Editing Prior restraint (section)

=== ''Near v. Minnesota'' ===
{{Main|Near v. Minnesota}}
The first notable case in which the [[United States Supreme Court]] ruled on a prior restraint issue was ''[[Near v. Minnesota]]'', {{ussc|283|697|1931}}. In that case the Court held prior restraints to be unconstitutional, except in extremely limited circumstances such as national security issues.  The ruling came about after Jay Near's newspaper, ''[[The Saturday Press (Minneapolis)|The Saturday Press]]'', a small local paper that ran countless exposés of Minneapolis's elected officials' alleged illicit activities, including [[gambling]], [[racketeering]], and [[Graft (politics)|graft]], was silenced by the [[Minnesota Gag Law]] of 1925, also known as ''The Public Nuisance Law''. Near's critics called his paper a [[scandal sheet]], and alleged that he tried to extort money by threatening to publish attacks on officials and others.  
In the Near case the Court held that the state had no power to enjoin the publication of the paper in this way – that any such action would be [[unconstitutional]] under the [[First Amendment to the United States Constitution|First Amendment]]. It wrote:

<blockquote>If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter — in particular that the matter consists of charges against public officers of official dereliction — and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.</blockquote>

And

{{blockquote|The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. ... it would be but a step to a complete system of censorship. ... The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this court has said, on proof of truth.|''[[Patterson v. Colorado]]'', 205 U.S. 454, 462.}}

This was an extension of the Court's earlier views, which had followed Blackstone. In ''[[Patterson v. Colorado]]'', the Court had written: "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." (quoted in the ''Near'' decision).  The ''Near'' decision was the first time that it was held that even alleged untruth or malicious intent would not be sufficient reason to impose prior restraints.

Near was decided 5–4. The four dissenting justices strongly approved of the "gag law", and felt that the nature of the articles in ''The Saturday Press'', including their recurrent [[antisemitism]], their frequent (allegedly false) accusations of official misconduct, and their disrespectful and confrontational tone, made them unworthy of protection. But this view did not prevail.

After the ''Near'' decision, newspapers had a clearly established freedom to criticize public officials without fear of retribution, even when charges made by the papers could not be proven in court. Newspapers could still be punished through [[libel]] laws, if they published material found to be untrue. The "Gag Law" was unique in the United States at that time, and even in Minnesota had only been used on two occasions. Indeed, the Court commented on the unusual nature of the proceeding in its decision.

The Court in ''Near'' left open the possibility of prior restraints for various exceptional purposes, such as national security, control of obscenity, and the like. It wrote:

{{quote box|... the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. 'When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' ([[Schenck v. United States]], 249 U.S. 47, 52, 39 S. Ct. 247, 249). No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.}}

Near's dicta suggest that, while a constitutional prior restraint can exist, the high burden of proof necessary to demonstrate constitutionality results in a presumption of invalidity, and the government bears the burden of showing the restraint's constitutionality.<ref name=Waldman />{{rp|321}}

In a later case (''[[Nebraska Press Ass'n v. Stuart]]''), the Court wrote:

{{blockquote|The principles enunciated in Near were so universally accepted that the precise issue did not come before us again until ''[[Organization for a Better Austin v. Keefe]]'', {{ussc|402|415|1971}}. There the state courts had enjoined the petitioners from picketing or passing out literature of any kind in a specified area. Noting the similarity to ''Near vs. Minnesota'', a unanimous Court held:

<blockquote>Here, as in that case, the injunction operates, not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution of literature 'of any kind' in a city of 18,000. 
. ... . 
Any prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity. ''[[Carroll v. Princess Anne]]'', 393 U.S. 175, 181 (1968); ''[[Bantam Books, Inc. v. Sullivan]]'', 372 U.S. 58, 70 (1963). Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint.</blockquote>}}

This shows the strong later acceptance of what had been a disputed decision when it was first handed down.