REDRUP v. NEW YORK.
No. 3.
Argued October 10, 1966.
Decided May 8, 1967.
Sam Bosenwein argued the cause for petitioner in No. 3. With him on the briefs were Stanley Fleishman and Osmond K. Fraenkel. Mr. Fleishman argued the cause and filed briefs for petitioner in No. 16. Emanuel Redfield argued the cause and filed briefs for appellants in No. 50.
H. Richard Uviller argued the cause for respondent in No. 3. With him on the brief were Frank S. Hogan and Alan F. Scribner. John B. Browning, Assistant Attorney General of Kentucky, argued the cause for respondent in No. 16. With him on the brief was Robert Matthews, Attorney General. Fletcher Jackson, Assistant Attorney General of Arkansas, argued the cause for appellee in No. 50. With him on the brief were Bruce Bennett, Attorney General, H. Clcy Robinson, Assistant Attorney General, and Jack L. Lessenberry.
Morris B. Abram and Jay Greenfield filed briefs for the Council for Periodical Distributors Associations, Inc., as amicus curiae, urging reversal in all three cases. Horace S. Manges filed a brief for American Book Publishers Council, Inc., as amicus curiae, urging reversal in No: 50.
Charles H. Keating, Jr., and James J. Clancy filed briefs for Citizens for Decent Literature, Inc., as amicus curiae, urging affirmance in Nos. 3 and 16.
Together with No. 16, Austin v. Kentucky, on certiorari to the Circuit Court of McCracken County, Kentucky, argued on October 10-11, 1966, and No. 50, Gent et al. v. Arkansas, on appeal from the Supreme Court of Arkansas, argued October 11, 1966.
Per Curiam.
These three cases arise from a recurring conflict — the conflict between asserted state power to suppress the distribution of books and .magazines through criminal or civil proceedings, and the guarantees of the First and Fourteenth Amendments of the United States Constitution.
I.
In No. 3, Redrup v. New York, the petitioner was a clerk at. a New York City newsstand. A plainclothes patrolman approached the newsstand, saw two paperback books on a -rack — Lust Pool, and Shame Agent — and asked for them by name. . The petitioner handed him the books and collected the price of $1.65. As a result of this transaction, the petitioner was charged in the New York City Criminal Court with violating a state criminal law. He was convicted, and the conviction was affirmed on appeal.
In No. 16, Austin v. Kentucky, the petitioner owned and operated á retail bookstore and newsstand in Paducah, Kentucky. A woman resident of Paducah purchased two magazines from a salesgirl in the. petitioner’s store,.after asking for them by name — High Heels, and Spree. As a result of this transaction the petitioner stands convicted in the Kentucky courts for violating a criminal law of that State.
In No. 50, Gent v. Arkansas, the prosecuting attorney of the Eleventh Judicial District of Arkansas brought a civil proceeding under a state statute, to have certain issues of various magazines declared obscene, to enjoin their distribution and-to obtain a judgment ordering their surrender and destruction. The magazines proceeded against were: Gent, Swank, Bachelor, Modern Man, Cavalcade, Gentleman, Ace, and Sir. The County Chancery Court entered the requested judgment after a trial with an advisory jury, and the Supreme Court of Arkansas affirmed, with minor modifications.
In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U. S. 158; cf. Butler v. Michigan, 352 U. S. 380. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U. S. 622; Public Utilities Comm’n v. Pollak, 343 U. S. 451. And in none was there evidence of the sort of “pandering” which the Court found significant in Ginzburg v. United States, 383 U. S. 463.
II.
The Court originally limited review in these cases to certain particularized questions, upon the hypothesis that the material involved in each case was of a character described as “obscene in the constitutional sense” in Memoirs v. Massachusetts, 383 U. S. 413, 418. But we have concluded that the hypothesis upon which the Court originally proceeded was invalid, and accordingly that the cases can and should be decided upon a common and controlling fundamental constitutional basis, without prejudice to the questions upon which review was originally granted. We have concluded, in short, that the distribution of the publications in each of these cases is protected by the First and Fourteenth Amendments from governmental suppression, whether criminal or civil, in personam or in rem.
Two members of the Court have consistently adhered to the view that a State is utterly without power to suppress, control, or punish the distribution of any writings or pictures upon the ground of their “obscenity.” A third has held to the opinion that a State’s power in this area is narrowly limited to a distinct and clearly identifiable class of material. Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in’sex; (b).the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value/’ emphasizing that the “three elements must coalesce,” and that no such material can “be proscribed unless it i§ found to be utterly without redeeming social value.” Memoirs v. Massachusetts, 383 U. S. 413, 418-419. Another Justice has not viewed the “social value” element as an independent factor in the judgment of obscenity. Id., at 460-462 (dissenting opinion).
Whichever of these constitutional views is brought to bear Upon the cases before us, it is clear that the judgments cannot stand. Accordingly, the judgment in each casé is reversed.
T, . , , It is so ordered.
N. Y. Pen. Law § 1141 (1).
Ky. Rev. Stat. § 436.100. The Kentucky Court of Appeals denied plenary review of the petitioner’s conviction, the Chief Justice dissenting. 386 S. W. 2d 270.
Ark. Stat. Ann. §§ 41-2713 to 41-2728.
239 Ark. 474, 393 S. W. 2d 219.
Redrup v. New York, 384 U. S. 916; Austin v. Kentucky, 384 U. S. 916; Gent v. Arkansas, 384 U. S. 937.
In each cf the cases before us, the contention that the publications involved were basically protected by the First and Fourteenth Amendments was timely but unsuccessfully asserted in the state proceedings. In each of these cases, this contention was properly and explicitly presented for review here.
See Ginzburg v. United States, 383 U. S. 463, 476, 482 (dissenting opinions); Jacobellis v. Ohio, 378 U. S. 184, 196 (concurring opinion); Roth v. United States, 354 U. S. 476, 508 (dissenting opinion).
See Ginzburg v. United States, 383 U. S. 463, 499, and n. 3 (dissenting opinion). See also Magrath, The Obscenity Cases: Grapes of Roth, 1966 Supreme Court Review 7, 69-77.
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