MISHKIN v. NEW YORK
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Emanuel Redfield
Chief Justice Earl Warren: Number 49, Edward Mishkin versus New York.
Mr. Emanuel Redfield: Mr. Chief Justice, the Honorable Court.
This case, Your Honors, brings up broader questions of constitutional law than was involved in the case you just heard and I assume in the case following me.
This case brings up three novel constitutional questions which are just begging for resolution, and it also brings up other questions of constitutional importance which are not novel but which certainly go toward the question as to whether or not this man's right of publication should be met with a sentence of three years in jail and a fine of $12,000.
The three novel constitutional questions as I see them are -- may books that are devoted to descriptions and narrations of sadism and masochism, may they be proscribed?
The second question is, are these phrases sadistic and masochistic as used in the statute vague?
And, the third is a question that was lift over by Smith against California, and that is a question of scienter, the question what knowledge does the purveyor have to know in order that he may be punished for violating the statute?
Justice John M. Harlan: Under the second question, Mr. Redfield, am I right to conclude the question was heard in the trial court (Inaudible)
Mr. Emanuel Redfield: Yes, sir.
Justice John M. Harlan: And, you say -- you say that the (Inaudible) were masochistic and so forth on its content -- the content?
Mr. Emanuel Redfield: That's what it says.
Justice John M. Harlan: And obscene?
Mr. Emanuel Redfield: Yes, sir, that's what he said and he relied upon another opinion of a Co-coordinate Judge, and I do not feel that that has resolved a problem because I do not think we have an authoritative construction by the highest court of the state whom which this appeal has come.
Justice John M. Harlan: The Court of Appeals has never got it?
Mr. Emanuel Redfield: No sir.
And we are in the worst position than we were here in the Winters case because at least in the Winters case we had a construction by the highest court of the state.
Justice John M. Harlan: The Court of Appeals did deny reviewing it?
Mr. Emanuel Redfield: No, sir.
It did review but it affirmed -- it affirmed without opinion.
Justice John M. Harlan: It affirmed without opinion.
Mr. Emanuel Redfield: And it affirmed both in my case and it affirmed the appeal taken by the people and -- which you're not concerned with here.
Justice John M. Harlan: Yes.
Mr. Emanuel Redfield: So, I won't go into it.
The other questions that are before Your Honors, other than these novel questions, is this -- “Are these books obscene?”
And “Is the statute of the State of New York as construed by the courts, vague and uncertain?”
And thirdly, is a question left by reason of the fact that Mapp decision came after these cases were decided and we have a serious question of search and seizure here.
Now, I believe and I hope that the court could resolve all these problems and I know it's quite a job and, after being before this Court for more than 30 years, I've never yet been able to penetrate the mysteries of the ground that the court selects for its decision on whenever there are competing constitutional questions, but I must say that from what I've observed in the courts of the State of New York and the courts of other jurisdictions in which I was counsel and otherwise, that there is a great need that these questions be resolved now.
Now, as I said before, this man got a three-year jail sentence and a $12,000 fine for putting out these books.
I will not say that these books are great bits of learning nor even interesting to me or to others, but there are probably some who like to read it and --
Justice William J. Brennan: (Inaudible) I couldn't quite hear you.
Mr. Emanuel Redfield: I'm sorry, perhaps it's the mic.
Chief Justice Earl Warren: I didn't get that last phrase you used either.
You said but you do believe that something is in fact --
Mr. Emanuel Redfield: Some -- some people would like to read these books.
I'll come to that part.
I don't want to get off my argument.
Now, this man was charged and it was information involving 198 counts and the counts divide themselves into three categories.
Well, there were four, first.
The first category was that he possessed these books for distribution or sale.
Secondly, that he published these books.
Thirdly, he got -- employed others to do it.
These are the three categories.
And the fourth category was that he published them without putting his name in violation of the General Business Law of New York.
The latter part was declared unconstitutional by our New York courts, and so it remains.
So that for each category, he received a jail sentence of one year to run concurrently -- I'm sorry, consecutively, so that all-in-all he has three years.
And I should point out here too that the jail sentences were on counts 1, 48, and 65 because I think it may be of value to Your Honors to know that.
The -- but I should also emphasize this, that there are no facts in the record which showed that he knew that these books were the character that the statute proscribes.
In other words, my emphasis is placed on this aspect of the Smith against California decision.
We'll say that he knew that these books were erotic one or that they were filthy or whatever you call it, but there was no showing that he knew that these books were obscene.
Justice William J. Brennan: Well, let's see if (Inaudible), is this the case where defendants were -- the theme was outlined by this defendant, the writer, in length of this book?
Mr. Emanuel Redfield: Yes, sir.
Justice William J. Brennan: The content of it -- what was -- he wanted the author to --
Mr. Emanuel Redfield: Yes.
Justice William J. Brennan: -- to say?
This is that case?
Mr. Emanuel Redfield: Yes, this is the case but --
Justice William J. Brennan: Well, is it your argument that nonetheless, while he did all of those things, the Government as I gather said, he actually write it himself.
Mr. Emanuel Redfield: Yes.
Justice William J. Brennan: And, yet he's not -- it cannot be said that he knew that the contents were obscene even if in fact they were, is that it?
Mr. Emanuel Redfield: That's right, but even if -- because I lay this stress on it, he might have told the writers what to write, but he might have done so innocently thinking he has a right to write these things.
Chief Justice Earl Warren: I don't quite get your point, Mr. Redfield.
Suppose -- suppose he told him to write something that was sexy and off-color and the writing was done, and he read them and understood what he was doing, and then published them.
Mr. Emanuel Redfield: Yes, sir.
Chief Justice Earl Warren: And that was a proof.
What more -- what more could and should the Government have to prove in order to show that he had scienter?
Mr. Emanuel Redfield: Well, I wouldn't say that's scienter.
Chief Justice Earl Warren: What --
Mr. Emanuel Redfield: It would say -- it would only mean that he knew what the words were but he didn't know what their value was.
Chief Justice Earl Warren: What kind of proof would you suggest that the Government could supply in addition to that?
Mr. Emanuel Redfield: Well, they would have to -- they seem to be doing it in New York.
They seem to be supplying it, but they didn't have -- didn't do it in this case.
Chief Justice Earl Warren: What kind of evidence?
Mr. Emanuel Redfield: They have admissions, confessions, and statements made to the -- to people who bought it.
Chief Justice Earl Warren: That's the only kind of evidence you can suggest?
Mr. Emanuel Redfield: That's the only one I could suggest.
I don't know how otherwise they could do it.
Chief Justice Earl Warren: Yes.
Justice John M. Harlan: So what you really meant suppose by your standard line is that there's no knowledge in his part that he violated the law -- that at this point, he didn't know he did?
Mr. Emanuel Redfield: That's right, exactly.
Justice Hugo L. Black: Well, that would apply to every obscenity case, wouldn't it?
Mr. Emanuel Redfield: I would say so, yes.
Otherwise, how could you get to the mens rea about what you -- the court spoke in the California case?
Now, I move on to the question of “May sadistic and masochistic books be proscribed?”
In 1956, the New York statute was amended to add with the words -- to the obscenity statute the words “sadistic” and “masochistic”.
Up to that time, we had a string of words in the statute that -- relating to obscenity, but there wasn't satisfaction with that statute by the prosecuting authorities because they -- according to the legislative documents that I have briefed to Your Honors, they felt that the obscenity statute was not adequate to cover sadistic and masochistic literature.
I submit to Your Honors that from this legislative history alone, one must conclude that these two words are completely independent from the word “obscenity” as had heretofore been used in the statute.
So the question therefore is, “May sadistic books be prohibited?”
Justice John M. Harlan: I still don't see how that question is presented because the lower court said that (Inaudible) proceeding, the Court of Appeals affirmed it.
Then why is that (Inaudible) which we have to take in this case?
Mr. Emanuel Redfield: Because the Court of Appeals may not have ruled on that aspect of the statute.
Justice John M. Harlan: It affirmed.
Mr. Emanuel Redfield: It affirmed.
It may -- it has affirmed on grounds other than just the construction of the statute.
In other words, I don't think you could have a construction of a statute by silence.
Justice John M. Harlan: The courts ought to write an opinion, wouldn't they?
Mr. Emanuel Redfield: True enough but, if you want a construction of a statute, I'm pretty sure you have to write about it.
This Court has said time and time again that only obscene books may be proscribed, and if sadistic and masochistic books are of a different nature, then the statute violates the doctrines of this Court in construing the Fourteenth Amendment.
I agree that New York is hard-put to this statute and now argues and demand that Mr. Justice Harlan has stated, and that is that they are synonyms for obscenity.
If they are synonyms, I can't see what the need for them had been.
Were they just trying to add additional words to the statute?
They came into the statute specifically, as the legislative finding show, because of the need to get at these books.
So therefore, I submit to Your Honors that so far as this statute seeks to prohibit sadistic books or masochistic books, the statute is invalid.
I turn to the question now, “What does the word “sadistic and masochistic” mean?
According to general use, they mean the infliction of punishment and the enjoyment by the inflictor and masochism is the converse.
That to me is the same problem you had in the Winters case where you had to rule on the statute which proscribed literature made up of stories of bloodshed, lust, and -- bloodshed, lust, and crimes.
And the court said literature could be made up of those things because if the statute sought broadly to proscribe such literature, there's no end to the amount of literature that may be prohibited.
Now, in connection with what was said by the lower court here, if the construction of the lower court were accepted as for the first time construing this statute so as to bring this defendant within the net of the statute, then clearly, my client is made the guinea pig to supply legislative deficiency.
That was what was before the court in the Lanzetta case and that is what this Court said, that you cannot, for the first time, construe a statute in such a way as to bring a man within its scope.
The legislature has to be clear in the first place.
And also, in the Winters case, I recall the court ordered a re-argument and asked counsel to brief that very question because it was claimed too in that case that a construction was being made for the very first time.
The court didn't have to pass upon it because it assumed that the statute was clear for the sake of argument.
But if the lower court had for the first time, made a construction so as to render this man's conduct guilty, then I say such a construction is an invalid, one that's a denial of due process.
It should also be said that in the trial court's decision nor in any other court was any finding made as to which particular books fell into a category of obscenity and which particular books fell into the category of being sadistic or masochistic.
There was a general broad pronouncement by the trial court that these books were obscene.
In view of that, since there was no separation made by the court or any finding made as to any particular books, there has to be a reversal in the event you find some of these books obscene, but seen in some books sadistic, because you cannot tell which books the courts found to be in which category, and that is exactly what this Court did in the Stromberg case.
Now -- I turn now to the question whether or not these books -- particular books are obscene.
These are the books I would say are of the type of books that were referred to in the Klaw case that Justice Brennan spoke about before.
These are books that seem to have been directed to a certain class of people who might get a certain amount of pleasure from them.
Justice William J. Brennan: Now, that's not true at all (Inaudible) the different categories?
Mr. Emanuel Redfield: There are -- nobody categorized, and that's what I said before.
There were no findings, there were no categories, they were all lumped together.
All -- what I gather from the opinion of the trial court, the court said these books are sickening.
Well, perhaps they are sickening to most of us who liked to read better things.
But, whether or not they're -- they fall or following of the statute is another thing.
And there was no proof anywhere by the prosecution that these books have a tendency -- not a tendency -- due to the average person create a prurient condition.
Justice William J. Brennan: So, what's the point?
Did they had an appeal only to a special audience and not to the average person?
Mr. Emanuel Redfield: These books, I don't think appeal to the average person.
These might appeal to elderly persons.
It might appeal to impotent persons.
It might appeal to perverse persons who might get certain amount of pleasure out of them.
Whether it's a prurient pleasure, I don't know, but it is a pleasure evidently, judging by the sale that these books enjoyed --
Justice William J. Brennan: (Inaudible)
Mr. Emanuel Redfield: -- and the prices that are put on the books.
I would say that in cases of this nature, the burden of proof is on the state to prove that these books have the qualities they attribute to them and there's no such proof in the record.
The -- a lot has been said about whether or not the books have a redeeming social value.
I cannot strongly urge that point because I, myself, do not believe that books cannot be said to have a redeeming social value.
I think all books have a redeeming social value.
It all depends to whom and for what purpose.
It may be even for the sake of proving that the opposite is virtuous.
And, to prove that any book has a redeeming social value puts the court in the position of being a literary critic, and whether or not a court wishes to be a literal -- a literary critic is another story.
The fact is, however, the court has to review these cases and unfortunately, has to read all these books.
And, it is very similar to this situation I had here 12-15 years ago and this boy in Syracuse, Finer, I believe his name was, who made a speech on the corner and the question put before the court was whether this boy should be jailed for 30 days because he made a speech which some people thought was inflammatory.
There was a division of the court but the court did have to review the speech and see whether or not such a speech was inflammatory, and you can't get away from it if you are to review a person's right to speak without restraint.
And the same would apply, I urge, to such doctrines as to whether or not a book has to be patently offensive.
I say to you, why must one be judged by what offends others and who is to be the judge of what is patently offensive to a community, whether it's the community of a tiny village or a city or the entire nation.
Chief Justice Earl Warren: Mr. Uviller.
Argument of H. Richard Uviller
Mr. H. Richard Uviller: Mr. Chief Justice, may it please the Court.
I propose to divide my argument in a rather conventional manner, discussing first the substantive issues, meaning of the term “obscenity” and particularly as applied to materials of this character and coming second, to the procedural points which are raised by the trial -- the prosecution, trial, and conviction of Edward Mishkin exactly five years ago in New York.
I hope that I may launch the first stage of my argument from the premise that there is something in this world of wonders which is called “obscenity” and that, whatever it may be it does escape through the narrow crack in the door from the protected enclave of the First Amendment.
Perhaps, at that point, I should heed the advice of Mr. Justice Stewart and others and may it merely submit the exhibits to the court with the statement that I believe that the court, upon examination of the exhibits themselves, will find that they are in fact obscene.
But, I confess that I cannot force myself to sit down so soon when there are so many challenging concepts before the court today.
The distinction between the obscene and the permissible has been described as a dim and uncertain mind.
Many who have labored at the task have confessed themselves unable to formulate a precise general definition of the obscene which was susceptible of ready application, particularly in the difficult areas which are called “borderline.”
It is the hope, I'm sure, of this Court in hearing these appeals and of all other courts which have considered this question that somehow through the series of decisions, not merely the words used in the opinion, the precise scope of the test of obscenity will become increasingly clear and more readily susceptible of application.
I, for one, think that where tests are concerned, the formulation -- the famous formulation of the Roth case is an excellent one.
I do believe that being expressed in but a single sentence in that decision and that sentence combining several different concepts that it might be helpful if that test -- if the basic skeleton of that test are could be filled in by some further explication.
It is our interpretation and our submission to this Court that the Roth test is, in effect, a tripod standing on three legs, all three of which are necessary to support any conviction or restriction upon the dissemination of printed matter.
Those three legs, I think, embrace quite different considerations and the total effect of the three together, properly interpreted would assure us that there would be no criminal prosecution or restriction on the pre-dissemination of material which should enjoy the protections of the First Amendment.
In my way of thinking, the first of these are these three indispensable legs is the patent offensiveness test.
Unknown Speaker: Of what?
Mr. H. Richard Uviller: Patent offensiveness, or patent offensiveness -- the quality of material which transgresses against the acceptable norms of candor what Judge Learned Hand had described as that contemporary critical point between candor and shame.
This is a standard which I think characterizes the reaction of the communities to allegedly obscene or pornographic matter.
As far as the ordinary members of the community are concerned or those so-called average or the normal individuals who make up a community, regardless of its geographical limits, they're reaction is one of either a shock or tolerance of revulsion and distaste or of acceptance.
And, I think that the community as a standard for the measurement of offensiveness is a realistic and a workable measure.
I would suggest that, as to that test, a court, while certainly reviewing it --
Justice William J. Brennan: Well, would you -- did I understand you say -- acceptance as opposed to rejection, distaste as opposed to acceptance?
Mr. H. Richard Uviller: Yes, sir.
Justice William J. Brennan: The middle ground -- toleration?
Mr. H. Richard Uviller: Yes, so I think I mentioned tolerance too.
I -- it seems to me that offensiveness has to be a kind of a positive-negative, if you will.
It has to be stimulated an affirmative feeling of rejection.
The simple -- it doesn't make very much difference to me whether this material is available on the newsstands or not, it would not signify a reaction of -- consistent with patent offensiveness.
The offensiveness must be a gross one.
The affront to community standards must be a significant one, an appreciable one, and I think it should be judged by that wonderful legal affliction, the average member of the community, not the highly sophisticated, not the particularly puritanical.
That construct, if such a person does exist, who does represent an amalgam of the values of the community.
As to that test, it seems to me that, although this Court has assumed the burden of review of offensiveness in the first instance in the Manual Enterprise case, it seems to me that particularly where a conviction comes from a state court and particularly where the fact finder, be a court or a juror, was appreciative of the appropriate definition of the standard and the scope of the measurement that a sufficient evidence rule would be appropriate upon review.
I do adopt the view point of Mr. Justice Harlan that there is a distinction between a state application of standards and federal application.
I think that, as he persuasively reasoned, that there is a national community and there are state laboratories.
I see nothing repugnant to differing results where --
Justice William J. Brennan: What's your solution for those who can't accept them?
Mr. H. Richard Uviller: I beg your pardon?
Justice William J. Brennan: What's your solution for those who can't accept them?
Mr. H. Richard Uviller: Well, for those who do not accept the distinction, I assume that we must simply expand our imagination and, as we conceive of the local community standards, so we must attempt to conceive of the national community standards.
I suggest that it becomes somewhat more complex because of the diverse values in different sections of the country, but I -- perhaps it is not all that difficult since there are very diverse values even in so small community as the city from which I held.
I don't think that there is any question in this case.
I have heard no argument raised that this material is offensive, that however the community be defined, however, the average man within that community be imagined, that he would find the materials in this case that Mishkin directed and published and sold to be offensive, to be somewhere beyond that critical point and into the area of shame.
The second test, it seems to me, is the test of redeeming social value because, clearly, not everything which the common man, which the average man, rejects as offensive is -- can be prohibited consistently with the principles of the First Amendment.
It seems to me that the test of social value or redeeming importance is one which should more appropriately be made by someone who is more sensitive to the esoteric values that usually go into that sort of judgment.
I don't suggest that the court is of a scientific authority or even a literary critic, but the court does have the assistance of literary critics and experts and, moreover, the court does represent a body which has certain amount of familiarity with materials which might be deemed offensive by the ordinary laymen.
Consequently, it does seem to me that the test of redeeming social value, an extremely important one, is one for the court.
I don't necessarily suggest that this Court must assume that obligation in the first instance every time.
It does seem to me that the appellate structures within the state applying standards which have been laid down by this Court are entitled to a certain amount of respect by the court.
And, if their conclusion is reasonable with respect to social importance, it may not be necessary for this Court to assume the enormous burden of reading the materials one by one in the first instance.
Listening to the colloquy or in earlier arguments this afternoon, I might say that I would never have suggested in the first instance that the court could assume a burden so enormous, not to mention unending, repetitive, and unpleasant.
In fact, in assuming the burden, the court recognized the unpleasantness of the task but apparently felt impelled to do so.
I -- however, once it has been assumed by the court, of course I am not in the position to say that the court should not continue to exercise it, if you call upon to do so.
Essentially, what, again in this instance, the facts of this case are such, that there really is no substantial question, there is no argument, there is no contest, there is no claim made here by the petitioners, that any one of these many exhibits in evidence has the slightest value -- social value, or whether that term be conceived of as a scientific, artistic, literary, or any other value of any sort.
Consequently, there's no real dispute, it seems to me, as to that lack of a test.
Of course, what the dispute on obscenity boils down to is the third, and critical and perhaps the most confusing aspect of this test, and that is the appeal to prurient interest.
The original formulation of Roth, of course, stated whether to the average man, applying contemporary standards, the dominant appeal of the work taken as a whole appeals to prurient interest.
Now, this separation of the average man and prurient interest in that terminology has been overlooked by a number of jurisdictions who have simply read the tasks as appeal to the prurient interest of the average man.
Now, it seems to me that there are grave difficulties if the measure, the litmus, of prurient appeal be the average man.
For one thing, we are told by such experts as the Kronhausen's and Lockhart and McClure, and others, that the essential nature of the most easily recognizable form of obscenity is its appeal to those whose sexual development has been in some way either arrested or distorted that while these materials, perhaps the more conventional type of obscenity, undoubtedly have a certain erotic effect on almost any mature person and maybe some immature person, or even knowing that there is a stimulating quality, an erotically stimulating quality.
That, if we talk of appeal in terms of an exaggerated interest in the materials, that such appeal would be found only in those who suffer from that sort of loneliness, immaturity, fright, and other distortions of the normal sexual appetites and I don't think that this Court could possibly have intended to postulate an average man to whose prurient interest, the most undisguised pornography appeals.
Perhaps one of the difficulties is the use of the phrase in the Roth case, which had been rejected by the earlier formulation of the American Law Institute, “arouses lustful thoughts.”
The arousal of a lustful thought, it seems to me is quite another matter than the appeal to prurient interest.
If the word “prurient” be taken to mean an exaggerated lascivious interest and the appeal be considered something more than the ordinary appeal that many perfectly innocent objects might have, then it seems to me that one is not dealing with the average man.
One is dealing with a particular susceptible branch of the community.
And this is true both with respect to the so-called conventional pornography and the bizarre specialized form of pornography, that is -- makes up the bulk of the exhibits.
They're not all the exhibits in the present case.
Justice Abe Fortas: Are you saying -- are you saying, sir, that if the third standard -- that the third standard is met if the -- in the literatarian question -- and they deemed to have an appeal to the prurient interest of anybody, single person or how would you define that argument?
Mr. H. Richard Uviller: Well here, Mr. Justice Fortas, I would adopt a compromise, a modification, of the variable obscenity test which was favored by the Lockhart and McClure.
I do think that, in judging -- in selecting the group by which the prurient appeal should be measured, one must take into consideration the circumstances of the distribution of the material, the apparent target the group was intended to be affected by it, and to consider, in addition, what has been called “those into whose hands the material is likely to fall”.
Now, lest there'd be any -- as we point out in the brief, lest there'd be any mistake about it, this does not signify any degree of return to the discredit in the Hicklin test because in that Hicklin test of course, the circumstance were not -- the test was not based upon this tripartite consideration.
If I take as my measure of prurient appeal in this material, let us say even a small susceptible group who find a morbid and sick attraction to this sort of material and prohibited, I am doing so not simply on the basis of the specialized group, but I am doing so on the basis of the revulsion which the community at large feels against it in deeming it offensive.
And I am doing it after the material has been adjudged to be utterly without social value by a responsible reviewing group.
Justice Abe Fortas: Yes, but if you say -- as you started to say that there are three legs to the Roth test, then I suppose that you'd have to work out some way to satisfy we're getting -- I'm getting the image as hopelessly mixed up, satisfy the demands of each leg.
Mr. H. Richard Uviller: Yes.
Well, I think I defined a meaning, sir.
I think that they are three quite separate and independent tests.
I think that the audiences by which they are measured are quite independent.
I think that the ultimate fact-finding group is not necessarily the same.
I see no difficulty at all in applying the standards of the community at large, the average person, the normal person when judging the revolting quality of the material, whether it is that offensive.
On the other hand, I do not think that I have to refer to the same average or normal man when I try to assess whether the material has any of this morbid, sick, bizarre appeal.
In fact, as I say, I think it would be quite inconsistent to do so because I don't -- I think that one would be faced with the anomaly, that material which is the sickest, the most obviously subject to restriction would be the most difficult to reach because the normal man would not find himself erotically attracted to it.
Justice Potter Stewart: Wouldn't it also be very difficult to judge on the second test, if it is the second, that the patent offensiveness because it isn't true to the generality of people, the black gloves or high heels are neither offensive nor attractive, they're rather neutral and --
Mr. H. Richard Uviller: Well, they may be neutral insofar as the erotic impact from this material is concerned.
I dare say that -- used in the exhibits, I confess to a great sense of boredom --
Justice Potter Stewart: Yes.
Mr. H. Richard Uviller: -- as an overwhelming reaction.
However, that does not mean to say that they may not be offensive.
Justice Potter Stewart: Certainly not patently offensive, are they?
Mr. H. Richard Uviller: Well, I do think they are.
I do think that that -- as far as the average person is concerned, he is not repulsed only by those overly candid representations of so-called normal sexual appetites and indulgences.
In fact, I dare say that, the for -- further from the so-called normal, these overly candid representations get, the more offensive they become.
Justice William J. Brennan: But, Mr. Uviller, this -- this high heels and other stuff -- what I would think would have to be rather sophisticated in the appeal of that that have any sense of revulsion to it.
Mr. H. Richard Uviller: I don't think that the sense of revulsion is related, at least not consciously so --
Justice William J. Brennan: Well, I'm --
Mr. H. Richard Uviller: -- to the appeal.
Justice William J. Brennan: I'm speaking now of, I don't know what's your first or second leg either but -- the one that you suggest, we may rely upon the average person in the community and my question is really how the average person in the community can find this stuff offensive at all.
Really, some of it looks no different than used to be an old Sears, Roebuck catalogues of corsets 50 years ago.
Mr. H. Richard Uviller: Well, I -- as I understand your question, Mr. Justice Brennan, it is “what is so bad about this material?”
Justice William J. Brennan: Well no, I'm not thinking what is so bad.
Your argument is that it's going to be offensive to the average man.
That's a different question from its appeal, and I follow that, and I sympathize with that argument but I do have trouble understanding how -- unless one is sophisticated in its appeal, how one can be offended by it.
Mr. H. Richard Uviller: Well, I don't know whether you've had the opportunity yet to examine the exhibits themselves, but I do suggest that the best answer to that question is from an examination of the exhibits.
To characterize them briefly, it is not simply a representation of high heels or corsets.
It is an unruly, gross, exaggerated, bizarre, repetitive, cumulative representation of nothing but this form of sexual stimulation, this bizarre form of sexual -- with very detailed and precise reactions of the participants to it which are unquestionably --
Justice William J. Brennan: The beatings and that sort of thing?
Mr. H. Richard Uviller: Right, which are unquestionably erotic.
In fact, very frequently in these exhibits, the -- what starts out as simple fetishes and a description of the great pleasures of being bound in leather shortly develops into a tail of very frank lesbian or other perverted sexual activities.
Consequently, I do think that although the specialized appeal on this may be lost upon the average individual, I do think that he is in the position to react with respect to the offensiveness.
Justice Abe Fortas: Well, may I continue this, if you don't mind?
It seems to me that your -- the two possibilities with respect to this third test, the appeal to prurient interest, one to which you seem now to have reverted is that, in the particular case before us, there may be an appeal for prurient interest measured by the average man.
A few moments ago, you were suggesting that you didn't have to use the average man test.
Mr. H. Richard Uviller: If I did, it was -- I misspoke.
I do not mean to revert to the average man as a test of prurient interest.
Justice Abe Fortas: As applied to this case?
Mr. H. Richard Uviller: As applied to this case or any case.
As I -- as I said a moment ago, I think that even the more conventional forms of pornography are not necessarily appeals to the prurient interest of normal people with normally developed libidos.
Justice Abe Fortas: Let me try to be specific about this.
Is the -- if we should decide that it was necessary for the State of New York to establish that this literatarian in the Michigan case presented an appeal to prurient interest, and if we should also decide that you cannot satisfy that test by reference to the average man, you would -- would you or would you not consider that we'd have to reverse?
Mr. H. Richard Uviller: Oh, I think that you could affirm.
I think that, in this case, the record is amply clear, unfortunately not, that the defendant not only knew but in -- specifically directed the production of this material for purposes of appeal to a very special group --
Justice Abe Fortas: Alright now --
Mr. H. Richard Uviller: -- who do react to it.
Justice Abe Fortas: Now, what you say is that -- is it this prurient summary then that you're suggesting to us that where the literatarian question is directed to a particular group that we should consider whether, in terms of that particular group, there is or is not an appeal to prurient interest?
Mr. H. Richard Uviller: Yes, sir.
That is correct.
Now that is -- that is of course with respect to the prurient interest test alone that a specific group to which a material is directed is considered.
I don't think this particular --
Justice Abe Fortas: You make it -- making it in a little difficultly, or when you define that group or the group that has perhaps abnormal, prurient interest.
I don't think that's a difficulty.
I don't think it's a difficulty.
I think that if material panders and caters to that abnormality as it is related to libidinous or lascivious desires that that material can be band, censored, if it satisfies the other two tests as well.
Now, obviously, there are so many aberrations that there are many perfectly innocent things that do appeal to the prurient interest of the selected few, but there's no danger that those things could be proscribed.
Most of them are not at all offensive with respect to contemporary standards such as the Sears, Roebuck catalogue that was mentioned, may have a tremendous appeal, so.
I do think also, there must be some clarification of prurient interest in terms of interest rather than stimulation.
Thinking now, the moment of those exhibits in this collection which are somewhat more conventional in their sexuality, these so-called hardcore types of pornography do have, undoubtedly, a certain stimulating effect.
Nonetheless, I don't think that on that account, they could be called an appeal to prurients particularly as that is defined as a morbid or sick and unusual attraction.
With respect to the procedural issues which are involved in this case, the suggestion has been made that there must be some sort of a prior adversary proceeding in as much as these lines are deemed uncertain so that a perspective defendant would have a way of knowing whether the particular material in question was obscene.
The suggestion is made relying on Marcus and Quantity of Books against Kansas that a search warrant cannot issue without such a determination.
Now, I suggest that this is a wholly impractical and unnecessary consideration.
First, in this case, there is no search and seizure problem.
The vast majority of the books of 15,000 were taken from a warehouse.
They were taken from the warehouse not only by a search warrant, which had been obtained some years before Mapp against Ohio, by a search warrant.
But more importantly, they were clearly taken by a consent.
The defendant's accomplice, Mr. Levenberg, conferred with his lawyer, and the lawyer and the accomplice decided to give these books which were in the exclusive control and custody of Mr. Levenberg up to the police.
And, that is the way in which the -- there couldn't be a clearer example of consent.
So, there is no search and seizure problem as to those.
As to the others, some were bought in bookstores by the police.
There couldn't be a search and seizure question there.
But, in any event, it seems to me that a prior adversary proceeding, although it would be helpful in a sense there could be some determination of obscenity before prosecution, would only be a workable device where the defendant himself is willing to submit the exhibits in question for such a determination.
It would be a wholly impractical device in any instance in which -- in other words, the closer you get to the core of the hardcore, the more impractical this procedure becomes.
If you serve a perspective defendant with a subpoena duces tecum to produce a certain stag movie for a -- proceeding under 22 (a) of the Code of Criminal Procedure in New York, you would be very lucky if the defendant himself showed up, let alone bring the stag movie with him.
Consequently, the only way in which there can be a determination of obscenity with respect to the really bad material is by obtaining the evidence first in ex -- as the effect of an ex parte order.
Justice John M. Harlan: How do you deal with the phase of the search and seizure clause, which involved this kind of -- these evidentiary facts for the purpose (Inaudible) and then the seizure -- that seizure to (Inaudible)
Mr. H. Richard Uviller: Well, first, with respect to the search aspect of it, obviously, wares that are openly displayed in a store and which are perused by a police officer are not being searched.
With respect to the seizure, it seems to me that the same considerations govern as governed in any other criminal prosecution, and that is to say that the police officer is obliged to make a determination as best he can, as to whether it is probable for a reasonable person to believe that the material in question does constitute proscribed material.
In other words, the standards are probable cause and evidence can be seized upon such probable cause pursuant to an arrest.
That is to say, the arrest itself -- in this instance, the arrest itself was based on probable cause.
The book was bought.
The police officer having the book in-hand, the defendant having sold it to him, had probable cause to believe that the defendant had sold him an obscene book and therefore placed him under arrest, and pursuant to that arrest, took other items of contraband in the immediate vicinity.
Justice John M. Harlan: Weren't there some institution or at least the records have cited -- cited that the (Inaudible) where there are certain incidents (Inaudible)
Mr. H. Richard Uviller: I don't believe there are any such incidents, Mr. Justice.
Justice John M. Harlan: (Inaudible)
Mr. H. Richard Uviller: Well, I may be -- I may not have the one in mind.
There were so many seizures.
Justice John M. Harlan: (Inaudible)
Mr. H. Richard Uviller: Yes, and of course, the vast majority where the warehouse is where the books -- the seizures are -- the seizures were over a period --
Justice John M. Harlan: (Inaudible)
Mr. H. Richard Uviller: I'm informed that Your Honor is right, that of the 158 books, there were three that were -- were taken without any indication that there having been an arrest.
Justice John M. Harlan: (Inaudible)
Mr. H. Richard Uviller: I don't believe so.
Those are Exhibits 69 --
Justice John M. Harlan: What books were they, what exhibits?
Mr. H. Richard Uviller: Well, Exhibits 69 through 71, Mr. Justice.
Justice John M. Harlan: I bet the argument is (Inaudible)
Mr. H. Richard Uviller: Yes.
Well, that is our argument, Mr. Justice Harlan.
We do -- we do contend that they are contraband.
But with respect to seizure at that stage, all that is requisite is probable cause to believe that their possession is a crime, which would make them -- possession with intent to sell is a crime.
Justice John M. Harlan: (Inaudible)
Mr. H. Richard Uviller: These were also books that were taken from a bookstore I believe sir which were an actual -- an actual -- the warrant problem is -- the warrant problem is a -- restricted to those exhibits.
And I dare say the means of procedure in the case as a whole, the importance of those exhibits is minimal even if there was a -- the record itself, for example, is not -- is not fully explicit.
Precisely as with the warrant itself, the search warrant was the -- we don't even know the bonafideness of the search warrant in as much as there was no point raised with respect to the search warrant doing the crime, although it have been obtained.
Rebuttal of Emanuel Redfield
Mr. Emanuel Redfield: I have a few more minutes.
I'd like to refer to the fact that this question is not minimal because Exhibits 1 through 42 consisting of about 17,000 books, was seized pursuant to a warrant and they were admitted in evidence only on condition that the warrant and the officer seizing the books would be produced, and I do not think that the issue was waived in anyway by the fact that the owner of the warehouse consented that they'd be taken out.
You had a case here -- the only part of this here where a man's wife permitted the officers to take the things out and the court held that this was not a waiver.
Justice John M. Harlan: That what?
Mr. Emanuel Redfield: That it was not a waiver of his right under the Fourth Amendment, that the wife could not waive his rights.
Justice John M. Harlan: (Inaudible)
Mr. Emanuel Redfield: In the -- the only part of this here, the Texas case --
Justice William J. Brennan: You're thinking of Henry and Mississippi, but we didn't --
Mr. Emanuel Redfield: No, not Henry and Mississippi -- you walked off with my brief -- it was in Stanford against Texas, decided January 18, where the seizure was with the permission of the wife of the accused.