Kois v. Wisconsin, 408 U.S. 229 (1972)

Kois edited the ‘‘Kaleidoscope,’’ an underground, radical newspaper in Madison, Wisconsin. He was convicted and sentenced to two consecutive one-year terms in prison and fined $2,000 for publishing two photographs that accompanied a story in the interior of the paper dealing with the arrest of the paper’s photographer for possessing obscene material and for publishing on a separate occasion a poem recalling the author’s recollection of sexual intercourse. The Supreme Court in a per curiam opinion reversed Wisconsin’s Supreme Court that had affirmed Kois’ conviction. Justice Douglas concurred only in the judgment.

The per curiam explained the Wisconsin court erred with regard to the first offense, because it failed to recognize that the photographs only illustrated the theme or point of the story. ‘‘We do not think it can fairly be said, either considering the article as it appears or the record before the state court, that the article was a mere vehicle for the publication of the pictures.’’ The opinion then added, ‘‘A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication. . .’’ In the instance of the ‘‘Kaleidoscope’’ article and the two photographs, however, no similar subterfuge had been attempted.

As for the sexually explicit poem, the second offense for which Kois was convicted, the lower court erred by ignoring Roth’s emphasis that ‘‘sex and obscenity are not synonymous. . . The portrayal of sex. . . is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.’’ In essence, the lower court failed to ‘‘look at the context of the material as well as its content.’’ The opinion then added, given the placement and location of the poem in the paper, ‘‘we believe it bears some of the earmarks of an attempt at serious art.’’ Context and indications of seriousness might factor into assessments of whether the ‘‘dominant’’ theme of the material appeals to prurient interests, because ‘‘the ‘dominance’ of the theme is a question of constitutional fact.’’

Douglas’ concurrence protested the problems he thought Roth and its progeny had created for the Supreme Court, lower courts, law enforcement, and private individuals by trying to carve out an exception to the First Amendment. This case, he pointed out, provided ample proof of ‘‘the morass in which this Court has placed itself in the area of obscenity. Men are sent to prison under definitions which they cannot understand and on which lower courts and members of this Court cannot agree.’’

ROY B. FLEMMING

Cases and Statutes Cited

• Kois v. Wisconsin, 408 U.S. 229 (1972)
• Roth v. United States, 354 U.S. 476 (1957)