Bantam Books, Inc. v. Sullivan
372 U.S. 58 (1963)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A state's use of an administrative commission to informally blacklist publications and threaten distributors with prosecution, thereby inducing suppression without a prior judicial determination of obscenity, constitutes an unconstitutional system of prior restraint that lacks the procedural safeguards required by the First and Fourteenth Amendments.
Facts:
- The Rhode Island Legislature created the 'Commission to Encourage Morality in Youth' to educate the public about obscene materials and recommend prosecution for obscenity law violations.
- The Commission sent official notices to Max Silverstein & Sons, a major wholesale book distributor, listing certain publications as 'objectionable for sale, distribution or display to youths under 18 years of age.'
- These notices reminded Silverstein of the Commission's duty to recommend prosecution for non-compliance and were also circulated to local police departments.
- Upon receiving these notices, Silverstein would halt all sales of the listed publications, refuse new orders, and recall all unsold copies from retailers.
- A local police officer would typically visit Silverstein shortly after he received a notice to confirm what action had been taken to comply with the Commission's list.
- Silverstein testified that he complied with the notices to avoid potential court action against himself and the retailers he supplied.
- Among the books listed by the Commission were publications by appellants Bantam Books, Inc., and Dell Publishing Co., Inc.
Procedural Posture:
- Four New York publishers sued the Rhode Island Commission to Encourage Morality in Youth in the Superior Court of Rhode Island (a state trial court).
- The publishers requested a declaration that the law creating the Commission was unconstitutional and an injunction to stop the Commission's practices.
- The Superior Court declined to find the law facially unconstitutional but granted an injunction against the Commission's practices.
- Both parties appealed to the Supreme Court of Rhode Island.
- The Supreme Court of Rhode Island affirmed the finding that the law was facially constitutional but reversed the trial court's injunction, thereby permitting the Commission's practices to continue.
- The publishers (appellants) appealed the decision of the Supreme Court of Rhode Island to the U.S. Supreme Court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a state commission's practice of notifying book distributors that certain publications are 'objectionable' for sale to youths and threatening prosecution for non-compliance constitute an unconstitutional prior restraint in violation of the First and Fourteenth Amendments?
Opinions:
Majority - Mr. Justice Brennan
Yes, the system of informal censorship employed by the Commission violates the Fourteenth Amendment. While obscenity is not protected speech, any state regulation of it must include rigorous procedural safeguards to prevent the suppression of constitutionally protected material. The Commission’s practice of sending blacklists to distributors, coupled with thinly veiled threats of prosecution and follow-up police visits, constitutes a system of prior administrative restraint that effectively suppresses publications without any judicial review. This informal scheme lacks essential safeguards like notice, a hearing, or judicial determination of obscenity before suppression occurs, making it an unconstitutional violation of the freedom of the press.
Dissenting - Mr. Justice Harlan
No, the Commission's procedures are not unconstitutional. The state has a legitimate interest in addressing juvenile delinquency, and the Commission's actions are merely advisory, not legally binding. A distributor is free to ignore the Commission’s notices and can seek a declaratory judgment or await criminal prosecution to test the obscenity of a publication in court. Unlike formal censorship, this system imposes no legal sanctions and does not physically impede the distribution of materials; therefore, it does not create an unconstitutional prior restraint. The Court should not invalidate the entire scheme but rather remit the appellants to challenge the Commission's findings on a case-by-case basis.
Concurring - Mr. Justice Douglas
Yes, the Commission's actions are unconstitutional. This system is 'censorship in the raw,' and any form of censorship is incompatible with the First Amendment. The proper method for dealing with potentially obscene material is through criminal prosecution after its publication, which provides all the procedural safeguards of the Bill of Rights, including a trial by jury. Administrative bodies that pre-emptively ban books, even by a majority vote, create a precarious environment for freedom of expression where doubts are resolved against speech, not for it.
Concurring - Mr. Justice Clark
Yes, the Commission's practices are unconstitutional, but the Court's reasoning is unclear. The Commission overstepped its authority by issuing what amounted to 'orders' and making 'thinly veiled threats,' which are the proper domain of law enforcement and prosecutors. The Court should have more clearly articulated what the Commission is permitted to do. The Commission should be free to publicize its findings, solicit public support, and provide information to law enforcement, but it must cease its coercive practices and leave the actual regulation and prosecution to the appropriate state officials.
Analysis:
This case significantly broadened the concept of unconstitutional prior restraint by applying it to informal government censorship. The Court's decision established that government action does not need to involve direct legal sanctions, seizures, or formal bans to be considered censorship; intimidation and coercion that result in the suppression of speech are sufficient. This precedent protects publishers and distributors from extra-legal pressure campaigns by state actors that bypass judicial oversight. It requires that any state effort to regulate obscene materials, even those aimed at protecting minors, must adhere to strict procedural safeguards to protect constitutionally protected speech.
Unlock the full brief for Bantam Books, Inc. v. Sullivan