Near v. State of Minnesota Olson

Decision Date01 June 1931
Docket NumberNo. 91,91
PartiesNEAR v. STATE OF MINNESOTA ex rel. OLSON, Co. Atty
CourtU.S. Supreme Court

[Syllabus from pages 697-699 intentionally omitted] Messrs. Weymouth Kirkland, of Chicago, Ill., and T. E. Latimer, of Minneapolis, Minn., for appellant.

Messrs. James E. Markham, of St. Paul, Minn., and Arthur L. Markve, of Minneapolis, Minn., for appellee.

[Argument of Counsel from pages 699-701 intentionally omitted] 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- 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 availabl 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 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 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 th per iodical 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 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, scanadalous 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.

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, th cou...

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