Bantam Books, Inc. v. Sullivan/Concurrence Clark

Mr. Justice CLARK, concurring in the result.

As I read the opinion of the Court, it does much fine talking about freedom of expression and much condemning of the Commission's overzealous efforts to implement the State's obscenity laws for the protection of Rhode Island's youth but, as if shearing a hog, comes up with little wool. In short, it creates the proverbial tempest in a teapot over a number of notices sent out by the Commission asking the cooperation of magazine distributors in preventing the sale of obscene literature to juveniles. The storm was brewed from certain inept phrases in the notices wherein the Commission assumed the prerogative of issuing an 'order' to the police that certain publications which it deemed obscene are 'not to be sold, distributed or displayed to youths under eighteen years of age' and stated that '(t)he Attorney General will act for us in case of non-compliance.' But after all this expostulation the Court, being unable to strike down Rhode Island's statute, see Alberts v. State of California, 354 U.S. 476. 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), drops a demolition bomb on 'the Commission's practice' without clearly indicating what might be salvaged from the wreckage. The Court in condemning the Commission's practice owes Rhode Island the duty of articulating the standards which must be met, lest the Rhode Island Supreme Court be left at sea as to the appropriate disposition on remand.

In my view the Court should simply direct the Commission to abandon its delusions of grandeur and leave the issuance of 'orders' to enforcement officials and 'the State's criminal regulation of obscenity' to the prosecutors, who can substitute prosecution for 'thinly veiled threats' in appropriate cases. See Alberts v. State of California, supra. As I read the opinion this is the extent of the limitations contemplated by the Court, leaving the Commission free, as my Brother HARLAN indicates, to publicize its findings as to the obscene character of any publication; to solicit the support of the public in preventing obscene publications from reaching juveniles; to furnish its findings to publishers, distributors and retailers of such publications and to law enforcement officials; and, finally, to seek the aid of such officials in prosecuting offenders of the State's obscenity laws. This Court has long recognized that 'the primary requirements of decency may be enforced against obscene publications.' Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931); see Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). Certainly in the face of rising juvenile crime and lowering youth morality the State is empowered consistent with the Constitution to use the above procedures in attempting to dispel the defilement of its youth by obscene publications. With this understanding of the Court's holding I join in its judgment, believing that the limitations as outlined would have little bearing on the efficacy of Rhode Island's law.

Mr. Justice HARLAN, dissenting.