354 U.S. 436 (1957), 107, Kingsley Books, Inc. v. Brown

Docket Nº:No. 107
Citation:354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469
Party Name:Kingsley Books, Inc. v. Brown
Case Date:June 24, 1957
Court:United States Supreme Court

Page 436

354 U.S. 436 (1957)

77 S.Ct. 1325, 1 L.Ed.2d 1469

Kingsley Books, Inc.



No. 107

United States Supreme Court

June 24, 1957

Argued April 22, 1957



In a proceeding under §22-a of the New York Code of Criminal Procedure, a State Court, sitting in equity, found that certain booklets displayed for sale by appellants were clearly obscene, and it enjoined their further distribution and ordered their destruction.

Held: resort to this remedy by the State was not violative of the freedom of speech and press protected by the Due Process Clause of the Fourteenth Amendment from encroachment by the States. Pp. 437-445.

(a) A State could constitutionally convict appellants for keeping for sale booklets found to be obscene. Alberts v. California, post, p. 476. P. 440.

(b) Nothing in the Due Process Clause of the Fourteenth Amendment restricts a State to the criminal process in seeking to protect its people from the dissemination of pornography. P. 441.

(c) The injunction here sustained no more amounts to a "prior restraint" on freedom of speech or press than did the criminal prosecution in Alberts v. California, supra, where the defendant was fined, sentenced to imprisonment, and put on probation for two years on condition that he not violate the obscenity statute. Pp. 441-444.

(d) The Due Process Clause does not subject the States to the necessity of having trials by jury in misdemeanor prosecutions, and the procedure prescribed by § 22-a of the New York statute for determination whether a publication is obscene does not differ in essential procedural safeguards from that provided under many state statutes making the distribution of obscene publications a misdemeanor. Pp. 443-444.

(e) The provision in § 22-a for the seizure and destruction of instruments of ascertained wrongdoing is a resort to a legal remedy long sanctioned in Anglo-American law. P. 444.

(f) Near v. Minnesota, 283 U.S. 697, distinguished. P. 445.

1 N.Y.2d 177, 134 N.E.2d 461, affirmed.

Page 437

FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

This is a proceeding under § 22-a of the New York Code of Criminal Procedure (L.1941, c. 925), as amended in 1954 (L.1954, c. 702). This section supplements the existing conventional criminal provision dealing with pornography by authorizing the chief executive, or legal officer, of a municipality to invoke a "limited injunctive remedy," under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial to be obscene, and to obtain an order for the seizure, in default of surrender, of the condemned publications.1

Page 438

A complaint dated September 10, 1954, charged appellants with displaying for sale paper-covered obscene booklets, fourteen of which were annexed, under the general title of "Nights of Horror." The complaint prayed

Page 439

that appellants be enjoined from further distribution of the booklets, that they be required to surrender to the sheriff for destruction all copies in their possession, and, upon failure to do so, that the sheriff be commanded to seize and destroy those copies. The same day, the appellants were ordered to show cause within four days why they should not be enjoined [77 S.Ct. 1327] pendente lite from distributing the booklets. Appellants consented to the granting of an injunction pendente lite, and did not bring the matter to issue promptly, as was their right under subdivision 2 of the challenged section, which provides that the persons sought to be enjoined

shall be entitled to a trial of the issues within one day after joinder of issue, and a decision shall be rendered by the court within two days of the conclusion of the trial.

After the case came to trial, the judge, sitting in equity, found that the booklets annexed to the complaint and introduced in evidence were clearly obscene -- were "dirt for dirt's sake"; he enjoined their further distribution and ordered their destruction. He refused to enjoin "the sale and distribution of later issues" on the ground that "to rule against at volume not offered in evidence would . . . impose an unreasonable prior restraint upon freedom of the press." 208 Misc. 150, 167, 142 N.Y.S.2d 735, 750.

Not challenging the construction of the statute or the finding of obscenity, appellants took a direct appeal to the New York Court of Appeals, a proceeding in which the constitutionality of the statute was the sole question open to them. That court (one judge not sitting) found no constitutional infirmity: three judges supported the unanimous conclusion by detailed discussion, the other three deemed a brief disposition justified by "ample authority." 1 N.Y.2d 177, 189, 151 N.Y.S.2d 639, 134 N.E.2d 461, 468. A claim under the Due Process Clause of the Fourteenth Amendment made throughout the state litigation brought the case here on appeal. 352 U.S. 962.

Page 440

Neither in the New York Court of Appeals nor here did appellants assail the legislation insofar as it outlaws obscenity. The claim they make lies within a very narrow compass. Their attack is upon the power of New York to employ the remedial scheme of § 22-a. Authorization of an injunction pendente lite, as part of this scheme, during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which "[a]dequate notice, judicial hearing, [and] fair determination" are assured, 208 Misc. 150, 164, 142 N.Y.S.2d 735, 747, is a safeguard against frustration of the public interest in effectuating judicial condemnation of obscene matter. It is a brake on the temptation to exploit a filthy business offered by the limited hazards of piecemeal prosecutions, sale by sale, of a publication already condemned as obscene. New York enacted this procedure on the basis of study by a joint legislative committee. Resort to this injunctive remedy, it is claimed, is beyond the constitutional power of New York in that it amounts to a prior censorship of literary product, and, as such, is violative of that "freedom of thought and speech" which has been "withdrawn by the Fourteenth Amendment from encroachment by the states." Palko v. Connecticut, 302 U.S. 319, 326-327. Reliance is particularly placed upon Near v. Minnesota, 283 U.S. 697.

In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that "the primary requirements of decency may be enforced against obscene publications." Id. at 716. And so, our starting point is that New York can constitutionally convict appellants of keeping for sale the booklets incontestably found to be obscene. Alberts v. California, post, p. 476. The immediate problem, then, is whether New York can adopt as an

Page 441

auxiliary means of dealing with such obscene merchandising the procedure of § 22-a.

We need not linger over the suggestion that something can be drawn out of the Due Process Clause of the [77 S.Ct. 1328] Fourteenth Amendment that restricts New York to the criminal process in seeking to protect its people against the dissemination of pornography. It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action, or by an injunction, or by some or all of these remedies in combination, is a matter within the legislature's range of choice. See Tigner v. Texas, 310 U.S. 141, 148. If New York chooses to subject persons who disseminate obscene "literature" to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies. Just as Near v. Minnesota, supra, one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that "Liberty of speech, and of the press, is also not an absolute right," 283 U.S. at 708, it likewise made clear that "the protection even as to previous restraint is not absolutely unlimited." Id. at 716. To be sure, the limitation is the exception; it is to be closely confined so as to preclude what may fairly be deemed licensing or censorship.

The judicial angle of vision in testing the validity of a statute like § 22-a is "the operation and effect of the statute in substance." Id. at 713. The phrase "prior restraint" is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who

Page 442

brings weighty learning to his support of constitutionally protected liberties: "What is needed," writes Professor Paul A. Freund,

is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.

The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.

Wherein does § 22-a differ in its effective operation from the type of statute upheld in Alberts? Section 311 of California's Penal Code provides that "Every person who wilfully and lewdly . . . keeps for sale . . . any obscene . . . book . . . is guilty of a misdemeanor. . . ." Section 1141 of New York's Penal Law is similar. One would be bold to assert that the in terrorem effect of such statutes less restrains booksellers in the period before the law strikes than does § 22-a. Instead of requiring the bookseller to dread that the offer for sale of a book may, without prior warning, subject him to a criminal prosecution with the hazard of imprisonment, the civil procedure assures him that such...

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