361 U.S. 147 (1959), 9, Smith v. California

Docket Nº:No. 9
Citation:361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205
Party Name:Smith v. California
Case Date:December 14, 1959
Court:United States Supreme Court

Page 147

361 U.S. 147 (1959)

80 S.Ct. 215, 4 L.Ed.2d 205




No. 9

United States Supreme Court

Dec. 14, 1959

Argued October 20, 1959




Appellant, proprietor of a bookstore, was convicted of violating a city ordinance which was construed by the state courts as making him absolutely liable criminally for the mere possession in his store of a book later judicially determined to be obscene -- even if he had no knowledge as to the contents of the book. Held: As thus construed and applied, the ordinance violates the freedom of the press which is safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. Pp. 148-155.

(a) The free publication and dissemination of books obviously are within the constitutionally protected freedom of the press, and a retail bookseller plays a most significant role in the distribution of books. P. 150.

(b) Legal devices and doctrines, in most applications consistent with the Constitution, may not be constitutionally capable of application where such application would have the effect of inhibiting freedom of expression by making persons reluctant to exercise it. Pp. 150-152.

(c) Obscene expression is not constitutionally protected; but this ordinance imposes an unconstitutional limitation on the public's access to constitutionally protected matter. For, if the bookseller be criminally liable without knowledge of the contents, he will tend to restrict the books he sells to those he has inspected, and thus a restriction will be imposed by the States upon the distribution of constitutionally protected, as well as obscene, books. Pp. 152-154.

(d) The existence of the State's power to prevent the distribution of obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise of that power. Hence, that there may be more difficultly in enforcing a regulation against the distribution of obscene literature if booksellers may not be held to an absolute criminal liability does not require a different result here. Pp. 154-155.

161 Cal.App. 2d Supp. 860, 327 P.2d 636, reversed.

Page 148

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellant, the proprietor of a bookstore, was convicted in a California Municipal Court under a Los Angeles City ordinance which makes it unlawful

for any person to have in his possession any obscene or indecent writing, [or] book . . . in any place of business where . . . books . . . are sold or kept for sale.1

The offense was defined by the Municipal Court, and by the Appellate

Page 149

Department of the Superior Court,2 which affirmed the Municipal Court judgment imposing a jail sentence on appellant, as consisting solely of the possession, in the appellant's bookstore, of a certain book found upon judicial investigation to be obscene. The definition included no element of scienter -- knowledge by appellant of the contents of the book -- and thus the ordinance was construed as imposing a "strict" or "absolute" criminal liability.3 The appellant made timely objection below that, if the ordinance were so construed it would be in conflict with the Constitution of the United States. This contention, together with other contentions based on the Constitution,4 was rejected, and the case comes here on appeal. 28 U.S.C. § 1257(2); [80 S.Ct. 217] 358 U.S. 926.

Almost 30 years ago, Chief Justice Hughes declared for this Court:

It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth

Page 150

Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property. . . .

Near v. Minnesota, 283 U.S. 697, 707. It is too familiar for citation that such has been the doctrine of this Court, in respect of these freedoms, ever since. And it also requires no elaboration that the free publication and dissemination of books and other forms of the printed word furnish very familiar applications of these constitutionally protected freedoms. It is, of course, no matter that the dissemination takes place under commercial auspices. See Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495; Grosjean v. American Press Co., 297 U.S. 233. Certainly a retail bookseller plays a most significant role in the process of the distribution of books.

California here imposed a strict or absolute criminal responsibility on appellant not to have obscene books in his shop. "The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500.5 Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter -- though even where no freedom of expression question is involved, there is precedent in this Court that this power is not without limitations. See Lambert v. California, 355 U.S. 225. But the question here is as to the validity of this ordinance's elimination of the scienter requirement -- an elimination which may tend to work a substantial restriction on the freedom of speech and of the press. Our decisions furnish examples of legal devices and doctrines in most applications consistent with the Constitution,

Page 151

which cannot be applied in settings where they have the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it. The States generally may regulate the allocation of the burden of proof in their courts, and it is a common procedural device to impose on a taxpayer the burden of proving his entitlement to exemptions from taxation, but where we conceived that this device was being applied in a manner tending to cause even a self-imposed restriction of free expression, we struck down its application. Speiser v. Randall, 357 U.S. 513. See Near v. Minnesota, supra, at 712-713. It has been stated here that the usual doctrines as to the separability of constitutional and unconstitutional applications of statutes may not apply where their effect is to leave standing a statute patently capable of many unconstitutional applications, threatening those who validly exercise their rights of free expression with the expense and inconvenience of criminal prosecution. Thornhill v. Alabama, 310 U.S. 88, 97-98. Cf. Staub v. City of Baxley, 355 U.S. 313.6 And this Court has intimated that stricter standards of permissible statutory vagueness may be applied to a statute [80 S.Ct. 218] having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. Winters v. New York, 333 U.S. 507, 509-510, 517-518. Very much to the point here, where the question is the elimination of the mental element in an offense, is this Court's holding in Wieman v. Updegraff, 344 U.S. 183. There an oath as to past freedom from membership in subversive organizations, exacted by a State as a qualification for public employment, was held to violate the Constitution in that it made no distinction between members who had, and those who had not, known of the organization's character. The

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Court said of the elimination of scienter in this context: "To thus inhibit individual freedom of movement is to stifle the flow of democratic expression and controversy at one of its chief sources." Id. at 191.

These principles guide us to our decision here. We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. Roth v. United States, 354 U.S. 476.7 The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if, in fact, there is to be found in his shop an obscene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect by penalizing booksellers even though they had not the slightest notice of the character of the books they sold. The appellee and the court below analogize this strict liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example. We find the analogy instructive in our examination of the question before us. The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors -- in fact, an absolute standard which will not hear the distributor's plea as to the amount of care he has used. Cf. United States v. Balint, 258 U.S. 250, 252-253, 254. His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of good the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the

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press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose,8 he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the...

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