JACOBELLIS v. OHIO

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Argument of Ephraim London

Chief Justice Earl Warren: Number 164, Nico Jacobellis, Appellant, versus Ohio.

Mr. London.

Mr. Ephraim London: Mr. Chief Justice, justices of the Court.

This appeal is from an order of the Ohio Supreme Court, affirming the conviction of the appellant Jacobellis on two felony counts; one was the possession of a motion picture film that was said to be obscene, the name of the film was “The Lovers” and the other felony of which he was convicted was exhibiting the film.

Jacobellis was the manager of a theater in Cleveland Heights, Ohio.

He had nothing whatever to do with the selection of pictures.

His function was running the theater physically, seeing to it that employees were present and projecting the film and so on.

The films were actually selected by the owner of the theater which by the way was one of the fairly large chains and the owner was a resident of Ohio.

I shouldn't describe the film itself, the film is in exhibit and I think --

Justice Arthur J. Goldberg: He of course reviewed the film before it was shown, as the manager of theater?

Mr. Ephraim London: Yes, Your Honor, he knew the content of the film.

He had shown it to some critics before he exhibited it.

And he arranged for public exhibition and the point of fact, the police chief called up and asked about the film when he saw an ad for it, and Mr. Jacobellis said, “Come on and see it,” invited him to the first showing.

The -- as I say, a sheriff described the film itself except to mention that particular objection seems to be taken by the State and by the Ohio Supreme Court to one sequence in the film which as a matter of fact is not within the range of a camera.

It takes place off screen.

One does not see what is happening but the State believes and offered witnesses to state that they felt that something that was pretty obscene was going on out of the camera range and I think, Your Honor, this is pretty much like saying that the photograph of an apartment house has a blurry picture because of what has going on behind the darkened windows.

Justice Potter Stewart: What is on screen, an apartment house?

Mr. Ephraim London: What is on screen is a woman, Your Honor, and you see her face and bare shoulders.

She is lying in bed, and prior to that time, there has been a scene of love making between the woman and the man.

You don't see any act of love but it's quite obvious that they are making love to each other or at least that they're in the bed for that purpose.

Justice Potter Stewart: So this -- in your apartment house in our view is something of a euphemism?

Mr. Ephraim London: I don't think the analogy is exact, but one must imagine what is going on and when what one cannot see in order to say that this particular sequence is obscene.

Justice Potter Stewart: Well, I understand. I was just curious.

Chief Justice Earl Warren: Was the advertising of it had anything to do with it?

Mr. Ephraim London: The advertising does in this respect that I think the State relies to a very large extent in order to show intent and knowledge of obscenity on in the advertisement that appeared in a newspaper.

Chief Justice Earl Warren: Who was responsible for that?

Mr. Ephraim London: The owner of the theater.

The ad is made up, sometimes mats are supplied.

The manager of the theater has nothing to do with the advertisement but he must place it in a local paper and of course in placing it, he can read the text of the advertisement and the advertisement in this case said that this was the most daring love story ever filmed.

However, I think the Court can take judicial notice of the fact that many advertisements color very highly, the content of the film or a book, and frequently exaggerate the sexual appeal.

This is -- this is almost standard.

As a matter of fact, I remember when the guidance committee was conducting an investigation of pornography, one of their chief objections was to the deceptive nature of the covers of certain books which led one to believe that he was reading a lurid film or buying it, when as a matter of fact, what he was getting was a classic so that one could not really have been put on notice by the content of the advertisement.

I think it should be noted that this film has won two important international prizes.

One was the second prize at the Venice Film Festival where it got the Silver Lion Award, and then, and the first prize at a Brazilian Festival.

It was said to be one of the best 10 films of the year by Bosley Crowther, the film critic of the New York Times, also by Hollis Alpert and Arthur Knight of The Saturday Review of Literature and it was extremely well reviewed by the critic of the Herald Tribune who testified.

Chief Justice Earl Warren: All things are in the record, are they?

Mr. Ephraim London: Yes, Your Honor.

These facts are all in the record and the point of fact, Mr. Beckley of the Herald Tribune did testify in this proceeding.

Justice John M. Harlan: [Inaudible]

Mr. Ephraim London: This was a testimony in the trial, Your Honor.

Justice John M. Harlan: [Inaudible]

Mr. Ephraim London: Well, the reviews that are -- the reviews that the -- the reviews that are in record are the reviews of Mr. Hollis Alpert and I believe Mr. Weiler of the Times, not Mr. Bosley Crowther.

Justice Byron R. White: They were -- they were -- this was a [Inaudible] before a three-judge court?

Mr. Ephraim London: It was before a three-judge court without a jury, Your Honor.

Are they entitled to a jury argument?

Mr. Ephraim London: You are entitled to a jury and the jury was in this case was waived.

Justice Potter Stewart: And if you waive a jury and you're not entitled as of right to three judges but you're entitled to the discretion of the Court?

Mr. Ephraim London: Yes, Your Honor there was --

Justice Potter Stewart: -- except for the capital case?

Mr. Ephraim London: There was a request for three judges and that request was granted.

Justice Potter Stewart: Yes.

Justice William J. Brennan: [Inaudible]

Mr. Ephraim London: Yes, Your Honor.

This was all brought out on the question generally of intent and also in the question of the quality of the picture.

Justice William J. Brennan: They have no [Inaudible]

Mr. Ephraim London: There is no -- no objection on that ground, Your Honor.

In addition to the reviews that I have mentioned and I should say by the way that Mr. Jacobellis, the appellant, was aware of the reviews but was not then aware of the fact that this picture was found to be one of the best 10 of the year that happened later.

But he was aware of the international prizes, he was aware of the -- or at least the major prize and he was aware of the reviews that had been received.

These usually come in the form of press clippings which are sent to the theater manager by the owner of the theater.

There was another factor of which he was aware and that is that the Customs Bureau had examined this picture and had made a specific finding that the picture was not obscene.

It usually does not make such a determination.

It did in this case because it held the film up to Customs.

The film was then apparently sent to the Washington Office of the Customs Bureau, it was examined there, and returned with the specific information and advice that this film was found not obscene under the -- under the tariff law.

Justice Potter Stewart: And Jacobellis was aware of that?

Mr. Ephraim London: He was aware of that.

Justice Potter Stewart: A time of the -- when he got possession of this movie and exhibited it?

Mr. Ephraim London: Yes, Your Honor.

He was aware of those facts.

He was also -- that fact, he was also aware that this film had been shown either at or near Columbus, Ohio and at or near Toledo, Ohio.

Before he showed it, there was no incident in either place.

It happened that later there was a showing in Dayton, Ohio and an arrest of a theater manager there.

Justice William J. Brennan: This relates to what issue [Inaudible]

Mr. Ephraim London: This relates to two issues, Your Honor.

One is the question of the obscenity of the film which is a constitutional issue and I shouldn't discuss that in any length but there's a related issue and that is the issue of what standards shall apply in determining whether a film is obscene.

This Court has said that a film to be determined obscene must be thought obscene according to contemporary community standards.

Now, the question becomes in this case, should one apply the standards of the local community which in this case was Cuyahoga County or the standards of the country at large.

I think it is clear from the record the judged by the standards of the nation, this film is not obscene.

Justice William J. Brennan: [Inaudible]

Mr. Ephraim London: Yes, Your Honor.

Justice William J. Brennan: And then secondly, the requirement of that -- of the --

Mr. Ephraim London: Yes this is a -- this is a -- not a requirement, Your Honor but the related question which has arisen in this Court two or three times, but is not yet been determined to my knowledge.

Justice William J. Brennan: Well then, [Inaudible] of this Court that there's -- it's not applied to national or international?

Mr. Ephraim London: No, Your Honor, but I think we can go beyond the determination of the Court.

They merely said that this film was obscene according to community standards and didn't say what the community was.

But if we look at the record, we will find that the only testimony that this picture offended community standards was testimony relating specifically to Cuyahoga County.

The questions were asked about what the people in that county thought and felt and believed in relation to a film of this kind.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: These were critics who wrote and published in Cleveland in the same county.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: There was -- there was a one lady from the national review, this and was not a national magazine.

Justice Potter Stewart: There's a Hollywood writer who --

Mr. Ephraim London: The Hollywood writer, Your Honor, I believe was those Mr. Hunt and Mr. Marsh were the two critics who testified other the critic from the national review.

Justice Potter Stewart: Well, is there a -- is there not a --

Justice Byron R. White: The records -- these facts also [Inaudible] --

Justice Potter Stewart: -- film in review -- films in review.

Mr. Ephraim London: May I say for a moment, Your Honor, that I have taken exception to the publication of that particular review as an appendix to the brief from the ground that it had been offered in evidence and then withdrawn by the State.

I thought it had no part of the appellee's brief and I don't think it ought to be considered by the Court.

Justice William J. Brennan: [Inaudible]

Mr. Ephraim London: Yes, Your Honor.

There's even a discussion in the record when there was an attempt to introduce evidence of standards in another area where the prosecutor made a point that the only relevant standards were the standards of Cuyahoga County.

Justice William J. Brennan: But was -- was -- was there an express ruling of the Court?

Mr. Ephraim London: No express ruling of the Court, Your Honor.

I just say that this Court has of course an obligation to go into the record where the question is --

Justice William J. Brennan: Well, I was just --

Mr. Ephraim London: -- is raised.

Justice William J. Brennan: -- just asking not -- I had some trouble with these -- trying to find out how this was an issue at all at the trial.

Mr. Ephraim London: I think it was -- it was made an issue at the trial, Your Honor because for one thing, all of the testimony that the prosecutor offered was testimony with respect to the local standards.

I think the other testimony indicated and all the testimony of national standards that I have spoken of indicated that so far as the standards of the people at large were concerned, this was not an obscene film, that it had shown for example in a hundred major cities in the United States, and that in none of those cities had there been any objection to the showing of the film.

Now, I should indicate that there were two or three cases where there was objection taken to the film.

This happened in Oregon and this happened in Chicago.

In both cases, the manager of the theater ultimately prevailed and the owner of the film.

The film was shown without finally in the last analysis without further complaint.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ephraim London: Your Honor, you do remember correctly, some half-minute of testimony was taken out of the version that showed in New York and Boston.

It was licensed in New York with one half minute less.

The witnesses who testified with respect to the two versions said they saw no difference.

That is the only testimony with respect to those -- to that change.

And the point of fact, a half-minute change could make very little difference under the circumstances.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ephraim London: Yes, I think at some three minutes that is objected to and it's the -- as I say the testimony was that there was no difference in reality between the two versions and the full version that was objected to here was shown in Chicago, was shown in Detroit, was shown in Michigan and was shown in many other places.

Justice William J. Brennan: [Inaudible]

Mr. Ephraim London: I think the issue was here in the evidence, on all of the evidence.

Justice William J. Brennan: I know but you've got to have evidence -- you have evidence on that part that you say each county -- this was [Inaudible]

Mr. Ephraim London: Yes Your Honor, you do have some witnesses --

Justice William J. Brennan: I think that there are some of these evidences of the area outside of this county which did [Inaudible]

Mr. Ephraim London: No, I think it was just mentioned just casually on cross-examination that there had been some difficulty in Oregon and ultimately, the owner of the film prevailed.

Justice William J. Brennan: Well you -- you're argument was -- I believe it's on this record assuming it should have been a national census that on that record there was no basis in evidence for inclusion that on that community standards.

Mr. Ephraim London: Yes, Your Honor, I would go further and say that the evidence was so overwhelming that it was not obscene that I think that we can take this and I have mentioned my reasons, the fact that it is shown in as many places as it was, I think is a pretty clear indication that the picture did not offend the standards in the cities that I've mentioned.

Justice Byron R. White: This community standards and arguments made then, isn't in your [Inaudible]

Mr. Ephraim London: The question of community standards was raised and I believe in a different way and I cannot speak of the argument because I wasn't -- I didn't argue the appeal.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: The brief, I think, very clearly raises the issue of the matter of community standards, as to the appellants brief in the Supreme Court of Ohio.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: They too do not state but I don't see what in the record they could have relied upon if they were going to find that this film violated the national standards of decency.

Justice Potter Stewart: After all the expert testimony is in, it's up to the trier of the facts whether the trier be a jury or a judge or as in this case three judges to make its own determination, isn't that true?

And isn't that inevitably going to be the local standard, certainly, it is with the jury?

Mr. Ephraim London: Well, Your Honor that --

Justice Potter Stewart: You don't draw it in the Cuyahoga County at Ohio.

You don't draw jurors from the Florida and California and Arkansas and Maine and Massachusetts.

You draw them from the county.

Mr. Ephraim London: That's perfectly true, Your Honor, but it's also true that this as it's been said in this Court that this Court must itself make its own judgment with respect to obscenity and I don't know how this Court could apply the standards of Cuyahoga County.

Justice Potter Stewart: But in the trial -- in the trial, it's inevitably going to be the standards of the place -- where the place -- where the case is tried, isn't it?

Mr. Ephraim London: That may very well be but to the extent that national standards would show us here that the film is not obscene, I think they must be applied.

Justice Byron R. White: What do you suggest, [Inaudible]

Mr. Ephraim London: Yes, Your Honor.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: Yes, Your Honor.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: Well, one of the difficulties we have is that the test of obscenity or the determination of obscenity is a constitutional judgment that each judge must independently make as I understand the opinions in this Court.

Justice Byron R. White: What does your point amount to?

Mr. Ephraim London: My point amounts to this that -- that this --

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: And I am stating now that this Court, in making the judgment of obscenity, should apply the national standards of decency and that according to those standards, this film is not obscene.

Justice Potter Stewart: We are bound by the expert testimony.

Mr. Ephraim London: I think you're bound by the fact -- by the evidence in the record, yes, Your Honor.

I think that I would go so far as to say that even if you -- in your personal judgment, you felt this was film obscene, you would still have or should rule.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: I wasn't speaking about opinion evidence.

I was speaking about fact, Your Honor.

I was speaking on the fact of this film.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: The fact that this film has been shown in so many places and has been accepted.

I think this is the fact.

This is proof of community standards.

I don't know what stronger proof we could have.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: I think that this would have been inevitable.

It was widely advertised.

The police were aware of it in every community.

There was no attempt to conceal the showing, not several as it was not done as an obscene thing.

It was shown so that everyone could see it.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ephraim London: No, Your Honor, I think -- then you must still exercise your own judgment according to the decisions or the opinion of this Court.

Justice Arthur J. Goldberg: What's the judgment?

Mr. Ephraim London: The constitutional judgment would be to determine whether this is obscene within the standards that you have laid out.

Justice Arthur J. Goldberg: In obscenity?

Mr. Ephraim London: Well, that's just one because I believe that it's possible for a film to have been thought obscene by a great many communities and yet this Court might consider the work of such value that you could not ban it as obscene.

Justice Potter Stewart: But you can't conceive of the opposite situation?

Mr. Ephraim London: No, Your Honor, I cannot.

Justice Potter Stewart: Why because of the --

Mr. Ephraim London: Because according to the definition that you have laid out, this film is not obscene.

Justice Potter Stewart: Yes but it's -- do I understand you to say that in the end, it's the judgment of this Court, the members of this Court or rather that the -- in the end, the members of this Court are bound by what various communities have done or failed to do?

Mr. Ephraim London: I'm saying in the last analysis is of course the judgment of this Court, but I also say that the Court should be guided by its own determinations in the past to the effect that the community standard should be applied and we have proof of community standards here in the actual exhibition.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ephraim London: I didn't indicate, Your Honor that they ought to be disregarded.

I meant to indicate that they were not controlling, but there might be other factors that -- this Court has outlined several criteria.

The community standards is one, if in any respect, the film does not meet the criteria of obscenity then it is not obscene.

Justice Arthur J. Goldberg: Would you define now the standards that the first -- the prior decisions of the Court, tells us about?

Mr. Ephraim London: The standards are these -- that the work must be judged as a whole.

I'm not going to go into that but this film was not judged as a whole.

Justice Potter Stewart: That stand -- that particular factor arose not from movie picture case but in the case of books and literature or something.

Mr. Ephraim London: I would think Your Honor that the same apply.

The criteria --

Justice Potter Stewart: But you would think that it hasn't been held so --

Mr. Ephraim London: No but I think that the Court has actually -- I would change my answer, yes, Your Honor.

It has been held so by this Court in Times -- the first Times Film case against Chicago where the Court overruled a determination in Chicago on the grounds of the Roth case indicating that the Roth case did apply to motion picture films.

Justice Potter Stewart: But do you think that this is the use of extreme case that if you had an hour and half movie of Rebecca of Sunnybrook Farm and right in the middle of the film, three minutes of the hardest core filthy -- filthiest pornography that's imaginable, do you think you should then say, “Well, 98% of this was Rebecca of Sunnybrook Farm.”

Mr. Ephraim London: No, Your Honor.

I would say that film would finally have to be determined by its dominant effect.

And if you went away from the film, feeling that it was a dirty picture then it would be an obscene picture.

And if you went away felling that the dominant effect was the portrayal of Rebecca of Sunnybrook Farm that there were three minutes that were revolting, I would end up by saying that this was a -- this was not an obscene film according to your judgment.

Justice Potter Stewart: But judging it as a whole is a --

Mr. Ephraim London: That doesn't mean that a particular part may not so --

Justice Potter Stewart: Dominate as a whole --

Mr. Ephraim London: -- and dominate the picture that it would not be judged but on -- as it happened in this particular case, the Ohio Supreme Court found the picture as a whole is extremely dull.

Chief Justice Earl Warren: Mr. London, did the trial -- the trial court refuse to consider this picture as a whole?

Mr. Ephraim London: We have no evidence of that, Your Honor.

Chief Justice Earl Warren: May I ask if -- if under your Ohio procedure, three-judge court of this kind is required to make findings to support its judgment.

Mr. Ephraim London: I do not believe so.

I don't believe other than the opinion that they are required to do.

I may be mistaken about that.

Chief Justice Earl Warren: Well then, how do you -- how do you know what standard it did use?

Mr. Ephraim London: From the evidence in the record Your Honor.

Chief Justice Earl Warren: Only from -- only from --

Mr. Ephraim London: Only from the evidence.

Chief Justice Earl Warren: -- only reading the entire --

Mr. Ephraim London: From the evidence in the record and from the -- from the clear evidence to the contrary with respect to national standards.

Chief Justice Earl Warren: But on the other hand, if you had chosen as you had the right to do to have a jury you could have had instructions on that subject that would have protected your right --

Mr. Ephraim London: Yes, Your Honor.

Chief Justice Earl Warren: -- could you not?

Mr. Ephraim London: We must take the record as we find it --

Chief Justice Earl Warren: Yes.

Mr. Ephraim London: Unfortunately, there was not a jury here and there were no specific instructions on that issue.

We can tell about the mental operation of the judge but we do know the evidence we've had before them.

Justice Arthur J. Goldberg: With reference to the Chief Justice's question, did you actually find it here [Inaudible]

Yes, Your Honor, the Court unquestionably went through the recital of the -- of the criteria outlined in Roth.

They did not say that they were applying contemporary community standards of Cuyahoga County in the State of Ohio or the United States.

Justice Arthur J. Goldberg: That's right and you also however said that they took the film as a whole, it means [Inaudible]

Mr. Ephraim London: Yes, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ephraim London: The reference that I made before was to the opinion of the Ohio Supreme Court.

Justice Arthur J. Goldberg: Now, in the trial court, the three-judge court, [Inaudible]

Mr. Ephraim London: Yes, Your Honor, they recited the test.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Ephraim London: Accepting Your Honor, I submit, that they could not have met the test with respect to community standards.

Justice Arthur J. Goldberg: That's right although they did not talk about their definition of community, you say [Inaudible]

Mr. Ephraim London: Yes, there's no contraction of that evidence.

Justice Arthur J. Goldberg: Now, when people who testified the film was offensive [Inaudible] United States citizen.

Mr. Ephraim London: We do in this record, Your Honor.

I have recited the -- and shown wherein each witnesses testimony this question of the community was stressed and the community was that of the Cuyahoga County.

They were not talking now then of national standards.

Justice Hugo L. Black: But when you refer to national standards, community standards -- you seem to refer to it as synonymous.

What do you understand by community standard?

Mr. Ephraim London: I understand the term that the Court used when it meant community standards was this nation, the people of this country.

And now they --

Justice Hugo L. Black: The whole country by community --

Mr. Ephraim London: Not the people of each state, not the people of each locality because I think that if we were to determine -- use the standards of a particular locality, we would be imposing such a burden on communication that it would make it almost impossible to publish periodicals, books and even films.

You can't make a separate film or separate version of the film for Cuyahoga County but you can make --

Justice Tom C. Clark: You think anybody in that county would be able to tell you what the standard is in San Francisco?

Mr. Ephraim London: This can be proved by other means as I think they were here.

Justice William J. Brennan: Mr. London, if you are right, that there are [Inaudible]

Mr. Ephraim London: May I call Your Honor's attention of the fact there was a dissenting opinion in the companion case, the Alberts case which indicated that different standards should be applied when the Court was ruling on a determination made by a state and I assume that because it was in dissent that the majority of the Court was of the other view and --

Justice John M. Harlan: (Voice Overlap) assumptions sometimes.

Mr. Ephraim London: It may have been.

Justice William O. Douglas: It's a pretty good one in that case though, was it?

Mr. Ephraim London: Well, this was my own interpretation and I'm pleased that Your Honor agrees.

Thank you.

Justice John M. Harlan: Can I ask you a practical question?

You tried a lot of these cases?

Mr. Ephraim London: Yes, Your Honor.

Justice John M. Harlan: Would you rather come before a jury or before a court?

Mr. Ephraim London: Always before a jury, Your Honor.

Justice John M. Harlan: Really?

Mr. Ephraim London: Yes.

Justice John M. Harlan: That's your point.

Justice Potter Stewart: Who asked to waive the jury in this case?

You weren't at the trial.

Mr. Ephraim London: No, I was not the trial counsel.

Unknown Speaker: [Inaudible]

Mr. Ephraim London: Well, the Court has indicated that it was a mistake and I would myself feel that I prefer the jury and I prefer the jury to have a precise charge from the judge as to what controlling law is and I believe in the jury system.

I very much prefer the jury and I would think that my experience in this field is perhaps been wider than that of anybody else in United States.

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: This has been --

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: Yes, this is of necessity and inaccurate statement, Your Honor, but my informed guess is about 30.

Justice Byron R. White: [Inaudible] at the trial?

Mr. Ephraim London: Yes, Your Honor.

Again, I couldn't verify this.

I can and I think I --

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: Three, Your Honor, but as I say in all cases, the owner of the film prevailed.

I should in candor indicate that there is one state where the picture was offered for license where the -- a change was demanded which the owner of the film refused to make and so the film did not show in that state.

I believe that was Virginia, but that of course is not --

Justice William J. Brennan: Is there any case whether [Inaudible]

Mr. Ephraim London: The only one is that I indicated before of something like 191 feet, a half minute about 31 seconds of actual playing time which was removed from the New York version and I believe also from the Boston version.

Thereafter, the owner of the film decided he would not make any concession.

And --

Justice Byron R. White: [Inaudible]

Mr. Ephraim London: No any, not even that one and to my knowledge he did not.

Justice William J. Brennan: It was a full version.

Mr. Ephraim London: It was a full version that played all over in Ohio.

Justice Hugo L. Black: Mr. London, I was interested naturally in your statement about the jury and I was also interested in your further statement after a precise charge given by the court, paraphrasing the sentence that came into some disputes some years ago as soon as circumstances will permit, I presume you mean as precise as the circumstances permit.

Mr. Ephraim London: As précised as the circumstances permit, I think that the Court has agreed that this is of necessity of vague definition.

Justice William J. Brennan: Does it matter Mr. London, I gather from the [Inaudible]

Mr. Ephraim London: They seemed to be using a combination of both and the most recent one that was proposed in Texas.

On this very question of community standards indicated that they would have to use community standards with the standards of the community, that the word “community” would mean an area not less than the State of Texas.

Justice Hugo L. Black: What statement [Inaudible]

Mr. Ephraim London: It was -- there was a prosecution in Portland, Oregon which as I say was ultimately unsuccessful.

There was a prosecution in -- or there was refusal to license in Chicago that was ultimately reversed and then there was the prosecution in Ohio.

Chief Justice Earl Warren: Does Chicago -- Chicago permitted them to run?

Mr. Ephraim London: Yes, Your Honor.

This film was shown in Chicago in the full version and I think the Court may perhaps take judicial notice that the regulations in Chicago are more stringent than they are in most of the states.

There was a specific finding of -- most of the cities, I'm sorry, there was a specific finding in the ruling by the local board that this film is not obscene under the Chicago limits.

Justice John M. Harlan: Was it shown in the District of Columbia?

Mr. Ephraim London: Oh yes, Your Honor.

This is one of the places that was named in the testimony.

Justice William J. Brennan: There's not much [Inaudible]

Mr. Ephraim London: No, there isn't any that I know of.

Justice Tom C. Clark: Could you say that one court tries the case on that fair charge of law and so forth and reach to the conclusion?

The question is barred then by res judicata thereafter throughout the nation.

Mr. Ephraim London: No, Your Honor.

I wouldn't say that.

I do think though that the determination by the Customs Bureau had some effect.

Justice Hugo L. Black: Had what?

Mr. Ephraim London: Had some effect and I think that they are certainly -- they must have been attempting to use the national standards of decency.

Thank you.

Chief Justice Earl Warren: We'll recess now Mr. -- Mr. Corrigan.

Argument of John T. Corrigan

Mr. John T. Corrigan: Mr. Chief Justice, Associate Justices, may it please the Court.

At the outset, may I address my remarks in part to the reply brief filed by the appellant wherein he sets forth the fact that in the Appendix 12 of my brief, that therein is cited a case which has been reversed.

That statement is correct.

That case has been reversed on appeal and reversed for the reason stated in the reply brief of the appellant, namely that the procedure employed was not in keeping with the Roth case.

The improper standards were implied -- employed in that particular instance.

I wish to point out to the Court however, that while I take the responsibility for citing that case, unfortunately, the two assistants that have -- that in this case up until this time are no longer in the prosecuting attorney's office, one of them having gone on to the Assistant District Attorney's Office and the other having since passed away.

With regard to the other Appendix to which --

Chief Justice Earl Warren: In that case may I ask, Mr. Corrigan --

Mr. John T. Corrigan: Yes sir.

Chief Justice Earl Warren: Was that a jury case, that other one was reversed?

Mr. John T. Corrigan: No, Your Honor, it was not.

Chief Justice Earl Warren: It was not.

One of these three-judge courts --

Mr. John T. Corrigan: I beg your pardon.

Chief Justice Earl Warren: Was it one of these three-judge courts like this one --

Mr. John T. Corrigan: No, apparently that was a one man court.

Justice Potter Stewart: Judge -- Federal District Judge Campbell in Chicago.

Chief Justice Earl Warren: That was a federal court.

Mr. John T. Corrigan: That was in the federal court, Campbell, Your Honor.

Chief Justice Earl Warren: Oh! I see, yes.

There is one pending is it not in your -- no, I'm thinking of another case, I'm sorry.

Mr. John T. Corrigan: With respect to the other appendices that the appellant takes objection to in his reply brief, may I point out that these appendices where before this Court previously in the brief supporting the motion to dismiss, and that these appendices are the subject of testimony of the several witnesses that appear in the transcript of the record that is before the Court.

I think that they are properly before the Court.

Now, with regard to the factual situation in this case; the case in the first instance came on for a hearing by the Common Pleas Court by virtue of the fact that a grand jury had returned an indictment after viewing the movie.

Under the Ohio law, the defendant was entitled to a trial by jury or a waiver of the same or in the discretion of the Court, a trial by a three-man court if application was made for such a trial.

In this instance, an application was made for a trial before a three-man court and that motion was granted.

The trial court viewed the movie as did the Court of Appeals, as did the Supreme Court ultimately in passing judgment on the question of obscenity.

Under the Ohio law, it is not necessary that the Court, in rendering its verdict, set forth an opinion or a conclusion of law or a fact.

However, in this instance, the trial court did set forth an opinion which opinion almost in toto was reiterated by the Court of Appeals and by the Supreme Court.

In that opinion, the Court will note that the trial court was cognizant of and did employ the standards set forth in the Roth case.

Now, with respect to the movie itself; it was not contended by the State nor is it contended here that we object to one portion of the movie but rather that we object to the movie in its entirety.

And as the Court did employ the standard set forth in the Roth case, we ask that the standards be set forth in the review in this particular instance.

In the movie, as the expert witnesses had testified, the fourth version -- portion of the movie was devoted to setting the stage as it were for the climax.

And the climax was one wherein a young married woman, mother of a child for some reason or another, unhappy with her husband's failing to manifest any affection or attention toward her, she picked up with a relative stranger and after a brief dinner engagement in their home in this particular evening, and after she had retired for the evening, she went out into a garden on the front of the house dressed in a negligee, met this young man and they then proceeded to go for a ride in a boat in a lake in the immediate vicinity of the house.

And in the boat, there was much arduous lovemaking after which the two returned to the house.

She returned to the upper portion of the house, she kissed her young daughter good night for the evening and then returned to her bedroom.

And the scene then shows the negligee being removed from the upper portion of her body and dropping to the floor.

And then she in turn, removing the clothing of the young gentleman and these being dropped to the floor.

The scene then moves to the bedroom wherein the upper portion of her body is exposed as is his and the scene depicts him laying on top of this young lady engaged in arduous embrace.

And after a period of this lovemaking, he then disappears and she is seen on the screen and as the expert witnesses testified, experiencing an orgasm and leaving no other inference but that the young man is then engaged in cunnilinguis.

After this is completed, the young couple continued to spend the balance of the night sleeping together in the bed.

In the morning, she leaves the bed and retires to the bathroom for the purpose of taking a bath and she is in the bathtub leaving no other imprints but that she is variably nude and then the young gentlemen proceeds to get in the bathtub with her and they bathe together.

Then the movie quickly winds up with the two of them dressing, and before that I might add, he wears a gown and at which time he opens the gown and invites her to come inside the gown with him and there they engage in an embrace.

Subsequently, they dress and they are on their way leaving all behind.

Your Honors, in this case, the contention is made that 2905.34, as interpreted when the appellant was tried, violates the constitutional guarantees of the First and the Fourteenth Amendment.

The defense argues that the Mapp case which was before this Court, I might add that the Mapp case being before this Court was reversed for other reasons that of violating due process because of an unlawful, unreasonable search and seizure, but then in the Mapp case before the State of Ohio, the Court held that scienter was necessary and the defense contends that in that case, that culpable intent or mens rea was not required.

I argue that the Mapp case is distinguished from the present case and that in the Mapp case we were concerned with mere knowing possession.

And I might point out that in that case, that case did not preclude the application of the Ohio statute to an instance or into a fact situation wherein there is a possession for commercial purposes, a possession for exhibition as is the case in this instance.

Just -- Judge Herbert in that case pointed out specifically in his dissent that he would not have any court or whatever for the defendant if there was evidence of commercialization in that instance.

In the instant case, we find that the defendant had no inquisition.

We find that he had exhibited the movie to critics.

This by admission in the record that there had been three showings before the film was confiscated and the arrest was effective.

Further, the evidence showed that he had the benefit of reading the reviews local and otherwise that had pointed out at least with respect to the local reviews that are in the opinion of those reviewers, this movie was obscene.

State versus Mapp did not foreclose the ban and possession for purposes of exhibition.

Mere possession as possibly was the case in the Mapp case, mere knowing possession might well be lawful.

Certainly, it is not the intent of the law to hold unlawful the possession knowingly of obscene material by a prosecutor, a judge or a jury or a psychiatrist holding the same pretty lawful purpose namely to affect the prosecution there under.

In the Alberts versus California, this Court held that a state statute was constitutional for lewdly keeping for sale obscene materials, so I submit that much more so, the constitutionality of the Ohio statute should be upheld for it knowingly, or prohibits rather the knowing possession and control for exhibition of an obscene motion picture film.

I submit that a conviction there under for knowingly possessing and controlling the obscenity, for the purpose of exhibition and the actual exhibition is and should be a sustainable statute.

The prevailing and authorative interpretation of the Ohio statute is to be found in State versus Jacobellis and State versus Wetzel, 173 Ohio State and then in these two cases, the facts are specifically in point whereas in the Mapp case, the Mapp is generally in point.

Justice Potter Stewart: Now, the first thing you mentioned is this very case, is that right?

Mr. John T. Corrigan: That's right.

Justice Potter Stewart: And the Wetzel case that antedate or come after this case?

Mr. John T. Corrigan: The Wetzel case was tried and heard on the same day in the Ohio State Supreme Court, Your Honor and in the Wetzel case, a conviction was had in the trial level.

The Court of Appeals reversed and then the Supreme Court considered the Wetzel case along with the Jacobellis case and affirmed the conviction of the Common Pleas Court.

Justice Potter Stewart: So while as you say, the Ohio is now clear.

It wasn't clear at the time of the trial of this case, was it?

As of that time, the rule was the rule of the State against Mapp, is that correct?

Mr. John T. Corrigan: As applied to the facts of the State against Mapp.

Justice Potter Stewart: Well --

Mr. John T. Corrigan: Not in the facts of the state of -- the ruling in the State against Mapp did not preclude a different interpretation with different facts namely facts that embodied the possession for commercial purposes.

Justice Potter Stewart: The State against Mapp held that mere knowing possession of obscene material was a criminal offense under that statue.

Mr. John T. Corrigan: That is right, Your Honor.

Justice Potter Stewart: In other words, if somebody just found something in the street and picked it up and saw it was obscene, he would at that moment be guilty of an offense under the statute as construed in the State against Mapp, isn't that correct?

Mr. John T. Corrigan: Yes, Your Honor, however --

Justice Potter Stewart: And that it was in that state of the law that this case was tried, is that right?

Mr. John T. Corrigan: That is correct, Your Honor.

However, may I point out this, that in the Mapp case, there were five judges that found the Constitution or found the statute as so construed to be unconstitutional, nevertheless, under the Ohio law, it is necessary that six out of the seven must find the law to be unconstitutional when the appeal is taken from the lower court in order to affect that unconstitutional finding.

But I submit Your Honor that in the Mapp case, there was the mere knowing possession as opposed to the possession for commercialization or purposes of exhibition.

The appellant argues that the State --

Justice Potter Stewart: This was the conviction on -- this was the conviction on both counts, wasn't it, on possession and on exhibition?

Mr. John T. Corrigan: That is right, Your Honor.

Justice Potter Stewart: And where the sentences imposed on each count?

Mr. John T. Corrigan: Yes the one -- in the first count, I believe, the sentence was $500.

This statute provides for an imprisonment or a money fine or both.

I believe on the first count, the fine was $500.

On the second count it was $1,500, the maximum being --

Justice Potter Stewart: Seven years?

Mr. John T. Corrigan: $2000 on each count.

Justice Potter Stewart: Or seven years in the penitentiary on each count?

Mr. John T. Corrigan: One to seven years, indeterminate sentences, Your Honor.

The Court is not empowered to -- of sentence specifically the number of years.

Might I point out in that connection also and this is raised in the amicus curiae brief that there is one offense in two sentences.

I would like to point out to the Court that these are separate and distinct offenses much the same as the offense of involving narcotics for example, the possession for sale and the sale.

They are separately indictable, they are separately triable and one is not a -- trial of one is not a bar to the trial of another.

I might point out that this contention is raised by the amicus curiae and I think that is a proper -- improper contention.

Justice Arthur J. Goldberg: Mr. Corrigan, you described a [Inaudible]

Mr. John T. Corrigan: Yes, Your Honor.

The dominant theme as taken as a whole is obscene and without the last portion of the same, the fore portion becomes meaningless.

It becomes dribbled as is pointed out in the testimony by the several witnesses put on by the State.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John T. Corrigan: Then I submit, Your Honor, you would have nothing.

Justice Arthur J. Goldberg: [Inaudible] it's going to be alright?

Mr. John T. Corrigan: It would be perfectly all right if you were to take out that scene.

It would have nothing that would be appealing to anyone.

For the meaningless picture, it would have no purpose and it would have no commercial purpose thereafter.

There would be nothing to appeal to the viewing public.

It would be a movie if you please that would lead you to a certain point and it will just leave you hanging high and dry.

Justice Potter Stewart: This movie has won some prizes in Cannes in Brazil.

Do you think those prizes were given purely on the basis of this three-minute sequence?

Mr. John T. Corrigan: I beg your pardon, Your Honor?

Justice Potter Stewart: This movie has won some prizes by -- on it's -- based on its artistic merit.

Do you think those prizes were awarded purely on this three-minute objectionable sequence?

Mr. John T. Corrigan: I cannot pass judgment as to why the prizes were awarded, what standards were used, I have no knowledge of that, Your Honor.

Justice Potter Stewart: But it's your view that without these three minutes which you say is criminal that the movie would be entirely without value for -- of any kind.

Mr. John T. Corrigan: For any purpose.

Justice Potter Stewart: For artistic otherwise.

Mr. John T. Corrigan: The three minutes is dependent upon that which comes before and that which comes before and certainly is dependent upon the -- the climax that is reached in the last portion of the movie.

Three or four minutes, I don't know specifically time wise, just how much time there is.

Justice Byron R. White: Now, this three minutes you say is [Inaudible]

Mr. John T. Corrigan: Yes, Your Honor.

Justice William J. Brennan: I thought you considered this -- that it provides --

Mr. John T. Corrigan: I beg your pardon?

Justice William J. Brennan: You said, it provides the [Inaudible]

Mr. John T. Corrigan: It adds to it.

It is part of it.

Justice William J. Brennan: [Inaudible] I gather -- I thought you were arguing it.

Mr. John T. Corrigan: That which happens, Your Honor --

Justice William J. Brennan: You only find the dominant theme in these --

Mr. John T. Corrigan: Oh no.

No, no.

Oh no, the dominant theme begins at the very beginning when the characters were identified and when their relationship one to another as made known.

And when the scenes that follow that which set the stage for what comes ultimately, this are part of the dominant theme.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John T. Corrigan: Would I permit it?

Justice Arthur J. Goldberg: [Inaudible]

Mr. John T. Corrigan: To my knowledge, it was not shown in the Greater Cleveland area.

There is no law that would prohibit it being shown other than a post-criminal action if a finding was made by a grand jury that the same was indictable.

Justice William O. Douglas: Was there any prosecution for that -- showing that film?

Mr. John T. Corrigan: To my knowledge, it was not shown on the Greater Cleveland area, Your Honor.

It may well have been, however.

There was no prosecution in any event.

Justice William O. Douglas: How many prosecutions of this kind have there been in the Cleveland area?

Mr. John T. Corrigan: Of this kind, specifically, I would say that we've had one other involving a movie.

This was appealed to the Ohio State Supreme Court and not beyond that, maybe that case is State versus Juvera, the constitutionality of this section was upheld in that instance.

And these are the only two cases to my knowledge wherein a motion picture film has been the subject of the prosecution in the Greater Cleveland area.

Now, this same film, Your Honor, was the subject of a prosecution in Dayton, Ohio, predicated on a misdemeanor statute and a conviction was had, a finding was made by a jury that it was obscene.

However, on appeal, the Supreme Court reversed that decision and the basis of the Smith case namely that that misdemeanor section did not provide scienter and therefore reversed it.

However, there was the conviction in fact by jury on the same movie.

In that same connection, the appellant contends that this movie has been shown in a number of jurisdictions.

In the record, we have evidence of the fact that it was not the same movie in New York, not the same movie in Boston.

The movie was precluded from being shown in Virginia and in Maryland until it was presented to a board and I do not know what the fact is with respect to it being shown in a hundred other jurisdictions.

Justice William O. Douglas: And I gather that this judgment of conviction is the only award it has received in Ohio.

Mr. John T. Corrigan: That is right Your Honor, to my knowledge.

Justice Arthur J. Goldberg: [Inaudible]

Mr. John T. Corrigan: This wasn't a film given a commercial name, as I recall.

It was a series of pictures that were in a Nickelodeon type picture machine and my recollection is that by putting in a quarter, you receive three minutes and another quarter three more minutes and so on.

And it was that entire series that they became the subject to that litigation.

Justice Arthur J. Goldberg: Not commercial.

Mr. John T. Corrigan: I beg your pardon?

Justice Arthur J. Goldberg: Not a commercial --

Mr. John T. Corrigan: Not a commercial movie as such.

The appellant in connection with the question of mens rea or guilty mind, or guilty purpose cites and supports thereof Screws versus the United States.

And he contends that in that instance, the Supreme Court in adding the word “willful” that they had then gave meaning to what was a vague statute.

And the defendant, because of being prosecuted on a vague statute, was denied due process.

The facts of that case are these; that that statute in substance made a decline for one under the color of office or authority to willfully deny another his right of due process.

The statute specifically provided for the element of willfulness.

The Court in that case did not instruct the jury on the element of willfulness and on that basis alone, certainly, the -- the decision should have been reversed for due process was denied the defendant.

The Court, however, did point out that the term “willful” in that statute gave the statute more meaning, it made it more definitive.

So also, I contend that in the Ohio statute, when we have the word “knowingly” and then when the Court further requires as an inescapable part of the scienter, the element of mens rea, then I say that we have made the Ohio statute as definite as can be made in the attack that the same as vague should be dismissed.

I might point out that the contention is made that the trial court did not have in mind at the time that it rendered its decision, the element of mens rea.

In the decision of the trial court, you will find that the Court found that the acts of the defendant unlawfully and knowingly possessing for purposes of exhibition a motion picture film.

The term “unlawfully” certainly connotes the element of guilty mind or guilty person in the mind of the trier of the fact when they use that term.

Justice Potter Stewart: Well, it connotes that only if that's an element of the crime as a matter of state law and State against Mapp had held that it was not.

Mr. John T. Corrigan: It is not spelled out in the statute.

Justice Potter Stewart: And State against Mapp held that it was unlawful even without that.

So that in the word “unlawfully” doesn't --

Mr. John T. Corrigan: As applied to the facts into the Mapp case, Your Honor.

Justice Potter Stewart: The word “unlawful” doesn't add or attract anything because that merely refers you to the law whatever it may be.

In State against Mapp, it said that guilty not -- guilty purpose was not a necessary ingredient of the offense as a matter of the law.

Mr. John T. Corrigan: The defendant relies further in this area on the case of James versus the United States.

In James versus the United States, the defendant was convicted of failing to report as taxable income funds which were embezzled.

And the defendant presumably was relying on a prior decision of this Court entitled -- in Commission versus Wilcox where this Court specifically held that embezzled funds were not taxable income.

In as much as this was the law at that particular time, the defendant if I may use the term “sandbag” into believing that this was the law and therefore did not report this income.

And this Court held that he could not be charged with willfulness because of the fact that he was relying on that which was then the announced law of this Court and of this land.

I think that this case is distinguished from the case at bar and that I contend that no case, no court as well as the Mapp case said that mens rea or guilty purpose or guilty mind is not an element in a possession for the purpose of exhibition and the actual exhibition of a motion picture film.

I contend that the appellant's possession in this instance was not in their private possession.

And in order to make effective, the prohibition against commercialization against selling, against giving, against lending, against exhibiting as is provided for in 2905.34 and since the instant case does involve the possession for exhibiting, then in determining the validity of the statute, it should be determined in the light of these facts and not some mere -- some non-existent mere possession.

The facts here are that the defendant held private showings for the critics.

He had three showings before the arrest was affected, he placed the ads in the newspapers, he had counseled with the police officer with respect to the propriety of showing the same and thereafter, the advertising continued and he again showed it the next evening.

In the Mapp case, we're concerned with the privacy of her own home and the material therein.

Justice John M. Harlan: Your Supreme Court construed the statute in relation to [Inaudible]

Mr. John T. Corrigan: Yes, Your Honor.

Justice John M. Harlan: [Inaudible]

Mr. John T. Corrigan: It was another --

Justice John M. Harlan: They found it in -- in that?

Mr. John T. Corrigan: They found that there was mens rea, yes, Your Honor.

Justice John M. Harlan: The statute required them.

Mr. John T. Corrigan: They said that it was inescapable -- inescapably a portion of scienter.

Justice John M. Harlan: But the trial court decides -- at the time it decided the case, the three-judge court found that the law was uncertain at least at that time.

Mr. John T. Corrigan: I will not admit to the fact that it was uncertain.

I will say that they saw the Mapp --

Justice John M. Harlan: You have to do some synthetic argument though to say the law was clear, but frankly it was not --

Mr. John T. Corrigan: No, I won't subscribe to that, Your Honor.

They have the facts of the Mapp case and the interpretation under those facts and how we've got different facts and interpreting under different facts.

They did not exclude mens rea.

And in the Mapp case, I might point out that Justice Herbert specifically said that I would have no quarter or whatever for the defendant if there was evidence that this was a commercialization or a possession for commercial purposes.

In point two, the appellant argues and I must quickly move through this one that the statute should be void in its entirety.

For the first time, now, we have the entire statute being the subject of concern.

I submit that this was not properly raised in the jurisdictional statement.

It was not before the lower courts, and in general, may I say that the rule of law that the Court -- the constitutionality of the statute should not be tested and the abstract should be employed in this particular instance.

Only the legal rights of the litigant should be adjudicated.

However, out of an abundance of caution, I'll point up that the appellant contends that in this case there are exceptions that are applicable.

He points out for example that the statute is unconstitutional in a majority of its intended applications.

He then speculates and engages in conjecture and says that the statute has already been declared unconstitutional in the vast majority of its intended application.

This statute, I submit, has not been found unconstitutional in any application.

He goes down to say that where the statute would have an inhibitory effect on expression that then the Court should look into the statute in its entirety.

And he cites to support this position, the Smith case, the Smith case is distinguished by virtue of the fact that it lacks scienter.

We have scienter in this instance.

He cites the Thornhill case, this case is distinguished because the framing in that instance against the defendant was generally and not specifically.

In conclusion, may I ask the Court to consider the constitutionality of this statute in light of the facts in this case?

Thank you.

Print this transcript Transcript: 

Argument of Ephraim London

Chief Justice Earl Warren: Number 11, Nico Jacobellis, Appellant, versus Ohio.

Mr. London.

Mr. Ephraim London: Mr. Chief Justice and Associate Justices.

If the Court please, this is a reargument of an appeal from an order of the Ohio Supreme Court affirming the conviction of Jacobellis, the appellant, on two counts.

One count was for possession of a film, motion picture film, that was found by the Court to be obscene and the other count was for showing or exhibiting the film.

The picture that's involved in this case is the motion picture called “Lovers.”

The first question that's presented by the appeal is whether or not this picture is obscene, if it is not obscene under constitutional standards.

That's an end of the case.

And to make that or to consider that question, I think we must first consider the standards by which a film must be judged and I should add that I don't think that this film can be judged obscene by any constitutionally acceptable standards.

But the criteria for judgment in determining whether or not a film is obscene are set out in Roth and Alberts.

But the highest courts of the various states had considerable difficulty in applying those standards.

And there are many questions that have been raised with respect to the meaning of the Roth-Alberts standards.

The first question in which there have been differences of opinion in the state courts is whether it was intended by the Roth-Alberts decision to allow the suppression of punishment of only what is termed hardcore pornography.

And I hope that that I won't be asked to define that term but it's been used by many of the courts and I understand that to mean that which is not only obscene but so flagrantly, patently, blatantly obscene.

That there could be no difference of opinion between men of -- whose opinion is to be respected between reputable people with respect to whether or not that matter is actually obscene or not.

Justice Potter Stewart: At least you mean in any -- in any given moment in any given time.

Mr. Ephraim London: Well, I assume that the society is ours and I think we're going to have to explore that question too because that question of which society is to be the judge or according to the standards of which society is another matter that is involved here.

And there's also another matter about which the state courts differ in connection with a specific application of the term community standards, what the community has intended to be.

But if I may speak first to the question of hardcore pornography, I take it from reading of the cases that this Court has decided that have related to punishment of -- of matter found to or suspected or charged of violating federal law.

That something like the standard of hardcore pornography does apply where a federal statute is involved and where a federal prosecution is involved.

I've made that assumption from a reading of the various cases that this Court has -- has determined, some without opinion and such cases as Manual against Day where the -- certainly, the -- at least one of the opinions is very clear in indicating that only what was patently offensive and obnoxious would be considered obscene.

In relation to a federal case and the question is whether the same rule will apply where there is a state prosecution.

None of course relates to the very much broader question as to whether the First Amendment means the same thing in a state prosecution as it does in a federal prosecution.

Justice Potter Stewart: This was a criminal prosecution of the exhibitor, is it?

Mr. Ephraim London: Of the manager of the theater.

Justice Potter Stewart: Right.

Mr. Ephraim London: Yes, Your Honor.

Justice Potter Stewart: And -- and what was the punishment?

Mr. Ephraim London: The punishment was the fine of $500 on one count and the maximum fine of $2000 on another count.

The Court had the option of either imposing a fine or an indeterminate prison sentence of not less than one or more than seven years.

Justice Potter Stewart: And no -- no sentence, no prison -- no imprisonment was imposed, was it?

Mr. Ephraim London: No, the -- the fine has not been paid and there is a workhouse sentence but the --

Justice Potter Stewart: Yes.

Mr. Ephraim London: -- fine isn't there.

Justice Potter Stewart: Yes.

Mr. Ephraim London: Now, before going into the question of whether or not the federal standards are to apply here in a state prosecution, I think I -- I should state and I think the record clearly indicates that if this were a federal prosecution, this motion picture could not possibly be considered obscene under the standards that have been followed by this Court in a federal prosecution.

Justice John M. Harlan: Well, of course the Court has never announced the hardcore porno -- hardcore pornography test even in a federal prosecution.

Mr. Ephraim London: No, Your Honor.

And as I -- as I indicated, I have some questions --

Justice John M. Harlan: Yes, some of it do have but the Court has not adopted that here so far.

Mr. Ephraim London: No, no, Your Honor but I believe in your opinion in Manual against Day, that particular term was used --

Justice John M. Harlan: Yes.

Mr. Ephraim London: -- indicating that the -- that the criteria that had been set out in your opinion of -- of patent offensiveness was somehow equivalent or close to what the state courts call hardcore pornography.

Justice John M. Harlan: (Inaudible) only commented the views of myself and my Brother Stewart.

Mr. Ephraim London: Yes, Your Honor.

But I -- I said before that I had indicated my understanding of the federal standards from a consideration of the various cases that this Court has passed upon many without opinion.

For example, the -- the Mounts (ph) case, the one case where there was material involved which I think would be considered obscene perhaps by other standards and where perhaps the Court might have -- might have been -- where -- where I think it was pretty clear that the Court was insisting that the work be more than merely what is -- might ordinarily be considered obscene.

But as I stated before this picture that we have here couldn't possibly under the -- what I conceive to be the federal standards be judged obscene and constitutionally punishable or suppressible.

It's a picture that has been examined by a number of censorship boards that are in the business of detecting obscenity and passed by them ultimately, found to be not obscene by at least six or seven of them.

Justice John M. Harlan: In what states was this picture been banned?

Mr. Ephraim London: This picture has been banned in only one place, not even a state.

This picture has been banned only in -- in two places rather in Ohio, in Dayton, Ohio and in Cleveland Heights, Ohio.

Justice John M. Harlan: Been shown in other parts of Ohio?

Mr. Ephraim London: Oh yes, it showed four and a half months in Columbus, Ohio.

Justice William O. Douglas: Is the film here on the posit of the --

Mr. Ephraim London: Yes, Your Honor, it's in exhibit in this case.

And of course available for the Court's examination but it was passed by censorship boards in Maryland, by censorship boards in Providence, by censorship board finally in Chicago, in New York and Boston.

Now some question has been raised as to whether New York and Boston, not the other places that I've mention but New York and Boston have seen a revised version and the fact is that they did see a version that is 131 feet less which is less than a minute showing time, 131 feet less than the version that was shown in Chicago, the version that was shown in Columbus, Ohio and the version that is being prosecuted today.

There is that difference, however, the witnesses and the record shows that there is no -- no one could detect any real difference between the two versions.

The only --

Justice John M. Harlan: What's the one we've got, the 131 --

Mr. Ephraim London: You've got the one with the additional 131 feet.

Unknown Speaker: (Inaudible)

Mr. Ephraim London: Unexpurgated, unchanged.

Justice Byron R. White: (Inaudible)

Mr. Ephraim London: I think the 131 feet were taken out as a kind of sort to a censor board which objected to the -- the passing of the film initially and then compromised on the taking out of the hundred and --

Justice William J. Brennan: (Inaudible)

Mr. Ephraim London: Pardon me?

Justice William J. Brennan: There was (Inaudible)

Mr. Ephraim London: Not the whole scene, Your Honor, less than a half a minute of the scene.

Justice William J. Brennan: That's enough.

Justice William O. Douglas: Is that the only -- is the only part of the film challenged or seen obscene?

Mr. Ephraim London: That was the only part of the film that was challenged.

Justice William O. Douglas: So all -- all we have to do is (Inaudible) that 131 feet?

Mr. Ephraim London: I don't -- I don't know that the Court can judge it out of context.

And I -- as I read the opinion of the Court, it cannot.

It would be required to look at the entire film to -- to understand --

Justice William J. Brennan: Well, is it --

Mr. Ephraim London: --that sequence.

Justice William J. Brennan: Mr. London, you mean the only part that was the -- the deleted part.

It's the only thing that those boards would require the deletion, you thought, that made the picture obscene, isn't that it?

Mr. Ephraim London: No, Your Honor.

I -- I would like to make that clear.

I don't think that there was any difference whatever between the version that was licensed in New York and the version that was shown in Boston and the version that was -- is now in Court.

And that was -- is being prosecuted or was prosecuted by the Ohio authority.

Justice William J. Brennan: (Inaudible) that that you do not think so but I wondered if those boards have required the release, I didn't think so.

Mr. Ephraim London: Well, Your Honor, I -- I think that the Board originally that requested the deletion and requested a larger deletion, the distributor refused to make it and this was a compromise.

Later on, the distributor refused to make that compromise and decided he wasn't going to change it and as a matter of fact, in Chicago, he refused to -- to make any deletion and the film was finally passed in the version that is now before this Court.

And again, in Columbus, Ohio when it was shown, the version that is now before this Court was shown.

Justice William J. Brennan: Now, that favorable, New York Times review, was that of the -- of the -- that was just exhibited with 131 feet out?

Mr. Ephraim London: Yes, Your Honor.

Justice William J. Brennan: Alright.

Mr. Ephraim London: But critics who saw both the changed version and the full version said they saw no difference between the two films and saw them both.

Chief Justice Earl Warren: Is this case tried to a court or to a jury?

Mr. Ephraim London: It was tried by a three-judge court.

Chief Justice Earl Warren: Could you have had a jury (Inaudible)

Mr. Ephraim London: There could have been a jury.

I did not try the case.

Chief Justice Earl Warren: Yes, yes.

Mr. Ephraim London: There could've been a jury and the jury would waive trial by a three judge court, was requested and granted.

Justice William J. Brennan: Has it become the practice the way to do it in these cases?

Mr. Ephraim London: I don't know that it's become the practice, Your Honor.

I -- I myself do not waive a jury in a case of this kind.

But as I was indicating before, I think that if you apply federal standards, this film cannot be banned.

It had played in addition to what I had mentioned before, that played in a hundred different major cities in the United States, a total of 44 states.

Justice William J. Brennan: Including Washington.

Mr. Ephraim London: Including Washington, D.C.

And it had won numerous prizes.

It had been recommended, I shouldn't say numerous prizes, two prizes.

It had been recommended and nominated for an award as one of the ten best films, not only by the New York Times but by the Saturday Review of Literature, I think three different critics had -- had made that recommendation.

Now, the question of -- of whether or not the First Amendment standards can vary from state to state, there's never been specifically passed upon by this Court.

And that is the appellant's position here that the standards are the same whether the prosecution is by the federal or by a state government.

As I understand it, the -- it is the First Amendment, whether it has become part of the Fourteenth by incorporation or whether by absorption.

It is still the First Amendment that has become applicable to the states.

And the first Amendment Right, I should not think would vary from state to state.

I think it has been --

Justice William J. Brennan: (Inaudible) Supreme Court, has any other court taken as to this?

Mr. Ephraim London: Yes, Your Honor.

The Wisconsin Supreme Court took the same position also but I -- none as clearly as did the New Jersey Supreme Court in the Hudson County case.

There is an excellent exposition which is not quoted in my brief but I think that the whole question, I -- I think there is an excellent -- excellent statement of the question and discussion of it in that New Jersey case.

Now in relation to the application of national standards again, with respect to the criterion of community standards, the Roth case says that a work, if it is to be judged or one is to judge whether or not it is obscene must be judged according to community standards and the question as, what is meant by the term community.

Is it, as the New Jersey Court suggested, national standards?

In a state prosecution, is it the state standards?

Is it the county in which the defendant is being prosecuted or as if no community at all as the State of Kansas has suggested in its brief in the following case.

The -- the State of Kansas suggest that society at large as -- as its standards are interpreted by a particular judge or a jury, is the community that the Court intended in Roth against United States.

Justice William J. Brennan: Well, if that's what we intended to use or rather unfortunately, isn't it?

Mr. Ephraim London: If Your Honor please, I am not going to try to defend that position.

Justice William J. Brennan: Well, even -- even the other one, even the one from New Jersey Supreme Court had taken.

If we had meant national standard, isn't community an unfortunate way to express that?

Mr. Ephraim London: I -- I don't know whether the Court had that question in mind when it enunciated the -- the standards in Roth against the United States but it doesn't seem to me that any other standards can be applied consistently with the First Amendment Rights.

Perhaps, that -- perhaps, that term should be modified or changed.

Justice John M. Harlan: What you're saying, I take it is that the -- that the Fourteenth Amendment gives the same scope in this area, to the First Amendment, as the First Amendment itself then it automatically follows, is that it?

That the --

Mr. Ephraim London: Yes, Your Honor, I would --

Justice John M. Harlan: And it has to be a -- a national one or not a community.

Mr. Ephraim London: Yes, I would say that the First Amendment would've come in to the Fourteenth intact and not varying as one crosses the state line or as one crosses a --

Justice John M. Harlan: Because if you put it -- if you put it conversely, a community standard meaning less than a national standards, does it says then -- now, would it also follow that there is a different scope (Inaudible) more light to than the -- under the Fourteenth and the Federal Government than the (Inaudible)

Mr. Ephraim London: I would think that would be -- that would not be consistent with the -- with the First Amendment protection Your Honor.

I think if that is the definition that is adopted, then I think that definition calls afoul of the First Amendment Right of freedom of speech.

To me, the --

Justice John M. Harlan: In other words, what you're saying is that the community standard test, whether it's national or -- or less than national, at least it really is another way of saying that whether the First Amendment (Inaudible) to the Fourteenth has the same scope as the First Amendment directly?

Is that --

Mr. Ephraim London: I think that question is directly involved, yes Your Honor.

I believe it is.

Justice William J. Brennan: Mr. London, do you make any significance in the fact that -- that opinion is written in two cases, one a federal case, Roth and the other, a state case, Alberts?

What opinion could've (Inaudible)

Mr. Ephraim London: I think that would certainly indicate Your -- Your Honor that the Court intended the same sentence to be use in both the federal and state prosecution, I would -- I had made that assumption also from the fact that there was a concurring and dissenting opinion by Mr. Justice Harlan in which he objected of the use of the same standard in the two types of cases.

And I think there was some other language in the Roth opinions supporting that view.

I think that the Court indicated in Roth and Alberts that the First Amendment right applied with equal vigor.

I think that was the phrase the Court used as against the Federal Government and the States.

And if it is to apply -- to apply with equal vigor, then I believe that the federal standards must be used when one judges even a state prosecution.

Justice Potter Stewart: How -- how you find out the national standard?

Is it the lowest common denominator or is it some average of all the public opinion in each of the 50 states or --

Mr. Ephraim London: The --

Justice Potter Stewart: (Inaudible)

Mr. Ephraim London: The question of determining the standards is -- is Your Honor an extremely difficult one and poses many problems.

And I suppose that one way of -- one way of determining these problems in a given case is to find out what people are reading, people are looking at throughout the United States, what they are tolerating, what they are accepting in this particular case the problem is a very easy one.

We here have a case that -- were picture has been shown in 100 different important cities which is practically the entire number of cities in which it would be shown normally whether or not it was obscene there is a limited market for films that are called art films and this is one of them, it's a fine film it normally would not be shown in many more than 100 different large cities.

Shown in 100 cities and 44 states, I should think there that there is a clear -- one doesn't have to go very much beyond that to determine that this is accepted nationally.

Justice Potter Stewart: The determinable (Inaudible) of tolerance in this particular case.

Mr. Ephraim London: Yes, Your Honor.

Justice Potter Stewart: But I was just wondering.

I -- I presume if it's a national standard, you -- you couldn't depend upon a jury which always is drawn from a very local community as from a county to make a determination unless it was hated by expert testimony or testimony of tolerance in other communities through --

Mr. Ephraim London: I think that the jury would have to have some evidence before or it should have some evidence before it.

Justice Potter Stewart: It -- it couldn't have upon a local jury --

Mr. Ephraim London: Uninstructed --

Justice Potter Stewart: -- unaided by -- unaided by outside evidence.

Mr. Ephraim London: I -- I imagine that this would depend a great deal on a particular jury in a particular case.

But this is a problem.

Justice Potter Stewart: (Voice Overlap) I suppose the jury left to its own devices would apply local standards.

Well if the standards of it -- of the community from which its (Inaudible)

Mr. Ephraim London: Well each -- each --

Justice Potter Stewart: -- isn't it?

Mr. Ephraim London: -- one draws from his own knowledge and experience and background in making a determination.

But I believe that properly instructed the jury might certainly follow a judge's direction to consider the standards of the nation.

And in the given case, it maybe possible in -- in this case it's certainly is possible to prove what the national standards are.

Justice Potter Stewart: Could you depend upon a local judge if the judge were the trier of the fact without evidence as to the tolerance of this particular book or (Inaudible)

Mr. Ephraim London: To my thinking not more than of jury.

Justice Potter Stewart: I beg your pardon?

Mr. Ephraim London: To my thinking you couldn't depend on the judge's decision anymore than you could on the juries without instructions.

Justice Potter Stewart: Should we look to act of Congress to determine national standard?

Mr. Ephraim London: I don't think that Congress could possibly to legislate --

Justice Potter Stewart: -- the national legislature --

Mr. Ephraim London: -- a standard which would be effective the following day because the standards of the country changed from time to time.

Justice Arthur J. Goldberg: Can you think realistically Mr. London, (Inaudible)

Mr. Ephraim London: I think realistically there will be a difference.

I think also that if the jury does not take the facts into consideration, there are always appellate courts which can correct an error.

And it seems to me that here the Court would be -- would be compelled virtually.

Justice William J. Brennan: Well Mr. London, does this mean that every state and every federal obscenity prosecution necessarily fail that the prosecution doesn't abuse evidence of what the national standard is that -- that may affect a particular book or a motion picture?

Mr. Ephraim London: I would think that that in a -- in an appropriate prosecution the national standards, under the Court's definition, that the national standards should be proved.

Justice William J. Brennan: (Inaudible)

Mr. Ephraim London: I think some attempt --

Justice William J. Brennan: Then the answer is that every state obscenity prosecution must fail that the prosecution does it or for that kind of evidence.

Mr. Ephraim London: I would think this is an affirmative part of the -- of the people's case in the prosecution of the work that is obscene under this Court's definition.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Ephraim London: Well if -- if Your Honor is suggesting that the -- that the standards are the same throughout the country, I would beg to differ.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Ephraim London: Would not -- that there is no difference, but that -- what the particular standards are that the standards are in a given case that the -- that according to the national standards, this -- this particular word would offend the national standards of decency.

I think this would be a part of the -- of the affirmative case.

Or in any event, it's certainly a relevant consideration.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Ephraim London: Well Your Honor the only -- the only kind of expression that is -- that is prohibited or punished is obscenity.

All other, it allowed.

And so this is the only area in which the question arises.

Unknown Speaker: (Inaudible)

Justice Hugo L. Black: I don't understand that (Inaudible) -- I don't under -- I thought you said that Congress couldn't draw a standard.

Mr. Ephraim London: Couldn't legislate the standard, yes sir.

Justice Hugo L. Black: But we could.

Mr. Ephraim London: Not that Your Honor can legislate the standard but that your -- but that a Court with the information before it can determine that the national -- that according to the national standard.

Justice Hugo L. Black: But --

Mr. Ephraim London: But this --

Justice Hugo L. Black: -- who would define the national standards?

Mr. Ephraim London: I -- I think that in -- in many instances of the -- if the record doesn't show it, this Court has made a determination as to what the standards were and obviously, I believe, we're not applying the standards of a local community as for example in the Times Film case, the first Times Film case that came from Chicago this Court reversed.

A -- a -- suppression of a film whether -- it was held that the film was obscene and I am assuming that no member of this Court was applying the standards of Illinois --

Justice Hugo L. Black: (Inaudible)

Mr. Ephraim London: -- when that determination was made.

Pardon me.

Justice Hugo L. Black: You don't know do you?

Mr. Ephraim London: No, Your Honor.

Justice Hugo L. Black: The only thing that bothers me is that what you are suggesting is, there can be a standard, established and that Congress can't do it, but we can.

Mr. Ephraim London: I am --

Justice Hugo L. Black: It comes to me like, if we are to do the legislating for the -- for the nation and take -- to say that Congress is incapable of doing it, but we are.

Mr. Ephraim London: I -- I didn't state my position clearly.

What I intended to say Your Honor was that it is possible for one to prove in a given case that there is a national standard of decency and that according to the national standard a particular work could not be held to violate that standard.

Now, I say that this --

Justice Hugo L. Black: (Inaudible)

Mr. Ephraim London: Pardon?

Justice Hugo L. Black: -- admitted to evidence to determine what the national standard is.

Mr. Ephraim London: Yes, Your Honor and I -- I submit that this case was the perfect example of one in which it can be done.

Now there maybe others in which it will be difficult but this is the Court's definition of what is obscene and how obscenity is to be judged.

Justice Hugo L. Black: Whether it has to bear with each case then according to the evidence.

Mr. Ephraim London: I think each case is an individual case, there's no question about it, this Court has said so.

Justice Hugo L. Black: (Inaudible) determined a national standard each time a case is tried somewhere and it comes up to us, we have to look at the evidence and see if it established a national standard of violating this (Inaudible)

Mr. Ephraim London: Under --

Justice Hugo L. Black: -- on the evidence there whether that evidence was enough to show what the national standard was.

Mr. Ephraim London: Under the laws it now stands, I think that Your Honor has to -- I mean the Court must -- must judge in accordance with some standard.

Justice Hugo L. Black: Well, you mean, it should in the future?

Mr. Ephraim London: Well, I believe it has in the past.

Justice Hugo L. Black: Its --

Mr. Ephraim London: In --

Justice Hugo L. Black: -- how do you define it?

Mr. Ephraim London: In citing -- in citing the Roth-Alberts case which set out these standards, I assume that the Court applied those standards.

Justice William J. Brennan: You may -- but you don't know which element of the -- of the path they've laid down on Roth may have determined the result as to the picture of -- a picture or a book.

Mr. Ephraim London: No Your Honor.

Justice William J. Brennan: Incidentally, I gather if we agree with you first of all, that even under the Roth has not further explicated, this was not obscene.

We don't reach question of community standard here.

Mr. Ephraim London: That -- that is -- that is so Your Honor.

I am -- I am indicating however that the several of the highest courts have indicated that the criteria that was set out in Roth-Alberts, and now according to Massachusetts' Court is a dim beacon.

And I think that the courts have in effect asked the explication.

By the way, that was the only thing on which the -- the majority in dissenting opinion agreed in the case that I'm quoting namely that -- that they didn't have a sufficiently clear course -- clear light by which to guide their cause.

Justice John M. Harlan: Supposing you were rewriting the Roth and Alberts case, how would you formulate that?

Mr. Ephraim London: I wouldn't Your Honor.

I'm -- I'm afraid my opinion would follow Justice Black's.

Justice John M. Harlan: (Inaudible)

Mr. Ephraim London: I --

Justice John M. Harlan: -- it can't be done, (Inaudible)

Mr. Ephraim London: I believe that is -- that is my own opinion which Your Honor asked for.

Chief Justice Earl Warren: Well as -- what we're dealing now with the opinion in Roth then assuming that there is a national standard or should be a national standard, what do you conceive that standard to be?

Mr. Ephraim London: That would have to be determined in a given case.

In Manual against Day for example, the --

Chief Justice Earl Warren: But you'd have to give instructions to a jury as to what the standard was, wouldn't you if you had a jury trial?

Mr. Ephraim London: Yes, Your Honor.

Chief Justice Earl Warren: Right, what instruction would you give them as to the standard of obscenity?

Mr. Ephraim London: I would instruct the jury that in determining whether a given work is obscene.

They must make that determination not in accordance with their own concepts or the concepts of the people living in their neighborhood or even if the state but to the extent that that has been proved in accordance with the standards of the nation.

Now, that particular charge was said in a federal case to be a necessary charge.

Thus, the first department has held and this was said to be the necessary standard in the Manual against Day case by at least the opinions of Justices Stewart and Harlan -- with Justices Harlan and Stewart.

Now, if there is such a standard, and if it can be prove and it's -- this is the way a jury must judge, surely that standard can be proved in a federal case as well as in a state case.

Justice William J. Brennan: But Mr. London sure you can't just stop and say to a jury, you have to determine this according to a national standard.

Mr. Ephraim London: That's what here the --

Justice William J. Brennan: That you'd have to define what a national standard is?

Mr. Ephraim London: I think this is the burden that's been imposed.

Justice William J. Brennan: Well now what -- well, what I think the Chief Justice is suggesting and I certainly like it to have some help with it, what ingredients would you put in this national standard?

Mr. Ephraim London: If Your Honor please, I have -- I would have to try the individual case.

And the one before the Court --

Justice William J. Brennan: I know, but how will you even know what --

Mr. Ephraim London: My -- my burden is a very --

Justice William J. Brennan: If you're the prosecutor -- if you're the prosecutor, what kind of evidence are you going to give?Unless we give you some guidance of -- under the national standard, what kind of evidence satisfies?

Mr. Ephraim London: That can certainly opinion evidence.

I think this Court or at least some of the Justices of this Court have indicated have indicated in session --

Justice William J. Brennan: Opinion about what?

Mr. Ephraim London: About the -- about the limits of community tolerance.

About what is acceptable, about the kind of book that is read, about the kind of magazine that is seen on the -- on the stand.

Justice William J. Brennan: What specific (Inaudible) -- will the prosecution have to come in and say, bring in a whole bunch of girly magazines and say now, around this town you can find all of these you want, at the barber shops, the news stands and everything else, but that's as far as this town goes in acceptability of this kind of fact?

Is that what you have to do?

Mr. Ephraim London: Well, as Your Honor please, you are speaking more of the burden of proof of the standard than the question of whether or not the standard is provable.

Whether --

Justice Byron R. White: If you answered -- you -- you said -- it sounds to me just like -- like the national standard to be decided by sales figures.

I mean, who was -- if the book was sold on that and read in that everywhere in the country that would satisfy -- it's not obscene, and that's a kind of a national standard you (Inaudible)

Mr. Ephraim London: I would say that if the book were sold freely in most of the United States and if that there had been no successful prosecution of the book, in most of the United States that this book did not offend the standards of the people of the United States.

Justice William J. Brennan: Yes but --

Mr. Ephraim London: I think this is in your --

Justice William J. Brennan: Yes, but suppose in your (Voice Overlap) --

Mr. Ephraim London: -- logical inference.

Justice William J. Brennan: Suppose in your very case Mr. London, instead of being the -- the last experience your motion picture had had, that which resulted in your prosecution, that has been the very first -- had never been exhibited anywhere else in United States.

Now, what in that circumstance would the prosecution had to prove to establish it was obscene?

Mr. Ephraim London: Again, and I think that the prosecution should show to sustain his burden that the particular book does not only offend the standards in the local community but the people elsewhere.

Now, I -- I concede --

Justice William J. Brennan: But nobody has ever seen the picture.

Mr. Ephraim London: That -- that maybe --

Justice William J. Brennan: (Voice Overlap) --

Mr. Ephraim London: -- but they are comparable pictures Your Honor.

Justice Byron R. White: It means the battle of experts on that case, (Inaudible).

Mr. Ephraim London: Very, very frequently, you would have I think.

Question the different -- difference of opinion amongst experts.

Justice Byron R. White: Well, do you have to (Inaudible)

Mr. Ephraim London: (Inaudible)

Justice Byron R. White: -- from all sections of --

Mr. Ephraim London: The jury -- the jury would -- would have to make a determination.

Justice William J. Brennan: How would -- how would you call it by (Inaudible)

Mr. Ephraim London: I -- I suppose somebody who knew what pictures were shown or what books were sold throughout the United States could qualify certainly as an expert on what is --

Justice William J. Brennan: Anybody (Inaudible)

Mr. Ephraim London: No, Your Honor.

I think that somebody who knew about particular pictures and knew their reception throughout the United States.

One can say and as a matter of fact, even I can say Your Honor that this particular picture when I look at it, is going to meet with difficulty in Detroit and is going to meet with -- with difficulty in Cleveland, in Cleveland Heights.

But in the rest of the country, it's going to be accepted without any question.I could add Memphis to that city.

Now I think that the -- I --

Justice Tom C. Clark: You're -- you're using hindsight, I mean --

Mr. Ephraim London: No, Your Honor.

I -- I may say that I am called upon to make that determination from time to time and I do.

And I -- I may boast of some accuracy in making those determination.

Justice William J. Brennan: (Inaudible) I might be idle on that to decide this case.

Justice Tom C. Clark: I'd be -- I'd be very happy to assume the burden.

Chief Justice Earl Warren: Mr. London, do you -- do you contend that -- nothing but the hardcore pornography as you used that term can come within the Roth test?

Mr. Ephraim London: This is -- this is my understanding of the Roth test and specifically the language that we must leave the door only the slightest fitted jar.

Certainly, the New Jersey Court has adopted that determination.

I believe that Wisconsin Supreme Court has -- has adopted that as being the proper standard.

And New York has said whether or not, this is what Roth meant.

This is our standard hardcore pornography.

Justice Potter Stewart: But then after articulating that standard, hasn't New York gone ahead and affirmed convictions of for items which are not hardcore in your opinion?

Mr. Ephraim London: I don't think so Your Honor.

I think there's --

Justice Potter Stewart: (Voice Overlap) not --

Mr. Ephraim London: -- been only one instance of the case where there is a question is debatable as to whether or not the work is hardcore pornography.

That was not a criminal prosecution.

That was a licensing case.

Chief Justice Earl Warren: They burned a lot of books with porn -- hardcore pornography at New York, isn't it?

In the Kingsley --

Justice Potter Stewart: Kingsley books.

Chief Justice Earl Warren: -- case -- Kingsley book?

Mr. Ephraim London: The Kingsley case as I remember Your Honor, that wasn't even an issue before the Court.

The -- the owner of the books took the position that he wanted the Court to assume that they were pornographic and he wanted to test the validity of the law so that the Court never had to pass on that question in Kingsley.

Chief Justice Earl Warren: But -- but -- but the lower court had to pass on it in order to do what it did.

Mr. Ephraim London: Yes.

And that was by the way before the hardcore pornography --

Chief Justice Earl Warren: Yes.

Mr. Ephraim London: -- rule was established in the State of New York.

The -- the first time that the Court used that phrase and I think the majority was willing to follow it was in the Richmond County case which was later than the Kingsley book case.

Chief Justice Earl Warren: Don't you think Mr. London that we would eventually have as much difficulty defining what is hardcore pornography as we do obscenity?

Mr. Ephraim London: I think so.

But I think that these difficulties are inherent in the -- in the definition of obscenity.

And I suppose that it's easier to determine what hardcore pornography is than just ordinary run of the mill pornography.

Chief Justice Earl Warren: But we -- would we have to have experts from all over the country determine for every jury what constitutes hardcore pornography and what doesn't?

Mr. Ephraim London: No, Your Honor.

But I think the question of --

Chief Justice Earl Warren: Who would make that decision?

Mr. Ephraim London: By -- by definition, I -- I have assumed that hardcore pornography meant something that was so shocking, so blatant that -- that there would be little doubt in the minds of reasonable men.

Justice Tom C. Clark: Well, that makes -- that makes this Court (Inaudible)

Mr. Ephraim London: On the question of what is hardcore pornography and as I think Justice Reed once suggested in various opinions of -- stated in this Court that this in effect is what the Court has been doing in a number of cases.

Justice Hugo L. Black: Do some of these statutes subject men to penitentiary punishment for selling books that may later be found to be obscene?

Mr. Ephraim London: Oh yes, Your Honor.

The -- as I understand, all 50 States have -- have statutes.

Justice Hugo L. Black: 50?

Mr. Ephraim London: All 50 States --

Justice Hugo L. Black: All 50 States --

Mr. Ephraim London: -- has statutes which in effect say that if a man sells book which is found to be obscene and he has knowledge, we haven't come to another issue of just exactly what intend is required in this case.

But if he certainly, if he has knowledge of the -- of the contents of the book, I understand all 50 statute -- all 50 States has statutes which would punish --

Justice Hugo L. Black: Subject him to penitentiary punishment?

Mr. Ephraim London: Subject him to penitentiary punishment of several years.

Justice Hugo L. Black: And we've held the number of cases that the facts that was written so vaguely that a man can't possibly know whether he'd be convicted under it, under this trial, is void for violation of due process.

Mr. Ephraim London: Many times.

Justice Hugo L. Black: Under the standard you've suggested, how could a man know it?

Mr. Ephraim London: Your Honor --

Justice Hugo L. Black: Until he -- until he's tried.

How can anybody know until he's tried?

Mr. Ephraim London: I think he would -- he would unfortunately be compelled to take the risk.

The risk is lessened by the -- by the requirement that the work be hardcore pornography, that the work be something that if any ordinary man would reason --

Justice Hugo L. Black: But some other words could be adopted.

If that's the standard and you don't know what it means and nobody else knows what it means, I think the man who sells the book know what it means.

Mr. Ephraim London: Your Honor, I'm --I'm not going to try to answer that question.

I guess --

Justice Hugo L. Black: I'm asking because it raises instead of a (Voice Overlap) --

Mr. Ephraim London: I --

Justice Hugo L. Black: -- the man due process for the references -- definition of a crime.

Mr. Ephraim London: I would agree with your view point but I have no hope of convincing the rest of the Court.

Justice Hugo L. Black: I understand that -- but certainly -- but -- certainly I don't suppose we're going to wholly abandon the idea which has been accepted all these years.

So that someway, a statute has to be so -- have so much (Inaudible) to it that the man can at least guess with reasonable certainty whether he's going to the penitentiary if he sells it.

Mr. Ephraim London: Your Honor, I have meant --

Justice William J. Brennan: Mr. London --

Mr. Ephraim London: -- that argument and they cannot --

Justice William J. Brennan: -- that didn't -- Mr. London that --

Mr. Ephraim London: -- dispute it.

Justice William J. Brennan: -- very argument was made in the Roth case and the Court rejected it.

The Court found that there wasn't any violation in these criminal statutes.

Mr. Ephraim London: That is why I indicated I didn't hope to convince the Court.

Justice William J. Brennan: Not without overruling Roth in that respect.

Mr. Ephraim London: But I -- I do agree with the position that Justice Black has taken.

Justice William J. Brennan: You said that earlier.

Justice Hugo L. Black: But the other -- the case -- the Roth case didn't purport to overrule (Inaudible) and in numerous cases in which this Court has held to get it forward in other field not in obscenity maybe.

But in other fields that if crime must be so definite and they've set out that the man can know whether he's violating it or not.

I didn't understand the whole rule in Roth.

And now they've reached the question as to what is the standard.

And the standard you suggest or any I've heard leaves the man in just as much doubt that he could possibly be.

Mr. Ephraim London: But perhaps, less often than the -- than the word obscenity, I suppose some other qualifying word would make it --

Justice William J. Brennan: Well, I --

Mr. Ephraim London: -- more certain.

Justice William J. Brennan: I understood Mr. Roth that many States are now revising their obscenity law to proscribe that in the very words in haec verba, the Roth test as what's violated and what subjects to criminal penalty, is that so?

Mr. Ephraim London: Yes, Your Honor.

That is --

Justice William J. Brennan: And in Roth, we doubt of the very question whether under such a statute, they have rule against (Inaudible) and the others would be offended, didn't we?

And we held it would not.

Mr. Ephraim London: Yes, Your Honor.

That was the Court ruling.

Justice Hugo L. Black: They held it was not at that time but I assume this Court like all other government agencies is open to reconsideration and resurvey if the efforts to enforce the law showed that nobody under a certain standard show that the man cannot possibly know what it is.

Maybe the Court is rigid and said, I don't know.

Mr. Ephraim London: I would hope so, but I would -- I would state also that the -- that the various state courts I'm referring myself now, have indicated that some further guidelines would be desirable on the question of the meaning of these standards.

Chief Justice Earl Warren: Very well.

Mr. Ephraim London: Thank you.

Chief Justice Earl Warren: Mr. -- Mr. Corrigan.

Argument of John T. Corrigan

Mr. John T. Corrigan: Mr. Chief Justice, may it please the Court.

Perhaps it is well to begin with giving the Court a bit of a background with regard to how this case is here before the Court.

An arrest was made after a showing of a film entitled “The Lovers” in Cleveland Heights a suburb of the City of Cleveland.

After this arrest was made, the film in question was submitted to a grand jury and the grand jury returned an indictment charging the defendant with two violations of the law.

That of possessing with knowledge and I've seen motion picture film and a certain count of exhibiting knowingly and I've seen motion picture film.

The defendant was entitled under the law to a trial by jury but elected to move the Court to have a three-man court try the case and under the Ohio law, this is discretionary with the Court and the Court granted the motion and permitted the trial by a three-man court.

The three-man court in its memorandum opinion which is set forth in the brief of the appellee recites the rule of the Roth case as the basis for its finding.

The case subsequently was appealed to a three-man appellate court.

And the appellate court again cites the rule of the Roth case as its basis for affirmation.

The case was then appealed to the Ohio State Supreme Court and the Ohio State Supreme Court again affirmed six-to-one citing the rule of the Roth case as its affirmation.

Now, going immediately to the question of whether or not the rule is or should be hardcore pornography.

The law of Ohio and the law of the 50 States and the law of the United States in dealing with the obscenity as I understand, have used the term obscenity and not the term hardcore porno -- pornography nor have the decisions of any state or the decision of this United States Supreme Court at any times that the rule is with respect to hardcore pornography.

Let us assume however for a moment that that was so.

Pornography as I recall has its derivation at a Greek word which means, dealing with prostitution.

So, pornography is now all inclusive in the term obscenity because much obscenity deals with matters other than that which deals with prostitution.

However, in the instant case, Justice Radcliffe of the Ohio State Supreme Court in his majority opinion stated that this was worst than hardcore pornography.

So, in order to be worst than hardcore pornography, he undoubtedly found that to be such.

I know of no rule of law that is reiterated more often in the reviewing courts than the rule that a reviewing court will not substitute its judgment for the finders of the fact where there is evidence to support that finding.

Justice William J. Brennan: Do you think this is only a fact question (Inaudible)?

Mr. John T. Corrigan: I beg your pardon Your Honor.

Justice William J. Brennan: Do you think obscenity is only question of fact?

Mr. John T. Corrigan: No.

I think obscenity is a mixed question of law and facts Your Honor.

Justice William J. Brennan: Well if that -- if that's so, then I gather every reviewing court is free to arrive with a different constitutional judgment whether this picture -- picture is obscene or not, isn't it?

Mr. John T. Corrigan: It is one of those difficult questions Your Honor because of the legal definition of obscenity that it obviously must become a mixed question of law and fact.

Justice William J. Brennan: Well, I'm just wondering if the fact that three Ohio courts found that this was obscene was necessarily at all controlling on whether this or not in the constitutional sense the judgment we have to make.

Mr. John T. Corrigan: No.

I do not say that it forecloses that Your Honor.

Now, the statement was made by the appellant that this motion picture film has been reviewed by a number of reviewing boards and has had no difficulty.

I ask you if you will to go to the record page 376 and in the testimony given by Mr. Frankel, the President of the distributor of this film.

The question that was asked to him was -- that shown at the top of the page, was that shown to the censor board in Chicago, Illinois.

The answer Yes sir.

Was it censored by the law and the State of New York?

Isn't that correct?

The answer was yes.

Now, the same film that was shown in Cleveland Heights is not shown to the public in the State of New York in its entirety.

In its entirety, no.

And I'm moving further down the page.

So far as you know, there are two prints of this film, generally speaking, two different versions.

His answer to that is, yes sir.

Now, the one shown in Dayton, Ohio, that was the same as the one shown in the Cleveland Heights Theater?

Yes sir.

This film -- and no version is being shown in the State of Maryland?

No.

Have attempts been shown -- have been made by Zenith International to show the film in Maryland?

No.

An attempt was made by Zenith International and I was present to secure a censor seal from the State of Maryland.

Well, the State of Maryland requested several deletions, isn't that right?

Yes.

There were two deletions requested.

Moving down the page in the film "The Lovers" isn't shown in any version in the State of Maryland?

Answer: No.

This film is not shown on any version in the State of Virginia?

Answer: No, sir.

So I submit that this film has had difficulty in other areas.

Now, with regard to Dayton --

Justice John M. Harlan: Have we got both versions here, the (Inaudible)

Mr. John T. Corrigan: I'm sorry, I didn't hear you sir.

Justice John M. Harlan: Have we got both versions of this film here in the Court?

Mr. John T. Corrigan: No, you do not.

Justice John M. Harlan: We just got the --

Mr. John T. Corrigan: The only version here is the ver -- is the film that was shown in Cleveland Heights and the film that was shown in Dayton, Ohio.

Now, in Dayton, Ohio, this film was shown to a jury and the jury made a finding of guilty.

However, the charge there was predicated under a misdemeanor statute of the -- of Ohio.

This did not require scienter as did the felony statute.

An appeal was taken from the Dayton case, an affirmation was had in the Court of Appeals and when it got to the Supreme Court, the Supreme Court found the misdemeanor statute unconstitutional because of the lack of the scienter provision in keeping with the Smith case of this United States Supreme Court.

Now, the appellant argues that as interpreted, this statute was violative of the constitutional guarantees of the First and Fourteenth Amendment.

As part of his argument, he cites the Mapp case.

The Mapp case was a case wherein the question of possession of obscenity was an issue and Miss Mapp was found guilty and upon appeal to the United States Supreme Court for another reason involving search and seizure, a reversal was held.

This Court did not pass upon the question of obscenity in the Mapp case.

However, the facts of the Mapp case were such that they concerned -- were concerned with mere possession as opposed to possession for commercial purposes.

The appellant contends that in the Mapp case, there was a lack of guilty purpose or mens rea announced by the Court as an element of the obscenity law of Ohio.

The Mapp case did not say that guilty purpose was not a necessary element.

The Mapp case merely concerned itself with a factual situation of a mere possession knowledgeable but not a possession for commercial purposes or for -- with a guilty purpose.

In the instant case, we are concerned with a knowing possession for the purposes of public exhibition.

State versus Mapp did not foreclose the ban on possession for purposes of exhibition.

Again, for purposes of clarification may I say that four out of the six charges in the Mapp case found that as applied to the Mapp -- Mapp facts, the statute to be unconstitutional.

Though, four out of the six so found that this is not sufficient in Ohio to make a law unconstitutional, the reason being that it is necessary in an appeal from a lower tribunal that all but one of the justices must find it to be unconstitutional in order to make a statute unconstitutional.

In Alberts versus California passed upon by this Court, this Court found the constitutionality of a state statute which provided for the lewdly keeping or sale of obscene materials.

Much more so, the constitution of -- constitutionality of the Ohio statute should be upheld for prohibiting the knowing possession, the control and the knowing exhibition of obscene motion picture films.

Mapp is generally in point only and that it deals with the question of this statute whereas State versus Jacobellis which is the State case of this case before this Court now and State versus Wetzel, W-E-T-Z-E-L which was decided at the same time is specifically in point and this clearly gives the interpretation of the Ohio State Supreme Court relative to the construction of the Ohio statute.

There can be little doubt but that in the Mapp case when Justice Stewart said and Justice -- Justice Stewart said in Mapp, "I would however reverse the Judgment in this case because I am persuaded that the provisions of 2905.34 of the Ohio revised code upon which the petitioner's conviction was based is in the words of Mr. Justice Harlan not consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment."

In this instance, the Justice had in mind a mere possession as opposed to a knowing possession for purposes of exhibition.

Justice William J. Brennan: Well, Mr. Corrigan, none of that is before us really, isn't it?

Mr. John T. Corrigan: I beg pardon Your Honor?

Justice William J. Brennan: None of that is before us now is it?

In this case, our concern is, isn't it, whether -- whether as Mr. London has suggested, this doesn't raise the problem rather than do about this community standards there.

Mr. John T. Corrigan: This Your Honor -- this mens rea is an issue that was raised in the first point of the appellant.

He unfortunately did not get to that in arguing it to the Court.

It is argued in the -- in the brief.

Now, he argues also with regard to community standards and I say --

Justice William J. Brennan: Well, I'm just hoping you're going to get to that in detail about the --

Mr. John T. Corrigan: I say that the community standards set forth in the Roth case are the standards that were filed -- were followed and the standards that should be followed.

Why, pray tell, should Ohio be compelled by the standards of somebody far distant from Ohio.

Justice William J. Brennan: Well, how do you meet Mr. London's argument that if this is a First Amendment problem?

The First Amendment -- and the First Amendment is applied to the states as it would be applied to the Federal Government, how you're going to escape the logic of his argument that means you must have a single national standard.

Mr. John T. Corrigan: I think Your Honor, we have to apply rule of reason and a rule of reason on this instance it seems to me places the responsibility upon a jury certainly in making a finding with respect to what is the standards of that particular community and has this material below that standards and if so then, is it obscene?

Justice William J. Brennan: Well, that's just to say that you think there ought to be a local standard that that answer this question.

Mr. John T. Corrigan: I'm sorry Your Honor I didn't heard you.

Justice William J. Brennan: That's merely to say, you think there ought to be a local standard and not a national standard.

Mr. John T. Corrigan: Yes, Your Honor.

I -- I think that you cannot have a national standard.

You're going to work hodgepodge on this area.

You're going to destroy the whole idea of having any laws regulating obscenity, and you're going to make impossible the establishment of the standards and to present the question to a jury.

Justice William J. Brennan: How would you prove that there's a community standard?

Mr. John T. Corrigan: You prove community standards Your Honor by putting them in evidence people who are able to answer to a hypothetical question for example relative to the material in question, you're able to have these people testify as to whether or not this material is below or above the community standards, you're able to --

Unknown Speaker: (Voice Overlap) --

Mr. John T. Corrigan: -- subject them to cross-examination as to the basis for their opinion.

You're able to present to them other materials in the same area that they will pass judgment on and I might add in this case evidence to this effect was put on by the defense as well as the state --

Justice Byron R. White: But why (Voice Overlap) --

Mr. John T. Corrigan: -- in an effort to show the community standards.

Justice Byron R. White: What's wrong with a jury that's presiding -- why isn't the jury -- the jury itself (Inaudible) community standards without having any evidence or testimonies to what they are.

Mr. John T. Corrigan: There is no question in my mind but a jury does and can take judicial notice if you please, if I may use that --

Justice William J. Brennan: But then why -- why -- you just -- you just said the Roth (Voice Overlap)

Mr. John T. Corrigan: -- terminology with respect to what to be the standards are.

Justice William J. Brennan: -- you just said you thought even in a local standard, there should be evidence?

Why?

If -- if -- if it's a local standard, isn't the jury in theory at least and perhaps in fact --

Mr. John T. Corrigan: You have to make -- you have to make --

Justice William J. Brennan: -- (Voice Overlap) -- better judges than any experts brought in from outside just to what the local --

Mr. John T. Corrigan: Your Honor, you'd have to make a record upon which to appeal.

Justice William J. Brennan: Record?

Mr. John T. Corrigan: You've got to have something before the appellate court otherwise --

Justice Byron R. White: You've got the material --

Mr. John T. Corrigan: I beg your pardon?

Justice Byron R. White: You've got the material.

You've got the obscene publication (Inaudible)

Mr. John T. Corrigan: The obscene publication in this --

Justice Byron R. White: Well, that's the -- that's in -- that makes a record?

Mr. John T. Corrigan: I'm sorry.

I can't hear you Your Honor.

Justice Byron R. White: Well, you do have the obscene publications?

Mr. John T. Corrigan: Yes sir.

Justice Byron R. White: And do you think you have to have expert testimony in addition to that?

Mr. John T. Corrigan: I don't think that you'll necessarily have it.

I certainly --

Justice Byron R. White: When you have a jury?

Mr. John T. Corrigan: -- think that it is -- it is helpful in making the determination as to what the community standard is.

Justice John M. Harlan: (Inaudible) perhaps every jury men who sits on these cases have read by and large (Inaudible)

I suppose what you're doing with this evidence is to expose the juryman to at least view the other individual in the community in the name of community standards to tell him.

Well, you ought to consider this before you say this book is obscene or -- or to consider that before you say it isn't obscene.

Mr. John T. Corrigan: That is --

Justice John M. Harlan: (Voice Overlap) --

Mr. John T. Corrigan: That is exactly right Your Honor.

Justice John M. Harlan: It's advisory on the ultimately -- ultimately the question of obscenity whether it's a federal case or a state case being, you say a mixed question of law and fact, the law of being constitutional -- I don't -- how can you escape the ultimate proposition that what's obscene and what isn't obscene ultimately if what this Court says is -- it isn't so?

Mr. John T. Corrigan: How can you escape the ultimate --

Justice John M. Harlan: How can you escape it?

If -- how can this -- how can you suggest that this Court can escape that ultimate responsibility?

Mr. John T. Corrigan: Well, I don't say that this Court escapes that ultimate responsibility.

Justice John M. Harlan: And therefore, the evidence is presented to a jury if the jury finds obscenity, is in no great value is it when it comes up to this Court to review?

A matter that this Court happens to think is beyond (Inaudible)

Mr. John T. Corrigan: I -- I wouldn't put it in a category of having a great value, no.

It -- it does have some probative value as to the degree of value, I don't think that there is a -- a great weight to be given to that.

Justice John M. Harlan: But you wouldn't exclude it obviously?

Mr. John T. Corrigan: No sir I would not.

Justice John M. Harlan: (Inaudible) you would on argument of counsel, saying, now you ought to take a look at this passage.

Mr. John T. Corrigan: That is right Your Honor.

Justice Arthur J. Goldberg: Mr. Corrigan, does this mean that for all (Inaudible)

Mr. John T. Corrigan: No.

I -- I do not agree with you Your Honor that you would make it finally but no community can determine its own standards.

Justice Arthur J. Goldberg: Oh, I don't say that.

I've said that since we are not the expert on what the standards are of a particular community (Inaudible) -- suggested on the basis that no community could (Inaudible)

Mr. John T. Corrigan: No, I --

Justice Arthur J. Goldberg: (Inaudible)

Mr. John T. Corrigan: I -- I don't quite agree with you.

I -- I think that you would have to make a finding that the selection of the jury in the first instance was proper.

I think that you would -- I think that you would have to make a determination that the jury knew their community standards.

You certainly would give weight to whatever evidence there was other than that that would aid the jury in being exposed to the community standards by other testimony.

Then, all of these taken as a whole would be the basis upon which you would predicate your judgment or along with viewing the subject matter in question and -- and making a determination as to whether or not their findings were consistent.

Justice Arthur J. Goldberg: Now, assuming all of that (Inaudible)

Mr. John T. Corrigan: You could make that finding, yes sir.

Justice Arthur J. Goldberg: But you have to make some sort of (Inaudible)

Mr. John T. Corrigan: Yes, sir.

Justice Arthur J. Goldberg: -- a constitutional (Inaudible)

Mr. John T. Corrigan: Yes, sir.

Justice Arthur J. Goldberg: Or otherwise, you would just have to accept (Inaudible)

Mr. John T. Corrigan: That is correct sir.

I -- I agree with that proposition.

The --

Justice John M. Harlan: Maybe a little off --

Mr. John T. Corrigan: Yes, sir.

Justice John M. Harlan: -- the point, have you any idea, how many obscenity prosecution there are in (Inaudible)

Mr. John T. Corrigan: In Ohio?

No.

I have no idea Your Honor.

In our -- in our jurisdiction perhaps, the whole gamut of obscenity in the course of the year, maybe a dozen to 15 such cases.

And with regard to motion picture films, this is the second since 1957, the other one was appealed to the Ohio State Supreme Court in a -- it was affirmed in that Court that appeal was not taken to this Court with regard to other type of material, literature, as I say, maybe as many as a dozen a year.

The majority -- the vast majority dealing with pictures and magazines depicting sexual activities between both female and males and in most instances, these are not appealed and in most instances, I might add a -- a plea of guilty as the result rather than a trial.

But I would say that there -- in a given year probably or not in excess of 15 in Cuyahoga County which has a population of approximately 1,700,000 people.

Moving on to the second point of the appellant's argument and I submit that this should not be before the Court or in the jurisdictional statement, the appellant did not set forth.

This is one of the bases of his appeals.

For the first time, he submits to the Court for its consideration the entire statute and the -- the constitutionality are the same.

When I submit that the constitutionality of a statute should never be tested in the abstract, and only in the -- with respect to the legal rights of litigants, should it be adjudged?

However, out of an abundance of caution, I would like to address myself to this point, the appellant argues that the statute is unconstitutional and the majority of its intended applications.

And then he speculates and he engages in conjecture and as exceptions to the general rule that the Court will not go beyond the limits of the facts in litigation.

The appellant sets up three exceptions.

The first being with the statute and question has already been declared unconstitutional the vast majority of its intended applications.

This is not so here.

This statute has not been found to be unconstitutional in any of its applications.

The second is, where the statute would have an inhibiting effect on expression.

For this exception, the appellant relies on Smith versus California which we distinguished because that lack the scienter provision which is in the Ohio law.

He relies also on the Thornhill case.

This we say is distinguishable because the finding against the defendant in that instance was in the general language of the statute and not by any specification of the evidence or any specific portion of the statute.

He further cites Herndon versus Lowry to support this position and I contend that this case is distinguished because here, the Court found the statute to be vague, so vague as to make a criminal and -- to make criminal and innocent utterance.

The third contention is that where the statute is left standing, it would not give fair warning of its prohibition.

Here, to support this position, the appellant in my opinion dissects the statute and he argues for example that the statute provides where a material is not wholly obscene but contains lewd and lascivious articles that violates the Roth rule.

A reading of that statute sets forth that no one shall knowingly sell, give, lend away -- lend, give away a book, picture or film and so on which is obscene.

And then it goes on and we states and no one shall give, lend away -- lend, give away a book, picture, film and so on not wholly obscene but containing lewd and lascivious material that purpose of this statute is that we conceivably could have a magazine that would have many articles in it and one of those articles could be most obscene and the rest of the magazine be devoted to wholesome material.

Under the Ohio statute, an individual could be prosecuted for the exhibiting, selling of that obscene material.

I do not think that the Roth rule is a rule of quantity but rather a rule of quality.

You could not conceivably have a book that would be a hundred pages and 49 of which would be obscene and 51 not obscene and then say that therefore, this book could not be found obscene.

The appellant argues also that this section in part provides that no person shall -- shall give away -- show to a minor an obscene lewd or lascivious work.

And in support of this -- this contention of the statute is unconstitutional, in this application, he cites Butler versus Michigan.

Butler versus Michigan was a case wherein you will recall where an adult was prosecuted for the possession of materials that would tend to the delinquency of a minor.

The Ohio statute provides that an adult would be prosecuted if there was a sale to a minor not merely the possession or if there was a knowing exhibition of the material to a minor so Butler isn't -- not at all in point.

He says that this section is unconstitutional because it contravenes the Equal Protection Clause of the constitution and that it accepts from its application works of art.

This in fact is not so.

It accepts from its application bona fide works of art.

Bona fide works of art are defined as being works of art that are not obscene.

It provides also that these bona fide works of art be --

Justice John M. Harlan: How would the Venus de Milo --

Mr. John T. Corrigan: -- presentments from a --

Justice John M. Harlan: How would the Venus de Milo be classified (Inaudible)

Mr. John T. Corrigan: I beg your pardon Your Honor?

Justice John M. Harlan: How would the Venus de Milo be classified as (Inaudible)

Mr. John T. Corrigan: Certainly not obscene Your Honor.

Justice John M. Harlan: Antiquity?

I'm just interested in that provision, how does it work?

Mr. John T. Corrigan: It would be a bona fide work of art.

And -- and in addition to that, even if it were not, it is not obscene on any sense by any test that I know.

And with respect to the bona fide work of art coming from an association, the bona fide art association is defined as one in the law as an organization not in contravention with other sections of the law that deal with obscene language, nudism, obscenity, seduction, sodomy, wife slavery, adultery, fornication and the like.

So a bona fide association is one that has proven names of conformity with the well ordered society.

And I submit that if this movie was published by an art association, the exhibition of the film would still be subjected to the criminal law and therefore, there is not an exception on the law which would be violative of the Equal Protection Clause of the constitution.

He contends also that a matter having second class mailing privileges is exempted from the application of the law.

This, we contend is a justified classification or no mail -- no obscenity maybe mailed by any class whatever and we contend that this is a proper classification.

Thank you Your Honor.