explaining that "the allocation of the burden of proof," like many other legal devices that ordinarily pass constitutional muster, "cannot be applied in settings where they have the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to use it."
How later courts described this case
- explaining that "the allocation of the burden of proof," like many other legal devices that ordinarily pass constitutional muster, "cannot be applied in settings where they have the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to use it."
- stating that when a strict liability provision applies to First Amendment-related conduct, such a provision may “have the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it”
- holding that an anti-obscenity law “dispensing with any requirement of knowledge of the contents of the book on the part of the seller” . . . tends to impose a severe limitation on the public’s access to constitutionally protected matter”
- holding unconstitutional a strict-liability ordinance preventing booksellers from possessing obscene books because it would cause each bookseller to “tend to restrict the books he sells to those he has inspected [and as a result] the public’s access to reading matter would be restricted”
Written by the judges who cited it.
Distinguished
Distinguished by Lavey v. City of Two Rivers, 994 F. Supp. 1019 (1998)
361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) is inapposite.
Distinguished by Shoresman v. Burgess, 412 F. Supp. 831 (1976)
361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), cited by plaintiffs as support for this assertion, is clearly distinguishable.
Distinguished by Engstrom v. Robinson, 317 F. Supp. 124 (1969)
Smith is distinguishable from the instant case in one regard.
Distinguished by City of Detroit v. Grimshaw, 17 Mich. App. 413 (1969)
While arguably Smith is distinguishable from the instant case because in the instant case the trial court inferred from the statute existence of a requirement of scienter, the Villano decision rejects such a distinction.
The opinion
Mr. Justice Douglas,
concurring.
I need not repeat here all I said in my dissent in Roth v. United States, 354 U. S. 476, 508 , to underline my conviction that neither the author nor the distributor of this book can be punished under our Bill of Rights for publishing or distributing it. The notion that obscene publications or utterances were not included in free speech developed in this country much later than the adoption of the First Amendment, as the judicial and legislative *168 developments in this country show. Our leading authorities on the subject have summarized thé matter as follows:
“In the United States before the Civil War there' were few reported decisions involving obscene literature. This of course is no indication that such literature was not in circulation at that time; the persistence of pornography is entirely too strong to warrant such an inference. Nor is it an indication , that the people of the time were totally indifferent to the proprieties of the literature they read. In 1851 Nathaniel Hawthorne’s The Scarlet Letter was bitterly attacked as an immoral book that degraded literature and encouraged social licentiousness. The lack, of cases merely’means that the problem of obscene literature was not thought to be of sufficient importance to justify arousing the forces of the state to censorship.” Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn. L. Rev. 295 , 324-325.
Neither we nor legislatures have power, as I see it, to weigh the values of speech or utterance against silence. The only groúnds for suppressing this book are very narrow. I have read it; and while it is repulsive to me, its publication or distribution can be constitutionally punished only on a showing not attempted here. My view was stated in the Roth case, at 514:
“Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it. Giboney v. Empire Storage Co., 336 U. S. 490, 498 ; Labor Board v. Virginia Power Co., 314 U. S. 469, 477-478 . As a people, we cannot afford to relax that standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is *169 to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless.”
Yet my view is in the minority; and rather fluid tests of obscenity prevail which require judges to read condemned literature and pass judgment on it. This role of. censor in which we find ourselves is not an edifying one. But since by the prevailing school of thought we must •perform it, I see no harm, and perhaps some good, in the rule fashioned by the Court which requires a showing of scienter. For it recognizes implicitly that these First Amendment rights, by reason of the strict command in that Amendment — a command that carries over to the States by reason of the Due Process Clause of the Fourteenth Amendment — are preferred rights. What the Court does today may possibly provide some small degree of safeguard to booksellers by making those who patrol bookstalls proceed less highhandedly than has been their custom. *
See Chafee, Free Speech in the United States (1941), pp. 536-540; Lockhart and McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn. L. Rev. 295 , 302-316; Daniels, The Censorship of Books (1954), p. 76 et seq.; Blanshard, The Right to Read (1955), p. 180 et seq.; Fellman, The Censorship of Books (1957). And see New American Library of World Literature v. Allen, 114 F. Supp. 823 .