Near v. Minnesota 283 U.S. 697 (1931)

• Author: Martin Shapiro
• Pages: 1787-1788

Page 1787

Although GITLOW V. NEW YORK (1925) had accepted for the sake of argument that the FIRST AMENDMENT ' S FREEDOM OF SPEECH guarantees were applicable to the states through the DUE PROCESS clause of the FOURTEENTH AMENDMENT,

Page 1788

Near was the first decision firmly adopting the INCORPORATION DOCTRINE and striking down a state law in its totality on free speech grounds. Together with STROMBERG V. CALIFORNIA (1931), decided in the same year and also with a 5?4 majority opinion by Chief Justice CHARLES EVANS HUGHES, Near announced a new level of Supreme Court concern for freedom of speech.,

A Minnesota statute authorizing injunctions against a "malicious, scandalous and defamatory newspaper, magazine or other periodical" had been applied against a paper that had accused public officials of neglect of duty, illicit relations with gangsters, and graft. Arguing that hostility to PRIOR RESTRAINT AND CENSORSHIP are the very core of the First Amendment, the Court struck down the statute. Yet Near, the classic precedent against prior restraints, is also the doctrinal starting point for most defenses of prior restraint. The Court commented in OBITER DICTUM that "the protection even as to previous restraint is not absolutely unlimited," and listed as exceptions wartime obstruction of recruitment and publication of military secrets, OBSCENITY, INCITEMENTS, to riot or forcible overthrow of the government, and words that "may have all the effect of force."

In emphasizing the special First Amendment solicitude for criticisms of public officials, whether true or false, Near was an important way station...