Key Documents: Section I. Journalism, Media, and the Law - Prior Restraint

Introduction

The Supreme Court has determined over the years that a free press cannot function when prior restraint is tolerated. In essence, prior restraint is in place when either government approval must be given before news can be published and ideas spoken—or when the dissemination of certain ideas or information gets stopped by the government altogether. Prior restraint has come to be seen as the most egregious form of media censorship because it allows government to keep news from the court of public opinion.

The 1931 Supreme Court decision in Near v. Minnesota set the modern standards for challenging the constitutionality of prior restraint. Jay Near and his partner published a weekly newspaper that vehemently attacked government officials in Minneapolis for not stopping the illegal actions of Jewish gangsters around the city. The paper's anti-Semitic articles also repeatedly charged that just about every gangster in Minneapolis was a Jew. City officials in their case against Near invoked a state nuisance law that allowed local courts to issue an injunction to halt publications that had printed malicious, scandalous or defamatory copy, unless the publisher could prove the claims true and well intended.

In a 5–4 decision, the Supreme Court found the Minnesota statute unconstitutional primarily because it permitted courts to totally preclude the publishing of news or criticism of public officials rather than allowing them or others to sue for libel after the material appeared in print. The Court essentially ruled that one of the main purposes of the First Amendment was to prevent prior restraint of publications and speech. Chief Justice Charles Evan Hughes in his opinion for the Court stipulated however that prior restraint was not necessarily applicable in all cases. Hughes wrote that prior restraint could be acceptable to stop the publishing of obscene pieces, material that incited violence or the overthrow of the government by force, and words that obstructed recruitment by the military or gave away vital information about the troops during a war.

—Glenn Lewis Volume Editor

U.S. Supreme court Near v. State of Minnesota Ex Rel. Olson, 283 U.S. 697 (1931)

No. 91 Argued January 30, 1930. Decided June 1, 1931.

Mr. Chief Justice HUGHES delivered the opinion of the Court.

Chapter 285 of the Session Laws of Minnesota for the year 1925 provides for the abatement, as a public nuisance, of a ‘malicious, scandalous and defamatory newspaper [283 U.S. 697, 702], magazine or other periodical.' Section 1 of the act is as follows: