GINZBURG v. UNITED STATES
Ralph Ginzburg and several of his associates were charged with violating a federal obscenity statute for mailing circulars about how and where three different obscene publications could be obtained. Ginzburg challenged his conviction as unconstitutional since the circulars themselves were not obscene. On appeal from an adverse ruling by the Third Circuit Court of Appeals, upholding an unfavorable lower court finding, the Supreme Court granted Ginzburg certiorari.
Does conviction under the federal obscenity statute, for pandering advertisements for sexually explicit publications, violate of the First Amendment's free speech protections if the advertisements are not themselves obscene?
Legal provision: 18 U.S.C. 1461
Yes. In a 5-to-4 decision, the Court held that although circulars themselves may not be obscene, their public mailing offends the federal obscenity statute if they advertise obscene materials. The Court reasoned that where the sole emphasis of an advertisement is the commercial exploitation of erotica for prurient appeal, it shall be deemed "pornographic" communication that lies beyond the scope of First Amendment speech protections. The Court cautioned, however, that the distribution of materials containing sexuality in the context of art, literature, or science is not per se prohibited under the obscenity statute if it can be shown to advance human knowledge or understanding.
Argument of Spritzer
Chief Justice Earl Warren: Number 42, Ralph Ginzburg et al, Petitioner, versus United States.
Mr. Spritzer: Mr. Chief Justice, may it please the Court.
I move the admission of Paul Bender of the District of Columbia Bar for purposes of arguing this cause on behalf of the United States.
Chief Justice Earl Warren: Motion is granted.
Argument of Sydney Dickstein
Mr. Sydney Dickstein: May it please the Court.
This case is here on writ of certiorari to the Court of Appeals for the Third Circuit which affirmed petitioner's convictions for mailing three publications held to be obscene.
Petitioner Ginzburg was sentenced to five years imprisonment and fined a total of $28,000.
The major issue in this case is whether these publications are obscene.
We and the Government agree that in order for a work to be obscene it must be without redeeming social importance, it must make its predominant appeal to prurient interest, and it must be patently offense.
We say that none of the elements that identify obscenity are present in any of the publications in this case.
Justice Potter Stewart: Your view that all of those elements have to coincide to constitute obscenity or that if any one of the elements exist?
Mr. Sydney Dickstein: No Your Honor, it's our view that all of these elements must coalesce in a single work in order for it to be proscribable obscenity.
As to the element of redeeming social importance, the court below, the trial court found as did the Courts of Appeal -- Court of Appeals that none of these publications had the slightest social value, had any redeeming social importance, whatever.
Here in this Court, the Government does not defend those findings.
It admits doubt as to whether EROS is without redeeming social importance.
It concedes that the major portion of liaison that is the 2.5 page report of the interview with the well-known psychologist, Dr. Albert Ellis constitutes serious and protected advocacy.
And so rather than ask this Court to conclude that these works are without redeeming social importance when considered as a whole, the Government asked the Court to dissect these two publications, article by article and consider each article as if it might be an independent obscene work.
In this case, the door was closed to that approach before the trial even begun.
Petitioners asked for a bill of particulars in which the Government would be requested to state whether the indictment charge that the alleged nonmailable material was obscene when considered as a whole, or if it not whether part or parts of them were alleged to be obscene and if so, to state which parts.
Now, in lieu of the bill of particulars, the Government stipulated that the indictment charges that each of the alleged nonmailable material is obscene when considered as a whole.
And when we consider EROS and Liaison as a whole, we think it clear that they do have redeeming social importance and so as to those publications, this element is simply not present.
With respect to the third work, the Housewife's Handbook on selective promiscuity, here too the Government says that the lack of redeeming importance in this work maybe open to question and that the entire issue of its obscenity is a matter of legitimate debate, that's the position they assert here.
The claims for redeeming social importance of the Handbook were three.
First, as a true author biographical account of a woman sexually experienced as in attitudes, it provided needed information.
Secondly, it had been found useful or reading of the work had been found useful to some people particularly women whose normal sexual drives beset them with feelings of guilt and anxiety.
Here, was another woman talking to them and saying, ?This is the way I feel.
You are not alone in this world.
You need not live solely within the confines of your own mind.?
Third, the Handbook has much social commentary and advocate, seriously advocates the reshaping of society's view of the sexual role of women.
The Government says that the Handbook may have the values claimed for it.
If it has such values, we recognize that it comes within the protection of the First Amendment, so says the Government, but they had a restriction here.
They say so long as the distribution of the book reflects these social values which are claimed for it.
Now, this restriction, this appendage to redeeming social importance that the Government adds at this particular point of the litigation, when one thinks about it, I think it's really quite frightening.
What the Government is saying is that we can take a work with redeeming social importance and that Government may determine by occupational and educational qualification who maybe permitted to read this work and who may not be permitted to read it.
If there were such a statute and it contained the authority for such of a classification, we think at the very least, it would raise grave constitutional doubts.
But this statute is not such a statute.
It looks entirely to the material mail and it focuses neither on the motives of the mailer nor on the academic credentials of the addressee.
There are some other problems with the Government's suggestion, one of them shows what The Eleventh Hour suggestion it happens to be.
This record is absolutely silent as to the distribution that petitioner gave by Handbook.
All it shows is that 5000 copies of the book were mailed.
But it really doesn't matter because the values claimed for the Handbook were not solely for the clinician or the educator or the professional, those people whom the Government would say are permitted to read this work, therefore other people will be sized.
And as far as the Handbook Social Advocacy is concerned, it isn't even directed to those classes of people.
It's directed to the public at large.
And so this suggestion by the Government, the suggestion for an additional restriction on redeeming social importance is without support on this record is inapplicable to the values claimed for the Handbook, has nothing to do with this statute and is most probably unconstitutional as well.
The Government does agree, leaving that question aside, that if a work has redeeming social importance it is protected by the First Amendment regardless of whether the other elements which identify obscenity maybe present in that work.
The Government does add that a claim for redeeming social importance -- that redeeming social importance will not be established on the basis of a single well-termed phrase or one or two photographs of artistic merit.
But we agree with the Government on that but that's got nothing to do with this case and the Government doesn't claim that it does.
What does have much to do with this case is the Government's agreement that once you find redeeming social importance, that is the end of the inquiry.
The amicus -- Citizens for Decent Literature feels differently about this.
I'd like to refer to their brief for a moment.
They urge this Court to adopt a balancing test under which -- works' affirmative values would be measured against its patent defensiveness or prurient appeal and that from this balance in someway we would strike a judgment as to whether or not the works were obscene.
This test that the civil -- Citizens for Decent Literature urges the Court to adopt, flies in the face of this Court's holding in Roth where it was held that the -- obscenity statutes cannot be used to suppress that which has redeeming social importance and consider the practical consequences of this for a moment.
A publisher given a manuscript dealing with sexual matters would have to examine that manuscript, would have to ascertain how much if it constitutes the advocacy of an idea, would then have to waive the relative merit of that idea and having done so would then have to look and see, "Well, how much prurient interest is there and how much patent offensiveness is there in this work?"
And he would have to make a self-employed balancing test.
Justice John M. Harlan: (Inaudible)
Mr. Sydney Dickstein: No Your Honor, I don't think that is the job that this Court is confronted with.
I think if the Court finds that the work makes a serious claim to redeeming social importance, that work is protected by the First Amendment.
And that's -- really is the end of the inquiry and so the Government agrees with this.
But if the publisher is required to make these judgments to weigh the affirmative values against everything else and match that judgment against that of every prosecutor in the United States, this would not only have a chilling effect upon the exercise of First Amendment rights.
I think it would put all such publications in a deep freeze.
It would also create an insurmountable vagueness problem.
Hairline precision is not possible in this case.
This Court has said so time and time again.
Everybody recognizes that there were difficulties inherent in applying these statutes with hairline precision.
These difficulties normally arise in the prurient interest and patent offensiveness in these areas.
But we certainly don't need to make the test any less precise or any more subjective and this is precisely what the CDL was urging the course -- the Court to do.
Now, the Government agrees that this Court must exercise an independent judgment as to matters of redeeming social importance.
No question about that.
This Court will make its own judgment on that.
But as to prurient interest appeal and patent offensiveness, it urges the Court to rely upon the findings of the trial court.
This Court of course does not ordinarily need questions of constitutional classification of the First Amendment area to the judgments of others.
And even if it were inclined to rely on these findings, these findings don't even support the judgments of conviction as to EROS and Liaison where one of the elements of obscenity is missing as to each of these publications.
These findings, in addition, can have no deference paid to them because of the manner in which they were made.
These are purportedly findings made pursuant to Rule 23 (c) of the Federal Rules of Criminal Procedure.
That rule provides that in a case tried without a jury, the Court shall make a general finding and shall in addition on request find the facts especially.
The trial court has given no discretion to deny the request.
If it's made, these findings must be issued.
The request was made in this case the day before the trial concluded.
The following day, the judge -- trial judge pronounced petitioner is guilty as to all counts of the indictment and directed the prosecutor to prepare the findings in support of that judgment of conviction.
Sometime thereafter, we don't know when, the prosecutor having prepared proposed findings submitted them to the trial judge in the form of an ex parte off the record communication.And 54 days after they adjudged petitioners guilty, the trial judge handed down these so-called special findings.
Even if these were an ordinary criminal case rather than a case involving the exercise of First Amendment rights requiring scrupulous adherence to procedures, the manner in which the findings were made here we think would compel reversal of the judgment as an independent consideration.
But aside from that certainly no deference can be made to these findings.
And this Court must also exercise an independent judgment on the questions of prurient interest and patent offenses.
Just a word on this, petitioners believed and tried their case on the premise that these are also concepts which lend themselves to objective evidence and they offered objective evidence as to both of these elements relating to the three publications at issue.
This was not just opinion evidence as the Government would have you believe, there was much of it which was not opinion.
But even as to the opinion evidence, it was evidenced by qualified experts, experts in the mental processes, experts in what people are reading, and so on.
The publications themselves and the evidence clearly established that there's no patent offensiveness and these works do not have prurient interest appeal and we are confident that this Court will reach that conclusion when these works are examined.
Justice John M. Harlan: (Inaudible)
Mr. Sydney Dickstein: The EROS Your Honor sold for -- by subscription for 19.95 a year.
The Housewife's Handbook I believe sold for $4.95 a copy, Liaison was also on subscription.
I believe the annual subscription price was $15 or something close to that, it was a biweekly publication.
Chief Justice Earl Warren: Mr. Bender.
Argument of Paul Bender
Mr. Paul Bender: Mr. Chief Justice, may it please the Court.
As Mr. Dickstein's argument has -- I believe made clear, this case involves few, if any, issues of broad legal consequence.
The principal issue indeed, perhaps the only issue before the Court, is whether these materials, Liaison, Volume 1, Number 1, EROS Volume 1, Number 4 and the Housewife's Handbook on Selected Promiscuity are obscene, lewd, lascivious, indecent, filthy or vile within the meaning of Section 1461 of the Criminal Code.
In the course of the argument, I'll use the word ?obscene? to classify that long statutory phrase.
And of course --
Justice Potter Stewart: It's the only one -- that's the only one that the Court has ever tried to define or deal with, isn't it?
Mr. Paul Bender: Yes, I think so.
The indictment charge, all of them but -- the Court dealt with it in terms of obscenity as I think the word is generally deemed to be interchangeable.
Justice Potter Stewart: Some of the other adjectives from the statute which you just quoted have quite a -- quite a different meaning, do they not?
Mr. Paul Bender: If taken alone, yes, I think the phrase ?redeem? in a case like this is a -- has -- carries one substantive concept.
And of course the -- an additional issue was whether if they are within the words of the statute, that's a permissively constitutional application of the statute.
That amounts to one issue.
To the extent that the Court undertakes to exercise an independent judgment upon that question in this case, an issue I shall turn to shortly, the question whether the materials here are obscene is one on which no amount of argumentation in substitute for the Court's own examination of the materials.
I shall try later on to give the basis on which we believe one may reasonably conclude that these materials are in fact obscene within the meaning of the statute.
But I'd like to stress now that we mainly rely as I think we must upon the unanimous findings of the courts below that the materials are obscene and upon this Court's own examination of the material.
Let me first turn to the limited legal issues which it seems to me are present here.
In Roth against United States, the Court held that obscenity is not within the area of constitutionally protected speech or press.
Petitioners here do not challenge that holding.
There are two amicus briefs however which do seem to suggest that the Court reexamined the Roth case and overruled the holding that there is a category of materials, obscene materials which are not protected by the First Amendment.
In light of the full examination which the Court gave to that question in Roth, in light of the fact that in two cases since Roth, opinions in the Court had adhered to the Roth holding, the Jacobellis case and Manual Enterprises without questioning it, in light of the fact that petitioners themselves don't challenge the holding of Roth here, I don't think we should spend too much time on it in the argument.
We spend some of our brief in rebutting the constitutional argument.
It seems to us in brief that no basis is presented here for reexamining the Roth case.
Roth's holding was essentially an historical one.
It always been assumed both in the legislatures and in this Court --
Justice William J. Brennan: That's right.
Mr. Paul Bender: -- that obscene materials existed which could be prohibited and that those prohibitions would not violate the First Amendment because first of all of the recognized reasons for the prohibition of obscene materials and second of all because of the lack of redeeming social importance which those materials carry.
We find no basis now to change the factual assumption that obscene material exists which does not have redeeming social importance.
Justice Hugo L. Black: Is that the test on which you depend?
Mr. Paul Bender: That is one of the tests.
We agree, as Mr. Dickstein said, that in order to find material obscene, you must find that it has no redeeming social importance.
You must also find other things.
But we agree that that is a test of obscenity.
One of the -- at least three tests which we have to meet.
Justice Hugo L. Black: That has to be found -- to be determined by us?
Mr. Paul Bender: Yes, I think so.
Justice Hugo L. Black: By inspection?
Mr. Paul Bender: By inspection.
Justice Hugo L. Black: How much was this man given?
Mr. Paul Bender: There were three works in issue, as to two of them he was given consecutive jail sentences.
One for two years and one for three years as --
Justice Hugo L. Black: Five years?
Mr. Paul Bender: As to the third Liaison, he was given no jail sentence, so it's a substantial fine in all accounts of --
Justice Hugo L. Black: What was the fine, 40?
Unknown Speaker: $42,000.
Mr. Paul Bender: $42,000.
Justice Hugo L. Black: Five years given on the basis as far as he is concern ends entirely from whether this Court on inspection of a book determined that it has no redeeming social value, that's the case here.
Mr. Paul Bender: No, it doesn't depend only on whether it has no redeeming social value.
You must also find in order to convict that a material dominant appeal is to prurient interest and that it is patently offensive in light of contemporary community standard.
Also, Mr. Justice Black it doesn't depend entirely upon this Court's ascertainment of those factors if the trial court or the Court of Appeals have found that those factors did not exist, the case wouldn't be here.
This Court exercises, we agree a third stage of review after both courts below have found one that the material is patently offensive, patently offensive in light of community standards, two that its basic dominant appeal is to prurient interest, and thirdly, that in addition it has no redeeming social importance.
All those tests must be met.
Justice Hugo L. Black: Which one of those do you consider the most definite?
Mr. Paul Bender: The most?
Justice Hugo L. Black: Most definite so that a man could have an idea whether he go to jail or not.
Mr. Paul Bender: It's hard to say in the abstract.
I suppose it depends upon what the man contemplates doing.
I think it's --
Justice Hugo L. Black: Well, I'm talking about the reading matter.
Mr. Paul Bender: Yes.
Justice Hugo L. Black: How could -- which one in your judgment could a man come here and guessing how this Court would ultimately decide it?
Mr. Paul Bender: As to any particular material, it might be very easy to decide -- one, that it didn't appeal to prurient interest, and two, that it wasn't --
Justice Hugo L. Black: Would that be easy?
Mr. Paul Bender: It might be easy and lots of -- I should I think in cases in most published work, that question never arises whether it appeals to prurient interest within the meaning of the obscenity statutes, nor I suppose that the question arise in most works whether it's patently offensive.
I agree that there is inevitably a class of borderline materials where there's going to be some doubt.
I don't think the class is terribly large.
I think it's to the vast majority of the material which we prosecute under this section.
There is no doubt in the publisher's mind that it meets the test of the section.
I suppose that material must be somewhere between 75% and 95% of the material which we prosecute.
It's clearly obscene material if anything is obscene material, and I don't --
Justice Potter Stewart: Mr. Bender, this material here is not included in that 75% to 90%, is that correct?
Mr. Paul Bender: I think at least as to the Housewife's Handbook and EROS, I agree.
As to the Liaison, I think one might think that it did fall within that --
Justice Potter Stewart: Well, now this seems to me, you kind of contradicting yourself.
You said as to 75% or 90%, there can be no argument about it, that if anything is obscene, it is obscene.
And now you're saying that at least one of these things, they're -- it's open to argument.
Mr. Paul Bender: I think at least -- to at least two of them is open to argument.
This obviously, there are some materials which is borderline.
I think at least two of the works here are within the classification of borderline material.
That's an inescapable problem whenever you have a statute where you can't mathematically draw the line.
You're going to get material as to which there's some doubt (Voice Overlap) --
Unknown Speaker: (Voice overlap)
Justice William J. Brennan: Whether its 75% to 90% doubt, what I gather, the material that you say, it's prosecuted under the statute, I take it, largely photographs and stuff, isn't it?
Mr. Paul Bender: Largely photographs, also some books, comic book type materials.
In the Roth case, we sent over a box full of this material.
It's described in the brief in the Roth and to some extent in the brief in this case.
There are also in the record in this case are some materials put in by petitioners to the record which they conceded where within the area of obscenity.
Mr. Justice Black, they don't think as to that material there's any -- I don't think there is -- they don't think as to that material, a material they put in the record in this case that there's any doubt that it falls within the statute and I agree.
There is clearly material and I think it's -- I call the majority, the material prosecuted under the statute as to which there isn't any doubt that it's obscene within the meaning of the statute.
Justice William O. Douglas: What do you -- how do you treat the testimony of the Baptist minister in that Housewife's Handbook, is that the name of one of these?
Mr. Paul Bender: Yes.
Justice William O. Douglas: But she used this book in counseling, how do you treat that in terms of (Voice Overlap) --
Mr. Paul Bender: Well, the trial judge rejected that Mr. Justice Douglas as in finding of fact.
We would like to have the Court accept the trial judge's rejection.
However, even if that were true, it seems to me you could still find such a work to be obscene if distributed generally.
I think Mr. Dickstein to some extent, inadvertently I'm sure, misstated the argument which we make in that regard.
What we say in particular with regard to the Housewife's Handbook is that if the Court believes that to the average man, it is obscene within the meaning of the Roth case, there still might be a defense open to it if its distribution was not to the average man, if its distribution was limited for clinical purposes or educational purposes.
We believe therefore that if the Court should find that the Housewife's Handbook to the average man is obscene then petitioners might have had a defense if they had shown that the distribution of the Housewife's Handbook was limited and it wasn't to the average man.
But in that, this -- that in this case there is (Voice Overlap) --
Justice William O. Douglas: You're saying an average man, I mean, an average person.
Mr. Paul Bender: Average person, excuse me.
Justice William O. Douglas: The difficulty is if the clergy are divided on this, how can we be so sure?
Mr. Paul Bender: Well, Mr. Justice Douglas, I didn't read his testimony saying that the clergy are divided on whether --
Justice William O. Douglas: Well, there's no poll, but I mean this was a bona fide Baptist clergyman.
Mr. Paul Bender: Yes, and he said that he used it in counseling.
Justice William O. Douglas: He kept it in his home and his 14-year-old boy read it and so on?
Mr. Paul Bender: Yes.
Well, as I say, the trial judge rejected that testimony as it was purported to reflect upon what average people would've done with this book.
Justice Potter Stewart: You mean, the trial judge found that the minister was lying or what?
Mr. Paul Bender: He didn't find so explicitly.
Justice Potter Stewart: Well, but implicitly, did he (Voice Overlap) --
Mr. Paul Bender: Well, I think it would be fair to say, he either found that he was lying or he found that he wasn't a typical minister and didn't represent it.
Justice William O. Douglas: Would you say a typical minister would -- be one who would find this to be obscene?
Mr. Paul Bender: I think the trial judge so found and so did the Court of Appeals, yes.
Well, just a word more about the constitutional question.
It seems to me that the principle phases on which the amicus briefs urge that to reexamine Roth is on the assumption of the Roth case and the Roth -- limited Roth test of obscenity has led the repression of sexual -- sexually related materials since the Roth case was decided.
That just isn't so and I think it -- that that assumption provides no basis for reexamining.
I think the opposite is true, the Roth case is -- since the Roth case has been decided, I think it -- the Court can take note of the fact that there's been a greater dissemination of such materials.
Chief Justice Earl Warren: We'll recess now.
Mr. Paul Bender: Mr. Chief Justice, I'd like to move now to the one or two legal issues which I think do separate petitioners from the Government.
Principally, the point of difference on the application of the Roth standard seems to be in the way in which you apply the test to works like EROS and Liaison which are anthologies rather than integrated works.
The Handbook is a single integrated work and I don't think we have any dispute over how you apply the standards there.
But our view is that when you get a collection of independent works like EROS and likely this issue of Liaison, the work is obscene if any of the substantial parts of it are obscene.
We don't believe that you privilege a work by putting some non-obscene material in with other obscene material if the material is not a whole, if it's just a bunch of independent pieces strung together in an anthology.
You can't, for example in our view, sandwich concededly pornographic obscene photographs with other innocuous photographs and binding them together in a book and thereby privilege the entire thing.
We believe that this approach is wholly consistent with our stipulation in the trial court that you were to view these works as a whole.
We did not mean by that stipulation.
I don't think it's reasonable to attribute to that stipulation, the meaning that every part of these works had to be obscene, that is clearly an impossible standard for us to meet and we never attempted to set that burden for ourselves.
It means that you can't take works out of context but when you got the series of independent works, we see no reason why you can't, as the trial judge, explicitly did with regard to EROS taken in that case, four of them, which clearly constitutes a substantial part of the work.
Justice John M. Harlan: There's another phrase that's used in writing obscenity, we're dealing with -- they're the ?hardcore pornography,? do you take that as (Inaudible)?
Mr. Paul Bender: I don't -- I don't know what the phrase means.
In many places where it's been used, some state cases we refer to in the brief for example, it's been used as the entire equivalent of the Roth test.
If that's what it means, then yes we do claim that this material is that.
To the extent that it is a narrower concept for example petitioners suggest in a footnote in their brief by reference to a recent work on the subject that its peculiar, its work which embodies a peculiar psychological effect, a series of episodes which increase in tension and increase in their sexual effect.
If that's what it means, this work is not hardcore pornography.
But we don't think that the concept of obscenity is limited to that particular kind of work with that particular kind of psychological effect.
Justice Potter Stewart: Before lunch you were referring to the fact -- you said that some are between 75% and 90% of the material were prosecuted by the Federal Government is so clearly obscene that there could be no argument about it and I gather that you imply that we -- this Court wouldn't even be listening to arguments about whether or not it was obscene.
How would you describe that kind of material or is there a description for it, just a shorthand description?
Mr. Paul Bender: Well, it -- if the material is typically either photographs or printed works of perhaps at least half of it is photographs.
They're usually photographs explicitly depicting all manners -- sexual conduct including acts of perversion and sodomy.
Sometimes they're in series, sometimes they're -- some times they're just separate.
Other books, the usually small pamphlets which are nothing more than a verbal description of what the photographs depict, some pretense of the story but very little, sometimes they're illustrated with photographs.
Justice Potter Stewart: So I miss -- did I misunderstand you and I understood you to say that one of these three publications falls into that category?
Mr. Paul Bender: No, not in to the category of things I have so far described.
One of these falls into a category of what you might call vulgar sexual -- we think vulgar sexual works.
A minor part I would think of that large class of concededly obscene material and that we think is Liaison.
There aren't too many other publications like Liaison that we're aware of.
I don't think Mr. Justice Stewart, I -- if I gave you that impression, I want to withdraw the statement.
And I don't think Liaison is like any of -- to this mass of material, like it in character.
Liaison is quite of -- is quite unique in our experience of publication.
It's a collection of dirty jokes and smutty stories for which seems to us riotously vulgar in a sexual way.
But the mass of material which we are aware of doesn't bear much relationship to that.
And the estimate also as to the percentage is the vaguest kind of estimate.
We have no sure (Voice Overlap) --
Justice Potter Stewart: You meant the vast majority, and I accepted that, yes.
Mr. Paul Bender: We have no sure way of knowing.
I'd like to turn now to the application of the test to these three particular materials.
And first of all I'd like to talk about the scope of review in this Court.
We recognized that in the past since the Roth case and in the Roth case itself, individual opinions in this Court have suggested that the Court will formulate in these cases an independent constitutional judgment regarding the obscenity of particular materials involved at least in federal prosecutions.
And that's exactly what the Court of Appeals did in this case.
In light of the constitutional nature of the judgment involved as to whether a work is obscene or not and the intimate relationship with the First Amendment, we would not think it inappropriate if the Court wishes to exercise that complete de novo independent review of the materials in this case.
We would however like to suggest an alternative to complete independent review of all the questions regarding whether a work is obscene.
It seems to us that as to any work which the Court believes has reasonably been characterized by the trier of fact as obscene, meeting the three standards separately stated.
The Court might properly limit its independent examination to the question whether the work carries redeeming social importance that is if their judgment that the work appeals to prurient interest is reasonable that the judgment that it's patently offensive seems reasonable.
And to that of course, you have to look at the material.
But if you look at the materials and decided the judgments below seemed reasonably based, then we suggest that the Court might limit its independent -- completely independent judgment to the question of whether there's redeeming importance.
There are two reasons for this, two reasons we think support this approach.
First of all, in terms of vindicated, the affirmative protections of the First Amendment, the principle reason for this Court's review, it's the redeeming social importance which is important.
If the work has redeeming social importance, the First Amendment affirmatively means to permit its dissemination and that we think, it's entirely appropriate for the Court to safeguard by its independent review.
But if the Court finds no redeeming social importance, then those affirmative values of the First Amendment don't seem to be involved.
And if it's clear that the material is within the area of obscenity, it's reasonably been determined to be obscene, the fact that particular justices on the Court may disagree with the precise where -- place in which you draw the line seems to us not really to come into collision with the affirmative values of the First Amendment.
And secondly --
Chief Justice Earl Warren: Should we conclude that we have to read every one of these books and review it for its social value or what standard of reliance do you suggest for us to use so far as the lower courts are concerned in determining that matter?
Mr. Paul Bender: With regard to the social value, if you're going to review it all, I see very little way in which you can except by reading the works.
That's -- I just don't see anyway on which you can do it.
Chief Justice Earl Warren: How the courts suppose -- below, suppose to find on that subject?
Mr. Paul Bender: Yes, and they did.
Chief Justice Earl Warren: Well, and if they do, are we obliged to -- are we obliged to read all these books?
Mr. Paul Bender: No, you could if the Court willing to set up the standard of reviewing the judgments below simply to see whether they were reasonably based whether they were supported by substantial evidence, you could -- you could apply such a scope of review without reading the materials or without reading them in detail.
The Court in the past has not suggested that that is the scope of review in these cases.
It has suggested that the Court will exercise a more independent function.
We don't challenge that here.
We, to some extent however, --
Chief Justice Earl Warren: But now, in --
Mr. Paul Bender: -- it's an open question.
Chief Justice Earl Warren: In these three cases that we have here today, I imagine there are 25 books, do we have to read every one of those books and determine whether they -- there are independent judgments as to whether each of them has social value?
Mr. Paul Bender: Well, I don't think so, for example --
Chief Justice Earl Warren: Well, that's what I'm trying to find out.
Mr. Paul Bender: In the --
Chief Justice Earl Warren: Where are we going to draw this -- draw the line in this?
I'm so sure that this Court doesn't want to be the final censor in reading all of the prurient literature of the country to determine whether it has any social value or not.
Mr. Paul Bender: We submit, Mr. Chief Justice that it would be proper for the Court to rely to some extent upon the findings below that these materials are obscene.
If you're going to review the case at all, it seems to me inescapable that you've got to look at the materials otherwise -- or you'd have to do it on the testimony before the lower courts.
But in lots of these cases there isn't much testimony, the works are judged below on the basis of the works themselves.
And if you're going to review the case, it seems to me you've got to look into the works themselves.
I'm just trying to suggest now that you might look at the work and if you satisfy yourself that the judgment of obscenity below is reasonable, and that it seems to me you can probably do without too exhaustive -- an examination of the work, then you might rest in affirmance there.
You might also alternatively distinguish between federal prosecutions and state cases.
Mr. Justice Harlan had suggested that in the past.
That would be --
Chief Justice Earl Warren: Do you suggest that that is the test?
Mr. Paul Bender: What?
Chief Justice Earl Warren: Mr. Justice Harlan (Voice Overlap) --
Mr. Paul Bender: No, we have -- we don't have a state case here and we take no position on whether the scope of review in state cases should be different from your --
Chief Justice Earl Warren: Yes.
Mr. Paul Bender: -- scope of review in federal cases.
I'm suggesting that there are --
Chief Justice Earl Warren: But I think -- I think you ought to recognize that it's not only the case as we take here for argument but we can expect, no matter what test we lay down, we can expect numerous petitions for certiorari here and I suppose that it's a function of this Court to determine the social value of it, we would have to read everyone of those books before we determine whether we would grant certiorari.
Mr. Paul Bender: I suggest to you that so far as federal prosecutions are concerned, and that's all I know anything about directly, the burden will not the onerous because the number of cases which you will get where there have been convictions under the federal statute, where there is any real doubt about the obscenity will be very, very small.
This I agree is one of them and there are presently pending two or three others.
Chief Justice Earl Warren: Well, that's only because the Government hasn't filed many suits of that kind.
Mr. Paul Bender: Well, there are a large number of obscenity prosecutions but they --
Chief Justice Earl Warren: I know but I've -- I made a survey few years ago when we had one of these cases and I found that the Government had only gone to trial in about six cases in the entire United States each year over a period of several years and that would indicate that the only reason that we don't get them here is because the Government doesn't fully prosecute them.
Mr. Paul Bender: No, I think another reason is that a large majority of guilty pleas.
Chief Justice Earl Warren: Well, I did notice that in all -- frankly, all of those cases where they had jury trials, that there were convictions, but in the vast majority of cases that the Government filed, they permitted the defendants to plead nolo contendere, not plead guilty but to plead nolo contendere and then practically all of those, there was a fine.
Mr. Paul Bender: Well, my figures are not sure in my mind.
I'm sure that there are a large number of pleas of both sorts.
We generally restrict our prosecutions to materials which we feel are clearly within the area of obscenity.
So, in most of the cases which this Court would get here on petition, as I say, will be cases in which they will be, I think very little doubt of the obscenity of the material.
So I don't think federal prosecutions will put an excessive burden upon this Court.
Chief Justice Earl Warren: But we have 50 states.
Mr. Paul Bender: Yes.
And of course there's no way we can control those prosecution.
Chief Justice Earl Warren: No.
I don't suppose we can, but I'm wondering about our situation on the Court if you think that that the final burden of reading these books and determining the social value of them or lack of it depends upon this Court, it looks though to me we're in trouble.
Mr. Paul Bender: Well, you would know -- the Court would know better than I would whether in the year since Roth there has been an overwhelming burden of those cases coming from the states.
My impression was that there hadn't been.
That the Court hadn't been diluted with an unworkable workload of obscenity cases.
Chief Justice Earl Warren: No, but Roth is a pretty recent test.
Mr. Paul Bender: Well, it was -- could -- number of years ago.
Chief Justice Earl Warren: Four - five?
Mr. Paul Bender: Could be more than that.
Chief Justice Earl Warren: (Inaudible)
Mr. Paul Bender: I suggest perhaps if the workload ever gets overburdening, that may be an occasion to reconsider the formulation in Roth and attempt to formulate a test which would not call upon this Court's independent review to that extent.
Justice Abe Fortas: Mr. Bender, excuse me.
Chief Justice Earl Warren: Go ahead.
Justice Abe Fortas: Does the Government agree that it has to prove beyond a reasonable doubt that the material is obscene?
Mr. Paul Bender: Yes.
We feel in this case that the deference to lower court findings if the Court wishes to review the cases like this in that manner is especially appropriate with regard to Liaison.
With regard to the Housewife's Handbook and EROS, we recognized that at the trial there was substantial testimony that the works did not appeal to prurient interest, was not patently offensive in light of contemporary community standards and that they had redeeming value.
And the Court may feel that in that circumstance where the judge rejects an overwhelming volume of testimony to that effect, his findings are not entitled to this much presumptive validity as in the case of Liaison where there's almost no testimony dealing with the value of the work or suggesting that the work is not --
Justice William J. Brennan: Well, Mr. Bender, in line with Justice Fortas' question, the Government has the burden of proving obscenity beyond a reasonable doubt (Inaudible)?
Is that the part of something more than just the introduction of evidence in the material?
Mr. Paul Bender: I think not.
Justice William J. Brennan: Well, what about the -- there are second assertions (Inaudible) --
Mr. Paul Bender: Yes.
Justice William J. Brennan: I think that held that there was something more than just the material.
Mr. Paul Bender: That as I remember it was material directed to -- concededly directed to a special group of people where one might expect that the trier of fact would not be able fully to appreciate the impact of the material.
And insofar as appeal to the prurient interest of the reader is involved, I think the Court held there that you needed some testimony to demonstrate that that's not involved in this case.
Justice William J. Brennan: Well incidentally, did the Government seek that you have to --
Mr. Paul Bender: No, we did not because it was so narrowly based.
It simply said that we had to introduce evidence and we didn't feel it, we were justified in bothering the Court with something which we could solve in that manner.
Chief Justice Earl Warren: Mr. Dickstein.
Rebuttal of Sydney Dickstein
Mr. Sydney Dickstein: Mr. Chief Justice.
The position of the Government seems to be that while all of these elements of obscenity are constitutional requirements, somehow one of these elements commence itself to this Court's independent judgment and the other two need not.
Well, this of course doesn't begin to address itself to the practical problem of what do we do with the burden posed upon the Court and reading all of these works.
Well, I would suggest that on the question of redeeming social importance that is, whether or not a work makes a serious claim of redeeming social importance, that question can very often be resolved on the briefs as I think it can be resolved on the briefs in this case.
Justice Hugo L. Black: How can it if you suppose to look at the whole work?
Mr. Sydney Dickstein: Your Honor, this Court as I understand its ruling has said we're not going to permit a book to be suppressed unless we are satisfied that this is constitutionally permissible if the suppression of this book does not run afoul of the First Amendment.
Now, if we're talking about freeing a work rather than suppressing it, certainly this Court is not obligated to run through each and every set -- every test as to each of these elements in making independent determination.
This is why I said during my principal argument that if there is a determination that the works have redeeming social importance that is and can be the end of the inquiry this Court need not go beyond that.
And in many, many cases it need not necessarily read the works in order to make that kind of a determination.
This also brings --
Chief Justice Earl Warren: I would think it'd be just the opposite, Mr. Dickstein.
I would think it would be very obvious if there was obscenity in the book but I would think that it would probably take a reading of the entire book to determine whether there was any social value in the entire work.
Mr. Sydney Dickstein: It might.
It would depend upon --
Chief Justice Earl Warren: (Inaudible) -- oh, wouldn't that be --
Mr. Sydney Dickstein: It would depend upon the particular book but I have found this and that is the claims for redeeming social importance are not made likely, they are serious claims.
And there are serious advocacies in this particular case.
So, we need not confront this question.
There are -- the question -- the redeeming social importance as an element is not present in every case that comes before this Court nor am I sure will it be present in any cases that may come before it in the future.
And so this task can be circumscribed by this threshold determination of redeeming social importance.
Justice Hugo L. Black: Without reading the book?
Mr. Sydney Dickstein: In certain instances, we think it can be done on the briefs here where the Government does say if the Handbook has the values for example dealing with the Handbook.
If the Handbook has the values claimed for it, then we agree that it has the protection of the First Amendment.
I would also say --
Justice William J. Brennan: Well, how would they (Inaudible)?
Mr. Sydney Dickstein: The -- these are highlighted in the briefs Your Honor both in terms of the content of the publications --
Justice William J. Brennan: (Inaudible)
Mr. Sydney Dickstein: I don't say that in every situation this can act as a substitute for reading the book.
Justice William J. Brennan: (Inaudible)
Mr. Sydney Dickstein: Well, we think that the descriptions in the briefs here of course are adequately representative of the basis --
Justice William J. Brennan: (Inaudible)
Mr. Sydney Dickstein: -- of the claim of social value.
I would -- there's also another matter here and that goes to the Government's suggestion that these books be read by pieces.
Now, I don't want my argument misconstrued.
I am not saying that for example if the publisher of the Ladies' Home Journal decides that they're going to put in a section, an article of hardcore pornography in next month's issue that this law cannot reach that merely.
What I am saying is that on this case where the Government has stipulated that the works must be viewed as a whole, must be considered as a whole, they're precluded from even making the argument here.
And that was their stipulation.
Act in 1896, this Court decided the Rosen case in which Rosen, it wasn't a -- Rosen complain that he had been convicted for a mail that -- because parts of the works that were under consideration were obscene and he hadn't been told which parts.
And the Court's answered, that was very simple.
If you didn't understand what the indictment said, you should've asked for a bill of particulars.
And that's just what we did here and that's just what the Government gave us and on that bill of particulars, there's simply no way to read EROS or Liaison except as a whole.
And if redeeming social importance will save the work and the Government agrees with that, I don't think it's necessary to read each and every word of EROS in order to determine that that book has redeeming social importance.
I think even amongst casual scanning of EROS would achieve that purpose.
Justice Hugo L. Black: What's your standing for that?
Deciding it has redeeming social importance?
Mr. Sydney Dickstein: Your Honor, I would say that if a work makes a serious claim, not a sham claim but a serious claim that we will not then be permitted -- one should not then be allowed to debate the relative merit of the claim, is it a good idea, is it a bad idea.
So long as the claim has made and it's serious and it's supported by the book or the evidence, I think that creates redeeming social importance.
And I'd like to --
Justice Hugo L. Black: What you are saying is that if the -- some circumstances on which we can just decide that the thing is socially good, ordinarily of course, it's for legislative branches to determine.
Mr. Sydney Dickstein: No Your Honor, I'm reading it in terms of a First Amendment text.
I'm saying that if the work is -- I'm not saying whether it's socially good or socially bad if it's advocacy --
Justice Hugo L. Black: Whether it has to be good, it has redeeming social values, isn't it?
Mr. Sydney Dickstein: Well, no, not at all.
I'm sure that they've -- we're talking about consensus.
There are many people who would say that ideas which maybe freely presented are nevertheless bad ideas, are horrible ideas, or unacceptable ideas, or offensive ideas but they're ideas.
And in that First Amendment, if it teaches any thing, of course teaches that this is a protection for the minority utterance not the utterance that the consensus would willingly accept, otherwise the First Amendment would have no meaning.
And there are really, that there's one thing to be said on this and in terms of how one deals with these matters, there are four books in this case, not just three.
There is the three publications and there's the transcript of the record and that record I think is very, very illuminating and the testimony is illuminating.
And if we're determining whether a serious claim is made of redeeming social importance, it seems to me that we must look aside from the books themselves and in addition to the books themselves perhaps, to those who say, ?This book has meaning to me, this book is useful to me,? and we cannot say you are wrong.
Justice Abe Fortas: Well Mr. Dickstein, are you telling us that we ought to take into account the intention or purpose of the publisher?
Mr. Sydney Dickstein: Only to the extent that it is exhibited and manifest within the work itself.
I don't think the motives of the publisher if anything whatever to do with this statute.
Justice Abe Fortas: Suppose the work itself says that the purpose of this work is to -- amuse you, essentially with oddities and chuckles, gripes and stuff and like that.
Now, how about that?
Mr. Sydney Dickstein: Your Honor, I would say that amusement creates social value if that was what the work in fact achieved.
Justice Abe Fortas: Well, the Courts probably have to come to that.
Mr. Sydney Dickstein: And -- but of course I would say that one cannot put a man in jail for his bad jokes and we get to that kind of a question as well.
Justice Potter Stewart: Weren't you really right the first time in answer to Brother Fortas' question, the motive.
I presume we live in a capitalistic society and I suppose the motive of most publishers and publishing and selling books of any kind is to make money.
Mr. Sydney Dickstein: Your Honor, if there wasn't a profit motive, I just suppose books wouldn't be published in this kind of thing (Voice Overlap) --
Justice Potter Stewart: Many, and except by philanthropists.
Mr. Sydney Dickstein: That's right.
Justice Potter Stewart: So, why is -- why wasn't your answer correct the first time --
Mr. Sydney Dickstein: I --
Justice Potter Stewart: -- except insofar as it's reflected in the nature of the publication and not even the publisher is irrelevant?
Mr. Sydney Dickstein: That is correct Your Honor.
I would --
Justice Abe Fortas: It wouldn't take into account what the publisher says in that publication to be its purpose or intent?
Mr. Sydney Dickstein: No, not by itself.
It might illuminate, it might be a guide just as a critical review might be a guide to what the publishers' intent is.
We might try to read it through that -- in those terms.
Chief Justice Earl Warren: Well, if
Mr. Sydney Dickstein: There's something --
Chief Justice Earl Warren: (Voice Overlap) what he said in the book, what -- how could we get it?
Mr. Sydney Dickstein: You would have to get it through what is said in the book, you would also have to get --
Chief Justice Earl Warren: Well then, that does in involve --
Mr. Sydney Dickstein: Except --
Chief Justice Earl Warren: -- his motives in publishing it, does it not?
Mr. Sydney Dickstein: Except extrinsic aids, extrinsic evidence such as critical review, such as a prefatory statement of purpose, maybe of some aid in reading the book.
So, we say it can be if we're talking about that kind of value.
Chief Justice Earl Warren: But it seemed to me you put great emphasis on the serious contention in this book that it did have social value.
Mr. Sydney Dickstein: Yes, Your Honor, I do.
Chief Justice Earl Warren: Well, then you are testing that book by -- apparently, by the sincerity and the logic of the man who writes that portion of it, don't you think?
Mr. Sydney Dickstein: No Your Honor, I'm talking about the seriousness of the claim as distinguished from a sham claim such as the thing that --
Chief Justice Earl Warren: Well, will you tell me how the -- how can you distinguish those for a man in serious terms writes both of them?
Mr. Sydney Dickstein: Your Honor, this Court was able to point up the distinction in Valentine against Chrestensen.
I think when sham exists, it's apparent, it's a fraud and nobody will actively urge that it means anything other than that.
Chief Justice Earl Warren: Well, you might find that on this Court there will be those who will think that some of these books at least are vile and indecent and obscene, they were -- they might agree.
Others might not feel it -- might not that.
And would you say that the -- that what the man who writes a book has to say about the social importance of it and what he intends the book to portray to the public is of any importance to us in deciding what case --
Mr. Sydney Dickstein: It maybe of some moment, it's hardly conclusive Your Honor.
I would say this when you say some agree and some would disagree.
The Government of course says that these books are in the doubtful area.
Now, again we're talking about a First Amendment criminal case.
It seems to me that once they've said that, they've said themselves out of court.
I hardly think they agree that these tests are subject to a reasonable doubt standard and yet they express a reasonable doubt.
Justice Abe Fortas: Well, they said that about (Inaudible) in the public inquiry, not (Voice Overlap) --
Mr. Sydney Dickstein: And the only reason they accept -- the only reason as I understand the Government's argument that they accept Liaison is that they say it's riotously vulgar.
Well first, that depends upon being able to chop it up into parts.
Secondly, the stipulation also said that the works are alleged to be obscene not filthy and this Court made the distinction in Limehouse which the Government still says is applicable and that is vogue, that is obscenity as one thing and the filthy is a separate class of nonmailable material.
As far as the claim of vulgarity, well Congress wrote that out of this statute before the turn of the century.
And I think certainly some value has to be attributed to that change in the statutory language.
I think these epithets can be cast at Liaison.
There, it's a -- if -- it is vulgar, there's no question about it.
It's sophomoric that may do, worst epithet that be -- it can be cast at it.
But to put a man in jail for mailing it is another question especially when the Government agrees that it is not hardcore pornography.
Now, the Government says that --
Justice Hugo L. Black: You've said that -- you've said that twice, there's no reference to hardcore pornography, that this could be defined.
Mr. Sydney Dickstein: Your Honor, the question really isn't what hardcore pornography means or how one defines it.
If I may -- just given -- I think that's a red herring that's been cast across this entire argument.
Justice Hugo L. Black: That's why I was surprised to hear you continue (Voice Overlap) --
Mr. Sydney Dickstein: The question is what --
Justice Hugo L. Black: (Inaudible)
Mr. Sydney Dickstein: I -- may -- the question is what hardcore pornography is.
And on that nobody apparently has any disagreement.
The Government handed this Court on facts, the material during the argument in Roth, and it said this is hardcore material.
We handed up during the trial of this case, and they're at evidence in this case, other examples of hardcore material.
And the Government has no difficulty in describing this material it says, in its brief, ?All of this material, we submit, is solely for the purpose of arousing lust.
It cannot conceivably be characterized as embodying communication of ideas or artistic values inviolate under the First Amendment.?
I would also read to the Government's description, if that's the term to be applied, that in this day and age it's difficult to conceive of any thing that's patently offensive unless it be hardcore pornography.
Justice Abe Fortas: Did you understand that the Government can say that they excluded Liaison from the category of hardcore pornography?
Mr. Sydney Dickstein: Yes, Your Honor, I did.
They said it was a unique publication --
Justice Abe Fortas: I did not --
Mr. Sydney Dickstein: -- which was riotously vulgar.
Justice Abe Fortas: I did not so understand but --
Mr. Sydney Dickstein: Mr. Bender and I had said -- I think that is (Inaudible).
Rebuttal of Paul Bender
Mr. Paul Bender: I was not in agreement with Justice Fortas.
Rebuttal of Sydney Dickstein
Mr. Sydney Dickstein: Excuse me.
Chief Justice Earl Warren: Very well.
Mr. Sydney Dickstein: Thank you.