REDRUP v. NEW YORK

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Argument of John B. Browning

Chief Justice Earl Warren: Number 16, William L. Austin, petitioner versus Kentucky.

Mr. John B. Browning: Chief Justice --

Chief Justice Earl Warren: Mr. Browning.

Mr. John B. Browning: -- may it please the Court.

As I closed yesterday, I was touching upon a question asked by Mr. Justice Harlan concerning the exclusion of certain material offered at defendant's trial in McCracken Circuit Court in this case.

I was making the point that the exhibits, which were not permitted to be placed in evidence by the trial judge, were not similar to the two magazines Spree and High Heels upon which this prosecution was based.

There were first six paperback books.

They were recognized literary works although containing, of course, questionable passages.

One of them was Henry Miller's work Tropic of Capricorn.

These books are certainly not similar in any degree to the two girlie magazines for which Mr. Austin was being prosecuted.

They were literary works.

The girlie magazines have no literary value whatever.

They were entirely printed materials whereas the girlie magazines had most of their prurient interest appeal based on photographs of nude and semi-nude females.

As to the material and the public library, it cannot possibly be argued that because the nude form is accepted in the museum of modern art and in series of photographic issues and they invoked some great sculpture that we must therefore accept the same exposure of the nude female form in the girlie magazines in the style and format in which the form is displayed in those magazines.

Justice John M. Harlan: But what evidence you're going to need in the trial court from evidence to community standards?

Mr. John B. Browning: Affirmatively, the evidence which was permitted to go to the jury was the testimony, I think it's Dr. Lowry, who was a professor of Murray State College.

He was put on the stand and he was permitted to answer terrible questions, one of which, Would you say that these magazines appeal to the prurient interest and he answered that no.

And he was asked if the magazines in his expert opinion were such as would create a morbid interest or prurient interest in nudity or sex in the average person and this was objected to but he was permitted to answer and he said, no, quite the contrary.

They would not stimulate prurient interest in anyone.

It would not appeal to the average of normal adult.

Justice Hugo L. Black: What was his special qualification in the test?

Mr. John B. Browning: Dr. Lowry was Mr. Austin, the defendant's witness, and he qualified first by saying that he talked the social sciences and that he was acquainted with the community standards and he had kept up with --

Justice Hugo L. Black: Are you talking about the standards in Paducah or the standards in the county in which Paducah was located?

Mr. John B. Browning: I think that in this case that we're concerned with today, actually, the standards were considered to be national.

The trial court instructed the jury on a national standard.

Justice Hugo L. Black: On a national standard?

Mr. John B. Browning: This is what the trial court instructed the jury concerned.

Justice Hugo L. Black: And what was this man's special expertise that made him qualified to say what effect he would have on an individual?

Mr. John B. Browning: I believe that he said that he was familiar with community standards and --

Justice Hugo L. Black: He was testifying what effect it would have on people?

Mr. John B. Browning: Yes, he is the head of the Department of Social Science and a professor at Murray and -- well, one might certainly question whether he was properly qualified as an expert here but I'm saying that the Commonwealth, let this go in anyway.

In other words, he was permitted to testify and he was permitted to give evidence to the effect that the magazines, in his expert opinion, were not obscene.

Justice Hugo L. Black: It would not have any effect to arouse of prurient instinct?

Mr. John B. Browning: So he said, he said, quite the contrary.

He was also --

Justice Hugo L. Black: (Voice Overlap) would not.

What was his special expertise on that story?

Mr. John B. Browning: I do not know at the moment.

He was the defendant's witness not ours.

And his only qualification evidently was that he have had a PH. degree and that he --

Justice Hugo L. Black: How old was he?

Mr. John B. Browning: I do not know well then.

Can you tell me, Mr. Fleishman?

I think that he had been a professor there at Murray for a great number of years, possibly 40 years which would put him about 60 years old.

If I might proceed with this, the expert was also asked if these magazines in any way exceeded or went beyond the customary limits of candor in the community.

He was permitted to answer this and he said, my answer to that would be no, they do not go as far as some as, thus far as some, which are generally accepted.

And this evidence went to the jury.

The defendant himself on the stand --

Justice Hugo L. Black: Do you know whether he was a paid expert or not?

Mr. John B. Browning: I don't know whether he was compensated for this appearance or not.

But, I'm simply pointing out in answer to Mr. Justice Harlan's inquiry that there was affirmative evidence permitted to be introduced in this case to the effect that this magazines did not exceed community standards; that in the opinion of the so-called experts --

Justice Hugo L. Black: You mean national community?

Mr. John B. Browning: Yes, sir, that in the opinion of a so-called expert, they were not obscene, did not appeal to the prurient interest.

The defendant was permitted to testify that he had sold this same type of magazine for many years.

And he was then asked and there has never been an objection as far as the community is concerned.

Well, unfortunately, the defendant was not able to answer that categorically, no.

He said merely there has never been an objection that we didn't observe and correct and adjust.

In other words, he's been selling this same type of magazine but there had been objections previously.

And finally, since he brought it up, it was brought out in 1960, about three years before this particular sale.

The city commissioners of the City of Paducah had come to him and objected to this type of magazine -- that is the classic girlie magazines that he was distributing.

And as a result of this complaint at that time, he did was to get all the girlie magazines from a retail store located near a school.

This was not yet Read More retail newsstand but another retail store that he was supplying in his capacity as a wholesale news distributor.

So, he was asked that question, haven't you been selling that same type of magazine for years?

And he said, yes, I've been selling the same thing for years.

Then they went ahead with it and I said I'm without objection.

This was to show that this type of magazine had been generally accepted in the community.

Unfortunately, he could not answer that by saying there had never been an objection.

As a matter of fact, he had to say that there had been an objection.

So this in itself shows that this type of magazine had not been accepted by the community.

Justice Hugo L. Black: You mean in that community in Paducah around where this drugstore is located.

Mr. John B. Browning: Well, in the area in which Mr. Austin did business, you must keep in mind that he was a wholesale news distributor.

He had five wholesale outlets.

He said in his own testimony that he supplied perhaps 300 different towns.

And I think the questions were the sale of this material in the area in which he operated, if I'm not mistaken.

I might have to agree with you that perhaps the thrust of this was really in this Paducah area because certainly that's where his Read More newsstand was located.

That's where he had his retail store.

That's where the citizens came in and bought the magazines.

But I think that it was not isolated to Paducah because this gentleman did quite a large business.

He supplied 300 towns.

He had three wholesale outlets in Tennessee, one in Carbondale, Illinois, and this one in Paducah.

Justice Byron R. White: What instructions (Inaudible)?

Mr. John B. Browning: The instruction given by the trial court to the jury seems to have been on the basis of the country as a whole.

This is instruction no. 5 page 110 of your record.

The term "contemporary community standard" as used in these instructions are not the standard of a particular individual group, of individuals, or locality.

But it is the standard of the community, the contemporary society of this country at large or as a whole.

So I submit to you that by instruction no. 5 given the jury, the standard used by the trial court was the contemporary society of this country at large or as a whole.

Justice Hugo L. Black: If the standard that he gave then is the corporate standard which been a local community standard, the benefit of would be entitled to a new trial, wouldn't he?

Mr. John B. Browning: If the proper standard really should be the local standard, I should thank that the defendant would be favored by an instruction such as this.

Justice Hugo L. Black: Why?

Mr. John B. Browning: Because it would permit the defendant to escape the penalty if the jury should surmise that although this material is not accepted by our local people here in Paducah, nevertheless, will have to let him go because it could be accepted in the country as a whole.

Justice Hugo L. Black: You are saying that the court charged the standard to be control as a national standard that he wouldn't be hurt by having him (Inaudible) even if the standard, correct standard was a local.

Mr. John B. Browning: I think it would benefit the defendant because if the standard --

Justice Hugo L. Black: That will be kind of a harmless error?

Mr. John B. Browning: I would, well, I would if it was an error and I don't concede that.

I think it would be a harmless error because if the standards were confined to the locality, then this jury would say we know what it is in Paducah and we don't like it.

But if the standards, if they were told of the standards with the country as a whole, in other words, it's not what you think in Paducah but you have t consider what it is in New York and California, then the jurors might well think well of a law.

Although we don't like it here, we'll have to let him go because it's accepted in the country as a whole.

In other words, it would create additional doubt in the minds of the jury, which would benefit the defendant, that make it more difficult to convict him.

Justice John M. Harlan: That will go the other way?

Justice Hugo L. Black: (Inaudible)

Mr. John B. Browning: This was my understanding.

I thought the ground of certiorari was limited to these particular questions.

Justice Hugo L. Black: They didn't make it on the jury?

Well, do you think we could --

Mr. John B. Browning: I'm not trying to raise that actually.

Justice Hugo L. Black: Do you think we could decide the case, that we are satisfied that there was a gross flagrant error which defies a man of a fair trial which decided on a limited basis?

Mr. John B. Browning: You have already acted.

This Court has -- to limit certiorari.

Justice Hugo L. Black: We haven't found any acts on the series of cases here.

Mr. John B. Browning: I see no gross flagrant error in this case.

Justice Hugo L. Black: Well I understand that.

Suppose it was?

Mr. John B. Browning: Well, I think that would be something that the Court would have to resolve for itself.

Are you asking me what I would do if I were sitting on a court?

Justice Hugo L. Black: Well, that might be [Laughter] (Inaudible)?

Mr. John B. Browning: Well, I think that position is well-taken and I was just about to say it myself.

I didn't expect the argument on two or three points which have been raised here and they were not adequately briefed and perhaps I was not fully prepared.

But I think that you are perfectly correct, Mr. Justice Clark that if certiorari is to be extended to all these other matters then we ought to have time to argue it anyway, briefly.

Justice Hugo L. Black: Well, I was asking you questions so you can argue it now.

Mr. John B. Browning: I would like a little time to prepare a better argument perhaps, Mr. Justice Black and then I'll do my best to answer it.

I believe my time is up.

Thank you.

Chief Justice Earl Warren: Mr. Fleishman.

Argument of Stanley Fleishman

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

I would like first to address myself to matter raised by Mr. Justice Fortas and that was whether or not the instruction given to the jury that they must find beyond reasonable doubt that the defendant knew the contents and the character of the material was such that the jury knew that they had to find, as the state conceived they had to affirm that he knew the material was in fact obscene.

The plain answer is, we respectfully submit that the jury could not have so understood it.

And I call attention to page 23 of the record and there, the witness was Reverend Simpson.

He was asked about two magazines not the two magazines involved in this case but two other girlie magazines that were shown to Mr. Austin at the time of his meeting with the ministerial association.

Objection was made to the showing of these other magazines on the ground that they had nothing to do with the case.

And the Court, that I will let the jury consider it for the purpose of whether or not he had knowledge of the class or character.

It's plain, therefore, that what was meant by "character" was, that Mr. Austin knew that he had girlie magazines and only that.

Not that he knew the contents of the two specific magazines involved and surely not that he knew that the two specific magazines involved were in fact obscene.

Now, in light of the concession by the respondent that the state did have the burden of proving that the defendant knew the material wasn't in fact obscene, in light of the ambiguity of the instruction given where it was never stated to the jury that they had to find that he knew the magazine was obscene, then surely the defendant requested instruction that he should be found not guilty.

If the jury found that he in good faith believe that to be not obscene, should have been given.

And we submit that such an instruction must be given in the light of the First Amendment in every case because of the very nature of these obscenity proceedings where the jury is really all to, ready to convict, without sufficient evidence as of the case right here.

The prosecute -- the respondent says that the defendants, the -- that the, respondent had the burden of proving beyond reasonable doubt that the defendant, the petitioner here knew the contents of the magazine and knew it to be obscene and there is enough evidence in this case, to support either of them and the jury has no hesitance in returning its verdict of guilty.

I believe what the Court pointed out in the case of Unites States against Cloud that there is a great danger in this field because of the strong emotions that aroused in jurors for a jury to convict not on evidence but on prejudice.

I would like to suggest one word of the presumptions if I may, Mr. --

Justice Abe Fortas: (Inaudible)

Mr. Stanley Fleishman: Thank you.

The respondent has indicated that the presumption that is found in 436 subdivision 4 was not used in this case.

But that's not so.

The fact of the matter is, that since there was no evidence that the defendant knew the material was obscene, the only way the case could have been submitted to the jury was to utilize the presumption that a person who sold magazines, found by a jury to be obscene, may meant that the respondent knew in fact that the publications were obscene.

Moreover, it caused the petitioner to take the stand in order to rebut the presumption.

The fact that it was meaningful in this case is found on, in the record of page 112 where the attorney for the petitioner, right after the conviction, was complaining.

In his motion for a dismissal, he points out that that statute under which the defendant was prosecuted is unconstitutional, is violating the Fourteenth Amendment, because it released the Commonwealth of the duty to prove knowledge on the part of the defendant of the fact of the obscenity of the magazines as obscene they were.

Justice Abe Fortas: Why would that make it unconstitutional?

Mr. Stanley Fleishman: Why would that make it unconstitutional?

Because there was unreasonable and arbitrary presumption from the sale of the magazine.

It was presumed that what the jury found the magazine to be obscene, the presumption was that the man who sold the magazine knew it to be obscene also without any other proof at all.

And that is totally arbitrary and it's - -

Justice Hugo L. Black: Is it your argument that the state could not constitutionally make it a violation to sell obscene magazines even though the owner was unfamiliar with the obscenity?

Mr. Stanley Fleishman: In the case Smith against California of this Court held, I believe, that that would be a violation of the First Amendment, to make a bookseller liable merely for selling a book unless you added to it a guilty knowledge which Smith versus California required and we --

Justice Hugo L. Black: In other words, that it could not be, the state could not constitutionally make procession of that time?

Mr. Stanley Fleishman: I believe that's true.

I believe this is what Mr. Justice Stewart said in a concurring opinion of Mapp against Ohio where the Ohio statute was involved and plainly would be a violation of the First Amendment to say to a prison that he could not even possess.

Justice Hugo L. Black: What about making liquor, possession of liquor a violation of the law?

Mr. Stanley Fleishman: We had a constitutional amendment that raised some problems there but the difference, of course, between liquor and matter which is within the protection of the First Amendment is a difference of, the greatest important, in which this Court of course has noticed.

For example, in the Marcus case, it was pointed out, as it was pointed out in Smith, that there are many rules of law that you can have in other areas which simply would not be tolerable in the area where the effect of it is to limit freedom of speech and freedom of press.

Here, what happens if you do away with the scienter requirement or the mens rea or the two, as we see it, is to make a bookseller a censor.

Because of his timidity, because of his fear, he simply is not going to circulate the press and all of us will be the losers.

Justice Hugo L. Black: But the premise -- but the premise is as I understand it that the obscene literature is not protected by the First Amendment.

Mr. Stanley Fleishman: That is true, Your Honor.

But in trying to suppress obscene literature, unless the bookseller has some breathing space, he has some security he is not going to circulate constitutionally protected speech either.

He is not going to circulate material which he believes is not obscene and which in fact is not obscene but because of fear, he simply will stay clear of the whole area whenever a private group comes to a bookseller and says, I don't like it whether that be religious group or any other group.

Out of fear, he is going to have to withdraw it and there isn't a reason in the world why he shouldn't be under the same precious ultimately for distributing political or religious matter too.

Today, we are talking about sex speech which is unpopular.

But the rule of law which says that a bookseller can be made a criminal because he distributes works that somebody doesn't like and that he can be punished upward inevitably has a very high potential for suppressing speech.

And unless we give the bookseller the kind of protection that has been talked about often in this Court, that a bookseller brought up on a criminal prosecution, is ring the bell with all of these great protections, unless that be given some meaning and effect, we're going to have a (Inaudible) which we haven't seen since Salem because the prosecutors today, under the pressure of private groups, are really running rampant and booksellers today are frightened and something has to be done.

And pretty soon, to give them the kind of protection so that they will be able to stand up to the pressure, otherwise, as I say, there will be a kind of erosion of the First Amendment that we could not tolerate.

Justice Hugo L. Black: Your argument is that the Government must prove, the prosecution must prove a person has sold a magazine, had read it, knew in some way that it was obscene or else he could not be convicted?

Mr. Stanley Fleishman: It's our argument that unless the defend -- a bookseller, who sells a magazine knows it's obscene, he cannot be found guilty.

Justice Hugo L. Black: But suppose he just didn't read it?

Mr. Stanley Fleishman: If he didn't read it, then I would say that on the most circumstances, he could not be found guilty.

I think there might be a situation --

Justice Hugo L. Black: So you should require the bookseller to read all the literature they have in their bookstore.

Mr. Stanley Fleishman: No, what I --

Justice Hugo L. Black: He could not be convicted for selling obscene literature.

Mr. Stanley Fleishman: No, what I had in mind, Mr. Justice Black was a situation, for example where there had been a civil proceeding, for example, and which a state have had an adjudication with regard to a book and found that the book is obscene and then, a bookseller is notified of the adjudication.

If he then sells the book, knowing that there has been an adjudication finding it to be obscene, then he has the requisite guilty knowledge or he might in the Constitution.

Justice Hugo L. Black: And you always get to wait until they found out about it.

Mr. Stanley Fleishman: I would say that that --

Justice Hugo L. Black: I'm not talking as an advocate of censorship but I'm just asking you the question (Voice Overlap).

Mr. Stanley Fleishman: I understand that, Mr. Justice Black.

Our argument is that, in the ordinary case, there may be unusual ones, but in the ordinary case, unless a bookseller knows it, either by way of some prior adjudication or he may -- there may be admission which he says, "I read the book and I think that it is obscene."

But in the ordinary case such as the case we have here, what do we have but a man who handles books and magazines?

The magazines, I respectfully submit, simply as not obscene under decision of this and virtually every appellate court.

Nevertheless, he is found guilty of it had he read the magazines even he still in my judgment would have to be found by a jury to have known it to be obscene before there could be a proper conviction so that --

Justice Hugo L. Black: And your argument is that, make it difficult, make it difficult but has censorship?

Mr. Stanley Fleishman: My argument Mr. Justice Black is this.

I think my brief has made it plain that there ought not to be --

Justice Hugo L. Black: I understand it.

Mr. Stanley Fleishman: -- censorship.

But if we're going to have censorship, at least give the bookseller the protection which has been promised to him.

Justice Hugo L. Black: If we're going to have it, why shouldn't he have it?

Mr. Stanley Fleishman: If we're going to have it, we should make it as limited as possible.

I don't subscribe to the notion that an evil, once it's there, we may as well have it in its worse form.

It's bad enough to have a little evil without having a program going to foot.

The simple fact of the matter is --

Justice Hugo L. Black: How is there any stopping shown of just leaving it always to the community standard right if the thing occurred and then let them decide what books they will have, what magazines they'll have, which one is they won't?

Mr. Stanley Fleishman: Well, if we got --

Justice Hugo L. Black: What is the Court short order that except to say that obscenity is protected by the First Amendment (Voice Overlap)?

Mr. Stanley Fleishman: Well we have two -- we have two problems, Mr. Justice Black.

The first one is the one you're raising in terms of censorship.

And if we're going to have that I think you're right that in a long run of expense.

It's the nature of censorship to just grow and grow and grow.

On the other hand, we have a problem of due process and an individual, a person who would perform a usual function of society, a bookseller, I'm addressing myself now to the due process argument as apart from the First Amendment argument although it interlocks, that at least if we're going to have book, if we're going to have book censorship don't make criminals out of the booksellers at the same time.

If we're going to have censorship, maybe what, Your Honor, suggested in the Ginzburg case is to set up a bureau, set up a censor and say this is what we can do and this is what we can't do and let's be open about it that we're engaging in censorship in United States of America today, if that's what we're going to do.

What I'm arguing for, though, is that the bookseller, the retailer, the wholesaler and the publisher shouldn't be made criminals in the process for doing an act which they couldn't possibly know as a crime at the time they were doing it.

Justice Hugo L. Black: But wouldn't just be of any of the point of voilate, the chance to do it which I didn't read it, I don't know anything about it.

Mr. Stanley Fleishman: Not if you have an in rem proceeding in which there is a censor or adjudication of some kind where the state comes in and says, "This is what you cannot sell."

Justice Hugo L. Black: You're suggesting that there should be some kind of a system whereby no bookseller should be convicted unless the stated book has been adjudicated to be obscene?

Mr. Stanley Fleishman: I'm saying that that is a certainly preferable to the procedure we have now.

Justice Hugo L. Black: Okay (Inaudible).

Mr. Stanley Fleishman: Yes.

I want to make it plain that --

Justice John M. Harlan: (Inaudible)

Mr. Stanley Fleishman: Let me just in passing say that I find that intolerable really but the lesser of two evils, I find the present criminal situation.

There are two grounds where as the Arkansas type situation is bad on only one ground and a very important one.

It's bad because it brings about censorship and I think censorship is bad.

These criminal prosecutions are doubly bad.

Justice John M. Harlan: There were (Inaudible).

Mr. Stanley Fleishman: On that premise, I believe that the Arkansas type situation is more tolerable but not good.

Justice Hugo L. Black: Mr. Fleishman, can I ask you --

Mr. Stanley Fleishman: Yes, sir.

Justice Hugo L. Black: You are suggesting (Inaudible)

Mr. Stanley Fleishman: On the clipping, I'm not positive, it's certainly was done on the orders of the petitioner.

And, I believe that it was the petitioner who physically took the girlie magazines that were in the Read More Store and placed them in a rack behind the counter after he have had the meeting of the Ministers Association.

I'd like to make it plain though that in that regard that these were, these are not under the counter.

Sometimes, it's thought as under the counter.

They were on rocks, in view but what the effect of this was that a person couldn't go there and thumb through it.

He had to ask some specific magazine by title.

As Mrs. Wolfen did, she came and she said, I would like four magazines and she gave the names of the magazines she wanted.

Two of them were out of stock, two of them she purchased.

But the answer to your two questions is, certainly the petitioner knew that he had girlie magazines.

There is no question about that.

Justice Hugo L. Black: How will you put that on the magazine?

Mr. Stanley Fleishman: I believe there were 30 that were place there subsequent to the meeting he had with the Ministers.

But I'd like to say a word about that, Mr. Justice Black because although we talk about only 25 or only 30 magazines, in the Marcus case where the police were after what they thought was obscene material, there were 280 publications that when the police marched in there, they picked up 280 different titles in Bantam where you had the Road Island Morality Commission, they had a list of 106.

We are not talking about 25 or 30 magazines.

The minute the censor get its foot on the door, it's 2 today and it's 75 tomorrow and it's 300 before the end of the month.

So that in the end, if the bookseller has to start examining the material that the censor whether he be a private or non-private persons says, watch out, we're talking about examining virtually everything that it's in the bookstore.

And if I may, Mr. Justice Black, with regard to the number of titles that were in the store, the 11,000 which were allotted to for Kentucky, I think the record says that they were there.

It wasn't that many sale, 11,000 each month. They have some books that are there for a long period of time --

Justice Hugo L. Black: (Inaudible)

Mr. Stanley Fleishman: Yes.

And in the very nature of things, the way the industry works, each month the national distributor send them a whole new batch of books and magazines and the old ones go out for which creditors given to the retailers.

So there is a great deal of movement, back and forth, but there aren't that many sales unfortunately in the --

Chief Justice Earl Warren: Mr. Fleishman, is it your position that the Government should have neither the state nor the federal government should have any part to restrict what the people publish?

Mr. Stanley Fleishman: I would say that that is the rule that I would favor.

I recognize, of course, that's not the rule of this Court and I'm accepting as Mr. Justice Harlan properly admonished me to accept the fact that we do have an obscenity law.

But I do think that the --

Chief Justice Earl Warren: Oh!

I know but you talk always of censorship and I just wonder if you consider any limitation of any kind that government puts on what is published to be censorship.

Mr. Stanley Fleishman: Yes, that is censorship, surely.

A criminal conviction such as we had here of the petitioner is censorship and as real they sensed, as if we had the kind of restraint that was true in Kingsley or in the Arkansas court.

I think that Mr. Justice Frankfurt have pointed out quite correctly in the Kingsley Book case that the terror that a bookseller feels for -- out of fear of a criminal prosecution can work a suppression of material, which is really censorship, more lawful than a prior restraint canon enlarged.

That's in particularly where the rules are very lax where the standards are of obscenity are unknown and where a defendant, a publisher or a bookseller ends up without any real defense.

The kind of trial that Mr. Austin had here is no different really from the kind of trial you will have before a Censorship Board.

What is it?

You take that magazine, you throw them before people and the prosecutor says, "You don't like them, do you.

You don't want these in your home, do you?

You wouldn't want your children to read it!?

That's the kind of argument you make to a Censorship Board and it's a censorship in practice and in operation and evidence effect.

Chief Justice Earl Warren: We sometimes get caught on the horns of a dilemma and because that might happen, do you -- is it your position that the state has no right of any kind to protect decency by some limitations on what is published even though it might be vile and (Inaudible) to the extreme hardcore pornography, if you want to use that term, but they must let (Inaudible).

So anything that they wanted or they want us out to children in the public school or any place else.

Mr. Stanley Fleishman: No, that is not my position --

Chief Justice Earl Warren: How do you limit it?

That's what I'd like to get asked.

Mr. Stanley Fleishman: I would like to state this first that if we're talking about adults and the rights of adults to read, either the most obnoxious sexual material or the most obnoxious political material or the most obnoxious religious material, I believe that in a free society that the adult must be permitted to read it.

And if he's going to be permitted to read it, he must be able to obtain it and that would require the rule, as I would see it that adults should have the permission to read and to purchase material of any kind.

Now, the suggestion made by Mr. Justice Brennan in Jacobellis is a suggestion which I think makes sense and constitutionally, I believe stands on a much stronger footing.

And that is, with regard to minors, with regard to persons who are unable to make judgments.

There is room, I think, for some kind of an accommodation with regard to keeping out of the hands of minors in something like the same passion that liquor or cigarettes are kept from minors.

But when we're talking about adults, they are said, Mr. Justice Black was correct in terms of how old was the man, the witness for the petitioner who looked at the material and he was saying that it didn't appeal to prurient interest and the like.

I think that most adults, all adults, if we're talking about the average normal adult is totally able to handle sexual material just as surely as he was able to handle terrible political material.

It's such an anomaly to say that we can trust adults in all these other areas.

But somehow, he goes to pieces when he sees something that is very strong.

However, you want to form it and talk about it in the sexual sense.

If we come down to the path that's really just like we get used to, I saw on NBC today on television, morning.

But if we on a news, much more fright, much more fright than any of the news in these two magazines.

They were completely revealed and there wasn't any feeling.

I mean, we get used to certain things one way or the other.

Ten years ago, we would have thought that the American people couldn't possibly tolerate it.

Now, in the morning show on today on NBC in Washington, it's there and I think that we see, for example, that the American people has been able to read Tropic of Cancer, Tropic of Capricorn without the words for it.

Justice John M. Harlan: What's the name of that program?

Mr. Stanley Fleishman: It was today?

Justice John M. Harlan: What?

Mr. Stanley Fleishman: It's called today it was on -- before I went to put this morning and it was, I think it we would be very interesting to have a rerun of it and compare it.

Compare it with the pictures here and I can only assure you that the nudes there are far more revealing, far more seductive than any of the pictures in these magazines.

What are we then talking about in terms of all the need to censor?

People can read these things and look at it without our society falling of - -

Chief Justice Earl Warren: May I ask you this?

What constitutional section do you rely on to separate what can be sold to adults and what can be sold to minors?

Mr. Stanley Fleishman: I believe the case of Prince against New Hampshire, if my memory serves me.

Chief Justice Earl Warren: I beg your pardon.

Mr. Stanley Fleishman: I believe the case of Prince against New Hampshire, if my memory serves right has drawn a constitutional line between saying that children for example may not be as free to go on the streets and circulate petitions as adults would be.

That is a limitation upon an adult would have violated the Constitution whereas, constitutionally speaking, we said that it would be proper to have that limitation with regard to youth.

Chief Justice Earl Warren: But without in the context of this case, would that be the same principle that's involved here?

Mr. Stanley Fleishman: Yes, I, that I would be saying so.

Yes, that we could say that material which an adult has the right to read and therefore our society cannot punish a person for making it available might nevertheless be punishable if it is sold to a child, and particularly if it is sold to a child for the purpose of engaging in some improper conduct.

But I think that the limitation might be fairly drawn as Mr. Justice Brennan had indicated in Jacobellis with a statute which says, you cannot sell or make available to youth certain types of material which material is otherwise generally available to the adult population.

Chief Justice Earl Warren: Well, I don't disagree with that.

I'm just asking what constitutional -- what section of the Constitution separates one from the other?

Can you give me that without you saying Prince case, does it?

Mr. Stanley Fleishman: I could not do it anymore fairly than in the Prince case it was the same kind of conduct.

Chief Justice Earl Warren: No, but what section of the Constitution (Voice overlap).

Mr. Stanley Fleishman: No, I can't -- I'm sorry, Mr. Chief Justice, I cannot give you the answer of that.

Justice Abe Fortas: May I, may I put it this way.

Permit me.

If the position is of the First Amendment prohibits the sort of restraint with respect to adults, it started with that proposition, how do you reach with both hands seems to be a qualification of it and say that the First Amendment does not prohibit the restraint with respect to children?

Mr. Stanley Fleishman: I think that is a portion of the judgment that a, in a free society we make an assumption and that assumption is, that adults for example, can do things that youth cannot it.

If something like, I would suspect that the notion of voting, you arbitrarily say that at certain age, a person is unable to vote and therefore, he is not entitled to the franchise.

But I would say that it would be.

If you take the position that there can be no limitation of any kind, then we would have to say the same is true with regard to children.

I am taking a position, some play short of that in terms of saying that the limitation has to be as narrow as the requirements that we feel have to be filled are.

If we say there is a problem and the problem is children, then a statute, in order to be valid ought to be as narrow as the need so that we say, using the principle that when we invade the free speech area, we have to use the narrowest rule that we can use.

If we take that approach, I would say this is a narrower rule than one would say that adults would have to be have a material beyond their reach also.

And therefore, it is a narrower rule, it's the narrowest rule that one can draw and therefore it is the one that ought to be accepted.

If we agree that the problem is youth then that adult at least are able to handle it then we should have a statue which says --

Justice John M. Harlan: (Inaudible)

Mr. Stanley Fleishman: Well, there has been some - -

Justice John M. Harlan: (Inaudible)

Mr. Stanley Fleishman: There has been, there has been ---

Justice John M. Harlan: Right?

Mr. Stanley Fleishman: Your Honor, it's quite right.

However, on the same rule I suppose that sometimes after considering the case, this Court has determined that certiorari has been improvidently granted.

This Court may be of the view that certiorari was improvidently restricted here and perhaps --

Justice Hugo L. Black: Well, the Court has, the Court has done that?

Mr. Stanley Fleishman: I think that --

Justice Hugo L. Black: Many of them?

Mr. Stanley Fleishman: I think that in this case, it was due respect.

I think that the issues ought to be more fully explored.

The instructions were plainly wrong.

The determination of obscenity was plainly wrong.

And I think that the discussion we're having here now is perhaps whether or not certiorari on broader terms ought not to be granted with full argument and opportunity to respond into, address himself to the full issues.

Chief Justice Earl Warren: Very well.

Mr. Stanley Fleishman: Thank you.

Print this transcript Transcript: 

Argument of Emanuel Redfield

Chief Justice Earl Warren: Number 50, Gent et al., appellants, versus Arkansas.

Mr. Emanuel Redfield: Mr. Chief Justice, members of the Court.

I represent --

Chief Justice Earl Warren: Mr. Redfield, you may proceed.

Mr. Emanuel Redfield: I represent seven magazines whose names appear in the title of this action, as well as their publishers.

All of these magazines were published outside of the State of Arkansas and all the publishers are non-residence of Arkansas.

Six of them are from New York and one is from Connecticut.

Yet, they have been subjected to the sovereign power of the State of Arkansas, for that -- for the courts of that state to determine whether or not these publications may be sent through the mails and otherwise across state lines into the State of Arkansas.

An action was brought in the county of Jefferson in Arkansas, in a little town with 20,000 population by the name of Pine Bluff.

And the court adjudicated these magazines to be obscene although they have national circulation and are accepted as readily as the Playboy Magazine or anything of similar types of magazines in current circulation.

I'm not going into the question whether or not these magazines are obscene because of the limited review in this case.

I'm addressing myself to the statute and the record was made on the statute alone.

The object of the statute as -- has specifically stated among other things, is to catch the nonresident authors and publishers.

They state that in Section 2714 if Your Honors are following me.

The statute provides that the mere sending of the literature across state lines into Arkansas shall be deemed a submission by the sender to the jurisdiction of Arkansas.

And that a statute -- an action may be commenced by the prosecuting attorney of the (Voice Overlap) for adjudication of the obscenity of mailable matter.

And I emphasize the obscenity of mailable matter because I think it will be a bothersome phrase because to me it seems contradictory.

The statute also provide with service on the nonresident office and publishing by mail.

And I should emphasize too that this statute as distinct from the one you had here nine years ago in the Kingsley Books case does not fix a period for trial immediately after joined thereof issue, nor does it fix a period for the determination of the issue as we had continuably books.

Justice William J. Brennan: And the books will be banned in Jefferson County?

Mr. Emanuel Redfield: No, sir.

Justice William J. Brennan: Until adjudication?

Mr. Emanuel Redfield: No, sir, it does not.

Does not provide for non -- was anything like that determined.

And the -- a judgment may be rendered declaring the obscenity of the publication and enjoined any act condemn by the statute and it may direct a respondent to dispose of obscene mailable matter and may direct the sheriff to seize and destroy all such obscene mailable matter in control of the respondents wherever it may be found.

Justice William J. Brennan: That's if the respondent doesn't dispose of it himself?

Mr. Emanuel Redfield: Yes, sir.

And contempt proceedings have provided together with the extradition of the publisher in the event should fail to abide by the decree and should he fail to do so, he may be subjected also to a felony prosecution with one year in jail and a $2000 fine.

Now, as I said before, none of my clients are residents of Arkansas.

In order to show a cause was issued in February of '64, they appeared with an advisory jury trial hand and the jury advised the court that these books were obscene whereupon the court entered a decree declaring their obscenity and enjoin the appellants from sending or causing to be sent into Jefferson County the above magazines.

He does not say which issues.

He just talks about the above magazines.

That all said magazines shall be destroyed within ten days by them and the court retained jurisdiction.

He determined whether or not subsequent issues of the magazines may be obscene.

Now, this is not the Kingsley Book case which I argued here nine years ago.

It has certain features that are similar but it does not wind itself at all within the context of the Kingsley opinion.

And I should add too as I emphasized before that although this Court recently in the Freeman against Maryland case sort of found favor was the Kingsley statute in a sort of a model.

In Kingsley, there was a provision for a trial one day after the issue was joined.

And the decision had to be rendered within two days.

And I suppose that is why the statute appealed to the court in the Freedman case, as we've -- some of the justices.

I -- I have not been reconciled to the Kingsley decision as a protection of the right of speech that is guaranteed Fourteenth and First Amendments.

But I know from -- I hope I know that I'm not quixotic enough to ask this Court to overrule it in view of what happen in the Freedman case.

But, as I cannot help observing that one of the features that you might have heard -- one of the counsel who might have been on my side say -- that he say that this sort of a procedure because it lends a certain amount of security to the bookseller and perhaps it does.

I'm pretty sure he's mistaken because I have seen cases, at least one case I've participated in where the -- moving picture censor, order of the State of New York granted a license for the reduction -- for the showing of a motion picture and nevertheless, the police department in the City of New York threaten the exhibitor because he claimed it was obscene although the censorship board held it to be non-obscene.

So I'm not sure that there is any security in this form of a statute.

But some people as I say are always looking for security, I've even found people who find security in jail and they're willing to go to jail for the sake of the comfort they may find there.

But being as it may, there's a great distinction here between Kingsley and the Arkansas statute.

In Kingsley, there was no attempt to control the authors and publishers who were non-residence.

The statute operated against persons in the State of New York and the books that were found in the State of New York.

And here, there is no attempt to conceal the fact that they are trying to reach the out-of-towners.

So it makes the publisher and author in New York subject to the terms of this statute.

Justice Abe Fortas: Mr. Redfield --

Mr. Emanuel Redfield: Yes, sir.

Justice Abe Fortas: From this entire branch of your argument, that is to say the extra territorial effect on the --

Mr. Emanuel Redfield: Yes, sir.

Justice Abe Fortas: -- statute and the order.

I would be grateful if you would explain that if any effect the general appearance of your clients in the proceedings below may have had --

Mr. Emanuel Redfield: I don't think --

Justice Abe Fortas: -- because I understand that they did enter a general appearance --

Mr. Emanuel Redfield: Yes, they've --

Justice Abe Fortas: -- obviously, there is a question as to the waiver?

Mr. Emanuel Redfield: Well, they might have waived it so far as that service has summed it but that doesn't mean that they are waiving the effect and operation of the statute.

They still attack the statute, as I am doing here.

Justice Abe Fortas: I understand that but they have taken on the grounds of -- in part on the grounds of extra territorial effect.

Mr. Emanuel Redfield: Yes, they --

Justice Abe Fortas: Now, you -- it's your position I take it, I don't remember that it was briefed by you at the -- I thought you did brief it.

I think that if -- since your position that the general appearance below, without any reservation or any qualification did not constitute a submission to the jurisdiction of the court for purposes of the application of the statute in the form in which it was applied?

Mr. Emanuel Redfield: No, its not.

Justice Abe Fortas: That it --

Mr. Emanuel Redfield: No, I wouldn't say that one has to do with the other to question one appearing in a court and not forcing another to serve you outside the state or anywhere else but just coming in and still maintaining -- you claim that the statute is unconstitutional because it has this effect upon the out-of-towner.

I don't think it -- I don't think the procedure with respect to the service of the summons has anything to do with the operation of this law.

If this statute would mean that an author or publisher who conducts himself in New York by standards of New York would become amenable to the laws of every other middle Pine Bluff in the United States of which we have a myriad of them.

Now, under the laws of the State of New York, these magazines were perfectly inoffensive.

Gent Magazine for example was a magazine involved in a Richmond County case which the court has noted in several opinions.

And if Gent case was published and distributed in New York under the New York concepts of what is bad or obscene, it would place a publisher or an author in a -- not only unfair but in -- it would burden them completely if he couldn't send them out across state lines without the fear that he was going to be subjected to every little town that decides for itself, what this -- its standards are.

It appeared as a burden on him, of having to engage counsel in every little town that decided to initiate proceedings like this against him.

And moreover, he couldn't meet the standards of every little town in advance.

Justice Abe Fortas: Suppose the -- I beg your pardon.

Supposed a New York publisher sent agents down into Arkansas and those agents open up a newsstand so that this would be the publisher operating directly in Arkansas, selling this.

Now you wouldn't have any doubt as to the jurisdiction of the Arkansas legislature in the courts there would you?

Mr. Emanuel Redfield: Well, if he's operating within Arkansas then he -- he's in the same position as any other resident of Arkansas.

Justice Abe Fortas: And this -- but the theory of this statute that the jurisdiction of Arkansas attaches here because of -- acts done by the publisher within the State of Arkansas.

Mr. Emanuel Redfield: I don't think they are doing that.

They make no claim as to because there wasn't -- no such act here.

Justice Abe Fortas: Well, what (Voice Overlap) --

Mr. Emanuel Redfield: And nor does the statute make any provision for that.

Justice Abe Fortas: Is there anything that the --

Mr. Emanuel Redfield: If the -- the claim is merely that these publications originated outside of Arkansas, they were being shipped toward Arkansas and they were going to stop them.

Justice Abe Fortas: Well, the statute talks in terms of sending across and to be sent or bringing or coursing to be brought into the state --

Mr. Emanuel Redfield: Yes.

Justice Abe Fortas: -- the allegedly offending material.

Is there anything in this record that shows the mechanics, what happened here in this case?

Mr. Emanuel Redfield: No, that's what -- there's nothing in the record at all.

Justice Abe Fortas: So when the publishers appear, made a general appearance below, did they make this point, reserved a point, offer any evidence on the jurisdictional point?

Mr. Emanuel Redfield: No, sir.

There was no -- there's no evidence taken on that.

Justice Abe Fortas: In other words, there was general submission of the jurisdiction in the court?

Mr. Emanuel Redfield: General submission in a sense that they've submitted to the processes of the Court.

Justice Abe Fortas: And there's not (Voice Overlap) --

Mr. Emanuel Redfield: It was to the -- there were no -- submitting to the statute.

Justice Abe Fortas: And no point was made out of the theory -- no point was made to the effect that these publishers are not found or doing visits in the State of Arkansas?

Mr. Emanuel Redfield: No, sir.

There was no such issue at all.

Justice Abe Fortas: And you're bringing that -- making that point here for the first time?

Mr. Emanuel Redfield: Well, it's all part of the same question as to -- I mean, I'm not involving myself with a question that you are raising because I didn't think its part of the case at all.

Justice Abe Fortas: Well, I'm -- and haply it does bother me, I wish it didn't bother me.

Mr. Emanuel Redfield: Well, I don't see why it should bother you because it's an entirely different question from what's involved here.

For example, if in Kingsley Books case, if the local publisher or author was served with summons incorrectly, I don't think that would be an issue as to whether or not the statute is constitutional or not.

He could still come into court and make a general appearance and attack the statute on the ground that it's a form of a restriction on a speech.

Justice Tom C. Clark: (Inaudible)

Mr. Emanuel Redfield: Pardon me sir.

Justice Tom C. Clark: The fact it admit, to quash the process rather than following a general exit?

Mr. Emanuel Redfield: Well, I don't see why they have to.

They could always --

Justice Tom C. Clark: Yes, they didn't benefit the state.

Mr. Emanuel Redfield: They could always -- they could attack the statute even by a general appearance?

Justice Tom C. Clark: Well, --

Mr. Emanuel Redfield: We're not --

Justice Tom C. Clark: I know but (Inaudible) --

Mr. Emanuel Redfield: We're not fighting here the method of service on them.

Justice Tom C. Clark: For awhile you said they didn't make an appearance at all, what could Arkansas do?

Mr. Emanuel Redfield: Arkansas would probably -- would render a decree by default.

Justice Tom C. Clark: Yes.

Now they've (Inaudible) take the books in Arkansas?

The books were in Arkansas?

Mr. Emanuel Redfield: They were in Arkansas, yes sir.

Justice Tom C. Clark: How did they get hold of the books and pick them up a stand or --?

Mr. Emanuel Redfield: Well, they'd insist in here, they just went after the -- went after them by what they call this in rem proceeding to have it determine whether or not the books were obscene or not.

Justice Tom C. Clark: But people in Arkansas may be parties of --

Mr. Emanuel Redfield: But -- yes, there was a book distributor there, people there.

Now, in -- we have to bear in mind something that would seem obvious but could stand repetitions that in the Jacobellis case this Court pointed out that we cannot tolerate the situation whether limits of expressions fixed by state lines only.

And Mr. Justice Harlan, I state of another generation in 1909 in the International Textbook Case, pointed out that even where a correspondent school was required -- a correspondent school of Pennsylvania was required to qualify as a foreign corporation in another state before it could maintain a suit, that Justice Harlan writing for the Court held such a requirement unconstitutional because this was an obstruction to the transmission of intelligence from one state to the other.

And I suppose those sentiments can be brought up to date by other members of the court.

And in the case of Licey v. Haden (ph) where one of the states attempted to prevent the sending of liquor across state lines into that state, this Court held that the sending -- even a sending of liquor was forbidden -- I mean, even the obstruction to the importation of liquor within a state would be condemned.

Yet this Court has held from time -- time and time again that the literature certainly is on a higher level than liquor.

The burden that was placed on the author and publisher here unjustly to nothing but timidity and terrorize them.

And the expense in defending everywhere would be just another added burden to his already harassed job of being a publisher.

Chief Justice Earl Warren: Mr. Jackson.

Argument of Fletcher Jackson

Mr. Fletcher Jackson: Mr. Chief Justice, members of the Court.

The Arkansas statute was enacted in 1961, this was four years after Roth and Kingsley's Books.

The statute was drawn with those two cases in view.

They took the definition verbatim from Roth.

The -- Roth allowed the criminal action.

As to several proceedings, they went from Kingsley's Books and they aid one additional safeguard, there's no injunction pendente lite.

There is no restraint under the statute until there's been judicial determination of obscenity.

In Freedman versus Maryland, you all point out that Kingsley could service a month, this is the way the Arkansas statute is setup.

It's an even -- more safeguards for First Amendment rights than in Kingsley's Books.

There's about 25 other states which have similar statutes where you get a declaratory judgment as to obscenity and then get an injunction.

Some of --

Justice Hugo L. Black: (Inaudible)

Mr. Fletcher Jackson: 25, sir?

Justice Hugo L. Black: 45?

Mr. Fletcher Jackson: Twenty-five.

Twenty-five if our statute follows they would surely follow because our statute doesn't have any provision for any restraint before termination.

Justice Potter Stewart: But are the other statutes all defined obscenity in the same way as the Arkansan statute?

Mr. Fletcher Jackson: That's so and probably they do, most of them, I believe they use blanket word of obscenity, indecency and so forth.

Justice Potter Stewart: Is it then --

Mr. Fletcher Jackson: This --

Justice Potter Stewart: The definition on top page 21 of the appendix to the accounts briefed leaves out entirely the necessary ingredient of totally lacking in regaining social importance to?

Mr. Fletcher Jackson: They could be added in this case.

They could have asked for an instruction to that effect and to add it and they took this.

Justice Potter Stewart: Well, but the statute --

Mr. Fletcher Jackson: Statute does --

Justice Potter Stewart: -- statutory definition which --

Mr. Fletcher Jackson: Even in --

Justice Potter Stewart: -- they're completely deficient in that essential ingredient, isn't it?

Mr. Fletcher Jackson: Isn't that element of lack of social value implied in the Roth definition having you all re-approve Roth, the definition in saying that it includes this.

There was a lack of social --

Justice Potter Stewart: Because I wasn't here when Roth was written and I --

Mr. Fletcher Jackson: Oh, --

Justice Potter Stewart: But I -- and I think -- I'm not sure that I understand all of the opinions of the Court in this area where they have that opinions of the Court but my understanding of one of the opinions in the Massachusetts case last term was that there had to be -- that a -- that in order prosecute or suppress something in the teeth First and Fourteenth Amendments of the United States Constitution.

That something had to have three conjunctive ingredients, not disjunctive.

Mr. Fletcher Jackson: Yes.

Yes, sir.

Justice Potter Stewart: One of which was that it be utterly lacking in any redeeming social importance, so that's just not in the statute at all.

Mr. Fletcher Jackson: No, sir.

But -- neither is the thing about adding defensiveness.

But if ever -- every time you add an element by a decision, the legislature would affirm that to add another sentence into this definition.

The order -- since consistently approved this language here from Roth, even though you do seem to add other elements.

These other elements will have to come in under instructions as for the jury.

There's no way you could -- just keep adding sentences to each time the legislature amends.

Now(Voice Overlap) --

Justice Potter Stewart: As a matter it points to the other states, it might have been a better word just to use the word (Voice Overlap) --

Mr. Fletcher Jackson: Just the word saint.

Justice Potter Stewart: And then that has a continuing -- it's continually redefined in the decisions of this in other courts.

Mr. Fletcher Jackson: That would be one way to --

Justice Potter Stewart: But that's not what your legislature did?

Mr. Fletcher Jackson: No, sir.

But I think that what our legislature did was -- is permissible.

Is to -- definition that you'll continually refer to even though you'll say -- the court says to construe it differently as to include other elements.

Justice Potter Stewart: Well, that's really important, doesn't it?

Mr. Fletcher Jackson: What?

They could -- they construed the word obscene as to in -- as it is here to include the lack of social value and that an offensiveness.

They could be so instructed to the jury if requested.

Justice Potter Stewart: Of course, here there was no (Voice Overlap) --

Mr. Fletcher Jackson: It's not inconsistent --

Justice Potter Stewart: There was no jury here, was it?

Mr. Fletcher Jackson: That it was --

Justice Potter Stewart: That it was an advisory jury --

Mr. Fletcher Jackson: Just advisory jury, yes sir.

Justice Potter Stewart: And how was the advisory jury instructed us to the definition?

Mr. Fletcher Jackson: Yes, sir.

Are the court itself, it -- hears it by itself.

It could be advised as to -- considered the three elements at most coalesce.

Justice Potter Stewart: Well it could if the -- but the statute doesn't require it to.

Mr. Fletcher Jackson: Doesn't require but they could be added into the --

Justice Potter Stewart: Well, they did -- did either the jury or the court do so here?

Mr. Fletcher Jackson: It was never asked to do so.

Justice Potter Stewart: Or did they, either one?

Mr. Fletcher Jackson: No, sir.

Justice Potter Stewart: Were there instructions to this advisory jury?

Mr. Fletcher Jackson: The instructions given were the definition of obscenity -- the appellants here never asked for any instructions as to include the element of -- having an offensive (Voice Overlap) --

Justice Potter Stewart: Were there instructions to the advisory jury?

Mr. Fletcher Jackson: Yes, sir.

Justice Potter Stewart: Where are they in the record, do you remember?

Mr. Fletcher Jackson: They're not in -- did they -- put you from the front of the record?

This -- 1909 in the printed record but there is no instruction as to lack of social value.

Justice Potter Stewart: Okay.

Mr. Fletcher Jackson: What this case -- what came up under the several proceedings of the statutes, we have a twin weapons here.

We have a civil and criminal proceedings and as to our civil proceedings is from the last two cases today this could solve some of this scienter problems.

Because here you have to -- in any criminal prosecution, you're going to have to show knowledge of contents under our statute and you're also going to have to show either that 2907 has turn it down or that it has been judicially determined to be obscene in an Arkansas proceeding.

Plus, they knew it was -- had been so adjudicated.

You've really got some scienter provisions here that are no funds than any other state and protecting First Amendment rights and Fourteenth as -- incorporating the Fourteenth.

This law was carefully drafted in Roth and Kingsley's Books.

They tried to put as many safeguards as they could to bail it.

Basic safeguard is the definition on mailable matter and non-mailable matter.

Justice Abe Fortas: Well, this is kind of a different scienter or mens rea set up here, first, you have a civil proceeding, that's --

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: -- what you have here, isn't it?

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: And in that civil proceeding, as I am dispended as applied to these publications which are mailable and non-mailable.

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: As applied to these publications all that the state had to be -- had to show was that they are both obscene from the Roth test or -- am I right?

Mr. Fletcher Jackson: Yes sir, that's right.

Justice Abe Fortas: And once that was shown, then the judicial determination had been made.

It doesn't have to -- you don't have to show any intent or any pandering or any knowledge of content or knowledge that the magazines were obscene.

Isn't that correct counsel?

Mr. Fletcher Jackson: You -- the start -- the proceedings, the prosecuting attorney would have to have reasonable cause where the statute reads that respondent had knowledge of the contents.

That's set out in Section 5 which talks about, you know, bringing the action.

Justice Abe Fortas: Well, wait a minute.

Let's take a look at that.

Will you give me that exact language?

Only has -- it says that every person whom with knowledge of its current offense --

Mr. Fletcher Jackson: Come to that is the civil action under Section 5, whatever the prosecuting attorney for any county has reasonable cause to believe that any person with knowledge of his current offense --

Justice Abe Fortas: Where is -- where are you, what page?

Mr. Fletcher Jackson: It would -- in the appellant's appendix, it would be on page 22.

Justice Abe Fortas: Before it?

Mr. Fletcher Jackson: It was -- being Section 41-2717 is the first sentence after the title.

Justice Abe Fortas: Well that applies to proceedings after this judicial finding, after the kind of proceeding we have here.

Mr. Fletcher Jackson: No, this is to bring the action, to get the judicial determination.

Justice Abe Fortas: Alright.

Mr. Fletcher Jackson: It's the commencement of the action.

Justice Abe Fortas: Right.

Mr. Fletcher Jackson: And you have knowledge of contents and as far as pandering and so forth, that would probably an element as to -- that could be proved during a civil trial too, as well as in the criminal.

Justice Abe Fortas: Or it could be proven but there's no requirement.

Mr. Fletcher Jackson: No requirement, no sir.

You just --

Justice Abe Fortas: We have to do is (Voice Overlap) --

Mr. Fletcher Jackson: Prove the elements of Roth.

Justice Abe Fortas: All you have to do is to show that the publisher for example of Gent or one of these magazines had knowledge of its contents, correct?

Mr. Fletcher Jackson: It has --

Justice Abe Fortas: I assume that it follows that somebody who publishes a magazine is chargeable with knowledge of its contents, or do you construe the statute as requiring something beyond that?

Mr. Fletcher Jackson: I would assume -- as far as not in the content you wouldn't have any problem as to publisher-distributor.

The problem there is the --

Justice Abe Fortas: Yes.

But we're talking here about publishers.

Mr. Fletcher Jackson: Obviously, yes sir.

Justice Abe Fortas: And so all you have to do is to show that he published some magazine.

Mr. Fletcher Jackson: You have to show that he published -- to bring a civil action to get -- to get a declaration, you'd have to have a prosecutor attorney bring the action.

You'd have to have a reasonable cause to believe that any person with knowledge of its contents is engaging and bringing in of -- or in this -- or in Arkansas publishing and preparing obscene mailable matter.

Justice Abe Fortas: Now, I tell you, you have to show --

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: There was no scienter in there part on the (Voice Overlap) --

Mr. Fletcher Jackson: No, sir.

There's no scienter as far as the -- that was scienter would come in after the determination as far as the knowledge of obscenity of the product itself.

Justice Hugo L. Black: If it's entirely (Inaudible) --

Justice Abe Fortas: Now, wait a minute Mr. Jackson, I'm sorry to take your time but you're going to have to play it easy and help me on this thing.

The -- this proceeding, that we're concerned here was brought and could be brought under the statute just on the basis of a reasonable belief by the prosecuting attorney.

That each of these publishers with knowledge of the contents is --

Mr. Fletcher Jackson: Engaged?

Justice Abe Fortas: -- instrumental in send -- shipping the magazine into the state and that the magazine is obscene, right?

Mr. Fletcher Jackson: That's the way that the action is commenced, I mean --

Justice Abe Fortas: That's the way the action was commenced?

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: And then what results is a judgment as it did in this case requiring that the issues of the magazine be destroyed, impounded, etcetera, right?

Mr. Fletcher Jackson: The fact of the thing is that -- and first, that -- since you have a judicial declaration that the matter is obscene.

Justice Abe Fortas: I understand.

Mr. Fletcher Jackson: Then in addition, you can -- and whereas, it was done here, you can enjoin this Acts (Voice Overlap) --

Justice Abe Fortas: And what was done here was that the magazine -- the issues of the magazine were to be destroyed.

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: Alright.

Now that's phase one, that's what we have here and all of the scienter that's involved here is that publishing magazine, therefore he has knowledge of the contents.

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: And no requirement of men rea either beyond what we've said.

Mr. Fletcher Jackson: Your mens rea would come after the judicial declaration.

Justice Abe Fortas: I understand.

I'm talking to you if it --

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: -- if I may about this phase one which is all we have before us.

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: Only have before us is a proceeding and which says, “No requirement of scienter or mens rea.”

Mr. Fletcher Jackson: Alright.

Justice Abe Fortas: Now somebody violates the order or somebody brings in to the state and let's suppose one of these publishers, despite the order that has been entered in the proceeding before it, sends in to the state some copies of the particular issue of the magazine that has been condemned.

Then he have subject to criminal prosecution, is that right?

Mr. Fletcher Jackson: Yes, sir.

Under the criminal provisions, if he had knowledge of the judicial (Voice Overlap) --

Justice Abe Fortas: But he had knowledge, he was (Voice Overlap) and since he had knowledge and he said, “Nevertheless, the copy of the issue, the magazine into the state.”

Mr. Fletcher Jackson: Yes, sir under Section 4 --

Justice Abe Fortas: Then the prosecuting attorney presumably would proceed under --

Mr. Fletcher Jackson: Section 4, the -- under what the others -- if the others, 41 --

Justice Abe Fortas: 41-2716 --

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: -- is the number here.

Mr. Fletcher Jackson: Yes, sir.

It can proceed under or proceed -- or attempt proceedings.

Justice Abe Fortas: Right.

Now, under that provision, is there any requirement of a specific intent scienter, mens rea in the sense that publisher brought it in with the intent of selling, distributing something knowing it to be obscene and with the purpose of capitalizing on its quality as obscene literature, it's a very rough statement of what a -- well, summed up by -- what I sum up by the phrase specific intent.

Mr. Fletcher Jackson: The --

Justice Abe Fortas: Is there any such requirement here?

Mr. Fletcher Jackson: As I interpret the first section of that, this -- the two-part reveals what position but the first seems deal in selling or dealing or giving a way of obscene matter, it would be in the business, most of it.

Justice Abe Fortas: Well, as a matter of fact, is it correct that under 41-2716, the prosecuting attorney would bring a criminal proceeding against the publisher in the keys that I put to?

All he would have to show is that the publisher has sent the magazine into the state for the purpose of it's -- the magazines being sold and that the magazine, the issue of the magazine was judicially found to be obscene and he's made his case, isn't that right?

Mr. Fletcher Jackson: You got the other element -- you also got the knowledge of can say of the knowledge that it has judicially --

Justice Abe Fortas: Where is that?

Mr. Fletcher Jackson: -- fair to be obscene?

Justice Abe Fortas: Sir?

Mr. Fletcher Jackson: As to knowledge of content, that's in the first sentence of very person who had knowledge of its contents sent or causes to send in to Arkansas --

Justice Abe Fortas: I think we agreed on that but --

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: -- or do you think that this is any different, knowledge of its contents mean something different in 2716 than it does in 2717?

Mr. Fletcher Jackson: Or you'd definitely had to prove as -- (Inaudible) you have to show knowledge of contents or (Inaudible) to show us that it's just the prosecutor's belief.

Justice Abe Fortas: Well then, let's take that very carefully if you don't mind.

In 2716, which is this proceeding, the civil proceeding, the prosecuting attorney brings the case on.

All he has to do is to show it to satisfy the requirement of knowledge of contents is to show that such and such a person or a company published this magazine.

That satisfies knowledge of contents for purposes of the civil proceeding?

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: Alright.

Now, subsequently, after -- this -- that a civil order has been entered, the prosecuting attorney brings a criminal proceeding, are you telling us and if so, what's the basis of it, that the prosecuting attorney in order to satisfy that same requirement mainly with knowledge of its contents, has to prove something else.

Mr. Fletcher Jackson: He has to prove these elements.

One, that the person had knowledge of the contents.

Two, that they are sending or you know, for sale and so forth into the state this obscene matter.

He's got to show that it was either -- other than mailable matter or that it was mailable matter known by such person to have been judicially found to be obscene.

Justice Abe Fortas: Alright.

What I'm going to ask you --

Mr. Fletcher Jackson: Or it just got --

Justice Abe Fortas: I understand all that.

Here, we have in these cases, we have mailable matter.

We have a judicial determination in the proceeding before us.

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: And therefore, we have knowledge of the judicial determination --

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: -- in the case that I have put.

What I'm asking you is, whether it's your submission to this Court that the prosecution has got to prove anything additionally to show that the defendant in this phase number two proceeding had knowledge of the contents of the magazine.

Mr. Fletcher Jackson: Yes, sir.

He'd have to show like a -- an affirmative showing of knowledge of contents.

Justice Abe Fortas: Of what kind?

That's what I'm asking.

Remember, we're talking about the publisher.

Mr. Fletcher Jackson: The publisher?

Justice Abe Fortas: Yes.

Mr. Fletcher Jackson: You'd have to show that he was -- to prove by showing he's supervised the printing or he read it before publication.

Justice Abe Fortas: And that is -- is that the kind of showing -- and that's the kind of --

Mr. Fletcher Jackson: That would show knowledge of contents, wouldn't it?

Justice Abe Fortas: But my point is that neither phase number one nor phase number two, if I correctly understand the statute in your explanation, is there any requirement that the prosecution proves specific intent and the question that we have before us and I think further to the question that we have before us maybe, whether in view of the lack of necessity in the statutory scheme of the showing of specific intent or scienter beyond the point that you have described?

And either phase one or phase two, whether in view of that fact, phase one, the phase one order, is constitutionally defective.

Mr. Fletcher Jackson: You'd still have to prove mens rea in -- even under number one, you'd have to show intent, intent to sell or distribute these obscene matters if you have to show mens rea even under this.

Justice Abe Fortas: You and I know that there are lots of kinds of these in qualities in mens rea and scienter --

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: And we're talking about two kinds here.

I'm talking about what the sort refer to as specific intent and you're referring it to the knowledge of the contents, etcetera.

Mr. Fletcher Jackson: My point was sir that this judicial determination will put a publisher or a distributor of a notice that this matter is likely to found of -- that it is obscene in the civil matter and he's likely to be found obscene in a criminal matter.

In other words, it gives him -- what problem as yesterday in one of those cases was that knowledge of contents and knowledge that the material was obscene.

And this goes a little bit further than the usual statute.

Towards the mailable matter and non-mailable matter, the great book of all publications would be a mailable matter.

That definition of mailable matter, the -- be part it makes it almost completely broad.

It says any other printed or written matter or material which has not been determined to be non-mailable under the laws of the United States.

That was the definition of mailable matter, is anything that has been given a second class permit or has never been presented to the post office for determination.

That would leave non-mailable matters s to something that has been excluded by the post office.

And anything that's been excluded by the post office, that would be this -- in effect, same as a judicial determination as far as showing you all later a scienter.

Justice Abe Fortas: Well, do we have before us a section of the statute dealing with non-mailable matter?

Mr. Fletcher Jackson: The definition sir?

Justice Abe Fortas: I said, do we have that, the court determination?

Aren't all of these magazines mailable matter?

Mr. Fletcher Jackson: All of them are mailable matter, yes sir.

Justice Abe Fortas: Because the statute is much -- what shall I say, much more rugged with respect to non-mailable matter --

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: Apparently on the theory that you've just stated, namely that the matter is non-mailable, it does not have the advantage, protection or sanctification of the post office department action and giving it a second -- allowing it the exercise second class privileges.

Mr. Fletcher Jackson: It allows publishers and distributors to rely on the post office determination as their -- you know basic protection.

If they have that protection, they're pretty well safe unless it's a borderline case.

The main thing I wish to stress is -- he raises the prior restraint to him.

And really, this is not really a prior restraint case.

There is no restraint before an adversary hearing.

There's no I -- provision for an injunction pendente lite.

You can only have -- you can -- the prosecuting attorney can only ask for a power in injunction.

And a power injunction can only be given after judicial determination.

We're not really in the -- depends on where a prior restraint is.

But here, you got a judicial determination before there is any restraint.

A matter of fact, in the present case, the testimony shows that these magazines were still on the stand after the suit was filed all up to judgment.

One of the witnesses bought some later editions before the final trial was over.

These magazines until they were ordered -- ceased were never taken off the stand.

So, the issues can go on the stand.

There's really not much restraint here.

Justice Byron R. White: As a practical matter, the criminal provision never come into play in a magazine case or ask you, why can your injunction ever be effective in a magazine case?

Say you'd proceed against the magazine that comes out every two weeks?

Mr. Fletcher Jackson: The only way I understood --

Justice Byron R. White: -- twice a month, you can't have a preliminary injunction.

Mr. Fletcher Jackson: Yes, sir.

Justice Byron R. White: You can't be at the magazine until you've had a trial.

Mr. Fletcher Jackson: Yes, sir.

Justice Byron R. White: So by the time you've had your trial, that issue with the magazine is long since out of date and then it gets new ones on the stand.

Then you haven't been to ban that magazine on the stand anyway while -- during the trial.

And so -- and once the newer issue comes out, the old magazine is not going to be sold again anyway so you will never have an opportunity to apply your injunction to the old issue or the criminal provision, isn't that true?

Mr. Fletcher Jackson: As far more or less what's happened here?

Justice Byron R. White: So, what's Arkansas wasting this time for?

Mr. Fletcher Jackson: Trip to Washington -- it seems to me that the -- to make the statute effective, the only way it can --

Justice Byron R. White: You're really telling me -- what you're saying to the public here is, you go ahead and send later issues in here, we'll have to try those.

And we can never apply the criminal provisions to you anyway.

Mr. Fletcher Jackson: That's -- in fact, we can't understand why they appealed?

This is the --

Justice Byron R. White: Or why are you wasting (Voice Overlap) --

Mr. Fletcher Jackson: -- this is no perfect statute they've ever have.

Justice Byron R. White: It may be but books, it might be different.

Mr. Fletcher Jackson: The books, it could -- rather different.

Justice Byron R. White: Would have a -- that has some kind of affirmative (Voice Overlap) --

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: Well the Court retains jurisdiction under this order to consider subsequent issues in the magazines so that they can go ahead and have what presumably would be a very snappy procedure with respect to subsequent issues, when the prosecuting attorney and -- that same (Inaudible) that they bring to the court.

One issue -- one of these issues after another and you get an order, isn't that the way it works without the time-consuming process of service and the usual things that (Voice Overlap) --

Mr. Fletcher Jackson: That would be the only thing it would show us.

Justice Abe Fortas: -- and then initiation of litigation.

Mr. Fletcher Jackson: Yes, sir.

You are short the way it -- the order is finally was short circuit service, the process, that would be the only thing which I can see.

Justice Abe Fortas: In the complaint they answered it, I assume.

Mr. Fletcher Jackson: I assume that you have to go ahead and file a new complaint with new -- attached new exhibits to it to go through the --

Justice Abe Fortas: You'd have to do a set of --

Mr. Fletcher Jackson: -- somewhat the same processes.

You'd have to have another hearing.

It says here --

I don't know, where it says, “If they are found obscene, you'd have to have another full scale hearing.

Justice Abe Fortas: And in effect, what's happening here is that the court refrains jurisdiction and persona -- and these defendants render in the days so far as appears here, so long as they have magazines appearing on the stands in Arkansas (Inaudible).

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: If you don't mind, I'd like to ask you one question.

I'm concerned here, the -- by this point, if I correctly understand it.

The standard applied, the community standard applied was set at the time -- the law of Arkansas?

Mr. Fletcher Jackson: Yes, sir.

Justice Abe Fortas: The order, as entered prohibit it, I think the sale of these magazines anywhere in the state, in other words, the standard applied was Pine Bluff, the order operates statewide, am I wrong with that there?

Mr. Fletcher Jackson: The order just applies to say (Inaudible) from bringing into Jefferson County for sale or distribution in Jefferson County in order to -- you know, destroy said magazines which --

Justice Abe Fortas: The order applies only to --

Mr. Fletcher Jackson: Only to Jefferson County.

Yes, sir.

Justice Byron R. White: And this is in -- in one specific issue of the magazine?

Mr. Fletcher Jackson: Yes, sir.

It's one specific issue.

It names in the decree and in the complaint and everything.

It names a specific issues of the magazines that are -- you're quite correct that -- this is about as good a statute is to protect First Amendment rights that you can have.

Justice Hugo L. Black: It doesn't keep the -- doesn't keep the publishers under a continual restraint and doesn't it subject their future conduct to sanctions for violation of this injunction through other issues.

Mr. Fletcher Jackson: I wouldn't apply to other issues, it would just be the specific issues that have been determined obscene of --

Justice Hugo L. Black: Well, let me read this, this paragraph to you, from the decree.

Mr. Fletcher Jackson: Yes, sir.

Justice Hugo L. Black: The Court finds that seven magazines are obscene and it specifically retains jurisdiction to determine whether any future issues are obscene and whether or not they come within the terms of this order.

That defendants are hereby notified that any future distribution of obscene publications as set out, can found out to be obscene will also be restrained and enjoined and magazines will be removed.

Isn't that -- doesn't that keep them under a constant injunction?

Mr. Fletcher Jackson: No, sir.

All they say is, it says, found above.

Justice Hugo L. Black: And they --

Mr. Fletcher Jackson: Look at (Voice Overlap) --

Justice Hugo L. Black: They specifically retains jurisdiction to determine whether any future issues are obscene and whether or not they come within the terms of this order?

Mr. Fletcher Jackson: I think it clarifies matters over in this order itself.

That was just in the findings of -- in the last paragraph in its order sir.

Justice Byron R. White: And then the Supreme Court of Arkansas, assume the decree but at this point you have to agree within --

Mr. Fletcher Jackson: Yes, sir.

Justice Byron R. White: -- with Arkansas?

Mr. Fletcher Jackson: Yes, sir.

Justice Byron R. White: And assume, the (Inaudible) of Arkansas through that -- did the court -- but the court just defined just to keep the issues amends and enjoined upon showing that these magazines are obscene, isn't it?

Justice Hugo L. Black: Well, that doesn't mean that a new --

Mr. Fletcher Jackson: If this --

Justice Hugo L. Black: -- a new law suit?

Or is that mean -- is that mean as this is here, the court retains jurisdiction?

Mr. Fletcher Jackson: Would you look the last paragraph sir, in the --

Justice Hugo L. Black: Where?

Mr. Fletcher Jackson: In the decree.

Justice Hugo L. Black: Yes.

But which page, you say?

Mr. Fletcher Jackson: Would be on --

Justice Byron R. White: 29 in the record?

Mr. Fletcher Jackson: It'd be on page 30 of the record.

Justice Hugo L. Black: Page 30.

Mr. Fletcher Jackson: It is further considered, ordered and decreed defendants are hereby notified that any future distribution or sale of above magazines which are of like obscene character comparable to the above issues of said magazine will be enjoined and here's an important language above showing that said magazines are obscene that which will have to have a new trial.

Justice Hugo L. Black: It is further no -- considered, ordered and decreed that the defendants are hereby notified that any future distribution or sale of the above magazines which are of like obscene character comparable to the above issues of said magazine will be enjoined upon a showing that said magazines are obscene and the court retains jurisdiction of this cause of action that carry out the terms and conditions of this order and to make such orders as may be necessary concerning the sale of the following described magazines in the future.

And then it goes on, Gents, Swank, Modern and so forth and not to any specific issues, but to the sale of the magazines.

Mr. Fletcher Jackson: As to the feature, all it did was retain jurisdiction for a later determination as to the obscenity of any future issues.

All in effect it does is -- it would short circuit as to service of process.

It doesn't really matter -- anything, just retain the jurisdiction because the prosecuting attorney will have to go through the same steps again and prove the obscenity of future issues.

Justice Hugo L. Black: You mean, he'll have to start a new action?

Mr. Fletcher Jackson: He'd have to start a new action (Voice Overlap) --

Justice Hugo L. Black: -- or on a peremptory hearing, could they determine that he was in violation of this decree?

Mr. Fletcher Jackson: No, sir.

They would -- as to future issues and future -- I'd say that March or April issue that comes out next month, he would have to prove obscenity again.

That if have to another full adversary hearing before they could be of --

Justice Hugo L. Black: You mean another action?

Mr. Fletcher Jackson: Yes, sir.

Justice Hugo L. Black: Well, and --

Mr. Fletcher Jackson: As far as the Supreme Court of Arkansas is construed this is --

Justice Hugo L. Black: Then what does -- they mean by saying that it retains jurisdiction to determine that act -- that fact?

Mr. Fletcher Jackson: Oh, by retaining jurisdiction, he would keep them in court.

Justice Abe Fortas: You don't mean another action, you mean another hearing --

Mr. Fletcher Jackson: Another hearing, yes sir, another hearing.

Justice Abe Fortas: -- the same action.

Mr. Fletcher Jackson: I mean another -- yes, sir.

My mistake --

Justice Hugo L. Black: But they are -- under an injunction, continuing injunction, not to publish any more magazines of this character.

Mr. Fletcher Jackson: No, sir.

Chief Justice Earl Warren: Just this what?

Mr. Fletcher Jackson: Just this one issue.

Just the issues that are named in there is the only ones they were really enjoined from (Inaudible).

Chief Justice Earl Warren: Well, some are or rather I don't get that from this language, is this further considered, ordered and decreed that the defendants are hereby notified that any future distribution or sale of the above magazines, and that doesn't mean the specific ones there -- they are which they -- you're talking about which are of like obscene character comparable to the above issues of said magazine will be enjoined upon a showing of that -- if the magazines are obscene.

Now does that simply mean that if they dared to publish any magazine of like character, that they can be summoned in the court on an order to show cause under this injunction and have those burned in the same way?

Mr. Fletcher Jackson: No, sir.

I don't think so.

I think, you'll have to have a complete new hearing.

Would you turn to page 18 of my brief sir and --

Chief Justice Earl Warren: What page?

What?

Mr. Fletcher Jackson: Page 18 of the -- brief of appellee --

Chief Justice Earl Warren: 18, yes.

Well, I took a little of your time, you take three or four minutes more to finish your argument.

Mr. Fletcher Jackson: I would like to --

Chief Justice Earl Warren: Don't -- about my questions anymore, you go finish up your argument.

You may have three or four minutes to do it.

Mr. Fletcher Jackson: I understand.

So that by saying as to the -- you're question sir, there, the -- in the middle of page 18 is an excerpt from the Arkansas Supreme Court hearing which shows the fact of what this decree is.

They construed this Chancellor's Decree in it's -- it says, the -- it doesn't really mean anything, just retaining of jurisdiction unless it would mean the -- as to service of process and having them subject to the jurisdiction that would mean only --

Justice Byron R. White: Well, didn't the Supreme Court of Arkansas -- I concede did not apply to futuristic --

Mr. Fletcher Jackson: Yes, sir.

They specifically said -- that they said that it would violate -- I think the court in Near versus Minnesota said it would violate the -- this --

Justice Byron R. White: Yes.

The court said that the decree here has advised (Inaudible) magazines are not so but it does not enjoin --

Mr. Fletcher Jackson: Future issue, yes sir.

Justice Byron R. White: -- future issues.

Or to the timemean the court held a hearing that has to be held before any order of (Inaudible).

Mr. Fletcher Jackson: Yes, sir.

That's why they construed the Chancellor's Decree.

They knew they couldn't enjoin future issues.