Bantam Books, Inc. v. Sullivan/Opinion of the Court
The Rhode Island Legislature created the 'Rhode Island Commission to Encourage Morality in Youth,' whose members and Executive Secretary are the appellees herein, and gave the Commission inter alia '* * * the duty * * * to educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth as defined in section 13, 47, 48 and 49 of chapter 610 of the general laws, as amended, and to investigate and recommend the prosecution of all violations of said sections * * *.'  The appellants brought this action in the Superior Court of Rhode Island (1) to declare the law creating the Commission in violation of the First and Fourteenth Amendments, and (2) to declare unconstitutional and enjoin the acts and practices of the appellees thereunder. The Superior Court declined to declare the law creating the Commission unconstitutional on its face but granted the appellants an injunction against the acts and practices of the appellees in performance of their duties. The Supreme Court of Rhode Island affirmed the Superior Court with respect to appellants' first prayer but reversed the grant of injunctive relief. R.I., 176 A.2d 393 (1961).  Appellants brought this appeal and we noted probable jurisdiction, 370 U.S. 933, 82 S.Ct. 1587, 8 L.Ed.2d 805. 
Appellants are four New York publishers of paperback books which have for sometime been widely distributed in Rhode Island. Max Silverstein & Sons is the exclusive wholesale distributor of appellants' publications throughout most of the State. The Commission's practice has been to notify a distributor on official Commission stationery that certain designated books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age. Silverstein had received at least 35 such notices at the time this suit was brought. Among the paperback books listed by the Commission as 'objectionable' were one published by appellant Dell Publishing Co., Inc., and another published by appellant Bantam Books, Inc. 
The typical notice to Silverstein either solicited or thanked Silverstein, in advance, for his 'cooperation' with the Commission, usually reminding Silverstein of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity.  Copies of the lists of 'objectionable' publications were circulated to local police departments, and Silverstein was so informed in the notices.
Silverstein's reaction on receipt of a notice was to take steps to stop further circulation of copies of the listed publications. He would not fill pending orders for such publications and would refuse new orders. He instructed his field men to visit his retailers and to pick up all unsold copies, and would then promptly return them to the publishers. A local police officer usually visited Silverstein shortly after Silverstein's receipt of a notice to learn what action he had taken. Silverstein was usually able to inform the officer that a specified number of the total of copies received from a publisher had been returned. According to the testimony, Silverstein acted as he did on receipt of the notice 'rather than face the possibility of some sort of a court action against ourselves, as well as the people that we supply.' His 'cooperation' was given to avoid becoming involved in a 'court proceeding' with a 'duly authorized organization.'
The Superior Court made fact findings and the following two, supported by the evidence and not rejected by the Supreme Court of Rhode Island, are particularly relevant:
'8. The effect of the said notices (those received by Silverstein, including the two listing publications of appellants) were (sic) clearly to intimidate the various book and magazine wholesale distributors and retailers and to cause them, by reason of such intimidation and threat of prosecution, (a) to refuse to take new orders for the proscribed publications, (b) to cease selling any of the copies on hand, (c) to withdraw from retailers all unsold copies, and (d) to return all unsold copies to the publishers.
'9. The activities of the Respondents (appellees here) have resulted in the suppression of the sale and circulation of the books listed in said notices * * *.'
In addition to these findings it should be noted that the Attorney General of Rhode Island conceded on oral argument in this Court that the books listed in the notices included several that were not obscene within this Court's definition of the term.
Appellants argue that the Commission's activities under Resolution 73, as amended, amount to a scheme of governmental censorship devoid of the constitutionally required safeguards for state regulation of obscenity, and thus abridge First Amendment liberties, protected by the Fourteenth Amendment from infringement by the States. We agree that the activities of the Commission are unconstitutional and therefore reverse the Rhode Island court's judgment and remand the case for further proceedings not inconsistent with this opinion. 
We held in Alberts v. State of California, decided with Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, that 'obscenity is not within the area of constitutionally protected speech or press' and may therefore be regulated by the States. But this principle cannot be stated without an important qualification:
* * * (I)n Roth itself we expressly recognized the complexity of the test of obscenity fashioned in that case and the vital necessity in its application of safeguards to prevent denial of 'the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.' (354 U.S. at 488, 77 S.Ct. at 1311) * * * It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity * * * without regard to the possible consequences for constitutionally protected speech.' Marcus v. Search Warrant, 367 U.S. 717, 730-731, 81 S.Ct. 1708, 1715, 1716, 6 L.Ed.2d 1127.
Thus, the Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line. It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments. Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards, Smith v. People of the State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Marcus v. Search Warrant, supra, is therefore but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks. See, e.g., Thornhill v. State of Alabama, 310, U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Winters v. People of the State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328. '(T)he line between speech unconditionally guaranteed and speech which may legitimately be regulated * * * is finely drawn. * * * The separation of legitimate from illegitimate speech calls for * * * sensitive tools * * *.' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460.
But is it contended, these salutary principles have no application to the activities of the Rhode Island Commission because it does not regulate or suppress obscenity but simply exhorts booksellers and advises them of their legal rights. This contention, premised on the Commission's want of power to apply formal legal sanctions, is untenable. It is true that appellants' books have not been seized or banned by the State, and that no one has been prosecuted for their possession or sale. But though the Commission is limited to informal sanctions-the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation-the record amply demonstrates that the Commission deliberately set about to achieve the suppression of publications deemed 'objectionable' and succeeded in its aim.  We are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief. 
It is not as if this were not regulation by the State of Rhode Island. The acts and practices of the members and Executive Secretary of the Commission disclosed on this record were performed under color of state law and so constituted acts of the State within the meaning of the Fourteenth Amendment. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. Cf. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152. These acts and practices directly and designedly stopped the circulation of publications in many parts of Rhode Island. It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was 'free' to ignore the Commission's notices, in the sense that his refusal to 'cooperate' would have violated no law. But it was found as a fact-and the finding, being amply supported by the record, binds us-that Silverstein's compliance with the Commission's directives was not voluntary. People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around, and Silverstein's reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore. It would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.  Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817.
Herein lies the vice of the system. The Commission's operation is a form of effective state regulation superimposed upon the State's criminal regulation of obscenity and making such regulation largely unnecessary. In thus obviating the need to employ criminal sanctions, the State has at the same time eliminated the safeguards of the criminal process. Criminal sanctions may be applied only after a determination of obscenity has been made in a criminal trial hedged about with the procedural safeguards of the criminal process. The Commission's practice is in striking contrast, in that it provides no safeguards whatever against the suppression of nonobscene, and therefore constitutionally protected, matter. It is a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law.
What Rhode Island has done, in fact, has been to subject the distribution of publications to a system of prior administrative restraints, since the Commission is not a judicial body and its decisions to list particular publications as objectionable do not follow judicial determinations that such publications may lawfully be banned. Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. See Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357; Lovell v. City of Griffin, 303 U.S. 444, 451, 58 S.Ct. 666, 668, 82 L.Ed. 949; Schneider v. State of New Jersey, 308 U.S. 147, 164, 60 S.Ct. 146, 152, 84 L.Ed. 155; Cantwell v. State of Connecticut, 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed. 1213; Niemotko v. State of Maryland, 340 U.S. 268, 273, 71 S.Ct. 325, 328, 95 L.Ed. 267; Kunz v. People of State of New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314, 95 L.Ed. 280; Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302. We have tolerated such a system only where it operated under judicial superintendence and assured an almost immediate judicial determination of the validity of the restraint.  Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469. The system at bar includes no such saving features. On the contrary, its capacity for suppression of constitutionally protected publications is far in excess of that of the typical licensing scheme held constitutionally invalid by this Court. There is no provision whatever for judicial superintendence before notices issue or even for judicial review of the Commission's determinations of objectionableness. The publisher or distributor is not even entitled to notice and hearing before his publications are listed by the Commission as objectionable. Moreover, the Commission's statutory mandate is vague and uninformative, and the Commission has done nothing to make it more precise. Publications are listed as 'objectionable' without further elucidation. The distributor is left to speculate whether the Commission considers this publication obscene or simply harmful to juvenile morality. For the Commission's domain is the whole of youthful morals. Finally, we not that although the Commission's supposed concern is limited to youthful readers, the 'cooperation' it seeks from distributors invariably entails the complete suppression of the listed publications; adult readers are equally deprived of the opportunity to purchase the publications in the State. Cf. Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412.
The procedures of the Commission are radically deficient. They fall far short of the constitutional requirements of governmental regulation of obscenity. We hold that the system of informal censorship disclosed by this record violates the Fourteenth Amendment.
In holding that the activities disclosed on this record are constitutionally proscribed, we do not mean to suggest that private consultation between law enforcement officers and distributors prior to the institution of a judicial proceeding can never be constitutionally permissible. We do not hold that law enforcement officers must renounce all informal contacts with persons suspected of violating valid laws prohibiting obscenity. Where such consultation is genuinely undertaken with the purpose of aiding the distributor to comply with such laws and avoid prosecution under them, it need not retard the full enjoyment of First Amendment freedoms. But that is not this case. The appellees are not law enforcement officers; they do not pretend that they are qualified to give or that they attempt to give distributors only fair legal advice. Their conduct as disclosed by this record shows plainly that they went for beyond advising the distributors of their legal rights and liabilities. Their operation was in fact a scheme of state censorship effectuated by extralegal sanctions; they acted as an agency not to advise but to suppress.
Reversed and remanded.
^1 Resolution No. 73 H 1000, R.I.Acts and Resolves, January Session 1956, 1102-1103. The resolution created a 'commission to encourage morality in youth,' to be composed of nine members appointed by the Governor of the State. The members were to serve for staggered, five-year terms. They were to receive no compensation, but their expenses, as well as the expenses incurred in the operation of the Commission generally, were to be defrayed out of annual appropriations. The original mandate of the Commission was superseded in part by Resolution No. 95 S. 444 R.I.Acts and Resolves, January Session 1959, 880, which reads as follows:
'It shall be the duty of said commission to educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, as defined in chapter 11-31 of the general laws, entitled 'Obscene and objectionable publications and shows,' and to investigate and recommend the prosecution of all violations of said sections, and it shall be the further duty of said commission to combat juvenile delinquency and encourage morality in youth by (a) investigating situations which may cause, be responsible for or give rise to undesirable behavior of juveniles, (b) educate the public as to these causes and (c) recommend legislation, prosecution and/or treatment which would ameliorate or eliminate said causes.'
The Commission's activities are not limited to the circulation of lists of objectionable publications. For example, the annual report of the Commission issued in January 1960, recites in part:
'In September, 1959, because of the many complaints from outraged parents at the type of films being shown at the Rhode Island Drive-Ins and also the lack of teen-age supervision while parked, this Commission initiated and completed a survey on the Drive-In Theatres in the State. High points of the survey note that there are II (2) Drive-in theatres in Rhode Island which operate through summer months and remain open until November and then for week-ends during the winter, providing car-heaters.
'Acting on its power to investigate causes of delinquency, the Commission has met with several state officials for a discussion of juvenile drinking, the myriad and complex causes of delinquency, and legal aspects of the Commission's operations. It also held a special meeting with Rhode Island police and legal officials in September, 1959, for a discussion on the extent of delinquency in Rhode Island and the possible formation of state-wide organization to combat it.'
^2 The action was brought pursuant to Title 9, c. 30, Gen.Laws R.I., 1956 ed., as amended (Uniform Declaratory Judgments Act).
^3 Our appellate jurisdiction is properly invoked, since the state court judgment sought to be reviewed upheld a state statute against the contention that, on its face and applied, the statute violated the Federal Constitution. 28 U.S.C. § 1257(2). Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239.
^4 Peyton Place, by Grace Metalious, published (in paperback edition) by appellant Dell Publishing Co., Inc.; The Bramble Bush, by Charles Mergendahl, published (in paperback edition) by appellant Bantam Books, Inc. Most of the other 106 publications which, as of January 1960, had been listed as objectionable by the Commission were issues of such magazines as 'Playboy,' 'Rogue,' 'Frolic,' and so forth. The Attorney General of Rhode Island described some of the 106 publications as 'horror' comics which he said were not obscene as this Court has defined the term.
^5 The first notice received by Silverstein reads, in part, as follows:
'This agency was established by legislative order in 1956 with the immediate charge to prevent the sale, distribution or display of indecent and obscene publications to youths and (sic) eighteen years of age.
'The Commissions (sic) have reviewed the following publications and by majority vote have declared they are completely objectionable for sale, distribution or display for youths under eighteen years of age.
'The Chiefs of Police have been given the names of the aforementioned magazines with the order that they are not to be sold, distributed or displayed to youths and (sic) eighteen years of age.
'The Attorney General will act for us in case of non-compliance.
'The Commissioners trust that you will cooperate with this agency in their work. * * *
'Another list will follow shortly.
'Thanking you for your anticipated cooperation, I am,
'Albert J. McAloon
Another notice received by Silverstein reads in part:
'This list should be used as a guide in judging other similar publications not named.
'Your cooperation in removing the listed and other objectionable publications from your newstands (sic) will be appreciated. Cooperative action will eliminate the necessity of our recommending prosecution to the Attorney General's department.'
An undated 'News Letter' sent to Silverstein by the Commission reads in part: 'The lists (of objectionable publications) have been sent to distributors and police departments. To the present cooperation has been gratifying.'
^6 Appellants' standing has not been, nor could it be, successfully questioned. The appellants have in fact suffered a palpable injury as a result of the acts alleged to violate federal law, and at the same time their injury has been a legal injury. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151-152, 71 S.Ct. 624, 637-638, 95 L.Ed. 817 (concurring opinion). The finding that the Commission's notices impaired sales of the listed publications, which include two books published by appellants, establishes that appellants suffered injury. It was a legal injury, although more needs be said to demonstrate this. The Commission's notices were circulated only to distributors and not, so far
as appears, to publishers. The Commission purports only to regulate distribution; it has made no claim to having jurisdiction of out-of-state publishers. However, if this were a private action, it would present a claim, plainly justiciable, of unlawful interference in advantageous business relations. American Mercury, Inc., v. Chase, 13 F.2d 224 (D.C.D.Mass.1926). Cf. 1 Harper and James, Torts (1956), §§ 6.11-6.12. See also Pocket Books, Inc., v. Walsh, 204 F.Supp. 297 (D.C.D.Conn.1962). It makes no difference, so far as appellants' standing is concerned, that the allegedly unlawful interference here is the product of state action. See Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070; Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Terrace v. Thompson, 263 U.S. 197, 214-216, 44 S.Ct. 15, 17-18, 68 L.Ed. 255; Columbia Broadcasting System v. United States, 316 U.S. 407, 422-423, 62 S.Ct. 1194, 1202-1203, 86 L.Ed. 1563. Furthermore, appellants are not in the position of mere proxies arguing another's constitutional rights. The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication, Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949, and the direct and obviously intended result of the Commission's activities was to curtail the circulation in Rhode Island of books published by appellants. Finally, pragmatic considerations argue strongly for the standing of publishers in cases such as the present one. The distributor who is prevented from selling a few titles is not likely to sustain sufficient economic injury to induce him to seek judicial vindication of his rights. The publisher has the greater economic stake, because suppression of a particular book prevents him from recouping his investment in publishing it. Unless he is permitted to sue, infringements of freedom of the press may too often go unremedied. Cf. N.A.A.C.P. v. State of Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488.
^7 For discussions of the problem of 'informal censorship,' see Lockhart and McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5, 6-9 and n. 7-22 (1960); Note, Extralegal Censorship of Literature, 33 N.Y.U.L.Rev. 989 (1958); Note, Entertainment: Public Pressures and the Law, 71 Harv.L.Rev. 326, 344-347 (1957); Note, Regulation of Comic Books, 68 Harv.L.Rev. 489, 494-499 (1955); Comment, Censorship of Obscene Literature by Informal Governmental Action, 22 Univ. of ChiL.Rev. 216 (1954); Lockhart and McClure, Literature, the Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 309-316 (1954).
^8 Threats of prosecution or of license revocation, or listings or notifications of supposedly obscene or objectionable publications or motion pictures, on the part of chiefs of police or prosecutors, have been enjoined in a number of cases. See Kingsley International Pictures Corp. v. Blanc, 396 Pa. 448, 153 A.2d 243 (1959); Bunis v. Conway, 17 A.D.2d 207, 234 N.Y.S.2d 435 (1962) (dictum); Sunshine Book Co. v. McCaffrey, 4 A.D.2d 643, 168 N.Y.S.2d 268 (1957); Random House, Inc., v. Detroit, No. 555684 Chancery, Cir.Ct., Wayne County, Mich., March 29, 1957; HMH Publishing Co. v. Garrett, 151 F.Supp. 903 (D.C.N.D.Ind.1957); New American Library of World Literature v. Allen, 114 F.Supp. 823 (D.C.N.D.Ohio 1953); Bantam Books, Inc. v. Melko, 25 N.J.Super. 292, 96 A.2d 47 (Chancery 1953), modified on other grounds, 14 N.J. 524, 103 A.2d 256 (1954); Dearborn Publishing Co. v. Fitzgerald, 271 F. 479 (D.C.N.D.Ohio 1921); Epoch Producing Corp. v. Davis, 19 Ohio N.P.,N.S., 465 (C.P.1917). Cf. In re Louisiana News Co. v. Dayries, 187 F.Supp. 241 (D.C.E.D.La.1960); Roper v. Winner, 244 S.W.2d 355, 357 (Tex.Civ.App.1951); American Mercury, Inc. v. Chase, 13 F.2d 224 (D.C.D.Mass.1926). Relief has been denied in the following cases: Pocket Books, Inc. v. Walsh, 204 F.Supp. 297 (D.C.D.Conn.1962); Dell Publishing Co. v. Beggans, 110 N.J.Eq. 72, 158 A. 765 (Chancery 1932). See also Magtab Publishing Corp. v. Howard, 169 F.Supp. 65 (D.C.W.D.La.1959). None of the foregoing cases presents the precise factual situation at bar, and we intimate no view one way or the other as to their correctness.
^9 We note that the Commission itself appears to have understood its function as the proscribing of objectionable publications, and not merely the giving of legal advice to distributors. See the first notice received by Silverstein, quoted in note 5, supra. The minutes of one of the Commission's meetings read in part:
'* * * Father Flannery (a member of the Commission) noted that he had been called about magazines proscribed by the Commission remaining on sale after lists had been scent (sic) to distributors and police, to which Mr. McAloon suggested that it could be that the same magazines were seen, but that it probably was not the same edition proscribed by the Commission.
'Father Flannery questioned the statewide compliance by the police, or anyone else, to get the proscribed magazines off the stands. Mr. McAloon showed the Commissioners the questionnaires sent to the chiefs of police from this office and returned to us.'
The minutes of another meeting read in part:
'* * * Mr. Sullivan (member of the Commission) suggested calling the Cranston Chief of Police to inquire the reason Peyton Place was still being sold, distributed and displayed since the Police departments had been advised of the Commission's vote.'
Of course, it is immaterial whether in carrying on the function of censor, the Commission may have been exceeding its statutory authority. Its acts would still constitute state action. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714. The issue of statutory authority was not raised or argued in this litigation.
Our holding that the scheme of informal censorship here constitutes state action is in no way inconsistent with Standard Computing Scale Co. v. Farrell, 249 U.S. 571, 39 S.Ct. 380, 63 L.Ed. 780. In that case it was held that a bulletin of specifications issued by the State Superintendent of Weights and Measures could not be deemed state action for Fourteenth Amendment purposes because the bulletin was purely advisory; the decision turned on the fact that the bulletin was not coercive in purport.
^10 Nothing in the Court's opinion in Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403, is inconsistent with the Court's traditional attitude of disfavor toward prior restraints of expression. The only question tendered to the Court in that case was whether a prior restraint was necessarily unconstitutional under all circumstances. In declining to hold prior restraints unconstitutional per se, the Court did not uphold the constitutionality of any specific such restraint. Furthermore, the holding was expressly confined to motion pictures.