Kois v. Wisconsin 8212 5625
Citation | 33 L.Ed.2d 312,408 U.S. 229,92 S.Ct. 2245 |
Decision Date | 26 June 1972 |
Docket Number | No. 71,71 |
Parties | John R. KOIS v. State of WISCONSIN. —5625 |
Court | United States Supreme Court |
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 pos- session 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, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (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 prurient interest.' 354 U.S., at 489, 77 S.Ct. at 1311. In enunciating this test, the Court in Roth quoted from Thornhill v. Alabama, 310 U.S. 88, 101—102, 60 S.Ct. 736, 743—744, 84 L.Ed. 1093:
(Emphasis supplied.)
We do not think it can fairly be said, either considering the article as it appears or the record before the state court, that the article was a mere vehicle for the publication of the pictures. A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication, but if these pictures were indeed similar to the one seized—and we do not understand the State to contend differently—they are relevant to the theme of the article. We find it unnecessary to consider whether the State could constitutionally prohibit the dissemination of the pictures by themselves, because in the context in which they appeared in the newspaper they were rationally related to an article that itself was clearly entitled to the protection of the Fourteenth Amendment. Thornhill v. Alabama, supra. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The conviction on count one must therefore be reversed.
In its August 1968 issue, Kaleidoscope published a two-page spread consisting of 11 poems, one of which was entitled 'Sex Poem.' The second count of petitioner's conviction was for the dissemination of the newspaper containing this poem. The poem is an...
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