Kingsley Books, Inc. v. Brown

PETITIONER:Kingsley Books, Inc. et al.
RESPONDENT:Peter Campbell Brown
LOCATION:Kingsley Books, Inc.

DOCKET NO.: 107
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 354 US 436 (1957)
ARGUED: Apr 22, 1957
DECIDED: Jun 24, 1957

Facts of the case

New York state law authorized the legal counsel for a municipality to seek an injunction against and the destruction of material deemed by the courts to be obscene. Peter Campbell Brown, Corporation Counsel for the City of New York, sought such an injunction against several bookstores. The process of review that followed was a civil, rather than criminal procedure, and the courts ultimately granted the injunction and sought to destroy the obscene material.

Question

Did the civil procedure as laid out by New York statute violate the booksellers’ rights under the Due Process Clause of the Fourteenth Amendment by not allowing for a criminal trial before imposing an injunction and destroying the obscene material?

Emanuel Redfield:

— I’m about to say that after a trial, sometime before Christmas of that year.

And If you recall, the temporary injunction was granted in September and the trial took place shortly before Christmas.

After deliberating over the question, despite the law of saying that judgments have to be made within two days.

The court took until, I think subsequent June before he rendered a decision.

The injunction restrained these appellants from distributing, selling or acquiring possession of these books.

It held the volumes to be obscene.

I take it —

Emanuel Redfield:

And —

— in your position, nothing turns on the degree of the obscenity that’s at bar.

Emanuel Redfield:

No.

That it’s hard — what the Government calls in the next case hardcore obscenity, why your point would be still —

Emanuel Redfield:

I’m — I’m not touching that point at all.

I’m — I — I did not contest it from the beginning.

(Inaudible)

Emanuel Redfield:

Yes, and in that action, of course, I raised the constitutional questions that I’m here raising.

But the court held the law to be constitutional.

It held that there was no prior restraint involved and the very voluminous opinion written seems to focus its attention on the fact that these books were so bad that it didn’t appeal to this judge.

He also held that the law will be constitutional because no prior restraint was involved in that by analogy to certain picketing cases.

There could not be a prior restraint.

Then we appealed to the Court of Appeals of New York, and the court there sustained the constitutionality of the statute with three judges siding with one opinion and three judges with another opinion.

In my argument as I stated earlier, the only issue is would a prior restraint by this injunctive procedure.

In attacking this problem, for the moment, I have to omit the feature of obscenity, I will come to that and if I don’t have time to come to it, it’s in my brief.

And we have to start with this.

What is the effect of this statute?

Under the law of both the statute and the general equity procedures in New York, a stay was obtained, a temporary injunction was granted and seizure of the books follows.

The statute therefore in effect, and that is the important element, in effect operates to prevent the publication from reaching the public.

The injunction might well issue before the books are even bound, if they’re merely being printed and held ready for distribution.

And in that sense the advice goes to the very heart of protecting publications from suppression.

It was established long ago in this Court, that distribution is protected as well as publication.

The (Inaudible) case holds that.

Emanuel Redfield:

And if distribution is protected as well as publication, then I don’t see that it makes any difference whether or not this book is directed against somebody who has a manuscript only or whether it’s directed against distribution.

In both cases the suppression is effectual.

The books cannot reach the public.Only recently, this Court held in Butler against Michigan, that the public’s interest to be able to read what is published is a right that must be affirmed.

And if this injunction deprives the public of that right, it well comes within the scope of that Butler articulation.

Now —

What was (Inaudible) criminal conviction, under New York statute it provided that one duly convicted for disseminating obscene material, all the material of that class is to be destroyed (Voice Overlap) —

Emanuel Redfield:

Yes, I’m — I’m very happy you raised that because I thought of that many times.

But I would say things should be reached when you have to dispose of them.

This is not that case.

I — in other words, if I were defending a person convicted such as you mention, I might well raise at that time the question as to whether or not the Court make — I mean that whoever is empowered, whichever public officer is empowered to destroy, may be violating the constitutional rights of — the both, the public to read and also of the person who owns those books.

But I say —

Earl Warren:

(Voice Overlap)

Emanuel Redfield:

— that’s not involved here —

Earl Warren:

No, please finish.

I —

Emanuel Redfield:

I’m sorry.

Earl Warren:

Excuse me.

Emanuel Redfield:

But — but that’s not involved here and I say we have enough difficulty with this case without taking on additional ones.

Now, this brings me —

Earl Warren:

Before you get to a new — new subject, may I ask.

It makes no difference to you then whether there had been a sale of one or more copies of this book before this action was brought or whether they were just held there for distribution.

Emanuel Redfield:

Well, the — the question — that question, however, is one of — let me put it this way.

The — the sale of it is sort of evidentiary of the existence of these books for the purpose of sale.

Earl Warren:

Yes.

Emanuel Redfield:

But I don’t think it will make any difference in principle, so long as you are suppressing the book.

Earl Warren:

Well, that’s what I understood you to say —

Emanuel Redfield:

Yes.

Earl Warren:

— that the — that the Constitution protects the distribution —

Emanuel Redfield:

Yes.

Earl Warren:

— as well as the publication.

Emanuel Redfield:

Yes, sir.

That’s exactly what I meant.

Earl Warren:

Yes.

Emanuel Redfield:

Now, in Near against Minnesota, this Court had before it a case which I think is not only a guide but as an authority for determination of this case.

The facts are almost identical.

The only difference being that in Near, you have a libel situation, whereas here one of obscenity.

In Near, this person published a magazine — a newspaper — a weekly newspaper that was sought to be enjoined under the Minnesota statute, comparable in every way to this one.

The statute enable public officer to go into Court and get an injunction against the distribution of any publication, present or future on the ground that such a publication was a public nuisance.

And the public nuisance is that of being either libelous or else obscene.

And this Court voided that Minnesota statute, so far as it applied to that particular issue.

The issue there being that the newspapers were very libelous and they were certainly were very libelous.

The Court held that the issue there was not punishment of Near but rather suppression.

And Chief Justice Hughes for review, the history for the First Amendment — Amendment, concluded that the First Amendment was enacted for just that situation.

But he also had a sentence in there that indicated they might be some difference whether it is an obscenity issue.

Emanuel Redfield:

I’m coming to that.

Well, if I don’t have a chance to come to that, I’d like to take the opportunity at this moment.

What he said there, if you recall, was not well articulated.

That is, he didn’t treat it comprehensively.

It was just one of those passing remarks.

It was not based upon any authority under the Constitution.

There were no decisions prior thereto.

There were no statutory or constitutional provisions covering that point.

He just made that remark in passing.

It was pure dicta.

Now, what he said there is obscure, too, because whether or not he referred to criminal prosecutions or referred to civil suits, is not made clear.

Therefore, I say that the Near case, so far as obscenity is concerned, cannot be deemed the authoritative.

All that was involved in that particular case were these libelous newspapers.

And I dare say, that if one were given the choice between the fulminations of newspapers like Near’s, in which he libeled race, people, innumerable public officials and did it continuously, if one were to give a choice between that and some of this stuff that is termed obscene, I’m sure that there are many people who would think that the obscene were a lesser evil, for the reason as we all know that some of the fulminations that appear in the Near magazines were comparable to the Hitler ranklings that resulted in about six million people dead.

Now, whether obscene, books can produce six million dead, I don’t know.

But certainly when you have social conduct, such as involved in Near’s newspapers, I give pause as to which social evil was greater.

Emanuel Redfield:

Now —

Felix Frankfurter:

Is that pause — if I may say so.

That pause is just where legislation comes in.

If we have to fall then we have to pause and the and the agency which on whole seeks to express what social policy should be paid its role.

That’s what they’re for.

Emanuel Redfield:

Well, the question is this —

Felix Frankfurter:

If you call that a pause it doesn’t mean that they’ve transcended their powers.

Emanuel Redfield:

All right.

But you come and let’s — let’s — it’s off my path here but as long as the right that the (Inaudible) case in which you took particular interest —

Felix Frankfurter:

I wrote the opinion in that case.[Laughter]

Emanuel Redfield:

Yes.

Was one of criminal prosecution for libeling a race and you sustained it because of the criminal nature of it.

The libel being criminal, whereas in Near, there was libel and yet the civil nature of it saves — saved the Near from — from the — being condemned by injunction.

Felix Frankfurter:

You don’t quite mean that.

If you do not mind — if I see what your words imply —

Emanuel Redfield:

Well —

Felix Frankfurter:

— that the — the power of a legislature to impose criminal penalty was greater than to deal with it civilly.

Emanuel Redfield:

Well, when it comes to expressions, yes.

Felix Frankfurter:

Really?

Emanuel Redfield:

Well —

Felix Frankfurter:

You turn in advance, the man can —

Emanuel Redfield:

No.

Felix Frankfurter:

— public sampling.

Emanuel Redfield:

No, that’s right.

Felix Frankfurter:

That’s a very different thing —

Emanuel Redfield:

Yes, that’s right —

Felix Frankfurter:

— in subjecting him to jury trial after he’s published it to see whether he’s trying to vest the law.

Emanuel Redfield:

Well, for this reason that in criminal cases, you have a right to a jury trial, whereas, what do you have in a case like this?

It’s the — it’s the opinion —

Felix Frankfurter:

But (Voice Overlap) jury trial’s tomorrow if it wanted to as far as —

Emanuel Redfield:

Very true.

Felix Frankfurter:

— Federal Constitution is concerned.

Emanuel Redfield:

Very true.

So, what aid would you have in deciding whether or not a — a book is obscene?

Felix Frankfurter:

The responsibility of the judge.

Emanuel Redfield:

Well, with all due respect, I — I might say this.

Where does a judge get expert opinion that he knows more than, let’s say, an administrator’s official?

Felix Frankfurter:

But you’re not — you’re not undertaking the burden that you very wisely injected of passing on whether Near would pass this obscenity statute.

You’re merely objecting in this case, who are — the arrangement to an exercise of power, whereby a concededly obscene book is prohibited from being disseminated after it’s found to be obscene.

Emanuel Redfield:

Yes.

Felix Frankfurter:

But if you afford any of the fine place between coming on to be heard and eventually determining if it is obscene and not disseminating it in the mean time.

That’s your posture, isn’t it?

Emanuel Redfield:

Well —

Felix Frankfurter:

It’s obvious.

Emanuel Redfield:

From the beginning here.

I mean, it’s a series of suppression from the very minute that the order of show cause is served.

Now, in — in the dissent in Near case, the dissenting judges took the position that because there was a court that was rendering judgment and not an administrative official, that that did not make any difference.

Whereas the majority did see the difference between a judge — no, I’m sorry, I should say this that the — the majority in Near, felt that there was no difference between a judge rendering a decision and an administrative official rendering a decision.

That in both cases there was somebody who was hearing and determining what should be done with these publications.

Felix Frankfurter:

Mr. Redfield, this Court decided some years ago that it makes all the difference in the world to such an extent that it’s unconstitutional to allow an administrative person to determine citizenship.

That in deportation cases it requires the Court.

That’s reading given in that case by Mr. Justice Brandeis that somehow (Inaudible) is a matter of discipline, is a matter of lot of things there are protections through a judicial proceeding that are not afforded by the administrative proceedings.

And now you should say it doesn’t make any difference.

Emanuel Redfield:

Well, from my reading of the cases in this Court, I didn’t see that there was any difference so far as — as censorship is concerned between an administrative official and a judicial officer.

The Near case made it clear.

The Near case said a judge can’t do it.

And later on in Cantwell case there was a remark to that effect that censorship by a judiciary is a — is as of noxious to the Constitution as censorship by an — an administrative official —

Felix Frankfurter:

That’s your problem to establishing this case.

This proceeding through the statute was carried out by the New York judges for censorship.

Emanuel Redfield:

That’s right.

Felix Frankfurter:

That’s your job.

Emanuel Redfield:

That’s right.

And that’s what I have done.

And it can’t — it can’t be avoided.

Felix Frankfurter:

Censorship other than that the determination after judicial proceeding, satisfying all the requirements of the process a book is condemned for having been obscene.

But that’s not what we mean by censorship.

All it meant in the Near case is prior censorship.

If you can or that you can’t show expressions of the mind in advance.

Emanuel Redfield:

Well, but may I — also this in the — in the second that I have that prior censorship in the mind cannot exist because you can’t sense of something in a person’s mind.

You’ve got to have it in some tangible form.

Felix Frankfurter:

That was the advice of the Near case.

That they said, “Hereafter, you can’t publish your papers.”

And that was the advice in — what was that case we had here?

(Inaudible)

Emanuel Redfield:

Yes, sir.

Felix Frankfurter:

That they said simply because you were — unless she was the mayor of yesterday you can’t be the mayor in the future.

That’s power.

Earl Warren:

Mr. Quel.

Seymour B. Quel:

If the Court pleases.

In order that Your Honors may understand how narrow is the issue in this case I should like to tell you a little bit about the New York practice which is pertinent to this appeal.

This case was tried before a judge without a jury in the New York Supreme Court, which is our Court of original jury — of original jurisdiction.

Now, after a judgment has entered in the Supreme Court, there are two methods of appeal open to an aggrieved party or a party who considers themselves aggrieved.

He may, if he wishes, appeal to the Appellate Division of the Supreme Court.

And thereafter, he may appeal to the Court of Appeals, provided that the appeal lies and it always does when it’s a constitutional question.

Now, if you take that kind of an appeal, you’ll bring before the appellate division in a non-jury case every question which was before the judge below.

They can review the weight of the evidence.

They can reverse if the findings were against the weight of the evidence.

They can consider any question which the judge below could have considered.

They can render any judgment which the judge below should have rendered.

Now, the defendants in this case did not follow that method.

Seymour B. Quel:

They went by another route, also allowed by our practice, but under which the issues are much more limited.

They took a direct appeal to the Court of Appeals from the judgment of the Supreme Court.

Now, you can only do that under the New York practice, where the only question involved is the constitutionality of a statute.

And when you take that kind of an appeal you waive every other question.

You waive every factual question.

So that when they got to the Court of Appeals, for example, they could not say that the finding of obscenity was against the weight of the evidence.

That question was not open to them.

If they wanted to do that they should have gone to the appellate division and then to the Court of Appeals.

So that they were left in the Court of Appeals by the method of the — of procedure which they deliberately chose with one question and question only.

Namely, that the statute was unconstitutional on its base.

There can be no quarrel with the finding of obscenity as a factual finding by the court below.

They didn’t bring that up for review.

Earl Warren:

It wasn’t open to them to have determined the constitutionality of the statute as applied?

Seymour B. Quel:

Oh, yes.

That was open to them but — but it was not open to them, for example, to say that the books were not obscene as a matter fact than if the finding of obscenity was against the weight of the evidence.

Now, in addition to that, by that method which they chose —

Felix Frankfurter:

But I take it — I don’t think —

Seymour B. Quel:

Surely.

Felix Frankfurter:

— so I ask —

Seymour B. Quel:

Surely.

Felix Frankfurter:

— if — if the book on which they were convicted was Darwin’s argument of species and they came up and the chief justice is just suggesting, them as applied, I suppose the Court of Appeals could take judicial notice of what the argument of the species was and say, that isn’t what the statute, but the statute (a), doesn’t mean that, if it did it would be unconstitutional.

Seymour B. Quel:

That is, the statute was not designed to cover that kind of a book.

Felix Frankfurter:

That would —

Seymour B. Quel:

Yes.

Felix Frankfurter:

— or wouldn’t it?

Seymour B. Quel:

I think — I think —

Felix Frankfurter:

Not that

(Voice Overlap) —

Seymour B. Quel:

— that was open to them.

Felix Frankfurter:

— not contested questions of that.

Seymour B. Quel:

That — that’s correct.

And I — and I think it might — I think it was open to them to argue on an appeal of that character.

I think you can always argue that there was no evidence whatsoever to support a finding of fact.

But so long as there is some evidence, you may not argue that the finding of fact was against the weight of the evidence.

It’s a much more limited and narrow type of appeal.

And they — they deliberately chose it.

They could’ve gone by the other route.

Felix Frankfurter:

If there is — if there is also a constitutional question, thus the question of evidence and they go to the appellate division and they didn’t go to the Court of Appeals as a matter of course?

Seymour B. Quel:

As a matter of right.

You can appeal —

Felix Frankfurter:

If there is a constitution

(Voice Overlap) —

Seymour B. Quel:

That’s — that’s correct, Your Honor.

When there is not a constitutional question you need permission.

Felix Frankfurter:

All right.

Seymour B. Quel:

But assuming that — assuming I should add one —

Felix Frankfurter:

The others do not displace the matter of right, do they?

Seymour B. Quel:

That’s correct.

You — I won’t go into the —

Felix Frankfurter:

I understand.

Seymour B. Quel:

— circumstances under which you can appeal when there are others in constitutional question.

But there’s no gainsaying the fact that where there’s a constitutional question, the appeal lies as of right.

So that, for example, in this case they could have gone to the appellate division, raised any question they wanted to in the appellate division and then if there were a unanimous affirmance against them, appeal that as a right to the Court of Appeals.

Felix Frankfurter:

I don’t know why you’re arguing this because as I understood Mr. Redfield, he concedes — he assumes that this is obscene.

Did — did I misunderstand it?

Seymour B. Quel:

No, I — I think that’s — I think that’s right, Your Honor.

Now, more than that when they got to the Court of Appeals or under the limited method which they had chosen, they could, of course, have raised the question that the statute was so vague and — so vague as to be unconstitutional.

But they never raised that question.

Now, those questions which are raised in the companion cases, which are being argued both before and after this case, were never raised by the defendants in this case.

And for that reason I won’t devote any more of my argument to that question.

Seymour B. Quel:

I’d like to get down to the only question in the case which is open to these defendants and that is the question of prior restraint.

Now, their position is in essence that although it was perfectly all right to enact the criminal statute against the distribution of obscene literature, there’s nothing you can do about enjoining it.

You can put a man in jail.

You can fine him, but he has a constitutional right according to their argument, to go on and carry the jail sentences.

And there’s nothing that can be done about it.

Now, the prior restraint involved in our statute, if it can be fairly called any kind of a restraint at all, is about as narrow a restraint as you could possibly get.

To begin with, the action is civil It is not criminal.

Secondly, the statute specifically provides that after the joinder of issue, the defendants are entitled to a trial within one day thereafter and are entitled to a decision within two days after the completion of the trial.

Now, in this particular case, that provision was waived and the record — is specifically in the record that counsel waived that.

Otherwise, the Court would have had to decide this matter under the statute within a — within two days.

Now, the only other —

Felix Frankfurter:

What’s the —

Seymour B. Quel:

Surely.

Felix Frankfurter:

— what is the normal cause which brings you up when the issues are joined?

If it begins with — what’s the technical term of the papers that you give me?

Seymour B. Quel:

This — this — the summons —

Felix Frankfurter:

Summons —

Seymour B. Quel:

— and the complaint.

Felix Frankfurter:

Now, between the summons — well, this is a summons to which is annexed to decide to have this — this enjoined, is that right?

Seymour B. Quel:

In an ordinary injunction action.

Felix Frankfurter:

No, I mean in this, an ordinary —

Seymour B. Quel:

Oh.

Felix Frankfurter:

— injunction case.

Now, between the summons of this old fashioned bill and what you call the joining the issue, what is the normal procedural time?

Seymour B. Quel:

Well, under — under our New York practice, you normally have 20 days in which to answer a complaint in the Supreme Court.

But you don’t have to wait for 20 days.

You can put your answer in the next day.

An issue was joined when the answer comes in.

Felix Frankfurter:

Now, are these — these allegedly noxious books at once — is their dissemination at once enjoined automatically on the party of the complaint?

Seymour B. Quel:

No, not automatically, Your Honor.

Seymour B. Quel:

But that comes in under — not the provisions of section 22 (a) of the Code of Civil — Civil Procedure which is here involved, but under our Civil Practice Act.

Under section 877 of the Civil Practice Act.

In any equity action you may make an application for an injunction pendente lite.

And the granting of that injunction and whether a stay shall be granted, pending the hearing of the motion for that kind of an injunction are matters within the discretion of the trial court.

Now —

Felix Frankfurter:

Well, it’s not ex parte, is it?

Seymour B. Quel:

The granting of the order to show cause.

Felix Frankfurter:

Yes, it was not the —

Seymour B. Quel:

May it may — it may be ex parte generally is.

But the granting of the injunction pendente lite is not.

Now, in this particular case —

The stay is ex parte though.

The order to show cause includes to stay that’s (Inaudible)

Seymour B. Quel:

And if a judge signs it, he might strike it out and sometimes judges will not sign an ex parte but will — will say they’ll — they’ll have a hearing.

That frequently happens.

But nevertheless, a judge may sign it ex parte.

And in this particular case, the order to show cause with the stay in it was presented on September 10th.

And it was signed retainable on September 14th, and then apparently the motion was adjourned for three days until September 17th.

And on September 17th, the motion was heard and the defendants consented to an injunction pendente lite.

So, that that question, as far as I can see it, is out of the case at least as far as these particular defendants are concerned.

Now, that it seems to me points up the very narrow issues here.

Now, throughout his brief, counsel has spent a great deal of time on the Near case.

And he pens almost all of his argument on what he says was the holding in the Near case.

Because in the Near case the Minnesota statute, which was under attack, permitted the enjoining of future publications of the particular issues involved.

And this Court held that that was unconstitutional.

Now, counsel says that’s true but also involved in the Near case were some issues of the particular magazine which — which had already published.

And the judgment enjoined the — the judgment appeal from enjoining the sale or distribution of those particular issues.

And therefore says, counsel that’s just like our case.

Now, actually, of course, the thrust of the Near case was against the publication of the future issues because the Near case which — was one — which were — was brought against the publisher.

It’s true that incidentally involved in Near were some copies of the — of the newspaper which had already been published.

Seymour B. Quel:

But nobody was particularly interested in those if it’d be just as though you were trying to get an injunction against the New York Times with reference to future publications.

Now, of course, nobody would be very much interested in whether issues of the Times which were lying around at all and had already been printed and were a week or a month old were being circulated.

It’s the future issues of the magazine involved which were the main thing in the Near case.

And these incidental matters were simply caught up in the sweep, so to speak, in the whole thrust of the Court’s opinion, as I read it, was aimed at those future issues.

Now, I —

What’s the practice under the statute?

Do you go after criminal, answer at the same time or do you like to —

Seymour B. Quel:

Well, Your Honor, that’s a — not an easy question to answer for this reason.

We began this proceeding in 1954.

That is as far New York City is concerned.

Of course, this is a statewide statute and I’m not familiar with how it may operate in other cities.

And then this case was tried and — and the appeal was taken — appeal taken to the Court of Appeals and has been pending in this Court for quite awhile.

And — and in the mean time, as I recall it, there’s only one other case that we brought in New York City under this particular statute and everybody agreed to await further proceedings until the determination of this Court.

So that in actually practice, as far as I know, they’ve only been these two cases at least in reason is —

Felix Frankfurter:

You’re of the statute, Mr. Quel?

Seymour B. Quel:

Well, the statute has been on the books since 1941.

But in 1954, it was amended for the first time to provide that the corporation counsel was one of the persons authorized to bring the action —

Felix Frankfurter:

No, I mean the substantive law.

Is that not early?

Is that date from 1941?

Seymour B. Quel:

The penal provisions about obscenity —

Felix Frankfurter:

I understand.

Seymour B. Quel:

— have been there for a long time.

But this — this law permitting an injunction dates from 1941 —

Felix Frankfurter:

That’s a very common statute, isn’t it?

In — in the various states?

Seymour B. Quel:

I think not, Your Honor.

I have not — I have not been —

Felix Frankfurter:

So, the English —

Seymour B. Quel:

I have not found any —

Felix Frankfurter:

The English statute’s a parent to this statute is — is 1857, isn’t it?

Seymour B. Quel:

Yes.

Felix Frankfurter:

That’s the one that came up (Inaudible)

Seymour B. Quel:

In — in covering the decision.

Felix Frankfurter:

Yes.

Seymour B. Quel:

But as far as I know — well, Your — Your Honor, I — I’m not certain now whether the statute involved in the Hickman case was a — was a criminal or a —

Felix Frankfurter:

No, no, it was this.

Seymour B. Quel:

It was this?

Felix Frankfurter:

The proceedings before magistrates claiming that the book is indecent and therefore —

Seymour B. Quel:

I might say while we’re on the subject, Your Honor, I — I feel constrained to call Your Honor’s attention to something which I do not believe affects the decision in this case.

But think I should call it to your attention.

A few days ago, to be exact on — on March 26th, this statute was amended in several respects.

The only one which is material to our present discussion is that it added a provision which enjoins among other things the publication of obscene matter.

Now, what that means, I don’t know.

Felix Frankfurter:

This is a separate section.

Seymour B. Quel:

It is not a separate section.

It is an amendment of the statute of section 22 (a) of the Code of Criminal Procedure, which is now before Your Honors.

The amendment of course was not in effect when this case was brought or when it was decided.

And how that provision would be construed by the New York courts, the amended — to reprovision —

Felix Frankfurter:

Or construed out.

Seymour B. Quel:

Or — yes.

I think actually what they mean is republished.

I don’t think that they meant to imply that you can enjoin the publication of — as yet unpublished obscene matter.

If they did mean that, I can see that the statute would raise grave constitutional questions.

But that is not involved in the instant case.

Hugo L. Black:

That would be Near —

Seymour B. Quel:

I beg your pardon?

Hugo L. Black:

That would be Near, wouldn’t it?

That would be Near.

Seymour B. Quel:

I — I think it would be if — if it were actually meant to enjoin the — the publication of matter as it — as an — as yet unpublished.

Seymour B. Quel:

And I might say in that connection, Your Honor, I forgot to mention the fact that in this very case, perhaps in an excessive order, in the trial court we tried to enjoin not only the 14 issues which had been published, but two other issues which had not yet been published because we said it’s quite evident that they’re going to be just like all the others.

And the trial court refused to grant that injunction and we did not take any appeal from that, thereby, recognizing the correctness of that phase of the judgment.

I think your — I think Your Honors in view of the narrowness of the issues I can — I can rest my argument there.

Earl Warren:

Number 582 —

Seymour B. Quel:

Excuse me — excuse me Your Honor.

Shall I leave a copy of this amended bill?

Earl Warren:

You may — you may leave it with the clerk.

Seymour B. Quel:

Thank you.