# California v. LaRue/Dissent Marshall

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
* Dissenting Opinions Douglas Brennan Marshall
[p123] MR. JUSTICE MARSHALL, dissenting.
In my opinion, the District Court's judgment should be affirmed. The record in this case is not a pretty one, and it is possible that the State could constitutionally punish some of the activities described therein [p124] under a narrowly drawn scheme. But appellees challenge these regulations on their face, rather than as applied to a specific course of conduct. Cf. Gooding [p125] v. Wilson, 405 U.S. 518 (1972). When so viewed, I think it clear that the regulations are overbroad and therefore unconstitutional. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). Although the State's broad power to regulate the distribution of liquor and to enforce health and safety regulations is not to be doubted, that power may not be exercised in a manner that broadly stifles First Amendment freedoms. Cf. Shelton v. Tucker, 364 U.S. 479, 488 (1960). Rather, as this Court has made clear, "[p]recision of regulation [p126] must be the touchstone" when First Amendment rights are implicated. NAACP v. Button, 371 U.S. 415, 438 (1963). Because I am convinced that these regulations lack the precision which our prior cases require, I must respectfully dissent.

## I

It should be clear at the outset that California's regulatory scheme does not conform to the standards which we have previously enunciated for the control of obscenity. Before this Court's decision in Roth v. United States, 354 U.S. 476 (1957), some American courts followed the rule of Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), to the effect that the obscenity vel non of a piece of work could be judged by examining isolated aspects of it. See, e.g., United States v. Kennerley, 209 F. 119 (1913); Commonwealth v. Buckley, 200 Mass. 346, 86 N.E. 910 (1909). But in Roth we held that "[t]he Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press." 354 U.S., at 489. Instead, we held that the material must [p127] be "taken as a whole," ibid., and, when so viewed, must appeal to a prurient interest in sex, patently offend community standards relating to the depiction of sexual matters, and be utterly without redeeming social value. See Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966).
Obviously, the California rules do not conform to these standards. They do not require the material to be judged as a whole and do not speak to the necessity of proving prurient interest, offensiveness to community standards, or lack of redeeming social value. Instead of the contextual test approved in Roth and Memoirs, these regulations create a system of per se rules to be applied regardless of context: Certain acts simply may not be depicted and certain parts of the body may under no circumstances be revealed. The regulations thus treat on the same level a serious movie such as "Ulysses" and a crudely made "stag film." They ban not only obviously pornographic photographs, but also great sculpture from antiquity.
[p128] Roth held 15 years ago that the suppression of serious communication was too high a price to pay in order to vindicate the State's interest in controlling obscenity, and I see no reason to modify that judgment today. Indeed, even the appellants do not seriously contend that these regulations can be justified under the Roth-Memoirs test. Instead, appellants argue that California's regulations do not concern the control of pornography at all. These rules, they argue, deal with conduct rather than with speech and as such as not subject to the strict limitations of the First Amendment.
To support this proposition, appellants rely primarily on United States v. O'Brien, 391 U.S. 367, which upheld the constitutionality of legislation punishing the destruction or mutilation of Selective Service certificates. O'Brien rejected the notion that "an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," and held that Government regulation of speech-related conduct is permissible "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id., at 376, 377.
[p129] While I do not quarrel with these principles as stated in the abstract, their application in this case stretches them beyond the breaking point. In O'Brien, the Court began its discussion by noting that the statute in question "plainly does not abridge free speech on its face." Indeed, even O'Brien himself conceded that facially the statute dealt "with conduct having no connection with speech." Id., at 375. Here, the situation is quite different. A long line of our cases makes clear that motion pictures, unlike draft-card burning, are a form of expression entitled to prima facie First Amendment protection. "It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (footnote omitted). See also Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968); Jacobellis v. Ohio, 378 U.S. 184 [p130] (1964); Pinkus v. Pitchess, 429 F.2d 416 (CA9 1970), aff'd by equally divided court sub nom. California v. Pinkus, 400 U.S. 922 (1970). Similarly, live performances and dance have, in recent years, been afforded broad prima facie First Amendment protection. See, e.g., Schacht v. United States, 398 U.S. 58 (1970); P.B.I.C., Inc. v. Byrne, 313 F.Supp. 757 (Mass. 1970), vacated to consider mootness, 401 U.S. 987 (1971); In re Giannini, 69 Cal.2d 563, 446 P.2d 535 (1968), cert. denied sub nom. California v. Giannini, 395 U.S. 910 (1969).
If, as these many cases hold, movies, plays, and the dance enjoy constitutional protection, it follows, ineluctably I think, that their component parts are protected as well. It is senseless to say that a play is "speech" within the meaning of the First Amendment, but that the individual gestures of the actors are "conduct" which the State may prohibit. The State may no more allow movies while punishing the "acts" of which they are composed than it may allow newspapers while punishing the "conduct" of setting type.
Of course, I do not mean to suggest that anything which occurs upon a stage is automatically immune from state regulation. No one seriously contends, for example, that an actual murder may be legally committed so long as it is called for in the script, or that an actor may inject real heroin into his veins while evading the drug laws that apply to everyone else. But once it is recognized that movies and plays enjoy prima facie First Amendment protection, the standard for reviewing state regulation of their component parts shifts dramatically. For while "[m]ere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, [they are] insufficient to justify such as diminishes the exercise of rights so vital" as freedom [p131] of speech. Schneider v. State, 308 U.S. 147, 161 (1939). Rather, in order to restrict speech, the State must show that the speech is "used in such circumstances and [is] of such a nature as to create a clear and present danger that [it] will bring about the substantive evils that [the State] has a right to prevent." Schenck v. United States, 249 U.S. 47, 52 (1919). Cf. Brandenburg v. Ohio, 395 U.S. 444 (1969); Dennis v. United States, 341 U.S. 494 (1951).
When the California regulations are measured against this stringent standard, they prove woefully inadequate. Appellants defend the rules as necessary to prevent sex crimes, drug abuse, prostitution, and a wide variety of other evils. These are precisely the same interests that have been asserted, time and again before this Court as justification for laws banning frank discussion of sex and that we have consistently rejected. In fact, the empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proved and, indeed, has now been largely discredited. See, e.g., Report of the Commission on Obscenity and Pornography 27 (1970); Cairns, Paul, & Wisher, Sex Censorship: The Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46 Minn. L. Rev. 1009 (1962). Yet even if one were to concede that such a link existed, it would hardly justify a broad-scale attack on First Amendment freedoms. The only way to stop murders and drug abuse is to punish them directly. But the State's interest in controlling material [p132] dealing with sex is secondary in nature. It can control rape and prostitution by punishing those acts, rather than by punishing the speech that is one step removed from the feared harm. Moreover, because First Amendment rights are at stake, the State must adopt this "less restrictive alternative" unless it can make a compelling demonstration that the protected activity and criminal conduct are so closely linked that only through regulation of one can the other be stopped. Cf. United States v. Robel, 389 U.S. 258, 268 (1967). As we said in Stanley v. Georgia, 394 U.S. 557, 566-567 (1969), "if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that '[a]mong free men, the deterrents ordinarily to be applied to [p133] prevent crime are education and punishment for violations of the law....' Whitney v. California, 274 U.S. 357, 278 (1927) (Brandeis, J., concurring).... Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits."

## II

It should thus be evident that, under the standards previously developed by this Court, the California regulations are overbroad: They would seem to suppress not only obscenity outside the scope of the First Amendment, but also speech that is clearly protected. But California contends that these regulations do not involve suppression at all. The State claims that its rules are not regulations of obscenity, but are rather merely regulations of the sale and consumption of liquor. Appellants point out that California does not punish establishments which provide the proscribed entertainment, but only requires that they not serve alcoholic beverages on their premises. Appellants vigorously argue that such regulation falls within the State's general police power as augmented, when alcoholic beverages are involved, by the Twenty-first Amendment.
[p134] I must confess that I find this argument difficult to grasp. To some extent, it seems premised on the notion that the Twenty-first Amendment authorizes the States to regulate liquor in a fashion which would otherwise be constitutionally impermissible. But the Amendment by its terms speaks only to state control of the importation of alcohol, and its legislative history makes clear that it was intended only to permit "dry" States to control the flow of liquor across their boundaries despite potential Commerce Clause objections. See generally Seagram & Sons v. Hostetter, 384 U.S. 35 (1966); Hostetter v. Idlewild Liquor Corp., 377 U.S. 324 (1964). There is not a word in that history which indicates that Congress meant to tamper in any way with First Amendment rights. I submit that the framers of the Amendment would be astonished to [p135] discover that they had inadvertently enacted a pro tanto repealer of the rest of the Constitution. Only last Term, we held that the State's conceded power to license the distribution of intoxicating beverages did not justify use of that power in a manner that conflicted with the Equal Protection Clause. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 178-179 (1972). Cf. Wisconsin v. Constantineau, 400 U.S. 433 (1971); Hornsby v. Allen, 326 F.2d 605 (CA5 1964). I am at a loss to understand why the Twenty-first Amendment should be thought to override the First Amendment but not the Fourteenth.
To be sure, state regulation of liquor is important, and it is deeply embedded in our history. See, e.g., Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). But First Amendment values are important as well. Indeed, in the past they have been thought so important as to provide an independent restraint on every power of Government. "Freedom of press, freedom of speech, freedom of religion are in a preferred position." Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943). Thus, when the Government attempted to justify a limitation on freedom of association by reference to the war power, we categorically rejected the attempt. "[The] concept of 'national defense'" we held, "cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term 'national defense' is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties—the freedom of association—which [p136] makes the defense of the Nation worthwhile." United States v. Robel, 389 U.S., at 264. Cf. New York Times Co. v. United States, 403 U.S. 713, 716-717 (1971) (Black, J., concurring); Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934). If the First Amendment limits the means by which our Government can ensure its very survival, then surely it must limit the State's power to control the sale of alcoholic beverages as well.
Of course, this analysis is relevant only to the extent that California has in fact encroached upon First Amendment rights. Appellants argue that no such encroachment has occurred, since appellees are free to continue providing any entertainment they choose without fear of criminal penalty. Appellants suggest that this case is somehow different because all that is at stake is the "privilege" of serving liquor by the drink.
It should be clear, however, that the absence of criminal sanctions is insufficient to immunize state regulation from constitutional attack. On the contrary, "this is only the beginning, not the end, of our inquiry." Sherbert v. Verner, 374 U.S. 398, 403-404 (1963). For "[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege." Id., at 404. As we pointed out only last Term, "[f]or at least a quarter-century, this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally [p137] protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited." Perry v. Sindermann, 408 U.S. 593, 597 (1972).
Thus, unconstitutional conditions on welfare benefits, unemployment compensation, tax exemptions, public employment, bar admissions, and mailing privileges have all been invalidated by this Court. In none of these cases were criminal penalties involved. In all of them, citizens were left free to exercise their constitutional rights so long as they were willing to give up a "gratuity" that the State had no obligation to provide. Yet in all of them, we found that the discriminatory provision of a privilege placed too great a burden on constitutional freedoms. I therefore have some difficulty in understanding why California nightclub proprietors should be singled out and informed that they alone must sacrifice their constitutional rights before gaining the "privilege" to serve liquor.
Of course, it is true that the State may in proper circumstances enact a broad regulatory scheme that incidentally restricts First Amendment rights. For example, if California prohibited the sale of alcohol altogether, I do not mean to suggest that the proprietors [p138] of theaters and bookstores would be constitutionally entitled to a special dispensation. But in that event, the classification would not be speech related and, hence, could not be rationally perceived as penalizing speech. Classifications that discriminate against the exercise of constitutional rights per se stand on an altogether different footing. They must be supported by a "compelling" governmental purpose and must be carefully examined to insure that the purpose is unrelated to mere hostility to the right being asserted. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 634 (1969).
Moreover, not only is this classification speech related; it also discriminates between otherwise indistinguishable parties on the basis of the content of their speech. Thus, California nightclub owners may present live shows and movies dealing with a wide variety of topics while maintaining their licenses. But if they choose to deal with sex, they are treated quite differently. Classifications based on the content of speech have long been disfavored and must be viewed with the gravest suspicion. See, e.g., Cox v. Louisiana, 379 U.S. 536, 556-558 (1965). Whether this test is thought to derive from equal protection analysis, see Police Department of Chicago v. Mosley, 408 U.S. 92 (1972); Niemotko v. Maryland, 340 U.S. 268 (1951), or directly from the substantive constitutional provision involved, see Cox v. Louisiana, supra; Schneider v. State, 308 U.S. 147 (1939), the result is the same: any law that has "no other purpose... than to chill the assertion of constitutional rights by penalizing those who choose to exercise them... [is] patently unconstitutional." United States v. Jackson, 390 U.S. 570, 581 (1968).
As argued above, the constitutionally permissible purposes asserted to justify these regulations are too remote to satisfy the Government's burden when First Amendment rights are at stake. See supra, at 131-133. [p139] It may be that the Government has an interest in suppressing lewd or "indecent" speech even when it occurs in private among consenting adults. Cf. United States v. Thirty-seven Photographs, 402 U.S. 363, 376 (1971). But cf. Stanley v. Georgia, 394 U.S. 557 (1969). That interest, however, must be balanced against the overriding interest of our citizens in freedom of thought and expression. Our prior decisions on obscenity set such a balance and hold that the Government may suppress expression treating with sex only if it meets the three-pronged Roth-Memoirs test. We have said that "[t]he door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests." Roth v. United States, 354 U.S., at 488. Because I can see no reason why we should depart from that standard in this case, I must respectfully dissent.

## Notes

* ↑ Rule 143.3 (1) provides in relevant part: "No licensee shall permit any person to perform acts of or acts which simulate: "(a) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law. "(b) The touching, caressing or fondling on the breast, buttocks, anus or genitals. "(c) The displaying of the pubic hair, anus, vulva or genitals." Rule 143.4 prohibits: "The showing of film, still pictures, electronic reproduction, or other visual reproductions depicting: "(1) Acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law. "(2) Any person being touched, caressed or fondled on the breast, buttocks, anus or genitals. "(3) Scenes wherein a person displays the vulva or the. anus or the genitals. "(4) Scenes wherein artificial devices or inanimate objects are employed to depict, or drawings are employed to portray, any of the prohibited activities described above."
* ↑ This is not an appropriate case for application of the abstention doctrine. Since these regulations are challenged on their face for overbreadth, no purpose would be served by awaiting a state court construction of them unless the principles announced in Younger v. Harris, 401 U.S. 37 (1971), govern. See Zwickler v. Koota, 389 U.S. 241, 248-250 (1967). Thus far, however, we have limited the applicability of Younger to cases where the plaintiff has an adequate remedy in a pending criminal prosecution. See Younger v. Harris, supra, at 43-44. Cf. Douglas v. City of Jeannette, 319 U.S. 157 (1943). But cf. Berryhill v. Gibson, 331 F.Supp. 122, 124 (MD Ala. 1971), probable jurisdiction noted, 408 U.S. 920 (1972). The California, licensing provisions are, of course, civil in nature. Cf. Hearn v. Short, 327 F. Supp. 33 (SD Tex. 1971). Moreover, the Younger doctrine has been held to "have little force in the absence of a pending state proceeding." Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509 (1972) (emphasis added). There are at present no proceedings of any kind pending against these appellees. Finally, since the Younger doctrine rests heavily on federal deference to state administration of its own statutes, see Younger v. Harris, supra, at 44-45, it is waivable by the State. Cf. Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 329 (1964). Appellants have nowhere mentioned the Younger doctrine in their brief before this Court, and when the case was brought to the attention of the attorney for the appellants during oral argument, he expressly eschewed reliance on it. In the court below, appellants specifically asked for a federal decision on the validity of California's regulations and stated that they did not think the court should abstain. See 326 F.Supp. 348, 351 (CD Cal. 1971).
* ↑ I am startled by the majority's suggestion that the regulations are constitutional on their face even though "specific future applications of [the statute] may engender concrete problems of constitutional dimension." (Quoting with approval Seagram & Sons v. Hostetter, 384 U.S. 35, 52 (1966). Ante, at 119 n. 5.) Ever since Thornhill v. Alabama, 310 U.S. 88 (1940), it has been thought that statutes which trench upon First Amendment rights are facially void even if the conduct of the party challenging them could be prohibited under a more narrowly drawn scheme. See, e.g., Baggett v. Bullitt, 377 U.S. 360, 366 (1964); Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971); NAACP v. Button, 371 U.S. 415, 432-433 (1963). Nor is it relevant that the State here "sought to prevent [bacchanalian revelries]" rather than performances by "scantily clad ballet troupe[s]." Whatever the State "sought" to do, the fact is that these regulations cover both these activities. And it should be clear that a praiseworthy legislative motive can no more rehabilitate an unconstitutional statute than an illicit motive can invalidate a proper statute.
* ↑ Indeed, there are some indications in the legislative history that California adopted these regulations for the specific purpose of evading those standards. Thus, Captain Robert Devin of the Los Angeles Police Department testified that the Department favored adoption of the new regulations for the following reason: "While statutory law has been available to us to regulate what was formerly considered as antisocial behavior, the federal and state judicial system has, through a series of similar decisions, effectively emasculated law enforcement in its effort to contain and to control the growth of pornography and of obscenity and of behavior that is associated with this kind of performance." See also testimony of Roy E. June, City Attorney of the City of Costa Mesa; testimony of Richard C. Hirsch, Office of Los Angeles County District Attorney. App. 117.
* ↑ I do not mean to suggest that this test need be rigidly applied in all situations. Different standards may be applicable when children are involved, see Ginsberg v. New York, 390 U.S. 629 (1968); when a consenting adult possesses putatively obscene material in his own home, see Stanley v. Georgia, 394 U.S. 557 (1969); or when the material by the nature of its presentation cannot be viewed as a whole, see Rabe v. Washington, 405 U.S. 313, 317 n. 2 (1972) (BURGER, C.J., concurring). Similarly, I do not mean to foreclose the possibility that even the Roth-Memoirs test will ultimately be found insufficient to protect First Amendment interests when consenting adults view putatively obscene material in private. Cf. Redrup v. New York, 386 U.S. 767 (1967). But cf. United States v. Reidel, 402 U.S. 351 (1971). But I do think that, at very least, Roth-Memoirs sets an absolute limit on the kinds of speech that can be altogether read out of the First Amendment for purposes of consenting adults.
* ↑ Cf. Fuller, Changing Society Puts Taste to the Test, The National Observer, June 10, 1972, p. 24: "Context is the essence of esthetic judgment.... There is a world of difference between Playboy and less pretentious girly magazines on the one hand, and on the other, The Nude, a picture selection from the whole history of art, by that fine teacher and interpreter of civilization, Kenneth Clark. People may be just as naked in one or the other, the bodies inherently just as beautiful, but the context of the former is vulgar, of the latter, esthetic. "The same words, the same actions, that are cheap and tawdry in one book or play may contribute to the sublimity, comic universality, or tragic power of others. For a viable theory of taste, context is all."
* ↑ Moreover, even if the O'Brien test were here applicable, it is far from clear that it has been satisfied. For example, most of the evils that the State alleges are caused by appellees' performances are already punishable under California law. See n. 11, infra. Since the less drastic alternative of criminal prosecution is available to punish these violations, it is hard to see how "the incidental restriction on alleged First Amendment freedoms is no greater than is essential" to further the State's interest.
* ↑ The Court pointed out that the statute "does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views.... A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers' licenses, or a tax law prohibiting the detruction of books and records." 391 U.S., at 375.
* ↑ Of course, the State need not meet the clear and present danger test if the material in question is obscene. See Roth v. United States, 354 U.S. 476 (1957). But, as argued above, the difficulty with California's rules is that they do not conform to the Roth test and therefore regulate material that is not obscene. See supra, at 126-127.
* ↑ This case might be different if the State asserted a primary interest in stopping the very acts performed by these dancers and actors. However, I have serious doubts whether the State may constitutionally assert an interest in regulating any sexual act between consenting adults. Cf. Griswold v. Connecticut, 381 U.S. 479 (1965). Moreover, it is unnecessary to reach that question in this case since the State's regulations are plainly not designed to stop the acts themselves, most of which are in fact legal when done in private. Rather, the State punishes the acts only when done in public as part of a dramatic presentation. Cf. United States v. O'Brien, supra, at 375. It must be, therefore, that the asserted state interest stems from the effect of the acts on the audience rather than from a desire to stop the acts themselves. It should also be emphasized that this case does not present problems of an unwilling audience or of an audience composed of minors.
* ↑ Indeed, California already has statutes controlling virtually all of the misconduct said to flow from appellees' activities. See Calif. Penal Code § 647 (b) (Supp. 1972) (prostitution); Calif. Penal Code §§ 261, 263 (1970) (rape); Calif. Bus. & Prof. Code § 25657 (Supp. 1972) ("B-Girl" activity); Calif. Health & Safety Code §§ 11500, 11501, 11721, 11910, 11912 (1964 and Supp. 1972) (sale and use of narcotics).
* ↑ Of course, it is true that Stanley does not govern this case, since Stanley dealt only with the private possession of obscene materials in one's own home. But in another sense, this case is stronger than Stanley. In Stanley, we held that the State's interest in the prevention of sex crimes did not justify laws restricting possession of certain materials, even though they were conceded to be obscene. It follows a fortiori that this interest is insufficient when the materials are not obscene and, indeed, are constitutionally protected.
* ↑ The Twenty-first Amendment, in addition to repealing the Eighteenth Amendment, provides: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
* ↑ The text of the Amendment is based on the Webb-Kenyon Act, 37 Stat. 699, which antedated prohibition. The Act was entitled "An Act Divesting intoxicating liquors of their interstate character in certain cases," and was designed to allow "dry" States to regulate the flow of alcohol across their borders. See, e.g., McCormick & Co. v. Brown, 286 U.S. 131, 140-141 (1932); Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 324 (1917). The Twenty-first Amendment was intended to embed this principle permanently into the Constitution. As explained by its sponsor on the Senate floor "to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line. "[T]he pending proposal will give the States that guarantee. When our Government was organized and the Constitution of the United States adopted, the States surrendered control over and regulation of interstate commerce. This proposal is restoring to the States, in effect, the right to regulate commerce respecting a single commodity—namely, intoxicating liquor." 76 Cong. Rec. 4141 (remarks of Sen. Blaine).
* ↑ See Shapiro v. Thompson, 394 U.S. 618 (1969). But cf. Wyman v. James, 400 U.S. 309 (1971).
* ↑ See Sherbert v. Verner, 374 U.S. 398 (1963).
* ↑ See Speiser v. Randall, [[357 U.S. 513] (1958)
* ↑ See, e.g., Pickering v. Board of Education, 391 U.S. 563 (1968); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Baggett v. Bullitt, 377 U.S. 360 (1964).
* ↑ See, e.g., Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Konigsberg v. State Bar, 353 U.S. 252 (1957); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). But cf. Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971); Konigsberg v. State Bar, 366 U.S. 36 (1961).
* ↑ See, e.g., Blount v. Rizzi, 400 U.S. 410 (1971); Hannegan v. Esquire Inc., 327 U.S. 146, 156 (1946).