Lead Opinion
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 appel-lees 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 de
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 deсlared 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
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.
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 authorizеd 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*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.
“. . . [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*66 sex in a manner appealing to prurient interest.’ [354 U. S., at 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 , 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 charаcteristic 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,
But, it is 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, premisеd on the Commission’s want of power to apply formal legal sanctions, is untenable. It is true that appellants’ books have not
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
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,
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 аre 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
Reversed and remanded.
Notes
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 educаte 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 weekends 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*61 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 state-wide organization to combat it.”
The action was brought pursuant to Title 9, c. 30, Gen. Laws R. I., 1956 ed., as amended (Uniform Declaratory Judgments Act).
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 as applied, the statute violated the Federal Constitution. 28 U. S. C. § 1257 (2). Dahnke-Walker Milling Co. v. Bondurant,
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 Genеral 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.
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 under 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 and [sic] 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 under eighteen years of age.
“The Attorney General will act for us in case of non-сompliance.
“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”
“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.”
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 thеir injury has been a legal injury. See Joint Anti-Fascist Refugee Committee v. McGrath,
For discussions of the problem of “informal censorship,” see Lock-hart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 6-9 and n. 7-22 (1960); Note, Extralegal 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).
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,
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 state-wide compliance by the police, or anyone else, to get the prоscribed 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 Commissiqn may have been exceeding its statutory authority. Its acts would still constitute state action. Ex parte Young,
Our holding that the scheme of informal censorship here constitutes state action is in no way inconsistent with Standard Computing Scale Co. v. Farrell,
Nothing in the Court’s opinion in Times Film Corp. v. Chicago,
Concurrence Opinion
concurring.
While I join the opinion of the Court, I adhere to the views I expressed in Roth v. United States,
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 extralegal 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 Yakútsk on account of the alleged 'dangerous’ and ‘pernicious’ character of a certain manuscript found in his house by the police during a search. This*74 manuscript was a spare copy of an article upon the economic condition of the province of Viátka, 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 Yakútsk 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.
Concurrence Opinion
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.
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,
Dissenting Opinion
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 Commissiоn was formed for the laudable purpose of combatting juvenile delinquency. While there is as yet no consensus of scientific opinion on the
I can find nothing in this record that justifies the view that Rhode Island has attempted to deal with this problem in an irresрonsible 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) tо notify publishers, distributors, and members of the public
II.
It is said that the Rhode Island procedures lack adequate safeguards against the suppression of the non-obscene, 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
That the Constitution requires no more is shown by this Court’s decision in Times Film Corp. v. Chicago,
Certainly with respect to a sophisticated publisher or distributor,
This case bears no resemblance to what the Court refused to sanction in Marcus v. Search Warrant of Property,
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 cоmplained of are the product not of hit-or-miss police action but of a deliberative body whose judgments are limited by stand
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 plаces 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.
This seems tо 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 оf citizenship.” Cobbledick v. United States,
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 con
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,
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 fоr 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.”
Rhode Island Gen. Laws (Supp. 1961), Tit. 9, c. 30 (Uniform Declaratory Judgments Act).
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.
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.
In their Reply Brief (p. 4) appellants acknowledge: “We have never attempted to deal with the question of obscenity or non-obscenity of Appellants’ books.”