Ginsberg v. New York/Dissent Douglas

by William O. Douglas

United States Supreme Court

390 U.S. 629

Ginsberg  v.  New York

 Argued: Jan. 16, 1968. --- Decided: April 22, 1968

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

While I would be willing to reverse the judgment on the basis of Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, for the reasons stated by my Brother FORTAS, my objections strike deeper.

If we were in the field of substantive due process and seeking to measure the propriety of state law by the standards of the Fourteenth Amendment, I suppose there would be no difficulty under our decisions in sustaining this act. For there is a view held by many that the so-called 'obscene' book or tract or magazine has a deleterious effect upon the young, although I seriously doubt the wisdom of trying by law to put the fresh, evanescent, natural blossoming of sex in the category of 'sin.'

That, however, was the view of our preceptor in this field. Anthony Comstock, who waged his war against 'obscenity' from the year 1872 until his death in 1915. Some of his views are set forth in his book Traps for the Young, first published in 1883, excerpts from which I set out in Appendix I to this opinion.

The title of the book refers to 'traps' created by Satan 'for boys and girls especially.' Comstock, of course, operated on the theory that every human has an 'inborn tendency toward wrongdoing which is restrained mainly by fear of the final judgment.' In his view any book which tended to remove that fear is a part of the 'trap' which Satan created. Hence, Comstock would have condemned a much wider range of literature than the present Court is apparently inclined to do. ^[1]

It was Comstock who was responsible for the Federal Anti-Obscenity Act of March 3, 1873. 17 Stat. 598. It was he who was also responsible for the New York Act which soon followed. He was responsible for the organization of the New York Society for the Suppression of Vice, which by its act of incorporation was granted one-half of the fines levied on people successfully prosecuted by the Society or its agents.

I would conclude from Comstock and his Traps for the Young and from other authorities that a legislature could not be said to be wholly irrational ^[2] (Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1928, 10 L.Ed.2d 93; and see Williamson v. Lee Optical Co. of Okl., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Daniel v. Family Sec. Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632; Olsen v. State of Nebraska, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305) if it decided that sale of 'obscene' material to the young should be banned. ^[3]

The problem under the First Amendment, however, has always seemed to me to be quite different. For its mandate (originally applicable only to the Federal Government but now applicable to the States as well by reason of the Fourteenth Amendment) is directed to any law 'abridging the freedom of speech, or of the press.' I appreciate that there are those who think that 'obscenity' is impliedly excluded; but I have indicated on prior occasion why I have been unable to reach that conclusion. ^[4] See Ginzburg v. United States, 383 U.S. 463, 482, 86 S.Ct. 942, 953, 16 L.Ed.2d 31 (dissenting opinion); Jacobellis v. State of Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (concurring opinion of Mr. Justice Black); Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498 (dissenting opinion). And the corollary of that view, as I expressed it in Public Utilities Comm'n of District of Columbia v. Pollak, 343 U.S. 451, 467, 468, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (dissenting opinion), is that Big Brother can no more say what a person shall listen to or read than he can say what shall be published.

This is not to say that the Court and Anthony Comstock are wrong in concluding that the kind of literature New York condemns does harm. As a matter of fact, the notion of censorship is founded on the belief that speech and press sometimes do harm and therefore can be regulated. I once visited a foreign nation where the regime of censorship was so strict that all I could find in the bookstalls were tracts on religion and tracts on mathematics. Today the Court determines the constitutionality of New York's law regulating the sale of literature to children on the basis of the reasonableness of the law in light of the welfare of the child. If the problem of state and federal regulation of 'obscenity' is in the field of substantive due process, I see no reason to limit the legislatures to protecting children alone. The 'juvenile delinquents' I have known are mostly over

Notes

1. Two writers have explained Comstock as follows:
2. 'The effectiveness of more subtle forms of censorship as an instrument of social control can be very great. They are effective over a wider field of behavior than is propaganda in that they affect convivial and 'purely personal' behavior.
3. And see Gaylin, Book Review: The Prickly Problems of Pornography, 77 Yale L.J. 579, 594.
4. My Brother HARLAN says that no other Justice of this Court, past or present, has ever 'stated his acceptance' of the view that 'obscenity' is within the protection of the First and Fourteenth Amendments. 390 U.S., at 705, 88 S.Ct., at 1314. That observation, however, should not be understood as demonstrating that no other members of this Court, since its first Term in 1790, have adhered to the view of my Brother BLACK and myself. For the issue 'whether obscenity is utterance within the area of protected speech and press' was only 'squarely presented' to this Court for the first time in 1957. Roth v. United States, 354 U.S. 476, 481, 77 S.Ct. 1304, 1307. This is indeed understandable, for the state legislatures have borne the main burden in enacting laws dealing with 'obscenity'; and the strictures of the First Amendment were not applied to them through the Fourteenth until comparatively late in our history. In Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, decided in 1925, the Court assumed that the right of free speech was among the freedoms protected against state infringement by the Due Process Clause of the Fourteenth Amendment. See also Whitney v. People of State of California, 274 U.S. 357, 371, 373, 47 S.Ct. 641, 646-647, 71 L.Ed. 1095; Fiske v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108. In 1931, Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, held that the right of free speech was guaranteed in full measure by the Fourteenth Amendment. But even after these events 'obscenity' cases were not inundating this Court; and even as late as 1948, the Court could say that many state obscenity statutes had 'lain dormant for decades.' Winters v. People of State of New York, 333 U.S. 507, 511, 68 S.Ct. 665, 668, 92 L.Ed. 840. In several cases prior to Roth, the Court reviewed convictions under federal statutes forbidding the sending of 'obscene' materials through the mails. But in none of these cases was the question squarely presented or decided whether 'obscenity' was protected speech under the First Amendment; rather, the issues were limited to matters of statutory construction, or questions of procedure, such as the sufficiency of the indictment. See United States v. Chase, 135 U.S. 255, 10 S.Ct. 756, 34 L.Ed. 117; Grimm v. United States, 156 U.S. 604, 15 S.Ct. 470, 39 L.Ed. 550; Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606; Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765; Andrews v. United States, 162 U.S. 420, 16 S.Ct. 798, 40 L.Ed. 1023; Price v. United States, 165 U.S. 311, 17 S.Ct. 366, 41 L.Ed. 727; Dunlop v. United States, 165 U.S. 486, 17 S.Ct. 375, 41 L.Ed. 799; Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 57 L.Ed. 583; Dysart v. United States, 272 U.S. 655, 47 S.Ct. 234, 71 L.Ed. 461; United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843.