on Morion pon Reheaeotg-
July 9, 1941.
The defendants appellants request that we reconsider our judgment of May 27, 1941, by which we affirmed the judgment of the lower court. In their motion of reconsideration appellants raise anew the question of the scope which must be given to the privilege granted by Section 249 of the Penal Code and insist that if the construction which we gave to said Section in our previous opinion were to prevail, the privilege of the freedom of the press granted by our Organic Act would be severely limited. They cite several paragraphs *751from tbe well known book “Hold Yonr Tongue” by Morris L. Ernst and Alexander Lindey.
Although we have discussed this question of the freedom of the press in our previous opinion, it seems proper that we should add to what we there said, some additional citations from other jurisdictions, so that it may be clearly seen that the decision of this Court was in strict accord with the doctrine established by the highest courts of the different states as well as by the Supreme Court of the United States.
In 11 American Jurisprudence 1113, Section 32.1, the doctrine of the limitations on the freedom of the press and of speech is set forth in part as follows:
“Tbe right or privilege of free speech and publication, guaranteed by the Constitutions of the United States and of the several states, has its limitations. It is not an absolute right, for although limitations are recognized only in exceptional cases, the prohibition of legislation against free speech is not intended to give immunity for every use or abuse of language.
“The limitations upon the right may arise by implication, but frequently they exist by express provision of the organic law itself, for many of the state Constitutions provide in terms that responsibility shall attach for abuse of the liberty or privilege so secured.
u * * * # * ■*- *
“In any event it cannot be claimed that under this right the press is free to publish, or any individual is free to utter, libels and slanders . . .
See to the same effect 16 C.J.S., 627, Section 213.
This question of the limitation on the freedom of the press is admirably discussed and decided in the case of Near v. Minnesota, 283 U.S. 697, 713. In this case the Legislature of the State of Minnesota approved am act by virtue of which it granted certain officials the power to suppress newspapers engaged in the publication of scandalous and defamatory matter, under the theory that they are a public nuisance. When the case reached the Supreme Court of the United States on appeal, the Court held that said legislation was *752unconstitutional because it violated tbe freedom of the press, and expressed itself, in a brilliant opinion by Mr. Chief Justice Hughes, as follows:
“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.
‘ ‘ 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 publication, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before 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, .Sections, 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 Pat*753terson v. Colorado, 205 U. S. 454, 462: ‘In the first place, the main purpose of such constitutional provisions is “to prevent all such previovis 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 304, 313, 314; Respublica v. Oswald, 1 Dallas, 319, 325. The preliminary freedom extends as well to the; false as to the true; the subsequent punishment may extened 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 sup.; 4 Bl. Com. 150.’
“The criticism upon Blackstone’s statement has not been because' immunity from previous restraint upon publication has not been regarded as deserving of special emphasis, but chiefly because that immunity cannot be deemed to exhaust the conception of the liberty guaranteed by state and federal constitutions. The point of criticism has been ‘that the mere exemption from previous restraints cannot be all that is secured by the constitutional provisions’; and that ‘the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a by-word, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications.’ 2 Cooley, Const. Lim., 8th ed., p. 885. 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, id.. pp. 883, 884. The laiv of criminal libel rests upon that secure foundation ... In the present case, we have no occasion to inquire as to the-permissible scope of subsequent punishment. For whatever wrong, the appellant has committed or may commit, by his publications, the-State appropriately affords both public and private redress by its: libel laws. As has been noted, the statute in question does not deal with punishments; it provides for no punishment, except in ease of contempt for violation of the court’s order, but for suppression and' injunction, that is, for restraint upon publication.” pp. 713-715.
‘ ‘ The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship. The conception of the liberty of the press in this; *754country had broadened with the exigencies of the colonial period and with the efforts to secure freedom from oppressive administration. That liberty was especially cherished for the immunity it afforded from previous restraint of the publication of censure of public officers and charges of official misconduct. As was said by Chief Justice Jarker in Commonwealth v. Blanding, 3 Pick. 304, 313, with respect to the constitution of Massachusetts: ‘Besides, it is well understood, and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practiced by other governments, .and in early times here, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible wi case of its abuse.’ ” pp. 716-717.
“The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of ;public officers is significant of the deepseated conviction that such :restraints would violate constitutional right. Public officers, whose .character and conduct remain open to debate amd free discussion in ■.the press, fioid 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 abirse 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 *755of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent which constitutional privilege.” pp. 718-720.
We cannot add anything more to that set forth in this opinion by the highest Court in the land. The privilege of freedom of the press means that previous restraints cannot he imposed on the press for the purpose of preventing it from publishing what it pleases, and that censorship cannot be tolerated in a democratic government like ours. This does not mean, however, that the legislature does not have the pfiwer to restrain said privilege in appropriate cases, as was done in this jurisdiction by virtue of Section 249 of the Penal Code, and if the journalist violates said privilege he is subject, as the court held in the case of Near v. Minnesota, supra, to the corresponding action for libel.
We do not find in the motion for reconsideration presented by the appellants anything which persuades us to vary the conclusion which we reached in our judgment rendered in this case and as a result, said motion is denied.