Petitioners in Nos. 3 and 16 were convicted for violating New
York and Kentucky laws, respectively, concerning the sale of
allegedly obscene publications. In No. 50, the Arkansas courts, in
a civil proceeding, declared certain issues of specific magazines
to be obscene, enjoined their distribution, and ordered their
destruction.
Held: These cases can be and are decide upon their
common constitutional basis that the distribution of the
publications is protected by the First and Fourteenth Amendments
from governmental suppression.
No. 50, 239 Ark. 474,
393 S.W.2d
219, and Nos. 3 and 16, reversed.
Page 386 U. S. 768
PER CURIAM.
These three cases arise from a recurring conflict -- the
conflict between asserted state power to suppress the distribution
of books and magazines through criminal or civil proceedings and
the guarantees of the First and Fourteenth Amendments of the United
States Constitution.
I
In No. 3,
Redrup v. New York, the petitioner was a
clerk at a New York City news stand. A plainclothes patrolman
approached the news stand, saw two paperback books on a rack --
Lust Pool, and Shame Agent -- and asked for them by name. The
petitioner handed him the books and collected the price of $1.65.
As a result of this transaction, the petitioner was charged in the
New York City Criminal Court with violating a state criminal law.
[
Footnote 1] He was convicted,
and the conviction was affirmed on appeal.
In No. 16,
Austin v. Kentucky, the petitioner owned and
operated a retail bookstore and news stand in Paducah, Kentucky. A
woman resident of Paducah purchased two magazines from a salesgirl
in the petitioner's store, after asking for them by name -- High
Heels, and Spree. As a result of this transaction, the petitioner
stands convicted
Page 386 U. S. 769
in the Kentucky courts for violating a criminal law of that
State. [
Footnote 2]
In No. 50,
Gent v. Arkansas, the prosecuting attorney
of the Eleventh Judicial District of Arkansas brought a civil
proceeding under a state statute [
Footnote 3] to have certain issues of various magazines
declared obscene, to enjoin their distribution, and to obtain a
judgment ordering their surrender and destruction. The magazines
proceeded against were: Gent, Swank, Bachelor, Modern Man,
Cavalcade, Gentleman, Ace, and Sir. The County Chancery Court
entered the requested judgment after a trial with an advisory jury,
and the Supreme Court of Arkansas affirmed, with minor
modifications. [
Footnote 4]
In none of the cases was there a claim that the statute in
question reflected a specific and limited state concern for
juveniles.
See Prince v. Massachusetts, 321 U.
S. 158;
cf. Butler v. Michigan, 352 U.
S. 380. In none was there any suggestion of an assault
upon individual privacy by publication in a manner so obtrusive as
to make it impossible for an unwilling individual to avoid exposure
to it.
Cf. Breard v. Alexandria, 341 U.
S. 622;
Public Utilities Comm'n v. Pollak,
343 U. S. 451. And
in none was there evidence of the sort of "pandering" which the
Court found significant in
Ginzburg v. United States,
383 U. S. 463.
II
The Court originally limited review in these cases to certain
particularized questions, upon the hypothesis that the material
involved in each case was of a character described as "obscene in
the constitutional sense" in
Page 386 U. S. 770
Memoirs v. Massachusetts, 383 U.
S. 413,
383 U. S. 418.
[
Footnote 5] But we have
concluded that the hypothesis upon which the Court originally
proceeded was invalid, and, accordingly, that the cases can and
should be decided upon a common and controlling fundamental
constitutional basis, without prejudice to the questions upon which
review was originally granted. We have concluded, in short, that
the distribution of the publications in each of these cases is
protected by the First and Fourteenth Amendments from governmental
suppression, whether criminal or civil,
in personam or
in rem. [
Footnote
6]
Two members of the Court have consistently adhered to the view
that a State is utterly without power to suppress, control, or
punish the distribution of any writings or pictures upon the ground
of their "obscenity." [
Footnote
7] A third has held to the opinion that a State's power in this
area is narrowly limited to a distinct and clearly identifiable
class of material. [
Footnote 8]
Others have subscribed to a not dissimilar standard, holding that a
State may not constitutionally inhibit the distribution of literary
material as obscene unless
"(a) the dominant theme of the material, taken as a whole
appeals to a prurient interest in sex; (b) the material is patently
offensive because it
Page 386 U. S. 771
affronts contemporary community standards relating to the
description or representation of sexual matters, and (c) the
material is utterly without redeeming social value,"
emphasizing that the "three elements must coalesce," and that no
such material can "be proscribed unless it is found to be utterly
without redeeming social value."
Memoirs v. Massachusetts,
383 U. S. 413,
383 U. S.
418-419. Another Justice has not viewed the "social
value" element as an independent factor in the judgment of
obscenity.
Id. at
383 U. S. 460-462 (dissenting opinion).
Whichever of these constitutional views is brought to bear upon
the cases before us, it is clear that the judgments cannot stand.
Accordingly, the judgment in each case is reversed
It is so ordered.
* Together with No. 16,
Austin v. Kentucky, on
certiorari to the Circuit Court of McCracken County, Kentucky,
argued on October 10-11, 1966, and No. 50,
Gent et al. v.
Arkansas, on appeal from the Supreme Court of Arkansas, argued
October 11, 1966.
[
Footnote 1]
N.Y. Pen .Law § 1141 (1).
[
Footnote 2]
Ky.Rev.Stat. § 436.100. The Kentucky Court of Appeals denied
plenary review of the petitioners conviction, the Chief Justice
dissenting. 386 S.W.2d 270.
[
Footnote 3]
Ark.Stat.Ann. §§ 41-2713 to 41-2728.
[
Footnote 4]
239 Ark. 474,
393 S.W.2d
219.
[
Footnote 5]
Redrup v. New York, 384 U.S. 916;
Austin v.
Kentucky. 384 U.S. 916;
Gent v. Arkansas, 384 U.S.
937.
[
Footnote 6]
In each of the cases before us, the contention that the
publications involved were basically protected by the First and
Fourteenth Amendments was timely but unsuccessfully asserted in the
state proceedings. In each of these cases, this contention was
properly and explicitly presented for review here.
[
Footnote 7]
See Ginzburg v. United States, 383 U.
S. 463,
383 U. S. 476,
482 (dissenting opinions);
Jacobellis v. Ohio,
378 U. S. 184,
378 U. S. 196
(concurring opinion);
Roth v. United States, 354 U.
S. 476,
354 U. S. 508
(dissenting opinion).
[
Footnote 8]
See Ginzburg v. United States, 383 U.
S. 463,
383 U. S. 499,
and n. 3 (dissenting opinion).
See also Magrath, The
Obscenity Cases: Grapes of
Roth, 1966 Supreme Court Review
7, 69-77.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins,
dissenting.
Two of these cases,
Redrup v. New York and
Austin
v. Kentucky, were taken to consider the standards governing
the application of the
scienter requirement announced in
Smith v. California, 361 U. S. 147, for
obscenity prosecutions. There, it was held that a defendant
criminally charged with purveying obscene material must be shown to
have had some kind of knowledge of the character of such material;
the quality of that knowledge, however, was not defined. The third
case,
Gent v. Arkansas, was taken to consider the validity
of a comprehensive Arkansas anti-obscenity statute in light of the
doctrines of "vagueness" and "prior restraint." The writs of
certiorari in
Redrup and
Austin, and the notation
of probable jurisdiction in
Gent, were respectively
limited to these issues, thus laying aside, for the purposes of
these cases, the permissibility of the state determinations as to
the obscenity of the challenged publications. Accordingly, the
obscenity
vel non of these publications was not
discussed
Page 386 U. S. 772
in the briefs or oral arguments of any of the parties.
The three cases were argued together at the beginning of this
Term. Today, the Court rules that the materials could not
constitutionally be adjudged obscene by the States, thus rendering
adjudication of the other issues unnecessary. In short, the Court
disposes of the cases on the issue that was deliberately excluded
from review, and refuses to pass on the questions that brought the
cases here.
In my opinion these dispositions do not reflect well on the
processes of the Court, and I think the issues for which the cases
were taken should be decided. Failing that, I prefer to cast my
vote to dismiss the writs in
Redrup and
Austin as
improvidently granted and, in the circumstances, to dismiss the
appeal in
Gent for lack of a substantial federal question.
I deem it more appropriate to defer an expression of my own views
on the questions brought here until an occasion when the Court is
prepared to come to grips with such issues.