Petitioner was manager of a movie theater where a sexually
explicit film was exhibited. After police officers saw part of the
film, an assistant district attorney requested a New York Criminal
Court judge to view it. Upon seeing the entire performance, the
judge signed warrants for seizure of the film and for petitioner's
arrest on the ground that the film was obscene. Exhibition of an
obscene film violates New York Penal Law § 235.05. No pretrial
motion was made for return of the single film copy seized or for
its suppression as evidence. There was no showing below that the
seizure prevented exhibition of the film by use of another copy,
and the record does not indicate whether another copy was
available. Petitioner's trial was held 47 days after his arrest and
the film seizure, and he was convicted. He argued that seizure of
the film without a prior adversary hearing violated the Fourteenth
Amendment. He also challenged his conviction on substantive
grounds, arguing that he was convicted under standards of obscenity
both overbroad and unconstitutionally vague, and that films shown
only to consenting adults in private are constitutionally
protected. The New York Court of Appeals affirmed his conviction,
holding that an adversary hearing prior to seizure of the film was
not required and that an
ex parte warrant, issued after a
judicial determination of obscenity, was constitutionally
sufficient.
Held:
1. Where a film is seized for the
bona fide purpose of
preserving it as evidence in a criminal proceeding, and it is
seized pursuant to a warrant issued after a determination of
probable obscenity by a neutral magistrate, and following the
seizure a prompt judicial determination of the obscenity issue in
an adversary proceeding is available at the request of any
interested party, the seizure is constitutionally permissible. On a
showing to the trial court that other copies of the film are not
available for exhibition, the court should permit the seized film
to be copied so that exhibition can be continued pending judicial
resolution of the obscenity issue in an adversary proceeding.
Otherwise, the film must be returned.
Page 413 U. S. 484
With such safeguards, a pre-seizure adversary hearing is not
mandated by the First Amendment. Pp.
413 U. S.
488-493.
2. The case is remanded to afford the state courts an
opportunity to reconsider petitioner's substantive challenges in
light of
Miller v. California, ante, p.
413 U. S. 15, and
Paris Adult Theatre I v. Slaton, ante, p.
413 U. S. 49, which
establish guidelines for the lawful state regulation of obscene
material. P.
413 U. S.
494.
29 N.Y.2d 319, 277 N.E.2d 651, vacated and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J.,
filed a dissenting opinion,
post, p.
413 U. S. 494.
BRENNAN, J., filed a dissenting opinion, in which STEWART and
MARSHALL, JJ., joined,
post, p.
413 U. S.
494.
MR. CHIEF JUSTICE BURGER delivered the opinion of of the
Court.
We granted certiorari in this case to determine whether a
judicial officer authorized to issue warrants, who has viewed a
film and finds it to be obscene, can issue a constitutionally valid
warrant for the film's seizure as evidence in a prosecution against
the exhibitor without first conducting an adversary hearing on the
issue of probable obscenity.
Page 413 U. S. 485
Petitioner was manager of a commercial movie theater in the
Greenwich Village area of New York City. On July 29, 1969, a film
called "Blue Movie" was exhibited there. The film depicts a nude
couple engaged in ultimate sexual acts. Three police officers saw
part of the film. Apparently on the basis of their observations, an
assistant district attorney of New York County requested a judge of
the New York Criminal Court to see a performance. On July 31, 1969,
the judge, accompanied by a police inspector, purchased a ticket
and saw the entire film. There were about 100 other persons in the
audience. Neither the judge nor the police inspector recalled any
signs restricting admission to adults. [
Footnote 1]
At the end of the film, the judge, without any discussions with
the police inspector, signed a search warrant for the seizure of
the film and three "John Doe" warrants for the arrest of the
theater manager, the projectionist, and the ticket taker,
respectively. No one at the theater was notified or consulted prior
to the issuance of the warrants. The judge signed the warrants
because
"it was, and is my opinion that that film is obscene, and was
obscene as I saw it then under the definition of obscene, that is
[in] . . . section 235.00 of the Penal Law."
Exhibition of an obscene film violates New York Penal Law §
235.05. [
Footnote 2]
Page 413 U. S. 486
The warrants were immediately executed by police officers. Three
reels, composing a single copy of the film, were seized.
Petitioner, the theater manager, was arrested, as were the
projectionist and the ticket taker. [
Footnote 3] No pretrial motion was made for the return of
the film or for its suppression as evidence. Nor did petitioner
make a pretrial claim that seizure of the film prevented its
exhibition by use of another copy, and the record does not
conclusively indicate whether such a copy was available. On
September 16, 1969, 47 days after his arrest and the seizure of the
movie, petitioner came to trial, a jury having been waived, before
three judges of the New York City Criminal Court.
Page 413 U. S. 487
At trial, the prosecution's case rested almost solely on
testimony concerning the arrests and the seizure of the film,
together with the introduction into evidence of the seized film
itself. The film was exhibited to the trial judges. The defense
offered three "expert" witnesses: an author, a professor of
sociology, and a newspaper writer. These witnesses testified that
the film had social, literary, and artistic importance in
illustrating "a growing and important point of view about sexual
behavior" as well as providing observations "about the political
and social situation in this country today. . . ." Petitioner
testified that the theater's employees were instructed not to admit
persons who appeared to be under 18 years of age, unless they "had
identification" that they were 18. Petitioner also testified that
there was a sign at the box office stating that "no one under 17
[would be] admitted." Both at the end of the prosecution's case and
his own case, petitioner moved to dismiss the indictment on the
ground that the seizure of the film, without a prior adversary
hearing, violated the Fourteenth Amendment.
At the close of trial on September 17, 1969, petitioner was
found guilty by all three judges of violating New York Penal Law §
235.05. On appeal, both the Supreme Court of the State of New York,
Appellate Term, and the Court of Appeals of the State of New York
viewed the film and affirmed petitioner's conviction. The Court of
Appeals, relying on this Court's opinion in
Lee Art Theatre v.
Virginia, 392 U. S. 636,
392 U. S. 637
(1968), held that an adversary hearing was not required prior to
seizure of the film, and that the judicial determination which
occurred prior to seizure in this case was constitutionally
sufficient. In so holding, the Court of Appeals explicitly
disapproved, as going "beyond any requirement imposed on State
courts by the Supreme
Page 413 U. S. 488
Court,"
Astro Cinema Corp. v. Mackell, 422 F.2d 293
(CA2 1970), and
Bethview Amusement Corp. v. Cahn, 416 F.2d
410 (CA2 1969),
cert. denied, 397 U.S. 920 (1970), cases
requiring an adversary hearing prior to any seizure of movie film.
29 N.Y.2d 319, 323, 277 N.E.2d 651, 653 (1971).
We affirm this holding of the Court of Appeals of the State of
New York. This Court has never held, or even implied, that there is
an absolute First or Fourteenth Amendment right to a prior
adversary hearing applicable to all cases where allegedly obscene
material is seized.
See Times Film Corp. v. Chicago,
365 U. S. 43
(1961);
Kingsley Books, Inc. v. Brown, 354 U.
S. 436,
354 U. S. 440
442 (1957). In particular, there is no such absolute right where
allegedly obscene material is seized, pursuant to a warrant, to
preserve the material as evidence in a criminal prosecution. In
Lee Art Theatre v. Virginia, supra, the Court went so far
as to suggest that it was an open question whether a judge need
"have viewed the motion picture before issuing the warrant."
[
Footnote 4] Here, the judge
viewed the entire film and, indeed, witnessed the alleged criminal
act. It is not contested that the judge was a "neutral, detached
magistrate," that he had a full opportunity for independent
judicial
Page 413 U. S. 489
determination of probable cause prior to issuing the warrant,
and that he was able to "focus searchingly on the question of
obscenity."
See Marcus v. Search Warrant, 367 U.
S. 717,
367 U. S.
731-733 (1961).
Cf. Coolidge v. New Hampshire,
403 U. S. 443,
403 U. S.
449-453 (1971);
Giordenello v. United States,
357 U. S. 480,
357 U. S.
485-486 (1958);
Johnson v. United States,
333 U. S. 10,
333 U. S. 14-15
(1948).
In
United States v. Thirty-seven Photographs,
402 U. S. 363
(1971), and
Freedman v. Maryland, 380 U. S.
51 (1965), we held that
"'because only a judicial determination in an adversary
proceeding ensures the necessary sensitivity to freedom of
expression, only a procedure requiring a judicial determination
suffices to impose a valid
final restraint.'"
402 U.S. at
402 U. S. 367,
quoting 380 U.S. at
380 U. S. 58
(emphasis added). Those cases involved, respectively, seizure of
imported materials by federal customs agents and state
administrative licensing of motion pictures, both civil procedures
directed at absolute suppression of the materials themselves. Even
in those cases, we did not require that the adversary proceeding
must take place prior to
initial seizure. Rather, it was
held that a judicial determination must occur "promptly so that
administrative delay does not, in itself, become a form of
censorship." [
Footnote 5]
United States v. Thirty-seven Photographs, supra, at
402 U. S. 367;
Freedman v. Maryland,
Page 413 U. S. 490
supra at
380 U. S. 57-59.
See Blount v. Rizzi, 400 U. S. 410,
400 U. S.
419-421 (1971);
Teitel Film Corp. v. Cusack,
390 U. S. 139,
390 U. S.
141-142 (1968);
Bantam Books, Inc. v. Sullivan,
372 U. S. 58,
372 U. S. 70-71
(1963).
In this case, of course, the film was not subjected to any form
of "final restraint," in the sense of being enjoined from
exhibition or threatened with destruction. A copy of the film was
temporarily detained in order to preserve it as evidence. There has
been no showing that the seizure of a copy of the film precluded
its continued exhibition. Nor, in this case, did temporary
restraint, in itself, "become a form of censorship," even making
the doubtful assumption that no other copies of the film existed.
Cf. United States v. Thirty-seven Photographs, supra, at
402 U. S. 367;
Freedman v. Maryland, supra, at
380 U. S. 57-59.
A judicial determination of obscenity, following a fully adversary
trial, occurred within 48 days of the temporary seizure. Petitioner
made no pretrial motions seeking return of the film or challenging
its seizure, nor did he request expedited judicial consideration of
the obscenity issue, so it is entirely possible that a prompt
judicial determination of the obscenity issue in an adversary
proceeding could have been obtained if petitioner had desired.
[
Footnote 6] Although we have
refrained from establishing rigid, specific time deadlines in
proceedings involving seizure of allegedly obscene material, we
have definitely excluded from any consideration of "promptness"
those delays caused by the choice of the defendant.
See United
States v. Thirty-seven Photographs, supra, at
402 U. S.
373-374. In this case, the barrier to a prompt judicial
determination of the
Page 413 U. S. 491
obscenity issue in an adversary proceeding was not the State,
but petitioner's decision to waive pretrial motions and reserve the
obscenity issue for trial.
Cf. Kingsley Books, Inc. v.
Brown, 354 U.S. at
354 U. S.
439.
Petitioner's reliance on the Court's decisions in
A Quantity
of Books v. Kansas, 378 U. S. 205
(1964), and
Marcus v. Search Warrant, 367 U.
S. 717 (1961), is misplaced. Those cases concerned the
seizure of large quantities of books for the sole purpose of their
destruction, [
Footnote 7] and
this Court held that, in those circumstances, a prior judicial
determination of obscenity in an adversary proceeding was required
to avoid "danger of abridgment of the right of the public in a free
society to unobstructed circulation of nonobscene books."
A
Quantity of Books v. Kansas, supra, at
378 U. S. 213.
We do not disturb this holding. Courts will scrutinize any
large-scale seizure of books, films, or other materials
presumptively protected under the First Amendment to be certain
that the requirements of
A Quantity of Books and
Marcus are fully met. "
Any system of prior restraints
of expression comes to this Court bearing a heavy presumption
against its constitutional validity.'" New York Times Co. v.
United States, 403 U. S.
713,
Page 413 U. S. 492
403 U. S. 714
(1971), quoting
Bantam Books, Inc. v. Sullivan, 372 U.S.
at
372 U. S. 70;
Organization for a Better Austin v. Keefe, 402 U.
S. 415,
402 U. S. 419
(1971);
Carroll v. Princess Anne, 393 U.
S. 175,
393 U. S. 181
(1968).
See Near v. Minnesota, 283 U.
S. 697 (1931).
But seizing films to destroy them or to block their distribution
or exhibition is a very different matter from seizing a single copy
of a film for the
bona fide purpose of preserving it as
evidence in a criminal proceeding, particularly where, as here,
there is no showing or pretrial claim that the seizure of the copy
prevented continuing exhibition of the film. [
Footnote 8] If such a seizure is pursuant to a
warrant, issued after a determination of probable cause by a
neutral magistrate, and, following the seizure, a prompt [
Footnote 9] judicial determination of
the obscenity issue in an adversary proceeding is available at the
request of any interested party, the seizure is constitutionally
permissible. In addition, on a showing to the trial court that
other copies of the film are not available to the exhibitor, the
court should permit the seized film to be copied so that showing
can be
Page 413 U. S. 493
continued pending a judicial determination of the obscenity
issue in an adversary proceeding. [
Footnote 10] Otherwise, the film must be returned.
[
Footnote 11]
With such safeguards, we do not perceive that an adversary
hearing prior to a seizure by lawful warrant would materially
increase First Amendment protection.
Cf. Carroll v. Princess
Anne, supra, at
393 U. S.
183-184. The necessity for a prior judicial
determination of probable cause will protect against gross abuses,
while the availability of a prompt judicial determination in an
adversary proceeding following the seizure assures that difficult
marginal cases will be fully considered in light of First Amendment
guarantees, with only a minimal interference with public
circulation pending litigation. The procedure used by New York in
this case provides such First Amendment safeguards while also
serving the public interests in full and fair prosecution for
obscenity offenses. Counsel for New York has argued that movie
films tend to "disappear" if adversary hearings are afforded prior
to seizure. We take judicial notice that such films may be compact,
readily transported for exhibition in other jurisdictions, easily
destructible, and particularly susceptible to alteration by cutting
and splicing critical parts of film.
Page 413 U. S. 494
Petitioner also challenged his conviction on substantive, as
opposed to procedural, grounds, arguing that he was convicted under
standards of obscenity both overbroad and unconstitutionally vague.
In addition, petitioner argues that films shown only to consenting
adults in private have a particular claim to constitutional
protection. In
Miller v. California, ante, p.
413 U. S. 15, and
Paris Adult Theatre I v. Slaton, ante, p.
413 U. S. 49,
decided June 21, 1973, we dealt with these substantive issues. A
majority of this Court has now approved guidelines for the lawful
state regulation of obscene material. The judgment of the Court of
Appeals of the State of New York is therefore vacated, and this
case remanded for the sole purpose of affording the New York courts
an opportunity to reconsider these substantive issues in light of
Miller and
Paris Adult Theatre I. See United
States v. 12 200-ft. Reels of Film, ante at
413 U. S. 130
n. 7.
Vacated and remanded.
[
Footnote 1]
The prosecution presented no evidence that juveniles were
actually present in the theater.
[
Footnote 2]
New York Penal Law § 235.05 reads in relevant part:
"A person is guilty of obscenity when, knowing its content and
character, he: "
"1. Promotes, or possesses with intent to promote, any obscene
material; or"
"2. Produces, presents or directs an obscene performance or
participates in a portion thereof which is obscene or which
contributes to its obscenity."
"Obscenity is a class A misdemeanor."
The terms used in § 235.05 are defined by New York Penal Law §
235.00, which reads in relevant part:
"The following definitions are applicable to sections 235.05,
235.10 and 235.15: "
"1. 'Obscene.' Any material or performance is 'obscene' if (a)
considered as a whole, its predominant appeal is to prurient,
shameful or morbid interest in nudity, sex, excretion, sadism or
masochism, and (b) it goes substantially beyond customary limits of
candor in describing or representing such matters, and (c) it is
utterly without redeeming social value. Predominant appeal shall be
judged with reference to ordinary adults unless it appears from the
character of the material or the circumstances of its dissemination
to be designed for children or other specially susceptible
audience."
"2. 'Material' means anything tangible which is capable of being
used or adapted to arouse interest, whether through the medium of
reading, observation, sound or in any other manner."
"3. 'Performance' means any play, motion picture, dance or other
exhibition performed before an audience."
"4. 'Promote' means to manufacture, issue, sell, give, provide,
lend, mail, deliver, transfer, transmute, publish, distribute,
circulate, disseminate, present, exhibit or advertise, or to offer
or agree to do the same."
[
Footnote 3]
The cases against the ticket taker and projectionist were
dismissed on the motion of the prosecutor.
[
Footnote 4]
"It is true that a judge may read a copy of a book in courtroom
or chambers, but not as easily arrange to see a motion picture
there. However, we need not decide in this case whether the justice
of the peace should have viewed the motion picture before issuing
the warrant. The procedure under which the warrant issued solely
upon the conclusory assertions of the police officer without any
inquiry by the justice of the peace into the factual basis for the
officer's conclusions was not a procedure 'designed to focus
searchingly on the question of obscenity,' [
Marcus v. Search
Warrant, 367 U. S. 717], at
367 U. S.
732, and therefore fell short of constitutional
requirements demanding necessary sensitivity to freedom of
expression.
See Freedman v. Maryland, 380 U. S.
51,
380 U. S. 58-59."
392 U.S. at
392 U. S.
637.
[
Footnote 5]
We further held
"(1) there must be assurance, 'by statute or authoritative
judicial construction, that the censor will, within a specified
brief period, either issue a license or go to court to restrain
showing the film;' (2) '[a]ny restraint imposed in advance of a
final judicial determination on the merits must similarly be
limited to preservation of the
status quo for the shortest
fixed period compatible with sound judicial resolution;' and (3)
'the procedure must also assure a prompt final judicial decision'
to minimize the impact of possibly erroneous administrative action.
[
Freedman v Maryland, 380 U.S.] at
380 U. S.
58-59."
United States v. Thirty-seven Photographs, 402 U.S. at
402 U. S.
367.
[
Footnote 6]
The State of New York has represented that it stands ready to
grant "immediate" adversary hearings on pretrial motions
challenging seizures of material arguably protected by the First
Amendment. No such motion was made by petitioner.
[
Footnote 7]
In particular,
Marcus involved seizure by police
officers acting pursuant to a general warrant of 11,000 copies of
280 publications. 367 U.S. at
367 U. S. 723.
Unlike this case, there was no independent judicial determination
of obscenity by a neutral, detached magistrate, nor were the
seizures made to preserve evidence for a criminal prosecution.
Id. at
367 U. S. 732.
The sole purpose was to seize the articles as contraband and to
cause them "to be publicly destroyed, by burning or otherwise."
Id. at
367 U. S. 721
n. 6. In
A Quantity of Books v. Kansas, 378 U.
S. 205 (1964), 1,715 copies of 31 publications were
seized by a county sheriff, also without any prior judicial
determination of obscenity and, again, for the sole purpose of
destroying the publications as contraband.
Id. at
378 U. S.
206-209.
[
Footnote 8]
In
Mishkin v. New York, 383 U.
S. 502 (1966), this Court refused to review the legality
of a seizure of books challenged under
A Quantity of Books,
supra, primarily because the record did not reveal the number
of books seized as evidence under the warrant or "whether the books
seized . . . were on the threshold of dissemination."
Id.
at
383 U. S. 513.
If
A Quantity of Books applied to all seizures of obscene
material, there would have been no need for the Court to abstain
from review in
Mishkin, since the parties had conceded
that there was no prior adversary hearing. This is not to say that
multiple copies of a single film may be seized as purely cumulative
evidence, or that a State may circumvent
Marcus or
A
Quantity of Books by incorporating, as an element of a
criminal offense, the number of copies of the obscene materials
involved.
[
Footnote 9]
By "prompt," we mean the shortest period "compatible with sound
judicial resolution."
See United States v. Thirty-seven
Photographs, 402 U.S. at
402 U. S. 367;
Blount v. Rizzi, 400 U. S. 410,
400 U. S. 417
(1971);
Freedman v. Maryland, 380 U. S.
51, at
380 U. S. 58-59
(1965).
[
Footnote 10]
At oral argument, counsel for petitioner agreed that a prompt
opportunity to obtain a copy from the seized film at "an
independent lab under circumstances that would assure that there
was no tampering with the film" with the original returned within
"24 hours" would "satisfy" his "First Amendment position." Tr. of
Oral Arg. 28. Petitioner never requested such a copy below.
[
Footnote 11]
Failure to permit copying of seized material adversely affects
First Amendment interests; prompt copying of seized material should
be permitted. If copying is denied, return of the seized material
should be required. On the other hand, violations of Fourth
Amendment standards would require that the seized material be
excluded from evidence.
See Roaden v. Kentucky, post, p.
413 U. S. 496;
Lee Art Theatre v. Virginia, 392 U.S. at
392 U. S. 637.
Cf. Mapp v. Ohio, 367 U. S. 643
(1961).
MR. JUSTICE DOUGLAS, dissenting.
*
I would reverse outright in each of these cases as, in my view,
the underlying obscenity statute violates the First Amendment for
the reasons stated in my dissenting opinions in
Miller v.
California, ante, p.
413 U. S. 37,
and
United States v. 12 200-ft. Reels of Film, ante, p.
413 U. S.
130.
* This opinion applies also to No. 71-1134,
Roaden v.
Kentucky, post, p.
413 U. S. 496.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.
JUSTICE MARSHALL join, dissenting.
We granted certiorari to consider the holding of the Court of
Appeals of New York that the Constitution does not require an
adversary hearing on obscenity prior to a judge's issuance of
warrants for the seizure of a
Page 413 U. S. 495
film and for the arrest of the film's exhibitor. 29 N.Y.2d 319,
277 N.E.2d 661 (1971). The statute under which the prosecution was
brought* is, in my view, unconstitutionally overbroad, and
therefore invalid on its face.
See my dissent in
Paris
Adult Theatre I v. Slaton, ante, p.
413 U. S. 73. I
would therefore reverse the judgment of the Court of Appeals and
remand the case for further proceedings not inconsistent with my
dissenting opinion in
Slaton. In that circumstance, I have
no occasion to consider whether, assuming that a prosecution could
properly be brought, the seizure of the film at issue here was
constitutional.
* N.Y.Penal Law § 235.05:
"A person is guilty of obscenity when, knowing its content and
character, he: "
"1. Promotes, or possesses with intent to promote, any obscene
material; or"
"2. Produces, presents or directs an obscene performance or
participates in a portion thereof which is obscene or which
contributes to its obscenity."