MARKS v. UNITED STATES

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Argument of Robert H. Bork

Chief Justice Warren E. Burger: We will resume arguments in Marks against United States.

Have you completed your presentation Mr. Smith, Mr. Solicitor General?

Robert H. Bork: Mr. Chief Justice may it please the Court.

As this become apparent by now the government has confessed here on two of the three issues in this case, and we think that’s it is clear, we require to do so and I will explain why, briefly.

The prosecution here took place of course after the decision of this Court in Miller against California, but it was for conduct that it occurred prior to the Miller decision.

That was in a time when the governing law in this area was that announced in Roth against United States as substantially modified by Memoirs against Massachusetts.

In a word petitioners acted at the time when the law required that their materials, their film would be shown to the utterly without redeeming social value.

But the jury was charged under the Miller standard which requires that the work taken as a whole lacks serious literary, artistic, political, or scientific value.

But there is a difference between the two standards as evident that was recognized in the Miller decision itself in the Miller opinion itself which said that Memoirs represented the sharp break with Roth and that was recognized again in Hamling against United States.

It is also clear that Miller represented a swing back towards the real understanding of the Roth decision, although it refined the Roth standards greatly, and it seems clear therefore the petitioners who tried under a standard that gave the prosecution less of a burden, considerable less of a burden and the law provided at the time they acted.

It has been suggested to the test annunciated by the three justices in Memoirs, it never became the law because it never commanded the adherence of the majority of this Court.

Therefore, it is said Roth remained the law and since Miller is like Roth petitioners just got the jury instruction they were entitled towards something close to it.

That argument I must say, unhappily seems to be not the whole twater.

If the Memoirs plurality was not the law than one of two things would follow and I think either it is inadmissible, either there was no law at all between the Memoirs and Miller in which case there would be no places for any prosecution of conduct occurring during those eight years or Roth remained the law despite the fact that any conviction obtained under Roth would be reversed because three justices hearing to Memoirs and two justices thought that no obscenity conviction could standup.

Moreover, in Redrup against New York and the cases thereafter up to Miller this Court reviewed allegedly obscene materials on the basis of the different views of the justices and reversed it over 30 cases.

So it is plained that there was law during that period and I think it is plained therefore that it consistent effectively of the plurality opinion in Memoirs.

Moreover, I think that the opinion in Hamling against United States would sustain their conviction where pre-Miller conduct also shows that Roth Memoirs was the law during the period.

Now even though that is court made law, it is effectively read into the statute and I do not think there is anyway that a charge of the change that occurred in Miller can retroactively be applied to these petitioners that would deny them due process of law.

Both the District Court and the Court of Appeals tried to distinguish Bouie against City of Columbia and I do not think the principle of these two cases can be distinguished because here Miller relaxed the constitutional rules which had previously been applied and that has the effect which is indistinguishable from reading a statute to cover conduct which it previously did not cover, and for that reason, the government face a petitioner entitled to a new trial with a properly instructed jury.

Justice William H. Rehnquist: Well, Mr. Solicitor General as I understand the State of the law on this particular question when it comes here from the Sixth Circuit the government had this case and another Court of Appeals decision with it, several other Courts of Appeals decisions against it.

Don’t you think the Solicitor General has some responsibility under the adversary system when there is a plausible argument to be made in support of affirming a judgment that has gone in favor of the government to make that argument rather than simply adopt what he thinks is the law?

Robert H. Bork: I do indeed Mr. Justice Rehnquist and we have considered this case, this principle for at least three years now and if I thought there were a plausible case to be made for applying Miller standards to pre-Miller conduct I would certainly make that argument.

Justice William H. Rehnquist: What are you saying then when you say you do not think a plausible case can be made is that two Courts of Appeals presumably consisting of Judges appointed by the President and conformed by the Senate have reached to a totally implausible result that the government is unwilling to even argue in favor of in this Court.

Robert H. Bork: Well, that in the fact is correct Mr. Justice Rehnquist those Courts of Appeals quite unfortunately from my point of view because I would like to be able to argue to uphold these convictions and I deplore the waste of resources that has gone in this prosecution must now be re-prosecuted but nothing in those Courts of Appeals Mr. Justice Rehnquist opinions gave me any -- I thought any intellectually defensible way to defend the convictions here.

Justice William H. Rehnquist: Well, but how is this Court suppose to function in that kind of a situation.

We are supposedly the beneficiaries of an adversary process and I am sure we would look with great skepticism.

Mr. Smith had come here when the position that you now are and said he represented his clients and he realized he had a couple of Courts of Appeals cases going for him but he just cuold not in good conscience say that their judgment should be reversed.

Robert H. Bork: Well, I think the answer can only be that the government feels it has an obligation not only to the adversary process but also to the law and to justice.

In the case where it thinks an injustice has been done and that there is no intellectually defensible way of supporting the conviction I think the government must say so.

Justice William H. Rehnquist: But isn’t that ultimately the reasonability of this Court to decide whether or not an injustice has been done or whether or not a particular conviction should be upheld or reversed?

Robert H. Bork: It is indeed, Mr. Justice Rehnquist.

Justice William H. Rehnquist: Are we best served by an adversary presentation in making that determination?

Robert H. Bork: Well, I trust we also have an obligation to the Court to tell it when we think there is no adversary case that can be made that has been done many times by the Solicitor General’s office and there have been occasions when the confession of error has been rejected by this Court.

Chief Justice Warren E. Burger: I think at your position Mr. Solicitor General it is not intended to tinge upon our ultimate authority to decide the cases, the way you decided.

Robert H. Bork: It is certainly not so intended Mr. Chief Justice and I am certain it will not have an effect.

Justice John Paul Stevens: Mr. Solicitor General is the policy of confessing error when you find there is no intellectually defensible way of defending the result below, is this is a new policy that the Solicitor General’s office has just adopted or is this something that’s going on for many, many years.

Robert H. Bork: Mr. Justice Stevens, it is going on since memory of man runneth not to the contrary.

Justice John Paul Stevens: Do you know whether you apply a different standard in making these determinations that has been applied in the past?

Robert H. Bork: I believe I apply the standard that most of the Solicitor General had applied but some deviated.

My standard is that if the government has a respectable position I will defend it regardless of my personal views of the matter.

My personal views in this case are that I would dearly love to defend this conviction.

Justice John Paul Stevens: Do you consider this practice of your office different from the practice of some defense counsel from time-to-time of filing Andrew’s briefs?

Is it not true that defense counsel sometimes feel in a good conscience they have no appealable point and therefore in effect it’s so acknowledged to the Court?

Robert H. Bork: I think the private board does that Mr. Justice Stevens.

Justice John Paul Stevens: Professionally is there any difference between the two in your judgment?

Robert H. Bork: No, I think there is less, if I may say, there is no difference in the professional obligation, I think the government obviously has slightly less pressure than some members that private board may feel, but I think there is no difference ultimately in the obligation to the Court.

Justice Byron R. White: Do you know of any other cases where the government is coming to this Court in this posture where there are splits among the Courts of Appeals?

Robert H. Bork: I do not recall of him Mr. Justice White.

Justice Byron R. White: Do you ever heard of the private counsel doing it in these circumstances?

Robert H. Bork: I have not heard.

Justice Byron R. White: I would doubt if you will either.

Justice Harry A. Blackmun: I trust Mr. Solicitor General that you are aware of the reaction of Federal Courts of Appeals judges when United States Attorney has prosecuted the case that has been affirmed only to have then the rug pulled off under them up here.

Robert H. Bork: Mr. Justice Blackmun, I am aware of the reaction of the courts, I am also aware of the reactions from United States attorneys, I have been made aware of that.

Nevertheless, it seems to me I have an obligation to do this and unpleasant maybe for me and for the Court and the US Attorney, I do do it.

Three years ago, I decided that this was the rule of law and communicated that fact.

Unfortunately that decision was not communicated apparently to United States Attorneys.

Justice William H. Rehnquist: Do you think it might have been a good idea that we appointed counsel to argue in your state?

Robert H. Bork: It might have been Mr. Justice Rehnquist we confessed error in the brief, so that I think it comes as no surprise at all that we would take disposition here this morning.

Justice Potter Stewart: And you are not taking it I gather from reading in the newspapers in some more cases around the country.

Robert H. Bork: Oh yes, there are some prosecutions for example in Memphis which will be affected by this.

I think our position on that is adequately explained by what I have said and adequately explained in our brief.

I reiterate that were there an argument to be made the other way, in my opinion I would gladly make it.

I think the remaining two points are rather simpler.

We think the Court of Appeals was required as a statutory matter.

I don’t think the constitutional question need to be reached but it was required as a statutory matter to look at these materials.

Now there are undoubtedly cases in which that is not true but here that was really almost no descriptive matter in the record about the nature of these films except that contained in the affidavit made by an FBI agent in obtaining a search warrant an ex parte statement not subject to cross-examination, not required to put the matters in context so that if there was to be any effective appellate review in this case, I think in this case the Court of Appeals required to look at the materials.

There maybe cases in which there is stipulation, there maybe cases in which the testimony is sufficient without viewing the materials, but in this case neither of those is true.

28 U. S. C. 1291 provides appeals and that takes up all issues that are properly preserved and I don’t see how that could be decided on the basis of the record here except by viewing the films.

Now I do not -- we have said in our brief that normally that is sufficient and there is no need for this Court to review such materials unless they specifically take the case up in order to do so.

Petitioners -- and I am relieved I may say, they come to a point where I disagree with the petitioners.

I have argued that the Federal Court’s instruction to the jury to assess the films in accordance to contemporary standards of the community standards generally help throughout the Eastern District of Kentucky was erroneous because the jury should have been instructed to apply standards of the Cincinnati Metropolitan Area from which where some of them live and some of them worked.

I should say that their argument does not support that conclusion because the Cincinnati Metropolitan Area certainly is no more relevant in any sense than is the Eastern District of Kentucky.

The jurors here did not live throughout the Cincinnati Metropolitan Area anymore than they live throughout the Eastern District of Kentucky.

Moreover, they withdrawn from a pool which had a widespread geographic distribution of available jurors.

If the panel did not have widespread distribution, petitioners would have liked, certainly no objection was made to that at the time.

But I think in any event, I don’t think our objection would have been availing nor do I think it should have been.

The issue is simply not one of constitutional dimensions.

The Hamling decision indicates that normally the relevant community will be the judicial district in which the trial took place.

Jenkins against Georgia referred to an instruction which it did not disapprove of which mainly referred to community standards without defining the community.

Justice Potter Stewart: You said that was approved or disapproved?

Robert H. Bork: Without disapproval I said.

Justice Potter Stewart: Without disapproval.

Robert H. Bork: Many referred to Mr. Justice Stewart without disapproval.

I think these cases could easily be made absolutely impossible if every obscenity conviction involved, prosecution involved a search for the single relevant community.

There are endless numbers possibly relevant communities, suburb cities, countryside, one could define in a way and one can turn these into a search for the definition of the relevant community which would make market definition and an antitrust case looks simple.

Justice Potter Stewart: Of course in this particular case, anybody familiar with the Cincinnati community knows that Newport, Kentucky is part of greater Cincinnati and that is the community.

Robert H. Bork: That is true.

Justice Potter Stewart: Accepting your proposition that in many cases it would be difficult and lead off to a wild goose chase.

This particular case it really is not for anybody familiar with the greater Cincinnati community.

Robert H. Bork: Well, Mr. Justice Stewart I do not know why jurors who do not live throughout the greater Cincinnati community.

Justice Potter Stewart: Well, anybody who lives in Newport does.

Robert H. Bork: Throughout the Cincinnati.

Justice Potter Stewart: Anybody who lives in Newport, Kentucky lives in the…

Robert H. Bork: It is in the metropolitan area, I understand that but I was -- equally lives in Houston District and I would suppose there maybe variations in community standards throughout the metropolitan area in Cincinnati just as there maybe throughout the Eastern District of Kentucky.

Chief Justice Warren E. Burger: But I think that that would be no more true in that settings and it would be to say that Arlington is part of the Metropolitan Washington area.

Robert H. Bork: I take it that would be true Mr. Chief Justice.

Justice Harry A. Blackmun: Arlington or Alexandria is very comparable although Newport, Kentucky is not quite like Arlington or Alexandria or vice versa.

Robert H. Bork: I think the point of the relevant community or the community which standard in the constitutional sense is that the main function of requiring a reference to community standards is to give the jurors some standard extrinsic to themselves to which they may refer to attempt and so far as the law can by instructions in any jury case to make sure that the peculiar or perhaps idiosyncratic sensibilities of individual jurors does not control the case, but that the juror is referred to a wider community and in that sense I think that function which is the main function I think of that standard was served here by this instruction, as well as it could have been by choosing another possibly relevant community.

Justice John Paul Stevens: Well, Mr. Solicitor General, I am a little puzzled.

Is that purpose of the community standard to draw on the frame of reference to the juror normally looks to such as the district from which the venire is drawn or is it to look at the economic market in which the challenged film is exhibited, which would be the more relevant?

Robert H. Bork: The economic market Mr. Justice Stevens I am not -- I think the primary function is to refer the juror to something outside his own sensibilities.

Secondarily, it is to provide him with the community with which he is more or less familiar and to have that community surrounding the area in which the films are shown, and like all of those functions were served here by this instruction.

Justice Potter Stewart: Well, the problem is that, I think that many people are familiar with it would say that the Eastern District of Kentucky simply is not a community, community evolves the word ‘common’ people who have something in common.

Robert H. Bork: Well, of course so.

Justice Potter Stewart: The Cincinnati community as a community the Eastern District of Kentucky very arguably is not one, it is the residence whether its borders just do not, by a sense they do not share something in common it is not a community.

Robert H. Bork: Mr. Justice…

Justice Potter Stewart: It’s a geographic accident.

Robert H. Bork: Well, I suppose in some sense Mr. Justice Stewart so is the State of California.

A geographic accident certainly it contains within itself widely disparate kinds of communities and an instruction applying California-wide community standards has been upheld by this Court.

In Jenkins against Georgia a reference simply to community standards without defining which community would buy.

Hamling of course suggests that normally it will be the Judicial District from which the venire comes which will provide the community standards.

I have no desire to say that there is in a case any single community which controls and I think indeed would impossible if that were the rule.

Justice John Paul Stevens: Mr. Solicitor General let me put the same question just a little differently; I know the record does not show this but your reference to the Antitrust Relevant-Market raised a question in my mind.

Supposing the evidence here included a market study which show that everybody who attended this theater was a resident of Cincinnati; would you then say that the Kentucky District would be an appropriate prime reference to judge the films?

Robert H. Bork: Would it be inappropriate?

Justice John Paul Stevens: Would the instruction have been alright under that?

Robert H. Bork: I think it would have been Mr. Justice Stevens.

I think it also would have been possible to use the Cincinnati Metropolitan Area as a community.

Justice John Paul Stevens: I understand you are saying that would be but this si all -- but even if no one came from the community which is used as a prime reference, you would say that will still comport with...

Robert H. Bork: Well, I do not know; no one come…

Justice John Paul Stevens: No one who is out of films that are challenged.

Robert H. Bork: Oh, you mean to say that although the films were shown in the Eastern District of Kentucky.

Justice John Paul Stevens: If anybody who had attended the theater happened to become across the river from Cincinnati on the night that they received just to take an extreme example.

Robert H. Bork: Or take a more extreme example I suppose ever that people always do, that is a big question that seems to me to drive us to the element question of what the obscenity laws are designed to do?

I think one answer would suggest that Eastern District of Kentucky was not the proper area that is obscenity laws in some part are intended to control the effect of the obscenity upon the people who view it.

But there is a second function of the obscenity laws, which is I think the sense of outrage and moral disapproval in a sense that something is going on in their community of which they deeply disapprove even if none of them actually go to the theater, and in that function of the obscenity laws which I think is a legitimate one, would suggest that you might use the Eastern District of Kentucky even if nobody from that district came there.

Chief Justice Warren E. Burger: Isn’t the hypothesis, one that could not be supported unless you had someone standing outside the door of the theaters with all times taking senses of the location address of the persons entering the theater, is it anything that can be determined by a market survey the way we determine that or try determine it in antitrust case.

Robert H. Bork: No, I think Mr. Chief Justice it is quite right it could not as a practical matter be done.

Moreover, I would doubt very much that nobody from further out in the Eastern District ever goes to these films, but I took it to be a question designed to probe the philosophical underpinning of my argument, and I have just responded with such philosophical underpinning as I can muster.

I have no further statement to make in the case.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General, Mr. Smith, do you have anything further?

Argument of Robert Eugene Smith

Mr. Robert Eugene Smith: Yes, briefly the Chief Justice may it please the Court.

This Court in Miller v. California the opinion authored by the Chief Justice talked on Page 32 in part, it is neither realistic nor constitutionally sound to read the First Amendment is requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City and then the Court went on to say people in different states vary in their tastes and attitudes and this diversity is not to be strangled by the absolutism of imposed uniformity.

We suggest that by carving out an artificial district and saying the Eastern District of Kentucky that is in effect what courts are doing and we suggest ignoring what I think the words of this Court were in Miller, I think that the concept of Jenkins was a sound one that is to say talking in general terms to the community that where their social intercourse occurs, where the people feel a sense of belonging to the community, but to say the Eastern District of Kentucky as broad as it is geographically, and it is broad as it is an attitude, we suggest there is an improper uniform standard that is just too absolute and should be rejected in this instance.

Chief Justice Warren E. Burger: That statement you read -- I will put this as a question didn’t deunt that statement that you read reflect essentially Chief Justice Warren’s expression and I think the Roth and Memoirs’ case that there can’t realistically be any such thing as a national standard.

Mr. Robert Eugene Smith: I think that it does but it is your word, it is the Chief Justice hear words suggesting that you are making a contrast between states and between cities; it is not all as broad as all states.

Record do not say the people of Maine or Mississippi versus Las Vegas and New York State, it talked about states versus cities and we think that…

Chief Justice Warren E. Burger: That was not an effort to define a standard but to reflect the broad general proposition.

Mr. Robert Eugene Smith: But the Court did go on to say that because of the variation the people should not be strangled by the imposition of an absolute standard in terms of -- I read it to mean an absolute geographical standard, and I say that that is what I find intolerable here.

Of course, Mr. Justice Rehnquist in his argument or his opinion of this Court in the Hamling case did allow the Court suggest the trial judge would have some discretion in allowing evidence of community standards in communities other than that from where the jury is sitting.

Mr. Justice Stevens asked about the concept of the community standard in terms of a market research program where you find out that everybody came from another community.

Well, there are cases that are working that way up in the federal system where the films, let us say, is delivered from California to Memphis, Tennessee and it has never been shown to Memphis, Tennessee, it was not designed to be shown in Memphis, Tennessee, absolutely no evidence that it had anything more than it touch that area from the standpoint distribution, now what community do we put there and the concept that we put the community from which it came, the community where it was intended to be shown and if you are going to put geographical limits, you are going to have these problems that present themselves.

So, I think it is not just philosophical in answering Mr. Justice Stevens’ question, there are cases where there is no showing that the film has ever been depict, didn’t exhibit in that community, none whatsoever.

That is the community standard that has been employed.

And so with that I averse.

Thank you!

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.