*1 supra. Oil Corp., whatever have But been the liability remained fund to federal taxation while it in the government, properly hands it cannot said that the it royalties petitioner share of paid gov- constituted in his instrumentality hands an scope ernment and was therefore the tax. beyond McCurdy States, v. United 246 U. (Compare 263.) S. is, therefore, There nature of the income nothing § from of the Reve- excepts (a) which the effect of nue Act of 1918.
Affirmed. v. MINNESOTA NEAR OLSON, COUNTY ex rel.
ATTORNEY. Argued January 30, 91. 1931. Decided June No. *2 Weymouth Kirkland, Mr. Thomas with whom Messrs. Latimer, Ellis, Howard E. and Edward C. Caldwell were brief, on the for appellant. *3 Markham,
Messrs. James E. Attorney Assistant General Minnesota, Markve, and Arthur L. County Assistant of Hennepin with whom Messrs. Attorney County, Henry Benson, Attorney Bonner, N. John General, F. Assistant General, Goff, Attorney County Ed. J. Attorney, and Larson, County William Assistant C. on Attorney, were brief, for appellee. *4 Hughes delivered Mr. Chief Justice opinion *5 the Court. 285 of the Laws
Chapter Session of Minnesota for the for the year provides abatement, as a public nui “ malicious, sance, of a scandalous defamatory news- Statutes, Minnesota 10123-1 to Mason’s 10123-3. Section one periodical.” other or paper, magazine follows: Act is as “ as or as who, individual, an Any person Section or or association organi- of a employee firm, or a member employee or officer, director, or an member zation, regu- in business of be engaged shall corporation, circulating, or publishing larly customarily producing, or away. or selling giving in possession, having maga- newspaper, and lascivious obscene, an lewd (a) or zine, other periodical, or defamatory newspaper,
(b) malicious, scandalous or other magazine periodical, of such guilty of a and all guilty persons
is nuisance, enjoined, provided. nuisance hereinafter may constitute in shall a com- Participation such business the participant nuisance and render liable mission such subject judgments pro- orders and the proceedings, in in whole or Ownership, part, vided in Act. periodical, any or such or of directly indirectly, any or any organization or interest in which corporation stock in or in or which part, publishes owns the whole same same, participation. shall constitute such brought under there (b) above,
“In actions shall be published available the defense truth ends in justifiable and for such actions motives good right to report (sic) shall not have plaintiff more than periodicals taking place or editions of issues before the commencement the action.” three months such provides any Section two that whenever nuisance exists, County Attorney any or county committed periodical circulated, or, published where such upon of his failure or refusal to proceed case written good faith of a reputable citizen, Attorney request refusal the latter, any like failure or General, county, maintain an action the dis- citizen of name county enjoin of the State to court of the trict *6 maintaining committing or perpetually persons committing maintaining nuisance from further it. such sufficient, shall deem evidence the court Upon such as injunction The defendants temporary may granted. be answer, and the demurrer or right plead by have inas other cases. plaintiff reply demur or may “ be action, by three, governed by section in- applicable to civil actions for practice and procedure may trial the enter judgment and after junctions,” court enjoining guilty found of permanently defendants “ in violating and, from violation continuing Act such such nuisance judgment, wholly of empowered, The court is other abated.” cases punish temporary disobedience to a contempt, fine of not more than permanent injunction by $1,000 or jail in the for not more by imprisonment county than twelve months. this statute, (b),
Under clause the County Attorney County brought enjoin action to Hennepin was described as a publication malicious, what scan- defamatory newspaper, magazine and peri- dalous odical,” Press,” known as “The Saturday published by in the city Minneapolis. defendants com- on plaint alleged defendants, September 24, 1927, that the eight subsequent November, and on dates October and circulated published periodical editions of 1927, “largely malicious, which devoted to were scandalous defamatory articles” Charles G. concerning Davis, Frank Brunskill, Minneapolis W. the Min- Tribune, Journal, Melvin neapolis Passolt, Leach, E. George C. Race,
Jewish the members the Grand Jury Henne- County November, and then pin impaneled hold- and other ing office, persons, more fully appeared annexed exhibits complaint, consisting copies of the articles described and constituting pages the record. While complaint did not so allege, it *7 G. that Charles parties briefs of both from the appears employed officer law enforcement special Davis was a Mayor E. Leach was George that organization, aby civic Chief W. Brunskill was its Frank Minneapolis, that (cid:127) (the relator in Floyd Olson Police, and that B. Attorney. action) County was summarize the contents of attempting to
Without we deem complaint, exhibits attached voluminous in substance charged say sufficient articles it boot- gambling, in was control gangster that a Jewish law Minneapolis, and legging racketeering in energetically per- were not agencies officers and enforcing were directed forming charges their duties. Most of the gross with against Police; charged the Chief of he was with relations gangsters, illicit with neglect duty, The graft. County Attorney charged in was participation with failure to knowing existing conditions and remedy Mayor them. take measures to adequate member inefficiency was accused of and dereliction. One be in with the jury was stated to grand sympathy grand A and a gangsters. special jury prosecutor special and, to deal in general, demanded with the situation were investigate in an to assassinate particular, attempt one who, one of it Guilford, original defendants, appears shot after the first articles, by gangsters from the was had There is no periodical published. issue of the been the articles made question but serious accusations named and others connection against officers of crimes and expose with the the failure to prevalence them. and punish beginning on November action, 22,
At the 1927, an complaint, verified order made upon the why the defendants to cause directing temporary show issue meanwhile injunction forbidding should circulate or have their publish, pos- the defendants of the periodical September editions from any session 19, 24, to November 1927, and from inclusive, pub- lishing, circulating, having possession, “any their future The Saturday of said Press” “any editions name known other publication, whatsoever con- taining defamatory scandalous and malicious, matter the kind or other- alleged plaintiff’s complaint herein wise.” demurred to the complaint upon defendants
ground did not state sufficient facts to constitute *8 action, on this the challenged cause and demurrer of the The Court constitutionality statute. District the overruled the demurrer and certified of con- question stitutionality Supreme Court of the State. The Supreme (174 457; sustained statute Court the Minn. 770), N. W. and it is conceded the appellee the objection Act was thus held to be valid over the the the only state constitution but also violated not Fourteenth Amendment of Constitution of the United the States. Near, the defendant the present appellant,
Thereupon, was the complaint. He averred he answered and of the publication ques- sole owner proprietor He in the tion. articles publication admitted they the complaint issues described in but denied that defamatory scandalous or He alleged. were malicious, invoked the of the due clause protection process expressly Amendment. The on case then came of the Fourteenth offered evidence plaintiff The the verified trial. with the issues complaint, together publication complaint were attached to the as ex- which question, objected introduction of defendant hibits. The evidence, invoking provisions constitutional objection overruled, The was referred. which his answer was and presented, plaintiff evidence no further rested, then without evi- offering The rested. defendant moved that court direct plaintiff dence. The done, was injunction, issue a permanent and fol- fact, which findings made District Court The in gen- found allegations complaint lowed the “ chiefly were de- in question terms that editions eral articles,” defamatory scandalous and malicious, voted further named. The court the individuals concerning through publications these defendants found “ customarily regularly in the business engage did malicious, scan- circulating producing, publishing that “the said defamatory newspaper,” and dalous Press, Saturday of The “under said name publication” under name, nuisance constitutes a any or other entered Judgment thereupon the State.” laws magazine periodi- adjudging that “the newspaper, Press,” nuisance, Saturday as a public cal known as “ hereby judgment perpetually abated.” be and enjoined editing, pub- from producing, the defendants selling in their circulating, having possession, lishing, which a mali- whatsoever giving away publication cious, defined defamatory newspaper, scandalous law,” nuisance conducting and also “from further said *9 Saturday under the name title of said The Press or any other name or title.”
The defendant Near from this appealed judgment of again right Court the his Supreme State, asserting the and the under the Federal was Constitution, judgment former affirmed the decision. 179 authority Minn. 228 N.. W. 326. 40; respect With to the conten- went too the judgment far, prevented tion the from kind of a the publishing any defendants newspaper, error did assignments go court observed that the not form the and that the lower judgment court modify had not been asked to it. The court added no reason to construe the judg- saw defendants them restraining operating newspaper ment as from harmony public to which all welfare, must allegations yield,” complaint had been action, equitable this an though found was true, and, to be “ to their conduct defendants had not indicated a desire manner.” business the usual and legitimate affirmed, the defendant From the as thus judgment Near appeals this Court. nuisance of statute, This as a suppression public -if unusual, unique, newspaper periodical, is transcending
raises questions
grave
importance
It is no
particular
local interests involved in the
action.
longer
press,
doubt that the
and of
open
liberty
safeguarded
is within the
due
speech,
liberty
proc-
of the Fourteenth
invasion
ess clause
Amendment
from
It
action.
to conclude that
impossible
state
found
un-
of the citizen was left
this essential personal liberty
protected by
rights
of fundamental
general guaranty
York,
New
268 U. S.
person
property. Gitlow v.
362,
S.
652, 666; Whitney
California,
357,
373;
v.
U.
Kansas, 274
380,
Stromberg
U. S.
Cali
382;
Fiske v.
fornia, ante,
In
359.
p.
maintaining
guaranty,
health,
of the State to enact laws to
authority
promote
general
welfare of
is neces-
safety, morals
people
its
must
sovereign
admitted.
limits of this
sarily
power
always be determined with
appropriate
regard
particular subject
recogniz-
of its exercise.
while
Thus,
ing
legislature
the broad discretion
rates
fixing
to be
those
charged by
service, this
ündertaking
has decided that
owner
Court
cannot constitutionally
of his
to a fair
deprived
right
because
return,
to be of the essence
ownership.
deemed
Railroad
Cases, 331;
Commission
U.
Northern
307,
S.
Pacific
Ry.
Dakota,
North
236 U. S.
So,
Co. v.
while
*10
liberty of contract is
an absolute
not
the
right, and
wide
activity
field of
the making of contracts is subject to
(Frisbie
legislative supervision
States,
v. United
161, 165),
S.
has held
power
U.
Court
that
the
stops short of
State
interference with what
the
are deemed
requirements
liberty-
of the
indispensable
to be certain
and
fixing
assured, notably
respect
prices
Banton, 273
418;
v.
U. S.
Ribnik v.
Tyson Bros.
wages.
McBride,
350;
Hospital,
277 U. S.
Adkins
Children's
v.
and of the
Liberty
speech,
709 133, 235 U. S. 219, Reynolds, United States v. 244; S.U. Arkansas, Co. v. 149; Ry. Louis Southwestern 148, St. Washington, Timber 350, 362; 235 Mountain Co. v. U. S. think 219, That and effect we U. 237. operation S. are in this case. We not clearly is shown the record court, if concerned with mere errors of the trial there the such, going statute as beyond the direction con- im- It strued Court of the State. is thus Supreme to note effect of portant precisely purpose statute the state court it. has construed in not at the First. statute is redress .aimed remain dividual Remedies libel private wrongs. available unaffected. The said the state statute, “ court, ex is not directed at threatened libel at an but isting business more which, generally speaking, involves than libel.” It is at the distribution of scandalous aimed “ matter as detrimental morals and to the gen “ welfare,” eral tending com peace disturb “to munity” assaults and the commission provoke In injunction crime.” order to obtain an to suppress the future publication of newspaper periodical, necessary prove falsity charges have been made the publication condemned. In the was no present allegation action there the matter was not true. published alleged, It and the statute requires allegation, the publication was mali But, prosecutions libel, cious.” there is no re quirement the State of proof by malice fact as dis from tinguished malice inferred from the mere publica defamatory tion of the judgment matter.2 The in this proof case mere proceeded publication. The permits statute not of defense, alone, truth but only was published truth with good motives and 10112, 10113; Minn. Stats. State v. Shipman, 83 Minn.
2 Mason’s ; 431; Minor, State N. W. 445 86 109, 110; 163 Minn. N. W. *12 It is that under the stat- justifiable apparent ends. if defamatory regarded is to as
ute the publication is if it cir- and that it scandalous injures reputation, of whether crim- charges reprehensible conduct, culates is thus deemed publication inal or and the otherwise, a public and to constitute invite public reprobation of the The court defined sharply purpose scandal. in these words: precise out the bringing point, statute, “ right merely no a fact publish is constitutional There knowledge is is matter of common because it true. It not statutes do under the criminal libel prosecutions of the evils repression suppression in efficient result such assaults Men who are victims of scandal. if This is especially seldom resort to courts. true question sins are and the relates to exposed only their good justifiable motives and for whether it done with was the person law is not for ends. the protection This It for the wrongdoer. pro- is nor to punish attacked welfare.” public tection at the simply statute is not cir
Second. directed defamatory with culation of statements scandalous but at the continued citizens, publica regard private of charges against by newspapers periodicals tion office, malfeasance seri corruption, officers of public their nature duty. charges by very Such neglect of ous scandalous de They scandal. are create a public statute, which famatory meaning within has in relation to publications dealing normal operation its alleged with the derelictions chiefly prominently officers.3 public prosecution appli in a for libel the may also be observed It Stats., 1927, (Mason’s 10112,10113), Minn. Minnesota statute cable §§ justified publication “whenever
provides matter published good charged libelous is motives and true made, justifiable honestly also “is when ends,” and excused object Third. The statute not punishment, ordinary news- offending but sense, suppression enactment, as paper or reason for the periodical. The enforce the state said, court has is that prosecutions penal statutes for libel result in efficient repres- do not sion Describing or suppression of evils of scandal.” the business nuisance, does publication the stat- obscure the substance which proceeding of scan- ute It is the continued publication authorizes. matter constitutes the busi- defamatory dalous and *13 In the public ness and the declared nuisance. case it is of official miscon- officers, charges the reiteration or is duct, and the fact that the newspaper periodical that principally exposes devoted to that to purpose, In that present suppression. instance, proof nine or in question editions newspaper periodical on they successive were published dates, were and to in chiefly charges against devoted officers and public relation and of crime. In prevalence protection case, are not left their ordinary such a these officers to libel, in or a suit for the authorities to remedy a prosecu- statute, tion for criminal a libel. Under publisher or newspaper periodical, undertaking a to conduct a derelictions, to and to censure official campaign expose and devoting publication his to that principally purpose, must face simply against of a verdict possibility him in suit or for a libel, a but determination prosecution his or a periodical public is nuisance to be newspaper abated, and that this abatement and will suppression fol- low legal unless he is with evidence to prepared prove charges truth satisfy that, and also to the court upon grounds truth, belief of reasonable such belief, its upon person respect consists fair comments the conduct of a to public affairs.” The clause last mentioned is not found the statute question. published matter was true, being
addition to ends. justifiable good motives by enjoining accomplished publica- is suppression This object is and effect of the restraint tion and that statute. to
Fourth. only operates suppress The statute not put or but offending newspaper periodical pub- an When a censorship. newspaper under effective lisher malicious, or found to be scandalous periodical defamatory,” resumption and is suppressed such, of court fine publication punishable contempt as a Thus, newspaper periodical where imprisonment. charges has been because of the circulation of suppressed , it would against misconduct, of official public officers publication be clear the renewal seem to contempt charges such would constitute restraint lay pub- would judgment permanent satisfy the court as to escape which he must lisher, of a Whether he would the character new publication. matter deemed to be permitted publish derog- again officers atory depend same or other would *14 In the present the court’s the instance upon ruling. from “publishing, restrained the defendants judgment in selling their or circulating, having possession, giving malicious, whatsoever which is a away publication as by or defined law.” defamatory newspaper, scandalous The law no definition that covered the gives except “ defamatory,” publications words scandalous and and (cid:127) of While official misconduct are that class. the charging answering the objection judgment the that was too court, no reason it as construing restraining saw the broad, in “from operating newspaper harmony defendants to which all yield,” with the welfare public must said “ any that the defendants not indicated' to had desire con- legitimate the usual manner,” duct their business inference is that, at least with to a the manifest respect official the publication against misconduct, new directed held, punishment defendant would be under of penalty statute, publi- a manner of provided the contempt “ legiti- be usual and cation which the court considered to ”mate with welfare. public consistent the If cutwe mere details of the through procedure, opera- tion of statute public and effect in substance of a authorities the owner or news- bring publisher of charge or con- periodical judge before a upon paper scandalous and defama- ducting publishing a business of matter—in the matter consists of tory particular charges against officers official dereliction—and of publisher disposed unless owner is able bring satisfy competent judge evidence true charges good and are motives are published ends, and for justifiable periodical his newspaper further suppressed and is made publication punishable as a This is contempt. censorship. essence question
The is whether statute such authorizing pro ceedings is consistent with the publication restraint liberty historically of the of the con conception press determining In guaranteed. ceived the extent it has if uni generally, constitutional been protection, considered it is chief versally, purpose guaranty previous to prevent upon publication. restraints struggle against directed England, legislative licenser, resulted in power renunciation deemed censorship to be press.4 liberty es tablished was thus described Blackstone: The liberty essential press is indeed nature of a free laying consists in no state; previous but restraints and not in freedom from censure for publications, *15 when published. Every matter freeman criminal has an 4 History of 2, chap. IX, 4; vol. May, England, p. Constitutional England, chap. the DeLolme, IX, on Constitution Commentaries pp. 318, 319 before pleases sentiments he right lay to what
undoubted the freedom of this, destroy forbid' is to to public; mischievous is improper, but if he what publishes press; his own consequence of he must take illegal, Constitution, on the Story 152; Com. 151, Bl. see temerity.” early pointed 1889. The distinction 1884, § § to with respect freedom of the extent out between and that en system our constitutional censorship under “ the great Madison England. Here, said, as joyed legisla against are secured rights people essential They are against executive ambition. as well as tive by but prerogative, laws by paramount not secured, This paramount security to laws. constitutions . exempt it should be requires freedom of press Executive, restraint as only previous from not restraint Re Britain, legislative from also.” Great but Works, Madison’s vol. Virginia Resolutions, port on Colorado, 543. This Court in Patterson v. said, IV, p. main place, 462: In the first purpose S. 205 U. ‘ constitutional all prevent such provisions such been upon prac restraints as had previous publications governments,’ they other do not prevent ticed punishment of such as be deemed con subsequent Blanding, trary to the welfare. Commonwealth v. 304, 313, 314; Respublica Oswald, Dallas, 319, 3 Pick. freedom preliminary extends as well to the subsequent punishment may true; false as as to the false. This extend well true was the criminal libel from most apart cases, law statute if Blanding, sup.; Commonwealth v. ubi 4 Bl. in all. not 150.” Com. Blackstone’s statement criticism has been from immunity restraint previous upon publica-
because regarded has not been deserving special empha- tion sis, chiefly because that deemed immunity but cannot be exhaust conception guaranteed by of the liberty
715
criticism
point
and federal constitutions.
state
from
re-
has
“that
the mere exemption
previous
been
by
that is
the constitutional
straints cannot be all
secured
might
”;
liberty
press
and that
provisions
itself
delusion,
rendered a
and a
mockery
phrase
by-word,
if,
man
every
liberty
while
was at
publish
what he
authorities
neverthe-
pleased,
public
might
him for
2 Cooley,
less
harmless
punish
publications.”
Lim.,
ed.,
recognized
8th
885. But
p.
Const.
it is
to the
for the
punishment
liberty
abuse
accorded
press is essential
and that
protection
the public,
subject
the common
rules that
law
the libeler to responsi-
for
for the
in-
as well
bility-
public offense,
private
are not
in our
jury,
abolished
extended
protection
constitutions,
id.
884. The law
pp. 883,
criminal
rests
There
libel
that secure foundation.
is also
upon
the conceded
of courts
for
authority
contempt
to punish
when
dis-
publications directly tend
prevent
proper
Colorado,
Patterson
charge
judicial
functions.
v.
Toledo
supra;
Newspaper Co. v. United
States,
247
S.U.
402, 419.5 In the
have no
present case, we
occasion
inquire
scope
as to
of subsequent
permissible
punish-
For
ment.
whatever wrong
appellant
has committed
or may commit, by his
publications,
State appropri-
both
ately affords
private
redress
its libel
has
noted,
laws. As
been
the statute in
does
question
punishments;
provides
deal
for no punish-
in case of
violation
ment, except
contempt
for
court’s
but
order,
suppression
injunction,
is,
restraint
publication.
objection
also been
has
made the principle
from previous
as to immunity
restraint
is stated too
469; Respublica
2
Huggonson’s Case,
5 See
Atk.
v.
1 Dallas
Oswald,
319;
Cooper
373;
13
People,
v.
Colo.
22
790;
Pac.
Nebraska v.
438;
Nebr.
353;
60
83 N. W.
Rosewater,
State v.
Tugwell, Wash.
238;
1056; People Wilson,
52 Pac.
v.
195;
64 Ill.
Storey
People,
45;
1;
Ill.
Court,
State v. Circuit
97 Wis.
government might prevent sailing service or of the dates cruiting publication of Ón troops.6 of or the number and location transports requirements decency of grounds, primary similar against publications. be enforced obscene The se- may community against of life curity protected the. may and the overthrow to. acts of violence incitements The orderly government. guar- constitutional force of a man an protect free not from anty speech of does all against uttering words that have injunction Co., Buck Stove Gompers Range effect of force. v. & States, Schenck supra. v. United U. S. 439.” not here. Nor applicable These limitations are we are of with to the extent author questions now concerned in order ity protect private publications to prevent governing the exercise rights according to principles equity.7 jurisdiction of courts nature of its limitations exceptional places conception strong light general liberty considered and taken Fed historically by the press, up meant, Constitution, has principally although eral exclusively, immunity from restraints or censor previous theuFerty of the conception ship. press this exigencies had broadened with of the colonial country 6 Chafee, Speech, p. Freedom of 10. Review, Law 29 Harvard
7 See from oppres and with efforts to secure freedom period That was cher liberty especially sive administration.8 restraint it afforded from immunity previous ished and charges officers publication censure misconduct. As was Chief Justice official said 304, 313, Parker, Blanding, Pick. Commonwealth “ Be respect constitution of Massachusetts: commentary understood, it is and received as sides, well on liberty for the provision press, all such previous pub intended restraints prevent lications as been other practiced by governments, had *18 here, in of to early patriots times to stifle the efforts their their enlightening rights wards fellow subjects liberty the of rulers. The was to duties press he be but who it unrestrained, responsible used be was In in case of its abuse.” the sent the letter Continen of Congress (October 26, tal to the Inhabitants 1774) ” “ rights Quebec, five it was said:9 referring great “ freedom of right mention, The last we shall regards the the this press. importance consists, of besides the in truth, morality, advancement of science, gen arts of liberal eral, diffusion sentiments on the adminis .its Government, tration its of ready of communication thoughts subjects, consequential between and its promo them, among tion of union whereby oppressive officers more intimidated, are into honourable and just shamed or of affairs.” conducting Madison, modes who the of in the the First preparation Amendment leading spirit Constitution, thus practice of the Federal described the guaranties sentiment which led to the liberty of of constitutions:10 in state press Duniway Development, “The of Freedom 8 See the Press in 123; p. Massachusetts,” History Bancroft’s States, the United vol. 2, 261. 9 Congress, ed., I, pp. 104, Journal of Continental vol. 108. Virginia Resolutions, Works, Report iv, on the Madison’s vol. State, In every probably, Union, the press has merits
exerted a freedom and measures canvassing the which every men not been description has confined to the strict limits of law. On common footing stood; this freedom of press has on this it . footing yet degree stands. . . Some abuse from the use of inseparable everything, and in proper no more true than that of the press. instance this has been accordingly It decided practice it of its States, is better to leave few noxious branches to than, by their luxuriant growth, pruning them away, injure vigour those yielding the fruits. can the wisdom of proper And policy by any doubted who reflect to the press alone, chequered abuses, is with world is indebted all the which have been triumphs gained by reason and error humanity over who reflect oppression; source United same beneficent States owe much lights which conducted them to the ranks of a and which have nation, improved free and independent system auspicious into so shape their to their political * Acts,’ forbidding every Sedition happiness? pub- Had might agents the constituted bring lication that into con- *19 might or excite hatred disrepute, tempt unjust against pernicious the authors people against uniformly been enforced measures, press, have been the United States at might languishing not sickly of a infirmities Confederation? under the day this miserable be not, colonies, groaning Might they possibly, ” foreign yoke? under one hundred approximately fifty for fact that The entire absence of almost an attempts has been there years upon publications relating restraints previous to impose is significant officers of the public malfeasance restraints that such would violate conviction deep-seated whose officers, Public character and right'. constitutional
719 conduct remain open to debate and free discussion in the find press, their for remedies false accusations in actions under libel laws providing redress punishment, and not to restrain proceedings the publication of newspapers and periodicals.^ general principle that the constitutional guaranty of the liberty of the press immunity from gives previous restraints has been ap proved many decisions under the provisions state constitutions.11 importance has immunity lessened.
While reckless upon public men, assaults efforts to bring obloquy upon those who are endeavoring faithfully official exert a baleful discharge duties, influence and deserve the severest condemnation it opinion, cannot be this abuse is said greater, be- less, lieved than that which characterized the period in which our institutions took shape. Meanwhile, government administration of has become more complex, malfeasance and have opportunities corruption grown crime has to most serious multiplied, proportions, of its protection by unfaithful danger officials and security fundamental impairment life and 11 94, 98; 112 458; Jones, v. Cal. Superior Court, 44 Pac. Dailey 431, 450; Admx., Co. v. 21 Fla. Townsend’s & State ex Varnum rel. 741, 743; Judge, 34 La. v. Commonwealth v. 3 Liversey Blanding, Lindsay 304, 313; v. Montana Federation Pick, Labor, 37 Mont. 275, 127; Howell v. 277; Pac. 96 Publishing Co., Bee 39, Neb. 264, 100 358; New 42; W. v. Staats-Zeitung Nolan, Yorker Eq. 158 N. 89 N. J. 72; Paige 387; 24; 8 Atl. v. Lane, Brandreth 105 New York Juvenile Roosevelt, Daly 188; Society v. 7 Square Dealer v. Ulster Guardian Supp. 16; 987; N. Y. v. 170 id. 172 Fowler, Brush, 111 Star Co. id. 851; Dopp 428; 9 Doll, Rep. v. Ohio Dec. 320; 172 v. Respublica id. 319, 325; Respublica Oswald, 1 v. Dennie, Dall. 4 269; Yeates ; 923; Tex. Cr. 275 S. W. parte Neill, Ex Mitchell v. Grand App. 306, 309; 178; Sweeney Lodge, 56 Tex. Civ. S. W. Baker, *20 158, 182; Light, v. 13 W. Va. Montgomery Heat & Citizens Power Co. 553, 556; 171 Fed. v. Co., Light O’Connell, Water 231 Fed. & Willis 1004, 1010; Publishing Fitzgerald, 271 Fed. Dearborn Co. alliances official em- by neglect, criminal
property of vigilant courageous need phasizes primary liberty The fact that the cities. press, especially great miscreant may purveyors be abused press necessary the im- does make the less scandal not munity dealing from restraint press previous Subsequent punishment with official misconduct. may appropriate remedy* such exist con- abuses as is sistent with privilege. constitutional In justification it is said that attempted statute, per se, busi- it but with the publication deals with not ” If, however, pub- ness of defamation. publishing constitutional without right publish, pre- lisher has a offi- charging an edition his restraint, newspaper vious cannot be denied that he may cial it derelictions, publish for the not subsequent purpose. editions same He does lose his If it right exercising right exists, it. his . be in this may publishing editions, exercised nine as one If is as well as in edition. restraint case, previous once; wrong it at may imposed indeed, be permissible, Char- in one in several. publication be as serious as a and the business acterizing publication business, an invasion of the constitu- nuisance, permit does not it against tional restraint. does immunity Similarly, found be or newspaper matter periodical “chiefly” publication devoted “largely” If without has publisher right, such. derelictions. cannot be right his restraint, publish them, previous something his dependent upon publishing to be deemed objection to which less, the matter more else, made. from freedom
Nor said that the constitutional can are made of charges is lost because restraint previous the multiply- With which constitute crimes. derelictions municipal charters penal codes, ing provisions carrying penal conduct sanctions, and ordinances *21 of public very officers is within the crim- purview largely from inal statutes. The freedom of the press previous ani- restraint been as limited to such regarded has never lay range outside enact- madversions as penal Historically, there no it is limitation; ments. is such reason underlies the inconsistent with the which privi- slight so limited be of value lege, privilege as would for the for which it to be established. purposes came justified by
The statute cannot be reason question show, fact that to be- publisher is permitted fore injunction issues, that matter is true published good and is with motives and for published justifiable If in- a statute, authorizing ends. such suppression junction basis, constitutionally valid, on such is it would equally legislature be to permissible pro- vide at publisher time of any newspaper could brought court, before or even an administra- (as the constitutional tive officer not be protection may regarded on resting details) mere procedural required to proof truth of his produce publication, or of what he intended to and of his publish, motives, If stand this enjoined. can done, legislature be. provide machinery determining the complete of its discretion what justifiable exercise are ends and restrain And accordingly. publication would be but to a system step complete recog- censorship. nition authority impose previous restraint publication community against order protect the charges circulation of misconduct, and especially of necessarily official misconduct, would carry it the admission of authority censor against which the constitutional barrier erected. The preliminary freedom, by very virtue reason for its existence, Court has on depend, does said, proof truth. Colorado, supra. Patterson
Equally unavailing the insistence that the statute designed prevent circulation of scandal which tends and to peace provoke disturb the assaults *22 Charges of reprehensible commission of con the crime. duct, unquestion of particular malfeasance, and in official a scandal, theory but the of the consti ably public create tutional is that more evil guaranty even a serious public authority by would be caused to prevent publication. “ To the intent to excite those unfavorable senti prohibit Government, ments those administer the is against who equivalent to of actual excitement of the prohibition actual of them them; prohibit and to the excitement equivalent having to a of discussions that ten prohibition which, to a effect; again, equivalent protec dency if Government, the they tion of those who administer of deserve the or hatred contempt should at time by to it free animadver against being exposed people, characters and conduct.”12 There is noth sions on their ing charges new the fact that of conduct reprehensible create resort to may disposition resentment and the to redress, violent means well-understood ten but this to did alter the determination dency protect press As against upon publication. and restraint censorship Staats-Zeitung Nolan, said New Yorker N. J. Atl. 72: If Eq. township may 387, 388; pre for no reason other newspaper vent circulation violently inhabitants may disagree than some of its it, resorting its physi- and resent circulation what prohibited.” is no limit to be violence, cal there with effec- greater of violent reactions becomes The danger resenting exposure, organization groups tive defiant interfer- legislative and if consideration warranted this the constitu- initial freedom of publication, ence with form mere would be reduced tional protection words. far statute, hold the so au- these reasons we
For (b) action under clause this proceedings thorized the op. cit. p. 12 Madison, one, infringement liberty section to be an Fourteenth We
press guaranteed Amendment. this rests operation should add that decision statute, regard effect of the without question charges the truth contained in particular peri- odical. The fact that officers named those with the case, charges associated of official dere- cannot liction, may impeccable, be deemed affect imposes statute an unconstitu- the conclusion tional upon publication. restraint
Judgment reversed. *23 Butler, dissenting. Mb. Justice
The in this case decision the Court Minne- declares every powerless other State to by injunc- sota and restrain publishing the business of and circulating among tion people malicious, defamatory scandalous periodicals judicial procedure that due course has been adjudged to be a It to freedom gives nuisance. public the press and a meaning scope heretofore recognized and con- ” “ due liberty process clause strues Four- put teenth Amendment States a federal restriction is without precedent.
. the Federal Confessedly, prior Constitution 1868, when the Fourteenth Amendment was adopted, did not protect right speech against free or press state Baltimore, 7 action. Barron Pet. 243, v. 250. v. Fox Ohio, 5 434. Smith 18 410, Maryland, How. v. 71, How. 20 Buckley, 76. Withers How. 84, v. 89-91. toUp the right safeguarded solely time constitutions ¡and bemay they laws of the States and, added, operated This it. Court was not .'adequately protect called on “ ” liberty until 1925 to whether decide protected by the Fourteenth Amendment includes right of free speech press. question That has been finally an-
724 Colorado, the affirmative. Cf. Patterson swered 205 v. Cheek, 462. Prudential Ins. Co. v. U. 454, S. 259 U. S. York, 543. See Gitlow v. New 538, 652. 530, U. S. Kansas, Stromberg California, Fiske U. S. 380. v. ante, p. shows, conceded, record and it is that defendants’
regular malicious, business was scan publication defamatory concerning dalous and articles the principal officers, leading city, many newspapers pri also vate Jewish race. It shows persons their at all carry it was hazards to continue to purpose every on In business. edition slanderous and de famatory predominates practical matter exclu Many highly sion of all else. statements are so finding they compel as to are false. improbable themselves show malice.1 The articles following appear published, the last articles edition dated November 1927: NOT
“FACTS THEORIES. gentleman “‘I a bosom friend of am Mr. Olson/-snorted ‘ against blood, protest your blah, and I want Yiddish article/ blah, infinitum, ad ad nauseam. blah, faith, right taking orders from men of Barnett at I am not least *24 many city especially been men in now. There have too this taking suggestions been life, those in official who HAVE orders and GANGSTERS, Gangsters, prac- therefore we HAVE Jew from JEW tically ruling Minneapolis. “ stripe my buddy. who down buzzards of the Barnett shot It was staged Shapiro. on assault gunmen who Samuel It -was Barnett every robbery practically in thugs ‘pulled' who have is Jew It gang who down Barnett shot member of the city. It was a in the shelter Mose (Ruby) while he stood George Rubenstein was Mose Barnett Hennepin It avenue. ham-cavern on Barnett's Rogers Hennepin avenue. It at Roy on down himself who shot ’ ‘ ’ ‘ found the 13 dollar Jew a place business Mose Barnett’s combing country were York of New police refuge while five hundred that for Kim who boasted gunmen gang of Jew was a It Barnett, a It was Mose city. any in kiE man they would dollars no standing The defendant assert here has to statute is invalid because it construed so as to might be violate the solely Constitution. His is limited right Jew, police Minneapolis who held chief of boasted he bought his paid hand—had for him. “ women—pliant It is gangster, Jewish men tools of the Jew charged having Barnett, Mose who stand falsified the election records and ward. And it is Mose Barnett returns Third the. assault, is himself,, who, part Shapiro his indicted for fugitive today. justice from ‘‘ Practically every hooch, every vendor of a moon- of vile owner every still, gangster embryonic yegg shine snake-faced in the Twin is a Cities JEW. “ Having examples these me, justified before I feel that I am my refusal orders from a he to take Jew who boasts that is a ‘ ’ bosom Mr. Olson. friend per week, gentle-
“I find in mail at least twice letters from against' me launching men of Jewish faith who advise an attack on gentlemen people.’ Jewish' These have the cart before the launching, I no Guilford, against horse. am nor Mr. attack race, BUT: “ banding of a together I find men certain race When themselves purpose preying upon Jew; Gentile gunmen, KILL- shooting roaming against our streets down men ERS, they whom grudge (or happen personal defying no to have); have laws; OUR officials; assaulting men; OUR business corrupting beating up citizens; reign spreading through every unarmed of terror walk say you sincerity, in all life, then I that I up refuse back ‘ single they ’—if step from that issue choose to make so. “ Minneapolis faith in people If the of Jewish wish avoid ' ’ rightfully they criticism whom I call of these vermin Jews can easily do so BY THEMSELVES CLEANING HOUSE. clings “I’m not out-to cleanse Israel of filth that to Israel’s ‘ line, chips fly they
skirts. I’m out to hew to the let the where may.’ cent, say simply ninety per I a fact when I state society against city committed in this crimes are committed gangsters. Jew *25 “ employed It was a Jew who to JEWS shoot down Mr. Guil- employed ford. a Jew who to Shapiro It was Jew intimidate Mr. points properly regard whether, having inquiry to the statute is of applying effect raised his case, ! of law. process due liberty without him of his deprive gentleman when JEWS to assault employed who and a Jew It JEW who wheedled yield threats. was a to to their refused he manipulate election records returns employed to Jews or It was a Jew who violation law. flagrant ward Third in the pay our chief of another Jew to to with hundred dollars left two. election, and: municipal the last before police just long as one cares to comb over the Jew, Jew, as Jew, “It records. launching against people the Jewish AS A no attack
am“I a FACT. And if the merely calling attention to amI RACE. of the odium and faith wish to rid themselves of that race people stigma THEIR OWN RACE HAVE- THE RODENTS OF only THEM, they step to the front need BROUGHT UPON city Minneapolis rid of these citizens of help the decent Jews. criminal “ myself ready do stand battle for Either Mr. Guilford regardless race, creed, color or neither of us will of his but MAN, fight path to avoid a IF the Jews of our chosen step one inch out to battle. want “ mighty loyal among have some friends the Jewish us Both 1lay whining to that we one of them comes ask people but not ’ gangsters and none of them who comes olí Jewish criticism ’ friendship any public us their bosom official carping to ‘ journalistic guns.” now our under CHATTERBOX.
“GIL’S [Guilford’s] “ city September 26th, ran into the on across three I headed Chevrolet; stopped a and won a lot lead bed Jews .a Hospital . myself in Barnabas for six weeks. . . St. allegiance I have withdrawn all Whereupon anything herring. adopted sparrow my eats I hook nose that have league bird Davis’ law enforcement until the K. K. K. national eagle’s straight. crazy beak out if hammers the So I seem to act street, merely saluting bear in mind I ankle down the that I am MY national emblem. nothing present has to do
“All which with the whereabouts delegation he Big Barnett. Methinks headed the local Mose boys Palestine-for-Jews-only. He went ahead of the so new
727 This Court reverse should not the judgment below ground that some case the other statute may ap- be plied a is way repugnant the freedom of the by the press protected Fourteenth Amendment. Castillo McConnico, 168 680. Williams Missis- 674, v. U. S. v.
sippi, 225. Yazoo & Miss. R. Co. v. Jack- 170 U. 213, S. Vinegar Co., son U. 219-220. Plymouth Coal S. Pennsylvania, Co. U. S. 531, 544-546. requires
This record Court consider the statute to the of publishing as business articles that applied are malicious, in fact scandalous and defamatory. “ who provides statute shall person in the business of engaged regularly or customarily pro- a publishing circulating” ducing, maga- newspaper, (a) other periodical zine or lewd “obscene, and (b) “malicious, scandalous and lascivious” defama- fixing with the Yiddish police get a chief of could do little and lie cent, gambling Boys twenty-five per rake-off. his will be ‘ ’ ganefs.” boys ganefs and will be “ GRAND JURIES AND DITTO. grand grand juries, juries. there are are There The last grand jury. present It acted. The was a real one is like the
one * good. means who is labelled Junior.’ That not so scion There are mighty good on are a folks it—there some who smell bad. few One graft peanut politician pitiful whose was almost petty in its size public official, already has when he was a shot his mouth oil in establishing his plaees. He is alibi in advance what for he several taking place. keep from intends to you. [Meaning George, grand juror.] bother
“But we won’t a gambling syndicate waiting aware that your We are body big game crap opened again. to convene before the your always dimensions, apparently, go by Yids had we judgment dog appraising of a people. jury grand call a special special prosecutor will
“We time, as half navigate within short soon of the staff can you then advantage, grand jury we’ll show what real can do. merely Up present tapping we have been on the window. Yery smashing glass.” soon we shall start ” enjoined be pro- a nuisance
tory guilty observed that the qualifying the Act. It will be vided *27 In actions conjunctively. brought are used under words (b) there shall available the defense that truth the justifiable was with and for ends.” good motives published The that defendants were complaint charges engaged in the business of regularly customarily publishing and ” “ malicious, defamatory scandalous and newspapers dated Saturday Press, as the anil nine editions known on respectively Saturday commencing September each were made a ending 19, 1927, part and November the These are all that were complaint. published. the district court appeal
On from order of over- the demurrer to the the state ruling complaint defendants’ (174 770): Minn. 219 N. W. supreme 461; court said “ The constituent elements of the declared nuisance are customary the and dissemination means regular families, reaching which into way its newspaper finds of a of scandalous mature, as well as the selection young defamatory articles treated such as way and to command to excite attention and interest so circu- is not directed at threatened lation. . . . statute which, generally business existing speak- libel but at an than The distribution of scan- involves more libel. ing, morals and to the matter is detrimental to public dalous general It of the peace welfare. tends disturb community. defamatory malicious, tends Being of crime. It has assaults and commission provoke truth, good with publication no concern with In no justifiable ... Minnesota motives and ends. n hush the sincere and honest voice press; can agency n malice, protect constitution was never intended to but our when untrue or published defamation .scandal justifiable ends. ... It motives or without bad intention of constitution to afford protec- never tion defama- to a devoted scandal and publication before stand us the record tion. . . . Defendants being engaged in a business regularly customarily mali- conducting sending newspaper cious, defamatory printed matter.” scandalous remanded to the district case was court. to excuse allegations justify
Near’s answer made no formally articles of. It complained business or the were scandalous malicious,, denied publications were they admitted that made as defamatory, alleged, At attacked statute as unconstitutional. unquestionably trial evidence suffi- introduced plaintiff The defendant support complaint. cient offered *28 found the the com- alleged court facts as none. chiefly edition plaint specifically and that each “was ” defamatory articles malicious, scandalous and devoted to malicious, and was devoted chiefly that the last edition Leach defamatory concerning scandalous and articles law (representative Davis of the Minneapolis), of (mayor (chief Brunskill enforcement of league citizens), Jewish race and attorney), (county Olson police), serving court; that grand jury members then through in and publications defendants the several that “ in the business of and engage regularly did thereby circulating a and ma- customarily producing, publishing defamatory and licious, newspaper.” scandalous again supreme Near appealed Defendant court. (179 326) In its Minn. N. W. opinion 40; court claim is advanced that method and char- said: No newspaper question operation acter of was if the statute is constitutional. a nuisance It not customarily largely devoted to malicious, regularly defamatory matter. . . . The record scandalous which we have questions, already same presents passed.”
Defendant concedes that the newspaper editions se.” per says: he complained “ “defamatory of are And in- It that never has been asserted constitution was malice, to be scandal, tended a shield for and defamation motives, when or or for un- untrue, published bad justifiable true; every ends. . . . The is contrary per- son does have a constitutional right malicious, to publish scandalous, matter defamatory though untrue, in the first motives, for-unjustifiable ends, with bad instance, he therefor though subject is to responsibility when record, the substance the ar- afterwards.” requires concession here. And regarded, ticles on the Court of the state required pass validity on that basis. law there is none here question
No was raised below and n concerning relevancy weight or burden of evidence, defense, or other the scope matters justification proof, to enforce it or the char- the judgment proceedings that may made be notwithstand- acter the publications injunction. ing suggestion that defendants is no basis for
There
or introduce
any
defense
evidence
interpose
not
may
libel
malice
case,
to them
open
would be
showing
publication
negatived by
*29
truth,
in
or that at
faith
belief of its
good
in
made
was
was justified
circumstances
it
under
time and
conduct of
on
affairs
public
comment
fair
their
such. See
duties as
in respect
officers
public
10112, 10113.
§§
Statutes,
Minnesota
Mason's
reviewable
is not
here. The
the judgment
The scope
that
it
court
was not
shows
supreme
state
of the
opinion
assignments
of er-
because defendants'
there,
reviewable
form of the judgment,
go
did not
court
in that
ror
modify
been asked to
had not
the lower court
and because
judgment.
Act was
exertion
passed
of the State’s power
re-
police,
this court is
well established rule
quired
assume,
clearly
until
made
contrary
there exists in Minnesota
of affairs
appear,
a state
justifies this
measure for the preservation of the
order of
peace and
v. Natural
good
Lindsley
State.
Co.,
York,
Carbonic Gas
61,
U. S.
79. Gitlow v. Néiv
Lowe, 281
supra,
Corporation
668-669.
Commission v.
Co.,
Young
U.
S.
438. O’Gorman
Ins.
&
Hartford
The publications themselves disclose need and pro- priety legislation. show: They In 1913 one in this Guilford, a defendant originally commenced the of a scandal called suit, publication sheet City joined the Twin 1916 Near him in the Reporter; bought later him enterprise, the services engaged out In of one Near’s acquired interest, Bevans. Bevans since, has alone with continued the others, publica- published tion. Defendants admit that they some repre- City hensible the Twin Reporter, deny articlés for blackmailing used it they personally admit purposes, their connection reason of with the paper their Bevans, did become tainted state that reputation so did use the for black- Near, paper while associated And Near says mailing purposes. that reason his interest to Bevans. he sold
In a number editions defendants charge that, Near to Bevans in 1919, sold his interest ever since City has been used blackmail, Twin Reporter and other criminal public gambling activities dominate a kind of control over officers and as well to exert of the city. and the government that, question also state
The articles when defendants to publish Saturday Press, intention their announced and that after first threatened, soon they pub- were *30 before he down and shot waylaid was lication Guilford for the pur- at hand he had which firearm could use assaults. against anticipated defending himself pose was violence and apprehended Near appears It also like There much more repel it. to not unprepared significance. City Reporter— career of the Twin long criminal arming described.by defendants—and
if it is in fact as Satur- shooting arising publication out of the and conditions, the kind serve to Press, illustrate day scandalous malicious, publishing of the business respect legislature by which state defamatory periodicals, It question. the law in moved enact was to presumably exist- conditions deal with be deemed to appropriate must in Minnesota. ing bo importance that the States shall greatest
It is of the all employ just appropriate and free to untrammeled press. liberty abuses of the prevent measures (5th ed.) Story, the Constitution Justice In his work on “ declares: Con- expounding the First Amendment which gress abridging speech shall make no law the freedom of or of the said press,” ((cid:127)§ 1880): every That secure to this amendment intended to write, print
citizen an absolute right speak, or what- ever he might without please, responsibility, public therefor, or private, supposition is a too wild to be in- man. dulged any rational This would allow be to every right citizen his destroy pleasure at the reputa- tion, and even the peace, property, personal other A man safety every might, citizen. out of mere revenge, "malice another of most accuse infamous crimes; might indignation excite against him the of all his fellow-citizens atrocious calumnies; might most disturb, his overturn, all domestic nay, peace, embit- ter his parental affections; might inflict the most distress- ing timid, punishments weak, inno- *31 and civil, political, all a man’s and prejudice cent; might rebellion, sedition, and might and stir private rights; up itself, in the wan- against government treason even of his corruption his or the heart. passions tonness of go could not on under such circumstances. society Civil obliged vengeance Men would then be to resort to private law; make and assassina- up to the deficiencies be with all savage perpetrated tion and cruelties would belonging to barbarous and brutal com- frequency then, munities. of this plain, language It no than man imports every amendment more shall his right write, print have a speak, opinions any subject whatsoever, restraint, without so prior injure any he does other in his always person and so rights, person, reputation; always property, thereby that he does not disturb the or at- peace, subvert tempt government. It is neither nor more than expansion great less an doctrine recently into brought libel, every the law of man operation shall liberty publish true, good at what mo- justifiable tives and with this ends. And reasonable right limitation is not only itself, it but it is an inesti- government. mable free privilege a such Without limitation, might scourge become of the republic, denouncing first principles liberty, then, rendering most virtuous odious patriots through .the terrors of the introducing press, despotism in its worst added.) form.” (Italicizing Court quotes Blackstone in support of con- its
demnation of statute imposing previous restraint But upon publication. the previous restraints referred subjected him press to the arbitrary will of an administrative officer. He the practice (Book describes IV, 152): “To p. subject press to the restrictive power of licenser, as was formerly done, both before the revolution since 1688], is to subject all [of free- make man, of one to the prejudices of sentiment
dom of all controverted judge infallible arbitrary and him the religion, government."2 learning, points *32 by Blackstone alluded to history gives the Story (§ 1882): introduction, we after its
“The art of soon printing in in as other England well told, looked as upon, are subject state, a matter of .countries, merely in regulated was, therefore, the crown. It coercion of char- by king’s proclamations, prohibitions, the England the decrees licenses, finally by of privilege, ters num- Star-Chamber, of which limited the the of Court which each presses employ, ber and of should printers ap- unless previously new publications, and prohibited odi- On the demolition of this by proper licensers. proved Long in the Parliament of Charles jurisdiction, 1641, ous with that Eirst, rupture after their assumed prince, the Star-Chamber exercised with same which powers during licensing books; Commonwealth respect to love of (such frailty power human and the even in their they issued ordinances republics!) purpose, that a Star-Chamber decree of founded 1637. principally Second, Charles the After restoration a statute on with subject was some passed, copied, the same few al- terations, from the ordinances. parliamentary The act and was revived 1679, and continued for expired a few Many revolution 1688. years attempts after were to keep it in government but force; made it was History England, May, c. IX. Duniway, Constitutional Free- Massachusetts, cc. I and Press II. dom of the Cooley, Constitu- ed.) (8th II, pp. Pound, Equitable Vol. 880-881. tional Limitations Defamation, 640, L. against seq. 29 Harv. Rev. 650 et Relief Madi- Writings (1865 ed.) IV, pp. 542, and Other Vol. son, Letters 543. 319, Respublica Oswald, Rawle, 325. Dall. A View of the (2d 1829) p. Paterson, ed. Liberty of Press, Constitution m. c. strongly expired so resisted Parliament and has never been since revived.” plain taught
It is Blackstone that under com- law liberty press mon means simply absence restraint upon publication distinguished advance criminal, from liability, improper civil or for libelous or published. matter so defined And, shown, Story as above freedom of the press guaranteed by the First Amendment to mean every man shall be at liberty publish true, good justifiable what motives ends.” His statement concerned definite declaration of the suggested First It is not freedom Amendment. press protected by included in the the Four- liberty teenth Amendment, adopted Story’s which was after *33 definition, is greater against congres- than protected sional And 2 Cooley’s action. see Constitutional Limita- ed., p. (14th 8th tions, ed.) 886. Commentaries Kent’s XXIV, Lect. 17. p.
The Minnesota statute does operate previous on restraint within publication the proper meaning con- phrase. It does not authorize administrative trol in advance such formerly by as was exercised licensers and censors but to be prescribes remedy en- in a suit by forced In this case there was equity. previ- publication ous made the course business regularly producing scandalous and malicious, defama- The business and tory periodicals. publications unques- constitute an abuse of the tionably right of press. free denounces done things statute aas nuisance on stated ground, by supreme the state court, they good threaten order. morals, peace There nois power' of the question State to denounce such The restraint authorized transgressions. is only re- continuing do what been spect adjudged has duly to constitute a nuisance. controlling words are “All of such nuisance persons guilty may be as here- enjoined, nuisance is such any Whenever . . . provided. inafter ” may in the name State an action committed ... or enjoin person persons perpetually be brought nuisance, maintaining any such conducting, or committing, maintaining committing, conducting or from further order . . The court make its nuisance. . may such . . . defendants enjoining permanently and judgment continuing from or committing . . guilty found . such by judgment, in and hereby, and prohibited acts .” There wholly nuisance abated. . such . publica purporting prohibit the statute3 (nothing not been to constitute nui adjudged that have tions suggest similarity It fanciful between sance. of the decree authorized granting by or enforcement publication of prevent statute to scan malicious, further previous restraint defamatory articles and the dalous licensers as referred to Blackstone press history in the of the times to which he and described alludes. § individual, an Any person who, as or as a member or em organization, firm, officer, or association or or as an
ployee of a direc employee corporation, engaged of a shall be tor, member or in the regularly customarily producing, or publishing business of circulat or having possession, selling giving away. ing, obscene, (a) newspaper, lewd and lascivious magazine, an other *34 or periodical,
(b) malicious, defamatory newspaper, a scandalous and magazine, perodical, other or persons guilty nuisance, of such nuisance guilty may and all is provided. enjoined, hereinafter be as
[*] [*] [*] [*] (b) brought above, shall under there be In actions available the published good the truth motives defense and for justifiable plaintiff and in such actions the shall not ends have the periodicals right report taking to issues or editions of to [resort] place than three months before the commencement of the more action. any nuisance is committed or kept, such main- 2. Whenever § provided for, County Attorney any or as above tained, exists, (a) seems concede opinion to that under clause the Minnesota law the business of regularly publishing circulating may and an obscene periodical enjoined be It distinction, nuisance. to is difficult' perceive any having any relation to constitutionality, between clause (a) (b) and clause under which this action was brought. Both nuisances are morals, offensive to good order and government. As that from resulting publications lewd constitutionally may enjoined be it is hard to understand why the from regular one business of resulting malicious defamation may not.
It is well known, as supreme found the state court, that existing libel inadequate laws are to effectively sup- press evils from resulting the kind of pub- business and lications that are shown this case. The doctrine measures such as one before us are invalid because they operate restraints previous infringe freedom press exposes peace good and order of every commu- nity every business affairs of private indi- protracted vidual to constant and false and malicious county periodical any published where may such or circulated . . . commence and maintain in the District Court of county, said an action in the name of perpetually the State Minnesota ... enjoin persons person committing, conducting maintaining or or any committing, conducting, from further or nuisance, such maintain- ing any such nuisance. . . . may brought trial and The action be tried as in the case § Court, governed by actions in such District shall be
other injunctions. applicable to actions practice procedure civil may judgment permanently its order and trial the court make After guilty violating enjoining any and all defendants found this Act committing continuing prohibited hereby, acts from further or wholly nuisance by such such abated. judgment, in and contempt, may, punish, court as in other cases of at time by imprisonment $1,000, jail county of not more than or in the fine any person persons violating any months, more than twelve temporary injunction, permanent, made pursuant or issued Act. *35 pur- have who publisher insolvent
assaults into ef- put to contrive capacity sufficient pose blackmail oppression, program a scheme fect extortion. be affirmed. judgment should McReyn- Justice Devanter, Mr. Van Justice Mr. in this concur
olds, Justice Sutherland and Mr. opinion. COM TRUST EQUITABLE STATES v.
UNITED YORK PANY NEW OF et al. 2, 1, 1931. Argued December 1930. Decided June
No.