Can a local or state government make possession of material, later judicially declared to be obscene, a criminal offense without requiring that scienter be established, indicating that the possessor knew the material to be obscene? Smith, a bookstore proprietor, was convicted of violating a Los Angeles City ordinance for having an obscene book in his inventory. Judicial interpretations of the ordinance made simple possession of obscene books unlawful even if the person possessing them had no knowledge of their contents. The ordinance thus did not include scienter as an element and accordingly imposed ‘‘strict’’ or ‘‘absolute’’ criminal liability. The Supreme Court, reversing the state court, struck down the ordinance. Justice Brennan delivered the lead opinion. Justices Black, Frankfurter, and Douglas wrote separate opinions concurring only with the judgment. Justice Harlan concurred in part and dissented in part.
Brennan points out that states may not create strict criminal liabilities in those instances where the elimination of scienter may restrict freedom of speech or of the press. Such laws, he argues, discourage booksellers from including in their inventories any books they had not inspected personally with the consequence that the public’s access to books or other reading matter is restricted. The physical limitations of inspecting every book plus the bookseller’s ‘‘timidity in the face of his criminal liability’’ would constrain the public’s access to books or other material that ‘‘the State could not constitutionally suppress directly.’’
As for the argument that the regulation of obscene material would be ineffective if scienter were required, because booksellers would falsely proclaim their ignorance of a book’s obscene qualities, Brennan dismisses it with the observation that ‘‘it has been some time now since the law viewed itself as impotent to explore the actual state of a man’s mind.’’ However, Brennan also denies any need to decide in this case ‘‘what sort of mental element is requisite’’ for constitutionally permissible prosecutions of booksellers who stock obscene books. Then, in a comment that would surface as an issue in later cases, Brennan remarks, ‘‘The circumstances may warrant the inference that [the bookseller] was aware of what a book contained, despite his denial.’’
In his concurrence, Douglas, citing his dissent in Roth, simply dismisses the notion that obscene material or speech falls outside the protections of the First Amendment. Black’s concerns center on the ease with which state or local governments could add ‘‘a few new words’’ to satisfy the need for scienter to prosecute possession of obscene material. Moreover, he argues, the Court’s invalidation of an obscenity statute logically calls for ‘‘some indication’’ by the Court of what form of scienter would be appropriate rather than passing on the issue. To compound the problem, the Court’s suggestion that ‘‘awareness’’ of the obscene nature of material may satisfy scienter provides no more than an ‘‘unguiding, vague standard.’’
Frankfurter’s concurrence also focuses on the ‘‘uncertainties’’ of the scope of scienter and the ‘‘speculative proof’’ the Court’s opinion seems to require. In particular, Frankfurter objected to the state courts’ refusal to admit expert testimony, which he emphasizes is essential for establishing ‘‘prevailing literary and moral community standards’’ and the ‘‘psychological or physiological consequences of questioned literature.’’ Harlan’s concurrence reprises his view that state power over obscenity has a wider scope than federal power and that considerations of scienter vary accordingly.
ROY B. FLEMMING
References and Further Reading
Cases and Statutes Cited