Quantity of Books v. Kansas

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1964 United States Supreme Court case

Quantity of Books v. Kansas, 378 U.S. 205 (1964), is an _in rem _ United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material. By a 7–2 margin, the Court held that a seizure of the books was unconstitutional , since no hearing had been held on whether the books were obscene, and it reversed a Kansas Supreme Court decision that upheld the seizure.

The case arose several years earlier when police in Junction City, Kansas raided an adult bookstore . The state's Attorney General , William M. Ferguson , had previously filed an information with the county court listing 51 titles published by Nightstand Books as allegedly obscene; at the bookstore, 31 of those titles found, and 1,175 books were seized. These procedures were believed to be in keeping with the Supreme Court's recent _Marcus v. Search Warrant _ decision, which held that some sort of judicial review was necessary to determine if seized material was obscene prior to seizure.

Justice William Brennan wrote for a four-justice plurality that considered the case strictly on procedural grounds, without reaching the question of the books' obscenity. It could, he said, operate as a form of prior restraint . In one of two separate concurrences , Justice Hugo Black reaffirmed his earlier blanket opposition to all legal suppression of obscenity, in which he was joined by William O. Douglas . Justice Potter Stewart said that the books in question were not hardcore pornography , which was the only material that he could consider holding to be unprotected by the First Amendment in Quantity of Books's companion case, _Jacobellis v. Ohio _ (where he had also defined it with his oft-quoted line "I know it when I see it ").

In dissent , Justice John Marshall Harlan II wrote for himself and Tom Clark in faulting Brennan's application of the precedents he relied on. He also disputed whether the procedure was truly prior restraint, since it did not review the material prior to publication . The Court, he concluded, was unfairly denying Kansas the full range of legal tools it might otherwise have had to pursue if it had decided it was an important state interest.[_clarification needed
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Background

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For most of American history , literary and artistic works depicting, or even alluding to, sexual acts and topics or using profane language had been banned from publication or distribution, often by both confiscation of the works themselves and criminal prosecution of all individuals involved, following the traditions of English common law on obscenity and statutes at the state and federal levels. At the same time, demand for such materials continued, and the laws were often widely flouted. No defendant or claimant in such an action had ever persuaded a court to entertain the argument that the First Amendment 's guarantees of free speech and free expression barred them.

That began to change during the 20th century, in response to social and cultural trends of greater tolerance for literature and art that depicted such proscribed material. In the landmark 1933 case _United States v. One Book Called Ulysses _, Judge John M. Woolsey of the Southern District of New York ruled that James Joyce 's novel _Ulysses _, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from the United States purely on the basis of its language and content without considering its literary merit . Second Circuit judges Learned and Augustus Hand upheld Woolsey on appeal , and the book, considered a masterpiece of modernist literature , could be freely published and sold.

Censorship battles continued in the next decades over other works of literature and art, such as _Lady Chatterley's Lover _, expanding to include films. In 1957, the Supreme Court finally considered a case arising from an obscenity prosecution, _Roth v. United States _. Justice William Brennan wrote for a 6–3 majority that upheld the criminal conviction but abandoned the century-old Hicklin test in favor of a narrower definition of obscenity. It did not settle the issue, however, and the Warren Court had to hear more cases arising from subsequent prosecutions in the next decade, during which the Sexual Revolution began a more direct challenge to social mores on the issue.

Some of those cases did not implicate the issue of obscenity itself but the procedures that were used to suppress it. In 1961, the Court had heard _Marcus v. Search Warrant _, in which several bookstores in Kansas City, Missouri , had challenged the seizure of some of their wares prior to any hearing at which they could contest the finding of obscenity. The Court had unanimously found this procedure violated the Fourth and Fourteenth Amendments , since there were First Amendment interests at stake in obscenity prosecutions that were not present in other forfeiture cases.

Geary County Courthouse

In 1961, shortly after Marcus, William M. Ferguson, Kansas's Attorney General , filed an information in Geary County district court naming 59 titles, all bearing the subhead, "This is an original

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