NEAR v. STATE OF MINNESOTA
EX REL. OLSON
283 U.S. 697
Argued: January 30,
1930 Decided: June 1, 1931
[283 U.S. 697, 701]
Mr. Chief Justice HUGHES delivered the opinion of the Court.
Chapter 285 of the Session Laws of
Minnesota for the year 19251 provides for the abatement, as a public
nuisance, of a 'malicious, scandalous and defamatory news- [283 U.S. 697,
702] paper, magazine or other
periodical.' Section 1 of the act is as follows:
'Section 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.
'Participation in such business shall
constitute a commission of such nuisance and render the participant liable and
subject to the proceedings, orders and judgments provided for in this Act.
Ownership, in whole or in part, directly or indirectly, of any such periodical,
or of any stock of interest in any corporation or organization which owns the
same in whole or in part, or which publishes the same, shall constitute such
participation.
'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 (sic) to issues or editions or periodicals taking
place more than three months before the commencement of the action.'
Section 2 provides that, whenever any
such nuisance is committed or exists, the county attorney of any county where
any such periodical is published or circulated, or, in case of his failure or
refusal to proceed upon written request in good faith of a reputable citizen,
the Attorney General, or, upon like failure or refusal of the latter, any
citizen of the county, may maintain an action in the district court of the
county in the name of the state to enjoin [283 U.S. 697, 703] perpetually the persons committing or
maintaining any such nuisance from further committing or maintaining it. Upon
such evidence as the court shall deem sufficient, a temporary injunction may be
granted. The defendants have the right to plead by demurrer or answer, and the
plaintiff may demur or reply as in other cases.
The action, by section 3, is to be
'governed by the practice and procedure applicable to civil actions for
injunctions,' and after trial the court may enter judgment permanently
enjoining the defendants found guilty of violating the act from continuing the
violation, and, 'in and by such judgment, such nuisance may be wholly abated.'
The court is empowered, as in other cases of contempt, to punish disobedience
to a temporary or permanent injunction by fine of not more than $1,000 or by
imprisonment in the county jail for not more than twelve months.
Under this statute (section 1, clause
(b), the county attorney of Hennepin county brought this action to enjoin the
publication of what was described as a 'malicious, scandalous and defamatory
newspaper, magazine or other periodical,' known as The Saturday Press.
published by the defendants in the city of Minneapolis. The complaint alleged
that the defendants, on September 24, 1927, and on eight subsequent dates in
October and November, 1927, published and circulated editions of that
periodical which were 'largely devoted to malicious, scandalous and defamatory
articles' concerning Charles G. Davis, Frank W. Brunskill, the Minneapolis Tribune, the Minneapolis Journal, Melvin C. Passolt, George E. Leach, the Jewish Race, the members of
the grand jury of Hennepin county impaneled in November, 1927, and then holding
office, and other persons, as more fully appeared in exhibits annexed to the
complaint, consisting of copies of the articles described and constituting 327
pages of the record. While the complaint did not so allege, it [283 U.S. 697,
704] appears from the briefs of both
parties that Charles G. Davis was a special law enforcement officer employed by
a civic organization, that George E. Leach was mayor of Minneapolis, that Frank
W. Brunskill was its chief of police, and that Floyd B. Olson, the relator in
this action, was county attorney.
Without attempting to summarize the
contents of the voluminous exhibits attached to the complaint, we deem it
sufficient to say that the articles charged, in substance, that a Jewish
gangster was in control of gambling, bootlegging, and racketeering in Minneapolis,
and that law enforcing officers and agencies were not energetically performing
their duties. Most of the charges were directed against the chief of police; he
was charged with gross neglect of duty, illicit relations with gangsters, and
with participation in graft. The county attorney was charged with knowing the
existing conditions and with failure to take adequate measures to remedy them.
The mayor was accused of inefficiency and dereliction. On member of the grand
jury was stated to be in sympathy with the gangsters. A special grand jury and
a special prosecutor were demanded to deal with the situation in general, and,
in particular, to investigate an attempt to assassinate one Guilford, one of
the original defendants, who, it appears from the articles, was shot by
gangsters after the first issue of the periodical had been published. There is
no question but that the articles made serious accusations against the public
officers named and others in connection with the prevalence of crimes and the
failure to expose and punish them.
At the beginning of the action on
November 22, 1927, and upon the verified complaint, an order was made directing
the defendants to show cause why a temporary injunction should not issue and
meanwhile forbidding the defendants to publish, circulate, or have in their
possession any editions of the periodical from September [283 U.S. 697, 705] 24, 1927, to November 19, 1927, inclusive,
and from publishing, circulating or having in their possession, 'any future
editions of said The Saturday Press' and 'any publication, known by any other
name whatsoever containing malicious, scandalous and defamatory matter of the
kind alleged in plaintiff's complaint herein or otherwise.'
The defendants demurred to the complaint
upon the ground that it did not state facts sufficient to constitute a cause of
action, and on this demurrer challenged the constitutionality of the statute.
The district court overruled the demurrer and certified the question of
constitutionality to the Supreme Court of the state. The Supreme Court
sustained the statute (174 Minn. 457, 219 N. W. 770, 58 A. L. R. 607), and it
is conceded by the appellee that the act was thus held to be valid over the
objection that it violated not only the State Constitution, but also the
Fourteenth Amendment of the Constitution of the United States.
Thereupon the defendant Near, the
present appellant, answered the complaint. He averred that he was the sole
owner and proprietor of the publication in question. He admitted the
publication of the articles in the issues described in the complaint, but denied
that they were malicious, scandalous, or defamatory as alleged. He expressly
invoked the protection of the due process clause of the Fourteenth Amendment.
The case then came on for trial. The plaintiff offered in evidence the verified
complaint, together with the issues of the publication in question, which were
attached to the complaint as exhibits. The defendant objected to the
introduction of the evidence, invoking the constitutional provisions to which
his answer referred. The objection was overruled, no further evidence was
presented, and the plaintiff rested. The defendant then rested, without
offering evidence. The plaintiff moved that the court direct the issue of a
permanent injunction, and this was done. [283 U.S. 697, 706] The district court made findings of fact,
which followed the allegations of the complaint and found in general terms that
the editions in question were 'chiefly devoted to malicious, scandalous and
defamatory articles' concerning the individuals named. The court further found
that the defendants through these publications 'did engage in the business of
regularly and customarily producing, publishing and circulating a malicious,
scandalous and defamatory newspaper,' and that 'the said publication' 'under
said name of The Saturday Press, or any other name, constitutes a public
nuisance under the laws of the State.' Judgment was thereupon entered adjudging
that 'the newspaper, magazine and periodical known as The Saturday Press,' as a public nuisance, 'be and is hereby
abated.' The judgment perpetually enjoined the defendants 'from producing,
editing, publishing, circulating, having in their possession, selling or giving
away any publication whatsoever which is a malicious, scandalous or defamatory
newspaper, as defined by law,' and also 'from further conducting said nuisance
under the name and title of said The
Saturday Press or any other name or title.'
The defendant Near appealed from this
judgment to the Supreme Court of the State, again asserting his right under the
Federal Constitution, and the judgment was affirmed upon the authority of the
former decision. 179 Minn. 40, 228 N. W. 326. With respect to the contention
that the judgment went too far, and prevented the defendants from publishing
any kind of a newspaper, the court observed that the assignments of error did
not go to the form of the judgment, and that the lower court had not been asked
to modify it. The court added that it saw no reason 'for defendants to construe
the judgment as restraining them from operating a newspaper in harmony with the
public welfare, to which all must yield,' that the allegations of the complaint
had been [283 U.S. 697, 707] found to
be true, and though this was an equitable action defendants had not indicated a
desire 'to conduct their business in the usual and legitimate manner.'
From the judgment as thus affirmed, the
defendant Near appeals to this Court.
This statute, for the suppression as a
public nuisance of a newspaper or periodical, is unusual, if not unique, and
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 by state action. It was found impossible to conclude
that this essential personal liberty of the citizen was left unprotected by the
general guaranty of fundamental rights of person and property. Gitlow v. New York, 268 U.S. 652, 666 ,
45 S. CT. 625; Whitney v. California,
274 U.S. 357, 362 , 373 S., 47 S. Ct. 641; Fiske
v. Kansas, 274 U.S. 380, 382 , 47 S. Ct. 655; Stromberg v. California, 283 U.S. 359 , 51 S. Ct. 532, decided May
18, 1931. In maintaining this
guaranty, the authority of the state to enact laws to promote the health,
safety, morals, and general welfare of its people is necessarily administered.
The limits of this sovereign power must always be determined with appropriate
regard to the particular subject of its exercise. Thus, while recognizing the
broad discretion of the Legislature in fixing rates to be charged by those
undertaking a public service, this Court has decided that the owner cannot
constitutionally be deprived of his right to a fair return, because that is
deemed to be of the essence of ownership. Railroad
Commission Cases, 116 U.S. 307, 331, 6 S. Ct. 334, 388, 1191; Northern Pacific Railway Company v. North
Dakota, 236 U.S. 585, 596, 35 S. Ct. 429, L. R. A. 1917F, 1148 Ann. Cas.
1916A, 1. So, while liberty of contract is not an absolute right, and the wide
field of activity in the making of contracts is subject to legislative
supervision (Frisbie v. United States,
157 U.S. 161, 165 , 15 S. Ct. 586), this Court has held that the power of the
state stops short of interference with what are deemed [283 U.S. 697, 708] to be certain indispensable requirements of
the liberty assured, notably with respect to the fixing of prices and wages (Tyson v. Banton, 273 U.S. 418 , 47 S.
Ct. 426, 58 A. L. R. 1236; Ribnik v. McBride,
277 U.S. 350 , 48 S. Ct. 545, 56 A. L. R. 1327; Adkins v. Children's Hospital, 261 U.S. 525, 560 , 561 S., 43 S.
Ct. 394, 24 A. L. R. 1238). Liberty of speech and of the press is also not an
absolute right, and the state may punish its abuse. Whitney v. California, supra; Stromberg v. California, supra.
Liberty, in each of its phases, has its history and connotation, and, in the
present instance, the inquiry is as to the historic conception of the liberty
of the press and whether the statute under review violates the essential
attributes of that liberty.
The appellee insists that the questions
of the application of the statute to appellant's periodical, and of the
construction of the judgment of the trial court, are not presented for review;
that appellant's sold attack was upon the constitutionality of the statute,
however it might be applied. The appellee contends that no question either of
motive in the publication, or whether the decree goes beyond the direction of
the statute, is before us. The appellant replies that, in his view, the plain
terms of the statute were not departed from in this case, and that even if they
were, the statute is nevertheless unconstitutional under any reasonable
construction of its terms. The appellant states that he has not argued that the
temporary and permanent injunctions were broader than were warranted by the
statute; he insists that what was done was properly done if the statute is
valid, and that the action taken under the statute is a fair indication of its
scope.
With respect to these contentions it is
enough to say that in passing upon constitutional questions the court has
regard to substance and not to mere matters of form, and that, in accordance
with familiar principles, the state must be tested by its operation and effect.
. . . It is thus important to note precisely the purpose and effect of the
statute as the state court has construed it.
First. The statute is not aimed at the redress
of individual or private wrongs. Remedies for libel remain available and
unaffected. The Statute, said the state court (174 Minn. 457, 219 N. W. 770,
772, 58 A. L. R. 607), 'is not directed at threatened libel but at an existing
business which, generally speaking, involves more than libel.' It is aimed at
the distribution of scandalous matter as 'detrimental to public morals and to
the general welfare,' tending 'to disturb the peace of the community' and 'the
provoke assaults and the commission of crime.' In order to obtain an injunction
to suppress the future publication of the newspaper or periodical, it is not
necessary to prove the falsity of the charges that have been made in the
publication condemned. In the present action there was no allegation that the
matter published was not true. . . .
Second. The statute is directed not simply at
the circulation of scandalous and defamatory statements with regard to private
citizens, but at the continued publication by newspapers and periodical of
charges against public officers of corruption, malfeasance in office, or
serious neglect of duty. Such charges by their very nature create a public
scandal. They are scandalous and defamatory within the meaning of the statute,
which has its normal operation in relation to publications dealing prominently
and chiefly with the alleged derelictions of public officers.
[283 U.S. 697, 711]
Third. The object of the statute is not
punishment, in the ordinary sense, but suppression of the offending newspaper
or periodical. The reason for the enactment, as the state court has said, is
that prosecutions to enforce penal statutes for libel do not result in
'efficient repression or suppression of the evils of scandal.' Describing the
business of publication as a public nuisance does not obscure the substance of
the proceeding which the statute authorizes. It is the continued publication of
scandalous and defamatory matter that constitutes the business and the declared
nuisance. . . .
Fourth. The statute not only operates to
suppress the offending newspaper or periodical, but to put the publisher under
an effective censorship. When a newspaper or periodical is found to be
'malicious, scandalous and defamatory,' and is suppressed as such, resumption
of publication is punishable as a contempt of court by fine or imprisonment.
Thus, where a newspaper or periodical has been suppressed because of the
circulation of charges against public officers of official misconduct, it would
seem to be clear that the renewal of the publication of such charges would
constitute a contempt, and that the judgment would lay a permanent restraint
upon the publisher, to escape which he must satisfy the court as to the
character of a new publication. . . .
. . . This is of the essence of
censorship.
The question is whether a statute
authorizing such proceedings in restraint of publication is consistent with the
conception of the liberty of the press as historically conceived and
guaranteed. In determining the extent of the constitutional protection, it has
been generally, if not universally, considered that it is the chief purpose of
the guaranty to prevent previous restraints upon publication. The struggle in
England, directed against the legislative power of the licenser, resulted in
renunciation of the censorship of the press. The liberty deemed to be
established was thus described by Blackstone: 'The liberty of the press is
indeed essential to the nature of a free state; but this consists in laying no
previous restraints upon publications, and not in freedom from censure for
criminal matter when published. Every freeman has an [283 U.S. 697, 714] undoubted right to lay what sentiments he
pleases before the public; to forbid this, is to destroy the freedom of the
press; but if he publishes what is improper, mischievous or illegal, he must
take the consequence of his own temerity.' 4 Bl. Com. 151, 152. See Story on the Constitution, 1884, 1889.
The distinction was early pointed out between the extent of the freedom with
respect to censorship under our constitutional system and that enjoyed in
England. Here, as Madison said, 'the great and essential rights of the people
are secured against legislative as well as against executive ambition. They are
secured, not by laws paramount to prerogative, but by constitutions paramount
to laws. This security of the freedom of the press requires that it should be
exempt not only from previous restraint by the Executive, as in Great Britain,
but from legislative restraint also.' Report
on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. This Court
said, in Patterson v. Colorado, 205
U.S. 454, 462, 27 S. Ct. 556, 558, 10 Ann. Cas. 689: 'In the first place, the
main purpose of such constitutional provisions is 'to prevent all such previous
restraints upon publications as had been practiced by other governments,' and
they do not prevent the subsequent punishment of such as may be deemed contrary
to the public welfare. Commonwealth v.
Blanding, 3 Pick. (Mass.) 304, 313, 314 (15 Am. Dec. 214); Respublica v. Oswald, 1 Dall. 319, 325, 158. The
preliminary freedom extends as well to the false as to the true; the subsequent
punishment may extend as well to the true as to the false. This was the law of
criminal libel apart from statute in most cases, if not in all. Commonwealth v. Blanding, ubi supra; 4
Bl. Com. 150.'
* * *
For these reasons we hold the statute, so
far as it authorized the proceedings in this action under clause (b) [283 U.S.
697, 723] of section 1, to be an
infringement of the liberty of the press guaranteed by the Fourteenth
Amendment. We should add that this decision rests upon the operation and effect
of the statute, without regard to the question of the truth of the charges
contained in the particular periodical. The fact that the public officers named
in this case, and those associated with the charges of official dereliction,
may be deemed to be impeccable, cannot affect the conclusion that the statute
imposes an unconstitutional restraint upon publication.
Judgment
reversed.
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 the 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 of press against state action. Barron v. Baltimore, 7 Pet. 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 an- [283 U.S. 697, 724] swered in the affirmative. Cf. Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 10 Ann.
Cas. 689; Prudential Ins. Co. v. Cheek,
259 U.S. 530, 538 , 543 S., 42 S. Ct. 516, 27 A. L. R. 27. See Gitlow v. New York, 268 U.S. 652 , 45 S.
Ct. 625; Fiske v. Kansas, 274 U.S.
380 , 47 S. Ct. 655; Stromberg v.
California, 283 U.S. 359 , 51 S. Ct. 532
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. [283 U.S. 697, 725] 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 [283 U.S. 697, 726] the
inquiry whether, having regard to the points properly raised in his case, the
effect of applying the statute is to deprive him of his liberty without due
process of law. [283 U.S. 697, 727]
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, 18 S. Ct. 229; Williams v.
Mississippi, 170 U.S. 213, 225, 18 S. Ct. 583; Yazoo & Miss. R. R. v. Jackson Vinegar Co., 226 U.S. 217,
219-220, 33 S. Ct. 40. Plymouth Coal Co.
v. Pennsylvania, 232 U.S. 531, 544-546, 34 S. Ct. 359.
* * *
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 (section
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 inno-
[283 U.S. 697, 733] cent; 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 free- [283 U.S. 697, 734] dom 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.' 2
Story gives the history alluded to by
Blackstone (section 1882):
'The art of printing soon after its
introduction, unless previously approved by proper 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
1937. 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 [283 U.S. 697, 735] 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 here- [283 U.S. 697, 736] inafter
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 further 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 purporting to prohibit publications that have not been adjudged
to constitute a nuisance. . . .
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 [283 U.S. 697, 738] 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.