Quantity of Copies of Books v. Kansas/Concurrence Hugo Black

Opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins.

The Kansas State Court judgment here under review orders that 1,715 copies of 31 novels be burned or otherwise destroyed. This book-burning judgment was based upon findings by the trial judge that "the core [of the books] would seem to be that of sex, with the plot, if any, being subservient thereto," that the "dominant purpose [of the books] was calculated to effectively incite sexual desires," and that "they would have this effect on the average person residing in this community. . . ." Relying on these findings and this Court's holding in Roth v. United States, 354 U.S. 476, the trial court held that the books "are not entitled to the . . . protection" of the First Amendment to the Constitution. The State Supreme Court affirmed on the same grounds.

This Court now reverses. I concur in the judgment of reversal, but do not find it necessary to consider the procedural questions. Compare Marcus v. Search Warrant, 367 U.S. 717, (concurring opinion). The Kansas courts may have been right to rely upon the Court's Roth holding in ordering these books burned or

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otherwise destroyed. For reasons stated in the Roth case in a dissent by MR. JUSTICE DOUGLAS, 354 U.S. at, in which I joined, I think the Roth case was wrongly decided. It is my belief, as stated in that dissent by MR. JUSTICE DOUGLAS, in my concurring opinions in Smith v. California, 361 U.S. 147,, and Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, , and in my dissent in Beauharnais v. Illinois, 343 U.S. 250, , which MR. JUSTICE DOUGLAS joined, that the Kansas statute ordering the burning of these books is in plain violation of the unequivocal prohibition of the First Amendment, made applicable to the States by the Fourteenth, against "abridging the freedom of speech, or of the press."

Because of my belief that both Roth and Beauharnais draw blueprints showing how to avoid the First Amendment's guarantee of freedoms of speech and press, I would overrule both those cases, as well as reverse the judgment here.