Judge pondering the 1st amendment

Prior Restraint

In the context of free speech law, “prior restraint” is “government censorship of speech before publication.” Can the government stop you from saying or publishing certain things before you say them? The U.S. Supreme Court considered that question in the case Near v. Minnesota in 1931. How do you think the court ruled? Click the button below to read the case or scroll for a summary to find the answer.

Near v. Minnesota

Judge pondering the 1st amendment

Background: In 1925, Minnesota passed a statute, known as a “gag law,” permitting the county attorney, the attorney general, or any citizen acting in behalf of the county attorney, to begin proceedings in district court for a temporary restraining order against the publication of any periodical thought to be "obscene, lewd, and lascivious" or "malicious, scandalous, and defamatory." Then a judge, acting without a jury, could determine if the periodical should be permanently stopped from future publication.

Facts: In 1925 Jay Near, an editor of a Minneapolis newspaper The Saturday Press, was stopped from publishing the paper on the basis of the Minnesota gag law. Near had regularly printed stories devoted to sensational news and “exposé” reports on police and government corruption in Minnesota.

The prosecutor, Floyd Olson, sought a permanent injunction against The Saturday Press on the grounds that it violated the law with its malicious, scandalous, and defamatory content. He received a temporary injunction after an initial hearing. At a subsequent formal hearing, Near was required to show cause for why he should not be permanently prevented from publishing the newspaper.

The Minnesota Supreme Court upheld both the temporary injunction and the subsequent permanent injunction. Near appealed to the U.S. Supreme Court.

Court Ruling: In a 5-4 decision, the Court issued a strong prohibition against prior restraints or government censorship. According to the majority, government officials are not allowed to regulate speech before it reaches the public. Chief Justice Charles Hughes authored the majority opinion, holding:

Judge pondering the 1st amendment.

This statute . . . raises questions of grave importance transcending the local interests involved in the particular action. It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion of state action.

In fact, said Chief Justice Hughes, "it is the chief purpose of the guaranty [of a free press] to prevent previous restraints upon publication." Chief Justice Hughes did admit that the ban on prior restraints was not unlimited. In some situations, such as when speech is obscene, incites violence, or reveals military secrets, the government might be able to justify a prior restraint.

Speaking for the four dissenters, Justice Pierce Butler argued that the decision would put unprecedented restrictions on states, which had traditionally used their police powers to promote public welfare. Prohibiting publication of scandalous or defamatory claims such as those allegedly published by The Saturday Press surely fell within this scope.


Content from American Bar Association, “Free Press and SCOTUS: Incorporating Case Studies in the Classroom,” Law Day 2019 Planning Guide, available at https://www.americanbar.org/groups/public_education/law-day/law-day-2019/planning-guide/High-school-lesson-plans/