669 Opinion of BRENNAN, J. rected against the mailable matter by name or description" and the respondents are the "author, publisher and any other person" responsible for offering the matter "for sale or commercial distribution" in the State or "giving it away or offering to give it away, or possessing it with the intent to sell or commercially distribute or exhibit or give away or offer to give it away." § 6. Upon the filing of the complaint and the exhibits, the court "as soon as practicable" must examine the materials and ex parte dismiss the complaint "[i]f there is no probable cause to believe that the mailable matter... is obscene." § 7. If, however, the court finds probable cause, "it may forthwith issue an order temporarily restraining and prohibiting the sale or distribution of such matter" and issue an order to show cause, "returnable not less than ten days after its service," why the matter shall not be adjudicated obscene. Ibid. A full adversary hearing follows, to "be heard and disposed of with the maximum promptness and dispatch commensurate with constitutional requirements, including due process, freedom of press and freedom of speech." § 9.2 The 2 Compliance with this provision should limit the duration of any ex parte interim restraint granted pursuant to § 7, although in my view explicit time limits would be preferable. For example, the provision for interim restraints in the New York statute approved in Kingsley Books, Inc. v. Brown, 354 U. S. 436 (1957), was in the context of a statute that specified that "[t]he person ... sought to be enjoined shall be entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial." Id., at 438 n. 1. And this Court construed 19 U. S. C. § 1305 (a), which prohibits importation of obscene material, as requiring administrative and judicial action within time limits specified by the Court, thus avoiding the constitutional issue that would be presented under the principle applied in such decisions as Freedman v. Maryland, 380 U. S. 51, 58-59 (1965), and Blount v. Rizzi, 400 U. S. 410 (1971). United States v. Thirty-seven Photographs, 402 U. S. 363 (1971). Opinion of BRENNAN, J. 3 424 U.S. proceeding is to be conducted under the Rules of Civil Procedure in equity cases. If, after a full hearing, a publication is found obscene, the respondents may be enjoined from further distribution of that publication in Alabama, and respondents residing in Alabama may be required to dispose of such publications in their possession. § 10. An injunction is binding "only upon the Respondents to the action and upon those persons in active concert or participation . . . with such Respondents who receive actual notice. . . .' § 11. Disobedience of an injunction constitutes contempt of court by any respondent or by "any person in active concert or participation by contract or agreement with such respondent, [who receives] actual notice" of the injunction. § 13. If any respondent fails to comply with an order to dispose of the matter, the court may direct the sheriffs in the State to "seize and destroy all such obscene mailable matter." § 10 (c). The civil provisions are so interwoven with the Act's criminal and other general provisions, § 4, that the constitutional questions raised by them cannot be properly addressed, in my view, without considering the entire Act as it bears upon "mailable" material. This conclusion is underscored by a "cumulative" obscenity law addressed to "hard-core" pornography enacted by Alabama in 1969. Ala. Code, Tit. 14, c. 64C, §§ 374 (16j-160) (Supp. 1973). Section 374 (16k) (c) of that statute provides that the prohibition against selling, exhibiting, or possessing such materials shall not "be deemed to apply to mailable matter unless such mailable matter is known by such person to have been judicially found to be obscene or to 3 While the Alabama law provides that the action shall be filed "in equity," § 5, the Alabama Supreme Court on July 3, 1973, adopted Rules of Civil Procedure under which there is now only one form of action known as a "Civil Action." 292 Ala. 484, 487, 296 So. 2d 228, 230 (1974). 669 Opinion of BRENNAN, J. represent hard-core pornography under this chapter or under the provisions of any other Alabama statutes." I shall not discuss all of the provisions that raise questions but only those that appear to me most clearly to be vulnerable to constitutional challenge. II Burden of Proof There can be no question that uncertainty inheres in the definition of obscenity. It is therefore to be expected that those who market written material pertaining to sex should, from fear of criminal prosecution, refrain from handling what may be constitutionally protected literature on that subject. It is this hazard to material protected by the First Amendment which commends Alabama's efforts to minimize that hazard by its regulatory scheme. A civil procedure that complies with the commands of the First Amendment and due process may serve the public interest in controlling obscenity without exposing the marketer to the risks and the stigma of a criminal prosecution, and thus protect, by minimizing the risk of marketer self-censorship, the right to the free publication and dissemination of constitutionally protected literature. But by shifting the determination of obscenity vel non to the civil context, the Alabama scheme creates another potential danger that the dissemination of constitutionally protected material will be suppressed. Although the Act does not specify which party has the burden of proof in the civil proceeding, the Supreme Court of Alabama has held that the burden is on the State to prove the obscenity of the magazines, 292 Ala. 484, 487, 296 So. 2d 228, 231 (1974), and it appears that the State may do so by a mere preponderance of the evidence. Tr. of Oral Arg. 4-5. However, I think that the hazards to First Amendment freedoms inhering in the Opinion of BRENNAN, J. 424 U.S. regulation of obscenity require that even in such a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt. Inherent in all factfinding procedures is the potential for erroneous judgments and, when First Amendment. values are implicated, the selection of a standard of proof of necessity implicates the relative constitutional acceptability of erroneous judgments. "There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value . . . this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the factfinder at the conclusion of the trial of [the existence of the fact] beyond a reasonable doubt." Speiser v. Randall, 357 U. S. 513, 525-526 (1958). See, e. g., In re Winship, 397 U. S. 358, 369–372 (1970) (Harlan, J., concurring); cf. Rosenbloom v. Metromedia, 403 U. S. 29, 49– 51 (1971) (opinion of BRENNAN, J.). In the civil adjudication of obscenity vel non, the bookseller has at stake such an "interest of transcending value"-protection of his right to disseminate and the public's right to receive material protected by the First Amendment. Protection of those rights demands that the factfinder be almost certain-convinced beyond a reasonable doubt that the materials are not constitutionally immune from suppression. Although Miller v. California, 413 U. S. 15 (1973), held that the concept of obscenity as defined in that case is not unconstitutionally vague, we have "expressly recognized the complexity of the test of obscenity... and the vital necessity in its application of safeguards to prevent denial of 'the protection of freedom of speech and press'" for nonobscene material. Marcus v. Search Warrant, 367 U. S. 717, 730 (1961). "[T]he Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will - 669 Opinion of BRENNAN, J. ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line." Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 66 (1963). The uncertainty of that line means that erroneous judgments as to whether material is obscene or not are likely in any event, and are particularly so if the factfinder is only marginally confident that the material falls on the unprotected side of the line. In light of the command of the First Amendment, a standard of proof by a mere preponderance of the evidence poses too substantial a danger that protected material will be erroneously suppressed. Moreover, the potential danger of such erroneous determinations is especially acute in light of the fact that the civil proceeding and the interim restraint pending adjudication on the merits operate as a prior restraint; indeed, the possibility of an erroneous determination is heightened by the fact that the material may never be available to the public and thus need never have truly faced the acid test of acceptance under prevailing community standards. Furthermore, in light of the definition of obscenity-incorporating, as it does under current law, the notion of patent offensiveness to the average member of the community-there is an even greater need for the judge operating as sole factfinder to be convinced beyond a reasonable doubt that the material is obscene, for his determination is made without a jury's assessment of community values. 4 Moreover, the possible erroneous imposition of civil sanctions under the preponderance-of-the-evidence standard simply creates too great a risk of self-censorship by * Indeed, one of the problems with erroneous determinations that prevent marginal material from ever reaching the public is that such material, which is by definition at the fringe of what is currently patently offensive to community standards, will never be able to exert an influence on those inherently evolving standards. |