408 U.S. 229 (1972), 71-5625, Kois v. Wisconsin

Docket Nº:No. 71-5625
Citation:408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312
Party Name:Kois v. Wisconsin
Case Date:June 26, 1972
Court:United States Supreme Court

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408 U.S. 229 (1972)

92 S.Ct. 2245, 33 L.Ed.2d 312




No. 71-5625

United States Supreme Court

June 26, 1972




Petitioner was convicted under an obscenity statute for publishing in his underground newspaper pictures of nudes and a sex poem. The State Supreme Court upheld the conviction as not violative of the Fourteenth Amendment.

Held: In the context in which they appeared, the photographs were rationally related to a news article, in conjunction with which they appeared, and were entitled to Fourteenth Amendment protection. In view of the poem's content and placement with other poems inside the newspaper, its dominant theme cannot be said to appeal to prurient interest. Roth v. United States, 354 U.S. 476.

Certiorari granted; 51 Wis.2d 668, 188 N.W.2d 467, reversed.

Per curiam opinion.


Petitioner was convicted in the state trial court of violating a Wisconsin statute prohibiting the dissemination of "lewd, obscene or indecent written matter, picture, sound recording, or film." Wis.Stat. § 944.21(1)(a) (1969). He was sentenced to consecutive one-year terms in the Green Bay Reformatory and fined $1,000 on each of two counts. The Supreme Court of Wisconsin upheld his conviction against the contention that he had been deprived of freedom of the press in violation of the Fourteenth Amendment. 51 Wis.2d 668, 188 N.W.2d 467. Petitioner was the publisher of an underground newspaper called Kaleidoscope. In an issue published in May, 1968, that newspaper carried a story entitled "The One Hundred Thousand Dollar Photos" on an interior page. The story itself was an account of the arrest of one of Kaleidoscope's photographers on a charge of possession

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of obscene material. Two relatively small pictures, showing a nude man and nude woman embracing in a sitting position, accompanied the article and were described in the article as "similar" to those seized from the photographer. The article said that the photographer, while waiting in the district attorney's office, had heard that bail might be set at $100,000. The article went on to say that bail had, in fact, been set originally at $100, then raised to $250, and that, later, the photographer had been released on his own recognizance. The article purported to detail police tactics that were described as an effort to "harass" Kaleidoscope and its staff. Roth v. United States, 354 U.S. 476 (1957), held that obscenity was not protected under the First or Fourteenth Amendments. Material may be considered obscene when,

to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.

354 U.S. at 489. In enunciating this test, the Court in Roth quoted from Thornhill v. Alabama, 310 U.S. 88, 101-102:

The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . .

(Emphasis supplied.)

We do not think it can fairly be said, either...

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