Smith v. California (361 U.S. 147)/Concurrence Black
|Smith v. California (361 U.S. 147) by
United States Supreme Court
SMITH v. CALIFORNIA
Argued: Oct. 20, 1959. --- Decided: Dec 14, 1959
Mr. Justice BLACK, concurring.
The appellant was sentenced to prison for possessing in his bookstore an 'obscene' book in violation of a Los Angeles city ordinance.  I concur in the judgment holding that ordinance unconstitutional, but not for the reasons given in the Court's opinion.
The Court invalidates the ordinance solely because it penalizes a bookseller for mere possession of an 'obscene' book, even though he is unaware of its obscenity. The grounds on which the Court draws a constitutional distinction between a law that punishes possession of a book with knowledge of its 'obscenity' and a law that punishes without such knowledge are not persuasive to me. Those grounds are not conviction of a bookseller for possession of an 'obscene' book when he is unaware of its obscenity 'will tend to restrict the books he sells to those he has inspected,' and therefore 'may tend to work a substantial restriction on freedom of speech.' The fact is, of course, that prison sentences for possession of 'obscene' books will seriously burden freedom of the press whether punishment is imposed with or without knowledge of the obscenity. The Court's opinion correctly points out how little extra burden will be imposed on prosecutors by requiring proof that a bookseller was aware of a book's contents when he possessed it. And if the Constitution's requirement of knowledge is so easily met, the result of this case is that one particular bookseller gains his freedom, but the way is left open for state censorship and punishment of all other booksellers by merely adding a few new words to old censorship laws. Our constitutional safeguards for speech and press therefore gain little. Their victory, if any, is Pyrrhic one. Cf. Beauharnais v. People of State of Illinois, 343 U.S. 250, 267, at page 275, 72 S.Ct. 725, 736, at page 739, 96 L.Ed. 919 (dissenting opinion).
That it is apparently intended to leave the way open for both federal and state governments to abridge speech and press (to the extent this Court approves) is also indicated by the following statements in the Court's opinion: "The door barring federal and state intrusion into this area (freedom of speech and press) cannot be left ajar; it must be kept hightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.' * * * This ordinance opens that door too far.' This statement raises a number of questions for me. What are the 'more important' interests for the protection of which constitutional freedom of speech and press must be given second place? What is the standard by which one can determine when abridgment of speech and press goes 'too far' and when it is slight enough to be constitutionally allowable? Is this momentous decision to be left to a majority of this Court on a case-by-case basis? What express provision or provisions of the Constitution put freedom of speech and press in this precarious position of subordination and insecurity?
Certainly the First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that 'Congress shall make no law * * * abridging the freedom of speech, or of the press.' I read 'no law * * * abridging' to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly 'beyond the reach' of federal power to abridge.  No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment. Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are 'more important interests.' The contrary notion is, in my judgment, court-made not Constitution-made.
State intrusion or abridgment of freedom of speech and press raises a different question, since the First Amendment by its terms refers only to laws passed by Congress. But I adhere to our prior decisions holding that the Fourteenth Amendment made the First applicable to the State. See cases collected in the concurring opinion in Speiser v. Randall, 357 U.S. 513, 530, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460. It follows that I am for reversing this case because I believe that the Los Angeles ordinance sets up a censorship in violation of the First and Fourteenth Amendments.
If, as it seems, we are on the way to national censorship, I think it timely to suggest again that there are grave doubts in my mind as to the desirability or constitutionality of this Court's becoming a Supreme Board of Censors-reading books and viewing television performances to determine whether, if permitted, they might adversely affect the morals of the people throughout the many diversified local communities in this vast country.  It is true that the ordinance here is on its face only applicable to 'obscene or indecent writing.' It is also true that this particular kind of censorship is considered by many to be 'the obnoxious thing in its mildest and least repulsive form * * *.' But 'illegitimate and unconstitutional practices get their first footing in that way * * *. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746. While it is 'obscenity and indecency' before us today, the experience of mankind-both ancient and modern-shows that this type of elastic phrase can, and most likely will, be synonymous with the political and maybe with the religious unorthodoxy of tomorrow.
Censorship is the deadly enemy of freedom and progress. The plain language of the Constitution forbids it. I protest against the Judiciary giving it a foothold here.
^1 As shown by Note 1 of the Court's opinion, the ordinance makes it unlawful to possess at places defined any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, figure, motion picture film, phonograph recording, wire recording or transcription of any kind.
^2 Another concurring opinion has said that it would wrong James Madison and Thomas Jefferson to attribute to them the view that the First Amendment places speech wholly beyond the reach of the Federal Government. Of course, both men made many statements on the subject of freedom of speech and press during their long lives and no one can define their precise views with complete certainty. However, several statements by both Madison and Jefferson indicate that they may have held the view that the concurring opinion terms 'doctrinaire absolutism.'
James Madison, in exploring the sweep of the First Amendment's limitation on the Federal Government when he offered the Bill of Rights to Congress in 1789, is reported as having said, 'the right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government * * *.' (Emphasis supplied.) 1 Annals of Cong. 738. For reports of other discussions by Mr. Madison see pp. 424-449, 660, 704-756. Eleven years later he wrote: 'without tracing farther the evidence on this subject,
it would seem scarcely possible to doubt that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood, and that the amendment was intended as a positive and absolute reservation of it.' 6 Madison, Writings (Hunt ed. 1906), 341, 391, and see generally, 385-393, 399.
Thomas Jefferson's views of the breadth of the First Amendment's prohibition against abridgment of speech and press by the Federal Government are illustrated by the following statement he made in 1798: '(The First Amendment) thereby guard(s) in the same sentence, and under the same words, the freedom of religion, of speech, and of the press; insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.' 8 Jefferson, Writings (Ford ed. 1904), 464-465. For another early discussion of the scope of the First Amendment as a complete bar to all federal abridgment of speech and press see St. George Tucker's comments on the adequacy of state forums and state laws to grant all the protection needed against defamation and libel. 1 Blackstone, Commentaries (Tucker ed. 1803) 299.
Of course, neither Jefferson nor Madison faced the problem before the Court in this case, because it was not until the Fourteenth Amendment was passed that any of the prohibitions of the First Amendment were held applicable to the States. At the time Jefferson and Madison lived, before the Fourteenth Amendment was passed, the First Amendment did not prohibit the States from abridging free speech by the enactment of defamation or libel laws. Cf. Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 32 U.S. 243, 8 L.Ed. 672. But the meaning of the First Amendment, as it was understood by two such renowned constitutional architects as Jefferson and Madison, is important in this case because of our prior cases holding that the Fourteenth Amendment applies the First, with all the force it brings to bear against the Federal Government, against the States. See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, and other cases collected in Speiser v. Randall, 357 U.S. 513, 530, 78 S.Ct. 1332, 1344, 2 L.Ed.2d 1460 (concurring opinion). But see Beauharnais v. People of State of Illinois, 343 U.S. 250, 288, 72 S.Ct. 725, at page 746, 96 L.Ed. 919 (Court and dissenting opinions).
^3 Kingsley International Pictures Corp. v. Regents of University of State of New York, 360 U.S. 684, 690-691, 79 S.Ct. 1362, 1366, 3 L.Ed.2d 1512 (concurring opinion). The views of a concurring opinion here, if accepted, would make this Court a still more inappropriate 'Board of Censors' for the whole country. That opinion, conceding that 'there is no external measuring rod of obscenity,' argues that the Constitution requires the issue of obscenity to be determined on the basis of 'contemporary community standards'-'the literary, psychological or moral standards of a community.' If, as argued in the concurring opinion, it violates the Federal Constitution for a local court to reject the evidence of 'experts' on contemporary community standards of the vague word 'obscenity,' it seems odd to say that this Court should have the final word on what those community standards are or should be. I do not believe the words 'liberty' and 'due process' in the Fourteenth Amendment give this Court that much power.
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