“Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal which tends [p722] to disturb the public peace and to provoke assaults and the commission of crime. Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication. To prohibit the intent to excite those unfavorable sentiments against those who administer the Government is equivalent to a prohibition of the actual excitement of them, and to prohibit the actual excitement of them is equivalent to a prohibition of discussions having that tendency and effect, which, again, is equivalent to a protection of those who administer the Government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it by free animadversions on their characters and conduct. There is nothing new in the fact that charges of reprehensible conduct may create resentment and the disposition to resort to violent means of redress, but this well understood tendency did not alter the determination to protect the press against censorship and restraint upon publication. […] The danger of violent reactions becomes greater with effective organization of defiant groups resenting exposure, and if this consideration warranted legislative interference with the initial freedom of publication, the constitutional protection would be reduced to a mere form of words.”

— Charles Evans Hughes

Near v. Minnesota, 283 U.S. 697 (1931).
Judicial opinions

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Charles Evans Hughes 34

American judge 1862–1948

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“To create a public scandal is what's wicked;
To sin in private is not a sin.”

Molière book Tartuffe

Le scandale du monde est ce qui fait l'offense,
Et ce n'est pas pécher que pécher en silence.
Act IV, sc. v
Tartuffe (1664)

“Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals. The general principle that the constitutional guaranty of the liberty of the press gives immunity from previous restraints has been approved in many decisions under the provisions of state constitutions. The importance of this immunity has not lessened. While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy consistent with constitutional privilege.”

Charles Evans Hughes (1862–1948) American judge

Near v. Minnesota, 283 U.S. 697 (1931).
Judicial opinions

“The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society.”

James Madison (1751–1836) 4th president of the United States (1809 to 1817)

Federalist No. 49 (2 February 1788)
1780s, Federalist Papers (1787–1788)

“Being covered in white paint, you demonstrate behaviour intended to create a public nuisance, which did in fact cause offence to members of the public, and created a breach of the peace and public order.”

Günter Brus (1938) Austrian artist

Source: Nervous Stillness on the Horizon (2006), P. 14 (Cit.after LockerWiener Aktionismus.Der zertrümmerte Spiegel.Wien1960-1971,op.cit., p. 299.)

“It is a public scandal when the law is forced to uphold a dishonest act.”

Edward Macnaghten, Baron Macnaghten (1830–1913) Anglo-Irish rower, barrister, politician and Lord of Appeal in Ordinary

Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. (1894), L. R. App. Ca. Part 5, p. 573.

“But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions. The law of criminal libel rests upon that secure foundation. There is also the conceded authority of courts to punish for contempt when publications directly tend to prevent the proper discharge of judicial functions.”

Charles Evans Hughes (1862–1948) American judge

Near v. Minnesota, 283 U.S. 697 (1931).
Judicial opinions

“The recognition of authority to impose previous restraint upon publication in order to protect the community against the circulation of charges of misconduct, and especially of official misconduct, necessarily would carry with it the admission of the authority of the censor against which the constitutional barrier was erected. The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this Court has said, on proof of truth.”

Charles Evans Hughes (1862–1948) American judge

Near v. Minnesota, 283 U.S. 697 (1931).
Judicial opinions

“That world begins where the lawful wife finishes; it finishes where the venal wife begins. It is divided from the world of honest women by the public scandal it provokes; it is divided from the world of courtesans by money.”

Alexandre Dumas, fils (1824–1895) French writer and dramatist, son of the homonym writer and dramatist

Ce monde commence où l'épouse légale finit, et il finit où l'épouse vénale commence, il est séparé des honnêtes femmes par le scandale, des courtisanes par l'argent.
Preface to Le Demi-Monde (1855), in Théatre complet de Al. Dumas fils (Paris: Michel Lévy Frères, 1868-98) vol. 2, p. 10; translation from Albert D. Vandam Undercurrents of the Second Empire (London: William Heinemann, 1897) p. 247.

“In attempted justification of the statute, it is said that it deals not with publication per se, but with the "business" of publishing defamation. If, however, the publisher has a constitutional right to publish, without previous restraint, an edition of his newspaper charging official derelictions, it cannot be denied that he may publish subsequent editions for the same purpose. He does not lose his right by exercising it. If his right exists, it may be exercised in publishing nine editions, as in this case, as well as in one edition. If previous restraint is permissible, it may be imposed at once; indeed, the wrong may be as serious in one publication as in several. Characterizing the publication as a business, and the business as a nuisance, does not permit an invasion of the constitutional immunity against restraint. Similarly, it does not matter that the newspaper or periodical is found to be "largely" or "chiefly" devoted to the publication of such derelictions. If the publisher has a right, without previous restraint, to publish them, his right cannot be deemed to be dependent upon his publishing something else, more or less, with the matter to which objection is made. Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. With the multiplying provisions of penal codes, and of municipal charters and ordinances carrying penal sanctions, the conduct of public officers is very largely within the purview of criminal statutes. The freedom of the press from previous restraint has never been regarded as limited to such animadversions as lay outside the range of penal enactments. Historically, there is no such limitation; it is inconsistent with the reason which underlies the privilege, as the privilege so limited would be of slight value for the purposes for which it came to be established.”

Charles Evans Hughes (1862–1948) American judge

Near v. Minnesota, 283 U.S. 697 (1931).
Judicial opinions

“A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.”

William H. Rehnquist (1924–2005) Chief Justice of the United States

United States v. American Library Association, 539 U.S. 194 (2003) (plurality opinion); the case concerned whether Congress could require libraries receiving Federal subsidies for Internet connectivity to install filtering software.
Judicial opinions

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Charles Evans Hughes 34

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