A state statute defined obscenity, proscribed distribution of
obscene materials, and authorized their seizure before, and their
destruction after, an adversary determination of their obscenity.
Though the statute required the filing of a verified information by
the county attorney or attorney general stating only that there "is
[an] . . . obscene book . . . located within his county," the
information filed by the attorney general went further and
identified by title 59 allegedly obscene novels which were stated
to have been published under a certain caption; copies of seven
novels published under that caption were filed with the
information; and an
ex parte inquiry was held by the
district judge during which he "scrutinized" the seven books,
concluding that they appeared obscene, and afforded grounds to
believe that any paper-backed novels published under the same
caption were obscene. His warrant authorized seizure at the place
of business of appellants' "News Service" of the novels identified
by title in the Information. Thirty-one of the titles were found on
appellants' premises when the warrant was executed, and all 1,715
copies of them were seized. At a hearing ten days after seizure,
the court denied appellants' claim that, by failing to afford a
pre-seizure hearing on the question whether the books were obscene,
the statutory procedure operated as an unconstitutional prior
restraint. Following a final hearing held about seven weeks after
seizure, the court held the 31 novels obscene and ruled that the
seized copies should be destroyed on further order. The State
Supreme Court affirmed the lower court's order.
Held: the judgment of the State Supreme Court is
reversed. Pp.
378 U. S.
206-215.
191 Kan. 13,
379 P.2d 254,
reversed.
MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE, MR. JUSTICE
WHITE, and MR. JUSTICE GOLDBERG, without reaching the question
whether the novels were obscene, concluded that the procedure
followed in issuing and executing the warrant of seizure prior to a
hearing on the issue of obscenity was unconstitutional under the
First Amendment, made applicable to the States by the Fourteenth
Amendment, because (a) it authorized the sheriff to seize all
copies of the specified titles and (b) it did not afford a hearing
before the
Page 378 U. S. 206
warrant issued on the obscenity of even the seven novels filed
with the Information. Pp.
378 U. S.
208-213.
MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that
it is not necessary to consider the procedural questions, since the
state statute is unconstitutional under the First Amendment, made
applicable to the States by the Fourteenth Amendment. Pp.
378 U. S.
213-214.
MR. JUSTICE STEWART concluded that the state statute could not
constitutionally suppress the books, because they were not "hard
core pornography." Pp.
378 U. S.
214-215.
MR. JUSTICE BRENNAN announced the judgment of the Court and
delivered an opinion in which THE CHIEF JUSTICE, MR. JUSTICE WHITE,
and MR. JUSTICE GOLDBERG join.
Under a Kansas statute authorizing the seizure of allegedly
obscene books before an adversary determination
Page 378 U. S. 207
of their obscenity and, after that determination, their
destruction by burning or otherwise, [
Footnote 1] the Attorney General of Kansas obtained an
order from the District Court of Geary County directing the sheriff
of the county to seize and impound, pending hearing, copies of
certain
Page 378 U. S. 208
paperback novels at the place of business of P-K News Service,
Junction City, Kansas. After hearing, the court entered a second
order directing the sheriff to destroy the 1,715 copies of 31
novels which had been seized. The Kansas Supreme Court held that
the procedures met constitutional requirements, and affirmed the
District Court's order. 191 Kan. 13,
379 P.2d 254.
Probable jurisdiction was noted, 375 U.S. 919. We conclude that the
procedures followed in issuing the warrant for the seizure of the
books, and authorizing their impounding pending hearing, were
constitutionally insufficient because they did not adequately
safeguard against the suppression of nonobscene books. For this
reason, we think the judgment must be reversed. Therefore, we do
not reach, and intimate no view upon, the appellants' contention
that the Kansas courts erred in holding that the novels are
obscene.
Section 4 of the Kansas statute requires the filing of a
verified information stating only that, "upon information and
belief . . . , there is [an] . . . obscene book . . . located
within his county." The State Attorney General went further,
however, and filed an information identifying by title 59 novels,
and stating that "each of said books [has] been published as
This is an original Nightstand Book.'" He also filed with the
information copies of seven novels published under that caption,
six of which were named by title in the information; particular
passages in the seven novels were marked with penciled notations or
slips of paper. Although also not expressly required by the
statute, the district judge, on application of the Attorney
General, conducted a 45-minute ex parte inquiry during
which he "scrutinized" the seven books; at the conclusion of this
examination, he stated for the record that they "appear to be
obscene literature as defined" under the Kansas statute
"and give this Court reasonable grounds to believe that any
paper-backed
Page 378 U. S. 209
publication carrying the following: 'This is an original Night
Stand book' would fall w thin the same category. . . ."
He issued a warrant which authorized the sheriff to seize only
the particular novels identified by title in the information. When
the warrant was executed on the date it was issued, only 31 of the
titles were found on P-K's premises. All copies of such titles,
however, 1,715 books in all, were seized and impounded. At the
hearing held 10 days later pursuant to a notice included in the
warrant, P-K made a motion to quash the information and the warrant
on the ground, among others, that the procedure preceding the
seizure was constitutionally deficient. The claim was that, by
failing first to afford P-K a hearing on the question whether the
books were obscene, the procedure "operates as a prior restraint on
the circulation and dissemination of books," in violation of the
constitutional restrictions against abridgment of freedom of speech
and press. The motion was denied, and, following a final hearing
held about seven weeks after the seizure (the hearing date was
continued on motion of P-K), the court held that all 31 novels were
obscene and ordered the sheriff to stand ready to destroy the 1,715
copies on further order.
The steps taken beyond the express requirements of the statute
were thought by the Attorney General to be necessary under our
decision in
Marcus v. Search Warrant, 367 U.
S. 717, decided a few weeks before the information was
filed.
Marcus involved a proceeding under a strikingly
similar Missouri search and seizure statute and implementing rule
of court.
See 367 U. S. 719
at notes
2 3 In
Marcus, the warrant gave the police
virtually unlimited authority to seize any publications which they
considered to be obscene, and was issued on a verified complaint
lacking any specific description of the publications to be seized,
and without prior submission of any publications whatever to the
judge issuing the warrant.
Page 378 U. S. 210
We reversed a judgment directing the destruction of the copies
of 100 publications held to be obscene, holding that, even assuming
that they were obscene, the procedures leading to their
condemnation were constitutionally deficient for lack of safeguards
to prevent suppression of nonobscene publications protected by the
Constitution.
It is our view that, since the warrant here authorized the
sheriff to seize all copies of the specified titles, and since P-K
was not afforded a hearing on the question of the obscenity even of
the seven novels before the warrant issued, the procedure was
likewise constitutionally deficient. [
Footnote 2] This is the teaching of
Kingsley Books,
Inc. v. Brown, 354 U. S. 436.
See Marcus at pp.
367 U. S. 734-738. The New York injunctive procedure
there sustained does not afford
ex parte relief, but
postpones all injunctive relief until "both sides have had an
opportunity to be heard."
Tenney v. Liberty News
Distributors, 13 A.D.2d 770, 215 N.Y.S.2d 663, 664. In
Marcus, we explicitly said that
Kingsley
Books
"does not support the proposition that the State may impose the
extensive restraints imposed here on the distribution of these
publications prior to an adversary proceeding on the issue of
obscenity, irrespective of whether or not the material is legally
obscene."
367 U.S. at
367 U. S.
735-736. A seizure of all copies of the named titles is
indeed more repressive than an injunction preventing further sale
of the books. State regulation of obscenity must
"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."
Bantam Books, Inc. v. Sullivan, 372 U. S.
58,
372 U. S. 66;
the Constitution requires a procedure "designed to focus
searchingly on the question of obscenity,"
Marcus, p.
367 U. S. 732.
We therefore
Page 378 U. S. 211
conclude that in not first affording P-K an adversary hearing,
the procedure leading to the seizure order was constitutionally
deficient. What we said of the Missouri procedure,
id. at
367 U. S.
736-737, also fits the Kansas procedure employed to
remove these books from circulation:
". . . there is no doubt that an effective restraint -- indeed,
the most effective restraint possible -- was imposed prior to
hearing on the circulation of the publications in this case,
because all copies on which the [sheriff] could lay [his] hands
were physically removed . . . from the premises of the wholesale
distributor. An opportunity . . . to circulate the [books] . . .
and then raise the claim of nonobscenity by way of defense to a
prosecution for doing so was never afforded these appellants,
because the copies they possessed were taken away. Their ability to
circulate their publications was left to the chance of securing
other copies, themselves subject to mass seizure under other such
warrants. The public's opportunity to obtain the publications was
thus determined by the distributor's readiness and ability to
outwit the police by obtaining and selling other copies before
they, in turn, could be seized. In addition to its unseemliness, we
do not believe that this kind of enforced competition affords a
reasonable likelihood that nonobscene publications, entitled to
constitutional protection, will reach the public. A distributor may
have every reason to believe that a publication is constitutionally
protected and will be so held after judicial hearing, but his
belief is unavailing as against the contrary [
ex parte]
judgment [pursuant to which the sheriff] . . . seizes it from
him."
It is no answer to say that obscene books are contraband, and
that, consequently, the standards governing searches and seizures
of allegedly obscene books should
Page 378 U. S. 212
not differ from those applied with respect to narcotics,
gambling paraphernalia and other contraband. We rejected that
proposition in
Marcus. We said, 367 U.S. at
367 U. S.
730-731:
"The Missouri Supreme Court's assimilation of obscene literature
to gambling paraphernalia or other contraband for purposes of
search and seizure does not, therefore, answer the appellants'
constitutional claim, but merely restates the issue whether
obscenity may be treated in the same way. The authority to the
police officers under the warrants issued in this case broadly to
seize 'obscene . . . publications' poses problems not raised by the
warrants to seize 'gambling implements' and 'all intoxicating
liquors' involved in the cases cited by the Missouri Supreme Court.
334 S.W.2d at 125. For the use of these warrants implicates
questions whether the procedures leading to their issuance and
surrounding their execution were adequate to avoid suppression of
constitutionally protected publications."
" . . . [T]he line between speech unconditionally guaranteed and
speech which may legitimately be regulated, suppressed, or punished
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. It follows that, under the Fourteenth Amendment, a
State is not free to adopt whatever procedures it pleases for
dealing with obscenity as here involved without regard to the
possible consequences for constitutionally protected speech."
See also Smith v. California, 361 U.
S. 147,
361 U. S.
152-153.
Nor is the order under review saved because, after all 1,715
copies were seized and removed from circulation, P-K News Service
was afforded a full hearing on the
Page 378 U. S. 213
question of the obscenity of the novels. For if seizure of books
precedes an adversary determination of their obscenity, there is
danger of abridgment of the right of the public in a free society
to unobstructed circulation of onobscene books.
Bantam Books v.
Sullivan, supra; Roth v. United States, 354 U.
S. 476;
Marcus v. Search Warrant, supra; Smith v.
California, supra. Here, as in
Marcus, "[s]ince a
violation of the Fourteenth Amendment infected the proceedings, in
order to vindicate appellants' constitutional rights," 367 U.S. at
367 U. S. 738,
the judgment resting on a finding of obscenity must be
reversed.
Reversed.
[
Footnote 1]
The statute is Kan.Gen.Stat. § 21-1102
et seq.
(Supp.1961). Section 1 of Kan.Laws 1961, c. 186 (§ 21-1102),
constitutes the selling or distribution of obscene materials
(obscenity is defined in § 1(b)) a criminal misdemeanor punishable
by fine or imprisonment or both. Section 4 (§ 21-1102c) provides
for the search and seizure procedure here involved:
"Whenever any district, county, common pleas, or city court
judge or justice of the peace shall receive an information or
complaint, signed and verified upon information and belief by the
county attorney or the attorney general, stating there is any
prohibited lewd, lascivious or obscene book, magazine, newspaper,
writing, pamphlet, ballad, printed paper, print, picture, motion
pictures, drawing, photograph, publication or other thing, as set
out in section 1[21-1102](
a) of this act, located within
his county, it shall be the duty of such judge to forthwith issue
his search warrant directed to the sheriff or any other duly
constituted peace officer to seize and bring before said judge or
justice such a prohibited item or items. Any peace officer seizing
such item or items as hereinbefore described shall leave a copy of
such warrant with any manager, servant, employee or other person
appearing or acting in the capacity of exercising any control over
the premises where such item or items are found or, if no person is
there found, such warrant may be posted by said peace officer in a
conspicuous place upon the premises where found and said warrant
shall serve as notice to all interested persons of a hearing to be
had at a time not less than ten (10) days after such seizure. At
such hearing, the judge or justice issuing the warrant shall
determine whether or not the item or items so seized and brought
before him pursuant to said warrant were kept upon the premises
where found in violation of any of the provisions of this act. If
he shall so find, he shall order such item or items to be destroyed
by the sheriff or any duly constituted peace officer by burning or
otherwise, at such time as such judge shall order, and satisfactory
return thereof made to him:
Provided, however, such item
or items shall not be destroyed so long as they may be needed as
evidence in any criminal prosecution."
[
Footnote 2]
P-K News Service also asserts that its constitutional right
against unreasonable searches and seizures was violated. The result
here makes it unnecessary to pass upon this contention.
Opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS
joins.
The Kansas State Court judgment here under review orders that
1,715 copies of 31 novels be burned or otherwise destroyed. This
book-burning judgment was based upon findings by the trial judge
that "the core [of the books] would seem to be that of sex, with
the plot, if any, being subservient thereto," that the "dominant
purpose [of the books] was calculated to effectively incite sexual
desires," and that "they would have this effect on the average
person residing in this community. . . ." Relying on these findings
and this Court's holding in
Roth v. United States,
354 U. S. 476, the
trial court held that the books "are not entitled to the . . .
protection" of the First Amendment to the Constitution. The State
Supreme Court affirmed on the same grounds.
This Court now reverses. I concur in the judgment of reversal,
but do not find it necessary to consider the procedural questions.
Compare Marcus v. Search Warrant, 367 U.
S. 717,
367 U. S. 738
(concurring opinion). The Kansas courts may have been right to rely
upon the Court's
Roth holding in ordering these books
burned or
Page 378 U. S. 214
otherwise destroyed. For reasons stated in the
Roth
case in a dissent by MR. JUSTICE DOUGLAS, 354 U.S. at
354 U. S. 508,
in which I joined, I think the
Roth case was wrongly
decided. It is my belief, as stated in that dissent by MR. JUSTICE
DOUGLAS, in my concurring opinions in
Smith v. California,
361 U. S. 147,
361 U. S. 155,
and
Kingsley International Pictures Corp. v. Regents,
360 U. S. 684,
360 U. S. 690,
and in my dissent in
Beauharnais v. Illinois, 343 U.
S. 250,
343 U. S. 267,
which MR. JUSTICE DOUGLAS joined, that the Kansas statute ordering
the burning of these books is in plain violation of the unequivocal
prohibition of the First Amendment, made applicable to the States
by the Fourteenth, against "abridging the freedom of speech, or of
the press."
Because of my belief that both
Roth and
Beauharnais draw blueprints showing how to avoid the First
Amendment's guarantee of freedoms of speech and press, I would
overrule both those cases, as well as reverse the judgment
here.
MR. JUSTICE STEWART, concurring in the judgment.
If this case involved hard core pornography, I think the
procedures which were followed would be constitutionally valid, at
least with respect to the material which the judge "scrutinized."
This case is not like
Marcus v. Search Warrant,
367 U. S. 717,
where, as the Court notes,
"the warrant gave the police virtually unlimited authority to
seize any publications which they considered to be obscene, and was
issued on a verified complaint lacking any specific description of
the publications to be seized, and without prior submission of any
publications whatever to the judge issuing the warrant,"
p.
378 U. S. 209,
supra. But the books here involved were not hard core
pornography. Therefore, I think Kansas could not by any procedure
constitutionally suppress them, any more than
Page 378 U. S. 215
Kansas could constitutionally make their sale or distribution a
criminal act.
See Jacobellis v. Ohio, ante, p.
378 U. S. 197
(STEWART, J., concurring).
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins,
dissenting.
Insofar as the judgment of the Court rests on the view of three
of my Brethren that a State cannot constitutionally an on grounds
of obscenity the books involved in this case, I dissent on the
basis of the views set out in my opinion in
Jacobellis v. Ohio,
ante, p.
378 U. S. 203.
It is quite plain that these so-called "novels" have "been
reasonably found in state judicial proceedings to treat with sex in
a fundamentally offensive manner," and that the State's criteria
for judging their obscenity are rational.
I also disagree with the position taken in the opinion of my
Brother BRENNAN that this Kansas procedure unconstitutionally
abridged freedom of expression in that the search warrant (1)
authorized seizure of all copies of the books in question and (2)
was issued without an adversary hearing on the issue of their
obsceneness. In my opinion, that position is inconsistent with the
thrust of prior cases, and serves unnecessarily to handicap the
States in their efforts to curb the dissemination of obscene
material. [
Footnote 2/1]
Page 378 U. S. 216
I
The two cases on which MR. JUSTICE BRENNAN's opinion almost
entirely relies are
Kingsley Books, Inc. v. Brown,
354 U. S. 436, and
Marcus v. Search Warrant, 367 U.
S. 717.
In
Kingsley Books, appellants challenged the
constitutionality of a New York statute that authorized the State
Supreme Court to enjoin the sale and distribution of obscene prints
and articles. A complaint prayed for an injunction against the
further distribution of certain allegedly obscene paperback books
and for the destruction by the sheriff of all copies in the
appellants' possession. Appellants were ordered to show cause
within four days why an injunction
pendente lite should
not be issued that would preclude distribution of the books.
Although the code of criminal procedure provided that anyone sought
to be enjoined was entitled to a trial one day after the joinder of
issue, appellants consented to the temporary
Page 378 U. S. 217
injunction and delayed bringing the matter to issue. When a
hearing on the question of obscenity was finally had, the books
were found to be obscene; their distribution was enjoined, and
their destruction ordered. This Court upheld the New York
procedure, stating:
"Authorization of an injunction
pendente lite, as part
of this scheme, during the period within which the issue of
obscenity must be promptly tried and adjudicated in an adversary
proceeding for which '[a]dequate notice, judicial hearing, [and]
fair determination'
Page 378 U. S. 218
are assured, . . . is a safeguard against frustration of the
public interest in effectuating judicial condemnation of obscene
matter."
P.
354 U. S. 440.
The State was not, we held, limited to the criminal process in
attempting to protect its citizens against the circulation of
pornography; it "is not for this Court thus to limit the State in
resorting to various weapons in the armory of the law." P.
354 U. S. 441.
The Court pointed out that "Criminal enforcement and the proceeding
under § 22-a interfere with a book's solicitation of the public
precisely at the same stage," p.
354 U. S. 442,
that the threat of criminal penalties may be as effective a
deterrent against expression as an injunctive civil remedy, and
that an injunction against someone to forbear selling specific
books may be a less stringent restraint on his freedom of
expression than sending him to jail.
Near v. Minnesota,
283 U. S. 697, was
distinguished on the ground that the New York statute dealt with
obscenity, rather than matters deemed to be derogatory to a public
officer, and imposed no direct restraint on materials not yet
published.
In
Marcus v. Search Warrant, warrants to seize books
were issued solely on the judgment of a peace officer regarding the
obscenity of certain books, without any independent examination by
a judicial official; the warrants authorized seizure of books by
officers other than the one who had signed the complaints, and, in
effect, gave
carte blanche to these officers to seize
anything they considered obscene at the named wholesale
establishment and newsstands, whether or not the material had been
so evaluated by anyone prior to the issuance of the warrants. After
recounting the historical distrust for systems sanctioning sweeping
seizures of materials believed to be offensive to the state, the
Court held that
"Missouri's procedures, as applied in this case, lacked the
safeguards which due process demands to assure nonobscene material
the constitutional
Page 378 U. S. 219
protection to which it is entitled."
P.
367 U. S. 731.
Relevant to this conclusion were the absence of any "scrutiny by
the judge of any materials considered by the complainant to be
obscene," p.
367 U. S. 732,
and the power of the enforcing officers under the warrants to make
ad hoc decisions regarding obscenity, although
"[t]hey were provided with no guide to the exercise of informed
discretion, because there was no step in the procedure before
seizure designed to focus searchingly on the question of
obscenity."
P.
367 U. S. 732.
Kingsley Books was distinguished on the grounds that, in
that case: (1) the court "could exercise an independent check on
the judgment of the prosecuting authority at a point before any
restraint took place"; (2) the restraints "ran only against the
named publication"; (3) no extensive restraints were imposed before
an adversary proceeding; and (4) the New York code required
decision within two days of the trial on the obscenity question,
pp.
367 U. S.
735-737.
In my view, the present case is governed by the principles
serving to sustain the New York procedure involved in
Kingsley
Books, rather than those which condemned that followed by
Missouri in
Marcus.
(1) Although the Kansas statute does not, in terms, require an
independent judicial examination of allegedly obscene materials
before authorization of seizure, the Kansas officials in this case
conformed their procedures to what they believed to be the
requirements of
Marcus. The information included the
titles of 59 "Original Nightstand Books." Seven of these were
delivered to the district judge at 5 p.m., three hours before the
45-minute
ex parte hearing at which the judge concluded
that there were reasonable grounds to believe that all 59 books
were obscene. [
Footnote 2/2]
Because of the nature of the seven books examined by the judge, he
could fairly reach a judgment that
Page 378 U. S. 220
the remaining books were of the same character. [
Footnote 2/3] (
See 378
U.S. 205fn2/1|>note 1,
supra.)
(2) In this case, unlike
Marcus, the officers had no
discretion as to which books they might seize, but could take only
books specifically designated by their titles.
(3) It is true that the Kansas procedure, like that in
Marcus, imposed a restraint before an adversary
proceeding, but it would be highly artificial to consider this the
controlling difference between
Kingsley Books and
Marcus. While the New York statute allows an almost
immediate hearing on the obscenity issue, it would be unrealistic
to suppose that most persons who allegedly have or sell obscene
materials will be able to prepare for such a hearing in four days,
the time between the issuance of the complaint and the
pendente
lite injunction in
Kingsley Books. In practical
terms, therefore, the New York scheme, as approved by this Court,
does contemplate restraint before a hearing on the merits. Although
the Court was uncertain in
Kingsley Books whether New York
would punish for contempt one who disseminated materials in
disobedience of the temporary injunction if such materials were
ultimately held to be not covered by the statute or
constitutionally protected, it could hardly
Page 378 U. S. 221
have failed to recognize the patently chilling effect such an
injunction would have on the dissemination of named materials. In
pragmatic terms, then, the nature of the restraint imposed by the
Kansas statute is not in a constitutionally significant sense
different from that sustained in
Kingsley Books. [
Footnote 2/4]
(4) The Kansas statute does not contain the safeguards for
speedy disposition that were present in
Kingsley Books,
but the State Attorney General has unequivocally acknowledged the
necessity of administering that statute in light of that
constitutional requirements of
Marcus. In this instance,
the warrant which was issued July 27 for seizure of the books
contained a notice that a hearing on the merits was set for August
7. Eleven days is certainly not an undue delay; indeed, it is
difficult to imagine a defense being prepared in less time. The
district judge's decision was issued four days after the
termination of the trial on the obscenity question, which had been
postponed because of motions made by appellants. On the basis of
this case, we have every reason to believe that the prosecuting
authorities and judges of Kansas are aware that prehearing
restraints may not be magnified by delay. and we have no reason to
think the Kansas statute
Page 378 U. S. 222
will be applied in a manner any less fair in this regard to
those restricted than the provision of the New York code sustained
in
Kingsley Books.
II
Since there may be lurking in my Brother BRENNAN's opinion the
unarticulated premise that this Kansas procedure is impermissible
because it operates as a "prior restraint," I deem it appropriate
to make a few observations on that score. The doctrine of prior
restraint is not a "self-wielding sword" or a "talismanic test"
(
Kingsley Books, supra, at
354 U. S. 441)
but one whose application in any instance requires "particularistic
analysis."
Id. at
354 U. S. 442; Freund, The Supreme Court and Civil
Liberties, 4 Vand.L.Rev. 533, 539;
cf. Times Film Corp. v.
Chicago, 365 U. S. 43. That
the Kansas procedure, as applied in this case, falls within
permissible limits of the Fourteenth Amendment will appear from
contrasting some of the reasons for the historic distrust in common
law jurisprudence of any kind of censorship of writings,
see
Near v. Minnesota, 283 U. S. 697,
283 U. S.
713-718, [
Footnote 2/5],
with what was done here.
In the typical censorship situation, material is brought as a
matter of course before some administrative authority, who then
decides on its propriety. This means that the State establishes an
administrative structure whereby all writings are reviewed before
publication. By contrast, if the State uses its penal system to
punish expression outside permissible bounds, the State does not
comprehensively review any form of expression; it merely considers
"after the event" utterances it has reason to suppose may be
prohibited. The breadth of its review of expression is therefore
much narrower, and the danger that
Page 378 U. S. 223
protected expression will be repressed is less. The operation of
the Kansas statute resembles the operation of a penal, rather than
a licensing, law in this regard, since books are not, as a matter
of course, subjected to prepublication state sanctioning, but are
reviewed only when the State has reason to believe they are
obscene.
There are built-in elements in any system of licensing or
censorship the tendency of which is to encourage restrictions of
expression. The State is not compelled to make an initial decision
to pursue a course of action, since the original burden is on the
citizen to bring a piece of writing before it. The censor is a part
of the executive structure, and there is at least some danger that
he will develop an institutionalized bias in favor of censorship
because of his particular responsibility. In a criminal proceeding,
however, the burden is on the State to act, the decisionmaker
belongs to an independent branch of the government, and neither a
judge nor a juror has any personal interest in active censorship.
The Kansas practice is thus analogous to a system of penal
sanctions, rather than censorship, in all three of these
respects.
One danger of a censorship system is that the public may never
be aware of what an administrative agent refuses to permit to be
published or distributed. A penal sanction assures both that some
overt thing has been done by the accused and that the penalty is
imposed for an activity that is not concealed from the public. In
this case, the information charged that obscene books were
possessed or kept for sale and distribution; presumably, such
possession, if knowing, could, as a constitutional matter, support
a criminal prosecution. The procedure adopted by the State
envisions that a full judicial hearing will be held on the
obscenity issue. Finally, the federal system makes it highly
unlikely that the citizenry of one State will be unaware of the
kind of material that is being restricted by its own government
when there is great
Page 378 U. S. 224
divergence among the policies of the various States and a high
degree of communication across state lines.
Cf. my opinion
in
Roth v. United States, 354 U.
S. 476,
354 U. S. 496,
and my dissenting opinion in
Jacobellis v. Ohio, ante, p.
378 U. S.
203.
Any system of censorship, injunction, or seizure may, of course,
to some extent serve to trammel, by delaying distribution or
otherwise, freedom of expression; yet so may the threat of criminal
prosecution, as this Court noted in
Kingsley Books. The
bringing of a criminal charge may result in a cessation of
distribution during litigation, since even an accused relatively
confident of the unlikelihood or impermissibility of conviction may
well refuse to take the added risk of further criminal penalties
that might obtain if he guesses wrong and continues to disseminate
the questionable materials. More fundamentally, the delay argument
seems artificial in the context of this case and in the area of
obscenity generally. Both the incentive for officials to promote
delay and the adverse consequences of delay are considerably less
in this area than in the field of political and social expression.
If controversial political writings attack those in power,
government officials may benefit from suppression, although society
may suffer. In the area of obscenity, there is less chance that
decisionmakers will have interests which may affect their estimate
of what is constitutionally protected and what is not. It is vital
to the operation of democratic government that the citizens have
facts and ideas on important issues before them. A delay of even a
day or two may be of crucial importance in some instances. On the
other hand, the subject of sex is of constant but rarely
particularly topical interest. [
Footnote 2/6]
Page 378 U. S. 225
Distribution of
Ulysses may be thought by some to be
more important for society than distribution of the daily
newspaper, but a one- or two-month delay in circulation of the
former would be of small significance, whereas such a delay might
be effective suppression of the latter.
Finally, it may be said that any system of civil enforcement
allows expression to be limited without the strict safeguards of
criminal procedures and rules of evidence. The contention that such
protections are essential is perhaps weaker in the area of
obscenity than with regard to other kinds of expression for reasons
outlined above. A substantial restriction on freedom of expression
is undoubtedly provided by civil remedies for defamation, and there
is no reason for foreclosing a State from reasonable civil means of
preventing the distribution of obscene materials.
The opinion of MR. JUSTICE BRENNAN, in my view, straitjackets
the legitimate attempt of Kansas to protect what it considers an
important societal interest. It does so in contradiction of a
sensible reading of the precedents and without contributing in any
genuine way to the furtherance of freedom of expression that our
Constitution protects.
For the foregoing reasons, I would affirm the judgment of the
Kansas Supreme Court.
[
Footnote 2/1]
The books before the district judge at the
ex parte
hearing were:
The Sinning Season Sin Song
Backstage Sinner The Wife-Swappers
Lesbian Love Sex Circus
Sin Hotel
The front cover of The Wife-Swappers is typical of the 31 books
seized, which, with the exception of Backstage Sinner, included all
those examined by the judge. Above a highly suggestive pictorial
representation, the prospective reader is told that "Members of
this Lust Club Had a Different Woman Every Night!" At the bottom of
the cover, it is stated that "This is an Original Nightstand Book."
The back cover relates in more detail the book's contents:
"PROBLEMS IN BED . . . were no problems at all to the members of
Eastport's highly secret suburban switch club. Who could have
problems with eight beautiful, different women to choose from? For
that was the lot of each man in this fantastic sex-prowling group.
Eight of the most lusty, passionate women in the town, each with
her different desires, her peculiar sex habits. And with eight
women so easy to reach, it was inevitable that there would be
trouble . . . , for the wives were very different: one was a
lesbian, one was a nymphomaniac, one a masochist, another frigid,
and still another erupting like a bomb at the mere touch of a man.
They lived a lust-ridden, lightning-fast, terrifying and
sex-crammed . . . GAME OF WIFE-SWAPPING!"
The front page of the book contains the following:
"
LUST-SATED COUPLES"
"In eight Eastport homes, the doors opened and eight husbands
returned. It's traditional in suburbia for the good wife to meet
her spouse with a shaker of martinis, but it was different with
these eight particular Eastport couples. These eight husbands came
home on a Sunday morning and their eight wives were waiting in bed,
soft and warm and sated . . . , smelling of other men. And the
husbands were drained and tired . . . from other women. Later in
the day, they would all awake, lounge around the house, eat
lightly, speak softly . . . and think of the night before. . .
."
"These Eight Couples Are"
"Members Of A Wife-Swapping"
"Mate-Switching Sex Club"
"So Vile It will Stun You"
These inducements are a fair indication of the actual contents
of the book. The book's back page advertises the titles of some
other Nightstand Books. The other books seized were:
Born for Sin Isle of Sin
No Longer a Virgin Orgy Town
Sin Girls Lover
Miami Call Girl Sex Spy
Passion Trap Trailer Trollop
Sex Jungle Sin Cruise
The Lustful Ones Flesh is my Undoing
Sex Model Malay Mistress
The Lecher Love Nest
Lust Goddess Seeds of Sin
Sin Camp Passion Slave
$20 Lust The Sinful Ones
Convention Girl
Each of the seized books contains exactly 192 pages, the text in
each running from page 5 to pages 189, 190, 191, or 192.
[
Footnote 2/2]
The record does not show how much attention the judge gave to
these books before the hearing.
[
Footnote 2/3]
No one has asserted that any of these books has literary merit.
The district judge contrasted them to books in which sex is
subservient to the plot: "[I]n the books in question, the core
would seem to be that of sex, with the plot, if any, being
subservient thereto." The State Supreme Court, more succinctly, but
with equal truth, stated, "They are trash." The essence of these
books may be ascertained with great celerity, so replete are they
with passages descriptive of sexual activities running the gamut
from ordinary intercourse to lesbianism, sadism, public displays,
and group orgies, and so lacking are they of any other content.
Moreover, they are so standardized that a judge's estimate
concerning the contents of absent books from an examination of
seven books before him could be almost as surefire as a similar
estimate of the character of unseen Mickey Mouse comic books based
on a perusal of seven issues.
[
Footnote 2/4]
What the courts of the State have subsequently said in dictum
about the operation of the New York statute is hardly relevant to
this Court's understanding of the import of the section at the time
of
Kingsley Books, and the constitutional principle for
which that case stands. At any rate,
Tenney v. Liberty News
Distributors, 13 A.D.2d 770, 215 N.Y.S.2d 663, states only
that an injunction cannot be issued
ex parte; this
certainly does not mean that a court is forbidden to do what it did
in
Kingsley Books, grant an injunction before there is an
adversary hearing on the obscenity issue itself. Surely the right
to be heard on the subsidiary question of the wisdom of granting a
pendente lite injunction would not save an otherwise
unconstitutional scheme, and the failure to accord such a right
does not render the Kansas procedure unconstitutional if it is
otherwise valid.
[
Footnote 2/5]
See generally, e.g., Emerson, The Doctrine of Prior
Restraint, 20 Law and Contemp.Prob. 648 (1955); Freund, The Supreme
Court and Civil Liberties, 4 Vand.L.Rev. 533, 537-545 (1951).
[
Footnote 2/6]
Reasons such as these may explain in part why the Court in
Near v. Minnesota, 283 U. S. 697,
283 U. S. 716,
apparently believed that the whole prior restraint doctrine was
inapplicable in the area of obscenity.