Quantity of Books v. Kansas
Case Date: 07/22/1964
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Quantity of Books v. Kansas, 378 U.S. 205 (1964) is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material. By a 7–2 margin, the Court held that a seizure of the books was unconstitutional since no hearing had been held on whether the books were obscene, and reversed a Kansas Supreme Court holding that it was.
The case arose several years earlier when police in Junction City, Kansas, raided an adult bookstore. The state's Attorney General, William M. Ferguson, had previously filed an information with the county court listing 51 titles published by Nightstand Books as allegedly obscene; at the bookstore 31 of those titles found, and 1,175 were seized. These procedures were believed to be in keeping with the Supreme Court's recent Marcus v. Search Warrant decision, which held that some sort of judicial review was necessary to determine if seized material was obscene prior to seizure.
Justice William Brennan wrote for a four-justice plurality that considered the case strictly on procedural grounds, without reaching the question of the books' obscenity. It could, he said, operate as a form of prior restraint. In one of two separate concurrences, Hugo Black reaffirmed his earlier blanket opposition to all legal suppression of obscenity, in which was joined by William O. Douglas. Potter Stewart said the books in question were not hardcore pornography, the only material that he could consider holding to be unprotected by the First Amendment in Quantity of Books's companion case, Jacobellis v. Ohio (where he had also defined it with his oft-quoted line "I know it when I see it").
In dissent, John Marshall Harlan II wrote for himself and Tom Clark in faulting Brennan's application of the precedents he relied on. He also disputed whether the procedure was truly prior restraint, since it did not review the material prior to publication. The Court, he concluded, was unfairly denying Kansas the full range of legal tools it might otherwise have had to pursue what it had decided was an important state interest.
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