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Bantam Books, Inc. v. Sullivan, 372 U.S. 58 is a United States Supreme Court decision concerning the violation of the First Amendment liberty to freedom of the press, also protected by the Fourteenth Amendment. In an 8-1 decision, the Court sided with Bantam Books, Inc., in a case that deemed Rhode Island’s formation of a commission --- which sought to hinder the distribution of obscene materials --- unconstitutional.

Background
In January of 1956, the Rhode Island General Assembly called for the formation of the Rhode Island Commission to Encourage Morality in Youth, a group which was intended to combat juvenile delinquency. Nine members, appointed by the Governor of Rhode Island, would serve on the Commission for a term of five years. The Commission sought “to educate the public of any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language.” With this goal in mind, the Commission sent notices to distributors, if published works were decided as “questionable” material under its review. If a majority of its members found the material to be “objectionable for sale, distribution or display to youths under 18 years of age”, the Commission would request the distributor's “cooperation” in removing the material from circulation. On top of that, the Commission threatened to provide lists of these “objectionable” materials to local police, as well as recommend “prosecution of purveyors of obscenity”.

Four book publishers (Dell Publishing Co., Pocket books, Inc., The New American Library of World Literature, Inc. and Bantam Books Inc.), were amongst those directly affected by the Commission’s notices. Throughout the state of Rhode Island, Max Silverstein & Sons was the sole distributor of the previously mentioned publishers. The distributor received at least 35 notices, calling for the halt in circulation of the “objectionable” materials published by the four groups and others. Silverstein & Sons obeyed the Commission’s request. Of the 35 notices, one asked for the removal of a paperback book published by Dell Publishing; another cited the removal of a published work from Bantam Books Inc.

Under the plaintiff name Bantam Books Inc., the four publishers brought the case to Rhode Island's Superior Court, claiming the Commission was unconstitutional and infringing on its own rights. Although the Court decided that the Commission's acts were unconstitutional, it failed to deem the Commission as a whole as unconstitutional. Thereafter, Bantam Books, Inc. petitioned the Court's decision in the Supreme Court of Rhode Island, where the Superior Court's decision was nulled. Thus, Bantam Books, Inc. appealed this lower court’s decision, and brought it to the U.S. Supreme Court on December 3, 1962. The case was decided on February 18, 1963 in favor of the appellants.

Counsel

 * Horas S. Manges, alongside Jacob F. Raskin and Milton Stanzler, argued on behalf of the appellants.


 * J. Joseph Nugent, the Attorney General of Rhode Island, argued alongside Joseph L. Breen on behalf of the appellee.

Issues

 * 1) Whether or not the Commission was acting within its constitutional rights to educate the public on obscene materials, and in recommending the purveyor for prosecution.
 * 2) Whether or not the Commission should continue to exist.

Lower Courts’ Decision
The plaintiff, Bantam Books, Inc., filed a petition against defendant Sullivan. The case was first brought to Rhode Island’s Superior Court, presided by Justice Mackenzie. The plaintiff sought: The presiding Justice failed to grant the plaintiff’s first request, but decided to confirm the second. The plaintiff petitioned this decision because it denied “a portion of the relief prayed for", and thus took it to the Supreme Court of Rhode Island.  The Supreme Court of Rhode Island actually reversed the decision of the Superior Court that stated the Commission's actions were unconstitutional. The Commission was in fact acting within its constitutional rights, and would stay intact. Due to this, Bantam Books, Inc. appealed the decision in front of the U.S. Supreme Court.
 * 1) “to declare the law creating the commission violative of the First and Fourteenth Amendments.”
 * 2) “to declare unconstitutional and enjoin the acts and practices of the commission thereunder.”

The Supreme Court’s Decision
Mr. Justice Brennan delivered the majority opinion of the court, which fell in favor of Bantam Books in an 8-1 vote. The opinion was delivered on February 18, 1963, after the case was argued a few months prior on December 3, 1962. Brennan and the other concurring justices found that the Rhode Island Commission to Encourage Morality in Youth was acting outside of its rights, as it used “governmental censorship devoid of the constitutionally required safeguards for state regulation of obscenity, and thus abridge First Amendment liberties, protected by the Fourteenth Amendment from infringement by the States.”

Although the court cited the previous case Roth v. United States, 354 U. S. 476, 354 U. S. 485, which stated that obscenity is not a form of protected speech, Brennan and the majority found that the circumstances were different. By threatening legal action “and other means of coercion, persuasion, and intimidation”, the Court decided that the Commission acted in a deliberate way to “set about to achieve the suppression of publications…and succeeded in its aim.”

As well, the acts and practices of the members of the Commission were “performed under color of state law”. The acts and practices of the Commission were designed to stop the circulation of certain publications within the state of Rhode Island. Brennan further noted that the lower court’s decision, which sided with Sullivan, was in part made because it found that Silverstein was free to ignore the notices sent by the Commission. Brennan and the Supreme Court justices, though, contend that Silverstein's “compliance with the Commission's directives was not voluntary.” All in all, the court found that the Commission’s intent was not in fact to inform the public, but to suppress the publication of certain materials. The Commission was eliminated.

Evidence
The notices that the Commission sent to Max Silverstein & Sons were used as evidence, and deemed by the Court as holding prior restraint. Brennan and the majority pointed out that the notices were “phrased virtually as orders” and the dialect essentially forced Silverstein to “cooperate”. An excerpt of one of the notices sent to Silverstein is as follows:"'This agency was established by legislative order in 1956 with the immediate charge to prevent the sale, distribution or display of indecent and obscene publications to youths under eighteen years of age. The Commissions [sic] have reviewed the following publications and by majority vote have declared they are completely objectionable for sale, distribution or display for youths and [sic] eighteen years of age...The Chiefs of Police have been given the names of the aforementioned magazines with the order that they are not to be sold, distributed or displayed to youths under eighteen years of age. The Attorney General will act for us in case of non-compliance. The Commissioners trust that you will cooperate with this agency in their work...Another list will follow shortly.'"With this in mind, the Court found that the Commission was acting outside its constitutional rights, and the notices in fact “stopped the circulation of the listed publications”.

= Dissenting Opinion = Justice Harlan delivered the lone opinion of dissent. Harlan contested that the social impact the Commission had in regards to combatting juvenile delinquency, outweighed any reason the Court’s should find the Commission unconstitutional. Harlan surmised there were three reasons for why the Court sided with Bantam Books Inc.: Harlan disregarded these three reasons. To combat reason (1), Harlan states that the Commission’s approach to fight childhood delinquency should not go unnoticed. It is not so much a program intended for governmental censorship, as it is “an attempt to cope with a most baffling social problem”. Although Harlan consents that some of the Commission’s notices carry an aura of authority that it should not possess, he does find that a simple “word to the wise” could provide a resolution.
 * 1) “the Commission's activities, carried on under color of state law, amount to a scheme of governmental censorship”
 * 2) “its procedures lack adequate safeguards to protect non-obscene material against suppression”
 * 3) “the group's operations in the field of youth morality may entail depriving the adult public of access to constitutionally protected material”

In regards to reason (2), Harlan contends that if a publisher or distributor finds that a work of theirs is wrongfully reviewed as obscene, the publisher or distributor can stand their ground. Also, none of the Commission’s notices are binding. Harlan cites Times Film Corp. v. Chicago,365 U. S. 43,  in which the petitioner refused to comply with a Chicago ordinance. If a party has a problem, they don’t need to comply with the Commission’s determination because the “Commission's action is attended by no legal sanctions, and leaves distribution of the questioned material entirely undisturbed.”

Lastly, with reason (3), Harlan states that it “requires little additional comment”. An instance like the one described had not come up during the case, and thus should not be commented on. If the case eventually arises, then further legal judgment can be taken.

With this in mind, Harlan came to his own conclusion on the case. The Commission should be able to:
 * 1) “express its views on the character of any published reading or other material;”
 * 2) “endeavor to enlist the support of law enforcement authorities, or the cooperation of publishers and distributors, with respect to any material the Commission deems obscene;”
 * 3) “notify publishers, distributors, and members of the public”.

= Precedent and Related Cases = Although obscenity is not a protected form of free speech as noted in Roth v. United States, Bantam Books, Inc. v. Sullivan set the precedent that other factors must be taken into account, specifically prior restraint. Bantam Books, Inc. v. Sullivan was the first case brought to the Supreme Court raising the issue of judicial prior restraint. The use of prior restraint by a non-judicial branch like the Commission was found as "bearing a heavy presumption against its constitutional validity" and thus Roth v. United States was not applicable. As follows, there are different circumstances for cases containing obscenity---whether that be taking into account cases of prior restraint.

Following the Supreme Court’s decision, Bantam Books, Inc. v. Sullivan has been cited and referenced in many subsequent court cases. Most of those cases refer to Bantam Book, Inc v. Sullivan in regards to its precedent of prior restraints. For example, Southeastern Promotions v. Conrad, 420 U.S. 546 noted that "any system of prior restraints of expression comes to the United States Supreme Court bearing a heavy presumption against its constitutional validity" because of cases like Bantam Books v. Sullivan. Although prior restraint is not illegal, the court will hold a bias because of cases like Bantam Books, Inc. v. Sullivan. Another case, '''Doe v. Gonzales, 386 F. Supp. 2d 66''', mentions Bantam Books, Inc. v. Sullivan in regards to prior restraint. Bantam Books, Inc. v Sullivan established that prior restraint is not just limited to a court order nor administrative orders. As long as there is "sufficient 'coercion, persuasion and intimidation,' to create a prior restraint.

Bantam Books, Inc. v. Sullivan not only set a precedent in regards to prior restraint, but also in regards to conceding that "informal censorship" is sufficient in injunctive relief. In 1991, a similar case to Bantam Books, Inc. v. Sullivan arose called '''Penguin Books USA Inc. v. Walsh, 756 F. Supp. 770'''. Like Bantam Books, Inc. v Sullivan, the plaintiffs –- an author and publisher - sought a permanent injunction against the defendants because of interference with publishing a book. The court cited Bantam Books, Inc, v. Sullivan, saying that "informal censorship" is sufficient in injunctive relief. Also, "as the Bantam Court noted, although plaintiffs could have ignored the defendant's notices threatening legal action, plaintiff's compliance had not been voluntary." This statement refers to the notices Max Silverstein received, and how the notices were “phrased virtually as orders.”

= References =