Dyson v. Stein/Concurrence White

by Byron White

United States Supreme Court

401 U.S. 200

Dyson  v.  Stein

 Argued: Nov. 16, 1970. --- Decided: Feb 23, 1971

Mr. Justice WHITE concurs in the result.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, concurring in the result.

My Brother DOUGLAS' dissenting opinion describes graphically the police conduct upon which appellee rested his allegations of bad faith and harassment. If proved, these allegations would justify federal intervention. The mass seizure of some two tons of the issues of the newspaper without a prior judicial determination of the alleged obscenity of the issues was unconstitutional. Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). Similarly, the mass seizure of the tools and equipment required to prepare the newspaper-insofar as it disabled appellee from publishing future issues-infringed the principle of Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

But there questions are not before us. The three-judge court below remanded to a single judge for determination all questions advanced by appellee except the contention that the Texas statute was unconstitutional on its face, and the appellee does not challenge this order of remand here. I, therefore, would reverse the judgment of the District Court, except for paragraph 4, for the reasons stated in my separate opinion in Perez v. Ledesma, 401 U.S. 82, p. 93, 91 S.Ct. 674, p. 681, 27 L.Ed.2d 701.

Mr. Justice DOUGLAS, dissenting.

Notes