Booksellers challenge state law authorizing injunction and destruction of obscene books

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: First Amendment (Obscenity), Fourteenth Amendment (Due Process)

B. Legal Question Presented:

Does imposing an injunction on the sale of obscene books and destroying the obscene material violate a booksellers' rights under the First Amendment as a "prior restraint"?

II. CASE SUMMARY:

A. Background:

The New York Code of Criminal Procedure, Section 22-a, authorized the legal counsel of a municipality to seek an injunction against the sale and distribution of material found by the courts to be obscene, and to obtain an order for the seizure and destruction of the condemned publications.

Appellee Peter Campbell Brown, Corporation Counsel for the City of New York, sought such an injunction against appellants Kingsley Books, Inc. and several other bookstores. The trial judge found that the materials at issue were clearly obscene, enjoined their further distribution, and ordered their destruction.

Appellants appealed to the New York Court of Appeals, challenging the constitutionality of the statute, rather than challenging the finding of obscenity. The Court of Appeals held that the statute was constitutional and affirmed. Appellants appealed to the US Supreme Court, arguing that the procedures under the statute amounted to a prior censorship of literary material and therefore violated the First Amendment.

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Emanuel Redfield argued the cause and filed a brief for appellants. Seymour B. Quel argued the cause for appellee. With him on the brief were Peter Campbell Brown and Fred Iscol.
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Ephraim London filed a brief for the New York Civil Liberties Union, as amicus curiae, urging reversal. Attorney General Louis J. Lefkowitz, Solicitor General John R. Davison, and Assistant Attorney General Ruth Kessler Toch, filed a brief for the State of New York, as amicus curiae, urging affirmance.
IV. THE SUPREME COURT'S DECISION:

"…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...

The judicial angle of vision in testing the validity of a statute like Section 22-a is 'the operation and effect of the statute in substance.' The phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test… 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.'

Criminal enforcement and the proceeding under Section 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 method devised by New York in Section 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… [T]he 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 Section 22-a more restrictive of freedom of expression than the result of conviction for a misdemeanor…Section 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."

Held: The judgment is affirmed.

Justice Vote: 4 Pro vs. 5 Con
  • Frankfurter, F. Con (Wrote majority opinion)
  • Harlan, J. Con (Joined majority opinion)
  • Whittaker, C. Con (Joined majority opinion)
  • Clark, T. Con (Joined majority opinion)
  • Burton, H. Con (Joined majority opinion)
  • Warren, E. Pro (Wrote dissenting opinion)
  • Douglas, W. Pro (Wrote dissenting opinion)
  • Black, H. Pro (Joined Douglas’ dissenting opinion)
  • Brennan, W. Pro (Wrote dissenting opinion, joined Douglas’ dissenting opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus urging reversal; the US Supreme Court affirmed the ruling of the Court of Appeals of the State of New York in a 5-4 vote, giving the ACLU an apparent loss.