Butler v. Michigan
Decided Feb. 25, 1957; 352 US 380


A. Issues Discussed: Free Speech

B. Legal Question Presented:

Can a state prevent books from being made available to the general reading public if the book is found to have a potentially deleterious influence upon youth?


A. Background:

"Appellant was charged with its violation for selling to a police officer what the trial judge characterized as 'a book containing obscene, immoral, lewd, lascivious language, or descriptions, tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth.' Appellant moved to dismiss the proceeding on the claim that application of 343 unduly restricted freedom of speech as protected by the Due Process Clause of the Fourteenth Amendment in that the statute (1) prohibited distribution of a book to the general public on the basis of the undesirable influence it may have upon youth; (2) damned a book and proscribed its sale merely because of some isolated passages that appeared objectionable when divorced from the book as a whole; and (3) failed to provide a sufficiently definite standard of guilt. After hearing the evidence, the trial judge denied the motion, and, in an oral opinion, held that...' the defendant is guilty because he sold a book in the City of Detroit containing this language [the passages deemed offensive], and also because the Court feels that even viewing the book as a whole, it [the objectionable language] was not necessary to the proper development of the theme of the book nor of the conflict expressed therein.' Appellant was fined $100.

Pressing his federal claims, appellant applied for leave to appeal to the Supreme Court of Michigan. Although the State consented to the granting of the application 'because the issues involved in this case are of great public interest, and because it appears that further clarification of the language of... [the statute] is necessary,' leave to appeal was denied..."

On appeal the US Supreme Court reversed the judgment of the Recorder's Court of Detroit.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging reversal were filed by Horace S. Manges for the American Book Publishers Council. Inc., Osmond K. Fraenkel for the Authors League of America, Inc., and Erwin B. Ellmann for the Metropolitan Detroit Branch of the American Civil Liberties Union.

Manuel Lee Robbins argued the cause for appellant. With him on the brief was William G. Comb.

Briefs of amici curiae urging affirmance were filed by John Ben Shepperd, Attorney General, and Philip Sanders, Assistant Attorney General, for the State of Texas

Edmund E. Shepherd, Solicitor General of Michigan, argued the cause for appellee. With him on the brief were Thomas M. Kavanagh, Attorney General, and Daniel J. O'Hara, Assistant Attorney General.

"It is clear on the record that appellant was convicted because Michigan... made it an offense for him to make available for the general reading public (and he in fact sold to a police officer) a book that the trial judge found to have a potentially deleterious influence upon youth. The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig. Indeed, the Solicitor General of Michigan has, with characteristic candor, advised the Court that Michigan has a statute specifically designed to protect its children against obscene matter 'tending to the corruption of the morals of youth.' But the appellant was not convicted for violating this statute.

We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society. We are constrained to reverse this conviction."

The US Supreme Court reversed the judgment of the Recorder's Court of Detroit.

Justice Vote: 9 Pro vs. 0 Con

  • Frankfurter, F. Pro (Wrote majority opinion)
  • Warren, E. Pro (Joined majority opinion)
  • Black, H. Pro (Wrote concurring opinion)
  • Reed, S. Pro (Joined majority opinion)
  • Douglas, W. Pro (Joined majority opinion)
  • Burton, H. Pro (Joined majority opinion)
  • Clark, T. Pro (Joined concurring opinion)
  • Harlan, J. Pro (Joined concurring opinion)
  • Brennan, W. Pro (Joined concurring opinion)

The ACLU, as amicus, urged reversal of the Recorder's Court of Detroit's judgment; the Supreme Court reversed in a 9-0 vote, giving the ACLU an apparent win.