Near v. Minnesota/Dissent Butler
MR. JUSTICE BUTLER, dissenting.
The decision of the Court in this case declares Minnesota and every other State powerless to restrain by injunction the business of publishing and circulating among the people malicious, scandalous and defamatory periodicals that in due course of judicial procedure has been adjudged to be a public nuisance. It gives to freedom of the press a meaning and a scope not heretofore recognized, and construes "liberty" in the due process clause of the Fourteenth Amendment to put upon the States a federal restriction that is without precedent.
Confessedly, the Federal Constitution, prior to 1868, when the Fourteenth Amendment was adopted, did not protect the right of free speech or press against state action. Barron v. Baltimore, 7 Peters 243, 250. Fox v. Ohio, 5 How. 410, 434. Smith v. Maryland, 18 How. 71, 76. Withers v. Buckley, 20 How. 84, 89-91. Up to that time, the right was safeguarded solely by the constitutions and laws of the States, and, it may be added, they operated adequately to protect it. This Court was not called on until 1925 to decide whether the "liberty" protected by the Fourteenth Amendment includes the right of free speech and press. That question has been finally answered [p724] in the affirmative. Cf. Patterson v. Colorado, 205 U.S. 454, 462. Prudential Ins. Co. v. Cheek, 259 U.S. 530, 538, 543. See Gitlow v. New York, 268 U.S. 652. Fiske v. Kansas, 274 U.S. 380. Stromberg v. California, ante, p. 359.
The record shows, and it is conceded, that defendants' regular business was the publication of malicious, scandalous and defamatory articles concerning the principal public officers, leading newspapers of the city, many private persons and the Jewish race. It also shows that it was their purpose at all hazards to continue to carry on the business. In every edition, slanderous and defamatory matter predominates to the practical exclusion of all else. Many of the statements are so highly improbable as to compel a finding that they are false. The articles themselves show malice. [n1] [p725]
The defendant here has no standing to assert that the statute is invalid because it might be construed so as to violate the Constitution. His right is limited solely to [p726] the inquiry whether, having regard to the point properly raised in his case, the effect of applying the statute is to deprive him of his liberty without due process of law. [p727] This Court should not reverse the judgment below upon the ground that, in some other case, the statute may be applied in a way that is repugnant to the freedom of the press protected by the Fourteenth Amendment. Castillo v. McConnico, 168 U.S. 674, 680. Williams v. Mississippi, 170 U.S. 213, 225. Yazoo & Miss. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219-220. Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 544-546.
This record requires the Court to consider the statute as applied to the business of publishing articles that are, in fact, malicious, scandalous and defamatory.
The statute provides that any person who "shall be engaged in the business of regularly or customarily producing, publishing or circulating" a newspaper, magazine or other periodical that is (a) "obscene, lewd and lascivious" or (b) "malicious, scandalous and defamatory" [p728] is guilty of a nuisance, and may be enjoined as provided in the Act. It will be observed that the qualifying words are used conjunctively. In actions brought under (b) "there shall be available the defense that the truth was published with good motives and for justifiable ends."
The complaint charges that defendants were engaged in the business of regularly and customarily publishing "malicious, scandalous and defamatory newspapers" known as the Saturday Press, and nine editions dated respectively on each Saturday commencing September 25 and ending November 19, 1927, were made a part of the complaint. These are all that were published.
On appeal from the order of the district court overruling defendants' demurrer to the complaint, the state supreme court said (174 Minn. 457, 461, 219 N.W. 770):
The constituent elements of the declared nuisance are the customary and regular dissemination by means of a newspaper which finds its way into families, reaching the young as well as the mature, of a selection of scandalous and defamatory articles treated in such a way as to excite attention and interest so as to command circulation. . . . The statute is not directed at threatened libel, but at an existing business which, generally speaking, involves more than libel. The distribution of scandalous matter is detrimental to public morals and to the general welfare. It tends to disturb the peace of the community. Being defamatory and malicious, it tends to provoke assaults and the commission of crime. It has no concern with the publication of the truth, with good motives and for justifiable ends. . . . In Minnesota no agency can hush the sincere and honest voice of the press; but our constitution was never intended to protect malice, scandal and defamation when untrue or published with bad motives or without justifiable ends. . . . It was never the intention of the constitution to afford protection [p729] to a publication devoted to scandal and defamation. . . . Defendants stand before us upon the record as being regularly and customarily engaged in a business of conducting a newspaper sending to the public malicious, scandalous and defamatory printed matter.
The case was remanded to the district court.
Near's answer made no allegations to excuse or justify the business or the articles complained of. It formally denied that the publications were malicious, scandalous or defamatory, admitted that they were made as alleged, and attacked the statute as unconstitutional. At the trial, the plaintiff introduced evidence unquestionably sufficient to support the complaint. The defendant offered none. The court found the facts as alleged in the complaint, and, specifically, that each edition "was chiefly devoted to malicious, scandalous and defamatory articles" and that the last edition was chiefly devoted to malicious, scandalous and defamatory articles concerning Leach (mayor of Minneapolis), Davis (representative of the law enforcement league of citizens), Brunskill (chief of police), Olson (county attorney), the Jewish race, and members of the grand jury then serving in that court; that defendants, in and through the several publications,
did thereby engage in the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper.
Defendant Near again appealed to the supreme court. In its opinion (179 Minn. 40, 228 N.W. 326), the court said:
No claim is advanced that the method and character of the operation of the newspaper in question was not a nuisance if the statute is constitutional. It was regularly and customarily devoted largely to malicious, scandalous and defamatory matter. . . . The record presents the same questions, upon which we have already passed. [p730]
Defendant concedes that the editions of the newspaper complained of are "defamatory per se," and he says:
It has been asserted that the constitution was never intended to be a shield for malice, scandal, and defamation when untrue, or published with bad motives, or for unjustifiable ends. . . . The contrary is true; every person does have a constitutional right to publish malicious, scandalous, and defamatory matter though untrue, and with bad motives, and for unjustifiable ends, in the first instance, though he is subject to responsibility therefor afterwards.
The record, when the substance of the articles is regarded, requires that concession here. And this Court is required to pass on the validity of the state law on that basis.
No question was raised below, and there is none here, concerning the relevancy or weight of evidence, burden of proof, justification or other matters of defense, the scope of the judgment or proceedings to enforce it, or the character of the publications that may be made notwithstanding the injunction.
There is no basis for the suggestion that defendants may not interpose any defense or introduce any evidence that would be open to them in a libel case, or that malice may not be negatived by showing that the publication was made in good faith in belief of its truth, or that, at the time and under the circumstances, it was justified as a fair comment on public affairs or upon the conduct of public officers in respect of their duties as such. See Mason's Minnesota Statutes, §§ 10112, 10113.
The scope of the judgment is not reviewable here. The opinion of the state supreme court shows that it was not reviewable there, because defendants' assignments of error in that court did not go to the form of the judgment, and because the lower court had not been asked to modify the judgment. [p731]
The Act was passed in the exertion of the State's power of police, and this court is, by well established rule, required to assume, until the contrary is clearly made to appear, that there exists in Minnesota a state of affairs that justifies this measure for the preservation of the peace and good order of the State. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 79. Gitlow v. New York, supra, 668-669. Corporation Commission v. Lowe, 281 U.S. 431, 438. O'Gorman & Young v. Hartford Ins. Co., 282 U.S. 251, 257-258.
The publications themselves disclose the need and propriety of the legislation. They show:
In 1913 one Guilford, originally a defendant in this suit, commenced the publication of a scandal sheet called the Twin City Reporter; in 1916, Near joined him in the enterprise, later bought him out and engaged the services of one Bevans. In 1919, Bevans acquired Near's interest, and has since, alone or with others, continued the publication. Defendants admit that they published some reprehensible articles in the Twin City Reporter, deny that they personally used it for blackmailing purposes, admit that, by reason of their connection with the paper their reputation did become tainted, and state that Bevans, while so associated with Near, did use the paper for blackmailing purposes. And Near says it was for that reason he sold his interest to Bevans.
In a number of the editions, defendants charge that, ever since Near sold his interest to Bevans in 1919, the Twin City Reporter has been used for blackmail, to dominate public gambling and other criminal activities, and as well to exert a kind of control over public officers and the government of the city.
The articles in question also state that, when defendants announced their intention to publish the Saturday Press, they were threatened, and that, soon after the first publication, [p732] Guilford was waylaid and shot down before he could use the firearm which he had at hand for the purpose of defending himself against anticipated assaults. It also appears that Near apprehended violence, and was not unprepared to repel it. There is much more of like significance.
The long criminal career of the Twin City Reporter — if it is, in fact, as described by defendants — and the arming and shooting arising out of the publication of the Saturday Press, serve to illustrate the kind of conditions, in respect of the business of publishing malicious, scandalous and defamatory periodicals, by which the state legislature presumably was moved to enact the law in question. It must be deemed appropriate to deal with conditions existing in Minnesota.
It is of the greatest importance that the States shall be untrammeled and free to employ all just and appropriate measures to prevent abuses of the liberty of the press.
In his work on the Constitution (5th ed.), Justice Story, expounding the First Amendment, which declares "Congress shall make no law abridging the freedom of speech or of the press," said (§ 1880):
That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print whatever he might please, without any responsibility, public or private, therefor is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy at his pleasure the reputation, the peace, the property, and even the personal safety of every other citizen. A man might, out of mere malice and revenge, accuse another of the most infamous crimes; might excite against him the indignation of all his fellow citizens by the most atrocious calumnies; might disturb, nay, overturn, all his domestic peace, and embitter his parental affections; might inflict the most distressing punishments upon the weak, the timid, and the innocent; [p733] might prejudice all a man's civil, and political, and private rights, and might stir up sedition, rebellion, and treason even against the government itself in the wantonness of his passions or the corruption of his heart. Civil society could not go on under such circumstances. Men would then be obliged to resort to private vengeance to make up for the deficiencies of the law, and assassination and savage cruelties would be perpetrated with all the frequency belonging to barbarous and brutal communities. It is plain, then, that the language of this amendment imports no more than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation, and so always that he does not thereby disturb the public peace or attempt to subvert the government. It is neither more nor less than an expansion of the great doctrine recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. And, with this reasonable limitation, it is not only right in itself, but it is an inestimable privilege in a free government. Without such a limitation, it might become the scourge of the republic, first denouncing the principles of liberty and then, by rendering the most virtuous patriots odious through the terrors of the press, introducing despotism in its worst form.
(Italicizing added.)
The Court quotes Blackstone in support of its condemnation of the statute as imposing a previous restraint upon publication. But the previous restraints referred to by him subjected the press to the arbitrary will of an administrative officer. He describes the practice (Book IV, p. 152):
To subject the press to the restrictive power of a licenser, as was formerly done both before and since the revolution [of 1688], is to subject all freedom [p734] of sentiment to the prejudices of one man and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. [n2]
Story gives the history alluded to by Blackstone (§ 1882):
The art of printing, soon after its introduction, we are told, was looked upon, as well in England as in other countries, as merely a matter of state, and subject to the coercion of the crown. It was, therefore, regulated in England by the king's proclamations, prohibitions, charters of privilege, and licenses, and finally by the decrees of the Court of Star-Chamber, which limited the number of printers and of presses which each should employ, and prohibited new publications unless previously approved by proper licensers. On the demolition of this odious jurisdiction, in 1641, the Long Parliament of Charles the First, after their rupture with that prince, assumed the same powers which the Star-Chamber exercised with respect to licensing books, and during the Commonwealth (such is human frailty and the love of power even in republics), they issued their ordinances for that purpose, founded principally upon a Star-Chamber decree of 1637. After the restoration of Charles the Second, a statute on the same subject was passed, copied, with some few alterations, from the parliamentary ordinances. The act expired in 1679, and was revived and continued for a few years after the revolution of 1688. Many attempts were made by the government to keep it in force, but it was [p735] so strongly resisted by Parliament that it expired in 1694, and has never since been revived.
It is plain that Blackstone taught that, under the common law liberty of the press means simply the absence of restraint upon publication in advance as distinguished from liability, civil or criminal, for libelous or improper matter so published. And, as above shown, Story defined freedom of the press guaranteed by the First Amendment to mean that "every man shall be at liberty to publish what is true, with good motives and for justifiable ends." His statement concerned the definite declaration of the First Amendment. It is not suggested that the freedom of press included in the liberty protected by the Fourteenth Amendment, which was adopted after Story's definition, is greater than that protected against congressional action. And see 2 Cooley's Constitutional Limitations, 8th ed., p. 886. 2 Kent's Commentaries (14th ed.) Lect. XXIV, p. 17.
The Minnesota statute does not operate as a previous restraint on publication within the proper meaning of that phrase. It does not authorize administrative control in advance such as was formerly exercised by the licensers and censors but prescribes a remedy to be enforced by a suit in equity. In this case, there was previous publication made in the course of the business of regularly producing malicious, scandalous and defamatory periodicals. The business and publications unquestionably constitute an abuse of the right of free press. The statute denounces the things done as a nuisance on the ground, as stated by the state supreme court, that they threaten morals, peace and good order. There is no question of the power of the State to denounce such transgressions. The restraint authorized is only in respect of continuing to do what has been duly adjudged to constitute a nuisance. The controlling words are
All persons guilty of such nuisance may be enjoined, as hereinafter [p736] provided. . . . Whenever any such nuisance is committed . . . , an action in the name of the State
may be brought
to perpetually enjoin the person or persons committing, conducting or maintaining any such nuisance, from further committing, conducting or maintaining any such nuisance. . . . The court may make its order and judgment permanently enjoining . . . defendants found guilty . . . from committing or continuing the acts prohibited hereby, and in and by such judgment, such nuisance may be wholly abated. . . .
There is nothing in the statute [n3] purporting to prohibit publications that have not been adjudged to constitute a nuisance. It is fanciful to suggest similarity between the granting or enforcement of the decree authorized by this statute to prevent further publication of malicious, scandalous and defamatory articles and the previous restraint upon the press by licensers as referred to by Blackstone and described in the history of the times to which he alludes. [p737]
The opinion seems to concede that, under clause (a) of the Minnesota law, the business of regularly publishing and circulating an obscene periodical may be enjoined as a nuisance. It is difficult to perceive any distinction, having any relation to constitutionality, between clause (a) and clause (b) under which this action was brought. Both nuisances are offensive to morals, order and good government. As that resulting from lewd publications constitutionally may be enjoined, it is hard to understand why the one resulting from a regular business of malicious defamation may not.
It is well known, as found by the state supreme court, that existing libel laws are inadequate effectively to suppress evils resulting from the kind of business and publications that are shown in this case. The doctrine that measures such as the one before us are invalid because they operate as previous restraints to infringe freedom of press exposes the peace and good order of every community and the business and private affairs of every individual to the constant and protracted false and malicious [p738] assaults of any insolvent publisher who may have purpose and sufficient capacity to contrive and put into effect a scheme or program for oppression, blackmail or extortion. The judgment should be affirmed.
MR. JUSTICE VAN DEVANTER, MR. JUSTICE McREYNOLDS, and MR. JUSTICE SUTHERLAND concur in this opinion.
1. The following articles appear in the last edition published, dated November 19, 1927:
FACTS NOT THEORIES
"I am a bosom friend of Mr. Olson," snorted a gentleman of Yiddish blood, "and I want to protest against your article," and blah, blah, blah, ad infinitum, ad nauseam.
I am not taking orders from men of Barnett's faith, at least right now. There have been too many men in this city and especially those in official life, who HAVE been taking orders and suggestions from JEW GANGSTERS, therefore we HAVE Jew Gangsters, practically ruling Minneapolis.
It was buzzards of the Barnett stripe who shot down my buddy. It was Barnett gunmen who staged the assault on Samuel Shapiro. It is Jew thugs who have "pulled" practically every robbery in this city. It was a member of the Barnett gang who shot down George Rubenstein (Ruby) while he stood in the shelter of Mose Barnett's ham-cavern on Hennepin avenue. It was Mose Barnett himself who shot down Roy Rogers on Hennepin avenue. It was at Mose Barnett's place of "business" that the "13 dollar Jew" found a refuge while the police of New York were combing the country for him. It was a gang of Jew gunmen who boasted that, for five hundred dollars, they would kill any man in the city. It was Mose Barnett, a Jew, who boasted that he held the chief of police of Minneapolis in his hand — had bought and paid for him.
It is Jewish men and women — pliant tools of the Jew gangster, Mose Barnett, who stand charged with having falsified the election records and returns in the Third ward. And it is Mose Barnett himself, who, indicted for his part in the Shapiro assault, is a fugitive from justice today.
Practically every vendor of vile hooch, every owner of a moonshine still, every snake-faced gangster and embryonic yegg in the Twin Cities is a JEW.
Having these examples before me, I feel that I am justified in my refusal to take orders from a Jew who boasts that he is a "bosom friend" of Mr. Olson.
I find in the mail at least twice per week letters from gentlemen of Jewish faith who advise me against "launching an attack on the Jewish people." These gentlemen have the cart before the horse. I am launching, nor is Mr. Guilford, no attack against any race, BUT:
When I find men of a certain race banding themselves together for the purpose of preying upon Gentile or Jew; gunmen, KILLERS, roaming our streets shooting down men against whom they have no personal grudge (or happen to have); defying OUR laws; corrupting OUR officials; assaulting businessmen; beating up unarmed citizens; spreading a reign of terror through every walk of life, then I say to you in all sincerity that I refuse to back up a single step from that "issue" — if they choose to make it so.
If the people of Jewish faith in Minneapolis wish to avoid criticism of these vermin whom I rightfully call "Jews," they can easily do so BY THEMSELVES CLEANING HOUSE.
I'm not out to cleanse Israel of the filth that clings to Israel's skirts. I'm out to "hew to the line, let the chips fly where they may."
I simply state a fact when I say that ninety percent of the crimes committed against society in this city are committed by Jew gangsters.
It was a Jew who employed JEWS to shoot down Mr. Guilford. It was a Jew who employed a Jew to intimidate Mr. Shapiro and a Jew who employed JEWS to assault that gentleman when he refused to yield to their threats. It was a JEW who wheedled or employed Jews to manipulate the election records and returns in the Third ward in flagrant violation of law. It was a Jew who left two hundred dollars with another Jew to pay to our chief of police just before the last municipal election, and:
It is Jew, Jew, Jew, as long as one cares to comb over the records.
I am launching no attack against the Jewish people As A RACE. I am merely calling attention to a FACT. And if the people of that race and faith wish to rid themselves of the odium and stigma THE RODENTS OF THEIR OWN RACE HAVE BROUGT UPON THEM, they need only to step to the front and help the decent citizens of Minneapolis rid the city of these criminal Jews.
Either Mr. Guilford or myself stands ready to do battle for a MAN, regardless of his race, color or creed, but neither of us will step one inch out of our chosen path to avoid a fight IF the Jews ant to battle.
Both of us have some mighty loyal friends among the Jewish people, but not one of them comes whining to ask that we "lay off" criticism of Jewish gangsters, and none of them who comes carping to us of their "bosom friendship" for any public official now under our journalistic guns.
GIIL's [Guilford's] CHATTERBOX
I headed into the city on September 26th, ran across three Jews in a Chevrolet; stopped a lot of lead, and won a bed for myself in St. Barnabas Hospital for six weeks. . . .
Whereupon I have withdrawn all allegiance to anything with a hook nose that eats herring. I have adopted the sparrow as my national bird until Davis' law enforcement league or the K.K.K. hammers the eagle's beak out straight. So if I seem to act crazy as I ankle down the street, bear in mind that I am merely saluting MY national emblem.
All of which has nothing to do with the present whereabouts of Big Mose Barnett. Methinks he headed the local delegation to the new "Palestine for Jews only." He went ahead of the boys so he could do a little fixing with the Yiddish chief of police and get his twenty-five percent of the gambling rake-off. Boys will be boys, and "ganefs" will be ganefs.
GRAND JURIES AND DITTO
There are grand juries, and there are grand juries. The last one was a real grand jury. It acted. The present one is like the scion who is labelled "Junior." That means not so good. There are a few mighty good folks on it — there are some who smell bad. One petty peanut politician whose graft was almost pitiful in its size when he was a public official has already shot his mouth off in several places. He is establishing his alibi in advance for what he intends to keep from taking place.
But George, we won't bother you. [Meaning a grand juror.] We are aware that the gambling syndicate was waiting for your body to convene before the big crap game opened again. The Yids had your dimensions, apparently, and we always go by the judgment of a dog in appraising people.
We will call for a special grand jury and a special prosecutor within a short time, as soon as half of the staff can navigate to advantage, and then we'll show you what a real grand jury can do. Up to the present, we have been merely tapping on the window. Very soon, we shall start smashing glass.
2. May, Constitutional History of England, c. IX. Duniway, Free dom of the Press in Massachusetts, cc. I and II. Cooley, Constitutional Limitations (8th ed.) Vol. II, pp. 880-881. Pound, Equitable Relief against Defamation, 29 Harv.L.Rev. 640, 650 et seq. Madison, Letters and Other Writings (1865 ed.) Vol. IV, pp. 542, 543. Respublica v. Oswald, 1 Dall. 319, 325. Rawle, A View of the Constitution (2d ed. 1829) p. 124. Paterson, Liberty of the Press, c. III.
3.
§ 1. Any person who, as an individual, or as a member or employee of a firm, or association or organization, or as an officer, director, member or employee of a corporation, shall be engaged in the business of regularly or customarily producing, publishing or circulating, having in possession, selling or giving away
(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or
(b) a malicious, scandalous and defamatory newspaper, magazine, or other periodical,
is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided.
- * * *
In actions brought under (b) above, there shall be available the defense that the truth was published with good motives and for justifiable ends and in such actions the plaintiff shall not have the right to report [resort] to issues or editions of periodicals taking place more than three months before the commencement of the action.
§ 2. Whenever any such nuisance is committed or is kept, maintained, or exists, as above provided for, the County Attorney of any county where any such periodical is published or circulated . . . may commence and maintain in the District Court of said county, an action in the name of the State of Minnesota . . . to perpetually enjoin the person or persons committing, conducting or maintaining any such nuisance, from further committing, conducting, or maintaining any such nuisance. . . .
§ 3. The action may be brought to trial and tried as in the case of other actions in such District Court, and shall be governed by the practice and procedure applicable to civil actions for injunctions.
After trial, the court may make its order and judgment permanently enjoining any and all defendants found guilty of violating this Act from further committing or continuing the acts prohibited hereby, and in and by such judgment, such nuisance may be wholly abated.
The court may, as in other cases of contempt, at any time punish, by fine of not more than $1,000, or by imprisonment in the county jail for not more than twelve months, any person or persons violating any injunction, temporary or permanent, made or issued pursuant to this Act.