decided: June 25, 1973.
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.
Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 494. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 494.
[ 413 U.S. Page 484]
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to determine whether a judicial officer authorized to issue warrants, who has viewed a film and finds it to be obscene, can issue a constitutionally valid warrant for the film's seizure as evidence in a prosecution against the exhibitor, without first conducting an adversary hearing on the issue of probable obscenity.
[ 413 U.S. Page 485]
Petitioner was manager of a commercial movie theater in the Greenwich Village area of New York City. On July 29, 1969, a film called "Blue Movie" was exhibited there. The film depicts a nude couple engaged in ultimate sexual acts. Three police officers saw part of the film. Apparently on the basis of their observations, an assistant district attorney of New York County requested a judge of the New York Criminal Court to see a performance. On July 31, 1969, the judge, accompanied by a police inspector, purchased a ticket and saw the entire film. There were about 100 other persons in the audience. Neither the judge nor the police inspector recalled any signs restricting admission to adults.*fn1
At the end of the film, the judge, without any discussions with the police inspector, signed a search warrant for the seizure of the film and three "John Doe" warrants for the arrest of the theater manager, the projectionist, and the ticket taker, respectively. No one at the theater was notified or consulted prior to the issuance of the warrants. The judge signed the warrants because "it was, and is my opinion that that film is obscene, and was obscene as I saw it then under the definition of obscene, that is [in] . . . section 235.00 of the Penal Law." Exhibition of an obscene film violates New York Penal Law § 235.05.*fn2
[ 413 U.S. Page 486]
The warrants were immediately executed by police officers. Three reels, composing a single copy of the film, were seized. Petitioner, the theater manager, was arrested, as were the projectionist and the ticket taker.*fn3 No pretrial motion was made for the return of the film or for its suppression as evidence. Nor did petitioner make a pretrial claim that seizure of the film prevented its exhibition by use of another copy, and the record does not conclusively indicate whether such a copy was available. On September 16, 1969, 47 days after his arrest and the seizure of the movie, petitioner came to trial, a jury having been waived, before three judges of the New York City Criminal Court.
[ 413 U.S. Page 487]
At trial, the prosecution's case rested almost solely on testimony concerning the arrests and the seizure of the film, together with the introduction into evidence of the seized film itself. The film was exhibited to the trial judges. The defense offered three "expert" witnesses: an author, a professor of sociology, and a newspaper writer. These witnesses testified that the film had social, literary, and artistic importance in illustrating "a growing and important point of view about sexual behavior" as well as providing observations "about the political and social situation in this country today. . . ." Petitioner testified that the theater's employees were instructed not to admit persons who appeared to be under 18 years of age, unless they "had identification" that they were 18. Petitioner also testified that there was a sign at the box office stating that "no one under 17 [would be] admitted." Both at the end of the prosecution's case and his own case, petitioner moved to dismiss the indictment on the ground that the seizure of the film, without a prior adversary hearing, violated the Fourteenth Amendment.
At the close of trial on September 17, 1969, petitioner was found guilty by all three judges of violating New York Penal Law § 235.05. On appeal, both the Supreme Court of the State of New York, Appellate Term, and the Court of Appeals of the State of New York viewed the film and affirmed petitioner's conviction. The Court of Appeals, relying on this Court's opinion in Lee Art Theatre v. Virginia, 392 U.S. 636, 637 (1968), held that an adversary hearing was not required prior to seizure of the film, and that the judicial determination which occurred prior to seizure in this case was constitutionally sufficient. In so holding, the Court of Appeals explicitly disapproved, as going "beyond any requirement imposed on State courts by the Supreme
[ 413 U.S. Page 488]
Court," Astro Cinema Corp. v. Mackell, 422 F.2d 293 (CA2 1970), and Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (CA2 1969), cert. denied, 397 U.S. 920 (1970), cases requiring an adversary hearing prior to any seizure of movie film. 29 N. Y. 2d 319, 323, 277 N. E. 2d 651, 653 (1971).
We affirm this holding of the Court of Appeals of the State of New York. This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. See Times Film Corp. v. Chicago, 365 U.S. 43 (1961); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440-442 (1957). In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. In Lee Art Theatre v. Virginia, supra, the Court went so far as to suggest that it was an open question whether a judge need "have viewed the motion picture before issuing the warrant."*fn4 Here the judge viewed the entire film and, indeed, witnessed the alleged criminal act. It is not contested that the judge was a "neutral, detached magistrate," that he had a full opportunity for independent judicial
[ 413 U.S. Page 489]
determination of probable cause prior to issuing the warrant, and that he was able to "focus searchingly on the question of obscenity." See Marcus v. Search Warrant, 367 U.S. 717, 731-733 (1961). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 449-453 (1971); Giordenello v. United States, 357 U.S. 480, 485-486 (1958); Johnson v. United States, 333 U.S. 10, 14-15 (1948).
[ 413 U.S. Page 490]
In United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), and Freedman v. Maryland, 380 U.S. 51 (1965), we held that "'because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.'" 402 U.S., at 367, quoting 380 U.S., at 58 (emphasis added). Those cases involved, respectively, seizure of imported materials by federal customs agents and state administrative licensing of motion pictures, both civil procedures directed at absolute suppression of the materials themselves. Even in those cases, we did not require that the adversary proceeding must take place prior to initial seizure. Rather, it was held that a judicial determination must occur "promptly so that administrative delay does not in itself become a form of censorship."*fn5 United States v. Thirty-seven Photographs, supra, at 367; Freedman v. Maryland, Page 490} supra, at 57-59. See Blount v. Rizzi, 400 U.S. 410, 419-421 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141-142 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70-71 (1963).
In this case, of course, the film was not subjected to any form of " final restraint," in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself "become a form of censorship," even making the doubtful assumption that no other copies of the film existed. Cf. United States v. Thirty-seven Photographs, supra, at 367; Freedman v. Maryland, supra, at 57-59. A judicial determination of obscenity, following a fully adversary trial, occurred within 48 days of the temporary seizure. Petitioner made no pretrial motions seeking return of the film or challenging its seizure, nor did he request expedited judicial consideration of the obscenity issue, so it is entirely possible that a prompt judicial determination of the obscenity issue in an adversary proceeding could have been obtained if petitioner had desired.*fn6 Although we have refrained from establishing rigid, specific time deadlines in proceedings involving seizure of allegedly obscene material, we have definitely excluded from any consideration of "promptness" those delays caused by the choice of the defendant. See United States v. Thirty-seven Photographs, supra, at 373-374. In this case, the barrier to a prompt judicial determination of the
[ 413 U.S. Page 491]
obscenity issue in an adversary proceeding was not the State, but petitioner's decision to waive pretrial motions and reserve the obscenity issue for trial. Cf. Kingsley Books, Inc. v. Brown, 354 U.S., at 439.
Petitioner's reliance on the Court's decisions in A Quantity of Books v. Kansas, 378 U.S. 205 (1964), and Marcus v. Search Warrant, 367 U.S. 717 (1961), is misplaced. Those cases concerned the seizure of large quantities of books for the sole purpose of their destruction,*fn7 and this Court held that, in those circumstances, a prior judicial determination of obscenity in an adversary proceeding was required to avoid "danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books. " A Quantity of Books v. Kansas, supra, at 213. We do not disturb this holding. Courts will scrutinize any large-scale seizure of books, films, or other materials presumptively protected under the First Amendment to be certain that the requirements of A Quantity of Books and Marcus are fully met. "'Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.'" New York Times Co. v. United States, 403 U.S. 713,
[ 413 U.S. Page 492714]
(1971), quoting Bantam Books, Inc. v. Sullivan, 372 U.S., at 70; Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971); Carroll v. Princess Anne, 393 U.S. 175, 181 (1968). See Near v. Minnesota, 283 U.S. 697 (1931).
But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.*fn8 If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt*fn9 judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be
[ 413 U.S. Page 493]
continued pending a judicial determination of the obscenity issue in an adversary proceeding.*fn10 Otherwise, the film must be returned.*fn11
With such safeguards, we do not perceive that an adversary hearing prior to a seizure by lawful warrant would materially increase First Amendment protection. Cf. Carroll v. Princess Anne, supra, at 183-184. The necessity for a prior judicial determination of probable cause will protect against gross abuses, while the availability of a prompt judicial determination in an adversary proceeding following the seizure assures that difficult marginal cases will be fully considered in light of First Amendment guarantees, with only a minimal interference with public circulation pending litigation. The procedure used by New York in this case provides such First Amendment safeguards, while also serving the public interests in full and fair prosecution for obscenity offenses. Counsel for New York has argued that movie films tend to "disappear" if adversary hearings are afforded prior to seizure. We take judicial notice that such films may be compact, readily transported for exhibition in other jurisdictions, easily destructible, and particularly susceptible to alteration by cutting and splicing critical parts of film.
[ 413 U.S. Page 494]
Petitioner also challenged his conviction on substantive, as opposed to procedural, ground arguing that he was convicted under standards of obscenity both overbroad and unconstitutionally vague. In addition, petitioner argues that films shown only to consenting adults in private have a particular claim to constitutional protection. In Miller v. California, ante, p. 15, and Paris Adult Theatre I v. Slaton, ante, p. 49, decided June 21, 1973, we dealt with these substantive issues. A majority of this Court has now approved guidelines for the lawful state regulation of obscene material. The judgment of the Court of Appeals of the State of New York is therefore vacated and this case remanded for the sole purpose of affording the New York courts an opportunity to reconsider these substantive issues in light of Miller and Paris Adult Theatre I. See United States v. 12 200-ft. Reels of Film, ante, at 130 n. 7.
Vacated and remanded.
29 N. Y. 2d 319, 277 N. E. 2d 651, vacated and remanded.
MR. JUSTICE DOUGLAS, dissenting.*fn1
I would reverse outright in each of these cases as, in my view, the underlying obscenity statute violates the First Amendment for the reasons stated in my dissenting opinions in Miller v. California, ante, p. 37, and United States v. 12 200-ft. Reels of Film, ante, p. 130.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.
We granted certiorari to consider the holding of the Court of Appeals of New York that the Constitution does not require an adversary hearing on obscenity prior to a judge's issuance of warrants for the seizure of a
[ 413 U.S. Page 495]
film and for the arrest of the film's exhibitor. 29 N. Y. 2d 319, 277 N. E. 2d 651 (1971). The statute under which the prosecution was brought*fn2 is, in my view, unconstitutionally overbroad and therefore invalid on its face. See my dissent in Paris Adult Theatre I v. Slaton, ante, p. 73. I would therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings not inconsistent with my dissenting opinion in Slaton. In that circumstance, I have no occasion to consider whether, assuming that a prosecution could properly be brought, the seizure of the film at issue here was constitutional.
* Briefs of amici curiae urging affirmance were filed by Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier and Edward P. O'Brien, Assistant Attorneys General, and Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys General, for the State of California; and by Charles H. Keating, Jr., pro se, Richard M. Bertsch, James J. Clancy, and Albert S. Johnston III for Charles H. Keating, Jr.