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

by Hugo Black

United States Supreme Court

361 U.S. 147

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. ^[1] 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. ^[2] 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. ^[3] 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.

Notes

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.'
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.