BANTAM BOOKS, INC. V. SULLIVAN, 372 U. S. 58 (1963)

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U.S. Supreme Court

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)

Bantam Books, Inc. v. Sullivan

No. 118

Argued December 3, 1962

Decided February 18,1963

372 U.S. 58


The Rhode Island Legislature created a Commission

"to educate the public concerning any book . . . or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth as defined [in other sections] and to investigate and recommend the prosecution of all violations of said sections."

The Commission's practice was to notify a distributor that certain books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age. Such notices requested the distributor's "cooperation," and advised him that copies of the lists of "objectionable" publications were circulated to local police departments, and that it was the Commission's duty to recommend prosecution of purveyors of obscenity. Four out-of-state publishers of books widely distributed in the State sued in a Rhode Island court for injunctive relief and a declaratory judgment that the law and the practices thereunder were unconstitutional. The court found that the effect of the Commission's notices was to intimidate distributors and retailers and that they had resulted in the suppression of the sale of the books listed. In this Court, the State Attorney General conceded that the notices listed several publications that were not obscene within this Court's definition of the term.

Held: The system of informal censorship disclosed by this record violates the Fourteenth Amendment. Pp. 372 U. S. 59-72.

(a) The 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. Pp. 372 U. S. 65-66.

(b) Although the Rhode Island Commission is limited to informal sanctions, the record amply demonstrates that it deliberately set about to achieve the suppression of publications deemed "objectionable," and succeeded in its aim. Pp. 372 U. S. 66-67.

(c) The acts and practices of the members and Executive Secretary of the Commission were performed under color of state law,

Page 372 U. S. 59

and so constituted acts of the State within the meaning of the Fourteenth Amendment. P. 372 U. S. 68.

(d) The Commission's practice provides no safeguards whatever against the suppression of nonobscene and constitutionally protected matter, and it is a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon criminal sanctions, which may be applied only after a determination of obscenity has been made in a criminal trial hedged about with the procedural safeguards of the criminal process. Pp. 372 U. S. 68-70

(e) What Rhode Island has done, in fact, has been to subject the distribution of publications to a system of prior administrative restraints without any provision for notice and hearing before publications are listed as "objectionable" and without any provision for judicial review of the Commission's determination that such publications are "objectionable." Pp. 372 U. S. 70-72.

Reversed and cause remanded.

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