Smith v. California (361 U.S. 147)/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

I need not repeat here all I said in my dissent in Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498, to underline my conviction that neither the author nor the distributor of this book can be punished under our Bill of Rights for publishing or distributing it. The notion that obscene publications or utterances were not included in free speech developed in this country much later than the adoption of the First Amendment, as the judicial and legislative developments in this country show. Our leading authorities on the subject have summarized the matter as follows:

'In the United States before the Civil War there were few     reported decisions involving obscene literature. This of     course is no indication that such literature was not in      circulation at that time; the persistence of pornography is      entirely too strong to warrant such an inference. Nor is it     an indication that the people of the time were totally      indifferent to the proprieties of the literature they read. In 1851 Nathaniel Hawthorne's The Scarlet Letter was bitterly     attacked as an immoral book that degraded literature and      encouraged social licentiousness. The lack of cases merely     means that the problem of obscene literature was not thought      to be of sufficient importance to justify arousing the forces      of the state to censorship.' Lockhart and McClure,      Literature, The Law of Obscenity, and the Constitution, 38      Minn.L.Rev. 295, 324-325.

Neither we nor legislatures have power, as I see it, to weigh the values of speech or utterance against silence. The only grounds for suppressing this book are very narrow. I have read it; and while it is repulsive to me, its publication or distribution can be constitutionally punished only on a showing not attempted here. My view was stated in the Roth case, 354 U.S., at page 514, 77 S.Ct., at page 1324:

'Freedom of expression can be suppressed if, and to the     extent that, it is so closely brigaded with illegal action as      to be an inseparable part of it. Giboney v. Empire Storage &     Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 688, 93 L.Ed. 834;     National Labor Relations Board v. Virginia Electric & Power      Co., 314 U.S. 469, 477-478, 62 S.Ct. 344, 348, 86 L.Ed. 348.     As a people, we cannot afford to relax that standard. For the     test that suppresses a cheap tract today can suppress a      literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that     category is endless.'

Yet my view is in the minority; and rather fluid tests of obscenity prevail which require judges to read condemned literature and pass judgment on it. This role of censor in which we find ourselves is not an edifying one. But since by the prevailing school of thought we must perform it, I see no harm, and perhaps some good, in the rule fashioned by the Court which requires a showing of scienter. For it recognizes implicitly that these First Amendment rights, by reason of the strict command in that Amendment-a command that carries over to the States by reason of the Due Process Clause of the Fourteenth Amendment-are preferred rights. What the Court does today may possibly provide some small degree of safeguard to booksellers by making those who patrol bookstalls proceed less high handedly than has been their custom.