KAPLAN v. CALIFORNIA
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Stanley Fleishman
Chief Justice Warren E. Burger: We’ll hear arguments next in number 71-1422, Kaplan against California.
Mr. Stanley Fleishman: Mr. Chief Justice and may it please the Court.
Petitioner, Murry Kaplan, a bookseller, has been branded by the State of California as a criminal for selling a book, a sexy book, to an adult who asked for a good sexy book.
For doing so Mr. Kaplan has been placed under probation for three years on condition that he’d spend 30 days in jail and that he pay a fine of $1,000.
Initially, I would like to point out what is not involved in this case.
We do not have, in this case, any issue of sale to or exhibition to minors.
We do not have, in this case, any upfront to the sensibilities of adults or anyone else.
We have no shock.
We have no fighting words.
We have, to put it simply, pure communication, a sale of a book to an adult.
The facts are not in dispute at all.
On May 14, 1969, Mr. Donald Schidel, a police officer with 16.5 years of experience, came to petitioner’s bookshop.
It’s an adult bookshop.
There were some-250 of them in the City of Los Angeles at that time.
Mr. Schidel was browsing around for about 30 or 40 minutes when the petitioner said “this is not a library.
Can I help you?”
It was at that point where Mr. Schidel said “Do you have any good sexy books?” and petitioner said “all our books are sexy.”
Then he said “I want a good paperback book, something really good.”
Petitioner said, “hey, I’m reading one now, Suite 69” and he read him a portion of pages 84 and 85 which I may say, parenthetically, are pale.
The words are pale by comparison to Henry Miller’s “Topic of Cancer” found not obscene by this Court a long time ago.
After reading the passages to the officer, he parted for $1.69-- $1.95, and that’s the entire transaction.
Now, from the beginning, the petitioner here urged that his conduct could not be punished constitutionally, that he didn’t do anything that offended the state in any fashion by selling this book to this adult under these circumstances.
Our basic claim here, Your Honors, is one that has, not to my knowledge, been posed quite this way before although, certainly, we have posed it differently on other occasions.
Our claim here is that an adult in America has an absolute right, and I know that absolute rights are not many but I believe that this is one of the few absolute rights that we have, an absolute right to read anything he wants to read even if it has no social value, even if it appeals to the prurient interest of the average person, and even if it may be thought to be patently offensive by others.
Justice Potter Stewart: But this-- your client wasn’t convicted for reading something, was he?
Mr. Stanley Fleishman: My client asserts the right to defend the right to read, Your Honor.
My client claims a derivative right.
We say that if in fact an adult has this absolute right to read, then the bookseller has the right to assert the right to read in exactly the same fashion that Mr. Baird was given standing to assert the right of the unmarried woman who wanted to obtain a contraceptive.
We do not claim that petitioner or bookseller has the right to sell an obscene book.
That fact is so.
We do say, however, that the right to read would be meaningless unless the bookseller, when he is charged criminally, can come before the Court and say “this, you cannot do because you are interfering with the right of an adult to read if you punish me, the bookseller, for selling to an adult.”
Justice Potter Stewart: Well, the-- Your-- Stanley Sy would seem, at least superficially, to uphold the right to read but Reidel on the other point, on the other hand, indicate that that does not mean that your client has the right to sell, wouldn’t it?
I mean, in other words, your client was not convicted for reading anything.
Mr. Stanley Fleishman: No, my client is--
Justice Potter Stewart: No, I think you have to go a little further than to assert the right to read, because your client--
Mr. Stanley Fleishman: I have--
Justice Potter Stewart: Was not convicted for reading anything.
Mr. Stanley Fleishman: Your right, Mr. Justice Stewart.
I have thought further, I believe, in the sense that I have struck this case, at least my argument, differently than we did in Reidel.
In Reidel, we asserted the right of Mr. Reidel to sell.
He had the constitutional right to sell.
I come here now and say I know that Mr. Kaplan does not have a constitutional right to sell an obscene book, but I do say that the book seller has standing to assert the right of the reader.
There is nothing in Reidel at all that is in conflict with that.
As a matter of fact, I believe that on a close reading, Justice White, of Reidel, you told us that we didn’t pose it at our argument correctly.
As I read it, you did state that there was an independent right there, but we haven’t claimed the correct right in Reidel.
At least that’s my reading of it.
I do not believe there is anything in Reidel that stands in the way of our prevailing in this case at all.
The result may be very close to the same, but we certainly are walking in a different door and that is what I am talking about at this time.
I don’t think there is any way of avoiding the result that we claim here once we agree as to a proposition that there can be no disagreement about it, and that is that an adult simply has this absolute right to read.
It’s not only in our constitution.
It’s not only in the cases that this Court has decided on enumerable occasions but it is, if you will, in the Universal Declaration of Human Rights which has been with us now for some-25 years, passed in 1948.
Article XIX of that Universal Declaration of Human Rights states that everyone has the right to freedom of opinion and expression.
This right includes freedom to uphold opinions without interference and to seek, receive information and ideas through any medium.
Chief Justice Warren E. Burger: That means through any medium that’s available legally, doesn’t it?
Mr. Stanley Fleishman: It says really “through any medium” which is through books, magazines, or through any communication as I would see it, Your Honor.
Chief Justice Warren E. Burger: Well, California is simply saying in this case that the medium, that is the store and I’m not now speaking of the book, the store operating as it was operating violates California’s laws.
Is that correct?
Mr. Stanley Fleishman: It does not violate California statute, Mr. Chief Justice, because--
Chief Justice Warren E. Burger: What is California’s claim with respect to that?
Mr. Stanley Fleishman: This-- it would violate the statute if the statute would give in the broad reach that the state has claimed for it.
What we say here, though, is that that broad reach is simply impermissible because it does not trench upon any state interest.
The only state interest that have ever been articulated by this Court with regard to the suppression of obscenity are really two-fold.
One is the legitimate concern with minors, and the other is the legitimate with concern with the privacy of the general public so that the general public is not shocked or affronted by obscenity because it is the fact that this kind of communication of very explicit sexual material can cause shock in very much the same way as the words in Chaplinsky were thought to be fighting words, or in very much the same way that the words in Boe Harneigh were thought to be offensive to the sensitivities of the persons who heard them but, once we leave that, there simply is no state interest in telling a person that he cannot read an obscene book.
That’s my understanding of what Your Honor said in Reidel, Mr. Justice White, where, as I read it, there was the statement that Stanley recognized an independent constitutional right, independent of the First Amendment, a constitutional right to read what one wanted, whether one talks of this in terms of the numbers that come from the first, the fourth, and the ninth, or however one wants to articulate it.
We do state that the California just simple does not have constitutional power to interfere as far as it has in this case.
Justice William H. Rehnquist: Mr. Fleishman, if we said in Roth that obscenity as such as not protected by the First Amendment, why need the state to show what you call a state interest in order-- if it’s dealing with what is arguably obscene.
Mr. Stanley Fleishman: Well-- because, Your Honor, and this really is the heart of my argument that even though obscenity is not speech and, therefore, is not protected by the First and Fourteenth Amendments, even so, an adult has the right to read obscenity and this right to read, even obscenity, is a fundamental personal right.
Therefore, if the state wants to interfere with the fundamental personal right to read even an obscene book, then the state must show a compelling reason.
Justice William H. Rehnquist: Well, then you’re saying that what we said in Roth isn’t entirely correct.
If a person has a right to read an obscene book, presumably that right stems from the First Amendment as incorporating by the Fourteenth.
Mr. Stanley Fleishman: Not entirely.
I think that’s what Mr. Justice White was teaching, me at least, in Reidel, that there is a right to read but it is not a First Amendment right to read and, therefore, it’s an independently safe right.
There are certain things, for example, I suppose I have the right, a fundamental constitutional right, to go out and enjoy a sunset, to enjoy that.
That’s a fundamental right that I have.
Now, that’s not a First Amendment right.
It’s a personal right that comes to me as a human being in terms of the importance of liberty, and the state simply cannot interfere with that right without showing some legitimate state interest, an the legitimate state interest must be a compelling interest where you have fundamental rights at stake.
Justice William H. Rehnquist: Would you require every single exercise the state police power--
Mr. Stanley Fleishman: No.
Justice William H. Rehnquist: To be justified on that source?
Mr. Stanley Fleishman: No.
Justice William H. Rehnquist: Supposing the state decides to build on land that it owns a large freeway that obscures your view of the sunset from your backyard.
Now, would you say the state has to show a compelling state interest to cut off that view?
Mr. Stanley Fleishman: No, and I think this is the distinction that was drawn in Griswold.
It’s a distinction that was drawn in Baird.
It’s the distinction that is present in Stanley and it’s the distinction that we claim here, that there are personal fundamental rights that simply stand on a higher footing than merely economic rights or social rights which do not come on into this same level.
When you said in Griswold that there is a right of privacy, marital privacy, which is fundamental and the state can only intrude in that in limited area and upon the showing of a compelling interest, it was because there was a finding that that situation was of great importance in a free society, and I’m saying the right to think and all that’s embodied in that is fundamental to a free society.
You cannot-- you simply cannot have a democratic society without giving and recognizing the importance of the right to read anything that an adult wants to read.
Now, once that we agree that that is a fundamental personal right which is on a different footing than the land case that Your Honor was talking about, then I say that the state has to come in and show something.
Why, for what reason, can the state come in and say that an adult cannot exercise that right, and they simply have not done it here.
Their attempts to justify it not only don’t make a compelling case, they don’t even make a rational case.
Chief Justice Warren E. Burger: Mr. Fleishman, you got me confused again.
Are we dealing in this case with the right of the reader or the right of a seller?
Mr. Stanley Fleishman: We are dealing with the right of petitioner to assert the right of the reader in precisely the same way, Your Honor, that Mr. Baird was given standing to assert the right of the unmarried woman who wanted to obtain a contraceptive.
Now, in that case, the right belonged to the unmarried woman, but the person who asserted the right was Mr. Baird who had given it to her.
Now, in this case, the right that I claim, the constitutional right that is inherent here in this case is the adult person’s right to read.
But, the bookseller, the person who makes that right meaningful is in a position to assert that right.
He has standing.
He has standing for better reasons than Baird was given standing in the Baird case because, in Baird, the Court said unless Mr. Baird could assert the right that was involved, the right would fall into this too.
It would wither away.
Now, in our case in California there is no crime of reading an obscene book.
Therefore, there would never be a situation where the adult could assert.
He would have no form in which to assert his right and, under those circumstances, this Court has said that you—the third party rule, the rule of asserting third party rights can be relaxed and should be relaxed, and that is exactly what we are here.
We do not say, and I want to repeat it, we do not say that the bookseller has an independent right to distribute an obscene book.
Roth has said no, Reidel has said no, and we accept those propositions here, but that does not mean that a bookseller can be sent to jail for doing nothing more than engaging in a transaction which is absolutely protected, that is to say letting an adult obtain a book which he has an absolute right to read.
Justice Harry A. Blackmun: Mr. Fleishman, your case stands or falls on the issue of standing, I take it.
Mr. Stanley Fleishman: That is, on this aspect of the case, that is true.
I would-- before leaving this, if the Court please, I would like to point out that as I understand it, every member of the Court really has accepted the right of the adult to read obscenity privately.
If I understand Rosenfelt correctly, Mr. Justice Powell there stated that our free society had to be flexible enough to permit adults to engage their tastes which would include obscene talk privately, but the condition was that that obscene talk not be such as to intrude upon those who are unwilling to engage in this kind of talk.
Inherent in and explicitly stated in Rosenfelt was that there was the right of an individual to exercise their own taste in this way.
It’s something we all know, this distinction between the public and the private, a joke which is perfectly proper.
It may be an obscene joke, perfectly proper in a fraternity house or in a locker room is perfectly improper when its either public or perhaps in this quadroon because it becomes an offense, but if you had the situation which we have in this case, whether it simply is no offense to anyone, then so far as this aspect of the case is concerned there is the absolute right to read which then does depend on standing as Your Honor did state before.
But, there are other aspects to the case which do not depend on standing.
First of all, once we leave the first point, we believe that the book is not obscene under the variable obscenity test even if it meets the three-pronged tests set forth by this Court in memoires.
That is to say a book which is sold to a consenting adult under controlled circumstances, such as we have here, simply is not patently offensive because it’s one thing if you have a mass mailing, such as was involved in Roth in the first instance or again in Ginsberg.
There, because it goes out indiscriminately, it’s going to be offensive to large numbers of persons, and then you do have to ask the question “is it patently offensive to this large group of people who are exposed to it?” but it’s irrelevant, it seems to me, when you have a situation where if I choose to buy the book and read the book and it doesn’t offend me, then it doesn’t matter that that same book would offend most other people.
The other people don’t buy it, don’t read it and, therefore, whether it does or does not offend them is simply irrelevant.
The same thing is true with regard to the appeal to the current interest.
Now, the appeal to the prurient interest of the average person makes sense when you have, again, a widespread distribution to a large number of persons so you have to then strike the group that is concerned.
But, when you have a private transaction such as you have here, it simply doesn’t matter that it may appeal to the prurient interest of the average person if it does not appeal to the prurient interest of the person who reads it.
This is only the other side really of Mishkin.
In Mishkin, Your Honor stated that it was proper to adjust the test depending upon the audience for whom it is prepared and the primarily distributed to and, there, material which would have been perhaps not obscene if it was to the average person was found to be obscene because it was geared for a particular group where we’d have a particular impact.
Now, I’m looking at the other side of that coin.
If all we have are consenting adults, people who are not offended, people who do not have their prurient interest appealed to by the reading of this, people for whom it does have value even if it would not have value generally, then that book to that person under those circumstances simply is not obscene.
For that argument, Mr. Justice Blackmun, of course, we do not require to go on a standing.
That’s an independent right because the bookseller has an independent right to sell the book now because, on this argument, the book is not obscene under a variable obscenity test, and--
Justice Potter Stewart: Now when you speak of variable obscenity test, am I right in understanding that you mean just to capsulize the arguments you’ve just made, is that it?
Mr. Stanley Fleishman: Yes, Your Honor.
That is it talks in terms of the audience and the context.
Justice Potter Stewart: Right.
Mr. Stanley Fleishman: Exactly.
The third part of the argument, insofar as this is concerned, is that aside from everything else, if we forget the variable obscenity test, if we forget the right o read, this book is simply not obscene under cases already decided by this Court.
The book, after all, is words alone.
It has no pictures.
In terms of the words used, they surely are no stronger, no starker than the words that are Henry Miller’s book and in noise complaint and all around us, as far as that’s concerned, and in terms of the descriptions that are there.
There comes a time, I would respectfully submit, that there’s nothing new that you can say about the subject, and that time has simply come and gone.
So that, in every aspect of the case, the book, it seems to me, cannot be the basis of a criminal conviction such as was involved here.
If the Court please, I’d like to reserve the balance of my time for rebuttal.
Chief Justice Warren E. Burger: Very well, Mr. Fleishman.
Argument of Ward Glen Mcconnell
Mr. Ward Glen Mcconnell: May it please the Court, Mr. Chief Justice.
It seems to me that all petitioner wants in this case is that this Court should scuttle Roth and 15 years of cases following Roth including Reidel, including 37 photographs which are less than a year-and-a half since they were decided.
Now, petitioner perceived something in Stanley versus Georgia which this Court has held already does not exist.
His arguments already been presented to the California Supreme Court in People versus Burrows, and they considered his argument to be highly concatenated.
If I understand him correctly, he is saying, number one, it’s alright to sell obscenity to a consenting adult and, number two, if you sell it to a consenting adult, it’s not obscene and, number three, he asserts that Roth is still the law of the land and obscenity is still not protected and he says he doesn’t challenge Roth.
To me, this is somewhat confusing.
Now, there are some facts in this case which Mr. Fleishman didn’t stress which I feel should be stressed.
I think the conversation in the bookstore between the officer and petitioner was a little more involved than what Mr. Fleishman has stated here.
It’s all covered in detail in the briefs.
I think this case is unusual in the sense that commercial exploitation exists in this case to a much greater degree, at least in the record, than it has in other cases.
I think it’s invalid for Mr. Fleishman to argue to this Court that obscenity today in the United States is not being thrust on an unwilling public.
The fact of the matter is that the public is complaining.
The public did complain, according to the record, about Mr. Kaplan and that’s why the police went there.
At the time this case arose, there was some-250, I call them dirty bookstores.
If Mr. Fleishman wants to call them adult bookstores, okay.
There are 250 in the City of Los Angeles alone.
There just are not enough policemen assigned to the bike squad to cover the dirty bookstores in all the other parts of their assignment for them to go around aggressively enforcing the laws against pornography, and the record shows that the only reason they went to Mr. Kaplan’s bookstore was because they have received complaints from the public and complaints from governmental people to whom the public had complained.
Chief Justice Warren E. Burger: Does Los Angeles have any special squad or special mechanism to keep minors and other children out of these stores?
Mr. Ward Glen Mcconnell: Not for that specific purpose.
They do have a special squad within their organization that does work on nothing but pornography, but it’s just a handful of men.
I believe they are no more than about six or eight men assigned to that.
Most of their time is taken up with conducting a survey in the state to determine contemporary community standards.
There is no legal method in California wherein the Police can do anything other than use the statute before this Court to keep the public from being offended by the pornographic booksellers.
Justice William O. Douglas: Is that group specially trained for pornographic literature or in literature generally?
Mr. Ward Glen Mcconnell: Well, for the most part, there especially trained for porno-- the few that works on them would be specially trained for pornographic literature to some extent.
It depends on what you mean by special training.
That’s what they call the Administrative Device Commission.
There are 17 vice divisions geographically in Los Angeles and there is an administrative vice division and these men, along their duties, supervise and train the other vice officers in the city and conduct a special investigation.
They work in all kinds of vice, but there would be just a handful that would be assigned to pornography.
In this case, for instance, the witness Blackwell would be one of these men and the record reflects what kind of training is fairly typical for these men.
At the present time, one of the men I believe is a psychologist.
It just happens to be that he is a policeman who is a psychologist.
Justice Potter Stewart: You say that the record shows that there were complaints.
What were the complaints?
Mr. Ward Glen Mcconnell: The--
Justice Potter Stewart: What were they complaining about, I mean.
Mr. Ward Glen Mcconnell: It wasn’t gone into great detail in the record, but the people were complaining that obscene books were being sold from this bookstore.
The record is clear to me at least--
Justice Potter Stewart: Is there any-- does the record show that these were being displayed to people who-- to passers by who--
Mr. Ward Glen Mcconnell: Well, the record only reflects that the complaint had been turned over to Sergeant Schidel.
He was assigned to investigate to see if there was any substance to the compliant.
Justice Potter Stewart: Well, the record just doesn’t who what the complaint was about, does it?
Mr. Ward Glen Mcconnell: He stated, as I recall, that there had been complaints from citizens that Mr. Kaplan was selling obscene books.
Justice Potter Stewart: To un-- showing of non-willing people who are offended?
Mr. Ward Glen Mcconnell: No, just selling obscene books from his store.
The record doesn’t show to whom he was selling.
Justice Potter Stewart: Does the record indicate what the surrounding environment was of the store?
Was it a place that pervades the juveniles and displayed to people who weren’t interested or were offended by this?
Mr. Ward Glen Mcconnell: I think I know what you’re driving at.
Justice Potter Stewart: No, I’m asking you a question.
I’m driving at trying to get an answer to my question.
Mr. Ward Glen Mcconnell: Well, the answer is yes to some extent.
The record shows, for instance, that there’s some kind of a sign that minors can’t enter.
Justice Potter Stewart: Minors can enter?
Mr. Ward Glen Mcconnell: Cannot.
Justice Potter Stewart: Can’t.
Mr. Ward Glen Mcconnell: Cannot enter the store.
There’s nothing in the record to show that Mr. Kaplan ever did or did not sell a book to a minor. I personally would be very surprised if he did.
That’s not his business, very frankly.
Little children don’t go out and try to buy this kind of books because--
Justice Potter Stewart: Were there displays?
Did he have a--
Mr. Ward Glen Mcconnell: As I recall--
Justice Potter Stewart: Were it on display?
Mr. Ward Glen Mcconnell: Inside the store, he did.
I don’t recall what the record reflects with respect to what the store looked like from the street other than he had the usual signs that it was an adult bookstore and so on that you see here in Washington or anywhere else.
Justice Potter Stewart: Do you know where in the record this evidence appears?
If you don’t know, don’t take a lot of time.
Mr. Ward Glen Mcconnell: I’ve gone into it in my brief and made reference to it there.
Justice Potter Stewart: Alright, fine.
Mr. Ward Glen Mcconnell: It’s not a particularly detailed area.
Justice William J. Brennan: Well, isn’t this at pages 44 and 45?
Did you have any information before you went into the stores to Mr. Murry Kaplan being in the store, working at the store? “Yes.” “Where’d you get that information?”
“I think I got it from two different sources.
I think, number one, it administered the vice we were checking on different locations known as adult-type bookstores and who the owner was through licensing.
I also checked from west L.A. to-- and actually, Mr. Kaplan was working in there.
He was actually working as well as being the proprietor of the location.”
Is that about all there is?
Mr. Ward Glen Mcconnell: No, I recall more than that.
Justice William J. Brennan: I see.
That was sought--
Mr. Ward Glen Mcconnell: I think it was at page 38 of the transcript.
Justice William J. Brennan: Well, that was in the Times.
Mr. Ward Glen Mcconnell: It says the purpose was to investigate citizens’ complaints regarding obscene matter being sold at that location and, later on, either board or cross examination was brought out that the complaints came to him via a City Councilman’s Office and the people had apparently complained to the City Councilman.
Going on with this point, I think it’s interesting to note in the Los Angeles Times Sunday past.
There was an article.
Apparently, the people are sorry that they’ve gone ahead and allowed the public distribution of pornography there because it has become a nuisance that there’s a danger of it becoming here in the United States and in California, in Los Angeles in particular.
Now, Mr. Fleishman’s theory on its face, I think, has some sort of validity, that is, it would seem reasonable that one could control sales to minors.
There is a possibility of the chilling effect.
There’s a possibility of the prior restraint though if the state attempts to license bookstores and place them in the same manner that it does with alcohol.
Of course, with alcohol, you can never have a problem with prior restraint.
The reason the theory doesn’t work is, very simply, if an adult goes into a liquor store and buys a bottle of bourbon, he certainly is not going to give it away to children and, most times, he’s not even going to give it away to other adults.
He’s buying it to consume it himself.
Once he has drunk it all up, it’s gone and he throws away an empty bottle.
It’s not the same thing with pornography.
It doesn’t self-destruct in five seconds and it’s not biodegradable.
It simply sits there until he throws it in his trash and then you have the problem of redistribution because there is control.
There are controls now in the area of pornography.
You don’t have much of a redistribution problem.
I anticipate Mr. Fleishman will mention Butler versus Michigan, and I don’t want anybody to think that I’m implying that that’s bad law.
I think it’s good law.
But, still in all, it goes to the validity of his argument that it should be okay if petitioner does not sell it to children because the fact of the matter is that if you have wider distribution, it means wider distribution everywhere eventually.
The other factual area in this case that was important to me was that petitioner was exploiting his materials.
He sold to the police on two different occasions three different types of material: film, photo magazine, and a book.
Petitioner was charged with all three-in-one complaints.
He was tried in one case and the jury was shown what Mr. Fleishman calls comparables.
In the case of Suite 69, an entire book called “Adam and Eve,” held not obscene by this Court in White versus Minnesota was read to the jury.
The jury was instructed that they should consider the fact that this Court held Adam and Eve to be not obscene in considering whether or not Suite 69 was obscene and the jury, considering all the different comparables and all the factors in the case, acquitted petitioner of selling an obscene movie, of selling an obscene photo magazine and yet held, based on what they had heard, that the book is obscene.
The manner in which petitioner and other pornography peddlers in this country are selling their materials these days, I think, speaks volumes for its social value and I would question whether a jury trial has any validity in an obscenity case if the petitioner can eventually come to this Court and say “well, the jury while having all the benefit of all that testimony and evidence should now be overruled because of some different standard.”
If Stanley versus Georgia has any meaning, if Reidel and 37 Photographs have any meaning, and if they mean what Mr. Fleishman says they mean, then I am truly confounded.
I think the basic rule of Roth is still good.
I’m frankly surprised that a case such as Stanley versus Georgia ever had to come to this Court, it would seem to me that any Sixth Grade child would’ve told the police in Georgia that you can’t control a man as such and he wouldn’t have had to base it on the constitution.
I don’t think and I submit that this Court should not think so either, that because there is any right to think and an absolute right to read what you want in the privacy of your own home that that means there’s a right to sell pornography, and there isn’t any logical connection between Stanley’s right to read and petitioner’s right, on the other hand, to conduct a public merchandising of the material that Stanley might want to read.
Roth and Reidel simply do not agree with Stanley.
I do not believe that birth control cases are controlling in this case either.
In the birth control cases, in Griswold and Eisenstadt, the Court was dealing with dissemination of ideas and information which the public at large clearly attaches great social value too.
Pornography simply is not a matter that so fundamentally affects the people in this country as decisions of whether or not they should keep their children.
What petitioner is saying in this case essentially is that the Court should throw out Roth.
He is saying that there-- that Roth was wrong when it said there was no need for the state to show a clear and present danger based on any compelling state interest, and he says that this Court has limited the state only to interest in Stanley versus Georgia.
Now, the Court gave two examples in Stanley versus Georgia, but didn’t place any limit on what this compelling state interest may be, if any, and I think it’s up to the legislature and not the Courts to determine if the interest exists and, if so, what they are.
I would point out that acceptance of petitioners here in this case would put a place on the burden on the prosecution the same as it is now, and yet they’d be involved with the issues of where pornography was being sold to children or to consenting adults, and I suggest that this lies in the face of Ginsberg versus New York and Butler versus Michigan.
Some other issues that were raised in petitioner’s brief I would like to address very briefly, number one is the question of the national standards versus state standards or other local standard.
I see no compelling reason why the states should be denied local control over all aspects of obscenity, and I see no compelling reason why a national standard of contemporary community standard should apply.
Justice Potter Stewart: Now, I suppose the compelling reason is that it’s a national constitution, isn’t it?
Mr. Ward Glen Mcconnell: It’s true.
It’s a national constitution.
Justice Potter Stewart: And unless one were to adopt the view expressed by, I think, only two members of this Court in modern times, Mr. Justice Jackson and Mr. Justice Harlan, that the Fourteenth Amendment does not fully incorporate the First Amendment against state action and, because it is a national constitution, there’d have to be-- it’s the constitution.
That is nationwide that determines what is speech, what is press.
Mr. Ward Glen Mcconnell: It is correct that it is the national constitution and that is really the only argument for a national standard.
Justice Potter Stewart: Well, that’s a pretty good one, isn’t it?
Mr. Ward Glen Mcconnell: Yes, it is.[Laughter]
The question is, though, suppose the national standard were to be applied in California today, contemporary community standards have to be proven by expert testimony, and the way this is most commonly done is by having the Police Department continuously conduct a poll which we maintain is scientifically accurate of the entire State of California.
They do this every six months, and they ask people what are the standards in your community?
And then, they come into Court and they set this for us.
Now, doesn’t it stand to reason that California standards are essentially similar or more liberal than the national standard?
Why should Prosecution be put to the burden of trying to prove this sort of thing over the entire nation?
It’s been questioned in this Court before whether or not there is such a thing as the national standard and, if so, whether it’s too illusive to determine.
I think that it could be established by expert testimony in a California Court that national standards of tolerance in the areas of nudity or sex might be set by a book such as Essentialist Woman or by a magazine such as PlayBoy, that anything beyond that would offend national standards, at least in California.
Justice Potter Stewart: And what is protected by the national or federal constitution, the constitution of the United States which has the same meaning in every state unless, as I say, you are pressing to us the view taken by Mr. Justice Jackson and Mr. Justice Harlan that the Fourteenth Amendment does not incorporate the First Amendment.
Are you pressing that view?
Mr. Ward Glen Mcconnell: No, I would not.
Justice Potter Stewart: It’s a very, very respectable view held by two very fine members of this Court.
I think they’re the only two in modern times.
Mr. Ward Glen Mcconnell: The view that I have is that the Court in Roth defined obscenity and it merely said it goes beyond contemporary community standards, and if--
Justice William H. Rehnquist: Are you suggesting that, Mr. McConnell, the very use of the term “community standards” in Roth may have suggested something other than a national standard?
Mr. Ward Glen Mcconnell: You took the words right out of my mouth.
That’s exactly what I intended to suggest.
I-- if they use the word “community,” what did they mean? Obviously, if it’s a national standard then there’s a better way to phrase it than saying “contemporary community standards.”
Chief Justice Warren E. Burger: But didn’t Mr. Chief Justice Warren, when he was sitting, say it’s precisely that along with Justice Harlan and the others?
Mr. Ward Glen Mcconnell: Yes, he did, and I submit that if you-- on the one hand, if you make the community too small, then you have the same situation analogous to Butler versus Michigan where you’re reducing what people can read to a very limited sort of audience.
If you are going to make it a nationwide standard, then petitioner also has a valid logical complaint, and that is to-- he is doing business in Los Angeles, a community of some-- well, the metropolitan area of some-10 million people in standards that apply in Toluca, Minnesota or Yakama, Washington or wherever, all have the effect on how he is going to do business in Los Angeles and--
Justice Potter Stewart: So a community to one or two, in your view, could convict a bookseller if that was the community standard of--
Mr. Ward Glen Mcconnell: No.
Justice Potter Stewart: Of selling the works of Karl Marx or the writing or the publications of the John Burk Society?
Mr. Ward Glen Mcconnell: No, I think that one or two--
Justice Potter Stewart: Could they if those were the standards of the community?
Mr. Ward Glen Mcconnell: One or two is obviously too small.
In California, it’s a community of some-20 million people.
That’s the community by which--
Justice Potter Stewart: Well-- and where-- the constitution would have nothing to say if the community decided that the works of the John-- the publications of the John Burk Society were obscene and convicted somebody for selling it?
Mr. Ward Glen Mcconnell: No, not at all because I would assume that the publications of the John Burk Society wouldn’t appeal to the prurient interest.
Justice Potter Stewart: But why is that so different and why isn’t-- what’s so different about that constitutionally?
Mr. Ward Glen Mcconnell: I’m not sure I understand the question, Mr. Justice Stewart.
Justice Potter Stewart: Well, I’m not sure I understand your argument and I’m trying to test it.
Mr. Ward Glen Mcconnell: The argument is simply that there is no logical reason to me why it is more feared to somebody such as the petitioner to say that community standards in the nation as a whole have to be determined.
This Court has never answered the question until now which standard should apply, and I would assume that perhaps it wishes to answer the question in this term.
If it does, then some of the points that I think the Court should consider are, number one, what did the Court mean previously when it used the word “community”?
Number two is the fear to incorporate standards of very small towns or very rural areas against petitioner when he is doing business in a city such as Los Angeles or Washington D.C.
Justice Potter Stewart: How about the man doing business in that rural area, could he constitutionally be convicted of selling dos capital?
Mr. Ward Glen Mcconnell: No, if he makes the community too small or--
Justice Potter Stewart: Does the community think that’s offensive and obscene, that particular book?
Mr. Ward Glen Mcconnell: No, I don’t think so.
I think the community, if it’s too small or too large, either way, is an analogous situation of Butler versus Michigan.
You then have the petitioner in the standpoint of having to hear what he sold to the standards of a very limited audience or in a very limited way.
In essence, the national standard argument is all tied in with the Stanley versus Georgia argument because what Mr. Stanley was saying a few moments ago is that the prurience and so on should be judged by the intended recipients, by a consulting adult.
Justice Thurgood Marshall: Where was that point in Stanley?
Mr. Ward Glen Mcconnell: I beg your pardon?
Justice Thurgood Marshall: Where was that point in Stanley?
Mr. Ward Glen Mcconnell: Where did that point come up in Stanley?
Justice Thurgood Marshall: National Standard?
Mr. Ward Glen Mcconnell: In Mr. Fleishman’s argument, sir?
Justice Thurgood Marshall: No, you said that it was in Stanley.
I just want to know where it is in Stanley.
Mr. Ward Glen Mcconnell: No, I-- if I did, I--
Justice Thurgood Marshall: Isn’t that not what you told us?
Mr. Ward Glen Mcconnell: If I did, the wrong words came out of my mouth.
Justice Thurgood Marshall: Well, I understand that suppose the California unanimously object that people read Suite 69, could they stop a man from reading it?
Mr. Ward Glen Mcconnell: No.
Justice Thurgood Marshall: The answer is no.
Mr. Ward Glen Mcconnell: No, of course not.
But, Roth says and Reidel says that the State of California can stop petitioner from selling it to Stanley.
Justice Thurgood Marshall: Could they stop a man from going door-to-door with a magazine and a plain package from selling that?
Mr. Ward Glen Mcconnell: Well, I don’t know the practicalities of trying to sell somebody a brand new package.
They’d have to know what was inside before they take it.
Justice Thurgood Marshall: Well, I understand.
On a corner, a man comes up and says “I’d like-- do you know where I can find a sexy book?” and the man says “yup, I just happen to have one here.”
Does that violate any law in California?
Mr. Ward Glen Mcconnell: Technically, under the statute it would, but it’s one of those forty things that just could--
Justice Thurgood Marshall: It would?
Mr. Ward Glen Mcconnell: I think the way the statute is written, it would in--
Justice Thurgood Marshall: Well, suppose somebody comes in somebody’s house and says “I like having sexy books.
You got any around?”
The guy says “yes, I just got one.
I paid $1 for it.
I read it.
If you give me 50 Cents, you can have it.”
Mr. Ward Glen Mcconnell: Well, then I think you’re in an area that’s already been settled by this Court.
It’s similar to Stanley versus Georgia, but it’s more similar to the case involving the people of New York that were sending films of each other back and forth privately in the mail.
That’s a Stanley versus Georgia type situation then.
To be perfectly frank, the only way that these cases arise is when the police get complaints and they act on it.
And, they got complaints about petitioner and they went out to investigate it.
Justice Thurgood Marshall: There’s no way they’re going to get a complaint unless somebody voluntarily went in that store and looked.
Mr. Ward Glen Mcconnell: Well, I would have to disagree.
Just walking down the street here in Washington, if you walk passed an adult bookstore in the evening, there’s somebody usually out in the front, it happened to me last night, and says “come on in and see what we’ve got.”
Justice Thurgood Marshall: Is there one iota of that in this record, in Los Angeles?
Mr. Ward Glen Mcconnell: No.
This record --
Justice Thurgood Marshall: I’m talking about--
Mr. Ward Glen Mcconnell: This record--
Justice Thurgood Marshall: So far, this record just show that somebody had to go in there voluntarily and find out that he was selling dirty books.
Mr. Ward Glen Mcconnell: According to this record that’s true, yes, but I think under Stanley and under-- versus Reidel, it doesn’t make any difference that the police had to go find out.
That’s how they make their case.
The fact that the police bought the book doesn’t have anything to do with the fact that he might have been a consenting adult.
It has something to do with the search and seizure law.
If the police buy the book, that’s how they obtain their evidence and that’s how they obtain the facts--
Justice Thurgood Marshall: What do you mean the policeman?
Wasn’t it a consenting adult?
Mr. Ward Glen Mcconnell: Not in the sense that Mr. Fleishman is talking about.
He was a man doing his job.
I doubt very much if he wanted to buy that book for himself or if he’d like to read it.
Justice Thurgood Marshall: The seller assumes that he’d like that.
Mr. Ward Glen Mcconnell: No, the seller assumed he was.
That was correct, but I don’t believe the record--
Justice Thurgood Marshall: Well, this is the man you convict and he is the seller.
He assumed that this is a man that wanted to see a dirty book.
Mr. Ward Glen Mcconnell: That’s right.
Justice Thurgood Marshall: And he accommodated him.
Mr. Ward Glen Mcconnell: That’s right, but just briefly, if I may, I think that the obscenity of Suite 69 is clear from reading it and the jury’s judgment here was based on comparable evidence which this Court had considered previously.
It’s obviously different from other books.
There is no way that the community standards could not be violated because nothing can go further.
To say the book is not obscene is to say that no book without pictures, in other words a written novel type book, could be obscene and that there are no community standards.
It would be nice for Mr. Fleishman and myself if this Court could decide whether social importance is an element that the prosecution has to prove as part of its case or whether or not it’s just part of the definition that’s stated in Roth.
It seems to me that Roth created somewhat of a presumption that if the other elements of obscenity were met and social value is presumed not to exist, the California Court, the Court below, interpreted that not to be the law and followed the minority opinion in Memoirs in a Book versus Attorney General as it also followed the so-called pondering aspects of that book.
I submit that if this Court could say that a book such as Fanny held might be considered obscene under certain circumstances of sale then, certainly, that book being very tamed compared to Suite 69, certainly Suite 69 and the circumstances under which it was sold does have to be considered obscene.
I think that there would-- that this really isn’t a question of pondering.
The Court below did not talk about Ginsberg.
It talked about a Book versus Attorney General.
Ginsberg couldn’t have been convicted under California law because you can’t prove the other elements of obscenity by the statements of the seller.
You can only prove social value that way.
I think that the opinion of the Court below shows they didn’t rely on the California statute, but if this Court thinks they did, I would point out that its appearance is, to me at least, is that of a rule of evidence that codifies the law that was set forth in opinions coming from this Court long before petitioner was arrested, and it did become effective as a statute in Los Angeles quite a long time before he was actually tried.
It didn’t change any prior law.
Therefore, I would submit under the facts of this case that the judgment should be affirmed.
Chief Justice Warren E. Burger: Mr. Fleishman.
Justice Lewis F. Powell: Mr. Fleishman, may I ask you a question before you commence?
Would you extend the fundamental professional right to read to a similar right to view photographs and viewing pictures?
Rebuttal of Stanley Fleishman
Mr. Stanley Fleishman: Yes, sir, I would.
I think that stand on exactly the same footing, the right to get information whether one gets it by words or by picture stands on the same point, Mr. Justice Powell, in my opinion.
I think that the colloquy that Justice Marshall had with Mr. McConnell points the direction, as I see it, to the solution in the case.
Mr. McConnell said that as he walked down Washington somebody tried to hustle him into a bookstore and there was no such similar hustling that appeared in the case at bar.
There’s nothing in the record at all along those lines.
What we have suggested on our papers, and I think it is wise and I think it follows the opinions mostly of you, Mr. Justice White, as I understand them and, that is, that a statute can be good or bad depending upon the record that it’s made.
That is my understanding of Baird that, in that case, it wasn’t the statute that Your Honor was focusing on so much as proof in the case.
Since the state was claiming that there was a health hazard, then Your Honor quite properly said whether there is any record that this phone was relevant to the health hazard.
Now, there are again only two things that the state talked about in this case or any obscenity cases.
Mr. McConnell talks about minors and he talks about an obtrusive kind of distribution.
Now, minors simply cannot be the basis of the conviction.
It is true-- I suppose it’s true that if there are books that are on the market generally, that some of these books will ultimately find their way to minors in the same way that if you have automobiles on the road, I suppose that minors are from time to time going to drive those automobiles.
And, in the same way, if you have cigarettes being sold, that minors are going to smoke cigarettes.
But, Butler told us it was reinforced in Roth and it has been restated every opportunity this Court has had an opportunity to talk about the subject, that you cannot limit what adults are going to read because we are saying that it’s inappropriate for minors.
So that, in this case, for Mr. McConnell to argue that to follow the argument that we have suggested would mean that there is a greater likelihood that minors will get books simply does not meet the constitutional issue.
Justice William H. Rehnquist: Mr. Fleishman, under that which is then the right of the reader rather than the seller, I take it that the state may limit a 17-year-old’s right to read in a way that it can’t limit an adult’s right to read.
Mr. Stanley Fleishman: The Court has so held in Ginsberg against First-- against New York and we do not--
Justice William H. Rehnquist: Of course, there, the theory was selling and purveying rather than the right to read, wasn’t it?
Mr. Stanley Fleishman: Not quite.
As I read Justice Brennan’s opinion, it was there stated that the right of a minor to read did not stand as-- on as high a footing as the right of an adult and, therefore, since it wasn’t on the same footing that the right of the minor could be interfered with by showing of rationality.
Now, it’s true that that was a bookseller who was convicted, but the Court did talk about the right of a minor in that situation and he didn’t have-- the minor did not have the same right.
It’s what I understand Mr. Justice Stewart was saying in that opinion.
He is saying it’s one thing to say that the constitution protects absolutely the right of an adult to read because he is a thinking person, but that a minor on a theory that he doesn’t have the thinking processes yet, it’s kind of like an involuntary thrusting upon a person who is not full-- full thrust--
Justice Potter Stewart: The same rationale that limits a minor’s right to vote, for example.
Mr. Stanley Fleishman: Exactly, so that my argument does not, in any way, touch the Ginsberg’s-- Ginsberg against New York argument, Mr. Justice Rehnquist.
Chief Justice Warren E. Burger: In order to reach that results we’d have to combine voting rights with First Amendment to get that analogy, wouldn’t we?
The kind where the First Amendment says nothing about age limits for minors.
Mr. Stanley Fleishman: That is correct, Your Honor, but this Court, on a number of occasions, has already taken the step in terms of saying that the right of a minor is not as great as the right of adult.
Your Honors did that, of course, in the Prince case in the beginning, came back again in Ginsberg, and. it came up in a fashion, I suppose, in the case-- the Yoder case, Wisconsin versus Yoder.
Chief Justice Warren E. Burger: Are you saying that states have a certain amount of latitude in determining this that California might say age 17 and New Hampshire might say age 20 just as they can on contract liability?
Mr. Stanley Fleishman: There is certainly some latitude.
I don’t think that I would accept 20.
Since a person could vote at 18, I think that whenever you go above 18 you’re going to get into a question of rationality but, certainly, the state does have the right to have a different test for minors and, I might add that, in California, we do have a minor’s statute.
In California, if in fact there was a sale to minors, there is a specific statute which would control that situation.
Now, the other aspect of the case that Mr. McConnell rise-- raises is, one, is I say is minors and that certainly won’t do it and the other is that if you have a rule such as we’re arguing for that they may be, it may end up in, an obtrusive thrusting upon an unwilling audience.
The simple answer to that is, when that time comes, the State of California is absolutely free to charge a person, put on proof of that, and to convict him for thrusting it upon an unwilling audience.
We do not ask, in this case, that the statute be touched at all.
All we say is and all we argue for is that the state has simply gone too far.
It has infringed upon a constitutional right when it has punished Mr. Kaplan for doing no more than selling the book under these circumstances.
Now, there is one or two other things that I would like to touch on if I may in the brief time still remaining.
Mr. McConnell says, of course, Griswold and Baird stand on the high ground that the discussion about birth control is very important, very fundamental, and of course the state cannot interfere with that.
And then he says in a way that I don’t quite understand that sex somehow is not important.
People somehow are not interested in sex, as I hear Mr. McConnell’s argument.
The simple fact is that people are enormously interested in the subject.
If there’s one thing that we know, it is that the people buy books dealing with sex, very explicit books.
They look at films of this kind and they derive a great deal of value from it.
The Commission of Upsetting Pornography spent some-two years engaged in an enormous amount of original research.
It engaged in a great deal of scientific survey taking in terms of whom reads sexy books, why do they read them, what do they get out of them, and they have concluded that the people who read them, for the most part, are middle-aged, middle-class, White people who read them and derive a great deal of pleasure, information, and satisfactions from reading this.
Now, it therefore seems to me to be inappropriate and wrong to make an argument that Griswold and Baird will correctly decided it because the discussion was about contraceptives and how to get-- whether or not one would have children but, at the same time, that a book or magazine which deals with sex, explicit sexual material is somehow without social value.
It’s not the fact, and I believe that the commission studies and our whole history has taught us that there is, in fact, value in books such as Suite 69 even if the values do not seem to include all of us.
Thank you, Mr. Chief Justice.
Chief Justice Warren E. Burger: Thank you, Gentlemen.
The case is submitted.