Quantity of Copies of Books v. Kansas/Dissent John M. Harlan II

MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, dissenting.

Insofar as the judgment of the Court rests on the view of three of my Brethren that a State cannot constitutionally an on grounds of obscenity the books involved in this case, I dissent on the basis of the views set out in my opinion in Jacobellis v. Ohio, ante, p. . It is quite plain that these so-called "novels" have "been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner," and that the State's criteria for judging their obscenity are rational.

I also disagree with the position taken in the opinion of my Brother BRENNAN that this Kansas procedure unconstitutionally abridged freedom of expression in that the search warrant (1) authorized seizure of all copies of the books in question and (2) was issued without an adversary hearing on the issue of their obsceneness. In my opinion, that position is inconsistent with the thrust of prior cases, and serves unnecessarily to handicap the States in their efforts to curb the dissemination of obscene material.

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I
The two cases on which MR. JUSTICE BRENNAN's opinion almost entirely relies are Kingsley Books, Inc. v. Brown, 354 U.S. 436, and Marcus v. Search Warrant, 367 U.S. 717.

In Kingsley Books, appellants challenged the constitutionality of a New York statute that authorized the State Supreme Court to enjoin the sale and distribution of obscene prints and articles. A complaint prayed for an injunction against the further distribution of certain allegedly obscene paperback books and for the destruction by the sheriff of all copies in the appellants' possession. Appellants were ordered to show cause within four days why an injunction pendente lite should not be issued that would preclude distribution of the books. Although the code of criminal procedure provided that anyone sought to be enjoined was entitled to a trial one day after the joinder of issue, appellants consented to the temporary

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injunction and delayed bringing the matter to issue. When a hearing on the question of obscenity was finally had, the books were found to be obscene; their distribution was enjoined, and their destruction ordered. This Court upheld the New York procedure, stating:

""Authorization of an injunction pendente lite, as part of this scheme, during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which '[a]dequate notice, judicial hearing, [and] fair determination'

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are assured,. . . is a safeguard against frustration of the public interest in effectuating judicial condemnation of obscene matter.""

P.. The State was not, we held, limited to the criminal process in attempting to protect its citizens against the circulation of pornography; it "is not for this Court thus to limit the State in resorting to various weapons in the armory of the law." P.. The Court pointed out that "Criminal enforcement and the proceeding under § 22-a interfere with a book's solicitation of the public precisely at the same stage," p., that the threat of criminal penalties may be as effective a deterrent against expression as an injunctive civil remedy, and that an injunction against someone to forbear selling specific books may be a less stringent restraint on his freedom of expression than sending him to jail. Near v. Minnesota,, was distinguished on the ground that the New York statute dealt with obscenity, rather than matters deemed to be derogatory to a public officer, and imposed no direct restraint on materials not yet published.

In Marcus v. Search Warrant, warrants to seize books were issued solely on the judgment of a peace officer regarding the obscenity of certain books, without any independent examination by a judicial official; the warrants authorized seizure of books by officers other than the one who had signed the complaints, and, in effect, gave carte blanche to these officers to seize anything they considered obscene at the named wholesale establishment and newsstands, whether or not the material had been so evaluated by anyone prior to the issuance of the warrants. After recounting the historical distrust for systems sanctioning sweeping seizures of materials believed to be offensive to the state, the Court held that

""Missouri's procedures, as applied in this case, lacked the safeguards which due process demands to assure nonobscene material the constitutional

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protection to which it is entitled.""

P.. Relevant to this conclusion were the absence of any "scrutiny by the judge of any materials considered by the complainant to be obscene," p., and the power of the enforcing officers under the warrants to make ad hoc decisions regarding obscenity, although

""[t]hey were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.""

P.. Kingsley Books was distinguished on the grounds that, in that case: (1) the court "could exercise an independent check on the judgment of the prosecuting authority at a point before any restraint took place"; (2) the restraints "ran only against the named publication"; (3) no extensive restraints were imposed before an adversary proceeding; and (4) the New York code required decision within two days of the trial on the obscenity question, pp. -737.

In my view, the present case is governed by the principles serving to sustain the New York procedure involved in Kingsley Books, rather than those which condemned that followed by Missouri in Marcus.

(1) Although the Kansas statute does not, in terms, require an independent judicial examination of allegedly obscene materials before authorization of seizure, the Kansas officials in this case conformed their procedures to what they believed to be the requirements of Marcus. The information included the titles of 59 "Original Nightstand Books." Seven of these were delivered to the district judge at 5 p.m., three hours before the 45-minute ex parte hearing at which the judge concluded that there were reasonable grounds to believe that all 59 books were obscene. Because of the nature of the seven books examined by the judge, he could fairly reach a judgment that

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the remaining books were of the same character. (See note 1, supra.)

(2) In this case, unlike Marcus, the officers had no discretion as to which books they might seize, but could take only books specifically designated by their titles.

(3) It is true that the Kansas procedure, like that in Marcus, imposed a restraint before an adversary proceeding, but it would be highly artificial to consider this the controlling difference between Kingsley Books and Marcus. While the New York statute allows an almost immediate hearing on the obscenity issue, it would be unrealistic to suppose that most persons who allegedly have or sell obscene materials will be able to prepare for such a hearing in four days, the time between the issuance of the complaint and the pendente lite injunction in Kingsley Books. In practical terms, therefore, the New York scheme, as approved by this Court, does contemplate restraint before a hearing on the merits. Although the Court was uncertain in Kingsley Books whether New York would punish for contempt one who disseminated materials in disobedience of the temporary injunction if such materials were ultimately held to be not covered by the statute or constitutionally protected, it could hardly

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have failed to recognize the patently chilling effect such an injunction would have on the dissemination of named materials. In pragmatic terms, then, the nature of the restraint imposed by the Kansas statute is not in a constitutionally significant sense different from that sustained in Kingsley Books.

(4) The Kansas statute does not contain the safeguards for speedy disposition that were present in Kingsley Books, but the State Attorney General has unequivocally acknowledged the necessity of administering that statute in light of that constitutional requirements of Marcus. In this instance, the warrant which was issued July 27 for seizure of the books contained a notice that a hearing on the merits was set for August 7. Eleven days is certainly not an undue delay; indeed, it is difficult to imagine a defense being prepared in less time. The district judge's decision was issued four days after the termination of the trial on the obscenity question, which had been postponed because of motions made by appellants. On the basis of this case, we have every reason to believe that the prosecuting authorities and judges of Kansas are aware that prehearing restraints may not be magnified by delay. and we have no reason to think the Kansas statute

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will be applied in a manner any less fair in this regard to those restricted than the provision of the New York code sustained in Kingsley Books.

II
Since there may be lurking in my Brother BRENNAN's opinion the unarticulated premise that this Kansas procedure is impermissible because it operates as a "prior restraint," I deem it appropriate to make a few observations on that score. The doctrine of prior restraint is not a "self-wielding sword" or a "talismanic test" (Kingsley Books, supra, at ) but one whose application in any instance requires "particularistic analysis." Id. at ; Freund, The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539; ''cf. Times Film Corp. v. Chicago,'' 365 U.S. 43. That the Kansas procedure, as applied in this case, falls within permissible limits of the Fourteenth Amendment will appear from contrasting some of the reasons for the historic distrust in common law jurisprudence of any kind of censorship of writings, see Near v. Minnesota, 283 U.S. 697, -718,, with what was done here.

In the typical censorship situation, material is brought as a matter of course before some administrative authority, who then decides on its propriety. This means that the State establishes an administrative structure whereby all writings are reviewed before publication. By contrast, if the State uses its penal system to punish expression outside permissible bounds, the State does not comprehensively review any form of expression; it merely considers "after the event" utterances it has reason to suppose may be prohibited. The breadth of its review of expression is therefore much narrower, and the danger that

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protected expression will be repressed is less. The operation of the Kansas statute resembles the operation of a penal, rather than a licensing, law in this regard, since books are not, as a matter of course, subjected to prepublication state sanctioning, but are reviewed only when the State has reason to believe they are obscene.

There are built-in elements in any system of licensing or censorship the tendency of which is to encourage restrictions of expression. The State is not compelled to make an initial decision to pursue a course of action, since the original burden is on the citizen to bring a piece of writing before it. The censor is a part of the executive structure, and there is at least some danger that he will develop an institutionalized bias in favor of censorship because of his particular responsibility. In a criminal proceeding, however, the burden is on the State to act, the decisionmaker belongs to an independent branch of the government, and neither a judge nor a juror has any personal interest in active censorship. The Kansas practice is thus analogous to a system of penal sanctions, rather than censorship, in all three of these respects.

One danger of a censorship system is that the public may never be aware of what an administrative agent refuses to permit to be published or distributed. A penal sanction assures both that some overt thing has been done by the accused and that the penalty is imposed for an activity that is not concealed from the public. In this case, the information charged that obscene books were possessed or kept for sale and distribution; presumably, such possession, if knowing, could, as a constitutional matter, support a criminal prosecution. The procedure adopted by the State envisions that a full judicial hearing will be held on the obscenity issue. Finally, the federal system makes it highly unlikely that the citizenry of one State will be unaware of the kind of material that is being restricted by its own government when there is great

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divergence among the policies of the various States and a high degree of communication across state lines. ''Cf. my opinion in Roth v. United States,, , and my dissenting opinion in Jacobellis v. Ohio, ante,'' p..

Any system of censorship, injunction, or seizure may, of course, to some extent serve to trammel, by delaying distribution or otherwise, freedom of expression; yet so may the threat of criminal prosecution, as this Court noted in Kingsley Books. The bringing of a criminal charge may result in a cessation of distribution during litigation, since even an accused relatively confident of the unlikelihood or impermissibility of conviction may well refuse to take the added risk of further criminal penalties that might obtain if he guesses wrong and continues to disseminate the questionable materials. More fundamentally, the delay argument seems artificial in the context of this case and in the area of obscenity generally. Both the incentive for officials to promote delay and the adverse consequences of delay are considerably less in this area than in the field of political and social expression. If controversial political writings attack those in power, government officials may benefit from suppression, although society may suffer. In the area of obscenity, there is less chance that decisionmakers will have interests which may affect their estimate of what is constitutionally protected and what is not. It is vital to the operation of democratic government that the citizens have facts and ideas on important issues before them. A delay of even a day or two may be of crucial importance in some instances. On the other hand, the subject of sex is of constant but rarely particularly topical interest.

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Distribution of Ulysses may be thought by some to be more important for society than distribution of the daily newspaper, but a one- or two-month delay in circulation of the former would be of small significance, whereas such a delay might be effective suppression of the latter.

Finally, it may be said that any system of civil enforcement allows expression to be limited without the strict safeguards of criminal procedures and rules of evidence. The contention that such protections are essential is perhaps weaker in the area of obscenity than with regard to other kinds of expression for reasons outlined above. A substantial restriction on freedom of expression is undoubtedly provided by civil remedies for defamation, and there is no reason for foreclosing a State from reasonable civil means of preventing the distribution of obscene materials.

The opinion of MR. JUSTICE BRENNAN, in my view, straitjackets the legitimate attempt of Kansas to protect what it considers an important societal interest. It does so in contradiction of a sensible reading of the precedents and without contributing in any genuine way to the furtherance of freedom of expression that our Constitution protects.

For the foregoing reasons, I would affirm the judgment of the Kansas Supreme Court.