Quantity of Books v. Kansas
Encyclopedia
Quantity of Books v. Kansas, is an in rem United States Supreme Court decision on First Amendment
questions relating to the forfeiture
of obscene material. By a 7–2 margin, the Court held that a seizure
of the books was unconstitutional since no hearing had been held on whether the books were obscene, and reversed a Kansas Supreme Court
holding that it was.
The case arose several years earlier when police in Junction City, Kansas
, raided an adult bookstore. The state's Attorney General, William M. Ferguson, had previously filed an information with the county court listing 51 titles published by Nightstand Books as allegedly obscene; at the bookstore 31 of those titles found, and 1,175 were seized. These procedures were believed to be in keeping with the Supreme Court's recent Marcus v. Search Warrant
decision, which held that some sort of judicial review was necessary to determine if seized material was obscene prior to seizure.
Justice William Brennan wrote for a four-justice plurality
that considered the case strictly on procedural grounds, without reaching the question of the books' obscenity. It could, he said, operate as a form of prior restraint
. In one of two separate concurrences
, Hugo Black
reaffirmed his earlier blanket opposition to all legal suppression of obscenity, in which was joined by William O. Douglas
. Potter Stewart
said the books in question were not hardcore pornography
, the only material that he could consider holding to be unprotected by the First Amendment in Quantity of Books' s companion case, Jacobellis v. Ohio
(where he had also defined it with his oft-quoted line "I know it when I see it
").
In dissent
, John Marshall Harlan II
wrote for himself and Tom Clark
in faulting Brennan's application of the precedent
s 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 what it had decided was an important state interest.
's guarantees of free speech and free expression barred them.
That began to change during the 20th century, in response to social and cultural trends of greater tolerance for literature and art that depicted such proscribed material. In the landmark 1933 case United States v. One Book Called Ulysses
, Judge John M. Woolsey
of the Southern District of New York
ruled that James Joyce
's novel Ulysses
, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from the United States purely on the basis of its language and content without considering its literary merit. Second Circuit
judges Learned
and Augustus Hand
upheld Woolsey on appeal, and the book, considered a masterpiece of modernist literature
, could be freely published and sold.
Censorship
battles continued in the next decades over other works of literature and art, such as Lady Chatterley's Lover, expanding to include films. In 1957 the Supreme Court finally considered a case arising from an obscenity prosecution, Roth v. United States
. William Brennan
wrote for a 6–3 majority that upheld the criminal conviction but abandoned the century-old Hicklin test in favor of a narrower definition of obscenity. It did not settle the issue, however, and the Warren Court
had to hear more cases arising from subsequent prosecutions in the next decade, during which the Sexual Revolution
began a more direct challenge to social mores on the issue.
Some of those cases did not implicate the issue of obscenity itself, but the procedures 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.
In 1961, shortly after Marcus, William M. Ferguson, Kansas's Attorney General, filed an information in Geary County
district court naming 59 titles, all bearing the subhead, "This is an original Night-Stand Book", a level of detail greater than that required by Kansas's anti-obscenity statutes. He included as evidence copies of seven titles, six of which had paper bookmarks marking the location of passages circulating in pencil that violated the law. The judge also went beyond statutory requirements, conducting a 45-minute ex parte
reading in his chambers, at the conclusion of which he agreed that the books were probably obscene under Kansas law. All these extra procedures were seen by the attorney general as necessary in light of Marcus.
The judge issued a warrant to be served by the county sheriff's office. It was strictly limited to the 59 titles named by the attorney general. On the same day deputies served the warrant at P–K News Service in Junction City
, the county seat
. They found copies of 31 of the listed books offered for sale, and seized 1,715 copies in all. No employees or customers were arrested.
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 forfeiture
action, held under in rem jurisdiction with the seized books themselves as defendants. P–K moved to the information and the warrant quashed on the grounds that, since they had not been afforded a hearing on the obscenity question prior to the seizure, their constitutional rights had been violated. They argued that, as it was, the seizure was "a prior restraint on the circulation and dissemination of books".
The motion was denied, and the court ordered the books destroyed. The bookstore appealed to the Kansas Supreme Court
, which upheld the order. The U.S. Supreme Court granted certiorari
in 1963.
s 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 the term. William Brennan wrote for four of the seven justices in the majority, including Chief Justice
Earl Warren
. Hugo Black
wrote a separate concurrence
, joined by William O. Douglas
, and Potter Stewart
wrote briefly for himself. John Marshall Harlan II
wrote for himself and fellow dissenter
Tom Clark
.
against the sale of allegedly obscene material. Missouri officials in Marcus had argued that decision gave them the authority to take the action they did, but the Court had rejected it. Nor would it apply here. "A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books."
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 contraband, and that, consequently, the standards governing searches and seizures of allegedly obscene books should not differ from those applied with respect to narcotics, gambling paraphernalia and other contraband." The mere act of holding an adversary hearing did not make the seizure constitutional, since the relevant fact was not that P–K was allowed to contest the seizure but that it was not allowed to do before the seizure. "For if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books."
, Quantity of Books' s companion case, where he had said that only "hardcore pornography
", which he memorably declined to define beyond "I know it when I see it
", was beyond First Amendment protection. In this case, "the books here involved were not hard core pornography. Therefore, I think Kansas could not by any procedure constitutionally suppress them, any more than Kansas could constitutionally make their sale or distribution a criminal act."
The instant case, 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."
Brennan had been incorrect, Harlan stated, to consider the Kansas statute as effectively constituting prior restraint
merely due to the lack of a prior adversary hearing.
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 put the burden of proof on the state in a full judicial hearing which was open to the public. "Finally, the federal system makes it highly unlikely that the citizenry of one State will be unaware of the kind of material that is being restricted by its own government when there is great divergence among the policies of the various States and a high degree of communication across state lines."
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:
again. This time it merely reversed the decision without setting the case for argument. A one-sentence per curiam opinion cited another recent per curiam holding, Redrup v. New York
where it was held, along with similar cases from other states, that there was a need for a common standard before cases like these could be decided.
Six justices supported the per curiam opinion. Warren agreed with the certiorari grant but would have held the case for oral argument. Clark said he would have granted the petition but affirmed the judgement. Harlan indicated likewise and referenced his opinions in Roth and Memoirs v. Massachusetts, decided in the interim.
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. 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. 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.
In 1984 the First Circuit
overturned a conviction on the same offense. The defendant 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. 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."
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
questions relating to the forfeiture
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
of obscene material. By a 7–2 margin, the Court held that a seizure
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
of the books was unconstitutional since no hearing had been held on whether the books were obscene, and reversed a Kansas Supreme Court
Kansas Supreme Court
The Kansas Supreme Court is the highest judicial authority in the state of Kansas. Composed of seven justices, led by Chief Justice Lawton Nuss, the Court supervises the legal profession, administers over the judicial branch, and serves as the state court of last resort in the appeals...
holding that it was.
The case arose several years earlier when police in Junction City, Kansas
Junction City, Kansas
Junction City is a city in and the county seat of Geary County, Kansas, United States. As of the 2010 census, the city population was 23,353. Fort Riley, a major U.S. Army post, is nearby...
, raided an adult bookstore. The state's Attorney General, William M. Ferguson, had previously filed an information with the county court listing 51 titles published by Nightstand Books as allegedly obscene; at the bookstore 31 of those titles found, and 1,175 were seized. These procedures were believed to be in keeping with the Supreme Court's recent Marcus v. Search Warrant
Marcus v. Search Warrant
Marcus v. Search Warrant, , full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials...
decision, which held that some sort of judicial review was necessary to determine if seized material was obscene prior to seizure.
Justice William Brennan wrote for a four-justice plurality
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
that considered the case strictly on procedural grounds, without reaching the question of the books' obscenity. It could, he said, operate as a form of prior restraint
Prior restraint
Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...
. In one of two separate concurrences
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
, Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
reaffirmed his earlier blanket opposition to all legal suppression of obscenity, in which was joined by William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
. Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
said the books in question were not hardcore pornography
Hardcore pornography
Hardcore pornography is a form of pornography that features explicit sexual acts. The term was coined in the second half of the 20th century to distinguish it from softcore pornography. It usually takes the form of photographs, often displayed in magazines or on the Internet, or films. It can also...
, the only material that he could consider holding to be unprotected by the First Amendment in Quantity of Books
Jacobellis v. Ohio
Jacobellis v. Ohio, , was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of a French film called The Lovers which the state had deemed obscene.Nico Jacobellis, manager of the Heights Art...
(where he had also defined it with his oft-quoted line "I know it when I see it
I know it when I see it
The phrase "I know it when I see it" is a colloquial expression within the United States by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. The phrase was famously used by United States Supreme Court...
").
In dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, John Marshall Harlan II
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
wrote for himself and Tom Clark
Tom C. Clark
Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...
in faulting Brennan's application of the precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
s 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 what it had decided was an important state interest.
Background
For most of American history, literary and artistic works depicting or even alluding to sexual acts and topics, or using profane language, had been banned from publication or distribution, often by both confiscation of the works themselves and criminal prosecution of all individuals involved, following the traditions of English common law on obscenity and statutes at the state and federal levels. At the same time demand for such materials continued and the laws were often widely flouted. No defendant or claimant in such an action had ever persuaded a court to entertain the argument that the First AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
's guarantees of free speech and free expression barred them.
That began to change during the 20th century, in response to social and cultural trends of greater tolerance for literature and art that depicted such proscribed material. In the landmark 1933 case United States v. One Book Called Ulysses
United States v. One Book Called Ulysses
United States v. One Book Called Ulysses was a 1933 case in the United States District Court for the Southern District of New York dealing with freedom of expression. At issue was whether James Joyce's novel Ulysses was obscene. In deciding it was not, Judge John M...
, Judge John M. Woolsey
John M. Woolsey
John Munro Woolsey was a United States federal judge in New York City.Born in Aiken, South Carolina, Woolsey attended Phillips Academy, and received an A.B. from Yale University in 1898. He was awarded an LL.B. from Columbia Law School in 1901, where he was a founder of the Columbia Law Review...
of the Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
ruled that James Joyce
James Joyce
James Augustine Aloysius Joyce was an Irish novelist and poet, considered to be one of the most influential writers in the modernist avant-garde of the early 20th century...
's novel Ulysses
Ulysses (novel)
Ulysses is a novel by the Irish author James Joyce. It was first serialised in parts in the American journal The Little Review from March 1918 to December 1920, and then published in its entirety by Sylvia Beach on 2 February 1922, in Paris. One of the most important works of Modernist literature,...
, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from the United States purely on the basis of its language and content without considering its literary merit. Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
judges Learned
Learned Hand
Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...
and Augustus Hand
Augustus Noble Hand
Augustus Noble Hand was an American judge who served on the United States District Court for the Southern District of New York and later on the United States Court of Appeals for the Second Circuit. His most notable rulings restricted the reach of obscenity statutes in the areas of literature and...
upheld Woolsey on appeal, and the book, considered a masterpiece of modernist literature
Modernist literature
Modernist literature is sub-genre of Modernism, a predominantly European movement beginning in the early 20th century that was characterized by a self-conscious break with traditional aesthetic forms...
, could be freely published and sold.
Censorship
Censorship in the United States
In general, censorship in the United States, which involves the suppression of speech or other public communication, raises issues of freedom of speech, which is constitutionally protected by the First Amendment to the United States Constitution....
battles continued in the next decades over other works of literature and art, such as Lady Chatterley's Lover, expanding to include films. In 1957 the Supreme Court finally considered a case arising from an obscenity prosecution, Roth v. United States
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
. William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
wrote for a 6–3 majority that upheld the criminal conviction but abandoned the century-old Hicklin test in favor of a narrower definition of obscenity. It did not settle the issue, however, and the Warren Court
Warren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...
had to hear more cases arising from subsequent prosecutions in the next decade, during which the Sexual Revolution
Sexual revolution
The sexual revolution was a social movement that challenged traditional codes of behavior related to sexuality and interpersonal relationships throughout the Western world from the 1960s into the 1980s...
began a more direct challenge to social mores on the issue.
Some of those cases did not implicate the issue of obscenity itself, but the procedures used to suppress it. In 1961 the Court had heard Marcus v. Search Warrant
Marcus v. Search Warrant
Marcus v. Search Warrant, , full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials...
, in which several bookstores in Kansas City, Missouri
Kansas City, Missouri
Kansas City, Missouri is the largest city in the U.S. state of Missouri and is the anchor city of the Kansas City Metropolitan Area, the second largest metropolitan area in Missouri. It encompasses in parts of Jackson, Clay, Cass, and Platte counties...
, 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
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
and Fourteenth Amendments
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, since there were First Amendment interests at stake in obscenity prosecutions that were not present in other forfeiture cases.
Geary County, Kansas
Geary County is a county located in Northeast Kansas, in the Central United States. As of the 2010 census, the county population was 34,362. Its county seat and most populous city is Junction City. The county is named in honor of Governor John W. Geary...
district court naming 59 titles, all bearing the subhead, "This is an original Night-Stand Book", a level of detail greater than that required by Kansas's anti-obscenity statutes. He included as evidence copies of seven titles, six of which had paper bookmarks marking the location of passages circulating in pencil that violated the law. The judge also went beyond statutory requirements, conducting a 45-minute ex parte
Ex parte
Ex parte is a Latin legal term meaning "from one party" .An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. In Australian, Canadian, U.K., Indian and U.S...
reading in his chambers, at the conclusion of which he agreed that the books were probably obscene under Kansas law. All these extra procedures were seen by the attorney general as necessary in light of Marcus.
The judge issued a warrant to be served by the county sheriff's office. It was strictly limited to the 59 titles named by the attorney general. On the same day deputies served the warrant at P–K News Service in Junction City
Junction City, Kansas
Junction City is a city in and the county seat of Geary County, Kansas, United States. As of the 2010 census, the city population was 23,353. Fort Riley, a major U.S. Army post, is nearby...
, the county seat
County seat
A county seat is an administrative center, or seat of government, for a county or civil parish. The term is primarily used in the United States....
. They found copies of 31 of the listed books offered for sale, and seized 1,715 copies in all. No employees or customers were arrested.
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 forfeiture
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
action, held under in rem jurisdiction with the seized books themselves as defendants. P–K moved to the information and the warrant quashed on the grounds that, since they had not been afforded a hearing on the obscenity question prior to the seizure, their constitutional rights had been violated. They argued that, as it was, the seizure was "a prior restraint on the circulation and dissemination of books".
The motion was denied, and the court ordered the books destroyed. The bookstore appealed to the Kansas Supreme Court
Kansas Supreme Court
The Kansas Supreme Court is the highest judicial authority in the state of Kansas. Composed of seven justices, led by Chief Justice Lawton Nuss, the Court supervises the legal profession, administers over the judicial branch, and serves as the state court of last resort in the appeals...
, which upheld the order. The U.S. Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
in 1963.
Opinion of the Court
Oral argumentOral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
s 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
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
brief
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
by 19 other state attorneys general.
The Court announced its decision in late June of that year, near the end of the term. William Brennan wrote for four of the seven justices in the majority, including Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
. Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
wrote a separate concurrence
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
, joined by William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
, and Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
wrote briefly for himself. John Marshall Harlan II
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
wrote for himself and fellow dissenter
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
Tom Clark
Tom C. Clark
Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...
.
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 Kingsley Books Inc. v. Brown, a 1957 case in which a bookstore had unsuccessfully challenged a statute allowing the state to obtain a temporary injunctionInjunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
against the sale of allegedly obscene material. Missouri officials in Marcus had argued that decision gave them the authority to take the action they did, but the Court had rejected it. Nor would it apply here. "A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books."
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 contraband, and that, consequently, the standards governing searches and seizures of allegedly obscene books should not differ from those applied with respect to narcotics, gambling paraphernalia and other contraband." The mere act of holding an adversary hearing did not make the seizure constitutional, since the relevant fact was not that P–K was allowed to contest the seizure but that it was not allowed to do before the seizure. "For if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books."
Concurrences
Black wrote in his short concurrence that it was unnecessary to decide the procedural questions since, as he and 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 Fourteenth, against 'abridging the freedom of speech, or of the press.'" Stewart alluded to his concurring opinion in Jacobellis v. OhioJacobellis v. Ohio
Jacobellis v. Ohio, , was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of a French film called The Lovers which the state had deemed obscene.Nico Jacobellis, manager of the Heights Art...
, Quantity of Books
Hardcore pornography
Hardcore pornography is a form of pornography that features explicit sexual acts. The term was coined in the second half of the 20th century to distinguish it from softcore pornography. It usually takes the form of photographs, often displayed in magazines or on the Internet, or films. It can also...
", which he memorably declined to define beyond "I know it when I see it
I know it when I see it
The phrase "I know it when I see it" is a colloquial expression within the United States by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. The phrase was famously used by United States Supreme Court...
", was beyond First Amendment protection. In this case, "the books here involved were not hard core pornography. Therefore, I think Kansas could not by any procedure constitutionally suppress them, any more than Kansas could constitutionally make their sale or distribution a criminal act."
Dissent
Harlan's dissent was longer than all three of the other opinions combined. He first responded to Black, Douglas and Stewart that "[i]t is quite plain that these so-called 'novels' have 'been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner,' and that the State's criteria for judging their obscenity are rational." Then he began a longer critique of Brennan's holding that the seizure and forfeiture proceedings had been unconstitutional.The instant case, 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."
Brennan had been incorrect, Harlan stated, to consider the Kansas statute as effectively constituting prior restraint
Prior restraint
Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...
merely due to the lack of a prior adversary hearing.
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 put the burden of proof on the state in a full judicial hearing which was open to the public. "Finally, the federal system makes it highly unlikely that the citizenry of one State will be unaware of the kind of material that is being restricted by its own government when there is great divergence among the policies of the various States and a high degree of communication across state lines."
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:
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 certiorariCertiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
again. This time it merely reversed the decision without setting the case for argument. A one-sentence per curiam opinion cited another recent per curiam holding, Redrup v. New York
Redrup v. New York
Redrup v. New York, was a May 8, 1967 ruling by the Supreme Court of the United States, widely regarded as the end of American censorship of written fiction. Robert Redrup was a Times Square newsstand clerk who sold two of William Hamling's Greenleaf Classics paperback pulp sex novels, Lust Pool...
where it was held, along with similar cases from other states, that there was a need for a common standard before cases like these could be decided.
Six justices supported the per curiam opinion. Warren agreed with the certiorari grant but would have held the case for oral argument. Clark said he would have granted the petition but affirmed the judgement. Harlan indicated likewise and referenced his opinions in Roth and Memoirs v. Massachusetts, decided in the interim.
The next term, the Court would use Quantity of Books to bolster its holding against a state film-licensing system in Freedman v. Maryland
Freedman v. Maryland
Freedman v. Maryland, , is a United States Supreme Court case that ended government-operated rating boards with a decision that a rating board could only approve a film and had no power to ban a film. The ruling also concluded that a rating board must either approve a film within a reasonable time,...
, as one of several in which it had held that only an adversary hearing prior to restraint sufficed to protect First Amendment rights. Two years later, the Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
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. The next year, by contrast, Maryland district judge Roszel Cathcart Thomsen
Roszel Cathcart Thomsen
Roszel Cathcart Thomsen was a United States federal judge.Born in Baltimore, Maryland, Thomsen received a B.A. from Johns Hopkins University in 1919 and an LL.B. from the University of Maryland School of Law in 1922...
, hearing a bench trial
Bench trial
A bench trial is a trial held before a judge sitting without a jury. The term is chiefly used in common law jurisdictions to describe exceptions from jury trial, as most other legal systems do not use juries to any great extent....
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.
In 1984 the First Circuit
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
overturned a conviction on the same offense. The defendant had been arrested and the materials seized on a magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
's order mentioning only "obscene materials" after federal agents followed him from Boston to Providence. Bailey Aldrich
Bailey Aldrich
Bailey Aldrich was a judge of the United States federal courts for more than 48 years.A native of Boston, Massachusetts, Aldrich graduated from Harvard College in 1928 and Harvard Law School in 1932. He was elected a Fellow of the American Academy of Arts and Sciences in 1954. After 22 years in...
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. Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
, 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."
See also
- List of United States Supreme Court cases by the Warren Court
- List of United States Supreme Court cases involving the First Amendment