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, balled, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth as defined *60 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 . . . ."[1] The appellants brought this action in *61 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).[2] 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 *62 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.[4]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.[5] Copies of the *63 lists of "objectionable" publications were circulated to local police departments, and Silverstein was so informed in the notices.

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The publisher of certain articles and a cartoon, which were intended to embarrass the Supreme Court of Colorado and reflected upon the motives and conduct of the Supreme Court of Colorado in cases still pending, was found guilty of contempt and fined by the Supreme Court of Colorado. The publisher argued that his Fourteenth Amendment rights were violated and that his conviction should be reversed. — In this his first free-speech opinion while sitting on the High Court, Holmes declined to hold that the First Amendment applied to the states. He declared: "We leave undecided the question whether there is to be found in the 14th Amendment a prohibition similar to that in the 1st. But even if we were to assume that freedom of speech and freedom of the press were protected from abridgments on the part not only of the United States but also of the states, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practised by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. Com. v. Blanding, [cites]; Respublica v. Oswald, [cites]. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all." — The senior Justice Harlan rejected Holmes' view. Declared Harlan: "I go further and hold that the privileges of free speech and of a free press, belonging to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the 14th Amendment forbidding a state to deprive any person of his liberty without due process of law. It is, I think, impossible to conceive of liberty, as secured by the Constitution against hostile action, whether by the nation or by the states, which does not embrace the right to enjoy free speech and the right to have a free press."

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