The Constitution of the United States of America: Analysis and Interpretation Part 147

[104] Ibid. 105.

[105] Cantwell _v._ Connecticut, 310 U.S. 296, 308 (1940).

[106] Stromberg _v._ California, 283 U.S. 359, 369 (1931).

[107] Fox _v._ Was.h.i.+ngton, 236 U.S. 273, 277 (1915).

[108] Gitlow _v._ New York, 268 U.S. 652 (1925).

[109] Terminiello _v._ Chicago, 337 U.S. 1 (1949).

[110] Ibid. 4.

[111] Ibid. 33. Dissenting opinions were written by Chief Justice Vinson, Justice Frankfurter (with whom Justices Jackson and Burton concurred) and Justice Jackson, (with whom Justice Burton agreed).

[112] 340 U.S. 315 (1951).

[113] Ibid. 319-320. Anent this finding, Justice Douglas, in his dissent, declared that: "Public a.s.semblies and public speech occupy an important role in American life. One high function of the police is to protect these lawful gatherings so that the speakers may exercise their const.i.tutional rights. When unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. * * * But those extravagances * * *, do not justify penalizing the speaker by depriving him of the platform or by punis.h.i.+ng him for his conduct. * * * If * * * the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. Police censors.h.i.+p has all the vices of the censors.h.i.+p from city halls which we have repeatedy [sic] struck down."--Ibid. 330-331.

[114] 333 U.S. 507 (1948).

[115] Ibid. 514-515.

[116] Musser _v._ Utah, 333 U.S. 95 (1948).

[117] Ibid. 101. This dissent probably marks the climax of the clear and present danger doctrine.

"On March 20, 1949, members of the Vice Squad of the Philadelphia Police Department, at the direction of Inspector Craig Ellis, head of the Vice Squad, commenced a series of ma.s.s raids upon book stores and booksellers in Philadelphia. Inspector Ellis gave his men a list of books that in his opinion were obscene, and directed them to seize the books wherever found. Fifty-four booksellers were raided, and nearly twelve hundred copies of the books were confiscated.

"These raids were remarkable not only because of the scale on which they were conducted, but in several other respects. First, they were directed in major part against books written by authors in the forefront of American literature and published by some of the leading publishers in America. Second, the raids were conducted and the books were confiscated without warrants of search or seizure or court order of any kind. Third, the list of books to be seized was compiled by Inspector Ellis and a patrolman in his office, without consultation with the District Attorney's office or the obtaining of any legal opinion as to whether the books were obscene under the Pennsylvania statute.

"For once the publishers took the offensive. Houghton Mifflin Company, publisher of _Raintree County_, Alfred A. Knopf, Inc., publisher of _Never Love a Stranger_, and The Vanguard Press, Inc., publisher of books by James T. Farrell and Calder Willingham among those seized, commenced actions in the Federal District Court in Philadelphia to restrain further police seizures of these books and to recover damages from the police officers for their unlawful acts. In these two actions the authors Harold Robbins and James T. Farrell, as well as Charles Praissman, a courageous bookseller whose stores had been raided, joined the publishers as parties plaintiff. The District Attorney of Philadelphia countered by commencing criminal proceedings against five of the booksellers whose stores had been raided, and on June 30, 1948 the grand jury, upon presentation of the District Attorney, indicted the booksellers on a charge of having violated the Pennsylvania statute prohibiting the sale of obscene books.

"In the meantime the Federal court cases brought by the publishers has come to trial before Judge Guy K. Bard, and at the conclusion of the trials Judge Bard had enjoined further seizures of the plaintiff's books, as well as police invasion of Praissman's stores or seizure of his books without a warrant. At the time of this writing, the Federal court cases have not been finally decided.

"On January 3, 1949 the criminal cases came on for trial before Judge Curtis Bok of the Pennsylvania Court of Quarter Sessions. The defendants pleaded not guilty and waived trial by jury. They stipulated that at the times and places mentioned in the indictments they had had possession of the books for the purpose of offering them for sale to the public. The books were then placed in evidence, and the prosecution rested its case.

The defendants 'demurred to the evidence,' the effect of which was to raise the issue of whether the court, in the light of the const.i.tutional guaranty of freedom of the press, could hold, beyond a reasonable doubt, that the books before it were obscene within the meaning of the Pennsylvania obscenity statute." Introductory note to a republication by Alfred Knopf Inc. of Judge Bok's opinion in Commonwealth _v._ Gordon _et al._, 66 D & C (Pa.) 101 (1949).

On March 18, 1949 Judge Bok sustained the demurrers and entered judgment in favor of the defendants. The opinion which accompanies his judgment pivots in part on the clear and present danger rule. It reads: "The only clear and present danger to be prevented by section 524 that will satisfy both the Const.i.tution and the current customs of our era is the imminence of the commission of criminal behavior resulting from the reading of a book. Publication alone can have no such automatic effect."

This obviously overlooks the primary purpose of governmental interference with the distribution of "obscene literature," namely to protect immature minds from contamination. Dealing with this point Judge Bok protests against putting "the entire reading public at the mercy of the adolescent mind." Should, on the other hand, the adolescent mind be put at the mercy of the uninhibited reading tastes of an elderly federal judge?

[118] 310 U.S. 88 (1940).

[119] 310 U.S. 106 (1940).

[120] Thornhill _v._ Alabama, 310 U.S. 88, 102, 105 (1940).

[121] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941); _See also_ Hotel and Restaurant Employees' Alliance _v._ Board, 315 U.S. 437 (1942).

[122] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287, 293 (1941).

[123] American Federation of Labor _v._ Swing, 312 U.S. 321 (1941); Bakery and Pastry Drivers _v._ Wohl, 315 U.S. 769 (1942); Cafeteria Employees Union _v._ Gus Angelos, 320 U.S. 293 (1943).

[124] Teamsters Union _v._ Hanke, 339 U.S. 470, 474 (1950).

[125] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949).

[126] Building Service Union _v._ Gazzam, 339 U.S. 532 (1950).

[127] Hughes _v._ Superior Court, 339 U.S. 460 (1950).

[128] Carpenters Union _v._ Ritter's Cafe, 315 U.S. 722, 728 (1942).

[129] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949).

[130] Ibid. 501, 502, citing Fox _v._ Was.h.i.+ngton, 236 U.S. 273, 277, which predates any suggestion of the clear and present danger formula.

_See_ above. [Transcriber's Note: Reference is to Section CONTRASTING OPERATION OF THE COMMON LAW RULE, above.]

[131] Lincoln Union _v._ Northwestern Co., 335 U.S. 525 (1949); A.F. of L. _v._ American Sash Co., ibid., 538.

[132] Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949). In Teamsters Union _v._ Hanke, 339 U.S. 470 (1950), injunctions by State courts against picketing of a self-employer's place of business to compel him to adopt a union shop were sustained.

[133] Thomas _v._ Collins, 323 U.S. 516 (1945).

[134] Ibid. 566.

[135] Patterson _v._ Colorado, 205 U.S. 454 (1907). _Cf._ Toledo Newspaper Co. _v._ United States, 247 U.S. 402 (1918) in which the Court affirmed a judgment imposing a fine for contempt of court on an editor who had criticized the action of a federal judge in a pending case. The majority held that such conviction did not violate the First Amendment.

Justices Holmes and Brandeis dissented on the ground that the proceedings did not come within the applicable federal statute, but did not discuss the const.i.tutional issue. This decision was overruled in Nye _v._ United States, 313 U.S. 33 (1941).

[136] 314 U.S. 252 (1941).

[137] Ibid. 271.

[138] Ibid. 283, 284.

[139] 328 U.S. 331 (1946).

[140] Ibid. 350.

[141] Ibid. 349.

[142] 331 U.S. 367 (1947).

[143] Ibid. 376.

[144] Davis _v._ Ma.s.sachusetts, 107 U.S. 43 (1897).