372 U.S. 58 (1963)
The Rhode Island Legislature created the Rhode Island Commission to Encourage Morality in Youth in 1956.1 It gave the Commission the duty to educate the public concerning books and other materials containing obscene language or tending to corrupt youth and to investigate and recommend prosecutions of violations.2
Appellants are four New York publishers of paperback books widely distributed in Rhode Island through their exclusive wholesale distributor Max Silverstein & Sons.3 The Commission sent Silverstein at least 35 notices on official stationery designating publications as objectionable for sale to youths under 18 years of age, including books published by appellants Bantam Books, Inc. and Dell Publishing Co., Inc.4 The notices solicited Silverstein's cooperation and reminded him of the Commission's duty to recommend prosecution of purveyors of obscenity, with copies circulated to local police departments.5
Silverstein responded to the notices by stopping circulation of the listed publications, refusing new orders, picking up unsold copies from retailers, and returning them to the publishers.6 Local police officers visited Silverstein after the notices to learn what action he had taken.7 The Superior Court found that the notices intimidated distributors and retailers, causing them to refuse new orders, cease selling copies on hand, withdraw unsold copies, and return them to publishers, resulting in suppression of the sale and circulation of the books.8
The appellants brought this action in the Superior Court of Rhode Island to declare the law creating the Commission unconstitutional and to enjoin the Commission's acts and practices.9 The Superior Court declined to declare the law unconstitutional on its face but granted an injunction against the Commission's practices.10 The Supreme Court of Rhode Island affirmed the Superior Court with respect to the constitutionality of the law but reversed the grant of injunctive relief.11 Appellants appealed and the United States Supreme Court noted probable jurisdiction.12 The Attorney General conceded on oral argument that several listed books were not obscene under this Court's definition.13
Whether the Rhode Island Commission's practice of sending notices listing publications as objectionable and soliciting distributors' cooperation violates the First and Fourteenth Amendments?14
The Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line.15 It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments.16 Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.17
Yes. The Commission's practice involved sending notices that were phrased virtually as orders and were reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications.18 This informal censorship succeeded in suppressing publications deemed objectionable without any judicial determination that such publications may lawfully be banned and without safeguards against the suppression of nonobscene matter.19
The practice violates the First and Fourteenth Amendments because it constitutes a scheme of governmental censorship devoid of the constitutionally required safeguards for state regulation of obscenity.20
Related opinions on this issue
Justice Douglas joined the opinion of the Court but adhered to his views in Roth v. United States that the scope of governmental authority to suppress publications on the grounds of obscenity is very narrow.21 He emphasized that the vice of Rhode Island's system is apparent whatever one's view of the constitutional status of obscene literature. He described it as censorship in the raw and incompatible with First Amendment rights.
He noted that the Providence regime is productive of capricious action where a five-to-four vote makes a book obscene and doubts are resolved against freedom of expression.22
Justice Clark joined the judgment but criticized the opinion for creating a tempest in a teapot and failing to articulate the standards which must be met on remand.23 He stated that the Court should simply direct the Commission to abandon its delusions of grandeur and leave the issuance of orders to enforcement officials and the State's criminal regulation of obscenity to the prosecutors.24 He believed the limitations outlined would have little bearing on the efficacy of Rhode Island's law.25
Whether the Commission's procedures include adequate safeguards against suppression of nonobscene publications?26
No. The procedures of the Commission are radically deficient as they fall far short of the constitutional requirements of governmental regulation of obscenity, providing no safeguards whatever against the suppression of nonobscene matter.29 The distributor is left to speculate whether the Commission considers his publication obscene or simply harmful to juvenile morality, and the Commission's domain is the whole of youthful morals.30
The Commission's procedures do not include adequate safeguards against suppression of nonobscene publications.31
Related opinions on this issue
Justice Harlan dissented.32 He argued that the Commission's pronouncement in any given instance is not self-executing.33 Any affected distributor or publisher may test the Commission's views by way of a declaratory judgment action or suit for injunctive relief or by simply refusing to accept the Commission's opinion and awaiting criminal prosecution.34
He stated that the Constitution requires no more, as shown by the decision in Times Film Corp. v. Chicago.35 The advisory condemnations do not create as great a danger of restraint on expression as that involved in licensing schemes.36
Whether the Commission's activities amount to a system of prior administrative restraints without judicial review?37
The system at bar includes no provision whatever for judicial superintendence before notices issue or even for judicial review of the Commission's determinations of objectionableness.38 The publisher or distributor is not even entitled to notice and hearing before his publications are listed by the Commission as objectionable.39
Yes. The Commission's operation is a form of effective state regulation superimposed upon the State's criminal regulation of obscenity and making such regulation largely unnecessary.40 In thus obviating the need to employ criminal sanctions, the State has at the same time eliminated the safeguards of the criminal process.41 There is no provision whatever for judicial superintendence before notices issue or even for judicial review of the Commission's determinations of objectionableness.42
The Commission's activities amount to a system of prior administrative restraints without judicial review.43