Kinney v. Alabama

• Citation: 96 S.Ct. 1189,424 U.S. 669,47 L.Ed.2d 387
• Decision Date: 23 March 1976
• Docket Number: No. 74-532,74-532
• Parties: Chester McKINNEY, Petitioner, v. State of ALABAMA
• Court: United States Supreme Court

424 U.S. 669

96 S.Ct. 1189

47 L.Ed.2d 387

Chester McKINNEY, Petitioner,

v State of ALABAMA.

No. 74-532.

Argued Dec. 15, 1975.

Decided March 23, 1976.

Syllabus

Pursuant to an Alabama statutory procedure, a prosecuting attorney brought an in rem equity action in state court against four magazines named as "respondents," and two other parties, seeking an adjudication of the magazines' obscenity, which resulted in the court's decree that the magazines were "judicially declared to be obscene." Petitioner, a bookstall operator who had not been given notice of or made a party to the equity proceeding, was officially advised of the decree concerning the specific magazines. After officers later bought one of the magazines (New Directions) from petitioner's bookstall, he was charged with violating a criminal statute by selling "mailable matter known . . . to have been judicially found to be obscene." At petitioner's trial, which resulted in his conviction, later upheld on appeal, petitioner was not allowed to have the issue of New Direction's obscenity presented to the jurors, who were instructed that they were not to be concerned with determining obscenity but only with whether or not petitioner had sold material judicially declared to be obscene. Held: The Alabama procedures, insofar as they precluded petitioner for litigating the obscenity vel non of New Directions as a defense to his criminal prosecution, violated the First and Fourteenth Amendments. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649; Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745. The constitutional infirmity of those procedures cannot be avoided on the ground urged by the State that the equity action constituted an "adversary judicial proceeding," since the respondents in that action were not in privity with the petitioner and cannot be presumed to have had interests sufficiently identical to petitioner's as adequately to protect his First Amendment rights, which he had a right to assert in his own behalf in a proceeding to which he was a party. Pp. 673-676.

292 Ala. 484, 296 So.2d 228, reversed and remanded.

Robert Eugene Smith, Atlanta, Ga., for petitioner.

Joseph G. L. Marston, III, Montgomery, Ala., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Petitioner was convicted of selling material which had been judicially declared obscene. At his trial he was not permitted to litigate the obscenity vel non of the publication which was the basis of his prosecution, even though he had not been a party to the earlier civil adjudication in which it was held obscene. We granted certiorari, 422 U.S. 1040, 95 S.Ct. 2654, 45 L.Ed.2d 692 (1975), to consider whether this procedure comported with our decisions delineating the safeguards which must attend attempts by the States to prohibit dissemination of expression asserted to be protected by the First and Fourteenth Amendments against such interference. We reverse.

I

Pursuant to the authority conferred upon him by Ala.Code, Tit. 14, c. 64A (Supp.1973),¹ the District Attorney of the 13th Judicial Circuit of Alabama instituted an action in equity in the Circuit Court of Mobile County seeking an adjudication of the obscenity of certain mailable matter. On February 26, 1970, the Circuit Court entered a decree which announced that the four maga- zines named in the action were "judicially declared to be obscene." Twelve days later two officers of the State Attorney General's office went to the Paris Bookstall in Birmingham, Ala., a place of business operated by petitioner. They personally delivered to petitioner a letter from the Attorney General informing him of the decree of the Circuit Court of Mobile County and specifying the magazines which had been declared obscene.

On March 31, these officers returned to the Paris Bookstall and there purchased, from petitioner, a copy of the magazine New Directions, which had been specified in the Circuit Court decree and listed in the letter delivered to petitioner. Petitioner was thereafter charged with violating Ala.Code, Tit. 14, § 374(4) (Supp.1973),² by selling "mailable matter known . . . to have been judicially found to be obscene."

At petitioner's trial for this offense he asserted as a defense his claim that the magazine was not obscene and sought to have this issue submitted to the jury. Petitioner claimed that he could not be found guilty unless the trier of fact in his case made its own determination that the magazine was obscene according to contemporary community standards. The trial court declined to submit this issue to the jury and instructed the jurors that they were not to be concerned with any determination of obscenity, and that they need only decide whether petitioner had sold material judicially declared to be obscene. The jury returned a verdict of guilty.

Petitioner unsuccessfully appealed this judgment to the Alabama Court of Criminal Appeals, whereupon the Alabama Supreme Court granted his petition for certiorari. That court, by a divided vote, also affirmed the judgment of conviction. It ruled that the trial court had properly restricted the issues presented to the jury because the decree of the Mobile County Circuit Court was one in rem, conclusively establishing the obscenity of the magazines against all the world. The determination of obscenity in that action was therefore held binding upon petitioner in his subsequent criminal prosecution even though he had not been a party to the earlier equity proceeding. 292 Ala. 484, 296 So.2d 228 (1974).

II

Petitioner contends that the procedures utilized by the State of Alabama, insofar as they precluded him from litigating the obscenity vel non of New Directions as a defense to his criminal prosecution, violated the First and Fourteenth Amendments. We agree. While there can be no doubt under our cases that obscene materials are beyond the protection of the First Amendment, Roth- v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); those decisions have also consistently recognized that the procedures by which a State ascertains whether certain materials are obscene must be ones which ensure "the necessary sensitivity to freedom of expression," Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649, 654 (1965); Heller v. New York, 413 U.S. 483, 489, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). The Alabama statutory scheme at issue here, as applied to petitioner, fails to meet this requirement.

It is undisputed that petitioner received no notice of the Mobile Circuit Court equity proceeding, and that he therefore had no opportunity to be heard therein regarding the adjudication of the obscenity vel non of New Directions. ³ Yet the State nevertheless seeks to finally bind him, as well as all other potential purveyors of the magazines described in the Mobile proceeding, to the result reached in that proceeding. There is nothing in the opinion of the Supreme Court of Alabama indicating that petitioner had available to him any judicial avenue for initiating a challenge to the Mobile declaration as to the obscenity of New Directions. Decrees resulting from in rem proceedings initiated under Chapter 64A of the Alabama Code could in some cases therefore have the same effect as would the ex parte determination of a state censorship authority which unilaterally found material offensive and proscribed its distribution. Such a procedure, without any provision for subsequent re-examination of the determination of the censor, would clearly be constitutionally infirm.

The State asserts, however, that the Mobile proceeding was an "adversary judicial proceeding" as contemplated by our decisions, Freedman, supra, 380 U.S., at 58, 85 S.Ct. at 738, 13 L.Ed.2d at 654; Heller, supra, 413 U.S., at 489, 93 S.Ct. at 2793, 37 L.Ed.2d at 752, and that relevant First Amendment values have thereby been adequately safeguarded. We cannot agree. The Chapter 64A proceeding was indeed "judicial" in the sense that it was presided over by a judge rather than an administrative official. But the State's claim regarding the adversary nature of the In rem proceeding is somewhat wide of the mark.

It is not altogether clear from this record precisely what transpired at the hearing in which New Directions was declared obscene. It does appear that there were, in addition to the several magazines named as "respondents" in the proceeding,⁴ an individual and a corporate respondent: "Chris Zarocastas, individually and d/b/a Nelson's News Stand; (and) Nelson's News Stand, Inc., a Corporation, d/b/a Nelson's News Stand." The State contends that the existence⁵ of these named parties provides sufficient adverseness in the proceedings to permit its use of the adjudication thus obtained to bind nonparties such as petitioner.

Our difficulty with this argument is its assumption that the named parties' interests are sufficiently identical to those of petitioner that they will adequately protect his First Amendment rights. There is no indication that they are in privity with him, as that term is used in determining the binding effects of judgments. See Litchfield v. Goodnow's Adm'r, 123 U.S. 549, 551, 8 S.Ct. 210, 211, 31 L.Ed. 199, 201 (1887). And we recognized in Freedman that individual exhibi- tors as well as distributors may be unwilling, for various reasons, to oppose a state claim of obscenity regarding certain material. 380 U.S., at 59, 85 S.Ct. at 739, 13 L.Ed.2d at 655. Such parties may, of course, make their own determination whether and how vigorously to assert their own First Amendment rights. The Constitution obviously cannot force anyone to exercise the freedom of expression which it guarantees. Those who are accorded an opportunity to be heard in a judicial proceeding established for determining the extent of their rights are properly bound by its outcome, either...