The Rhode Island Legislature created a Commission
"to educate the public concerning any book . . . or other thing
containing obscene, indecent or impure language, or manifestly
tending to the corruption of the youth as defined [in other
sections] and to investigate and recommend the prosecution of all
violations of said sections."
The Commission's practice was to notify a distributor that
certain books or magazines distributed by him had been reviewed by
the Commission and had been declared by a majority of its members
to be objectionable for sale, distribution or display to youths
under 18 years of age. Such notices requested the distributor's
"cooperation," and advised him that copies of the lists of
"objectionable" publications were circulated to local police
departments, and that it was the Commission's duty to recommend
prosecution of purveyors of obscenity. Four out-of-state publishers
of books widely distributed in the State sued in a Rhode Island
court for injunctive relief and a declaratory judgment that the law
and the practices thereunder were unconstitutional. The court found
that the effect of the Commission's notices was to intimidate
distributors and retailers and that they had resulted in the
suppression of the sale of the books listed. In this Court, the
State Attorney General conceded that the notices listed several
publications that were not obscene within this Court's definition
of the term.
Held: The system of informal censorship disclosed by
this record violates the Fourteenth Amendment. Pp.
372 U. S.
59-72.
(a) The Fourteenth Amendment requires that regulation by the
States of obscenity conform to procedures that will ensure against
the curtailment of constitutionally protected expression, which is
often separated from obscenity only by a dim and uncertain line.
Pp.
372 U. S.
65-66.
(b) Although the Rhode Island Commission is limited to informal
sanctions, the record amply demonstrates that it deliberately set
about to achieve the suppression of publications deemed
"objectionable," and succeeded in its aim. Pp.
372 U. S.
66-67.
(c) The acts and practices of the members and Executive
Secretary of the Commission were performed under color of state
law,
Page 372 U. S. 59
and so constituted acts of the State within the meaning of the
Fourteenth Amendment. P.
372 U. S.
68.
(d) The Commission's practice provides no safeguards whatever
against the suppression of nonobscene and constitutionally
protected matter, and it is a form of regulation that creates
hazards to protected freedoms markedly greater than those that
attend reliance upon criminal sanctions, which may be applied only
after a determination of obscenity has been made in a criminal
trial hedged about with the procedural safeguards of the criminal
process. Pp.
372 U. S.
68-70
(e) What Rhode Island has done, in fact, has been to subject the
distribution of publications to a system of prior administrative
restraints without any provision for notice and hearing before
publications are listed as "objectionable" and without any
provision for judicial review of the Commission's determination
that such publications are "objectionable." Pp.
372 U. S.
70-72.
Reversed and cause remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The Rhode Island Legislature created the "Rhode Island
Commission to Encourage Morality in Youth," whose members and
Executive Secretary are the appellees herein, and gave the
Commission,
inter alia,
". . . the duty . . . to educate the public concerning any book,
picture, pamphlet, ballad, printed paper or other thing containing
obscene, indecent or impure language, or manifestly tending to the
corruption of the youth as defined
Page 372 U. S. 60
in sections 13, 47, 48 and 49 of chapter 610 of the general
laws, as amended, and to investigate and recommend the prosecution
of all violations of said sections. . . . [
Footnote 1]"
The appellants brought this action in
Page 372 U. S. 61
the Superior Court of Rhode Island (1) to declare the law
creating the Commission in violation of the First and Fourteenth
Amendments, and (2) to declare unconstitutional and enjoin the acts
and practices of the appellees thereunder. The Superior Court
declined to declare the law creating the Commission
unconstitutional on its face, but granted the appellants an
injunction against the acts and practices of the appellees in
performance of their duties. The Supreme Court of Rhode Island
affirmed the Superior Court with respect to appellants first
prayer, but reversed the grant of injunctive relief. ___ R.I. ___,
176
A.2d 393 (1961). [
Footnote
2] Appellants brought this appeal, and we noted probable
jurisdiction, 370 U.S. 933. [
Footnote 3]
Appellants are four New York publishers of paperback books which
have for sometime been widely distributed in Rhode Island. Max
Silverstein & Sons is the exclusive wholesale distributor of
appellants publications throughout most of the State. The
Commission's practice has been to notify a distributor on official
Commission stationery that certain designated books or magazines
distributed by him had been reviewed by the Commission and had been
declared by a majority of its members to be objectionable for sale,
distribution or display to youths under 18 years of age.
Silverstein had received at least 35 such notices at the time this
suit was brought. Among
Page 372 U. S. 62
the paperback books listed by the Commission as "objectionable"
were one published by appellant Dell Publishing Co., Inc., and
another published by appellant Bantam Books, Inc. [
Footnote 4]
The typical notice to Silverstein either solicited or thanked
Silverstein, in advance, for his "cooperation" with the Commission,
usually reminding Silverstein of the Commission's duty to recommend
to the Attorney General prosecution of purveyors of obscenity.
[
Footnote 5] Copies of the
Page 372 U. S. 63
lists of "objectionable" publications were circulated to local
police departments, and Silverstein was so informed in the
notices.
Silverstein's reaction on receipt of a notice was to take steps
to stop further circulation of copies of the listed publications.
He would not fill pending orders for such publications, and would
refuse new orders. He instructed his field men to visit his
retailers and to pick up all unsold copies, and would then promptly
return them to the publishers. A local police officer usually
visited Silverstein shortly after Silverstein's receipt of a notice
to learn what action he had taken. Silverstein was usually able to
inform the officer that a specified number of the total of copies
received from a publisher had been returned. According to the
testimony, Silverstein acted as he did on receipt of the notice
"rather than face the possibility of some sort of a court action
against ourselves, as well as the people that we supply." His
"cooperation" was given to avoid becoming involved in a "court
proceeding" with a "duly authorized organization."
The Superior Court made fact findings and the following two,
supported by the evidence and not rejected by the Supreme Court of
Rhode Island, are particularly relevant:
"8. The effect of the said notices (those received by
Silverstein, including the two listing publications
Page 372 U. S. 64
of appellants) were [
sic] clearly to intimidate the
various book and magazine wholesale distributors and retailers and
to cause them, by reason of such intimidation and threat of
prosecution, (a) to refuse to take new orders for the proscribed
publications, (b) to cease selling any of the copies on hand, (c)
to withdraw from retailers all unsold copies, and (d) to return all
unsold copies to the publishers."
"9. The activities of the Respondents (appellees here) have
resulted in the suppression of the sale and circulation of the
books listed in said notices. . . ."
In addition to these findings, it should be noted that the
Attorney General of Rhode Island conceded on oral argument in this
Court that the books listed in the notices included several that
were not obscene within this Court's definition of the term.
Appellants argue that the Commission's activities under
Resolution 73, as amended, amount to a scheme of governmental
censorship devoid of the constitutionally required safeguards for
state regulation of obscenity, and thus abridge First Amendment
liberties, protected by the Fourteenth Amendment from infringement
by the States. We agree that the activities of the Commission are
unconstitutional, and therefore reverse the Rhode Island court's
judgment and remand the case for further proceedings not
inconsistent with this opinion. [
Footnote 6]
Page 372 U. S. 65
We held in
Alberts v. California, decided with
Roth
v. United States, 354 U. S. 476,
354 U. S. 485,
that "obscenity is not within the area of constitutionally
protected speech or press," and may therefore be regulated by the
States. But this principle cannot be stated without an important
qualification:
". . . [I]n
Roth itself, we expressly recognized the
complexity of the test of obscenity fashioned in that case and the
vital necessity in its application of safeguards to prevent denial
of 'the protection of freedom of speech and press for material
which does not treat
Page 372 U. S. 66
sex in a manner appealing to prurient interest.' [354 U.S. at
354 U. S. 488]. . . . It
follows that, under the Fourteenth Amendment, a State is not free
to adopt whatever procedures it pleases for dealing with obscenity
. . . without regard to the possible consequences for
constitutionally protected speech."
Marcus v. Search Warrant, 367 U.
S. 717,
367 U. S.
730-731.
Thus, the Fourteenth Amendment requires that regulation by the
States of obscenity conform to procedures that will ensure against
the curtailment of constitutionally protected expression, which is
often separated from obscenity only by a dim and uncertain line. It
is characteristic of the freedoms of expression in general that
they are vulnerable to gravely damaging, yet barely visible,
encroachments. Our insistence that regulations of obscenity
scrupulously embody the most rigorous procedural safeguards,
Smith v. California, 361 U. S. 147;
Marcus v. Search Warrant, supra, is therefore but a
special instance of the larger principle that the freedoms of
expression must be ringed about with adequate bulwarks.
See,
e.g., Thornhill v. Alabama, 310, U.S. 88;
Winters v. New
York, 333 U. S. 507;
NAACP v. Button, 371 U. S. 415.
"[T]he line between speech unconditionally guaranteed and speech
which may legitimately be regulated . . . is finely drawn. . . .
The separation of legitimate from illegitimate speech calls for . .
. sensitive tools. . . ."
Speiser v. Randall, 357 U. S. 513,
357 U. S.
525.
But, is it contended, these salutary principles have no
application to the activities of the Rhode Island Commission,
because it does not regulate or suppress obscenity, but simply
exhorts booksellers and advises them of their legal rights. This
contention, premised on the Commission's want of power to apply
formal legal sanctions, is untenable. It is true that appellants
books have not
Page 372 U. S. 67
been seized or banned by the State, and that no one has been
prosecuted for their possession or sale. But though the Commission
is limited to informal sanctions -- the threat of invoking legal
sanctions and other means of coercion, persuasion, and intimidation
-- the record amply demonstrates that the Commission deliberately
set about to achieve the suppression of publications deemed
"objectionable," and succeeded in its aim. [
Footnote 7] We are not the first court to look through
forms to the substance and recognize that informal censorship may
sufficiently inhibit the circulation of publications to warrant
injunctive relief. [
Footnote
8]
Page 372 U. S. 68
It is not as if this were not regulation by the State of Rhode
Island. The acts and practices of the members and Executive
Secretary of the Commission disclosed on this record were performed
under color of state law, and so constituted acts of the State
within the meaning of the Fourteenth Amendment.
Ex parte
Young, 209 U. S. 123.
Cf. Terry v. Adams, 345 U. S. 461.
These acts and practices directly and designedly stopped the
circulation of publications in many parts of Rhode Island. It is
true, as noted by the Supreme Court of Rhode Island, that
Silverstein was "free" to ignore the Commission's notices, in the
sense that his refusal to "cooperate" would have violated no law.
But it was found as a fact -- and the finding, being amply
supported by the record, binds us -- that Silverstein's compliance
with the Commission's directives was not voluntary. People do not
lightly disregard public officers' thinly veiled threats to
institute criminal proceedings against them if they do not come
around, and Silverstein's reaction, according to uncontroverted
testimony, was no exception to this general rule. The Commission's
notices, phrased virtually as orders, reasonably understood to be
such by the distributor, invariably followed up by police
visitations, in fact stopped the circulation of the listed
publications
ex proprio vigore. It would be naive to
credit the State's assertion that these blacklists are in the
nature of mere legal advice when
Page 372 U. S. 69
they plainly serve as instruments of regulation independent of
the laws against obscenity. [
Footnote 9]
Cf. Joint Anti-Fascist Refugee Committee
v. McGrath, 341 U. S. 123.
Herein lies the vice of the system. The Commission's operation
is a form of effective state regulation superimposed upon the
State's criminal regulation of obscenity and making such regulation
largely unnecessary. In thus obviating the need to employ criminal
sanctions, the State
Page 372 U. S. 70
has at the same time eliminated the safeguards of the criminal
process. Criminal sanctions may be applied only after a
determination of obscenity has been made in a criminal trial hedged
about with the procedural safeguards of the criminal process. The
Commission's practice is in striking contrast, in that it provides
no safeguards whatever against the suppression of nonobscene, and
therefore constitutionally protected, matter. It is a form of
regulation that creates hazards to protected freedoms markedly
greater than those that attend reliance upon the criminal law.
What Rhode Island has done, in fact, has been to subject the
distribution of publications to a system of prior administrative
restraints, since the Commission is not a judicial body and its
decisions to list particular publications as objectionable do not
follow judicial determinations that such publications may lawfully
be banned. Any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its constitutional
validity.
See Near v. Minnesota, 283 U.
S. 697;
Lovell v. City of Griffin, 303 U.
S. 444,
303 U. S. 451;
Schneider v. New Jersey, 308 U. S. 147,
308 U. S. 164;
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S. 306;
Niemotko v. Maryland, 340 U. S. 268,
340 U. S. 273;
Kunz v. New York, 340 U. S. 290,
340 U. S. 293;
Staub v. City of Baxley, 355 U. S. 313,
355 U. S. 321.
We have tolerated such a system only where it operated under
judicial superintendence and assured an almost immediate judicial
determination of the validity of the restraint. [
Footnote 10]
Kingsley
Page 372 U. S. 71
Books, Inc. v. Brown, 354 U. S. 436. The
system at bar includes no such saving features. On the contrary,
its capacity for suppression of constitutionally protected
publications is far in excess of that of the typical licensing
scheme held constitutionally invalid by this Court. There is no
provision whatever for judicial superintendence before notices
issue or even for judicial review of the Commission's
determinations of objectionableness. The publisher or distributor
is not even entitled to notice and hearing before his publications
are listed by the Commission as objectionable. Moreover, the
Commission's statutory mandate is vague and uninformative, and the
Commission has done nothing to make it more precise. Publications
are listed as "objectionable," without further elucidation. The
distributor is left to speculate whether the Commission considers
this publication obscene or simply harmful to juvenile morality.
For the Commission's domain is the whole of youthful morals.
Finally, we not that although the Commission's supposed concern is
limited to youthful readers, the "cooperation" it seeks from
distributors invariably entails the complete suppression of the
listed publications; adult readers are equally deprived of the
opportunity to purchase the publications in the State.
Cf.
Butler v. Michigan, 352 U. S. 380.
The procedures of the Commission are radically deficient. They
fall far short of the constitutional requirements of governmental
regulation of obscenity. We hold that the system of informal
censorship disclosed by this record violates the Fourteenth
Amendment.
In holding that the activities disclosed on this record are
constitutionally proscribed, we do not mean to suggest that private
consultation between law enforcement officers and distributors
prior to the institution of a judicial proceeding can never be
constitutionally permissible. We do not hold that law enforcement
officers must renounce all informal contacts with persons suspected
of violating
Page 372 U. S. 72
valid laws prohibiting obscenity. Where such consultation is
genuinely undertaken with the purpose of aiding the distributor to
comply with such laws and avoid prosecution under them, it need not
retard the full enjoyment of First Amendment freedoms. But that is
not this case. The appellees are not law enforcement officers; they
do not pretend that they are qualified to give or that they attempt
to give distributors only fair legal advice. Their conduct as
disclosed by this record shows plainly that they went for beyond
advising the distributors of their legal rights and liabilities.
Their operation was in fact a scheme of state censorship
effectuated by extra-legal sanctions; they acted as an agency not
to advise but to suppress.
Reversed and remanded.
MR. JUSTICE BLACK concurs in the result.
[
Footnote 1]
Resolution No. 73 H 1000, R.I.Acts and Resolves, January Session
1956, 1102-1103. The resolution created a "commission to encourage
morality in youth," to be composed of nine members appointed by the
Governor of the State. The members were to serve for staggered,
five-year terms. They were to receive no compensation, but their
expenses, as well as the expenses incurred in the operation of the
Commission generally, were to be defrayed out of annual
appropriations. The original mandate of the Commission was
superseded in part by Resolution No. 95 S. 444 R.I.Acts and
Resolves, January Session 1959, 880, which reads as follows:
"It shall be the duty of said commission to educate the public
concerning any book, picture, pamphlet, ballad, printed paper or
other thing containing obscene, indecent or impure language, as
defined in chapter 11-31 of the general laws, entitled 'Obscene and
objectionable publications and shows,' and to investigate and
recommend the prosecution of all violations of said sections, and
it shall be the further duty of said commission to combat juvenile
delinquency and encourage morality in youth by (a) investigating
situations which may cause, be responsible for or give rise to
undesirable behavior of juveniles, (b) educate the public as to
these causes and (c) recommend legislation, prosecution and/or
treatment which would ameliorate or eliminate said causes."
The Commission's activities are not limited to the circulation
of lists of objectionable publications. For example, the annual
report of the Commission issued in January 1960, recites in
part:
"In September, 1959, because of the many complaints from
outraged parents at the type of films being shown at the Rhode
Island Drive-Ins and also the lack of teen-age supervision while
parked, this Commission initiated and completed a survey on the
Drive-In Theatres in the State. High points of the survey note that
there are II (2) Drive-in theatres in Rhode Island which operate
through summer months and remain open until November and then for
week-ends during the winter, providing car heaters."
"
* * * *"
"Acting on its power to investigate causes of delinquency, the
Commission has met with several state officials for a discussion of
juvenile drinking, the myriad and complex causes of delinquency,
and legal aspects of the Commission's operations. It also held a
special meeting with Rhode Island police and legal officials in
September, 1959, for a discussion on the extent of delinquency in
Rhode Island and the possible formation of statewide organization
to combat it."
[
Footnote 2]
The action was brought pursuant to Title 9, c. 30, Gen.Laws
R.I., 1956 ed., as amended (Uniform Declaratory Judgments Act).
[
Footnote 3]
Our appellate jurisdiction is properly invoked, since the state
court judgment sought to be reviewed upheld a state statute against
the contention that, on its face and applied, the statute violated
the Federal Constitution. 28 U.S.C. § 1257(2).
Dahnke-Walker
Milling Co. v. Bondurant, 257 U. S. 282.
[
Footnote 4]
Peyton Place, by Grace Metalious, published (in paperback
edition) by appellant Dell Publishing Co., Inc.; The Bramble Bush,
by Charles Mergendahl, published (in paperback edition) by
appellant Bantam Books, Inc. Most of the other 106 publications
which, as of January, 1960, had been listed as objectionable by the
Commission were issues of such magazines as "Playboy," "Rogue,"
"Frolic," and so forth. The Attorney General of Rhode Island
described some of the 106 publications as "horror" comics which he
said were not obscene as this Court has defined the term.
[
Footnote 5]
The first notice received by Silverstein reads, in part, as
follows:
"This agency was established by legislative order in 1956 with
the immediate charge to prevent the sale, distribution or display
of indecent and obscene publications to youths and [
sic]
eighteen years of age."
"The Commissions (sic) have reviewed the following publications,
and by majority vote have declared they are completely
objectionable for sale, distribution or display for youths under
eighteen years of age."
"The Chiefs of Police have been given the names of the
aforementioned magazines with the order that they are not to be
sold, distributed or displayed to youths and [
sic]
eighteen years of age."
"The Attorney General will act for us in case of
noncompliance."
"The Commissioners trust that you will cooperate with this
agency in their work. . . ."
"Another list will follow shortly."
"Thanking you for your anticipated cooperation, I am,"
"Sincerely yours"
"Albert J. McAloon"
"Executive Secretary"
Another notice received by Silverstein reads in part:
"This list should be used as a guide in judging other similar
publications not named."
"Your cooperation in removing the listed and other objectionable
publications from your newstands [
sic] will be
appreciated. Cooperative action will eliminate the necessity of our
recommending prosecution to the Attorney General's department."
An undated "News Letter" sent to Silverstein by the Commission
reads in part:
"The lists (of objectionable publications) have been sent to
distributors and police departments. To the present, cooperation
has been gratifying."
[
Footnote 6]
Appellants standing has not been, nor could it be, successfully
questioned. The appellants have in fact suffered a palpable injury
as a result of the acts alleged to violate federal law, and at the
same time their injury has been a legal injury.
See Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.
S. 123,
341 U. S.
151-152 (concurring opinion). The finding that the
Commission's notices impaired sales of the listed publications,
which include two books published by appellants, establishes that
appellants suffered injury. It was a legal injury, although more
needs be said to demonstrate this. The Commission's notices were
circulated only to distributors and not, so far as appears, to
publishers. The Commission purports only to regulate distribution;
it has made no claim to having jurisdiction of out-of-state
publishers. However, if this were a private action, it would
present a claim, plainly justiciable, of unlawful interference in
advantageous business relations.
American Mercury, Inc., v.
Chase, 13 F.2d 224
(D.C.D.Mass.1926).
Cf. 1 Harper and James, Torts (1956),
§§ 6.11-6.12.
See also Pocket Books, Inc. v.
Walsh, 204 F.
Supp. 297 (D.C.D.Conn.1962). It makes no difference, so far as
appellants' standing is concerned, that the allegedly unlawful
interference here is the product of state action.
See Pierce v.
Society of Sisters, 268 U. S. 510;
Truax v. Raich, 239 U. S. 33;
Terrace v. Thompson, 263 U. S. 197,
263 U. S.
214-216;
Columbia Broadcasting System v. United
States, 316 U. S. 407,
316 U. S.
422-423. Furthermore, appellants are not in the position
of mere proxies arguing another's constitutional rights. The
constitutional guarantee of freedom of the press embraces the
circulation of books, as well as their publication,
Lovell v.
City of Griffin, 303 U. S. 444,
303 U. S. 452,
and the direct and obviously intended result of the Commission's
activities was to curtail the circulation in Rhode Island of books
published by appellants. Finally, pragmatic considerations argue
strongly for the standing of publishers in cases such as the
present one. The distributor who is prevented from selling a few
titles is not likely to sustain sufficient economic injury to
induce him to seek judicial vindication of his rights. The
publisher has the greater economic stake, because suppression of a
particular book prevents him from recouping his investment in
publishing it. Unless he is permitted to sue, infringements of
freedom of the press may too often go unremedied.
Cf. NAACP v.
State of Alabama ex rel. Patterson, 357 U.
S. 449,
357 U. S.
459.
[
Footnote 7]
For discussions of the problem of "informal censorship,"
see Lockhart and McClure, Censorship of Obscenity: The
Developing Constitutional Standards, 45 Minn.L.Rev. 5, 6-9 and n.
7-22 (1960); Note, Extra-legal Censorship of Literature, 33
N.Y.U.L.Rev. 989 (1958); Note, Entertainment: Public Pressures and
the Law, 71 Harv.L.Rev. 326, 344-347 (1957); Note, Regulation of
Comic Books, 68 Harv.L.Rev. 489, 494-499 (1955); Comment,
Censorship of Obscene Literature by Informal Governmental Action,
22 Univ. of Chi.L.Rev. 216 (1954); Lockhart and McClure,
Literature, the Law of Obscenity, and the Constitution, 38
Minn.L.Rev. 295, 309-316 (1954).
[
Footnote 8]
Threats of prosecution or of license revocation, or listings or
notifications of supposedly obscene or objectionable publications
or motion pictures, on the part of chiefs of police or prosecutors,
have been enjoined in a number of cases.
See Kingsley
International Pictures Corp. v. Blanc, 396 Pa. 448, 153 A.2d
243 (1959);
Bunis v. Conway, 17 A.D.2d 207, 234 N.Y.S.2d
435 (1962) (dictum);
Sunshine Book Co. v. McCaffrey, 4
A.D.2d 643, 168 N.Y.S.2d 268 (1957);
Random House, Inc., v.
Detroit, No. 555684 Chancery, Cir.Ct., Wayne County, Mich.,
March 29, 1957;
HMH Publishing Co. v.
Garrett, 151 F.
Supp. 903 (D.C.N.D.Ind.1957);
New American Library of World
Literature v. Allen, 114 F.
Supp. 823 (D.C.N.D.Ohio 1953);
Bantam Books, Inc. v.
Melko, 25 N.J.Super. 292,
96 A.2d 47 (Chancery 1953),
modified on other grounds,
14 N.J. 524,
103 A.2d
256 (1954);
Dearborn Publishing Co. v. Fitzgerald, 271
F. 479 (D.C.N.D.Ohio 1921);
Epoch Producing Corp. v.
Davis, 19 Ohio N.P. (N.S.) 465 (C.P.1917).
Cf. In re
Louisiana News Co., 187 F.
Supp. 241 (D.C.E.D.La.1960);
Roper v. Winner, 244
S.W.2d 355, 357 (Tex.Civ.App.1951);
American Mercury, Inc. v.
Chase, 13 F.2d 224
(D.C.D.Mass.1926). Relief has been denied in the following cases:
Pocket Books, Inc. v. Walsh, 204 F.
Supp. 297 (D.C.D.Conn.1962);
Dell Publishing Co. v.
Beggans, 110 N.J.Eq. 72, 158 A. 765 (Chancery 1932).
See
also Magtab Publishing Corp. v. Howard, 169 F. Supp.
65 (D.C.W.D.La.1959). None of the foregoing cases presents the
precise factual situation at bar, and we intimate no view one way
or the other as to their correctness.
[
Footnote 9]
We note that the Commission itself appears to have understood
its function as the proscribing of objectionable publications, and
not merely the giving of legal advice to distributors.
See
the first notice received by Silverstein, quoted in
note 5 supra. The minutes of one of
the Commission's meetings read in part:
". . . Father Flannery [a member of the Commission] noted that
he had been called about magazines proscribed by the Commission
remaining on sale after lists had been scent [
sic] to
distributors and police, to which Mr. McAloon suggested that it
could be that the same magazines were seen, but that it probably
was not the same edition proscribed by the Commission."
"Father Flannery questioned the statewide compliance by the
police, or anyone else, to get the proscribed magazines off the
stands. Mr. McAloon showed the Commissioners the questionnaires
sent to the chiefs of police from this office and returned to
us."
The minutes of another meeting read in part:
". . . Mr. Sullivan [member of the Commission] suggested calling
the Cranston Chief of Police to inquire the reason Peyton Place was
still being sold, distributed and displayed since the Police
departments had been advised of the Commission's vote."
Of course, it is immaterial whether, in carrying on the function
of censor, the Commission may have been exceeding its statutory
authority. Its acts would still constitute state action.
Ex
parte Young, 209 U. S. 123. The
issue of statutory authority was not raised or argued in this
litigation.
Our holding that the scheme of informal censorship here
constitutes state action is in no way inconsistent with
Standard Computing Scale Co. v. Farrell, 249 U.
S. 571. In that case, it was held that a bulletin of
specifications issued by the State Superintendent of Weights and
Measures could not be deemed state action for Fourteenth Amendment
purposes because the bulletin was purely advisory; the decision
turned on the fact that the bulletin was not coercive in
purport.
[
Footnote 10]
Nothing in the Court's opinion in
Times Film Corp. v.
Chicago, 365 U. S. 43, is
inconsistent with the Court's traditional attitude of disfavor
toward prior restraints of expression. The only question tendered
to the Court in that case was whether a prior restraint was
necessarily unconstitutional under all circumstances. In declining
to hold prior restraints unconstitutional
per se, the
Court did not uphold the constitutionality of any specific such
restraint. Furthermore, the holding was expressly confined to
motion pictures.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I adhere to the views I
expressed in
Roth v. United States, 354 U.
S. 476,
354 U. S.
508-514, respecting the very narrow scope of
governmental authority to suppress publications on the grounds of
obscenity. Yet as my Brother BRENNAN makes clear, the vice of Rhode
Island's system is apparent whatever one's view of the
constitutional status of "obscene" literature. This is censorship
in the raw; and, in my view, the censor and First Amendment rights
are incompatible. If a valid law has been violated, authors and
publishers and vendors can be made to account. But they would then
have on their side all the procedural safeguards of the Bill of
Rights, including trial by jury. From the viewpoint of the State,
that is a more cumbersome procedure, action on the majority vote of
the censors being far easier. But the Bill of Rights was designed
to fence in the Government
Page 372 U. S. 73
and make its intrusions on liberty difficult and its
interference with freedom of expression well-nigh impossible.
All nations have tried censorship, and only a few have rejected
it. Its abuses mount high. Today Iran censors news stories in such
a way as to make false or misleading some reports of reputable news
agencies. For the Iranian who writes the stories and lives in
Teheran goes to jail if he tells the truth. Thus censorship in
Teheran has as powerful extra-legal sanctions as censorship in
Providence.
The Providence regime is productive of capricious action. A
five-to-four vote makes a book "obscene." The wrong is compounded
when the issue, though closely balanced in the minds of
sophisticated men, is resolved against freedom of expression and on
the side of censorship. Judges, to be sure, often disagree as to
the definition of obscenity. But an established administrative
system that bans book after book, even though they muster four
votes out of nine, makes freedom of expression much more precarious
than it would be if unanimity were required. This underlines my
Brother BRENNAN's observation that the Providence regime "provides
no safeguards whatever against the suppression of nonobscene, and
therefore constitutionally protected, matter." Doubts are resolved
against, rather than for, freedom of expression.
The evils of unreviewable administrative action of this
character are as ancient as dictators. George Kennan, Siberia and
the Exile System (U. of Chi.1958) p. 60, gives insight into it:
"Mr. Borodin, another Russian author and a well known
contributor to the Russian magazine
Annals of the
Fatherland, was banished to the territory of Yakutsk on
account of the alleged 'dangerous' and 'pernicious' character of a
certain manuscript found in his house by the police during a
search. This
Page 372 U. S. 74
manuscript was a spare copy of an article upon the economic
condition of the province of Viatka, which Mr. Borodin had written
and sent to the above-named magazine, but which, up to that time,
had not been published. The author went to Eastern Siberia in a
convict's gray overcoat with a yellow ace of diamonds on his back,
and three or four months after his arrival in Yakutsk he had the
pleasure of reading in the
Annals of the Fatherland the
very same article for which he had been exiled. The Minister of the
Interior had sent him to Siberia merely for having in his
possession what the police called a 'dangerous' and 'pernicious'
manuscript, and then the St. Petersburg committee of censorship had
certified that another copy of that same manuscript was perfectly
harmless, and had allowed it to be published, without the change of
a line, in one of the most popular and widely circulated magazines
in the empire."
Thus, under the Czars, an all-powerful elite condemned to the
Siberia of that day an author whom a minority applauded.
Administrative fiat is as dangerous today as it was then.
MR. JUSTICE CLARK, concurring in the result.
As I read the opinion of the Court, it does much fine talking
about freedom of expression and much condemning of the Commission's
overzealous efforts to implement the State's obscenity laws for the
protection of Rhode Island's youth, but, as if shearing a hog,
comes up with little wool. In short, it creates the proverbial
tempest in a teapot over a number of notices sent out by the
Commission asking the cooperation of magazine distributors in
preventing the sale of obscene literature to juveniles.
Page 372 U. S. 75
The storm was brewed from certain inept phrases in the notices
wherein the Commission assumed the prerogative of issuing an
"order" to the police that certain publications which it deemed
obscene are "not to be sold, distributed or displayed to youths
under eighteen years of age" and stated that "[t]he Attorney
General will act for us in case of non-compliance." But, after all
this expostulation, the Court, being unable to strike down Rhode
Island's statute,
see Alberts v. California, 354 U.
S. 476 (1957), drops a demolition bomb on "the
Commission's practice" without clearly indicating what might be
salvaged from the wreckage. The Court, in condemning the
Commission's practice, owes Rhode Island the duty of articulating
the standards which must be met, lest the Rhode Island Supreme
Court be left at sea as to the appropriate disposition on
remand.
In my view, the Court should simply direct the Commission to
abandon its delusions of grandeur and leave the issuance of
"orders" to enforcement officials and "the State's criminal
regulation of obscenity" to the prosecutors, who can substitute
prosecution for "thinly veiled threats" in appropriate cases.
See Alberts v. California, supra. As I read the opinion,
this is the extent of the limitations contemplated by the Court,
leaving the Commission free, as my Brother HARLAN indicates, to
publicize its findings as to the obscene character of any
publication; to solicit the support of the public in preventing
obscene publications from reaching juveniles; to furnish its
findings to publishers, distributors and retailers of such
publications and to law enforcement officials; and, finally, to
seek the aid of such officials in prosecuting offenders of the
State's obscenity laws. This Court has long recognized that "the
primary requirements of decency may be enforced against obscene
publications."
Near v. Minnesota, 283 U.
S. 697,
283 U. S. 716
(1931);
See Kingsley Books,
Inc.
Page 372 U. S. 76
v. Brown, 354 U. S. 436
(1957). Certainly, in the face of rising juvenile crime and
lowering youth morality, the State is empowered consistent with the
Constitution to use the above procedures in attempting to dispel
the defilement of its youth by obscene publications. With this
understanding of the Court's holding, I join in its judgment,
believing that the limitations as outlined would have little
bearing on the efficacy of Rhode Island's law.
MR. JUSTICE HARLAN, dissenting.
The Court's opinion fails to give due consideration to what I
regard as the central issue in this case -- the accommodation that
must be made between Rhode Island's concern with the problem of
juvenile delinquency and the right of freedom of expression assured
by the Fourteenth Amendment.
Three reasons, as I understand the Court's opinion, are given
for holding the particular procedures adopted by the Rhode Island
Commission under this statute, though not the statute itself,
unconstitutional: (1) the Commission's activities, carried on under
color of state law, amount to a scheme of governmental censorship;
(2) its procedures lack adequate safeguards to protect nonobscene
material against suppression; and (3) the group's operations in the
field of youth morality may entail depriving the adult public of
access to constitutionally protected material.
In my opinion, none of these reasons is of overriding weight in
the context of what is obviously not an effort by the State to
obstruct free expression, but an attempt to cope with a most
baffling social problem.
I
This Rhode Island Commission was formed for the laudable purpose
of combatting juvenile delinquency. While there is as yet no
consensus of scientific opinion on the
Page 372 U. S. 77
causal relationship between youthful reading or viewing of "the
obscene" and delinquent behavior,
see Green, Obscenity,
Censorship, and Juvenile Delinquency, 14 U. of Toronto L.J. 229
(1962), Rhode Island's approach to the problem is not without
respectable support,
see S.Rep.No.2381, 84th Cong., 2d
Sess. (1956); Kefauver, Obscene and Pornographic Literature and
Juvenile Delinquency, 24 Fed.Prob. No. 4, p. 3 (Dec. 1960). The
States should have a wide range of choice in dealing with such
problems,
Alberts v. California, decided with
Roth v.
United States, 354 U. S. 476
(separate opinion of the writer, at
354 U. S.
500-502), and this Court should not interfere with state
legislative judgments on them except upon the clearest showing of
unconstitutionality.
I can find nothing in this record that justifies the view that
Rhode Island has attempted to deal with this problem in an
irresponsible way. I agree with the Court that the tenor of some of
the Commission's letters and reports is subject to serious
criticism, carrying as they do an air of authority which that body
does not possess and conveying an impression of consequences which
by no means may follow from noncooperation with the Commission. But
these are things which could surely be cured by a word to the wise.
They furnish no occasion for today's opaque pronouncements which
leave the Commission in the dark as to the permissible
constitutional scope of its future activities.
Given the validity of state obscenity laws,
Alberts v.
California, supra, I think the Commission is constitutionally
entitled (1) to express its views on the character of any published
reading or other material; (2) to endeavor to enlist the support of
law enforcement authorities, or the cooperation of publishers and
distributors, with respect to any material the Commission deems
obscene; and (3) to notify publishers, distributors, and members of
the public
Page 372 U. S. 78
with respect to its activities in these regards; but that it
must take care to refrain from the kind of overbearing utterances
already referred to and others that might tend to give any person
an erroneous impression as to either the extent of the Commission's
authority or the consequences of a failure to heed its warnings.
Since the decision of the Court does not require reinstatement of
the broad injunction issued by the trial court, [
Footnote 2/1] and since the majority's opinion
rests on the invalidity of the particular procedures the Commission
has pursued, I find nothing in that opinion denying the Commission
the right to conduct the activities, just enumerated, which I
believe it is constitutionally entitled to carry on.
II
It is said that the Rhode Island procedures lack adequate
safeguards against the suppression of the nonobscene, in that the
Commission may pronounce publications obscene without any prior
judicial determination or review. But the Commission's
pronouncement in any given instance is not self-executing. Any
affected distributor or publisher wishing to stand his ground on a
particular publication may test the Commission's views by way of a
declaratory judgment action [
Footnote
2/2] or suit for injunctive relief or by simply refusing to
accept the Commission's
Page 372 U. S. 79
opinion and awaiting criminal prosecution in respect of the
questioned work.
That the Constitution requires no more is shown by this Court's
decision in
Times Film Corp. v. Chicago, 365 U. S.
43. There, the petitioner refused to comply with a
Chicago ordinance requiring that all motion pictures be examined
and licensed by a city official prior to exhibition. It was
contended that regardless of the obscenity
vel non of any
particular picture and the licensing standards employed, this
requirement in itself amounted to an unconstitutional prior
restraint on free expression. Stating that there is no "absolute
freedom to exhibit, at least once, any and every kind of motion
picture," 365 U.S. at
365 U. S. 46,
this Court rejected that contention and remitted the petitioner to
a challenge of an application of the city ordinance to specific
films. The Court thus refused to countenance a "broadside attack"
on a system of regulation designed to prevent the dissemination of
obscene matter.
Certainly, with respect to a sophisticated publisher or
distributor, [
Footnote 2/3] and
shorn of embellishing mandatory language, this Commission's
advisory condemnation of particular publications does not create as
great a danger of restraint on expression as that involved in Times
Film, where exhibition of a film without a license was made a
crime. [
Footnote 2/4] Nor can such
danger be regarded as greater than that involved in the
pre-adjudication impact of the sequestration procedures sustained
by this Court in
Kingsley Books, Inc. v. Brown,
354 U. S. 436.
For
Page 372 U. S. 80
here, the Commission's action is attended by no legal sanctions,
and leaves distribution of the questioned material entirely
undisturbed.
This case bears no resemblance to what the Court refused to
sanction in
Marcus v. Search Warrant, 367 U.
S. 717. There, police officers, pursuant to Missouri
procedures, seized in a one-day foray under search warrants some
11,000 copies of 280 publications found at the appellants various
places of business and believed by the officers to be obscene. The
state court later found that only 100 out of the 280 publications
actually were obscene. In holding
"that Missouri's procedures, as applied . . . , lacked the
safeguards which due process demands to assure nonobscene material
the constitutional protection to which it is entitled,"
367 U.S. at
367 U. S. 731,
the Court emphasized the historical connection between the search
and seizure power and the stifling of liberty of expression. The
Missouri warrants gave the broadest discretion to each executing
officer, and left to his
ad hoc judgment on the spot, with
little or no opportunity for discriminating deliberation, which
publications should be seized as obscene. Since "there was no step
in the procedure before seizure designed to focus searchingly on
the question of obscenity," 367 U.S. at
367 U. S. 732,
it was to be expected that much of the material seized under these
procedures would turn out not to be obscene, as indeed was later
found by the state court in that very case.
No such hazards to free expression exist in the procedures I
regard as permissible in the present case. Of cardinal importance,
dissemination of a challenged publication is not physically or
legally impeded in any way. Furthermore, the advisory condemnations
complained of are the product not of hit-or-miss police action, but
of a deliberative body whose judgments are limited by standards
Page 372 U. S. 81
embraced in the State's general obscenity statute, the
constitutionality of which is not questioned in this case.
The validity of the foregoing considerations is not, in my
opinion, affected by the state court findings that one of
appellants distributors was led to withdraw publications, thought
obscene by the Commission, because of fear of criminal prosecution.
For this record lacks an element without which those findings are
not of controlling constitutional significance in the context of
the competing state and individual interests here at stake: there
is no showing that Rhode Island has put any roadblocks in the way
of any distributor's or publisher's recourse to the courts to test
the validity of the Commission's determination respecting any
publication, or that the purpose of these procedures was to stifle
freedom of expression.
It could not well be suggested, as I think the Court concedes,
that a prosecutor's announcement that he intended to enforce
strictly the obscenity laws or that he would proceed against a
particular publication unless withdrawn from circulation amounted
to an unconstitutional restraint upon freedom of expression, still
less that such a restraint would occur from the mere existence of a
criminal obscenity statute. Conceding that the restrictive effect
of the Commission's procedures on publishers, and
a
fortiori on independent distributors, may be greater than in
either of those situations, I do not believe that the differences
are of constitutional import in the absence of either of the two
factors indicated in the preceding paragraph. The circumstance that
places the Commission's permissible procedures on the same
constitutional level as the illustrations just given is the fact
that in each instance the courts are open to the person affected,
and that any material, however questionable, may be freely
sponsored, circulated, read, or viewed until judicially
condemned.
Page 372 U. S. 82
In essence, what the Court holds is that these publishers or
their distributors need not, with respect to any material
challenged by the Commission, vindicate their right to its
protection in order to bring the Constitution to their aid. The
effect of this holding is to cut into this effort of the State to
get at the juvenile delinquency problem, without this Court or any
other ever having concretely focused on whether any of the specific
material called in question by the Commission is or is not entitled
to protection under constitutional standards established by our
decisions. [
Footnote 2/5]
This seems to me to weight the accommodation which should be
made between the competing interests that this case presents
entirely against the legitimate interests of the State. I believe
that the correct course is to refuse to countenance this "broadside
attack" on these state procedures and, with an appropriate caveat
as to the character of some of the Commission's past utterances, to
remit the appellants to their remedies respecting particular
publications challenged by the Commission, as was done in the
Times Film case. Putting these publishers and their
distributors to the pain of vindicating challenged materials is not
to place them under unusual hardship, for, as this Court has said
in another context, "Bearing the discomfiture and cost" even of "a
prosecution for crime [though] by an innocent person is one of the
painful obligations of citizenship."
Cobbledick v. United
States, 309 U. S. 323,
309 U. S.
325.
III
The Court's final point -- that the Commission's activities may
result in keeping from the adult public protected material, even
though suppressible so far as youth is concerned
Page 372 U. S. 83
-- requires little additional comment. It is enough to say that
such a determination should not be made at large, as has been done
here. It should await a case when circumspect judgment can be
brought to bear upon particular judicially suppressed
publications.
Believing that the Commission, once advised of the permissible
constitutional scope of its activities, can be counted on to
conduct itself accordingly, I would affirm the judgment of the
Rhode Island Supreme Court.
Cf. United States v. Haley,
371 U. S. 18.
[
Footnote 2/1]
The appellees were enjoined
"from directly or indirectly notifying book and magazine
wholesale distributors and retailers that the Commission has found
objectionable any specific book or magazine for sale, distribution
or display; said injunction . . . (to) apply whether such
notification is given directly to said book and magazine wholesale
distributors and retailers, or any of them, either orally or in
writing, or through the publication of lists or bulletins, and
irrespective of the manner of dissemination of such lists or
bulletins."
[
Footnote 2/2]
Rhode Island Gen.Laws (Supp.1961), Tit. 9, c. 30 (Uniform
Declaratory Judgments Act.).
[
Footnote 2/3]
The publishers and distributors involved in this case are all,
so far as this record shows, substantial business concerns,
presumably represented by competent counsel, as were the appellants
here.
[
Footnote 2/4]
It seems obvious that in a nonlicensing context the force of
Times Film is not lessened by the circumstance that in
this case books rather than motion pictures are involved.
[
Footnote 2/5]
In their Reply Brief (p. 4), appellants acknowledge: "We have
never attempted to deal with the question of obscenity or
nonobscenity of Appellants books."