Bantam Books, Inc. v. Sullivan/Concurrence Douglas
Mr. Justice DOUGLAS, concurring.
While I join the opinion of the Court, I adhere to the views I expressed in Roth v. United States, 354 U.S. 476, 508-514, 77 S.Ct. 1304, 1321-1324, 1 L.Ed.2d 1498, respecting the very narrow scope of governmental authority to suppress publications on the grounds of obscenity. Yet as my Brother BRENNAN makes clear, the vice of Rhode Island's system is apparent whatever one's view of the constitutional status of 'obscene' literature. This is censorship in the raw; and in my view the censor and First Amendment rights are incompatible. If a valid law has been violated, authors and publishers and vendors can be made to account. But they would then have on their side all the procedural safeguards of the Bill of Rights, including trial by jury. From the viewpoint of the State that is a more cumbersome procedure, action on the majority vote of the censors being far easier. But the Bill of Rights was designed to fence in the Government and make its intrusions on liberty difficult and its interference with freedom of expression well-nigh impossible.
All nations have tried censorship and only a few have rejected it. Its abuses mount high. Today Iran censors news stories in such a way as to make false or misleading some reports of reputable news agencies. For the Iranian who writes the stories and lives in Teheran goes to jail if he tells the truth. Thus censorship in Teheran has as powerful extralegal sanctions as censorship in Providence.
The Providence regime is productive of capricious action. A five-to-four vote makes a book 'obscene.' The wrong is compounded when the issue, though closely balanced in the minds of sophisticated men, is resolved against freedom of expression and on the side of censorship. Judges, to be sure, often disagree as to the definition of obscenity. But an established administrative system that bans book after book, even though they muster four votes out of nine, makes freedom of expression much more precarious than it would be if unanimity were required. This underlines my Brother BRENNAN'S observation that the Providence regime 'provides no safeguards whatever against the suppression of nonobscene, and therefore constitutionally protected, matter.' Doubts are resolved against, rather than for, freedom of expression.
The evils of unreviewable administrative action of this character are as ancient as dictators. George Kennan, Siberia and the Exile System (U. of Chi.1958) p. 60, gives insight into it:
'Mr. Boro din, another Russian author and a well-known contributor to the Russian magazine Annals of the Fatherland, was banished to the territory of Yaku tsk on account of the alleged 'dangerous' and 'pernicious' character of a certain manuscript found in his house by the police during a search. This manuscript was a spare copy of an article upon the economic condition of the province of Via tka, which Mr. Boro din had written and sent to the above-named magazine, but which, up to that time, had not been published. The author went to Eastern Siberia in a convict's gray overcoat with a yellow ace of diamonds on his back, and three or four months after his arrival in Yaku tsk he had the pleasure of reading in the Annals of the Fatherland the very same article for which he had been exiled. The Minister of the Interior had sent him to Siberia merely for having in his possession what the police called a 'dangerous' and 'pernicious' manuscript, and then the St. Petersburg committee of censorship had certified that another copy of that same manuscript was perfectly harmless, and had allowed it to be published, without the change of a line, in one of the most popular and widely circulated magazines in the empire.'
Thus under the Czars an all-powerful elite condemned to the Siberia of that day an author whom a minority applauded. Administrative fiat is as dangerous today as it was then.