Kingsley Books v. Brown/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting, announced by Mr. Justice BRENNAN.

There are two reasons why I think this restraining order should be dissolved.

First, the provision for an injunction pendente lite gives the State the paralyzing power of a censor. A decree can issue ex parte-without a hearing and without any ruling or finding on the issue of obscenity. This provision is defended on the ground that it is only a little encroachment, that a hearing must be promptly given and a finding of obscenity promptly made. But every publisher knows what awful effect a decree issued in secret can have. We tread here on First Amendment grounds. And nothing is more devastating to the rights that it guarantees than the power to restrain publication before even a hearing is held. This is prior restraint and censorship at its worst.

Second, the procedure for restraining by equity decree the distribution of all the condemned literature does violence to the First Amendment. The judge or jury which finds the publisher guilty in New York City acts on evidence that may be quite different from evidence before the judge or jury that finds the publisher not guilty in Rochester. In New York City the publisher may have been selling his tracts to juveniles, while in Rochester he may have sold to professional people. The nature of the group among whom the tracts are distributed may have an important bearing on the issue of guilt in any obscenity prosecution. Yet the present statute makes one criminal conviction conclusive and authorizes a statewide decree that subjects the distributor to the contempt power. I think every publication is a separate offense which entitles the accused to a separate trial. Juries or judges may differ in their opinions, community by community, case by case. The publisher is entitled to that leeway under our constitutional system. One is entitled to defend every utterance on its merits and not to suffer today for what he uttered yeaterday. Free speech is not to be regulated like diseased cattle and impure butter. The audience (in this case the judge or the jury) that hissed yesterday may applaud today, even for the same performance.

The regime approved by the Court goes far toward making the censor supreme. It also substitutes punishment by contempt for punishment by jury trial. In both respects it transgresses constitutional guarantees.

I would reverse this judgment and direct the restraining order to be dissolved.