333 U.S. 507, 68 S. Ct. 665, 92 L. Ed. 840 (1948)
Appellant, a New York City bookdealer, was convicted on information of a misdemeanor for having in his possession with intent to sell magazines charged to violate subsection 2 of section 1141 of the New York Penal Law.1 The information specified that the magazines were devoted to the publication and principally made up of criminal news, police reports, and accounts of criminal deeds, and pictures and stories of deeds of bloodshed, lust and crime, with one example being the June 1940 issue of Headquarters Detective, True Cases from the Police Blotter.2
Upon appeal from the Court of Special Sessions, the conviction was upheld by the Appellate Division of the New York Supreme Court in 268 App. Div. 30, 48 N.Y.S.2d 230, whose judgment was later affirmed by the New York Court of Appeals in 294 N.Y. 545, 63 N.E.2d 98.3 The case arrived at the Supreme Court of the United States after three separate arguments: it was argued on March 27, 1946, reargued on November 19, 1946, and reargued again on November 10, 1947, before the Court issued its decision on March 29, 1948.4
The validity of the statute was drawn in question in the state courts as repugnant to the Fourteenth Amendment to the Constitution of the United States in that it denied the accused the right of freedom of speech and press, protected against state interference by the Fourteenth Amendment.5 As the validity of the section was upheld in a final judgment by the highest court of the state against this constitutional challenge, this Court has jurisdiction under Judicial Code section 237(a).6
Whether subsection 2 of section 1141 of the New York Penal Law, as construed by the New York Court of Appeals to prohibit publications massed so as to incite violent and depraved crimes, is unconstitutionally vague and indefinite under the Fourteenth Amendment?7
A statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment.8 A failure of a statute limiting freedom of expression to give fair notice of what acts will be punished violates an accused's rights under procedural due process. Such a statute's inclusion of prohibitions against expressions protected by the principles of the First Amendment also violates rights to freedom of speech or press.9
Yes. The New York Court of Appeals construed subsection 2 to reach only those collections of stories of bloodshed and lust that are so massed as to become vehicles for inciting violent and depraved crimes against the person.10 This authoritative gloss fixes the meaning of the statute for the case yet still leaves the line between allowable and forbidden publications impossible to ascertain in advance.11 A distributor or trier of fact cannot know when ordinary detective tales or accounts of crime cross into prohibited massing that incites crime.12
The statute requires no showing of intent, no finding of obscenity in the traditional sense, and supplies no technical or common-law meaning that would clarify the new incitement standard.13 Because the prohibition therefore sweeps into its uncertain reach speech that the First Amendment protects, the subsection as construed violates the requirement of ascertainable standards of guilt.14
Subsection 2 of section 1141 is unconstitutionally vague and indefinite under the Fourteenth Amendment.15
Related opinions on this issue
Joined by Justices Jackson And Burton
Justice Frankfurter, joined by Justices Jackson and Burton, dissented on the ground that the majority substituted abstract notions of indefiniteness for the concrete legislative judgment of nearly half the States.16 He emphasized that the New York Court of Appeals had drawn on extensive local experience with recent criminal records to conclude that massed stories of bloodshed and lust can incite violent crimes.17 Legislatures must accommodate delicate factors when addressing the intractable problem of crime incitement even when precise lines are difficult to draw.18 Frankfurter argued that the Due Process Clause does not demand mathematical certainty in statutes dealing with psychological and social complexities.19 The risk of erroneous jury application is inherent in many criminal laws, and the majority's approach would equally disable Congress from addressing juvenile delinquency.20
He concluded that New York had not exceeded its constitutional power to control crime through this measured prohibition.21
Whether the statute as applied to the appellant's possession of magazines with intent to sell violates the freedom of speech and press protected against state action by the Fourteenth Amendment?22
The principle of a free press covers distribution as well as publication.23 The line between the informing and the entertaining is too elusive for the protection of that basic right.24 Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.25 A statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment.
Yes. The magazines at issue, though lacking any possible value to society in the view of the Court, remain entitled to the same protection as the best literature because the line between informing and entertaining is too elusive to withdraw constitutional coverage.26 The statute as construed by the Court of Appeals does not limit punishment to indecent or obscene material in the traditional sense. Instead, it criminalizes massing of stories whenever a court or jury later concludes the collection incites crime.27
This standard supplies no effective notice and therefore abridges the freedom of the press that the Fourteenth Amendment protects against state action.28
The statute as applied violates the freedom of speech and press guaranteed by the Fourteenth Amendment.29
Related opinions on this issue
Joined by Justices Jackson And Burton
Justice Frankfurter maintained that the majority's decision denied the States the power to prevent grave evils arising from publications that exploit criminal potentialities, even while conceding the magazines had nothing of possible value to society.30 He stressed that the New York Court of Appeals had relied on concrete experience showing how such massed material can discharge unconscious impulses into destructive action.31 Judicial nullification on vagueness grounds improperly displaced legislative policy choices in an area squarely within the police power.32