BANTAM BOOKS, INC. v. SULLIVAN

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Argument of Horace S. Manges

Chief Justice Earl Warren: 118, Bantam Books, Incorporated, et al., Appellants, versus Joseph A. Sullivan.

Mr. Manges.

Mr. Horace S. Manges: Mr. Chief Justice, all the members of the Court, may it please the Court.

This is an appeal from the Superior Court of Rhode Island.

Before appellants, Bantam Books, Dell Publishing Company, Pocket Books and the New American Library of World Literature are publishers of paper bound books distributed in that state.

The appellees are the members and the executive secretary of the Rhode Island Commission to encourage morality and youth.

This appeal raises two basic questions.

First, does Rhode Island Resolution Number 73 which created this commission tend to suppress or inhibit the circulation of books in violation of the First and Fourteenth Amendments?

Secondly, did the Commission's actions in sending notices to book sellers and police chiefs throughout the State of Rhode Island stating that, “particular publications were objectionable for a sale or display to youth tend to suppress or inhibit the circulation of those books and did those actions actually suppress or inhibit the circulation of those books again in violation of the First and Fourteenth Amendments”.

Rhode Island Resolution 73 was enacted in 1956, its operative provision as amended in 1959 insofar as pertinent here reads as follows and I read from page 2 of the record, “It shall be the duty of said Commission to educate the public concerning any book, etcetera, containing obscene, indecent, or impure language as defined in chapter 11-31 of the general laws entitled obscene and objectionable publications and shows and to investigate and recommend the prosecution of all violations of said sections”.

Unknown Speaker: (Inaudible)

Justice Potter Stewart: Sections are criminal sections?

Mr. Horace S. Manges: Yes.

Justice Potter Stewart: The section to which reference is made?

Mr. Horace S. Manges: Yes.

They deal not only with minors but also adults and they also deal with in rem proceedings which may be brought in connection with allegedly obscene literature.

Justice Potter Stewart: So, to that extent there's non-criminal.

They're criminal plus the some other kind of a prohibitory --

Mr. Horace S. Manges: Both Mr. Justice Stewart.

In 1960, these plaintiffs instituted this action in the Superior Court.

The case was tried before Justice MacKenzie and a decree was there added, adjudging one that the resolution was constitutional.

Secondly, that the Commission's actions were unconstitutional and the court issued an injunction enjoining the Commission from the continuance of those acts.

Both sides appealed the Rhode Island Supreme Court.

The appellants from that portion of the decree which upheld constitutionality of the resolution the appellees from the rest.

That court by its majority opinion sustained the constitutionality of both the resolution and the Commission's actions.

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Argument of Horace S. Manges

Chief Justice Earl Warren: -- 118, Bantam Books, Incorporated et al., Appellants versus Joseph A. Sullivan et al.

Mr. Manges.

Mr. Horace S. Manges: Mr. Chief Justice and other members of the Court.

The Rhode Island Supreme Court in sustaining constitutionality of both the resolution and of the Commission's actions in sending out its notices remanded the case to the Superior Court for the entry of a final decree in conformity with its majority opinion.

The facts of this case are undisputed and they are as follows.

Between July 1957, which was shortly after this Commission began to function, and early 1960 when this action was started, the Commission sent out to booksellers throughout the State of Rhode Island and also to sellers of magazines, at least 35 separate notices, each listing books and magazines which the Commission had found objectionable for sale or youth -- or display to youth under 18.

Justice John M. Harlan: Was the statute is limited to youth?

Mr. Horace S. Manges: Yes, Your Honor.

That's it.

Justice John M. Harlan: I thought it's more general.

Mr. Horace S. Manges: The statute creating the Commission.

It's the Commission to encourage the morality in youth, but that to recommend prosecution of all the state obscenity laws including those which apply to it -- to adults.

Justice John M. Harlan: (Voice Overlap) excluding those for adults.

Mr. Horace S. Manges: Yes sir.

Justice Potter Stewart: To be the duty of that Commission to educate the public.

Mr. Horace S. Manges: The public.

Justice Potter Stewart: Everybody not just the young kids.

Mr. Horace S. Manges: That's right.

By early 1960, the Commission admitted that it had found 108 books and magazines thus objectionable.

One of the recipients of these notices was the firm of Max Silverstein and Sons of Providence which was the exclusive wholesale distributor of appellant's books for 70% to 75% of the State of Rhode Island including all of the City of Providence.

The first notice that the Silverstein firm received was dated July 19, 1957.

It appears at page 55 of the record and as you will note is on the official letterhead of the Commission as were all the other notices.

It contains several significant statements and I should like to read some of them.

This agency was established by a legislative order in 1956 with the immediate charge to prevent the sale, distribution or display of indecent and obscene publications to youths under 18 years of age.

“The Commissioners have reviewed the following publications and by majority vote, had declared that they are completely objectionable for sale, distribution or display for youth under 18,” then those three magazines, and then it goes on, “The Chiefs of Police have been given the names of the aforesaid magazines with the order that they are not to be sold, distributed or displayed to youths under 18 years of age.

The Attorney General will act for us in case of non-compliance.

The Commissioners trust that you will cooperate with this agency in their work.”

And then the notice ends, “thanking you for your anticipated cooperation”.

A further Commission threat to recommend prosecution to the Attorney General is contained in another Commission notice being petitioners' Exhibit 11, we being the petitioners down below.

That Exhibit appears at page 76 of the record and I should like to read the last two sentences.

“Your cooperation in removing the listed and other objectionable publications from your newsstands will be appreciated.

Cooperative action will eliminate the necessity of our recommending prosecution to the Attorney General's department.”

This coupling by the Commission of the word “cooperation” along with the mention of Attorney General's action makes it quite clear that when this Commission used the term “cooperation” in these two notices and the other 33 notices it meant to convey to booksellers a message.

“You either take these books and magazines off sale or else we're going to see to it that you'll be recommended for prosecution.”

Now, to make -- to make certain that this message would register with the booksellers, the Commission notified them that they were sending copies of all these notices to the Chiefs of Police throughout Rhode Island and the copies were so found.

Justice John M. Harlan: The question I want to ask you was, is there any record of the prosecution that had been brought in Rhode Island pursuant to recommendation of the Commission?

Mr. Horace S. Manges: Well, there is one statement in the Commission's annual report of 1960 that on seven cases that was cited by way of their injunction that there were three convictions and that there were three acquittals.

Justice William O. Douglas: How can there be convictions if they have acquittals without injunctions?

Mr. Horace S. Manges: Injunction -- adjudication (Inaudible) the way of the Commission's report.

Justice William O. Douglas: There's no criminal prosecution?

Mr. Horace S. Manges: Yes sir, there's one -- there's one criminal prosecution where the defendant in connection have taken place.

The jury convicted and had the verdict set aside on the ground that one of the jurors was just to be related to the chief complaining witness.

Justice William O. Douglas: They never had strategy?

Mr. Horace S. Manges: No.

And about two years have gone by since -- since that.

But the Commission was not satisfied with sending these copies to the Police Chiefs.

In every case, they followed up with a questionnaire to the police.

On this subject, the appellee McCallum, the Executive Secretary of the Commission testified and I quote from page 45 of the record, I asked him the question, “Will you tell us what do these questionnaires that are referred to in the minutes?”

Mr. McCallum answered me.

Answer: The questionnaires were sent to the various Chiefs of Police in the State asking them of why they had followed up any list if they admit any cooperation or any negative action.

The effect of this -- of these methods is shown by the fact that the record shows that within 10 days after everyone of these Commission notices were sent out, the firm of Silverstein received an inquiry from the Providence Police Department asking for a report of what action had been taken with the respect to every listed publication.

A police officer inquired as to how many copies of the publication Silverstein originally received, how many he had tried to recall from its customers, how many it had shipped back to the publishers.

So you see that this procedure produced the desired effect of frightening all of the sales, books that had been listed by the Commission as objectionable.

Thus, the record shows that every time Silverstein received a list of publications, it took off sale every copy, it sent out its field man to its retail customers and recalled every copy, and then it took all the unsold copies and shipped all of those copies back to the publishers.

Silverstein took this action as its manager Kaplan testified.

And I quote from page 25 of the record at the bottom of the page, “Rather than face the possibility of some sort of a court action against ourselves as well as the people that we supply”.

Justice John M. Harlan: What page is that please?

Mr. Horace S. Manges: That's at the bottom of page 25, Mr. Justice Harlan.

Justice Arthur J. Goldberg: When did you interpret the Commission's notices to the request to remove these publications completely from circulation or only from distribution to the minors?

Mr. Horace S. Manges: I -- I treat them, Mr. Justice Goldberg as a request to take them off sale completely, as typified by the Exhibit 11 at the bottom of page 76 where it states your cooperation in removing the listed another quote, “objectionable publications from the newsstands will be appreciated and cooperative action will indeed eliminate the necessity of our recommending prosecution.”

Justice Arthur J. Goldberg: And yet do all of the notices speak in terms as I see them in the record being objectionable for sale, distribution or display for youth under 18 years of age, isn't that correct?

Mr. Horace S. Manges: That's correct.

But also, Mr. Justice Goldberg, these notices were sent to all the wholesalers.

Now, the wholesalers weren't selling -- they weren't selling to those under 18.

The wholesalers were selling it to retailers.

So they're obviously trying to cut off at the source of supply.

Justice John M. Harlan: Is there such a thing such a thing as a list of the books that the Commission has found objectionable since its inception?

Mr. Horace S. Manges: There is a list in the record of -- I counted 106 of the 108 books and magazines that had been found objectionable up to January 1960.

Our action having been -- it started in February 1960.

Justice John M. Harlan: And are the names of the publications or books given in that list?

Mr. Horace S. Manges: 106 of them.

Justice John M. Harlan: To the names of each of the publications?

Mr. Horace S. Manges: Yes, Your Honor.

Yes.

They are mostly -- there are more magazines than books.

The book taken place published by one of our appellants was on the list and by Grace Metalious or the book the Bramble Bush by Charles Mergendahl which is a very good seller, one of the bestsellers published by another appellant, Dell, was also on the list.

Justice Arthur J. Goldberg: You would scarcely regard the books and magazines listed, the examples in good literature, would you?

Mr. Horace S. Manges: I wouldn't stand up to there being good literature but I don't think that they're obscene and I think they're still entitled to constitutional protection Your Honor even if they're judged as obscene.

I think many of them -- many of them are trashy in answer to your question.

Justice Arthur J. Goldberg: Wouldn't that be a good characterization of most of the books and magazines that were listed?

Mr. Horace S. Manges: I would say many of them.

In the Commission's -- in the Commission's report dated January 1960, it referred further to this question of withdrawal of publications and it began to do a little bragging.

And I'd just like to read a few lines from the report of the Commission which was a report that was sent annually to the Governor of Rhode Island and to the legislature that this particular report is the one of January, 1960 and I read from page 103 of the record.

This is below the middle of page, after the Commission states that the list found objectionable is now brought up to a total of 108 that goes on to say regardless requested by Chiefs of Police distributors and educators in 1957 of the type of publications deemed objectionable for youth under 18 is still sent to all local distributors and Chiefs of Police in Rhode Island with the result that in the last six months our newsstands so at very improved condition.

In most cases, local distributors have been cooperative this year withdrawing publications of the type listed in the Commission guide list and returning them to publishers.

This Commission feels that the guide list court action initiated by this Commission and the cooperation of the Attorney Generals Department is largely responsible for the new look, and I turn this quote on Rhode Island these days.

From the foregoing statement of the facts, it seems clear that the effect of this resolution and of the Commission's actions there under, has had the effect, then to suppress the circulation of books and magazines in Rhode Island without any prior judicial determination that they are obscene.

Now, it is true under the holdings of this Court that obscene publications are not entitled to constitutional protection.

It is equally clear as stated by this Court in Smith against California that no state has the power to restrict the dissemination of publications that are not obscene.

Justice Potter Stewart: Where are we reading just a moment ago?

Just a moment ago, where were you?

Were you reading from the record just a moment ago or not?

Mr. Horace S. Manges: I read --

Justice Potter Stewart: I'm looking at page 103 and 104.

I thought you read it.

Mr. Horace S. Manges: I read from page 103 before, Mr. Justice Stewart, on the Commission's annual report.

Justice Tom C. Clark: I didn't follow that part.

Justice John M. Harlan: Read the last (Inaudible)

Justice Tom C. Clark: That referred to paragraph 104, I didn't get to that thing.

Justice Potter Stewart: Me neither.

Justice John M. Harlan: The Court said that the effect of this was to suppress these publications.

Justice Tom C. Clark: On the foregoing I think the way --

Mr. Horace S. Manges: Oh, Oh, I said --

Justice Hugo L. Black: I thought you said that.

Mr. Horace S. Manges: This is my statement.

Justice Potter Stewart: Oh, that is not your statement.

Justice Tom C. Clark: Yes, I thought you're still reading.

Justice Potter Stewart: I misunderstood that.

Mr. Horace S. Manges: I'm sorry.

I said of that.

I said the statement that I was ending the quotation.

I said from my foregoing statement of facts, I meant that it is clear.

It is clear that there has been effect of this suppression of publications in Rhode Island without the prior Court determination that they're obscene.

Justice Potter Stewart: I see.

It has been commended by people like Mr. Thurman Arnold, the said rule according to page 106.

Mr. Horace S. Manges: Yes and Professor Walter Gellhorn who -- I think who wrote the book on the other side.

I'm not certain to how much -- how much of the activities of the Commission were presented when that act really was sought and granted ex parte.

Justice Tom C. Clark: We got a lot legislations here in the Court ordinarily --

Mr. Horace S. Manges: Yes, sir.

Justice Tom C. Clark: Does the Commission still insist?

Mr. Horace S. Manges: Yes.

Yes, it is, Mr. Justice Clark.

Justice Tom C. Clark: Exactly.

Mr. Horace S. Manges: Yes.

Justice Tom C. Clark: Yes to appropriations then.

Mr. Horace S. Manges: Yes.

Yes to appropriations.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Horace S. Manges: Yes, sir.

Justice Arthur J. Goldberg: -- been with your argument, if you will turn to the resolution creating the Commission on page 81 is -- then look at the last paragraph describing the duties of the Commission, is it the nub of your argument that the vice of this statute is the power to recommend?

Mr. Horace S. Manges: That's not the -- that's not the amended resolution, Mr. Justice Goldberg.

Justice Arthur J. Goldberg: Where is it?

Mr. Horace S. Manges: It got before the amendment of 1959.

Justice Arthur J. Goldberg: Would you --

Mr. Horace S. Manges: The amended part is at page 2 of the record where the operative position -- operative provision was amended.

Justice Arthur J. Goldberg: Yes, surely.

Now, would the -- is it the nub of your argument that (c) recommend legislation prosecution is the vice of this statute or would your argument has the same force it confined to the first part stating the duty of the Commission to educate the public concerning books, et cetera at obscenity.

Mr. Horace S. Manges: In answer to your question, Mr. Justice Goldberg, I would say that the provision for recommending the prosecution aggravates the situation very seriously but even if there were no such power to recommend prosecution because that evidence can really recommend prosecution without an appropriation to order that effect.

The general impact of that was to inhibit the circulation of books because none of these -- this was not a nullity in meaning.

It's supposed to be a purpose in having this resolution.

Now, the average bookseller didn't want to tangle with the law and he saw how that if he didn't comply with the wish of the Commission, he would be getting in dot.

Now, he had to bear in mind that they were recommending prosecutions not only with respect to those under 18 but with respect to those over 18.

So if he incurred their goodwill, this could be a very serious limitation on his career and it would seriously intend to inhibit what he would be willing to carry in stock.

Justice Arthur J. Goldberg: You don't equate the power to recommend prosecution of an average citizen to a state body set up by law, do you?

Mr. Horace S. Manges: No.

Justice Arthur J. Goldberg: And there was a difference, there's a vital difference --

Mr. Horace S. Manges: I find it all serious and I think the Rhode Island legislature so in candid and I think that's one of the reasons they put this in to frighten and it did have that effect of frightening.

Justice Arthur J. Goldberg: Would your argument reach to the point that a state educational agency, say Council of Higher Education of the State could not distribute literature pointing out what was junk and what is good literature?

Mr. Horace S. Manges: I think they could make all the recommendations in the world about books generally.

Like when they come down to adjudicate educating by adjudicating what particular books are obscene or not obscene that there's annual serving of court function.

And I don't think anybody but the Court can do that.

Justice Arthur J. Goldberg: Does the college teacher do this when he talks to the class that he says that this stuff isn't worth reading and this stuff is good literature?

Mr. Horace S. Manges: Yes.

But there is no -- there is no interest of threat of any wielding power.

There's nothing malice about that.

I say in answer to the first part of your question, even though this expressed power to recommend prosecution hadn't been in a law, there would be impending that the imply -- the implication that this Commission had power to wield -- wield something, had some influence over these people and that they would thread slowly and that would inhibit the circulation of literature.

Justice Potter Stewart: Suppose the obscenity statute -- obscenity statute itself said that before any prosecution is undertaken, the District Attorney has the duty to advice the prospective defendant that the book is deemed to be obscene and to give him an opportunity to withdraw the book, would that be bad constitutionally?

Mr. Horace S. Manges: I think that would be bad.

In Bantam Books against Melko which I argued before Mr. Justice Brennan in New Jersey, the prosecutor of Elizabeth County sent out notices to the county prosecutor.

“The book ‘The Chinese Room' is obscene.

And if anybody in this county sell ‘The Chinese Room', I'm going to -- I'm going to prosecute him.”

Now we contended that that was unconstitutional because if a prosecutor wants to prosecute, he should prosecute but he shouldn't threaten by saying that something obscene because a prosecutor hasn't have the right to determine what's obscene or has the legislature nor has economical legislature.

This is a court function and constitutional privileges should not be taken away lightly.

Justice John M. Harlan: The prosecutor has got that authority to institute a prosecution with or without notice.

Mr. Horace S. Manges: He has, Your Honor, but if the prosecutor says to a man that he sees about to burn down a building, if you burn down that building, I'm going to prosecute you.

That's something objective.

He's got a perfect right to do that.

But if a man says, “I'm going to take away your rights under the -- under the First and Fourteenth Amendment and deprive you of freedom of press, if you publish this book,” I say no, that's very different.

As this Court has said, there's a difference obtained in the mind and the belly.

Justice John M. Harlan: Given the constitutionality of the obscenity statute, what is the difference?

Mr. Horace S. Manges: The obscenity statute -- the obscenity statute alone, every obscenity statute has a slight inhibiting influence.

As Your Honors said in Smith against California, but Your Honors also said when you dealt with the question of scienter that that is a different problem, it's a matter of degree.

The existence of an ordinary criminal actions, tearing of books in the face has a slight inhibiting -- has a slight inhibiting effect.

Yes, but that's minimal.

But he doesn't know -- he doesn't know whether he's going to be convicted of prosecution because he may have certain defense.

Scienter, he may read the book himself and if he reads it in good faith, this Court is left open whether he may have a good defense.

But if he has the threat of this Commission telling him or prosecuted telling him, these books are obscene.

There's no doubt about it.

This restrain is much greater.

So I say in each case, it's the question of degree and with the freedom of the press and the First Amendment this Court has said time and again that it would go slow in depriving people of their constitutional right.

Chief Justice Earl Warren: You may proceed, Mr. --

Justice Hugo L. Black: You were saying that they do not have the right whatever may be the right to try him for the selling of books that prove it's obscene that at the trial be conducted according to law.

Mr. Horace S. Manges: Yes, sir.

In an adversary proceeding with due process, if our Court says that --

Justice Hugo L. Black: That could probably be illustrated for taking the extreme case.

Many people think that there are many parts of the bible that are obscene and I assume that no one would defend the statute that you gave us for the right to notify books of it, couldn't sell the bible because of these obscene parts.

What's to keep your Board from doing this if it wanted to?

I'm sure it wouldn't but suppose it wanted to.

Mr. Horace S. Manges: Mr. Justice Black, I don't have anything to prevent them to do it because they are short circuiting their courts, they're bypassing the courts, and there you're asserting a court function.

And they are depriving any administration of due process and declaration adjudication of obscenity.

Justice Hugo L. Black: There are some parts of ‘The Autobiography of Benjamin Franklin' that is said to be obscene.

Mr. Horace S. Manges: True.

Justice Hugo L. Black: Suppose they read those and decide, they didn't want that said book.

Mr. Horace S. Manges: It's subject to the very abusive power that Your Honor described.

Justice Hugo L. Black: You'd say they couldn't prosecute him and tried him for it, on the ground that it is obscenity.

You wouldn't say they could convict him or not convict him but you'd say they could be prosecuted.

Mr. Horace S. Manges: Well you say --

Justice Hugo L. Black: You're drawing a distinction between the prosecution and the preparation of list to notify people that they can't sell those particular things because that Board thinks they are obscene.

Mr. Horace S. Manges: Yes.

We object to frightening books or sales so the courts have not given the opportunity of making the adjudication whether a publication is obscene or not.

If the publication is obscene, after a fair trial in the courts, then we say the publisher must abide by that.

Justice Tom C. Clark: Well, this Board didn't tell them to not sell it, did it?

Mr. Horace S. Manges: The Board, Mr. Justice Clark said, “Your removal of these publications from the newsstands will eliminate the necessity of our putting on pressure, and going to the Attorney General and see to it that we're going to give our official recommendation and you'll be prosecuted as putting a pretty severe, pretty severe pressure on the average of bookseller.

Justice Hugo L. Black: One place further and --

Mr. Horace S. Manges: They stand up to it.

Justice Hugo L. Black: But there's one play of where they have said you reported to the Chiefs of Police.

Mr. Horace S. Manges: They said that in -- they said in --

Justice Hugo L. Black: The Chiefs of Police is originally active in some cases in some type of things.

Mr. Horace S. Manges: Exactly, Mr. Justice Black.

Justice Hugo L. Black: (Voice Overlap) it all.

Suppose they just read the book and they decided it's obscene and went to somebody, over to the District Attorney and accomplish with -- this supposed to be obscene, they went through and pointed out that that is obscene you went on and prosecute them, would there be any violation of the Constitution (Voice Overlap)?

Mr. Horace S. Manges: Your Honor, I say any sellers can go over the District Attorney with that same message of the District Attorney or the Attorney General once prosecuted that perfectly follows.

Justice Hugo L. Black: Suppose your answer to that would be that's not state action.

That's not governmental action --

Mr. Horace S. Manges: That's right.

Justice Hugo L. Black: -- that citizens --

Mr. Horace S. Manges: That's right.

Justice Hugo L. Black: Well, I mean that Board rule goes in there --

Mr. Horace S. Manges: Well, I --

Justice Hugo L. Black: -- either the government, the District Attorney or whether the Board, if they discuss it without saying that we want you to prosecute.

The District Attorney tells him come back three or four days later regarded it as obscene and have not instituted prosecution.

Mr. Horace S. Manges: I think there's nothing wrong about that if it's kept secret, if it --

Justice Hugo L. Black: (Voice Overlap) with the constitutionality of the statement.

Mr. Horace S. Manges: Yes, I do.

I do with the type of constitutionality of the statute and I'll come into that for another reason but in answer to your question if the statute -- if the Commission have been constitutionally created, then I would see nothing wrong in a private recommendation to a prosecuting officer to prosecute because that would not have inspired fear and the selling would've -- would go on, we assume until there's an adversary proceeding in Court where the book can be defended.

I see nothing wrong with that.

Justice John M. Harlan: Supposing you have a high-minded District Attorney who says that these obscenity laws are illusory things and he's not going to prosecute without giving a publisher a chance both to read the book if he's a large publisher and he doesn't read every book on the bookshelves or give him a chance to make his own decision as to whether he's going to run the risk of prosecution or not and he does that universally in all cases under the obscenity statute.

Could he be enjoined from doing that?

Mr. Horace S. Manges: With the respect to First Amendment matters, I would say yes because this is putting undue pressure --

Justice John M. Harlan: Do you think the First Amendment stands on some different basis in any other so -- in any other provision of the bill of rights?

Mr. Horace S. Manges: Not of the bill of rights, no.

But as Mr. Justice Frankfurter said speaking for the court, there's a difference between a pure Food and Drug Act where you can have an absolute prohibition.

There's a difference between the belly and the mind when it comes to freedom of speech and freedom of press, you can't deprive people -- you shouldn't deprive people of constitutional right unless there has been an adjudication of obscenity without putting pressure on it.

Now, if you frighten a person of taking the books off sale, if the prosecutor -- if the District Attorney says this, “You better read this or else”, that's going to discourage the publication of literature.

We say there should be absolutely no restraints on publications until somebody starts the prosecution and tries the case out in a court in an adversary proceeding whether there is the opportunity to defend.

Justice Byron R. White: (Inaudible)

Mr. Horace S. Manges: Well, Mr. Justice White, there have been -- there are many of these injunctive statutes all over the country and you know to make them right and constitutional and to give them the opportunity to defend, there is a provision that one of these proceedings started, there is an opportunity for the publisher or anybody else to come in and defend even though the bookseller thinks it's too expensive or for any other reasons decides not to defend.

So the publisher always hears about this and he would just come in to defend his book.

In that way, even though the bookseller doesn't defend, he will, if everybody deliberately defrauds and I see no reason for not having the adjudication of obscenity.

Justice Byron R. White: What publisher defrauds?

There's not any constitutional evidence here.

Mr. Horace S. Manges: Well the publisher -- I've never had published the defrauding.

Justice Byron R. White: Never heard a publisher admitting obscenity?

Mr. Horace S. Manges: Admitting?

Rather.

Rather.

But if -- if the -- and I think the proceeding, several proceedings have instituted ordinarily if the bookseller defends, the publisher is in there with him defending or if the bookseller says it's too expensive to me, but then publisher will defend.

And the Court has a chance of adjudicating.

Justice Byron R. White: And the publisher?

Mr. Horace S. Manges: And the publisher.

Justice Hugo L. Black: I suggest that you might find everything reading in the debate that appears in the Senate some years ago, with reference with to the Amendment by Senator Cutting to the tariff bill in which it was finally settled on the basis that they could do it, let's find out what was obscene by having trials in Court, where a jury trial was granted.

Mr. Horace S. Manges: Well, there are -- Mr. Justice Black, there are trials, jury trials provided in -- under certain statutes now, for instance in New York City, there's a provision of the law without --

Justice Hugo L. Black: Simply calling your attention to the fact that as I understand it, basically, you're raising the question whether the State can create agencies which shortcuts or bypass to put up our obstacles or hurdles to the constitutional right to a trial before a man who is harassed or pressured by governmental agencies into suppressing certain books.

That was the basis of the debate which took place in that -- and that with reference to that territory.

Mr. Horace S. Manges: I See, I've already finished about half of that in my argument.

Chief Justice Earl Warren: Did you say you have -- you said you have one more constitutional point to raise, did you?

Mr. Horace S. Manges: Well, I haven't started my real argument at all, really.

Chief Justice Earl Warren: Well, --

Mr. Horace S. Manges: I have about 20 minutes.

Chief Justice Earl Warren: -- I give you five minutes to sum up and then I would give the Attorney General, of course, five minutes more also.

Mr. Horace S. Manges: Thank you, Mr. Justice Warren.

I'm saying that while it is true that publications that are obscene are not entitled to constitutional protection, it is equally true as stated by this Court that publications that no state has the power to restrict the dissemination of publications that are not obscene at the question of whether a particular publication is obscene or not obscene, involves a question of constitutional judgment as was stated by Mr. Justice Harlan in his concurring opinion in Alberts against California.

Such a constitutional judgment, we say, can be made only by a court.

Therefore, until a court decides what is obscene, we just don't know what publications ought to be deprived of their constitutional protection.

If the effect of a statute is to coerce the suppression of publications without a prior court determination, we have no assurance whatever that such suppression would be confined to publications that ought to lose their constitutional protection.

Such a statute would have a tendency to inhibit constitutionally protected expression.

That was just the kind of a tendency that led this Court to strike down the ordinance of Smith against California.

Now, I say this Resolution 73 has this very tendency because it confers the right and the duty on the Commission to educate the public as to any publication containing obscene or other, any et cetera is the word.

Now any book here plainly means specific books and the Commission has construed it that way.

Any education of the public as to what specific books are obscene constitutes and implies threat on prosecution unless the sale of those particular books is stopped.

And we say that that's what exactly what the Rhode Island legislature intended.

Now, in the Rhode Island Supreme Court, the rationale of the Court was mainly that there is no power here to order prosecution.

We say that power or lack of power is not the determining factor what is fundamental and what is inescapable here that this resolution which includes that confers on an official body that threat to recommend prosecution has had the effect of inhibiting the circulation of books in Rhode Island without the prior Court determination.

It gives some other reasons but they're dealt with it in the brief.

Now, I say to inject -- they said let us all do the voluntary cooperation and the record is absolutely the contrary.

And we say that to argue that this case involves voluntary cooperation is just engaging in semantics and nothing else.

These were threats from the beginning to the end and the result is you got 108 -- 108 publications taken off sale during that period.

And we don't know which one of them should have lost their constitutional guarantees.

And if this kind of procedure is allowed to go on, we don't know how many of the other states will encourage this and you have your adult population also deprived of what the Commission was talking about should not be published for those under 18.

We say that both the resolution on its face is unconstitutional because you can't have -- constitutionally have a non-court educate the public as to specific books.

And two, that the actions of the Commission are unconstitutional.

We ask the judgment below be reversed.

Thank you.

Chief Justice Earl Warren: Attorney General Nugent.

Argument of J. Joseph Nugent

Mr. J. Joseph Nugent: Mr. Chief Justice and members of the Court.

It should be noted at the outset that the appellants here, the publishers, do not challenge the proposition that we're dialing in the exercise of this constitutional mandate may enact legislation which is designed to educate the public in good reading habits and at the same time to encourage morality in its youth.

In view of this, there are, it seems to me, two issues to you.

One is the resolution in question -- Resolution No. 73 constitutional and if so, are the acts of the Commission constitutional?

Turning first to the terms of the Resolution, it must be emphasized that the Resolution does not permit, allow or authorize directly or indirectly the impairment of any of the constitutional rights of the appellants.

The Resolution does nothing more than great -- grant state sanctions to a group of individuals whose authority is limited to educating the public of Rhode Island with good reading habits and to investigate in the objectionable material and were warranted making recommendations to the Attorney General.

The Commission has no power beyond that listed in the Resolution.

It is so limited.

The Resolution in my opinion does not operate and cannot operate to impinge upon any of the appellant's rights.

With reference to these notices, I think it's fair to state that these notices are merely guides to these six distributors in Rhode Island and their advisory in character, the distributor upon the receipt can either accept them in a spirit of cooperation or he can reject them, stand on his ground, and sell these books which are on the list.

I also want to point out --

Justice William O. Douglas: Is the Commission authorized to send notices to the police?

Mr. J. Joseph Nugent: That's just incidental.

There's nothing specified in the Resolution.

Actually, Mr. Justice Douglas, copies of these notices are sent to the Chiefs of Police in the various cities and towns in Rhode Island.

Justice William O. Douglas: How many -- how many -- how many prosecutions have there been preparedly to comply with the request of the Commission?

Mr. J. Joseph Nugent: Actually, there hasn't been any.

There was one prosecution in Newport of a distributor who were actually performing a dual function there.

He was distributor and a retailer for selling a book which was on the list, the book called ‘Peyton Place', and this was a result of a grand jury indictment for violation of the -- violating the provisions of the criminal statute.

Justice William O. Douglas: I know what you're saying in your brief the fact that the distributor exceeded to the suggestion of the Commission to get that the distributor also agreed that the books were obscene.

Mr. J. Joseph Nugent: Well, of course, I can't agree with the allotted conclusion that he agreed also that the books were obscene.

Justice William O. Douglas: I was just -- I was quoting your brief.

Mr. J. Joseph Nugent: Yes.

If you notice in the -- he agreed to cooperate --

Justice William O. Douglas: A very reasonable inference you say to be drawn from Silverstein withdrawal is the Silverstein realizing that the books were objectionable.

Mr. J. Joseph Nugent: Yes sir, well, objectionable.

That's the term I was going to use because you notice on those the word that was used in all these different notices not the books were obscene but they were objectionable for sale, distribution and display for youths under 18.

I also want to point this out --

Justice William O. Douglas: Well, why would a -- what differences will it make whether they're objectionable or not if they weren't obscene or indecent?

Mr. J. Joseph Nugent: Well, of course --

Chief Justice Earl Warren: And why would they have the right to recommend prosecutions for the sale of any book that was not obscene or indecent just because it was objectionable to the Commission?

Mr. J. Joseph Nugent: Well, it's my understanding Mr. Chief Justice that some of these books were horror books and they didn't come within the definition of this Court in the Roth case, and those books were on the list.

Some of those books were on the list.

Chief Justice Earl Warren: Would that be subject to prosecution in Rhode Island?

Mr. J. Joseph Nugent: No.

No, Mr. Chief Justice.

Chief Justice Earl Warren: Well then, wouldn't it be a restraint if the State Commission recommended prosecution for such things?

Mr. J. Joseph Nugent: I don't think so.

In Rhode Island, we have a very peculiar system.

We don't have the County Attorney system or the District Attorney system.

The Attorney General has exclusive jurisdiction on the prosecution of all criminal cases.

And he has the final word on whether or not prosecution should be initiated.

The members of this Commission, the most they could do would -- they recommend and the fact is they'd have recommended in some cases that I initiate prosecution against some of these distributors.

But there is only one case and I say that didn't -- that case did not resolve this or did not come about as a result of these notices.

There's only one case in Rhode Island during the last five years where a bookseller had been prosecuted for violating the criminal -- the provisions of the criminal anti-obscenity statute, and that was in the Peyton Place case.

So that to say --

Justice William O. Douglas: Who won that case?

Mr. J. Joseph Nugent: Well, the State prevailed on the jury trial level.

The verdict was said that the bookseller was guilty of selling an obscene book.

The implication being of course that Peyton Place is obscene but the trial justice granted a new trial on a technical legal ground unrelated to the question of obscenity.

Chief Justice Earl Warren: To what extent Mr. Attorney General did the booksellers comply with these recommendations?

Mr. J. Joseph Nugent: As far as I know, there was -- there are six distributors by the way in Rhode Island.

Four of them complied and two of them in effect stood their ground and disregarded these notices and went ahead which they had a perfect right to do.

And they sold these books, and the fact remains that not one prosecution was initiated as a result of them doing that.

Chief Justice Earl Warren: Well, does that mean that the power of the Commission is a dead letter or does it mean that the law wasn't enforced?

Mr. J. Joseph Nugent: No, I say this Mr. Chief Justice --

Justice William O. Douglas: Well, maybe this was being enforced against the books that were not obscene.

Mr. J. Joseph Nugent: No.

They're no the -- well of course, some books around these lists that were not obscene as I understand it.

Some of these are so-called horror books around them, and as I say in my opinion, they did not come within the definition of this Court in the Roth case.

But --

Justice John M. Harlan: Do you find yourself as Attorney General having to do a lot of outside reading as a result of this Commission?

Mr. J. Joseph Nugent: I can say this, Mr. Justice Harlan, that I have the final word on whether or not prosecution should be initiated and as I say there was only one case in the last five and a half years which has been initiated as a result of -- should I say done as a result of these notices but because in my judgment I thought the book was obscene.

Justice John M. Harlan: There's nothing in the statute that requires you as Attorney General to institute or refuse to institute prosecution.

Mr. J. Joseph Nugent: No, there is not.

Justice John M. Harlan: Or institute a jury, you're not bound by the action of the Commission.

Mr. J. Joseph Nugent: No, I'm not.

And I might say that there have been books that have been submitted to me for review for appraisal and I have different, come to a different conclusion that the members of the Commission with reference to whether or not they were obscene.

And as a result, no prosecution was initiated.

Chief Justice Earl Warren: But as a matter of practical effect of this Commission, if two of the main distributors of the State have distributed these things for six years now and four of them have gone entirely out of business so far as these publications are concerned, and many of them are magazines that could not be proscribed, doesn't it follow that there has been a restraint on the publication of literature that it is not unlawful?

Mr. J. Joseph Nugent: Not in my judgment, Mr. Chief Justice.

Not in my judgment, Mr. Chief Justice.

I feel that the distributor has the choice either to stand on his ground if he differs with the finding of the Commission that these books are objectionable and to sell these books at his peril and incidentally, since the decision of this Court in the Smith case in which as you recall this Court struck down a Los Angeles ordinance which made a criminal offense to sell obscene books without proof of scienter in that case.

I think that in order to successfully prosecute a bookseller for violating the provisions of the criminal anti-obscenity statute in Rhode Island that a person in authority such as the Attorney General should make a preliminary judgment and put these distributors and booksellers on notice that in the judgment of the Attorney General, such and such a book is, in his opinion, legally obscene and then of course the bookseller can stand on his ground and sell a book in his own peril, and take his chances in Court with a judicial determination as to whether or not the book is or it is not legally obscene.

We had that situation about a year ago in Rhode Island.

The book ‘Tropic of Cancer' if you recall that book was band from importation of the United States from 1935 until June of 1961.

And in the fall of 1961, the book was on display on the newsstands, our newsstands in Rhode Island.

A complaint was made some May firstly that in the opinion of this person, the book was legally obscene.

That was on a Friday afternoon.

I read the book over the weekend and I concur, and I made a public announcement on the following Monday that in my opinion, the book was legally obscene.

And the result was that some of the distributors who had issued these books and had them on the newsstands voluntarily recalled not one bookseller or distributor chose to take his chances in Court with a judicial determination.

There were some criticisms of my action in that case and -- but I welcomed a court test, but it never came about.

And so it is with this situation here as far as the actions of the Commission to encourage morality in youth.

I think it's important to recognize the phraseology of this Resolution.

In 1955 and 1956 in Rhode Island, we have a -- an increase in these so-called trashy magazine.

I think that was the characterization of my brother Mr. Manges, on with reference to some of these dirty magazines.

And the legislature recognized that the situation and it seems to me in the exercise of that constitutional mandate, they enacted this Resolution and they were very careful with reference to the phraseology.

I was a member of the legislature at that time and I remembered very well.

And it seems to me that they actually did two things.

First of all, in the very first paragraph, they authorized this Commission to educate the public that was probably used under 18 but also adults as well.

And then later on, it also said to investigate the causes of juvenile delinquency and to make recommendations to the Attorney General.

And it wasn't until July of 1957 that this Commission started to send out these notices.

I can frankly say, “Hey, I never saw these notices before they went out.”

But my predecessor, Mr. -- who is now on the Supreme Court of Rhode Island, Mr. Justice Powers, he did.

And he advised the members of this Commission to send out these notices, these guide lists which, in our judgment, are merely advisory and nothing more.

And the distributor, as I said before, can stand his ground and sell these magazines, books and magazines at his own peril.

This situation, this factual situation, I think is very important.

And it's quite unlike the situation you have in New Jersey in the Melko case, and that was around 1954 with reference to the book “The Chinese Room”.

And in that case, the county prosecutor, one of the counties in New Jersey, he made a statement and in his opinion that this books was obscene and that anybody who had it in their possession, any news dealer or bookseller should get it out of circulation and the result was the action was instituted against it.

And --

Justice Hugo L. Black: What was decided?

Mr. J. Joseph Nugent: In that case, there -- actually it was in 1953, Bantam Books secured an injunction in the Superior Court against the prosecutor.

The appeal limited it in the appeal, the Appeals Court, it limited their decision to the single book in issue, “The Chinese Room”.

It rejected as rule the Superior Court's ruling that the prosecutor lack the authority to promulgate list of objectionable books.

The prosecutor took this as a blanket endorsement of his activities and threatened a new drive, that's a next shift in the New York Times and also it's in the 38 Minnesota Law Review at 295.

But this is different because in New Jersey --

Justice Hugo L. Black: But do you think -- do you think that that was bad, objectionable legally for prosecuting attorney to threaten prosecution but it's not bad for the State to set up a Board which is not a part of the Court to go over the books and send that lists for the prosecuting officer?

Mr. J. Joseph Nugent: Mr. Justice --

Justice Hugo L. Black: How do you distinguish those two?

It may be that there is a ground or there's not.

Mr. J. Joseph Nugent: Mr. Justice Black, in answer to your question, first of all I think that the county prosecuting attorney had some foresight to foresee what -- by chance of course, what (Voice Overlap).

Justice Hugo L. Black: But do you think it was part of it?

Mr. J. Joseph Nugent: I think as it turned out, having in mind the Smith case, I think if something like this has got to be done today by somebody in authority such as a county prosecutor in those states where they have the county prosecutor system or in those states where they have the District Attorney system who prosecutes for the District Attorney prosecutes criminal cases, or as in Rhode Island where the Attorney General has exclusive jurisdiction of prosecution of criminal cases that he has got to do something like that.

In other words, he's got to make a preliminary judgment and what his opinion is to put these booksellers and distributors on notice.

Justice Hugo L. Black: I presume that's frequently done in states by prosecutors with reference to different charges or offenses sometimes for them having passed on it.

He says, I will consider this defense and prosecute it.

Do you think that your Board stands on precisely the same ground?

Mr. J. Joseph Nugent: No, I do not.

But this very simple reason, Mr. Justice Black, this Board had no power or whatsoever other than what it expressly declared in the Resolution.

Justice Hugo L. Black: Well, you mean it had no power --

Mr. J. Joseph Nugent: To initiate --

Justice Hugo L. Black: Actually to initiate --

Mr. J. Joseph Nugent: Prosecution.

Justice Hugo L. Black: -- and convict people and stop them.

Mr. J. Joseph Nugent: Right.

Justice Hugo L. Black: But practically speaking, you'd assume you would agree that it would have been creative except for the belief that it would have considerable power to keep booksellers from selling certain books honestly deemed against the public welfare.

Mr. J. Joseph Nugent: I agree --

Justice Hugo L. Black: The state agency for that purpose.

Mr. J. Joseph Nugent: I agree with that conclusion.

I think that this Resolution was designed originally for that very purpose.

But there was no teeth put into this Resolution.

Justice Hugo L. Black: Do you mean there's no teeth insofar as they're being able to start prosecutions in the Court of their own motion?

That's what you mean by no teeth.

Mr. J. Joseph Nugent: That's right.

Justice Hugo L. Black: But it does have the teeth, it will be given to anything of that kind when the State puts it prestige in power and money behind an agency which wants to -- certain views to prevail here to use with reference to certain books.

That's right, isn't it?

Mr. J. Joseph Nugent: That's right.

Justice William O. Douglas: I gather that the Commission acts sometimes by divided vote.

Mr. J. Joseph Nugent: Yes, sir.

That's right, Mr. Justice Douglas.

Yes, sir.

Justice William O. Douglas: And that might be -- maybe three or two.

Mr. J. Joseph Nugent: If you notice in the -- in those notices that says by majority vote --

Justice William O. Douglas: Yes.

Mr. J. Joseph Nugent: They find these books to be or magazines to be objectionable for sale to youths under 18.

I think they have in mind the decision of this Court in the Butler case.

Justice William O. Douglas: I wonder how you can possibly consider obscene a book that by distinguish citizens of Rhode Island like before this Commission disagree it for.

Mr. J. Joseph Nugent: Well --

Justice John M. Harlan: There's nothing new in this Court, isn't it?

Mr. J. Joseph Nugent: Now, that --

Justice John M. Harlan: There's nothing new around here, isn't it?

Mr. J. Joseph Nugent: Well, I can -- I was going to say that that happened in California in the Tropic of Cancer case where two different juries, one in Los Angeles County up in the section of Beverly Hills, they found the book to be legally obscene, Tropic of Cancer whereas in Marion County, apparently have different community standards, they found the book not to be legally obscene.

Justice John M. Harlan: How does Lady Chatterley's Lover stand in Rhode Island?

Mr. J. Joseph Nugent: I -- frankly, as far as I know it's not on the list of objectionable books to be sold to youths under 18 which should not be sold to youths under 18, Lady Chatterley's Lover.

I think that's correctly do on style as far as the reading public of Rhode Island is concerned.

Justice Hugo L. Black: What did you say?

I didn't quite understand what you said about it.

What did you stated?

Mr. J. Joseph Nugent: Lady Chatterley's Lover, as far as I know it's not on the list of objectionable books for those -- for youths under 18.

Justice Hugo L. Black: I thought you said (Voice Overlap).

What did you -- did you express a view about it?

Mr. J. Joseph Nugent: No, I did not.

That was the (Voice Overlap).

Justice Hugo L. Black: I misunderstood you.

I just thought you said, suppose you would.

Chief Justice Earl Warren: As far as you know, this is on sale in Rhode Island?

Mr. J. Joseph Nugent: That I do not know.

Chief Justice Earl Warren: I was wondering Mr. Attorney General, if these lists of books are made public, the list that they send to the Chiefs of Police and to the stores --

Mr. J. Joseph Nugent: No, they are not.

Chief Justice Earl Warren: They're not --

Mr. J. Joseph Nugent: No, sir.

Chief Justice Earl Warren: They're not published.

Mr. J. Joseph Nugent: No.

They are sent to the distributors and there are six of them in Rhode Island and there are also copies of those notices are sent to the Chiefs of Police.

Justice John M. Harlan: Do you think that your case would be different in view for one way or the other if practice of this Commission had been limited to simply giving the District Attorney or the Attorney General its views of the books on which they thought prosecution ought to be instituted without sending these broadcast notices to the police?

Mr. J. Joseph Nugent: Well, the fact of the matter is Mr. Justice Harlan, is that these copies of the notices I sent to the various police departments in Rhode Island --

Justice John M. Harlan: Why is that?

What's the purpose of sending them?

Mr. J. Joseph Nugent: Incidentally, the police department checked up on these books before the Commission ever came into existence.

They were just following up a new policy or procedure that's been in existence for a long time in Rhode Island starting out with the City of Providence.

They had an amusement officer.

They call him amusement officer.

They are used to pass upon films then the scope of his work brought him to other fields probably books and magazines.

And as far as I know, the Providence Police Department, at least I can say this, they were the most active to follow up these notices as they did with -- at the outset, they went to Silverstein's place and to find out how many books that run on the list were in circulation and what thing did they do as a result of receiving these notices.

I want to say this to the Court that in Rhode Island we're in favor of giving these publishers their day in Court.

They've never avail of themselves of it either in the Tropic of Cancer controversy, not that it was published by any of the publishing companies that Mr. Manges represents but even with references in having their distributors and I think it's worthy of note here that the distributors are not complaining, it's the publishers who are complaining.

The distributor and this man Silverstein is a very intelligent man as I remember the Rhode Island bar.

This, in my opinion, I can truthfully say as a voluntary act on his part to cooperate with this Commission.

And as a result of course his cooperation, the bookstands in Rhode Island according to the annual reports of the Governor are in better condition now with reference to obscenity than they ever were in the last ten years.

Chief Justice Earl Warren: Well, does Mr. -- whatever his name is who is distributing these, didn't he say that he just wanted to do to cooperate or didn't you say he did it in order to avoid being involved with the law.

Mr. J. Joseph Nugent: That was not the distributor.

That was his manager, Mr. Chief Justice, who made that statement.

Yes.

Chief Justice Earl Warren: His manager.

Mr. J. Joseph Nugent: Yes.

Chief Justice Earl Warren: It was someone on his behalf.

Mr. J. Joseph Nugent: Yes.

Chief Justice Earl Warren: Yes.

Mr. J. Joseph Nugent: You should rather to get into court controversy of some kind that they --

Justice William O. Douglas: I see the Commission has been --

Mr. J. Joseph Nugent: -- complied.

Justice William O. Douglas: -- proposing to distributors that the Commission read all the magazines if they get the distributors while they're distributed.

Is that policy being carried into effect?

Mr. J. Joseph Nugent: The distributors read them all?

Justice William O. Douglas: No, the Commission wanted -- I see on page 110, the Commission wanted to read the magazines before the distributors distributed them.

Mr. J. Joseph Nugent: That's not being done, no.

No sir.

Justice William O. Douglas: Well, that'd be more effective with it, wouldn't it?

Mr. J. Joseph Nugent: I think so.

Justice Hugo L. Black: Would you mind stating what you understand to be the real objective of the Commission?

Mr. J. Joseph Nugent: First, I think it's designed to educate the public of Rhode Island with good reading habits.

Justice Hugo L. Black: Would you mind explaining to me now what you mean by educating the public of Rhode Island?

Mr. J. Joseph Nugent: Well, I say --

Justice Hugo L. Black: It's just an ordinarily language what is its objective?

Why did they want to do this?

Mr. J. Joseph Nugent: Well, they -- it's not a question.

I can put it in a negative way better I think.

It's not a question of telling to the adult public, of course, in both classes, adults and those under 18 what they can or cannot read.

It's merely in my opinion, they have another side of this right away.

Justice John M. Harlan: They want to keep obscene literature off the stands.

It's just as simple as that.

Mr. J. Joseph Nugent: Yes, indeed it is.

Justice Hugo L. Black: Well, how did they want to do this in your words?

Mr. J. Joseph Nugent: Well they do it in two ways.

First of all, by sending out these lists to the distributors of books that are objectionable for sale, distribution and display to youths under 18.

That's one.

Justice Hugo L. Black: What hope to be accomplished by that?

Mr. J. Joseph Nugent: Well, it seems to me that those notices are designed really in the hopeful expectation that these distributors will cooperate with these notices.

Justice Hugo L. Black: What do you mean by cooperate?

Mr. J. Joseph Nugent: Well --

Justice Hugo L. Black: We'll not sell those books that had come to -- that had met the display of the Commission, isn't it?

That's what you mean by cooperation.

Mr. J. Joseph Nugent: I think that's the hopeful expectation of the members of the Commission.

Justice Hugo L. Black: May I ask you, what's the difference in that expression which has recently come into both of exposure for exposure's sake on that?

Mr. J. Joseph Nugent: The distinction between the two?

Justice Hugo L. Black: Yes.

What is the object of what the Commission does except to expose for exposure sake, meaning to expose in order that the people will not sell these books, that the distributors will refuse to sell these books which have met indiscretion of the Commission.

Mr. J. Joseph Nugent: I'm not familiar with that distinction.

Justice Hugo L. Black: Is that the object that by publishing it and looking into them and sending the reports that will keep the booksellers from selling the books that have met the displeasure of the State Commission.

Mr. J. Joseph Nugent: Incidentally, there's no publication of these notices.

These are sent for whatever (Voice Overlap)

Justice Hugo L. Black: Well, whatever is done, I believe that all words do not fit.

What I want to find out here if the object and purpose of this Commission, you are certainly familiar with it, is I'm not saying it's wrong or that it's unconstitutional.

But if there are written purposes by getting these lists of books and giving such publicity to them as they do give, whatever that is, is not his or is not with the hope and the object on the part of the State of preventing the sale of those books and these large numbers of them in state.

Mr. J. Joseph Nugent: Well, of course, as I say, I can put it to you this way.

Justice Hugo L. Black: Well, is there any other purpose except that?

Mr. J. Joseph Nugent: Yes, there is another purpose and it's an affirmative one, to cultivate good reading habits in the adult and not only the adults but those under 18.

They have another list, which they recommend, of books which are --

Justice Hugo L. Black: In other words, directory have those read they want read, they think should be read, and those not read they think should not.

Mr. J. Joseph Nugent: That's right.

Justice Hugo L. Black: That of course could be done with reference to political books, couldn't it?

Mr. J. Joseph Nugent: Yes, but their recommendations as far as the reading of these books is concerned as I say, is not compulsory, it's not a mandatory thing on the part of anybody to accept it.

Justice Hugo L. Black: But suppose, probably they wouldn't do it but suppose the same Board as to your argument, in fact there has no -- there's nothing to do that's been constitutionally, suppose it puts out a list of those books that it thought the most desirable at the State's expense to be read and divided them according to parties and they would want a party over the other, books of one party over the other.

Would that be permissible?

Mr. J. Joseph Nugent: I don't think so, Your Honor.

They don't do that in Rhode Island.

Justice Hugo L. Black: I know that.

I know that.

Mr. J. Joseph Nugent: And I don't think it'd be permissible --

Justice Hugo L. Black: If it's not a state activity intended to reduce in some way the opportunity to read certain types of literature, then it wouldn't violate the law from the dividing up according to political basis, would it, or religious?

Mr. J. Joseph Nugent: Yes, you could go on and in other classification of people too.

Justice Hugo L. Black: But you of course wouldn't say they could do that.

Mr. J. Joseph Nugent: No.

I don't mean anything and I say they don't do it.

Chief Justice Earl Warren: Well, they have gone beyond obscenity and indecency, haven't they, because you say they have included in their lists some of these books that you describe as horror books that cannot be proscribed because of any violation of public morals?

Mr. J. Joseph Nugent: That's true, Mr. Chief Justice.

Chief Justice Earl Warren: I was saying and wondering about the same things Justice Black would, how far can they go in that if it isn't -- if they don't want to stop proscribing or recommending the stoppage of horror books, then could they go to some other kind of literatures, some other kind of literature and until there'd be -- there would be a very clear restriction of literature.

Mr. J. Joseph Nugent: My answer to that is that if you come to the conclusion as I have that these notices, these guide lists are merely advisory in character not binding on anyone particularly the book distributors or the booksellers.

I say, if you come to that conclusion, then it seems to me that they have no value whatsoever as far as official sanction is concerned.

It's something that during on their own, they don't have any expressed authorization to do it in the Resolution which created this Commission.

Chief Justice Earl Warren: I haven't been a prosecutor myself.

I always felt that there was some significance to the action of a -- of a state or body saying now either you do so and so or I'm going to go to the public prosecutor.

Mr. J. Joseph Nugent: That's true.

Chief Justice Earl Warren: And I'm just wondering if that isn't using state -- the state to proscribe the same with these things.

Mr. J. Joseph Nugent: And yet if that's so, Mr. Chief Justice, the bookseller or the book distributor can take issue with the prosecutor and say --

Chief Justice Earl Warren: It isn't the prosecutor he's taking issue with.

It's these other people who are initiating.

Mr. J. Joseph Nugent: Members of the -- yes.

But I don't think there's anything in the law which prohibits a private citizen from going to the local prosecutor whether he'd be a District Attorney or County Attorney or the Attorney General in making complaint that in his opinion, the individual citizen's opinion that the distributor has, in his possession, a certain book which in his opinion is legally obscene and says to this distributor, “If you don't get it out of your possession, if you don't sent it back to the publisher, then I'm going over to the prosecutor and I'm going to make a square out a criminal complaint.

I think there's nothing else about that.

Chief Justice Earl Warren: Well I don't know a private citizen can save to contract in a man in that manner but I do believe that a prosecuting officer could say after reviewing the book in his opinion it is and if he continues to sell it, that he's going to prosecute him.

I think that's alright.

I'm not so sure that a private citizen could threaten a man because that could come pretty close to extortion and a lot of cases.

Mr. J. Joseph Nugent: Well, of course, I didn't use the word threaten, Mr. Chief Justice.

I hope that it was not interpreted to mean that the citizen was threatening these bookseller or distributor.

He was merely putting him on notice of this thing, that in his individual opinion that this book was legally obscene.

Now, if you multiply that individual by nine as you have here, this is a nine-member commission, the only thing different about that and the result is that this Commission has been created by the state legislature.

Actually, it's a state agency.

And so from that standpoint, it has some standing but the important thing, I think, to remember is that they have no power to prosecute, to initiate prosecution that that is exclusively belongs to the Attorney General and as this Court has said on federal questions, he has the final word.

Justice Hugo L. Black: Suppose the state legislature were to pass a bill which put these particular books on the list, they were to be published, that list were to be published in showing the public that the offenses in violation of the law, could the legislature pass that law?

Mr. J. Joseph Nugent: No, I think that clearly would be unconstitutional in my opinion to acquire.

Justice Hugo L. Black: Why?

Mr. J. Joseph Nugent: Well, for one thing, first of all, you have a -- the legislature by legislative fiat declaring that such and such a book is obscene.

Justice Hugo L. Black: You're pretty close to the bill of attainder in some aspects.

Mr. J. Joseph Nugent: It seems to me it violates at least one provision of the federal constitution.

Thank you, Mr. Chief Justice.

Unknown Speaker: May I just refer to two short excerpts.

Chief Justice Earl Warren: Yes, (Voice Overlap).

Yes, alright.

Unknown Speaker: At page 33 of the record, there's the testimony of Mr. Gerald Kaplan, the manager of the Silverstein.

Incidentally, when I subpoenaed Silverstein, he said Kaplan knows more about this than I do.

Please have him as a witness because he is the important one.

That's why Mr. Kaplan was the witness, not Mr. Silverstein.

The question in 64, I said to Mr. Kaplan, page 33, “The substance, as I understand it, you stated that books -- that you took books on sale and refuse to accept anymore accounts, that you didn't sell anymore books was because in effect, you didn't want to get entangled with the authorities, with the Commission in connection with any court proceeding.”

Answer: “That is correct.”

That doesn't sound as though Mr. Silverstein was reading books were obscene.

Now, I turn to page -- there's a very -- page 111, this is my last reference.

Page 111 of the record, there is an interesting exchange between two members of the Commission, Father Flannery and Mr. McAloon, both appellees.

And this is their question whether this was voluntary compliance.

In the middle of page, Father Flannery, noted that he had been called about magazines proscribed by the Commission.

This is their own minutes.

This was what they're saying, their minutes of October 9, 1957, remaining on sale after list has been sent to distributors and police to which Mr. McAloon suggested that it could be that the same magazines were seen but there are probably was not the same edition proscribed by the Commission.

Father Flannery, pressing the statewide compliance by the police or anyone else to get the proscribed magazines off the stand, Mr. McAloon show the Commissioners, the questionnaire sent to the Chiefs of Police from this office and return to us.

The word ‘proscribed' in the American College Dictionary means prohibited as, Your Honors would well recognize.