Kingsley Books, Inc. v. Brown

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Kingsley Books, Inc. v. Brown
Seal of the United States Supreme Court.svg
Argued April 22, 1957
Decided June 24, 1957
Full case nameKingsley Books, Inc. v. Brown
Citations354 U.S. 436 ( more )
77 S. Ct. 1325; 1 L. Ed. 2d 1469
Case history
PriorAppeal from the Court of Appeals of New York
Holding
A state injunction against distribution of material designated as "obscene" does not violate freedom of speech and press protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment.
Court membership
Chief Justice
Earl Warren
Associate Justices
Hugo Black  · Felix Frankfurter
William O. Douglas  · Harold H. Burton
Tom C. Clark  · John M. Harlan II
William J. Brennan Jr.  · Charles E. Whittaker
Case opinions
MajorityFrankfurter, joined by Burton, Clark, Harlan, Whittaker
DissentWarren
DissentDouglas, joined by Black
DissentBrennan
Laws applied
U.S. Const. amend. I, XIV

Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957), was a Supreme Court case that addressed issues of obscenity, free speech, and due process. The case stemmed from the confiscation and destruction of books from a New York City bookstore. The court's determination was that:

Contents

A state injunction against distribution of material designated as "obscene" does not violate freedom of speech and press protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment.

Background

Kingsley Books was an adult bookstore that was known for selling erotic material including graphic comic book style material, among which a fetish series entitled Nights of Horror . [1] That particular series garnered public attention in 1954, when it was mentioned during the trial of the Brooklyn Thrill Killers gang : psychiatrist Fredric Wertham had used the book series as evidence, claiming that the gang's leader had become a criminal because he read pornographic comic books. [2] City officials in New York City led by Peter Campbell Brown made the decision to file an injunction against Kingsley Books to both destroy any existing copies of the material but to also enjoin the future sale of the books under statute § 22-a of the New York Code. [3] This statute allowed for officials to prevent the distribution of "lewd or obscene materials" although the action taken was actually civil and not criminal. [3] "A complaint dated September 10, 1954 charged appellants with displaying for sale paper-covered obscene booklets, fourteen of which were annexed under the general title of "Nights of Horror." The complaint requested that appellants be enjoined from further distribution of the booklets, that they be required to surrender to the sheriff for destruction all copies in their possession, and, upon failure to do so, that the sheriff be commanded to seize and destroy those copies". [3] The fact that the sheriff was responsible for handling this civil action was partly why the case had issues with due process. Kingsley failed to contest the filing and a judge at trial ruled that the books were indeed obscene. The judge failed to ban distribution of future issues of the series as he found that such an injunction would violate the constitutional protections against free speech, and specifically prior restraint. [4] The ruling was appealed and eventually the case went to the Supreme Court of the United States.

Case Issues

The primary issue surrounding the case was the First Amendment right to free speech, and obscenity. The central issue surrounding the case was: Does imposing an injunction on the sale of obscene books and destroying the obscene material violate a bookseller's rights under the First Amendment as a prior restraint? Additionally there were minor questions related to the Fourteenth Amendment and due process that were also brought before the court. [4]

At no point in the appeal was there a challenge to whether the book in question was actually obscene, rather the challenge was whether the statutes themselves were actually constitutional. [5]

Arguments

The case was presented to the court on April 22, 1957. Emanuel Redford represented Kingsley and Seymour B. Quel represented Brown and New York. The ACLU and the NYCLU provided briefs on behalf of Kingsley. The Attorney General Louis Lefkowitz and the assistant Attorney General Ruth K. Toch wrote briefs on behalf of Brown and New York. [4] The members presiding over the Supreme Court were Chief Justice Earl Warren, Justice Felix Frankfurter, Justice William Douglas, Justice Hugo Black, Justice William Brennan, Justice John Marshall Harlan, Justice Charles Whittaker, Justice Harold Burton, and Justice Tom Clark.

Decision

The Court reached a decision on June 24, 1957. The court ruled in favor of the state in a 5–4 vote. The court's main contention was based on the civil nature of the statute: “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.'” [4] Justice Frankfurter wrote the majority opinion on the case. The court ruled that all of the procedures complied with the rules for due process ending the arguments on the Fourteenth Amendment. The major ruling, however, was the continuing adherence to the thought that the First Amendment right to free speech does not extend to obscene speech or material. [5]

Both Justices Warren and Douglas wrote dissenting opinions on the case. Justice Warren felt that the majority opinion was incorrect because this was a civil and not criminal case. He wrote: “This is not a criminal obscenity case. Nor is it a case ordering the destruction of materials disseminated by a person who has been convicted of an offense for doing so, as would be authorized under provisions in the laws of New York and other States. It is a case wherein the New York police, under a different state statute, located books which, in their opinion, were unfit for public use because of obscenity and then obtained a court order for their condemnation and destruction.

Warren, dissenting:

"The majority opinion sanctions this proceeding. I would not. Unlike the criminal cases decided today, this New York law places the book on trial. There is totally lacking any standard in the statute for judging the book in context. The personal element basic to the criminal laws is entirely absent. In my judgment, the same object may have wholly different impact depending upon the setting in which it is placed. Under this statute, the setting is irrelevant." [5]

The ramifications of the ruling being upheld left Kingsley Books forced to answer and pay for the original charges.

Significance

The outcome of the cases led to a hard line drawn on civil liberties as it pertained to free speech and adult content. These rulings held up over many years and set the various adult content industries back for quite some time, limiting the type, amount and variety of adult content that was readily available to consumers. Although the court didn't actually have to rule on whether or not the book was actually obscene was due to it not being contested, an issue which would allow for other cases to question what actually constitutes obscene in future cases.

This case did however empower the states to regulate what was and wasn't obscene as long as it was done in a manner that allowed the content to actually be produced and evaluated first. “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”. [4]

See also

Related Research Articles

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the US Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value". It is now referred to as the three-prong standard or the Miller test.

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), was a landmark decision of the US Supreme Court unanimously ruling that anti-indecency provisions of the 1996 Communications Decency Act (CDA) violated the First Amendment's guarantee of freedom of speech. Two Justices concurred in part and dissented in part to the decision. This was the first major Supreme Court ruling on the regulation of materials distributed via the Internet.

Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark decision of the US Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.

Stanley v. Georgia, 394 U.S. 557 (1969), was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law, in the form of mere possession of obscene materials.

The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin (1868). At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books. The court held that all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.

Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), was a United States Supreme Court case involving the American Civil Liberties Union and the United States government regarding the Child Online Protection Act (COPA). The unconstitutionality of the law was ultimately upheld by the United States Court of Appeals for the Third Circuit, while earlier injunctions against the law by that same court were at first dismissed by but later upheld by the Supreme Court. Ashcroft v. Free Speech Coalition (2002) dealt with a similar law, the Child Pornography Prevention Act of 1996 (CPPA).

MANual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), is a decision by the United States Supreme Court which held that magazines consisting largely of photographs of nude or near-nude male models are not obscene within the meaning of 18 U.S.C. § 1461. It was the first case in which the Court engaged in plenary review of a Post Office Department order holding obscene matter "nonmailable."

An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. The word can be used to indicate a strong moral repugnance, in expressions such as "obscene profits" or "the obscenity of war". As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity.

<i>Nitke v. Gonzales</i>

Nitke v. Gonzalez, 413 F.Supp.2d 262 was a United States District Court for the Southern District of New York case regarding obscene materials published online. The plaintiff challenged the constitutionality of the obscenity provision of the Communications Decency Act (CDA). She claimed that it was overbroad when applied in the context of the Internet because certain contents deemed lawful in some communities and unlawful in others will be restricted due to the open access of the Internet. The plaintiff also sought a permanent injunction against the enforcement of the obscenity provision of the CDA. The court concluded that insufficient evidence was presented to show there was substantial variation in community standards, as applied in the "Miller test", and to show how much protected speech would actually be impaired because of these differences. The relief sought was denied, and the court ruled for the defendant. The Supreme Court subsequently affirmed this ruling without comment.

<i>State v. Henry</i>

State v. Henry was a 1987 decision of the Oregon Supreme Court which held that the Oregon state law that criminalized obscenity was unconstitutional because it violated the free speech provision of the Oregon Constitution. The ruling made Oregon the first to abolish the offense of obscenity in its state law, although obscenity remains a federal offense.

United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), is a United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material. A 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment as long as the government began forfeiture proceedings within 14 days of the seizure.

United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.

Quantity of Books v. Kansas, 378 U.S. 205 (1973), 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 it reversed a Kansas Supreme Court decision that upheld the seizure.

Marcus v. Search Warrant, 367 U.S. 717 (1961), 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. The Court unanimously overturned a Missouri Supreme Court decision upholding the forfeiture of hundreds of magazines confiscated from a Kansas City wholesaler. It held that both Missouri's procedures for the seizure of allegedly obscene material and the execution of the warrant itself violated the Fourth and Fourteenth amendments' prohibitions on search and seizure without due process. Those violations, in turn, threatened the rights protected by the First Amendment.

Smith v. California, 361 U.S. 147 (1959), was a U.S. Supreme Court case upholding the freedom of the press. The decision deemed unconstitutional a city ordinance that made one in possession of obscene books criminally liable because it did not require proof that one had knowledge of the book’s content, and thus violated the freedom of the press guaranteed in the First Amendment. Smith v. California continued the Supreme Court precedent of ruling that questions of freedom of expression were protected by the Due Process clause of the Fourteenth Amendment from invasion by state action. It also established that in order for one to be criminally liable for possession of obscene material, there must be proof of one’s knowledge of the material.

United States obscenity law deals with the regulation or suppression of what is considered obscenity. In the United States, discussion of obscenity typically relates to pornography, as well as issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. The States have a direct interest in public morality and have responsibility in relation to criminal law matters, including the punishment for the production and sale of obscene materials. State laws operate only within the jurisdiction of each state, and there are a wide differences in such laws. The federal government is involved in the issue indirectly, by making it an offense to distribute obscene materials through the post, to broadcast them, as well as in relation to importation of such materials.

Nights of Horror Fetish comic book series by Joe Shuster

Nights of Horror is an American series of fetish comic books, created in 1954 by publisher Malcla, drawn by comic artist Joe Shuster, who is also one of the original creators of Superman. The comic stories were written by an author under the pseudonym Clancy, who also used other pseudonyms for different issues of the books. The stories are based on situations of BDSM, bondage, torture, and sexual slavery, featuring both men and women as the tormentors and victims. The series was important in the conviction of Jack Koslow in 1954, during the trial of the Brooklyn Thrill Killers. The books themselves were seized and banned first by New York City, then by the State of New York for violating obscenity laws, and the case went to the Supreme Court of the United States. The Court determined that the ban was not in violation of First Amendment Rights, and upheld New York's request for destroying copies of Nights of Horror. Shuster was never named as the illustrator until Gerard Jones published the information in 2004.

Heller v. New York, 413 U.S. 483 (1973), was a United States Supreme Court decision which upheld that states could make laws limiting the distribution of obscene material, provided that these laws were consistent with the Miller test for obscene material established by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). Heller was initially convicted for showing a sexually explicit film in the movie theater which he owned, under New York Penal Law § 235.0 which stated that and individual “is guilty of obscenity when, knowing its content and character, he 1. Promotes, or possesses with intent to promote, any obscene material; or 2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity."

Rabe v. Washington, 405 U.S. 313 (1972), was a decision by the United States Supreme Court involving the application of obscenity laws and criminal procedure to the states. On 29 August 1968, William Rabe, the manager of a drive-in movie theater in Richland, Washington, was arrested on obscenity charges for showing the film Carmen, Baby. Due to First Amendment concerns, the local court convicted Rabe not on the basis that the film as a whole was obscene, but that exhibiting it in a drive-in theater was. The Supreme Court reversed the conviction holding that the citizens of Washington State had no notice under the Sixth Amendment that the place where a film was shown was an element of the offense.

Ginzburg v. United States, 383 U.S. 463 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to Federal obscenity laws. One of a trio of cases, Ginzburg was part of the Supreme Court's attempt to refine the definitions of obscenity after the landmark 1957 case Roth v. United States.

References

  1. ↑ "Kingsley Books, Inc. v. Brown - Case Brief". Quimbee. Archived from the original on 2016-11-21. Retrieved 2016-11-16.
  2. ↑ The Incredible True Story of Joe Shuster’s NIGHTS OF HORROR, Comic book legal defense, October 3, 2012
  3. 1 2 3 "Kingsley Books, Inc. v. Brown". Oyez . Chicago-Kent College of Law. Archived from the original on 2016-11-21. Retrieved 2016-11-16.
  4. 1 2 3 4 5 "Kingsley Books, Inc. v. Brown - ACLU Pros & Cons - ProCon.org". aclu.procon.org. Archived from the original on 2016-11-20. Retrieved 2016-11-16.
  5. 1 2 3 Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957).
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