Court: Supreme Court of the United States; June 19, 1961; Federal Supreme Court; Federal Appellate Court
The Court, led by Mr. Justice Brennan, examined whether the application of Missouri’s procedures for searching and seizing allegedly obscene publications violated the due process rights of the appellants under the Fourteenth Amendment. The procedures, which are statutory and bolstered by a Missouri Supreme Court rule, allow search warrants to be issued based on sworn complaints. These complaints must contain definitive statements or evidential facts for a judge or magistrate to determine probable cause for seizing materials deemed obscene. Notably, the property owner does not receive a hearing before the warrant is issued, resulting in an ex parte proceeding. After seizure, a hearing to assess the obscenity of the materials must occur within a specified timeframe, during which the owner can defend their case. However, there is no mandated timeline for the judge to render a decision. If deemed obscene, the materials are ordered for public destruction; otherwise, they are returned to the owner.
The Missouri Supreme Court upheld these procedures, leading the appellants, including Kansas City News Distributors and its manager Homer Smay, to appeal under 28 U.S.C. 1257. The appeal's jurisdiction was initially deferred for substantive consideration. The case arose from an investigation by Police Lieutenant Coughlin into the distribution of obscene magazines. Following a visit to the distributor and subsequent purchases from newsstands, Lieutenant Coughlin filed six sworn complaints stating he had firsthand knowledge of the obscene materials. No copies of the materials were included with the complaints. Consequently, the circuit judge issued search warrants for each appellant's premises, which were executed on October 10 by various law enforcement officers.
Distributors had a stock of nearly a million magazine copies, which were examined by officers beyond Lieutenant Coughlin’s original list. Officers seized all publications deemed obscene, regardless of whether they were on the initial list. After three hours, approximately 11,000 copies from 280 publications, primarily magazines, were confiscated from six locations and stored at the courthouse. The circuit judge scheduled a hearing for October 17, later postponed to October 23. The appellants filed motions to quash the search warrants and suppress the seized evidence, citing violations of the Fourteenth Amendment's protections for free speech and press. They argued that the seizure lacked prior notice or a hearing to determine the obscenity of the publications and allowed law enforcement to make judicial determinations post-warrant, undermining their freedom of speech. The circuit judge heard police testimonies regarding the warrants but reserved ruling on the motions. On December 12, 1957, the judge issued an unreported opinion, finding 100 of the 280 items obscene and ordering their retention for potential criminal prosecution, with a destruction directive for those no longer needed. The 180 non-obscene items were to be returned to their owners. The use of search and seizure to suppress objectionable publications has historical roots dating back to the enforcement of the Tudor licensing system in England, where entities like the Stationers’ Company were empowered to search and seize printed materials deemed contrary to statutes.
Books seized for censorship were brought to Stationers’ Hall for inspection by ecclesiastical officials, who determined whether they would be destroyed. This practice originated during the Tudor period to suppress both Catholic and Puritan literature. Throughout the turbulent Seventeenth Century, various regimes utilized search and seizure powers to control publications. Notably, James I empowered the Court of High Commission to investigate and confiscate heretical or seditious materials. The 1637 Star Chamber decree reinforced the licensing obligations of the Stationers' Company. During the 1640s, Parliament asserted the need for extensive search and seizure authority to regulate printing, exemplified by a 1648 order permitting searches for scandalous pamphlets.
The Restoration in 1662 introduced a new licensing act, enabling 'messengers of the press' to seize materials under broad executive warrants. For instance, Roger L’Estrange was authorized to seize seditious books and apprehend those involved in their publication. Despite criticism, the licensing system persisted post-1688 Revolution, with ongoing warrants for seizing unlicensed materials. The Stationers’ Company was instructed to conduct regular searches for unlicensed publications. Even after seditious libel prosecutions became the primary means of press control, these were enforced through general warrants allowing extensive searches and arrests.
The enforcement of general warrants faced significant opposition, culminating in the landmark case Entick v. Carrington, which arose from tensions between the Crown and the opposition press, particularly led by John Wilkes. The case established a pivotal legal precedent against the use of general warrants in England.
Officers executing a warrant searched Entick's home for four hours, seizing numerous books and papers. Lord Camden deemed the general warrant for paper seizure unlawful under common law, emphasizing that the authority assumed by the secretary of state allowed for the indiscriminate removal of personal documents before any legal determination of wrongdoing. Camden dismissed arguments justifying such warrants as necessary for government purposes, arguing they threaten individual liberties. In Wilkes v. Wood, he criticized similar general warrants used against John Wilkes, asserting they granted excessive discretionary power to state agents and undermined personal freedom. This historical context influenced the development of constitutional protections against unrestricted search and seizure, particularly concerning freedom of expression.
The excerpt discusses the implications of Missouri's use of search and seizure powers to suppress obscene publications, referencing Roth v. United States, which established that obscenity is not protected speech. It acknowledges the complexity of assessing obscenity and the need for safeguards to protect non-obscene materials from suppression. The court highlighted that while states can suppress obscene content, they cannot impose absolute criminal liability on booksellers for possessing such material. The Missouri Supreme Court's treatment of obscene literature akin to contraband raises constitutional concerns, as police authority under the warrants issued to seize "obscene" publications presents distinct challenges compared to seizures of gambling or alcohol-related items.
The excerpt addresses the inadequacies of the procedures surrounding the issuance and execution of warrants for the seizure of publications under obscenity laws, highlighting potential violations of constitutionally protected speech. It emphasizes the delicate balance between protected speech and that which can be regulated or suppressed. The text argues that the procedures employed by Missouri failed to meet the due process standards required by the Fourteenth Amendment, as they did not provide opportunities for appellants to contest the seizure or for judicial scrutiny of the officer's claims. The warrants were based solely on the assertions of a single police officer and granted excessive discretion to law enforcement without clear criteria for determining obscenity. Most officers had not reviewed the seized materials prior to the execution of the warrants, leading to arbitrary on-site decisions lacking deliberation. The result was the suppression of 180 publications, two-thirds of which were later deemed not obscene, illustrating the broad and indiscriminate nature of the seizure process. The excerpt critiques the reliance on Kingsley Books, Inc. v. Brown, pointing out significant procedural differences between that case and the Missouri procedures, which lacked the necessary safeguards to protect constitutional rights.
The New York injunctive proceeding involved a court complaint alleging that a specific publication was obscene, accompanied by copies of the publication. The court restrained its distribution pending a final ruling, allowing for judicial review of the prosecuting authority's decision before any restraint was imposed. Unlike the temporary and permanent restraints in Kingsley Books, which were limited to a specific publication, the current case involved broad warrants permitting mass seizure of various items, lacking specificity. The ruling in Kingsley Books does not endorse the extensive pre-hearing restraints applied here, irrespective of the legal obscenity of the material. The court emphasized that New York law did not impose penalties for interim order violations if the material was later found non-obscene, but in this case, the police seized all copies, preventing the distributors from challenging the obscenity claim effectively. The public's access to these publications was contingent on the distributors' ability to evade police seizures, which does not ensure that non-obscene materials reach the public. Moreover, Kingsley Books required a prompt judicial decision on obscenity within specified time frames, while the Missouri statute lacks such limits, resulting in over two months between seizure and decision. Consequently, the restraints on publication circulation in this case were more severe than those upheld in Kingsley Books and were enacted without adequate safeguards for legitimate expression. The Missouri Supreme Court's judgment condemning the 100 publications cannot be upheld, but the court did not address the validity of the obscenity finding or whether Missouri has the authority under its statutes to seize and condemn obscene material.
A violation of the Fourteenth Amendment led to the reversal of the judgment, with the case remanded for further proceedings consistent with this ruling. These proceedings are distinct from Missouri's criminal statutes, specifically Mo. Rev. Stat. 563.270, 563.280, 563.290, and 563.310. Mo. Rev. Stat. 542.380 allows for the issuance of a search warrant upon a verified complaint regarding property deemed unlawful, such as obscene materials or gambling paraphernalia. This statute also covers the seizure of contraband items, including fraudulent writings and their production tools, as outlined in Mo. Rev. Stat. 542.440. Missouri Supreme Court Rule 33.01 stipulates that a written complaint filed with a judge can lead to the issuance of a search warrant if it establishes probable cause, detailing the property and location to be searched. Additionally, Mo. Rev. Stat. 542.400 mandates a hearing within five to twenty days post-seizure to determine the legality of the property, requiring written notice to be provided to interested parties.
Mo. Rev. Stat. 542.410 grants property owners the right to appear at hearings to contest the nature and use of seized property, with the judge or magistrate determining if the property falls under the category specified in Mo. Rev. Stat. 542.380. Mo. Rev. Stat. 542.420 outlines the disposition of such property: if deemed relevant, it is to be publicly destroyed; if not, it must be returned to the owner. However, if the property may serve as evidence in a criminal case, it must be retained until it is no longer needed. The seized publications included various adult and humor magazines. The court found it unnecessary to address other constitutional issues raised by the appellants regarding potential censorship or obscenity tests, focusing instead on procedural correctness regarding the seizure. The excerpt references the need for a warrant and proper justification for seizure, contrasting historical perspectives on general warrants. The trial judge in Kingsley Books highlighted the inappropriateness of preemptively enjoining future distributions of publications not currently before the court, emphasizing the protection of constitutional rights and citing relevant case law.
Blackstone emphasized the necessity of an adjudicatory process to protect against the suppression of non-offensive publications, asserting that punishing writings deemed dangerous should occur only after a fair trial to maintain peace and order. The Court's ruling in Near v. Minnesota established that states cannot use injunctions to prevent the publication of materials identified as public nuisances through judicial processes. This principle was not directly relevant in Kingsley Books due to the parties waiving the right to an immediate trial. Additionally, historical objections from the House of Commons highlighted concerns over delays in the licensing of imported books, which could economically harm importers.
