BLOUNT v. RIZZI

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Argument of Peter L. Strauss

Chief Justice Warren E. Burger: We’ll hear arguments in number 55, Blount against Rizzi Doing Business As The Mailbox.

Mr. Strauss.

Mr. Peter L. Strauss: Mr. Chief Justice and may it please the Court.

In this case, a three-judge District Court sitting in the Central District of California has held Section 4006 of the Postal Code unconstitutional on its face.

In the Book Bin case which immediately follows, another such Court sitting in the Northern District to Georgia also held Section 4006 unconstitutional on its face together with Section 4007 of the code.

And because of the similarity of the issues, the government filed a single jurisdictional statement, brief and appendix and I believe that will be helpful now to make a statement in sufficient detailed to illuminate the issue in both cases.

And I say parenthetically that while I will continue to refer to the statute of Sections 4005 and 4006 under the Postal Reform Act passed in the middle of the summer, they are now actually Section or they will shortly be Sections 3005 and 3006, but they are otherwise unchanged.

The decisions in both Courts were limited to procedural questions arising under the statute.

While the papers for appellees contended that the publications in question are not obscene, my understanding is that the proceedings never reached that point and that in fact neither of the three-judge courts which decided these cases ever had the magazines in issue before them.

The decisions assumed that the traffic in obscenity could be barred from the mails and considered only whether these two Sections were constitutionally appropriate procedures for accomplishing that purpose.

Section 4006 provides that when the postmaster general finds the person as using the mails to sell or advertise obscene matter, he may issue an administrative order intercepting mail addressed to that person and directing that it be returned to the sender marked as unlawful.

The Section and its remedy are almost precisely the same as that provided in Section 4005 of the Code.

Again, now we numbered Section 3005, dealing with the use of the mails to promote fraudulent enterprises, a Section which this Court has twice sustained most recently an opinion my Mr. Justice Black in Donaldson versus Read Magazine, 333 U.S. 178.

Administrative proceedings under Section 4006 again are governed by the same regulations as are used in broad proceedings under Section 4005.

Section 4007 governs preliminary juridical relief for both Section 4005 and Section 4006.

The regulations concerned that to govern the administrative proceedings are set out and extend so and in appendix to our jurisdictional statement.

Under these regulations, the statute has much narrower scope than might at first appeared from its language.

Proceedings start when the Postmaster General discovers that possibly obscene matter is being sold or advertised through the mail.

There is, that is no obligation to submit any material to him for clearance of any kind or for any other purpose.

After complaint and notice a trial type administrative hearing, fully complying with the Administrative Procedure Act is held.

In that hearing, the Government not only has the burden of initiating it by complaint, but also of establishing the obscenity of the materials or the fraudulent nature of the materials challenged.

During the period in which the hearings are taking twice, unless there has been judicial relief under Section 4007, the mailer continuous to receive his mail completely unimpeded.

The hearing officer is a regular departmental examiner whose time typically is principally devoted to contractual issues and other departmental matters.

He is required to write as full an opinion on as carefully preserved a record as any Federal District Judge would be.

The regulations urge speed in conducting the hearings and disposing of the complaint, but again it is only when a final administrative determination has been made that the item sold or advertised are indeed obscene that any step can be taken by the post office on the basis of the administrative proceedings to interdict the defendant’s mail.

Like these procedures, the order entered by the Postmaster in a Section 4006 case is identical in form and in execution to that which is entered in fraud cases under Section 4005.

It directs the Postmaster to remove from the mail and return to the sender appropriately stamped, all mail connected with the items which have been found obscene or fraudulent as the case maybe.

It also directs the Postmaster to refuse to honor postal money orders drawn in payment for these items or in response to the fraudulent enterprise.

It maybe clear from the form of address used or from information on the envelope that some mail is unconnected with the adjudicated items.

That mail is immediately delivered.

The rest generally speaking, the Postmaster cannot inspect on its own but since the constitution and statutes protect first class mail from such inspection.

It is therefore held that the post office for inspection by the addressee and anything not concerned with the adjudicated items will be delivered to him when he inspects it.

Only mail which is connected with the adjudicated items or which is not inspected within a reasonable time, they are stamped and returned to the sender marked as the statute directs.

Once the Section 4006 order has become final in administrative proceedings, the order goes into effect automatically without any need for judicial enforcement.

Review maybe sought however in District Court.

And in order to describe the effect that we believe that review has on the administrative order, it will be helpful to turn now to Section 4007 which is principally at issue here in the second of these two cases, the Book Bin case.

Section 4007 provides for preliminary judicial relief during the pendency of administrative proceedings under both the fraud and the obscenity provisions.

It has been prominently used in fraud cases and it might be instructive to give an example of that.

An advertisement was recently paste -- placed in a California Newspaper offering a very low cost to Hawaii vacation if the person responding would only send a $25.00 registration fee.

The post office, suspecting fraud and able to convince District Judge that there was probable cause to believe that the advertisement was fraudulent, obtained a Section 4007 order and under that order was able to intercept $250,000.00 in remittances that had been sent to the advertiser who indeed did prove as I understand to be conducting a fraudulent campaign.

Similarly in a Section 4006 case, that is in an obscenity case use of a Section 4007 order might be proper or helpful in preventing widespread dissemination of the materials concerned before administrative proceedings could be complete.

Procedures under Section 4007 are those which govern interim injunctive relief generally in Federal Courts and in particular those specified by rule 65 of the Federal Rules of Civil Procedure.

Chief Justice Warren E. Burger: Mr. Strauss, let me be sure I get the procedure in this interception case that you speak of, the tourist travel fraud.

The mail is impounded in that interim period, I take it.

Mr. Peter L. Strauss: That’s right.

Chief Justice Warren E. Burger: That preserves phrases of the situation until final decision, is that correct?

Mr. Peter L. Strauss: Correct and of course the same situation here.

The mailer may continue to, when I speak of the mailer, the person against whom the order is directed, may continue to advertise, and may continue solicit remittances and if he ultimately prevails well he will receive all those orders and remittances.

Chief Justice Warren E. Burger: But are mailing -- is the remittances are impounded and the mailings impounded as well?

Mr. Peter L. Strauss: Any letter to him would be dealt with in the same way as under the statute except that it wouldn’t be returned.

That is mail which clearly was not connected with the enterprise would be delivered.

A mail which might be would be held for inspection and could be removed if it was found not to be connected.

The relationship of the statute to Rule 65, I think is significant because of that Section's limitations on the possibility of ex parte relief.

If the Government knows the mailer's address for the purpose of getting relief under Section 4007, that obviously also knows his address for the purpose serving notice of those proceedings.

And for these reasons, such proceedings can never be ex parte.

In order to justify interim relief, the government must produce the material thought to obscene and must satisfy the judge that there is probable cause to believe that it is obscene.

The interim relief granted as I just explained is the impounding of the incoming mail with delivery of mail which seems not to be concerned with the enterprise in question and possible delivery of other mail with an inspection it is found not to have to do with it.

In addition, as in the case of all interim relief in this nature, there is always available through judicial processes, the possibility of modification of the order when either delay or other circumstances would tend to warrant that relief.

Because Section 4007, if I may return now to Section 4006, because Section 4007 provides only for impounding the mail during review of an administrative order and Section 4007 specifically states that it is preliminary relief both during the administrative proceedings and during any appeal there from.

Because Section 4007 provides only for impounding of the mail during review of the order, we have interpreted Section 4006 as subject to the same limitation.

That is if review of the Section 4006 order is sought, the post office can only impound incoming mail until its order has been judicially approved.

The statute on its face is subject to the contrary interpretation and indeed if no review were sought, the post office believes that the Section 4006 orders immediately effective.

But we think the necessary consequence of Section 4007 is at least that where review of the Section 4006 order is sought.

That has the effect of transmuting the relief for the interim to simple impoundment only when judicial approval has been obtained were review is sought, could the post office begin to return mail to the sender stamped as the statute directs.

And indeed as we point out in our brief, one of the possibilities open in this case, we don’t urge it, but we don’t believe it would wrench the statute if it we’re necessary, would be to give an even more restrictive interpretation to Section 4006 and hold that where review is sought no effect could be given to Section 4006 order so that interim relief would depend entirely on the availability and the obtaining of judicial relief under Section 4007.

Turning very briefly to the facts of this particular case, appellee publishes advertises and sells through the mails a variety of magazines to the character described in our brief.

In the fall of 1968, the Postmaster General become aware of seven of these in particular and directed that Section 4006 proceedings be brought.

A complaint was filed and an administrative hearing set for December 3, 1968.

On the same day as the hearing December 3, the post office secured the temporary restraining order under Section 4007 specifically limited to the seven magazines charged on the basis of the finding of probable cause to believe them obscene.

On December 31, the judicial officer filed the length of the opinion, set out as an appendix to our brief and our jurisdictional statement finding that each of the magazines was obscene.

Appellee then brought this injunctive action to bar enforcement of the resulting administrative order.

A three-judge court was convened and held Section 4006 unconstitutional on its face.

The sole stated ground of decision was that the statute failed to meet the standard set by this Court in Freedman versus Maryland 380 U.S. 51.

On the Government’s appeal, this Court noted probable jurisdiction on March 2, of this year.

Now I think there are three principle points to which I have to address myself.

One of them not decided by either of the courts below, but suggested I think more or less inevitably by intervening decisions which as this Court knows we have appealed here.

And that is the question extensively settled in Roth versus United States whether indeed the Congress can regulate the use of mails for the sending of obscene matter.

The second question is whether the particular procedures, administrative procedures in this case as I mentioned this case, the Mailbox case deals only with Section 4006 and when I refer to Section 4007 any discussion of it, I think it would appropriately deferred to the Book Bin case whether the administrative procedures for determining obscenity are appropriate under this Court’s decision in Freedman versus Maryland, now with the sole grounded decision below.

The third point which was a grounded decision in the Book Bin case is the issue whether the orders which maybe obtained as relief are a proper form of relief in light of this Court’s decisions and in particular decision Lamont versus the Postmaster General.

On the question of authority to close the mails to this kind of matter, the general authority of Congress over the mails is firmly established in as I mentioned before precisely similar circumstances except that it -- the occasion was fraud rather than obscenity.

This Court has upheld by a substantial margin, precisely the same form of relief, that is the Donaldson case which we discuss at some length in our brief, but it might be helpful I think to simply read one short passage from the opinion appearing at page 190 of the report which it seems to us is equally applicable here.

All the forgoing statutes and others which need not be referred to manifest a purpose of Congress to utilize its powers to protect people against fraud in that case, this Government power has always been recognized in this country and it’s firmly established.

The particular statutes here attacked have been regularly enforced by the executive officers in the Courts for more than half a century.

They are now part and parcel of our governmental fabric.

The same maybe said with equal strength I think of the obscenity statutes which were upheld not six years later, not this particular statute, but other statutes dealing with the government’s authority over the mails in the Roth case.

Justice Potter Stewart: When was this particular statute first enacted?

Mr. Peter L. Strauss: This statute was enacted in 1950, two years after the decision in Donaldson and on the map, excuse me on the model, on the model of the --

Justice Harry A. Blackmun: I take it then, you feel that if an affirmance comes along here, then Section 4005 and the integrity of the Donaldson holding are both placed in jeopardy?

Mr. Peter L. Strauss: Well obviously Mr. Justice Blackmun it would depend somewhat on the character of the affirmance.

I think there is a particular risk in that direction under Section 4007 which treats both statutes and the objections to what seems to me to run equally to the fraud statute as to here.

The Court maybe able to discern some differences between fraud and obscenity, the government does not.

Other than that, the answer to your question is certainly yes.

The interests of the Government in regulation of the mails have sometimes been questioned.

I realize that there is a position which now has substantial adherence in the Court that the Federal Government has somewhat less interest in regulation of these matters than perhaps the states have.

But I think it’s fair to observe that that position is always been articulated in terms of a level of obscenity rather than the question whether the regulation is not possible, whether the materials in question must be hardcore or not which might be insisted upon to the Federal Government and not for the states and not whether a particular form of regulation would or would not be possible.

And I think it's incumbent on me to point out that the consequences for the Government and for the Government’s posture here are not at all abstract as the Court knows, use of the postal services which is a government enterprise is a very valuable tool for distributors through the mail and I think anytime that the Government becomes involved in this enterprise by lending this aid, there must be some appearance to the people of the country that this legitimizes in some sense, the enterprise which is taking place.

And if indeed it is an illegitimate enterprise one which the Government has a right to interfere with, why then the Government cannot tolerate, indeed will not tolerate that situation.

It’s not irrelevant in these circumstances that these mailers have a claim not simply to pay their own way, but to have the Government pay part of the way for them through use of second or fourth class mailing privileges.

Chief Justice Warren E. Burger: When you say that the Government passed all of the public pay that subsidies?

Mr. Peter L. Strauss: Of course.

Justice John M. Harlan: Does the obscenity of the particular material involved in this case and situation is very (Inaudible)

Mr. Peter L. Strauss: I don’t believe though Mr. Justice Harlan.

Justice John M. Harlan: (Inaudible)

Mr. Peter L. Strauss: No, I think this case must be decided on the proposition that any material could be sent.

If I may turn now to Stanley versus Georgia, only briefly I -- as the Court knows expect to be back on that question later on, but the suggestion has been made now.

Well, here we have some transactions that take place through the first class mails, sealed mails, isn’t this a special situation in which the Government could not interfere.

Justice Potter Stewart: I misunderstood you then, I thought you said this was Second and Fourth class mail?

Mr. Peter L. Strauss: The publications that might be so sent.

The remittances to -- this particular statute interferes that with the remittances which are received by the publishers and those would generally be sent by this first class mail.

Justice Potter Stewart: This doesn’t it -- this case involves what, the second and fourth class mail?

Mr. Peter L. Strauss: No, the first class mail.

Justice Potter Stewart: First class mail?

Mr. Peter L. Strauss: No, in referring to that I was simply trying to lay some groundwork for the proposition established by Roth but that to be called into question by Stanley that indeed there is some interest in regulating in this area that the Government had some very substantial interest in dealing with this field.M

Chief Justice Warren E. Burger: But your argument, I took it earlier was that the Government’s interest is much broader obscenity and pornographic materials?

Mr. Peter L. Strauss: Also true.

Chief Justice Warren E. Burger: What is the whole range beside frauds, would it cover stock frauds?

Mr. Peter L. Strauss: Any -- I think any sort of fraud that’s dealt with through the mail there’s also a section which was initially the sections sought to -- that sought to deal with obscenity simply because that was the way that the purveyors of this stuff originally conducted their business having to do with the use of false names and addresses.

I might point out again and it’s the special character of the mails that even if one gave Stanley its broadest reading, it would be difficult to say that it necessarily foreclosed the type of relief which the statute embodies in that one cannot know as one can where material is sold over the counter.

One cannot know whether the sale involved is indeed to an adult or consensual of the two parameters of the Stanley opinion on which a considerable weight has been placed.

But going beyond that, I think it’s sufficient to observe at this point that the Stanley opinion carefully preserved the right of state and Federal Government to proceed against commercial enterprises in this field and it is not hard to discern in that opinion which cites the First Amendment, nonetheless a considerable degree of emphasis on the Fourth Amendment and on conceded notions of privacy which are especially appropriate there.

Indeed as we suggest, it seems to us more appropriate to deal with Stanley as a case imposing a disability on the government because of the particular dangers of the situation with which the Georgia statute in that case attempted to deal than a case which recognizes any kind of right to receive on the part of the individual involved in which might therefore be used as a tool as indeed the purveyors of this material are seeking to use it for expanding the area in which they may operate free of Government interference or supervision.

Turning to the Freedman question, it seems to us as we set out in our brief that this case is entirely different in the situation which confronted this Court in Freedman versus Maryland.

If I may recount that briefly, that case was concerned with movies.

The law before the Court require that anyone who wish to show a movie in Maryland before he could show it, he must submit it to a board of censors and that board would then decide whether or not he would be permitted to show it in the state.

There was no particular certainty about how long that would take about that process.

There was no particular certainty about how long it might take in the Court of Appeals to have it reviewed.

Here entirely in contrast, these magazines were being advertised and sent through the mails for the moment, we may assume at the moment that they came off the press.

There was no governmental interference, no governmental clearance of any kind.

Similarly, the board which reviewed the movies in Freedman, was a board which did nothing else.

Here, the matter goes to a federal hearing examiner or judicial officer, someone within the administrative process to be sure about the person who as many of the insulations of which judges enjoy, who sees a broad range of problems come before him.

One of whom it certainly could not be said as the Court remarked that the board in Freedman versus Maryland that his business is to censor.

There is a necessity here that the Government go forward by filing a complaint.

There is no burden of going forward on the part of the mailer.

There is a necessity here that the Government prove that the matter is obscene.

There is no burden to be carried by the person using the mails.

Indeed, the only point at which the appellee is here have been able to rely on Freedman as in a singular question of appealing.

It is true that the Section 4006 order goes into effect automatically and if they don’t appeal, then it will have effect on them and to that extent it can be said that the statutory scheme does not require judicial involvement.

But that we submit is no different from the possibility of default which always inheres in any kind of process because every incentive under the statute is for these individuals to appeal to the courts.

If they do so, at the least, under the reading of Section 4006, which we consider mandatory, they will have preserved their mail for the possibility that on judicial review it will be found to have been not obscene and during that period of course they are free to go forward and to continue to solicit remittances for these magazines, remittances which they know if they succeed they will receive and if they don’t succeed, I suppose in this line of enterprise that that might even be some kind of a badge on the sleeve as well.

Justice Harry A. Blackmun: Mr. Strauss, you mentioned just now burden on the other party.

As I read the decisions below, each of them place great emphasis on the burden aspect of the case.

Do you wish to come out any further on that?

Do I correctly interpret your remark to mean that you feel there is no burden of any consequence in this administrative procedure that is placed upon the advertiser here?

Mr. Peter L. Strauss: I think the only burden is the burden to file an appeal.

There are possible issues of timeliness, but as I shall discuss in the Book Bin case, I think those are amply dealt with by Court's powers to modify Section 4007 relief.

Certainly, the question has been raised whether on appeal, will the sender carry some kind of burden of showing that its material was not obscene, that the post office decided the case wrongly.

At least as long as this Court’s present practice continues, I think it must be clear to any court in this country that they may not accept the judgment which someone else may have made about whether material is obscene or not.

That they must themselves inspect and consider the material in light of the record which has been made, yes, but it’s a full record with transcript and everything else which could be hoped for and must themselves reach the conclusion that the constitution protects it or does not do so.

And as long as that line of cases persists certainly then the answer is the only burden on the appellees in a case like this is the burden of filing an appeal and indeed in the interstate circuit case footnote 22 --

Justice John M. Harlan: Does the officer have the burden of (Inaudible) satisfying the Post Master General (Inaudible) common mail, that was not connected through the original one, staff board so to speak, the material of the staff?

Mr. Peter L. Strauss: Yes, that’s true.

I think that gets to the other third aspect of the case what I might call the Lamont issues although I don’t think it’s precisely that scope of relief as distinct from a question of the regularity of the proceedings and I have been dealing with Freedman as directed principally at questions of proceedings in whether the proceedings are themselves adequate.

Thank you.

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

Argument of Stanley Fleishman

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

Chief Justice Warren E. Burger: Mr. Fleishman.

Mr. Stanley Fleishman: If Court please, this case started when a postal inspector inspector representing himself as being over 21 years of age, ordered seven magazines which he said he wanted.

Thereafter, the post office started the administrative proceedings that were discussed by Mr. Strauss and had the order.

The effect of which was to keep every adult person in America who made similarly, have wanted to order these magazines from getting these magazines.

It also had the effect of invading the privacy of the mail because persons who sent first class mail to appellee had their mail poked over by post office persons in the office there to see whether this was mailed that “could or should” be delivered to appellee.

So that a person who may privately have wanted to obtain these magazines for his own entertainment, for his own amusement, or for his own information would have this fact known into the postal authorities whether he wanted them to know about it or not.

We have here in short the kind of federal censorship which this Court has repeatedly stated was not tolerable under the First Amendment.

Very interesting to me is the fact that counsel has not mentioned at all the most recent case decided by this Court, Rowan which seems to me to be dispositive of the issue.

Because after all in Rowan, this Court said that the householder, the free American citizen was to decide what came into his home or what did not come into his home.

So that in Rowan, the focus was on the right of the free citizen to say, I do not want this.

This case deals with the question of the right of the free citizen to say, I do, yes I want this, and the right of the Government to say in spite of that that you cannot have it.

The question is not as the government has put it of whether the First Amendment confers complete freedom uncontrollable by Congress to use the mails for commercial purposes.

We of course do recognize the binding effect of Rowan which puts a limitation on the use of the mails and not yet in effect. Congress has already implemented perhaps, without knowing yet, important portions of the Lockhart commission report on obscenity and pornography.

The Congress has enacted 39 U.S.C. Section 3010 and 3011 which now makes it a criminal offense -- no, I’m sorry that’s Section 18 U.S.C. 1735 and 1737 which now makes it a criminal offense to mail to unwilling persons material dealing with sex and Section 3010 and 3011 imposes additional burdens on a mailer to make sure that a mail or a person does not mail to those persons who don’t want it and does not mail to minors.

Those sections provide for the post office department to make up a list throughout America of everybody who does not want to be contaminated by sex.

If a person doesn’t want have anything to do with sex, he can put his name on the list and he won’t have any, fine, but we have that kind of protection in the law now.

So the good question we have here is, what about the right, what about the right of the people who want to have material dealing with sex and it’s about that I want to address myself.

The Government takes interesting positions.

In Rowan, in Rowan the Government said perhaps the most private kind of communication is by the mail.

Perhaps if ever Stanley can be appropriately given full bloom, it’s when you have distribution by first class mail to consenting adults.

In its brief, the Government says “if Stanley does protect such activity then it might appear that use of the mails inherently private and the case of mail ordered blank ordinarily consensual is indeed protected from government regulation.”

On that reasoning, only the uninvited advertisement or mailing of obscene mandatory minor could be made an offense and Roth would have not only been a limited, but the Government says overruled.

Justice Thurgood Marshall: What is there in Stanley that deals with the mail?

Mr. Stanley Fleishman: There is nothing in Stanley that deals with mail.

There is a lot in Stanley though --

Justice Thurgood Marshall: As I remember Stanley, nobody knows yet where he got it from?

Mr. Stanley Fleishman: Well I know where I got it from Mr. Justice --

Justice Thurgood Marshall: Well nobody knows where Stanley got the film from?

Mr. Stanley Fleishman: I see, that‘s true but as we read --

Justice Thurgood Marshall: He might have made it himself?

Mr. Stanley Fleishman: He might have Your Honor.

Justice Thurgood Marshall: So what does that have to do with this case?

Mr. Stanley Fleishman: Everything.

Justice Thurgood Marshall: Oh?

Mr. Stanley Fleishman: Everything because as I read Stanley, Stanley was decided on First Amendment grounds.

Mr. Justice Stewart didn’t join in that opinion thinking that it ought have gone off on privacy grounds or Fourth Amendment grounds and as I read the statement by Mr. Justice Stewart and he’s here to correct me, where he said he was not anxious to hurry on to new constitutional frontiers.

Now I read Stanley as going on to new constitutional frontiers and rightly so because Roth was a debouch in its application.

After 13 years of using Roth --

Justice Thurgood Marshall: Brand new standard as Stanley established was every man's home was his castle?

Mr. Stanley Fleishman: Your Honor, I --

Justice Thurgood Marshall: It was brand new, isn’t it?

Mr. Stanley Fleishman: Your Honor you wrote the opinion and all I can do is read the opinion, but in Stanley you went back to Winters.

The key to Roth, the whole key to Roth was that obscenity was utterly without redeeming social value and that because it was utterly without redeeming social value then it was outside of the protection of the First Amendment.

Now Your Honor twice, twice in Stanley said that a person has right to obtain obscene materials, so called “sexual explicit material” whether or not it had any redeeming social value, twice you sided Winters.

Winters says that material is protected whether or not it has any social value, that is the underpinning of Roth.

Now it maybe but that I -- because Roth had us its premise two things, both of which are now gone.

First was the reliance on Beauharnais.

In Roth Mr. Justice Brennan said that Beauharnais had recognized that there was a kind of speech, libel and obscenity which was outside of the protection of the First Amendment, Since then, Beauharnais has been significantly changed as we see it by the New York Times case and cases which have followed it.

The other underpinning for Roth was this social value test and Stanley rejected the social value test.

I don’t know what else was in your mind Mr. Justice Marshall, but that was the pinning and that was --

Justice Thurgood Marshall: You just ignored the plain English pinning which said that Roth stood, it wasn’t attacked and still the law?

Mr. Stanley Fleishman: No, I hesitate to quarrel with the author of an opinion.

Justice Thurgood Marshall: Well maybe we might have to make it clearer?

Mr. Stanley Fleishman: Perhaps Your Honor, I would hope that it would make it clearer to bring about the kind of rationality that we need in this area because if we are going to follow the confusion that has been brought about by saying that obscenity is outside of the protection of the First Amendment, I very much fear Mr. Justice Marshall that we will have really the kind of witch hunt that we have not had for a very long period of time in this country.

So that I would hope that when this is clarified, that the clarification would be in the direction of sanity which is basically that consenting adults should have the right to choose their own reading matter even if the reading matter has to do with sex.

I have never understood --

Justice Thurgood Marshall: I assure you that I for one will do my best to do something with the insane opinion?

Mr. Stanley Fleishman: With the what opinion?

Justice Thurgood Marshall: Insane opinion, you know what I am saying here?

Mr. Stanley Fleishman: Well I agree.

Justice Thurgood Marshall: (Inaudible)

Mr. Stanley Fleishman: Well I know that Court will, because this Court has dealt with the problem now for 13 years.

It was a difficult problem and I don’t think that anybody sitting on the bench or who has considered the problem at all could be satisfied with what has happened in the area of obscenity and the First Amendment.

No one knows to this day what obscenity is, Mr. Justice Harlin had occasion to comment on -- in the Sam Ginsburg case that anyone looking at the opinions in the 13 years would find them self in total complete bewilderment.

And the reason is that it seems to me that after 13 years if the rule isn’t working, there’s something wrong with the rule and what was wrong with the rule was I submit that the notion that sex speech was not speech and therefore that it was outside of the protection of the First Amendment was a false premise.

Obscenity after all is nothing but sex speech which a lot of people don’t like, that’s all it is.

It’s like saying that religious speech that we don’t like is somehow outside of the protection of the First Amendment.

Now there is a great deal of additional knowledge that we have obtained since Roth came down which ties into the correctness Mr. Justice Marshall of your statement that a social value is not a correct test.

And it’s very interesting that in the Lockhart Commission report where they spent something like $2 million and two years, the commission came to the conclusion that this material which we have all been calling obscene in fact does have social value.

That is to say that the people who have been buying the material and reading it have benefited by it.

They have learned about sex in a way that was helpful to them.

They have had their entertainment satisfied.

They have had their curiosity satisfied so that the whole assumption of Roth that explicitly sexual material was totally without any value, I submit is factually untrue Mr. Justice Brennan.

That that’s at least what the Lockhart Commission has concluded.

Now also in Stanley as I read it, is the recognition of the right to receive material, again, the right to receive material regardless of the social worth of the material.

So that if a person has the right to possess it and if he has the right to receive it, then we submit that there must be the right to distribute it subject to the legitimate state interest and we grant there are legitimate federal interests.

Those interests are represented in part by the Rowan decision, that’s one of it, un-consenting persons, minors are out.

You cannot thrust this kind of material upon those who do not want it and as I say Rowan is one recognition of this aspect, the other recognition is in the recently passed laws which have not yet gone into effect.

Chief Justice Warren E. Burger: Did the Lockhart Commission undertake to address itself to means of keeping materials of this kind out of the hands of minors and children and suggest effective solutions?

Mr. Stanley Fleishman: Yes, Mr. Chief Justice it did and as a matter of fact the two Federal statutes which have passed -- have been passed are modeled although they are parallel, I don’t think the Congress modeled it upon the Lockhart report, but they come out about the same and the Lockhart Report says that they think there were two alternatives and that the Commission believe that the path that Congress took in terms of making it a criminal offense in addition to what Rowan did, was just to say you could keep it out, but now it is a criminal offense to mail to un-consenting adults or to minors and the Lockhart Commission has stated that that was the preference for them so far as Federal is concerned.

Chief Justice Warren E. Burger: Is the mailer protected by simply having the recipient who sends an order fill in a blank that I am over 21 years of age?

Mr. Stanley Fleishman: That’s part of it but the new legislation Your Honor goes further than that because the new legislation permits the Post Office Department to prepare a list of persons who either do not want any material that’s explicitly sexual or do not want it for their minors so that any family that wants to, right off the bat, they can get themselves on the list and then that material is sent to that house on the penalty of being a criminal offense because then the mailer is told not to send it there.

So that actually under the new legislation which may raise some problems, I don’t want to talk to those, but at least that’s where the Lockhart Commission went in terms of giving maximum freedom really to everybody.

Freedom for those who don’t want the material and freedom for those who do, it is one of the --

Justice Hugo L. Black: But not to go as over 18 or old enough to vote?

Mr. Stanley Fleishman: Well, it is actually 19 under the Congressional Act, a person under -- between 18 and 19, the minors would be denied that right even though they --

Justice Hugo L. Black: They could vote, but they couldn’t receive the literature?

Mr. Stanley Fleishman: Yes, Your Honor.

They can also go to war and die and not receive the literature.

Now in Rowan, this Court repeatedly, seems to me to have made two points.

Number one, that we do not want to have Federal censorship or the appearance of Federal censorship.

And an order to even prevent the appearance of Federal censorship that the household would be given total and complete discretion to decide what could be kept from his home even if this was a CS robot Catalog, I think was one of the illustrations.

And instinct with that whole opinion was the other side of the coin of the household of being king of his home.

That if he didn’t want anything he could keep it out and if he did want it, he had every right to have it come in to his home.

In the Rowan brief and I understand really why the Government did not side Rowan because in Rowan the Government made an awful lot of concessions that are totally inconsistent with the position that the Government is taking here.

For example in its brief in Rowan, on page six at Footnote 1, the Government said “that adults who want to receive obscene material can receive it under this Bill.”

That's Section 4009 which was involved in Rowan,“ but a free society does not compel people to receive sexually provocative material.

It does not compel them to be part of a captive audience.”

Just so, just so, but in our case we’re not talking about a captive audience, we are talking about adults who say they want to get this seven girlie magazines and incidentally that’s all they were.

They were girlie magazines of the kind that this Court in Bloss held were constitutionally protected.

So that what we have is the Government saying “you can’t get these magazines even though you want it because papa knows best.

We’re going to protect you from that.”

Again in their brief in Rowan, this is what the Government said and compare it with their argument here that there is no right to receive.

In Rowan they say “in making the assessment” that’s with regard to Section 4009 “Congress was of course aware that the freedoms of speech and press embrace the rights necessary to effectuate those freedoms, including the right to circulate and receive publications, the right to listen and the right to read,” citing Stanley, Martin and Lamont and then they went on to say “as this Court suggested in Martin, Section 4009 leaves the decision to accept or reject the material with the homeowner himself and again the Government goes on to say “the constitutionally protected rights of wiling recipients are unimpaired by Section 4009.

They are put under no burden of action or self identification to receive the material they desire.

Chief Justice Warren E. Burger: Mr. Fleishman, where you are reading from now?

Mr. Stanley Fleishman: This is the Government’s brief in Rowan.

And then finally form the Rowan brief at page 36, the Government said “the determination of a front ought to be left to individual discretion where that is possible without impinging on the free circulation of ideas.

That cause is possible in the mails as it is perhaps nowhere else.”

Now this is a situation where the Government has told us and quite correctly so that the first class mail is just as private as the home.

This case Mr. Justice Stewart does involve first class mail only.

People by first class mail ordered material, they sent their money in, they signed an order blank in which they say they are 21 years of age or over and they want this material for their own entertainment.

Justice Potter Stewart: Where do they get the owner blank?

Mr. Stanley Fleishman: From the mailer, we sent out the brochure and the persons who want it fill in.

Now again we know of course that Rowan keeps us from mailing that the people that don’t want it.

If they don’t want it, they don’t have to receive the mailer in the first place, but we invite them to buy if they want.

So that what the post office now is doing is saying that those persons who say that they’re adults, who say that they want the material, who spent their money to get the material, the Government says “nope, they can’t have it.”

Justice Harry A. Blackmun: But doesn’t your brochure itself contain the very material which the publications you are trying to sell contain?

Mr. Stanley Fleishman: I don’t believe that’s in the record and I’m not sure that I could answer that.

There is in the record, the brochure in the second case in Section 4000, the Book Bin.

Well I don’t believe the brochure is here, but I would call Your Honors attention to the record where they describe the brochure.

On page 55 of the Government’s brief they say at the middle of the page for accuracy “none of the advertising can surpass exhibit F2 which in touting girlfriend, bunny golden girl and match promises, unusual photographic techniques exploring every nook and cranny of the female form.

Additional emphasizes is placed on the inner beauty of our models as the camera explores bodily regions never attempted before, close attention to detail.”

That’s the brochure, they say that that describes it accurately, so that we have a situation where there is an advertisement which says you are going to get pictures of nudes if you want them and then you can pay your money and obtain it.

So that there is no question here of any intrusion upon any unwilling recipient.

The record shows only that as I said before a postal inspector sent in his money, he filled out the order blank and got his magazines and based upon this postal inspector who is over 21 years of age getting the publication, all of these proceedings were --

Justice Harry A. Blackmun: Well suppose your brochure did contain some sample pictures, and then is your case different?

Mr. Stanley Fleishman: It is not, it would reach -- it would go into Section 4009 then, there might be a 4009 problem but it would not change this case.

Chief Justice Warren E. Burger: I think we’ll continue after lunch now Mr. Fleishman.

[Luncheon Recess]

Mr. Fleishman you may continue.

Mr. Stanley Fleishman: Thank you Mr. Chief Justice.

Just one more word about the Stanley Case and its relationship to the Lockhart Commission.

I don’t think I should go on without commenting on the fact that a large number of courts throughout the country, Federal and State have interpreted Stanley generally the way we have been talking about it today.

The Lockhart Commission, after a great deal of study, came to basically the same conclusion that in a free society there is no other way to handle the problem other than by permitting, consenting adults to satisfy their curiosity and interest in matters pertaining to sex.

Justice Potter Stewart: I suppose it’s fair to say Mr. Fleishman that the Lockhart Commission was dealing with questions of policy and not with where it matters of constitutional law.

I haven't read the report, but I have only been --

Mr. Stanley Fleishman: That’s only of course partially true Mr. Justice Stewart because underlying the questions of law, are certain assumed facts.

For example once we learn that there is social value in what we have always been calling obscenity then we have a whole different legal question.

The assumption upon which the law proceeded we now know is false if we accept a conclusion of the Lockhart Commission.

Justice Potter Stewart: But did the Commission itself purport to becoming to reaching the constitutional decisions that is decisions of constitutional law?

Mr. Stanley Fleishman: No of course not, that’s what --

Justice Potter Stewart: That is the recommending policy.

Mr. Stanley Fleishman: The recommending policy but based on facts instead of prejudice and fear, which I think makes a big difference.

It should also be observed it seems to me that most of the free world appears to be traveling in the same direction.

Not only Denmark has abolished its obscenity laws, Sweden, the last I heard was about to do so and I think they have by now.

In West Germany, the Highest Court has concluded that so far as consenting adults are concerned that they should have the opportunity to receive and should be the opportunity of selling to consenting adults.

There have been studies in both Israel and Great Britain which were comparable to the Lockhart report reaching basically the same conclusions.

And indeed the whole area of saying that people should be able to read what they want in this area touches upon another area of the law that has a relevance and that is that consenting adults ought to be able to do what they want to do at least in the area of sex.

We all know about the Model Penal Code turn to the graph number four which came out in 1954 and which basically said that what adults do privately is no legitimate concern of Government.

Whatever approach we take in that regard surely by 1970, we have to agree, it would seem to me that we should be allowed to think about and dream about all of the sexual fantasies that are running through our heads anyhow.

There was one very interesting study in the Lockhart report that perhaps bears repeating here.

A group of persons were showing the most pornographic pictures that the researchers could get and then they were measured for the impact on the individuals both in terms of heartbeat, blood pressure, dilation of eyes and things like that.

Then the same people were told to just imagine to draw their own pictures in their own heads and the effect was twice as much.

In short the individual was able to create his own much better than any of the mailers could create.

The short of the matter is we are going to dream anyhow so we may as well accept it in terms of having a little --

Justice Byron R. White: Do you think you have a case (Inaudible) broad brush in this case?

Mr. Stanley Fleishman: No and I will --

Justice Byron R. White: That is why you addressed yourself at all, (Inaudible)

Mr. Stanley Fleishman: I have saved the remaining 5 minutes for that and I will now address myself to it. First of all, the statute plainly does violate the Freedman Principle.

Under the -- under this Federal Censorship Law, the Post Office Department can execute its own order.

That is to say once the Post Office Department decides that the material is obscene then the mail is interfered with.

The burden is upon us to file a lawsuit if we want to do something and even up until -- even if we would file a lawsuit there is no assurance that the mail will not be sent back.

When we file the lawsuit there are no time requirements within which the court will have to decide whether or not we are right or wrong and the burden of proof is placed upon us when we file the lawsuit.

The statute is also dead because it permits an administrative official, a post office judicial office who really is a censor in spite of what Government counsel says, it says censorship board when this judicial officer acts, he is acting as a censor.

He makes the determination rather than a jury and as far back is the Kingsley Book case Mr. Justice Brennan suggested that obscenity could only be properly decided by a jury because it was so linked with the question of the average person.

But here we have dispensation of the jury in favor of a postal censor.

There is no requirement of sceinta at all and this Court has said even though the obscenity is especially vague law that the scienta requirement compensates in some regard.

Here we do not have the compensation of scienta because scienta is irrelevant to it so that -- and we have also what’s basically a Lamont Point because here what happens is if we think of it in terms of the householder who mails a letter to the appellee then his mail is interfered with.

As a matter of fact, what happens is a man will send in his money and he‘ll never get a response because the Post Office Department has impounded really the mail.

Now if it’s true that under the unlawful order it can be sent back, but the way the Government handles it while litigation is pending, it’s neither sent back nor is it delivered to us so it’s held.

Now you take this case so for about a year-and-half people have been sending in money to appellee and the Government has that money.

So that we have the kind of heavy handed intrusion upon the mail that has been repeatedly as I said found upon by this Court.

Justice Hugo L. Black: What is the Government doing with the money?

Mr. Stanley Fleishman: Well the Government is just holding the money, Mr. Justice Black.

They don’t hold it, they don’t return it, and they don’t give it to us.

They say that when this case is finally decided then they will either return it to the person who sent in their money or give it to us.

In the meantime though something like a year-and-half has expired while we have been proceeding this way and again I want to emphasize that we are talking about magazines which are identical to magazines found to be not obscene by this Court where a state proceeding was involved not a federal proceeding and at least as so far as the Federal Government is concerned it seems plain to us that there is no question, but that the material is not hardcore pornography either that and that it’s in fact constitutionally protected material under this Court’s standards vague as they are and unsatisfactory as those standards are.

Justice Hugo L. Black: I could tell how much money is (Inaudible)?

Mr. Stanley Fleishman: No, it does not.

Justice Potter Stewart: The construction -- the alternative construction of the statue that the Government suggests on pages 26 and 27 of Government’s brief would serve to eliminate at least the Freedman objections to in your submissions wouldn’t it?

Mr. Stanley Fleishman: No, Mr. Justice Stewart, it would go to some of it, but not really cure it because what the Government says is that you can interpret the statute and say that first of all if, if we file a lawsuit, first of all the burden is still upon us to file the lawsuit while in Freedman the burden was on the censor to file the lawsuit to vindicate its censorship so the first thing is that it becomes our burden to go into Federal Court to bring an action which distinguishes it in the first instance.

Secondly --

Justice John M. Harlan: I think the Government suggestion was they were doing it in Court.

Mr. Stanley Fleishman: No sir.

Justice John M. Harlan: Temporary retraining order --

Mr. Stanley Fleishman: No.

Justice Potter Stewart: And then, unless they did there would be no impounding.

Mr. Stanley Fleishman: That is not the Government’s position at all.

What the Government did say was that there is another of section of the law, Section 4007 and that 4007 takes care of some of the problem, but if you’re thinking in terms of Section 4006 alone, it is not the Government’s contention that they have to go into Court to have that order in force.

They do not treat this as an FCC order an analogue D order at all, they still say that we would have to go into Court.

They don’t say within what period of time or what happens really to the mail at all.

But their proposal is that we could go into Court and then when we go to Court then the mail would be impounded and it would not be sent back to the persons who sent it to us.

But that does not meet Freedman and at least and really any other respects.

We have to go into Court, it’s our burden to prove, to satisfy the Court that the Administrative Agency was wrong and there still would be no time requirements of the time required by Friedman.

Chief Justice Warren E. Burger: Mr. Fleishman your time is up, but I have just one question if I may?

Mr. Stanley Fleishman: Yes, Mr. Chief Justice.

Chief Justice Warren E. Burger: Could Congress constitutionally prohibit the kind of mailings that you send out for your advertising your touting to people who did not request it in the first instance?

You are talking about consenting adults so lay that aside.

You only get communication with these so called consenting adults by sending them some samples of your material in effect as I read this record, now does Congress constitutionally stop that?

Mr. Stanley Fleishman: There is another statute Your Honor, Section 4009, Your Honor is quite correct, first of all the householder gets mail and he is to satisfy it with it.

Chief Justice Warren E. Burger: I know, you are talking now about the Rowan Situation?

Mr. Stanley Fleishman: That’s the Rowan, but under Section 3010 though and 3011 which are new statutes which have just been passed under the reorganization law, there the Congress has said that there is a way of preventing the householder from getting even the first mailing and that’s when the householder can put himself on this list and say I do not want to receive any material dealing with sex.

Once he puts himself on that list it becomes a crime to send it to him.So he doesn’t get the first mail.

Chief Justice Warren E. Burger: That requires the householder take a first step.

My question was can Congress constitutionally prohibit you?

You’re sending out any advertising material which discloses the kind of material that you are going to sell?

Mr. Stanley Fleishman: Without knowing that the person receiving it does not want it, is that your question Mr. Chief Justice?

Chief Justice Warren E. Burger: Without knowing anything about it?

Mr. Stanley Fleishman: I don’t think Congress can do that because I believe that just as people who do not want it have the right to say, “No, I don’t want it,” the avenues of communication must be left free for those who in fact do want it.

And as a matter of fact the legislative history behind Section 4009 specifically stated that that’s what they wanted to keep open.

For those people who wanted to receive such material Congress said, they should be permitted to.

The other side of the coin is that every way that’s fair in terms of saying a person does not want it then I think Congress can have a lot of free way there and free discretion in terms of preventing that where there’s an unwilling audience.

But I think just to blanketly say you can send out any advertisements for dealing with sex.

I do not think that Congress could constitutionally do that.

That’s going too far.

Justice Potter Stewart: That’s pretty much governed by Lamont, I should think that situation?

Mr. Stanley Fleishman: Yes, I believe that’s exactly right.

Justice Harry A. Blackmun: Mr. Fleishman let me ask you what I asked Mr. Strauss.

If you prevail here is in the integrity of the Donaldson decision in any way affected in your view?

Mr. Stanley Fleishman: Not necessarily, Mr. Justice Blackmun.

Justice Harry A. Blackmun: Do you feel there is a distinction between fraud in the one hand and obscenity on the other if I over simplify?

Mr. Stanley Fleishman: There is a very distinct one and this Court has commented upon it because we have a First Amendment, which protects the right to distribute books and magazines at least to willing persons.

There is no comparable or constitutional right to perpetuate a fraud.

Additionally, whatever else we may say about the vagueness inherent in the term obscenity, we know that a post office hearing examiner who is really a censor is the least qualified person to draw that fine line which protect -- which separates unconditionally protected speech from criminal speech.

That’s a different situation than you have with fraud so that it is perfectly possible in my judgment to say that this statute is dead as it applies to obscenity because we’re either in the First Amendment area of directly if read Stanley correctly or we are so close to it that different principles apply than would apply in fraud area.

Thank you, Mr. Chief Justice.

Chief Justice Warren E. Burger: Tank you, Mr. Fleishman.

Mr. Strauss.

you have, let me see whether you have any time, no you consumed all your time.

Thank you Mr. Fleishman, thank you Mr. Strauss.

Your case is submitted.