Dyson v. Stein

Decision Date23 February 1971
Docket NumberNo. 41,41
Citation91 S.Ct. 769,401 U.S. 200,27 L.Ed.2d 781
PartiesFrank DYSON, Chief of Police, City of Dallas, et al., Appellants, v. Brent STEIN. Re
CourtU.S. Supreme Court

Lonny F. Zwiener, Austin, Tex., for appellants.

David R. Richards, Austin, Tex., for appellee.


The appellee, Stein, published a biweekly newspaper, the Dallas Notes. Stein was charged with two violations of Art. 527, § 1, of the Vernon's Ann. Texas Penal Code, which then prohibited, among other things, the possession of obscene materials.* While these two cases were pending 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 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 (D.C., 1969). Texas officials appealed, and we noted probable jurisdiction. 396 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419 (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, 63 S.Ct. 877, 87 L.Ed. 1324 (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, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688. See also Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696.

It is so ordered.

Vacated and remanded.

Mr. Justice WHITE concurs in the result.

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 of the alleged obscenity of the issues was unconstitutional. Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (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 ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

But there 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, 401 U.S. 82, p. 93, 91 S.Ct. 674, p. 681, 27 L.Ed.2d 701.

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, towit: pictures, photographs, drawings and obscene literature' concealed at a given 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 Tsetung, credit cards, costume jewelry, cans of spices, a brown sweater, and a statute 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

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, 77 S.Ct. 828, 1 L.Ed.2d 876. 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.

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 ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, 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, 51 S.Ct., at 632.

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


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

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 constructionist cannot so read it.

'The Court says it has been trying to balance the interests of society in protecting itself from the supposed evils of obscene material with the real interest in freedom of expression. There is ample evidence that the clear and definite language of the first amendment was intended to preclude the very problem of balancing assumed by the Court. The first amendment holds that the interest of society in freedom of expression8 is more important than the harm that might flow from obscene material. The very interest in protection from injury from obscene material would be better served by allowing each individual to make a free appraisal of pornographic material. A hallmark of an immature and insecure society is the censorship of ideas. Censorship, which...

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