333 U.S. 507 (1948), 3, Winters v. New York

Docket Nº:No. 3
Citation:333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840
Party Name:Winters v. New York
Case Date:March 29, 1948
Court:United States Supreme Court

Page 507

333 U.S. 507 (1948)

68 S.Ct. 665, 92 L.Ed. 840



New York

No. 3

United States Supreme Court

March 29, 1948

Argued March 27, 1946

Reargued November 19, 1946

Reargued November 10,1947




Subsection 2 of §1141 of the New York Penal Law, as construed by the State Court of Appeals to prohibit distribution of a magazine principally made up of news or stories of criminal deeds of bloodshed or lust so massed as to become vehicles for inciting violent and depraved crimes against the person, held so vague and indefinite as to violate the Fourteenth Amendment by prohibiting acts within the protection of the guaranty of free speech and press. Pp. 508-520.

294 N.Y. 545, 63 N.E.2d 98, reversed.

Appellant was convicted for having certain magazines in his possession with intent to sell them, in violation of subsection 2 of §1141 of the New York Penal Law. The Appellate Division of the Supreme Court of New York affirmed. 268 A.D. 30, 48 N.Y.Supp. 230. The Court of Appeals of New York affirmed, 294 N.Y. 545, 63 N.E.2d 98, and amended its remittitur to the trial court so as to show that it had held that the conviction did not violate the Fourteenth Amendment. 294 N.Y. 979, 63 N.E.2d 713. Reversed, p. 520.

Page 508

REED, J., lead opinion

MR. JUSTICE REED delivered the opinion of the Court.

Appellant is a New York City bookdealer, convicted, on information,1 of a misdemeanor for having in his possession with intent to sell certain magazines charged to violate subsection 2 of § 1141 of the New York Penal Law, Consol.Laws, c. 40. It reads as follows:

§ 1141. Obscene prints and articles

1. A person . . . who,

2. Prints, utters, publishes, sells, lends, gives away, distributes or shows, or has in his possession with intent to sell, lend, give away, distribute or show, or otherwise offers for sale, loan, gift or distribution, any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime; . . .

* * * *

Is guilty of a misdemeanor, . . .

Page 509

Upon appeal from the Court of Special Sessions, the trial court, the conviction was upheld by the Appellate Division of the New York Supreme Court, 268 A.D. 30, 48 N.Y.S.2d 230, whose judgment was later upheld by the New York Court of Appeals. 294 N.Y. 545, 63 N.E.2d 98.

The validity of the statute was drawn in question in the state courts as repugnant to the Fourteenth Amendment to the Constitution of the United States in that it denied the accused the right of freedom of speech and press, protected against state interference by the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666; Pennekamp v. Florida, 328 U.S. 331, 335. The principle of a free press covers distribution as well as publication. Lovell v. City of Griffin, 303 U.S. 444, 452. As the validity of the section was upheld in a final judgment by the highest court of the state against this constitutional challenge, this Court has jurisdiction under Judicial Code, § 237(a). This appeal was argued at the October 1945 Term of this Court and set down for reargument before a full bench at the October 1946 Term. It was then reargued and again set down for further reargument at the present term.

The appellant contends that the subsection violates the right of free speech and press because it is vague and indefinite. It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void on its face as contrary to the Fourteenth Amendment. Stromberg v. California, 283 U.S. 359, 369; Herndon v. Lowry, 301 U.S. 242, 258. A failure of a statute limiting freedom of expression to give fair notice of what acts will be punished and such a statute's inclusion of prohibitions against expressions,

Page 510

protected by the principles of the First Amendment violates an accused's rights under procedural due process and freedom of speech or press. Where the alleged vagueness of a state statute had been cured by an opinion of the state court, confining a statute, Rem. & Bal.Code, § 2564, punishing the circulation of publications "having a tendency to encourage or incite the commission of any crime" to "encouraging an actual breach of law," this Court affirmed a conviction under the stated limitation of meaning. The accused publication was read as advocating the commission of the crime of indecent exposure. Fox v. Washington, 236 U.S. 273, 277.

We recognize the importance of the exercise of a state's police power to minimize all incentives to crime, particularly in the field of sanguinary or salacious publications with their stimulation of juvenile delinquency. Although we are dealing with an aspect of a free press in its relation to public morals, the principles of unrestricted distribution of publications admonish us of the particular importance of a maintenance of standards of certainty in the field of criminal prosecution for violation of statutory prohibitions against distribution. We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature. Cf. [68 S.Ct. 668] Hannegan v. Esquire, 327 U.S. 146, 153, 158. They are equally subject to control if they are lewd, indecent, obscene or profane. Ex parte Jackson, 96 U.S. 727, 736; Chaplinsky v. New Hampshire, 315 U.S. 568.

Page 511

The section of the Penal Law, § 1141(2), under which the information was filed is a part of the "indecency" article of that law. It comes under the caption "Obscene prints and articles." Other sections make punishable various acts of indecency. For example, § 1141(1), a section not here in issue but under the same caption, punishes the distribution of obscene, lewd, lascivious, filthy, indecent or disgusting magazines.2 Section 1141(2) originally was aimed at the protection of minors from the distribution of publications devoted principally to criminal news and stories of bloodshed, lust or crime.3 It was later broadened to include all the population and other phases of production and possession.

Although many other states have similar statutes, they, like the early statutes restricting paupers from changing residence, have lain dormant for decades. Edwards v. California, 314 U.S. 160, 176. Only two other state courts, whose reports are printed, appear to have construed language in their laws similar to that here involved. In Strohm v. Illinois, 160 Ill. 582, 43 N.E. 622, a statute to suppress exhibiting to any minor child publications of this character was considered. The conviction was upheld. The case, however, apparently did not involve any problem of free speech or press or denial of due

Page 512

process for uncertainty under the Fourteenth Amendment.

In State v. McKee, 73 Conn. 18, 46 A. 409, the court considered a conviction under a statute which made criminal the sale of magazines

devoted to the publication or principally made up of criminal news, police reports, or pictures, and stories of deeds of bloodshed, lust, or crime.

The gist of the offense was thought to be a

selection of immoralities so treated as to excite attention and interest sufficient to command circulation for a paper devoted mainly to the collection of such matters.

Page 27. It was said, a propos of the state's constitutional provision as to free speech, that the act did not violate any constitutional provision relating to the freedom of the press. It was held, p. 31, that the principal evil at which the statute was directed was "the circulation of this massed immorality." As the charge stated that the offense might be committed

whenever the objectionable matter is a leading feature of the paper, or special attention is devoted to the publication of the prohibited items,

the court felt that it failed to state the full meaning of the statute and reversed. As in the Strohm case, denial of due process for uncertainty was not raised.

On its face, the subsection here involved violates the rule of the Stromberg and Herndon cases, supra, that statutes which include prohibitions of acts fairly within the protection of a free press are void. It covers detective stories, treatises on crime, reports of battle carnage, et cetera. In recognition of this obvious defect, the New York Court of Appeals limited the scope by construction. Its only interpretation of the meaning of the pertinent subsection is that [68 S.Ct. 669] given in this case. After pointing out that New York statutes against indecent or obscene publications have generally been construed to refer to sexual impurity, it interpreted the section here in question to forbid these publications as "indecent or obscene" in a

Page 513

different manner. The Court held that collections of criminal deeds of bloodshed or lust

can be so massed as to become vehicles for inciting violent and depraved crimes against the person, and, in that case, such publications are indecent or obscene in an admissible sense, . . .

294 N.Y. at 550. "This idea," its opinion goes on to say, "was the principal reason for the enactment of the statute." The Court left open the question of whether "the statute extends to accounts of criminal deeds not characterized by bloodshed or lust" because the...

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