Kois v. Wisconsin

1972-06-26

Headline: Court reverses convictions of an underground newspaper for publishing sexual pictures and a frank poem, protecting those articles as press and limiting states’ ability to criminally punish such expressive publications.

Holding: The Court held that the newspaper’s article and poem were protected speech and reversed both convictions, finding the pictures and poem were contextually related to protected expression and did not meet the obscenity standard.

Real World Impact:

Reverses prison sentences and fines for the newspaper publisher.
Makes it harder for states to criminally punish contextual newspaper articles.
Highlights risk that vague obscenity laws can suppress unpopular publications.

Topics: free press, obscenity laws, underground newspapers, poetry and literature, criminal penalties

Summary

Background

Petitioner was the publisher of an underground newspaper called Kaleidoscope and was convicted under a Wisconsin law banning the dissemination of "lewd, obscene or indecent" material. He was sentenced to consecutive one-year terms and fined $1,000 on each of two counts. In May 1968 the paper ran an article about a photographer’s arrest accompanied by two small nude pictures. In August 1968 the paper published a two-page spread of eleven poems, including one titled "Sex Poem." The Wisconsin Supreme Court upheld the convictions before the United States Supreme Court agreed to review them.

Reasoning

The central question was whether the article, accompanying pictures, and poem were protected by the Fourteenth Amendment or were obscene under the Roth test that asks whether the dominant theme appeals to prurient interest by contemporary community standards. The Court found the pictures were relevant to the news story and that the article was protected. It also concluded that the poem, placed among other poems and showing signs of an attempt at serious art, did not have a dominant prurient theme. Giving due weight to the lower courts, the Supreme Court reversed both convictions.

Real world impact

The ruling frees this publisher from prison and fines by reversing both convictions. It limits states’ ability to criminally punish similar newspaper articles and poems when the material is related to protected reporting or shows literary or artistic context. The opinion emphasizes that context and the dominant-theme inquiry must be considered before labeling material obscene.

Dissents or concurrances

Justice Douglas, concurring in the judgment, argued that the obscenity exception to the First Amendment is incoherent and vague and warned that such laws can be used to suppress unpopular publications and chill free expression.