Bantam Books, Inc. v. Sullivan
Did the Rhode Island Commission to Encourage Morality in Youth's practice of sending notices to booksellers and distributors identifying certain publications as 'objectionable' constitute an unconstitutional system of prior restraint and informal censorship in violation of the First and Fourteenth Amendments?
The Decision
8-1 decision · Opinion by William J. Brennan Jr. · 1963
Majority Opinion— William J. Brennan Jr.concurring ↓dissent ↓
In an 8–1 decision authored by Justice William J. Brennan Jr., the Supreme Court reversed the Rhode Island Supreme Court and held that the Commission's system of notifying distributors about 'objectionable' publications constituted an unconstitutional scheme of informal censorship that violated the First and Fourteenth Amendments. The Court found that the Commission's practices were not the innocent advisory activities the state claimed them to be, but rather a deliberately coercive system designed to suppress the circulation of certain publications.
Justice Brennan's opinion focused on the practical realities of how the Commission operated rather than the formal labels attached to its actions. The majority found that the Commission's notices, read in context — on official letterhead, accompanied by reminders of the power to recommend prosecution, and followed up by police visits — were understood by distributors not as friendly suggestions but as implicit threats. Distributors complied not out of civic goodwill but out of reasonable fear of legal consequences. As a result, publications were effectively banned from circulation across the state without any court ever determining whether a single one of those titles was actually obscene under the law.
The Court emphasized that this informal system was constitutionally worse in many ways than formal censorship because it lacked every procedural safeguard that the Constitution demands before speech can be restricted. There was no adversarial hearing, no judicial review, no opportunity for publishers to defend their work, and no requirement that the Commission bear the burden of proving that any publication was legally obscene. The system operated entirely in the shadows, beyond the reach of legal accountability.
Justice Brennan wrote that the First Amendment's protections against prior restraint are not limited to formal government orders or legal proceedings. Informal governmental action that achieves the same suppressive effect as a formal censorship scheme is equally subject to constitutional scrutiny. The government cannot accomplish through coercion and intimidation what it would be forbidden from doing through direct regulation. Because the Commission's system amounted to a scheme of state censorship without any of the constitutional safeguards required before speech may be suppressed, it was struck down as unconstitutional.
Concurring Opinions
Justice Douglas, joined by Justice Black, wrote a concurring opinion expressing the view that the case illustrated the broader dangers of all governmental attempts to regulate expression based on content, reflecting their well-known absolutist interpretation of the First Amendment. Justice Clark also wrote a brief concurrence agreeing with the result.
Dissenting Opinions
John Marshall Harlan II
Justice Harlan dissented, arguing that the majority overstated the coercive nature of the Commission's activities and that the record did not adequately support a finding that the Commission's notices amounted to a prior restraint. He believed the case warranted a more limited disposition rather than the sweeping constitutional ruling the majority issued.
- The Commission's notices were issued within its statutory authority and did not carry the force of law, meaning distributors retained the legal freedom to continue selling the identified publications.
- The majority's broad holding risked sweeping in legitimate, non-coercive government communications that inform citizens or businesses about legal standards, conflating permissible government speech with unconstitutional censorship.
Background & Facts
In 1956, the state of Rhode Island created a body called the Rhode Island Commission to Encourage Morality in Youth. This nine-member commission was charged by state law with investigating and recommending prosecution of violations of the state's obscenity statutes, particularly as they related to the sale of materials to minors. In practice, the Commission went well beyond simply investigating complaints. It would review books, magazines, and other publications and then send formal written notices to distributors and retailers identifying specific titles it deemed 'objectionable' for sale or display to youths under eighteen.
These notices were printed on official Commission letterhead and typically included a list of specific titles the Commission had found objectionable. Critically, the notices also contained a pointed reminder that the Commission had the statutory duty to recommend prosecution of purveyors of obscenity to the state Attorney General. After sending these notices, police officers would routinely follow up with visits to the distributors and booksellers to check whether the identified publications had been removed from circulation. The combined effect was powerful: distributors regularly pulled the listed titles from shelves and returned them to publishers without any judicial hearing or formal legal proceeding ever taking place.
Bantam Books, Inc., along with several other publishers and a distributor named Max Silverstein & Sons, brought suit against the members of the Commission, including its chairman, Edward Sullivan. The publishers argued that the Commission's system of sending threatening notices amounted to an unconstitutional censorship scheme that suppressed the distribution of constitutionally protected material. They sought a court order declaring the Commission's practices unconstitutional and an injunction to stop them.
The Rhode Island Superior Court ruled in favor of the publishers, finding that the Commission's activities did amount to censorship. However, the Rhode Island Supreme Court reversed that decision, reasoning that the Commission's notices were merely advisory recommendations that carried no legal force and therefore did not constitute censorship or a prior restraint on speech. Because this case raised important questions about the limits of government power to suppress speech through informal channels, the U.S. Supreme Court agreed to hear it.
The Arguments
The publishers argued that the Commission's practice of sending official notices identifying 'objectionable' publications, backed by implicit threats of prosecution and police follow-up visits, operated as an unconstitutional system of censorship and prior restraint. Even though no formal legal orders were issued, the system effectively suppressed the circulation of constitutionally protected books and magazines without any judicial determination of obscenity.
- The Commission's notices, though nominally advisory, functioned as de facto orders to stop distributing identified titles, because distributors reasonably feared prosecution if they did not comply.
- The system provided absolutely no procedural safeguards — no notice and hearing, no judicial review, and no opportunity for publishers or distributors to contest the Commission's determinations before publications were suppressed.
- Police follow-up visits to check compliance transformed what the Commission called 'recommendations' into coercive intimidation backed by the visible presence of law enforcement authority.
The Commission members argued that their activities were squarely within the scope of their statutory authority and that their notices were merely non-binding recommendations intended to alert distributors to potentially problematic material. Because the notices carried no legal penalties and distributors were free to ignore them, the Commission contended there was no censorship.
- The Commission's enabling statute authorized it to educate the public and recommend prosecution — it had no power to issue legally binding orders or impose sanctions on anyone.
- Distributors voluntarily chose to remove listed titles; the Commission did not compel removal, and no one was ever formally prosecuted solely based on a Commission referral regarding the listed titles.
- The Commission's work served the legitimate and important state interest of protecting youth from exposure to obscene and harmful publications.