372 U.S. 58 (1963), 118, Bantam Books, Inc. v. Sullivan

Docket Nº:No. 118
Citation:372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584
Party Name:Bantam Books, Inc. v. Sullivan
Case Date:February 18, 1963
Court:United States Supreme Court
 
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372 U.S. 58 (1963)

83 S.Ct. 631, 9 L.Ed.2d 584

Bantam Books, Inc.

v.

Sullivan

No. 118

United States Supreme Court

February 18, 1963

Argued December 3, 1962

APPEAL FROM THE SUPERIOR COURT OF RHODE ISLAND

Syllabus

The Rhode Island Legislature created a Commission

to educate the public concerning any book . . . or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth as defined [in other sections] and to investigate and recommend the prosecution of all violations of said sections.

The Commission's practice was to notify a distributor that certain books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age. Such notices requested the distributor's "cooperation," and advised him that copies of the lists of "objectionable" publications were circulated to local police departments, and that it was the Commission's duty to recommend prosecution of purveyors of obscenity. Four out-of-state publishers of books widely distributed in the State sued in a Rhode Island court for injunctive relief and a declaratory judgment that the law and the practices thereunder were unconstitutional. The court found that the effect of the Commission's notices was to intimidate distributors and retailers and that they had resulted in the suppression of the sale of the books listed. In this Court, the State Attorney General conceded that the notices listed several publications that were not obscene within this Court's definition of the term.

Held: The system of informal censorship disclosed by this record violates the Fourteenth Amendment. Pp. 59-72.

(a) 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. Pp. 65-66.

(b) Although the Rhode Island Commission is limited to informal sanctions, the record amply demonstrates that it deliberately set about to achieve the suppression of publications deemed "objectionable," and succeeded in its aim. Pp. 66-67.

(c) The acts and practices of the members and Executive Secretary of the Commission were performed under color of state law,

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and so constituted acts of the State within the meaning of the Fourteenth Amendment. P. 68.

(d) The Commission's practice provides no safeguards whatever against the suppression of nonobscene and constitutionally protected matter, and it is a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon criminal sanctions, which may be applied only after a determination of obscenity has been made in a criminal trial hedged about with the procedural safeguards of the criminal process. Pp. 68-70

(e) What Rhode Island has done, in fact, has been to subject the distribution of publications to a system of prior administrative restraints without any provision for notice and hearing before publications are listed as "objectionable" and without any provision for judicial review of the Commission's determination that such publications are "objectionable." Pp. 70-72.

Reversed and cause remanded.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN 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 appellees 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 defined

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in sections 13, 47, 48 and 49 of chapter 610 of the general laws, as amended, and to investigate and recommend the prosecution of all violations of said sections. . . .1

The [83 S.Ct. 634] appellants brought this action in

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the Superior Court of Rhode Island (1) to declare the law creating the Commission in violation of the First and Fourteenth Amendments, and (2) to declare unconstitutional and enjoin the acts and practices of the appellees thereunder. The Superior Court declined to declare the law creating the Commission unconstitutional on its face, but granted the appellants an injunction against the acts and practices of the appellees in performance of their duties. The Supreme Court of Rhode Island affirmed the Superior Court with respect to appellants first prayer, but reversed the grant of injunctive relief. ___ R.I. ___, 176 A.2d 393 (1961).2 Appellants brought this appeal, and we noted probable jurisdiction, 370 U.S. 933.3

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 declared 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 [83 S.Ct. 635] at the time this suit was brought. Among

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the paperback books listed by the Commission as "objectionable" were one published by appellant Dell Publishing Co., Inc., and another published by appellant Bantam Books, Inc.4

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.5 Copies of the

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lists of "objectionable" publications were circulated to local police departments, and Silverstein was so informed in the notices.

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 authorized 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

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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.6

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We held in Alberts v. California, decided with Roth v. United States, 354 U.S. 476, 485, that "obscenity is not within the area of [83 S.Ct. 637] constitutionally protected speech or press," and may therefore be regulated by the States. But this principle cannot be stated without an important qualification:

. . . [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

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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...

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