401 U.S. 200 (1971), 41, Dyson v. Stein

Docket Nº:No. 41
Citation:401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781
Party Name:Dyson v. Stein
Case Date:February 23, 1971
Court:United States Supreme Court

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401 U.S. 200 (1971)

91 S.Ct. 769, 27 L.Ed.2d 781




No. 41

United States Supreme Court

Feb. 23, 1971

Argued April 30, 1970

Reargued November 16, 1970




Appellee newspaper publisher, who had been charged with violating a Texas law prohibiting the possession of obscene materials, brought this action in a federal district court for an injunction to prevent the Dallas police from arresting him and seizing his property on obscenity grounds without a prior judicial determination of obscenity and for a declaration of the rights of the parties with respect to the statute. A three-judge court was convened and issued declaratory and injunctive relief, holding two parts of the statute unconstitutional and ruling that another part would be constitutional only if the obscenity definition was changed.

Held: There was no finding of irreparable injury to appellee, and hence no proper basis for federal interference with the pending state criminal prosecution. Younger v. Harris, ante, p. 37; Samuels v. Mackell, ante, p. 66.

300 F.Supp. 602, vacated and remanded.

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Per curiam opinion.


The appellee, Stein, published a bi-weekly newspaper, the Dallas Notes. Stein was charged with two violations of Art. 527, § 1, of the Texas Penal Code, which then prohibited, among other things, the possession of obscene materials. * While these two [91 S.Ct. 771] cases were pending

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in state courts, Stein brought the present action in a federal district court under 42 U.S.C. §§ 1983, 1985, representing himself and a class consisting of present and future employees of and contributors to his newspaper. The defendants were the district attorney of Dallas County, and the Dallas chief of police. He sought:

[P]ermanent injunctive relief against the Dallas Police Department, requiring that . . . there be no arrest of plaintiff, nor seizure of his property on grounds of obscenity without a prior judicial determination of the obscene character of the material in question; . . .

. . . That the Court adjudge, decree and declare the rights of the parties with respect to the application of Article 527 of the Texas Penal Code;

. . . That the Court grant such other and further relief as is just and equitable.

A three-judge court was convened. 28 U.S.C. § 2284. That court refused to require a hearing on the

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obscene character of the material before its seizure and the arrest of the plaintiff. It held that the request for such relief was "based on the alleged harassment and . . . not an attack upon the constitutionality of a statute." The court went on to emphasize that its consideration did

not in any way involve an appraisal of the constitutionality of the application of Article 527 to Plaintiff. Our sole concern is the determination of whether the statute is constitutionally defective on its face.

The three-judge court then turned to the statute itself, and held that §§ 1 and 2 were unconstitutional, and that § 3 would be constitutional only if the definition of obscenity were changed somewhat. The court issued appropriate declaratory and injunctive relief effectuating its conclusions. 300 F.Supp. 602 (1969). Texas officials appealed, and we noted probable jurisdiction. 396 U.S. 954 (1969).

Today we have again stressed the rule that federal intervention affecting pending state criminal prosecutions, either by injunction or by declaratory judgment, is proper only where irreparable injury is threatened. Douglas v. City of Jeannette, 319 U.S. 157 (1943). The existence of such injury is a matter to be determined carefully under the facts of each case. In this case, the District Court made no findings of any irreparable injury as defined by our decisions today; therefore, the judgment of the District Court is vacated and the case is remanded for reconsideration in light of Younger v. Harris, ante, p. 37, and Samuels v. Mackell, ante, p. 66. See also Boyle v. Landry, ante, p. 77.

It is so ordered.

MR. JUSTICE WHITE concurs in the result.

[For concurring opinion of MR. JUSTICE STEWART, see ante, p. 54.]

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BRENNAN, J., concurring

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring in the result.

My Brother DOUGLAS' dissenting opinion describes graphically the police conduct upon which appellee rested his allegations of bad faith and harassment. If proved, these allegations would justify federal intervention. The mass seizure of some two tons of the issues of the newspaper without a prior judicial determination [91 S.Ct. 772] of the alleged obscenity of the issues was unconstitutional. Marcus v. Search Warrant, 367 U.S. 717 (1961); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); A Quantity of Books v. Kansas, 378 U.S. 205 (1964). Similarly, the mass seizure of the tools and equipment required to prepare the newspaper -- insofar as it disabled appellee from publishing future issues -- infringed the principle of Near v. Minnesota, 283 U.S. 697 (1931).

But these questions are not before us. The three-judge court below remanded to a single judge for determination all questions advanced by appellee except the contention that the Texas statute was unconstitutional on its face, and the appellee does not challenge this order of remand here. I, therefore, would reverse the judgment of the District Court, except for paragraph 4, for the reasons stated in my separate opinion in Perez v. Ledesma, ante, p. 93.

DOUGLAS, J., dissenting

MR. JUSTICE DOUGLAS, dissenting.


The two raids in this case were search-and-destroy missions in the Vietnamese sense of the phrase. In each case, the police came at night. The first search warrant authorized a search and seizure of "obscene articles and materials, to-wit: pictures, photographs, drawings and obscene literature" concealed at a given

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address. The seizures included: two tons of a newspaper (Dallas Notes), one photograph enlarger, two portable typewriters, two electric typewriters, one camera, "numerous obscene photographs," and $5.43 in money.1 The second warrant was issued 16 days later, in response to a claim that marihuana was concealed on the premises. It authorized the officers "to search for and seize the said narcotic drug and dangerous drug in accordance with the law in such cases provided." Not finding any marihuana on the premises; the sergeant asked instructions from his lieutenant. He was told to seize pornographic literature and any equipment used to make it. He "didn't know what to seize and what not to seize so [he] just took everything." "Everything" included a Polaroid camera, a Kodak Brownie, a Flocon camera, a Kodak lamp, a floating fixture lamp, a three-drawer desk containing printers' supplies, a drafting square, a drafting table, two drawing boards, a mailing tube, two telephones, a stapler, five cardboard boxes containing documents, one electric typewriter, and one typewriter desk. A poster of Mao Tse-tung, credit cards, costume jewelry, cans of spices, a brown sweater, and

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a statue of a man and woman in an embrace were also seized. Thus, the newspaper Dallas Notes, a bi-monthly, was effectively put out of business.2

[91 S.Ct. 773] It would be difficult to find in our books a more lawless search-and-destroy raid, unless it be the one in Kremen v. United States, 353 U.S. 346. If this search-and-destroy technique can be employed against this Dallas newspaper, then it can be done to the New York Times, the Washington Post the Seattle Post Intelligencer, the Yakima Herald-Republic, the Sacramento Bee, and all the rest of our newspapers. For, as I shall point out, the Texas statute governing "obscenity"3 is plainly unconstitutional.

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Government certainly has no power to close down newspapers. Even censorship -- whether for obscenity, for irresponsible reporting or editorials, or otherwise -- is taboo. As Chief Justice Hughes said in Near v. Minnesota, 283 U.S. 697, decided in 1931:

[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.

Id. at 719-720.

I agree with that view.

It is said, however, that these issues are not before us, as the case has been remanded to a single judge to pass on them. But we deal with plain error, as the state statute is unconstitutional on its face and we should put an end to lawless raids under it.4

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The constitutional mandate that government5 "shall make no law . . . abridging the freedom of speech, or of the press" precludes, in my view, any form of censorship. Vicious, irresponsible, and depraved as the press often is, the constitutional remedy is not censorship.6 The antidote is education, pinning our faith to the Jeffersonian creed that, by education, we may, in time, become a mature people.7

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I have set forth my views over and over again as to why the First Amendment should be strictly construed, and they need not be repeated here. It is difficult -- indeed, impossible -- to read the constitutional mandate that government "shall make no law" abridging freedom of the press to mean that government "may make some laws" abridging that freedom. Certainly a strict...

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