Stanley v. Georgia
Opinion of the Court
delivered the opinion of the Court.
An investigation of appellant’s alleged bookmaking activities led to the issuance of a search warrant for appellant’s home. Under authority of this warrant, federal and state agents secured entrance. They found very little evidence of bookmaking activity, but while looking through a desk drawer in an upstairs bedroom, one of the federal agents, accompanied by a state officer, found three reels of eight-millimeter film. Using a projector and screen found in an upstairs living room, they viewed the films. The state officer concluded that they were obscene and seized them. Since a further examination of the bedroom indicated that appellant occupied it, he was charged with possession of obscene matter and placed under arrest. He was later indicted for “knowingly hav[ing] possession of . . . obscene matter” in violation of Georgia law.
Appellant raises several challenges to the validity of his conviction.
The court below saw no valid constitutional objection to the Georgia statute, even though it extends further than the typical statute forbidding commercial sales of obscene material. It held that “[i]t is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was 'with intent to sell, expose or circulate the same.’ ” Stanley v. State, supra, at 261, 161 S. E. 2d, at 311. The State and appellant both agree that the question here before us is whether “a statute imposing criminal sanctions upon the mere [knowing] possession of obscene matter” is constitutional. In this context, Georgia concedes that the present case appears to be one of “first
It is true that Roth does declare, seemingly without qualification, that obscenity is not protected by the First Amendment. That statement has been repeated in various forms in subsequent cases. See, e. g., Smith v. California, 361 U. S. 147, 152 (1959); Jacobellis v. Ohio, 378 U. S. 184, 186-187 (1964) (opinion of Brennan, J.) ; Ginsberg v. New York, supra, at 635. However, neither Roth nor any subsequent decision of this Court dealt with the precise problem involved in the present case. Roth was convicted of mailing obscene circulars and advertising, and an obscene book, in violation of a federal obscenity statute.
It is now well established that the Constitution protects the right to receive information and ideas. “This freedom [of speech and press] . . . necessarily protects the right to receive . . . Martin v. City of Struthers, 319 U. S. 141, 143 (1943); see Griswold v. Connecticut, 381 U. S. 479, 482 (1965); Lamont v. Postmaster General, 381 U. S. 301, 307-308 (1965) (Brennan, J., concurring) ; cf. Pierce v. Society of Sisters, 268 U. S. 510 (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U. S. 507, 510 (1948), is fundamental to our free society. Moreover, in the context of this case — a prosecution for mere possession of printed or filmed matter in the privacy of a person’s own home — that right takes on an added dimension. For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man.” Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).
See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357 U. S. 449, 462 (1958).
And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual’s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts.
Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion.
It is true that in Roth this Court rejected the necessity of proving that exposure to' obscene material would create a clear and present danger of antisocial conduct or would probably induce its recipients to such conduct. 354 U. S., at 486-487. But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, see Ginsberg v. New York, supra, or that it might intrude upon the sensibilities or privacy of the general public.
Finally, we are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties
We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.
It is so ordered.
“Any person who shall knowingly bring or cause to be brought into this State for sale or exhibition, or who shall knowingly sell or offer to sell, or who shall knowingly lend or give away or offer to lend or give away, or who shall knowingly have possession of, or who shall knowingly exhibit or transmit to another, any obscene matter, or who shall knowingly advertise for sale by any form of notice, printed, written, or verbal, any obscene matter, or who shall knowingly manufacture, draw, duplicate or print any obscene matter with intent to sell, expose or circulate the same, shall, if such person has knowledge or reasonably should know of the obscene nature of such matter, be guilty of a felony, and, upon conviction thereof, shall be punished by confinement in the penitentiary for not less than one year nor more than five years: Provided, however, in the event the
Appellant does not argue that the films are not obscene. For the purpose of this opinion, we assume that they are obscene under any of the tests advanced by members of this Court. See Redrup v. New York, 386 U. S. 767 (1967).
The issue was before the Court in Mapp v. Ohio, 367 U. S. 643 (1961), but that case was decided on other grounds. Mr. Justice Stewart, although disagreeing with the majority opinion in Mapp, would have reversed the judgment in that case on the ground that the Ohio statute proscribing mere possession of obscene material was “not ‘consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.’ ” Id., at 672.
18 U. S. C. § 1461.
Ex parte Jackson, 96 U. S. 727, 736-737 (1878) (use of the mails); United States v. Chase, 135 U. S. 255, 261 (1890) (use of the mails); Robertson v. Baldwin, 165 U. S. 275, 281 (1897) (publication) ; Public Clearing House v. Coyne, 194 U. S. 497, 508 (1904) (use of the mails); Hoke v. United States, 227 U. S. 308, 322 (1913) (use of interstate facilities); Near v. Minnesota, 283 U. S. 697, 716 (1931) (publication); Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942) (utterances); Hannegan v. Esquire, Inc., 327 U. S. 146, 158 (1946) (use of the mails); Winters v. New York, 333 U. S. 507, 510 (1948) (possession with intent to sell); Beauharnais v. Illinois, 343 U. S. 250, 266 (1952) (libel).
Many of the cases involved, prosecutions for sale or distribution of obscene materials or possession with intent to sell or distribute. See Redrup v. New York, 386 U. S. 767 (1967); Mishkin v. New York, 383 U. S. 502 (1966); Ginzburg v. United States, 383 U. S. 463 (1966); Jacobellis v. Ohio, 378 U. S. 184.(1964); Smith v. California, 361 U. S. 147 (1959). Our most recent decision involved a prosecution for sale of obscene material to children. Ginsberg v. New York, 390 U. S. 629 (1968); cf. Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676 (1968). Other cases involved federal or state statutory procedures for preventing the distribution or mailing of obscene material, or procedures for predistribution approval. See Freedman v. Maryland, 380 U. S. 51 (1965); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); Manual Enterprises, Inc. v. Day, 370 U. S. 478 (1962). Still another case dealt with an attempt to seize obscene material “kept for the purpose
The Supreme Court of Ohio considered the issue in State v. Mapp, 170 Ohio St. 427, 166 N. E. 2d 387 (1960). Four of the seven judges of that court felt that criminal prosecution for mere private possession of obscene materials was prohibited by the Constitution. However, Ohio law required the concurrence of “all but one of the judges” to declare a state law unconstitutional. The view of the “dissenting” judges was expressed by Judge Herbert:
“I cannot agree that mere private possession of . . . [obscene] literature by an adult should constitute a crime. The right of the individual to read, to believe or disbelieve, and to think without governmental supervision is one of our basic liberties, but to dictate to the mature adult what books he may have in his own private library seems to the writer to be a clear infringement of his constitutional rights as an individual.” 170 Ohio St., at 437, 166 N. E. 2d, at 393.
Shortly thereafter, the Supreme Court of Ohio interpreted the Ohio statute to require proof of “possession and control for the purpose of circulation or exhibition.” State v. Jacobellis, 173 Ohio St. 22, 27-28, 179 N. E. 2d 777, 781 (1962), rev’d on other grounds, 378 U. S. 184 (1964). The interpretation was designed to avoid the constitutional problem posed by the “dissenters” in Mapp. See State v. Boss, 12 Ohio St. 2d 37, 231 N. E. 2d 299 (1967).
Other cases dealing with nonpublic distribution of obscene material or with legitimate uses of obscene material have expressed similar reluctance to make such activity criminal, albeit largely on statutory grounds. In United States v. Chase, 135 U. S. 255 (1890), the Court held that federal law did not make criminal the mailing of a private sealed obscene letter on the ground that the law’s purpose was to purge the mails of obscene matter “as far as was consistent with the rights reserved to the people, and with a due regard to the security of private correspondence ...” 135 U. S., at 261. The
“Communities believe, and act on the belief, that obscenity is immoral, is wrong for the individual, and has no place in a decent society. They believe, too, that adults as well as children are corruptible in morals and character, and that obscenity is a source of corruption that should be eliminated. Obscenity is not suppressed primarily for the protection of others. Much of it is suppressed for the purity of the community and for the salvation and welfare of the ‘consumer.’ Obscenity, at bottom, is not crime. Obscenity is sin.” Henkin, Morals and the Constitution: The Sin of Obscenity. 63 Col. L. Rev. 391, 395 (1963).
See, e. g., Cairns, Paul, & Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn. L. Rev. 1009 (1962); see also M. Jahoda, The Impact of Literature: A Psychological Discussion of Some Assumptions in the Censorship Debate (1954), summarized in the concurring opinion of Judge Frank in United States v. Roth, 237 F. 2d 796, 814-816 (C. A. 2d Cir. 1956).
The Model Penal Code provisions dealing with obscene materials are limited to cases of commercial dissemination. Model Penal Code §251.4 (Prop. Official Draft 1962); see also Model Penal Code § 207.10 and comment 4 (Tent. Draft No. 6, 1957); H. Packer, The Limits of the Criminal Sanction 316-328 (1968); Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669 (1963).
What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal.
Nor do we mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials. See, e. g., 18 U. S. C. § 793 (d), which makes criminal the otherwise lawful possession of materials which “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation . . . .” In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.
Concurring Opinion
concurring in the result.
Before the commencement of the trial in this case, the appellant filed a motion to suppress the films as evidence upon the ground that they had been seized in violation of the Fourth and Fourteenth Amendments. The motion was denied, and the films were admitted in evidence at the trial. In affirming the appellant’s conviction, the Georgia Supreme Court specifically determined that the films had been lawfully seized. The appellant correctly contends that this determination was clearly wrong under established principles of constitutional law. But the Court today disregards this preliminary issue in its hurry to move on to newer constitutional frontiers. I cannot so readily overlook the serious inroads upon Fourth Amendment guarantees countenanced in this case by the Georgia courts.
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The purpose of these clear and precise words was to guarantee to the people of this Nation that they should forever be secure from the general searches and unrestrained seizures that had been a hated hallmark of colonial rule under the notorious writs of. assistance of the British Crown. See Stanford v. Texas, 379 U. S. 476, 481. This most basic of Fourth Amendment guarantees was frus
The state and federal officers gained admission to the appellant's house under the authority of a search warrant issued by a United States Commissioner. The warrant described “the place to be searched” with particularity.
There can be no doubt, therefore, that the agents were lawfully present in the appellant’s house, lawfully authorized to search for any and all of the items specified in the warrant, and lawfully empowered to seize any such
The controlling constitutional principle was stated in two sentences by this Court more than 40 years ago:
“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U. S. 192, 196.
This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence
Even in the much-criticized case of United States v. Rabinowitz, 339 U. S. 56, the Court emphasized that “ex
Because the films were seized in violation of the Fourth and Fourteenth Amendments, they were inadmissible in evidence at the appellant’s trial. Mapp v. Ohio, 367 U. S. 643. Accordingly, the judgment of conviction must be reversed.
“[T]he premises known as 280 Springside Drive, S. E., two story residence with an annex on the main floor constructed of brick and frame, in Atlanta, Fulton County, Georgia, in the Northern District of Georgia . . .
“[B]ookmaking records, wagering paraphernalia consisting of bet slips, account sheets, recap sheets, collection sheets, adding machines, money used in or derived from the wagering business, records of purchases, records of real estate and bank transactions, the money for which was derived from the wagering business, and any other property used in the wagering business, which are being used and/or have been used in the operation of a bookmaking business or represent the fruits of a bookmaking business being operated in violation of Sections 4411, 4412 and 7203 IRC of 1954.”
Before the Commissioner were no less than four lengthy and detailed affidavits, setting out the grounds for the affiants’ reasonable belief that the appellant was engaged in an illegal gambling enterprise, and that the paraphernalia of his trade were concealed in his house.
The fact that almost no gambling material was actually found has no bearing, of course, upon the validity of the search. The constitutionality of a search depends in no measure upon what it brings to light. Byars v. United States, 273 U. S. 28, 29.
See Warden v. Hayden, 387 U. S. 294.
Concurring Opinion
concurring.
I agree with the Court that the mere possession of reading matter or movie films, whether labeled obscene or not, cannot be made a crime by a State without vio
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