Smith v. People of the State of California, No. 9

CourtUnited States Supreme Court
Writing for the CourtBRENNAN
Citation80 S.Ct. 215,361 U.S. 147,4 L.Ed.2d 205
PartiesEleazar SMITH, Appellant, v. PEOPLE OF THE STATE OF CALIFORNIA
Decision Date14 December 1959
Docket NumberNo. 9

361 U.S. 147
80 S.Ct. 215
4 L.Ed.2d 205
Eleazar SMITH, Appellant,

v.

PEOPLE OF THE STATE OF CALIFORNIA.

No. 9.
Argued Oct. 20, 1959.
Decided Dec. 14, 1959.
Rehearing Denied Jan. 25, 1960.
Motion to Vacate Denied June 13, 1960.

See 361 U.S. 950, 80 S.Ct. 399.

Page 148

Stanley Fleishman, Hollywood, Cal., and Sam Rosenwein, Washington, D.C., for appellant.

Roger Arnebergh, Los Angeles, Cal., for appellee.

Mr. Justice BRENNAN delivered the opinion of the Court.

Appellant, the proprietor of a bookstore, was convicted in a California Municipal Court under a Los Angeles City ordinance which makes it unlawful 'for any person to have in his possession any obscene or indecent writing, (or) book * * * in any place of business where * * * books * * * are sold or kept for sale.'1 The offense was defined by the Municipal Court, and by the Appellate

Page 149

Department of the Superior Court,2 which affirmed the Municipal Court judgment imposing a jail sentence on appellant, as consisting solely of the possession, in the appellant's bookstore, of a certain book found upon judicial investigation to be obscene. The definition included no element of scienter—knowledge by appellant of the contents of the book—and thus the ordinance was construed as imposing a 'strict' or 'absolute' criminal liability.3 The appellant made timely objection below that if the ordinance were so construed it would be in conflict with the Constitution of the United States. This contention, together with other contentions based on the Constitution,4 was rejected, and the case comes here on appeal. 28 U.S.C. s 1257(2), 28 U.S.C.A. § 1257(2); 358 U.S. 926, 79 S.Ct. 317, 3 L.Ed.2d 299.

Almost 30 years ago, Chief Justice Hughes declared for this Court: 'It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth

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Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property * * *.' Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 707, 51 S.Ct. 625, 628, 75 L.Ed. 1357. It is too familiar for citation that such has been the doctrine of this Court, in respect of these freedoms, ever since. And it also requires no elaboration that the free publication and dissemination of books and other forms of the printed word furnish very familiar applications of these constitutionally protected freedoms. It is of course no matter that the dissemination takes place under commercial auspices. See Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660. Certainly a retail bookseller plays a most significant role in the process of the distribution of books.

California here imposed a strict or absolute criminal responsibility on appellant not to have obscene books in his shop. 'the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.' Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137.5 Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter—though even where no freedom-of-expression question is involved, there is precedent in this Court that this power is not without limitations. See Lambert v. People of State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228. But the question here is as to the validity of this ordinance's elimination of the scienter requirement—an elimination which may tend to work a substantial restriction on the freedom of speech and of the press. Our decisions furnish examples of legal devices and doctrines in most applications consistent with the Constitu-

Page 151

tion, which cannot be applied in settings where they have the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it. The States generally may regulate the allocation of the burden of proof in their courts, and it is a common procedural device to impose on a taxpayer the burden of proving his entitlement to exemptions from taxation, but where we conceived that this device was being applied in a manner tending to cause even a self-imposed restriction of free expression, we struck down its application. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460. See Near v. State of Minnesota ex rel. Olson, supra, 283 U.S. at pages 712—713, 51 S.Ct. at pages 629—630. It has been stated here that the usual doctrines as to the separability of constitutional and unconstitutional applications of statutes may not apply where their effect is to leave standing a statute patently capable of many unconstitutional applications, threatening those who validly exercise their rights of free expression with the expense and inconvenience of criminal prosecution. Thornhill v. State of Alabama, 310 U.S. 88, 97—98, 60 S.Ct. 736, 741, 742, 84 L.Ed. 1093. Cf. Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302.6 And this Court has intimated that stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. Winters v. People of State of New York, 333 U.S. 507, 509—510, 517—518, 68 S.Ct. 665, 667, 671, 92 L.Ed. 840. Very much to the point here, where the question is the elimination of the mental element in an offense, is this Court's holding in Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. There an oath as to past freedom from membership in subversive organizations, exacted by a State as a qualification for public employment, was held to violate the Constitution in that it made no distinction between members who had, and those who had not, known of the organization's character. The

Page 152

Court said of the elimination of scienter in this context: 'To thus inhibit individual freedom of movement is to stifle the flow of democratic expression and controversy at one of its chief suorces.' Id., 344 U.S. at page 191, 73 S.Ct. at page 219.

These principles guide us to our decision here. We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.7 The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold. The appellee and the court below analogize this strict-liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example. We find the analogy instructive in our examination of the question before us. The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors—in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used. Cf. United States v. Balint, 258 U.S. 250, 252 253, 254, 42 S.Ct. 301, 302, 303, 66 L.Ed. 604. His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of good the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the

Page 153

press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose,8 he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: 'Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.'9 The King v. Ewart, 25 N.Z.L.R. 709, 729 (C.A.). And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller's

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limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded.

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926 practice notes
  • Mancuso v. Taft, Civ. A. No. 4751.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 17, 1972
    ...for fear that such activity would later be deemed activity which is not protected by the first amendment. cf. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 Almost inevitably this section would act to ch......
  • Buckley v. Valeo, No. 75-1061
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 29, 1975
    ...254, 277, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Smith v. California, 361 U.S. 147, 153, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 28 --- U.S.App.D.C. at ---, 519 ......
  • United States v. Lacey, No. CR-18-00422-001-PHX-SMB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • October 24, 2019
    ...the First Amendment demands such a standard.In their argument on this issue, Defendants largely rely on four cases— Smith v. California , 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), Mishkin v. New York , 383 U.S. 502, 511, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), United States v. X-Citemen......
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...inquiry into circumstances surrounding the location of the sale or exhibition of allegedly obscene material. In Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), the court struck down an obscenity ordinance that failed to make 'knowledge of contents' a prerequisite to a......
  • Request a trial to view additional results
922 cases
  • Mancuso v. Taft, Civ. A. No. 4751.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • April 17, 1972
    ...for fear that such activity would later be deemed activity which is not protected by the first amendment. cf. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 Almost inevitably this section would act to ch......
  • Buckley v. Valeo, No. 75-1061
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 29, 1975
    ...254, 277, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Smith v. California, 361 U.S. 147, 153, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 28 --- U.S.App.D.C. at ---, 519 ......
  • United States v. Lacey, No. CR-18-00422-001-PHX-SMB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • October 24, 2019
    ...the First Amendment demands such a standard.In their argument on this issue, Defendants largely rely on four cases— Smith v. California , 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), Mishkin v. New York , 383 U.S. 502, 511, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), United States v. X-Citemen......
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...inquiry into circumstances surrounding the location of the sale or exhibition of allegedly obscene material. In Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), the court struck down an obscenity ordinance that failed to make 'knowledge of contents' a prerequisite to a......
  • Request a trial to view additional results
4 books & journal articles
  • Pornography and Politics: the Court, the Constitution, and the Commission
    • United States
    • Political Research Quarterly Nbr. 24-4, December 1971
    • December 1, 1971
    ...females and since nudity per se was not obscene, Harlan concluded that thethree magazines did not represent hard-core pornography.18 361 U.S. 147 (1959).19 For an analysis of the logical implications of this argument of restraint by consequences forcases involving the constitutionality of l......
  • Harm and Hegemony: The Decline of Free Speech in the United States.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 45 Nbr. 2, July 2022
    • July 1, 2022
    ..."that the fairness doctrine contravenes the First Amendment and thereby disserves the public interest"). (268.) Smith v. California, 361 U.S. 147, 157 (1959) (Black, J., (269.) 395 U.S. 367, 400-01 (1969). (270.) That includes the countervailing logic and holding of Miami Herald Publishing ......
  • The (mis)categorization of sex in Anglo-American cases of transsexual marriage.
    • United States
    • Michigan Law Review Vol. 108 Nbr. 8, June 2010
    • June 1, 2010
    ...laws in the United Kingdom and the ECHR and their applicability to constitutional analysis. (135.) Larsen looks to Smith v. California, 361 U.S. 147, 166-67 (1959) (Frankfurter, J., concurring), to provide an illustration of the reason-borrowing framework. Joan L. Larsen, Importing Constitu......
  • THE MYTH OF THE CHILLING EFFECT.
    • United States
    • Harvard Journal of Law & Technology Vol. 35 Nbr. 1, September 2021
    • September 22, 2021
    ...is a common occurrence. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 375-76 (White, J., dissenting) (1974); Smith v. California, 361 U.S. 147, 150 (1959). The mens rea requirement and other standards that we impose on false statements can be ways in which the courts try to minimize......

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