Section 343 of the Michigan Penal Code, in effect, makes it a misdemeanor to sell or make available to the general reading public any book containing obscene language "tending to the corruption of the morals of youth." For selling to an adult police officer a book which the trial judge found to have such a potential effect on youth, appellant was convicted of a violation of this section. Held: The statute violates the Due Process Clause of the Fourteenth Amendment, and the conviction is reversed. Pp. 380-384.
Manuel Lee Robbins argued the cause for appellant. With him on the brief was William G. Comb.
Edmund E. Shepherd, Solicitor General of Michigan, argued the cause for appellee. With him on the brief were Thomas M. Kavanagh, Attorney General, and Daniel J. O'Hara, Assistant Attorney General.
Briefs of amici curiae supporting appellant were filed by Horace S. Manges for the American Book Publishers Council. Inc., Osmond K. Fraenkel for the Authors League of America, Inc., and Erwin B. Ellmann for the Metropolitan Detroit Branch. American Civil Liberties Union.
John Ben Shepperd, Attorney General, and Philip Sanders, Assistant Attorney General, filed a brief for the State of Texas, as amicus curiae, urging that the appeal be dismissed.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This appeal from a judgment of conviction entered by the Recorder's Court of the City of Detroit, Michigan, [352 U.S. 380, 381] challenges the constitutionality of the following provision, 343, of the Michigan Penal Code:
Pressing his federal claims, appellant applied for leave to appeal to the Supreme Court of Michigan. Although the State consented to the granting of the application "because the issues involved in this case are of great public interest, and because it appears that further clarification of the language of . . . [the statute] is necessary," leave to appeal was denied. In view of this denial, the appeal is here from the Recorder's Court of Detroit. We noted probable jurisdiction. 350 U.S. 963 .
Appellant's argument here took a wide sweep. We need not follow him. Thus, it is unnecessary to dissect the remarks of the trial judge in order to determine whether he construed 343 to ban the distribution of books merely because certain of their passages, when viewed in isolation, were deemed objectionable. Likewise, we are free to put aside the claim that the Michigan law falls within the doctrine whereby a New York obscenity statute was found invalid in Winters v. New York, 333 U.S. 507 .
It is clear on the record that appellant was convicted because Michigan, by 343, made it an offense for him to make available for the general reading public (and he in fact sold to a police officer) a book that the trial judge [352 U.S. 380, 383] found to have a potentially deleterious influence upon youth. The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely, this is to burn the house to roast the pig. Indeed, the Solicitor General of Michigan has, with characteristic candor, advised the Court that Michigan has a statute specifically designed to protect its children against obscene matter "tending to the corruption of the morals of youth." * But the appellant was not convicted for violating this statute.
We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby [352 U.S. 380, 384] arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society. We are constrained to reverse this conviction.
[ Footnote * ] Section 142 of Michigan's Penal Code provides: