In Byrne v. Karalexis, 396 U.S. 976 (1969), the Supreme Court stayed a temporary injunction that a federal district court had issued against further prosecutions of theater owners pending appeal of a state obscenity conviction for showing the film I Am Curious (Yellow).

In dissent, Justice William O. Douglas argued that the injunction would not interfere with the criminal conviction already obtained; he also thought that the threat of additional prosecutions jeopardized free speech.

Douglas: First Amendment protects obscenity

He further used the occasion to argue that the First Amendment protected obscenity, not because it was good, but because “we cannot be faithful to our constitutional mandate and allow any form or shadow of censorship.”

Douglas believed that the First Amendment protected “obscenity,” along with “sacrilege,” “malice,” or “false, scandalous, and malicious writings.”

Justice Hugo L. Black agreed with Douglas that the Constitution prohibited such prosecutions, but he also thought that it had been inappropriate for a federal court to step in to enjoin a pending state criminal prosecution.

In another opinion, Justice Potter Stewart also expressed the view that such intervention was inappropriate.

In Byrne v. Karalexis, 401 U.S. 216 (1971), the Court vacated the lower court judgment and remanded the case for reconsideration in light of its opinions rendered the same day in Younger v. Harris and Samuels v. Mackell, which involved instances of federal courts intervening in pending state prosecutions.

Justice William J. Brennan Jr., joined by Justices Byron R. White and Thurgood Marshall, would have reversed the district court judgment rather than remand the case.

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