Mr. Justice STEWART, concurring in the judgment.
If this case involved hard-core pornography, I think the procedures which were followed would be constitutionally valid, at least with respect to the material which the judge 'scrutinized.' This case is not like Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, where, as the Court notes, 'the warrant gave the police virtually unlimited authority to seize any publications which they considered to be obscene, and was issued on a verified complaint lacking any specific description of the publications to be seized, and without prior submission of any publications whatever to the judge issuing the warrant,' 84 S.Ct. p. 209, supra. But the books here involved were not hardcore pornography. Therefore, I think Kansas could not by any procedure constitutionally suppress them, any more than Kansas could constitutionally make their sale or distribution a criminal act. See Jacobellis v. Ohio, 378 U.S. 197, 84 S.Ct. 1683. (STEWART, J., concurring).
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.
Insofar as the judgment of the Court rests on the view of three of my Brethren that a State cannot constitutionally an on grounds of obscenity the books involved in this case, I dissent on the basis of the views set out in my opinion in Jacobellis v. Ohio, 378 U.S., p. 203, 84 S.Ct., p. 1676. It is quite plain that these so-called 'novels' have 'been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner' and that the State's criteria for judging their obscenity are rational.
I also disagree with the position taken in the opinion of my Brother BRENNAN that this Kansas procedure unconstitutionally abridged freedom of expression in that the search warrant (1) authorized seizure of all copies of the books in question and (2) was issued without an adversary hearing on the issue of their obsceneness. In my opinion that position is inconsistent with the thrust of prior cases and serves unnecessarily to handicap the States in their efforts to curb the dissemination of obscene material.
The two cases on which MR. JUSTICE BRENNAN'S opinion almost entirely relies are Kingsley Books, Inc., v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, and Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127.
In K ngsley Books, appellants challenged the constitutionality of a New York statute that authorized the State Supreme Court to enjoin the sale and distribution of obscene prints and articles. A complaint prayed for an injunction against the further distribution of certain allegedly obscene paperback books and for the destruction by the sheriff of all copies in the appellants' possession. Appellants were ordered to show cause within four days why an injunction pendente lite should not be issued that would preclude distribution of the books. Although the code of criminal procedure provided that anyone sought to be enjoined was entitled to a trial one day after the joinder of issue, appellants consented to the temporary injunction and delayed bringing the matter to issue. When a hearing on the question of obscenity was finally had, the books were found to be obscene; their distribution was enjoined and their destruction ordered. This Court upheld the New York procedure, stating:
'Authorization of an injunction pendente lite, as part of this scheme, during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which '(a)dequate notice, judicial hearing, (and) fair determination' are assured, * * * is a safeguard against frustration of the public interest in efectuating judicial condemnation of obscene matter.' 354 U.S. p. 440, 77 S.Ct. p. 1327.