Marcus v. Search Warrant
Encyclopedia
Marcus v. Search Warrant, , full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials. The Court unanimously overturned a Missouri Supreme Court decision upholding the forfeiture
of hundreds of magazines confiscated from a Kansas City
wholesaler. It held that both Missouri's procedures for the seizure of allegedly obscene material and the execution of the warrant itself violated the Fourth
and Fourteenth
amendments' prohibitions on search and seizure without due process
. Those violations in turn threatened the rights protected by the First Amendment
.
The case had begun in 1957, when the Kansas City Police Department vice squad
raided the warehouse of a local news distributor and five newsstands. Officers seized dozens of publications, far beyond those which had started the investigation, since the search warrant
s were not specific. Less than half of the seized titles were ultimately found obscene and ordered to be burnt.
William Brennan wrote for the Court. He found the officers' conduct similar to that which had inspired the Founding Fathers to write the Fourth Amendment. The Missouri Supreme Court had incorrectly applied an earlier Court holding in sustaining the forfeiture, he added. The result was a system that operated as an effective prior restraint
. Hugo Black
, in a concurring opinion
joined by William O. Douglas
, restated his conviction that the Fourteenth Amendment applies all the rights protected by the Constitution to the states.
Marcus broke ground in holding that First Amendment interests required an additional layer of procedure than other instances of seizure. It would figure prominently in later obscenity cases involving seizures, including one, Quantity of Books v. Kansas
, that explicitly tried to take its holding into account. After the Court settled on a definition of obscenity in the early 1970s, it continued to hear other cases on the issues first addressed in Marcus.
'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
. 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.
Criminal trials for obscenity were becoming more frequent and more of a risk for local prosecutors. Civil libertarians rallied around the defendants, creating negative publicity and increasing the chance of acquittals. Convictions were struck down on appeal. So some local authorities decided to combat obscenity through the use of civil forfeiture
of obscene material. In civil cases, they had a lower burden of proof, needing to show only by a preponderance of evidence that the material was obscene, with no actual person as a defendant.
was investigating the distribution of magazines which might have met the state's definition of obscenity. As part of that investigation, he visited the office of Kansas City News Distributors, a wholesale
r which sold all types of printed material to newsstands all over the city and its metropolitan area. He showed Homer Smay, the manager, a list of a possibly obscene magazine titles and asked if he distributed any of them. Smay confirmed that the wholesaler distributed all but one.
Coughlin visited five of the newsstands the wholesaler sold to and bought a copy of one of the listed magazines. He then filed affidavit
s for the newsstands and the main office of Kansas City News Distributors with a Jackson County
circuit court judge, who issued search warrant
s that did not list any specific titles nor specify in detail the types of materials to be seized, merely repeating the definition of obscenity in the Missouri statutes. Two days later, Coughlin and other KCPD officers, with some help from the county sheriff
's office, executed the warrants.
At the wholesalers' main office, the officers confiscated not only copies of the titles on Coughlin's list but anything else that at least one thought might be obscene. After three hours of searching through stock including a million copies of magazines, they took 11,000 copies representing 280 separate titles, as well as some books and still photographs.The seized material was later described as "so-called 'girlie' magazines, nudist
magazines, treatises and manuals on sex, photography magazines, cartoon and joke books, and still photographs." (Marcus, 367 U.S. at 723, note 8). The seized material was transported to the 15th floor of the county courthouse. No arrests were made.
A week later, per statute, the judge held a hearing at which the claimants were allowed to challenge the obscenity findings of the material involved. They made motions to quash the warrant and search as unconstitutional since there had been no prior hearing, and it had allowed the officers executing the search had been allowed to seize almost anything. As a result of this argument, the case became an in rem action with the search warrant itself as defendant, since no unlawful conduct could be argued on the part of the officers or even the state of Missouri itself. Two months later, the judge held the search valid but ordered 180 of the magazine titles returned as they were not obscene. Copies of the other hundred were ordered to be burned publicly
as required by the statute.
An appeal was made to the Missouri Supreme Court. It relied on the recent U.S. Supreme Court decision in Kingsley Books Inc. v. Brown, where a New York statute permitting authorities to obtain an injunction
against the sale of any obscene material was upheld, and held the search and seizure to be constitutional. The appellants then appealed to the U.S. Supreme Court, which granted certiorari
in the fall 1960 term.
Thomas Eagleton
, was credited as a coauthor of the state's brief
.
In late June, near the end of the term, the Court announced its decision. Unanimously, it had held for the claimants that the search and seizure were unconstitutional. William Brennan wrote a majority opinion
. Hugo Black wrote a short concurrence
joined by William O. Douglas
.
is not new", Brennan began. "Historically, the struggle for freedom of speech
and press
in England was bound up with the issue of the scope of the search and seizure power." Citing histories of the former, he traced the beginning of that struggle to the Royal Charter
granted the Stationers' Company
in the middle of the 16th century, which gave it the power to search printers at pleasure and seize any material that might violate any law or royal proclamation.
This authority continued in various forms, through various bodies, until it was condemned by judicial warrants in the cases brought by the Crown against John Wilkes
, publisher of The North Briton
, during the 1760s. Those cases culminated in the landmark Entick v Carrington
, which the Court itself had called, in Boyd v. United States
, "one of the landmarks of English liberty". "This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped", Brennan wrote. "The Bill of Rights
was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression."
Having concluded his review of the background history, Brennan turned to the present. "The question here is whether the use by Missouri in this case of the search and seizure
power to suppress obscene publications involved abuses inimical to protected expression." While Brennan had held for the Court in Roth that obscenity did not come under the First Amendment
's protections, it was a complex issue since not all material dealing with sex and sexuality was inherently obscene. Thus the process of suppressing it was necessarily limited by the concern for possibly protected expression, as it had recognized in overturning the criminal conviction of a Los Angeles bookseller under a strict liability
standard in Smith v. California
.
The Missouri Supreme Court had refused to distinguish between the seizure of obscene material and the seizure of other contraband
such as illegal drugs or gambling implements, also required by law to be destroyed. This Brennan held to be erroneous:
Nothing better demonstrated that adequate constitutional safeguards were lacking, Brennan noted, than the circuit court's eventual ruling that less than half of the seized magazines were obscene. "Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees."
Brennan described the lower court's reliance on Kingsley Books as "misplaced". The New York statute had required that a court actual review the material alleged to be obscene and that the injunction be limited to the distribution of the reviewed material. It also mandated the hearing within a day of the injunction and a verdict within two days of the hearing, whereas Missouri's statute imposed no time limit. Nor did the case "support the proposition that the State may impose the extensive restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity, irrespective of whether or not the material is legally obscene" since it had merely allowed the issuance of an injunction against sale of the book, not the seizure and possible destruction of the book.
"[T]he restraint on the circulation of publications [here] was far more thoroughgoing and drastic than any restraint upheld by this Court in Kingsley Books," Brennan concluded. "Mass seizure in the fashion of this case was thus effected without any safeguards to protect legitimate expression. The judgment of the Missouri Supreme Court sustaining the condemnation of the 100 publications therefore cannot be sustained."
Black's short concurrence emphasized the Fourteenth Amendment
aspect of the holding, making the provisions of the Fourth Amendment fully applicable to the states as well as the federal government. He expressed that view again, citing dissents to that effect he had either written or joined.Specifically, he referred to Adamson v. California
, , 68, (1947), Black, J., dissenting; Frank v. Maryland
, , 374, (1959), Douglas, J., dissenting. He also felt the Court's then-recent holding in Mapp v. Ohio
extending the exclusionary rule
to state prosecutions strengthened this view.
of neighboring Kansas tried to adapt that state's procedures to the decision. Later in 1961 lawyers with his office filed informations with some county circuit courts naming specific titles, and requesting that the judges in the case actually review copies of the material named. Both went beyond the requirements of Kansas law.
On the basis of those determinations, search warrant
s were issued. In Junction City
, officers seized almost 2,000 copies of the named books from one local distributor. As its Missouri counterpart had, it challenged the obscenity finding in court, which ruled in favor of the state. After an appeal to the Kansas Supreme Court
failed, the U.S. Supreme Court heard Quantity of Books v. Kansas
in 1963.
Brennan again wrote for a 7–2 majority that reaffirmed and expanded the Marcus holding. The Kansas seizure unconstitutional as well, the Court said, since it did not provide for an adversary hearing where the distributor could challenge the obscenity allegation prior to seizure. Black, joined by Douglas, in his concurrence
reiterated both justices' firm opposition to any government regulation of obscenity; and Potter Stewart
concurred separately, finding the books at issue did not constitute hardcore pornography
, the only material he felt beyond First Amendment protections. In dissent
, John Marshall Harlan II
wrote for himself and Tom Clark
found the case and procedure more similar to Kingsley Books than Marcus, and said the Missouri Supreme Court should have been affirmed.
The following year Brennan again relied on his holdings in both Marcus and Quantity of Books when striking down Maryland's film-licensing system since it was a purely executive-branch function. "[O]nly a procedure requiring a judicial determination suffices to impose a valid final restraint", he wrote in Freedman v. Maryland
. In two later cases similar to Marcus the Court reaffirmed it as applying to the seizure of allegedly obscene films as well. Lee Art Theatre, Inc. v. Virginia, a 1968 per curiam opinion, did not reach the issue of whether a judicial officer needed to review a film as well as a book, but reversed the conviction on the same grounds as Marcus—that the judge simply relied on the investigatign officer's affidavit in issuing the warrant. Five years later, Roaden v. Kentucky, similarly built on Marcus to reverse a conviction based on a warrantless seizure of the film while it was being shown, which the Court held did not constitute exigent circumstances.
The Court reached the limits of Marcus in 1985, when it upheld the warrantless arrest and later conviction of a retail store clerk in Macon v. Maryland since the obscene material was seized incident to a lawful arrest
. Sandra Day O'Connor
distinguished the case from Marcus and its successors by noting that the arresting officers had obtained the material by purchasing it from racks open to the public, where no reasonable expectation of privacy existed, thus legally no search had occurred. Brennan, in dissent, found the police actions no less intrusive than he had in Marcus and called the holding "an end run around constitutional requirements carefully crafted to guard our liberty of expression."
Outside of the Court's obscenity cases, Brennan also rested his majority holding in NAACP v. Button
, reversing the Virginia Supreme Court of Appeals' ruling that the civil rights organization could not solicit litigants, on the dangers to First Amendment rights posed by overbroad statutes recognized by Marcus. Stewart found it more directly applicable when holding for the Court in Stanford v. Texas
that allegedly pro-Communist subversive material could not be seized on such a vaguely worded warrant. "No less a standard could be faithful to First Amendment freedoms", he wrote. "The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case."
rejected a defense claim that the holding required judicial review of all material alleged to be obscene. After the Eighth Circuit
affirmed Marcus' s First Amendment protections extended to searches intended to find indicia of membership in an organization in 1983, the Fifth Circuit
held 12 years later that it did not apply to seizures of material with First Amendment implications when that material was sought not for its possible content but to corroborate a witness's testimony.In that case one of the daughters of a defendant facing child molestation charges had told investigators of a large stash of child pornography
which he showed them while molesting them.
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
of hundreds of magazines confiscated from a Kansas City
Kansas City, Missouri
Kansas City, Missouri is the largest city in the U.S. state of Missouri and is the anchor city of the Kansas City Metropolitan Area, the second largest metropolitan area in Missouri. It encompasses in parts of Jackson, Clay, Cass, and Platte counties...
wholesaler. It held that both Missouri's procedures for the seizure of allegedly obscene material and the execution of the warrant itself violated the Fourth
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
and Fourteenth
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
amendments' prohibitions on search and seizure without due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
. Those violations in turn threatened the rights protected by the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
.
The case had begun in 1957, when the Kansas City Police Department vice squad
Vice Squad
Vice Squad is a punk band formed in 1978 in Bristol, England. The band formed from two other local punk bands, The Contingent and TV Brakes. Songwriter and vocalist Beki Bondage was a founding member and is currently with the band, although there was a period of time when the band had a different...
raided the warehouse of a local news distributor and five newsstands. Officers seized dozens of publications, far beyond those which had started the investigation, since the search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
s were not specific. Less than half of the seized titles were ultimately found obscene and ordered to be burnt.
William Brennan wrote for the Court. He found the officers' conduct similar to that which had inspired the Founding Fathers to write the Fourth Amendment. The Missouri Supreme Court had incorrectly applied an earlier Court holding in sustaining the forfeiture, he added. The result was a system that operated as an effective prior restraint
Prior restraint
Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...
. Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
, in a concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
joined by William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
, restated his conviction that the Fourteenth Amendment applies all the rights protected by the Constitution to the states.
Marcus broke ground in holding that First Amendment interests required an additional layer of procedure than other instances of seizure. It would figure prominently in later obscenity cases involving seizures, including one, Quantity of Books v. Kansas
Quantity of Books v. Kansas
Quantity of Books v. Kansas, is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material...
, that explicitly tried to take its holding into account. After the Court settled on a definition of obscenity in the early 1970s, it continued to hear other cases on the issues first addressed in Marcus.
Background of the case
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 AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
'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
United States v. One Book Called Ulysses
United States v. One Book Called Ulysses was a 1933 case in the United States District Court for the Southern District of New York dealing with freedom of expression. At issue was whether James Joyce's novel Ulysses was obscene. In deciding it was not, Judge John M...
, Judge John M. Woolsey
John M. Woolsey
John Munro Woolsey was a United States federal judge in New York City.Born in Aiken, South Carolina, Woolsey attended Phillips Academy, and received an A.B. from Yale University in 1898. He was awarded an LL.B. from Columbia Law School in 1901, where he was a founder of the Columbia Law Review...
of the Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
ruled that James Joyce
James Joyce
James Augustine Aloysius Joyce was an Irish novelist and poet, considered to be one of the most influential writers in the modernist avant-garde of the early 20th century...
's novel Ulysses
Ulysses (novel)
Ulysses is a novel by the Irish author James Joyce. It was first serialised in parts in the American journal The Little Review from March 1918 to December 1920, and then published in its entirety by Sylvia Beach on 2 February 1922, in Paris. One of the most important works of Modernist literature,...
, 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
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
judges Learned
Learned Hand
Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...
and Augustus Hand
Augustus Noble Hand
Augustus Noble Hand was an American judge who served on the United States District Court for the Southern District of New York and later on the United States Court of Appeals for the Second Circuit. His most notable rulings restricted the reach of obscenity statutes in the areas of literature and...
upheld Woolsey on appeal, and the book, considered a masterpiece of modernist literature
Modernist literature
Modernist literature is sub-genre of Modernism, a predominantly European movement beginning in the early 20th century that was characterized by a self-conscious break with traditional aesthetic forms...
, could be freely published and sold.
Censorship
Censorship in the United States
In general, censorship in the United States, which involves the suppression of speech or other public communication, raises issues of freedom of speech, which is constitutionally protected by the First Amendment to the United States Constitution....
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
Roth v. United States
Roth v. United States, , along with its companion case, Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.- Prior history :Under the common...
. William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
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
Warren Court
The Warren Court refers to the Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents...
had to hear more cases arising from subsequent prosecutions in the next decade, during which the Sexual Revolution
Sexual revolution
The sexual revolution was a social movement that challenged traditional codes of behavior related to sexuality and interpersonal relationships throughout the Western world from the 1960s into the 1980s...
began a more direct challenge to social mores on the issue.
Criminal trials for obscenity were becoming more frequent and more of a risk for local prosecutors. Civil libertarians rallied around the defendants, creating negative publicity and increasing the chance of acquittals. Convictions were struck down on appeal. So some local authorities decided to combat obscenity through the use of civil forfeiture
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...
of obscene material. In civil cases, they had a lower burden of proof, needing to show only by a preponderance of evidence that the material was obscene, with no actual person as a defendant.
Underlying dispute
In October 1957, a Lt. Coughlin of the Kansas City Police Department's (KCPD) vice squadVice Squad
Vice Squad is a punk band formed in 1978 in Bristol, England. The band formed from two other local punk bands, The Contingent and TV Brakes. Songwriter and vocalist Beki Bondage was a founding member and is currently with the band, although there was a period of time when the band had a different...
was investigating the distribution of magazines which might have met the state's definition of obscenity. As part of that investigation, he visited the office of Kansas City News Distributors, a wholesale
Wholesale
Wholesaling, jobbing, or distributing is defined as the sale of goods or merchandise to retailers, to industrial, commercial, institutional, or other professional business users, or to other wholesalers and related subordinated services...
r which sold all types of printed material to newsstands all over the city and its metropolitan area. He showed Homer Smay, the manager, a list of a possibly obscene magazine titles and asked if he distributed any of them. Smay confirmed that the wholesaler distributed all but one.
Coughlin visited five of the newsstands the wholesaler sold to and bought a copy of one of the listed magazines. He then filed affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
s for the newsstands and the main office of Kansas City News Distributors with a Jackson County
Jackson County, Missouri
Jackson County is a county located in the U.S. state of Missouri. With a population of 674,158 in the 2010 census, Jackson County is the second most populous of Missouri's counties, after St. Louis County. Kansas City, the state's most populous city and focus city of the Kansas City Metropolitan...
circuit court judge, who issued search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
s that did not list any specific titles nor specify in detail the types of materials to be seized, merely repeating the definition of obscenity in the Missouri statutes. Two days later, Coughlin and other KCPD officers, with some help from the county sheriff
Sheriff
A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....
's office, executed the warrants.
At the wholesalers' main office, the officers confiscated not only copies of the titles on Coughlin's list but anything else that at least one thought might be obscene. After three hours of searching through stock including a million copies of magazines, they took 11,000 copies representing 280 separate titles, as well as some books and still photographs.The seized material was later described as "so-called 'girlie' magazines, nudist
Naturism
Naturism or nudism is a cultural and political movement practising, advocating and defending social nudity in private and in public. It may also refer to a lifestyle based on personal, family and/or social nudism....
magazines, treatises and manuals on sex, photography magazines, cartoon and joke books, and still photographs." (Marcus, 367 U.S. at 723, note 8). The seized material was transported to the 15th floor of the county courthouse. No arrests were made.
A week later, per statute, the judge held a hearing at which the claimants were allowed to challenge the obscenity findings of the material involved. They made motions to quash the warrant and search as unconstitutional since there had been no prior hearing, and it had allowed the officers executing the search had been allowed to seize almost anything. As a result of this argument, the case became an in rem action with the search warrant itself as defendant, since no unlawful conduct could be argued on the part of the officers or even the state of Missouri itself. Two months later, the judge held the search valid but ordered 180 of the magazine titles returned as they were not obscene. Copies of the other hundred were ordered to be burned publicly
Book burning
Book burning, biblioclasm or libricide is the practice of destroying, often ceremoniously, books or other written material and media. In modern times, other forms of media, such as phonograph records, video tapes, and CDs have also been ceremoniously burned, torched, or shredded...
as required by the statute.
An appeal was made to the Missouri Supreme Court. It relied on the recent U.S. Supreme Court decision in Kingsley Books Inc. v. Brown, where a New York statute permitting authorities to obtain an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
against the sale of any obscene material was upheld, and held the search and seizure to be constitutional. The appellants then appealed to the U.S. Supreme Court, which granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
in the fall 1960 term.
Decision
The Court heard oral arguments in March 1961. Sidney Glazer argued for the claimants. Fred Howard, a Missouri assistant attorney general, argued for the state. His superior, Missouri Attorney GeneralMissouri Attorney General
The Office of the Missouri Attorney General was created in 1806 when Missouri was part of the Louisiana Territory. Missouri's first Constitution in 1820 provided for an appointed Attorney General, but since the 1865 Constitution, the Attorney General has been elected...
Thomas Eagleton
Thomas Eagleton
Thomas Francis Eagleton was a United States Senator from Missouri, serving from 1968–1987. He is best remembered for briefly being the Democratic vice presidential nominee under George McGovern in 1972...
, was credited as a coauthor of the state's brief
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
.
In late June, near the end of the term, the Court announced its decision. Unanimously, it had held for the claimants that the search and seizure were unconstitutional. William Brennan wrote a majority opinion
Majority opinion
In law, a majority opinion is a judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision....
. Hugo Black wrote a short concurrence
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
joined by William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
.
Opinions
"The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publicationsCensorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
is not new", Brennan began. "Historically, the struggle for freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...
in England was bound up with the issue of the scope of the search and seizure power." Citing histories of the former, he traced the beginning of that struggle to the Royal Charter
Royal Charter
A royal charter is a formal document issued by a monarch as letters patent, granting a right or power to an individual or a body corporate. They were, and are still, used to establish significant organizations such as cities or universities. Charters should be distinguished from warrants and...
granted the Stationers' Company
Worshipful Company of Stationers and Newspaper Makers
The Worshipful Company of Stationers and Newspaper Makers is one of the Livery Companies of the City of London. The Stationers' Company was founded in 1403; it received a Royal Charter in 1557...
in the middle of the 16th century, which gave it the power to search printers at pleasure and seize any material that might violate any law or royal proclamation.
This authority continued in various forms, through various bodies, until it was condemned by judicial warrants in the cases brought by the Crown against John Wilkes
John Wilkes
John Wilkes was an English radical, journalist and politician.He was first elected Member of Parliament in 1757. In the Middlesex election dispute, he fought for the right of voters—rather than the House of Commons—to determine their representatives...
, publisher of The North Briton
The North Briton
The North Briton was a radical newspaper published in 18th century London. The North Briton also served as the pseudonym of the newspaper's author, used in advertisements, letters to other publications, and handbills....
, during the 1760s. Those cases culminated in the landmark Entick v Carrington
Entick v Carrington
Entick v Carrington [1765] is a leading case in English law establishing the civil liberties of individuals and limiting the scope of executive power. The case has also been influential in other common law jurisdictions and was an important motivation for the Fourth Amendment to the United States...
, which the Court itself had called, in Boyd v. United States
Boyd v. United States
Boyd v. United States, , was a decision by the United States Supreme Court, which held that “a search and seizure [was] equivalent [to] a compulsory production of a man's private papers” and that the search was “an 'unreasonable search and seizure' within the meaning of the Fourth Amendment.”In the...
, "one of the landmarks of English liberty". "This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped", Brennan wrote. "The Bill of Rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression."
Having concluded his review of the background history, Brennan turned to the present. "The question here is whether the use by Missouri in this case of the search and seizure
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
power to suppress obscene publications involved abuses inimical to protected expression." While Brennan had held for the Court in Roth that obscenity did not come under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
's protections, it was a complex issue since not all material dealing with sex and sexuality was inherently obscene. Thus the process of suppressing it was necessarily limited by the concern for possibly protected expression, as it had recognized in overturning the criminal conviction of a Los Angeles bookseller under a strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
standard in Smith v. California
Smith v. California
Smith v. California is a 1959 U.S. Supreme Court decision upholding the freedom of the press. The decision deemed unconstitutional a city ordinance that made one in possession of obscene books criminally liable because it did not require proof that one had knowledge of the book’s content, and thus...
.
The Missouri Supreme Court had refused to distinguish between the seizure of obscene material and the seizure of other contraband
Contraband
The word contraband, reported in English since 1529, from Medieval French contrebande "a smuggling," denotes any item which, relating to its nature, is illegal to be possessed or sold....
such as illegal drugs or gambling implements, also required by law to be destroyed. This Brennan held to be erroneous:
Nothing better demonstrated that adequate constitutional safeguards were lacking, Brennan noted, than the circuit court's eventual ruling that less than half of the seized magazines were obscene. "Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees."
Brennan described the lower court's reliance on Kingsley Books as "misplaced". The New York statute had required that a court actual review the material alleged to be obscene and that the injunction be limited to the distribution of the reviewed material. It also mandated the hearing within a day of the injunction and a verdict within two days of the hearing, whereas Missouri's statute imposed no time limit. Nor did the case "support the proposition that the State may impose the extensive restraints imposed here on the distribution of these publications prior to an adversary proceeding on the issue of obscenity, irrespective of whether or not the material is legally obscene" since it had merely allowed the issuance of an injunction against sale of the book, not the seizure and possible destruction of the book.
"[T]he restraint on the circulation of publications [here] was far more thoroughgoing and drastic than any restraint upheld by this Court in Kingsley Books," Brennan concluded. "Mass seizure in the fashion of this case was thus effected without any safeguards to protect legitimate expression. The judgment of the Missouri Supreme Court sustaining the condemnation of the 100 publications therefore cannot be sustained."
Black's short concurrence emphasized the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
aspect of the holding, making the provisions of the Fourth Amendment fully applicable to the states as well as the federal government. He expressed that view again, citing dissents to that effect he had either written or joined.Specifically, he referred to Adamson v. California
Adamson v. California
Adamson v. California, 332 U.S. 46 was a United States Supreme Court case regarding the incorporation of the Fifth Amendment of the Bill of Rights. Its decision is part of a long line of cases that eventually led to the Selective Incorporation Doctrine.-Background:In Adamson v...
, , 68, (1947), Black, J., dissenting; Frank v. Maryland
Frank v. Maryland
Frank v. Maryland, 359 U.S. 360 , was United States Supreme Court interpreting the Fourth Amendment to the United States Constitution.Frank refused to allow the health inspectors into his home citing the Fourth Amendment...
, , 374, (1959), Douglas, J., dissenting. He also felt the Court's then-recent holding in Mapp v. Ohio
Mapp v. Ohio
Mapp v. Ohio, , was a landmark case in criminal procedure, in which the United States Supreme Court decided that evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures," may not be used in criminal prosecutions in state courts, as well as...
extending the exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
to state prosecutions strengthened this view.
Subsequent jurisprudence
Marcus became the first of a line of cases mandating procedural safeguards where allegedly obscene material was seized. Shortly after it was handed down William M. Ferguson, Attorney GeneralKansas Attorney General
The Attorney General of Kansas is a statewide elected official responsible for providing legal services to the state government of Kansas.-Divisions:* Criminal Justice* Civil Litigation* Consumer Protection* Concealed Carry...
of neighboring Kansas tried to adapt that state's procedures to the decision. Later in 1961 lawyers with his office filed informations with some county circuit courts naming specific titles, and requesting that the judges in the case actually review copies of the material named. Both went beyond the requirements of Kansas law.
On the basis of those determinations, search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
s were issued. In Junction City
Junction City, Kansas
Junction City is a city in and the county seat of Geary County, Kansas, United States. As of the 2010 census, the city population was 23,353. Fort Riley, a major U.S. Army post, is nearby...
, officers seized almost 2,000 copies of the named books from one local distributor. As its Missouri counterpart had, it challenged the obscenity finding in court, which ruled in favor of the state. After an appeal to the Kansas Supreme Court
Kansas Supreme Court
The Kansas Supreme Court is the highest judicial authority in the state of Kansas. Composed of seven justices, led by Chief Justice Lawton Nuss, the Court supervises the legal profession, administers over the judicial branch, and serves as the state court of last resort in the appeals...
failed, the U.S. Supreme Court heard Quantity of Books v. Kansas
Quantity of Books v. Kansas
Quantity of Books v. Kansas, is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material...
in 1963.
Brennan again wrote for a 7–2 majority that reaffirmed and expanded the Marcus holding. The Kansas seizure unconstitutional as well, the Court said, since it did not provide for an adversary hearing where the distributor could challenge the obscenity allegation prior to seizure. Black, joined by Douglas, in his concurrence
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
reiterated both justices' firm opposition to any government regulation of obscenity; and Potter Stewart
Potter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
concurred separately, finding the books at issue did not constitute hardcore pornography
Hardcore pornography
Hardcore pornography is a form of pornography that features explicit sexual acts. The term was coined in the second half of the 20th century to distinguish it from softcore pornography. It usually takes the form of photographs, often displayed in magazines or on the Internet, or films. It can also...
, the only material he felt beyond First Amendment protections. In dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, John Marshall Harlan II
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
wrote for himself and Tom Clark
Tom C. Clark
Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...
found the case and procedure more similar to Kingsley Books than Marcus, and said the Missouri Supreme Court should have been affirmed.
The following year Brennan again relied on his holdings in both Marcus and Quantity of Books when striking down Maryland's film-licensing system since it was a purely executive-branch function. "[O]nly a procedure requiring a judicial determination suffices to impose a valid final restraint", he wrote in Freedman v. Maryland
Freedman v. Maryland
Freedman v. Maryland, , is a United States Supreme Court case that ended government-operated rating boards with a decision that a rating board could only approve a film and had no power to ban a film. The ruling also concluded that a rating board must either approve a film within a reasonable time,...
. In two later cases similar to Marcus the Court reaffirmed it as applying to the seizure of allegedly obscene films as well. Lee Art Theatre, Inc. v. Virginia, a 1968 per curiam opinion, did not reach the issue of whether a judicial officer needed to review a film as well as a book, but reversed the conviction on the same grounds as Marcus—that the judge simply relied on the investigatign officer's affidavit in issuing the warrant. Five years later, Roaden v. Kentucky, similarly built on Marcus to reverse a conviction based on a warrantless seizure of the film while it was being shown, which the Court held did not constitute exigent circumstances.
The Court reached the limits of Marcus in 1985, when it upheld the warrantless arrest and later conviction of a retail store clerk in Macon v. Maryland since the obscene material was seized incident to a lawful arrest
Searches incident to a lawful arrest
In most cases, a search warrant is required to perform a lawful search. An long-recognized exception to this requirement is searches incident to a lawful arrest. This rule permits an officer to perform a warrantless search during or immediately after a lawful arrest...
. Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
distinguished the case from Marcus and its successors by noting that the arresting officers had obtained the material by purchasing it from racks open to the public, where no reasonable expectation of privacy existed, thus legally no search had occurred. Brennan, in dissent, found the police actions no less intrusive than he had in Marcus and called the holding "an end run around constitutional requirements carefully crafted to guard our liberty of expression."
Outside of the Court's obscenity cases, Brennan also rested his majority holding in NAACP v. Button
NAACP v. Button
NAACP v. Button, 371 U.S. 415 is a 6-to-3 ruling by the Supreme Court of the United States which held that the reservation of jurisdiction by a federal district court did not bar the U.S...
, reversing the Virginia Supreme Court of Appeals' ruling that the civil rights organization could not solicit litigants, on the dangers to First Amendment rights posed by overbroad statutes recognized by Marcus. Stewart found it more directly applicable when holding for the Court in Stanford v. Texas
Stanford v. Texas
Stanford v. Texas, 379 U.S. 476 , is a major decision of the Supreme Court of the United States. It stated in clear terms that, pursuant to the Fourteenth Amendment, the Fourth Amendment rules regarding search and seizure applied to state governments. While this principle had been outlined in other...
that allegedly pro-Communist subversive material could not be seized on such a vaguely worded warrant. "No less a standard could be faithful to First Amendment freedoms", he wrote. "The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case."
Appellate courts
A few appellate decisions have ventured to expand or clarify Marcus, some a considerable amount of time since it was handed down. In a 1981 case, United States v. Espinoza, the Fourth CircuitUnited States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
rejected a defense claim that the holding required judicial review of all material alleged to be obscene. After the Eighth Circuit
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
affirmed Marcus
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
held 12 years later that it did not apply to seizures of material with First Amendment implications when that material was sought not for its possible content but to corroborate a witness's testimony.In that case one of the daughters of a defendant facing child molestation charges had told investigators of a large stash of child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
which he showed them while molesting them.
See also
- List of United States Supreme Court cases, volume 367
- List of United States Supreme Court cases by the Warren Court
- List of United States Supreme Court cases involving the First Amendment