Redrup v. New York
1967 U.S. LEXIS 1571, 18 L. Ed. 2d 515, 386 U.S. 767 (1967)
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Rule of Law:
The distribution of publications cannot be suppressed by a state as obscene under the First and Fourteenth Amendments unless the material is proven to be obscene under prevailing constitutional standards, and there is no evidence of pandering, specific targeting of juveniles, or an obtrusive assault on individual privacy.
Facts:
- In New York, a newsstand clerk, Redrup, sold two paperback books, 'Lust Pool' and 'Shame Agent,' to a plainclothes patrolman who requested them by name.
- In Kentucky, a woman purchased two magazines, 'High Heels' and 'Spree,' from a salesgirl at a bookstore and newsstand owned by Austin.
- In Arkansas, a prosecuting attorney initiated a civil proceeding to have several magazines, including 'Gent,' 'Swank,' and 'Bachelor,' declared obscene.
- In all three cases, there was no claim that the state statutes were specifically designed to protect juveniles.
- There was no evidence in any case of 'pandering' or commercially exploiting the publications' erotic qualities.
- There was no suggestion of an assault on individual privacy, such as distributing the material in a manner that made it impossible for an unwilling person to avoid it.
Procedural Posture:
- Redrup was charged and convicted in the New York City Criminal Court for violating a state obscenity law; his conviction was affirmed on appeal.
- Austin was convicted in a Kentucky trial court for violating a state criminal law; the Kentucky Court of Appeals (the state's highest court) denied plenary review.
- A prosecuting attorney in Arkansas brought a civil action in the County Chancery Court, which, after a trial with an advisory jury, entered a judgment declaring the magazines obscene.
- The Supreme Court of Arkansas affirmed the chancery court's judgment with minor modifications.
- The U.S. Supreme Court granted certiorari in all three cases, initially limiting review to specific questions regarding scienter, vagueness, and prior restraint.
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Issue:
Does a state's criminal conviction or civil judgment suppressing the distribution of certain books and magazines, absent any evidence of pandering, sales to juveniles, or invasion of privacy, violate the First and Fourteenth Amendments?
Opinions:
Majority - Per Curiam
Yes. The distribution of the publications in each of these cases is protected by the First and Fourteenth Amendments from governmental suppression. The Court surveyed the various differing constitutional standards for obscenity held by its members, including the three-part test from Memoirs v. Massachusetts which requires that the material be 'utterly without redeeming social value.' Under any of these views, the judgments against the petitioners could not stand because the publications themselves did not meet the constitutional threshold for obscenity. The Court also emphasized the absence of other aggravating factors that might justify suppression, such as pandering, targeting juveniles, or assaulting individual privacy.
Dissenting - Harlan
The dissent does not answer the issue directly, arguing instead that the Court should not have reached the substantive obscenity question. The Court's decision to rule on whether the materials were obscene was improper because it had deliberately excluded that question from review when it agreed to hear the cases. The cases were accepted to consider other issues, such as scienter and vagueness, which were the only issues briefed and argued by the parties. By deciding the cases on a question not before it, the Court engaged in a procedurally unsound practice, and the writs should have been dismissed as improvidently granted.
Analysis:
This per curiam opinion is significant for creating the so-called 'Redrup reversal,' a practice where the Supreme Court would summarily reverse obscenity convictions by simply citing this case. It highlights the deep fractures within the Court on how to define obscenity, as no single standard could command a majority. This doctrinal instability persisted until Miller v. California (1973), which established a new, more concrete test for obscenity and effectively ended the 'Redrup' era.
