United States v. Reidel/Concurrence Harlan

by by John Marshall Harlan

United States Supreme Court

402 U.S. 351

United States  v.  Reidel

 Argued: Jan. 20, 1971. --- Decided: May 3, 1971

Mr. Justice HARLAN, concurring.

I join the opinion of the Court which, as I understand it, holds that the Federal Government may prohibit the use of the mails for commercial distribution of materials properly classifiable as obscene. The Court today correctly rejects the contention that the recognition in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), that private possession of obscene materials is constitutionally privileged under the First Amendment carries with it a 'right to receive' such materials through any modes of distribution as long as adequate precautions are taken to prevent the dissemination to unconsenting adults and children. Appellee here contends, in effect, that the Stanley 'right to receive' language, 394 U.S., at 564-565, 89 S.Ct., at 1247-1248, constituted recognition that obscenity was constitutionally protected for its content. Governmental efforts to proscribe obscenity as such would, on this interpretation, not be constitutional; rather, the power of both the State and Federal Governments would now be restricted to the regulation of the constitutionally protected right to engage in this category of 'speech' in light of otherwise permissible state interests, such as the protection of privacy or the protection of children.

That interpretation of Stanley, however, is flatly inconsistent with the square holding of Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957):

'We hold that obscenity is not within the area of constitutionally protected speech or press.'

Either Roth means that government may proscribe obscenity as such rather than merely regulate it with reference to other state interests, or Roth means nothing at all. And Stanley, far from overruling Roth, did not even purport to limit that case to its facts:

'We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today's holding. * * *' 394 U.S., at 568, 89 S.Ct., at 1249.

In view of Stanley's explicit reaffirmance of Roth, I do not read the former case as limiting governmental power to deal with obscenity to modes of regulation geared to public interests to be judicially assessed as legitimate or illegitimate in light of the nature of obscenity as a special category of constitutionally protected speech. Rather, I understand Stanley to rest in relevant part on the proposition that the power which Roth recognized in both State and Federal Governments to proscribe obscenity as constitutionally unprotected cannot be exercised to the exclusion of other constitutionally protected interests of the individual. That treatment of Stanley is consistent with the Court's approach to the problem of prior restraints in the obscenity area; if government chooses a system of prior restraints as an aid to its goal of proscribing obscenity, the system must be designed to minimize impact on speech which is constitutionally protected. Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971); Marcus v. Search Warrant of Property, etc., 367 U.S. 717, 731, 81 S.Ct. 1708, 1715-1716, 6 L.Ed.2d 1127 (1961). See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).

The analogous constitutionally protected interest in the Stanley situation which restricts governmental efforts to proscribe obscenity is the First Amendment right of the individual to be free from governmental programs of thought control, however such programs might be justified in terms of permissible state objectives. For me, at least, Stanley rests on the proposition that freedom from governmental manipulation of the content of a man's mind necessitates a ban on punishment for the mere possession of the memorabilia of a man's thoughts and dreams, unless that punishment can be related to a state interest of a stronger nature than the simple desire to proscribe obscenity as such. In other words, the 'right to receive' recognized in Stanley is not a right to the existence of modes of distribution of obscenity which the State could destroy without serious risk of infringing on the privacy of a man's thoughts; rather, it is a right to a protective zone ensuring the freedom of a man's inner life, be it rich or sordid. Cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943).

Mr. Justice MARSHALL, dissenting in No. 133 and concurring in the judgment in No. 534.

Notes