Near v. Minnesota: Supreme Court Case, Arguments, Impact

The First Landmark Supreme Court Ruling on Prior Restraint

Newspaper wrapped in chains

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Near v. Minnesota was a groundbreaking case which ensured that prohibitions against prior restraint applied to states as well as the federal government. The Supreme Court used the Fourteenth Amendment to incorporate First Amendment Freedom of Press to the states.

Fast Facts: Near v. Minnesota

  • Case Argued: January 30, 1930
  • Decision Issued: June 1, 1931
  • Petitioner: Jay Near, publisher of The Saturday Press
  • Respondent: James E. Markham, Assistant Attorney General for the State of Minnesota
  • Key Questions: Did Minnesota’s injunction against newspapers and other publications violate the freedom of the press under the First Amendment?
  • Majority: Justices Hughes, Holmes, Brandeis, Stone, Roberts
  • Dissenting: Van Deventer, McReynolds, Sutherland, Butler
  • Ruling: The gag law was unconstitutional on its face. The government should not censor publications by using prior restraint even in instances where publishing certain material might land the publication in court.

Facts of the Case

In 1925, Minnesota legislators passed a law that became known publicly as the Minnesota Gag Law. As the name suggests, it allowed a judge to issue a gag order, preventing any publication from printing content that could be considered a “public nuisance.” This included content the judge believed to be obscene, lewd, lascivious, malicious, scandalous, or defamatory. The gag law was a form of prior restraint, which occurs when a government entity pro-actively prevents someone from publishing or distributing information. Under Minnesota's law, the publisher bore the burden of proving that the material was true and published with "good motives and for justifiable ends." If the publication refused to comply with the temporary or permanent injunction, the publisher could face fines of up to $1,000 or imprisonment in a county jail for up to 12 months.

The law was put to the test six years after it was enacted. On September 24, 1927, The Saturday Press, a Minneapolis newspaper, began printing articles that suggested local officials were working with gangsters known for bootlegging, gambling, and racketeering.

On November 22, 1927, the paper was served with a temporary injunction. The publisher, Jay Near, objected to the injunction on constitutional grounds, but both the Minnesota District Court and the Minnesota Supreme Court overruled his objection.

Newspapers and the American Civil Liberties Union rallied to Near’s cause during the trial, worried the success of Minnesota’s Gag Law would encourage other states to pass similar laws allowing prior restraint. Ultimately, a jury found that The Saturday Press had engaged in “the business of regularly and customarily producing, publishing and circulating a malicious, scandalous and defamatory newspaper.” Near appealed the judgment to the Minnesota Supreme Court. 

The court found in favor of the state. In his decision, Minnesota Supreme Court Chief Justice Samuel B. Wilson, noted that the state should have deference when enacting laws in the interest of protecting the public. Justice Wilson added that the permanent injunction did not prevent the paper from “operating a newspaper in harmony with the public welfare.”

Near appealed the decision to the Supreme Court. The Supreme Court evaluated the case in terms of whether or not Minnesota's Gag Law was constitutional. The court did not rule on the validity of the jury’s findings.

Constitutional Issues

Does Minnesota’s law, which allows prior restraint of “obscene, lewd, lascivious, malicious, scandalous, or defamatory” content, violate the First and Fourteenth Amendments of the U.S. Constitution?


Weymouth Kirkland argued the case for Near and The Saturday Press. He argued that First Amendment freedom of the press should apply to states. Chapter 285 of the Laws of 1925, Minnesota's Gag Law, was unconstitutional because restricted freedom of the press. The temporary and permanent injunction gave significant power to Minnesota judges, Kirkland argued. They could block publication of anything that they considered not “in harmony” with public welfare. In essence, Minnesota’s Gag Law silenced The Saturday Press, he told the court.

The State of Minnesota argued that liberty and freedom of the press were not absolute. “Liberty” protected under the Fourteenth Amendment did not allow publications to print anything unconditionally. Minnesota had enacted a law aimed at protecting the public from salacious and untruthful content. It did nothing to abridge the freedom of the press to publish truthful journalistic accounts.

Majority Opinion

Justice Charles E. Hughes delivered the 5-4 opinion. The majority declared Minnesota’s Gag Law unconstitutional. The Court used the Fourteenth Amendment’s Due Process Clause to apply First Amendment Freedom of Press to the states. The intent of this freedom, Justice Hughes wrote, was to prevent censorship in the form of prior restraint.

“Liberty of speech, and of the press, is...not an absolute right, and the State may punish its abuse,” Justice Hughes wrote. However, that punishment cannot come prior to publication of the content, Justice Hughes explained. Under Minnesota’s libel laws, the state affords anyone criminally wronged by the publication of material a way to address their frustration in court. 

Justice Hughes left the door open for some form of prior restraint in the future. The majority agreed that the government could justify prior restraint in some narrow circumstances. For example, the government might be able to make a case for prior restraint during wartime if a publication threatens to reveal military secrets.

However, Justice Hughes wrote:

“The fact that, for approximately one hundred and fifty years, there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right.”

Dissenting Opinion

Justice Pierce Butler dissented, joined by Justices Willis Van Devanter, Clark McReynolds, and George Sutherland. Justice Butler argued that the Court had overstepped in imposing First Amendment protections on the states through the Fourteenth Amendment. Justice Butler also opined that striking down Minnesota’s Gag Law would allow malicious and scandalous papers like The Saturday Press to prosper. The Saturday Press regularly published defamatory articles “concerning the principal public officers, leading newspapers of the city, many private persons, and the Jewish race.” The publication of this content, Justice Butler argued, was an abuse of free press and Minnesota’s Gag Law offered a logical and limited remedy.


Near v. Minnesota was the first ruling in which the Supreme Court addressed the legality of prior restraint under the First Amendment. The ruling laid the basis for future cases that dealt with censorship of media, and Near v. Minnesota continues to be cited as a bedrock case defending freedom of the press. In New York Times Co. v. United States, the Supreme Court’s per curiam opinion relied on Near v. Minnesota to create a “heavy presumption” against prior restraint.


  • Murphy, Paul L. “Near v. Minnesota in the Context of Historical Developments.” Minnesota Law Review, vol. 66, 1981, pp. 95–160.,
  • Near v. Minnesota, 283 U.S. 697 (1931).
  • “Near at 85: A Look Back at the Landmark Decision.” The Reporters Committee for Freedom of the Press,
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Spitzer, Elianna. "Near v. Minnesota: Supreme Court Case, Arguments, Impact." ThoughtCo, Aug. 28, 2020, Spitzer, Elianna. (2020, August 28). Near v. Minnesota: Supreme Court Case, Arguments, Impact. Retrieved from Spitzer, Elianna. "Near v. Minnesota: Supreme Court Case, Arguments, Impact." ThoughtCo. (accessed June 7, 2023).