Quantity of Copies of Books v. Kansas
A state statute defined obscenity, proscribed distribution of obscene materials, and authorized their seizure before, and their destruction after, an adversary determination of their obscenity. Though the statute required the filing of a verified information by the county attorney or attorney general stating only that there "is [an] . . . obscene book . . . located within his county," the information filed by the attorney general went further and identified by title 59 allegedly obscene novels which were stated to have been published under a certain caption; copies of seven novels published under that caption were filed with the information; and an ex parte inquiry was held by the district judge during which he "scrutinized" the seven books, concluding that they appeared obscene, and afforded grounds to believe that any paper-backed novels published under the same caption were obscene. His warrant authorized seizure at the place of business of appellants' "News Service" of the novels identified by title in the Information. Thirty-one of the titles were found on appellants' premises when the warrant was executed, and all 1,715 copies of them were seized. At a hearing ten days after seizure, the court denied appellants' claim that, by failing to afford a pre-seizure hearing on the question whether the books were obscene, the statutory procedure operated as an unconstitutional prior restraint. Following a final hearing held about seven weeks after seizure, the court held the 31 novels obscene and ruled that the seized copies should be destroyed on further order. The State Supreme Court affirmed the lower court's order.
Held: the judgment of the State Supreme Court is reversed. Pp.-215.
191 Kan. 13, 379 P.2d 254, reversed.
MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE, MR. JUSTICE WHITE, and MR. JUSTICE GOLDBERG, without reaching the question whether the novels were obscene, concluded that the procedure followed in issuing and executing the warrant of seizure prior to a hearing on the issue of obscenity was unconstitutional under the First Amendment, made applicable to the States by the Fourteenth Amendment, because (a) it authorized the sheriff to seize all copies of the specified titles and (b) it did not afford a hearing before the
warrant issued on the obscenity of even the seven novels filed with the Information. Pp.-213.
MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that it is not necessary to consider the procedural questions, since the state statute is unconstitutional under the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp.-214.
MR. JUSTICE STEWART concluded that the state statute could not constitutionally suppress the books, because they were not "hard core pornography." Pp.-215.