Essay Sample on Prior Restraint: Near vs. Minnesota (1931)

Introduction:

Prior to the case, Near vs. Minnesota (1931) the government practiced prior restraint with public records, publications and broadcasts that was deemed defaming or harmful. In several instances, such as the Sedition Act of 1798, the House “permitted the deportation, fine, or imprisonment of anyone deemed a threat or publishing ‘false, scandalous, or malicious writing’ against the government of the United States” (The Sedition Act of 1798 | US House of Representatives: History, Art & Archives). This form of prior restraint occurred once again, with the Sedition Act of 1918, in which Woodrow Wilson prohibited any slanderous content during World War I. In this case, Near vs. Minnesota, Minneapolis officials obtained an injunction for Jay Near, a newspaper editor, who claimed that they were associated with gangsters in a print, were known to take bribes, and made several claims that the governor was incompetent. He worked for The Saturday Press, which openly made accusations that “gangsters controlled gambling in Minneapolis and bootlegging and racketeering were allowed to flourish because government and police officials were not doing their jobs” (JEM First Amendment Project).

Literature Review:

Prior to this case, Minnesota had a law that subjected newspapers across the state to approval from officials before they were allowed to publish. In this case, the state court was in favor of the city officials and ordered that Jay Near was to end his publication. Local authorities filed suit against Jay Near, claiming that his words were of “’nuisance or ‘undesirable’ publications” (JEM First Amendment Project). In the judge’s final decision, it was made clear that the publications were to be taken down. The judge also told Near that he could “publish if he could convince the court that he would run a newspaper without objectionable content” (JEM First Amendment Project). The main concept that is taken from this case is prior restraint. According to Legal Information Institute, “It may be a statute or regulation that requires a speaker to acquire a permit or license before speaking. Prior restraint can also be a judicial injunction that prohibits certain speech. There is a third way, in which the government outright prohibits a certain type of speech” (Legal Information Institute). When Near appealed the decision to the Supreme Court, they ultimately decided that the former statute was “unconstitutional.” The Supreme Court stated that prior restraint is unconstitutional (Cornell Law, “Near v. Minnesota (1931)). However, in some instances, prior restraint may be considered. This brings up a difficult debate with freedom of speech and the 1st Amendment. (Hein Online). This was a landmark case that has impacted government control over media outlets across the US. This ultimately paved the way for U.S. Supreme Court decisions forever.

Analysis:

The ethical concepts within this case is what make it so groundbreaking. Near vs. Minnesota helped pave the way for freedom of speech and the debate of prior restraint. A book from Washington State University titled, “Dramatic Story of Near v. Minnesota Relates Growth or Press Freedom,” helped me better understand the extent of this monumental case. In the text, it was stated that, “Near was so persistent in his attacks on the police and Hennepin County Attorney Floyd B. Olson went to court to close the Saturday Press under the Minnesota Public Nuisance Law of 1925” (Heuterman 1981). One interesting aspect of this case was the decision that prior restraint is acceptable in some instances. To think that only a few years before, President Woodrow Wilson, forced Sedition Laws onto all publications during World War I. President Woodrow Wilson, “in conjunction with congressional leaders and influential newspapers of the era, urged passage of the Sedition Act in the midst of U.S. involvement in World War I. Wilson was concerned about the country’s diminishing morale and looking for a way to clamp down on growing and widespread disapproval of the war and the military draft that had been instituted to fight it” (Boyd, 2014). It was also outlined, by the Bill of Rights Institute, that in the first case against Jay Near, the Court held that, “prior restraint on publication in Minnesota was the ‘essence of censorship’ and the heart of what the First Amendment was designed to prevent. Even in cases where printed statements could be punished after the fact, neither federal nor state governments could stop the publication of materials in advance” (Bill of Rights Institute). I find this fact interesting, as we always hear the statement, “Freedom of speech,” in arguments surrounding controversial opinions. What makes it more tremendous is that we still use aspects from this case today. (Foster, 2009). Any form of defamation/libelous content is something that a person, especially a city official, can sue over. In the first trial, I agree with the decision that Near was in the wrong. However, I also agree that prior restraint can be excessive in some situations.

Conclusion:

Near vs. Minnesota was a monumental case surrounding the issues of free speech, defamation, and reputation. Because of this case, we now use principles of prior restraint to discuss freedom of speech in cases. Throughout our history, freedom of speech has always been a subject at large, as well as a highly controversial topic. We see cases of defamation and libelous content in several forms, especially with the introduction of media formats and platforms. These platforms are a gateway for debate about the First Amendment, which ties us back to the decision made in Near vs. Minnesota. Through research, I was able to form my own opinions on prior restraint and defamation, as well as learn more about the principles that allow us to publicly voice our opinions.

References

About. HeinOnline. (2021, March 8). Retrieved March 25, 2022, from https://heinonline.org/HOL/LandingPage?handle=hein.journals%2Fmercer52&div=50&id=&page= 

Boyd, C. L. (2014). Sedition Act of 1918. Mtsu.edu. https://www.mtsu.edu/first-amendment/article/1239/sedition-act-of-1918

Foster, J. C. (2009). Near v. Minnesota. Retrieved March 25, 2022, from https://www.mtsu.edu/first-amendment/article/504/near-v-minnesota 

Garza, M., Walck, P., & Sweeney, M. S. (1981). Journalism History. Retrieved March 25, 2022, from https://www.proquest.com/openview/4d692389ebc609415efbf67ba5ddcf23/1?pq-origsite=gscholar&cbl=1821075 

Legal Information Institute. (n.d.). Near v. Minnesota. Legal Information Institute. Retrieved March 25, 2022, from https://www.law.cornell.edu/supremecourt/text/283/697&lang=en 

Near v. Minnesota (1931). Bill of Rights Institute. (n.d.). Retrieved March 25, 2022, from https://billofrightsinstitute.org/e-lessons/near-v-minnesota-1931 

Near v. Minnesota, 683 U.S. 697 (1931). (2012, July 15). JEM First Amendment Project. https://firstamendment.cci.utk.edu/content/near-v-minnesota-683-us-697-1931.html

Prior Restraint. (n.d.). LII / Legal Information Institute. https://www.law.cornell.edu/wex/prior_restraint

The Sedition Act of 1798 | US House of Representatives: History, Art & Archives. (n.d.). History.house.gov. https://history.house.gov/Historical-Highlights/1700s/The-Sedition-Act-of-1798/#:~:text=In%20one%20of%20the%20first.