386 U.S. 767 (1967), 3, Redrup v. New York

• Docket Nº: No. 3
• Citation: 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515
• Party Name: Redrup v. New York
• Case Date: May 08, 1967
• Court: United States Supreme Court

Page 767

386 U.S. 767 (1967)

87 S.Ct. 1414, 18 L.Ed.2d 515

Redrup

v.

New York

No. 3

United States Supreme Court

May 8, 1967

Argued October 10, 1966

CERTIORARI TO THE APPELLATE TERM OF THE SUPREME COURT

OF NEW YORK, FIRST JUDICIAL DEPARTMENT

Syllabus

Petitioners in Nos. 3 and 16 were convicted for violating New York and Kentucky laws, respectively, concerning the sale of allegedly obscene publications. In No. 50, the Arkansas courts, in a civil proceeding, declared certain issues of specific magazines to be obscene, enjoined their distribution, and ordered their destruction.

Held: These cases can be and are decide upon their common constitutional basis that the distribution of the publications is protected by the First and Fourteenth Amendments from governmental suppression.

No. 50, 239 Ark. 474, 393 S.W.2d 219, and Nos. 3 and 16, reversed.

Page 768

Per curiam opinion.

PER CURIAM.

These three cases arise from a recurring conflict -- the conflict between asserted state power to suppress the distribution of books and magazines through criminal or civil proceedings and the guarantees of the First and Fourteenth Amendments of the United States Constitution.

I

In No. 3, Redrup v. New York, the petitioner was a clerk at a New York City news stand. A plainclothes patrolman approached the news stand, saw two paperback books on a rack -- Lust Pool, and Shame Agent -- and asked for them by name. The petitioner handed him the books and collected the price of $1.65. As a result of this transaction, the petitioner was charged in the New York City Criminal Court with violating a state criminal law.¹ He was convicted, and the conviction was affirmed on appeal.

In No. 16, Austin v. Kentucky, the petitioner owned and operated a retail bookstore and news stand in Paducah, Kentucky. A woman resident of Paducah purchased two magazines from a salesgirl in the petitioner's store, after asking for them by name -- High Heels, and Spree. As a result of this transaction, the petitioner stands convicted

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in the Kentucky courts for violating a criminal law of that State.²

In No. 50, Gent v. Arkansas, the prosecuting attorney of the Eleventh Judicial District of Arkansas brought a civil proceeding under a state statute³ to have certain issues of various magazines declared obscene, to enjoin their distribution, and to obtain a judgment ordering their surrender and destruction. The magazines proceeded against were: Gent, Swank, Bachelor, Modern Man, Cavalcade, Gentleman, Ace, and Sir. The County Chancery Court entered the requested judgment after a trial with an advisory jury, and the Supreme Court of Arkansas affirmed, with minor modifications.⁴

In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U.S. 158; cf. Butler v. Michigan, 352 U.S. 380. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U.S. 622; Public Utilities Comm'n v. Pollak, 343 U.S. 451. And in none was there evidence of the sort of "pandering" which the Court found significant in Ginzburg v. United States, 383 U.S. 463.

II

The Court originally limited review in these cases to certain particularized questions, upon the hypothesis that the material involved in each case was of a character described as "obscene in the constitutional sense" in

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Memoirs v. Massachusetts, 383 U.S. 413, 418.⁵ But we have concluded that the hypothesis upon which [87 S.Ct. 1416] the Court originally proceeded was invalid, and, accordingly, that the cases can and should be decided upon a common and controlling fundamental constitutional basis, without prejudice to the questions upon which review was originally granted. We have concluded, in short, that the distribution of the publications in each of these cases is protected by the First and Fourteenth Amendments from governmental suppression, whether criminal or civil, in personam or in rem.⁶

Two members of the Court have consistently adhered to the view that a State is utterly without power to suppress, control, or punish the distribution of any writings or pictures upon the ground of their "obscenity."⁷ A third has held to the opinion that a State's power in this area is narrowly limited to a distinct and clearly...