Smith v. California
The Supreme Court struck down a Los Angeles ordinance that let the city jail a bookseller for possessing an obscene book without ever proving he knew what the book contained.
Because the law required no proof of knowledge, the Court found it would push booksellers to play it safe by pulling questionable but constitutionally protected books off their shelves too, chilling the public's access to lawful reading material.
“It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.”
The Court's core reason for striking down the strict-liability obscenity ordinance.
How it got here: A California municipal court convicted the bookseller and the Appellate Department of the Superior Court affirmed; he appealed directly to the Supreme Court.
The Case in Depth
What happened
A Los Angeles bookstore owner was convicted and jailed under a city ordinance making it a crime to have an obscene book in a shop where books are sold, regardless of whether the seller knew the book's contents. A single obscene book found in his store was enough for conviction under the law as interpreted by the local courts.
The question before the Court
Can a city punish a bookstore owner for having an obscene book on the shelf even if he had no idea it was obscene?
Why it matters
Booksellers, librarians, and other distributors of printed material gained protection against 'strict liability' obscenity laws that could punish them regardless of what they actually knew was in their stock. The ruling meant lawmakers had to build some kind of knowledge requirement into obscenity laws, guarding against a chilling effect on the sale of non-obscene books and magazines.
What changes now
The case is a final merits decision reversing the bookseller's conviction outright, so there is no remand from the majority. The Court left open exactly how much awareness or investigation the Constitution requires of a bookseller in future obscenity prosecutions, leaving that question for later cases. Cities and states with similar strict-liability obscenity ordinances would need to add some knowledge element to survive constitutional challenge.
What this does not decide
The Court expressly did not decide what level of knowledge or awareness a bookseller must have to be constitutionally prosecuted, whether an honest mistake about a book's obscenity could be a defense, or whether the State could ever require a bookseller to investigate further. It also did not decide whether the book at issue was actually obscene.
Concurrences and dissents
Concurrence — Justice Black
Justice Black agreed the ordinance was unconstitutional but rejected the majority's reasoning entirely. He argued the First Amendment's 'no law abridging' language leaves no room for any balancing test that lets courts decide how much speech restriction is 'too far,' and warned that requiring only a knowledge element leaves the door open to broad censorship of books.
Concurrence — Justice Frankfurter
Justice Frankfurter agreed the ordinance failed for lack of a scienter requirement but pressed for more clarity on what level of awareness would be enough, warning against leaving that question for later litigation. He also argued separately that excluding expert testimony on community literary standards violated due process.
Concurrence — Justice Douglas
Justice Douglas reiterated his broader view from his Roth dissent that obscenity itself should receive First Amendment protection, but since that view remained a minority position, he found some value in the Court's scienter requirement as a modest safeguard for booksellers against overzealous enforcement.
Dissent in part — Justice Harlan
Justice Harlan would not have reached the scienter question on the limited record before the Court, criticizing the majority's balancing of interests as too imprecise. He would instead have reversed on the separate ground that the trial judge unconstitutionally excluded all evidence the bookseller tried to offer about contemporary community standards, and would remand for a new trial.
How the Court got there
The legal reasoning, step by step
- The Court recognized that freedom of speech and press are protected against state interference through the Fourteenth Amendment's due process clause, and that distributing books — even for profit — falls within that protection.
- Because the ordinance eliminated any requirement that the bookseller know what was in the book (a 'strict liability' or 'absolute liability' offense with no mental-state requirement), the Court examined whether removing that knowledge requirement was constitutionally permissible when speech is at stake.
- The Court distinguished this situation from ordinary strict-liability laws, like food and drug regulations, where the public's strong interest in product purity justifies holding distributors to an absolute standard regardless of their awareness.
- Applying that comparison, the Court reasoned that requiring booksellers to guarantee they had inspected every book to avoid criminal liability would make them overly cautious, causing them to needlessly pull lawful, non-obscene books from their shelves out of fear of prosecution.
- The Court concluded that this self-censorship effect, indirectly restricting the public's access to constitutionally protected books, made the ordinance's total elimination of any knowledge requirement incompatible with the free-speech and free-press guarantees.
Doctrinal impact
Cases affected by this decision
Reaffirms Roth v. United States (354 U.S. 476)
The Court relied on Roth's holding that obscenity itself is not protected speech while applying it here.
Reaffirms Near v. Minnesota (283 U.S. 697)
The Court leaned on Near for the principle that free speech and press are protected against state action.