S. S. & W., Inc., Et Al. v. Kansas City Et Al.

Background

Operators of adult theaters and bookstores in Kansas City sued in a Missouri trial court, asking a judge to declare the city’s obscenity ordinance (§§ 26.141–26.144) unconstitutional. The ordinance defines “obscene” and bans selling, publishing, exhibiting, or possessing obscene material for commercial distribution. The Circuit Court upheld the ordinance and the Supreme Court of Missouri affirmed that judgment, and the case was appealed to the United States Supreme Court.

Reasoning

The Supreme Court dismissed the appeal for want of a substantial federal question, meaning the Justices declined to review the case on the merits. That dismissal leaves the Missouri courts’ ruling in favor of the city intact. The opinion notes that one Justice did not participate in the decision. A separate written dissent argued that the ordinance is unconstitutionally overbroad under the First and Fourteenth Amendments.

Real world impact

Because the Supreme Court refused to take the case, Kansas City’s ordinance remains enforceable as upheld by the state courts, and operators of the theaters and bookstores remain subject to local enforcement. The Court’s dismissal does not decide the broader constitutional debate about when governments may suppress sexually oriented material, so that larger question remains unresolved at the national level.

Dissents or concurrances

Justice Brennan, joined by two other Justices, dissented. He said the ordinance’s definition and prohibitions were overbroad and would have noted probable jurisdiction and reversed the state court’s judgment, protecting sexually oriented materials except when distributed to children or shown to unwilling adults.