Home » Articles » Case » Obscenity and Pornography » Marcus v. Search Warrant (1961)

Written by John R. Vile, published on January 1, 2009 , last updated on February 18, 2024

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In Marcus v. Search Warrant, 367 U.S. 717 (1961), the Supreme Court reversed lower court decisions, finding that the seizure of material considered obscene violated the First Amendment and the Fourteenth Amendment’s due process clause.


Obscene materials were seized without a hearing or specifying a particular publication

At issue was a seizure from retail newsstands by Kansas City police officers of magazines and other materials believed to be obscene. Without holding a hearing, without seeing any of the publications in question, and without specifying any particular publication, the trial judge issued a search warrant, authorizing officers to search appellants’ homes and seize all material that, in their judgment, was obscene. After a seizure of approximately 11,000 copies of 280 publications taken from six places, a judge found 100 of the 280 items to be obscene. He ordered these to be kept as evidence for prosecution or burned and the rest to be returned. The appellants — including William Marcus — argued that this was an invalid search and seizure and was a violation of their First and Fourteenth Amendments rights. The state supreme court sustained the ruling, and the case made its way to the U.S. Supreme Court.


Court ruled that the condemnation of the publications could not be sustained due to the manner of the seizure

Writing for the Court, Justice William J. Brennan Jr. first reviewed the facts and then looked at the case in its historical context, observing that “[h]istorically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power” and that “[t]he Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Although Roth v. United States (1957) had established that “obscenity is not within the area of constitutionally protected speech or press,” the state’s powers were still “limited by the constitutional expressions for free expression.” In this case, the Missouri law allowed for procedures that “sweep so broadly and with so little discrimination.”


Brennan said that the Missouri court had relied improperly on Kingsley Books, Inc. v. Brown (1957). That law had named particular publications and had avoided catch-all restraints against the distribution of all “obscene” materials; it had not allowed vested police officers with the discretion to engage in the wholesale removal of materials from book shops and had provided for more expedited review. Given Missouri’s lack of safeguards, the condemnation of the 100 periodicals could not be sustained, and the Court had “no occasion to reach the question of the correctness of the finding that the publications are obscene.” Justice Hugo L. Black issued a concurring opinion, joined by William O. Douglas, focusing on the unreasonableness of what he considered to have been a general warrant in this case.


Case dealt with First and Fourt Amendments

Like the Supreme Court’s later decision in Stanford v. Texas (1965), the Marcus v. Search Warrant decision involves the intersection between the First and Fourth Amendments. In Stanford, the Court held that states may not issue general warrants that do not include “with particularity the things to be seized,” and the state must give the “most scrupulous exactitude” to the Fourth Amendment’s guarantee against invasion by the states. The Marcus decision established that state officials must adhere to procedural safeguards before seizing expressive materials suspected of being obscene.


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