A QUANTITY OF BOOKS v. KANSAS

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Argument of Stanley Fleishman

Chief Justice Earl Warren: Number 449, A Quantity of Copies of Books at el versus Kansas.

Mr. Fleishman.

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

This is an appeal from a judgment, ordering the destruction by burning or otherwise of 1715 books on the ground that they're allegedly obscene.

The action was instituted by Mr. Ferguson, the Attorney General, on July 25th 1961 after he had read seven Nightstand Books.

Having read these seven books, he decided read 59 other Nightstand books or 59 and all Nightstand books were obscene.

He filed an information, on belief only, asking for a search warrant for the seizure and the burning of the 59 Nightstand books.

The information was duly filed in Geary County.

The seven books that Mr. Ferguson had read were given to Judge Fletcher to read.

These were appropriately underlined and noted for their sexual passages.

The books were taken to Judge Fletcher's home at 5 o'clock.

Judge Fletcher held an ex parte hearing at 8 o'clock or 8:30 at the Court House.

At this hearing, he previewed one or more books as the record states, decided that the seven books were probably obscene and that therefore, the other 59 books or the other 52 books were also probably obscene.

He, therefore, ordered the Sheriff to seize all copies of these 59 books that he could find that the P-K News Company and the Sheriff appropriately went out with the warrant, seized 31 different titles, constituting the 1715 books, left the warrant with the notice of hearing at the P-K News Company.

Justice Tom C. Clark: Did the judge who issued the warrant had all 59 books?

Mr. Stanley Fleishman: No sir, he had seven books and only six of them were in the 59.

There was one book that Mr. Ferguson had read, but he didn't name, so he had only before him 6 of the 59, and though it's conceded, he did not read in their entirety at the hearing.

Justice Tom C. Clark: The figure of 59 came from Mr. Ferguson.

Mr. Stanley Fleishman: In the information Mr. Ferguson named 59 books as the dependence, but Mr. Ferguson himself hadn't read the 59.

Mr. Ferguson read seven books.

Based upon the reading of these seven books, somebody must have given him the list that Nightstand also put out 52 other books.

Concededly Mr. Ferguson did not read these other 52 books, he read seven books only.

Justice William J. Brennan: But Mr. Fleishman, what went to the judge before the recommendation.

Mr. Stanley Fleishman: Seven, seven books.

Justice William J. Brennan: Now -- and did the judge read the seven?

Mr. Stanley Fleishman: He previewed as to seven, he did not read them.

He says in the record he did not read them.

He looked at portions of them and he looked at portions that had been identified, they were marked.

So that he used Hicklin test clearly in the sense that he did not read the books in their entity, he went directly to the sexual passages of the books.

Justice William J. Brennan: Well you think he had to do, in other words, find actual obscenity by reading the whole book before he issued a warrant?

Mr. Stanley Fleishman: I shall hope so Judge, I think that's, as a minimum --

Justice William J. Brennan: I mean nothing related to probable cause with the five?

Mr. Stanley Fleishman: I think under a statute such as we have here Mr. Justice Brennan, where books are seized, and particularly where we have 1,715 books.

Justice William J. Brennan: Well, I'm speaking only the seven.

I happen to think you have a quite a case on the rest of it, so on the seven.

Mr. Stanley Fleishman: Even on the seven, Mr. Justice Brennan, I would say this that you would have to read the books in their entity before you suppress a book for a moment, because what's being done is the seizure of books and all copies, they were different, just that seven, we're still talking about all copies of these seven books.

Justice William J. Brennan: Yeah.

Mr. Stanley Fleishman: And I would say that that is a prior restraint of communication to take all copies of a particular book without a judge reading the book in the entirety and giving it a constitutional judgment, and that cannot be done when you go to underlined portions only.

Justice William J. Brennan: Do you think we said anything anywhere, particularly in Marcus, would support that?

Mr. Stanley Fleishman: I do Your Honor.

I think that's the whole argument there in terms of having to give careful constitutional judgment to the work.

Justice William J. Brennan: Well of course in Marcus the judge hadn't seen anything?

Mr. Stanley Fleishman: The judge hadn't seen anything Your Honor, but I don't think it makes too much difference, if a judge hasn't seen anything, or if he only sees those portions of a book that the Attorney General calls to his attention --

Justice William J. Brennan: Well, in any event, clearly enough in this case there is before us three questions, where the only purpose of the copies, if you will, of the book, is this Court, the issuance of a search warrant.

Mr. Stanley Fleishman: Yes sir.

Justice William J. Brennan: We got to say do we not, whether anything left in reading the whole book and making a constitutional judgment final?

Mr. Stanley Fleishman: I think that would be insufficient in my own judgment.

I think that even a reading of the book by the judge himself without any adversary proceeding –-

Justice William J. Brennan: (Voice Overlap) there has to be a whole trial before the search warrant can issue?

Mr. Stanley Fleishman: I don't know how much of a trial.

I do believe that it would be a denial of the First Amendment to say that you could do it without some hearing by the party you want to defend the book, and it comes wholly (Voice Overlap)

Justice William J. Brennan: That (Inaudible)

Mr. Stanley Fleishman: Yes, how much?

Justice William J. Brennan: You say you don't know whether it be a whole trial, how far we have to go with this in the United States proceeding?

Mr. Stanley Fleishman: My own judgment would be that you would have to have a full adversary proceeding before you could have any kind --

Justice William J. Brennan: So that's the issue of the warrant and then that has to be followed with another adversary, full trial, would it not --

Mr. Stanley Fleishman: There would be two things.

Perhaps it would be less Mr. Justice Brennan if they were going after one book alone, but whereas here, they're going after all copies of a particular book, where you have prior restraint in totality.

You cannot have that in my opinion without of adversary proceeding.

That would be different than an attempt to seize one copy of a particular book perhaps for a criminal proceeding.

That would raise a different question, but here you have suppression, total suppression when you say take all copies of this particular book before you can do that, it is my view that you would have to have a full adversary proceeding, yes.

Justice Byron R. White: You just say you may not take the book out of circulation until and unless there has been a full constitutional judgment on a defendant.

Mr. Stanley Fleishman: Yes, I think the person demands nothing less.

Justice Byron R. White: I think at that time circulation must be permitted.

Justice William J. Brennan: I've forgotten (Inaudible) procedures this is the – whether it is or not I'm not sure, a withdrawal from circulation completely for some time.

Mr. Stanley Fleishman: In that -- in the Kingsley case Your Honor, there was an agreement by the parties that they would be an ex parte injunction prior to determination.

Justice William J. Brennan: I am thinking about the statue, the New York statue, I forgot --

Mr. Stanley Fleishman: Well, there was some ambiguity in this statue.

I believe that it's been interpreted by New York is not permitting that.

I believe that New York requires some kind of an adversary proceeding before -- I am not -- I don't want to say dispositive because it wasn't in the Kingsley case, it wasn't clear that, but in a subsequent case in the Larkin case that matter was raised and it's my understanding that the appellate court there, not the Court of the Appeals, but the Intermediate Court ruled that there could not be a restraint prior to the adversary proceeding.

Justice Tom C. Clark: Yes, that maybe correct, Larkin?

Mr. Stanley Fleishman: Larkin.

Justice Tom C. Clark: Have you got (Inaudible)

Mr. Stanley Fleishman: I am sorry Your Honor I do not, but I will try to finish it by letter to the Court.

Justice Byron R. White: But I suppose you're saying that you can't take the book out of circulation until there has been a hearing, but you can take a person out of circulation before he has had a hearing.

I suppose you would say that's a difference between a, I believe the First and the Fourth Amendment.

Mr. Stanley Fleishman: I would say that the First Amendment does not permit the taking of a book out of circulation on a ex parte determination by anyone.

Justice Byron R. White: Although a person could be taken out of circulation on an ex parte on a warrant that is secured ex parte.

Mr. Stanley Fleishman: I like to think that the bail works effectively enough and fairly enough so that the person is --

Justice Byron R. White: He can be taken out of circulation for a moment.

Mr. Stanley Fleishman: Well, if this was for perhaps a few hours that would be a different case perhaps, but here we take it for at least 10 days, because under the Kansas statue once these books are seized under the warrant, there may not be a hearing in less than 10 days.

The statute so provides that the first time a hearing could be had would be after 10 days, so we know that under the Kansas statute the books and all copies of the books are taken first and held or at least 10 days before there is any --

Justice William J. Brennan: And Marcus statute was within 5 or 20, wasn't it?

Mr. Stanley Fleishman: That's right Your Honor, not less than 5 no more than 20.

Justice William J. Brennan: And this is not less than 10.

Mr. Stanley Fleishman: And not less then 10 and there is no outside limited, so the version is just on 10 days.

Justice John M. Harlan: How many days actually elapsed before (Inaudible)

Mr. Stanley Fleishman: The Search Warrant provides for a hearing on the 7th day of August which is about 12 days after the seizure.

On the 7th day of August, we filed a motion to quash.

We attacked the statute on its face, and as construed and applied, and a hearing was held, pursuant to the, just on the search warrant on the validity of a search warrant and on the validity of the statute.

This was promptly heard and decided by Judge Fletcher.

Thereupon, we made a motion for a continuance.

The matter was set down for an earlier hearing and Mr. Shermaghan asked for additional time within which to prepare because there were there were 31 different titles which he had not read.

So that he was caught on the horns of a dilemma.

He wanted speed on the one hand, and he wanted to prepare on the other.

The matter came on for hearing, September 14th on the merits, prior to that time –-

Justice Arthur J. Goldberg: (Inaudible)

Mr. Stanley Fleishman: On the issue of obscenity, that's I --

Justice Arthur J. Goldberg: You had a trial.

Mr. Stanley Fleishman: There was a trial if you want to call it a trial.

Actually there was not much more of a trial around the September 14th than there would be by the mere reading, because the prosecution took the 31 books, put them into evidence and then rested and in that way --

Justice Arthur J. Goldberg: Was the defendant (Inaudible)

Mr. Stanley Fleishman: Well the defendant demurred.

The defendant said that the prosecution had not made out a case that as a minimum, that --

Justice Arthur J. Goldberg: Do you think you don't have a minimum (Inaudible)

Mr. Stanley Fleishman: We started off with the premise that books are constitutionally protected and if they were to be found obscene under the Rob Albert's test annunciated by this Court that a minimum requirement placed upon the prosecution was to prove by evidence that the books did go beyond customary limits of candor, that is to say, taking the 31 books we had here.

They could have shown if they had a mind to, that the language used in these 31 books went far beyond the language to be found in Tropic of Cancer, beyond what was to be found in Tropic of Capricorn and Lady Chatterley's Lover, but the sexual detections and the condor with which these matters were done, had never before been put down on paper.

If they had done that, then at least, they might have made out some kind of prime faice case.

Justice William J. Brennan: Well, Mr. Fleishman would you say that to those 24 titles?

Mr. Stanley Fleishman: No, I didn't tell them any –-

Justice William J. Brennan: Even if they have gone through all the so called hearing on the merits --

Mr. Stanley Fleishman: Yes sir.

Justice William J. Brennan: Wouldn't you still be here attacking the validity of the order?

Mr. Stanley Fleishman: I surely would.

Justice William J. Brennan: As in 24 times.

Mr. Stanley Fleishman: We're talking now about only 31, all of those that were not--

Justice William J. Brennan: Oh, was that 31 and 7, I'm sorry.

I thought it was 24 and seven.

Mr. Stanley Fleishman: All right.

Justice William J. Brennan: 31, whatever it is, whatever it was, the judge had not read, but looked at it fully, whatever was it he did, before he granted the warrant.

As to those, no matter what did happen on the hearing on the merits wouldn't you be here contending that the --

Mr. Stanley Fleishman: Yes.

Justice William J. Brennan: -- that order had to be quashed.

Mr. Stanley Fleishman: And I would also be here as with regard to the other seven --

Justice William J. Brennan: I think he would be here with the 20 --

Justice Hugo L. Black: (Inaudible)

Mr. Stanley Fleishman: If I won on the merits Your Honor --

Justice Hugo L. Black: And you have many books.

Mr. Stanley Fleishman: The books would have been returned.

Justice Hugo L. Black: Went back to the court.

Mr. Stanley Fleishman: The books would have been returned if we had --

Justice Hugo L. Black: Were they returned?

Mr. Stanley Fleishman: No sir.

And I would like to at this point --

Justice Hugo L. Black: You still have to try that here as to whether that was obscene under the law?

Mr. Stanley Fleishman: We had such a trial theoretically.

We had two proceedings before the Judge Fletcher Your Honor.

The first one was whether the search warrant was any good and whether the statute was valid on its face.

Judge Fletcher held that the statute was valid on its face and as applied and that the search warrant was good.

Then thereafter there was a hearing on the obscenity or non-obscenity of the books themselves, the 31 books and it was at this hearing as I say that the State put in the books and rested.

Thereafter we demurred as I pointed out saying that they hadn't proved the essential ingredient to be offence that if, if a book can be suppressed only if it goes beyond customary limits of candor in description or representation, if matter is pertaining to sex, then the prosecution would have the burden of proving that the books did go beyond customary limits of candor.

Justice Hugo L. Black: All right!

(Inaudible) releasing the book?

Mr. Stanley Fleishman: Yes Your Honor and I think this is important because the matter has come up before.

As I understood there was one important addition made to the Law of Obscenity made by the Roth Alberts' case.

Up until Roth Alberts, it was thought that obscenity was inutility determined and that there was nothing to consider outside of the fours corners of the book.

You read the book, you like it or you don't like it.

If you don't like it, it's obscene, if you like it, it's protected.

That's what Hicklin was and that's what the law was prior to Roth Alberts.

The one thing that was added in Roth Alberts that was useful in defending books was this notion that the books had additionally, the charged books had to go beyond customary limits of candor.

That meant for the first time as you defend these cases that you can go into court and bring before a jury that doesn't read, because I've tried many of these cases and for the most part, you will find 10 of the 12 jurists saying that they have not read a novel in the last five years or so.

So that and for the first time you were able to bring before a jury, works which are freely circulating in society and show them that language --

Justice Hugo L. Black: Suppose you won't find a jurist who had read a book like that.

[Laughter]

Mr. Stanley Fleishman: Well, outside the record I had requested the books like that Judge, but that's only after there's been a conviction and a hearty condemnation, and I think this double standard is kind of an --

Justice William J. Brennan: I gather some of the arguments here suggested that at least these judges, setting behind this bench are going to have further business reading (Inaudible)

Mr. Stanley Fleishman: I should hope not judge.

Justice William J. Brennan: Are these 31 books here by the way?

Mr. Stanley Fleishman: Yes, yes Your Honor.

These books are here [Laughter] and we have an extra set in addition.

Justice Hugo L. Black: I have not read.

I have not read any of these books simply because that is overruled, (Inaudible)

Mr. Stanley Fleishman: Well, I can say this that I trust that if censorship is to continue and I hope it will not that, and that you will read them because somebody has to do some protecting, but it goes down below, leaves us with a mighty little (Inaudible)

Justice William O. Douglas: Roth sets up a censorship scheme you think?

Mr. Stanley Fleishman: There is no question about it.

It puts at large the whole issue to either to a judge or a jury depending on who the try over fact is to determine whether or not this book deeply offends, and that's all it comes to.

You can see it here in this Kansas statute what is it that Mr. Ferguson comes to wasn't said.

He says, the work is obscene, if it deals with sex in a manner which is generally offensive to decency.

Well, if that's not censorship, I don't know what censorship is?

How can anybody know in advance whether or not a book is good or bad under such a stand?

You know under the Kansas statute as interpreted by Judge Fletcher, which is equally bad.

He said whether the book aroused sexual thoughts?

Well, any book worth itself that a novel is going to arouse some sexual thoughts in some persons under some circumstances, so that the rule is so big that you find the whole rule of obscenity in the exceptions and we don't know what the exceptions are.

There is no question but that Roth Alberts as is being ripped under right now is a failure, if it was meant to protect literature generally and to protect the freedom of speech or press.

It is not doing that, that's I have tried enough cases to assure Your Honors of that and I'd like to address one moment to Mr. Justice Black in terms of the criminal prosecutions.

Within the last four months, I had a case where a man was sent to jail for 25 years for the distribution of one book, so that the terror that is going on under this standard is a --

Justice Hugo L. Black: What book was that?

Mr. Stanley Fleishman: It was a book called the ‘Sex Life of a Cop' and I guess if had been called the Sex Life of Shoe Salesman, there would have been no prosecution in the first instance.

Justice William J. Brennan: That's the one where the distributor got 25 years?

Mr. Stanley Fleishman: That's the one where a distributor got 25 years for the distribution of one book.

Justice William O. Douglas: Is that one of the 31 here?

Mr. Stanley Fleishman: No, sir.

No, that's another case and I was addressing myself only to what Mr. Justice Black had asked whether there kind of penitentiary terms being --

Justice Hugo L. Black: Is that (Inaudible) proves on?

Mr. Stanley Fleishman: I trust not.

I've filed a notice of appeal and I have every confidence that we --

Justice Hugo L. Black: (Inaudible) pending?

Mr. Stanley Fleishman: That's pending and it has nothing to do with this case.

Justice Hugo L. Black: Was it Jury Trial or Trail of Judge?

Mr. Stanley Fleishman: That was a Jury Trial and a forum selected by the government.

It was a California firm that was brought to Grand Rapids, Michigan because the government had thought that they would find a happy jury there, but that's not our case.

Coming back to the proceedings that we had on the merits so called, whether these 31 books were or were not obscene, after we demurred to the evidence at the close of the government's case the defendants did two things.

First of all we introduced 31 other books.

We said, you have 31 books, we will put on 31, 29 of these other books were in the library in Junction City.

Two, the librarian said, she would have liked to buy them, but they were too expensive.

In addition, we called three persons who have qualified as experts, experts in the sense that they read a great deal.

They said that they were familiar with the literature that generally circulates in America and in Junction City particularly and that they were able to state affirmatively that talking about language first, the so called four letter words while they were entirely absent in the 31 books before Your Honors now, they were very prevalent in books that were to be found in hardcover nationally circulated such as ‘Lady Chatterley's Lover,' such as Tropic of Cancer.

Themes such as the sexual relationships between an adult man 44, and a 14 year old girl would be found in books like ‘Lolita'.

From all of this, the three experts, comparing these 31 books and the 31 books that had been introduced as being in the library and generally circulating, the experts said that the 31 books here did not go beyond customary limits of candor and the language used, they were calmer, they were muted.

In the kinds of sexual scenes that were depicted, these were muted, compared to Lady Chatterley's Lover and the other books that were introduced, that in the variety of situations, these books did not go beyond.

In total, the three experts said that assuming the test of obscenity is, do these books go beyond other books which are generally circulating, the answer is no.

Thereafter, Judge Fletcher wrote his opinion and he said, well, the big difference between these 31 paperback books and the 31 books that were introduced by the defendants is this, that in the paperback books, in the books before the court, the dominant thing of the books was sex with plot scenes of servings, whereas in Lady Chatterley's Lover and the other books, the dominant theme was not sex, they had a plot independently and sex was merely subservient.

In that way, he said there was a distinction and then he applied this test.

He said, if he found that the books had the purpose and effect and defect of inciting sexual desires, on the average person in this community -- this community was what he used, then the book was not protected by the First Amendment and it could be suppressed.

Kansas Supreme Court affirmed.

Kansas Supreme Court used a variety of tests in determining that these books were obscene?

First of all, they went to the statute, and the statute is different from the test that was used by Judge Fletcher.

Then, the Supreme Court approved of Judge Fletcher's test.

Then the court said, by looking at the excerpts, because they apparently hadn't read the 31 books, looking at the excerpts of the books that were in the back of Mr. Ferguson's brief, they checked it out.

The page references were correct and based upon that these books surely came within the Roth Alberts' test also and finally to make it good measure, they said any offenders, hardcore pornography is bad by any test we know, including the test that was promulgated by the Wit, Irvin S. Cobb who said, that his test of obscenity was this "If the depth of the dirt exceeded the breadth of the wit, then a work was obscene.”

Now I dare say that Judge Cobb has not to been elevated to the bench yet and his definition is probably one that would be one to protect the freedom of speech --

Justice William J. Brennan: Mr. Fleishman I am still confused on figures, you keep up with that 31 books.

Mr. Stanley Fleishman: Yes.

Justice William J. Brennan: Are these 31 independent of the seven or what?

Mr. Stanley Fleishman: Well, actually of the 31, Judge Fletcher had read six of them.

Justice William J. Brennan: Well six.

Mr. Stanley Fleishman: He read six.

Justice William J. Brennan: But the total number is 31, is that right?

Mr. Stanley Fleishman: 31 is what was seized.

The warrant called for the seizure of 59, but they went to the news company --

Justice William J. Brennan: They found only 31.

Mr. Stanley Fleishman: They only found the 31.

Justice William J. Brennan: But what I – I just want to get this much clear.

Mr. Stanley Fleishman: Yes.

Justice William J. Brennan: The 31, the point you're not making is 31, include the six the judge read.

Mr. Stanley Fleishman: Yes sir.

Justice William J. Brennan: That's on the premise, you might be wrong as the – on your market point that the six the Judge read, is that right?

Mr. Stanley Fleishman: That is correct.

Justice William J. Brennan: But if even if you're wrong, if the warrant that's sustainable as to the six, you would still make the warrant point as to the 24.

Mr. Stanley Fleishman: I would make the warrant point on all 31.

I don't think even for the seven the warranty is right either.

Justice William J. Brennan: I know you don't, but if you are wrong on six, you still make the same arguments on and the warrant point on 25.

Mr. Stanley Fleishman: Yes sir.

Justice William J. Brennan: All right.

Print this transcript Transcript: 

Argument of Stanley Fleishman

Chief Justice Earl Warren: Number 449, A Quantity of Copies Of Books et al., Appellants versus Kansas.

You have -- you are reserving the remainder of your time, Mr. Fleishman?

Mr. Stanley Fleishman: Yes.

Chief Justice Earl Warren: Attorney General Ferguson.

Argument of William M. Ferguson

Mr. William M. Ferguson: Mr. Chief Justice may it please the Court.

This litigation was designed to comply with the mandates of this Court and it was filed in 1961, with Roth and in particular with respect to Marcus.

We prepared the litigation in my office with the anticipation in that it might well be before this Court as is the case of so many of these obscenity cases.

The statute in Kansas, the language is taken exactly from the approved charge in the Roth case, charge to the Jury.

The forum was a capable, young judge.

It had been suggested here yesterday that this was sort of a kangaroo proceeding in Kansas, this was not the case.

As a matter of fact in overruling the demurrer to the evidence the judge, Judge Fletcher said that his personal views coincided exactly with those of Mr. Justice Black as suggested in the Smith case.

The judge was handed a copy of Marcus at the time he was presented with the information and if the Court will consider the transcripts in this proceeding, the Court will find that all the constitutional questions that are here before this Court were litigated at the trial level and then re-litigated at the state level and that the trial court meticulously answered the objections raised by counsel throughout the trial.

The purpose of filing this action was to reach the evil that 50 states have considered to be an evil in the federal government, namely that matter of obscenity and this case involves that the business of purveying of obscenity.

It's now a part of a $2 billion business.

As a matter of fact it's -- it's my feeling that this is really as much a Ferguson versus Skrupa proposition as it is a First Amendment proposition.

Justice John M. Harlan: Where does that $2 billion figure come from?

Mr. William M. Ferguson: It is recently reported in the Kansas City Star, Your Honor, a $2 billion business.

It was -- in 1955, it was a half-a-billion dollar business, by 1964 it has become a $2 billion business.

Justice John M. Harlan: I am wondering is that a newspaper estimate or is it a estimate of some survey that --

Mr. William M. Ferguson: I suspect Your Honor that is a newspaper estimate.

No way to tell of course that half-a-billion dollar estimate came from the congressional committee that investigated juvenile delinquency in 1955.

What the state here is trying to do is to make Roth workable and what we hope to accomplish by having this Court affirm the procedure in that case, in this case at bar, so that the prosecutors will have some definite or delicate tools with which to work in this area.

It's a concern to me as attorney general and I am sure it is my colleagues who are prosecutors that the business of smut peddling has reached such propositions.

The question that's considered yesterday with respect to the procedure, considered the question as to probable cause as to whether or not as a matter of law, the trial judge could have found from his consideration of these six books that these additional books were obscene.

It's been suggested that the attorney general had them properly marked.

We submit to the Court, this isn't necessary.

Any book, any of these books can be opened to any page and a sexual description will be following within a few paragraphs.

It doesn't take a directory to find the sexual passages in these little books. Now these books were presented, the six, to the trial judge and here is one of them, ‘The Wife Swappers,' on the first page it says, ‘The Wife Swappers.”

In bold print it says, “Members of this lust club had a different woman every night.”

You turn to the fly leaf and it says, ‘lust sated couples' and in big letters, ‘these eight couples are members of a wife-swapping, mate-switching sex club, so vile it will stun you.'

On the next page it says, the wife swappers, ‘This is an original night stand book.”

On the next page, ‘Printed and bound in United States of America.'

On the back, ‘Problems in bed game of wife swappers' and on the inside cover, ‘our list of other night stand books.

‘Sex Circus,' the same, this was handed to the judge, ‘Sinful world of the Big Top' on the fly leaf, ‘Four passionate women, desperate passions, sin is the star act.'

On the back, ‘Passion Freaks on a sin midway' and then also a list of other nightstand books.

Now each of these books are almost exactly same length, 16, 190 pages, 11, 191, two, 192, one, 189.

By considering each of these six, it's our contention that they were so much alike as piece and a part, it's interchangeable, as the parts on them both way and the judge in considering these --

Justice William J. Brennan: How did it develop (Inaudible)

Mr. William M. Ferguson: I beg your pardon sir.

Justice William J. Brennan: How did it develop and see there is an nterchangeability?

Mr. William M. Ferguson: They are identical.

This was, our problem here is whether or not the judge could find probable cause for ordering the seizure of 59 when he had only seen six.

They are identical.

They are formats are same.

Their authors are substantially the same, the sex passages occur about every ten pages.

So --

Justice Hugo L. Black: And are they the same though?

Mr. William M. Ferguson: They are the same -- the titles are different, the plot is somewhat different.

Justice Hugo L. Black: Maybe precisely the same from the first page to the last?

Mr. William M. Ferguson: They are not precisely the same.

Justice Hugo L. Black: Well then why couldn't you say that they are different?

Mr. William M. Ferguson: I say that their format is the same.

They are basically the same, they --

Justice William O. Douglas: Same subject matter you mean --

Mr. William M. Ferguson: Same subject matter, that the judge --

Justice William O. Douglas: You read one, you don't have to read the other --

Mr. William M. Ferguson: Substantially that's correct Your Honor and that the judge was compelled in considering these six to determine that the others listed if these were obscene, that he had probable cause to believe that the others were obscene.

Justice John M. Harlan: Were the other 52 or 31 did turn out – 24 turned out, were the titles of those books listed on the --

Mr. William M. Ferguson: Yes, within the, in the back of the ones that he -- that were presented to him.

Justice William O. Douglas: Your, your argument comes down to the fact that if the judge, magistrate has probable cause, showing probable cause then he is justified in installing a system of prior restraint?

Mr. William M. Ferguson: This is a form of prior restraint, we don't deny that.

But it's our concern, it's our conception of this thing, Your Honor that by seeing six, he, these six, of course each case has to stand on its facts, obviously he couldn't pick six books at random and say that another 31 books were the same, but these are so identical in their format.

Justice William J. Brennan: What's identical?

Titles of books he didn't see?

Isn't there an issue here for us to decide, we have to decide whether even as to those six there is an unconstitutional prior restraint in taking those six out of circulation before there has been an adversary determination of obscenity.

Mr. William M. Ferguson: Well we had a judicial determination --

Justice William J. Brennan: You didn't have obscenity.

Mr. William M. Ferguson: It was ex-parte.

Justice William J. Brennan: Yes, but don't we have to decide here maybe you are right, one it is not required, but even as to those six, isn't the issue before us whether without an advisory determination of obscenity, taking these books those six out of circulation was a, an unconstitutional prior restrain.

Mr. William M. Ferguson: That is one of the questions --

Justice William J. Brennan: And if we find that it is as to the sex, then of course there is the others there is no problem with that.

Mr. William M. Ferguson: I would say that's true.

Of course 27 states have a seizure provision similar to ours and this Court has never up to this point said that there must be a full adversary proceeding and as a matter of fact from the matter of practice having to have a full adversary proceeding in a business like this, it would be most difficult.

Justice William J. Brennan: Are you familiar with that case Mr. Fleishman, you showed it yesterday that New York has said that you cannot under their Kingsley Statute take a book out of the bookseller's window until there has first been an adversary determination?

Mr. William M. Ferguson: Yes, and some of the cases have so indicated, others have --

Justice William J. Brennan: (Inaudible) have --

Mr. William M. Ferguson: 27 states.

Justice William J. Brennan: 27?

Mr. William M. Ferguson: Have a seizure provision of one time.

Justice William J. Brennan: How many of them you know follow that New York interpretation?

Mr. William M. Ferguson: I can't answer that.

Chief Justice Earl Warren: When was your statute adopted?

Mr. William M. Ferguson: 1961.

Chief Justice Earl Warren: And the other 26 states, were they recent too?

Mr. William M. Ferguson: I can't determine that, but I can tell you that Your Honor some of them are recent statutes, but I can't tell you which ones that are, but 27 of them.

Chief Justice Earl Warren: You mentioned that this Court has never questioned those statutes.

Mr. William M. Ferguson: That is correct.

Chief Justice Earl Warren: (Inaudible) because those statutes haven't had the time even to come to us.

Mr. William M. Ferguson: Well this is -- I assume this is the first case that has come to you --

Chief Justice Earl Warren: Yes.

Mr. William M. Ferguson: -- which squarely presents this question of whether or not books maybe seized without a full adversary proceeding, you have said of course that there must be a judicial proceeding and this we attempted to follow.

We attempted to follow Marcus as nearly as we could.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William M. Ferguson: Well I say -- oh yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William M. Ferguson: Probable to cause, yes sir.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William M. Ferguson: That's right.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William M. Ferguson: Well this kind of a business where so many titles are involved and they are so much alike are somewhat akin to contraband, gambling, liquor and so on.

If -- the point is that if the purveyor of this pornography, the seller is advised in advance what you're going to be looking for it may not be there, that's in essence, it's a matter for the prosecution sir.

Chief Justice Earl Warren: Mr. Attorney General was the dealer in this case prosecuted?

Mr. William M. Ferguson: No sir.

Chief Justice Earl Warren: Why not?

Mr. William M. Ferguson: This is an in rem proceeding against the book?

Chief Justice Earl Warren: Why not?

Mr. William M. Ferguson: Why not?

Chief Justice Earl Warren: Yes.

Mr. William M. Ferguson: Well in designing this case Your Honor, it was our feeling when you deal with this business of purveying of obscenity, it's more practicable to reach the books themselves than to try to convict a seller who maybe innocent as of the nature of these books, it just seemed that as a matter of mechanics that the states ought to have the right to choose their remedy.

We chose the in rem remedy.

Chief Justice Earl Warren: In other words it's easier to burn books than it is to prosecute a man for practicing obscenity in the selling of them.

Mr. William M. Ferguson: I don't know that I'd agree with that.

Actually it would have been I think equally as easy to prosecute the seller of these books.

Frankly I felt that this would reach a greater number of books.

We could have had a proceeding in each one of these books, but there is something what Your Honor says, it could be --

Chief Justice Earl Warren: Well isn't that the danger that we face in proceedings of this kind?

Wouldn't you avoid your constitutional questions if you prosecuted this man for practicing obscenity, and tried him as Americans are tried in the courts rather than to take the shortcut of naming 59 books and going before a judge ex-parte and getting a decree permitting you to burn the books as your own statute --

Mr. William M. Ferguson: Yes it's so far --

Chief Justice Earl Warren: -- to use the words book burning, that is my appellation, but to yours and I wonder if that isn't the situation.

Mr. William M. Ferguson: Well of course I might make two answers to that question.

First that to call these books as kind of a travesty on the concept of freedom of speech and of books, secondly --

Justice Hugo L. Black: Yeah it looks like book.

Mr. William M. Ferguson: Yes sir they look like books, but Your Honor if you will peruse them all -- you had announced from the bench yesterday that you didn't intend to, if you'd peruse them you would -- I think my point would be borne out.

Chief Justice Earl Warren: The fact is that the judge didn't peruse them, he didn't read them, he saw a few of them, saw six of them and then you just jumped from that to the fact that well everything that's published by these same people must be of the same nature, therefore we can proscribe everything these people --

Mr. William M. Ferguson: Well of course we had specifically named in the complaint the titles that were taken.

Chief Justice Earl Warren: Yes but the judge -- the judge who permitted you to go and take the 59 books, had no knowledge of what was in those books, not a bit of evidence.

Mr. William M. Ferguson: Well one of these books can be read from cover-to-cover in about 40 minutes and they can be quickly perused as to their contents in much less.

So the judge was thoroughly familiar with these six and this is what we discussed before whether or not the --

Chief Justice Earl Warren: Well how about the other 53 that he didn't see?

Mr. William M. Ferguson: We feel that they are so substantially identical that he had -- at least had probable cause to believe that the others were obscene and he so found.

Chief Justice Earl Warren: Now did he know, how did he know they were that mirror like?

Mr. William M. Ferguson: Well if he had a basket of peas and he was given six peas and he cracked six of them and found that each one of them had within the peas within the pods peas, couldn't he as a matter of probable cause say the rest of these in the basket are peas, this is what he did.

Chief Justice Earl Warren: But we have heard some arguments in this Court on this same subject, that at least one of Shakespeare's books has some phases in it that might be considered obscene.

Do you mean because someone might come to that conclusion after reading one volume of Shakespeare that he could proscribe everything that Shakespeare ever wrote?

Mr. William M. Ferguson: Certainly not, and as a matter of fact when the Court adopted Roth and Hicklin was struck down, that kind of an approach was eliminated.

He can -- the judge could tell as this Court can tell that when considered as a whole these little books meet the test in Roth and --

Chief Justice Earl Warren: Well let's concede that those six books do, how about the other 53?

Mr. William M. Ferguson: Sole question is whether in looking at these, he had probable cause to believe that the others who are also listed in the back, whose names are also equally suggested and they were on the complaint whether or not he could find that these had probable cause to believe that these were obscene if these were.

Chief Justice Earl Warren: I get your point.

Justice John M. Harlan: Did he read (Inaudible) the titles of the books listed in (Inaudible)

Mr. William M. Ferguson: Well he didn't read Trailer Trollop, The Lecher, Miami Call Girl, No Longer a Virgin, The Sex Spy, Lover, The Lustful Ones, the Sex Jungle, The Sinful Ones, Flesh is my Undoing, The Seeds of Sin, Sex Model, $20 Lust, Sin Cruise, Sin Camp, Love Nest, Sin Girls, Convention Girl and some others.

Justice John M. Harlan: No Shakespeare.

[Laughter]

Mr. William M. Ferguson: Well we didn't find any Shakespeare Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William M. Ferguson: Well this is a -- or if anything this is a fact question and this is our whole point that based upon these books he had probable cause.

Of course he would have no probable cause to seize books by the same author or the same publisher, unless that he was convinced that they were part of the same format as this is.

Justice Arthur J. Goldberg: (Inaudible)

Mr. William M. Ferguson: Well Mr. Justice Goldberg if I might make this point?

It is the tendency of the providers of obscenity to prick for soft spots in the procedure.

This Court will set up a -- an improved procedure and then a objection will be suggested with respect to it in order to fragmentize whatever kind of procedure there is, raise the question, jury trials here, prior restrain.

So long as another question can be presented and considered, it makes it virtually impossible to carry out the concept of Roth which says that obscenity can be prevented --

Justice William J. Brennan: But Mr. Attorney General in this very -- well how did you get hold of those books?

Mr. William M. Ferguson: I had some complaints that were sent to me.

Justice William J. Brennan: Where did you get them?

Mr. William M. Ferguson: Where did we get these?

Justice William J. Brennan: Yeah.

Mr. William M. Ferguson: We seized them in --

Justice William J. Brennan: Now but those that you presented to the judge, the six titles, where did you get them?

Mr. William M. Ferguson: I received two of them in the mail saying, General did you realize that this kind of stuff was being sold in the State of Kansas?

Justice William J. Brennan: And I take it -- having the two either by information or indictment you could have properly proceeded against the distributor of those things and prosecuted them, could you not?

Mr. William M. Ferguson: That's of course we could and this Court have suggested, some of the members at any rate that this is the only way to get at them --

Justice William J. Brennan: Well may I ask this, do I understand you to suggest that I could have gotten -- who publishes the -- is that Grove Press?

Mr. William M. Ferguson: That's Mr. Henry Miller's book, but I cannot tell you the publisher.

Justice William J. Brennan: Let's say it's Grove Press, I suppose Grove Press has a fly leaf for a number of titles at the back of it there, some state courts have held at least that Tropic of Cancer is obscene.

If that came into your state could you go in and just showing the judge Tropic of Cancer and then --

Mr. William M. Ferguson: First --

Justice William J. Brennan: Ordered to seize all the other titles of Grove Press?

Mr. William M. Ferguson: Firstly I don't believe either Cancer or Capricorn are obscene.

They don't meet the test as I do.

Justice William J. Brennan: You don't think they are.

Mr. William M. Ferguson: No.

Justice William J. Brennan: Well I suppose you are one of the attorneys general of those states where they held it is, Florida, New York for example.

Mr. William M. Ferguson: If -- it have to be grounded upon a similar factual situation.

Justice William J. Brennan: All I am suggesting is that similar fact is that in a fly leaf with Tropic of Cancer appear a number of titles published by Grove Press, Lady Chatterley's Lover and a couple of other things.

Now merely by presenting your magistrate Tropic of Cancer and maybe whether he purses it or read it, you are supposing you could then get a warrant to seize all Grove Press titles?

Mr. William M. Ferguson: I don't think we could have done it on Sex Circus alone.

I don't suppose we could have done it on Sex Circus and Wife Swappers alone, but I feel we can do it on Sex Circus, Wife Swappers, Sinning Season, Sin Song, Lesbian Love, and Backstage Sinner --

Justice William J. Brennan: Every title of Nightstand Press.

Mr. William M. Ferguson: Yes.

Justice William J. Brennan: Well I gather perhaps you would do it against Grove Press.

Mr. William M. Ferguson: If we felt that we had enough there that would indicate that this is the only kind of business that they were in.

Chief Justice Earl Warren: I don't know -- have you prosecuted anyone in Kansas for violating the statute of obscenity?

Mr. William M. Ferguson: Since I began this case there has only been one other case filed in Kansas by one of the county attorney's.

We have been waiting --

Chief Justice Earl Warren: Have you prosecuted?

Mr. William M. Ferguson: No sir.

Chief Justice Earl Warren: Have you prosecuted any individual in Kansas for obscenity?

Mr. William M. Ferguson: No sir.

Chief Justice Earl Warren: In the $2 billion business around this country I suppose a sizable portion of it can be attributed to Kansas.

Mr. William M. Ferguson: Yeah.

Chief Justice Earl Warren: Now if that is true why, why in order to avoid these constitutional questions can't you prosecute the people who are indulging in obscenity?

Why -- those people don't want to go to jail anymore than anyone else if they have adequate law enforcement, if they have -- if they are prosecuted for doing this thing, can't we, can't we believe that that can be stamped out or almost stamped out like burglary, and robbery and other crimes are, rather than to take shortcut that involves all these constitutional questions, book burning and all the rest of things that go with it?

Mr. William M. Ferguson: We could do it that way.

Chief Justice Earl Warren: When we talk about, when we talk about suppressing obscenity, why don't the law enforcement officers do their job and prosecute those who were purveying filth throughout the country instead of coming on to this Court continuously on cases of this kind.

We've had practically no cases in this Court, where there had been actual prosecutions for obscenity and there isn't a city in this country in which it isn't practiced almost with impunity.

Why is that in Kansas?

Mr. William M. Ferguson: Well it is our view in Kansas that this is a more expeditious method of doing it and we feel that the states have a right to select their remedy and we shouldn't be proscribed by the Constitution from using this technique of stopping this business of smut peddling.

I would like to get to one more point before my time is up and that has to do with community standards and what constitutes the community.

It's our position and was our position throughout this litigation that the community standard is properly setout in Roth.

It doesn't need to be expanded and that that the community standards and what constitutes community are so inextricably interwoven that you can't consider one as opposed to another and it's our position that the way to handle this problem is to do it in a way similar to the way we handled a problem in standard of care, instruct the trier of fact, if it's a jury or a judge if he is the trier of fact to measure the average person in the community, measure the thing to be considered against the attitudes, the summary of the attitudes of the average person in community.

This is the, this is the method we use.

We don't think it can be a geographic concept whether it's the local community, the state, or the nation because the result will be substantially the same.

If we suggested that really the test is to whether or not obscenity deals with sex it must deal with sex, and whether or not it offends the generally accepted standards of candor of the community or we suggest the standards of decency.

Now this Court in Roth has suggested it doesn't make too much difference of what the actual test is.

What we have been getting into recently is something like medieval scholasticism, how many angels can stand on the head of a pin.

Really all these test means substantially the same thing.

The trier of the fact is going to measure the suggested obscenity against a community standard and this isn't too difficult.

I think the Court did an excellent job in Roth.

All we are asking is that the states be given an opportunity to make Roth work rather than each time something comes before this Court to give us a negative standard.

If this Court affirms this case on the facts then it seems to me that the states will have some opportunity to get at the evil that's been proscribed by each of the legislatures.

The standard in our view is the same, whether it's state or national, it's the same throughout the United States and the trier of fact should determine the standard.

Justice John M. Harlan: May I ask you a question.

Your statute says there has to be a hearing within how many days after --

Mr. William M. Ferguson: Not less than 10 days.

Justice John M. Harlan: Not less than --

Mr. William M. Ferguson: Not less than 10, in this case the total time attributable to the state was 16 days.

The Court in the record says that time is the essence of this case and it was handled with dispatch.

Justice John M. Harlan: Under that statute there is no outside limit?

Mr. William M. Ferguson: No outside limit.

Justice John M. Harlan: Has it been construed, generally in other cases by your courts.

Mr. William M. Ferguson: Oh!

There is only been one case.

Justice John M. Harlan: Now I am getting it, what I'm getting that is, obviously if you had a case where the hearing took place a year after the seizure you have (Inaudible)

Mr. William M. Ferguson: Certainly, of course our Court, the Supreme Court approved the lower Court's function in this case and our position in respect to this is that the Court should be assumed to carry out their functions with diligence as they did in this case.

Justice William J. Brennan: And how long was, this attorney general before they -- the hearing of the 16th day after --

Mr. William M. Ferguson: No, sixteen days were attributable to the state from the time of the seizure to the time of decision.

Justice William J. Brennan: Well, as I understand it's your statute in effect prohibits the hearing earlier than ten days.

Mr. William M. Ferguson: That's correct.

Justice William J. Brennan: It's ten days from what?

Mr. William M. Ferguson: Ten days from the time of the seizure.

Justice William J. Brennan: From the time of the seizure and then the, all the proceedings resulting in the adjudication of obscenity as to all 53 titles or whatever number we are dealing with here, had been completed within six days after the --

Mr. William M. Ferguson: Sixteen days.

Justice William J. Brennan: Sixteen days from the date of seizure.

Mr. William M. Ferguson: I want to make this point that the sixteen days were not based on the calendar because the interveners asked for an extension of time, a continuance which was granted, but there were 16 actual days attributed to the state from the time of the seizure until the times that the Judge made his decision.

Justice Byron R. White: Well, you think there is any really a real substantial question about the structure of evidence?

Let's assume that the Court held that it could seize, it couldn't take any book out of circulation.

There is an adversary hearing and a judicial determination of obscenity.

You suggest that perhaps you might not have the evidence in such cases because purveyors would have notice, would have an opportunity to make a way into the evidence, but in case of books of these that there is no problem you can buy the books, you can have them and there is no question about that, isn't it.

Mr. William M. Ferguson: Yes, we could live with that sort of a rule whether or not this Court wants to say that the constitution requires it, this is where I would disagree.

Justice Byron R. White: Yeah, could you live with it, wouldn't there be some kind of obscenity that you can't buy and take home with you that you might never be able to prove in Court.

Mr. William M. Ferguson: That's quite right, dirty pictures.

The hardcore under counter type this would be the situation of course and I am not so sure there wouldn't be a situation in this type.

Justice Byron R. White: Well, you could buy the book.

Mr. William M. Ferguson: Yes.

Justice Byron R. White: You can buy, you could have the evidence, to think about that.

Mr. William M. Ferguson: But for this Court to say as Your Honors suggested that for us to say as a matter of constitutional right that the states may not seize the evidence prior to a full hearing on merit would very seriously shackle the prosecution in connection with the ones that are not so readily available as you suggested.

Justice Byron R. White: Things that, that --

Mr. William M. Ferguson: The pictures.

Justice Byron R. White: They see, but not buy.

Mr. William M. Ferguson: Yes, well I have to buy more surreptitiously perhaps than these.

Justice Byron R. White: Well, of course you are not going to avoid the problem of acquisition of some of them anyway because even under your rule you are going to have to as a rule of you would like if you are going to have to present the evidence to the Judge, you know, some kind of a evidence to the Judge to get a warrant, but you can't just go and --

Mr. William M. Ferguson: Oh!

Markus, it so indicates there must be a judicial hearing and this we followed.

Justice Byron R. White: That's right.

You are going to have to have something to show anyway.

Mr. William M. Ferguson: Yes sir.

Justice Byron R. White: Okay.

Justice Tom C. Clark: I've been to (Inaudible)

Mr. William M. Ferguson: Well, this was the point made by the Chief Justice, we could have.

Justice Tom C. Clark: And then you wouldn't have to leave on a preliminary hearing, would you in order to (Inaudible) criminal case you can get a warrant without showing something (Inaudible)

Mr. William M. Ferguson: Yes we could of course --

Justice Tom C. Clark: (Inaudible)

Mr. William M. Ferguson: That's this is a regular portion of the criminal procedure.

It's only the fact that we have in the First Amendment problem, but we don't do that here.

Justice Tom C. Clark: Suppose that you got the (Inaudible) your point in cases in other circuits, of course, you have to use (Inaudible) criminal prosecution we you got to --

Mr. William M. Ferguson: I hope this could be done and number of states use this type of device.

The question here I think is, whether or not the states are going to be given a some latitude within the First Amendment to deal with the evil that their legislatures have conceded and as I pointed out to, the difficulty is that that the Court has said that obscenity maybe prescribed and yet in case after case it appears to us that there is there is no actual way to do it, because of the procedural infirmities and this is the technique used by the purveyors of obscenity is to keep pricking away at the infirmities that exist in the procedure without ever getting to the merits of the obscenity itself.

Justice William J. Brennan: Well, it's pretty clear Mr. Attorney General that your argument is really for the proposition that one way of coping with this filth is to get it out of circulation rather than just to prosecute people, prosecute the purveyors of it --

Mr. William M. Ferguson: Exactly sir.

Justice William J. Brennan: That maybe one thing to do you may want to do both.

Mr. William M. Ferguson: Exactly sir.

Justice William J. Brennan: What you are really after is, they follow the state to get this stuff out of circulation so they can't sell it to another, is that it?

Mr. William M. Ferguson: That's correct sir.

Justice William J. Brennan: And then prosecute perhaps afterwards but you surely aren't your up against the case we are as a problem of whether not your procedure constitutes prior restraint?

We can't avoid it, can we?

Mr. William M. Ferguson: Of course prior restraints per se as -- hasn't been held to be unconstitutional by the Court.

I know that you don't look with great favor on it and neither do I.

Justice Byron R. White: But it's prior, prior restraint an attempt to prior to a judicial determination after a hearing?

Mr. William M. Ferguson: That's a factor of the case.

Justice Byron R. White: Not to the question, prior to publication.

Mr. William M. Ferguson: Yes, we could -- these are on sale.

Justice Byron R. White: Do you think, were on sale, they were being circulated?

Mr. William M. Ferguson: That's correct.

Justice William J. Brennan: You don't need to scare them off to books by prosecuting the people and sending them to jail?

Mr. William M. Ferguson: Well, a number of cases made points this, made this point that if you have to pick each one and bring an action on it is not nearly so effective as to be able to prescribe all those that fit within the category of obscenity.

Again, I say yes if we could use this technique, I say that as a matter of practicality if the states can be given the authority within the framework of the First Amendment to suppress obscenity, it should be given the authority to do so, otherwise if it's impossible to do it procedurally well, then we should follow Mr. Justice Black's view and make it impossible to proceed against speech that's protected by the First Amendment.

Justice Tom C. Clark: How long it will take you to prosecute (Inaudible)

Mr. William M. Ferguson: Oh!

That's a difficult question to answer Your Honor.

It will take generally speaking county attorneys would estimate 90 days is about an average, can we say that Mr. County attorney.

Justice Tom C. Clark: (Inaudible)

Mr. William M. Ferguson: Yes, that's right.

Justice Tom C. Clark: (Inaudible).

Mr. William M. Ferguson: I beg your pardon sir.

Justice Tom C. Clark: Then you'd have the mayor and (Inaudible)

Mr. William M. Ferguson: No, but if the Court approves this procedure by affirming this case, then we'll have some tools which if delicately used I think we can make some progress in stemming this tide.

Chief Justice Earl Warren: Well, you have several means of law enforcement and one of them involves very serious constitutional questions and another involves none.

Is it unreasonable for the courts to ask you to combine with the one that does involve constitutional questions, the one that does not in order to protect against the constitutional questions.

Mr. William M. Ferguson: Well Mr. Chief --

Chief Justice Earl Warren: It sees to me that it's just so simple, if you really want to put obscenity out of business, it seems to me so simple to do what Mr. Justice Clark said.

You can get a search warrant and an arrest warrant against the man who is purveying this filth and you can prosecute him and put him in the jail at the same time that your -- you've got an injunction suit pending against him and that if you convict him, you have no problem at all with your injunction and the suit.

You can take all the volumes out of circulation, that way that you could take under this simple short cutting system which you use I suggest because it's easy and the other is a little more difficult.

Is it wrong for the courts to hold you up to that standard in order to avoid this kind of problems that you bring to us in this case?

Mr. William M. Ferguson: Well there is no question that what this Court, if it wishes to make that determination can, if it wishes to make, so circumscribe the procedure rules it may.

Chief Justice Earl Warren: Well I'm being pragmatic.

There is so much discussion about the courts not fulfilling their obligations in protecting against obscenity.

I wonder if that's where the fault lies.

Here in the great State of Kansas you had one case, one case against all of filth that's been in your space, where every prosecutor in the state could prosecute these people for this, you could have any number of injunction proceedings if you merely put those people in jail for purveying the filth and proceeded with your injunction.

Mr. William M. Ferguson: I misunderstood Your Honor.

The Attorney General as such has only brought one case.

I think many cases have been brought by the county attorneys.

Chief Justice Earl Warren: How many?

Mr. William M. Ferguson: Oh!

I can't tell Your Honor, but it's fairly common.

In Kansas I would say I know of two or three in the last year.

The only thing is that this Court has gone so far to protect erotic literature we don't feel that girlie magazines for instance are subject to any seizure and destruction.

So this leaves only the under counter and this paper bag pornography which is the under counter dressed up in a new form with the four letter words, these have only come into our state quite recently at the time, we filed the action.

The cases involving the under counter are not so common in Kansas and these are not common in Kansas either, these books.

Justice John M. Harlan: How are these sold?

Are they through the mail or are they on book shelves or book stores?

Mr. William M. Ferguson: Yes there are on open shelves of the book stores and I assume they come through mail, I can't answer that, but they of course -- point is that they are protected by the First Amendment and our point is that they are not.

Thank you.

Chief Justice Earl Warren: Mr. Fleishman.

Rebuttal of Stanley Fleishman

Mr. Stanley Fleishman: Mr. Justice Chief Justice, Members of the Court.

Justice William J. Brennan: Mr. Fleishman before you begin, did you find that?

Mr. Stanley Fleishman: Yes Your Honor.

Justice William J. Brennan: Oh thank you.

Mr. Stanley Fleishman: I was wrong on the name it's Tenney.

Tenney against Liberty News 13 A.D.2d 770 and perhaps I can read for a moment the applicable portion.

The appellants point out and protest the fact an ex parte injunction was contained in the show cause order issued originally.

While it may be as the respondent contends that the propriety of validity of that stay had become moot having being superseded by the temporary injunction, we are of the view that Section 22A of the Code of Criminal Procedure does not authorize the issuance of an ex parte injunction.

That section provides for expeditious determination of the issues and even a temporary injunction under Section 22A should issue only after both sides have had an opportunity to be heard.

I'd like address myself to two things.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Stanley Fleishman: Surly Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Stanley Fleishman: I would agree that they (Inaudible) great literature, but they are not -- no worse Your Honor that most of the novels in the field of detective stories and westerns and the like, there is a great deal of literature around which is not great literature and we've only one Shakespeare since he died -- before he died.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Stanley Fleishman: I would.

I would say --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Stanley Fleishman: In several sentences and first of all I don't want say it has high social value, but I think that any book that communicates ideas has some value in it to begin with.

They have entertainment value, for those people who cannot read Tropic of Cancer or cannot read Lady Chatterley's Lover because they have a limited educational background, its serves for them something like the same function that literature serves for the more educated, and there is class basis that's going on here Your Honor that I think is invidious and ought to be dealt with seriously, and that is apparently if you are educated you could have a certain amount of sexual titillation, but you may not if you are a truck driver.

That seems to be the thrust that is going on here that there was no Shakespeare is true, but there -- as I say if you look at the news stands generally, you will find that there is not much of great value, of all of the books that are published in the course of the year I doubt that 1% will survive for a five year period, and that cannot be the test for First Amendment protection.

Moreover physiologists tell us that there is (Inaudible) value, that people do live under a great deal of pressure and one of the pressure are is the sexual repression that they are living under and there is an importance in being able to read about matters that people are thinking about anyhow, and I do believe that this Court make a serious error in the constant use of the word filth and dirt for books which do nothing more then arouse sexual desires, because that's all the claim is here.

Kansas doesn't anything else except that these books arouse sexual desires.

Now if the arousing of sexual desires is such an evil, I think we're in a pretty bad way.

I think that we make a mistake in categorizing books, if we take the Attorney General's statement.

He says it's a business of $2 billion.

That means that every man, woman, and child in this country is spending $20, $20 a year.

If you take a family of five that's a $100 a year, now it can't be.

It can't be that there is that many people who are so corrupt and if we're taking as a standard that if a work does not go beyond what society tolerates, I think that with learning that society tolerates a great deal of discussion about sex and rightly so.

And I think that the notion that the problem is easily solved by the prosecution Mr. Chief Justice is and with serious criminal penalties like 25 years and the like, is to invade the First Amendment rights even more seriously if I may say so in this proceeding because people will be so afraid to distribute books that deal with sex, that they will stay away from the whole field.

I know if I'm advising a book publisher and I know that he is going to go jail for 25 years or some such number of years, I would tell him to publish a cook book and that's all.

And I'll say this, and it's a deterrent because Mr. Henry Miller who is the author as Your Honors know of a Tropic of Cancer has been indicted in New York and there are attempts being made now to extradite him from California to New York for the purpose of standing trial.

There is enormous amount of terror that is going on with these prosecutions.

Kansas happens to be more concerned as I would see with civil rights now through these proceedings as evil as they are, than some of the other states that go on with the criminal prosecutions, that are wrongly brought.

By that I mean that there are states which will go after book after book criminally, throwing people in jail and denying them bail and this happens regularly on books that we know are constitutionally protected and finally we do get a vindication in the appellate courts and then the courts are criticized as Your Honor says, but wrongly criticized because the Courts are only doing their constitutional duty in giving some protection, but --

Chief Justice Earl Warren: Of course I can understand Mr. Fleishman that of the two you are clients would rather lose their books and go to jail and that's exactly the point that I was making that from a standpoint of law enforcement, if there was honest law enforcement they would prosecute these people, but I don't agree with you that the mere fact that that is a possibility under the law that all the book shops are going to close anymore than all -- than the stock market is going to close because there is regulation of securities and anyone who sells a fraudulent security may go to jail.

Mr. Stanley Fleishman: Look there is this difference Mr. Chief Justice Warren and that is that there is really a very serious constitutional difficulty in the sense that nobody does know what obscenity is.

Your Honors have sat here now for two days and in the facts that Your Honors really don't know.

Now, if Your Honors don't know what obscenity is, then the burden has shifted back to the intermediate appellate Courts, you hope that they are going to know, but how is the intermediate appellate Court going to know if Your Honors don't know?

So they shifted back to the Trial Court.

They say, well the Trail Court is going to know, but the truth of the matter is that when there was a determination that a word is obscene, whether that be in a proceeding such as we have here now, which is a civil proceeding or whether it's in a criminal proceeding, the truth is that it is always an ex parte determination, not ex parte, it is ex post facto, you have what Mr. Justice Hand said, ad hoc legislation, a trier of fact for reasons that are never explained besides that the particular book or the particular books should not circulate, and because there are so many subjective factors that go in there, there's very little room for any effective appellate review because the appellate Court say as Your Honors have said, how do we know one way or the other.

So you come down to really sending people to jail under no law at all, expect the old law that they had in Germany, which is, if it's bad for the society at large, that's all it is, how does that differ from what Mr. Ferguson says here that if the defense generally -- if it generally offends notions of decency.

Now we couldn't have a political test that would say that if a book was politically offensive to the majority of the people, that it is to be suppressed.

I would suggest Your Honor that the problem that we have here can be solved and should be solved by saying that speech which deals with sex should be treated exactly the same as we treat speech that deals with other troublesome areas, politics, religion, economics, and have the same test applicable if there is some link between conduct and the books then and only then can there be suppression, but to say that you can suppress a work because it arouses a sexual thought, Kansas doesn't even say it's a bad sexual thought, just that it arouses sexual thoughts, that I submit Your Honor is a deep intrusion into First Amendment and cannot stand.

Chief Justice Earl Warren: Is it any more difficult to define obscenity legally than it is to define negligence according to the standards of what a reasonable man might do?

Mr. Stanley Fleishman: Yes I believe there is Mr. Chief Justice for several reasons.

First of all when we say negligence, people have had some considerable experience in terms of knowing that if you for example drive down a highway that's crowded 70 miles an hour, that an accident is likely to occur.

Chief Justice Earl Warren: Of course people would have had some experience with sex too throughout the ages.

Mr. Stanley Fleishman: But not -- they've had experience Your Honor but there isn't any experience with regard to what effect the reading of a book is going to have on the average person.

Many people reading these 31 books that Mr. Ferguson had would be boring to tears.

Now we are going to send a man to jail for writing a book or publishing a book that bores people.

I mean we don't know.

We simply do not know what effect it will have on people and the only thing we know is that it may arouse some sexual desires in some people under some circumstances, that's knowing very little.

It really is, we don't have a body of knowledge with regard to the impact of works.

There is room for a lot of thinking about it, but I honestly believe that you can read this book and (Inaudible) to all over the -- take Tropic of Cancer, a good example.

There Mr. Ferguson from Kansas says he knows the book is not obscene, the enlightened State of New York says it is obscene, they say it's hardcore pornography.

Mr. Ferguson says it's protected by freedom of speech, how is this a sensible text?

Chief Justice Earl Warren: One jury says something it constitutes negligence, another one says that it does not in exactly the same circumstances.

Mr. Stanley Fleishman: But there is a difference Your Honor, because first of all it has an impact only for a particular case.

I mean either win or lose my case and that's the end of it.

We're in the area of freedom of speech now.

If a mistake is made all society suffers.

If Tropic of Cancer is found by a jury in New York to be obscene that means nobody in New York can read that book.

Now a mistake there is enormously more serious than a mistake which denies me a rightful claim.

I think I'd be unhappy if I didn't get the money I was entitled to, but the significance is different but -- more than that we don't have the body of knowledge, we don't know.

We do know a lot about accidents and how they happen from our ordinary experience, we do not know the effect of books on people and I take it that no one would say here that it's a social evil to arouse sexual desires, that's all Kansas says, can that be sufficient to throw people in jail?

And it's only by saying strongly that it's filth, it's dirt that we start saying that there is something wrong with it.

Why shouldn't there be books that arouse sexual desires, very much like there are books that arouse --

Chief Justice Earl Warren: I think we'll have to get the rest of it from your brief.

Justice William J. Brennan: Before you sit down on the question, I just ask this one question.

I take it, that had Kansas done only this, had they taken these six books, given you an adversary hearing on the question of obscenity, and then had -- without taking the six books out of circulation in advance of you getting that hearing, and you then got a hearing and there had been a determination of obscenity, that an order which then seized -- directed their seizure as contraband, on that point, you have no constitutional objection.

Mr. Stanley Fleishman: Procedurally I would say these books are not obscene and I would --

Justice Byron R. White: Assuming the --

Mr. Stanley Fleishman: Assuming they are and if there was adequate procedure and I -- in this I include a jury trial and I include –-

Justice William J. Brennan: All right I know, but the important thing is on the prior restraint order this -- the key to that as you see it is taking these books out of circulation before there's been an advisory judicial determination of obscenity.

Mr. Stanley Fleishman: Yes sir.

Justice William J. Brennan: Is that right?

Mr. Stanley Fleishman: Yes sir.

Justice William J. Brennan: Now as to the other 24 whatever -- 53, figures confuse me, but in any event it seems to be a lot of these books, I take it that if they had got a warrant, just to seize one copy of those that they didn't have, to bring back for an adversary judicial determination without taking them out of circulation, you'd give me the same answer, that constitutionally, procedurally perhaps you wouldn't have a constitutional objection.

Mr. Stanley Fleishman: If I had, it would be a very small one, yes.

Chief Justice Earl Warren: Very well.

Mr. Stanley Fleishman: Thank you.