Quantity of Books v. Kansas
| Quantity of Books v. Kansas | |
|---|---|
 reversed and remanded . | |
| Court membership | |
| |
| Case opinions | |
| Majority | Brennan, joined by Warren, White, Goldberg |
| Concurrence | Black, joined by Douglas |
| Concurrence | Stewart |
| Dissent | Harlan, joined by Clark |
| Laws applied | |
| U.S. Const. amends. I, XIV | |
Quantity of Books v. Kansas, 378 U.S. 205 (1964), is an
The case arose several years earlier when police in
Justice
In dissent, Justice John Marshall Harlan II wrote for himself and Tom Clark in faulting Brennan's application of the precedents he relied on. He also disputed whether the procedure was truly prior restraint, since it did not review the material prior to publication. The Court, he concluded, was unfairly denying Kansas the full range of legal tools it might otherwise have had to pursue if it had decided it was an important state interest.[clarification needed]
Background
For most of
That began to change during the 20th century, in response to social and
Some of those cases did not implicate the issue of obscenity itself but the procedures that were used to suppress it. In 1961, the Court had heard Marcus v. Search Warrant, in which several bookstores in Kansas City, Missouri, had challenged the seizure of some of their wares prior to any hearing at which they could contest the finding of obscenity. The Court had unanimously found this procedure violated the Fourth and Fourteenth Amendments, since there were First Amendment interests at stake in obscenity prosecutions that were not present in other forfeiture cases.[4]
In 1961, shortly after Marcus, William M. Ferguson, Kansas's
The judge issued a warrant to be served by the
A hearing was held ten days later where P–K could argue that the books were not obscene. Since there were no criminal charges involved, it was strictly a civil
The
Opinion of the Court
Oral arguments were held over a two-day period in April 1964. Stanley Fleishman argued for the claimants; Ferguson for the state. He was joined in an amicus curiae brief by 19 other state attorneys general.
The Court announced its decision in late June of that year, near the end of its term. Justice
Plurality
"[S]ince the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued," Brennan wrote, "the procedure was likewise constitutionally deficient." He relied on both Marcus and
After quoting at length from Marcus, Brennan rejected another argument that had also been raised in that case. "It is no answer to say that obscene books are
Concurrences
Justice Black wrote, in his short concurrence, that it was unnecessary to decide the procedural questions since, as he and Justice Douglas had also said in his Roth dissent and several others since, "the Kansas statute ordering the burning of these books is in plain violation of the unequivocal prohibition of the First Amendment, made applicable to the States by the
Dissent
Justice Harlan's dissent was longer than all three of the other opinions combined. He first responded to Justices Black, Douglas and Stewart that "[i]t is quite plain that these so-called '
The instant case, Justice Harlan believed, had more similarities to Kingsley Books than Marcus. He pointed to the extensive review by the judge before he granted the warrant, as well as its limitations to only the titles named in it, two controls which had been absent in Marcus and were specifically imposed by Ferguson in response to the later decision. The New York statute upheld in Kingsley Books had allowed for an almost immediate hearing after the granting of the injunction, but he considered it unlikely that any defendant or claimant would be able to prepare a defense that quickly. "In pragmatic terms, then, the nature of the restraint imposed by the Kansas statute is not in a constitutionally significant sense different from that sustained in Kingsley Books."[13]
Brennan had been incorrect, Justice Harlan stated, to consider the Kansas statute as effectively constituting prior restraint merely due to the lack of a prior adversary hearing.
In the typical censorship situation, material is brought as a matter of course before some administrative authority, who then decides on its
licensing, law in this regard, since books are not, as a matter of course, subjected to prepublication state sanctioning, but are reviewed only when the State has reason to believe they are obscene.
He added other reasons that a post-publication system of suppression was more in keeping with democratic traditions since it allowed the public the possibility of seeing possibly obscene material and judging for itself what the state was trying to restrict and that it put the
Nor did Harlan share the plurality's concern that such statutes could be used to suppress politically undesirable speech. He called the delay argument "artificial in the context of this case" since there was a significant difference between the news and possibly obscene material:
Distribution of Ulysses may be thought by some to be more important for society than distribution of the daily newspaper, but a one- or two-month delay in circulation of the former would be of small significance, whereas such a delay might be effective suppression of the latter.[15]
Subsequent developments
The Kansas Supreme Court decided the case again in favor of the state, and it was once more appealed. In 1967, the Court granted
Six justices supported the per curiam opinion. Warren agreed with the certiorari grant, but he would have held the case for oral argument. Justice Clark said that he would have granted the petition but affirmed the judgement. Justice Harlan indicated likewise and referenced his opinions in Roth and Memoirs v. Massachusetts, which had been decided in the interim.[16]
In the next term, the Court would use Quantity of Books to bolster its holding against a state film-licensing system in Freedman v. Maryland, as one of several in which it had held that only an adversary hearing prior to restraint sufficed to protect First Amendment rights.[17] Two years later, the Southern District of New York relied on the case to hold a federal seizure of obscene materials from a New York City bookstore unconstitutional, since it too had been insufficiently reviewed in advance.[18] The next year, by contrast, Maryland district judge Roszel Cathcart Thomsen, hearing a bench trial of an man accused of transporting obscene materials across state lines, rejected his argument that the search of his vehicle which produced the two movies at issue had been unconstitutional under Quantity of Books. Thomsen distinguished the two cases with two factors: the Maryland one had involved materials stored in a vehicle rather than a warehouse, and, in it, the defendant was seeking merely to suppress them as evidence rather than contesting a forfeiture.[19]
In 1984, the First Circuit overturned a conviction on the same offense. The defendant there had been arrested and the materials seized on a magistrate's order mentioning only "obscene materials" after federal agents followed him from Boston to Providence. Bailey Aldrich wrote that Marcus as well as Quantity of Books required that warrants for such cases be highly particular and specific as to the material subject to it. "No less a standard could be faithful to First Amendment freedoms" he wrote.[20] Stephen Breyer, later appointed to the Supreme Court himself, dissented. He argued that "it is difficult, if not impossible, given the nature of obscenity and the limitations of language, to write a more specific definition of yet unseen hardcore pornography ... Such language is inevitable if seizures of materials that the magistrate cannot designate by name are ever permissible."[21]
See also
- List of United States Supreme Court cases by the Warren Court
- List of United States Supreme Court cases involving the First Amendment
References
- ^ United States v. One Book Called Ulysses, 5 F.Supp. 182 (S.D.N.Y., 1933).
- ^ United States v. One Book Entitled Ulysses, by James Joyce, 72 F.2d 705 (2nd Cir., 1934)
- ^ Roth v. United States, 354 U.S. 476 (1957).
- ^ Marcus v. Search Warrant, 367 U.S. 717 (1961).
- ^ Brennan, J.
- ^ Kingsley Books Inc. v. Brown, 354 U.S. 436 (1957).
- ^ Books, 378 U.S. at 210.
- ^ Books, 378 U.S. at 211–13.
- ^ Quantity of Books, 378 U.S. at 213–14, Black, J., concurring.
- ^ Jacobellis v. Ohio, 378 U.S. 184, 197, (1964), Stewart, J., concurring.
- ^ Quantity of Books, 378 U.S. at 214–15, Stewart, J., concurring.
- ^ Quantity of Books, 378 U.S. at 215, Harlan, J., dissenting.
- ^ Quantity of Books, 378 U.S. at 219–21.
- ^ Quantity of Books, 378 U.S. at 222–23.
- ^ Quantity of Books, 378 U.S. at 224–25.
- ^ a b A Quantity of Copies of Books v. Kansas, 388 U.S. 452 (1967).
- ^ Freedman v. Maryland,380 U.S. 51, 58 (1965), Brennan, J.
- ^ United States v. Brown, 274 F.Supp. 561, 585. (S.D.N.Y., 1967).
- ^ United States v. Apple, 305 F.Supp. 330, 333, (D. Md., 1968).
- ^ United States v. Guarino 729 F.2d 864, 867, (1st Cir., 1984).
- ^ Guarino, 729 F.2d at 872.
External links
- Text of Quantity of Books v. Kansas, 378 U.S. 205 (1964) is available from: Findlaw Google Scholar Justia Library of Congress OpenJurist Oyez (oral argument audio)