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.
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.