378 U.S. 205 (1964), 449, A Quantity of Books v. Kansas

Docket Nº:No. 449
Citation:378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809
Party Name:A Quantity of Books v. Kansas
Case Date:June 22, 1964
Court:United States Supreme Court

Page 205

378 U.S. 205 (1964)

84 S.Ct. 1723, 12 L.Ed.2d 809

A Quantity of Books



No. 449

United States Supreme Court

June 22, 1964

Argued April 1-2, 1964



A state statute defined obscenity, proscribed distribution of obscene materials, and authorized their seizure before, and their destruction after, an adversary determination of their obscenity. Though the statute required the filing of a verified information by the county attorney or attorney general stating only that there "is [an] . . . obscene book . . . located within his county," the information filed by the attorney general went further and identified by title 59 allegedly obscene novels which were stated to have been published under a certain caption; copies of seven novels published under that caption were filed with the information; and an ex parte inquiry was held by the district judge during which he "scrutinized" the seven books, concluding that they appeared obscene, and afforded grounds to believe that any paper-backed novels published under the same caption were obscene. His warrant authorized seizure at the place of business of appellants' "News Service" of the novels identified by title in the Information. Thirty-one of the titles were found on appellants' premises when the warrant was executed, and all 1,715 copies of them were seized. At a hearing ten days after seizure, the court denied appellants' claim that, by failing to afford a pre-seizure hearing on the question whether the books were obscene, the statutory procedure operated as an unconstitutional prior restraint. Following a final hearing held about seven weeks after seizure, the court held the 31 novels obscene and ruled that the seized copies should be destroyed on further order. The State Supreme Court affirmed the lower court's order.

Held: the judgment of the State Supreme Court is reversed. Pp. 206-215.

191 Kan. 13, 379 P.2d 254, reversed.

MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE, MR. JUSTICE WHITE, and MR. JUSTICE GOLDBERG, without reaching the question whether the novels were obscene, concluded that the procedure followed in issuing and executing the warrant of seizure prior to a hearing on the issue of obscenity was unconstitutional under the First Amendment, made applicable to the States by the Fourteenth Amendment, because (a) it authorized the sheriff to seize all copies of the specified titles and (b) it did not afford a hearing before the

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warrant issued on the obscenity of even the seven novels filed with the Information. Pp. 208-213.

MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that it is not necessary to consider the procedural questions, since the state statute is unconstitutional under the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp. 213-214.

MR. JUSTICE STEWART concluded that the state statute could not constitutionally suppress the books, because they were not "hard core pornography." Pp. 214-215.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, [84 S.Ct. 1724] MR. JUSTICE WHITE, and MR. JUSTICE GOLDBERG join.

Under a Kansas statute authorizing the seizure of allegedly obscene books before an adversary determination

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of their obscenity and, after that determination, their destruction by burning or otherwise,1 the Attorney General of Kansas obtained an order from the District Court of Geary County directing the sheriff of the county to seize and impound, pending hearing, copies of certain

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paperback novels at the place of business of P-K News Service, Junction City, Kansas. After hearing, the court entered a second order directing the sheriff to destroy the 1,715 copies of 31 novels which had been seized. The Kansas Supreme Court held that the procedures met constitutional requirements, and affirmed the District Court's order. 191 Kan. 13, 379 P.2d 254. Probable jurisdiction was noted, 375 U.S. 919. We conclude that the procedures followed in issuing the warrant for the seizure of the books, and authorizing their impounding pending hearing, were constitutionally insufficient because they did not adequately safeguard against the suppression of nonobscene books. For this reason, we think the judgment must be reversed. Therefore, we do not reach, and intimate no view upon, the appellants' contention that the Kansas courts erred in holding that the novels are obscene.

Section 4 of the Kansas statute requires the filing of a verified information stating only that, "upon information and belief . . . , there is [an] . . . obscene book . . . located within his county." The State Attorney General went further, however, and filed an information identifying by title 59 novels, and stating that "each of said books [has] been published as `This is an original Nightstand Book.'" He also filed with the information copies of seven novels published under that caption, six of which were named by title in the information; particular passages in the seven novels were marked with penciled notations or slips of paper. Although also not expressly required by the [84 S.Ct. 1725] statute, the district judge, on application of the Attorney General, conducted a 45-minute ex parte inquiry during which he "scrutinized" the seven books; at the conclusion of this examination, he stated for the record that they "appear to be obscene literature as defined" under the Kansas statute

and give this Court reasonable grounds to believe that any paper-backed

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publication carrying the following: "This is an original Night Stand book" would fall w thin the same category. . . .

He issued a warrant which authorized the sheriff to seize only the particular novels identified by title in the information. When the warrant was executed on the date it was issued, only 31 of the titles were found on P-K's premises. All copies of such titles, however, 1,715 books in all, were seized and impounded. At the hearing held 10 days later pursuant to a notice included in the warrant, P-K made a motion to quash the information and the warrant on the ground, among others, that the procedure preceding the seizure was constitutionally deficient. The claim was that, by failing first to afford P-K a hearing on the question whether the books were obscene, the procedure "operates as a prior restraint on the circulation and dissemination of books," in violation of the constitutional restrictions against abridgment of freedom of speech and press. The motion was denied, and, following a final hearing held about seven weeks after the seizure (the hearing date was continued on motion of P-K), the court held that all 31 novels were obscene and ordered the sheriff to stand ready to destroy the 1,715 copies on further order.

The steps taken beyond the express requirements of the statute were thought by the Attorney General to be necessary under our decision in Marcus v. Search Warrant, 367 U.S. 717, decided a few weeks before the information was filed. Marcus involved a proceeding under a strikingly similar Missouri search and seizure statute and implementing rule of court. See 367 U.S. 719 at notes 2, 3. In Marcus, the warrant gave the police virtually unlimited authority to seize any publications which they considered to be obscene, and was issued on a verified complaint lacking any specific description of the publications to be seized, and without prior submission of any publications whatever to the judge issuing the warrant.

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We reversed a judgment directing the destruction of the copies of 100 publications held to be obscene, holding that, even assuming that they were obscene, the procedures leading to their condemnation were constitutionally deficient for lack of safeguards to prevent suppression of nonobscene publications protected by the Constitution.

It is our view that, since the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was likewise constitutionally deficient.2 This is the teaching of Kingsley Books, Inc. v. Brown, 354 U.S. 436. See Marcus at pp. 734-738. The New York injunctive procedure there sustained does not afford ex parte relief, but postpones all injunctive relief until "both sides have had an opportunity to be heard." Tenney v. Liberty News Distributors, 13 A.D.2d 770, 215 N.Y.S.2d 663, 664. In Marcus, we explicitly said that Kingsley Books

does not support the proposition that the State may impose the extensive restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity, irrespective of whether [84 S.Ct. 1726] or not the material is legally obscene.

367 U.S. at 735-736. A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books. State regulation of obscenity must

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.

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66; the Constitution requires a procedure "designed to focus searchingly on the question of obscenity," Marcus, p. 732. We therefore

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conclude that in not first affording P-K an adversary hearing, the procedure leading to the seizure order was constitutionally deficient. What we said of the Missouri procedure, id. at 736-737, also fits the Kansas procedure employed to remove these books from circulation:

. . . there is no doubt that an effective restraint -- indeed, the most effective restraint possible -- was imposed prior to hearing on the circulation of the publications in this case, because...

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