DYSON v. STEIN

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Argument of Lonny F. Zwiener

Chief Justice Warren E. Burger: We'll hear arguments in number 565, Dyson against Stein.

Mr. Zwiener, you may proceed as soon as you're ready.

Mr. Lonny F. Zwiener: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

This is case is a direct appeal from a decision of a three-judge court holding the Texas obscenity statute unconstitutional.

The case arose in Dallas, Texas when the police officers under search warrants seized -- made seizures under a search warrant of a publication entitled “Dallas Notes.”

It was a newspaper published every two weeks.

The officers had obtained an opinion of Assistant District Attorney that it was obscene.

They applied for a search warrant.

They did make a seizure.

Subsequently, they went back again and made a seizure of the Dallas Notes and other items.

I think we have about 3 --15, three-judge courts in Texas pending dealing with the obscenity statute.

Chief Justice Warren E. Burger: How many?

Mr. Lonny F. Zwiener: About 15, I think at last count and I really would like the facts of any of those other cases.

I would trade them for the facts of this case, but my purpose here is not either to condemn the Dallas police or to really defend their conduct because the order that’s appealed here is not a civil rights type of order.

I mean a Title 42 situation where lawless conduct was alleged proved and found to be present.

This appeal comes because the court below found that the Texas obscenity statute was unconstitutional.

Now, I would like it -- just as the beginning to comment on the impropriety of issuing the injunction here and in lieu over into the --

Justice William O. Douglas: Was this a case of selling or was this a case of possession or what?

Mr. Lonny F. Zwiener: It was a newspaper that was sold and distributed.

Justice William O. Douglas: I know, the charge it was the charged possession or --

Mr. Lonny F. Zwiener: A charge was possession at the time --

Justice William O. Douglas: Not selling?

Mr. Lonny F. Zwiener: That's true, sir.

Justice William O. Douglas: Yes.

Mr. Lonny F. Zwiener: Stanley had not been handed down at that time the Texas statute afforded to cover both distribution and possession.

Justice William O. Douglas: Well, was this naked possession or possession of a purpose of the sale?

Mr. Lonny F. Zwiener: It was naked possession I will refer it.

Chief Justice Warren E. Burger: Now, not with either the purpose or the intent that neither was alleged?

Mr. Lonny F. Zwiener: No, Your Honor.

But again as I say, we have a situation here where the statute was bound to be unconstitutional and an injunction was issued which difficult actually in this case too.

The problem with this case are twofold, I think in the area of the cases that are just been heard -- the three-judge court area their scope of activity.

Their permissible powers is one of the most complicated, even confusing areas of federal law and in this case we add to it the complexities of the obscenity law and we have a double doze, I think of confusion.

But in this case, the final judgment referred granted the injunctive relief and against the future enforcements of Section 1 and 2 of the statute.

Now, I'm not sure whether to interpret that as enjoining future prosecutions or continued enforcement of the then pending prosecutions.

If it's pending prosecutions, of course the anti-injunction statute may or not -- may not apply depending on how this Court rules and the cases that is just heard.

I think if it does enjoin a pending prosecution the anti-injunction applies and it's my position.

If it goes to future prosecutions, I think the injunction was still not proper in this case.

Justice Potter Stewart: But at least in this case there's no question about this jurisdiction of this Court on the direct appeal of this case --

Mr. Lonny F. Zwiener: No, Your Honor I think we do have --

Justice Potter Stewart: -- because there is an injunction very clearly on page 94?

Mr. Lonny F. Zwiener: I think there is yes, Your Honor.

As I read, there has been a good bid of discussion in the proceeding cases about pending in future prosecutions -- the propriety of enjoining the different types.

And there shouldn't logically be any distinction.

Justice Byron R. White: Along with -- on the fact here, was there a pending prosecution (Voice Overlap)?

Mr. Lonny F. Zwiener: Yes sir, there were two pending prosecutions.

Justice Byron R. White: Two were then?

Mr. Lonny F. Zwiener: Yes, sir.

Justice Byron R. White: But they weren't enjoined?

Mr. Lonny F. Zwiener: I'm not sure Your Honor, with the words in the judgment that future enforcement of the obscenity statute is enjoined.

Justice Potter Stewart: As against plaintiff itself?

Mr. Lonny F. Zwiener: Yes, sir.

Justice Potter Stewart: As against plaintiff?

Mr. Lonny F. Zwiener: But now this to me would connote that any other steps to implement the cases that were filed --

Justice Byron R. White: The pending prosecutions against the plaintiff?

Mr. Lonny F. Zwiener: Yes, sir.

Justice Potter Stewart: Would be within the reach of that?

Mr. Lonny F. Zwiener: I would say that it is but I'm not positive, but I think there's a -- I have never heard discussed this notion that equity will not interfere the criminal case.

We talked about the anti-injunction statute, we talked about abstention but we haven't talked before as I have heard about the classic notion the idea of the doctrine of equity will not interfere to criminal case.

And it would certainly I think that this would be the reason for either a federal or state court do not interfere in a criminal case, murder, rape, robbery, that type of case.

The court would not talk about abstention; it would talk about equity will not intrude into a criminal prosecution.

Justice William J. Brennan: What if there's no prosecution pending?

Do you still say its interference with the criminal prosecution if you enjoin the enforcement of a criminal statute?

Mr. Lonny F. Zwiener: Well, I don't really know the answer to that.

I find myself coming back and meeting myself in this area but I think I would answer that, yes, it will not interfere in criminal prosecutions.

Justice William J. Brennan: Even though none is contemplated pending or anything else?

Mr. Lonny F. Zwiener: Well, I see no reason for equity to add if none is contemplated (Voice Overlap) so maybe we won’t event get to that.

Justice William J. Brennan: Well, what is interference?

You don't limit this only to injunction or do you?

Mr. Lonny F. Zwiener: Well, I think mainly it has been injunction (Voice Overlap) they've asked equity authority.

Justice William J. Brennan: What about declaratory relief, is that interference?

Mr. Lonny F. Zwiener: Well -- Oh!

I'm sorry if the Court asked that.

I have never really understood why this Court has held that declaratory relief is proper where no injunction is proper because that is a purely advisory opinion.

You say, uh-huh, the state statute is unconstitutional but we're not going to issue an injunction.

Now, the state as I understood it could just go ahead and just prosecute all it wanted to.

Chief Justice Warren E. Burger: Can you have three-judge court for a declaratory judgment without injunctive relief?

Mr. Lonny F. Zwiener: And I don't think so sir.

Chief Justice Warren E. Burger: Well, are you addressing yourself to three -- or reaction to three-judge courts which declare only but do not enjoin?

Mr. Lonny F. Zwiener: I'm really referring to the three-judge courts to do it.

Chief Justice Warren E. Burger: Well, when a three-judge court does that dissolves itself, doesn’t it?

Mr. Lonny F. Zwiener: Well, I --

Chief Justice Warren E. Burger: Whether it acknowledges it or not.

Mr. Lonny F. Zwiener: I have no trouble by now in -- I'll get to it a minute with deciding that the injunction is proper in this case future or pending if I just read Dombrowski and Cameron -- Cameron v. Johnson.

But Zwickler v. Koota gives me some concern because it seems that this Court was saying to the three-judge court even though you have found that an injunction is not proper.

You should consider the declaratory judgment aspects and this I cannot fit into my thinking on the three-judge court scheme.

Justice Byron R. White: Do you think the declaratory judgment is as much an equitable remedy as injunction and should be governed and was it the court would issue once should be govern with the same standard as an injunction?

Mr. Lonny F. Zwiener: As an injunction?

Justice Byron R. White: As an injunction.

Mr. Lonny F. Zwiener: Well, no sir if we're talking about a suit for declaratory judgment in the federal court construing a federal statute.

Justice William H. Rehnquist: Well, what about a state statute?

Mr. Lonny F. Zwiener: Well, as I say unless it's a proper case for an injunction the fact that the court decides if a statute is unconstitutionally as advisory as witness the case we just argued.

Justice William H. Rehnquist: Well, then you would think the declaratory judgment -- the statute is just unconstitutional as applied to state proceedings?

Mr. Lonny F. Zwiener: No sir, I think --

Justice William H. Rehnquist: Unless, you want to issue an injunction?

Mr. Lonny F. Zwiener: Well, no sir I wouldn't say it's unconstitutional.

Justice William H. Rehnquist: Well, it must be --

Mr. Lonny F. Zwiener: Mr. Justice, it's meaningless in my view.

Justice William H. Rehnquist: Well, according to you it would be just an advisory opinion?

Mr. Lonny F. Zwiener: Yes sir, I don't see that it does anything else.

Justice William H. Rehnquist: Which the federal courts don't issue at all.

Justice William O. Douglas: Constitutionally, they can give.

Mr. Lonny F. Zwiener: Well, as I say this is my trouble with --

Justice William O. Douglas: Zwickler and Koota?

Mr. Lonny F. Zwiener: Yes.

Justice William H. Rehnquist: Well, then what's the declaratory judgment statute then I suggest.

Mr. Lonny F. Zwiener: I beg your pardon sir?

Justice William H. Rehnquist: And with the declaratory judgment statute (Voice Overlap) --

Mr. Lonny F. Zwiener: I have never if there were plaintiff in this case.

I don't think I'd plea to Declaratory Judgment Act, I don't think it's necessary.

I think 2281 and 2284 are all that are necessary with other jurisdictional statutes perhaps.

But if I just take Dombrowski, now as I say the classic notion that equity and abstention will not interfere in a criminal prosecution if you have this, I think abstention has different doctrine and there are probably three or four different abstention doctrines.

But in the free speech area we do have a different rule and Dombrowski announced it.

But then I think if I read Cameron as it interprets Dombrowski, I have no trouble at all in finding injunction in this case was improper because Dombrowski now was a non-pending prosecution type case.

Prosecution was not pending and in that case, Cameron, as Cameron interprets it.

It says that there will not be federal interference unless the statute is excessively broad and vague and where you have the circumstances as you had in Dombrowski where the state courts have been knocking down the search warrants returning evidence.

Stopping the state prosecution and the officers would continue to harass and prosecute on the statutes.

Now, if that is what Dombrowski means and that's the only reason that a federal court can issue an injunction -- a federal three-judge court then I am not at all concerned.

If you have to have Dombrowski circumstances where you have an excessively broad and vague statute on its face and where you have the special harassment circumstances then I see no problem.

Now, in this case, I don't like the facts but there was no -- the decision below is not -- does not rest on harassment.

It rests on the constitutionality of the statute but so I say that the injunction below regardless of whether that statute was constitutional or not was improper.

Now, as far as the statute is concerned, the court below found at this time the Texas statute define obscenity in the terms of Roth.

They are not the added elements that were announced in Memoirs and also suggested in Jacobellis and so forth.

It also purported to forbid mere possession.

The Section said possess or sale, sale or distribute, and so forth and the Court said that it will not try to separate these elements that because it had possession in there it was unconstitutional -- unconstitutionally broad and vague.

We think that this is Roth.

The other circuits -- other three-judge courts have found the Roth definition to be acceptable assuming that a state trial judge will engraft the necessary constitutional safeguards in any charge to a jury and this is what our argument was below and is here.

The Court also, and of course the Court was resting on Stanley in this particular to find that possession was improper of the proscription against it and that the statute was impermissibly vague because it contained this element.

We say of course --

Justice Potter Stewart: Was there any barrier to the plaintiffs raising their constitutional arguments in the pending state prosecutions?

Mr. Lonny F. Zwiener: We say not.

Now, the search has occurred in late 1968.

This petition was filed in the federal district court in January I believe of 1969.

In February, in one of the state charges they filed a motion to suppress and a motion for, I forgot and this was finally granted but long after decision in this case.

Justice William O. Douglas: When was the prosecution dates?

How were they initiated an information or (Inaudible)?

Mr. Lonny F. Zwiener: The information.

Justice William O. Douglas: An information.

Mr. Lonny F. Zwiener: Yes, sir.

Justice William O. Douglas: And they were filed when in relation to the time you have (Voice Overlap)?

Mr. Lonny F. Zwiener: They were filed in December I believe of 1968.

Justice William O. Douglas: I see and then it's a month later the suit was brought (Voice Overlap)?

Mr. Lonny F. Zwiener: Yes, sir.

Justice William O. Douglas: I see.

Mr. Lonny F. Zwiener: And then later they did (Voice Overlap)

Justice William O. Douglas: What I want to try get I want to be sure that there's no question that the criminal prosecutions have actually been initiated before this actual broad.

Mr. Lonny F. Zwiener: That I would think there's any question -

Justice Potter Stewart: And if the plaintiffs had any objections to the constitutionality of the obscenity statute they could’ve raise those objections in the pending criminal prosecutions?

Mr. Lonny F. Zwiener: Yes sir, as I said they did in one case.

There are several ways they can do it under the search warrant procedures of Texas.

You can raise the question (Voice Overlap).

Justice Potter Stewart: You can just file a motion to dismiss the prosecution based on the unconstitutionality?

Mr. Lonny F. Zwiener: They did this and this is a practice that has no statutory framework or foundation in Texas.

However, the courts are beginning to do it to avoid situations like this.

They're beginning to consider as a matter of fact we've had a state court very recently declare that Texas obscenity statute is unconstitutional.

I hate to make the admission I think that court is wrong too.

Justice William O. Douglas: What held unconstitutional?

Mr. Lonny F. Zwiener: I beg your pardon sir?

Justice William O. Douglas: What did you say was held unconstitutional?

Mr. Lonny F. Zwiener: Our Obscenity statute, the state court held it unconstitutional.

Justice Potter Stewart: And that's in the one of the appendix to the amicus brief, isn't it similar I read it?

Mr. Lonny F. Zwiener: Yes, sir.

Justice Potter Stewart: The same statute?

Mr. Lonny F. Zwiener: It -- the amended statute?

Justice Potter Stewart: Yes which is not this statute?

Mr. Lonny F. Zwiener: No sir, it's not.

Justice Potter Stewart: Well, is this statute is not on the books at all?

Mr. Lonny F. Zwiener: Well, it's on the books for this purpose.

I would more suggest mootness because I think one of the Dallas criminal cases is still pending.

I think there are some cases pending in San Antonio and elsewhere around Texas and presumably somebody has done something very bad in the field of obscenity before our new statute was passed and somebody might want to prosecute it for during the periods of limitations.

Justice William O. Douglas: What -- which of your state courts held the amended statute unconstitutional?

Mr. Lonny F. Zwiener: It was the District Court in which (Inaudible) Dallas, Texas.

Justice Potter Stewart: That was Judge (Inaudible)?

Mr. Lonny F. Zwiener: Yes, sir.

That case is now on appeal to Texas Supreme Court.

Justice Potter Stewart: At 03:52 p.m. on the February 9, 1970 according to this?

Mr. Lonny F. Zwiener: Yes, sir.

Now, another problem that the court found below are an assumption was the fact that they said they are on decide but they assumed that there will be a national standard for the judging of obscenity.

In this case, I think this obscenity case presents most of the problems in the obscenity field.

The only one it neglects and doesn't have in it is this prior advisory hearing problem which has given the court so much trouble and I do ask the Court first of all, I would like I think the injunction below is improper whether our statute is constitutional or not.

I also say that the statute is constitutional (Voice Overlap) and it could be constitutionality interpreted --

Justice Potter Stewart: That's on the ground that there was a pending or there were pending prosecution?

Mr. Lonny F. Zwiener: No sir, it's on the ground that Dombrowski circumstances were not present for the issuance of an injunction either against pending or future prosecution.

There were no circumstances present.

Now, there may have been circumstances that could’ve been proved if the Court may have relied on but the court did not in absent of these circumstances which must form a part of the judgment no injunction is proper again as I say constitutionality of the statute or not.

I say that the statute is constitutional and in the way I'm asking this Court to hopefully really not dispose of the case on the injunction aspect.

I think we can win that way, but I would be very hopeful that the Court would invest itself to obscenity so that there will be a definition of obscenity that will be approved out by the majority of the Court.

Justice Potter Stewart: Of course if the District Court was quite wrong in interjecting itself it would be quite wrong of us for -- to continue that interjection in the state court proceedings wouldn’t it?

Mr. Lonny F. Zwiener: Well, sir you have (Voice Overlap).

Justice Potter Stewart: I mean if you really mean it in your argument at the District Court -- the three-judge District Court shouldn’t have interfere here then certainly we shouldn't approve of it?

Chief Justice Warren E. Burger: You'd be asking us for an advisory opinion then, wouldn't you?

Mr. Lonny F. Zwiener: Your Honor, I'm getting off the coast to it.[Laughter]

Which is everybody else has asked the Court not to do but I will say to this Court as the final arbiter of law that in the obscenity field as in the three-judge field, there's hopeless confusion and I think this case presents the necessary points to permit this Court to write on the -- in the obscenity area without violating the purely advisory opinion as I say I'm getting off the coast of it but --

Justice William O. Douglas: It depends on whose ox is gored.

Mr. Lonny F. Zwiener: I beg your pardon?

Justice William O. Douglas: It depends on whose ox is gored.[Laughter]

Mr. Lonny F. Zwiener: That's true and in this case we do need a definition.

We need the no what community, we need to prove obscenity by, we need many other points to say or we'll be in federal court forever.

Now, as a supervisor of the federal system, you say we have some 15 of these cases in Texas decision by this Court on the obscenity problems which solved at least part of the congestion there.

Justice William O. Douglas: Of course if you took the view of Justice Black and myself, you have no problem because --[Laughter]

Mr. Lonny F. Zwiener: This is one that I don't want urge on the tort --[Laughter]

Mr. Lonny F. Zwiener: -- but I would say this to you, Your Honor that if a majority of the Court did hold that way it would solve a lot of problems too.

Chief Justice Warren E. Burger: What you want is a final advisory opinion?[Laughter]

Mr. Lonny F. Zwiener: Judge if I have -- Your Honor, Mr. Chief Justice if it had made a crime --

Justice Hugo L. Black: But if It's made crime.

If it's made a crime, the trouble is the definition of the crime that would seem to be in the duty of the legislative body and not us.

Mr. Lonny F. Zwiener: Well, I think it is the duty of the legislative body Your Honor Mr. Justice Black and we have --

Justice Hugo L. Black: If you can't do it then they can't do it.

Mr. Lonny F. Zwiener: Well, now you, this Court in Roth handed down a definition, told us what we thought should be (Voice Overlap) our legislature gone together --

Justice Hugo L. Black: How many pages of that definition in?

Mr. Lonny F. Zwiener: Well, in a lot of pages Your Honor.

But we did do the best we could with Roth.

We amended the statute, now we've come along adopted the Memoirs test, and if the Court does not have done the view of you and Justice Douglas, then we certainly need the majority definition if they do adopt your position well then I guess we don’t need one.

Thank you.

Chief Justice Warren E. Burger: Mr. Richards.

Argument of David R. Richards

Mr. David R. Richards: Mr. Chief Justice and may it please the Court.

Let me clarify if I may at the outset one matter very clearly there is no injunction here against the pending prosecution that ironically I have sought only declaratory relief below.

The issue was raised where that required the three-judge panel and in accordance with the present practice of the Fifth Circuit, a three-judge panel was designated to decide that threshold question at the necessity of panel.

At that point, I amended my pleadings.

It appeared at page 77 and reinserted the prayer for injunctive relief with the exception of presently pending causes.

An assumption of that point being since they have three-judge is coming they might as well clarify their jurisdiction.

The court's opinion at page 81 characterizes our prayer as one for injunction with the exception of presently pending causes.

And I would assume in this background in the clear interpretation of the order is that the injunctive order runs only against future enforcement of the statute as to the plaintiff and does not inhibit the processing of the presently pending causes.

Justice Potter Stewart: The point is that there is not a 2283 problem here at all as you and your complaint sedulously avoided it and that the three-judge court in its decree did likewise.

Mr. David R. Richards: I sedulously attempted to avoid it and I think I hope I successfully avoided 2283 problem.

Frankly, we do not think we even have to turn to Dombrowski for our authority but we can go back to 1923 in Justice Butler’s opinion in Terrace versus Thompson which I think quite clearly speaks to the right of a litigant to go to the federal court and obtain injunctive relied against the enforcement of the state’s statute which impinges upon his -- and that is its property rights but the opinion broadly addressed itself to individual freedoms.

Justice Byron R. White: What is that case?

Mr. David R. Richards: Excuse me, sir?

Justice Byron R. White: What is that case by Judge Butler?

Mr. David R. Richards: Terrace versus Thompson, 263 U.S. 197.

Equity jurisdiction will be exercised to enjoin the threat enforcement of the state law which contravenes a federal constitution wherever it is essential in order effectuate and protect property rights or rights of persons against injuries otherwise irremediable.

We think that the past sphere show just that kind of irremediable injury or potential injury.

The plaintiff is a young man publishing an underground newspaper in the City of Dallas, Texas grant a file with the Dallas police.

As the head of the vice squad admitted on his deposition the police became concerned about the newspaper in general and decide to go to District Attorney and show him copy of it.

Now, we were unable to reprint the copy in the appendix, it is a part of the record.

And we submit that it's not obscene under any standard extent.

The District Attorney O'Brian didn’t look obscene to him so the Dallas police didn't get their search warrant there in afternoon they waited until night without the (Inaudible) and got Justice Otis to issue a warrant to seize obscene matter.

They didn't show the Justice Otis the newspaper upon which they relied to obtain their warrant.

They arrived at Mr. Stein's residence about 10 at night, conducted with two trucks, a dozen police officers and trustees seized by their own admission two tons of newspaper, periodicals, typewriters and cameras, money, a brown sweater even, effectively putting Mr. Stein out of business they thought --

Justice Hugo L. Black: What was the brown sweater, you say?

Mr. David R. Richards: This was one of the items they seized with no explanation.

Justice Hugo L. Black: By showing obscenity?

Mr. David R. Richards: Well, they treated everything --[Laughter]

Mr. David R. Richards: -- everything they found as an instrumentality of the crime as their explanation for the seizure of the tables --

Justice Hugo L. Black: That was instrumentality of making a crime, being the crime of obscenity?

Mr. David R. Richards: This was apparently --

Justice Hugo L. Black: A brown sweater.

It was brown.[Laughter]

Mr. David R. Richards: The police officer when asked of on deposition why he had seized a poster of Mao Tse-tung off the wall --

Justice Hugo L. Black: Of what?

Mr. David R. Richards: I can't pronounce the name properly, Mao Tse-tung, the premier of Communist China.

They took that poster off the wall and I asked why was it seized that particular item.

And they said, we did not know what to take and what not to take so simply took everything.

Now, that was on October 30.

Justice Potter Stewart: Then naturally as an advocate you’re --

Mr. David R. Richards: Right.

Justice Potter Stewart: -- very naturally you gave us that background but none of that has anything to do with the case before us, does it?

Mr. David R. Richards: It seems to me as the factual context in which an injunction is issued.

Justice Potter Stewart: Yes, but you're enjoining the enforcement of these particular statutes?

Mr. David R. Richards: Well, let me say if I may Your Honor --

Justice Potter Stewart: That search and seizure is not before us in any sense of the word, is it or am I mistaken if it is?

Mr. David R. Richards: It's not, it's before you it seems to me to the extent that this statute was relied upon by the Dallas police who felt that the statute gave them the authority to make on the spot determination as to the obscenity of any given material and confiscate that material.

Now, that's how they view the statute.

Justice Potter Stewart: But as I understand the three-judge court it was dealing with the application of the statute to your clients, it was dealing with the statute on its face and it declared statute constitutionally invalid on its face and that's our issue here, isn’t it?

Mr. David R. Richards: Quite right.

That's --

Justice Potter Stewart: It has nothing to do with that search and seizure although naturally the colorful facts of that or something that he was an advocate want to tell us about?

Mr. David R. Richards: Well, I understand, maybe I do but let me at least say that at least in colloquy with prior counsel and in earlier cases argued about yesterday and today, I sense a certain feeling upon the Court that injunction should not be issued except in somewhat -- in circumstances which demonstrated a continuity perhaps or threat of continuing violations that concern that First Amendment Rights may be over burden by a pattern of conduct.

I think the two searches and seizures here do reflect the kind of pattern, the kind of context in which injunctive relief is certainly addresses itself to lower court's discretion. (Voice Overlap)

Justice Potter Stewart: Well, except that these -- if these very prosecutions which are the only prosecutions you did not seek to enjoin?

Mr. David R. Richards: I did not seek to enjoin of any prosecution.

Justice Potter Stewart: So you are in a rather odd position to say that the facts of these prosecutions are what entitle you to an injunction when you -- these are the only -- these are the very prosecutions you did not ask an injunction against?

Mr. David R. Richards: Well, let me make myself -- I considered that the injunctive relief I sought in the injunctive relief that I obtained run to all defendants and that includes the Dallas police, that frankly it was not the pending prosecutions that represented the threat.

It was the repeated searches and seizures pursuant to the obscenity statute which we felt assure it was going to assure that demise of the newspaper if they persisted.

Justice Potter Stewart: Why couldn't you get what relief you wanted in the pending prosecution?

Mr. David R. Richards: Well, if I may say at that time the Texas Court of Criminal Appeals which was the highest Appellate Court of Texas with respect to criminal matters had addressed itself to the two fundamental issues upon which I have attacked the statute and upheld it.

One, they had in Sullivan versus State which is cited in my brief upheld the statute in so far as it made criminal simple possession of obscene matter.

So I assume that the lower court of Texas would consider themselves bound by that determination.

The second attack I made on the statute was that -- one more I guess the protection of attack that the exemption the statute gave to daily and weekly newspaper was rendered in unconstitutional --

Justice Potter Stewart: But you did have a way of attacking the statute in the pending prosecution?

Mr. David R. Richards: We still have the question occurs whether that -- yes I have a way of attacking, they could go on trial and --

Justice Potter Stewart: I take it you argue that even if you must wait to attack in the state court and in a state trial court that once it rules against so you could go to federal court or would you have to appeal?

Mr. David R. Richards: I take it that at that stage I -- the remedy I would assume would be one of appeal from the lower court condition.

Justice Potter Stewart: Well, what so -- why not -- what's your excuse for not going that route rather than going to the federal court?

Mr. David R. Richards: My excuse if I'm required to have one is that I'm dealing here with the publisher of newspaper who’s being subjected to repeated harassment by the Dallas police pursuant to this statute --

Justice Potter Stewart: That will end once the -- if you win on your declaratory judgment case?

I mean in that will end if you win your -- if you win on your objection in the state court.

Mr. David R. Richards: If I may say we do elude in our brief since it’s not of record.

We filed and presented and argued at some link the motion to suppress in the state court and one case in February of 1969 and its finding on October of 1969 that the state court did grant that motion.

Some -- almost 10 months later, I think in the second pending criminal case are a motion to dismiss has been pending at least that long has never been acted upon.

Now, I would submit that during the period of gestation that we might will not -- the newspaper may will not have existed.

Now, we have one more raid of this nature which typewriters and all the implements of the crime or seize might well have brought it to a halt.

We felt that it was the kind of circumstance that did require, did warrant injunctive relief.

Now, independent of the injunctive relief, we think that what we did in the relief we sought here was clearly on the contemplation of the declaratory judgment statute.

In fact, that these legislative history of the statutes suggest that this is part of its purpose and that is to permit persons to go federal court to obtain declaratory judgment as to the unconstitutionality of a statute without risking future prosecution, without risking further harassment under a state statute which is on its face overbroad and unconstitutional.

Quoting from the Senate Report, “much of the hostility to the extensive use of the injunction powered by the federal courts will be obviated by enabling the courts to render declaratory judgments.”

And again, if I may say it was my thought initially that declaratory relief would've been ample relief for us but there was -- we had a three-judge court convened it was seemed a reasonable use of the time to reinstate a prayer for injunctive relief.

We suggest that --

Justice Thurgood Marshall: As a matter of fact, you can't get a three-judge court without it, isn't that the truth?

Mr. David R. Richards: Well, we have practice in Texas -- the decision of the Fifth Circuit rather Jackson versus Choate says that whenever the issue of a necessity of a three-judge court is raised that a three-judge court would be appointed to determine whether it’s required.

In this particular instance, I would -- have never by pleadings to declaratory relief a three-judge court was appointed to determine whether this required its action.

Then I admitted my pleadings thereafter but --

Justice Thurgood Marshall: Well, I'm no too interested in what Fifth Circuit says.

The statute says you asked for an injunction --

Mr. David R. Richards: That's correct.

Justice Thurgood Marshall: -- or you don't get a three-judge court?

Mr. David R. Richards: That's correct and I read the cases to say that a three-judge court is not required for declaratory relief.

Chief Justice Warren E. Burger: Well, are you suggesting that the Fifth Circuit practice is to convene a three-judge court just for a declaratory judgment?

Mr. David R. Richards: No, sir.

No, Your Honor.

I'm suggesting that practice is that when the issue is raised as to whether a three-judge court is required that the practice now obtaining is to under a decision Jackson versus Choate to designate a three-judge panel to decide in the first instance whether or not their action is required.

Chief Justice Warren E. Burger: But if the pleading is filed with the single district judge and it doesn't ask for an injunctive relief, is there any need to have two other judges help him decide but it doesn’t comply with the statute?

Mr. David R. Richards: Not in my view, no sir.

Justice Byron R. White: Who raise the issues?

Mr. David R. Richards: I would just try to fair it out the record.

My recollection is and that but I don’t want to be dishonest with the record, is that the state raised either and perhaps not the Attorney General but we have the District Attorney in, we have City Attorney in, and that one of them raised the question of whether I contain declaratory relief from a simply a single judge when that raised under the prevailing practice that threshold question was to be addressed to three-judge panel.

The three-judge panel was appointed.

We think that the only argument that would address itself of court's action is whether they should've abstained from acting.

We think it quite clear that under Baggett and under Harman versus Forssenius, there was no possibility of a state court interpretation that would have narrowed the statute even if constitutional.

The statute clearly punished mere possession of obscene matter, charges that were filed against my client Stein were simple possession as counsel perceives of what was alleged to be obscene matter that there was no possibility of a narrowing construction that would have save the statute and under those circumstances certainly no reason --

Justice Thurgood Marshall: Do you see any difference between the possession of one newspaper and a couple of hundred?

Mr. David R. Richards: Do you mean in so far as it supports the inference that you possess for the purpose of distribution?

I would think possession of 200 would suggest an inference that you possess the newspapers for purposes of distribution.

Justice Thurgood Marshall: So you just don't have mere possession.

You have possession for a purpose?

Mr. David R. Richards: Let me say Your Honor, that this case has a peculiar factual rank and that the alleged obscene matter that residence that were searched was a residence and an office.

The upstairs was a residence.

The lower part was the office.

Part of the obscene matter upon which the prosecution was founded were photographs seized in the bedroom of the plaintiff Stein.

Wholly apart and separate and unrelated to the publication of the newspapers, so we had factually a very close Stanley kind of case that is we have both newspapers downstairs and photographs upstairs that were unrelated to the publication of the newspaper.

I mean that's in my view.

Justice Thurgood Marshall: Stanley was a one man home decides to living by himself (Inaudible)?

Justice Potter Stewart: One man, one book?

Mr. David R. Richards: [Laughter] These particular films were in cardboard box under Stein's bed and it seems to us that it put it into Stanley context.

The -- we find ourselves then as we view the case that we have no 2283 problems, hence since we did not seek to enjoin the pending prosecutions and as I understand this Court's opinion in Dombrowski and Judge Haynesworth in Baines restraints upon on future prosecutions are beyond the reach of Section 2283.

And that our case really falls within that narrow area of comity or abstention which this Court has spoken to in a number of opinions.

I guess most recently it seemed in Zwickler versus Koota in which the Court said that the trial court in a case such as this had the duty to look to the necessity of declaratory relief independent of the determination as to injunctive relief.

And we think that in this instance, the declaratory relief was clearly proper under the governing decisions of this Court.

We submit that this Court when it said that wherever the federal court said human rights under the federal constitutional are always a proper civic for adjudication but this would simply the kind of case we had -- the human rights we have where searches and seizures that were clearly reminiscent of Stanford versus Texas if anything they were worst and not one search but two searches, no indication by the Dallas police.

They intended to abandon this course of conduct relying upon a Texas statute that on its face was overbroad.

And we would suggest that this case actually a sort of a proof of the pudding in the sense of a necessity of a principle akin to Dombrowski or akin to other decisions of this Court.

That is facts that cry out for some relief, cry out for protection under the federal constitution and require the immediate attention and cannot be allowed to languish while state criminal prosecutions there's been no inhibition against the state from prosecuting Mr. Stein and we’re now almost two years from the filing of the original prosecution and they have it moved.

This and we think in keeping with my experience at least while I practice in Dallas there were off times long delays from between the filing of a prosecution and its all for a disposition.

We caught ourselves when we had to find action and we think that lower court order is quite proper.

The Court's opinion addresses itself to obscenity not only on the ground that the statute punished mere possession but that it failed to contain the standard that was appeared expressly in Memoirs, again in Redrup, that is that the material be orderly without redeeming social value but Texas statute did not contain that narrowing deformation.

And hence, in our view permitted police officers such as in the instant case to use their own discretion, seize whatever they felt inclined to seize and hence the statute on this ground was overbroad.

In this connection, we do submit that none of the material seized at least it appears of record here -- the newspaper clearly was not obscene.

It was offensive, it may have been in bad taste, it may have some accorded ones views but it clearly was pure and simple speech of a highly political character.

It's a dialogue, a rhetoric that it is new but it's at least it's political and it's the kind that's fairly protected by the First Amendment.

Finally, in closing, we would say that the Texas statute although the lower court failed to pass upon it.

There was entire alternative ground which the statute could've been stricken in our view and that is the statute's exemption wholly arbitrary exemption of daily and weekly newspapers by men who could not have the money to get himself out once a week, hence fell out of the statute because he published twice a month but yet the statute wrote a broad exemption for daily and weekly newspapers.

We think that in as much as we are in the area of what our essential fundamental rights of speech press that the standard by which this statute is to be just is not one of -- whether its arbitrary but rather whether this serves any compelling state interest that is the exemption as daily and weekly newspapers and we suggest that there is no compelling state interest to be served by that exemption and that provide an entirely alternative ground to affirm the court's action below without addressing itself to Mr. Zwiener’s request to write a final disposition on the question of obscenity.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Richards.

Mr. Zwiener, you have about eight minutes left.

Rebuttal of Lonny F. Zwiener

Mr. Lonny F. Zwiener: Thank you, Your Honor.

I'd like to address myself just a minute to this exemption of newspapers as I said in the beginning whether the statute is constitutional or not the injunction was improper.

But this exemption I think is perhaps unwarranted, unjustified but it was the best experience of the legislature at the time they passed this obscenity statute.

Their experience was that newspapers do not publish pictures of nude women and so forth and they said well, we will exempt the newspapers both daily and weekly.

I don't know that anybody thought of a newspaper published any other time.

As a matter of fact in the briefs below -- I brief the question fairly extensively and a newspaper was something that apparently is published either daily or weekly according to the common parlance but this I think was what the legislature knew of obscenity at the time this was a legislative judgment that in the newspapers matters obscene did not appear.

The facts were discussed and I might expound on my just a moment on my thought that if these Dallas police officers did engage in lawless conduct, ignoring the statute or in ignoring proper constitution procedures you do not in my judgment have a three-judge court case.

You have a civil rights case which might be handled by one judge.

It would be not be a situation where you declare the statute unconstitutional.

There are some questions in my mind whether an injunction could be issued in those cases but certainly the remedy would be as a civil rights complaint and I'm being harassed, tormented by the police officers who were deliberately setting out to suppress my civil rights.

We don't have this situation here.

In conclusion, I again think that the facts of this case made in opinion for this Court on obscenity.

I think my preference would be if the court wrote Judge Harlan's view taken in Roth where he expressed the point of view that the state should be permitted to legislate in this area without regard to the national standard saying that one of the geniuses of the federal system as we have some 48 at that time little laboratories where this type of experimentation can go on and he sees nothing that will be detrimental to the contrary in permitting the state to experiment.

And this --

Justice William J. Brennan: And now I take that you're urged to get some clarification as profuse therein might confuse the situation in porn?[Laughter]

Mr. Lonny F. Zwiener: Well, perhaps so.

Justice William J. Brennan: Have you thought of that?

Mr. Lonny F. Zwiener: It might Your Honor but I don’t know how it could really.[Laughter]

Chief Justice Warren E. Burger: What you'd really like to have us do is leave it to the states?

Mr. Lonny F. Zwiener: Of course.

This would be my preference if not I would like a definition of obscenity from this Court and if you want to include with no redeeming social value, I think this is properly defensive issue that the defendant could be expected to prove.

This was patently offensive and it appeals to pure answers this should be enough to initiate prosecution, let the defendant then show that there is some redeeming social value.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Zwiener.

Thank you Mr. Richards.

The case is submitted.