Parties: A Quantity of Copies of Books v. Kansas
Date: 1964-06-22
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Paragraph: 8 - 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 onobscene books.
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Paragraph: 12 - The Kansas courts may have been right to rely upon the Court's Roth holding in ordering these books burned or otherwise destroyed. For reasons stated in the Roth case in a dissent by MR. JUSTICE DOUBLAS, 354 U.S., at 508, 77 S.Ct., at 1321, in which I joined, I think the Roth case was wrongly decided. It is my belief, as stated in that dissent by MR. JUSTICE DOUGLAS, in my concurring opinions in Smith v. California, 361 U.S. 147, 155, 80 S.Ct. 215, 219, 4 L.Ed.2d 205, and Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 690, 79 S.Ct. 1362, 1366, 3 L.Ed.2d 1512, and in my dissent in Beauharnais v. Illinois, 343 U.S. 250, 267, 72 S.Ct. 725, 736, 96 L.Ed. 919, which MR. JUSTICE DOUGLAS joined, that 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.'
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Paragraph: 30 - In the typical censorship situation material is brought as a matter of course before some administrative authority, who then decides on its propriety. This means that the State establishes an administrative structure whereby all writings are reviewed before publication. By contrast, if the State uses its penal system to punish expression outside permissible bounds, the State does not comprehensively review any form of expression; it merely considers after the event utterances it has reason to suppose may be prohibited. The breadth of its review of expression is therefore much narrower and the danger that protected expression will be repressed is less. The operation of the Kansas statute resembles the operation of a penal rather than a 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.
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Paragraph: 33 - Any system of censorship, injunction, or seizure may of course to some extent serve to trammel, by delaying distribution or otherwise, freedom of expression; yet so may the threat of criminal prosecution, as this Court noted in Kingsley Books. The bringing of a criminal charge may result in a cessation of distribution during litigation, since even an accused relatively confident of the unlikelihood or impermissibility of conviction may well refuse to take the added risk of further criminal penalties that might obtain if he guesses wrong and continues to disseminate the questionable materials. More fundamentally, the delay argument seems artificial in the context of this case and in the area of obscenity generally. Both the incentive for officials to promote delay and the adverse consequences of delay are considerably less in this area than in the field of political and social expression. If controversial political writings attack those in power, government officials may benefit from suppression although society may suffer. In the area of obscenity, there is less chance that decision-makers will have interests which may affect their estimate of what is constitutionally protected and what is not.
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Paragraph: 7 - N52* 'For the use of these warrants implicates questions whether the procedures leading to their issuance and surrounding their execution were adequate to avoid suppression of constitutionally protected publications. '* * * (T)he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. * * * The separation of legitimate from illegitimate speech calls for * * * sensitive tools * * *.' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible consequences for constitutionally protected speech.'
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