Kingsley Books v. Brown/Opinion of the Court

by Felix Frankfurter

United States Supreme Court

354 U.S. 436

Kingsley Books  v.  Brown

 Argued: April 22, 1957. --- Decided: June 24, 1957

This is a proceeding under § 22-a of the New York Code of Criminal Procedure (L.1941, c. 925), as amended in 1954 (L.1954, c. 702). This section supplements the existing conventional criminal provision dealing with pornography by authorizing the chief executive, or legal officer, of a municipality to invoke a 'limited injunctive remedy,' under closely defined procedural safeguards, against the sale and distribution of written and printed matter found after due trial to be obscene, and to obtain an order for the seizure, in default of surrender, of the condemned publications. ^[1]

A complaint dated September 10, 1954, charged appellants with displaying for sale paper-covered obscene booklets, fourteen of which were annexed, under the general title of 'Nights of Horror.' The complaint prayed that appellants be enjoined from further distribution of the booklets,that they be required to surrender to the sheriff for destruction all copies in their possession, and, upon failure to do so, that the sheriff be commanded to seize and destroy those copies. The same day the appellants were ordered to show cause within four days why they should not be enjoined pendente lite from distributing the booklets. Appellants consented to the granting of an injunction pendente lite and did not bring the matter to issue promptly, as was their right under subdivision 2 of the challenged section, which provides that the persons sought to be enjoined 'shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial.' After the case came to trial, the judge, sitting in equity, found that the booklets annexed to the complaint and introduced in evidence were clearly obscene-were 'dirt for dirt's sake'; he enjoined their further distribution and ordered their destruction. He refused to enjoin 'the sale and distribution of later issues' on the ground that 'to rule against at volume not offered in evidence would * * * impose an unreasonable prior restraint upon freedom of the press.' 208 Misc. 150, 167, 142 N.Y.S.2d 735, 750.

Not challenging the construction of the statute or the finding of obscenity, appellants took a direct appeal to the New York Court of Appeals, a proceeding in which the constitutionality of the statute was the sole question open to them. That court (one judge not sitting) found no constitutional infirmity: three judges supported the unanimous conclusion by detailed discussion, the other three deemed a brief disposition justified by 'ample authority.' 1 N.Y.2d 177, 189, 151 N.Y.S.2d 639, 134 N.E.2d 461, 468. A claim under the Due Process Clause of the Fourteenth Amendment made throughout the state litigation brought the case here on appeal. 352 U.S. 962, 77 S.Ct. 350, 1 L.Ed.2d 319.

Neither in the New York Court of Appeals, nor here, did appellants assail the legislation insofar as it outlaws obscenity. The claim they make lies within a very narrow compass. Their attack is upon the power of New York to employ the remedial scheme of § 22-a. Authorization of an injunction pendente lite, as part of this scheme, during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which '(a) dequate notice, judicial hearing, (and) fair determination' are assured, 208 Misc. 150, 164, 142 N.Y.S.2d 735, 747, is a safeguard against frustration of the public interest in effectuating judicial condemnation of obscene matter. It is a brake on the temptation to exploit a filthy business offered by the limited hazards of piecemeal prosecutions, sale by sale, of a publication already condemned as obscene. New York enacted this procedure on the basis of study by a joint legislative committee. Resort to this injunctive remedy, it is claimed, is beyond the constitutional power of New York in that it amounts to a prior censorship of literary product and as such is violative of that 'freedom of thought, and speech' which has been 'withdrawn by the Fourteenth Amendment from encroachment by the states.' Palko v. State of Connecticut, 302 U.S. 319, 326-327, 58 S.Ct. 149, 152-153, 82 L.Ed. 288. Reliance is particularly placed upon Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357.

In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that 'the primary requirements of decency may be enforced against obscene publications.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. And so our starting point is that New York can constitutionally convict appellants of keeping for sale the booklets incontestably found to be obscene. Roth v. United States (Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304. The immediate problem then is whether New York can adopt as an auxiliary means of dealing with such obscene merchandising the procedure of § 22-a.

We need not linger over the suggestion that something can be drawn out of the Due Process Clause of the Fourteenth Amendment that restricts New York to the criminal process in seeking to protect its people against the dissemination of pornography. It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature's range of choice. See Tigner v. State of Texas, 310 U.S. 141, 148, 60 S.Ct. 879, 882, 84 L.Ed. 1124. If New York chooses to subject persons who disseminate obscene 'literature' to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies. Just as Near v. State of Minnesota, supra, one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that 'Liberty of speech, and of the press, is also not an absolute right,' 283 U.S. at page 708, 51 S.Ct. at page 628, it likewise made clear that 'the protection even as to previous restraint is not absolutely unlimited.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. To be sure, the limitation is the exception; it is to be closely confined so as to preclude what may fairly be deemed licensing or censorship.

The judicial angle of vision in testing the validity of a statute like § 22-a is 'the operation and effect of the statute in substance.' Id., 283 U.S. at page 713, 51 S.Ct. at page 630. The phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: 'What is needed,' writes Professor Paul A. Freund, 'is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.' The Supreme Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.

Wherein does § 22-a differ in its effective operation from the type of statute upheld in Alberts? Section 311 of California's Penal Code provides that 'Every person who wilfully and lewdly * * * keeps for sale * * * any obscene * * * book * * * is guilty of a misdemeanor * * *.' Section 1141 of New York's Penal Law, McKinney's Consol. Laws, c. 40 is similar. One would be bold to assert that the in terrorem effect of such statutes less restrains booksellers in the period before the law strikes than does § 22-a. Instead of requiring the bookseller to dread that the offer for sale of a book may, without prior warning, subject him to a criminal prosecution with the hazard of imprisonment, the civil procedure assures him that such consequences cannot follow unless he ignores a court order specifically directed to him for a prompt and carefully circumscribed determination of the issue of obscenity. Until then, he may keep the book for sale and sell it on his own judgment rather than steer 'nervously among the treacherous shoals.' Warburg, Onward And Upward With The Arts, The New Yorker, April 20, 1957, pp. 98, 101, in connection with R. v. Martin Secker Warburg, Ltd., (1954) 2 All Eng. 683 (C.C.C.).

Criminal enforcement and the proceeding under § 22-a interfere with a book's solicitation of the public precisely at the same stage. In each situation the law moves after publication; the book need not in either case have yet passed into the hands of the public. The Alberts record does not show that the matter there found to be obscene had reached the public at the time that the criminal charge of keeping such matter for sale was lodged, while here as a matter of fact copies of the booklets whose distribution was enjoined had been on sale for several weeks when process was served. In each case the bookseller is put on notice by the complaint that sale of the publication charged with obscenity in the period before trial may subject him to penal consequences. In the one case he may suffer fine and imprisonment for violation of the criminal statute, in the other, for disobedience of the temporary injunction. The bookseller may of course stand his ground and confidently believe that in any judicial proceeding the book could not be condemned as obscene, but both modes of procedure provide an effective deterrent against distribution prior to adjudication of the book's content-the threat of subsequent penalization. ^[2]

The method devised by New York in § 22-a for determining whether a publication is obscene does not differ in essential procedural safeguards from that provided under many state statutes making the distribution of obscene publications a misdemeanor. For example, while the New York criminal provision brings the State's criminal procedure into operation, a defendant is not thereby entitled to a jury trial. In each case a judge is the conventional trier of fact; in each, a jury may as a matter of discretion be summoned. Compare N.Y. City Criminal Courts Act, § 31, Sub. 1(c) and Sub. 4, with N.Y. Civil Practice Act, § 430. (Appellants, as a matter of fact, did not request a jury trial, they did not attack the statute in the courts below for failure to require a jury, and they did not bring that issue to this Court.) Of course, the Due Process Clause does not subject the States to the necessity of having trial by jury in misdemeanor prosecutions.

Nor are the consequences of a judicial condemnation for obscenity under § 22-a more restrictive of freedom of expression than the result of conviction for a misdemeanor. In Alberts, the defendant was fined $500, sentenced to sixty days in prison, and put on probation for two years on condition that he not violate the obscenity statute. Not only was he completely separated from society for two months but he was also seriously restrained from trafficking in all obscene publications for a considerable time. Appellants, on the other hand, were enjoined from displaying for sale or distributing only the particular booklets theretofore published and adjudged to be obscene. Thus, the restraint upon appellants as merchants in obscenity was narrower than that imposed on Alberts.

Section 22-a's provision for the seizure and destruction of the instruments of ascertained wrongdoing expresses resort to a legal remedy sanctioned by the long history of Anglo-American law. See Holmes, The Common Law, 24-26; Van Oster v. State of Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354; Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 510-511, 41 S.Ct. 189, 190-191, 65 L.Ed. 376; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385, and see United States v. Urbuteit, 335 U.S. 355, 69 S.Ct. 112, 93 L.Ed. 61, dealing with misbranded articles under § 304(a) of the Food, Drug, and Cosmetic Act, 52 Stat. 1044, 21 U.S.C.A. § 334(a). It is worth noting that although the Alberts record does not reveal whether the publications found to be obscene were destroyed, provision is made for that by §§ 313 and 314 of the California Penal Code. Similarly, § 1144 of New York's Penal Law provides for destruction of obscene matter following conviction for its dissemination.

It only remains to say that the difference between Near v. State of Minnesota, supra, and this case is glaring in fact. The two cases are no less glaringly different when judged by the appropriate criteria of constitutional law. Minnesota empowered its courts to enjoin the dissemination of future issues of a publication because its past issues had been found offensive. In the language of Mr. Chief Justice Hughes, 'This is of the essence of censorship.' 283 U.S. at page 713, 51 S.Ct. at page 630. As such, it was found unconstitutional. This was enough to condemn the statute wholly apart from the fact that the proceeding in Near involved not obscenity but matters deemed to be derogatory to a public officer. Unlike Near, § 22-a is concerned solely with obscenity and, as authoritatively construed, it studiously withholds restraint upon matters not already published and not yet found to be offensive.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice WARREN, dissenting.

Notes

1. '§ 22-a. Obscene prints and articles; jurisdiction. The supreme court has jurisdiction to enjoin the sale or distribution of obscene prints and articles, as hereinafter specified:
2. This comparison of remedies takes note of the fact that we do not have before us a case where, although the issue of obscenity is ultimately decided in favor of the bookseller, the State nevertheless attempts to punish him for disobedience of the interim injunction. For all we know, New York may impliedly condition the temporary injunction so as not to subject the bookseller to a charge of contempt if he prevails on the issue of obscenity.