Appellant, proprietor of a bookstore, was convicted of violating
a city ordinance which was construed by the state courts as making
him absolutely liable criminally for the mere possession in his
store of a book later judicially determined to be obscene -- even
if he had no knowledge as to the contents of the book.
Held: As thus construed and applied, the ordinance
violates the freedom of the press which is safeguarded by the Due
Process Clause of the Fourteenth Amendment from invasion by state
action. Pp.
361 U. S.
148-155.
(a) The free publication and dissemination of books obviously
are within the constitutionally protected freedom of the press, and
a retail bookseller plays a most significant role in the
distribution of books. P.
361 U. S.
150.
(b) Legal devices and doctrines, in most applications consistent
with the Constitution, may not be constitutionally capable of
application where such application would have the effect of
inhibiting freedom of expression by making persons reluctant to
exercise it. Pp.
361 U. S.
150-152.
(c) Obscene expression is not constitutionally protected; but
this ordinance imposes an unconstitutional limitation on the
public's access to constitutionally protected matter. For, if the
bookseller be criminally liable without knowledge of the contents,
he will tend to restrict the books he sells to those he has
inspected, and thus a restriction will be imposed by the States
upon the distribution of constitutionally protected, as well as
obscene, books. Pp.
361 U. S.
152-154.
(d) The existence of the State's power to prevent the
distribution of obscene matter does not mean that there can be no
constitutional barrier to any form of practical exercise of that
power. Hence, that there may be more difficultly in enforcing a
regulation against the distribution of obscene literature if
booksellers may not be held to an absolute criminal liability does
not require a different result here. Pp.
361 U. S.
154-155.
161 Cal.
App. 2d Supp. 860, 327 P.2d 636, reversed.
Page 361 U. S. 148
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Appellant, the proprietor of a bookstore, was convicted in a
California Municipal Court under a Los Angeles City ordinance which
makes it unlawful
"for any person to have in his possession any obscene or
indecent writing, [or] book . . . in any place of business where .
. . books . . . are sold or kept for sale. [
Footnote 1]"
The offense was defined by the Municipal Court, and by the
Appellate
Page 361 U. S. 149
Department of the Superior Court, [
Footnote 2] which affirmed the Municipal Court judgment
imposing a jail sentence on appellant, as consisting solely of the
possession, in the appellant's bookstore, of a certain book found
upon judicial investigation to be obscene. The definition included
no element of
scienter -- knowledge by appellant of the
contents of the book -- and thus the ordinance was construed as
imposing a "strict" or "absolute" criminal liability. [
Footnote 3] The appellant made timely
objection below that, if the ordinance were so construed it would
be in conflict with the Constitution of the United States. This
contention, together with other contentions based on the
Constitution, [
Footnote 4] was
rejected, and the case comes here on appeal. 28 U.S.C. § 1257(2);
358 U.S. 926.
Almost 30 years ago, Chief Justice Hughes declared for this
Court:
"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
Page 361 U. S. 150
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. . . ."
Near v. Minnesota, 283 U. S. 697,
283 U. S. 707.
It is too familiar for citation that such has been the doctrine of
this Court, in respect of these freedoms, ever since. And it also
requires no elaboration that the free publication and dissemination
of books and other forms of the printed word furnish very familiar
applications of these constitutionally protected freedoms. It is,
of course, no matter that the dissemination takes place under
commercial auspices.
See Joseph Burstyn, Inc., v. Wilson,
343 U. S. 495;
Grosjean v. American Press Co., 297 U.
S. 233. Certainly a retail bookseller plays a most
significant role in the process of the distribution of books.
California here imposed a strict or absolute criminal
responsibility on appellant not to have obscene books in his shop.
"The existence of a
mens rea is the rule of, rather than
the exception to, the principles of Anglo-American criminal
jurisprudence."
Dennis v. United States, 341 U.
S. 494,
341 U. S. 500.
[
Footnote 5] Still, it is
doubtless competent for the States to create strict criminal
liabilities by defining criminal offenses without any element of
scienter -- though even where no freedom of expression
question is involved, there is precedent in this Court that this
power is not without limitations.
See Lambert v.
California, 355 U. S. 225. But
the question here is as to the validity of this ordinance's
elimination of the
scienter requirement -- an elimination
which may tend to work a substantial restriction on the freedom of
speech and of the press. Our decisions furnish examples of legal
devices and doctrines in most applications consistent with the
Constitution,
Page 361 U. S. 151
which cannot be applied in settings where they have the
collateral effect of inhibiting the freedom of expression, by
making the individual the more reluctant to exercise it. The States
generally may regulate the allocation of the burden of proof in
their courts, and it is a common procedural device to impose on a
taxpayer the burden of proving his entitlement to exemptions from
taxation, but where we conceived that this device was being applied
in a manner tending to cause even a self-imposed restriction of
free expression, we struck down its application.
Speiser v.
Randall, 357 U. S. 513.
See Near v. Minnesota, supra, at
283 U. S.
712-713. It has been stated here that the usual
doctrines as to the separability of constitutional and
unconstitutional applications of statutes may not apply where their
effect is to leave standing a statute patently capable of many
unconstitutional applications, threatening those who validly
exercise their rights of free expression with the expense and
inconvenience of criminal prosecution.
Thornhill v.
Alabama, 310 U. S. 88,
310 U. S. 97-98.
Cf. Staub v. City of Baxley, 355 U.
S. 313. [
Footnote 6]
And this Court has intimated that stricter standards of permissible
statutory vagueness may be applied to a statute having a
potentially inhibiting effect on speech; a man may the less be
required to act at his peril here, because the free dissemination
of ideas may be the loser.
Winters v. New York,
333 U. S. 507,
333 U. S.
509-510,
333 U. S.
517-518. Very much to the point here, where the question
is the elimination of the mental element in an offense, is this
Court's holding in
Wieman v. Updegraff, 344 U.
S. 183. There an oath as to past freedom from membership
in subversive organizations, exacted by a State as a qualification
for public employment, was held to violate the Constitution in that
it made no distinction between members who had, and those who had
not, known of the organization's character. The
Page 361 U. S. 152
Court said of the elimination of
scienter in this
context: "To thus inhibit individual freedom of movement is to
stifle the flow of democratic expression and controversy at one of
its chief sources."
Id. at
344 U. S.
191.
These principles guide us to our decision here. We have held
that obscene speech and writings are not protected by the
constitutional guarantees of freedom of speech and the press.
Roth v. United States, 354 U. S. 476.
[
Footnote 7] The ordinance here
in question, to be sure, only imposes criminal sanctions on a
bookseller if, in fact, there is to be found in his shop an obscene
book. But our holding in
Roth does not recognize any state
power to restrict the dissemination of books which are not obscene;
and we think this ordinance's strict liability feature would tend
seriously to have that effect by penalizing booksellers even though
they had not the slightest notice of the character of the books
they sold. The appellee and the court below analogize this strict
liability penal ordinance to familiar forms of penal statutes which
dispense with any element of knowledge on the part of the person
charged, food and drug legislation being a principal example. We
find the analogy instructive in our examination of the question
before us. The usual rationale for such statutes is that the public
interest in the purity of its food is so great as to warrant the
imposition of the highest standard of care on distributors -- in
fact, an absolute standard which will not hear the distributor's
plea as to the amount of care he has used.
Cf. United States v.
Balint, 258 U. S. 250,
258 U. S.
252-253,
258 U. S. 254. His
ignorance of the character of the food is irrelevant. There is no
specific constitutional inhibition against making the distributors
of good the strictest censors of their merchandise, but the
constitutional guarantees of the freedom of speech and of the
Page 361 U. S. 153
press stand in the way of imposing a similar requirement on the
bookseller. By dispensing with any requirement of knowledge of the
contents of the book on the part of the seller, the ordinance tends
to impose a severe limitation on the public's access to
constitutionally protected matter. For if the bookseller is
criminally liable without knowledge of the contents, and the
ordinance fulfills its purpose, [
Footnote 8] he will tend to restrict the books he sells to
those he has inspected; and thus the State will have imposed a
restriction upon the distribution of constitutionally protected, as
well as obscene literature. It has been well observed of a statute
construed as dispensing with any requirement of
scienter
that:
"Every bookseller would be placed under an obligation to make
himself aware of the contents of every book in his shop. It would
be altogether unreasonable to demand so near an approach to
omniscience. [
Footnote 9]"
The King v. Ewart, 25 N.Z.L.R. 709, 729 (C.A.). And the
bookseller's burden would become the public's burden, for, by
restricting him, the public's access to reading matter would be
restricted. If the contents of bookshops and periodical stands were
restricted to material of which their proprietors had made an
inspection, they might be depleted indeed. The bookseller's
Page 361 U. S. 154
limitation in the amount of reading material with which he could
familiarize himself, and his timidity in the face of his absolute
criminal liability, thus would tend to restrict the public's access
to forms of the printed word which the State could not
constitutionally suppress directly. The bookseller's
self-censorship, compelled by the State, would be a censorship
affecting the whole public, hardly less virulent for being
privately administered. Through it, the distribution of all books,
both obscene and not obscene, would be impeded.
It is argued that unless the
scienter requirement is
dispensed with, regulation of the distribution of obscene material
will be ineffective, as booksellers will falsely disclaim knowledge
of their books' contents or falsely deny reason to suspect their
obscenity. We might observe that it has been some time now since
the law viewed itself as impotent to explore the actual state of a
man's mind.
See Pound, The Role of the Will in Law, 68
Harv.L.Rev. 1.
Cf. American Communications Assn. v. Douds,
339 U. S. 382,
339 U. S. 411.
Eyewitness testimony of a bookseller's perusal of a book hardly
need be a necessary element in proving his awareness of its
contents. The circumstances may warrant the inference that he was
aware of what a book contained, despite his denial.
We need not and most definitely do not pass today on what sort
of mental element is requisite to a constitutionally permissible
prosecution of a bookseller for carrying an obscene book in stock;
whether honest mistake as to whether its contents in fact
constituted obscenity need be an excuse; whether there might be
circumstances under which the State constitutionally might require
that a bookseller investigate further, or might put on him the
burden of explaining why he did not, and what such circumstances
might be. Doubtless any form of criminal obscenity statute
applicable to a bookseller will induce some tendency to
self-censorship and have some inhibitory
Page 361 U. S. 155
effect on the dissemination of material not obscene, but we
consider today only one which goes to the extent of eliminating all
mental elements from the crime.
We have said:
"The fundamental freedoms of speech and press have contributed
greatly to the development and wellbeing of our free society, and
are indispensable to its continued growth. Ceaseless vigilance is
the watchword to prevent their erosion by Congress or by the
States. The door barring federal and state intrusion into this area
cannot be left ajar; it must be kept tightly closed, and opened
only the slightest crack necessary to prevent encroachment upon
more important interests."
Roth v. United States, supra, at
354 U. S. 488.
[
Footnote 10] This ordinance
opens that door too far. The existence of the State's power to
prevent the distribution of obscene matter does not mean that there
can be no constitutional barrier to any form of practical exercise
of that power.
Cf. Dean Milk Co. v. City of Madison,
340 U. S. 349. It
is plain to us that the ordinance in question, though aimed at
obscene matter, has such a tendency to inhibit constitutionally
protected expression that it cannot stand under the
Constitution.
Reversed.
[
Footnote 1]
The ordinance is § 41.01.1 of the Municipal Code of the City of
Los Angeles. It provides:
"INDECENT WRITINGS, ETC. -- POSSESSION PROHIBITED"
"It shall be unlawful for any person to have in his possession
any obscene or indecent writing, book, pamphlet, picture,
photograph, drawing, figure, motion picture film, phonograph
recording, wire recording or transcription of any kind in any of
the following places:"
"1. In any school, school-grounds, public park or playground or
in any public place, grounds, street or way within 300 yards of any
school, park or playground;"
"2. In any place of business where ice-cream, soft drinks,
candy, food, school supplies, magazines, books, pamphlets, papers,
pictures or postcards are sold or kept for sale;"
"3. In any toilet or restroom open or the public;"
"4. In any poolroom or billiard parlor, or in any place where
alcoholic liquor is sold or offered for sale to the public;"
"5. In any place where phonograph records, photographs, motion
pictures, or transcriptions of any kind are made, used, maintained,
sold or exhibited."
[
Footnote 2]
In this sort of proceeding, "the highest court of a State in
which a decision could be had." 28 U.S.C. § 1257. Cal.Const. art.
VI, §§ 4, 4b, 5.
See Edwards v. People of State of
California, 314 U. S. 160,
314 U. S.
171.
[
Footnote 3]
See Hall, General Principles of Criminal Law, p. 280.
The Appellate Department's opinion is at
161
Cal. App. 2d Supp. 860, 327 P.2d 636. The ordinance's
elimination of
scienter was, in fact, a reason assigned by
that court for upholding it as permissible supplementary municipal
legislation against the contention that the field was occupied by
California Penal Code, § 311, a statewide obscenity statute which
requires
scienter.
[
Footnote 4]
These other contentions, which are made again here, are that
evidence of a nature constitutionally required to be allowed to be
given for the defense as to the obscene character of a book was not
permitted to be introduced; that a constitutionally impermissible
standard of obscenity was applied by the trier of the facts, and
that the book was not, in fact, obscene. In the light of our
determination as to the constitutional permissibility of a strict
liability law under the circumstances presented by this case, we
need not pass on these questions. For the purposes of discussion,
we shall assume without deciding that the book was correctly
adjudged below to be obscene.
[
Footnote 5]
See also Williams, Criminal Law -- The General Part, p.
238
et seq.
[
Footnote 6]
See Note, 61 Harv.L.Rev. 1208.
[
Footnote 7]
In the
Roth opinion, there was also decided
Alberts
v. California, which dealt with the power of the States in
this area.
[
Footnote 8]
The effectiveness of absolute criminal liability laws in
promoting caution has been subjected to criticism.
See
Hall, General Principles of Criminal Law, pp. 300-301.
See
generally Williams, Criminal Law -- The General Part, pp.
267-274; Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55; Mueller,
On Common Law
Mens Rea, 42 Minn.L.Rev. 1043;
Morissette v. United States, 342 U.
S. 246.
[
Footnote 9]
Common law prosecutions for the dissemination of obscene matter
strictly adhered to the requirement of
scienter.
See the discussion in
Attorney-General v.
Simpson, 93 Irish L.T. 33, 37-38 (Dist.Ct.).
Cf.
Obscene Publications Act, 1959, 7 & 8 Eliz. 2, c. 66, § 2(5);
American Law Institute Model Penal Code § 207.10(7) (Tentative
Draft No. 6, May 1957), and Comments, pp. 49-51.
The general California obscenity statute, Penal Code, § 311,
requires
scienter, see note 3 and was, of course, sustained by us in
Roth v.
United States, supra. See note 7.
[
Footnote 10]
We emphasized in
Roth, at p.
354 U. S. 484,
that there is a "limited area" where such other interests prevail,
and we listed representative decisions in note
14 at that page
MR. JUSTICE BLACK, concurring.
The appellant was sentenced to prison for possessing in his
bookstore an "obscene" book in violation of a Los Angeles city
ordinance. [
Footnote 2/1] I concur
in the judgment holding that ordinance unconstitutional, but not
for the reasons given in the Court's opinion.
Page 361 U. S. 156
The Court invalidates the ordinance solely because it penalizes
a bookseller for mere possession of an "obscene" book, even though
he is unaware of its obscenity. The grounds on which the Court
draws a constitutional distinction between a law that punishes
possession of a book with knowledge of its "obscenity" and a law
that punishes without such knowledge are not persuasive to me.
Those grounds are not conviction of a bookseller for possession of
an "obscene" book when he is unaware of its obscenity "will tend to
restrict the books he sells to those he has inspected," and
therefore "may tend to work a substantial restriction on freedom of
speech." The fact is, of course, that prison sentences for
possession of "obscene" books will seriously burden freedom of the
press whether punishment is imposed with or without knowledge of
the obscenity. The Court's opinion correctly points out how little
extra burden will be imposed on prosecutors by requiring proof that
a bookseller was aware of a book's contents when he possessed it.
And if the Constitution's requirement of knowledge is so easily
met, the result of this case is that one particular bookseller
gains his freedom, but the way is left open for state censorship
and punishment of all other booksellers by merely adding a few new
words to old censorship laws. Our constitutional safeguards for
speech and press therefore gain little. Their victory, if any, is
Pyrrhic one.
Cf. Beauharnais v. Illinois, 343 U.
S. 250,
343 U. S. 267,
at
343 U. S. 275
(dissenting opinion).
That it is apparently intended to leave the way open for both
federal and state governments to abridge speech and press (to the
extent this Court approves) is also indicated by the following
statements in the Court's opinion:
"'The door barring federal and state intrusion into this area
[freedom of speech and press] cannot be left ajar; it must be kept
tightly closed, and opened only the slightest crack necessary to
prevent encroachment upon more important interests.' . . . This
ordinance opens that door too far. "
Page 361 U. S. 157
This statement raises a number of questions for me. What are the
"more important" interests for the protection of which
constitutional freedom of speech and press must be given second
place? What is the standard by which one can determine when
abridgment of speech and press goes "too far," and when it is
slight enough to be constitutionally allowable? Is this momentous
decision to be left to a majority of this Court on a case-by-case
basis? What express provision or provisions of the Constitution put
freedom of speech and press in this precarious position of
subordination and insecurity?
Certainly the First Amendment's language leaves no room for
inference that abridgments of speech and press can be made just
because they are slight. That Amendment provides, in simple words,
that "Congress shall make no law . . . abridging the freedom of
speech, or of the press." I read "no law . . . abridging" to mean
no law abridging. The First Amendment, which is the
supreme law of the land, has thus fixed its own value on freedom of
speech and press by putting these freedoms wholly "beyond the
reach" of federal power to abridge. [
Footnote 2/2] No
Page 361 U. S. 158
other provision of the Constitution purports to dilute the scope
of these unequivocal commands of the First Amendment. Consequently,
I do not believe that any federal agencies, including Congress and
this Court, have power
Page 361 U. S. 159
or authority to subordinate speech and press to what they think
are "more important interests." The contrary notion is, in my
judgment, court-made, not Constitution-made.
State intrusion or abridgment of freedom of speech and press
raises a different question, since the First Amendment, by its
terms, refers only to laws passed by Congress. But I adhere to our
prior decisions holding that the Fourteenth Amendment made the
First applicable to the State.
See cases collected in the
concurring opinion in
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 530.
It follows that I am for reversing this case because I believe that
the Los Angeles ordinance sets up a censorship in violation of the
First and Fourteenth Amendments.
If, as it seems, we are on the way to national censorship, I
think it timely to suggest again that there are grave doubts in my
mind as to the desirability or constitutionality of this Court's
becoming a Supreme Board of Censors -- reading books and viewing
television performances to determine whether, if permitted, they
might adversely affect the morals of the people throughout the many
diversified local communities in this vast country. [
Footnote 2/3]
Page 361 U. S. 160
It is true that the ordinance here is, on its face, only
applicable to "obscene or indecent writing." It is also true that
this particular kind of censorship is considered by many to be "the
obnoxious thing in its mildest and least repulsive form. . . ."
But
"illegitimate and unconstitutional practices get their first
footing in that way. . . . It is the duty of courts to be watchful
for the constitutional rights of the citizen, and against any
stealthy encroachments thereon."
Boyd v. United States, 116 U.
S. 616,
116 U. S. 635.
While it is "obscenity and indecency" before us today, the
experience of mankind -- both ancient and modern -- shows that this
type of elastic phrase can, and most likely will, be synonymous
with the political, and maybe with the religious, unorthodoxy of
tomorrow.
Censorship is the deadly enemy of freedom and progress. The
plain language of the Constitution forbids it. I protest against
the Judiciary's giving it a foothold here.
[
Footnote 2/1]
As shown by
note 1 of the
Court's opinion the ordinance makes it unlawful to possess at
places defined any obscene or indecent writing, book, pamphlet,
picture, photograph, drawing, figure, motion picture film,
phonograph recording, wire recording or transcription of any
kind.
[
Footnote 2/2]
Another concurring opinion has said that it would wrong James
Madison and Thomas Jefferson to attribute to them the view that the
First Amendment places speech wholly beyond the reach of the
Federal Government. Of course, both men made many statements on the
subject of freedom of speech and press during their long lives, and
no one can define their precise views with complete certainty.
However, several statements by both Madison and Jefferson indicate
that they may have held the view that the concurring opinion terms
"doctrinaire absolutism."
James Madison, in exploring the sweep of the First Amendment's
limitation on the Federal Government when he offered the Bill of
Rights to Congress in 1789, is reported as having said, "the right
of freedom of speech is secured; the liberty of the press is
expressly declared to be
beyond the reach of this
Government. . . ." (Emphasis supplied.) 1 Annals of Cong. 738.
For reports of other discussions by Mr. Madison
see pp.
424-449, 660, 704-756. Eleven years later, he wrote:
"without tracing farther the evidence on this subject, it would
seem scarcely possible to doubt that no power whatever over the
press was supposed to be delegated by the Constitution, as it
originally stood, and that the amendment was intended as a positive
and absolute reservation of it."
6 Madison, Writings (Hunt ed. 1906), 341, 391,
and see
generally 385-393, 399.
Thomas Jefferson's views of the breadth of the First Amendment's
prohibition against abridgment of speech and press by the Federal
Government are illustrated by the following statement he made in
1798:
"[The First Amendment] thereby guard[s] in the same sentence,
and under the same words, the freedom of religion, of speech, and
of the press insomuch that whatever violates either throws down the
sanctuary which covers the others, and that libels, falsehood, and
defamation, equally with heresy and false religion, are withheld
from the cognizance of federal tribunals."
8 Jefferson, Writings (Ford ed. 1904), 464-465. For another
early discussion of the scope of the First Amendment as a complete
bar to all federal abridgment of speech and press,
see St.
George Tucker's comments on the adequacy of state forums and state
laws to grant all the protection needed against defamation and
libel. 1 Blackstone, Commentaries (Tucker ed. 1803) 299.
Of course, neither Jefferson nor Madison faced the problem
before the Court in this case, because it was not until the
Fourteenth Amendment was passed that any of the prohibitions of the
First Amendment were held applicable to the States. At the time
Jefferson and Madison lived, before the Fourteenth Amendment was
passed, the First Amendment did not prohibit the States from
abridging free speech by the enactment of defamation or libel laws.
Cf. 32 U. S.
Baltimore, 7 Pet. 243. But the meaning of the First Amendment,
as it was understood by two such renowned constitutional architects
as Jefferson and Madison, is important in this case because of our
prior cases holding that the Fourteenth Amendment applies the
First, with all the force it brings to bear against the Federal
Government, against the States.
See, e.g., West Virginia State
Board of Education v. Barnette, 319 U.
S. 624,
319 U. S. 639,
and other cases collected in
Speiser v. Randall,
357 U. S. 513,
357 U. S. 530
(concurring opinion).
But see Beauharnais v. Illinois,
343 U. S. 250,
343 U. S. 288
(Court and dissenting opinions).
[
Footnote 2/3]
Kingsley International Pictures Corp. v. Regents of
University of New York, 360 U. S. 684,
360 U. S.
690-691 (concurring opinion). The views of a concurring
opinion here, if accepted, would make this Court a still more
inappropriate "Board of Censors" for the whole country. That
opinion, conceding that "there is no external measuring rod of
obscenity," argues that the Constitution requires the issue of
obscenity to be determined on the basis of "contemporary community
standards" -- "the literary, psychological or moral standards of a
community." If, as argued in the concurring opinion, it violates
the Federal Constitution for a local court to reject the evidence
of "experts" on contemporary community standards of the vague word
"obscenity," it seems odd to say that this Court should have the
final word on what those community standards are or should be. I do
not believe the words "liberty" and "due process" in the Fourteenth
Amendment give this Court that much power.
MR. JUSTICE FRANKFURTER, concurring.
The appellant was convicted of violating the city ordinance of
Los Angeles prohibiting possession of obscene books in a bookshop.
His conviction was affirmed by the highest court of California to
which he could appeal, and it is the judgment of that court that we
are asked to reverse. Appellant claims three grounds of invalidity
under the Due Process Clause of the Fourteenth Amendment. He urges
the invalidity of the ordinance as an abridgment of the freedom of
speech which the guarantee of "liberty" of the Fourteenth Amendment
safeguards against state action, and this for the reason that
California law holds a bookseller criminally liable for possessing
an obscene book wholly apart from any
scienter on his part
regarding the book's obscenity. The second constitutional infirmity
urged by appellant is the exclusion of appropriately offered
testimony through duly qualified witnesses regarding the prevailing
literary standards
Page 361 U. S. 161
and the literary and moral criteria by which books relevantly
comparable to the book in controversy are deemed not obscene. This
exclusion deprived the appellant, such is the claim, of important
relevant testimony bearing on the issue of obscenity, and therefore
restricted him in making his defense. The appellant's ultimate
contention is that the questioned book is not obscene, and that a
bookseller's possession of it could not be forbidden.
The Court does not reach, and neither do I, the issue of
obscenity. The Court disposes of the case exclusively by sustaining
the appellant's claim that the "liberty" protected by the Due
Process Clause of the Fourteenth Amendment precludes a State from
making the dissemination of obscene books an offense merely because
a book in a bookshop is found to be obscene without some proof of
the bookseller's knowledge touching the obscenity of its
contents.
The Court accepts the settled principle of constitutional law
that traffic in obscene literature may be outlawed as a crime. But
it holds that one cannot be made amenable to such criminal outlawry
unless he is chargeable with knowledge of the obscenity. Obviously
the Court is not holding that a bookseller must familiarize himself
with the contents of every book in his shop. No less obviously, the
Court does not hold that a bookseller who insulates himself against
knowledge about an offending book is thereby free to maintain an
emporium for smut. How much or how little awareness that a book may
be found to be obscene suffices to establish
scienter, or
what kind of evidence may satisfy the how much or the how little,
the Court leaves for another day.
I am no friend of deciding a case beyond what the immediate
controversy requires, particularly when the limits of
constitutional power are at stake. On the other hand, a case before
this Court is not just a case. Inevitably its disposition carries
implications and gives directions
Page 361 U. S. 162
beyond its particular facts. Were the Court holding that this
kind of prosecution for obscenity requires proof of the guilty mind
associated with the concept of crimes deemed infamous, that would
be that and no further elucidation would be needed. But if the
requirement of
scienter in obscenity cases plays a role
different from the normal role of
mens rea in the
definition of crime, a different problem confronts the Court. If,
as I assume, the requirement of
scienter in an obscenity
prosecution like the one before us does not mean that the
bookseller must have read the book or must substantially know its
contents, on the one hand, nor, on the other, that he can exculpate
himself by studious avoidance of knowledge about its contents,
then, I submit, invalidating an obscenity statute because a State
dispenses altogether with the requirement of
scienter does
require some indication of the scope and quality of
scienter that is required. It ought at least to be made
clear, and not left for future litigation, that the Court's
decision, in its practical effect, is not intended to nullify the
conceded power of the State to prohibit booksellers from
trafficking in obscene literature.
Of course, there is an important difference in the scope of the
power of a State to regulate what feeds the belly and what feeds
the brain. The doctrine of
United States v. Balint,
258 U. S. 250, has
its appropriate limits. The rule that
scienter is not
required in prosecutions for so-called public welfare offenses is a
limitation on the general principle that awareness of what one is
doing is a prerequisite for the infliction of punishment.
See
Morissette v. United States, 342 U. S. 246. The
balance that is struck between this vital principle and the
overriding public menace inherent in the trafficking in noxious
food and drugs cannot be carried over in balancing the vital role
of free speech as against society's interest in dealing with
pornography. On the other hand, the constitutional
Page 361 U. S. 163
protection of non-obscene speech cannot absorb the
constitutional power of the States to deal with obscenity. It would
certainly wrong them to attribute to Jefferson or Madison a
doctrinaire absolutism that would bar legal restriction against
obscenity as a denial of free speech. [
Footnote 3/1]
Page 361 U. S. 164
We have not yet been told that all laws against defamation and
against inciting crime by speech,
see Fox v. Washington,
236 U. S. 273
(1915), are unconstitutional as impermissible curbs upon
unrestrictable utterance. We know this was not Jefferson's view,
any more than it was the view of Holmes and Brandeis, JJ., the
originating architects of our prevailing constitutional law
protective of freedom of speech.
Accordingly, the proof of
scienter that is required to
make prosecutions for obscenity constitutional cannot be of a
nature to nullify for all practical purposes the power of the State
to deal with obscenity. Out of regard for the State's interest, the
Court suggests an unguiding, vague standard for establishing
"awareness" by the bookseller of the contents of a challenged book
in contradiction of his disclaimer of knowledge of its contents. A
bookseller may, of course, be well aware of the nature of a book
and its appeal without having opened its cover or, in any true
sense, having knowledge of the book. As a practical matter,
therefore, the exercise of the constitutional right of a State to
regulate obscenity will carry with it some hazard to the
dissemination by a bookseller of non-obscene literature. Such
difficulties or hazards are inherent in many domains of the law for
the simple reason that law cannot avail itself of factors
ascertained quantitatively or even wholly impersonally.
The uncertainties pertaining to the scope of
scienter
requisite for an obscenity prosecution and the speculative proof
that the issue is likely to entail, are considerations that
reinforce the right of one charged with obscenity -- a right
implicit in the very nature of the legal concept of obscenity -- to
enlighten the judgment of the tribunal,
Page 361 U. S. 165
be it the jury or as in this case the judge, regarding the
prevailing literary and moral community standards and to do so
through qualified experts. It is immaterial whether the basis of
the exclusion of such testimony is irrelevance, or the incompetence
of experts to testify to such matters. The two reasons coalesce,
for community standards or the psychological or physiological
consequences of questioned literature can as a matter of fact
hardly be established except through experts. Therefore, to exclude
such expert testimony is, in effect, to exclude as irrelevant
evidence that goes to the very essence of the defense, and
therefore to the constitutional safeguards of due process. The
determination of obscenity no doubt rests with judge or jury. Of
course, the testimony of experts would not displace judge or jury
in determining the ultimate question whether the particular book is
obscene, any more than the testimony of experts relating to the
state of the art in patent suits determines the patentability of a
controverted device.
There is no external measuring rod for obscenity. Neither, on
the other hand, is its ascertainment a merely subjective reflection
of the taste or moral outlook of individual jurors or individual
judges. Since the law, through its functionaries, is "applying
contemporary community standards" in determining what constitutes
obscenity,
Roth v. United States, 354 U.
S. 476,
354 U. S. 489,
it surely must be deemed rational, and therefore relevant to the
issue of obscenity, to allow light to be shed on what those
"contemporary community standards" are. Their interpretation ought
not to depend solely on the necessarily limited, hit-or-miss,
subjective view of what they are believed to be by the individual
juror or judge. It bears repetition that the determination of
obscenity is, for juror or judge, not on the basis of his personal
upbringing or restricted reflection or particular experience of
life, but on the basis of "contemporary community standards."
Can
Page 361 U. S. 166
it be doubted that there is a great difference in what is to be
deemed obscene in 1959 compared with what was deemed obscene in
1859? The difference derives from a shift in community feeling
regarding what is to be deemed prurient or not prurient by reason
of the effects attributable to this or that particular writing.
Changes in the intellectual and moral climate of society, in part
doubtless due to the views and findings of specialists, afford
shifting foundations for the attribution. What may well have been
consonant "with mid-Victorian morals, does not seem to me to answer
to the understanding and morality of the present time."
United
States v. Kennerley, 209 F. 119, 120. This was the view of
Judge Learned Hand decades ago, reflecting an atmosphere of
propriety much closer to mid-Victorian days than is ours. Unless we
disbelieve that the literary, psychological or moral standards of a
community can be made fruitful and illuminating subjects of inquiry
by those who give their life to such inquiries, it was violative of
"due process" to exclude the constitutionally relevant evidence
proffered in this case. The importance of this type of evidence in
prosecutions for obscenity has been impressively attested by the
recent debates in the House of Commons dealing with the insertion
of such a provision in the enactment of the Obscene Publications
Act, 1959, 7 & 8 Eliz. 2, Ch. 66 [
Footnote 3/2] (
see 597 Parliamentary Debates,
H.Comm., No. 36 (December
Page 361 U. S. 167
16, 1958) cols. 1009-1010, 1042-1043; 604 Parliamentary Debates,
H.Comm., No. 100 (April 24, 1959), col. 803), as well as by the
most considered thinking on this subject in the proposed Model
Penal Code of the American Law Institute.
See A.L.I. Model
Penal Code, Tentative Draft No. 6 (1957), § 207.10. [
Footnote 3/3] For the reasons I have
indicated, I would make the right to introduce such evidence a
requirement of due process in obscenity prosecutions.
[
Footnote 3/1]
The publication of obscene printed matter was clearly
established as a common law offense in England in 1927 by the case
of
Rex v. Curl, 2 Str. 788, which overruled
Reg. v.
Read [1708], 11 Mod. 142, where it had been held that such
offenses were exclusively within the jurisdiction of the
ecclesiastical courts.
See also Rex v. Wilkes [1770]. The
common law liability was carried across the Atlantic before the
United States was established, and appears early in the States. In
1786, in New York, a copyright act specifically stated that
"nothing in this Act shall . . . authorise any Person or Persons
to . . . publish any Book . . . that may be profane, treasonable,
defamatory, or injurious to Government, Morals or Religion."
An Act to Promote Literature, Act of April 29, 1786, c. LIV, §
IV, 1 Laws of New York (Jones and Varick) (1777-1789) 321. In
Pennsylvania, in 1815, a prosecution was founded on common law
liability.
Commonwealth v. Sharpless, 2 Serg. & R. 91.
And in Maryland, when a statute regulating obscene publications was
enacted in 1853, it was recited that,
"although in the judgment of the Legislature, such
advertisements and publications are
contra bonos mores,
and punishable by the common law, it is desirable that the common
law in this regard be re-enacted and enforced; . . ."
Act of May 16, 1853, Md.Laws 1853, c. 183.
Moreover, as early as the eleventh year of the reign of Queen
Anne (1711-1712), well before the jurisdiction at common law
emerged in England, Massachusetts enacted a statute which
provided
"that whosoever shall be convicted of composing, writing,
printing or publishing, of any filthy obscene or prophane Song,
Pamphlet . . . shall be punished. . . ."
Acts of 1711-1712, c. I, Charter of the Province of the
Massachusetts Bay, p. 172 (1759). It is unclear whether the well
known prosecution in Massachusetts in 1821,
Commonwealth v.
Holmes, 17 Mass. 336, was founded on this statute or on common
law liability, although, in 1945, the Supreme Judicial Court
indicated that it regarded this early statute as having been in
effect until a successor enactment of 1835, Revised Statutes of the
Commonwealth of Massachusetts, c. 130, § 10 (1836).
Commonwealth v. Isenstadt, 318 Mass. 543, 547, 62 N.E.2d
840, note 1.
See also Grant and Angoff, Massachusetts and
Censorship, III, 10 B.U.L.Rev. 147 (1930). Thereafter, the offense
was made statutory in other States.
See, e.g., Act of
March 14, 1848, c. VIII, § 7, (1847-1848) Va.Laws 111; Act of May
16, 1853, c. 183 (1853) Laws of Maryland 212; Act of April 28,
1868, c. 430, 7 N.Y.Stat. at Large (1867-1870) 309.
[
Footnote 3/2]
Section 4 of this Act provides:
"(1) A person shall not be convicted of an offense against . . .
this Act . . . if it is proved that publication of the article in
question is justified as being for the public good on the ground
that it is in the interests of science, literature, art or
learning, or of other objects of general concern."
"(2) It is hereby declared that the opinion of experts as to the
literary, artistic, scientific or other merits of an article may be
admitted in any proceedings under this Act either to establish or
to negative the said ground."
[
Footnote 3/3]
Subsection (2) of this draft section provides in part:
". . . In any prosecution for an offense under this section
evidence shall be admissible to show:"
"(a) the character of the audience for which the material was
designed or to which it was directed;"
"(b) what the predominant appeal of the material would be for
ordinary adults or a special audience, and what effect, if any, it
would probably have no behavior of such people;"
"(c) artistic, literary, scientific, educational or other merits
of the material;"
"(d) the degree of public acceptance of the material in this
country;"
"(e) appeal to prurient interest, or absence thereof, in
advertising or other promotion of the material;"
"
* * * *"
"Expert testimony and testimony of the author, creator or
publisher relating to factors entering into the determination of
the issue of obscenity shall be admissible."
MR. JUSTICE DOUGLAS, concurring.
I need not repeat here all I said in my dissent in
Roth v.
United States, 354 U. S. 476,
354 U. S. 508,
to underline my conviction that neither the author nor the
distributor of this book can be punished under our Bill of Rights
for publishing or distributing it. The notion that obscene
publications or utterances were not included in free speech
developed in this country much later than the adoption of the First
Amendment, as the judicial and legislative
Page 361 U. S. 168
developments in this country show. Our leading authorities on
the subject have summarized the matter as follows:
"In the United States before the Civil War, there were few
reported decisions involving obscene literature. This, of course,
is no indication that such literature was not in circulation at
that time; the persistence of pornography is entirely too strong to
warrant such an inference. Nor is it an indication that the people
of the time were totally indifferent to the proprieties of the
literature they read. In 1851, Nathaniel Hawthorne's
The
Scarlet Letter was bitterly attacked as an immoral book that
degraded literature and encouraged social licentiousness. The lack
of cases merely means that the problem of obscene literature was
not thought to be of sufficient importance to justify arousing the
forces of the state to censorship."
Lockhart and McClure, Literature, The Law of Obscenity, and the
Constitution, 38 Minn.L.Rev. 295, 324-325.
Neither we nor legislatures have power, as I see it, to weigh
the values of speech or utterance against silence. The only grounds
for suppressing this book are very narrow. I have read it; and
while it is repulsive to me, its publication or distribution can be
constitutionally punished only on a showing not attempted here. My
view was stated in the
Roth case, 354 U.S. at
354 U. S.
514:
"Freedom of expression can be suppressed if, and to the extent
that, it is so closely brigaded with illegal action as to be an
inseparable part of it.
Giboney v. Empire Storage & Ice
Co., 336 U. S. 490,
336 U. S.
498;
Labor Board v. Virginia Electric & Power
Co., 314 U. S. 469,
314 U. S.
477-478. As a people, we cannot afford to relax that
standard. For the test that suppresses a cheap tract today can
suppress a literary gem tomorrow. All it need do is
Page 361 U. S. 169
to incite a lascivious thought or arouse a lustful desire. The
list of books that judges or juries can place in that category is
endless."
Yet my view is in the minority; and rather fluid tests of
obscenity prevail which require judges to read condemned literature
and pass judgment on it. This role of censor in which we find
ourselves is not an edifying one. But since, by the prevailing
school of thought, we must perform it, I see no harm, and perhaps
some good, in the rule fashioned by the Court which requires a
showing of
scienter. For it recognizes implicitly that
these First Amendment rights, by reason of the strict command in
that Amendment -- a command that carries over to the States by
reason of the Due Process Clause of the Fourteenth Amendment -- are
preferred rights. What the Court does today may possibly provide
some small degree of safeguard to booksellers by making those who
patrol bookstalls proceed less high handedly than has been their
custom.
*
*
See Chafee, Free Speech in the United States (1941),
pp. 536-540; Lockhart and McClure, Literature, The Law of
Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 302-316;
Daniels, The Censorship of Books (1954), p. 76
et seq.;
Blanshard, The Right of Read (1955), pp. 180
et seq.;
Fellman, The Censorship of Books (1957).
And see New American
Library of World Literature v. Allen, 114 F.
Supp. 823.
MR. JUSTICE HARLAN, concurring in part and dissenting in
part.
The striking down of local legislation is always serious
business for this Court. In my opinion in the
Roth case,
354 U.S. at
354 U. S.
503-508, I expressed the view that state power in the
obscenity field has a wider scope than federal power. The question
whether
scienter is a constitutionally required element in
a criminal obscenity statute is
Page 361 U. S. 170
intimately related to the constitutional scope of the power to
bar material as obscene, for the impact of such a requirement on
effective prosecution may be one thing where the scope of the power
to proscribe is broad, and quite another where the scope is narrow.
Proof of
scienter may entail no great burden in the case
of obviously obscene material; it may, however, become very
difficult where the character of the material is more debatable. In
my view then, the
scienter question involves
considerations of a different order depending on whether a state or
a federal statute is involved. We have here a state ordinance, and,
on the meagre date before us, I would not reach the question
whether the absence of a
scienter element renders the
ordinance unconstitutional. I must say, however, that the
generalities in the Court's opinion striking down the ordinance
leave me unconvinced.
From the point of view of the free dissemination of
constitutionally protected ideas, the Court invalidates the
ordinance on the ground that its effect may be to induce
booksellers to restrict their offerings of nonobscene literary
merchandise through fear of prosecution for unwittingly having on
their shelves an obscene publication. From the point of view of the
State's interest in protecting its citizens against the
dissemination of obscene material, the Court, in effect, says that
proving the state of a man's mind is little more difficult than
proving the state of his digestion, but also intimates that a
relaxed standard of
mens rea would satisfy constitutional
requirements. This is, for me, too rough a balancing of the
competing interests at stake. Such a balancing is unavoidably
required in this kind of constitutional adjudication,
notwithstanding that it arises in the domain of liberty of speech
and press. A more critical appraisal of both sides of the
constitutional balance, not possible on the meagre material before
us,
Page 361 U. S. 171
seems to me required before the ordinance can be struck down on
this ground. For, as the concurring opinions of my Brothers BLACK
and FRANKFURTER show, the conclusion that this ordinance, but not
one embodying some element of
scienter, is likely to
restrict the dissemination of legitimate literature seems more
dialectical than real.
I am also not persuaded that the ordinance in question was
unconstitutionally applied in this instance merely because of the
state court's refusal to admit expert testimony. I agree with my
Brother FRANKFURTER that the trier of an obscenity case must take
into account "contemporary community standards,"
Roth v. United
States, 354 U. S. 476,
354 U. S. 489.
This means that, regardless of the elements of the offense under
state law, the Fourteenth Amendment does not permit a conviction
such as was obtained here [
Footnote
4/1] unless the work complained of is found substantially to
exceed the limits of candor set by contemporary community
standards. [
Footnote 4/2] The
community cannot, where liberty of speech and press are at issue,
condemn that which it generally tolerates. This being so, it
follows that due process -- "using that term in its primary sense
of an opportunity to be heard and to defend [a] substantive right,"
Brinkerhoff-Faris Trust & Savings Co. v. Hill,
281 U. S. 673,
281 U. S. 678
-- requires a State to allow a litigant
Page 361 U. S. 172
in some manner to introduce proof on this score. While a State
is not debarred from regarding the trier of fact as the embodiment
of community standards, competent to judge a challenged work
against those standards, [
Footnote
4/3] it is not privileged to rebuff all efforts to enlighten or
persuade the trier.
However, I would not hold that any particular kind of evidence
must be admitted -- specifically, that the Constitution requires
that oral opinion testimony by experts be heard. There are other
ways in which proof can be made, as this very case demonstrates.
Appellant attempted to compare the contents of the work with that
of other allegedly similar publications which were openly
published, sold and purchased, and which received wide general
acceptance. Where there is a variety of means, even though it may
be considered that expert testimony is the most convenient and
practicable method of proof, I think it is going too far to say
that such a method is constitutionally compelled, and that a State
may not conclude, for reasons responsive to its traditional
doctrines of evidence law, that the issue of community standards
may not be the subject of expert testimony. I know of no case where
this Court, on constitutional grounds, has required a State to
sanction a particular mode of proof.
In my opinion, this conviction is fatally defective in that the
trial judge, as I read the record, turned aside every attempt by
appellant to introduce evidence bearing on community standards. The
exclusionary rulings were not limited to offered expert testimony.
This had the effect of depriving appellant of the opportunity to
offer any proof on a constitutionally relevant issue. On this
ground, I would reverse the judgment below, and remand the case for
a new trial.
[
Footnote 4/1]
We are concerned in this instance with an objection to what a
book portrays, not to what it teaches.
Cf. Kingsley
International Pictures Corp. v. Regents, 360 U.
S. 684.
[
Footnote 4/2]
The most notable expression of this limitation is that of Judge
Learned Hand, in
United States v. Kennerley, 209 F. 119,
121:
"If there be no abstract definition, . . . should not the word
'obscene' be allowed to indicate the present critical point in the
compromise between candor and shame at which the community may have
arrived here and now?"
See also the exposition of this view in American Law
Institute, Model Penal Code (Tentative Draft No. 6), at 30. It may
be that the
Roth case embodies this restriction,
see 354 U.S. at
354 U. S. 487,
note 20;
but see id. at
354 U. S.
499-500 (separate opinion).
[
Footnote 4/3]
Such a view does not, of course, mean that the issue is to be
tried according to the personal standards of the judge or jury.