The case had begun in 1957, when the Kansas City Police Department vice squad raided the warehouse of a local news distributor and five newsstands.

Hugo Black, in a concurring opinion, joined by William O. Douglas restated his conviction that the Fourteenth Amendment applies all the rights protected by the Constitution to the states.

It would figure prominently in later obscenity cases involving seizures, including one called Quantity of Books v. Kansas, that explicitly tried to take its holding into account.

That began to change during the 20th century, in response to social and cultural trends of greater tolerance for literature and art that depicted such proscribed material.

In the landmark 1933 case United States v. One Book Called Ulysses, Judge John M. Woolsey of the Southern District of New York ruled that James Joyce's novel Ulysses, chapters of which had been held obscene over a decade earlier when published in a literary review, could not be barred from the United States purely on the basis of its language and content without considering its literary merit.

[3] William Brennan wrote for a 6–3 majority that upheld the criminal conviction but abandoned the century-old Hicklin test in favor of a narrower definition of obscenity.

In civil cases, they had a lower burden of proof, needing to show only by a preponderance of evidence that the material was obscene, with no actual person as a defendant.

In October 1957, a Lt. Coughlin of the Kansas City Police Department's (KCPD) vice squad was investigating the distribution of magazines which might have met the state's definition of obscenity.

He then filed affidavits for the newsstands and the main office of Kansas City News Distributors with a Jackson County circuit court judge, who issued search warrants that merely repeated the definition of obscenity in the Missouri statutes and did not list any specific titles nor specify in detail the types of materials to be seized.

As a result of this argument, the case became an in rem action with the search warrant itself as the defendant, since no unlawful conduct could be argued on the part of the officers or even the state of Missouri itself.

[7] This authority continued in various forms, through various bodies, until it was condemned by judicial warrants in the cases brought by the Crown against John Wilkes, publisher of The North Briton, during the 1760s.

"The question here is whether the use by Missouri in this case of the search and seizure power to suppress obscene publications involved abuses inimical to protected expression."

[11] Thus, the process of suppressing it was necessarily limited by the concern for possibly protected expression, as it had recognized in overturning the criminal conviction of a Los Angeles bookseller under a strict liability standard in Smith v.

This Brennan held to be erroneous: ... [T]he use of these warrants implicates questions whether the procedures leading to their issuance and surrounding their execution were adequate to avoid suppression of constitutionally protected publications ... [U]nder the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved, without regard to the possible consequences for constitutionally protected speech.

We believe that Missouri's procedures, as applied in this case, lacked the safeguards which due process demands to assure nonobscene material the constitutional protection to which it is entitled.

Nothing better demonstrated that adequate constitutional safeguards were lacking, Brennan noted, than the circuit court's eventual ruling that less than half of the seized magazines were obscene.

"Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees.

[note 2] He also felt the Court's then-recent holding in Mapp v. Ohio extending the exclusionary rule to state prosecutions strengthened this view.

[21] Five years later, Roaden v. Kentucky, similarly built on Marcus to reverse a conviction based on a warrantless seizure of the film while it was being shown, which the Court held did not constitute exigent circumstances.

Justice Sandra Day O'Connor distinguished the case from Marcus and its successors by noting that the arresting officers had obtained the material by purchasing it from racks open to the public, where no reasonable expectation of privacy existed, thus legally no search had occurred.

[23] Brennan, in dissent, found the police actions no less intrusive than he had in Marcus and called the holding "an end run around constitutional requirements carefully crafted to guard our liberty of expression.

[25] Justice Stewart found it more directly applicable when holding for the Court in Stanford v. Texas that allegedly pro-Communist subversive material could not be seized on such a vaguely worded warrant.

In a 1981 case, United States v. Espinoza, the Fourth Circuit rejected a defense claim that the holding required judicial review of all material alleged to be obscene.