*1 INC., SULLIVAN BOOKS, BANTAM et al. et al. February 18, 1963. 3-4, Argued December 1962. Decided No. 118. *2 Manges argued Horace 8. the cause for appellants. himWith on the briefs were Jacob F. Raskin and Milton Stanzler. Nugent,
J. Joseph Attorney General of Island, Rhode argued the cause for him appellees. With on the brief Joseph L. Breen.
Irwin Karp filed a brief for League the Authors curiae, Inc., America, urging as amicus reversal. Me. Justice opinion delivered the Brennan Court. Legislature
The Rhode Island created the “Rhode Island Encourage Morality Commission to in Youth,” whose Secretary appel- members and Executive are the gave lees herein, the Commission inter alia . . duty ... to educate the public concerning any book, picture, pamphlet, ballad, printed paper or thing other containing indecent or obscene, impure or language, manifestly tending to the corruption youth .of the as de- 13, 47, chapter
fined in sections 48 and 49 of 610 of and to general laws, amended, investigate all prosecution violations of said .recommend appellants brought sections . ...” action in January 1000, Resolves, Resolution No. 73 H I. Acts and R. Ses 1956, sion 1102-1103. The resolution created a “commission to morality encourage composed ap youth,” to be of nine members pointed by the Governor of the State. The members were to serve five-year They compensation, staggered, for terms. were to receive no expenses, expenses operation but their as well as the in the incurred defrayed generally, appro of the Commission were out of annual priations. original superseded mandate of the Commission was part by 444, January Resolves, Resolution No. 95 S R. I. Acts and 880, Session which reads follows: duty public “It shall be the of said commission to educate the con- cerning any book, picture, pamphlet, printed paper ballad, or other *3 thing containing obscene, impure language, indecent or as defined in chapter general objectionable laws, 11-31 of the entitled ‘Obsceneand investigate prose- and and to and recommend the shows/ sections, cution of all violations of said and it shall be the further duty juvenile delinquency encourage of said commissionto combat and morality youth by (a) investigating may cause, in situations which responsible give juveniles, for or rise to undesirable behavior of (b) public (c) legis- educate the these and as to causes recommend prosecution lation, which treatment would ameliorate or and/or eliminate said causes.” The Commission’s activities not limited the are circulation of objectionable publications. lists report example, For the annual January part: 1960, Commission issued recites in September, “In many complaints because of the from out- raged parents type being at the of films shown at Rhode Island teen-age supervision Drive-Ins and also the lack of parked, while this completed survey Commission initiated and a on the Drive-In High points survey Theatres in the State. note that there are (2) II operate Drive-in theatres in through Rhode Island which open summer months and remain until November and then for week- during winter, providing ends car-heaters.
“Acting
power
investigate
on its
delinquency,
causes of
the Com-
mission has met with
juvenile
several state
for a
officials
discussion of
Court
Superior
of Rhode Island (1) to declare the law
creating Commission
violation of the
and
First
Fourteenth Amendments,
(2)
and
to declare unconstitu-
tional
enjoin
and
the acts and practices appellees
thereunder. The Superior Court declined to declare the
law creating the Commission unconstitutional on its face
granted
but
appellants
an injunction against the acts
practices
and
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
the grant
reversed
of injunctive relief.
-R.
I.-,
A. 2d 393 (1961).2 Appellants brought
appeal
and
we noted probable jurisdiction,
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 through-
out most of the State. The
practice
Commission’s
has
been to
notify
distributor on official Commission sta-
tionery that certain designated books or magazines dis-
by
tributed
him had been
reviewed
the Commission
and had been
declared
a majority of its members to be
objectionable for sale, distribution or display
youths
under
years
of age. Silverstein had received at least
35 such
at
notices
the time this suit was brought. Among
drinking,
myriad
complex
causes of delinquency,
legal
aspects of the
operations.
Commission’s
It
special
also held a
meet-
*4
ing with Rhode
police
Island
legal
and
officials in September, 1959,
for a discussion on the extent of delinquency in Rhode Island and
possible
formation of
organization
state-wide
to combat it.”
2 The
brought
action
pursuant
was
30,
Title
c. Gen.
I.,
Laws R.
ed.,
1956
as
(Uniform
amended
Declaratory Judgments Act).
3
appellate
Our
jurisdiction
properly
invoked, since the state
judgment
court
sought to be
upheld
reviewed
against
state statute
the contention that, on its face and as applied, the statute violated
the Federal Constitution.
28 U.
(2).
S. C.
1257
§
Dahnke-Walker
Milling Co. v. Bondurant,
62 “objec- as by the Commission listed books paperback Publishing Dell by appellant published one were
tionable” Bantam by appellant published another Inc., and Co., Inc.4 Books, or solicited either notice to Silverstein typical
The “cooperation” his advance, for Silverstein, thanked of reminding Silverstein usually Commission, Attorney Gen- to the duty to recommend Commission’s Copies of obscenity.5 of purveyors of prosecution eral (in edi paperback Metalious, published by Peyton Grace Place, Inc.; by Bush, Bramble Publishing Co., The tion) by appellant Dell edition) by appellant (in paperback published Mergendahl, Charles which, other 106 Books, Most of the Inc. Bantam objectionable the Commission January been listed 1960, had “Frolic,” and “Rogue,” “Playboy,” magazines as issues of such were some Island described Attorney of Rhode General so forth. not he said were which “horror” comics publications as the term. has defined as this Court obscene reads, part, as follows: Silverstein received first notice by legislative in 1956 with order agency established “This display of inde- sale, or charge prevent the distribution immediate years age. eighteen youths under publications to and obscene cent following publications have reviewed Commissions [sic] “The objectionable completely they are by majority have declared vote years eighteen youths display or for sale, [sic] for distribution age. the aforemen- given names of have been Chiefs Police “The sold, they not are magazines with the order tioned years age. eighteen youths under displayed to or distributed non-compliance. us in case Attorney act for will “The General agency you cooperate with will trust “The Commissioners . . . work. in their shortly. will follow list “Another cooperation, am, your anticipated “Thanking you for
“Sincerely yours J. McAloon “Albert Secretary” “Executive *5 lists of “objectionable” publications were circulated to police local departments, and Silverstein was so informed in the notices.
Silverstein’s reaction receipt on 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 pub- lishers. A local police officer usually visited Silverstein shortly after receipt Silverstein’s aof notice learn what action had he taken. Silverstein was usually able to inform the officer specified that a number of the total of copies received a publisher from had been returned. Ac- cording to the testimony, Silverstein acted he did on receipt of the notice “rather than face the possibility of some sort of a court against action ourselves, well as the people that supply.” we His “cooperation” given to avoid becoming involved in a “court proceeding” with a “duly organization.” authorized
The Superior Court made findings fact and the follow- ing 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 received [those by Silverstein, including the two listing publications Another notice received part: Silverstein reads in “This list should guide be used'as a in judging publica- other similar tions not named. cooperation “Your in removing the objectionable listed and other your from newstands appreciated. will be [sic] Cooper- ative action will eliminate necessity of our recommending prosecution Attorney to the department.” General’s An undated “News Letter” sent to Silverstein by the Commission part: reads in “The objectionable lists publications] [of have been sent police distributors departments. present To the coopera- tion has been gratifying.” *6 intimidate to clearly were [sic] appellants]
of distributors wholesale magazine and book various such of by reason them, cause to and retailers and refuse (a) to prosecution, of threat and intimidation publications, proscribed for orders new take to to (c) hand, copies on any of selling to cease (b) (d) and copies, all unsold from retailers withdraw publishers. copies unsold all return [appellees Respondents of the The activities “9. and of the sale suppression in the resulted have here] notices in said listed the books . . . circulation noted that be it should findings these In addition argu- oral on conceded Island Rhode Attorney General notices in the listed books that in Court this ment this Court’s within not obscene were that several included the term. definition under activities the Commission’s argue that
Appellants
of govern-
a scheme
amount
amended,
Resolution
constitutionally required
devoid
censorship
mental
thus
and
obscenity,
regulation
for state
safeguards
by the
liberties, protected
Amendment
abridge First
States.
by the
infringement
from
Amendment
Fourteenth
are uncon-
of the Commission
the activities
that
agree
We
court’s
Island
the Rhode
reverse
and therefore
stitutional
proceedings
further
case for
remand
judgment
opinion.6
not inconsistent
successfully
be,
it
been,
could
not
nor
standing has
Appellants’
injury
palpable
a
fact suffered
appellants have
questioned..
same
law,
and at
alleged to violate federal
the acts
result of
as a
injury.
Anti-Fascist
Joint
legal
See
injury
has been
time their
(concurring
123, 151-152
McGrath, 341 U.
v.
S.
Refugee Committee
impaired sales
notices
finding
the Commission’s
opinion).
appel
published
two books
which include
publications,
the listed
legal
injury.
It
awas
appellants
suffered
lants, establishes
Com-
this. The
demonstrate
said to
although
more needs
injury,
not, so far
only to distributors
were circulated
notices
misson’s
We held Alberts
California,
v.
decided with Roth States,
United
“. . .
Roth itself
[I]n
we expressly recognized the
complexity of the test of obscenity fashioned in that
case, and the vital necessity in
application
its
of safe-
guards to prevent
protection
denial
‘the
of freedom
of speech and press for material which does not treat
*7
appears,
publishers.
to
purports
Commission
only
regulate
distribution; it has
having jurisdiction
made no claim to
of out-of-state
publishers. However,
private
if this were a
action,
present
it would
claim,
a
plainly justiciable, of unlawful
in advantageous
interference
business relations. American Mercury, Inc.,
Chase,
v.
sex in that, It follows under .... S., at U. 488] adopt is not free to Amendment, a State Fourteenth dealing for with pleases it procedures whatever con- regard possible to the without obscenity . . . speech.” constitutionally protected for sequences Warrant, 730-731. 367 U. S. v. Search Marcus regula requires that Amendment Fourteenth Thus, the that procedures conform obscenity by the States of tion constitutionally pro curtailment against the ensure will obscenity from separated is often which expression, tected It is characteristic line. uncertain dim and only by a they are vul that general expression the freedoms barely visible encroach yet damaging gravely nerable obscenity scru regulations insistence ments. Our safeguards, procedural rigorous most embody the pulously Search 147; Marcus v. S. 361 U. California, v. Smith instance special but therefore Warrant, supra, is must be expression freedoms larger principle g., Thorn e. See, bulwarks. adequate ringed about York, 333 Newv. Winters 88; Alabama, U. S. hill v. 415. Button, 371 S. “[T]he U. NAACP 507; U. S. *8 guaranteed unconditionally speech line between finely is regulated ... legitimately may which speech illegiti from legitimate separation . . . drawn. Speiser . . .” . tools . . sensitive . calls for speech mate 525. Randall, 513, S. 357 U. v. no have salutary principles contended, these is
But, it Com Island of the Rhode the activities application obscenity suppress or regulate not it does because mission of their them and advises booksellers simply exhorts but on the Commis premised contention, This rights. legal is sanctions, legal formal apply power want sion’s not have books appellants’ that It true untenable.
67
been seized or banned by the State, and
no
one has
prosecuted
been
for their possession or sale.
though
But
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
the Commission deliberately set about
to achieve
suppression
of publications
“objec
deemed
tionable” and
succeeded
its aim.7 We are not the first
court to
through
look
forms to the
recog
substance and
nize that informal
may
censorship
inhibit
sufficiently
circulation of
to warrant
injunctive relief.8
7
problem
For discussions of the
censorship,”
of “informal
see Lock-
McClure, Censorship
hart and
Obscenity:
Developing
Consti
tutional Standards, 45
5,
Minn.
(1960);
L. Rev.
6-9 and
7-22
n.
Note, Extralegal Censorship
Literature,
33 N. Y. U. L. Rev. 989
(1958); Note, Entertainment: Public
Law,
Pressures and
71 Harv.
326,
L. Rev.
(1957);
Regulation
Note,
344-347
Books,
of Comic
68
489,
Harv. L. Rev.
494-499 (1955); Comment, Censorship of Obscene
Literature
Informal
Action,
Governmental
22 Univ. of Chi. L.
(1954);
Rev. 216
McClure,
Lockhart and
Literature,
the Law of
Obscenity,
Constitution,
and the
295,
38 Minn. L. Rev.
309-316
(1954).
8
prosecution
Threats of
revocation,
listings
or of license
or
or
supposedly
objectionable
notifications of
obscene or
publications or
pictures,
part
motion
police
on the
of chiefs of
prosecutors,
or
have
enjoined
Kingsley
been
in a number of
International Pic
See
cases.
Corp. Blanc,
tures
v.
396
Bunis v.
448,
(1959);
Pa.
153
2dA.
243
Conway, 17 App.
207,
Div. 2d
(1962) (dictum);
234 N. Y.
2dS.
435
McCaffrey,
Sunshine Book Co.
App.
v.
4
643,
Div. 2d
168 N. Y. S.
House, Inc.,
Random
2d
Detroit,
(1957);
268
v.
No. 555684 Chan
Wayne
cery,
Ct.,
Cir.
HMH Pub
County,
1957;
Mich.,
29,
March
lishing
Garrett,
Co.
Supp.
(D.
v.
151 F.
1957);
903
N.C.
D. Ind.
Library
New American
World
Allen,
Literature v.
Supp.
114 F.
(D.
Books,
Bantam
1953);
823
Inc., Melko,
C.
D. Ohio
N.
v.
Super.
N.
292,
(Chancery
J.
2d 47
1953),
A.
modified on other
grounds, 14
(1954);
J.
2d
Dearborn Pub
N.
103 A.
lishing
Fitzgerald,
Co. (D.
1921);
It not members of the practices acts and Island. Rhode on disclosed Commission Secretary Executive law and of state color performed under were record this meaning of within the State acts constituted so S. Young, 209 U. Ex parte Amendment. the Fourteenth acts 461. These Adams, S. 345 U. Terry v. 123. Cf. the circulation stopped designedly directly and practices true, It is Island. of Rhode many parts in of publications Island, that of Rhode Supreme Court noted as notices, the Commission’s ignore was “free” Silverstein have would “cooperate” refusal his in the sense fact —and found as was law. But it no violated us— record, binds by the amply supported being finding, direc- with the compliance Commission’s that Silverstein’s disregard lightly not People do voluntary. not was tives criminal institute threats to thinly veiled officers’ public around, do not come they them if against proceedings to uncontroverted according reaction, and Silverstein’s general rule. exception no testimony, reason- orders, virtually phrased notices, Commission’s invariably distributor, by the such to be ably understood the cir- stopped in fact visitations, by police up followed It vigore. ex proprio the listed culation of these State’s assertion credit the naive would be when legal advice, mere nature of are blacklists (C. S.) P. (N. 465 Davis, P. 19 Ohio N. Producing Corp. v. Epoch (D. C. Supp. Co., 241 187 F. News In re Louisiana 1917). Cf. (Tex. Civ. 355, 357 2d Winner, 244 S. W. Roper 1960); v. La. E. D. (D. C. D. Chase, F. 2d 224 Mercury, Inc., 13 v. 1951); American App. following Pocket cases: been denied 1926). has Relief Mass. 1962); Dell (D. D. Conn. Supp. 297 C. Walsh, Inc., F. Books, v. 204 (Chancery Eq. 72, 158 A. 110 N. J. Publishing Beggans, v. Co. Supp. Howard, F. Corp. Publishing Magtab 1932). also See presents foregoing cases 1959). None (D. D. La. C. W.. way or one no view bar, and we intimate at situation precise factual to their correctness. other *10 they plainly serve as instruments of regulation inde- pendent of the laws against obscenity.9 Cf. Joint Anti- Fascist Refugee Committee McGrath, S.U. 123.
Herein lies the vice of
system.
the
The Commission’s
operation is a form of effective
regulation
state
super-
imposed upon the State’s criminal regulation of obscenity
making
and
regulation
such
largely unnecessary.
In thus
obviating the need to employ criminal sanctions, the State
9We note that
the Commission
appears
itself
to have understood
its function as the proscribing
objectionable
of
publications, and not
merely
giving
the
legal
of
advice to distributors.
See the first notice
received
Silverstein, quoted in
5, supra.
note
The minutes of one
meetings
Commission’s
part:
read in
"...
Flannery
Father
member of
[a
the
noted that
Commission]
he had been called
magazines
about
proscribed by the Commission
remaining on sale after lists had been scent
to distributors
[sic]
and
police, to which Mr. McAloon suggested that
it could be that
the
magazines
same
seen,
were
but
probably
it
was not the same
proscribed
edition
by the Commission.
“Father Flannery questioned the
compliance
state-wide
by the
police,
anyone
or
else,
get
proscribed
the
magazines off the stands.
Mr. McAloon showed the
questionnaires
Commissioners the
sent
police
the chiefs of
from this office and returned
us.”
The minutes of
meeting
another
part:
read “. . . Mr. Sullivan
of
[member
the
suggested calling
Commission]
the Cranston Chief of
inquire
Police
the
Peyton
reason
Place was
being
still
sold, distributed
displayed
since the
departments
Police
had been advised
the
of
Commission’s vote.”
course,
Of
it is immaterial whether in carrying on the function of
censor,
Commissiqn
may have been exceeding
statutory
its
author-
ity.
Its acts
still
would
constitute state
parte
action. Ex
Young,
state action way is in no inconsistent with Standard Computing Scale Farrell, Co. v. 249 U. S. 571. In that ease it was held that a bulletin specifications issued Superintendent State Weights Measures could not be deemed state action for Fourteenth Amendment purposes because the bulletin purely advisory; the decision turned on the fact that the bulletin was not coercive purport. safeguards eliminated same time has at only may applied sanctions Criminal process. criminal in a made has been obscenity a determination after safe- procedural about hedged trial criminal prac- The Commission’s process. criminal guards . no safe- provides it in that contrast, striking is in tice nonobscene, suppression against whatever guards *11 a It is matter. constitutionally protected, therefore free- protected to hazards creates regulation form of reliance attend those than markedly greater doms law. criminal upon to sub fact, been done, in has has Island Rhode
What
prior
of
system
ato
publications
distribution
ject the
a
not
is
Commission
since the
restraints,
administrative
publi
particular
list
its decisions
body and
judicial
determina
judicial
do not follow
objectionable
cations
banned.
lawfully be
may
publications
that such
tions
to this
comes
expression
prior restraints
system of
Any
its constitu
against
heavy presumption
a
bearing
Court
Minnesota, 697;
S.U.
validity. See Near
v.
tional
State,
Schneider
v.
444,
S.
Griffin,
451;
303 U.
Lovell v.
Connecticut,
S.
310 U.
v.
Cantwell
164;
147,
308 U. S.
273;
Maryland, 340 U. S.
268,
Niemotko v.
296, 306;
Bax
293; Staub
v.
York,
290,
S.
Kunz New
340 U.
v.
such
have tolerated
321. We
ley, 355 U.
313,
S.
superin
judicial
operated under
only where it
system
deter
judicial
immediate
an almost
and assured
tendence
Kingsley
of the restraint.10
validity
mination of the
Chicago,
Corp.
Film
opinion in Times
Nothing in the Court’s
attitude
with the
traditional
Court’s
is inconsistent
365 U. S.
only ques
expression.
The
prior restraints
toward
of disfavor
prior
whether a
restraint
in that case
to the Court
was
tendered
tion
declining
necessarily
under all circumstances.
In
was
unconstitutional
not
per se,
did
the Court
prior
unconstitutional
to hold
restraints
any specific
Further
constitutionality
such restraint.
uphold the
pictures.
motion
holding
expressly confined
more,
y.
Books, Inc., Brown, 354
S. 436.
system
U.
at bar
no
includes
such saving features. On the contrary,
its
capacity for suppression of constitutionally protected pub-
lications is far in excess of that of the typical
licensing
scheme held constitutionally
invalid
this Court. There
provision
no
whatever
for judicial superintendence
before notices issue or even
judicial
for
review the Com-
mission’s determinations of objectionableness.
pub-
lisher or distributor
is not even entitled to notice and
hearing
before his
are listed by the Commis-
sion
objectionable.
Moreover, the Commission’s stat-
utory 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
speculate
whether
the Commission considers
publication
his
obscene or sim-
ply harmful to juvenile morality. For the Commission’s
domain is the whole
youthful
morals. Finally, we note
that although the Commission’s supposed concern is lim-
ited
youthful
readers,
“cooperation”
it seeks from
*12
distributors invariably entails the complete suppression of
the listed publications; adult
are equally
readers
deprived
of the opportunity
purchase
to
publications
the
in the
State. Cf. Butler v. Michigan,
In holding that the activities disclosed on this record are constitutionally proscribed, we do not mean to suggest that private consultation between law enforcement offi- cers and prior distributors 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 consulta- such obscenity. Where prohibiting laws valid aiding purpose with undertaken genuinely tion is prose- and avoid laws such comply to distributor enjoyment the full not retard need them, it cution under case. is not this that But Amendment freedoms. of First do they officers; law enforcement not are appellees they or that give are qualified they pretend not Their legal fair advice. only give distributors attempt plainly shows this record disclosed conduct as of their distributors advising the beyond far they went in fact operation Their and liabilities. legal rights extralegal effectuated censorship of state a scheme but to not to advise agency as an they sanctions; acted suppress. and remanded.
Reversed in the result. Black concurs Mr. Justice Douglas, concurring. Mr. Justice to the I adhere Court, of the I join opinion While States, S.U. v. United expressed in Roth views govern- scope narrow very respecting 508-514, grounds on the authority suppress mental clear, makes Brother Brennan my obscenity. Yet as apparent whatever system Rhode Island’s vice litera- of “obscene” status one’s constitutional view my and view raw; censorship ture. This is If incompatible. rights are Amendment First censor and violated, publishers authors law has been a valid then they But would account. can be made vendors Bill safeguards procedural all the on their side have viewpoint of From the including by jury. trial Rights, *13 on procedure, cumbersome action a more State that is the being far easier. But the of censors vote majority in the designed to fence Government Rights Bill of and make its on liberty intrusions difficult and its inter- ference freedom expression well-nigh impossible.
All nations have tried censorship only a few have rejected it. Its high. abuses mount Today Iran censors news stories in such a way as to make false or misleading some reports reputable agencies. news For the Iranian who writes stories and lives in goes Teheran if jail he tells the truth. Thus censorship in Teheran pow- has extralegal erful sanctions as censorship in Providence. regime Providence productive is of capricious action. A vote a five-to-four book makes “obscene.” The wrong is compounded when issue, though closely in the minds of sophisticated balanced men, resolved against freedom of expression on the side of cen- sorship. Judges, sure, disagree often as to the definition But an obscenity. established administra- system tive that bans book after book, though even they muster four votes out nine, makes freedom of expression much precarious more than it if would be unanimity required. were This my underlines Brother observation regime Providence Brennan’s “pro- vides safeguards against no whatever the suppression of nonobscene, and therefore constitutionally protected, matter.” Doubts are resolved against, rather than for, freedom expression.
The evils of unreviewable administrative action of this character are ancient as George dictators. Kennan, Siberia and the System (U. Exile of Chi. 1958) p. 60, gives insight into it: Borodin,
“Mr. another Russian author and well- known contributor to the magazine Russian Annals Fatherland, was banished to the territory of Yakútsk on account of alleged 'dangerous’ and ‘pernicious’ character of a certain manuscript found in his house police during a search. This *14 copy upon of an article the manuscript spare was a Viátka, of which province economic condition of the and sent above- Mr. Borodin had written the up time, to that had which, named but magazine, The author went to Eastern published. not been gray yellow in a overcoat with a ace Siberia convict’s back, of on his and three or four months diamonds in of pleasure after his arrival he had the Yakútsk reading very in Annals the Fatherland the for had same article which he been exiled. him Minister of the Interior had sent to Siberia merely having police for in his possession what the a 'dangerous’ 'pernicious’ manuscript, called and Petersburg then the of censorship St. committee had copy certified that another of that same manuscript perfectly harmless, and had pub- allowed it to be change lished, without of a in line, one popular widely magazines most in circulated empire.” all-powerful
Thus under the Czars an elite condemned day the Siberia of that minority an author whom a applauded. fiat dangerous today Administrative is as as it was then. Clark,
Mr. in concurring Justice the result. opinion As read the it does much fine Court, talking expression about freedom of and much condemn- ing of the implement Commission’s overzealous efforts to obscenity protection the State’s laws for the of Rhode youth shearing Island’s if a but, hog, up comes wool. In short, proverbial tempest little it creates the teapot over a number notices sent out the Com- asking cooperation magazine mission distributors preventing sale obscene literature to juveniles. The storm was brewed from certain inept phrases in the notices wherein the Commission prerogative assumed issuing an “order” to police that certain publica- tions which it deemed obscene are “not to sold, dis- displayed tributed or youths eighteen under years of *15 age” and stated that Attorney General will act for “[t]he us in case of non-compliance.” But after all expostu- this lation the Court, being unable to strike down Rhode Island’s statute, see Alberts California, v. 354 U. 476 S. (1957), drops a demolition bomb on “the Commission’s practice” without clearly indicating what might be sal- vaged from wreckage. The Court in condemning the Commission’s owes practice duty Rhode Island the articulating the standards which must met, lest the Rhode Supreme Island Court be left at sea as to the appropriate disposition on remand. my
In simply view Court should direct the Com- mission to abandon grandeur its delusions of and leave the issuance of “orders” to enforcement officials and “the regulation State’s criminal of obscenity” to the prose- who can cutors, prosecution substitute for “thinly veiled threats” in appropriate cases. See California, Alberts v. supra. As I read opinion this is the limi- extent of the contemplated tations by Court, leaving the Commis- sion free, my Brother indicates, publicize its Harlan findings toas the obscene of any character publication; to solicit support public in preventing obscene publications from reaching juveniles; furnish its find- ings to publishers, distributors and retailers of such pub- lications and to law enforcement officials; and, finally, to seek the aid of such in officials prosecuting offenders the State’s obscenity laws. This long Court has recog- nized that “the primary requirements of decency may be against enforced publications.” obscene Near Minne- v. sota, 283 S. 697, (1931); Books, Inc., U. see Kingsley Brown, (1957). Certainly S. 436 in the face U. rising youth crime and juvenile lowering morality the empowered State is consistent with the Constitution procedures use the in attempting dispel above youth defilement of publications. its obscene With understanding holding the Court’s join its judgment, believing that the limitations as outlined would bearing have little on the efficacy of Rhode Island’s law. Mr. Justice Harlan, dissenting. opinion give Court’s fails to due consideration to I regard
what the central issue this case—the accom- modation that must be made between Rhode Island’s problem concern with the of juvenile delinquency and the right of freedom of expression assured the Fourteenth Amendment.
Three reasons, as I understand the Court’s opinion, are *16 given for holding the particular procedures adopted by the Rhode Island Commission under this though statute, not the statute itself, (1) unconstitutional: the Commission’s activities, carried on under law, color state amount to a governmental scheme of censorship; (2) its procedures lack adequate safeguards to protect nonobscene material against suppression; (3) the group’s operations in the youth field morality may entail depriving the adult public of access to constitutionally protected material.
In my opinion, none of these reasons is of overriding weight the context of what obviously not an effort by the State to obstruct expression free but an attempt to cope with a most baffling social problem.
I.
This Rhode Island Commission was formed for the laud-
purpose
able
of combatting juvenile delinquency. While
yet
there is as
no consensus of scientific opinion on the
causal relationship between youthful reading or viewing
of “the obscene” and delinquent behavior, see Green, Ob-
scenity, Censorship, and Juvenile Delinquency, ofU.
L.
Toronto
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
Juvenile Delinquency,
24 Fed. Prob.
4,No.
(Dec.
3p.
1960). The States should
have a wide range of choice in dealing with such problems,
Alberts California, decided with
v..
Both v.
States,
United
I can find nothing in this record that justifies the view that Rhode Island has attempted to deal with prob- lem in an irresponsible way. I agree with the Court that the tenor of some 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 con- veying an impression of consequences which no means may follow from noncooperation with the Commission. But these are things which could surely cured 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, think the Commission is constitution- *17 ally entitled (1) express to its on views the character of any published reading or other material; (2) to endeavor to enlist the support of law enforcement or authorities, cooperation publishers and distributors, with respect to any material the Commission deems obscene; (3) notify publishers, distributors, and public members 78 regards; in but these its activities respect overbearing kind of from the take care to refrain
it must might to and others that already referred utterances as to impression an erroneous give any person tend to authority or the of the Commission’s the extent either Since the warnings. to heed its of a failure consequences reinstatement require does not of the Court decision and since court,1 issued the trial injunction the broad invalidity par- on the majority’s opinion rests I find pursued, has procedures ticular the Commission right opinion denying in the Commission the nothing just enumerated, which believe activities, to conduct the constitutionally carry on. it is entitled
II. lack procedures It is said that the Rhode Island ade- quate safeguards against of the non- suppression in obscene, may pronounce publica- that the Commission any tions obscene or prior judicial without determination any But pronouncement review. Commission’s given self-executing. Any instance is not affected dis- publisher tributor or wishing ground to stand his on particular publication may test the Commission’s views by way declaratory judgment of a in- action or suit for junctive by simply refusing relief or accept Com- appellees enjoined directly indirectly notifying were “from or magazine book and wholesale distributors and retailers that objectionable any specific magazine found Commission has book or sale, display; injunction apply for distribution or said . . . [to] directly given magazine whether such notification to said book and retailers, any them, orally wholesale distributors and or either or writing, through publication bulletins, or of lists or irre spective of the manner of dissemination of such lists or bulletins.” (Supp. (Uniform 1961), Rhode Island Gen. Laws Tit. c. 30 Declaratory Judgments Act).
79 opinion mission’s and awaiting prosecution criminal respect of the questioned work.
That the requires Constitution no more is shown by this Court’s decision in Times Film Corp. v. Chicago, S.U. 43. There the petitioner refused to comply with a Chicago ordinance requiring all pictures motion be examined and by licensed a official city prior to exhibi- tion. It was regardless contended that of the obscenity vel non of any particular picture and licensing stand- ards employed, this requirement in itself amounted to an prior unconstitutional restraint on expression. free Stat- ing that there nois “absolute freedom to at least exhibit, once, any and every kind of motion picture,” S., 365 U. at 46, this rejected Court that contention and remitted petitioner to a challenge of an application of the city ordinance to specific films. The Court thus refused to countenance a “broadside attack” on system regula- tion designed prevent the dissemination of obscene matter.
Certainly with respect to a sophisticated publisher or
distributor,3 and shorn of embellishing mandatory lan-
guage, this Commission’s advisory condemnation of par-
ticular publications does not create as great a danger restraint on expression as that
Film,
involved
Times
where exhibition of a film without a license was made
a crime.4 Nor can
danger
such
regarded
greater
than that
involved in the preadjudication impact of
the sequestration procedures
sustained
this Court
in Kingsley Books, Inc.,
Brown,
This case Prop- Warrant in v. Search Marcus to sanction refused officers, pursuant police There 717. erty, 367 U. S. foray under one-day in a seized procedures, Missouri publications copies of 280 11,000 some warrants search of business places various appellants’ at the found state court obscene. officers to be by the believed publications of the 280 100 out only that later found pro- holding “that In Missouri’s obscene. actually were due safeguards which lacked the . . . applied cedures as the con- nonobscene material assure process demands S., entitled,” it U. to which is protection stitutional be- connection the historical emphasized the Court 731, at stifling of and the power seizure the search and tween the gave warrants The Missouri expression. liberty of left to executing officer and to each discretion broadest oppor- little or no spot, judgment on hoc his ad which deliberation, discriminating tunity for step no “there was obscene. Since as be seized should search- designed focus seizure before procedure in the at it S., 367 U. obscenity,” question ingly on the the material seized much of expected towas be obscene, not to out turn would procedures these under very in court by state found was later indeed case. pro- in exist expression free hazards to such
No Of present in case. regard permissible cedures challenged pub- of a dissemination importance, cardinal any way. in legally impeded or physically not lication complained advisory condemnations Furthermore, of a action but police of hit-or-miss not product are the by limited stand- are judgments body whose deliberative general ards embraced in the State’s obscenity statute, the constitutionality of which questioned is not in case. validity foregoing not, considerations is my opinion, findings affected the state court that one appellants’ was led to withdraw publications, distributors thought obscene of fear of Commission, because prosecution. criminal For this record lacks an element without which findings those are not of controlling con- significance stitutional in the context of competing state and individual interests at here stake: there is no showing that Rhode Island put any has roadblocks the way any distributor’s or publisher’s recourse to the courts to test the validity of the Commission’s determina- *20 tion respecting any or that the publication, purpose of these procedures was to stifle freedom of expression.
It could not well be Ias think the Court suggested, a concedes, prosecutor’s that announcement that he in- tended to strictly enforce the obscenity laws or that he proceed against would particular a publication unless withdrawn from circulation an amounted to unconstitu- tional upon restraint freedom of expression, still less that such a restraint would occur from the mere existence of a criminal obscenity Conceding statute. that the restric- tive effect of the procedures Commission’s on publishers, independent on distributors, may greater be fortiori in than either of those I situations, do not believe that the differences are of constitutional in import, the ab- sence of either of the two factors in pre- indicated the ceding paragraph. The places circumstance that the permissible procedures Commission’s on the same consti- tutional level as the just given illustrations is the fact that in each instance the courts are open to person affected, and that any material, however questionable, may freely be sponsored, circulated, or read, viewed until judicially condemned. publishers that these holds is the Court what
In essence any to material respect not, need their distributors or to its right their vindicate Commission, challenged by aid. to their bring the Constitution in order to protection effort this cut into holding of this is The effect problem, delinquency get juvenile at State concretely having any other ever Court or without this material called any specific on whether focused protec- is or is not entitled by the Commission question our established standards tion constitutional under decisions.5 which weight the accommodation me to seems to
This interests competing made between should interests legitimate entirely against presents case to re- course is the correct the State. believe state attack” on these “broadside countenance this fuse to as to the appropriate an and, with caveat procedures utterances, past of the Commission’s character some respecting particu- their remedies appellants to remit the Commission, challenged lar publishers these Putting Film case. the Times done in vindicating chal- pain to the and their distributors hard- under unusual them place is lenged materials not to “Bear- context, has said another this Court ship, for for “a prosecution and cost” even ing discomfiture one of the person innocent by an [though] . . crime . *21 Cobbledick United citizenship.” v. obligations of painful 325. S. States, 309 U.
III. activ- the Commission’s final point The Court’s —that public protected from adult keeping may result ities con- youth far as though suppressible so material, even acknowledge: 4) appellants have (p. “We Reply Brief 5 In their obscenity question or non- attempted to deal never Appellants’ obscenity books.” requires little enough additional comment. It is
cerned — say that such a determination should not be made at large, as has been done here. It should await a case when circumspect judgment brought can be to bear upon particular judicially suppressed publications.
Believing that
Commission, once advised
permissible constitutional
scope of its
can be
activities,
counted on to conduct itself
accordingly, would affirm
judgment
Supreme
Rhode Island
Court. Cf.
Haley,
United States