STANLEY v. GEORGIA

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Argument of J. Robert Sparks

Chief Justice Earl Warren: 293, Robert Eli Stanley, appellant, versus Georgia.

Mr. Sparks, you may continue with your argument.

Mr. J. Robert Sparks: Mr. Chief Justice and Honorable Justices.

At the recess yesterday afternoon, I was just completing my response to a question by -- questions by Justice Douglas, excuse me not Douglas, Brennan as to the evidence of scienter and I have practically completed my summary of the circumstances which we feel justified the jury to find that this defendant knew of the obscene nature of the matter.

I just want to elaborate any one --

Justice Byron R. White: You aren't arguing that, are you that he knew it was obscene?

You're just arguing that he knew the contents of the film?

Mr. J. Robert Sparks: That's right, the contents of the film, that he knew the contents of the film, they are of the obscene nature of the film.

That is the way the Georgia statute reads that, I believe.

I just want to point out two things in relation to his statement and I will move on to something else.

In his unsworn statement, he attempted to explain his possession of the films in a manner consistent with lack of knowledge of the contents and I submit that it was unreasonable explanation, some point unreasonable in two respects.

First, he said that a friend brought films by and left them with him saying that he wanted the appellant to view the films.

I submit that it's somewhat unreasonable that films would have exchanged hands without some explanation on the part of the unknown friend, or some query on the part of the appellant as to what kind of films are they, particularly the small eight millimeter films in the can with a homemade label.

I feel quite sure that if anyone came to me and said I've got some films I want you to see, I'd say, “What are they?

Films of your fishing trip, or your family or --

Justice Byron R. White: What if you asked him and said, “They are films about girls.”?

Mr. J. Robert Sparks: Then I think you --

Justice Byron R. White: (Inaudible) and would you know, or would you have any real clue, that they were obscene films?

Mr. J. Robert Sparks: I think that would warrant further inquiry, Justice White.

Justice Byron R. White: That may be, but what evidence is there that there was ever any further inquiry or further investigation as to what the films were about?

Mr. J. Robert Sparks: There is no -- there is no evidence because, of course, this was an unsworn statement and the state was not allowed to cross-examine or go into it without his consent unless he voluntarily submitted himself to cross-examination.

Justice Byron R. White: Well, the state has the burden of proof, doesn't it?

Mr. J. Robert Sparks: Sir?

Justice Byron R. White: The state has the burden of proof, doesn't it?

Mr. J. Robert Sparks: Yes sir, the state has the burden of proof, Your Honor.

But I think this is both federal and state law as I recall from my days as an Assistant U.S. Attorney, that where the defense goes ahead with the an affirmative defense, then not the burden of proof but the burden of reason -- of making a reasonable explanation shifts to the defendant and that leads me to my next point and that is that if he did not identify his friend.

He did not -- he neither produced him nor identified him by name.

Justice William J. Brennan: In that statement, he also said, “I never the saw the film before today and never had shown them to anyone, so help me.”

Mr. J. Robert Sparks: Yes, sir, that is true.

And I want to point in that connection before passing this subject, the case of Smith versus California which this Court decided and which the defendant was convicted for the offense of bare possession of matters under California ordinance which had no element of scienter is interpreted by the California Supreme Court and the Court said in an opinion by Mr. Justice Brennan, we might observe that it has been sometimes since the law viewed itself as impotent to explore the actual state of a man's mind, eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents.

The circumstances may warrant the inference that he was well aware of what a book contained despite his denial and I submit that those quoted words are a pretty analogous to the facts in this case.

We are relying on the circumstances.

We have no direct evidence that he saw, that he knew what the films were but we submit that all the circumstances, the impending party, the films concealed, the title “Young Blood” is rather inadequate explanation.

Justice William J. Brennan: I'm really interested, how does that title suggest anything?

I don't get this “Young Blood.”

What's that suggest?

Or is it my age?

I don't know.

Mr. J. Robert Sparks: Well, I think it suggests sex, Your Honor.

We normally associate sex with young blood, with young people.

Justice William J. Brennan: I guess it is my age.

Mr. J. Robert Sparks: I want to pass on to another point.

I gathered yesterday from the questions asked my worthy adversary, Mr. Asinof, that this Court has not yet viewed the contents of the film, which were transmitted to this Court by the direction of the Georgia Supreme Court.

I wish to most respectfully and humbly urge this Court to view the films before ruling on the case.

Justice Abe Fortas: Do you think we have to view the film if there are -- do you think we have to view the film if there are constitutional bases that don't relate to the subject matter of the film for disposing of this case such as the question of mere possession or the search and seizure question?

Mr. J. Robert Sparks: Your Honor, I --

Justice Abe Fortas: Why would you want us to view the film?

Mr. J. Robert Sparks: I was fixing -- that was going to be my very next statement as to the legal reason why I feel that the films should be viewed.

Justice Abe Fortas: Even if we think that you can dispose of this case, it must dispose of the case on the possession ground, or the search and seizure Fourth Amendment ground?

Mr. J. Robert Sparks: Yes, sir.

I do for this reason.

Justice Abe Fortas: Alright, tell me why.

Mr. J. Robert Sparks: This Court or the majority of this Court has consistently held in obscenity cases from Roth on through Jacobellis, Mishkin, Ginsberg, Memoirs, even Redrup I believe and the last Ginsberg in 1968 that obscenity is not protected by the First Amendment to the Constitution.

And if the Court views these films and finds that they are not only -- they are not borderline obscenity but a hard-core pornography --

Justice Abe Fortas: You mean, if this is obscene -- if this obscene, we should not reach the Fourth Amendment question?

Mr. J. Robert Sparks: You should not reach the First Amendment question.

Justice Abe Fortas: The Fourth Amendment question, search and seizure.

Mr. J. Robert Sparks: Oh!

No, sir, but I'm not saying that.

I think as a matter of fact, I am not absolutely certain Justice Stewart that the search and seizure.

The question is actually before this Court.

Justice Abe Fortas: I'm Fortas.

This is Stewart.

Mr. J. Robert Sparks: Oh!

Mr. Fortas, excuse me, I'm sorry.

Search and seizure is not an appealable question.

The Court noted probable jurisdiction without restricting the question to the only appealable question which is the constitutionality of the Georgia's search and seizure, I mean the constitutionality of the Georgia Obscenity Act.

And the same thing happened in the Mishkin case and the Court dismissed.

They said that the search and seizure question was properly briefed by both parties but then are declined to pass on it and said that probable jurisdiction had been erroneously noted as far as that's concerned.

However, I do feel that the Court would have to pass on the search and seizure question but right now, I'm addressing myself to the constitutionality of the Georgia statute.

Justice Abe Fortas: Well, I understand, but I want to be clear on one matter with respect to your position.

Mr. J. Robert Sparks: Yes, sir.

Justice Abe Fortas: Now, here are some allegedly obscene films.

I haven't seen them but if I should decide that this case must be reversed on the possession point, or on the search and seizure point, Fourth Amendment point, I would not consider it as presently advised, I would not consider it necessary to endure a sight of motion picture films whatever their content may be and do you consider that -- do you disagree with that present thought of mine?

Mr. J. Robert Sparks: I disagree with it Your Honor, so far as the First Amendment.

Justice Abe Fortas: I'm not talking about the First Amendment, I'm talking about the two points and I'm talking about, namely the possession and the manner of seizure which the Fourth Amendment points.

Mr. J. Robert Sparks: Well, Your Honor I feel that the possession is the First Amendment.

And maybe the possession is the First Amendment point, in the sense but not in the sense that you're talking about I take it.

I'm talking about the --

Mr. J. Robert Sparks: The appellant is asking this Court to declare a mere possession count as a mere possession with scienter count unconstitutional.

Justice Abe Fortas: But if we should conclude that a statute making mere possession, a criminal offense is unconstitutional under First Amendment, regardless of the nature of the films then obviously, it wouldn't be necessary for us to see the films, would it?

Mr. J. Robert Sparks: Your Honor I take the reverse position.

And I've said that you should see the films and if they are hard-core pornography and outside the protection of the First Amendment as this Court has held in Roth and a whole series of cases, then it would not be necessary for the Court --

Justice Abe Fortas: I know but I say assuming that, we felt assuming that I should conclude that so far as I'm concerned, mere possession cannot be punished as a crime regardless of how obscene the film might be, then it would follow that it there'd be no point in seeing the film, isn't that right?

I mean, that seems to me to follow as a matter of course.

Now, I know your position is that if the film is obscene, mere possession can be punished.

But I say that if I disagreed with that, then obviously, it would not be necessary for me endure a sight of this film.

I'm not characterizing it as obscene.I don't know whether it is or not but it probably is not one of the greatest works of art that's ever been struck by the hand of man.

Mr. J. Robert Sparks: That's an understatement, Your Honor.

Justice John M. Harlan: And you real, isn't it, that appropriately some of these questions might be judicially resolved?

Mr. J. Robert Sparks: Yes sir, that's correct.

That's what I mean.

Justice John M. Harlan: (Inaudible) I hope you're going to address yourself to the constitutionality of this statute: mere possession, without any purpose to exhibit, sell, or display?

Mr. J. Robert Sparks: Yes, sir, that's going to be my next point.

To the best of my knowledge in research and I believe my --

Justice Hugo L. Black: May I ask you before you do that?

Mr. J. Robert Sparks: Yes, sir.

Justice Hugo L. Black: As I read the record, it seems to me that the only time it's established by evidence that the picture has been displayed in Atlanta, of course when it was displayed in the prosecuting attorney's office to a group of people, is that right?

Mr. J. Robert Sparks: That is the only evidence that it has been displayed in Atlanta.

I recall that Your Honor asked me --

Justice Byron R. White: Didn't the police look at it where they found it?

Mr. J. Robert Sparks: Yes sir, you're right.

Thank you.

Justice Byron R. White: Thank you.

Mr. J. Robert Sparks: They looked at it in the appellant's home and yesterday, Justice Black, you asked me about the -- what the expert photographer said.

He said that the films are badly scratched, and dirty.

They are not in new condition at all.

That's where mistakenly said that they had seen extensive use.

They are not in new condition at all.

One reel rolled backward and never rewound after showing the film.

And he says, “Yes, sir, they obviously have been shown before.”

Justice Thurgood Marshall: But where in the record when you said there were shown in Georgia before?

It doesn't say it at all.

It says they were shown at some place before.

Mr. J. Robert Sparks: That's true, sir, Your Honor.

We didn't have any eyewitness who watched this appellant show the films.

Justice Byron R. White: And the undisputed evidence was that the appellant had barely come into possession of these films that very day.

Mr. J. Robert Sparks: That was not the evidence, Your Honor.

It was in the form of an unsworn statement.

Justice Byron R. White: Well, you've been talking about it, though, as the basis for much of your argument.

Mr. J. Robert Sparks: Yes, sir, under Georgia law, the court -- the jury can pay what attention to it wants to.It can either disregard it or --

Justice Byron R. White: Well, are you suggesting that we should disregard that statement entirely?

Mr. J. Robert Sparks: I'm suggesting that the Court should consider it, and consider its deficiencies.

Justice Byron R. White: Well, if we do then we know that he had barely come into possession of the films?”

Mr. J. Robert Sparks: Well, I don't -- I'm not saying that the Court should believe it all in its entirety because the natural thing for him to have done was that was that if that was true, they have brought the person in court or at least named him, so that the prosecution could've brought him into Court.

I have only a couple of minutes left and I haven't even addressed myself to the --

Justice Thurgood Marshall: Do you really need to bring him court?

Or you would've arrested him, wouldn't you?

Because he would've admitted that he had possession of these films.

Mr. J. Robert Sparks: It's entirely possibly unless he denied.

He might have said, “No, sir.

I don't know Bob Stanley, never say him before, and certainly, I didn't give him any films.”

Then we would have made a state's witness out of him to and proven that the defendant made a false statement in his unsworn statement.

On the question of which Justice Harlan asked me to address myself to the constitutionality of the possession statute, I really see no reason why a possession statute are making hard-core pornography obscene cannot be constitutionally enacted by state.

States have many possession statutes and the Court knows them as well as that of possession of stolen goods, possession of concealed weapons without being -- without having licenses for them, possession of narcotics, possession of dangerous drugs, possession of burglary tools.

The federal government has many possession statutes, possession of a car, transported or stolen car transported in interstate commerce, possession of money taken in an FDIC bank robbery, many possession statutes.

And even during prohibition days, possession of -- bare possession of intoxicating liquors of any type was an offense.

And I see no reason for the possession of hard-core pornography should not be made an offense and I know of no case which -- I think this is a case of first impression before this Court.

I have not been able to find a case exactly in point.

Now, in the Smith case, which this Court admittedly reversed, but only because there was no scienter, it seems to me that the opinion which I've quoted from once before indicates or implies that had the California ordinance had the element of scienter in it that it would've been constitutional because Mr. Justice Brennan said this.

We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller quoting “for carrying an obscene book in stock.”

Justice William J. Brennan: For sale.

Mr. J. Robert Sparks: That is the --

Justice William J. Brennan: For sale.

What' bookseller mean?

Mr. J. Robert Sparks: Yes, sir.

But, Your Honor, the California ordinance did not have any element of carrying it in stock for sale.

It just said possession, absolute liability, absolute criminal liability.

Justice William J. Brennan: But that case did involve a bookseller.

Mr. J. Robert Sparks: It did involve a bookseller.

Justice William J. Brennan: It did involve a prosecution for having books for sale, didn't it?

Mr. J. Robert Sparks: And I cannot see, honestly, where the First Amendment grounds hit this particular case.

This man is not a bookseller.

He was suspected of being a bookmaker rather than a bookseller.

Now, he was not intending to sell these films so far as the available evidence indicates.

The general public was not deprived of the right to look at the films.

The Georgia Supreme Court, in distinguishing this case from the Marcus case, said as much in its opinion.

It said that the Marcus case on the search warrant Marcus versus Search Warrant.

It said that that case involves freedom of the press and freedom of speech.

This case does not and I don't think this case involves under the facts of this case.

This is just an individual.

He is not being deprived of his right, though the public I should say is not being deprived of the right to view his films.

I see I have the red light.

If I might just --

Justice John M. Harlan: (Inaudible)

Mr. J. Robert Sparks: I might just say this if I might be allowed one more sentence.

I feel that that is -- in the possession statute is necessary for effective law enforcement from the very type of evidentiary problems which have been pointed out by questions from this Court.

If you catch a man with the pornographic material, how are you going to prove that he has read or he has looked at it, or that he intends to sell it?

You can stop pornography at its source and I earnestly submit that this is the hardest type of hard-core pornography that this Court have ever had before.

Thank you very much.

Chief Justice Earl Warren: Mr. Asinof.

Argument of Wesley R. Asinof

Mr. Wesley R. Asinof: May it please the Court.

With respect to Smith versus California, that prosecution involved a bookseller under an ordinance providing or referring to booksellers.

Consequently, the sale -- we're dealing with a person now who is in the business of selling books.

Justice Byron R. White: Give me your view of how you would argue the possession point, accepting the fact that the Court has said that that obscenity is not protected by the First Amendment.

Mr. Wesley R. Asinof: In the Roth case where that principle was established, we find that the Roth case was a question of distribution and in an instance where an individual who is possessing something that will admittedly say as pornographic, the Constitution does not protect him from the distribution and this is followed in the Redrup case.

Justice Byron R. White: Now, but the case that the obscenity isn't in the First Amendment.

Mr. Wesley R. Asinof: That's correct.

But the case was dealing with a question of the distribution.

Justice Byron R. White: You mean obscenity in the course of distribution is not protected?

And obscenity in possession is protected?

Mr. Wesley R. Asinof: That's correct.

The case does not hold that bare possession or mere possession was not protected.

The Court said in Roth that obscenity was not protected but they were --

Justice Byron R. White: Well, the material doesn't change any, so what is the critical fact?

Mr. Wesley R. Asinof: The critical fact is --

Justice Byron R. White: The material whether it's distributed or not is the same and it is either is or isn't protected by the First Amendment so what is different between possession and distribution?

Mr. Wesley R. Asinof: Because --

Justice Byron R. White: What should you really focus on?

Mr. Wesley R. Asinof: Well, in the distribution, you're dealing with a question of furnishing it to others and the mere possession in your own privacy of your own home where no one else has seen it.

There's no evidence that anyone has or no one else is intended to come into contact with it, I say that no case holds that it is not protected, that an individual cannot take a picture of his whole obscenity and for posterity for himself if he so chooses, because to do so, to prohibit a person from possessing it would in itself violate First Amendment rights.

Because --

Justice John M. Harlan: What are you saying to your adversary's argument that the state constitutionally says, “We'll nip this business in the bud,” the person that is to say that given hard-core pornography or whatever you want to call it.

What do you say about it?

Mr. Wesley R. Asinof: That in itself -- that in itself would be a violation of the First Amendment.

To say that a person could not write what he wants in his own diary let's say, that he's going to keep for his own personal future in his own drawer not to be shown to any other persons, we say that the First Amendment is an absolute amendment that gives the man the freedom of the press and the freedom the press carries with it, the freedom of motion picture films.

Justice John M. Harlan: Well, the Court has held, at least the majority has held that it is not an absolute right in obscenity field.

Mr. Wesley R. Asinof: But that was held in the Roth case, if Your Honor please, and the Roth case involves.

Justice John M. Harlan: That starts from that premise.

Mr. Wesley R. Asinof: That's right.

Justice John M. Harlan: But your adversary is saying is that the state can legitimately, again, on the premise that what's involved here meets the Roth test.

Mr. Wesley R. Asinof: Then we come in to the Redrup case.

Justice John M. Harlan: (Inaudible)

Mr. Wesley R. Asinof: Well then we come in to the Redrup case which was decided since Roth and this Court last year in Redrup and the other cases that went with it reversed on the theory and on the principle, that there had been -- that this was not a case involving one of the three elements, either distribution to minors, distribution to persons who are unwilling to see it, or pandering as was held in Ginsberg.

Now, if we accept Redrup as being the law, then of course we must take Redrup and Roth together as they both hold and say that obscenity insofar as it's mere possession and bare possession, to use that expression, the bare possession is concerned, would be protected by the First Amendment, because there you are not intruding upon the privacy or the rights of others to be free from this stuff.

Now, in the finding -- one thing I would like to answer my opponent with respect to, he says that the state court found that the state statute did not remove the element of scienter.

Now, the rule as I understand it is that this Court will accept an interpretation placed upon a state court as to a non-federal ground.

But as to a federal constitutional ground, this Court is not precluded by virtue of a holding of a state court on a constitutional issue from reversing that state court because this is the final arbiter.

This court is the one that must decide the federal ground.

Now, secondly, in the brief of the appellee on page 45, he cites the case of Rainwater versus Florida which was decided by this Court during the last term.

The Rainwater versus Florida case was one that originated in the state court.

There was a federal search warrant issued under the Wagering Tax Act (Inaudible) certain items from the defendant's possession and they prosecuted them in the state courts.

This Court remanded that under the theory of Grosso and Marchetti, remanded it back to the state court for further proceedings not inconsistent with Grosso and Marchetti.

This is identical to the case we have here.

The state says in its brief that there the prosecution, the state court, was the end-result of the issuance of the federal search warrant.

That's what we have in this case.

This prosecution for obscenity was the end-result of the issuance of the federal search warrant which actually under the Rainwater versus Florida doctrine was inadmissible as having been unconstitutionally obtained.

Now, --

Justice Abe Fortas: To get back to this possession point, under the state law, if -- assuming that possession were a crime, mere possession was a crime and not brought by the First Amendment, could the state get at a search warrant to search your own library on the basis of an affidavit that would say that you have in that library a copy of James Joyce's Ulysses, and a copy of this book and that book, and that there was a -- and therefore, they get out a search warrant to examine your entire library?

Mr. Wesley R. Asinof: I would not think so.

I would not think -- I think that the Constitution, the Fourth Amendment says that the warrant shall particularly describe the articles to be seized.

Justice Abe Fortas: In other words that they'd have to name the specific book?

Mr. Wesley R. Asinof: That is -- that is my view of that Amendment.

Now, one point was raised by my adversary.

He says that the evidence in the case indicated that one reel of film had been wound backwards or was scratched and that that would indicate that someone had previously viewed that film.

But it would not show and we submit to this Court that that fact alone could not and would not show that this defendant or this appellant had ever viewed them.

Now, in conclusion, I would like to state that since my opponent has -- or my adversary has suggested to this Court that this Court view the film, he has in effect stated that that how does this Court know that they are obscene without viewing them.

Now, that is our very position in this case.

We say that with respect to the appellant.

The same position holds true.

If he has never viewed the films, he would not obviously know that they're obscene because without viewing them, you cannot learn of its obscenity and that is the point that we have in this case.

We say that since the evidence doesn't show that he ever viewed the films that therefore there's no evidence that he knew, or could have known that they were obscene.

Chief Justice Earl Warren: Very well.

Print this transcript Transcript: 

Argument of Wesley R. Asinof

Chief Justice Earl Warren: Number 293, Robert Eli Stanley versus Georgia.

Mr. Asinof: May it please the Court.

I would like to request the marshal to notify me when 25 minutes is up, I'd like to save five minutes for rebuttal, if I may.

Chief Justice Earl Warren: You'll find a white light to come up in front of you.

That would be the five-minute warning.

Mr. Asinof: Thank you.

Chief Justice Earl Warren: Mr. Asinof, you may proceed with your argument.

Mr. Asinof: Thank you.

Mr. Chief Justice and members of the Court, this case involves the constitutionality of the Georgia obscenity statute.

The questions raised by this appeal, in so far as the constitutionality of the statutes is concerned, are two-fold.

First, we raise the question that the statute violates the First Amendment because it punishes the mere possession of obscene material without requiring any further overt act on the part of the possessor or intent to do anything with it.

Justice William O. Douglas: What kind of possession was this?

Mr. Asinof: This was a possession, if Your Honor please, where Robert Eli Stanley had possession of three reels of motion picture film in a desk drawer of his upstairs bedroom of his home.

There was no allegation in the indictment of any showing or attempt to exhibit or show these films or pander them or show them to minors.

The only question involved in so far as the indictment was concerned was that he possessed them knowing them to have been obscene or that he should reasonably have known them to have been obscene.

The second question of our constitutional attack on this statute is the use of the language in the statute and in the indictment to the effect that he reasonably should have known of the obscene nature of the film removes the element of scienter from the definition of the offense.

And thus, permits the state to secure a conviction for possessing these films on a showing less than actual knowledge on his part that they were obscene.

Justice William O. Douglas: Are they concededly obscene?

Mr. Asinof: We do not concede them to be obscene and if we took that position with the trial court that under the First Amendment in so far as possession itself is concerned that there is no such thing as obscenity.

The reason we took that position and now take this position is this, that it would be a violation of the Freedom of Press Clause of the First Amendment to restrict a person or to prohibit a person from possessing anything they want in so far as its claim of obscenity is concerned.

We take the position that where a person merely possesses an article alleged to be obscene and does not attempt to distribute it or show it to any other persons, as was the case in this case and as was the indictment in this case and as with the holding by Supreme Court that the mere possession is an offense under the definition Georgia law that any evidence in the case on the part of the state or any contention on the part of the state to the effect that the evidence might have circumstantially show that he was about to have a party and about to show these films to other persons would be completely irrelevant for this Court to consider.

It has no relevancy here because of the fact that he was only charged with the mere possession.

Now, to my knowledge, this exact question has never been passed upon by this Court.

The question of whether or not a person can be prohibited by the states from merely possessing obscene material or obscene writings or pictures.

Clearly, it would seem to me that the mere possession, that anyone would have the right to say draw a picture which might obviously be obscene to some other persons and put it in his pocket or put it in his desk drawer.

Or if he wanted to take a picture of himself or picture of himself and his wife in a sexual act that this would be a matter that he could determine as long he did not attempt to pander this material, attempt to sell it, distribute it, or distribute it to minors.

Justice William J. Brennan: I suppose when these films were in a desk drawer, weren't they?

Mr. Asinof: These films were in a desk drawer.

These of course --

Justice William J. Brennan: And could be as looking at the film, he couldn't tell it were?

Mr. Asinof: Could not.

Justice William J. Brennan: Now, what did the officers do?

Mr. Asinof: The officers and this is -- I might as well mention this at the outset right here.

The second part of our contention is, the officers were armed.

They were federal and state officers, were armed with a federal search issued by United States Commissioner on a claim that the defendant was violating the Wagering Tax Act.

Justice Thurgood Marshall: The what?

Justice Thurgood Marshall: The Wagering Tax Act.

Mr. Asinof: Since then, of course, this Court has held that the provisions of that law are constitutionally impermissible.

Justice William J. Brennan: Well, I'm trying to get to this.Did the officers use a projector to see the films?

Mr. Asinof: Yes, yes, yes.

This --

Justice William J. Brennan: Then and there?

Mr. Asinof: Yes sir, then and there.

They went in on with the search warrant issued by the United States Commission which did not call for the seizure of any obscene film but call for the seizure of gambling paraphernalia.

No gambling paraphernalia was seized except some negligible things that I think the state concedes were not sufficient but during their search, they search through his drawer and found three cans of films, eight-millimeter film which they testified, they could not discern or know from their own knowledge that it was or what it was.

So they found in the closet a projector and they found a screen and they showed these films, and looked at them and --

Justice Byron R. White: They set up the screen?

Mr. Asinof: Then they set up the screen and they showed them.

Justice Byron R. White: Is there any conceivable circumstances in which if you saw the film that it could possibly be connected with gambling paraphernalia?

Mr. Asinof: I would think not.

I would not think not.

I wouldn't know that there was any connection between them but what happened after they showed these films not having a warrant to seize the films.

The evidence shows in the case and in the record that the officer, the state officer called the Solicitor General who was the prosecuting officer for that circuit and told him they didn't find gambling paraphernalia but that they did find some films and it's in the record that Solicitor General then stated to him, “after you view the films, if in your opinion they are obscene, seize the films and book a case, and I'll set a bond.”

Justice William J. Brennan: Well, tell me, suppose instead of these films, they found counterfeit bills, couldn't this fellow have been prosecuted for possession of counterfeit bills?

Mr. Asinof: I think so.

Justice William J. Brennan: How do you distinguish it?

Mr. Asinof: I distinguish that and I concede that where evidence is seized or when a contraband is seized where it's not such as would be subject to a claim of the First Amendment, freedom of press or freedom of speech that the states do have the right to prohibit the possession.

Justice William J. Brennan: I take it Harris, -- with Harris --

Mr. Asinof: Yes.

-- that is counterfeit money.

Mr. Asinof: Yes sir.

I think any case.

Now, we concede that in our brief and make that distinction that in this particular case, these were films alleged to be obscene from the very start.

They weren't seized as gambling paraphernalia but they were seized under a warrant issued by United States Commissioner under the Wagering Tax Act, under a contention that the defendant had not registered as a gambler.

Justice William O. Douglas: Was this man a merchant or distributor of any kind?

Mr. Asinof: No sir.

He was not.

There was no claim of any distributorship.

He was an individual in his own home.

The state of course alleged and contended that he had a record for gambling in the past and that federal agents, the state agents, were going in for that purpose, that they had probable cause.

One of the contentions in the affidavit being that he had not registered as a gambler and paid his tax which of course since then in Grosso and Marchetti, this case has --

Justice William J. Brennan: In the prosecution and the actual trial for possession of these films, was there any effort -- would this prove that the possession of the films was for the purpose of sale?

Mr. Asinof: No, sir.

Justice William J. Brennan: It was just naked possession of the film.

Mr. Asinof: This is the --

Justice Thurgood Marshall: There was one -- there was one other point.

There were biscuits in the kitchen.

Mr. Asinof: This was brought up in the brief to this Court, that there were biscuits being ready to put in the stove, that there were well-dressed people who came to the house, that this man was a bachelor and his girlfriend had come there and that the officers had turn them away.

They said that the table was set for eight people.

It looked they were fixing to have supper, getting ready to have supper and for this reason they said that apparently, he was going to have a party.

This was the conte -- this is now the contention raised by the state.

But I want to call the Court's attention to this that --

Justice Hugo L. Black: Where was that?

Mr. Asinof: Sir?

Justice Hugo L. Black: Where was that in Georgia?

Mr. Asinof: In Atlanta.

The --

Justice William J. Brennan: Was there any claim that this party was going to include the showing of these films.

Mr. Asinof: That's what they claimed.

They claimed circumstantially.

There's no evidence of that law.

The defendant denied knowing anything about the film.

Justice William J. Brennan: Well, as I understood you to say, neither screen nor projector was set up.

Mr. Asinof: That's right.

Justice William J. Brennan: And the films were in cans in the desk drawer.

Mr. Asinof: Upstairs in the bedroom of the defendant in a desk drawer.

Justice William J. Brennan: But you say the claim -- was there any effort at the trial to show that he was going to have a party including showing these films?

Mr. Asinof: No, sir.

None whatsoever.

No testimony of that at all.

Justice Byron R. White: But what do you do with films normally?

Mr. Asinof: Well, I would imagine that you would show --

Justice Byron R. White: As souvenir or show?

Mr. Asinof: Well, I think that an individual could do as he pleases with it but the point is in this case, and this is the paramount we bring in here that the state did not contend by its indictment that he had any to intent show them and this was one of our grounds of demurrer in the trial court in the state court.

Justice Byron R. White: That he could show them to somebody else.

Mr. Asinof: Whether there was any intent to do anything with it.

Justice William J. Brennan: Or even to show them (Voice Overlap) was nothing as I understand you.

There's nothing to indicate except that he had them in the drawer and he had them on the closet, he had a projector and a screen.

Mr. Asinof: That's right.

For his showing and for his own use.

Justice William J. Brennan: Or may be he wasn't going to show them at all.

Mr. Asinof: Maybe he wasn't going to show.

He contended by his --

Justice Byron R. White: But if somebody keeps it?

Mr. Asinof: Well, he could.

In his statement, he said that I have never seen these films before, that a man brought them to my house on Labor Day which was about four or five before this but the point was that the state at no time in its indictment charges, we demurred on the ground of vagueness of the Georgia statute.

The Georgia statute did not specifically make the mere possession on offense and that we ask for interpretation by the state court and got it.

The Supreme Court construed the language to be sufficient to make the mere possession on offense and that's why we're in this Court.

Because of the fact that we are reinforced by the state court decision holding that the mere possession is an offense and we say that gives it an unconstitutional interpretation.

Justice Potter Stewart: The nub of this case appears on page 69 of the appendix, doesn't it?

Right at the top of the page, that one sentence.

Mr. Asinof: I believe so Your Honor.

Justice Potter Stewart: It is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was with an intent to sell, expose, or circulate the film.

Mr. Asinof: That's correct.

Justice Potter Stewart: And that's a clear holding by your --- the highest court of your state that mere possession or as my brother Brennan says, naked possession is sufficient to constitute a criminal offense.

Mr. Asinof: That's correct.

That is the holding of the Supreme Court, so the question is squarely before this Court as to whether or not under that interpretation, given to or by the Supreme Court of Georgia whether or not that can be squared with the First Amendment whether mere possession of material alleged to be obscene pictures or writings can be constitutionally made a criminal offense.

Justice Hugo L. Black: To get it down a little closer, it is that naked possession, pictures of naked persons cannot be kept in a person's house for that is committing crime.

Mr. Asinof: Under Georgia, under the interpretation given by the Supreme Court of Georgia, that is correct, Your Honor.

Justice William O. Douglas: What did this fellow get, a year?

Mr. Asinof: Yes, sir.

He received a year's punishment in prison.

That was fixed by the jury and it was under the charge of the court, of course under Georgia law, peculiarly, the jury fixes the punishment and under the charge of the Court, the Court charged the mere possession as being -- that that's all they have to consider together with either that he had knowledge that they were obscene or that he should reasonably have known of its obscene nature.

Now, this gets to the scienter question whether or not a state can withdraw the element of scienter by permitting a conviction to rest upon less evidence than actual knowledge that it is obscene.

Justice John M. Harlan: Has your client been out on bail?

Mr. Asinof: Yes, he's been out on bail and the second question involved in this case as I stated is that this Court has held in Grosso and Marchetti, since this case was tried that the Wagering Tax Act is constitutionally unenforceable.

Now, this holding by the Court, we say, renders the search warrant that was issued in this case invalid.

We filed a motion to suppress in the trial court.

In our motion to suppress --

Justice Byron R. White: When was the search warrant issued?

Mr. Asinof: The search warrant was issued before Grosso and Marchetti decision.

It was issued 1967 but it was about -- it was some months before Grosso and Marchetti.

But we filed a motion to suppress the evidence and in our motion, the allegation was made that the films were seized without a valid search warrant, particularly describing the articles to be seized.

That language we say is sufficient to now reach back as of that time and say that that was a sufficient attack upon the warrant itself.

Justice Byron R. White: Do you argue -- do you argue at all that even if the warrant was valid and even if Marchetti and Grosso aren't retroactive that nevertheless the search was invalid because the warrant described gambling paraphernalia and they nevertheless seized the film which -- it isn't like running across contraband that you can just by spying out the plain site.

You have to actually look into the film to find out what's in it.

Mr. Asinof: Not only look into the film --

Justice Byron R. White: Do you take that argument?

Mr. Asinof: Yes, sir.

Not only look at the film but there had been -- this requires on the question of obscenity, it would require at least a finding of the magistrate to determine that these films were obscene.

In this particular case, the evidence is clear that this officer called the Solicitor General and asked the Solicitor General what to do and he told him, if in your opinion they are obscene, seize the films and make a case and I'll set the bond.

Now, we say that this would require before a film or a picture or photograph or anything else can be considered to be obscene, there must be some judicial finding, some notice, some knowledge that these films have been declared to be obscene at least that much and we say that for that reason, that even though officers would be authorized under search warrants to seize contraband not named in the article that they would not be authorized to seize films alleged to be obscene, that the Solicitor General himself had no judicial powers under law of Georgia, had no right to himself has seized in the films, but in this case, he delegated some sort of judicial power to the officer making the -- making the finding and told him if in your opinion, they're obscene then make a case.

Justice William J. Brennan: But you're -- I take it you're relying on Marcus.

You're relying on Marcus?

Mr. Asinof: Yes sir, Marcus case.

Justice William J. Brennan: Of course Marcus involves as I recall it isn't it, a warehouse full of books which there were six or seven that the police have purchased and there on the basis of police examination of the books, they issued the warrant.

Mr. Asinof: That was under the Missouri statute.

Justice William J. Brennan: And we said that they have to have a determination offense but it's a little different.

Here you have just a single item, just how would you get the film to have a determination of obscenity before a search warrant is issued.

Mr. Asinof: Well, if he had it -- if the Solicitor General had instructed the officer, submit your facts to a magistrate and if he --

Justice William J. Brennan: What facts?

He definitely takes the films.

Mr. Asinof: Well, no.

He could by affidavit submit to a magistrate who was authorized to issue a warrant, he could submit what these films revealed to him.

Justice Byron R. White: According to another argument, he wasn't even entitled to look at them.

Justice Thurgood Marshall: That's right.

Mr. Asinof: That's right.

He was not even entitled to look at them which of course is again the question.

But we say under either one of those theories, the seizure of the film was illegal.

Justice William O. Douglas: Well, it wouldn't be obscene unless it lacked some socially redeeming values as I understand it.

Mr. Asinof: Well --

Justice William O. Douglas: You couldn't tell that unless you saw it.

Mr. Asinof: Of course Your Honor that's true but we -- I think that's something that has been the subject of discussion for many, many years as to whether or not an item does have redeeming social value or whether or not it could be classified as obscene.

Whether or not --

Justice William J. Brennan: Were these movies shown at the trial?

Mr. Asinof: Yes sir, the movies were shown at the trial.

Justice William J. Brennan: In the jury trial?

Mr. Asinof: Yes, sir.

Justice William J. Brennan: Are they here?

Mr. Asinof: Yes I think this Court has it and I would say that of course I think and I would concede to this Court that the pictures, the films in so far as films are concerned I think are disgusting but I don't know if disgusting makes them obscene.

I don't know that they would appeal.

They wouldn't appeal to my prurient interest.

I don't know whose prurient interest they would appeal to because I think that they're sickening.

But I don't think that there'd be anymore sickening than it would be to show a man being tortured to death and having guts tore out but that wouldn't be obscene.

It's really hard to say what obscenity and I -- but getting right to the point in this case, we say that if they are the vilest, the foulest, the filthiest pictures that could ever be seen that a person has the right to possess them as long as he does not, and this is what this Court held last year in Redrup and the other cases along with Redrup, that as long as there is no pandering, as long as there is no exhibition to minors and as long as there is no intrusion upon the privacy of other persons who are unwilling to see them then of course, we have nothing to and this is all we have in this case.

Unless we want to accept state's theory that because there was some biscuits being prepared, put in the stove, because of the fact that there was table that was set for eight when they were going to have dinner, and against the statement of the defendant on the trial of the case, nothing to refute that that a man had brought these films to him several days before and told him, “I have some films, I'd like you to see.”

Now, we say this, if the Court please, that wherever we find that a question of obscenity is concerned or whether or not we know that something is obscene.

If A tells B, I have some pictures here I want to give you and these pictures are obscene.

Does that say that B cannot determine or ascertain for himself whether they are obscene to him or does that mean that he would have the right to him first himself inspect those films and say I have a right under the First Amendment to determine --

Justice William J. Brennan: Well, you don't have that case here, why argue that case?

Mr. Asinof: Well, that is --

Justice William J. Brennan: All you have here as I understand it assuming the obscenity of these films, a question whether the possession and nothing more not for sale or otherwise but just possession of itself constitutionally can make a crime under the First Amendment.

Mr. Asinof: That's correct.

Justice William J. Brennan: Isn't that what it is?

Mr. Asinof: That's right.

And that's why I say if Your Honor please, that because of that, a man has right to determine for himself if it offends him, if to him it's obscene because it would violate the First Amendment that if a man handed me some films.

Justice William J. Brennan: Is there anything in this record to show that he had any knowledge of what these films were?

Mr. Asinof: None whatsoever except the fact they said an expert testified that the films have been scratched, one of them was been wound backwards to show that someone had seen them at some time in the past but nothing to show that he had seen them or he had ever viewed them.

And there's nothing to refute or rebut his statement that he had never seen them before.

Justice Hugo L. Black: Were they in his trunk upstairs or drawer?

Mr. Asinof: It was in a desk drawer of his bedroom upstairs.

And there was no set up, nothing set up, no screen set up to show these or view these films.

Justice Hugo L. Black: There's a difference between this and Wilkes case that was tried a long time ago that there they found a paper in the bottom of his trunk, here they found it under desk drawer.

Mr. Asinof: Well --

Justice Hugo L. Black: And they turned them loose.

Mr. Asinof: I think that would analogies.

So I would like to reserve what time I have.

I know the white light hasn't come on, I would like to reserve if I may the time for rebuttal.

Chief Justice Earl Warren: You may.

Mr. Sparks.

Argument of J. Robert Sparks

Mr. Sparks: If it please the Court.

I am the trial counsel who prosecuted this case in the court below, the Superior Court of Fulton County.

So the court has original trial counsel.

Mr. Asinof was a defense counsel.

Now, I want to point out several things to the Court which I think Mr. Asinof neglected to point out because he was so wrapped up in his own argument.

One is this, on the question of whether or not this Georgia statute contains the element of scienter.

I want to point out to the Court that the Supreme Court of Georgia ruled on that in this very case.

The Court said, I'm just reading in part, just a line.

It's contended that being contended that the requirement of reasonable knowledge would withdraw the element of scienter from the definition of the offense and would render a person guilty without actual knowledge of the obscene nature of the matter.

This contention is without merit.

Now, Your Honor, as we have pointed out in our brief, this Court has consistently held that where a state statute is interpreted by the highest court of its state, that this Court is bound by the construction placed on it by that court.

That happened in the Michigan, another obscenity case which the Court of course is familiar with and also in the last Ginsberg case.

Now, in the last Ginsberg case, the New York statute which defined knowledge as this, the word “knowingly possess obscene matter”.

The New York statute said define knowingly as having general knowledge of or reason to know, the exact same words that were in the Georgia statute or reasonably should know or a belief or ground for belief which warrants further inspection or inquiry.

In other words, in the Ginsberg case and that's the G-I-N-S-B-E-R-G case, being two Ginsberg cases in the obscenity field, this Court accepted the construction placed on the scienter feature of the New York statute and said as we are bound to do.

Now, the Georgia Supreme Court said in response to Mr. Asinof's contention that the language of the Georgia statute if such person has knowledge or reasonably should know of the obscene nature of the matter, does not remove scienter from the offense but is merely a statutory expression of a rule of evidence which has been extent in Georgia courts for many years.

That is the only way you can prove intent or knowledge of a person as to anything as to whether goods are stolen or any element involving intent or knowledge unless he confesses is by the circumstances as to whether a reasonable man in the same position would know or would have knowledge of the obscene nature.

So we submit -- I submit very respectfully that by a long series of this Court's own decisions that you cannot go beyond or reverse the judgment of the Georgia Supreme Court on this question of scienter because that is the state court interpreting its own statute and I have cited a number of cases where this Court has said that we are bound by such expression.

This Court also said that in the Michigan case, you said in the Kingsley International Picture Corporation case, in about eight cases, Aero Transit, all of which are listed in our brief.

So that moves us on to the second facet of the attack on the constitutionality of the statute.

I submit most earnestly to the Court that scienter is an element of this offense as interpreted by the Georgia court, by the Georgia Supreme Court and if this Court cannot unless you reverse your prior rulings which are set out in our brief and which I have cited to you, unless you reverse that long line of cases, I don't believe the Court could in keeping with his precedent just say we think the Georgia court was wrong and I said that this does not -- that the statute does not contain the element of scienter.

It's almost exact --

Justice William J. Brennan: What was the state's evidence on scienter?

Mr. Sparks: The state's evidence to prove scienter.

It was circumstantial Your Honor but we think that it was sufficient.

These officers went in with a federal search warrant to seize a wagering paraphernalia.

This man was alleged of many notorious bookmaker, whether a prior record of arrest and a conviction.

Upstairs --

Justice Hugo L. Black: Of course that wouldn't have any connection --

Mr. Sparks: That wouldn't have any connection with this case but I was pointing out the probable cause that we had -- that was 28 pages of probable cause.

Justice William J. Brennan: I'm interested in how you brought evidence and what evidence there was upon which the jury could find that he knew the contents of these motion pictures.

Mr. Sparks: One of the cans bears the label “Young Blood” on it, which is certainly is suggestive title.

It's a homemade label.

I gather from what the Court has said that the Court hasn't viewed these films that are here and I've asked the Court about --

Justice William J. Brennan: I'd still like to know if you don't mind.

Mr. Sparks: Alright sir.

Justice William J. Brennan: What the evidence was that brought home to him knowledge of the contents of those movies?

Mr. Sparks: Well, the evidence showed, Your Honor, that in the upstairs living room, there was a projector set up and a bunch of innocuous films, slides, travelogues, things like that.

These films were not found with the other films, the innocuous or innocent type film but they were found in a desk drawer underneath some papers in his private bedroom.

An officer -- the officers ran them, threw them against the wall, and then went downstairs and told him, says, “We are arresting you for the obscene films which we found upstairs.”

Justice Thurgood Marshall: But why did they show the film?

They were looking for what?

The search warrant was limited to what?

Mr. Sparks: It was --

Justice Thurgood Marshall: With that posture, why did they want to look at the film?

Mr. Sparks: Mr. Justice Marshall I think that they wanted to look at the films for the reason that the films might have been records, they were authorized to look for bookmaking records and it's not inconceivable that --

Justice Thurgood Marshall: They would have them in a tin can marked “Young Blood”?

Mr. Sparks: You could, just like the old “Purloined Letter” scheme, Edgar Allan Poe, the story about putting something in the most conspicuous place.

Justice Thurgood Marshall: And I'm assuming policemen read Edgar Allan Poe?

Justice Byron R. White: And assume as you saw the first film, the first frame, you thought you were still looking for records?

Mr. Sparks: No, sir, but there were three cans.

Justice Byron R. White: They ran through all three, I take it?

Mr. Sparks: They didn't show all three of them Your Honor.

The record shows they only showed a few feet of the second and the third one.

In fact, one of the films that have rewound backwards which shows recent viewing and the pictures were thrown upside down.

Justice William J. Brennan: Now, you're going to tell us that he went downstairs and I gather you are going to tell us he met the defendant, the officer did?

Mr. Sparks: He went downstairs and met the defendant and told the defendant that, “I'm arresting you for those obscene films upstairs.”

The defendant said nothing.

Of course I don't claim you can't use his right to remain silent against him.

That's a constitutional right but it would still seem more logical to say what films if you didn't know that he had any obscene films.

But of course --

Justice William J. Brennan: That's why he said nothing.

Mr. Sparks: Yes, he said nothing.

Justice William J. Brennan: Now, what else have we got?

The officer said that he was arrested for those obscene films, the defendant said nothing.

Mr. Sparks: He said, “Let me call Mr. Asinof.”

And he did call Mr. Asinof.

Justice William J. Brennan: Now does the fact that he called his lawyer, does that indicate that he knew what those films were?

Mr. Sparks: No, sir, but they were his own statement.

He made a statement on the trial.

Georgia has the unsworn statement law where a defendant can either be sworn or make an unsworn statement.

This is what he said and while it is not any admission, it's still significant I think it's very brief.

He said, “I'm a bachelor, I live by myself and I have a girlfriend.

We planned a party for Labor Day.

I invited several couples out.

Later on in the evening, a friend of mine came by and said I brought you something I want you to see.

He handed it to me.

It was three rolls of film.

I took the film upstairs and put it in the desk drawer, closed the desk drawer, and came back downstairs.”

Then he goes on to say, he never looked at it.

However, there were -- two people were in the backyard when the officers made the execution of the search warrant, two men.

Three women came over later that evening well-dressed women.

There was Justice Marshall's three dozen biscuits sitting on the stove.

All the indications were that there was going to be a party and in fact he told the jury that he was going to have a party and in the connection, the context of his statement telling about the party first and a friend bringing the films by and saying “I want you to see them,” I think it's a reasonable deduction that the jury could have drawn that these three films were to be shown at the party.

Justice William J. Brennan: Well, is there anything in what you've told us that support an inference that he had looked to the film and knew what they were?

Mr. Sparks: Only -- one of the federal agents was the former professional photographer, Your Honor and he had -- he testified that the films were badly scratched, that they were dirty, that one of the films had been wound backwards which cause the figures to project upside down on the wall when they showed it and he said that they had obviously been used before, been shown before many times.

It was a well --

Justice Hugo L. Black: Many times?

Many times, did you say?

Mr. Sparks: I'm not certain whether he used the word “many” or not.

I know that he said that they had obviously been shown before, that they had seen -- I believe he said he had seen extensive use.

I could find that for you.

Your --

Chief Justice Earl Warren: We'll adjourn now.

Print this transcript Transcript: 

Argument of J. Robert Sparks

Chief Justice Earl Warren: 293, Robert Eli Stanley, appellant, versus Georgia.

Mr. Sparks, you may continue with your argument.

Mr. Sparks: Mr. Chief Justice and Honorable Justices.

At the recess yesterday afternoon, I was just completing my response to a question by -- questions by Justice Douglas, excuse me not Douglas, Brennan as to the evidence of scienter and I have practically completed my summary of the circumstances which we feel justified the jury to find that this defendant knew of the obscene nature of the matter.

I just want to elaborate any one --

Justice Byron R. White: You aren't arguing that, are you that he knew it was obscene?

You're just arguing that he knew the contents of the film?

Mr. Sparks: That's right, the contents of the film, that he knew the contents of the film, they are of the obscene nature of the film.

That is the way the Georgia statute reads that, I believe.

I just want to point out two things in relation to his statement and I will move on to something else.

In his unsworn statement, he attempted to explain his possession of the films in a manner consistent with lack of knowledge of the contents and I submit that it was unreasonable explanation, some point unreasonable in two respects.

First, he said that a friend brought films by and left them with him saying that he wanted the appellant to view the films.

I submit that it's somewhat unreasonable that films would have exchanged hands without some explanation on the part of the unknown friend, or some query on the part of the appellant as to what kind of films are they, particularly the small eight millimeter films in the can with a homemade label.

I feel quite sure that if anyone came to me and said I've got some films I want you to see, I'd say, “What are they?

Films of your fishing trip, or your family or --

Justice Byron R. White: What if you asked him and said, “They are films about girls.”?

Mr. Sparks: Then I think you --

Justice Byron R. White: (Inaudible) and would you know, or would you have any real clue, that they were obscene films?

Mr. Sparks: I think that would warrant further inquiry, Justice White.

Justice Byron R. White: That may be, but what evidence is there that there was ever any further inquiry or further investigation as to what the films were about?

Mr. Sparks: There is no -- there is no evidence because, of course, this was an unsworn statement and the state was not allowed to cross-examine or go into it without his consent unless he voluntarily submitted himself to cross-examination.

Justice Byron R. White: Well, the state has the burden of proof, doesn't it?

Mr. Sparks: Sir?

Justice Byron R. White: The state has the burden of proof, doesn't it?

Mr. Sparks: Yes sir, the state has the burden of proof, Your Honor.

But I think this is both federal and state law as I recall from my days as an Assistant U.S. Attorney, that where the defense goes ahead with the an affirmative defense, then not the burden of proof but the burden of reason -- of making a reasonable explanation shifts to the defendant and that leads me to my next point and that is that if he did not identify his friend.

He did not -- he neither produced him nor identified him by name.

Justice William J. Brennan: In that statement, he also said, “I never the saw the film before today and never had shown them to anyone, so help me.”

Mr. Sparks: Yes, sir, that is true.

And I want to point in that connection before passing this subject, the case of Smith versus California which this Court decided and which the defendant was convicted for the offense of bare possession of matters under California ordinance which had no element of scienter is interpreted by the California Supreme Court and the Court said in an opinion by Mr. Justice Brennan, we might observe that it has been sometimes since the law viewed itself as impotent to explore the actual state of a man's mind, eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents.

The circumstances may warrant the inference that he was well aware of what a book contained despite his denial and I submit that those quoted words are a pretty analogous to the facts in this case.

We are relying on the circumstances.

We have no direct evidence that he saw, that he knew what the films were but we submit that all the circumstances, the impending party, the films concealed, the title “Young Blood” is rather inadequate explanation.

Justice William J. Brennan: I'm really interested, how does that title suggest anything?

I don't get this “Young Blood.”

What's that suggest?

Or is it my age?

I don't know.

Mr. Sparks: Well, I think it suggests sex, Your Honor.

We normally associate sex with young blood, with young people.

Justice William J. Brennan: I guess it is my age.

Mr. Sparks: I want to pass on to another point.

I gathered yesterday from the questions asked my worthy adversary, Mr. Asinof, that this Court has not yet viewed the contents of the film, which were transmitted to this Court by the direction of the Georgia Supreme Court.

I wish to most respectfully and humbly urge this Court to view the films before ruling on the case.

Justice Abe Fortas: Do you think we have to view the film if there are -- do you think we have to view the film if there are constitutional bases that don't relate to the subject matter of the film for disposing of this case such as the question of mere possession or the search and seizure question?

Mr. Sparks: Your Honor, I --

Justice Abe Fortas: Why would you want us to view the film?

Mr. Sparks: I was fixing -- that was going to be my very next statement as to the legal reason why I feel that the films should be viewed.

Justice Abe Fortas: Even if we think that you can dispose of this case, it must dispose of the case on the possession ground, or the search and seizure Fourth Amendment ground?

Mr. Sparks: Yes, sir.

I do for this reason.

Justice Abe Fortas: Alright, tell me why.

Mr. Sparks: This Court or the majority of this Court has consistently held in obscenity cases from Roth on through Jacobellis, Mishkin, Ginsberg, Memoirs, even Redrup I believe and the last Ginsberg in 1968 that obscenity is not protected by the First Amendment to the Constitution.

And if the Court views these films and finds that they are not only -- they are not borderline obscenity but a hard-core pornography --

Justice Abe Fortas: You mean, if this is obscene -- if this obscene, we should not reach the Fourth Amendment question?

Mr. Sparks: You should not reach the First Amendment question.

Justice Abe Fortas: The Fourth Amendment question, search and seizure.

Mr. Sparks: Oh!

No, sir, but I'm not saying that.

I think as a matter of fact, I am not absolutely certain Justice Stewart that the search and seizure.

The question is actually before this Court.

Justice Abe Fortas: I'm Fortas.

This is Stewart.

Mr. Sparks: Oh!

Mr. Fortas, excuse me, I'm sorry.

Search and seizure is not an appealable question.

The Court noted probable jurisdiction without restricting the question to the only appealable question which is the constitutionality of the Georgia's search and seizure, I mean the constitutionality of the Georgia Obscenity Act.

And the same thing happened in the Mishkin case and the Court dismissed.

They said that the search and seizure question was properly briefed by both parties but then are declined to pass on it and said that probable jurisdiction had been erroneously noted as far as that's concerned.

However, I do feel that the Court would have to pass on the search and seizure question but right now, I'm addressing myself to the constitutionality of the Georgia statute.

Justice Abe Fortas: Well, I understand, but I want to be clear on one matter with respect to your position.

Mr. Sparks: Yes, sir.

Justice Abe Fortas: Now, here are some allegedly obscene films.

I haven't seen them but if I should decide that this case must be reversed on the possession point, or on the search and seizure point, Fourth Amendment point, I would not consider it as presently advised, I would not consider it necessary to endure a sight of motion picture films whatever their content may be and do you consider that -- do you disagree with that present thought of mine?

Mr. Sparks: I disagree with it Your Honor, so far as the First Amendment.

Justice Abe Fortas: I'm not talking about the First Amendment, I'm talking about the two points and I'm talking about, namely the possession and the manner of seizure which the Fourth Amendment points.

Mr. Sparks: Well, Your Honor I feel that the possession is the First Amendment.

And maybe the possession is the First Amendment point, in the sense but not in the sense that you're talking about I take it.

I'm talking about the --

Mr. Sparks: The appellant is asking this Court to declare a mere possession count as a mere possession with scienter count unconstitutional.

Justice Abe Fortas: But if we should conclude that a statute making mere possession, a criminal offense is unconstitutional under First Amendment, regardless of the nature of the films then obviously, it wouldn't be necessary for us to see the films, would it?

Mr. Sparks: Your Honor I take the reverse position.

And I've said that you should see the films and if they are hard-core pornography and outside the protection of the First Amendment as this Court has held in Roth and a whole series of cases, then it would not be necessary for the Court --

Justice Abe Fortas: I know but I say assuming that, we felt assuming that I should conclude that so far as I'm concerned, mere possession cannot be punished as a crime regardless of how obscene the film might be, then it would follow that it there'd be no point in seeing the film, isn't that right?

I mean, that seems to me to follow as a matter of course.

Now, I know your position is that if the film is obscene, mere possession can be punished.

But I say that if I disagreed with that, then obviously, it would not be necessary for me endure a sight of this film.

I'm not characterizing it as obscene.I don't know whether it is or not but it probably is not one of the greatest works of art that's ever been struck by the hand of man.

Mr. Sparks: That's an understatement, Your Honor.

Justice John M. Harlan: And you real, isn't it, that appropriately some of these questions might be judicially resolved?

Mr. Sparks: Yes sir, that's correct.

That's what I mean.

Justice John M. Harlan: (Inaudible) I hope you're going to address yourself to the constitutionality of this statute: mere possession, without any purpose to exhibit, sell, or display?

Mr. Sparks: Yes, sir, that's going to be my next point.

To the best of my knowledge in research and I believe my --

Justice Hugo L. Black: May I ask you before you do that?

Mr. Sparks: Yes, sir.

Justice Hugo L. Black: As I read the record, it seems to me that the only time it's established by evidence that the picture has been displayed in Atlanta, of course when it was displayed in the prosecuting attorney's office to a group of people, is that right?

Mr. Sparks: That is the only evidence that it has been displayed in Atlanta.

I recall that Your Honor asked me --

Justice Byron R. White: Didn't the police look at it where they found it?

Mr. Sparks: Yes sir, you're right.

Thank you.

Justice Byron R. White: Thank you.

Mr. Sparks: They looked at it in the appellant's home and yesterday, Justice Black, you asked me about the -- what the expert photographer said.

He said that the films are badly scratched, and dirty.

They are not in new condition at all.

That's where mistakenly said that they had seen extensive use.

They are not in new condition at all.

One reel rolled backward and never rewound after showing the film.

And he says, “Yes, sir, they obviously have been shown before.”

Justice Thurgood Marshall: But where in the record when you said there were shown in Georgia before?

It doesn't say it at all.

It says they were shown at some place before.

Mr. Sparks: That's true, sir, Your Honor.

We didn't have any eyewitness who watched this appellant show the films.

Justice Byron R. White: And the undisputed evidence was that the appellant had barely come into possession of these films that very day.

Mr. Sparks: That was not the evidence, Your Honor.

It was in the form of an unsworn statement.

Justice Byron R. White: Well, you've been talking about it, though, as the basis for much of your argument.

Mr. Sparks: Yes, sir, under Georgia law, the court -- the jury can pay what attention to it wants to.It can either disregard it or --

Justice Byron R. White: Well, are you suggesting that we should disregard that statement entirely?

Mr. Sparks: I'm suggesting that the Court should consider it, and consider its deficiencies.

Justice Byron R. White: Well, if we do then we know that he had barely come into possession of the films?”

Mr. Sparks: Well, I don't -- I'm not saying that the Court should believe it all in its entirety because the natural thing for him to have done was that was that if that was true, they have brought the person in court or at least named him, so that the prosecution could've brought him into Court.

I have only a couple of minutes left and I haven't even addressed myself to the --

Justice Thurgood Marshall: Do you really need to bring him court?

Or you would've arrested him, wouldn't you?

Because he would've admitted that he had possession of these films.

Mr. Sparks: It's entirely possibly unless he denied.

He might have said, “No, sir.

I don't know Bob Stanley, never say him before, and certainly, I didn't give him any films.”

Then we would have made a state's witness out of him to and proven that the defendant made a false statement in his unsworn statement.

On the question of which Justice Harlan asked me to address myself to the constitutionality of the possession statute, I really see no reason why a possession statute are making hard-core pornography obscene cannot be constitutionally enacted by state.

States have many possession statutes and the Court knows them as well as that of possession of stolen goods, possession of concealed weapons without being -- without having licenses for them, possession of narcotics, possession of dangerous drugs, possession of burglary tools.

The federal government has many possession statutes, possession of a car, transported or stolen car transported in interstate commerce, possession of money taken in an FDIC bank robbery, many possession statutes.

And even during prohibition days, possession of -- bare possession of intoxicating liquors of any type was an offense.

And I see no reason for the possession of hard-core pornography should not be made an offense and I know of no case which -- I think this is a case of first impression before this Court.

I have not been able to find a case exactly in point.

Now, in the Smith case, which this Court admittedly reversed, but only because there was no scienter, it seems to me that the opinion which I've quoted from once before indicates or implies that had the California ordinance had the element of scienter in it that it would've been constitutional because Mr. Justice Brennan said this.

We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller quoting “for carrying an obscene book in stock.”

Justice William J. Brennan: For sale.

Mr. Sparks: That is the --

Justice William J. Brennan: For sale.

What' bookseller mean?

Mr. Sparks: Yes, sir.

But, Your Honor, the California ordinance did not have any element of carrying it in stock for sale.

It just said possession, absolute liability, absolute criminal liability.

Justice William J. Brennan: But that case did involve a bookseller.

Mr. Sparks: It did involve a bookseller.

Justice William J. Brennan: It did involve a prosecution for having books for sale, didn't it?

Mr. Sparks: And I cannot see, honestly, where the First Amendment grounds hit this particular case.

This man is not a bookseller.

He was suspected of being a bookmaker rather than a bookseller.

Now, he was not intending to sell these films so far as the available evidence indicates.

The general public was not deprived of the right to look at the films.

The Georgia Supreme Court, in distinguishing this case from the Marcus case, said as much in its opinion.

It said that the Marcus case on the search warrant Marcus versus Search Warrant.

It said that that case involves freedom of the press and freedom of speech.

This case does not and I don't think this case involves under the facts of this case.

This is just an individual.

He is not being deprived of his right, though the public I should say is not being deprived of the right to view his films.

I see I have the red light.

If I might just --

Justice John M. Harlan: (Inaudible)

Mr. Sparks: I might just say this if I might be allowed one more sentence.

I feel that that is -- in the possession statute is necessary for effective law enforcement from the very type of evidentiary problems which have been pointed out by questions from this Court.

If you catch a man with the pornographic material, how are you going to prove that he has read or he has looked at it, or that he intends to sell it?

You can stop pornography at its source and I earnestly submit that this is the hardest type of hard-core pornography that this Court have ever had before.

Thank you very much.

Chief Justice Earl Warren: Mr. Asinof.

Argument of Wesley R. Asinof

Mr. Asinof: May it please the Court.

With respect to Smith versus California, that prosecution involved a bookseller under an ordinance providing or referring to booksellers.

Consequently, the sale -- we're dealing with a person now who is in the business of selling books.

Justice Byron R. White: Give me your view of how you would argue the possession point, accepting the fact that the Court has said that that obscenity is not protected by the First Amendment.

Mr. Asinof: In the Roth case where that principle was established, we find that the Roth case was a question of distribution and in an instance where an individual who is possessing something that will admittedly say as pornographic, the Constitution does not protect him from the distribution and this is followed in the Redrup case.

Justice Byron R. White: Now, but the case that the obscenity isn't in the First Amendment.

Mr. Asinof: That's correct.

But the case was dealing with a question of the distribution.

Justice Byron R. White: You mean obscenity in the course of distribution is not protected?

And obscenity in possession is protected?

Mr. Asinof: That's correct.

The case does not hold that bare possession or mere possession was not protected.

The Court said in Roth that obscenity was not protected but they were --

Justice Byron R. White: Well, the material doesn't change any, so what is the critical fact?

Mr. Asinof: The critical fact is --

Justice Byron R. White: The material whether it's distributed or not is the same and it is either is or isn't protected by the First Amendment so what is different between possession and distribution?

Mr. Asinof: Because --

Justice Byron R. White: What should you really focus on?

Mr. Asinof: Well, in the distribution, you're dealing with a question of furnishing it to others and the mere possession in your own privacy of your own home where no one else has seen it.

There's no evidence that anyone has or no one else is intended to come into contact with it, I say that no case holds that it is not protected, that an individual cannot take a picture of his whole obscenity and for posterity for himself if he so chooses, because to do so, to prohibit a person from possessing it would in itself violate First Amendment rights.

Because --

Justice John M. Harlan: What are you saying to your adversary's argument that the state constitutionally says, “We'll nip this business in the bud,” the person that is to say that given hard-core pornography or whatever you want to call it.

What do you say about it?

Mr. Asinof: That in itself -- that in itself would be a violation of the First Amendment.

To say that a person could not write what he wants in his own diary let's say, that he's going to keep for his own personal future in his own drawer not to be shown to any other persons, we say that the First Amendment is an absolute amendment that gives the man the freedom of the press and the freedom the press carries with it, the freedom of motion picture films.

Justice John M. Harlan: Well, the Court has held, at least the majority has held that it is not an absolute right in obscenity field.

Mr. Asinof: But that was held in the Roth case, if Your Honor please, and the Roth case involves.

Justice John M. Harlan: That starts from that premise.

Mr. Asinof: That's right.

Justice John M. Harlan: But your adversary is saying is that the state can legitimately, again, on the premise that what's involved here meets the Roth test.

Mr. Asinof: Then we come in to the Redrup case.

Justice John M. Harlan: (Inaudible)

Mr. Asinof: Well then we come in to the Redrup case which was decided since Roth and this Court last year in Redrup and the other cases that went with it reversed on the theory and on the principle, that there had been -- that this was not a case involving one of the three elements, either distribution to minors, distribution to persons who are unwilling to see it, or pandering as was held in Ginsberg.

Now, if we accept Redrup as being the law, then of course we must take Redrup and Roth together as they both hold and say that obscenity insofar as it's mere possession and bare possession, to use that expression, the bare possession is concerned, would be protected by the First Amendment, because there you are not intruding upon the privacy or the rights of others to be free from this stuff.

Now, in the finding -- one thing I would like to answer my opponent with respect to, he says that the state court found that the state statute did not remove the element of scienter.

Now, the rule as I understand it is that this Court will accept an interpretation placed upon a state court as to a non-federal ground.

But as to a federal constitutional ground, this Court is not precluded by virtue of a holding of a state court on a constitutional issue from reversing that state court because this is the final arbiter.

This court is the one that must decide the federal ground.

Now, secondly, in the brief of the appellee on page 45, he cites the case of Rainwater versus Florida which was decided by this Court during the last term.

The Rainwater versus Florida case was one that originated in the state court.

There was a federal search warrant issued under the Wagering Tax Act (Inaudible) certain items from the defendant's possession and they prosecuted them in the state courts.

This Court remanded that under the theory of Grosso and Marchetti, remanded it back to the state court for further proceedings not inconsistent with Grosso and Marchetti.

This is identical to the case we have here.

The state says in its brief that there the prosecution, the state court, was the end-result of the issuance of the federal search warrant.

That's what we have in this case.

This prosecution for obscenity was the end-result of the issuance of the federal search warrant which actually under the Rainwater versus Florida doctrine was inadmissible as having been unconstitutionally obtained.

Now, --

Justice Abe Fortas: To get back to this possession point, under the state law, if -- assuming that possession were a crime, mere possession was a crime and not brought by the First Amendment, could the state get at a search warrant to search your own library on the basis of an affidavit that would say that you have in that library a copy of James Joyce's Ulysses, and a copy of this book and that book, and that there was a -- and therefore, they get out a search warrant to examine your entire library?

Mr. Asinof: I would not think so.

I would not think -- I think that the Constitution, the Fourth Amendment says that the warrant shall particularly describe the articles to be seized.

Justice Abe Fortas: In other words that they'd have to name the specific book?

Mr. Asinof: That is -- that is my view of that Amendment.

Now, one point was raised by my adversary.

He says that the evidence in the case indicated that one reel of film had been wound backwards or was scratched and that that would indicate that someone had previously viewed that film.

But it would not show and we submit to this Court that that fact alone could not and would not show that this defendant or this appellant had ever viewed them.

Now, in conclusion, I would like to state that since my opponent has -- or my adversary has suggested to this Court that this Court view the film, he has in effect stated that that how does this Court know that they are obscene without viewing them.

Now, that is our very position in this case.

We say that with respect to the appellant.

The same position holds true.

If he has never viewed the films, he would not obviously know that they're obscene because without viewing them, you cannot learn of its obscenity and that is the point that we have in this case.

We say that since the evidence doesn't show that he ever viewed the films that therefore there's no evidence that he knew, or could have known that they were obscene.

Chief Justice Earl Warren: Very well.