Kingsley Books v. Brown/Dissent Brennan
Mr. Justice BRENNAN, dissenting.
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,  but only for discretionary jury trials, and advisory verdicts, to be followed or rejected by the trial judge as he deems fit and proper. 
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 obscenity-whether 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.
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. 
I would reverse the judgment and direct the restraining order to be dissolved.
- 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.