Kingsley Books v. Brown

354 U.S. 436

Case Year: 1957

Case Ruling: 5-4, Affirmed

Opinion Justice: Frankfurter

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Burton, Clark, Harlan, Whittaker


1st Concurring Opinion



1st Dissenting Opinion

Author: Douglas

Joiner(s): Black, Brennan, Warren

2nd Concurring Opinion



2nd Dissenting Opinion

Author: Brennan


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In Near v. Minnesota (1931) the Court ruled that prior restraint generally was incompatible with First Amendment freedoms. However, the justices also noted exceptions to this principle, one of which pertained to publications "that threatened public decency." This cited exception has encouraged government at all levels to impose certain forms of prior censorship as part of the battle against obscenity. Frequently, these attempts provoke legal challenge.

The first battle over this type of regulation occurred in Kingsley Books v. Brown (1957). The dispute began when New York State charged Kingsley Books with selling obscene materials, compiled as Nights of Horror. Under New York law, the state could request a temporary injunction blocking the sale of such materials after publication, but before a trial judge determined whether the material was legally obscene. The statute further required that the determination be made promptly. New York obtained an injunction against Kingsley Books, and the company appealed, arguing that the law amounted to prior restraint.



... In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that "the primary requirements of decency may be enforced against obscene publications."... And so our starting point is that New York can constitutionally convict appellants of keeping for sale the booklets incontestably found to be obscene... The immediate problem then is whether New York can adopt as an auxiliary means of dealing with such obscene merchandising the procedure of [the law]....

... [T]he difference between Near v. Minnesota and this case is glaring in fact. The two cases are no less glaringly different when judged by the appropriate criteria of constitutional law. Minnesota empowered its courts to enjoin the dissemination of future issues of a publication because its past issues had been found offensive. In the language of Mr. Chief Justice Hughes, "This is of the essence of censorship." As such, it was found unconstitutional. This was enough to condemn the statute wholly apart from the fact that the proceeding in Near involved not obscenity but matters deemed to be derogatory to a public officer. Unlike Near, [the law here] 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



My views on the right of a State to protect its people against the purveyance of obscenity were expressed in Alberts v. California, also decided today. Here we have an entirely different situation. 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.

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.

It is the manner of use that should determine obscenity. It is the conduct of the individual that should be judged, not the quality of art or literature. To do otherwise is to impose a prior restraint and hence to violate the Constitution. Certainly in the absence of a prior judicial determination of illegal use, books, pictures and other objects of expression should not be destroyed. It savors too much of book burning. I would reverse.


... [T]he provision for an injunction ... gives the State the paralyzing power of a censor. A decree can issue ex parte--without a hearing and without any ruling or finding on the issue of obscenity. This provision is defended on the ground that it is only a little encroachment, that a hearing must be promptly given and a finding of obscenity promptly made. But every publisher knows what awful effect a decree issued in secret can have. We tread here on First Amendment grounds. And nothing is more devastating to the rights that it guarantees than the power to restrain publication before even a hearing is held. This is prior restraint and censorship at its worst...

I would reverse this judgment and direct the restraining order to be dissolved.


... In Alberts v. California and Roth v. United States, decided today, the Court held to be constitutional the following standard for judging obscenity--whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The statutes there involved allowed a jury trial of right, and we did not reach the question whether the safeguards necessary for securing the freedoms of speech and press for material not obscene included a jury determination of obscenity.

The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person. Jury trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an appraisal of material according to the average person's application of contemporary community standards. A statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedoms of speech and press for material which is not obscene. Of course, as with jury questions generally, the trial judge must initially determine that there is a jury question, i.e., that reasonable men may differ whether the material is obscene.

I would reverse the judgment and direct the restraining order to be dissolved.