Redrup v. New York, 386 U.S. 767 (1967)

Redrup consolidated three obscenity cases from New York, Kentucky, and Arkansas; the first two cases involved appeals of criminal convictions for selling allegedly obscene material while the third appealed a civil action enjoining the distribution of various magazines and their destruction. In a per curiam opinion, the Court reversed the three lower courts’ decisions; Harlan’s dissent was joined by Clark.

The Court granted certiorari and review because it presumed the material in question was ‘‘obscene in the constitutional sense,’’ but ultimately concluded that the assumption was invalid. It then decided the cases on a common basis, declaring the distribution of the publications in the cases was protected from governmental suppression, whether criminal or civil, in personam or in rem.

The Court noted that the cases did not involve juveniles; the sale or distribution of material sufficiently obtrusive that unwilling individuals could not avoid exposure to it; and there was no suggestion of ‘‘pandering,’’ which the Court considered significant in Ginzburg v. United States (1966). This itemization of what the cases did not involve led many observers to consider Redrup, despite being a per curiam decision, as important in sorting out the Court’s previous obscenity decisions; sexually explicit material or its sale featuring one or more of these facts was unlikely to be protected under the First Amendment.

For the justices, Redrup provided grounds for the summary disposition of a stockpile of cases during the 1966 term and other cases later on (for example, Cain v. Kentucky [1970] or Hoyt v. Minnesota [1970]). As to whether Redrup extricated the Court from the controversies its decisions created is another matter, as the Redrup opinion explicitly revealed the different, conflicting views among the justices regarding whether and how to apply the Roth standard; these divisions would reappear in subsequent cases.

The justices who voted to reverse the lower court in Redrup focused originally on the scienter requirement that the government prove Redrup knew the books he sold were obscene. Fortas, convinced that the obscenity exception to the First Amendment should be limited only to instances of pandering, was assigned to prepare the Court’s per curiam opinion and accordingly wrote a draft on this basis. Brennan circulated a memorandum supporting Fortas’s approach but upon different scienter grounds. Stewart distributed a memorandum arguing that the books were not obscene. In the end, because the justices could not agree on a common constitutional definition of scienter, the majority, except for the two dissenters, coalesced around Stewart’s position and, using a per curiam opinion, reversed the lower courts because the books Redrup sold were not obscene. Harlan, who had prepared a long dissent that attacked the majority’s scienter rationale, instead issued a brief one criticizing the majority’s handling of Redrup and the other cases.

In Miller v. California (1973), a major transition in the Court’s obscenity jurisprudence, Chief Justice Burger appended a footnote to his ruling that attacked the use of per curiams based on Redrup. ‘‘Thirty-one cases have been decided in this manner,’’ he complains, but ‘‘no justification has ever been offered in support of the Redrup ‘policy.’ ... The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us.’’ In Paris Adult Theatre I v. Slaton (1973), the companion decision to Miller and released on the same day, Brennan, in dissent, lamented that, although justices could support Roth in the abstract, they differed in specific cases and thus

resorted to the Redrup approach, which resolves cases as between the parties, but offers only the most obscure guidance to legislation, adjudication by other courts, and primary conduct. By disposing of cases through summary reversal or denial of certiorari, we have deliberately and effectively obscured the rationale underlying the decisions. It comes as no surprise that judicial attempts to follow our lead conscientiously have often ended in hopeless confusion.

ROY B. FLEMMING

References and Further Reading

• O’Brien, David M., Justice John Marshall Harlan’s Unpublished Opinions: Reflections of a Supreme Court at Work, Journal of Supreme Court History (1991): 27–49.
• Teeter, Dwight L., and Don R. Pember, The Retreat from Obscenity: Redrup v. New York, Hastings Law Journal 21 (1969): 175.

Cases and Statutes Cited

• Cain v. Kentucky, 397 U.S. 319 (1970)
• Ginzburg v. United States 383 U.S. 463 (1966)
• Hoyt v. Minnesota, 399 U.S. 524 (1970)
• Miller v. California, 413 U.S. 15 (1972)
• Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1972)
• Roth v. United States, 354 U.S. 476 (1957)