SMITH v. CALIFORNIA

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Argument of Stanley Fleishman

Chief Justice Earl Warren: Number 14 -- no Number 9 Eleazar Smith, Appellant, versus the People of the State of California.

Mr. Stanley Fleishman: Mr. Chief Justice, and members of the Court.

Chief Justice Earl Warren: Mr. Fleishman.

Mr. Stanley Fleishman: Thank you, Your Honor.

The appellant in this case, if the Court please, was convicted and given a 30-day jail term for the possession in his bookstore of a hard covered book entitled, “Sweeter Than Life.”

The facts are undisputed.

There's no question, but that Mr. Smith owned the store and the book was, in fact, in the store.

The courts below, if the Court please, found that the book was obscene and being obscene, there were no First Amendment constitutional questions arising out of the fact that he was being punished for the possession of a book.

The courts below also took the position that the appellant had no right to introduce any evidence on the questions of "contemporary community standards" on what was being read generally, what was in bookstores generally and, what was the standards of the community concerning the discussion of sex in general and that similarly the impact of the book on average person was of no concern.

The court said that if the trial court, the appellate court that is say, said that if the trial court had used a standard that was less than what this Court set forth in Roth-Alberts, it did not matter, that the States were free to set a different standard, one which would reach more books.

And finally, the court held that it was proper for the municipality to take out all scienter that a bookseller could, without offending the Constitution, be found guilty even though he had not read the book and even though he had no notice of any kind that there was anything wrong with the book.

My colleague, Mr. Rosenwein, will discuss all of the problems arising out of the statute in terms of the elimination of scienter, and I will discuss all of the problems concerning the book itself, that would be points two, three, and four in our brief.

Our first point is that the book, “Sweeter than Life”, simply is not obscene.

To put it the other way that it is not the kind of a book that the States or the Federal Government can suppress or can punish a person for the possession of it without doing serious violence to the First and the Fourteenth Amendment.

Now we start, of course, with the Roth-Alberts decision and while much that the Court said there was foreshadowed by prior decisions I think there were two things that were done which were important and which afforded a great deal of protection or should have afforded a great deal of protection to all literature concerning with sex.

The first thing that the Court did was to say, and for the first time I believe, that sex and obscenity were not synonymous.

That sex was an important subject matter fully entitled to all of the protection that you would have if you were discussing politics, religion, or labor relations.

Now this, if the Court please, was a big step forward because the --

Justice Felix Frankfurter: You mean even up to that time it was doubtful whether any reference to relations between the sexes, any recognition of the fact that there are men and women in the world with any knowledge tells an obscene subject was theretofore to be?

Mr. Stanley Fleishman: Theretofore, Your Honor.

I believe that the term, “dirt for dirt's sake” was equated by the trial court with the expression, “sex for its own sake.”

That you couldn't discuss sex for its own sake, it had to be enmeshed with other things.

You had to justify it.

For example, in the Times Film case which Your Honors had just recently, the City of Chicago, tried to suppress the film, “Game of Love” under a stand which says that if the purpose of the book was to arouse sexual desires, it was obscene unless it had sufficient merit, unless it had compensating value.”

Now in Alberts, it was put forward that we didn't have to justify the writing about sex.

That sex was not obscenity.

That you could talk about sex without having to say, “We want to wrap it up in another package.

We didn't have to justify it.

And this we think is the first important step forward and the second thing that this Court --

Justice Felix Frankfurter: Your calling it's true, Mr. Fleishman.

Mr. Stanley Fleishman: Well, I hope it's true, Your Honor.

Justice Felix Frankfurter: I said the falling, if that was true but this is a great big step of human emancipation.

Mr. Stanley Fleishman: Well, it depends on --

Justice Felix Frankfurter: Don't you think the majority has such?

Evidently, they almost agreed to have different thought on the subject, didn't they?

Mr. Stanley Fleishman: Well, I don't think that the Court can fairly look at the body of obscenity laws that existed before Roth-Alberts without recognizing that most courts took the position that the discussion of sex was something to be discouraged, and suspect.

And that unless you could say, “Yes, it has sex but it's justifiable because of the other notions there that a person with such a book was in trouble.”

Justice Felix Frankfurter: I wonder how much of the literature except technical scientific literature would be left in the world if that has been true.

Mr. Stanley Fleishman: Well, this was part of what our problem was in Roth-Alberts.

We were saying just that Your Honor.

We were saying that too many books were under two bigger clouds.

But we put that to a side in any event.

Now this Court did say and I think for the first time, that sex and obscenity were not synonymous and then to emphasize the First Amendment aspect involved in any writing whether it'd be it by way of novel or educational work for material dealing with sex.

And the second one is to say, that no book dealing with sex could there -- hereafter, be found to be obscene unless it went beyond contemporary community standards and appealed to the prurient interest of the average normal person considering the book as a whole.

And this Court again in terms of showing the narrowness of the new rule as the Court understood, it said the door could be opened only the slightest crack for any federal or state intrusion into this field.

It couldn't be left ajar and then in a series of papers shortly after Roth-Alberts, this Court gave depth and width to the rulings in Roth-Alberts.

There was a (Inaudible) case dealing with the magazine which was found to be obscene by the two courts below unanimously reversed by this Court.

There was one magazine, a homosexual magazine vying for homosexuals.

The Ninth Circuit characterized it as cheap pornography, unanimously reversed by this Court.

There was the Times Film case involving the film, “Game of Love” reversed by this Court I believe 7-to-2.

There was Mount case where the court below sought to have a standard which was broader than what was involved in Roth-Alberts.

There the courts below said that it could have offended the sense of decency, propriety, and morality that the work was obscene.

The Solicitor General confessed error and upon remand the case went back to the trial court and the material which the trial court theretofore had found was obscene, on remand he said it was not obscene under the more demanding standard of this Court in Roth-Alberts.

And then finally of course there was the Kingsley case just recently decided.

The short of it is, we suggest Your Honor, that there is now the kind of limitation upon suppression of this kind of speech which is measured in large measure at least by the kind of material which was presented to this Court by the Solicitor General in the Roth case what he designated as hardcore pornography.

This, the Court will recall, consisted primarily of pictures.

It consisted of movies, and the cheap productions which were thought to have no ideas, no ideas at all and with all the deference I think that we must recall what it was that the Court had before it there.

It was a statute only on its face that was being sustained within a framework of the Solicitor General saying that we don't want to reach very much.

All we do say is that we should be allowed to reach something and then giving to the Court the kind of thing that they thought should be reachable and only the kind of thing that should be reachable.

Justice Potter Stewart: That was the Roth.

Mr. Stanley Fleishman: That was the Roth case, Your Honor.

Justice Potter Stewart: Now of course Alberts, the Solicitor General wasn't directly concerned isn't it?

Mr. Stanley Fleishman: That is true, Your Honor.

Justice Potter Stewart: -- in the State of California?

Mr. Stanley Fleishman: But of course the opinion was a single opinion and applicable as to both courts.

Justice Potter Stewart: And only one member of the Court drew a distinction.

Mr. Stanley Fleishman: That is correct.

I think that at least on three occasions the Court has said that there was a single standard.

That neither the Federal Government nor the State could go below this line in terms of suppression.

Now we turn to the book.

We turn to the book, “Sweeter than Life” and what do we find?

I dare say that had this book come before the members of this Court or any tribunal, without the problems of a claim of obscenity, that this simply wouldn't have been a question about it being a protected book.

There's nothing about the way it looks, feels, the way it's printed, or the way it is written which suggests that it can be obscene under the demanding standards of this book.

That the book has important ideas of it, it seems to us to be beyond question.

For example, it has as a suggestion, that female homosexuality is not necessarily inherited.

That it is environmentally caused and that you do well to look at the attitudes of parents and friends and events to understand this.

It tells us that many people who are afflicted with this aberration seek to compensate by amassing money and power and the mistaken thought that this will overcome it or at least be a deficient-compensating factor and finally the book says that revenge on society because of such an aberration is foolish.

Now, I'm not saying, and I'm sure that no one here would say that this is great literature, but how many of the novels that are put out today can go under the label of great literature nor certainly can the Court sit in terms of passing literary judgment upon a work.

But here we have a book which has ideas, the importance of discussing the theme of homosexuality at this time particularly, cannot be denied.

In England for example, the entire sexual code is undergoing a revision and having as its purpose the making of it lawful to permit voluntary partners of adults to engage in homosexual activity without offending the criminal code.

And the American Law Institute in its model code has made a similar proposal.

Now if the people are to act wisely, if we are to fulfill our part in terms of informing our legislators on how we fill upon this important subject, surely the subject as such must be open.

People must be allowed to pick and choose and I don't know how, a novel could be written about homosexuality which would be realistic and meaningful without depicting in some way, the fact that there are sexual relations between members of the same sex and that is, we submit all that we have here.

In terms of the manner in which the sexual scenes or depictions were set forth in the book, I think that without pressing the point too much in this, as Mr. Justice Frankfurter has suggested, you wouldn't have a novel.

You can't find a novel today that doesn't deal and then deal in a great deal of particularity and candidness, with sexual events.

And we suggest that in terms of depiction and representation, this book, “Sweeter than Life” is pallid, that books like Lady Chatterley's Lover, to name just one although later, that these books go far beyond the book, “Sweeter than Life.”

Magazines, even family magazines, Ladies' Home Journal and the Cosmopolitan, they are apparently obsessed with the feelings on the discussion of sex, to say nothing of magazines like Playboy.

But all of this, if the Court please, is what we had in mind when we said that it is contemporary community standards that we must look to.

We should remember that there are films on the market now which weren't on the market 10 years ago.

There are films that are openly shown to everyone which would have shaken our society to its foundation, 25 years ago, but we're here, we accept it.

People look at it without shame, without morbidity.

They consider it candidly and being able to see films, television, plays, novels, magazines, we submit it is just unconscionable to suggest that this book is obscene within this --

Justice Potter Stewart: By films do you mean generally released moving pictures that which meant by films?

Mr. Stanley Fleishman: Motion Pictures such as the Lady Chatterley's Lover or The Moon is Blue which was this Court's concern in the Holmby case.

There's been a movement that I just said --

Justice Potter Stewart: I just wandered what you meant by the word, films.

Mr. Stanley Fleishman: Yes.

I'm talking about motion picture films generally exhibited.

In terms, if the Court please, of the impact of sustaining a conviction in this case, we would like to point out that not only would this endanger literally thousands of books because if we're right, that in terms of themes, description of representations, it is not distinguishable from thousands of books, that means that if Los Angeles can convict a bookseller for the possession of “Sweeter than Life”, it can convict him for the possession of, let's say thousands of books and not just Los Angeles because if our municipality can do it, every municipality can do the same thing.

And also it would re-open all of our problems of vagueness because if we say a “Sweeter than Life” can be obscene, then I decry this Court or any court to draw line that would be meaningful and understandable that would less-be-safe, kill-within-the-line and punish a person for the possession of it without killing thousands of books again, both on the vagueness point and in terms of the number that would be involved.

So that our first point in this regard is that the book simply is a protected book and it does direct offense to the First and Fourteenth Amendment of the Constitution by permitting Los Angeles to punish this bookseller who is not pandering.

There's no question here of any special appeal.

This book was sitting in a book stock shop, in a bookshop where there were thousands of other books, we say that that does grave offense to the First and Fourteenth Amendment.

Justice Potter Stewart: Is there anything in record that show what was the nature of thousands of other books?

Mr. Stanley Fleishman: We reach now to our second point if the Court please, and that is we did try very seriously to introduce evidence on what we deem to be a crucial issue.

This Court having given us a defense, namely, that if our book does not go beyond contemporary community standards it could not be condemned, we sought to avail ourselves of that defense and we brought in expert witnesses.

We brought in for example the book review critic of the Los Angeles Times who testified that he read some 30 books a week.

That he was familiar with contemporary community standards and who was about to tell the Court how this book compared with the books that were on the market generally and we were cut off and the trial court took the position that the book spoke for itself.

It had to be measured only by what it said.

It couldn't be compared with other books and in this the trial court was affirmed by the Appellate Department.

The Appellate Department went back to the old case of Wepplo which preceded Alberts and there it was said it doesn't matter if there are the same books or sexually more provocative books on the market generally in the area.

Whether the book is in the library is of no concern, all of this was ruled out both on the trial court and by the appellate court.

In this we say we were denied due process of law, if the Court please, because certainly if we had evidence to present on an issue and if one of the issues before the Court was, does our book go substantially beyond contemporary community standards to deny us any opportunity, not just the opportunity by one way, but to deny us all opportunities to show that our book did not go beyond contemporary community standards, to show that our book did not have a substantial tendency to corrupt or deprave, to show that our book considered as a whole could be read candidly and openly by the people.

That it did not appeal to a prurient interest, it's denied to us, we suggest due process of law, and again it is denied to us free speech because unless we're given the opportunity of presenting evidence on the fact that our book does not go beyond contemporary community standards a trier of fact who may not be informed about contemporary community standards may believe that our book is not constitutionally protected and punish a person for the possession, when in fact it is a constitutionally protected book.

The trier of the fact here for example, Judge Pope, apparently was particularly concerned with the plot.

He was disturbed by the notion that there was a woman who left her husband to take up with another woman.

This bothered him.

It appears that he was not familiar with the literature in this field.

It's no reflection upon and I wouldn't expect him to be as well read as a book review critic, but surely he should have known before he passed judgment that there were hundreds and hundreds of books including hundreds of novels which dealt with this theme and which dealt with this theme as candidly, as openly, and as frankly.

And that without this knowledge, the judge was unable to pass intelligently upon this question and in fact reached the book which had no basis and should not have been reached.

Justice Potter Stewart: Under the California law of the defendant could have been tried by a jury in this case, had he not waived, could he?

Mr. Stanley Fleishman: We would have had the same problem Your Honor because --

Justice Potter Stewart: Did he wave the trial by jury?

Mr. Stanley Fleishman: We waived the trial by jury.

Justice Potter Stewart: To which he would have had --

Mr. Stanley Fleishman: We had the right and we waived the trial by jury in that case.

I might say parenthetically though, Mr. Justice Stewart, that we have a problem in this type of case.

There were originally 19 counts in this case, and there were many books.

And if we had tried this case to a jury, we would have been there for a year because as it is and it shows up in the record, that the trial court took the book home and he read and he reread it so that we did have the trial for jury and we're not making that point, I merely say that we sometimes buck in a situation such as we have here.

Chief Justice Earl Warren: Mr. Fleishman, I understood Justice Stewart asked you if there is anything in the record to indicate the character of the other books in this bookshop.

Mr. Stanley Fleishman: In this book shop, I do not believe so.

Chief Justice Earl Warren: Yes.

Mr. Stanley Fleishman: I had thought the question was as to the character of the books generally.

No, in this bookshop there was no showing or an attempt to show that this book -- this bookshop had anything but the normal kind of books that you would find in a Brentano's or any other bookshop.

There was no attempt to show that there was any catering to a special class or that there was a predominance of one kind of book over another.

I do believe that it came out in the record that there were magazines such as Life, Vogue, and Cosmopolitan in the totality.

He had thousands of books and magazines.

It was a large bookstore.

I think the police officers testified generally as to the character of the store.

And it appeared to be good-sized bookshop, without any emphasis on any particular kind of material.

Now the third point that we have raised and I will discuss is the standard that was utilized by the courts below.

We have said that it was essentially a Butler, (Inaudible) and Patrick standard, however, you want to formulate it, but what seems clear to us is that the trial court took the position that he was essentially a thermometer.

That he was there for the purpose of measuring the heat of the book.

When we suggested that the test of this Court was it had to be the impact of a material on an average normal person, he said no.

He said its average normal persons who determined the impact upon use in particularly susceptible persons and this came through again and again.

He said for example that he was depressed by the reading of the book.

We suggested that that may be, but how does that make it criminal?

How does that prove that it goes beyond contemporary community standards that appeals to prurient interest and then he went off in the direction of well it depressed me because I may -- I'm vaccinated.

I've lived my life and we have to think of how it would affect the young and the unprotected.

And it was this in this regard, I think, that the Court, the appellate court's determination that it was free to fashion a standard, less demanding than this Court's standard in Roth-Alberts must be understood.

And it was interesting in another regard where the appellate court apparently tried to read out the notion of the book having to go beyond contemporary community standards before it could be reached as an obscene book because Judge David said that if the people wanted to they could give -- they could redefine these words which are so commonly understood by the people.

And by that I understood him to be saying that obscene has a meaning, an ordinary meaning and the legislature has not changed it.

Our position was throughout the case that in effect this Court in Alberts had read into every obscenity statute at least the proviso that no books could be condemned as obscene if it did not go beyond contemporary community standards, if it did not appeal to prurient interest of the average person considering the work as a whole.

Again it should be recalled that here the Appellate Department did not try to justify in any legal sense at least, the determination that the book was obscene.

There was no discussion of the book when we suggested that the wrong test was applied.

The Appellate Department said, “Well, it doesn't matter.

We'll say it's obscene under any test.”

And then we had the problem of the easy labeling that Mr. Justice Harlan properly warned against in terms of just giving a stamp on it.

So that we in effect and in truth, in this case, find ourselves with a defendant who was given 30 days in jail for having in his possession a book which has as its major crime, the fact that it discusses a theme of lesbianism and that it does so with some degree of realism and that is all.

The crucial issue here it seems to me, is not so much whether the book goes beyond contemporary community standards or at least the issue below seems to be not whether it went beyond contemporary community standards, but whether it was good, whether it was right to have this kind of discussion going on and it was because the trial court felt that it was not good, because the trial court thought it was not right, that he found it to be obscene.

Whether we think it's good or bad though, of course has nothing to do with the matter.

We may personally prefer one way or the other, but that is not the test and the test has to be under the appropriate test.

If we were to apply this Court's ruling in Roth-Alberts it would be manifest that this book is as far away from being obscene as one could imagine and still be up before this Court at least to have with the defendant.

Chief Justice Earl Warren: Mr. Rosenwein.

Argument of Sam Rosenwein

Mr. Sam Rosenwein: Mr. Chief Justice, may it please the Court.

The other aspect of the case is the exclusion of all scienter requirements from the ordinance.

The court below held that this statute was to be equated with those public welfare offenses which exclude all requirements of the intent or scienter and punish proprietors or individuals who have violated the law without regard to any question of intent.

These public welfare offenses the court referred to dealt with the sale of adulterated food, the sale of dangerous weapons, the abatement of some public nuisances, the sale of narcotics, and so forth.

After having reviewed those cases, the Court said, “And so with books.”

And so the Court held that the -- a proprietor of a bookshop could properly be convicted for possessing an obscene book even if he had no knowledge of the contents or the character of the book.

The Court said, “Unless some higher court told it otherwise, they would not permit the proprietor of a bookshop with impunity to adopt that poetic phrase, ‘where ignorance is bliss, it's folly to be wise'.”

Now our position with respect to this statute or at least the issues presented are that the statute thus construed and applied tends directly to abridge, to invade the areas of speech and press that it creates as to an innocent person again those indefinite standards of criminality which were mooted in Alberts and Roth and bring all of the problems back once again.

Justice William J. Brennan: What was the other (Inaudible) criminality of the decision (Inaudible)

Mr. Sam Rosenwein: Guilty knowledge.

Justice William J. Brennan: Guilty knowledge of what?

Mr. Sam Rosenwein: Knowledge that the book is obscene.

He would have of course first shown to have had knowledge of the contents and from that, inferences might be drawn, or proof would have to be made.

At least, he would have to have the opportunity to say, “I was honestly ignorant of the contents and I did know that it was obscene.”

That is what the Court ruled out, scienter is guilty knowledge.

Justice William J. Brennan: Is the minimum at least as much taken through the reference?

Mr. Sam Rosenwein: No.

They're not required to under the statute.

Under the statute the Court has held --

Justice William J. Brennan: No, I mean what I'm trying to -- what you think the State should have to prove?

Mr. Sam Rosenwein: I would say as a minimum they would of course have to prove that he had knowledge of the contents of the book.

Justice William J. Brennan: In other words that he had read it.

Mr. Sam Rosenwein: Had read it.

Well as to that, I would say they sometimes prove that knowledge of contents or character more sometimes by admission and sometimes by conversations and things of that kind do occur but I think generally speaking that he had read the contents of the book.

Justice John M. Harlan: You were required two things actually, weren't you?

Knowledge of the contents of the book and further knowledge that based on his knowledge of the contents, the book was obscene and that he knew it.

Mr. Sam Rosenwein: That is right Your Honor.

Now of course it's up to the State, one State have a provision for scienter, I would say in the event the burdens of proof were shifted, presumptions, rebuttable presumptions created that would be of course a different problem from a constitutional viewpoint.

But when the State says we're not going to permit you to even testify as to whether or not you are honestly ignorant, then we're not going to require of any proof of any kind.

In other words you're the absolute guarantor of the sexual purity of the book.

Justice William J. Brennan: Well there's a record here, it seems he had no knowledge whatever of the contents, what is the record –-

Mr. Sam Rosenwein: The record he -- they prove nothing.

They just put in the book.

He took the stand and testified he's a man of 72 years of age.

That he had not read this book.

He hadn't read it for sometime as a matter of fact and he was in the business of buying books.

He ordered generally from New York, from the east of circulars, new books, publishers, very often sent to him without an order if publishers do that.

They just send books out and did what the normal bookseller does.

Justice Potter Stewart: Under your view a man who couldn't read could sell anything with impunity is that right?

Mr. Sam Rosenwein: Well, no, that isn't quite accurate Your Honor.

I mean there are different ways of proving guilty knowledge.

I would say also and we would ready to concede that if there was a reckless disregard of the facts which a person should have known in some way I would say that that too might be included in the area of scienter.

I thought the Court's reference to a rule of conduct where ignorance is bliss, was really dealing with the person who was guilty, in other words, recklessly disregarding the facts.

That isn't the situation that we're posing here.

We're dealing with a situation where the person admittedly is innocent.

He has no intent.

He just doesn't have knowledge of the contents of the book.

He's in business of buying books, selling them and he has thousands of books in his shelf.

Justice William J. Brennan: How do you raise that issue?

Mr. Sam Rosenwein: Of -- by motions, demurrers and so forth and all the way up to statement on appeal.

This is the law.

I don't think there's any jurisdiction in the law.

Justice William J. Brennan: The right to a federal question.

Mr. Sam Rosenwein: Oh yes all the way through.

Now it's -- the first problem you have when you deal with an innocent proprietor of a bookshop is this.

If you're going to ask him, if you say to him, “Regardless of all the reasonable precautions you take, regardless of how much good faith you take in trying to determine, to get rid of and not have any hardcore pornography or obscenity in your shop, no matter what you do, nevertheless you will be guilty.“

The inevitable tendency of that kind of a direction is to stop the flow of books because the books are either going to save himself -- I better get out of this business entirely, or else I had better get as far as away from books dealing with sex as I possibly can.

It, of course, becomes an awful weapon in the hands of police officials and of private censorial groups whom now can say to him, “Either this book gets off, or you'll be spending in jail once a week at least.”

Moreover, he's not in a position.

He's the weakest in the whole hierarchy of people involved in the circulation of the press to defend the book.

He can't afford to take anyone particular book on.

And as a matter of fact this Court's decisions in virtually all areas of speech, press and assembly whenever appeal sanctions have been visited on an innocent person whether it was enjoining an alleged subversive organization that he knew nothing about, the inevitable tendency in all these cases is to immediately frighten people away from joining, immediately frighten them away from getting books, from speaking.

And so in this case, too, there can be no doubt that this would be the inevitable result because he cannot.

It is an absolute impossibility to read every single book and then having read the book to say, “Does this individual book appeal to the prurient interest of the average person measured by contemporary community standards considering the dominant theme of the book taken as a whole?”

You have to do that as to every book.

And if, as a matter of fact the test in the state court is perhaps not the same and there has been some differences as to whether it is or not, he must then say, “to be on the safe side, does the book taken as whole and measured by the average person and applying contemporary community standards, have a substantial tendency to corrupt and deprave him by arousing lascivious thoughts and lustful desires?

I don't think I have to press the point that no bookseller can possibly assume that burden, no person could.

Justice Potter Stewart: Now this what we have here is an ordinance of the municipality of Los Angeles?

Mr. Sam Rosenwein: That is right.

Justice Potter Stewart: Alright.

This California State statute is differently worded and does require scienter, is that it?

Mr. Sam Rosenwein: That is right.

Justice Potter Stewart: But it doesn't require, does it, that the State prove all these things you're telling me?

Mr. Sam Rosenwein: I think what Wepplo has decided that we've never been happy about it.

I would like someday to talk it over again with the Court, but what it did say was this, “The statute requires a proof of lewd intent.”

Now that maybe a little difficult to prove, but it, like everything else, is not entirely impossible.

For example, if the cover of the book has a suggestive picture and a suggestive title, well that might at least make out a prima facie case which would then put the owners, the defendant to read by it and in the fact they -- they suggested that lewd intent should be true.

There is no doubt California has had this, a provision for over a hundred years and prosecuted these obscenity cases.

I don't have to tell your Court to say, “It's sometimes successful because only two years ago Alberts was affirmed.”

That was a 311 State conviction.

Now --

Justice Potter Stewart: Would it be enough -- would it be enough under the State's statute if the seller or the bookseller was put on notice that there was a claim by the prosecuting officials that the book was obscene?

Mr. Sam Rosenwein: Well, I imagine that under Wepplo it probably would be considered fairly well along the line and approved.

We would argue I think that would.

I think that to be candid I would I say I think it's not enough to just say, “I think the book is obscene without something more to indicate a real knowledge and a real guilty knowledge of as for example, supposing the man said he was astonished in the light of that it's being published today to have the police officer or the police chief say so.”

But I think this would create questions of fact at a trial and the jury to properly determine whether or not scienter was there.

That's all that it amounts to.

Justice Potter Stewart: In other words under the state statute it would be incumbent on the prosecuting officials to give notice to the bookseller that this book of Mr. Smith in our judgment is obscene and unless you get it off your shelf we'll have to prosecute you.

Mr. Sam Rosenwein: It isn't incumbent on them to do it that way.

Justice Potter Stewart: But that's enough, is it not, or is it, to give him knowledge -- guilty knowledge of the same thing.

Mr. Sam Rosenwein: Under Wepplo that might be enough.

Now the second point that we raise beside the invasion of the First Amendment rights or invasion of the free speech in the assembly is the fact that we have the problems once again that were up in the Alberts and Roth.

Now in Alberts and Roth, you were dealing in both cases with situations involving scienter.

The instructions had to be given to that effect in the federal court.

We were up from the State of California Court on lewd intent.

I don't believe that there was any opinion that didn't refer to the fact that this was catering, disseminating, pandering, forcing this material is out for, material on uninvited -- on people who hadn't asked for it much to their -- almost like an assault.

When Justice Brennan wrote his decision which he cited a number of decisions that dealt with the problem of vagueness, the argument was made that the statute was vague as defined and cited a whole group of decisions to show that was not so after the definition.

Every one of those dealt with the intentional wrong-doing.

The man who knows what he is doing.

And as to such a person, he cannot be heard to claim that the statute is too indefinite and too vague, but what happens when you apply such a statute, construe and apply it to a person who's honestly ignorant of the facts?

Well in such a case, what you're doing is setting up a standard that for a criminal statute, it seems to us, makes it once again too vague, too unfair.

He doesn't know what is or what is not the line?

It's all right to say to one who doesn't know, who's in the business, who's catering, trying to exploit that prurient interest to say to him, “Well never you mind the innocent person you would always know what obscenity means.”

But once you begin to construe and apply it to an innocent person, I think you will then reach that vagueness.

And it is not a problem that has really been settled and I'm talking of the indefiniteness but only recently, the Nebraska Supreme Court invalidated its own obscenity statute under its own constitution after it had been asked to put the interest of the Alberts' definition, this Court's definition on its statute and after putting that impress on said, “We regret it still remains vague under our Constitution” and invalidated its own law.

Certainly then as to an innocent person, we would assert that the statute -- the ordinance here is also constitutionally in front.

Now, if it be a question of balancing, if it could be said that well even so with all the inroads, nevertheless the State has an interest, a legitimate interest in protecting the public morals, I would, without attempting to cavil as to whether that is so or not safe, that in this case under this situation, it might be argued that it fairly minimal because as I said before, this is not the thrust, this is not the unwanted material.

This isn't even a newspaper on in front of your house everyday which you are always compelled to read.

This is a book shelf where people don't have to go in if they don't want to.

Therefore, the extent of corruption of public morals from an obscene book from an ordinary bookshop would seem to be fairly minimal.

But admitting that there is some state interest, I would like to point out besides this definite, it seems to us inroads of the constitutional protection, the unreasonableness of the thing, the -- the harshness and the oppressiveness of the thing that -- that seems to us outweighs whatever alleged State interest there may be.

In the first place, from the very nature of things, if this is a policing problem, let us say, the State – the municipality must say to it's a bookseller's, look here, we want some help on this question of obscenity.

Now if few people will make a good faith effort, if you will honestly try to get rid of your obscene books, we won't prosecute you.

But here the State says, “We don't care how much you try to get rid of obscene books no matter how much good faith you use, we going to treat you the same as any lawbreaker.”

Now that doesn't help to fight the problem.

It seems to us it drives them in the opposite direction and that doesn't seem to be a very reasonable thing to do.

Now if there's been an equation with public welfare offenses, but when I go in to buy a piece of meat, a pound of meat, I have no idea whether it's tainted or not and I go home and jot it down and I'm absolutely helpless.

The public is helpless in those cases.

We have tons of books.

We've entirely different situations.

When I go into a book, I don't rely on the books though.

I don't think very many people do.

And if I may browse, I make my own decision.

I take the book home.

I may read part of it and discard it.

I'm not helpless with respect to these books -- book proprietor.

I make my own determinations and the equation to other public welfare offenses which do not involve the important basic societal interest like free speech, it seem to us to be somewhat arbitrary.

Moreover, there's a stigma to be called a smut dealer, a merchant in obscenity and to have this put on an innocent man, seems to me to be a savage, immoral thing to do, under the guise of protecting public morals.

It's something you can't eliminate.

And as to difficulties approved, I would like to say this that since specially decision in this Court, that Connecticut, North Carolina, Wisconsin, and many a number of other states has all put in requirements of a lewd intent, of guilty -- of guilty knowledge of scienter and have written, by the way the Supreme Court of Connecticut has just said that this they found a salutary provision in marking the line between due process, the procedural due process and substantive due process.

The American Law Institute rejects any notion of a conclusive -- conclusive presumption of this kind.

California has followed it.

In Ireland we called attention to a very recent decision in which this Court's decisions in Alberts and Roth were all reviewed and special emphasis was placed on, in freeing a person charged with exhibiting an obscene and indecent show which was the Rose Tattoo by the American dramatist Tennessee Williams was placed on the intent, on the failure of any proof of intent as saving freedom of the press and speech.

It's there under a fairly different constitution which permits more inroads to speak than here.

Justice Potter Stewart: So the Connecticut decision you would agree.

Mr. Sam Rosenwein: Yes it is.

It's the State against Sule and I think it's on page 34 of course, in the index as well.

And we point out in our brief finally that in California, the State has had this rule of proof of lewd intent for a hundred years and had no difficulty and as a matter of fact in many other areas in the field of bigamy, even with possession of narcotics.

Under the State California Supreme Court rules, you have to prove possession of knowledge of the narcotic character and then there has been no difficulty in proving it in those cases.

Nobody is an absolute guarantor and it seems to us that frankly on a case-to-case basis, there's no more difficulty in proving knowledge or a state of mind which is being proved everyday as we know, then perhaps approving the receiving stolen goods and knowing that the goods were stolen.

There are problems but they are met every day and there will be no reason why on the case by case basis, it could not be just as successful.

And finally, if it's immoral books they want, if it's personal wrongdoers that they want, they should go after them and not make statutes so wide as to encompass absolutely innocent persons and create dangers for the exercise of press and certainly we reserve the rest of our time --

Justice John M. Harlan: (Inaudible)

Mr. Sam Rosenwein: I wouldn't know off-hand.

I thought they have enough - I really don't know, (Inaudible)

Justice John M. Harlan: (Inaudible)

Mr. Sam Rosenwein: Oh but it's not in the record.

It's not in the record.

There is and we designate if he had asked a running with the law before but at the same time one or more (Inaudible) I would like to say this, Your Honor that in Los Angeles perhaps dealt with that periodically it seems to be every three or four years the police go through the department stores and make arrests for reasons that seems to take up but I think if you were to look into the history of Los Angeles see that every three years there's a number of arrests made and there are a number of cases as to why (Inaudible) I don't know, but on this record and this may not (Inaudible).

Nothing is available, there's no record, no offense or felony was sitting over the (Inaudible)

Chief Justice Earl Warren: Mr. Arnebergh.

Argument of Roger Arnebergh

Mr. Roger Arnebergh: Mr. Chief Justice and members of this Court, if it please the Court.

First of all I should reply to one or two points that have been made here.

It's stated that the ordinance would result in closing many bookstores.

I would like to mention and the record shows the court's taking judicial knowledge over these municipal courts.

That this ordinance has been on our books in Los Angeles since 1939 and it has not been amended in any respect that affects this, and we still have the great many bookstores in Los Angeles.

With respect to the types of books that were sold, --

Justice Potter Stewart: May I ask you this?

Mr. Roger Arnebergh: Yes.

Justice Potter Stewart: In this case, did the prosecuting officials had an option to proceed under the ordinance or under the state statute?

Mr. Roger Arnebergh: Yes, Your Honor.

We have an option.

That was one of the points that is involved in the State is whether we should prosecute under state law or a municipal order -- ordinance and it was held at -- we have the right to prosecute under either as our municipal ordinance is more restricted than the state law which under our California Constitution within a chartered city we have the right to do.

With respect to the type of books, I would like to state first this bookstore did have all types of books, but the significant thing is that as shown on pages 35 and 36 of the transcript of record this particular book and others -- well this particular book was segregated in a section that juveniles were not allowed to enter and that the first duty of one of his clerks was to keep juveniles away from this particular section.

Chief Justice Earl Warren: You cite that as there's being an inference against the --

Mr. Roger Arnebergh: No, I'm merely --

Chief Justice Earl Warren: -- (Inaudible) in his favor.

Mr. Roger Arnebergh: I merely cited it in answer to a question that was asked and Justice Stewart asked of counsel.

Chief Justice Earl Warren: I see.

Justice Potter Stewart: You don't differ on your construction of the ordinance, don't you?

Chief Justice Earl Warren: No sir.

Justice Potter Stewart: You concede that it does not require any knowledge of the contents of the book.

Chief Justice Earl Warren: Yes, we concede that very specifically.

That is the -- that is the primary distinction between a state law and our ordinances.

We very definitely recognize that.

And the dissent was based upon that distinction and the dissenting judge as did all the judges specifically found that the book was obscene, but the dissent was based on the fact that we could not make a more restrictive law than the state law and the majority held to the contrary and of course that is binding and it's been a question of state law.

Now directing our question to this distinction, between the state law and our ordinance, the question that's definitely presented is guilty knowledge, a specific intent, a necessary element of a law prohibiting the sale of an obscene book.

Now, it's well established that the State may, in the exercise of its police power, provide that he who shall do a prohibited act, so do it at his peril and that good faith or ignorance is not a defense.

That's the first time that was specifically before this Court I believe as in the case Shevon versus Carpenter, a Minnesota case and I think these cases are pretty well cited in our brief and in the opinion of the Court.

It's been reaffirmed by this Court in many, many instances.

It's been argued here that the buyer may select the book himself and therefore he is under no hazard, but of course we also have laws prohibiting the sale of narcotics to a willing buyer.

Print this transcript Transcript: 

Argument of Roger Arnebergh

Mr. Roger Arnebergh: -- but because the buyer can read the book but will be recognized among the legislative intents was that of protecting not only the buyer, but also society from the evil of the flow of obscene matters.

The principle that knowledge is not required is again reaffirmed in the significant case, United States versus Balint and I'd like to read a bit from that if I might because of the appropriateness of the -- that case involved the unlawful selling of opium.

Now the lower court had sustained the demurrer because the complaint did not charge specific knowledge.

And the -- this Court reversed the lower court and stated that knowledge was an element in this type of case, it was a question of legislative intent and that the legislative intent had been clearly demonstrated that knowledge was not required, then knowledge was not necessary.

Justice John M. Harlan: Have you had a case through research to see how many statutes there are of this kind, obscenity statutes that don't require scienter?

Mr. Roger Arnebergh: Yes Mr. Justice.

There's a great many.

It's a very broad field, your Pure Food and Drug --

Justice John M. Harlan: No, no.

I mean in the Obscenity Bill.

Mr. Roger Arnebergh: Oh, pardon me.

That I could not answer.

I know there are others in addition to ours, but I don't know how many there are.

I would not be in the position to state that.

The matter was discussed at the recent convention of NIMLO which the National Institute of Municipal Law Officers which just took place last week and I might state this was the major problem with which we were all concerned.

And I know that there are the cities that had such an ordinance, it was discovered there, but I couldn't say specifically how many do, or how many do not.

As an indication of the broad field to which this thing -- this has been applied, this principle that you do not need to have specific knowledge is the case of Williams versus North Carolina.

That involved a -- the validity of a divorce and a bigamy prosecution and in that case, the Court stated “A man's faith often depends as for instance in the enforcement of the Sherman law on far greater risks that he will estimate rightly.

That is, as the jury subsequently estimates it to some matter of degree.

If his judgment is wrong, not only may he incur a fine or a short imprisonment as here, he may incur the punishment of death.”

Justice Potter Stewart: Now that would be -- that language will be quite relevant if here -- they were showing that Mr. Smith knew the contents of the book and then went ahead and took his chances on a prosecution after knowing it, but is that relevant to the man who doesn't know what's inside the covers of the book?

Mr. Roger Arnebergh: I think it is relevant in this respect that it shows that absent – it shows that there is one step along the way.

It shows that guilty knowledge is not required.

Now, in answer to your specific question, you have a directly analogous situation in connection with your Pure Food and Drug Act and things of that nature and in the case of Dotterweich for example 320 U.S. 277, it was specifically held there that an officer of the corporation who had been convicted, that conviction could be sustained although he had no personal knowledge of the matter at all.

In that case, this Court stated “The now familiar type of legislation whereby penalty served as effective means of regulation such legislation dispenses with the conventional requirement of criminal conduct, awareness of wrong doing.

In the instance of the larger good, it puts the burden of acting as hazard upon a person otherwise innocent, but standing in a responsible relationship to the buyer or to the public danger, pardon me.”

Now, my contention is -- our contention is that here, you have a person who stands in a responsible relationship to a public danger that of the indiscriminate distribution of obscenity.

And the same principle is of course then applied to short wake and to numerous other matters such as billing and safety, zoning and things of that nature.

The principle that guilty knowledge is not a necessary element in a -- to hold a person criminally liable for a violation of law, has been sustained in cases involving constitutional rights in addition to those of the Fourteen Amendment which of course protected, in this case.

For example, the first right mentioned in the First Amendment to the Constitution is that of a freedom of religion.

But yet in the Reynolds case, here a conviction of bigamy was sustained despite the fact that the defense was that he thought he was doing right, and it was one of the principles of his religion and with respect to the Second Amendment.

The Second Amendment provides that the person's right to carry and to keep and bear arms shall not be infringed.

Yet, we have laws with respect to carrying concealed weapons or even possession of certain types of weapons such as machine guns.

He may have no knowledge of the law, but he's guilty nevertheless.

Justice Charles E. Whittaker: But it is the (Inaudible) knowledge of the law or knowledge of the content that made (Inaudible)

Mr. Roger Arnebergh: Well, it is a question of him having knowledge that the thing that he sold was in violation of the law.

In other words, he knows that he sold a book.

He had a book and he knows that he sold the book.

Now, the question that comes up, do we have the right to require him to know what he is selling, or can he sell anything that he wants indiscriminately on the basis he didn't know what it was.

That is the question.

How far can the city or can the state or have the public go in protecting itself from this sort of activity.

In other words --

Justice Charles E. Whittaker: As far as I understand, does it require a knowledge of the charge of the --

Mr. Roger Arnebergh: The State law does, our law does not.

Justice Charles E. Whittaker: But the ordinance does not.

Mr. Roger Arnebergh: The ordinance does not.

In other words, this presents the question referring to -- to food and drug as the closest analogy.

Is it more important for society to protect the well-being, of the physical well-being of its members or the mental well-being of its members or as Bishop Fulton Sheen recently expressed it, “Why should we not keep poison away from minds as we keep it away from stomachs?”

On considering this question it's important to recognize that probably 50% or more of our mental -- our hospitals are now occupied by cases from mental disturbances to some kind or another.

And believe me it's far easier to pump poison from the stomach than poison from a mind.

Obscenity may affect the hearts and minds in a way never to be undone.

Unfortunately, by the case of Brown versus Board of Education of Topeka, it has now been clearly established that that which affects the hearts and minds of its people is just as much a matter of concern to the State as that which affects their bodies.

Now, of course the problem presented in this case far transcends the importance of the evil that that particular book might do.

The defendant here as in all similar cases, contends that he doesn't know what he sells.

That he doesn't read the books that he handles, that his business is so big that he couldn't possibly read all of the books that he sells.

Is bigness a defense?

If we had to prove that the defendant knew that the book that he sold was obscene then he would be setting the standard, not the community, not the average person.

To be the law that bigness is a defense, that he doesn't have to read, he doesn't -- if he hasn't read it.

He doesn't know what it is.

He's not liable?

Then the bigger the dealer, the less responsible that you would have, while a small dealer, could probably be reasonably required to have read the three or four books that he might handle.

If this be the -- if this be the defense, then the very same defense would be available to every large dealer regardless of how vile, how contaminated, how filthy the material that he would handle.

I can not believe that it is the law that bigness, mere bigness is a defense because it prohibits -- so -- his business is so large that the man can't know what he's doing.

He has to have the responsibility.

These same arguments were made at the beginning of the Pure Food and Drug Act and it was said that nobody would dare to handle Pure Food but we still have -- we still have foods stores.

The only difference is that now, the food that they sell is pure.

Now, free speech has been very much discussed in this case, but does an ordinance which makes it illegal for a bookseller to possess or sell an obscene book really involve free speech?

The quick answer of course is that obscenity is not within the area of constitutionally protected speech of the press, but the importance of the overall problem is such that I don't think we should stop here.

The commercial exploitation of the morbid and shameful craving for materials with prurient effect requires that we go beyond this.

And in studying the various cases dealing with free speech and the difference -- different opinions, I've tried awfully hard to try to reconcile what is the underlying cause of it all.

The nebulous principle of law that would reconcile them all them together because I'm sure all the decisions, all the different opinions are striving for the same thing that we're striving for, that of protecting free speech without licensing obscenity.

And I'm unwilling to accept the premise that this cannot be done, that there is necessarily any inherent conflict between our objectives of preserving free speech, and preventing commercial exploitation of obscenity.

So I really put -- so I went back and did a lot of reviewing even since our brief was written, we are then so close to the case that we probably didn't look at the cause for the trees and this -- and in this connection --

Unknown Speaker: Excuse Mr. Arnebergh.

Mr. Roger Arnebergh: Yes.

Unknown Speaker: Do you have any (Inaudible)

Mr. Roger Arnebergh: Yes sir.

Unknown Speaker: And they were ordinances (Inaudible)

Mr. Roger Arnebergh: The ordinance specifies the places at which possession is illegal, and of course we are here concerned with a situation where a man possessed it in a place where the books were sold.

Now, if you read all of the sections of the ordinance, the purpose of it is, to keep it out of possession of places where either at the -- with the commercially exploited as here, or where it could serve as an immediate inducement to an obscene act that the book might stimulate.

Justice William J. Brennan: (Inaudible) copy of this book.

Mr. Roger Arnebergh: If it were --

Justice William J. Brennan: (Inaudible)

Mr. Roger Arnebergh: If it were to be construed as shall I say, technically or closely as that, I could state this, as a city attorney, we have never construed in that manner.

We -- I've always construed -- as a matter of fact --

Justice William J. Brennan: Exceptions?

Mr. Roger Arnebergh: There's no exception.

It would be a matter of -- a matter of shall I say discretion in -- and I'm sure that the courts would read into it as they have in many other laws, reasonableness there.

But anyway, we are here concerned with -- we are hereby concerned with subsection two, if I recall the correct subsection, and which has to do with having it in a place wherein -- in its possession, in a place where books are sold or selling it.

And if the other subsections are bad, that is a matter that isn't vital to this case but as I stated the enforcement policy has never been to do other than try to obtain its objectives.

Chief Justice Earl Warren: But I suppose if scienter is required under this section, it wouldn't be required under the other?

Mr. Roger Arnebergh: No.

But it might well be that you -- that of course, it's merely the possession of an obscene work might -- might not be reasonable.

I don't know.

I'm not prepared to argue that at this time because I haven't analyzed all of the cases involving that and it is not involved in this because in this particular subsection, it's a commercial exploitation and that I think is a key to the whole problem.

In this connection, it's interesting to briefly review the -- shall I say the cases that are the landmarks on the path of free speech.

From the very beginning, the cases have involved the speech of the defendant who was attempting to personally organize or personally carry a banner or personally picket.

For example, Herndon versus Lowry, that involved this personal speech of the defendant who was attempting to organize.

Watkins versus United States involved the right of the defendant to, with respect to his taking an oath.

Sweezy versus New Hampshire involved the right of the defendant to personally refuse to answer questions.

Hague versus Committee for Industrial Welfare involved the right to have an injunction to prohibit the plaintiff -- the plaintiff in the injunction case Hague, the injunction to restrain him from exercising his personal rights to distribute handbills setting forth his personal views and Helvering versus Leonard, involved in anti-picketing ordinance.

Defendant was personally picketing and he was arrested.

In Carlson versus State of California involved an ordinance prohibiting display of banners by pickets and the defendant was personally picketing and personally carrying a banner.

In Bridges versus California, a contempt case, involved a letter or telegram that Bridges had personally sent.

And the Times Mirror, the other defendant, involved an editorial personally put in their paper.

Now, there's too a great distinction between the exercise of free speech and engaging in commercial activities.

Schneider versus Irvington involved the right of the defendant to personally distribute handbills in the street.

Justice William J. Brennan: And that must be (Inaudible) the defendant to engage commercially in business (Inaudible) and that it was necessary to come (Inaudible) does not (Inaudible) either to someone not (Inaudible)

Mr. Roger Arnebergh: It has never been so construed and I don't think it would be reasonable to construe in that manner.

Now, what we're concerned with here and this is the crux of the whole thing, we are concerned as is -- I think every city in the country with the controlling the commercial exploitation of obscenity.

Justice William J. Brennan: (Inaudible)

Mr. Roger Arnebergh: If the ordinance should be redrafted, that's one thing but the point of it much --

Justice William J. Brennan: (Inaudible)

Mr. Roger Arnebergh: Well, we think that it does by our construction of it, we think that it does, but it -- but it is possible to read so it does not.

Justice William J. Brennan: Do you have any case representing you with this (Inaudible)

Mr. Roger Arnebergh: We do not have any State Court decision where we have -- or any -- we have never prosecuted to the best of my knowledge.

And I've been in the -- I was in the Criminal Division since 1941 and I've been city attorney since 1953.

To the best of our knowledge, we have never prosecuted under Section 2 anybody other than the owner or possibly the clerk who was actually selling in what was actual sale made and that is the way that we would administer it.

Now, if it's too broad in its terms that of course is relatively a minor matter.

This particular defendant in this particular case isn't our major problem.

Our major problem is getting some decision should we say or an opinion that can enable us to fully protect free speech and at the same time stop the commercial exploitation of obscenity.

That's what we're -- that's the reason that we're here.

That's the thing we're concerned about and of course, there is a clear distinction between commercial exploitation.

As I started to say about this case in New York, they prohibited the distribution of handbills and the Court stated that they couldn't do this but they clearly recognized the distinction stating, “We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulations as the ordinance may require.”

It was the prohibiting of passing out handbills setting forth a person's personal views that was unconstitutional and there're been many distinctions between the commercial activity and this free speech.

That's stressed in -- now in the Valentine case but -- and these various other cases, Packer Corporation versus Utah, Fifth Avenue Coach Company where they prohibited display advertising on the side of buses and all of its stores.

From this -- from these cases, it would be seen that it is the personal right of defendant to personally exercise his free speech that is protected by the First Amendment.

Further it is clear that free speech is distinguishable from commercial activity and this is the key to the whole solution, as our problem is not with those who wish to personally express their ideas, their views or their opinions.

There be --

Justice Potter Stewart: In a state free speech is distinguishable from commercial activities, sometimes it may involve a non-commercial activity and all kinds (Inaudible) commercial activities.

Newspapers are published among other purposes to make money.

Mr. Roger Arnebergh: Well of course, I -- I will defer that if I may, but I -- with respect to newspapers, basically of course you have free press and free speech and they have the benefit of both.

But with respect to free speech, that which is commercially exploited as in this case copyrighted, you have an entirely different situation resulting.

I have the right to go on the street and express my views, but whereas in this case, the defendant was selling a book that he contended he'd never had read.

He certainly wasn't expressing any opinions or views or beliefs.

He wasn't even enough interested in it to read the book.

All he was interested in was a commercial activity of selling a book.

Now, how can his free speech be involved?

Justice Potter Stewart: Does a free speech in -- involve arguably at least something more than the right of the person to speak.

Doesn't involve -- doesn't it involve the right of other people hear it?

Mr. Roger Arnebergh: I suppose free speech without the right to be heard would be meaningless and -- and consequently, I would say if there would have any free speech involved here that was violated, it was not the defendant because it wasn't what he said that we are here to engage with.

It was with somebody else it said.

Now if anybody's free speech was involved, it was the author's, but the answer to that is this.

The author had copyrighted the book.

He had sold the copyright to the publisher and the two, between copyright and free speech are totally inimical.

In other words, when you copyright something, you deprive the public of the right to it, unless they pay you a benefit.

Freedom of speech is the right to express an idea, an opinion, a belief.

You can't copyright any of those.

You can't copyright an idea, an opinion or a belief.

Justice Hugo L. Black: You mean it doesn't include the right to sell a book?

Mr. Roger Arnebergh: Oh, that's protected by the Fourteenth Amendment.

Justice Hugo L. Black: Well, is it correct or incorrect that it is not protected by --

Mr. Roger Arnebergh: In my opinion and I could be wrong, but I'm trying to reconcile the problem we're confronted here, I think that when you copyright something, you have changed its nature from that of free speech to property.

The very function of a copyright is to acquire a property right in what you've said, as distinguished from the material book itself and where you --

Justice Hugo L. Black: But the First Amendment is trying this argument from the idea of the writings in a book.

Mr. Roger Arnebergh: The --

Justice Hugo L. Black: The sale a book via the right to bring a publication and printing a book by the Government.

Mr. Roger Arnebergh: That's true, but they weren't copyrighted.

Justice Hugo L. Black: Do you think that the fact that the book is copyrighted, takes away the right of people to read it under the First Amendment?

Mr. Roger Arnebergh: My point is this.

I think that first of all in this case, we were dealing with the free speech of the defendant.

That he is the one who's charged and his free speech was not in anyway violated because he wouldn't even read what he was selling.

To him, he was selling a piece of property.

Now that as to whether or not we were violating anybody else's free speech, we'd get into collateral question, “Did we violate the author's free speech?”

And the answer to that in my opinion is no because the book was copyrighted and then the author had sold the copyright to the publisher and the publisher held the copyright.

And -- and furthermore, under the law as frequently expressed by this and other courts when you copyright something you acquire a property right in it, and you are then dealing with property.

Justice Hugo L. Black: But it's still a book.

Mr. Roger Arnebergh: It's still a book.

Justice Hugo L. Black: But if it's privilege, it's still a book even though it's covered outside.

I understand your argument that it is not privileged because it's on print.

Mr. Roger Arnebergh: Now on that --

Justice Hugo L. Black: I can't quite follow.

You're on the idea that somehow because the book's copyrighted -- to display as something is to be disseminated that the public can reach it if it wants to and if the public can secure by purchase or otherwise, does it seem fit?

I don't think --

Mr. Roger Arnebergh: I wanted this -- to the very effect.

That there is this great -- there is a distinct distinction between the fact that free speech does not include obscenity.

That is one separate point.

Now I'm trying to -- and my reason I'm bringing this other as a separate in collateral justification or basis where this is that I feel that in -- if we will recognize the basic principles of free speech, the right to express an opinion, idea or a belief and we will recognize the distinction between that which is property and that which is free speech we can reconcile all the differences in opinions that we have here because we will in no way infringe upon a man's right to do that thing which was protected and we have -- he has a fully protected constitutional right if he wants to -- to make it property, to change his speech to property and sell it for commercial exploitation.

If he doesn't want to commercially exploit, we have no problem.

Justice Hugo L. Black: If he made a political speech and charged people for hearing and they wouldn't hearing it.

Mr. Roger Arnebergh: He hasn't copyrighted that.

He hasn't made that property.

Justice Hugo L. Black: But suppose he does copyright his speech?

Mr. Roger Arnebergh: If he copyrights --

Justice Hugo L. Black: Your argument there that if a man makes some political speech and copyrights it he's not protected by the freedom of the First Amendment or they maybe affected by the Fourteenth Amendment?

Mr. Roger Arnebergh: If he has the right to repeat that and he repeats it then it sure must be his free speech involved, but this man wasn't free of anything.

He was just selling a book that he'd never even read and didn't know.

However, to answer your question head on, I personally feel after a study of all these cases and I recognize that it's -- it's a further exploration of it, but I've done it in an effort to try to reconcile all of our problems here so we can get some --

Justice Hugo L. Black: Pretty good care.

Mr. Roger Arnebergh: It certainly is.

It's one -- it's well worth the -- the spending considerable time which I've endeavored to do and --

Chief Justice Earl Warren: How about religious pamphlets that are copyrighted?

Could they be proscribed without interfering with the freedom of speech in religion?

Mr. Roger Arnebergh: If they are copyrighted and then reduced to property, I would say that the same thing would undoubtedly apply.

Chief Justice Earl Warren: They could be proscribed?

Mr. Roger Arnebergh: Only -- well, without interfering with the First Amendment, you still have the Fourteenth Amendment.

I want to emphasize that he has the constitutionally protected right in either case.

And the -- and the difference is this, that under the Fourteenth Amendment, that of due process and not taking property from somebody without due process, the ownership of property including the ownership of the copyright piece of property involves the right to use it for gain -- to use it gainfully and that of course involves the right to sell it.

The difference being that that case the State has, or shall I say a somewhat different situation, we then, are not quite as -- we can do that then should I say which is reasonably required in the public interest.

We can like for example let's say by analogy to his own in-law where you -- a man owns his property.

He has the right to use that property, but we can only restrict the use to that which is reasonably required for the public benefit.

Justice Hugo L. Black: For the copyrights of a book proscribe all books that take the democratic side of the adoption or the public side, but he had this book that is copyrighted, discussing apart, would the -- that book be protected by --

Mr. Roger Arnebergh: Well, certainly because there was no -- there could be no reasonable basis under the Fourteenth Amendment why we could prohibit a man from selling that piece of property.

Justice Hugo L. Black: Or you get back to where there's --

Mr. Roger Arnebergh: Anymore --

Justice Hugo L. Black: -- I've seen it -- I've seen it.

Do you not?

Mr. Roger Arnebergh: Well, I think it's a little bit broader than that.

That's the point.

I think that that would give a little bit broader application to the power of cities and states to cope with their particular localized problems just as we have with zoning.

We have certain particular problems that we have to cope with locally, but we have to be reasonable in our application.

Applying your end -- in your -- your situation or your hypothetical question to a zoning situation, obviously we couldn't prohibit anybody from leasing, renting or selling property to any member of one party.

You see, there is an adequate protection here and it would solve our problem and it would solve the problem that we're here confronted with.

We're only here confronted with the commercial exploitation of this sort of thing and --

Justice Hugo L. Black: By exploitation of books, can you claim that because they are obscene they could not be -- that you have a right --

Mr. Roger Arnebergh: We --

Justice Hugo L. Black: -- to buy it.

Mr. Roger Arnebergh: Well, I think under the Albert's case we have -- we have already decided on just straight obscenity but I'm talking about probably some of these problems we've got into, questions of what is obscene and there's difference of opinion here, there and elsewhere.

I think that if we will apply the standard which I think should be properly applied, giving recognition to the sovereignty of States and the sovereignty of cities under charter a home rule and so forth, that we have the Fourteenth Amendment rather than the First Amendment there and consequently, we -- they can shall we say adopt such standards as are reasonably necessary for the sale of property.

Now if it's -- if it's with respect to somebody expressing, and again I want to emphasize this, if they're exercising their free speech, if they're talking about what they believe or they're in a street corner and they're expressing their views or they're in a public park, or handing out the pamphlets or carrying a banner or picketing, these things aren't in anyway interfered with.

The only thing of it is, is when a man reduces it to a piece of property which he does by virtue with the very provisions of the copyright laws as construed by this and every other court, when he does this, then he had by voluntarily, by his own act, not by your act or my act but by his voluntarily act, he has said, “I am more interested in making money than I am in expressing my views.”

Justice William O. Douglas: But if these have not been copyrighted this would have to reversed (Inaudible)

Mr. Roger Arnebergh: Now, if this or that'd been copyrighted, it would stand on the basis of this obscenity not being within the area of constitutionally protected free speech and free press.

So in this case, it would not have to be reversed at all.

Possibly, I --

Justice Hugo L. Black: But your argument then finally boils down to this make it right, I've never heard it before that a copyrighted book can be regulated more strictly than one which is not copyrighted.

Mr. Roger Arnebergh: That is precisely my point.

And the reason for it is, that these people who were trying to make money out of filth, they're only interested in making money.

They're not interested in expressing ideas, opinions, or beliefs.

Justice Charles E. Whittaker: Why isn't there as much property in the hands of a bookseller than not copyrighted as them copyrighted?

Mr. Roger Arnebergh: It is and he has the full protection of the Fourteenth Amendment when he sells that too.

The only thing I was stating, if -- when it's copyrighted you have by that nature changed it completely from free speech to property, and as property the bookseller of course, it's his property.

He has the right to sell it.

If it can be sold without unnecessarily -- I mean, let me, let me turn that around to express it more clearly.

The state can only restrict the sale of that book if it is reasonably necessary to do so in the public interest which is a somewhat broad field of regulation than free speech.

And consequently we can't arbitrarily deprive a bookseller selling his property or any other property whether it's copyrighted or not.

If it's copyrighted, he still has its full protection of the Fourteenth Amendment.

Chief Justice Earl Warren: What if it's a -- will the interest of the public be the same whether a person disseminated the filth for the purpose of money or for lust?

Mr. Roger Arnebergh: That wouldn't be true, but the problem is not there because the -- we have no problem with people.

I mean, it isn't a national problem like this commercial exploitation that we're concerned about.

It is this, this desire to -- as you so ably expressed it in -- in the Albert's case -- that commercial exploitation.

Chief Justice Earl Warren: Do you have the same, the same things in this ordinance for instance the possession of it in any toilet or restroom open to the public, now that -- whether that is for lustful purposes --

Mr. Roger Arnebergh: That -- that --

Chief Justice Earl Warren: -- rather than commercial?

Mr. Roger Arnebergh: That is there.

That's right.

That different a section of it and that's what I endeavor to indicate in answering the previous question.

If that was because in this particular place that it gave rise to shall we say the current present danger of it being a stimulation to unlawful acts.

Justice Charles E. Whittaker: And you might see a distinction in a book in one store written by himself over one purchased from another and kept for sale?

Mr. Roger Arnebergh: I would say this.

That certainly the defendant's personal free speech is involved if what he is passing on is that which is his speech.

Justice Charles E. Whittaker: The (Inaudible) here is that the book is not right.

Mr. Roger Arnebergh: Yes, and -- and then assuming now that he had not reduced that to property by copyrighting it which was his option.

He has the election.

He can either have it be free speech or he can have via property right.

And if he has not copyrighted it is obviously his free speech and he is fully protected by the First and the Fourteenth Amendment.

Justice Charles E. Whittaker: I feel as to why one who goes out on the market to a bookseller and buys a group books, are they deprived of property right whether they are copyrighted or not and there's much in the ones as it is in the other, isn't that right?

Mr. Roger Arnebergh: Oh, absolutely.

I failed to make myself clear.

The bookseller has an absolute property right in these books and he's fully protected by the Fourteenth Amendment whether they're copyrighted or not.

But if they are copyrighted, they are property, not speech, not freedom of speech.

Consequently, they're deemed property, he then has the protection of the Fourteenth Amendment surely and we cannot deprive him of the right to sell that unless we can show that to do so it is reasonably required for the public welfare.

Justice William O. Douglas: Because you've overlooked the argument and a long the line of our decisions apparently that the First Amendment is incorporated at least in part in the Fourteenth.

Mr. Roger Arnebergh: No your -- I have it -- I have it in your --

Justice William O. Douglas: And we're not talking about the Fourteenth -- the Fourteenth of course is the only one applicable here in California, but through the Fourteenth you've reached the First.

Mr. Roger Arnebergh: Yes, I recognize that full well Justice Douglas, but the point is this that this Court has never decided to the best of my ability to research the question as to whether or not free speech is involved when there is a copyright and the author has by his personal election, decided to change that which he said from the expression of an idea, an opinion, or a belief and decided to change to a property right in which he is given by law of a monopoly and the exclusive right to determine how many times if it all, it will be repeated.

Justice Potter Stewart: How about a case like Burstyn against Wilson, copyrighting of movies in effect?

Mr. Roger Arnebergh: Certainly, there's property right there.

Justice Potter Stewart: And the -- what -- what I see --

Mr. Roger Arnebergh: But I don't believe that's --

Justice Potter Stewart: Because I think what you're overlooking is, among other things is that Fourteenth Amendment protects liberty as well as property.

Mr. Roger Arnebergh: I'm fully cognizant of that, but when I'm -- I do not believe that this Court has ever been asked to determine the kind of question that I am now pulling and I have to say but that I discussed it at NIMLO and I think it was unique to all the attorneys there, maybe it's completely out if I didn't so.

I do not see where it falls down.

Chief Justice Earl Warren: Mr. Arnebergh in newspapers daily have a great many articles that are copyrighted.

Do they lose their protection of freedom of speech so far those articles are concerned?

Mr. Roger Arnebergh: Well, dissemination of news is of course -- news is of something that can't be copyrighted.

Chief Justice Earl Warren: But you -- you made the distinction.

You said they have two rights.

They have the right of freedom for the press and they have also the right of freedom of speech.

Now if that's divisible, do they lose their right of freedom of speech so far as the newspaper is concerned as to their copyrighted articles or are they on a different -- some different basis?

Mr. Roger Arnebergh: I would say that as for a copyright and it either is the law or isn't the law and -- and if it is the law that when you copyright, it becomes property then as to the copyrighted articles they have property and that that is so is the fact that anybody can be sued for plagiarizing what the newspaper or anyone of these copyrighted columnists, that's property.

That's not a free speech, but if I hear a man expressing an opinion or a view, I can go next door and express that opinion or view.

The purpose of expression and an opinion or a view I believe is to try to get other people to accept it and yet here if I accept this column and then repeat it, I can be sued.

Isn't that a clear indication that he by his voluntarily act has changed the character and the nature of what he has done from that of the right of free speech to that of property?

Chief Justice Earl Warren: Do you think Congress could pass a law to that effect?

Mr. Roger Arnebergh: No, Congress could not a pass a law depriving us of freedom of speech, but this man has elected to do this.

He has his free speech.

I have property.

I have rights.

Chief Justice Earl Warren: But you say there is no more issue of free speech if he wants copyrights?

Mr. Roger Arnebergh: That's right.

Chief Justice Earl Warren: Well, then Congress could do it, because it's' no longer free speech in your judgment.

Mr. Roger Arnebergh: Well, I misunderstood your question Mr. Chief Justice.

My point is that the Congress could not deprive a man of free speech, but Congress can say, You have the right to exercise free speech or you have the right to reduce it to property and they couldn't take his right from him, but he had by his own voluntary act, he elected to say I am more interested in money than I am in expressing views and that --

Justice Hugo L. Black: Now, it's tested and it's one in private homes.

Mr. Roger Arnebergh: That's right.

Justice Hugo L. Black: And what you were saying was no (Inaudible) going I think there is the idea that in existence it cannot utilized consistently with free speech and free press.

Mr. Roger Arnebergh: No, I don't say that.

I state this.

I state that if you decide to engage in a commercial activity, you do not necessarily have the full protection that you have if you are a crusader or if you're designed to express a view, opinion or belief.

It's totally unnecessary.

Justice Hugo L. Black: But this country has chosen to leave to sale, ownership and so forth with transaction in the sales of books and in the sales of other things.

But do you not or am I wrong in thinking that if you make this with pay -- if you say if it's a copyright, changes a book where it's nothing but property, it's still a book.

It still has its ideas.

It still has whatever impression here, whatever impression could be drawn.

While it has been given certain property protection under the law, it does -- it does not if I made a filling a book with ideas to which the people are entitled to receive under the First Amendment.

Mr. Roger Arnebergh: Well, I go so far as to say that I have the right to express a view or not a view.

If I'll have a view, an opinion or a belief I have the right to express it or not to express it.

Justice Hugo L. Black: You also have the right to receive it, do you not, from other people even if they have to buy a book?

Mr. Roger Arnebergh: That's right.

I only have the right though, in the event they choose to give me the benefit.

Free speech is for the purpose of giving to the world freely an idea, or a belief, or opinion.

Justice Hugo L. Black: They don't turn that book lose into the world.

Each one has a copyright.

They've turned it lose for the ideas it has, whatever they are.

Mr. Roger Arnebergh: Well, that's -- that's where we come to -- where I feel differently.

Justice Hugo L. Black: And copyright doesn't deprive it of its ideas, does it?

Mr. Roger Arnebergh: A -- or the -- I want to get back again -- the person who has the idea has the right to express them.

He doesn't have to express the idea.

No law can make him express it.

If we need to know, a man can't take an oath or is not required to take an oath.

He can't be required.

Consequently, if I have an idea, I have the right to express the idea or I have the right to say, “I'll make money off the idea.”

And if I elect to say, “I will make that idea property, not free speech” it's my election.

If I want to make it an idea I can make it an idea.

Now the fact that I make it property does not mean that there's any less an idea there that's true.

Justice Hugo L. Black: It does -- it doesn't make it at any rate mass, like a mass of goods in the store does it, and lose its quality as a conveyor of ideas.

Mr. Roger Arnebergh: Well as I stated --

Justice William O. Douglas: And who has the part to call it if you're selling religious literature as to the extent any of alleged exercise as far as the religious right (Inaudible)

Mr. Roger Arnebergh: And not -- not the sale of it.

It's one -- one of the person's rights.

Now I -- I'm not familiar with much -- much shall I say religious literature that has been copyrighted.

Most of the people that I know were only too --

Justice William O. Douglas: I'm not -- we're not talking about copyright.

This is just where they were selling religious tracts.

Mr. Roger Arnebergh: Then they have an absolute right to do it because it hasn't been reduced to property.

Justice William O. Douglas: Well they were selling it in the sense of getting money for it.

Mr. Roger Arnebergh: But I would as well, but they're --

Justice William O. Douglas: They would sell it as ordinary property.

Mr. Roger Arnebergh: Well that -- that --

Justice William O. Douglas: And since the argument was made in that case up and it came to what you're arguing here and we've rejected them in both religious cases.

Mr. Roger Arnebergh: Well -- well I -- I apparently haven't made my full thoughts clear.

My thought is this that as to this particular defendant in this particular case, his free speech was not violated because he testified that he didn't know what he was selling, he was merely selling a book, he had so many books, he had so -- and shows and so forth that he couldn't possibly read them.

So he was just selling.

Justice Hugo L. Black: Was it not his right to freedom of the press and to be a circulating medium for the press?

Mr. Roger Arnebergh: The freedom of the press as I understand it is basically a prior restraint.

In other words these taxes or these cases for example where they put a tax on, on a circulation or things of that nature.

And --

Justice Hugo L. Black: That was the old -- old idea but I already thought maybe.

Mr. Roger Arnebergh: And -- and then when you couple with that freedom of speech and then you have the right to disseminate your news, your information, your ideas, your opinions, your beliefs.

But I just wanted it clear that it is my opinion is, the quick answer as I stated initially is that the book is obscene and therefore not in the area, but in order to try and reconcile all of these conflicting opinions and this forces them to give a working standard to all us I felt it was my duty to express to you my views in the matter which -- which I feel would solve the entire problem if they were adopted because it is only this commercial exploitation of filth that is put in the country today, and you wouldn't have the problem because if there wasn't money to be made, it wouldn't be written, that it wouldn't be distributed and it wouldn't be sold.

Justice Hugo L. Black: Suppose the next book that was not filthy but it was decided to acquire it and the argument it was merely copyrighted it and we had the right to bar it.

Mr. Roger Arnebergh: And we would simply have the Fourteenth Amendment, where is the reasonable necessity that a public welfare requires the barring of it.

Just as my property --

Justice Hugo L. Black: Who is to decide whether or not read it to be subject to a requirement?

Mr. Roger Arnebergh: The same people who can decide whether or not I can use my property for a business purpose or a residential purpose.

It's a constitutionally protected right that they can go right to this Court and it has to be you.

And now with respect to the question obscenity, even if we ignore the basic distinction between free speech and copyrighted property, the book in question is obviously obscene.

And therefore as I mentioned I was in the area of constitutionally protected speech or press.

As the Appellate Court stated, under any test, the book concerned in this prosecution was properly held to be obscene by the trial court and we share such a conclusion upon our independent view of the evidence.

It should be recognized that in this case as was mentioned by counsel there is no conflict in the evidence and further the Court stated, we reach the conclusion also when we have considered the book as a whole under tests that the appellant contends are applicable.

Now this Court has expressed the standards that should be followed in determining obscenity.

First of all the average person, but may I state that I do not consider a book critique necessarily be average person and the mere fact that something has a sale doesn't necessarily mean that the average person acts within his standards or that -- that it won't have any effect on him.

First of all, the average person never buys all of the books.

I mean you talk about the sale of a million books, well how million people are there in the country?

It's a very small percentage, a small fraction of the people.

So that's no proof.

The fact that books of an obscene nature or suggestive or so on, that this particular book sold and it had some passages in it that were not delicately expressed.

Then applying contemporary community standards, well again, I don't think we'd go out looking for trouble.

It's when we receive a flood of protests from organizations of people who are concerned about the community standards and they are the ones who set the community standards.

That we go out, we send an officer and he checks up and finds these books and of course, if we get back to the average person remember this, we have a problem there.

If we will look at the people who are most familiar with the average person, we will go to the advertisers who spend billions of dollars a year in advertising and their advertising is designed for a 14-year-old mentality on -- over and large.

So we must be careful who we consider.

I don't consider that a person who has a broad experience and the wealth of education and the higher intellect that is represented by the Justice in this Court are necessarily the average person.

Now the dominant theme of material, I don't know how many of you have read the book if you have read it, I feel sorry for you for having had to do so.

It is just a series of sexual acts of various types linked together with nothing, but connecting sentences in my opinion.

And does it apply to prurient interests?

Well, again, I say we're all aware of the power of advertising and the effective constant repetition and you have that here and then it was mentioned that this had an important idea to convey or probably the important idea that it conveyed was best illustrated from a quote from it and well I won't read the quote.

But in the end -- in this, the gist of it is that this homosexuality, this lesbianism is a fine thing because it enables innocent girls to have sexual pleasures without the problem of an aftermath that might be result if they're having the same experience with a man and therefore it's a desirable and a good thing.

Now if that is a great idea to put forth to the world, I don't agree and now in conclusion --

Chief Justice Earl Warren: Now it has -- would this -- would this book be obscene under Section 311 --

Mr. Roger Arnebergh: Yes.

Chief Justice Earl Warren: -- on the -- of the state?

Mr. Roger Arnebergh: There is no question that it would have in my opinion and the dissenting justice of the appellate division of the superior court so found.

In fact he -- his basis of dissent was that here the evidence proves a violation of the State law.

Consequently the city can't legislate in this field.

Justice Potter Stewart: Is there a difference in test of obscenity between the State law and the Los Angeles ordinance?

Mr. Roger Arnebergh: Oh no, we adopt that -- we -- we have -- we are -- we are to test, we think we were set by this Court in the Alberts case.

That is the test to -- to that -- the appellate court applied in this case and the trial judge, frankly I'll say this.

The trial judge -- he didn't indicate clearly what test he applied.

He just said that as to him it was filth and there were words to that effect and I would say that I don't know just exactly what standard he did use.

Whether he used the old standard or the new standard, but I don't -- the appellate court very carefully considered the evidence, personally made their own findings on the basis of reading the book and reached the conclusion that by any test, it was obscene.

Justice Hugo L. Black: As I gathered from you the test here was that it was obscene because it contained descriptions that -- the descriptions of sexual acts.

Mr. Roger Arnebergh: Yes I think that, that is the --

Justice Hugo L. Black: That's your --

Mr. Roger Arnebergh: I think that's the basis of it, yes.

I would say that is really the thing, not the idea that it conveys but the method by which it describes these --

Justice Hugo L. Black: And for those have been described that graphically in any other language as you would have believed it with that --

Mr. Roger Arnebergh: Well, let me say this.

If they had wanted to describe -- I mean convey an idea about lesbianism, they certainly wouldn't have had to use the expressions and phrases that they have done.

They -- there are --

Justice Hugo L. Black: That they had described it -- would there have been any difference with the exact phrases that were used insofar as obscenity is concerned?

Mr. Roger Arnebergh: I think if there is a --

Justice Hugo L. Black: Did it contain -- or simply as I understand you to say, along (Inaudible) the descriptions of the sexual act?

Mr. Roger Arnebergh: With -- with suggestive details and I think revolting detail.

Justice Hugo L. Black: But description of that is what it is.

Mr. Roger Arnebergh: Yes.

Justice Hugo L. Black: So that any book that does that which come under the ban, if you tired that as you're trying to get that, I think that would be the result.

Mr. Roger Arnebergh: I -- I think that any book, if the prevailing theme, the dominant theme of it is, is -- is a series of descriptions in -- in graphic details of homosexuality and normal sex relations is not -- it is probably obscene, yes.

Justice Charles E. Whittaker: (Inaudible)

Mr. Roger Arnebergh: Yes and of course it has to be in such a manner that it does that, and that's why I think the graphicness and -- and the repetition and then combined with the -- with the suggestion that this is a wonderful thing to do, and you can get away with it, there's no penalty to pay.

There's no need to be careful, there's no need to worry about it.

Innocent girls can do it and it's nothing suspicious that it's so exciting and no suspicion is aroused when girls spend the night together.

Justice Hugo L. Black: What happened to this character that was engaged before the book was ended?

Mr. Roger Arnebergh: She was murdered and not because of her lesbianism.

Justice Hugo L. Black: It has relations to her acts with the man, doesn't it?

Mr. Roger Arnebergh: It had relationship to the fact that she called a man to commit a crime and then dumped him.

It finally used that expression.

“There was disregard in it.”

Justice Hugo L. Black: And he murdered her.

Mr. Roger Arnebergh: Yeah it was a question of him -- jealousy was a theme of that and not the other.

In other words she used to make love to this man and then when he -- she accomplished her objective through the use of sex, she said, “Well I don't need you anymore.”

That was all added.

That's just jealousy.

Justice Hugo L. Black: How could this -- how would we say that this book sold by a man could read a lot of books, I mean here, which should be a description to that and no a quick warrant, must be barred by the law and which one would not?

Mr. Roger Arnebergh: I would say this that first of all, a book seller could not read a thousand books or so that he may have in his thought.

But as the dissenting judge found and I think like in can anything, if you are at and if it is sustained and he has the responsibility, he will find a way by being more careful of from whom he buys and what he buys.

I have sold books and I know that you can go into a store and a buyer at the bookstore doesn't buy a book without knowing what's in that book.

Now it's a difficult thing to prove.

Justice Hugo L. Black: But from your standpoint it makes no difference.

Mr. Roger Arnebergh: It makes no difference that's the point but I'm just taking this as far as the reasonableness of this required – is concerned, who is better in a position to know than the man who is selling it?

Justice Hugo L. Black: I suppose your argument is that the State does have a right to censor obscene literature.

But since it has the right to censor obscene literature it also has power to say that we're going to hold you responsible for selling whether you know anything about it or not.

That's the basic basis your argument, that is.

Mr. Roger Arnebergh: I would say we have a right to prohibit the sale or possession of it, yes and if we have the right to prohibit the sale we have the right to require the man who has it in his business to establishing for the purpose of sale and at his peril not to -- not to have seen merit.

Justice Hugo L. Black: So from your standpoint you finally get back to the place of whether it is constitutional to bar this kind of book even from the possession of a man who doesn't know what's in it?

Mr. Roger Arnebergh: Yes, in other words we have the same thing as the State law which was involved in the Albert's case except that we do not make the personal knowledge of the -- of the man commercially dealing it a necessary element to prove that it was a crime.

Justice Hugo L. Black: You abide to the (Inaudible) opinion.

Mr. Roger Arnebergh: That is correct.

Justice William O. Douglas: Did I understand you to say you had a Bureau of Censorship in Los Angeles?

Mr. Roger Arnebergh: No we do not.

Chief Justice Earl Warren: Mr. Fleishman.

Argument of Stanley Fleishman

Mr. Stanley Fleishman: Thank you, if the Court please.

I would like to address myself merely to one point that I think has been stated so much that it needs a little clarification and that is the difference between the commercial exploitation of filth that Mr. Arnebergh has described it.

If this Court was talking about in Roth-Alberts and the attempt to equate it with what's going on here, here there was no pushing of anything.

If Mr. Smith was commercially exploiting anything, then every person who went to the drugstore and has any books and magazines there is equally commercially exploiting.

Every market that has paper bound books is equally commercially exploiting.

These are easy words that give it a meaning that doesn't apply here.

What Mr. Smith had was a bookstore and he had a book on the stand on his shelf.

In Roth, as we pointed out, there was intrusion into the homes of the unwilling person.

There were mailings, there were mailings which were exploiting there can't be any denial in terms of the advertising there being at least very aggressive.

That differs entirely from the situation we have here.

The situation we have here is simply whether a person who sells books is to be treated differently because he is selling books, because he is selling the ideas whether he is to be treated differently than a person who is selling these cattle or a person who happens to have a machine gun.

A point was made in terms of the buyer or book buyer taking normal precautions.

Well, the record here shows that the -- Mr. Smith took normal precautions.

The record shows that he purchased his book through the mail, that he received it from regular jobbers, that he had a book in this case, “Sweeter than Life” which was copyrighted and we've heard a lot about copyright and whoever heard of copyrighting pornographic literature before anyhow?

Isn't the bookseller protected at least to that extent to be seeing the copyright?

Well, no it's taken by the Government.

It's -- the book is here.

It's in the congressional library and anybody can go in and buy it.

I don't know what kind of evil Mr. Arnebergh is talking about the evil of this book.

He's taken everything he could find out of the book and hit it like he has put into his brief, all of these graphic descriptions and it went through the mail and everybody has read it.

No evil, this isn't eating poison.

Would anybody for a moment suggest that the reading of this brief which is the undiluted assets that Mr. Arnebergh is complaining about, is anything there, maybe accept something that would offend your personal taste and that's all.

Insofar as we're talking about the moral, Mr. Arnebergh says there is a lesson here that lesbianism is good.

I happen to read the book differently, but this Court said that you can talk about adultery that way.

That you can even advocate adultery and that doesn't offend the First Amendment.

And if that's what the book said, I deny it, but if it is what the book said that would not be private in any fashion we submit from the protection afforded by free speech.

I think the Court has pointed out the obvious fallacy or what seems to me to be the obvious fallacy of the copyright argument in that society is concerned much more with the right of the people to read than it is with the right of a person to say what he wants to say.

The right to say it is important, but the right of people to hear it and weigh it is far more important.

And that includes the right to weigh and consider ideas we do not like and that is what's in jeopardy here.

Mr. Arnebergh recognized that you have to take free speech out to attempt to rationalize the illogical and the unfair aspects of this case.

I don't think you can read free speech out.

The right to distribute the book is equally protected with the right to -- right of the book.

Thank you very much Your Honor.