In New Jersey (See Bantam Baaks, Ive., Plaintiff v. Matthew F. Melko, yiraseeuter of Middlesex County (25 N. J, Super, 292) a test case songht to establish the right uf a prosecitor of the pleas to ban ceriain objectionable pocket cumie books, culled from a Jist compiled hy volunteer cilizen groups. Letters from the prosecutor tu dealers in the e¢ounty, attacking the Chinese oom were cited by the plaintiff, as the basis for its injunctive suit secking to restrain the prosecutor, The publishers, plaintiff, claimed abridgment of frecdom of ihe ress, guaranteed under the first amendment. In a brilliant 80-page wvpinioen, emphasizing abherrenee of censorship, Superior Conrt Indge Goldman found ihe qnesiioned book within the aecented limitless stundards of a free press, VYhe Supreme Court upheld the decisiuy buf modified the injunctive relief by striking down thaf portion of it that denied the prosecutor Hie power to warn dealers that certain books were on the banned list, The reasontug sustaining this permissive quasi-censorship. epitomized ip the Supreme Court opinion, was sound: Law enforeenent agencies have the right te warn in advance possible ine frirgement of any law. The green light was flashed to the unethical publisher to grind ont more und more of this literary curbage:; to stimulate the adolescents with pocket and comie books om the borderline of pornography and in the twilight zone of obscenily which pondered sex with-the lethal weapon of a mental aphrodisiac.
We feel confident that if this test ease had involved an infraction of our proposed bil (assembly 401—See exhibit A) the court would have taken judicial notice of the mass of dirty, revolting pocket and comic hooks falling into the hands of juvenile and eontauminating their impressionehle minds. To allosy, nuchecked, this torrent of filth and trash eondemns us as delinqnents hecause the laulure or neglect to furnish protective care through public heaith legislation for the growing mind of the advlesceut, coustitules an ahdieution of adult responsibility,
It las been felt that the court, in protecting the freedom of the press, hag leaned ayer backwards in its unwillingness to be unduly censorious. It nrust he observed that the entire tield of censorship involves the suppression of free: dom. This precions heritage, guarantecd by the first amendment to the Con- stitution, must, at all casts, be held inviolate: hut, at the opposite pole, jt may be safely argued that the right te protect ibe morals of youth is just as sacred as the right to freedom of vhe press vouchsafed for us in the Till of Rights, The unscrupulous or unethteal publisher who claims the right to print what he pleases, must be reminded vf the imuortal words of the late Justice Oliver Wendell llolmes, who, in 2 controversy involving freedom of speech said “that the cansfitutional protection {0 sar what we pleise, does not give one the right to shout ‘fire’ in a crowded theater.”
Lhe veal knotty question icyolved is how we can regulate and eontrol the industry at the publication and wholesnle d’stribution levels withont doing injury to eur freedom and without fnewrring the evils of censorship. Surety, the framers of our Constitution could not have intended these gnaranties as : litense Jur irresponsible publishers to contaminate the minds and worals of children for profit. Vor the most part, the sterekeepers are blameless and helpless for they are at the mercy of the higher-ups. The custom in the trude calls for weekly shipments from the distributor of a full assortment of periodicals un consignment, with privilege of return; often the objectionable material is hidden within the pages, and the average reiniler could spend half his workday in ‘rustrating self-pol cing. Onr State enforcement agencies stand ready to assist these local merchants in cleaning np their stands where there his been intimidation by a distributer who insists on a tie-in, a ginimick employed at the higher Jevel that eompels acceptance of filth at the risk of a penalty of losing lis supply of worthwhile, staple, and salable publications. (See ch. 392, Laws of 1053.)
in the absence of industry contre), the flood of indecent literature will surely hackiire, caught in the niesh of an indignant public, unwilling to buy the trash, ‘the unrelenttess strse of such a movement will encourage the retail dealers, no louger fearful of reprisals nr sanctions——to return the trash to the wholesale distributors and, who, in retum, will dump the mess right back from whence it originates, the irresponsible publisher. To hasien this process our State legislature is considering a Jaw (assembly bill 401), bused on the principle of our present statute that forhids the sale of cigarettes to a minor under 16, Interpretation of preventative legislation of this kind must always be dis- passionate and reasonable and free from the clamor of zealots and would-be
reformers. In this wat of attrition the law of economic necessity will force