Kois v. Wisconsin 8212 5625

Citation33 L.Ed.2d 312,408 U.S. 229,92 S.Ct. 2245
Decision Date26 June 1972
Docket NumberNo. 71,71
PartiesJohn R. KOIS v. State of WISCONSIN. —5625
CourtUnited 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:

'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 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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182 cases
  • People v. Kuhns
    • United States
    • California Court of Appeals Court of Appeals
    • September 8, 1976
    ...treatise. Here again there must be establishment of the other factors set forth in the statute. (See Kois v. Wisconsin (1972) 408 U.S. 229, 232, 92 S.Ct. 2245, 33 L.Ed.2d 312; and Redrup v. New York (1967) 386 U.S. 767, 770--771, 87 S.Ct. 1414, 18 L.Ed.2d 515, reh. den. 388 U.S. 924, 87 S.C......
  • United Artists Corporation v. Harris, Civ. A. No. CIV-73-498-D.
    • United States
    • U.S. District Court — Western District of Oklahoma
    • August 23, 1973
    ...community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. 229, at 230 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972), quoting Roth v. United States, supra, 354 U.S. 476, at 489 77 S. Ct. 1304, 1 L.Ed.2d 1498 (1957), (b) wheth......
  • Com. v. Horton
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 23, 1974
    ...85 S.Ct. 952, 13 L.Ed.2d 959 (1965); Redrup v. New York, 386 U.S. 767, 87 S.Ct 1414, 18 L.Ed.2d 515 (1967); Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972).a. Mass.Adv.Sh. (1972) 641.3 I recognize that the plurality in the Kirby case implied that it was merely clarifyi......
  • State v. Henry
    • United States
    • Oregon Court of Appeals
    • April 9, 1986
    ...community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, [408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972) ], quoting Roth v. United States, [supra, 354 U.S. at 489, 77 S.Ct. at 1311]; (b) whether the work depicts or describes, ......
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12 books & journal articles
  • Deportation for a Sin: Why Moral Turpitude Is Void for Vagueness
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 90, 2021
    • Invalid date
    ...Rules and Social Orders, 82 Calif. L. Rev. 491, 500 (1994). 313. Miller v. California, 413 U.S. 15, 24 (1973) (quoting Kois v. Wisconsin, 408 U.S. 229, 230 (1972)). The Supreme Court in Miller set forth a three-part test for obscenity prosecutions: whether the average person, applying conte......
  • Constitutionality of sexually oriented speech: obscenity, indecency, and child pornography
    • United States
    • Georgetown Journal of Gender and the Law No. XXIII-2, January 2022
    • January 1, 2022
    ..., 413 U.S. at 34. 55. Id. at 26. 56. Ent. Software Ass’n v. Blagojevich, 469 F.3d 641, 650 (7th Cir. 2006). 57. Id. 58. Kois v. Wisconsin, 408 U.S. 229, 231 (1972) (“A quotation from Voltaire in the f‌lyleaf of a book will not constitutionally redeem an otherwise obscene publication.”). 59.......
  • Defending Against a Charge of Obscenity in the Internet Age: How Google Searches Can Illuminate Miller's "contemporary Community Standards"
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 26-3, March 2010
    • Invalid date
    ...26. Miller, 413 U.S. at 16 (quoting Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968)). 27. Id. at 37 (citing Kois v. Wisconsin, 408 U.S. 229, 230 (1972)) ("[0]bscenity is to be determined by applying 'contemporary community standards.'"). 28. Id. at 24. 29. Paris Adult Theatre I v. S......
  • A Case for Judicial Balancing: Justice Stevens and the First Amendment
    • United States
    • Seattle University School of Law Seattle University Law Review No. 2-01, September 1978
    • Invalid date
    ...a message that involved use of sexually explicit material. See, e.g., Papish v. Board of Curators, 410 U.S. 667 (1973); Kois v. Wisconsin, 408 U.S. 229 (1972); Cohen v. California, 403 U.S. 15 (1971). In Cohen, the Court upheld the individual's right to convey a message even though the form......
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