ROTH v. UNITED STATES
Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products.
Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment?
Legal provision: 18 U.S.C. 1461
In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973).
Argument of David Von G. Albrecht
Chief Justice Earl Warren: Number 582, Samuel Roth, Petitioner versus United States of America.
Mr. Rogge, you may --
Mr. David Von G. Albrecht: My name is Albrecht Your Honor
Chief Justice Earl Warren: Mr. Albrecht, you may proceed.
I -- I beg your pardon.
Mr. David Von G. Albrecht: The complement in any events, I would like to reserve 10 minutes of my time for conclusion for my able associate, Mr. Rogge for rebuttal.
You Honors, I rise now to the defense of Samuel Roth, an unconventional publisher who publishes what people reject today and perhaps accept tomorrow.
The Government -- the Government here concedes that the petitioner's publications are as they say borderline entertainment area and do not contain commercial black market pornography, which is said by them to be the principal objective of the enforcers of the Act 1461 which we shall refer to instead of to its general title.
But that, Your Honors, is little service to my petitioner who is under the harsh sentence of five years in jail and a $5000 fine.
And I contend that it is of no aid to the Court who is confronted -- which is confronted with a statute about obscenity if we discuss pornography.
Your Honors, this prosecution arose in the Southern District of New York.
Justice John M. Harlan: Does that mean that you say a federal statute that reached only pornography would be all right?
Mr. David Von G. Albrecht: Your -- Your Honors, a federal statute could be made I believe so narrow in construction that it might be all right, but our contention in this case is that under the First Amendment as in conjunction with the Ninth and Tenth Amendment, the Congress has no power at all to do anything in relation to speech as speech itself that that power resides exclusively with the State and with the local government.
Once Congress attempts to interfere with it, it goes beyond the sacred area which is prohibited to Congress by the First Amendment and which is reserved to the States by the Ninth and Tenth Amendments.
Justice John M. Harlan: That includes pornography, whatever that means?
Mr. David Von G. Albrecht: Your Honor, I am not here to defend the question of pornography because I don't really know what pornography here is.
But I understand that the Government here has put in sealed exhibits which we don't know anything about, which we have never seen, which are here for your honest exclusive.
Justice John M. Harlan: Or is it to curve it down to size what's in my troubles.
Let's suppose they have taken a dirty picture.
Now, do you say it's beyond the purview of Congress to say, "We will not allow that stuff to be shipped through the mails?"
Mr. David Von G. Albrecht: Yes, sir.
Justice John M. Harlan: Do you say that's beyond the purview of Congress --
Mr. David Von G. Albrecht: Yes, sir.
Justice John M. Harlan: -- beyond the power of Congress?
Mr. David Von G. Albrecht: Yes, sir.
That -- my contention is that you cannot do anything like that because that is essentially a State function.
It belongs to the local community.
We were not suppose to go to the extreme of doing anything as far as speech is concerned where only speech itself is concerned.
Justice Harold Burton: Do you mean that the Federal Government can put no limitation of what would be sent by mail?
Mr. David Von G. Albrecht: That is my contention, Your Honor, that the Federal Government under the Ninth and Tenth Amendments has absolutely no right to do that and the Government says, "Well, we were -- we are going to have 48 different and distinct rules and regulations here.
We will have 47 because New Mexico has no obscene statute.”
Now, that is -- that is all right, but we did the same thing in other cases in the past.
In 1835, when we have the abolitionist and its erection, abolitionist movements, Congress provided for punishment at that time and then they provided and the Postmaster General instructed each postmaster in each state not to deliver the mail to any state which had a rule prohibiting the delivery of such mail.
We -- we're not going to stop the Post Office from doing anything by declaring this -- this Act unconstitutional.
The Post Office has the -- has the -- and each state can do the things that they want to do in that State.
Now, we do the same thing in --
Justice Felix Frankfurter: Do you mean --
Chief Justice Earl Warren: So far as --
Justice Felix Frankfurter: What's the plan?
I beg your pardon?
Chief Justice Earl Warren: Well, go ahead.
Justice Felix Frankfurter: I -- I don't understand.
Do you mean to say that while it's unconstitutional to prohibit stuffs from going through the mail, there is no redress against the Post Master General directing the postal officials not to deliver such a mail?
Mr. David Von G. Albrecht: If the -- if there is a State law --
Justice Felix Frankfurter: Yes, I mean --
Mr. David Von G. Albrecht: -- which prohibits that, yes, Your Honor.
You -- you are doing the same thing in the Webb Kenyon cases where you have --
Justice Felix Frankfurter: But the -- the Webb Kenyon Act has no such absolute non possumus that you find in the First Amendment.
You say you can't deliver this, but you can say it's all right that you'll just stop.
You can't keep this out, but you say if New York or some quasi-state has legislation against obscenity, then the Postmaster General says, "Never mind the First Amendment, you deliver it."
Mr. David Von G. Albrecht: Yes, sir because --
Justice Felix Frankfurter: You don't even raise that.
Mr. David Von G. Albrecht: -- the First Amendment says, “You shall not abridge the freedom of speech or the press.”
The Ninth and Tenth reserves it to the States.
Now, the State has that right to do that.
We are -- we are right there and --
Justice Felix Frankfurter: The States can tell and the States can to that extent tell this Postmaster General to disregard the First Amendment, is that it?
Mr. David Von G. Albrecht: The -- the States can -- can ask the Federal Government for help just as they have done in the past.
Justice Felix Frankfurter: Yes, they may ask for help, but there is no First Amendment which through your understanding is an absolute iron, inescapable bond.
Mr. David Von G. Albrecht: As far -- as far as the First Amendment is concerned, Your Honor, the First Amendment is -- is definite and inescapable.
That is true.
Justice Felix Frankfurter: But if -- what if -- if a -- as I say, a puritanical state, Massachusetts was once puritanical.
If Massachusetts says, "We don't like this kind of literature," then the Postmaster General says, "Aye, aye, sir."
Is that it?
Mr. David Von G. Albrecht: That's right.
Justice Felix Frankfurter: All right.
Mr. David Von G. Albrecht: And -- and the reason for that, Your Honor and the reason for that, I don't go as far as -- as my colleagues previously have attempted to go.
The reason for that is that the State with its police powers has the right to do these things which the Federal Government has no right to do.
Justice Harold Burton: Can the Congress close the mail to the use of -- for elaborate purposes, gambling purposes?
Mr. David Von G. Albrecht: Yes, sir.
The Congress may and the Congress does that thing all right, but the lottery is not a part of the First Amendment because we say, "You shall not abridge the freedom of speech."
And there is nothing in the First Amendment that says anything about abridging a lottery.
Justice Felix Frankfurter: Is your theory -- your theory as I understand it disable the Congress from protecting if that's what it is, the citizens, one more discrimination against the inhabitants of the District of Columbia including myself.
Congress can't do anything to say -- to make me not blush, is that it?
Mr. David Von G. Albrecht: Well, your -- your --
Justice Felix Frankfurter: Because they can't do it for the District.
The District is -- Congress is more impotent than any State is, is that right?
Mr. David Von G. Albrecht: No, Congress has -- has a power in the District of Columbia which has -- it does not have in the States.
Justice Felix Frankfurter: And you think the First Amendment doesn't limit that?
Mr. David Von G. Albrecht: Your Honor, I don't go as far as my previous colleagues as to that -- as to that particular point.
Justice Felix Frankfurter: Well, you have a nice (Inaudible), a nice great equality if all these theories have woven together.
Mr. David Von G. Albrecht: If I -- if I may indicate about this prosecution that was started in the Federal District Court in New York.
It consisted of an indictment which contained 26 counts, which charged this defendant with wrongfully depositing for mailing several articles in violation of Section 1461.
The case came up in -- on January 3rd, 1956 and was concluded nine days later.
Out of those 26 counts, three were either dismissed with the consent or of the Government or upon motion.
And of the 23 that went to the jury, they found this defendant guilty of only four.
And of the four counts, there were only seven witnesses as against the 36 that had originally been called to the stand and there were numerous exhibits.
Justice Harold Burton: Is it?
Mr. David Von G. Albrecht: Which Your Honors have here.
And one of the books upon which this defendant was found guilty, consisted of over 200 pages.
This book was never read to the jury.
Only isolated parts were read to the jury.
There was only one copy that went into the jury room and this length of time that the jury deliberated, it was a physical impossibility for the jury to have read that book in the jury room.
It is our contention that -- that if they had read the book, they would not have found the book obscene.
If Your Honors decide to read it, I have it here and we'll produce it.
The book taken as a whole consisted of literary works of (Inaudible), historical works and a short story by Aubrey Beardsley.
And the thing that was important to the jury I believe in that case was that they took this book, this little -- I should say 20 pages by Aubrey Beardsley and inserted and they had a book which is a criticism of Aubrey Beardsley by a man Haldane MacFall, who I believe was not even alive at the time that Aubrey Beardsley died and they introduced this book in to evidence to show that Beardsley believed that this book was obscene.
Justice Felix Frankfurter: Mr. Albrecht, may I ask you whether the thing you've said latterly the last about -- the jury didn't read it, couldn't have read it, et cetera?
Are any of those questions open here?
I just looked at the order allowing certiorari and that was very nearly restricted to the point you've already made, namely the obscenity statute by freedom of speech in the First Amendment by Due Process Clause, the obscenity statute and it violated the First, Ninth and Tenth Amendment reserved to the States, but no question as to charged adequacy of evidence, submission to the jury, not one of these questions is opened.
There are three very specific questions taken from your petition on the basis of which the Court granted certiorari and therefore restricted argument to it.
Mr. David Von G. Albrecht: Well, Your Honor, the -- in -- in the brief supplied by the Government, they too admit that I have this right and I refer to --
Justice Felix Frankfurter: I don't care with the Government.
The Government is not deciding what's the scope of this review is.
Mr. David Von G. Albrecht: Yes, Your Honor.
As I understand it, the review on the consideration of the constitutionality of the statutes not only applies to the statute on its face but also as applied.
And therefore I -- I thought that that would come within the scope of this argument.
Justice Felix Frankfurter: I don't understand that.
Chief Justice Earl Warren: Where do you get -- where do you get that in the questions?
Mr. David Von G. Albrecht: Well, the --
Chief Justice Earl Warren: Appear on page 3 of your brief, at the bottom.
Mr. David Von G. Albrecht: I -- I assume the implication, Your Honor, because I take the -- that the review includes a consideration of the constitutionality, not only the space of the statute but also as they apply it.
But if Your Honors think that I have gone beyond the -- the -- my limits, I will back away and go ahead along with a different line.
Justice Felix Frankfurter: It is customary isn't it when counsel want to raise constitutionality as applied that they say so and the Court says so, on its fate and apply it?
Mr. David Von G. Albrecht: Yes, Your Honor.
Justice Felix Frankfurter: You can't just swim in the midst of the Pacific Ocean in this matter.
You have to get some footing on some terra cotta -- terra firma.
Mr. David Von G. Albrecht: If -- if we may Your Honor, and in the short time allowed to go on and I would like to quote a statement made by perhaps the greatest living and most respected writer on the subject today.
A man who wrote the amicus brief here, Mr. Morris Ernst and he says in his works that the Federal Government has no authority of the local morals.
There is no federal power to control marriage, divorce, adultery, or bigamy.
These matters concerned local government and the Ninth and Tenth Amendments affirm the state power over those matters and no power as delegated to Congress.
Now, as I see the question for the first time, this Court is being asked to determine whether a federal criminal statute can punish speech as speech, even though that speech has no connection with any action of conduct over which the Federal Government has power or control.
And if I may pose this question, how can you have a single federal criminal statute which has the inherent potential of having different results in different states that upon the same state of facts?
How can you have a publication found to have been violated by -- in New York and not to have been violated in New Mexico?
If you have one federal criminal statute, we can have a jury in New York, trying Roth and convict him and a jury in New Mexico tries Roth and acquits him.
Now you have the same statutes and you have -- you -- you're just going to get the whole theory of Erie against Tompkins involved in a criminal law.
And I submit that such potential for this harmony and the enforcement of a federal obscenity statute is compelling evidence that obscenity is a proper subject for the State and not for the federal power.
Chief Justice Earl Warren: Mr. Fisher.
Argument of Roger D. Fisher
Mr. Roger D. Fisher: Mr. Chief Justice, may it please the Court.
I will too go and start out by saying what is involved in this case that distinguish other cases and what is not involved in this case.
First, there is no question of whether the exhibits in this case are obscene.
That issue was question (a) in the petition for certiorari, it was denied.
There as in the -- the California case, there are questions of whether or not the matter was obscene, entitled to find that that issue was not here.
There is no question of prior restraint in the New York case.
Petitioner Roth got everything that the appellant, Kingsley is asking for, grand jury, jury trial, criminal burden of proof beyond a reasonable doubt.
There is no question of administrative discretion as is involved in pending Post Office cases in other Courts, the Court of Appeals here where the Post Office has to consider whether a matter is mailable or not to be eligible for second class privileges.
The sole question on a limited review is the constitutionality of Section 1461 as applied to the criminal statute to the mailing of obscene material in United States mails.
The matter -- this is the application of an obscenity statute to matter which is concededly obscene, concededly for the purposes of this appeal.
Justice Hugo L. Black: Do we have to assume that that it's concededly obscene?
Is the question of vagueness out of the case?
Mr. Roger D. Fisher: No, the question -- it is concededly obscene within obscene, the standard of statutory standard.
You still have before you whether a statutory standard is vague on its face, whether the language is --
Justice Hugo L. Black: Where the obscene means?
Mr. Roger D. Fisher: And enough to be a criminal statute.If it means anything, these -- these advertising circulars in this one book are obscene.You still have the question whether it means or not.
Then, the -- there are two issues besides the Ninth and Tenth Amendment that they're the -- they form the basis of this problem.
First, it's on the First Amendment, can anything be restrained from a ground that it is obscene?
Heretofore has been unanimous agreement on that subject.
This Court is now reconsidering I should say that question.
In Doubleday, the Hecate Country case, counsel for Doubleday did not even suggest that the statute was unconstitutional on its face, but only as applied to that particular --
Justice Felix Frankfurter: But that wasn't this statute at least.
Mr. Roger D. Fisher: No, but the standard, the New York standard of obscenity did not challenge the constitutional validity of an obscenity statute.
Justice Felix Frankfurter: And do you think that you're discussing this thing as though this isn't a statute by the Congress for the regulations of mails, is it?
That doesn't make any difference, does it here?
Mr. Roger D. Fisher: No, I -- I lean heavily on that, I think of the easiest grounds which decide it.
Justice Felix Frankfurter: Why don't you talk about the Hecate case?
Mr. Roger D. Fisher: Well, the -- the argument that is made here is that -- that no obscenity statute can be acted.
No restraint you put on speech unless of course it's conduct.
Justice Felix Frankfurter: But you haven't got a -- an ordinary obscenity statute here, whatever one may think of that.
Is that a statute which I don't know how it is a 100 years to begin with, certainly more than a hundred years.
Mr. Roger D. Fisher: The first custom statute is in 1842 and this one is 1865.
Justice Felix Frankfurter: You've got here a question of regulating the mails.
Am I to assume that you're going to argue that this is the same as the California statute or any other obscenity statute subsequently preceding?
Mr. Roger D. Fisher: No, no, not at all.
I -- the United States certainly --
Justice Felix Frankfurter: It only confuses me.
You confuse me if you impliedly equate the two.
Mr. Roger D. Fisher: The -- if it were a regulation of the mail and if Congress although the First Amendment can impose no restraint whatever on speech not leading to conduct, you would have a different question than you'll have here.
Petitioner has made that attack.
We have tried the --
Justice Felix Frankfurter: You're suggesting, you don't have to follow in its wake.
Mr. Roger D. Fisher: Thank you, Your Honor.
We have assumed that in the granting of cert in these three cases together, the Court wanted to reexamine basic questions and we've discussed them in the brief at some length.
Justice Felix Frankfurter: But this is a -- I -- this is a particular statute and not at large, general obscenity, the area of obscenity.
That isn't what this case is about, necessarily is it?
Mr. Roger D. Fisher: No, this case is not.
Justice Felix Frankfurter: Well, we didn't ask the Government just to discuss all alternative statutes.
Mr. Roger D. Fisher: We did not discuss all obscenity statutes, although some of the issues go far beyond issue in this case.
The Fifth Amendment attack, which is levied, is that the statute is too broad and too vague.
Now, these I say are Fifth Amendment questions, although of course in the area of First Amendment rights, there may be tighter standards of broadness or tighter standards that's definite than elsewhere.
When you are considering a statute which imposes a restraint in the name of social interest, a -- which maybe freedom of the press and the side who's interesting serve by that restraint, we thought the Court entitled to know the best of our ability, what the interests are that are involved.
Now, you've had -- cited to you in the briefs the Bible, Shakespeare, Freud, other great writers as being the sort of material that maybe called obscene.
That is not the sort of material that falls within the statute as applied and traditionally is -- is not what falls within it.
We have cited to you a number of tales whether they were hot stuff or she knew what she wanted.
You would not know what those books were.
We've made available a library of materials that came to the Government's possession and the Post Office which can illustrate more clearly than I.
Depending if the Courts should wish to look at it, that material which is a kind of stuff involved basically and which is the -- which divides the interests between free speech, ideas and the damage to the persons that are involved.
Of the 175 convictions, fiscal 1956 under the Post Office statute, 166 pleaded guilty.
The issue was primarily, this case is not one of whether the matter is obscene.
The issue -- both parties know what's involved.
The usual case the person believes it's obscene, he gets caught.
The attack in the reply brief filed this morning by petitioner in this case says that, “We justify pornography statute, not an obscenity statute.”
I'd like to -- to clarify what we may have said in the brief, bring a little focus on that.
Wherever a line is drawn at any point in this area, there will be three kinds of material that will fall below the line.
There will be a few people who are expressing themselves as they see fit and that form of expression happens to be so concentrated and so vile in the eyes of motion that it's taken as a whole, both are below that line.
There will be some more people who are catering to the interests that are barred by the statute, catering to the erotic, catering to those interests which the statute is designed to protect from interference and who are skating as close to the line as they can.
This is what we define the petitioner here, Roth is in the borderline area.
He is trying to produce material, has been producing material which if confronted, he would not concede as obscene.
He would hope that a jury of 12 would not unanimously agree beyond a reasonable doubt if it fell within that class.
The third category are those who don't care about the line or rather they know about the line and are deliberately trying to produce material which they know to be illegal, comparable to bootleg whiskey, there's no question about it.
They're not trying to follow.
They're trying to produce the material that's prohibited by the statute.
Now, we -- in running through the convictions which figures were available here in the Post Office Department of the published material, pressed, reproduced photo, commercially reproduced material which is involved in this litigation.
About 90% of that kind of -- of published material falls into the black market, hardcore pornography sort.
Now, that is not a reliable statistic which anyone -- you need to put much -- put much weight on.
That's our judgment.
Whether it's 90% now, I don't know.
If the statute is declared unconstitutional, I believe it will play the volume of material going through the mails to be substantially larger.
This commercial material is unpleasant to talk about, unpleasant to think about.
The-- the briefs, amicus curia filed in this Court indicate that people prefer to talk about civil liberties, the borderline between a great novel and a what might be considered obscene, the issues where censorship may trespass on vital scientific works of art.
Those are much more interesting issues than the ones we have here.
This matter is concededly obscene if anything is obscene and the statute question is, "Can Congress bar that stuff from the mail?"
I think that risk of trespassing in the Court.
I like to just briefly what is involved.
A large part is photographs, photographs of all sorts of person, people, generally without any clothes on in all cultures, groups, individuals.
They're engaged in activity, perversion of every kind.
These, if you read the briefs indicate that this is a vital freedom of -- these are the ideas which must be communicated.
The idea of content within the First Amendment terms of any such material is negative.Second category of materials, a little booklet of series of sex episodes, one after the other usually illustrated these photographs or drawings.
Third category, are comic books, especially drawn for the pornographic trade.
Fourth category is motion picture films.
We did not make any of those available to the Court.
If they should want to see them, it could be arranged.
They are the worst, most vile, any form of pornography in my estimation.
This material has no idea of content.
If there is any idea, it can easily be said by other means.
The Kingsley Books and other books illustrate that you can discuss this -- this subject to sexual morality and conduct without being obscene.
You do not have to offend and be as shocking as explicit, as vulgar, as debasing at the material which falls within the current concept of criminal obscenity.
Justice John M. Harlan: When you're saying moving picture films, do you mean they sold 16 millimeter stuff or?
Mr. Roger D. Fisher: Eight and 16 millimeter films are produced in, I guess about a 300 foot roll.
It has a short plot to it.
It starts off with characters and ends up with all forms of perverted conduct.
They -- this is currently the price range of these films, I'm told runs about $75 to a $100.
There is no copyright of course.
So, they sell them the first time to get enough to protect themselves from people who are black marketing around.
They're frequently not transferred to the mail.
The mail gets it open to the advertising, letting him know through the mail if they are available.
They try to do it through railway express where the package is not so easily noticed as sending films by first class mail, which is the way to keep it from being inspected.
If you see a moving film, picture films going by first class mail, you -- the Post Office Department has to be suspicious and generally investigate.
Justice Felix Frankfurter: Look, Mr. Fisher, in the debate which was held the other day in the House of Congress on a bill like this, the Undersecretary for the Home Office picks up a distinguished lawyer.
There's a continual and highly lucrative trafficking of pornography and that until he had -- well, it's his duty to look at the stuff, he quite -- he was accustomed to it.
And none that I saw as it were -- for the (Inaudible) of value, but paper bags as they were sold for anything up to 7 pounds a piece.
In the course of the proceedings to which you were incurred by the Government, was there any evidence appear what -- what kind of a market there is in this country for these things?
Mr. Roger D. Fisher: The French books running -- coming in from Paris smuggled in running about 32 pages typically with four photographic illustrations put out by two or three presses in Paris' black market is illegal under French law too, I understand, have a $5 price tag on the front, whether this is a common -- for a discount price to customers, I don't know.
That's the -- it appeared about $5, sometimes $10 on a small book that have 32 pages.
Justice Felix Frankfurter: I mean this is -- this is stuff that appeared in evidence, you're now saying what would come out in cases, (Voice Overlap).
Mr. Roger D. Fisher: This is -- the 1956, one of the 1956 convictions under the statute had a whole lot of material involved which -- which the comparable prices of this assortment.
Justice William O. Douglas: What definition of obscenity do you want us to endorse?
Mr. Roger D. Fisher: It is the charge below in this case is we believe approved of this case, endorses that charge as being within the realm of acceptable obstruction of the statutes and it appears on -- relevant part appears on page 25, 26 of the record.
The -- the relevant points, the key points, matter which must the Court charge the jury.
I'm reading to you the bottom of page 25.
“The matter must be calculated to corrupt and debauch the minds and morals of those into his hands that may fall.
And then on -- to avoid the governed -- now that he made it clear that into his hands that may fall should be judged by the impact on the average person in the community.
That's on page 26, “You determine it's impact upon the average person of community.”
Little paragraph on Page 26, “The books, pictures and circulars must be judged as a whole in their entire context,” and you were not to consider the text to separate portions in reaching a conclusion.
Justice William O. Douglas: But there are a lot of other things that made you skip it over like, does it -- and to stir sexual impulses?
Mr. Roger D. Fisher: Right, this I --
Justice William O. Douglas: That might take off the stage long opinions that Sir George Bernard Shaw wrote.
Mr. Roger D. Fisher: I take it if you must read that in connection with the sentence.
The matter must be calculated to corrupt and debauch the minds and morals.
There was an issue raised in the fourth question for certiorari.
Justice William O. Douglas: There's another --
Mr. Roger D. Fisher: Your Honor?
Justice William O. Douglas: On the -- just before the -- about the middle of page 26, you may ask yourself, "Does it offend the common conscience of the community by presentation (Inaudible)?"
Mr. Roger D. Fisher: Right.
I'd be -- the -- the -- one of the questions insert which petitioner asked for certiorari was, “Did the trial court in its charge de jure so dissect, impose the colocation of terms as to render the statute vague and indefinite?”
The Court denied certiorari on that question.
So, I take it that the -- any confusion that might creep in as to whether this particular charge with the little -- by this discussing filthy and saying it can offend the -- offend the community to be obscene, it must corrupt and debauch the morals.
It's not before the Court, but if the --
Justice William O. Douglas: Well, the (Voice Overlap) --
Mr. Roger D. Fisher: -- concede it to have fall within the obscenity part, not the filthy part.
Justice William O. Douglas: The admission of obscenity before the Court, I gather --
Mr. Roger D. Fisher: Right.
It certainly is, Your Honor.
I take --
Justice William O. Douglas: Was that -- do you even --
Mr. Roger D. Fisher: I take it --
Justice William O. Douglas: You maintain that that is obscene which offends the common conscience of the community?
Mr. Roger D. Fisher: Now, he -- the -- I -- I come back to the sentence I prefer on the bottom, page 25.
He must find the matters calculate to corrupt and debauch the minds and morals.
Justice William O. Douglas: Well, that's one sentence and out of the -- out of many paragraphs.
Mr. Roger D. Fisher: The -- the matter here was considered and argued by both sides as being obscene, not filthy.
The filthy one, the definition of filthy was pertaining to that sort of treatment for sexual matters such as a vulgar, indecent way, so it tends to rouse the feeling of disgust and revulsion.
And one of the issues which they've tried to raise was that this -- this was inconsistent with the fact that it must corrupt and debauch.
Justice Felix Frankfurter: Was the indictment for obscenity or those two different crimes that the opinions of this Court have made clear, prosecution for obscenity isn't satisfied by approving that a document or --
Mr. Roger D. Fisher: The -- the --
Justice Felix Frankfurter: -- a publication was filthy or vice versa, we're talking about --
Mr. Roger D. Fisher: The indictment appears -- I haven't checked all the counts, but the basic count was vile, obscene, nude and lascivious.
Justice Felix Frankfurter: Yes.
Filthy -- filthy is a different --
Mr. Roger D. Fisher: I --
Justice Felix Frankfurter: -- the cause of action, the different crimes.
Justice William O. Douglas: We're -- we're talking about obscene here --
Mr. Roger D. Fisher: Yes, sir.
That's the -- that is --
Justice William O. Douglas: -- this is the best that as I'm talking about are -- relate to obscenity.
Mr. Roger D. Fisher: Well, the definition which --
Justice William O. Douglas: I suppose they could have convicted this fellow, I don't -- I haven't seen the literature, but I suppose under this charge they could have convicted him if what he published intended to stir sexual impulses.
Mr. Roger D. Fisher: I would think it read the charge in a whole -- in the whole context.
The basic principle we believe that something to be obscene must be of such a character or that tends to corrupt and debauch the morals.
I also think that offensive under a stronger, perhaps a stronger language, shocking.
The -- it's an epithet type matter that the psychological injury could be obscene within the meaning of this statute.
Justice William O. Douglas: If the Government is not taking the position or is it that the -- that the clear and present danger test has any relevancy here to --
Mr. Roger D. Fisher: Our -- our position is that the clear and present danger test need not be one of words leading to action, but as in the Breard and Alexandria where the peddlers ringing the doorbell creates a clear and present danger, the peace and quiet of the home will be disturbed that allows ruckus noise --
Justice William O. Douglas: But (Voice Overlap) -- we're -- we're dealing here with speech and utterance of ideas and -- there's always been the probability or the possibility or that the ideas would produce some kind of action in the -- as I read our clear and present danger cases.
Mr. Roger D. Fisher: With two difference, Your Honor, as I read the cases there, there's another set that deals with where one interest of society is being impinged upon by an excessive use of free speech as an allowed and ruckus soundtrack.
It is not by speaking very loudly, they will lead people to action.
It's that the loudness of the soundtrack of -- disturbs the privacy of the home and offends the peace and quiet people in it to have the speech exercise at that pitch.
The peddler who comes to the door selling magazines, talking about magazines maybe restrained even though he's though he's taking about it.
And particularly, if he's talking pots, aluminum kitchenware, even the members of -- a citizen in Breard indicated that if the content of the speech was about pot, he would have even a lower order of priority in that which the Court agreed could be restrained in that case.
We do not think you have to have a clear and present danger between words and the conduct resulting from that induced by the words.
Justice William O. Douglas: Clear and present danger that you'll be shocked, clear and present or what?
Clear and present danger or what?
Mr. Roger D. Fisher: Clear and present danger of an entry to an interest which society can protect.
We've suggested in the brief that this ran down are four.
There is the conduct, immediate conduct.
The person can seize photographs of -- of sexual perversion, moving pictures of -- of perverted conduct taking place or booklets and think only that's to the experiment myself.
We think there's a serious risk of that one which the legislature could properly act upon.
Second, is long range conduct induced by a breaking down of morals?
This -- the -- that you read the books, it's not that you're immediately aroused to do something but to gradually fill your mind with a thought that every seems to be doing it.
This is kind of a -- things are going, “Let's have some fun,” illicit sex life or various kinds of activity, because your moral standards are broken down by the hip and reading the more -- the mail, you get circulars, advertising this sort of material.
Justice William O. Douglas: This sounds like a -- like Mr. Comstocks here that he can't stop.
Justice Felix Frankfurter: Don't be frightened by that.
Mr. Roger D. Fisher: The -- no.
I think that the -- there is an effect on morality that if you'll peruse, I invite your attention to the library which we've boxed it to a file and I think you'd -- a diet of that material coming through the mail into the homes of America would have a definite effect on the conduct of -- of the, not only the children, but the parents and others who are other than family who received --
Justice Felix Frankfurter: Do you agree it must have an effect on conduct?
Mr. Roger D. Fisher: No.
I'm saying the interest we've gone, that's one.
Another interest is the -- is the injury or the epithet, the psychological harm of the housewife who opens the morning mail and finds one of Mr. Roth's circulars which he certainly wrote a -- upon a lottery circular as far as how strongly she feels.
This -- these circulars create a -- there's a strong interest of not being offended and being hit in the face with -- with the dirty pictures and just debasing discussion of sex in the home, the morning mail.
Justice Felix Frankfurter: How do we know it doesn't affect conduct in the future?
Does anybody know?
Has psychology reached that, wonderful state where it can assure us that if boys and or grown ups or feebleminded or general human beings have certain things said to them but it doesn't do anything to them.
Mr. Roger D. Fisher: No.
Justice Felix Frankfurter: As I recall, you reached that -- one of certainty of -- of determination?
Mr. Roger D. Fisher: One of our key points is that this is an area where no one can know what it causes.
Actually, even in your vital speech case, you can't tell whether a speech is going to induce conduct and even less can tell, whether this is sort of material.
Justice William O. Douglas: There were two other bases of the clear and present danger used.
Mr. Roger D. Fisher: Two other interests that I thought were going to be --
Justice William O. Douglas: Yes.
Mr. Roger D. Fisher: -- affected by it.
Let me see if I can come -- come up with them.
The invasion of the privacy of the home, and this is particularly we're dealing with the male.
This is the captive audience who cannot avoid the material coming to them.
They have withdrawn within the four walls to get away from the hurly-burly of their life.
This is their privacy.
This is their training ground for children.
This is where they -- be away from it all where they can have their private and intimate life of their own.
United States mails have an easement over their house.
First class letters come through.
You -- you've got to open them or you're on your notice, it maybe a tax bill, it maybe an assessment, it maybe some kind of matter you're -- open the mail.
The circulars in this case were sent by first class mail, but no charge for the circular.
This was sent out advertising matter.
And it's in this home where the privacy, this is more of a captive audience, Mr. Justice Douglas than the street car, I believe, where the -- the radio commercial comes over on the street cars they have (Voice Overlap).
Justice Felix Frankfurter: It doesn't touch conduct, but merely a fence.
Mr. Roger D. Fisher: It's a fence, it comes in --
Justice Felix Frankfurter: I wonder what the clear and present danger too.
Mr. Roger D. Fisher: Two, we injure the privacy of their home.
Justice Felix Frankfurter: Clear and present danger?
Mr. Roger D. Fisher: I -- I think --
Justice Felix Frankfurter: How do you think this has to be shoved into that category?
Mr. Roger D. Fisher: I say it doesn't have to be shoved.
Justice Felix Frankfurter: This statute had stood for 50 years before the phrase “clear and present danger,” the ink of that phrase was dropped from Justice Holmes' 4306.
Justice William O. Douglas: The question has never been here, really.
Justice Felix Frankfurter: That has been here for -- here in 1877, wasn't it, on what the Jackson case is decided?
Mr. Roger D. Fisher: There -- 72, I think.
Justice Felix Frankfurter: 72.
Mr. Roger D. Fisher: The -- there are number of cases in which this Court even after clear and present danger is found that speech could cause an injury which would justify its restraint, Kovacs and Cooper and the Breard and Alexandria are two cases.
I think that if it -- I don't believe it has to be in a clear and present danger.
I'm suggesting the interest, if you want to call it clear and present danger, you can say there's the danger of the privacy of the home being clear and present danger.
Mr. Roth is free to send out hundreds of thousands of these circulars with any kind of material in them at all.
Justice William O. Douglas: You say that Congress can make some laws that abridge freedom of speech?
Mr. Roger D. Fisher: That -- that some restraints can be imposed on how loud speech is spoken.
This is more of the form of the speech and the content.
This is a nudist in the park who wants to talk about a nuder.
He takes off his clothes and expresses himself.
Reasonable police regulations can say “Put on a pair of pants.”
You can say the same ideas, but when you bring your ideas in the public arena, don't offend everybody, be well-clothed.
This is the kind of restraint we're talking about here.
If Mr. Roth has ideas, he talk about -- he thinks moral concepts should be changed, he's free to talk about that.
Justice William O. Douglas: You're talking now just about pictures, not about the text.
Mr. Roger D. Fisher: No, the text as well.
I said if the -- that there's no idea which shall be found to be obscene, homosexuality.Nothing is going to be barred because of the idea of content.
He's going to be barred because of the way in which it's put.
Justice Felix Frankfurter: Mr. Fisher, would you regard a libel in the District of Columbia if Congress passes a statute, making it a criminal libel to tell lies, demonstrable untruths about a public man, I believe there is such a statute, isn't it?
Mr. Roger D. Fisher: There is.
Justice Felix Frankfurter: Is that an infringement of freedom of speech or not contained within it as the further abuse it?
Mr. Roger D. Fisher: I don't think it makes much difference whether you --
Justice Felix Frankfurter: Well, I think it does make a difference.
It does make a difference and I suggest the Government shouldn't be afraid to face this issue, not say --
Mr. Roger D. Fisher: The -- the --
Justice Felix Frankfurter: -- Congress can violate the Constitution a little bit or the Constitution doesn't mean that.
Mr. Roger D. Fisher: No, no.
Justice Felix Frankfurter: It's all the difference in the word to me --
Mr. Roger D. Fisher: The -- the --
Justice Felix Frankfurter: -- because I don't think we can violate the Constitution a little bit.
Mr. Roger D. Fisher: But I -- the --
Justice Felix Frankfurter: I think we have to construe it.
Mr. Roger D. Fisher: And I think that abridging the freedom of the speech is not violated a little bit by restraining, selling of obscene --
Justice Felix Frankfurter: What about libel?
Is that within the Constitution or isn't it?
Mr. Roger D. Fisher: I think it's the -- that a restraint on libel is not prohibited by the First Amendment.
Justice Felix Frankfurter: I don't mean -- I'm not talking about restraint in advance.
Mr. Roger D. Fisher: To pay off most --
Justice Felix Frankfurter: Prosecution for libel.
Is that a violation of the constitution?
Mr. Roger D. Fisher: No, no, I think its not.
Justice Felix Frankfurter: Well, then, why do you have to worry about clear and present danger with reference to a libel?
Mr. Roger D. Fisher: I don't think you do.
I think however that the --
Justice Felix Frankfurter: Do you think it matters (Voice Overlap) --
Mr. Roger D. Fisher: It would have been easy --
Justice Felix Frankfurter: -- (Voice Overlap) libel was an exception or was the -- or the violation of the Constitution?
Justice William O. Douglas: Do you think the alien and sedeition laws were constitutional?
Justice Felix Frankfurter: Is that the --
Mr. Roger D. Fisher: (Voice Overlap) that argue those cases here.
Justice Felix Frankfurter: Is that clear?
Is that clear?
Mr. Roger D. Fisher: No.
Justice Felix Frankfurter: Can you talk about the Alien Sedition Laws in gross or in wholesale?
Mr. Roger D. Fisher: The -- the only question, Mr. Judge Frankfurter I had was, would it be easy for the Government to come in and say, “Once something is obscene, it's beyond the realm of protection.”
The First Amendment has no concern with it.
I think that would have been an unhealthy analysis for the Government to make.
I think we should say --
Justice Felix Frankfurter: I don't know what that means.
I think it's not very brave for the Government to be dodging the question.
“Whether this is a violation of the Constitution or isn't a violation of the Constitution.”
Mr. Roger D. Fisher: I -- I would -- if I've conveyed that impression I've erred --
Justice Felix Frankfurter: Well, it's not you're -- you're afraid of touching this thing whether this is an exception or a little restraint which the Constitution forbids or to say forthright, no.
It is not within the prohibition.
Mr. Roger D. Fisher: I will say this is not within the provision of the constitution.
I will say that --
Justice Felix Frankfurter: Then, you don't have to worry about clear and present danger.
Justice Hugo L. Black: That shows that (Voice Overlap).
Justice Felix Frankfurter: Look at the principal explanation.
Mr. Roger D. Fisher: I -- I learned from opinions I've read that at least some members of this Court, there's a certain amount of balancing of competing interest that must be done in -- in figuring out whether a matter, a restraint, the kind of speech involved, Whether restraint is within the sort of restraint should be barred by the First Amendment.
Justice Felix Frankfurter: I suggest that the --
Mr. Roger D. Fisher: If I have -- failed to heed my teacher, I am a poor student indeed.
Justice Felix Frankfurter: Yes.
But I suggest it's more than your duty in trying to see how best you can calculate where you win five members of this Court.
I don't think that's your --
Mr. Roger D. Fisher: I -- that is the --
Justice Felix Frankfurter: -- chief duty.
Justice Hugo L. Black: That's one of your objects, isn't it?
Mr. Roger D. Fisher: It is not in my guiding light in this case, I assure you.
It would have been easier, much easier matter to say, "Obscenity has always been considered outside the Constitution, and raises no First Amendment problems and sit down.”
We don't -- we think that there are problems that must be considered.
Justice Felix Frankfurter: I think that's your question only when you got, if I may say so, if you've got a statute that's been on the books, the constitutionality of which has been passed on by this Court.
I think your first duty is to say, “This -- the Government come before this Court to sustain the validity of a statute on the basis of which all sorts of people have been put into jail.
In which the most eminent and the leaders in liberal court have sustained its constitutionality and we go on from there, not to be --
Justice William O. Douglas: But we have a (Voice Overlap) --
Justice Felix Frankfurter: -- timid about it, not to be timid about it.”
Justice William O. Douglas: We've got a specific charge here.
Justice Hugo L. Black: If you want to elaborate on that argument, Mr. Fisher, your time is up.
I'll be glad to ask you a question.
Justice Felix Frankfurter: Is the charge -- is the charge before us, Mr. Fisher?
Is the validity of a charge before us in this case?
Mr. Roger D. Fisher: I believe you have to take the statute as it has been generally construed and you can take it as -- in -- as construed in -- I think in this case.
I think if the charge were in gross error and they have said any book contains the dirty sentence you don't like, you can convict.
I believe this Court would be within its -- then, the limited question to reverse and say, “The statute is so construed,” was invalid.
The -- if I may trespass on your -- your generous question is --
Justice Hugo L. Black: What do you think about that order?
Mr. Roger D. Fisher: The -- the -- I don't think that the edge of the First Amendment is razor sharp.
But if we took a -- the motion picture film which take the kind of series of pictures taken at one-sixteenth of a second apart running from a legitimate photograph of a couple into yet an engagement, perverted conduct if anything obscene that is.
I don't think you can say the First Amendment is right between these two pictures.
I think that the -- the -- well, the pictures obscene depends on the whole balancing process of what the idea is.
You have to consider if it's a dirty picture, partly dirty, somewhat dirty and this is not the First Amendment.
I don't think my analysis, our analysis here is that speech raises constitutional questions.
Now, a billboard being put back from a highway, it's speech.
They want to have a safety slogan they put up on a new highway.
The county says, “No billboards on this highway.”
Now, that to say this is not -- doesn't raise First Amendment questions, I think is not candid and there was an effort to be candid with this Court that we went at such length to say that, speech which is obscene raises First Amendment questions.
And the Court in finding out whether the restraint, the violation of First Amendment must consider the extent to which that speech partakes of the ideas, opinions, political-economic social which is the basis of the First Amendment in an extent to which it causes the injuries which society has properly entitled to protect.
Here, the protection, it's limited to declining, to carry the stuff, carry these pictures through the United States mail.
We believe that whether other statutes are valid, whether a public, a prohibition on publication is valid.
The United States and its power to mail can properly say, “We do not choose to carry such worthless material.”
They can decide as to circle of a catalogue.
They -- they can certainly decide it -- I say, they could decide as this catalogue.
They can decide as to billboards, large signs, we don't want to carry those things.
They don't have enough ideas per pound.
They're not worth a terra.
This material is strongly objected to by society, not even majority, almost unanimous group of society.
This -- this matter is vile and considered so.
In this case, you must assume it to be obscene.
United States Government submits the statute which has been valid so long, considered valid so long which is not been deemed to raise constitutional questions.
Heretofore, on its face, is a valid exercise, postal power invade the Federal Government by the Constitution.
Chief Justice Earl Warren: Mr. Rogge.
Argument of O. John Rogge
Mr. O. John Rogge: Mr. Chief Justice, may it please the Court.
Before I begin my rebuttal, may I call to the Court's attention a telegram which my co-counsel, Mr. Albrecht received from other co-counsel in the case, David P. Siegel.
Please state to the United States Supreme Court that I have been confined to my bed since Thursday because of serious illness and that in view of my unexpected absence from the hearing, I request 15 days time to serve a special reply brief in the matter of Samuel Roth.
David P. Siegel.
Chief Justice Earl Warren: You may file it.
Mr. O. John Rogge: Now, the next point I'd like to make is to be sure that we're talking about this case.
Government counsel fought a great deal about pornography and in their brief they talked about hardcore pornography, whatever that may mean.
And Mr. Justice Harlan, you asked about pictures and I think you did too, Mr. Justice Douglas.
I think the Government will concede that they're not talking about the evidence in this case.
If there's any doubt on that, I'd like to have it cleared up now.
The Government is talking about material in another case than this one.
I'd also like to spend the moment on the scope of review.
The review was very specifically set out here in three questions, relating to the constitutionality of this statute on its face and as applied under the First, the Fifth, the Ninth and Tenth Amendments.
Now, the Government in its brief at Page 56 suggests, under the limited grant of certiorari, it is to be taken as given that the material to which the statute was construed to apply is likely to corrupt the morals of the average members of the community.
So, we challenge this statement, because if getting to -- getting past the point, I first say that when the First Amendment says, “Congress shall pass no law,” that's just what it meant.
But, when we get beyond that, if we get to the clear and present danger test, we are in such questions as what is the substantive evil and did these publications have a probability of causing it.
That is also involved within the scope of review here.
Now, Mr. Justice Frankfurter, I'd like to begin with your question as to whether the Post Office has to carry the material.
And here I began with -- begin with the statement by Mr. Justice Holmes in a dissenting opinion in which Mr. Justice Brandeis concurred in the Burleson case, a dissenting opinion which was approved by this Court in Hannegan against Esquire.
Mr. Justice Holmes said, “The United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues.”
And if we're going to have a Post Office Department, it has to carry the material.
And if I have to refer to an analogy where you had a comparable situation in the corner of the century before the civil war broke up, there was on the statute books, an Act of 1836, which specifically made it a penal offense, if any Postmaster should unlawfully detain in his office any letter, package, pamphlet or newspaper with intent to prevent the arrival and delivery of the same to the person or persons to whom such letter, package, pamphlet or newspaper maybe addressed or directed.
That's an Act which Congress passed after it had refused to enact a measure for which President Jackson called in December 1835, for barring the use of the mails incendiary publications.
And pursuant to that statute, you had rulings both by the Attorney General and also by the Postmaster General that state laws obtain supremacy when it came to a question of incendiary publications.
In 1857, the United States Attorney General Cushing ruled that a Mississippi statute, forbidding delivery of incendiary matter was not in conflict with the federal law of 1836 and no Postmaster was required to deliver material, the design and pendency of which you're to promote insurrection.
Now, I would say to Your Honor, that the Postmaster General has to carry the material because the First Amendment said, “Congress shall make no law.”
Justice Felix Frankfurter: Mr. Rogge, since you're quoting a dissenting opinion of Mr. Justice Holmes, they never strike at my Achilles heel, including him.
Mr. O. John Rogge: The Court approves that in Hannegen against Esquire.
Justice Felix Frankfurter: I suggest that as -- I suggest there's another dissenting opinion on which I suppose you would rely which you do not cite in your brief.
I refer you to Leach against Carlile, in 258, U.S. where Mr. Justice Holmes says the -- very much in your favor that you might make use of it.
Mr. O. John Rogge: Now, you ask -- I'm -- I'm sorry that I don't have that additional --
Justice Felix Frankfurter: 258 U.S.138, you find it.
Mr. O. John Rogge: I am familiar with the citation if Your Honor please, but I have not reread it in connection with this.
I try to be as much of a scholar as I can, but time limits which --
Justice Felix Frankfurter: I may (Voice Overlap) --
Mr. O. John Rogge: -- require briefs to be filed in particular periods of time don't always leave one that much time.
Justice Felix Frankfurter: Well, in that -- in that dissent, he suggested that the Court reconsider the Jackson case way back in 1872 and I should suppose that's the strength of your case.
Mr. O. John Rogge: Well, I had assumed that when this Court granted certiorari on the three questions of whether the federal obscenity statute involved here was in violation of the First, the Fifth, the Ninth and Tenth Amendments, this Court was going to reconsider that statute, although it's been on the books for over three quarters of a century and has been assumed to be constitutional at times, but --
Justice Felix Frankfurter: Do you think that's the same thing as though this statute was passed yesterday?
That a hundred years in the practice of the Court, in the decisions of the Court, recently referred to in passing by several members of the Court, who have rather strong views, bordering on the absent, you think that it makes no difference that a statute has been on the statute books sustained by this Court again and again by the leaders and those who have given us the modern law of civil libel.
That is immaterial that we discuss this thing de novo, is that it?
Mr. O. John Rogge: Mr. Justice Frankfurter, if this statute as I submitted is, is in violation of the First, the Fifth, the Ninth and Tenth Amendments, I submit to Your Honor that it doesn't make any difference if it's been on there for a 150 years.
Justice Felix Frankfurter: I agree with you entirely, but before determining whether it is, we better consider what has been.
Mr. O. John Rogge: I submit to Your Honor that the constitutionality of this statute on the points in which we raise in this brief has not been squarely argued and considered by this Court and I think you should do so now.
Justice Felix Frankfurter: What do you do with Ex parte Jackson, a very history to which you refer the abolitionist debate in the Senate and the vote against President Jackson's proposals?
Mr. O. John Rogge: Ex parte Jackson involved --
Justice Felix Frankfurter: Was all that it dealt with in that opinion.
Mr. O. John Rogge: Ex -- what --
Justice Felix Frankfurter: He prodded out as though it was a novelty, something new that we've heard.
Mr. O. John Rogge: Well, if I'm not mistaken, that case dealt with a lottery and it was in the course of that that the Court makes the point and quotes the Congressional history on the defeat of President Jackson's proposal for prohibiting the use of the mails, the so-called incendiary literature.
Justice Felix Frankfurter: And draws the conclusion that despite the evidence of the men who made those feature in the Senate, both the Statesmen and jurors had rejected them.
Mr. O. John Rogge: I submit, if the Court please, that on the first two major occasions, which involved statutes aimed at speech, namely at the time of the Sedition Act of 1798 and again in 1835 and 1836, when the Congress was considering the passage of the law that President Jackson asked for against what in old days were called incendiary publications.
When we are dealing with periods of time, where we're involved with the framers of the Constitution and the Bill of Rights and we are involved with their first descendants, men who were in their youth at the time of the Bill of Rights would passed on those first two great occasions, when the question arose as to whether the United States could -- whether the Congress could pass a law involving speech, they stood up and said, “No.”
And to come to Your Honor's question as to libel, I submit that the United -- that the Congress does not have the power to pass a law relating to libel.
This was specifically what was involved in the Sedition Act of 1798, and both Madison and Jefferson.
Justice Felix Frankfurter: Well, of course it doesn't have as to libel.
I said as to libeling the District of Columbia and the Alien and Sedition Laws had provisions about a different from this statute as night from day.
Mr. O. John Rogge: They're in the First Amendment area, if Your Honor please.
Justice Felix Frankfurter: Everything that's in an area isn't the same.
Mr. O. John Rogge: Now, I want to address myself for a moment to the point that Mr. Justice Douglas raised.
And in this connection, I want to draw distinction between the Dennis case and this case.
At least in the Dennis case, you had a statute namely the Smith Act, which made it a crime to advocate the overthrow of the Government by force and violence.
Where is there any statute in this case defining the substantive evil?
Where is their in this case any statute which says that anyone who uses the mail for the purpose of inciting people to immorality?
I doubt whether it would be constitutional, but where is there the very basis for beginning in this case?
You have no statute here as in the Dennis case which defines the substantive evil.
And beyond that, you have no proof that the defendant's publications could bring about any such substantive evil.
Now, lacking those two things, I had assumed that originally that the question which in a shorthand wary of -- referred to as the clear and present danger test, was the question for the jury under the Pierce case, but under the Dennis case, the Court passes on that.
But there wasn't even any basis on that approach for the Court to allow this case to go to the jury.
Now, the Government referred to various cases such as taking, falls off in the park and various other things which I submit were nothing more --
Chief Justice Earl Warren: Mr. Rogge, you may -- you may have five minutes more if you wish to with your argument.
Rebuttal of Roger D. Fisher
Mr. Roger D. Fisher: I just wanted to make this last point --
Chief Justice Earl Warren: Yes, you may.
Rebuttal of O. John Rogge
Mr. O. John Rogge: -- Mr. Chief Justice.
These references by the Government to such incidence relate to local breaches of the peace and would be handled in that way.
In other words, if a man gets up in the public park and takes his clothes off and people gather, I assume this would be a breach of the peace and would be handled in that way.
It wouldn't involve a First Amendment question.
I -- since I -- since Mr. Chief Justice, you gave me five more minutes, I will take another minute to make another point.
We assume in these whole area that somehow or other, publications are going to cause sexual or other delinquency.
The truth of the matter is, we don't know.
As Judge Fuld in the Court of Appeals in Kingsley Books against Brown pointed out in a footnote, he said it is noteworthy that studies are for the first time being made through such scientific skills does exist concerning the impact of the obscene in riding some other mass media on the minds and behavior of men, women and children.
We haven't had them up to this point.
And for Professor Walter Gellhorn suggests on the contrary that rather than publications leading to such kind of conduct, he suggests the Aristotelian theory that maybe it acts as a catharsis and will keep people from engaging in the kind of conduct that society is afraid of.
I submit where we're in an area in the first place where we really don't know about the impact of publications.
And where on the contrary, there is substantial psychological authority to the effect that maybe it's on the good side rather that on the bad, which is also born out by the study of the book, namely, delinquents don't read.
On the contrary they have reading difficulties.
When you take all these up, even if you are going into the clear and present danger area and I submit that the First Amendment means just what it says and was so held, namely, Congress will make no law, but if we get in to that area, you at least should have some basis somewhere for saying this is the substantive evil and these publications have the probability for bringing them about and you don't even have that.