*1 SMITH CALIFORNIA. Argued
No. 9. October 1959. Decided December .148 argued Rosenwein
Stanley Fleishman and Sam and filed a brief appellant. cause *2 Arnebergh argued appellee. for With Roger the cause Grey. him the brief E. Philip oh was the Wirin and Fred filed a brief for A. L. Okrand curiae, urging as amicus Union, Civil-Liberties American reversal. opinion of the delivéred the Brennan
Mr. Justice. Court. was bookstore, of a convicted
Appellant, proprietor the City Angeles in a Los Municipal under California Court any person makes “for ordinance which it unlawful writing, possession in his indecent any have obscene or . . any . . where . place book business [or] [i]n was books . . . are sold or for sale.” The offense kept Municipal Court, by Appellate defined City Municipal 1The ordinance is 41.01.1 Code of § Angeles. provides: of Los It
n WRITINGS, PROHIBITED: “INDECENT ETC.—POSSESSION any any person possession in his “It shall be for to have unlawful n photograph, writing, book, pamphlet, picture, obscene or indecent figure, film, phonograph recording, wire drawing, picture motion any recording transcription any following places: or kind any school-grounds, public playground or school, park or In “1. way yards any grounds, any public place, street or within school, park playground; or candy, any place ice-cream, drinks,
“2. In of business where soft papers, supplies, magazines, books, pamphlets, pictures or food, school sale; postcards kept are for sold or any open public; toilet or restroom to the “3. In any any parlor, place where poolroom ór “4. In billiard liquor public; sale to the alcoholic sold offered for n ’ any place phonograph records, photographs, motion In where “5. used, maintained, made, pictures, transcriptions of kind are pr exhibited.” . sold or affirmed, Superior
Department Court,2 jail Municipal judgment imposing Court sentence on consisting possession, appellant, solely as of a appellant’s certain book found bookstore, upon judiciál investigation to be obscene. definition The. knowledge appellant no included element of scienter — thus the the contents the book —and ordinance was “strict” or criminal imposing construed “absolute” liability.3 appellant made timely objection bélow if the' ordinance were so construed would be in conflict with the Constitution of the This United States. contention, together with other contentions based Constitution,4 rejected, the case comes here on appeal. S. (2); 28. U. C. 1257 S. § years
Almost ago, Hughes Chief Justice declared *3 longer this “It is no open liberty Court: to doubt that the .press, speech, liberty the and of is within the safe- guarded by the due process clause of the Fourteenth
2 proceeding, highest In this sort of “the court of a State in which Const'., decision could be had.” 28 U. C. S. 1257. Cal. Art. § VI, 4, 4b, California, 5. Edwards v. See 314 U. S. 171. §§ Hall, Principles See Law, p. General of Criminal 280. The Appellate Department’s opinion App. Supp. 860, is at Cal. 2d 2d was, 327 P. 636. The fact, ordinance’s elimination scienter in assigned by upholding permissible reason that court for it as supplementary legislation against municipal the that contention occupied by' field was §311, California Penal Code a -state-wide obscenity requires statute which scienter.. contentions, again here, .These other which are made aré that constitutionally required of a evidence nature to be allowed tc be given for- the defense as to the obscene character of a book was permitted introduced; constitutionally impermissible that a applied by facts; standard of was the trier and that light the book was not in fact obscene. In our determination permissibility as to the liability constitutional of a strict law under circumstances, presented by ease, pass this we need not on these questions: purposes discussion, For the we shall assume without deciding correctly adjudged that book below be obscene. It state action. was found by from invasion
Amendment liberty this personal essential impossible conclude to. general guaranty unprotected left citizen was property rights person of fundamental is familiar Minnesota, It too S. Near v. 283 U. Court, of this such has been the doctrine citation that it also And freedoms, ever since. of these respect free and dis publication that the elaboration requires no word forms of the printed and other semination of books of these constitu applications very furnish familiar is course no matter freedoms. It tionally protected commercial place takes under dissemination Inc., Wilson, 343 S. Joseph Burstyn, U. auspices. See Co., S. 233. American Press 495; Grosjean v. significant a most role Certainly plays a retail bookseller of the distribution of books. process a strict absolute criminal imposed California here books appellant not to have obscene responsibility of, of a mens rea is the rule shop. his “The existence exception to, principles Anglo- rather than the Dennis v. United jurisprudence.” American criminal States, 494, 500.5 competent it is doubtless Still, S. 341 U. create, strict criminal liabilities defin for the States to any element of scienter— offenses without ing criminal freedom-of-expression question where no though even involved, precedent this Court there California, Lambert v. is not without limitations. See *4 the'question validity 225. But here is as to the 355 S.U. of require of this ordinance’s elimination the scienter may tend to work a substan ment —an elimination press. tial the freedom of and of the restriction on examples doc legal Our decisions furnish devices and trines, applications in consistent with the Constitu- most
5 Williams, Part, p. Law —The 238 See also Criminal General seq. et
tion,
in
applied
which cannot be
settings
they
where
have
effect
inhibiting
collateral
the freedom of expression,
by making the
the more
individual
reluctant
to exercise it.
generally
The States
may regulate the allocation of the
proof
courts,
burden
their
it is a
pro
common
impose
cedural device to
on a taxpayer
burden
his
proving
entitlement
to exemptions
taxation,
from
but
where we
that this
being applied
conceived
device was
in a
tending
manner
to cause
a self-imposed
even
restriction of
free expression, we
down its application. Speiser
struck
Randall,
Minnesota,
S. 513.
See Near v.
supra,
at 712-713.
It has been
here that
stated
usual doc
trines
separability
as to the
of constitutional and uncon
applications
stitutional
may
apply
statutes
where
effect is to leave
a
standing
patently
their
statute
capable
of many
applications,
threatening those
unconstitutional
validly
who
exercise their
rights
expression
free
expense
and inconvenience of
prosecution.
criminal
Alabama,
Thornhill v.
S.U.
97-98. Cf. Staub v.
City
Baxley,
Court is to of movement inhibit individual “To thus freedom controversy and expression stifle the flow of democratic Id., at chief sources.” at,one decision here. We guide us to our principles These pro writings are speech that obscene have held freedom guarantees tected constitutional States, United S. Roth v. press. and the speech only question, sure, to. here 476.7 ordinance in fact if there on a bookseller sanctions imposes criminal our hold book. But in his an obscene shop is to be found any power state restrict in Roth does not recognize ing obscene; and are not we of books which the dissemination tend liability feature would think this ordinance’s strict effect, penalizing booksellers, seriously have they slightest of the char though had not the notice even they and the court appellee of the books sold. acter liability penal ordinance to analogize this strict below dispense penal familiar forms of statutes person charged, of the knowledge part element of principal example. We drug legislation being food analogy our examination of the find the instructive rationale for such statutes us. The usual question before in the of its food is so public purity is that interest imposition highest great as to warrant standard' fact .an absolute of care on distributors —in standard plea as to the amount which will not hear distributor’s Balint, United States v. he has care used. Cf. ignorance 254. His of the character 252-253, U. S. no specific is irrelevant. There is constitu food making inhibition tional the distributors food merchandise, their strictest censors but- consti tutional of the freedom of guarantees California, opinion In the Roth there was also decided Alberts which dealt with of the States in this area.
press way in the imposing requirement stand similar By on the bookseller. dispensing any requirement knowledge of the contents of the part book on the seller, the impose ordinance tends to. a severe limitation public’s constitutionally the access to mat protected ter. if For the criminally bookseller liable without and knowledge contents, fulfills ordinance purpose,8 he will tend restrict the books he sells to those inspected; he has and the State will have thus imposed upon restriction distribution constitu tionally protected well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of “Every scienter that: bookseller placed would be under an obligation to himself make n aware of the contents of every shop. book his It would be altogether unreasonable to demand an approach so near 9 King Ewart, omniscience.” v. 25 N. Z. L. R. 709, (C. A.). And the bookseller’s burden would become the public’s burden, public’s for him restricting reading access to matter would be restricted. If the con tents of bookshops periodical and stands were restricted to material of proprietors which their had inspec made an tion, they might depleted indeed. The bookseller’s
8 The
liability
effectiveness
promoting
of absolute criminal
laws in
subjected
caution
Hall,
has been
to criticism. See
General Prin
ciples
pp.
Law,
Criminal
generally Williams,
300-301. See
Criminal
Part,
La w— T he
pp. 267-274;
General
Sayre, Public Welfare
Offenses,
L.
55; Mueller,
33 Col.
Rev.
Common
Rea,
On
Law Mens
States,
1043;
Minn. L.
Morissette v. United
Rev.
limitation timidity in the familiarize and his face himself, he could absolute, liability, thus tend to his criminal would of. public’s printed to forms of the word restrict access constitutionally suppress which the could not .State ' self-censorship, compelled directly. The bookseller’s the whole censorship .affecting State, would be adminis being hardly privately less virulent public, books, all both distribution of Through it, tered. obscene, impeded. would be obscene is dis- requirement It is that unless the scienter argued of obscene with, regulation of the distribution pensed falsely dis- ineffective, material will be as booksellers will *7 deny falsely claim books’ or knowledge their contents might observe obscenity. their We suspect reason to it the law viewed has been some time 'now since man’s of a impotent explore itself as to the actual 'state Law, in Pound, of the Will mind. See Role The Assn. L. 1. American Harv. Rev. Cf. Communications Douds, testimony of Eyewitness v. 411. U. S. necessary á hardly of a book need be perusal bookseller’s awareness of contents. proving element in his he inference that may circumstances warrant-the contained, despite his denial. aware of what book today on definitely pass do need and most We not. to a constitution- requisite sort mental element is what carrying for ally prosecution of a bookseller permissible as to mistake stock; an book whether honest obscene obscenity need whether its contents fact constituted an circumstances under excuse; might whether there that a constitutionally might require the State him put investigate further, might bookseller not, and what such cir- explaining why burden he did form of criminal might any cumstances be. Doubtless to a bookseller will induce applicable statute tendency inhibi- self-censorship some to and have some of material not obscene, on the dissemination tory effect today only goes one which to the extent but we consider all mental elements from the eliminating crime. “The freedoms We have said: fundamental press greatly development have contributed to the society indispensable of our free and are to its well-being continued Ceaseless is the growth. vigilance watchword to erosion prevent Congress their the States. barring The door federal and state intrusion into this area ajar; tightly 'cannot be left must be closed and kept opened only slightest necessary prevent crack upon important encroachment more interests.” Roth v. States, supra, United at opens 488.10 This ordinance n door too far. The existence of the pre State’s vent the distribution of obscene matter does not mean that there can be no constitutional prac barrier to form of that power. City tical exercise of Dean Milk Cf. Co. Madison, 340 plain U. S. to us that It ordinance in question, though matter, aimed at obscene tendency has such a constitutionally protected inhibit expression that it cannot stand under the Constitution.
Reversed. Black, Mr. Justice concurring. appellant was sentenced to prison possessing
his an bookstore “obscene” book violation of a Los *8 Angeles city ordinance.1 I judgment concur hold- ing ordinance for unconstitutional, but not reasons given opinion. the Court’s Roth, emphasized p. 484, We at that there is a “limited area” prevail, representative where such other interests and we listed page. decisions in note at that by opinion, As shown Note 1 of the Court’s the ordinance makes possess places any it unlawful to at defined writ obscene indecent ing, book, pamphlet, picture, photograph, drawing, figure, motion picture film, phonograph recording, recording transcription wire kind. solely it' invalidates the ordinance because
The Court for an possession a bookseller mere “obscene” penalizes obscenity. he is its book, though even unaware ,dis- a on which the Court draws constitutional grounds possesssion a of a book punishes between law tinction “obscenity” punishes its and a law that knowledge with me. Those' knowledge persuasive are not without such possession for grounds are that conviction of bookseller obscenity, is (cid:127)of an “obscene” book when he unaware of has the books he sells to those he “will tend restrict “may and tend to work substantial inspected,” therefore speech.” is, course, on freedom of The fact restriction possession for of “obscene” books prison sentences seriously press pun burden whether will freedom imposed knowledge is ishment or without n obscenity. - how opinion correctly points out Court’s by imposed prosecutors little extra burden will be that a of a book’s requiring proof bookseller aware And if contents he it. the Constitution’s possessed when easily knowledge is the result of requirement met, so particular gains is that bookseller his free case one and dom, way open censorship is left for state but merely punishment adding of all -other booksellers .censorship few new words to old laws. Our constitu speech press gain therefore little. safeguards for and tional Beauharnais if victory, Their is a any, Pyrrhic Cf. one. Illinois, at 275 (dissenting U. S. opinion). apparently way open That intended to leave the speech both governments abridge federal and state also press (to approves) extent this Court indicated “ ‘The following opinion: statements the Court’s barring door and state intrusion into this area federal press] cannot left it must ajar; [freedom only slightest kept tightly opened closed crack prevent upon ñeéessary to encroachment more important . . . This far.” opens interests.’ ordinance that door too *9 This questions statement raises a number of for me. important” are the “more interests protec- What for the tion of constitutional freedom of speech press and must be second is given place? by the standard What can speech which one determine when of abridgment and press goes slight “too far” and it is enough when to be constitutionally allowable? Is this momentous decision to left to a of this Court on majority case-by-case basis? express provision provisions What of put speech Constitution freedom of press and this precarious position of subordination insecurity? and
Certainly the First language Amendment’s leaves no room for inference that abridgments speech press just can be made they slight. because are That Amend- provides, ment in simple words, “Congress shall make . . no law . abridging speech, freedom of or of the press.” I read “no . . . no abridging” law to mean law abridging. The First Amendment, which is the supreme land, law the has thus fixed its own value on freedom of speech and press by putting wholly these freedoms “beyond the reach” of No abridge.2 federal concurring opinion wrong
2 Another has said that would James. Madison and Jefferson Thomas to attribute them the view that beyond places speech wholly the First Amendment reach course, many Federal Government. Of both men made statements during subject speech press long on the freedom their precise complete lives no one can define their views with cer tainty. However, several both statements Madison and Jefferson may they concurring indicate that have held view that opinion terms “doctrinaire absolutism.” Madison, exploring sweep
James First Amendment’s he limitation on Federal Government when offered the Bill of Rights Congress reported having said, right is “[t]he secured; liberty press expressly freedom of (Em- beyond to be the reach Government . . . declared phasis supplied.) Cong. reports 1 Annals of 738. For dis- other years pp. 424-449, 660, cussions Mr. Madison see 704-756. Eleven tracing subject, later he wrote: farther the on this "Without evidence *10 to the purports of the Constitution dilute provision other unequivocal commands of the First Amend- scope of these I not federal Consequently, any ment. do believe that including Congress Court, power and this have agencies, scarcely possible it seem to doubt that no whatever would- Constitution, press delegated by the supposed over the to was originally stood, as it the amendment was intended as a and Madison, Writings (Hunt positive of it.” and absolute reservation 6 341, generally, 385-393, 1906), 391, ed. and see 399. the
Thomas views of the breadth of First Amendment’s Jefferson’s against abridgment speech press by prohibition and the Federal by following made in are the statement he Government illustrated thereby guard[s] in same sen- 1798: First the Amendment] "[The tence, religion, speech, words, under the the freedom of and same either, press: insomuch, throws and of the that whatever violates falsehood, sanctuary others, libels, down the covers and that .the heresy religion, equally withheld defamation, and and false are cognizance Jefferson, Writings tribunals.” 8 from of federal (Ford early scope 1904), ed. 464-465. For another discussion abridgment complete of the First Amendment as a bar to all federal speech George see Tucker’s comments on the ade- press and St. grant protection quacy to all of state forums and state laws Blackstone, against and libel. 1 defamation Commentaries needed ’(Tucker 1803) ed. course, problem Madison faced the before Of neither Jefferson nor case, the Court in this because it was not until Fourteenth passed prohibitions of the First Amendment was 'applicable At the time Amendment were held to States. Jefferson passed, lived, the Fourteenth Amendment was and Madison before abridging prohibit the States from the First Amendment did speech or libel laws. Cf. Barron free the enactment defamation meaning Baltimore, 7 But the of the First Amend- v. Pet. 243. ment, two renowned constitutional as it understood such Madison, important in this and case because architects as Jefferson applies prior holding that the -Fourteenth Amendment of our cases brings "bear the Federal First, with the force to all See, g., Virginia Government, against e. West State the States. 624, Barnette, 639, cases Board Education v. 319 U. S. and other (concurring Speiser Randall, opin- v. S. collected ion) (Court Illinois, . But see Beauharnais U. S. dissenting opinions). speech authority press they subordinate to what “more important contrary
think are interests.” The is, my judgment, notion court-made not Constitution- made. abridgment
State intrusion or of freedom of raises a press question, different since First Amend- ment by only passed by its terms refers Congress. laws IBut prior adhere our decisions holding Fourteenth Amendment made First' to the applicable cases concurring States. See collected opinion Randall, *11 Speiser v. It I 357 U. S. 530. follows that 513, reversing am for this I believe the case because Los Angeles a censorship ordinance sets in violation of the' up First and Fourteenth Amendments. as it
If, seems, way we are on the to national censor- I ship, think it timely suggest again'that there are grave my doubts as desirability mind to the or consti- tutionality of this a becoming Supreme Court's Board of' reading books and viewing perform- television Censors— they ances to determine if whether, permitted, might adversely affect people throughout-the the morals the many- country.3 in this diversified local communities vast 3Kingsley Corp. Regents International Pictures the Uni versity York, (concurring opinion). New S.U. 690-691 concurring accepted, opinion here, The views of make this a if would inappropriate a still more Censors” the Court “Board of whole “ conceding country. opinion, That here is no external measur [t] ing obscenity,” argues requires rod of that the the issue Constitution be on of “contemporary determined the basis com munity literary, psychological or standards” —“the moral standards community.” If, argued concurring it opinion, in the violates reject the for a local court the evidence .of Federal Constitution “experts” contemporary community vague on standards of the word “obscenity,” say seems the it odd to this should have Court community final word on what those standards are or should be. “liberty” process” I do not the Four believe words and “due give power. teenth Court Amendment that much only appli- is here face true that ordinance It is It is also true that indecentrwriting.” to “obscene or cable by many censorship is considered kind of this particular repul- least its mildest and thing to be “the obnoxious and unconstitutional .” “illegitimate . . But sive form It way .... is footing in that practices first get .their rights for the constitutional to watchful duty of courts stealthy encroachments citizen, against and States, Boyd 116 U. S. thereon.” v. United today, us indecency” before “obscenity it While modern— ancient and of mankind —both experience likely most can, and phrase elastic type shows that this political maybe with the will, synonymous unorthodoxy tomorrow. religious enemy progress. of freedom and deadly Censorship pro- it. I plain of the Constitution forbids language here. Judiciary giving foothold test Frankfurter, concurring. Mr. Justice city violating convicted appellant of obscene Angeles prohibiting possession ordinance of .Los His affirmed bookshop. books conviction was he highest appeal court of California to which could *12 the we are judgment it is of that court that asked invalidity three Appellant grounds reverse. claims the Due Clause of the Fourteenth Amend- under Process urges invalidity the of the ordinance as an mént. He guarantee of the freedom of which the abridgment of “liberty” safeguards of the Fourteenth Amendment for that against action, state this the reason Cali- criminally holds for pos- fornia law a bookseller liable an sessing book, wholly apart obscene from scienter - obscenity. on his part regarding the book’s The second by the infirmity urged appellant constitutional is exclu- duly of appropriately testimony through sion offered qual- regarding ified witnesses prevailing literary the standards literary and the moral criteria which books rele- vantly comparable controversy book are deemed not deprived obscene. This exclusion the appellant, such is claim, important testimony relevant bearing on issue and therefore him in mak- restricted ing his defense. appellant’s ultimate contention is questioned book is not obscene a and that bookseller’s possession itof could not be forbidden.
The Court does reach, not and neither I, do the issue of obscenity. disposes The Court of the case exclusively n by sustaining the claim appellant’s “liberty” pro- tected the Due Process Clause Fourteenth Amendment a State precludes from making dissemi- an merely nation obscene books offense a because book in a is bookshop found to be proof obscene without some of the bookseller’s knowledge touching obscenity of its contents. accepts Court the settled of constitu- principle
tionaPlaw that traffic in may obscene literature be out- lawed as crime. But holds one be cannot made outlawry amenable to such criminal unless he is chargeable knowledge obscenity. Obviously the Court holding that a bookseller must familiarize himself with the every shop. contents of book in his No less obviously, the Court does not that a hold bookseller who'insulates himself an knowledge about offend- ing book maintain an thereby emporium free to smut. How much or how little awareness that book may found to obscene suffices to establish scienter, may what satisfy kind evidence the how much or the how the Court leaves for another little, day.
I am deciding no friend of beyond case what immediate controversy requires, particularly when the limits of constitutional are at stake. On the other hand, a case is not just before Court a case. Inev- itably disposition implications carries and gives direc- *13 facts. Were the Court its particular beyond
tions obscenity re- prosecution kind of this holding that with the con- associated guilty mind proof of quires that and that would be infamous, cept of crimes deemed But if the be needed. would elucidation no further a role obscenity plays cases scienter requirement of rea in the defini- of mens normal role different from the the Court. problem confronts crime, a different tion of in an scienter requirement of assume, as I If, mean that before us does like the one prosecution substantially or must have read book bookseller must hand, nor on the other its on the one know contents knowl- himself studious avoidance of exculpate he can an invalidating then, submit, I edge contents, about its dispenses altogether a State obscenity statute because some indi-. require scienter does requirement with the required. of scienter that is scope quality cation not left for future clear, at least- to be made ought It practical in its effect the Court’s decision litigation, nullify power is in tended to conceded not. trafficking in obscene booksellers from prohibit State literature. scope an important difference
Of course there regulate belly feeds the of State what doctrine United States The the brain. and what feeds (cid:127) Balint, limits. U. S. appropriate has v. in prosecutions scienter is not for so- required rule that general offenses is limitation on the public called welfare doing prerequi that awareness of what one is principle See Morissette punishment. site for the infliction of States, United that is U. S. 246. balance struck principle overriding public between vital and the trafficking menace inherent in noxious food cannot be carried over the vital drugs balancing role against society's of free in dealing interest pornography. On the other hand, the constitutional
163 protection of non-obscene cannot absorb the con- stitutional-power of the States to deal obscenity. It certainly wrong would them attribute to Jefferson or Madison doctrinaire absolutism legal that would bar against. obscenity restriction speech.1 as denial of free 1 publication printed clearly of obscene matter was established England as a common-law offense in in 1727 the case of Rex v. Curl, 2 Str. 788, which overruled Reg. Read, v. [1708] 11 Mod. 142, where it .exclusively had been held that such offenses were within jurisdiction the. Wilkes, of the ecclesiastical courts. See also Rex v. [1770] 4 Burr. 2527. The common-law liability was carried across the Atlantic before the appears United States was established and early 1786, York, a'copyright specifically in the States. In in New act “nothing any that in this Act shall . . . authorise Person or Stated any . publish may profane, Persons to . Book . . . that treason able, defamatory, injurious Government, Religion.” Morals or Literature, April 29, 1786, An Act to Promote LIV, IV, Act of c. § (Jones Varick) (1777-1789) 1 Laws of New York and In Penn sylvania, 1815, prosecution liability. was founded on common-law Sharpless, Serg. Rawle, Mary Commonwealth 2 v. & 91. And in land, regulating publications when a statute obscene was enacted in 1853, “although judgment Legisla it was recited ture, publications mores, such advertisements are contra bonos and punishable by law, the common it is desirable that the common regard enforced; May law in this be re-enacted and . . .” Act of 16, 1853, 1853, Md. Laws c. 183.
Moreover, early Queen year reign as as the eleventh Anne (1711-1712), jurisdiction emerged well before the at common law England, provided Massachusetts enacted a statute which “[t]hat composing, writing, printing pub- whosoever shall be convicted of lishing, filthy prophane Song, Pamphlet obscene or . . . shall c; punished 1711-1712, I, . . . .” Acts of Charter of the Province (1759). Massachusetts-Bay, p. 172 It‘is unclear whether the prosecution 1821, well-known Massachusetts in Commonwealth Holmes, *336, was founded on this statute or on common- Mass. liability, although Supreme law in 1945 the Judicial Court indicated regarded early having statute as been in effect until a successor enactment of Revised Statutes of the Commonwealth (1836). Massachusetts, Isenstadt, Commonwealth v. c. § 543, 547, 840, 843, 318 Mass. 62 N. E. 2d n. 1. See also Grant Censorship, III, Angoff, Massachusetts and 10 B. L. Rev. 147 U. against laws .defama- that all told yet been have not We Fox v. see by speech, inciting crime tion and are unconstitutional (1915), S. Washington, utterance. unrestrictable upon curbs impermissible than it any more view, was not Jefferson’s know this We originating Brandéis, JJ'., of-Holmes the view protective law constitutional prevailing our architects of speech. of freedom of required proof of scienter
Accordingly, the *15 cannot obscenity constitutional for prosecutions make practical purposes all nullify for a nature to of for the obscenity. regard Out of to deal with of the State vague an suggests unguiding, interest, the Court State’s by the bookseller establishing “awareness” for standard of challenged book contradiction of a of the contents A bookseller knowledge of its contents. his disclaimer aware of the nature of book course, be well may, of any true having opened cover, or, its without appeal practical As a knowledge of the book. sense, having right the exercise of the constitutional matter therefore obscenity carry with some regulate of a to will State dissemination a bookseller of non-obscene hazard to the hazards are inherent difficulties or literature. Such reason that law many simple domains of the law for the or quantitatively ascertained cannot avail itself of factors wholly impersonally. even pertaining scope to the of scienter
The uncertainties obscenity prosecution speculative for an and the requisite likely are considerations proof entail, the issue charged obscenity— of one right reinforce concept in the nature of right implicit very legal obscenity enlighten judgment tribunal, —to (1930). statutory in Thereafter the offense was made other States. (1847-Í848), See, g., 1848, VIII, e. Act of March c. Va. Laws § 111; May (1853), Maryland 212; 16, 1853, Laws of Act Act c. 183 Large (1867-1870) April 28, 1868,. 430, c. 7 N. Y. Stat. at jury judge, regarding be it the or as'in this case the prevailing literary community and moral standards through qualified experts. and to do so It is imma- testimony terial whether the basis of the exclusionof such incompetence experts testify or irrelevance, community such matters. The two reasons for coalesce, psychological physiological standards or the or conse- quences questioned literature can as a matter of fact hardly except through experts. be established Therefore, expert testimony to exclude such is in effect to exclude goes very as irrelevant evidence that to the essence of safeguards the defense and therefore -tothe constitutional ' process. of due The determination of no doubt judge jury. testimony rests with Of course the experts displace judge jury determining would not question particular the ultimate whether- the book is testimony experts relating obscene, more than the patent to the state of the art in suits determines the n patentability aof controverted device. measuring obscenity.
There is no external rod merely Neither, on the other is its hand, ascertainment a subjective reflection of the taste of moral outlook of indi *16 jurors judges. through vidual or individual Since the law “applying contemporary community its functionaries is determining obscenity, in standards” what constitutes surely States, Roth v. United 354 489, U. S. it 476, must be rational, deemed and therefore relevant to the issue obscenity, light of to allow to be shed on what those “contemporary community standards” are. Their inter pretation ought depend solely necessarily not to on the subjective they limited, hit-or-miss, view of what are by juror judge. believed to be the individual or It bears repetition- obscenity juror that the determination of is for judge personal upbringing or not on thé basis of his or particular experience restricted reflection or life, but “contemporary community the basis of standards.” Can 166 in is is difference what to great
it be doubted that there compared what was in 1959 with be deemed obscene from a in 1859? The difference derives deemed obscene feeling in what to be deemed community regarding shift is by of the effects attributa prurient prurient or not reason in particular writing. Changes ble to this or that society, in doubtless part intellectual moral climate of afford shift findings specialists, due to the views- ing may the attribution. What well have foundations for morals, consonant “with does not been mid-Victorian morality to me answer to the understanding seem to Kennerley, time.” United States 209 present Judge 119, F. This was view Learned Hand an ago reflecting atmosphere decades much propriety days we dis closer to mid-Victorian than ours. Unless literary, believe that the or standards psychological moral community illuminating of a can be made fruitful and subjects give to such inquiry those who their life inquiries, process” violative of “due exclude the in this constitutionally proffered relevant evidence case. importance type prosecutions of this of evidence in impressively has been the recent attested dealing debates House of Commons the inser tion of such a enactment provision of the Obscene 2 (see Publications Eliz. Act, & 8 Ch. 66 Debates, Comm., No. Parliamentary (December H.- provides: Section of .this Act “(1) person A shall not convicted of an offense . . proved question publication this Act . . . if it is article justified being public good ground for the on the it is in literature, learning, science, objects interests of art or of other general concern. “ (2) hereby opinion experts It is that the as to the lit- declared erary, artistic, may other scientific merits of an article -admitted negative proceedings under Act either establish or *17 ground.” the said
167 1042-1043; 16, 1958), 1009-1010, Parliamentary cols. H. Debates, (April 24, 803), No. col. Comm., 1959), subject as thinking well as most considered this in proposed Model Penal Code of American Law A. Code, Institute. See L. I. Model Penal Tentative For I (1957), Draft No. 207.10.3 the reasons § have I such indicated, right would make introduce in requirement process obscenity evidence a of due prosecutions.
Mr. Douglas, Justice concurring. in Roth my
I not all I repeat need here said in dissent States, United my S. to underline con- of this viction neither the author nor the distributor punished book can Rights publish- be under our for Bill ing or it. The distributing publica- notion that obscene tions or utterances included free were this developed in much than the country adoption later the First Amendment, judicial legislative (2) provides part: Subsection of this draft section any prosecution “. . . In an this for offense under section evidence shall be admissible to show:
“(a) the character of the audience for which the material was designed or directed; to which it was
“(b) predominant appeal what of the material would ordinary special audience, any, effect, adults what if probably people; would have on behavior of such “(c) artistic, literary, scientific, or other of the educational merits material; “(d) degree public acceptance material
country; “(e) appeal prurient interest, thereof, advertising absence promotion material; or other testimony testimony author,
“Expert publisher creator or relating entering into the issue of determination of factors shall admissible.” *18 author- leading show. Our country
developments as thé matter have summarized subject ities on follows: there' War the Civil
“In before the United States litera- involving obscene reported decisions were few such lit- that no indication of course is ture. This time; at in circulation erature was not strong to entirely too persistence pornography it an indication Nor is an inference. warrant such to totally indifferent , were people the time In they read. the literature proprieties Letter was bit- The Scarlet Nathaniel Hawthorne’s degraded book that attacked as an immoral terly licentiousness. encouraged social literature lack, merely’means problem cases sufficient thought not to be of literature was obscene the state arousing the forces of importance justify to McClure, Literature, Lockhart and censorship.” Constitution, Obscenity, and The Law of 324-325. Minn. L. Rev. I power, it, have see legislatures
Neither we nor utterance silence. weigh the values of or nar very this book are only groúnds suppressing repulsive me, I it is it; row. have read and while constitutionally pun publication or distribution can My view only showing attempted ished on a not here. : 514 case, stated the Roth at suppressed if, and to expression “Freedom of can closely brigaded illegal it is so that, the extent Giboney it. v. inseparable part as to be an action Co., 490, 498; Labor Boar Empire Storage 336 U. S. d Co., Virginia S. 477-478 As Power a we afford to relax that standard. people, cannot today can suppresses cheap For the test that a tract tomorrow. All it need do is suppress literary gem thought to incite lascivious arouse lustful desire. The list of books that judges juries can place that category is endless.” my Yet is in minority; view fluid rather tests obscenity prevail require judges to read con judgment demned literature and pass on it. This role of. censor in which we ourselves find an edifying one. But since by the prevailing thought school we must *19 it, (cid:127)perform I see no harm, perhaps some in good, the rule fashioned requires Court which showing scienter. implicitly For it recognizes that First these rights, by Amendment reason of the strict command that command carries over to the Amendment —a States reason of the Due Process Clause of the Four teenth preferred Amendment —are rights. What today may provide Court does possibly some small degree of safeguard to by making patrol booksellers those who proceed bookstalls highhandedly less than has been their custom.* Harlan,
Mr. part Justice concurring dissenting in part. striking
The legislation down local is always serious business for this In my opinion Court. case, the Roth IT. S., 503-508, at I expressed the view that state power in obscenity field has wider than scope federal power. question The whether scienter ais constitution ally .required element in a criminal statute is Chafee, Speech (1941), 536-540;
*See Free pp. States United McClure, Literature, Obscenity, Lockhart and The Law of and the Constitution, Daniels, 295, 302-316; L. 38 Minn. Rev. The Censor ship (1954), p. seq.; Right Blanshard, of Books 76 et Read (1955), p. seq.; Fellman, (1957). et Censorship of Books Library Allen, New And see American World F. Literature v. Supp. 823. o u- scope power
intimately to the related constitutional a re impact for the of such obscene, to bar material may thing one quirement prosecution on effective proscribe is broad and scope where the Proof scope quite another where narrow. in the case of obvi great entail no burden may scienter very however, become material; may, ously obscene de the material is more where the character of difficult then, question the scienter involves my batable. In view . depending of a different order whether considerations here statute is involved. have or a federal We state us I meagre and on the data before ordinance, a state of a question whether the absence not reach the would scienter renders the ordinance unconstitutional. element n in the however, generalities I say, must down the ordinance leave me opinion striking Court’s unconvinced. point of view free dissemination From the ideas, the Court invalidates
constitutionally protected may its effect induce ground ordinance on literary offerings their nonobscene booksellers to restrict *20 unwittingly of through prosecution fear merchandise publication. From the shelves an obscene having their in its citi- of State’s interest point of view the protecting material, the dissemination of obscene zens of a man’s says proving that the state Court effect proving than of is more difficult state his mind little a intimates relaxed of digestion, also that standard but requirements. This satisfy constitutional mens rea would interests rough balancing competing me is for too balancing unavoidably' required at stake. Such adjudication, notwithstanding this kind of constitutional liberty speech press. domain of it that arises both sides of the appraisal A constitutional more critical meagre on the possible us, material before balance, not required seems to me before the ordinance can be struck ground. For, concurring opinions down on this my Brothers Black and Frankfurter the conclu- show, embodying sion but not one ordinance, that some scienter, likely element to restrict the dissemination than legitimate literature seems more dialectical real. 1 am persuaded question also not that the ordinance unconstitutionally merely in this applied instance expert because of the state court’s refusal to admit testi n mony. agree my Brother Frankfurter that I trier of an case must take into account “con States, temporary community standards,” Roth v. United 476, that, S. 489. This means regardless elements of law, the offense under state the Fourteenth Amendment not permit does conviction such as was a. complained obtained here1 unless the work of is found substantially to exceed the limits candor set contemporary community community standards.2 The cannot, liberty press issue, where are at condemn that it generally tolerates. This being so, follows due term in process “using pri — mary opportunity sense of an to be heard and to defend .”. right,” . substantive v. Co. [a] Brinkerhoff-Faris Hill, S. requires 281 U. a State to allow a liti- 678 —
1We are
objection
concerned in this instance with an
to what
portrays,
Corp.
book
Kingsley
not what
it teaches. Cf.
Pictures
Regents,
gant in some proof manner to introduce on this score. While a State not debarred from regarding the trier of as the community fact embodiment of standards, com- petent judge challenged work those stand- ards,3 it is privileged not to rebuff all enlighten efforts to persuade the trier. I
However, would not hold that particular kind of evidence must be admitted, specifically, that the Consti- requires tution opinion oral testimony by experts be heard. There ways áre other proof made, can be very this case Appellant demonstrates. attempted compare the contents of the work with that of other allegedly similar publications which were openly pub- lished, sold and purchased, and which received wide gen- acceptance. eral Where there is a variety of even means, though may be considered expert testimony is the most convenient practicable proof, method of I think it is going too far say that such á method is constitu- tionally compelled, may that a State conclude, not responsive reasons to its traditional doctrines of evi- dence law, that the issue of community may standards subject be the expert testimony. I know of no case where this Court, on constitutional grounds, has required State to sanction a particular proof. mode of In my opinion conviction is fatally defective in the trial as I judge, read the record, turned every' aside attempt by appellant to introduce evidence bearing oh community standards. The exclusionary rulings were not limited to offered expert testimony. This had the effect of depriving appellant of the opportunity to offer any proof on a constitutionally relevant issue. On this ground I would reverse the jüdgment below, and remand the case for a new trial.
3 Such a view does not of course mean that the issue is to be tried according personal to the judge jury. standards of the