McKinney v. Alabama, 424 U.S. 669 (1976)

MR JUSTICE BRENNAN.

I concur insofar as the judgment of conviction is reversed. I have frequently stated my view that,

at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ’obscene’ contents.

See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (BRENNAN, J., dissenting). Upon that view, the Alabama Law on Obscenity, which forbids such dissemination of explicit sexual material to consenting adults, is facially unconstitutional in both its civil and criminal aspects. Therefore, while I agree that petitioner could not constitutionally be convicted and sentenced in a criminal proceeding wherein the issue of obscenity vel non was held to be concluded against him by the decree in a civil proceeding to which he was not a party and of which he had no notice, rather than remand for further proceedings not inconsistent with the Court’s opinion, I would declare the Alabama law unconstitutional and hold that petitioner cannot be criminally prosecuted for its violation.

However, since presently prevailing constitutional jurisprudence accords States a broader power to regulate obscenity than I concede, it is appropriate in that circumstance that I state my concern that the Alabama law contains provisions that violate the First and Fourteenth Amendments because they impermissibly create the risk that citizens will shy away from disseminating or possessing literature and materials that the entire Court would agree are constitutionally protected. See Jenkins v. Georgia, 418 U.S. 153 (1974).

I

The Alabama Law on Obscenity takes a form that is gaining increasing favor among the States. It permits a test of the issue of obscenity in a civil action prior to any exposure to a criminal penalty. This Court has acknowledged the value of this approach to the solution of the vexing problem of reconciling state efforts to suppress sexually oriented expression with the prohibitions of the First Amendment, as applied to the States through the Fourteenth Amendment.

Instead of requiring the bookseller to dread that the offer for sale of a book may, without prior warning, subject him to a criminal prosecution with the hazard of imprisonment, the civil procedure assures him that such consequences cannot follow unless he ignores a court order specifically directed to him for a prompt and carefully circumscribed determination of the issue of obscenity.

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442 (1957).

[S]uch a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation.

Paris Adult Theatre I v. Slaton, supra at 55. See generally Lockhart, Escape from the Chill of Uncertainty: Explicit Sex and the First Amendment, 9 Ga.L.Rev. 533, 569-587 (1975).

The Alabama statute, enacted in 1961 and expressly styled the Alabama Law on Obscenity, Ala.Act No. 856, Ala.Code, Tit. 14, c. 64A (Supp. 1973), recites in § 2 that the Act’s purpose is to provide public prosecutors with both a speedy civil remedy for obtaining a judicial determination of the character and contents of publications and an effective power to reach persons responsible for the composition, publication, and distribution of obscene publications within the State. To that end, the statute distinguishes between "mailable" and "nonmailable" matter. This case concerns only the provisions governing "mailable" matter, defined as printed or written material "having second class mailing privileges under the laws of the United States," or which has not been "determined to be nonmailable" under such laws. § 3.{1} A criminal prosecution based upon "mailable" matter may be brought only when such matter has been, to the defendant’s knowledge, "judicially found to be obscene" in a prior civil proceeding under the Act. § 4. A prosecuting attorney (solicitor for any judicial circuit or county solicitor) may commence "an action In Equity . . . for an adjudication of the obscenity of the mailable matter" if he has "reasonable cause to believe that any person, with knowledge of its contents," is shipping mailable obscene publications into Alabama or is selling such publications in the State. § 5. The action is "directed against the mailable matter by name or description" and the respondents are the "author, publisher and any other person" responsible for offering the matter "for sale or commercial distribution" in the State or

giving it away or offering to give it away, or possessing it with the intent to sell or commercially distribute or exhibit or give away or offer to give it away.

§ 6. Upon the filing of the complaint and the exhibits, the court, "as soon as practicable," must examine the materials and ex parte dismiss the complaint "[i]f there is no probable cause to believe that the mailable matter. . . is obscene." § 7. If, however, the court finds probable cause, "it may forthwith issue an order temporarily restraining and prohibiting the sale or distribution of such matter" and issue an order to show cause, "returnable not less than ten days after its service," why the matter shall not be adjudicated obscene. Ibid. A full adversary hearing follows, to

be heard and disposed of with the maximum promptness and dispatch commensurate with constitutional requirements, including due process, freedom of press and freedom of speech.

§ 9.{2} The proceeding is to be conducted under the Rules of Civil Procedure in equity cases.{3} If, after a full hearing, a publication is found obscene, the respondents ray be enjoined from further distribution of that publication in Alabama, and respondents residing in Alabama may be required to dispose of such publications in their possession. § 10. An injunction is binding "only upon the Respondents to the action and upon those persons in active concert or participation . . . with such Respondents who receive actual notice. . . ." § 11. Disobedience of an injunction constitutes contempt of court by any respondent or by "any person in active concert or participation by contract or agreement with such respondent, [who receives] actual notice" of the injunction. § 13. If any respondent fails to comply with an order to dispose of the matter, the court may direct the sheriffs in the State to "seize and destroy all such obscene mailable matter." § 10(c).

The civil provisions are so interwoven with the Act’s criminal and other general provisions, § 4, that the constitutional questions raised by them cannot be properly addressed, in my view, without considering the entire Act as it bears upon "mailable" material. This conclusion is underscored by a "cumulative" obscenity law addressed to "hard-core" pornography enacted by Alabama in 1969. Ala.Code, Tit. 14, c. 64C, §§ 374 (16j-160) (Supp. 1973). Section 374(16k)(c) of that statute provides that the prohibition against selling, exhibiting, or possessing such materials shall not

be deemed to apply to mailable matter unless such mailable matter is known by such person to have been judicially found to be obscene or to represent hard-care pornography under this chapter or under the provisions of any other Alabama statutes.

I shall not discuss all of the provisions that raise, questions but only those that appear to me most clearly to be vulnerable to constitutional challenge.

II

Burden of Proof

There can be no question that uncertainty inheres in the definition of obscenity. It is therefore to be expected that those who market written material pertaining to sex should, from fear of criminal prosecution, refrain from handling what may be constitutionally protected literature on that subject. It is this hazard to material protected by the First Amendment which commends Alabama’s efforts to minimize that hazard by its regulatory scheme. A civil procedure that complies with the commands of the First Amendment and due process may serve the public interest in controlling obscenity without exposing the marketer to the risks and the stigma of a criminal prosecution, and thus protect, by minimizing the risk of marketer self-censorship, the right to the free publication and dissemination of constitutionally protected literature. But by shifting the determination of obscenity vel non to the civil context, the Alabama scheme creates another potential danger that the dissemination of constitutionally protected material will be suppressed.

Although the Act does not specify which party has the burden of proof in the civil proceeding, the Supreme Court of Alabama has held that the burden is on the State to prove the obscenity of the magazines, 292 Ala. 484, 487, 296 So.2d 228, 231 (1974), and it appears that the State may do so by a mere preponderance of the evidence. Tr. of Oral Arg. 4-5. However, I think that the hazards to First Amendment freedoms inhering in the regulation of obscenity require that even in such a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt.

Inherent in all factfinding procedures is the potential for erroneous judgments, and, when First Amendment values are implicated, the selection of a standard of proof of necessity implicates the relative constitutional acceptability of erroneous judgments.

There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value . . . this margin of error is reduced as to him by the process of placing on the other party the burden . . . of persuading the factfinder at the conclusion of the trial of [the existence of the fact] beyond a reasonable doubt.

Speiser v. Randall, 357 U.S. 513, 525-526 (1958). See, e.g., In re Winship, 397 U.S. 358, 369-372 (1970) (Harlan, J., concurring); cf. Rosenbloom v. Metromedia, 403 U.S. 29, 49-51 (1971) (opinion of BRENNAN, J.). In the civil adjudication of obscenity vel non, the bookseller has at stake such an "interest of transcending value" -- protection of his right to disseminate and the public’s right to receive material protected by the First Amendment. Protection of those rights demands that the factfinder be almost certain -- convinced beyond a reasonable doubt -- that the materials are not constitutionally immune from suppression. Although Miller v. California, 413 U.S. 15 (1973), held that the concept of obscenity as defined in that case is not unconstitutionally vague, we have

expressly recognized the complexity of the test of obscenity . . . and the vital necessity in its application of safeguards to prevent denial of "the protection of freedom of speech and press"

for nonobscene material. Marcus v. Search Warrant, 367 U.S. 717, 730 (1961).

[T]he Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line.

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963). The uncertainty of that line means that erroneous judgments as to whether material is obscene or not are likely in any event, and are particularly so if the factfinder is only marginally confident that the material falls on the unprotected side of the line. In light of the command of the First Amendment, a standard of proof by a mere preponderance of the evidence poses too substantial a danger that protected material will be erroneously suppressed. Moreover, the potential danger of such erroneous determinations is especially acute in light of the fact that the civil proceeding and the interim restraint pending adjudication on the merits operate as a prior restraint; indeed, the possibility of an erroneous determination is heightened by the fact that the material may never be available to the public, and thus need never have truly faced the acid test of acceptance under prevailing community standards.{4} Furthermore, in light of the definition of obscenity -- incorporating, as it does under current law, the notion of patent offensiveness to the average member of the community -- there is an even greater need for the judge, operating as sole factfinder, to be convinced beyond a reasonable doubt that the material is obscene, for his determination is made without a jury’s assessment of community values.

Moreover, the possible erroneous imposition of civil sanctions under the preponderance of the evidence standard simply creates too great a risk of self-censorship by those engaged in dissemination of printed material pertaining to sex. Cf. Smith v. California, 361 U.S. 147 (1959). Just as the improper allocation of the burden of proof "will create the danger that the legitimate utterance will be penalized," and may thus cause persons to "steer far wider of the unlawful zone," Speiser v. Randall, supra at 526, the application of a preponderance of the evidence standard, rather than proof beyond a reasonable doubt, could cause affected persons to be overly careful about the material in which they deal. While the threat of prosecution and punishment in a criminal proceeding may be greater than the threat of economic loss in civil proceedings, the difference is one of degree. Cf. New York Times Co. v. Sullivan, 376 U.S. 254, 277-278 (1964). The inevitable tendency of the preponderance of the evidence standard -- by forcing persons dealing in marginal material to make hard judgments as to whether such material is obscene in order to avoid civil sanctions -- would be to limit the volume of at least the marginal material a bookseller could permissibly handle, and thus "restrict the public’s access to forms of the printed word which the State could not constitutionally suppress directly." Smith v. California, supra at 154. This "self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered." Ibid.

Related to these arguments is another consideration which has particular force in the context where a State purports to make a civil determination of obscenity conclusively binding in a subsequent criminal trial, such as is the case under Alabama’s Law on Obscenity. The First Amendment proscribes criminalizing the sale of literature in general. However, criminal statutes prohibiting the sale of obscene literature have been held to be constitutionally permissible. At least two elements must coalesce to constitute such a crime: (1) some overt act or intent to perform some act beyond mere possession concerning (2) obscene material. Each of these two elements would otherwise have to be proved beyond a reasonable doubt in a criminal proceeding, for it is settled that

the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In re Winship, 397 U.S. at 364. The requirement that obscenity be proved beyond a reasonable doubt may not be diluted by transporting the determination to a prior civil proceeding, for the essence of the "crime" in reality remains the sale of obscene literature, rather than disobedience of a court injunction.

The dangers emanating from the increased likelihood of error resulting from a preponderance of the evidence standard -- the likelihood of self-censorship and the erroneous proscription of constitutionally protected material -- are no less great in civil than in criminal regulation; if anything, the actual margin of error even under the beyond a reasonable doubt standard may be greater in civil proceedings, since judges and juries may be more reluctant to declare material obscene in a criminal proceeding where incarceration will follow as a consequence. Both proceedings thus present the same hazards to First Amendment freedoms, and those hazards may only be reduced to a tolerable level by applying the same rigorous burden of proof.

III

Jury Trial

This Court has held that a jury trial is not a constitutional requirement in a state civil proceeding determining the obscenity vel non of written materials. Alexander v. Virginia, 413 U.S. 836 (1973). However, in light of the Court’s definition of those materials which are beyond the pale of constitutional protection, a jury trial even in civil proceedings serves a salutary function.

The jury represents a cross-section of the community, and has a special aptitude for reflecting the view of the average person. Jury trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an appraisal of material according to the average person’s application of contemporary community standards. A statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedoms of speech and press for material which is not obscene. Of course, as with jury questions generally, the trial judge must initially determine that there is a jury question, i.e., that reasonable men may differ whether the material is obscene.

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448 (1957) (BRENNAN, J., dissenting). Although the Court has rejected the contention that the Federal Constitution imposes the requirement of such a jury trial on a State conducting a civil proceeding, it is nevertheless clear that a jury is the most appropriate factfinder on the issue of obscenity, assuming the judge, as he must, has initially determined that the material is not protected as a matter of law. See, e.g., Miller v. California, 413 U.S. at 25-26. Trial by jury is particularly appropriate if the State chooses to enact a statute such as Alabama’s which makes the civil determination of obscenity conclusive in a later criminal proceeding involving the parties to the civil action, and States are, of course, free to adopt such a factfinding procedure as the fairest and most accurate reflection of community standards.

IV

Effect of the Obscenity Determination in

Civil Proceedings on the Criminal Proceeding

Accepting as I must for present purposes the Court’s current view of the constitutional permissibility of laws forbidding the dissemination of obscene materials, I do not perceive any constitutional defect in a State’s criminalizing the knowing sale of material judicially determined to be obscene, provided, of course, that obscenity was determined beyond a reasonable doubt at a proceeding in which the accused was a party and of which he received adequate notice.{5} However, one problem with such a scheme deserves comment. Under prevailing constitutional doctrine, material cannot be proscribed unless, inter alia,

"the average person, applying contemporary community standards," would find that the work, taken as a whole, appeals to the prurient interest . . . [and] describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.

Miller v. California, supra at 24 (emphasis supplied). Community standards are inherently in a state of flux, and there is a substantial danger that a civil proceeding declaring given printed matter obscene will forever preclude its introduction into the community, even if the community would no longer view it as "patently offensive" or appealing to the "prurient interest." Some of the most celebrated works of our generation would likely have been the pornography of a prior generation. Thus, I would require that, at a minimum, a person charged with dissemination of material knowing it to have been judicially determined to be obscene in a civil proceeding to which he was a party should be permitted to interject into the criminal trial a claim that community standards had evolved from the time of the civil proceeding to the time the acts for which he was charged were committed. If there is some colorable showing of such a change, I believe that the First Amendment and due process would require that the State again demonstrate beyond a reasonable doubt, in the criminal proceeding, that the material was contemporaneously constitutionally "obscene." Cf. Mullaney v. Wilbur, 421 U.S. 684 (1975).{6}

A

The Possession Provisions

Another potential effect of civil determination’s under the Alabama law will be to deter all the acts proscribed by the statute with respect to the material declared obscene. This is precisely what the statute is meant to do, and generally the Constitution does not assure that acts may be performed with safety in connection with material judicially declared obscene. This is not true, however, with respect to the mere "possession" of obscene material

The Act has two provisions that affect possession of obscene material. One provision renders possession of "mailable matter known . . . to have been judicially found to be obscene under this chapter" a misdemeanor subject to a possible fine of $500 and up to six months’ imprisonment, or both. § 4(2). This provision is invalid because the First Amendment prohibits States from regulating possession unrelated to distribution or public exhibition. Stanley v. Georgia, 394 U.S. 557 (1969).

The other provision affecting possession of obscene material, § 15, provides that the possession of

any three of the things enumerated in . . . [§ 4] (except the possession of them for the purpose of return to the person from whom received)

creates a rebuttable presumption that they are intended for dissemination, and the burden of proof that their possession is for the purpose of return is on the possessor. At the least, this presumption shifts to defendants the burden of going forward with the evidence on the issue of possession for the purpose of distribution; and if the possessor seeks to explain possession on the ground that he is holding the materials for return, he has the burden of proof on the issue. Mere possession of obscene material for personal use may not be penalized. The obvious danger in creating a presumption that possession is for the purpose of dissemination is that lawful possession will be penalized or that persons will refrain from lawfully possessing arguably protected material.

The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens.

Speiser v. Randall, 357 U.S. 513, 526 (1958). The Alabama law poses a particular hazard in this regard, because the presumption takes effect once the defendant is shown to have possessed "any three of the things enumerated in" § 4. The "things" enumerated in § 4 are nonmailable obscene matter and mailable matter judicially declared obscene under the Act. Apparently, the presumption would come into play if a person possessed one copy of three different works which fit the statute’s description. This would, in effect, limit persons to the unregulated possession of a maximum of two "things" in their libraries. But even if the presumption were to apply only upon proof of possession of three copies of the same item, it might result in punishment and deterrence of lawful activity, since the right to possess obscene material for personal use is not limited to one or two copies of each item. Juries are not so ingenuous that they will fail to draw reasonable inferences from the possession of multiple copies of obscene works. There is no necessity to add to the weight of such evidence presumptions and shifts in the burden of proof which jeopardize the exercise of free speech.

I concur insofar as the conviction of petitioner is reversed.

MR. JUSTICE MARSHALL joins this opinion.

MR. JUSTICE STEWART joins all but Part III of this opinion.