Marcus v. Search Warrant, 367 U.S. 717 (1961), full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials. The Court unanimously overturned a Missouri Supreme Court decision upholding the forfeiture of hundreds of magazines confiscated from a Kansas City wholesaler. It held that both Missouri's procedures for the seizure of allegedly obscene material and the execution of the warrant itself violated the Fourth and Fourteenth amendments' prohibitions on search and seizure without due process. Those violations, in turn, threatened the rights protected by the First Amendment.
The case had begun in 1957, when the Kansas City Police Department vice squad raided the warehouse of a local news distributor and five newsstands. Officers seized dozens of publications, far beyond those which had started the investigation, since the search warrants were not specific. Less than half of the seized titles were ultimately found obscene and ordered to be burned.
Justice William Brennan wrote for the Court. He found the officers' conduct similar to that which had inspired the Founding Fathers to write the Fourth Amendment. He added that the Missouri Supreme Court had incorrectly applied an earlier Court holding in sustaining the forfeiture. The result was a system that operated as an effective prior restraint. Hugo Black, in a concurring opinion, joined by William O. Douglas restated his conviction that the Fourteenth Amendment applies all the rights protected by the Constitution to the states.
Marcus broke ground in holding that First Amendment interests required an additional layer of procedure than other instances of seizure. It would figure prominently in later obscenity cases involving seizures, including one called Quantity of Books v. Kansas, that explicitly tried to take its holding into account. After the Court settled on a definition of obscenity in the early 1970s, it continued to hear other cases on the issues first addressed in Marcus.
Background of the case For most of American history, literary and artistic works depicting or even alluding to sexual acts and topics, or using profane language, had been banned from publication or distribution, often by both confiscation of the works themselves and criminal prosecution of all individuals involved, following the traditions of English common law on obscenity and statutes at the state and federal levels. At the same time, demand for such materials continued, and the laws were often widely flouted. No defendant or claimant in such an action had ever persuaded a court to entertain the argument that the First Amendment's guarantees of free speech and free expression barred them.
That began to change during the 20th century, in response to social and cultural trends of greater tolerance for literature and art that depicted such proscribed material. In the landmark 1933 case United States v. One Book Called Ulysses, Judge John M. Woolsey of the Southern District of New York ruled that James Joyce's novel Ulysses, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from the United States purely on the basis of its language and content without considering its literary merit.United States v. One Book Called Ulysses, 5 F.Supp. 182 (S.D.N.Y., 1933). Second Circuit judges Learned Hand and Augustus Hand upheld Woolsey on appeal,United States v. One Book Entitled Ulysses, by James Joyce, 72 F.2d 705 (2nd Cir., 1934) and the book, considered a masterpiece of modernist literature, could be freely published and sold.
Censorship battles continued in the next decades over other works of literature and art, such as Lady Chatterley's Lover, expanding to include films. In 1957, the Supreme Court finally considered a case arising from an obscenity prosecution, Roth v. United States.Roth v. United States, . William Brennan wrote for a 6–3 majority that upheld the criminal conviction but abandoned the century-old Hicklin test in favor of a narrower definition of obscenity. However, it did not settle the issue, and the Warren Court had to hear more cases arising from subsequent prosecutions in the next decade, during which the Sexual Revolution began a more direct challenge to social mores on the issue.
Criminal trials for obscenity were becoming more frequent and more of a risk for local prosecutors. Civil libertarians rallied around the defendants, creating negative publicity and increasing the chance of acquittals. Convictions were struck down on appeal. Some local authorities decided to combat obscenity through the use of civil forfeiture of obscene material. In civil cases, they had a lower burden of proof, needing to show only by a preponderance of evidence that the material was obscene, with no actual person as a defendant.
Underlying dispute In October 1957, a Lt. Coughlin of the Kansas City Police Department's (KCPD) vice squad was investigating the distribution of magazines which might have met the state's definition of obscenity. As part of that investigation, he visited the office of Kansas City News Distributors, a wholesaler which sold all types of printed material to newsstands all over the city and its metropolitan area. He showed Homer Smay, the manager, a list of a possibly obscene magazine titles and asked if he distributed any of them; Smay confirmed that the wholesaler distributed all but one.Marcus v. Search Warrant, , 721–23 (1961), Brennan, J.
Coughlin visited five of the newsstands the wholesaler sold to and bought a copy of one of the listed magazines. He then filed affidavits for the newsstands and the main office of Kansas City News Distributors with a Jackson County circuit court judge, who issued search warrants that merely repeated the definition of obscenity in the Missouri statutes and did not list any specific titles nor specify in detail the types of materials to be seized. Two days later, Coughlin and other KCPD officers, with some help from the county sheriff's office, executed the warrants.
At the wholesalers' main office, the officers confiscated not only copies of the titles on Coughlin's list but anything else that at least one thought might be obscene. After three hours of searching through stock including a million copies of magazines, they took 11,000 copies representing 280 separate titles, as well as some books and still photographs.The seized material was later described as "so-called 'girlie' magazines, nudist magazines, treatises and manuals on sex, photography magazines, cartoon and joke books, and still photographs." (Marcus, 367 U.S. at 723, note 8). The seized material was transported to the 15th floor of the county courthouse. No arrests were made.
A week later, per statute, the judge held a hearing at which the claimants were allowed to challenge the obscenity findings of the material involved. They made motions to quash the warrant and search as unconstitutional, since there had been no prior hearing and since the officers executing the search had been allowed to seize almost anything. As a result of this argument, the case became an in rem action with the search warrant itself as the defendant, since no unlawful conduct could be argued on the part of the officers or even the state of Missouri itself. Two months later, the judge held the search valid but ordered 180 of the magazine titles returned, as they were not obscene. Copies of the other hundred were ordered to be burned publicly as required by the statute.
An appeal was made to the Missouri Supreme Court. It relied on the recent U.S. Supreme Court decision in Kingsley Books Inc. v. Brown,Kingsley Books Inc. v. Brown, . where a New York statute permitting authorities to obtain an injunction against the sale of any obscene material was upheld, and the Missouri Supreme Court held that the search and seizure was constitutional.Marcus, 367 U.S. at 734. The appellants then appealed to the U.S. Supreme Court, which granted certiorari in the fall 1960 term.
Decision The Court heard oral arguments in March 1961. Sidney Glazer argued for the claimants. Fred Howard, a Missouri assistant attorney general, argued for the state. His superior, Missouri Attorney General Thomas Eagleton, was credited as a coauthor of the state's brief.
In late June, near the end of the term, the Court announced its decision. Unanimously, it had held for the claimants that the search and seizure was unconstitutional. William Brennan wrote a majority opinion. Hugo Black wrote a short concurrence which was joined by William O. Douglas.
Opinions "The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new", Brennan began. "Historically, the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power." Citing histories of the former, he traced the beginning of that struggle to the Royal Charter granted the Stationers' Company in the middle of the 16th century, which gave it the power to search printers at pleasure and seize any material that might violate any law or royal proclamation.Marcus, 367 U.S. at 725–27.
This authority continued in various forms, through various bodies, until it was condemned by judicial warrants in the cases brought by the Crown against John Wilkes, publisher of The North Briton, during the 1760s. Those cases culminated in the landmark Entick v Carrington,Entick v Carrington, EWHC KB J98, (1765) 19 Howell's State Trials 1030; 95 ER 807; EWHC KB J98. which the Court itself had called, in Boyd v. United States, "one of the landmarks of English liberty".Boyd v. United States, , 626 (1886), Bradley, J. "This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped", Brennan wrote. "The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression."Marcus, 367 U.S. at 729.
Having concluded his review of the background history, Brennan turned to the present. "The question here is whether the use by Missouri in this case of the search and seizure power to suppress obscene publications involved abuses inimical to protected expression." While Brennan had held for the Court in Roth that obscenity did not come under the First Amendment's protections, it was a complex issue, since not all material dealing with sex and sexuality was inherently obscene.Roth, 354 U.S. at 385–87, Brennan, J. Thus, the process of suppressing it was necessarily limited by the concern for possibly protected expression, as it had recognized in overturning the criminal conviction of a Los Angeles bookseller under a strict liability standard in Smith v. California.Smith v. California, .Marcus, 367 U.S. at 730.
The Missouri Supreme Court had refused to distinguish between the seizure of obscene material and the seizure of other contraband, such as illegal drugs or gambling implements, also required by law to be destroyed. This Brennan held to be erroneous:
Nothing better demonstrated that adequate constitutional safeguards were lacking, Brennan noted, than the circuit court's eventual ruling that less than half of the seized magazines were obscene. "Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees."Marcus, 367 U.S. at 730–33.