MILLER v. CALIFORNIA

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Argument of Mark

Mr. Mark: Mr. Chief Justice and if court please, to continue with my preface, if you will to the argument, yesterday I was expressing the proposition that perhaps the court has not become acquainted with the realities of the situation which lawyers and perhaps judges are faced with when approaching an obscenity case when it is put into the criminal context.

For instance the Fifth Circuit in a case of US vs Groner decided January 11, 1972 Mr. Justice Thornberry expressed some apprehension that he could not understand what was happening in the obscenity field and certainly could not make any determinations for himself as to what was obscene or not obscene in the absence of expert testimony and also express that we thought in line with several other cases that a national standard as far as contemporary standards would seem to be just the ticket under the circumstances of that material goes between states.

The case at bar is very interesting I think when you examine the history of this case Mr. Miller and it illustrates in my opinion why Harris v. Younger was decided wrongly.

Mr. Miller has a company which publishes and it's in Covina, which is in the County of Los Angeles.

They send mailers out, brochures out.

Brochures went to Los Angeles County, Orange County, San Diego County, and to the various states.

You must understand that within the various Counties there are district attorneys and city attorneys who are responsible for bringing prosecutions and it's up to their discretion as to whether or not a prosecution will be had.

That is a complaint filed.

Now, in Mr. Millers case there were prosecutions filed in perhaps 15 different municipal courts on the same brochures within the County of Los Angeles in different municipal courts, different district attorneys, deputies of the same County, prosecution in Orange County, prosecutions in San Diego County, and this is what happened in Orange County.

First of all, in Los Angeles County we brought a motion and that is just illustrated in the clerk's transcript before Judge Arguelles in East Los Angeles Judicial District and the motion was presented in which we had expert witnesses testifying that the material was not obscene, and was constitutionally protected and Judge Arguelles made a determination dismissing the action that the material wasn't that protected as set forth -- for the reason set forth in the various cases.

After that, the Orange County prosecution was started, same brochures, same defendant, same plaintiffs to -- with the people of the State of California.

So what did we do in Orange County?

We went to the first trial judge and we made a motion to dismiss on the grounds that it was constitutionally protected, presented expert witnesses.

The people presented none, the judge denied the motion.

We then took a petition to writ of prohibition to the Superior Court in Orange County to stay the proceedings, writ of prohibition denied out of hand, appealed to the Orange County to the Court of Appeals, Second Appellate District for a stay, a writ of supersedeas.

Denied, Supreme Court of the State of California denied, no stay.

We then went habeas corpus route through the courts alleging that the material was protected.

We went to the Superior Court, the Court of Appeals, Supreme Court, all denied out of hand.

Also alleging if you please in the habeas corpus proceedings that there was a res judicata, as estoppel, Ashe versus Swenson, Waller versus Florida decided by this court.

The material is protected, it can't be prosecuted, denied, out of hand.

No court to date as a matter of fact, if you now consider the fact and I think I misspoke myself, that I said a seven week trial, it was not, it was a seven day trial.

But this is not, this is a very short trial for obscenity cases as a rule.

After all of these pre-trial proceedings in which we were trying to get nothing but an adversary hearing, we then went to trial with a jury, a conviction, an affirmance without an opinion in which the Appellate Court completely abdicated its own responsibility, and that is to review the material, a simple, affirmance and remanded it and finally an appeal to this court.

Justice William H. Rehnquist: Mr. Mark, following the conviction you appealed from the Appellate departments affirmance to the Court of Appeal for discretionary review, is that right?

Mr. Mark: I asked what is called a petition for certification and this is discretionary with the Appellate Department of the Superior Court, whether or not they want to certify the important question over to the Court of Appeals.

Justice William H. Rehnquist: But does not the Court of Appeal also have a right without certification to grant you a discretionary hearing?

Mr. Mark: That is correct, they can.

If the opinion is published, if there is a published opinion in the Appellate Department which is entirely discretionary with them, then the Court of Appeal has the right to exercise its discretion to determine whether or not it wants to decide that question and take jurisdiction.

Justice William H. Rehnquist: So do you have no right after the conviction, the petition of Supreme Court of California for discretionary review?

Mr. Mark: No.

Absolutely, as a matter of fact, it is expressly prohibited that you do make such an application.

I believe there was a case that came out that said, once your petition for certification is denied in the Appellate Department, you have no right to appeal that or that it is purely discretionary under the court rules.

Unknown Speaker: What are the opinions in California Court enuntiated?

Mr. Mark: The only opinion that is in any court in the California court with respect to the material in this case is found in the clerk's transcript at page 17, that is Judge Arguelles memorandum opinion and order and this is the case out of the municipal court of the East Los Angeles Judicial district, it is not in the appendix, it is in the clerk's transcript and this was the basis of the res judicate claim that we have.

Unknown Speaker: Mr. Marks what was the sentence Mr. Miller received?

I failed to find it in your brief.

Mr. Mark: 60 days County jail on this particular chart and $1000 fine as I recall, which has been stayed.

To continue, taking this history of the case procedurally, I have the following quote which I picked up from a recent case and that is I entertain more than a mild suspicion however that this is an exercise in futility that the court is merely marching up the hill only to march right down again and it is timely become just a little realistic in the face of a record such as this one, US Vs Tucker decided January 12, this year.

Mr. Justice Burger said that in a different context.

Chief Justice Warren E. Burger: Well, that was Mr. Justice Blackmun and I agreed with it.

Mr. Mark: I think that in taking the history of this case if you please, it illustrates the futility of making a decision by this court in the ordinary manner as to whether or not for instance contemporary standards are national or local because it really does not matter, the judges below simply will not pay any attention to the cases.

They do not rule as a matter of law and obscenity cases.

It is a very visceral reaction.

You get a shock value on obscenity in no other cases.

They, in my experience do not function and I suggest to the court that the answer to the dilemma which is posed that the paradise, that your reconcilable conflict between the cases is that this court set up a series of rules by which courts must act in obscenity cases and that is that they must for instance prior to initiating a criminal proceeding have the type of hearing on the material which is set for it in Freedman versus Maryland, Blount versus Rizzi and there should be rules whereby they are compelled to either state that it is protected or not protected, so that somewhere along the line before the criminal process starts, the person who is going to be involved in a criminal prosecution will at least have the vaguest idea that what he is trying to purvey or so is not or is within the marketplace and I give you the following example and I say this is why I believe it comes within the context of the certiorari questions because we have here the question national standards or state standards.

If we do not have national standards, I think our brief pointed out that in the area of film, in the area of books which cross straight lines, there must be a common standard because otherwise state A can impose unreasonable burdens upon what kinds of films are shown in the motion picture theaters in their neighborhood, perhaps one community, local community or state does not like R films, because R-rated films have sex portrayed in them.

Some X-films sometimes have more violence than an R film and less sex.

It depends upon the individual idea of the censor himself.

Chief Justice Warren E. Burger: Let me ask you about this administrative process you were just suggesting to be interposed before a criminal proceeding starts.

So you are suggesting something like the old fashioned board of censorship to take a look at it first and advise the publisher?

Mr. Mark: I am suggesting a process whereby if there is cause to believe, probable cause to believe that a material which is being sent out or is being sold on the stand is or maybe violative of the penal statute or maybe obscene within the area of the state statute that the judge issues a show cause order and perhaps even a seizure warrant.

The material has seized, it is brought into court, one day hearing, expert testimony, two days to make a decision.

The decision should be in writing stating the judge's reasons for believing that the material is or is not protected.

At that point, you have some sort of adjudication because the real proposition and problem is with Scienter, Mr. Miller and every other seller of pornography has a justice in this case.

A judge which says the material is protected in one jurisdiction to no avail in another, because he can not get any recourse.

If he goes to a jury trial and gets acquitted, the judge in the next jurisdiction says, well, I do not know what the acquittal was based on, maybe it was just as the jury was not satisfied beyond a reasonable doubt that he was the person who sold it.

Maybe they were not satisfied with Scienter.

The criminal process is not equipped to deal with obscenity questions.

It never has been and never was.

There has to be a different type of process dealing in the civil area to deal with the sensitive area of suppression and censorship.

That is why I suggest for instance that the national standard has to apply, but it has to apply in the area of inter-state commerce, it has to apply also.

We have a very interesting question, what happens with the Full Faith and Credit Clause?

If one court says, it is obscene in one state, does not this bind another court under the Full Faith and Credit Clause or if it is obscene, what happens?

Is the man entitled to plead the other judgment in bar as an estoppel or just as a defense in the grounds that he has no scienter, how could I possibly know that it is obscene if a court said it is not obscene.

Justice Byron R. White: Mr. Mark, in the case tried in the Municipal Court from which you are appealing, was the question of Federal versus State standard raised by a request to charge the jury?

Mr. Mark: There was no request to charge the jury on the national standards.

The charge was made in the terms of state standards because at the time, there was and still is a case of in re Giannini, which is cited in our briefs.

In the Giannini case, our California Supreme Court said in the matter of dancing, topless dancing, they said, at least the standards have to be statewide because there has to be some sort of uniformity, although they felt that you can not cross a dance act between across county borders then obviously the local community should be the best judge, but there at least has to be some uniformity.

Applying that rationale of the Giannini case to motion pictures, books, those magazines that travel across state lines and which seem that the national standard is the only standard which has any reasonable grounds.

Justice Harry A. Blackmun: Mr. Mark, can you help me out on one other thing?

Your section, in this transcript, I think there is Section 311 and this was amended about the time of the prosecution here.

Am I correct in assuming the indictment and the trial were after the amendment?

Mr. Mark: It is a complaint Mr. Justice Blackmun, but the -- I believe both were after the amendment.

Justice Harry A. Blackmun: So it is under the new statute now then?

Mr. Mark: Well, no because the Acts were before the amendment.

So the question was at one time, whether or not you have the definition, the original definition was knowing the matter to be obscene.

The second definition was having knowledge or being aware of the contents of the matter, which to me is just as vague a statement as some of the other definitions that we have had regarding obscenity.

Justice Harry A. Blackmun: Well, then we are dealing with the old form of the statute in the old constitution?

Mr. Mark: I don't know because if you read the instructions that were given, one of them says that the person to be convicted, Mr. Miller had to know that the matter was obscene and know all of the elements that it went beyond contemporary limits of candor etcetera, and tha set of instructions said that, very confusing, that it only many had to be aware of the contents of the matter.

Justice Harry A. Blackmun: The question of (Inaudible)?

Mr. Mark: Well, it is a very confusing subject because to some judges and I suppose lawyers, it means the same thing.

To me it doesn't.

It means an entirely different thing, because being aware of the character of the matter, that's what the new section means, and what the character of the matter is, is a very, very illusive quality.

Does it mean that the character is that of a sex, is it the character of violence, is it the character of sadism, sadomasochism, one of the characteristics of pornography, we do not know.

It is -- probably whatever the jury wants to think it means.

One of the big problems that comes up in the prosecution or the trial of the case and the defense of a case is this question of the various and I might say paradoxical rules that this court is set up, because in Roth, court said that briefs, and I am paraphrasing a little bit, paraphrasing, in Roth, the court said that obscenity is not speech.

Then, in Stanley versus Georgia, the court said that obscenity is speech.

Then in Reidel, the court said we adopt both Rob and Stanley and we do not vary one way or another.

So we come to the unusual proposition that speech is not speech.

I adhere perhaps and this is my final argument to the add on theory of constitutional protection.

It appears that from reading the various cases that if you have the First Amendment protection and you add on for instance the Ninth Amendment, the right to privacy as in Stanley, 1 and 9 equal 14, and you have a constitutional protection.

In our case, we have a few other add on protections that Mr. Miller should avail in himself.

He has the First Amendment protection, he has the Fifth Amendment, which is the res judicata or estoppel, he also has the Ninth Amendment.

So in this case, we have 1, 5, and 9, including 14 and he should be able to have a reversal just on that theory of law.

Getting back to the more mundane, I say very seriously, we need guidance from the court, this court, and I think it cannot be done in the framework of deciding whether national or local standards applied because the courts below do not know how to apply them even if it is shown to them what it means.

They work on a case by case basis and I had one judge said to me, when I pointed out Blount versus Rizzi, he says, that only counts if the defendant's name is Rizzi and the plaintiff's name is Blount, and otherwise it is distinguishable on that fact.

So set us up some rules, give us some guidance, let's get this type of action out of the criminal area unless there is a distinctive criminal case with knowledge and the type of pre-warning that is generally accepted as a part of Due Process.

Justice William O. Douglas: Well, I have read the opinion, pertaining to that opinion results in the dismissal of the complaint?

Mr. Mark: Yes sir.

Justice Harry A. Blackmun: The Judge held that this material is constitutionally protected.

Mr. Mark: Right, in the East Los Angeles, municipal district.

Justice William O. Douglas: Is that the only opinion in this case?

Mr. Mark: Yes, there is no other opinion.

Justice William O. Douglas: And then what happened?

Mr. Mark: He was prosecuted in the Orange County municipal district.

Justice Harry A. Blackmun: What is the opinion in that?

Mr. Mark: There is none.

Justice Harry A. Blackmun: Where is the record in that?

Mr. Mark: The record in the Orange county case, it consists of the appendix which is a jury verdict of conviction and an appellate order which says the conviction is affirmed.

Justice Harry A. Blackmun: We don't have any evidence?

Mr. Mark: You have the brochure on which they are related it.

You have the reporter's transcript in the. --

Justice Harry A. Blackmun: The expert witnesses who testified in this Los Angles case, testified the Orange County case?

Mr. Mark: Yes.

Justice Harry A. Blackmun: The same effect?

Mr. Mark: The same effect.

You see in Orange County, there was a pretrial hearing in which we had our experts testifying and the people offered no evidence.

Then, on trial, we again offered the people, then offered their experts who said the matter is obscene or whatever other elements they thought were present.

Our experts testified to the contrary and it became the battle of experts and the jury looked at the material and said, guilty.

Justice Harry A. Blackmun: Where are the instructions to the jury?

Mr. Mark: The instructions to the Jury are found in the clerk's transcript and I believe a part in the Third Appendix which is the --.

Justice Harry A. Blackmun: Do you think that Roth should be overruled?

Mr. Mark: I think that Roth should be clarified to show what it actually meant because it makes no sense the way it reads now in light of subsequent opinions because the way the court has ruled for instance in Redrup, and there is various qualifying matters with respect to Roth and then all of a sudden the outcomes right out of 37 Photographs and it doesn't mean what we said.

I think it should be overruled.

I think that the First Amendment should bar criminal prosecutions in the absence of direct knowledge I think.

Justice Harry A. Blackmun: In the absence of what?

Mr. Mark: In the absence of direct knowledge, a prior knowing hearing that the matter is probably within the context or framework of the prohibited speech.

Chief Justice Warren E. Burger: Do you suggested in your briefs that you have filed with this that you have laid down this standard that you want us to adopt, that will solve all the problems.

Mr. Mark: No, I am just saying that this seems to be after going through the various cases in the paradoxes that are arisen in the decision by the Fifth Circuit as late as January 12, that there is no other answer because you can't resolve the decisions of this court and the various justices and the only resolution is to take everything and say, okay, that is that way it is.

Speech is not speech if it is obscenity and then set up a set of rules so that the judges will know exactly what to do when they get with an obscenity case.

I would say bar the criminal prosecution, take it out of the criminal area until you have a prior hearing as to the obscenity or non-obscenity of it.

Thank you justice.

Chief Justice Warren E. Burger: Very well Mr. Marks.

Mr. Capizzi?

Argument of Michael R. Capizzi

Mr. Michael R. Capizzi: Mr. Chief Justice, may it please the court.

Initially I would like to attempt to set the records straight in this matter and in the April of 1969, a complaint was filed in the Municipal Court of the Harbor Judicial District for Orange County.

Thereafter on April 16th, 1969 the demurrer was filed by Mr. Marks, the defendant of that action.

Thereafter, an amended complaint was filed May 9th, 1969 and following the amended complaint the same demurrer was held to apply to the amended complaint.

The hearing and the demurrer, under California law is limited to face the complaint.

However, Mr. Marks did introduce expert testimony at that time, expert testimony related to the obscenity of the material in question.

That was not controverted by the prosecution simply because on demurrer, no evidence can be taken, the inquiry is limited to the face of the complaint.

Thereafter there was an appeal to the Appellate Department in the Superior Court in Orange County, and the denial of demurrer was sustained.

Now this record --

Justice William O. Douglas: I have heard to Mr. Marks, I am not sure I understand it but I gathered that his compliant is that the issue that he is pendering is akin to decision in this court on the vagueness test for constitutionality of the criminal statute.

Do you understand that?

That what we have done, what we have set the standards are to emphasize, too vague -- as muster under criminal constitutional law, Due Process.

Mr. Michael R. Capizzi: I understand that to be one of his contentions Mr. Justice Douglas.

However, I think he is also -- maybe contention that action in the joining county constituted res judicata.

Justice William O. Douglas: I understand that too.

Mr. Michael R. Capizzi: I tend to disagree with him.

I think depending on how the standard, was a definition announced by this court is interpreted, it is workable.

I think the procedural aspects and there must be a clarification.

Justice William O. Douglas: The California adopted the statute saying that it is a crime to publish book that has -- is without the social values that past muster by the California Supreme Court decision?

Mr. Michael R. Capizzi: Well, California has gone one step beyond Roth and has adopted a position that is not (Inaudible) by majority of this court as being constitutionally required, and that the California statue requires that the prosecution established that the material goes substantially beyond customary limits of candor that it predominantly appealed to prurient interest and the material considered as a whole, utterly without revealing social importance.

So by statue in California, all three elements must be established by the prosecution and must correlate.

Justice William O. Douglas: The California statute has adopted two of the basis of Redrup decision?

Mr. Michael R. Capizzi: Well, it adopts the definition of obscenity as first they founded in Roth and then later expanded upon I believe in memoirs, utterly without redeeming social importance aspect.

We don't think a majority of the court concurred in that requirement but nevertheless California by a legislative Act has added that third requirement.

That is why there were experts produced by the people on all three of those elements definition and the jury was instructed as to all three and instructed that they must pull it up.

Nevertheless counsel points to the action that took place in Los Angles County and with respect to that action in the opinion of the Los Angles County Municipal Court judge, that was never directly pointed out to the judge in which the action was pending, the instant action was pending for trial.

It's part of the record, the clerk's transcript in this appeal, simply because it was not exhibit to a petition for a writ of prohibition that was filed in our Superior Court, attempting to prohibit the misdemeanor prosecution.

In filing that petition for prohibition with our Superior Court, he apparently lodged a courtesy copy with the Municipal Court and that is how it became a part of our record.

Then, thereafter just prior to the trial, he did make a motion to dismiss on the basis of res judicata, but no evidence was presented and there was no hearing on that particular motion and in particular, the opinion was not a part of that particular motion.

Justice William H. Rehnquist: In the East Los Angles proceeding was a jury actually handling that case without a dismissal on a preliminary motion?

Mr. Michael R. Capizzi: That was a dismissal on a preliminary motion Mr. Justice Rehnquist.

It did not go to trial, it was what is known in California, a motion, a determination of the question of law.

The mixed question of constitutional fact and law.

Chief Justice Warren E. Burger: Didn't you say it was on demurrer, or was that another case?

Mr. Michael R. Capizzi: In Los Angles county, I believe it was a motion to dismiss and demurrer based on two cases, People versus (Inaudible) as I recall.

Now, the appellent contends that this court or at least the members of this court had in the past suggested and this court should continue to conduct de novo hearings to determine obscenity going on.

And further suggests that in reaching that determination of constitutional fact, that makes question of fact and law, the judge when applying contemporary standards for customary limits of candor should adopt a national community standard.

What appellant requests maybe easier for this court than for other courts because the scope of this court's judicial inquiry is nationwide, or suggest even for this court, it's not an easy task and is, in fact, an impossible task.

Appellant also suggests that each judge from the trial level through each level of review should redetermine the issue, de novo using the same test, the national test.

And I would submit that this is practically impossible, local trial, appellate and state Supreme justice, they just don't have the sufficient scope of judicial inquiry to apply a national standard with respect to their contact with national standards for customary limits of candor, I would suggest that it is no more broad than the average potential juror.

I think the case which counsel has just called this court's attention to this morning with their Circuit case, demonstrates that when Judge Thornsbury indicates that he is not sufficiently qualified to determine customary limits of candor.

Justice William O. Douglas: To get the experts who justifies the national standards.

Mr. Michael R. Capizzi: Yes Mr. Justice Douglas.

In fact, Mr. Marks has suggested experts, but I think that demonstrates another problem that we'll further confound the problems that are already existing.

Experts maybe fine for the initial judge, the trial judge, who can examine the witness, determine his credibility, watch the demeanor while he's testifying and all the things that a triar of fact generally does, but what position does that leave the appellate judge, the reviewing judge in?

If there are conflicting experts, how does he determine credibility of the varying witnesses?

It's totally impossible to say that the reviewing judge would determine credibility, would be a substantial departure from the (Inaudible) rules of the appellate review.

Justice William O. Douglas: I suppose if that's true what you're saying, I gather it is -- it would be also very difficult for a publisher and author to know when he'd crossed the line.

Mr. Michael R. Capizzi: I don't think it's that difficult for a publisher to know when he's crossed the line.

In fact, the reporter's transcript in this particular case, in this volume 2 around page 50, give or take a few pages, indicates that Mr. Miller indicated to the person who was sending the material out that the brochures themselves he felt were borderline, but the material itself that they were advertising, he considered to be pornographic.

The brochures are nothing but the more graphic depictions of sexual activity that are contained in what he himself described as pornography.

Well, I think --

Justice William O. Douglas: This was a plea of guilty then?

Mr. Michael R. Capizzi: No, it wasn't Your Honor.

It was a trial, the statement made by Mr. Miller came in by way of one of the persons who was stopping the envelopes and perisisting in the distribution.

I would suggest, however, that if we do apply the approach in the instant case that each level of court must determine a constitutional fact law question that it's readily apparent that in this case, as far as that constitutional fact is concerned, that this material is obscene, no matter what test is used, whether we use a local, state or national community.

It exceeds candor of any community.

It predominantly appeals to the prurient interest, and is utterly without redeeming social importance, the California test.

Having concluded that it's not constitutionally protective, it submitted that this material should fall into the same category as any other conduct that a state can regulate by its police power, any other conduct which is not itself constitutionally protected and the states in regulating that other non-constitutional conduct can define it in any manner they wish.

The state's vary in the definition of robbery from state to state, perjury varies from state to state, and assuming this initial constitutional fact law, determinations made by judge is determined that it's not constitutionally protected then the state should be free to adopt whatever standard they wish just as they do in other areas of criminal law.

Chief Justice Warren E. Burger: Has California at any time undertaken to use nuisance statutes or local nuisance ordinances to deal with pornography and obscenity?

Mr. Michael R. Capizzi: Yes, Your Honor.

In the County of Orange, we've utilized what's known as a Red Light Abatement Act to abate as a public nuisance, places that are used for loot purposes, prostitution and assignation, more often in the area of live entertainment, in the area of printed material.

But submit however, that it's not necessary to do as appellant suggests to determine this constitutional fact in this manner, when looking at a state prosecution under state law.

The constitution permits the states to adopt the standard that state chooses as long as the standard is compatible with Due Process in isolating obscenity as Justice Harlan said the state by the Due Process liberty provision of the Fourteenth Amendment has not held the same test as has the federal government under the First Amendment.

As Justice Harlan indicated, that's readily apparent from the language of the two amendments themselves, the first provides Congress shall make no law and obviously, we can't apply that in its precise terms through the state through the Fourth Amendment because Congress doesn't exist in this state.

So obviously, we have to do some initial editing.

Additionally, it's rather obvious that if in enacting the Fourteenth Amendment, it was the intent to restrict the state as the First restricts Congress, it would have been very simple and to have so stated that the states are prohibited from enacting any law abridging the freedom of speech.

I would certainly not suggest that those persons who framed the Fourteenth Amendment were so imprecise and so inarticulate, that if that had been their intent with the background of the First Amendment, that something consistent with the First Amendment could have been specifically provided to the states.

Chief Justice Warren E. Burger: Is there any reason why California is limited to using its nuisance procedures against what you call live or live obscenity or obscenity which is essentially conduct, would it be available, in other words, to use it against books or moving pictures?

Mr. Michael R. Capizzi: I don't know, Your Honor.

We haven't progressed in our cases that are pending against a particular bookstore to the point where we have applied it.

There have been acts of mootness as well as the sale and distribution of books from that particular bookstore that have gone inside the premises.

The act itself states that it applies to places of prostitution, assignation or lewdness.

Justice William O. Douglas: Although your brief doesn't say so -- for these words, I gather from your oral argument, do you think that the decisions of this court making applicable the First Amendment to the states were long decided.

Mr. Michael R. Capizzi: Yes, Your Honor, in its expressed terms I feel that --

Justice William O. Douglas: If you were to edict (Inaudible) and all the others decisions should we either overrule in that regard?

Mr. Michael R. Capizzi: I would suggest that the -- again the decision taken by Mr. Justice Harlan and expressed by him in the Roth case is entirely reasonable and it's consistent with the constitution.

When we're talking about the deprivation of one of the fundamental liberties without Due Process of law.

The inquiry should be whether or not the state action so subverts the fundamental liberties implicit in the Due Process clause that it cannot be sustained as a rational exercise of power and I would submit that adoption by state of a local or statewide standards for limits of candor as a portion of the definition of obscenity is not subversive of fundamental liberties, but is actually a rational exercise of power, whether -- I would suggest that neither practicality, reason or the constitution require a national standard for customary limits of candor as suggested by the appellant.

Initially, I would suggest that practicality demands that something other than a national standard be used.

How is a national standard to be determined fully apart from the legal question, the mixed question of constitutional fact law, as a matter of fact presented to the jury, how is a national standard to be determined.

Well, as far as that factual determination, I would assume that experts could testify, however in this case, an expert testified as to the statewide standard, an expert who is employee of the Los Angeles Police Department, took him 30 days to conduct his survey analysis of the state and five years on the job.

Say, if Los Angeles now charges $400 a day, every time another experts goes outside the city limits to testify to recoup the cost of conducting their survey and updating their survey.

Can you imagine the additional cost that would be involved that that expert had to spend 30 days traveling each of the 50 states, why we're taking 50 months just to complete a survey?

Long before he completed the survey, he would have to update it because it requires contemporary community standard.

So if we multiply the cost by 50 times 400 and a time, 50 times a month, totally impossible and impractical.

Now I'm not suggesting that cost to loan is a factor that should cause us to overlook any constitutional rights.

I'm simply suggesting constitution itself does not require experts and it's impractical, impractical to prove through experts a national standard.

Reason also requires that a local standard, local state standard be adapted.

Obviously, one local area will accept material that another local area will not.

A national standard who very likely prevents a local community that had liberal attitude and would accept material.

From receiving that material, because of the restrict of influence of a conservative community some 2500 miles away.

And the opposite is also true.

The conservative community would be forced to accept material because of a nationwide standard that is diluted by a more liberal standard of a community again, 2500 miles away.

Thus adoption of a national standard would have just the effect that the appellant in this case and in the amici are suggesting as undesirable.

It would have the result of making this all one, making this all little thin soldiers out of a mold, all receiving the same material, the same standard and would not provide for differences from one community to another.

We suggest additionally that the constitution supports a state or local community standard.

Initially in Roth, this court used the term community and inspite of the dictionary definition, that's in the footnote 2 to Jacobellis suggest that the customary meaning of the community is a local community, the area in which people shop, work, live and entertain themselves.

I think that definition of community is also consistent with the same paragraph of the dictionary referred to in that footnote of Jacobellis which defines community as society as a whole.

Additionally, it's constitutionally permissible to accept that local or statewide standard because of the definition announced in Roth, that the community standard must be contemporary with the times, without that term contemporary we would be stuck, I would assume with the same definition of obscenity that existed in 1791 when the First Amendment was adopted.

Chief Justice Warren E. Burger: Well, are you suggesting that a standard would become outdated and therefore not contemporary after the lapse of two or three years, is that what you think contemporary is?

Mr. Michael R. Capizzi: I think it must be a standard, yes, Mr. Chief Justice, that is related at the same time as the distribution or the time of the crime, I think it has to exist in tune with our particular times.

It's not a community standard that existed in say 1850 or 1791 because of the term contemporary.

We have --

Chief Justice Warren E. Burger: What is the difference between saying that we aren't bound by the standards of 1791 and saying that the standard is outdated if it's based on some sort of a survey, made in 1965.

I get it that you're suggesting that this just have to be kept up-to-date almost on a month-by-month basis, to see what people are thinking just lately.

Mr. Michael R. Capizzi: I think that is true Mr. Chief Justice that --

Chief Justice Warren E. Burger: Then you set out an impossible task for yourself, haven't you?

Mr. Michael R. Capizzi: I think it's a task that has been reported almost by the term contemporary and the California Supreme Court in a case of In re Giannini requiring that community standards be established by experts.

Justice William O. Douglas: Of course, Giannini as I read that opinion, dealt only with the dance in a local tavern in a town, in California, right?

Mr. Michael R. Capizzi: Yes sir, Mr. Justice Douglas, however.

Justice William O. Douglas: We are dealing here with the big double dating company and other big publishers of books and tracks.

Mr. Michael R. Capizzi: No, in this case we are not dealing with double dating.

Justice William O. Douglas: No, I say but the problem here that we're dealing with deals with a big distribution system, which is national and so on, how does your local standard depicts the normal pattern of American book publishing business or magazine publishing business.

Mr. Michael R. Capizzi: Well, the same marked definition of obscene was applied to the topless dancing in In re Giannini as it's applied to printed matter in California because of the California Supreme Court statement that the dancing is an expressive conduct.

Justice William O. Douglas: Yeah, my question really relates to whether or not in this area where we're not really in the area of a common market of literature and ideas require the national rather than the local standard.

Mr. Michael R. Capizzi: Well, I'm suggesting --

Justice William O. Douglas: Maybe in California, they have the privilege of doing what they want was topless dancers.

Mr. Michael R. Capizzi: I submit that the constitution permits a changing standard based on geographical lines, even if the material is distributed nationwide.

Now in this case, we have no evidence that the material was distributed nationwide.

The only evidence we have is that it was mailed in either Los Angeles or Orange County and it was received in Orange County, and that's the only evidence as far as I'm aware in the record indicating the scope of its distribution.

Justice William H. Rehnquist: Mr. Capizzi, if, in fact, the court were to adapt a local or community standard as opposed to a federal standard, wouldn't it be guarantee of jury trial in each case, be itself some way of evidencing the jury's reaction, be some evidence of the local communities standard without the necessity of expert testimony?

Mr. Michael R. Capizzi: Yes, Mr. Justice Rehnquist, I believe that it would relieve this court and appellate courts from determining that which they are not really capable of determining on their own.

The constitutional fact law of question, it would eliminate that for consideration and would permit us to rely on the jury verdict and assuming there was a conviction, a substandard -- sufficient evidence test to determine whether or not it complied with Due Process.

I think the changing standard from one geographical location to another, again, has constitutional background, simply because we do have the one variable as I was suggesting, the contemporary community standards.

It's a changing standard and it must be a standard that's contemporary with our time.

So why is it so inconsistent to say we have another variable?

A geographical difference, a variable that -- variation that would differ from geographical location to another.

We have procedure for punishing utterances in one location and not in other.

Fire in a crowded theater is punishable and in open field it's not, the words are the same, it's the location that constitutes a clear and present danger and maybe that's what we're saying in this case.

If one community can consider matter which violates its particular standard for limits of candor, dangerous and within its police power and yet another community, really one is so considerate.

The adapting this test, the appellate courts would then use the sufficient evidence test to review convictions and the time saved building into other issues.

In other, whichever test is used in a particular case, I would suggest that the judgment should be affirmed.

If we use a national standard, I would suggest that the statewide standard in the State of California is a liberal standard, and in effect had -- as a net effect of requiring that the prosecution a greater burden of proof than the national standard had, in fact, been established and could be established.

The statewide standard, that was what has done in this case and if it's a local standard, again, it operated to the benefit of the appellant to use a state standard because the statewide standard, I would submit for the State of California, is again somewhat more liberal than a conservative standard of Orange County and again required a prosecution, a greater burden of proof.

Chief Justice Warren E. Burger: But let me ask you, you urged the Orange, the local standard -- would you say the -- law practices by saying let's assume that the First Amendment applies to the states of the same -- to all the states the same way?

Would you say that if California can use a local standard that there are no limits to what might be held to exceed the standards of candor in the community?

Mr. Michael R. Capizzi: No, because under California law, it would still be required prosecution to prove that the matter taken as a whole predominantly appeals to a prurient interest and the matter taken as a whole is utterly without redeeming social importance, however I would suggest that--

Justice William O. Douglas: Does that read to Giannini case, it wasn't the local standard, that the defense prosecutor should be the local standard.

Mr. Michael R. Capizzi: Said that it was a state standard and in California Supreme Court.

Justice William O. Douglas: Said it the statement--

Mr. Michael R. Capizzi: --said there was a state standard and California we are bound by a state standard because of the edict of our state supreme court.

I'm suggesting however that the constitution requires no more than a local standard, and if the states in enacting their laws wish to adopt the state standard or a national standard, they should, under the Fourteenth Amendment, be free to do just that.

Justice William O. Douglas: In other words, as matter of a federal constitutional law you take the view of Justice Burke in dissent in Giannini.

Mr. Michael R. Capizzi: Yes, Mr. Justice Douglas.

I submit the matter unless there are further questions.

Chief Justice Warren E. Burger: Very well, Mr. Capizzi.

Mr. Marks, I think you have consumed your time, the case is submitted.

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