Quantity of Copies of Books v. Kansas/Opinion of the Court

MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, MR. JUSTICE WHITE, and MR. JUSTICE GOLDBERG join.

Under a Kansas statute authorizing the seizure of allegedly obscene books before an adversary determination

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of their obscenity and, after that determination, their destruction by burning or otherwise, the Attorney General of Kansas obtained an order from the District Court of Geary County directing the sheriff of the county to seize and impound, pending hearing, copies of certain

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paperback novels at the place of business of P-K News Service, Junction City, Kansas. After hearing, the court entered a second order directing the sheriff to destroy the 1,715 copies of 31 novels which had been seized. The Kansas Supreme Court held that the procedures met constitutional requirements, and affirmed the District Court's order. 191 Kan. 13, 379 P.2d 254. Probable jurisdiction was noted,. We conclude that the procedures followed in issuing the warrant for the seizure of the books, and authorizing their impounding pending hearing, were constitutionally insufficient because they did not adequately safeguard against the suppression of nonobscene books. For this reason, we think the judgment must be reversed. Therefore, we do not reach, and intimate no view upon, the appellants' contention that the Kansas courts erred in holding that the novels are obscene.

Section 4 of the Kansas statute requires the filing of a verified information stating only that, "upon information and belief . . ., there is [an] . . . obscene book . . . located within his county." The State Attorney General went further, however, and filed an information identifying by title 59 novels, and stating that "each of said books [has] been published as ''This is an original Nightstand Book.'" He also filed with the information copies of seven novels published under that caption, six of which were named by title in the information; particular passages in the seven novels were marked with penciled notations or slips of paper. Although also not expressly required by the statute, the district judge, on application of the Attorney General, conducted a 45-minute ex parte inquiry during which he "scrutinized" the seven books; at the conclusion of this examination, he stated for the record that they "appear to be obscene literature as defined" under the Kansas statute''

"and give this Court reasonable grounds to believe that any paper-backed

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publication carrying the following: 'This is an original Night Stand book' would fall w thin the same category. . . ."

He issued a warrant which authorized the sheriff to seize only the particular novels identified by title in the information. When the warrant was executed on the date it was issued, only 31 of the titles were found on P-K's premises. All copies of such titles, however, 1,715 books in all, were seized and impounded. At the hearing held 10 days later pursuant to a notice included in the warrant, P-K made a motion to quash the information and the warrant on the ground, among others, that the procedure preceding the seizure was constitutionally deficient. The claim was that, by failing first to afford P-K a hearing on the question whether the books were obscene, the procedure "operates as a prior restraint on the circulation and dissemination of books," in violation of the constitutional restrictions against abridgment of freedom of speech and press. The motion was denied, and, following a final hearing held about seven weeks after the seizure (the hearing date was continued on motion of P-K), the court held that all 31 novels were obscene and ordered the sheriff to stand ready to destroy the 1,715 copies on further order.

The steps taken beyond the express requirements of the statute were thought by the Attorney General to be necessary under our decision in Marcus v. Search Warrant,, decided a few weeks before the information was filed. Marcus involved a proceeding under a strikingly similar Missouri search and seizure statute and implementing rule of court. See at notes 2 3 In Marcus, the warrant gave the police virtually unlimited authority to seize any publications which they considered to be obscene, and was issued on a verified complaint lacking any specific description of the publications to be seized, and without prior submission of any publications whatever to the judge issuing the warrant.

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We reversed a judgment directing the destruction of the copies of 100 publications held to be obscene, holding that, even assuming that they were obscene, the procedures leading to their condemnation were constitutionally deficient for lack of safeguards to prevent suppression of nonobscene publications protected by the Constitution.

It is our view that, since the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was likewise constitutionally deficient. This is the teaching of Kingsley Books, Inc. v. Brown,. See Marcus at pp. -738. The New York injunctive procedure there sustained does not afford ex parte relief, but postpones all injunctive relief until "both sides have had an opportunity to be heard." Tenney v. Liberty News Distributors, 13 A.D.2d 770, 215 N.Y.S.2d 663, 664. In Marcus, we explicitly said that Kingsley Books

""does not support the proposition that the State may impose the extensive restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity, irrespective of whether or not the material is legally obscene.""

367 U.S. at -736. A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books. State regulation of obscenity must

""conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line.""

Bantam Books, Inc. v. Sullivan,, ; the Constitution requires a procedure "designed to focus searchingly on the question of obscenity," Marcus, p. . We therefore

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conclude that in not first affording P-K an adversary hearing, the procedure leading to the seizure order was constitutionally deficient. What we said of the Missouri procedure, id. at -737, also fits the Kansas procedure employed to remove these books from circulation:

"". . . there is no doubt that an effective restraint -- indeed, the most effective restraint possible -- was imposed prior to hearing on the circulation of the publications in this case, because all copies on which the [sheriff] could lay [his] hands were physically removed. . . from the premises of the wholesale distributor. An opportunity. . . to circulate the [books]. . . and then raise the claim of nonobscenity by way of defense to a prosecution for doing so was never afforded these appellants, because the copies they possessed were taken away. Their ability to circulate their publications was left to the chance of securing other copies, themselves subject to mass seizure under other such warrants. The public's opportunity to obtain the publications was thus determined by the distributor's readiness and ability to outwit the police by obtaining and selling other copies before they, in turn, could be seized. In addition to its unseemliness, we do not believe that this kind of enforced competition affords a reasonable likelihood that nonobscene publications, entitled to constitutional protection, will reach the public. A distributor may have every reason to believe that a publication is constitutionally protected and will be so held after judicial hearing, but his belief is unavailing as against the contrary [ex parte] judgment [pursuant to which the sheriff]. . . seizes it from him.""

It is no answer to say that obscene books are contraband, and that, consequently, the standards governing searches and seizures of allegedly obscene books should

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not differ from those applied with respect to narcotics, gambling paraphernalia and other contraband. We rejected that proposition in Marcus. We said, 367 U.S. at -731:

""The Missouri Supreme Court's assimilation of obscene literature to gambling paraphernalia or other contraband for purposes of search and seizure does not, therefore, answer the appellants' constitutional claim, but merely restates the issue whether obscenity may be treated in the same way. The authority to the police officers under the warrants issued in this case broadly to seize 'obscene. . . publications' poses problems not raised by the warrants to seize 'gambling implements' and 'all intoxicating liquors' involved in the cases cited by the Missouri Supreme Court. 334 S.W.2d at 125. For the use of these warrants implicates questions whether the procedures leading to their issuance and surrounding their execution were adequate to avoid suppression of constitutionally protected publications.""

"" . . . [T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. . . . The separation of legitimate from illegitimate speech calls for. . . sensitive tools. . . .""

""Speiser v. Randall,,. It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible consequences for constitutionally protected speech.""

See also Smith v. California,, -153.

Nor is the order under review saved because, after all 1,715 copies were seized and removed from circulation, P-K News Service was afforded a full hearing on the

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question of the obscenity of the novels. For if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of onobscene books. Bantam Books v. Sullivan, supra; Roth v. United States, ; Marcus v. Search Warrant, supra; Smith v. California, supra. Here, as in Marcus, "[s]ince a violation of the Fourteenth Amendment infected the proceedings, in order to vindicate appellants' constitutional rights," U.S. 367 at, the judgment resting on a finding of obscenity must be reversed.

Reversed.