights under the Federal Constitution were being violated and that the judgment against him would prevent him from publishing any kind of newspaper.
The Minnesota Supreme Court upheld the constitutionality of the statute, based on its earlier ruling. On the issue of the over broadness of the judgment the State Supreme Court found that because Mr. Near did not ask for a change in the judgment from the lower court there were no grounds for them to address it as an error at trial.
Mr. Near appealed to the United States Supreme Court.
The Majority Opinion:
Mr. Chief Justice Hughes wrote the opinion for the eight member majority.
The Chief Justice starts out by explaining Mr. Nears arguments against this statute:
The appellant replies that, in his view, the plain terms of the statute were not departed from in this case, and that, even if they were, the statute is nevertheless unconstitutional under any reasonable construction of its terms. The appellant states that he has not argued that the temporary and permanent injunctions were broader than were warranted by the statute; he insists that what was done was properly done if the statute is valid, and that the action taken under the statute is a fair indication of its scope.
What Mr. Near is saying here is that the issue he is bringing before the Supreme Court is not whether the lower Courts applied the law correctly but that the law itself must be unconstitutional. In doing so he is making this not just an issue of his particular case, but one for every publication that might reasonably fall under the provisions of the statute.
Chief Justice Hughes agrees and writes:
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 there 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.
The Chief Justice then goes into great detail about what the intent of the law is and what it actions accomplish. He finds the law requires not only truth of anything published as a defense, but the intent of the publisher to be of critical import. He writes:
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. 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 for justifiable 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 reprobation and to constitute a public scandal.
He then moves to his second point on the statute which is its requirement of the abatement of the publication of the newspapers or magazines which are found to be a public nuisance under the statute. The Chief Justice notes:
The statute is directed not simply at the circulation of scandalous and defamatory statements with regard to private citizens, but at the continued publication by newspapers and periodicals 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
The third point the Chief Justice makes is about the remedy for publishing such a nuisance, namely suppression of the publication. He then moves on to his forth and final point, he writes:
The statute not only operates to suppress the offending newspaper or periodical, but to put the publisher under an effective censorship. When a newspaper or periodical is found to be "malicious, scandalous, and defamatory," and is suppressed as such, resumption of publication is punishable as a contempt of court by fine or imprisonment. Thus, where a newspaper or periodical has been suppressed because of the circulation of charges against public officers of official misconduct, it would seem to be clear that the renewal of the publication of such charges would constitute a contempt, and that the judgment would lay a permanent restraint upon the publisher, to escape which he must satisfy the court as to the character of a new publication. Whether he would be permitted again to publish matter deemed to be derogatory to the same or other public officers would depend upon the court's ruling.
This is a really important point. The way the statute was written means that if the publisher ever wants to be able to publish again he would be in the position of asking a court to validate, in advance, his intentions and the content of the publication. Combined with the problems of any type of censorship for those who are taking their government officials to task, the Chief Justice could not let this statute stand.
He goes to great lengths to knock down the States arguments on the need for this type of statute to prevent scandal and public disturbances based on malicious or scandalous accusations. The Chief Justice points out there are libel laws as to handle any libelous statements but more importantly any accusation of malfeasance on the part of public officials in the pursuit of their duties is by definition a scandal.
In the end Mr. Chief Justice Hughes writes:
For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication.
Here the Chief Justice is making it clear it that it is the way the statute moves through the courts and the end effect they have found to be unconstitutional. It has nothing to do with the veracity of the reporting, but the actual operation of the statute.
The Dissenting Opinion:
Mr. Justice Butler was the sole dissenting Justice in this case.
His primary argument is one of procedure. He is on two grounds, first that this decision widens the freedoms of the press and that this will prevent States from being able to prevent malicious publications against its citizens. He opens his dissent with:
The decision of the Court in this case declares Minnesota and every other State powerless to restrain by injunction the business of publishing and circulating among the people malicious, scandalous and defamatory periodicals that in due course of judicial procedure has been adjudged to be a public nuisance. It gives to freedom of the press a meaning and a scope not heretofore recognized, and construes "liberty" in the due process clause of the Fourteenth Amendment to put upon the States a federal restriction that is without precedent.
Justice Butler does not believe citizens should be able to operate business, specifically newspapers, who only intent seems to be rumor and scandal mongering. His intent is to show the State need to be able to suppress publications which it deems to be detrimental to the public good.
He argues that the suppression aspect of the statute is not a prior restraint, but a response to previous actions taken by the publishers:
The Minnesota statute does not operate as a previous restraint on publication within the proper meaning of that phrase. It does not authorize administrative control in advance such as was formerly exercised by the licensers and censors but prescribes a remedy to be enforced by a suit in equity. In this case, there was previous publication made in the course of the business of regularly producing malicious, scandalous and defamatory periodicals. The business and publications unquestionably constitute an abuse of the right of free press. The statute denounces the things done as a nuisance on the ground, as stated by the state supreme court, that they threaten morals, peace and good order. There is no question of the power of the State to denounce such transgressions. The restraint authorized is only in respect of continuing to do what has been duly adjudged to constitute a nuisance.
He concludes with:
It is well known, as found by the state supreme court, that existing libel laws are inadequate effectively to suppress evils resulting from the kind of business and publications that are shown in this case. The doctrine that measures such as the one before us are invalid because they operate as previous restraints to infringe freedom of press exposes the peace and good order of every community and the business and private affairs of every individual to the constant and protracted false and malicious [p738] 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.
Summary:
The Dog thinks this is a really important case, as it applies to our situation today. There have been a few of the regular readers of this series who have felt the expansion of the our First Amendment freedoms have been take too far. They cite the Bill O’Rielly’s of the word and their words which seem to lead to actions like the assassination of Dr. Tiller as justification for the narrowing of our protections.
The Dog thinks this case is a great example of what would invariably happen if we went down that path. The State of Minnesota, with good intentions surely, set up a system where, if it chose to abuse the system all dissent about all aspects of governance could be suppressed. Worse, the offenders could be prevented from ever doing so again, based on the opinion of the judge they went before.
As much as we would like to restrain the excesses of people like the odious Glenn Beck, to do so by the power of the State opens a door to the repression of all dissent on all issues by the majority, whom ever it happens to be at the time. Think about the blog posts you have read during the Bush Era. If our current laws read the way they did in Minnesota, many of the nationally known bloggers like Jane Hampsher, Kos and Glenn Greenwald would have faced total censorship. Without their voices, sometimes scandalous, sometimes malicious to the Bush Administration, there seems little doubt we would still be suffering under Republican administrations.
The damage Fox News and their ilk do is real, it is a problem, but it is nothing compared to the damage this level of well meaning censorship would do if it were allowed to happen.
So there is the Dog’s point of view on this case, what is yours Citizens?
The floor is yours.
Housekeeping:
As usual this case was found at the Cornell School of Law’s Legal Information Institute. You can find it here.