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Opinion of the Court.

and so constituted acts of the State within the meaning of the Fourteenth Amendment. P. 68.

(d) The Commission's practice provides no safeguards whatever against the suppression of nonobscene and constitutionally protected matter; and it is a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon criminal sanctions, which may be applied only after a determination of obscenity has been made in a criminal trial hedged about with the procedural safeguards of the criminal process. Pp. 68-70.

(e) What Rhode Island has done, in fact, has been to subject the distribution of publications to a system of prior administrative restraints without any provision for notice and hearing before publications are listed as "objectionable" and without any provision for judicial review of the Commission's determination that such publications are "objectionable." Pp. 70-72.

Reversed and cause remanded.

Horace S. Manges argued the cause for appellants. With him on the briefs were Jacob F. Raskin and Milton Stanzler.

J. Joseph Nugent, Attorney General of Rhode Island, argued the cause for appellees. With him on the brief was Joseph L. Breen.

Irwin Karp filed a brief for the Authors League of America, Inc., as amicus curiae, urging reversal.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The Rhode Island Legislature created the "Rhode Island Commission to Encourage Morality in Youth," whose members and Executive Secretary are the appellees herein, and gave the Commission inter alia the duty... to educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth as de

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372 U.S.

fined in sections 13, 47, 48 and 49 of chapter 610 of the general laws, as amended, and to investigate and recommend the prosecution of all violations of said sections. The appellants brought this action in

1 Resolution No. 73 H 1000, R. I. Acts and Resolves, January Session 1956, 1102-1103. The resolution created a "commission to encourage morality in youth," to be composed of nine members appointed by the Governor of the State. The members were to serve for staggered, five-year terms. They were to receive no compensation, but their expenses, as well as the expenses incurred in the operation of the Commission generally, were to be defrayed out of annual appropriations. The original mandate of the Commission was superseded in part by Resolution No. 95 S 444, R. I. Acts and Resolves, January Session 1959, 880, which reads as follows:

"It shall be the duty of said commission to educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, as defined in chapter 11-31 of the general laws, entitled 'Obscene and objectionable publications and shows,' and to investigate and recommend the prosecution of all violations of said sections, and it shall be the further duty of said commission to combat juvenile delinquency and encourage morality in youth by (a) investigating situations which may cause, be responsible for or give rise to undesirable behavior of juveniles, (b) educate the public as to these causes and (c) recommend legislation, prosecution and/or treatment which would ameliorate or eliminate said causes."

The Commission's activities are not limited to the circulation of lists of objectionable publications. For example, the annual report of the Commission issued in January 1960, recites in part:

"In September, 1959, because of the many complaints from outraged parents at the type of films being shown at the Rhode Island Drive-Ins and also the lack of teen-age supervision while parked, this Commission initiated and completed a survey on the Drive-In Theatres in the State. High points of the survey note that there are II (2) Drive-in theatres in Rhode Island which operate through summer months and remain open until November and then for weekends during the winter, providing car-heaters.

"Acting on its power to investigate causes of delinquency, the Commission has met with several state officials for a discussion of juvenile

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the Superior Court of Rhode Island (1) to declare the law creating the Commission in violation of the First and Fourteenth Amendments, and (2) to declare unconstitutional and enjoin the acts and practices of the appellees thereunder. The Superior Court declined to declare the law creating the Commission unconstitutional on its face but granted the appellants an injunction against the acts and practices of the appellees in performance of their duties. The Supreme Court of Rhode Island affirmed the Superior Court with respect to appellants' first prayer but reversed the grant of injunctive relief. R. I. —, 176 A. 2d 393 (1961). Appellants brought this appeal and we noted probable jurisdiction, 370 U. S. 933.3

Appellants are four New York publishers of paperback books which have for sometime been widely distributed in Rhode Island. Max Silverstein & Sons is the exclusive wholesale distributor of appellants' publications throughout most of the State. The Commission's practice has been to notify a distributor on official Commission stationery that certain designated books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age. Silverstein had received at least 35 such notices at the time this suit was brought. Among

drinking, the myriad and complex causes of delinquency, and legal aspects of the Commission's operations. It also held a special meeting with Rhode Island police and legal officials in September, 1959, for a discussion on the extent of delinquency in Rhode Island and the possible formation of state-wide organization to combat it."

2 The action was brought pursuant to Title 9, c. 30, Gen. Laws R. I., 1956 ed., as amended (Uniform Declaratory Judgments Act).

3 Our appellate jurisdiction is properly invoked, since the state court judgment sought to be reviewed upheld a state statute against the contention that, on its face and as applied, the statute violated the Federal Constitution. 28 U. S. C. § 1257 (2). Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282.

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the paperback books listed by the Commission as "objectionable" were one published by appellant Dell Publishing Co., Inc., and another published by appellant Bantam Books, Inc.*

The typical notice to Silverstein either solicited or thanked Silverstein, in advance, for his "cooperation" with the Commission, usually reminding Silverstein of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity. Copies of the

Peyton Place, by Grace Metalious, published (in paperback edition) by appellant Dell Publishing Co., Inc.; The Bramble Bush, by Charles Mergendahl, published (in paperback edition) by appellant Bantam Books, Inc. Most of the other 106 publications which, as of January 1960, had been listed as objectionable by the Commission were issues of such magazines as "Playboy," "Rogue," "Frolic," and so forth. The Attorney General of Rhode Island described some of the 106 publications as "horror" comics which he said were not obscene as this Court has defined the term.

5 The first notice received by Silverstein reads, in part, as follows: "This agency was established by legislative order in 1956 with the immediate charge to prevent the sale, distribution or display of indecent and obscene publications to youths under eighteen years of age. "The Commissions [sic] have reviewed the following publications and by majority vote have declared they are completely objectionable for sale, distribution or display for youths and [sic] eighteen years of age.

"The Chiefs of Police have been given the names of the aforementioned magazines with the order that they are not to be sold, distributed or displayed to youths under eighteen years of age.

"The Attorney General will act for us in case of non-compliance. "The Commissioners trust that you will cooperate with this agency in their work. . . .

"Another list will follow shortly.

"Thanking you for your anticipated cooperation, I am,

"Sincerely yours

"Albert J. McAloon

"Executive Secretary"

[Footnote 5 continued on p. 63]

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Opinion of the Court.

lists of "objectionable" publications were circulated to local police departments, and Silverstein was so informed in the notices.

Silverstein's reaction on receipt of a notice was to take steps to stop further circulation of copies of the listed publications. He would not fill pending orders for such publications and would refuse new orders. He instructed his field men to visit his retailers and to pick up all unsold copies, and would then promptly return them to the publishers. A local police officer usually visited Silverstein shortly after Silverstein's receipt of a notice to learn what action he had taken. Silverstein was usually able to inform the officer that a specified number of the total of copies received from a publisher had been returned. According to the testimony, Silverstein acted as he did on receipt of the notice "rather than face the possibility of some sort of a court action against ourselves, as well as the people that we supply." His "cooperation" was given to avoid becoming involved in a "court proceeding" with a "duly authorized organization."

The Superior Court made fact findings and the following two, supported by the evidence and not rejected by the Supreme Court of Rhode Island, are particularly relevant:

"8. The effect of the said notices [those received by Silverstein, including the two listing publications

Another notice received by Silverstein reads in part:

"This list should be used as a guide in judging other similar publications not named.

"Your cooperation in removing the listed and other objectionable publications from your newstands [sic] will be appreciated. Cooperative action will eliminate the necessity of our recommending prosecution to the Attorney General's department."

An undated "News Letter" sent to Silverstein by the Commission reads in part: "The lists [of objectionable publications] have been sent to distributors and police departments. To the present cooperation has been gratifying."