Kingsley Books v. Brown

• Citation: 77 S.Ct. 1325,1 L.Ed.2d 1469,354 U.S. 436
• Decision Date: 24 June 1957
• Docket Number: No. 107,107
• Parties: KINGSLEY BOOKS, Inc., Louis Finkelstein, Doing Business as Times Book Shop, et al., Appellants, v. Peter Campbell BROWN, Corporation Counsel of the City of New York
• Court: U.S. Supreme Court

354 U.S. 436

77 S.Ct. 1325

1 L.Ed.2d 1469

KINGSLEY BOOKS, Inc., Louis Finkelstein, Doing Business as Times Book Shop, et al., Appellants,

v Peter Campbell BROWN, Corporation Counsel of the City of New York.

No. 107.

Argued April 22, 1957.

Decided June 24, 1957.

Mr. Emanuel Redfield, New York City, for appellants.

Mr. Seymour B. Quel, New York City, for appellee.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

This is a proceeding under § 22—a of the New York Code of Criminal Procedure (L.1941, c. 925), as amended in 1954 (L.1954, c. 702). This section supplements the existing conventional criminal provision dealing with pornography by authorizing the chief executive, or legal officer, of a municipality to invoke a 'limited injunctive remedy,' under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial to be obscene, and to obtain an order for the seizure, in default of surrender, of the condemned publications.¹ A complaint dated September 10, 1954, charged appellants with displaying for sale paper-covered obscene booklets, fourteen of which were annexed, under the general title of 'Nights of Horror.' The complaint prayed that appellants be enjoined from further distribution of the booklets,that they be required to surrender to the sheriff for destruction all copies in their possession, and, upon failure to do so, that the sheriff be commanded to seize and destroy those copies. The same day the appellants were ordered to show cause within four days why they should not be enjoined pendente lite from distributing the booklets. Appellants consented to the granting of an injunction pendente lite and did not bring the matter to issue promptly, as was their right under subdivision 2 of the challenged section, which provides that the persons sought to be enjoined 'shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial.' After the case came to trial, the judge, sitting in equity, found that the booklets annexed to the complaint and introduced in evidence were clearly obscene—were 'dirt for dirt's sake'; he enjoined their further distribution and ordered their destruction. He refused to enjoin 'the sale and distribution of later issues' on the ground that 'to rule against at volume not offered in evidence would * * * impose an unreasonable prior restraint upon freedom of the press.' 208 Misc. 150, 167, 142 N.Y.S.2d 735, 750.

Not challenging the construction of the statute or the finding of obscenity, appellants took a direct appeal to the New York Court of Appeals, a proceeding in which the constitutionality of the statute was the sole question open to them. That court (one judge not sitting) found no constitutional infirmity: three judges supported the unanimous conclusion by detailed discussion, the other three deemed a brief disposition justified by 'ample authority.' 1 N.Y.2d 177, 189, 151 N.Y.S.2d 639, 134 N.E.2d 461, 468. A claim under the Due Process Clause of the Fourteenth Amendment made throughout the state litigation brought the case here on appeal. 352 U.S. 962, 77 S.Ct. 350, 1 L.Ed.2d 319.

Neither in the New York Court of Appeals, nor here, did appellants assail the legislation insofar as it outlaws obscenity. The claim they make lies within a very narrow compass. Their attack is upon the power of New York to employ the remedial scheme of § 22—a. Authorization of an injunction pendente lite, as part of this scheme, during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which '(a) dequate notice, judicial hearing, (and) fair determination' are assured, 208 Misc. 150, 164, 142 N.Y.S.2d 735, 747, is a safeguard against frustration of the public interest in effectuating judicial condemnation of obscene matter. It is a brake on the temptation to exploit a filthy business offered by the limited hazards of piecemeal prosecutions, sale by sale, of a publication already condemned as obscene. New York enacted this procedure on the basis of study by a joint legislative committee. Resort to this injunctive remedy, it is claimed, is beyond the constitutional power of New York in that it amounts to a prior censorship of literary product and as such is violative of that 'freedom of thought, and speech' which has been 'withdrawn by the Fourteenth Amendment from encroachment by the states.' Palko v. State of Connecticut, 302 U.S. 319, 326—327, 58 S.Ct. 149, 152—153, 82 L.Ed. 288. Reliance is particularly placed upon Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357.

In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that 'the primary requirements of decency may be enforced against obscene publications.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. And so our starting point is that New York can constitutionally convict appellants of keeping for sale the booklets incontestably found to be obscene. Roth v. United States (Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304. The immediate problem then is whether New York can adopt as an auxiliary means of dealing with such obscene merchandising the procedure of § 22—a.

We need not linger over the suggestion that something can be drawn out of the Due Process Clause of the Fourteenth Amendment that restricts New York to the criminal process in seeking to protect its people against the dissemination of pornography. It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature's range of choice. See Tigner v. State of Texas, 310 U.S. 141, 148, 60 S.Ct. 879, 882, 84 L.Ed. 1124. If New York chooses to subject persons who disseminate obscene 'literature' to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies. Just as Near v. State of Minnesota, supra, one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that 'Liberty of speech, and of the press, is also not an absolute right,' 283 U.S. at page 708, 51 S.Ct. at page 628, it likewise made clear that 'the protection even as to previous restraint is not absolutely unlimited.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. To be sure, the limitation is the exception; it is to be closely confined so as to preclude what may fairly be deemed licensing or censorship.

The judicial angle of vision in testing the validity of a statute like § 22—a is 'the operation and effect of the statute in substance.' Id., 283 U.S. at page 713, 51 S.Ct. at page 630. The phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: 'What is needed,' writes Professor Paul A. Freund, 'is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.' The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.

Wherein does § 22—a differ in its effective operation from the type of statute upheld in Alberts? Section 311 of California's Penal Code provides that 'Every person who wilfully and lewdly * * * keeps for sale * * * any obscene * * * book * * * is guilty of a misdemeanor * * *.' Section 1141 of New York's Penal Law, McKinney's Consol. Laws, c. 40 is similar. One would be bold to assert that the in terrorem effect of such statutes less restrains booksellers in the period before the law strikes than does § 22—a. Instead of requiring the bookseller to dread that the offer for sale of a book may, without prior warning, subject him to a criminal prosecution with the hazard of imprisonment, the civil procedure assures him that such consequences cannot follow unless he ignores a court order specifically directed to him for a prompt and carefully circumscribed determination of the issue of obscenity. Until then, he may keep the book for sale and sell it on his own judgment rather than steer 'nervously among the treacherous shoals.' Warburg, Onward And Upward With The Arts, The New Yorker, April 20, 1957, pp. 98, 101, in connection with R. v. Martin Secker Warburg, Ltd., (1954) 2 All Eng. 683 (C.C.C.).

Criminal enforcement and the proceeding under § 22—a interfere with a book's solicitation of the public precisely at the same stage. In each situation the law moves after publication; the book need not in either case have yet passed into the hands of the public. The Alberts record does not show that the matter there found to be obscene had reached the public at the time that the criminal charge of keeping such matter for sale was lodged, while here as a matter of fact copies of the booklets whose distribution was enjoined had been on sale for several weeks when process was served. In each case the bookseller is put on notice by the complaint that sale of the publication charged with obscenity in the period before trial may subject him to penal consequences. In the one case he may suffer fine and imprisonment for violation of the criminal statute, in the other, for disobedience of the temporary injunction. The bookseller may of course stand his ground and confidently believe that in any judicial...