opinion: McKinney v. Alabama
  No. 74-532.
  Argued December 15, 1975
  Decided March 23, 1976
  Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 677. Brennan, J., filed a separate opinion, in which Marshall, J., joined, and in all but Part III of which Stewart, J., joined, post, p. 678. Stevens, J., took no part in the consideration or decision of the case.
  Robert Eugene Smith argued the cause for petitioner. With him on the brief was Gilbert H. Deitch.
  Joseph G. L. Marston III, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was William J. Baxley, Attorney General.
  Barbara Scott filed a brief for the American Publishers, Inc., et al. as amici curiae urging reversal.
  Me. Justice Rehnquist
  delivered the opinion of the Court.
  Petitioner was convicted of selling material which had been judicially declared obscene. At his trial he was not permitted to litigate the obscenity vel non of the publication which was the basis of his prosecution, even though he had not been a party to the earlier civil adjudication in which it was held obscene. We granted certiorari, 422 U. S. 1040 (1975), to consider whether this procedure comported with our decisions delineating the safeguards which must attend attempts by the States to prohibit dissemination of expression asserted to be protected by the First and Fourteenth Amendments against such interference. We reverse.
  I
  Pursuant to the authority conferred upon him by Ala. Code, Tit. 14, c. 64A (Supp. 1973), the District Attorney of the 13th Judicial Circuit of Alabama instituted an action in equity in the Circuit Court of Mobile County seeking an adjudication of the obscenity of certain mailable matter. On February 26, 1970, the Circuit Court entered a decree which announced that the four magazines named in the action were “judicially declared to be obscene.” Twelve days later two officers of the State Attorney General's office went to the Paris Bookstall in Birmingham, Ala., a place of business operated by petitioner. They personally delivered to petitioner a letter from the Attorney General informing him of the decree of the Circuit Court of Mobile County and specifying the magazines which had been declared obscene.
  On March 31, these officers returned to the Paris Bookstall and there purchased, from petitioner, a copy of the magazine New Directions, which had been specified in the Circuit Court decree and listed in the letter delivered to petitioner. Petitioner was thereafter charged with violating Ala. Code, Tit. 14, § 374 (4) (Supp. 1973), by selling “mailable matter known ... to have been judicially found to be obscene.”
  At petitioner’s trial for this offense he asserted as a defense his claim that the magazine was not obscene and sought to have this issue submitted to the jury. Petitioner claimed that he could not be found guilty unless the trier of fact in his case made its own determination that the magazine was obscene according to contemporary community standards. The trial court declined to submit this issue to the jury and instructed the jurors that they were not to be concerned with any determination of obscenity, and that they need only decide whether petitioner had sold material judicially declared to be obscene. The jury returned a verdict of guilty.
  Petitioner unsuccessfully appealed this judgment to the Alabama Court of Criminal Appeals, whereupon the Alabama Supreme Court granted his petition for certio-rari. That court, by a divided vote, also affirmed the judgment of conviction. It ruled that the trial court had properly restricted the issues presented to the jury because the decree of the Mobile County Circuit Court was one in rem, conclusively establishing the obscenity of the magazines against all the world. The determination of obscenity in that action was therefore held binding upon petitioner in his subsequent criminal prosecution even though he had not been a party to the earlier equity proceeding. 292 Ala. 484, 296 So. 2d 228 (1974).
  II
  Petitioner contends that the procedures utilized by the State of Alabama, insofar as they precluded him from litigating the obscenity vel non of New Directions as a defense to his criminal prosecution, violated the First and Fourteenth Améndments. We agree. While there can be no doubt under our cases that obscene materials are beyond the protection of the First Amendment, Roth v. United States, 354 U. S. 476 (1957); Miller v. California, 413 U. S. 15 (1973); those decisions have also consistently recognized that the procedures by which a State ascertains whether certain materials are obscene must be ones which ensure “the necessary sensitivity to freedom of expression,” Freedman v. Maryland, 380 U. S. 51, 58 (1965); Heller v. New York, 413 U. S. 483, 489 (1973). The Alabama statutory scheme at issue here, as applied to petitioner, fails to meet this requirement.
  It is undisputed that petitioner received no notice of the Mobile Circuit Court equity proceeding, and that he therefore had no opportunity to be heard therein regarding the adjudication of the obscenity vel non of New Directions. Yet the State nevertheless seeks to finally bind him, as well as all other potential purveyors of the magazines described in the Mobile proceeding, to the result reached in that proceeding. There is nothing in the opinion of the Supreme Court of Alabama indicating that petitioner had available to him any judicial avenue for initiating a challenge to the Mobile declaration as to the obscenity of New Directions. Decrees resulting from in rem proceedings initiated under Chapter 64A of the Alabama Code ¡could in some cases therefore have the same effect as would the ex parte determination of a state censorship authority which unilaterally found material offensive and proscribed its distribution. Such a procedure, without any provision for subsequent re-examination of the determination of the censor, would clearly be constitutionally infirm.
  The State asserts, however, that the Mobile proceeding was an “adversary judicial proceeding” as contemplated by our decisions, Freedman, supra, at 58; Heller, supra, at 489, and that relevant First Amendment values have thereby been adequately safeguarded. We cannot agree. The Chapter 64A proceeding was indeed “judicial” in the sense that it was presided over by a judge rather than an administrative official. But the State's claim regarding the adversary nature of the in rem proceeding is somewhat wide of the mark.
  It is not altogether clear from this record precisely what transpired at the hearing in which New Directions was declared obscene. It does appear that there were, in addition to the several magazines named as “respondents” in the proceeding, an individual and a corporate respondent: “Chris Zarocastas, individually and d/b/a Nelson’s News Stand; [and] Nelson’s News Stand, Inc., a Corporation, d/b/a Nelson’s News Stand.” The State contends that the existence of these named parties provides sufficient adverseness in the proceedings to permit its use of the adjudication thus obtained to bind non-parties such as petitioner.
  Our difficulty with this argument is its assumption that the named parties’ interests are sufficiently identical to those of petitioner that they will adequately protect his First Amendment rights. There is no indication that they are in privity with him, as that term is used in determining the binding effects of judgments. See Litchfield v. Goodnow’s Adm’r, 123 U. S. 549, 551 (1887). And we recognized in Freedman that‘individual exhibitors as well as distributors may be unwilling, for various reasons, to oppose a state claim of obscenity regarding certain material. 380 U. S., at 59. Such parties may, of course, make their own determination whether and how vigorously to assert their own First Amendment rights. The Constitution obviously cannot force anyone to exercise the freedom of expression which it guarantees. Those who are accorded an opportunity to be heard in a judicial proceeding established for determining the extent of their rights are properly bound by its outcome, either because they chose not to contest the State’s claim or because they chose to do so and lost.
  But it does not follow that a decision reached in such proceedings should conclusively determine the First Amendment rights of others. Nonparties like petitioner may assess quite differently the strength of their constitutional claims and may, of course, have very different views regarding the desirability of disseminating particular materials. We think they must be given the opportunity to make these assessments themselves, as well as the chance to litigate the issues if they so choose.
  The State asserts that invalidation of petitioner’s conviction will seriously undermine the use of civil proceedings to examine the protected character of specific materials, procedures which according to respondent offer marked advantages for all concerned over dealing with obscenity only in case-by-case criminal prosecutions. Petitioner, however, was convicted and sentenced in a criminal proceeding wherein the issue of obscenity vel non was held to be concluded against him by the decree in a civil proceeding to which he was not a party and of which he had no notice. Thus we need not condemn civil proceedings in general, see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 55 (1973), to conclude that this procedure fails to meet the standards required where First Amendment interests are at stake.
  Petitioner’s conviction must be vacated so that he may be afforded the opportunity to litigate in some forum the issue of the obscenity of New Directions before he may be convicted of selling obscene material. The judgment of the Supreme Court of Alabama is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.
  So ordered.
  Me. Justice Stevens took no part in the consideration or decision of this case.
  Chapter 64A provides in pertinent part:
  “§ 374 (5). Equitable action to adjudicate obscenity of mailable matter imported, sold or possessed. — Whenever the solicitor for any judicial circuit or county solicitor has reasonable cause to believe that any person, with knowledge of its contents, is (1) engaged in sending or causing to be sent, bringing or causing to be brought, into this state for sale or commercial distribution, or is (2) in this state, preparing, selling, exhibiting or commercially distributing or giving away, or offering to give away, or has in his possession with intent to sell, or commercially distribute, or to exhibit or give away or offer to give away, any obscene mailable matter, the solicitor for the judicial circuit or county into which such mailable matter is sent or caused to be sent, brought or caused to be brought, or in which it is prepared, sold, exhibited or commercially distributed or given away or offered to be given away, or possessed, may institute an action in equity in the circuit court or any court having equity jurisdiction of the affected county for an adjudication of the obscenity of the mailable matter.
  “§374 (6). Same; complaint. — The action authorized by section 374 (5) shall be commenced by the filing of a complaint to which shall be attached, as an exhibit, a true copy of the allegedly obscene mailable matter. The complaint shall:
  “(a) be directed against the mailable matter by name or description;
  “(b) allege its obscene nature;
  “(c) designate as respondents and list the names and addresses, as known, of its author, publisher and any other person sending or causing it to be sent, bringing or causing it to be brought into this state for sale or commercial distribution, and of any person in this state preparing, selling, exhibiting or commercially distributing it, or giving it away or offering to give it away, or possessing it with the intent to sell or commercially distribute or exhibit or give away or offer to give it away;
  “(d) pray for an adjudication that it is obscene;
  “(e) pray for a permanent injunction against any person sending or causing it to be sent, bringing or causing it to be brought, into this State for sale or commercial distribution, or in this state preparing, selling, exhibiting or commercially distributing it, giving away or offering to give it away, or possessing it with the intent to sell or commercially distribute or exhibit or give away or offer to give it away; and
  “(f) pray for its surrender, seizure and destruction.”
  "§ 374 (4). Importation, sale or possession of obscene printed or written matter; penalties. — (1) Every person who, with knowledge of its contents, sends or causes to be sent, or brings or causes to be brought, into this state for sale or commercial distribution, or in this state prepares, sells, exhibits or commercially distributes, or gives away or oifers to give away, or has in his possession with intent to sell or commercially distribute, or to give away or offer to give away, any obscene printed or written matter or material, other than mailable matter, or any mailable matter known by such person to have been judicially found to be obscene , under this chapter, shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than one year, and may be fined not more than two thousand dollars for each offense, or be both so imprisoned and fined in the discretion of the court.
  “(2) Every person who,-with knowledge of its contents, has in his possession any obscene printed or written matter or material, other than mailable matter, or any mailable matter known by such person to have been judicially found to be obscene under this chapter shall be guilty of a misdemeanor and, upon conviction, shall be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months, or may be fined not more than five hundred dollars for each offense, or be both so imprisoned and fined in the discretion of the court.”
  Indeed, there is nothing in the record to indicate that he even possessed any copies of that magazine at the time the equity proceeding was commenced. If he did not, it would certainly be quixotic to expect him to anticipate later developing such an interest in the outcome of those proceedings as to prompt him to seek an opportunity to be heard therein.
  The publishers of the named magazines were presumably served with notice of the injunctive action in accordance with Ala. Code, Tit. 14, §374 (7) (Supp. 1973).
  The decree recites that “all parties [were] present and represented by counsel,” but does not name them, and the record does not otherwise indicate the extent of their participation. App. 100.
  Because we conclude that the obscenity vel non of the publication for the sale of which petitioner was convicted has not yet been properly considered by the state courts, we need not pass upon petitioner’s claims that the publication was not obscene as a matter of law and that the Alabama statute defining obscenity is imper-missibly vague.
choices: First Amendment, miscellaneous (cf. comity: First Amendment) commercial speech, excluding attorneys libel, defamation: defamation of public officials and public and private persons libel, privacy: true and false light invasions of privacy legislative investigations: concerning internal security only federal or state internal security legislation: Smith, Internal Security, and related federal statutes loyalty oath or non-Communist affidavit (other than bar applicants, government employees, political party, or teacher) loyalty oath: bar applicants (cf. admission to bar, state or federal or U.S. Supreme Court) loyalty oath: government employees loyalty oath: political party loyalty oath: teachers security risks: denial of benefits or dismissal of employees for reasons other than failure to meet loyalty oath requirements conscientious objectors (cf. military draftee or military active duty) to military service campaign spending (cf. governmental corruption): protest demonstrations (other than as pertains to sit-in demonstrations): demonstrations and other forms of protest based on First Amendment guarantees free exercise of religion establishment of religion (other than as pertains to parochiaid:) parochiaid: government aid to religious schools, or religious requirements in public schools obscenity, state (cf. comity: privacy): including the regulation of sexually explicit material under the 21st Amendment obscenity, federal