354 U.S.

436
77 S.Ct. 1325
1 L.Ed.2d 1469

KINGSLEY BOOKS, Inc., Louis Finkelstein, Doing Business as

Times Book Shop, et al., Appellants,
v.
Peter Campbell BROWN, Corporation Counsel of the City of
New York.
No. 107.
Argued April 22, 1957.
Decided June 24, 1957.

Mr. Emanuel Redfield, New York City, for appellants.

Mr. Seymour B. Quel, New York City, for appellee.
Mr. Justice FRANKFURTER delivered the opinion of the Court.

This is a proceeding under 22a of the New York Code of Criminal

Procedure (L.1941, c. 925), as amended in 1954 (L.1954, c. 702). This section
supplements the existing conventional criminal provision dealing with
pornography by authorizing the chief executive, or legal officer, of a
municipality to invoke a 'limited injunctive remedy,' under closely defined
procedural safeguards, against the sale and distribution of written and printed
matter found after due trial to be obscene, and to obtain an order for the seizure,
in default of surrender, of the condemned publications.1

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 prayed 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. The same day the appellants were ordered to show cause within four
days why they should not be enjoined pendente lite from distributing the

booklets. Appellants consented to the granting of an injunction pendente lite

and did not bring the matter to issue promptly, as was their right under
subdivision 2 of the challenged section, which provides that the persons sought
to be enjoined 'shall be entitled to a trial of the issues within one day after
joinder of issue and a decision shall be rendered by the court within two days of
the conclusion of the trial.' After the case came to trial, the judge, sitting in
equity, found that the booklets annexed to the complaint and introduced in
evidence were clearly obscenewere 'dirt for dirt's sake'; he enjoined their
further distribution and ordered their destruction. He refused to enjoin 'the sale
and distribution of later issues' on the ground that 'to rule against at volume not
offered in evidence would * * * impose an unreasonable prior restraint upon
freedom of the press.' 208 Misc. 150, 167, 142 N.Y.S.2d 735, 750.
3

Not challenging the construction of the statute or the finding of obscenity,

appellants took a direct appeal to the New York Court of Appeals, a proceeding
in which the constitutionality of the statute was the sole question open to them.
That court (one judge not sitting) found no constitutional infirmity: three judges
supported the unanimous conclusion by detailed discussion, the other three
deemed a brief disposition justified by 'ample authority.' 1 N.Y.2d 177, 189,
151 N.Y.S.2d 639, 134 N.E.2d 461, 468. A claim under the Due Process
Clause of the Fourteenth Amendment made throughout the state litigation
brought the case here on appeal. 352 U.S. 962, 77 S.Ct. 350, 1 L.Ed.2d 319.

Neither in the New York Court of Appeals, nor here, did appellants assail the
legislation insofar as it outlaws obscenity. The claim they make lies within a
very narrow compass. Their attack is upon the power of New York to employ
the remedial scheme of 22a. Authorization of an injunction pendente lite,
as part of this scheme, during the period within which the issue of obscenity
must be promptly tried and adjudicated in an adversary proceeding for which
'(a) dequate notice, judicial hearing, (and) fair determination' are assured, 208
Misc. 150, 164, 142 N.Y.S.2d 735, 747, is a safeguard against frustration of the
public interest in effectuating judicial condemnation of obscene matter. It is a
brake on the temptation to exploit a filthy business offered by the limited
hazards of piecemeal prosecutions, sale by sale, of a publication already
condemned as obscene. New York enacted this procedure on the basis of study
by a joint legislative committee. Resort to this injunctive remedy, it is claimed,
is beyond the constitutional power of New York in that it amounts to a prior
censorship of literary product and as such is violative of that 'freedom of
thought, and speech' which has been 'withdrawn by the Fourteenth Amendment
from encroachment by the states.' Palko v. State of Connecticut, 302 U.S. 319,
326327, 58 S.Ct. 149, 152153, 82 L.Ed. 288. Reliance is particularly
placed upon Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed.

1357.
5

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.' Id., 283 U.S. at page
716, 51 S.Ct. at page 631. And so our starting point is that New York can
constitutionally convict appellants of keeping for sale the booklets
incontestably found to be obscene. Roth v. United States (Alberts v. State of
California), 354 U.S. 476, 77 S.Ct. 1304. The immediate problem then is
whether New York can adopt as an auxiliary means of dealing with such
obscene merchandising the procedure of 22a.

We need not linger over the suggestion that something can be drawn out of the
Due Process Clause of the Fourteenth Amendment that restricts New York to
the criminal process in seeking to protect its people against the dissemination of
pornography. It is not for this Court thus to limit the State in resorting to
various weapons in the armory of the law. Whether proscribed conduct is to be
visited by a criminal prosecution or by a qui tam action or by an injunction or
by some or all of these remedies in combination, is a matter within the
legislature's range of choice. See Tigner v. State of Texas, 310 U.S. 141, 148,
60 S.Ct. 879, 882, 84 L.Ed. 1124. If New York chooses to subject persons who
disseminate obscene 'literature' to criminal prosecution and also to deal with
such books as deodands of old, or both, with due regard, of course, to
appropriate opportunities for the trial of the underlying issue, it is not for us to
gainsay its selection of remedies. Just as Near v. State of Minnesota, supra, one
of the landmark opinions in shaping the constitutional protection of freedom of
speech and of the press, left no doubts that 'Liberty of speech, and of the press,
is also not an absolute right,' 283 U.S. at page 708, 51 S.Ct. at page 628, it
likewise made clear that 'the protection even as to previous restraint is not
absolutely unlimited.' Id., 283 U.S. at page 716, 51 S.Ct. at page 631. To be
sure, the limitation is the exception; it is to be closely confined so as to
preclude what may fairly be deemed licensing or censorship.

The judicial angle of vision in testing the validity of a statute like 22a is
'the operation and effect of the statute in substance.' Id., 283 U.S. at page 713,
51 S.Ct. at page 630. The phrase 'prior restraint' is not a self-wielding sword.
Nor can it serve as a talismanic test. The duty of closer analysis and critical
judgment in applying the thought behind the phrase has thus been
authoritatively put by one who brings weighty learning to his support of
constitutionally protected liberties: 'What is needed,' writes Professor Paul A.
Freund, 'is a pragmatic assessment of its operation in the particular
circumstances. The generalization that prior restraint is particularly obnoxious

in civil liberties cases must yield to more particularistic analysis.' The Supreme
Court and Civil Liberties, 4 Vand.L.Rev. 533, 539.
8

Wherein does 22a differ in its effective operation from the type of statute
upheld in Alberts? Section 311 of California's Penal Code provides that 'Every
person who wilfully and lewdly * * * keeps for sale * * * any obscene * * *
book * * * is guilty of a misdemeanor * * *.' Section 1141 of New York's Penal
Law, McKinney's Consol. Laws, c. 40 is similar. One would be bold to assert
that the in terrorem effect of such statutes less restrains booksellers in the
period before the law strikes than does 22a. 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.' Warburg, Onward And Upward With The Arts,
The New Yorker, April 20, 1957, pp. 98, 101, in connection with R. v. Martin
Secker Warburg, Ltd., (1954) 2 All Eng. 683 (C.C.C.).

Criminal enforcement and the proceeding under 22a 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. The Alberts record does not show that the matter there
found to be obscene had reached the public at the time that the criminal charge
of keeping such matter for sale was lodged, while here as a matter of fact
copies of the booklets whose distribution was enjoined had been on sale for
several weeks when process was served. In each case the bookseller is put on
notice by the complaint that sale of the publication charged with obscenity in
the period before trial may subject him to penal consequences. In the one case
he may suffer fine and imprisonment for violation of the criminal statute, in the
other, for disobedience of the temporary injunction. The bookseller may of
course stand his ground and confidently believe that in any judicial proceeding
the book could not be condemned as obscene, but both modes of procedure
provide an effective deterrent against distribution prior to adjudication of the
book's contentthe threat of subsequent penalization.2

10

The method devised by New York in 22a for determining whether a

publication is obscene does not differ in essential procedural safeguards from
that provided under many state statutes making the distribution of obscene
publications a misdemeanor. For example, while the New York criminal
provision brings the State's criminal procedure into operation, a defendant is not

thereby entitled to a jury trial. In each case a judge is the conventional trier of
fact; in each, a jury may as a matter of discretion be summoned. Compare N.Y.
City Criminal Courts Act, 31, Sub. 1(c) and Sub. 4, with N.Y. Civil Practice
Act, 430. (Appellants, as a matter of fact, did not request a jury trial, they did
not attack the statute in the courts below for failure to require a jury, and they
did not bring that issue to this Court.) Of course, the Due Process Clause does
not subject the States to the necessity of having trial by jury in misdemeanor
prosecutions.
11

Nor are the consequences of a judicial condemnation for obscenity under 22

a more restrictive of freedom of expression than the result of conviction for a
misdemeanor. In Alberts, the defendant was fined $500, sentenced to sixty days
in prison, and put on probation for two years on condition that he not violate the
obscenity statute. Not only was he completely separated from society for two
months but he was also seriously restrained from trafficking in all obscene
publications for a considerable time. Appellants, on the other hand, were
enjoined from displaying for sale or distributing only the particular booklets
theretofore published and adjudged to be obscene. Thus, the restraint upon
appellants as merchants in obscenity was narrower than that imposed on
Alberts.

12

Section 22a's provision for the seizure and destruction of the instruments of
ascertained wrongdoing expresses resort to a legal remedy sanctioned by the
long history of Anglo-American law. See Holmes, The Common Law, 2426;
Van Oster v. State of Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354;
Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 510511, 41 S.Ct.
189, 190191, 65 L.Ed. 376; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38
L.Ed. 385, and see United States v. Urbuteit, 335 U.S. 355, 69 S.Ct. 112, 93
L.Ed. 61, dealing with misbranded articles under 304(a) of the Food, Drug,
and Cosmetic Act, 52 Stat. 1044, 21 U.S.C.A. 334(a). It is worth noting that
although the Alberts record does not reveal whether the publications found to
be obscene were destroyed, provision is made for that by 313 and 314 of the
California Penal Code. Similarly, 1144 of New York's Penal Law provides
for destruction of obscene matter following conviction for its dissemination.

13

It only remains to say that the difference between Near v. State of Minnesota,
supra, 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.' 283 U.S. at
page 713, 51 S.Ct. at page 630. 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, 22a 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.
14

The judgment is affirmed.

15

Affirmed.

16

Mr. Chief Justice WARREN, dissenting.

17

My views on the right of a State to protect its people against the purveyance of
obscenity were expressed in Roth v. United States (Alberts v. State of
California), 354 U.S. 476, 77 S.Ct. 1304. Here we have an entirely different
situation.

18

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.

19

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.

20

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.

21

I would reverse.

21

I would reverse.

22

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting,
announced by Mr. Justice BRENNAN.

23

There are two reasons why I think this restraining order should be dissolved.

24

First, the provision for an injunction pendente lite gives the State the paralyzing
power of a censor. A decree can issue ex partewithout 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.

25

Second, the procedure for restraining by equity decree the distribution of all the
condemned literature does violence to the First Amendment. The judge or jury
which finds the publisher guilty in New York City acts on evidence that may be
quite different from evidence before the judge or jury that finds the publisher
not guilty in Rochester. In New York City the publisher may have been selling
his tracts to juveniles, while in Rochester he may have sold to professional
people. The nature of the group among whom the tracts are distributed may
have an important bearing on the issue of guilt in any obscenity prosecution.
Yet the present statute makes one criminal conviction conclusive and
authorizes a statewide decree that subjects the distributor to the contempt
power. I think every publication is a separate offense which entitles the accused
to a separate trial. Juries or judges may differ in their opinions, community by
community, case by case. The publisher is entitled to that leeway under our
constitutional system. One is entitled to defend every utterance on its merits
and not to suffer today for what he uttered yeaterday. Free speech is not to be
regulated like diseased cattle and impure butter. The audience (in this case the
judge or the jury) that hissed yesterday may applaud today, even for the same
performance.

26

The regime approved by the Court goes far toward making the censor supreme.
It also substitutes punishment by contempt for punishment by jury trial. In both
respects it transgresses constitutional guarantees.

27

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

28

Mr. Justice BRENNAN, dissenting.

29

I believe the absence in this New York obscenity statute of a right to jury trial is
a fatal defect. Provision for jury trials in equity causes is made by 430 of the
New York Civil Practice Act,1 but only for discretionary jury trials, and
advisory verdicts, to be followed or rejected by the trial judge as he deems fit
and proper.2

30

In Roth v. United States (Alberts v. State of California), 354 U.S. 476, 77 S.Ct.
1304, the Court held to be constitutional the following standard for judging
obscenitywhether 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.

31

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.3

32

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

' 22a. Obscene prints and articles; jurisdiction. The supreme court has
jurisdiction to enjoin the sale or distribution of obscene prints and articles, as
hereinafter specified:
'1. The chief executive officer of any city, town or village or the corporation
counsel, or if there be none, the chief legal officer of any city, town, or village,
in which a person, firm or corporation sells or distributes or is about to sell or
distribute or has in his possession with intent to sell or distribute or is about to
acquire possession with intent to sell or distribute any book, magazine,

pamphlet, comic book, story paper, writing, paper, picture, drawing,

photograph, figure, image or any written or printed matter of an indecent
character,
which is obscene, lewd, lascivious, filthy, indecent or disgusting, or which
contains an article or instrument of indecent or immoral use or purports to be for
indecent or immoral use or purpose; or in any other respect defined in section
eleven hundred forty-one of the penal law, may maintain an action for an
injunction against such person, firm or corporation in the supreme court to
prevent the sale or further sale or the distribution or further distribution or the
acquisition or possession of any book, magazine, pamphlet, comic book, story
paper, writing, paper, picture, drawing, photograph, figure or image or any
written or printed matter of an indecent character, herein described or described
in section eleven hundred forty-one of the penal law.
'2. The person, firm or corporation sought to be enjoined shall be entitled to a
trial of the issues within one day after joinder of issue and a decision shall be
rendered by the court within two days of the conclusion of the trial.
'3. In the event that a final order or judgment of injunction be entered in favor
of such officer of the city, town or village and against the person, firm or
corporation sought to be enjoined, such final order of judgment shall contain a
provision directing the person, firm or corporation to surrender to the sheriff of
the county in which the action was brought any of the matter described in
paragraph one hereof and such sheriff shall be directed to seize and destroy the
same.
'4. In any action brought as herein provided such officer of the city, town or
village shall not be required to file any undertaking before the issuance of an
injunction order provided for in paragraph two hereof, shall not be liable for
costs and shall not be liable for damages sustained by reason of the injunction
order in cases where judgment is rendered in favor of the person, firm or
corporation sought to be enjoined.
'5. Every person, firm or corporation who sells, distributes, or acquires
possession with intent to sell or distribute any of the matter described in
paragraph one hereof, after the service upon him of a summons and complaint
in an action brought by such officer of any city, town or village pursuant to this
section is chargeable with knowledge of the contents thereof.'
2

This comparison of remedies takes note of the fact that we do not have before
us a case where, although the issue of obscenity is ultimately decided in favor
of the bookseller, the State nevertheless attempts to punish him for
disobedience of the interim injunction. For all we know, New York may

impliedly condition the temporary injunction so as not to subject the bookseller

to a charge of contempt if he prevails on the issue of obscenity.
1

Gilbert-Bliss' N.Y.Civil Practice Act, Vol. 3B, 1942, 430.

Learned v. Tillotson, 97 N.Y. 1; Bolognino v. Bolognino, 136 Misc. 656, 241

N.Y.S. 445 (S.Ct.), affirmed 231 App.Div. 817, 246 N.Y.S. 883.

Parmelee v. United States, 72 App.D.C. 203, 205, 113 F.2d 729, 731; United
States v. Dennett, 2 Cir., 39 F.2d 564, 568, 76 A.L.R. 1092.