Opinion of
Mr. Justice Douglas, joined by Mr. Justice Black, dissenting, announced by Mr. Justice Brennan.There are two reasons why I think this restraining order should be dissolved.
First, the provision for an injunction pendente lite gives the State the paralyzing power of a censor. A decree can issue ex parte — without a hearing and without any ruling or finding on the issue of obscenity. This provision is defended on the ground that it is only a little encroachment, that a hearing must be promptly given and a finding of obscenity promptly made. But every publisher knows what awful effect a decree issued in secret can have. We tread here on First Amendment grounds. And nothing is more devastating to the rights that it guarantees than the power to restrain publication before even a hearing is held. This is prior restraint and censorship at its worst.
Second, the procedure for restraining by equity decree the distribution of all the condemned literature does violence to the First Amendment. The judge or jury which *447finds the publisher guilty in New York City acts on evidence that may be quite different from evidence before the judge or jury that finds the publisher not guilty in Rochester. In New York City the publisher may have been selling his tracts to juveniles, while in Rochester he may have sold to professional people. The nature of the group among whom the tracts are distributed may have an important bearing on the issue of guilt in any obscenity prosecution. Yet the present statute makes one criminal conviction conclusive and authorizes a statewide decree that subjects the distributor to the contempt power. I think every publication is a separate offense which entitles the accused to a separate trial. Juries or judges may differ in their opinions, community by community, case by case. The publisher is entitled to that leeway under our constitutional system. One is entitled to defend every utterance on its merits and not to suffer today for what he uttered yesterday. Free speech is not to be regulated like diseased cattle and impure butter. The audience (in this case the judge or the jury) that hissed yesterday may applaud today, even for the same performance.
The regime approved by the Court goes far toward making the censor supreme. It also substitutes punishment by contempt for punishment by jury trial. In both respects it transgresses constitutional guarantees.
I would reverse this judgment and direct the restraining order to be dissolved.
MR. Justice Brennan,dissenting.
I believe the absence in this New York obscenity statute of a right to jury trial is a fatal defect. Provision for jury trials in equity causes is made by § 430 of the New York Civil Practice Act,1 but only for discretionary jury trials, *448and advisory verdicts, to be followed or rejected by the trial judge as he deems fit and proper.2
In Alberts v. California and Roth v. United States, decided toclay, post, p. 476, the Court held to be constitutional the following standard for judging obscenity— whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The statutes there involved allowed a jury trial of right, and we did not reach the question whether the safeguards necessary for securing the freedoms of speech and press for material not obscene included a jury determination of obscenity.
The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person. Jury trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an appraisal of material according to the average person’s application of contemporary community standards. A statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedoms of speech and press for material which is not obscene. Of course, as with jury questions generally, the trial judge must initially determine that there is a jury question, i. e., that reasonable men may differ whether the material is obscene.3
1 would reverse the judgment and direct the restraining order to be dissolved.
Gilbert-Bliss’ N. Y. Civ. Prac., Vol. 3B, 1942, § 430.
Learned v. Tillotson, 97 N. Y. 1; Bolognino v. Bolognino, 136 Misc. 656, 241 N. Y. Supp. 445 (Sup. Ct.), aff’d, 231 App. Div. 817, 246 N. Y. Supp. 883.
Parmelee v. United States, 72 App. D. C. 203, 205, 113 F. 2d 729, 731; United States v. Dennett, 39 F. 2d 564, 568.