WARD v. ILLINOIS

Print this transcript Transcript: 

Argument of J. Steven Beckett

Chief Justice Warren E. Burger: We will hear arguments first this morning in 76-415, Ward against Illinois.

Mr. Beckett, you may proceed whenever you are ready.

Mr. J. Steven Beckett: Mr. Chief Justice it may please the Court.

This case is an appeal from a decision of the Illinois Supreme Court affirming the defendant?s conviction after a bench trial under the Illinois Obscenity Statute.

The defendant was tried in March 1972 and he was charged under a complaint by a Police officer with offering to sell and selling two allegedly obscene magazines, Bizarre World and Illustrated Case Histories.

His conviction was affirmed by the Illinois Appellate Court for the third district and the case was then appealed by petition for leave to appeal to the Illinois Supreme Court.

That Court considered the case after it had considered a case called People versus Ridens or Ridens II which was the case on the remand from this Court in 1973 which was decided at the same time with Miller versus California.

In Ridens II the Illinois Supreme Court on the remand held that the Illinois Obscenity Statute was still constitutional even in light of this Court?s decision in Miller versus California.

The defendant attacked the validity of the Illinois Obscenity Statute under principal analysis of Miller v California and that attack was rejected by the Illinois Supreme Court in an opinion below.

The Court also held that the publications at issue in this case were not protected under the first amendment of the constitution of the United States.

While this case was pending in the Illinois Supreme Court, a three-judge Federal Court was convened in Chicago to consider the identical argument concerning the constitutionality of the Illinois Obscenity Statute.

On May 14 the Illinois Supreme Court announced its decision in People versus Ward below.

On May 28 after having the opportunity to review the opinion of People versus Ward that three-judge Federal Court held the Illinois Obscenity Statue unconstitutional and entered a permanent injunction against its enforcement in a case entitled the Eagle Books, Inc. versus Reinhard.

Chief Justice Warren E. Burger: Has the Illinois legislature made any changes in the Illinois law since the Miller decision?

Mr. J. Steven Beckett: The Illinois legislature enacted law that was vetoed.

That would have changed the definition of obscenity under Miller, but that law was vetoed so the practical affect is there has been no change in Illinois.

Chief Justice Warren E. Burger: In fact there is no change.

Mr. J. Steven Beckett: There in fact has been no change.

Unknown Speaker: I suppose not every state needs to change its statute because of Miller, is that true?

Mr. J. Steven Beckett: This court in Miller and also in footnote 6 in Miller and also in United States versus 12 200-Ft. Reels of Film, indicated that existing obscenity laws as construed hereto or hereafter may well be valid and in Hamling, the Court said that statement meant that we were not saying that all obscenity laws were unconstitutional, but in announcing Miller this Court said that State Courts on the remand must authoritatively construe those statutes.

As demonstrated in our briefs many states have done so and as such as have held their statutes constitutional.

Chief Justice Warren E. Burger: Has Illinois now construed its existing statute?

Mr. J. Steven Beckett: The Illinois Supreme Court has construed is statute, but in such a way as to not need the Courts remand order in Miller.

In Ridens, the Court said that in response to the specificity attack that the statute as written because it finds prurient interest as a shameful or morbid interest in nudity, sex or excretion provides the specificity that this Court has required under Miller, under part (b).

That question was addressed by the Three-Judge Court and they rejected the State of Illinois? contention that the Illinois Supreme Court in fact and grafted on to its statute, the examples of sexual conduct under part (b) that this Court set forth in the Miller opinion.

Additionally that Court noted that the Illinois Supreme Court did not rely on prior judicial opinions as so many other states have done.

In other words, this Court did not say in Miller what an authoritative construction was, but appellant submits to the Court that an authoritative construction is fixing words in the statute just as if the legislature had amended it, but in this situation, based on prior decisions, which had given a limiting affect to the statute and in Illinois that is not the case.

Unknown Speaker: How do you think your case is different from People against NSCAP (ph) where the California Courts treated their obscenity statute.

Mr. J. Steven Beckett: In NSCAP the California Appellate Court indicated that our past decisions and they specifically listed past decisions and said that our past decisions under Section 311 of the California Penal Code had limited.

The application of our statute to hardcore sexual conduct and that nudity is not proscribed and some other rather definite statements.

The Illinois Supreme Court has never done this.

Unknown Speaker: But your opposing counsel at least contents that in earlier decisions of the Supreme Court of Illinois similar limitations were placed on the Illinois statute, you disagree with that?

Mr. J. Steven Beckett: I definitely disagree with that.

Moreover the Illinois Supreme Court did not accept that argument.

I think the specific decision that I think he is referring to is City of Chicago versus Geraci and that Court?s decision there has to be analogized to this Court?s decision in United States versus Hamling.

This Court said our past decisions in considering constitutional attacks on Federal obscenity statute and in interpreting those statutes have given them a limited affect.

A limiting affect that we have been really codified in Miller with those examples and so we have no difficulty in grafting examples (a) and (b) on to those Federal Obscenity Statutes and we said we are going to do so in United States versus 12 200 Ft. Reels of Film.

However, the Illinois case, the City of Chicago versus Geraci was not interpreting the Illinois obscenity statute.

As a matter of fact, it was interpreting an ordinance of the City of Chicago and second the discussion that mentioned the specific sexual conduct in that opinion was not talking about interpretation of the term obscenity or any derivative thereof, it was talking about the constitutional status of the publications.

Unknown Speaker: Would it be your contention that either the opinion in the question or the text of the statute itself must appeal to the prurient interest?

Mr. J. Steven Beckett: No.

The Geraci case in fact demonstrates the problems that people such as the appellant Ward and those in Illinois have in this situation.

The status of the law in 1971 with respect to obscenity as the Court is well aware is what Justice Brennan has called hopeless confusion.

In this specific Geraci case, the Illinois Supreme Court took categories of publications and said for example that the United State Supreme Court and Central Magazine Sales has looked at publications similar to these and they depict bondage etcetera and that Court said that no matter what test you apply to obscenity those publications are entitled to constitutional protection, and therefore, the categories of magazines that we have here are protected under the First Amendment, and the Court went on to consider a magazine, the depictions of which are mentioned in the State of Illinois brief and said well we cannot find any cases that are exactly on this, but United States Supreme Court has looked at Sado-masochistic materials in Mishkin and affirmed convictions under that, but under Avansino versus New York and Shepherd versus New York and Friedman versus New York, the Untied States Supreme Court has reversed convictions under Redrupp (ph) type decisions.

And then they go on to say well however you can interpret those cases, we are going to say that these magazines appeal to prurient interest etcetera and that they are obscene, that they are not constitutionally protected, rejecting the defendants contention.

Unknown Speaker: Do would you contend that the material sold by your client here that the statute gave no fair warning that, that was included or do you contend that the statute was required to have specific enumerations or else decisions to have it, instead whether your client?s material was warned about as a material or do you contend both?

Mr. J. Steven Beckett: I think I content both.

Unknown Speaker: What was the date of the Geraci decision of, if I have the name right?

Mr. J. Steven Beckett: It was in 1970.

Unknown Speaker: Pre-Miller?

Mr. J. Steven Beckett: Pre-Miller, it was prior to date of the dissemination of the materials that alleged there is an alleged view crime in this case.

The question under Miller is as Mr. Justice Rehnquist has said a question of notice, a question of notice to the defendant, appellant Ward, and to those similarly situated in Illinois.

As we have set forth in our brief, decisions of State Courts, after this Court?s decision in Miller demonstrate that those Courts have taken a look at their statute as written, have taken a look at their previous judicial interpretations and constructions of those statutes and determined one of three things.

They have determined that their past decisions have limited the scope of that statute and that there was fair warning to the defendant, the statute is constitutional, his conviction is affirmed.

They have determined that their prior decisions did not provide a limiting effect on the statute, that it would be unfair to this defendant to apply what they are now going to construe into the statute under Miller, and therefore, they would construe the statute to confirm with Miller, but they would give it prospective effect only.

Finally some states have looked to their past decisions, found no limiting construction and held that to change the statute now would be a form of legislation, our statute is unconstitutional.

Illinois, I submit has done none of the above.

The state of Illinois contends that the Illinois Supreme Court incorporated this Court?s Miller examples parts A and B in its decision in Ridens II, People versus Gould.

The state then contends that the opinion below is of no movement because the Court had already included the A and B examples.

The opinion below, however, demonstrates fully and finally that the Illinois Supreme Court has not done so.

In the opinion, which is the portion, which I am referring to, which appears at page 30 of my brief, the Court reviewed the history of the Ridens? case.

The Court noted that the defendant was claiming that the statute did not provide specificity and that the specificity had not been supplied and the Court stated that in Ridens, we noted that the statutory definition of obscenity includes within the scope for prurient interest, a shameful or morbid interest in nudity, sex or excretion.

In answer to the defendant?s contention that was not enough that Miller required specificity.

The Court?s concluded by saying we again express our opinion that the Illinois statutory definition is sufficiently clear to withstand constitutional objection.

The statutory definition I submit has no specificity.

As a matter of fact the construction placed upon the statute in response to the remand order in Miller allows nudity to be proscribed in Illinois.

The characterization is nudity, sex or excretion.

This Court?s holding in Jenkins of course says nudity is not enough under those Miller standards.

I submit to you that the Three-Judge Court's interpretation of Illinois law is persuasive on this Court under Gooding versus Wilson and that Court has completely accepted our contention as to what the Illinois Supreme Court has done.

Justice William H. Rehnquist: Well now you want to suggest that the Three-Judge District Court?s interpretation of Illinois law should be taken in preference to the interpretation of the Supreme Court of Illinois, would you?

Mr. J. Steven Beckett: I think if Mr. Justice Rehnquist would look at the opinions of the Illinois Supreme Court, you would see that they have missed the thrust of your opinion in Miller.

They have said that an obscenity statute is a general term statute not unlike an anti-noise ordinance that was considered by this Court in Grayned versus City of Rockford, or like disorderly conduct ordinance.

Their decision is not based upon obscenity cases, it is based on general term statute.

Justice William H. Rehnquist: That would be a federal constitutional objection to the Illinois conviction, but I thought you said that we should prefer the Three-Judge District Court?s interpretation of Illinois law to that of the Supreme Court of Illinois.

Mr. J. Steven Beckett: I think you have to look at both of them and I think the Three-Judge Court gave of course in my client?s view a more objective review of what the Illinois Supreme Court have done.

Three times now the Illinois Supreme Court has been asked to correct their misconceptions about Miller and they have always said while we think we know what we are doing and we are doing it this way and it is what that Court has done that I believe I am asking the Court to accept today.

Justice William H. Rehnquist: I thought the Three-Judge Federal Court had accepted the construction of the Illinois statute put upon it by the Illinois Supreme Court and held that is unconstitutional.

Mr. J. Steven Beckett: And said that statue is? that is correct and that is what I am saying.

In other words, I think what the Attorney General in this case is asking you to do is what the Illinois Supreme Court did not do.

Unknown Speaker: Well, do you think the Illinois Supreme Court believes that it is acting consistently with Miller, it seems to?

Mr. J. Steven Beckett: Yes, I think they do believe.

Unknown Speaker: And if you read Miller, you require that a state will follow or include in its laws the specifics of pattern, that offensiveness, the ? if that is the way you read Miller it is so plain, I would think it would be plain to the Illinois Supreme Court and if its intention is to follow Miller, why do you not except that.

Mr. J. Steven Beckett: Because they have not followed Miller.

Unknown Speaker: Why have they not?

Mr. J. Steven Beckett: I wish I knew.

Unknown Speaker: Well, how do you know they have not?

Mr. J. Steven Beckett: Because the opinion below and the other opinion show that they feel specificity is on the statute as written.

Nudity, sex or excretion and I do not believe that is what Miller said.

Unknown Speaker: I know that, they agreed that they are purporting at least to adhere to pattern offensiveness standard in Miller.

Mr. J. Steven Beckett: That is correct.

Unknown Speaker: And all Miller did was say, it went on to give some examples of pattern offensiveness.

Mr. J. Steven Beckett: That is correct.

Unknown Speaker: So if the Supreme Court have said that, if Illinois had said we agree what the patent offensiveness in the standard as explained by the Supreme Court of United States, would you except that?

Mr. J. Steven Beckett: I think it has to be a little more specific.

If you look at the decisions of the other states they were not that casual about their approach.

Unknown Speaker: Well, they may not have been, but they are different styles, I guess.

Unknown Speaker: We said in Hamling that Miller was not intended as a drafting manual; that you did not have to simply repeat word for word the type of thing that was set out at Miller.

Mr. J. Steven Beckett: That is correct, but where the attempt to construe a statute in accordance with Miller is including nudity then not only have they misconceived the thrust of Miller, but they have also gone beyond this Court?s holing in Jenkins.

Unknown Speaker: Did not the Miller opinion state correctly that the Court was neither confident to nor it is judicially confident in terms of power or undertaking to draft a statute or tell the states how to draft a statute, but to merely furnish some broad guidelines that would indicate the boundaries within, which states must act.

Mr. J. Steven Beckett: That is correct.

First amendment standard the Court said and it is Appellant?s position that the Illinois Supreme Court has not met those standards.

The Illinois Supreme Court had a further opportunity to look at this problem, this conflict after the Three-Judge Court rendered its decision in a petition for rehearing and denied that petition for rehearing in this case.

Unknown Speaker: And your position in this regard really does not depend on whether the materials at issue here are protected under the Miller standard or not?

Mr. J. Steven Beckett: That is correct.

It is not unlike Lewis versus New Orleans where a remand order of this Court to?

Unknown Speaker: This over statue and this would be an over breadth.

Mr. J. Steven Beckett: Remand order of the Court; that is correct.

Remand order of the Court was not followed by the Louisiana Supreme Court and the case came back up here and you said that the matter is not what the conduct was that was involved here, but I do think that the materials here are illustrative of the problem in Illinois of no guidelines.

Those materials are not unlike materials that this Court in Redrupp type cases held protected under whatever test of obscenity you apply is very high to get any dimes of course from those Redrupp cases, but in Marks recently you said that when a fragmented Court decides a case we should look to the narrowest ground.

I submit in those cases the narrowest ground was that those materials, those specific materials were constitutionally protected.

Unknown Speaker: But Miller succeeded whatever doctrine may have evolved in the Redrupp.

Mr. J. Steven Beckett: I do not think there was a doctrine in Redrupp case.

Unknown Speaker: Your client is not complaining of a pre-Miller conviction?

Mr. J. Steven Beckett: Well, he is complaining of a pre-Miller conviction by saying now the Illinois Obscenity Statute has never given notice and this Court recognized that problem in Miller and said that a statute much be written or construed authoritatively to satisfy those notice problems.

Unknown Speaker: When was your client tried?

Mr. J. Steven Beckett: March, 1972.

The prior decisions of Illinois Supreme Court are as I said unlike Hamling.

The Court's consideration of Roth, Ginsberg, MANual Enterprises versus Day, because those decisions are concerned in ad hoc determination of the materials at issue in those cases, and do not involve interpretation or construction of Illinois Obscenity Statute.

Indeed at least one half of the cases cited by the state in their brief are cases decided by Illinois Appellate Courts after the defendant Ward was arrested and it is hard to see how they would supply the type of notice that the state contends that they do about his dissemination of material after he was arrested.

Unknown Speaker: Do you see any difference between notice and over breadth?

Mr. J. Steven Beckett: Yes.

Unknown Speaker: Is not over breadth curable by a post transaction court decision whereas the prior notice requirement is not?

Mr. J. Steven Beckett: That is correct.

In Ridens, I think the Illinois Supreme Court in the opinion indicated that it knew under Miller, it was supposed to look to its prior decisions and that it did so and concluded from those prior decisions that there was no limiting affect of those decisions on the statute because in the case they used the phrase authority, we must authoritatively construe, and then they said the first question we want to answer is what community standard we are going to use under our obscenity guidelines and they said in People versus Pautler which was decided before Miller and before Ridens, we set a state wide standard and so we are going to adhere of that again today, but at the same time they did not say that our prior decisions have limited the effect of our statute under the Miller and indeed Justice Davis, who had written the First Ridens decision in dissent, pointed out that those prior decisions do not have that affect.

The whole purpose I think of properly drawn obscenity statute written or traditionally construed is that people such as my client can take the statute and compare it with the materials that they have and they can say page 43, page 27, page 85, page 64, etc., well, there is a type of portrayal there that may render this patently offensive and I am going to have to make by determination as to whether or not I can disseminate this material with or without the risk of prosecution.

In the sense then the Illinois Supreme Court has conflicted with decisions of this Court because they say nudity is enough and if that is true of course anything that is available on the market today of the playboy type magazine would be held obscene or could be held obscene in Illinois.

Unknown Speaker: You say the Illinois Supreme Court has expressly said nudity is enough?

Mr. J. Steven Beckett: The Illinois Supreme Court and the opinion below and also in the Ridens opinion said that we complained that statute was not specific enough; however, we note that prurient interest is defined as nudity, sex or excretion.

That is that quote that I told you on page 13 of our brief.

Unknown Speaker: It involved a morbid or shameful?

Mr. J. Steven Beckett: A shameful or morbid interest in nudity, sex or excretion.

Unknown Speaker: That is not quite saying nudity is enough, is it?

Mr. J. Steven Beckett: It is adding shameful or morbid onto nudity?

Unknown Speaker: Well, I do not say nudity is enough there.

Mr. J. Steven Beckett: Shameful or morbid nudity is enough.

Unknown Speaker: Shameful or morbid interest and nudity.

Mr. J. Steven Beckett: And the point is by saying that have you said has the statute defined sexual conduct, has the statute defined sexual conduct as you said it must to know it.

Unknown Speaker: Well, that is the question.

Mr. J. Steven Beckett: I would like to reserve my time.

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

Mr. Noel.

Argument of Melbourne A. Noel Jr.

Mr. Melbourne A. Noel Jr.: Mr. Chief Justice, and May it please the Court.

In response to key the question raised in this appeal, the State of Illinois submits that Chapter 38, Section 11-20 (b) its obscenity statute definition has been construed by Illinois Courts both prior to and after this Court's decision in Miller versus California, so as to limit its definition of obscenity to patently offensive portrayals or specific sexual conduct, thus giving proper notice of the offense of selling obscene materials and allowing the application of statute under the constitutional standards annunciated in Miller.

Now, this case of course presents the post-Miller problem of what states have to in order to comply with the constitutional requirements of Miller versus California.

There were many different approaches taken by the states after 1973 in trying to bring themselves into line with the Miller requirements.

There have been the different kinds of approaches have been alluded to both in appellant?s and the appellee?s brief.

Very often legislation was employed.

More often some, sort of, construction of statutes by the State High Courts was involved, and even within those group of states that decided to construe, to re-construe their statutes to satisfy Miller, there was a great diversity of opinion as to how this should be properly accomplished and what this case preserves, it focuses on one technique employed to construe a state statute into line with Miller.

One technique out of an entire spectrum of techniques employed, and ask you to decide whether or not this is a proper construction of Illinois statute in line with Miller or whether the Illinois Supreme Court missed the boat, they used the wrong words, they should start over again and perhaps follow some other technique.

And I think it is true to say that in the spectrum of attempts to comply with this Court?s Miller requirements by construing state statutes, you start at one end with those states that took the approach which apparently is adopted by the appellant here and was adopted by the Court, a Three-Judge Court in the Eagle Books case in the Northern District of Illinois, that is the very literal approach that in order do it right, the state court has to sit down and say here are the Miller examples, here are the Miller requirements, we do now hereby incorporate those requirements and those examples into our state statute as providing the limitations as what can be prosecuted under that statute.

That is the literalist approach and several states took that approach, notably Florida and Alabama and Texas.

Then there is, I think in the middle, the Illinois approach, where the examples are reprinted, the standards are mentioned, and there is a blanket statement that re-construed the Illinois statute as incorporating these standards and examples.

Then on the far other end of the spectrum, you have some State Courts that attempted to accomplish this purpose, merely by making an oblique reference to the Miller standards.

As for the example, the Oklahoma Court did in Field versus Hess when they simply noted the, they bowed in the direction of Miller?s standards and they said well of course whenever our statute is applied, The Miller standards are implied, without getting in any specifics or reprinting them at all.

And so you have this entire spectrum and the center of the spectrum, I think the Illinois approach, is the one that Your Honors are requested to decide at this time.

Unknown Speaker: I understand you to say that Illinois Supreme Court said that what we decided before Miller will not change by Miller?

Mr. Melbourne A. Noel Jr.: Illinois Supreme Court, yes, I think that is their position.

I think that and this is I think there are two?

Unknown Speaker: But they did not spell it out though?

Mr. Melbourne A. Noel Jr.: Well, what they did was your honor, I believe, state that the Illinois statute was constitutional, following this construction and I think they also expressed the opinion that the statute gave required specificity.

Admittedly, as I say they did not take a literalist approach, and I do not think we would be here today if they had taken a literalist approach, but I think that is not necessary for them to have taken that literal approach in order to have complied with Miller.

Unknown Speaker: But the legislature thought so?

Mr. Melbourne A. Noel Jr.: I really do not know if Your Honor that is correct or not.

I cannot speak for?

Unknown Speaker: Well, they did pass an act?

Mr. Melbourne A. Noel Jr.: They did pass an act, yes Your Honor.

I do not know if there was any, if that was comment on what they thought the Illinois Supreme Court have done or not, I have no basis for saying that, but I think this points out, this question, which you have just asked, points out what I think, I think there are two fundamental weakness in the approach of the appellant in this particular case.

First of all I think the appellant ignores the plain intent and even some of the wording of the Illinois Supreme Court when it decided the relevant cases of People versus Ridens, second time around Ridens II and People versus Gould, I think they ignore the statements of the Court in the plain intent of the Court in those cases.

Secondly, and to me much more unexplainable is the complete failure to recognize the long and detailed history of obscenity law construction in Illinois prior to and at the time of the Miller by the Illinois Supreme Court and Illinois Appellate Courts.

It is not true to say that the Illinois Supreme Court had only considered one case prior to 1972 in limiting its statute or that it only considered cases involving city ordinances.

In our brief, part 3, pages 18, 19, 20 and 21, we have collected no fewer than 10 different decisions of Illinois Reviewing Courts dealing with construction and application of the Illinois Obscenity Statute.

The earliest of these cases is People versus Sikora, a 1965 case, which dealt with a number of books that were brought before the Court and in which they held that certain specific kinds of Acts and I do not want to offend any sensibilities by going through them, they are listed on page on 19, including sadism and masochism

Unknown Speaker: 19 of your brief?

Mr. Melbourne A. Noel Jr.: Yes Your Honor, page 19 of our brief, including sadism and masochism were obscene.

These descriptions in these books were obscene under the federal approach at that time and under the Illinois Statute.

This was followed by and that was under the Illinois Obscenity Statute, not a not a state ordinance or a city ordinance, this was followed by the City of the 23.05, which was a review of a city ordinance, which was exactly identical to the state statute and the Illinois Supreme Court noted that in the decision and proceeded to deal with the ordinance as if it were dealing with the statue, they were indistinguishable, the one is simply a copy of the other.

And in that case they added some other specific types of actions that were considered to be obscene under the statute.

Then you get to the case of the City of Chicago versus Geraci, which my opponent mentioned, that is the third case down the line from the Illinois Supreme Court and yet that occurred only in 1970, the start back is 1970.

Now, in that case truly there was only a municipal ordinance that was concerned, but the definition of obscenity in that ordinance was much broader than the Illinois statutory definition and the Court?s concern, it used cases interchangeably between ordinance consideration and Statute consideration and the Illinois Supreme Court?s concern clearly was, does this material fall under constitutional protection or does it not and I will submit Your Honor, that is the proper approach to take and apply any obscenity statute, regardless of whether it is a state statute or an ordinance and regardless of what its wording is and the reasoning of the Geraci case applies directly to the type of situation we have into the application of a state statutory situation.

In fact Justice Schaffer who decided that case, quoted liberally from his Sikora opinion earlier which involved the state statute and then without going through all of them there are host of other cases, decided prior to and during 1972 and 1973, some from, not half of the Appellate Court, fewer than that and there are cases at least three prior to the time of the arrest in this case where the Supreme court said certain things are not prohibited by obscenity statute and one of the things interestingly they said in Geraci was that mere nudity was not prohibited by the state statute.

Unknown Speaker: Did the Three-Judge District Court discussed People against Sikora?

Mr. Melbourne A. Noel Jr.: I do not think they did Your Honor.

I cannot recall specifically.

My recollection is that they did not specifically discussed any of the old Illinois cases prior to Ridens I and Ridens II and I think that is a problem with that opinion and I think that is way they reached the conclusion that they did is that they failed to go back into this prior history of Illinois decisions, which of course the Illinois Supreme Court had I think in mind when they wrote the Ridens II case, but did not layout.

Unknown Speaker: I have two questions if I may.

Is the part of the Sikora decision that you think is applicable here, the reference to sadism and masochism?

Mr. Melbourne A. Noel Jr.: Yes, Your Honor.

Unknown Speaker: You think those terms are perfectly clear and specific as to what they cover?

I got some uncertainly as to just the exact meaning of those terms myself.

Mr. Melbourne A. Noel Jr.: Well Your Honor, first of all?

Unknown Speaker: Is there any more specific example than erratic material appealing to prurient interest or something like that?

Mr. Melbourne A. Noel Jr.: In the later Geraci case Your Honor, that was elaborated a little bit more because in Geraci they were dealing with magazines of a sadomasochistic character and the Court described the magazines, Justice Schaffer described them in a part of that Geraci opinion and indicated his belief that and described the magazines as sadomasochistic magazine, which contains photographs portraying lesbianism, rape, whippings, beatings, bondage, axing and other abnormal sexual conduct and so he spelled it out a little bit more in Geraci and he said that, he indicated by the negative, by saying that this was, he said the appellant say that this is not hardcore pornography, we disagree, so he is indicating that it was hardcore pornography.

Unknown Speaker: My second question is that assume a state statute says or a state legislature says our statute shall prohibit everything in the examples given in Miller, the A and B examples and also sadism and masochism gives four or five other specific concrete examples and then says and in addition anything, which is patently offensive and as the general standards of Miller, it has the general category and then a list of specifics as examples as the Miller opinion itself does, would that satisfying Miller in your judgment?

Mr. Melbourne A. Noel Jr.: I think it would Your Honor.

I would think that would?

Unknown Speaker: In other words, all you need is some example, you do not need any limitations.

Mr. Melbourne A. Noel Jr.: Well, I think Your Honor that this gets, pushes me back to the point of having to admit that I think it is impossible to have a complete scientific catalog of all the types of actions, which are cataloged as obscenity and are prohibitable.

I think the mind of man goes beyond.

Unknown Speaker: Well, accepting, what is the purpose then of the specificity requirement?

Why is it not the simple general language sufficient because as long as you catch all general pickup clause, what more you need?

Mr. Melbourne A. Noel Jr.: I think that that the addition of these specific examples that this Court give Miller and the Illinois Supreme Court has talked about and in the many courts have felt the setup exactly as you say, for example, a New Hampshire Supreme Court in the case that my opponents cited in their brief, I think the purpose is to cover the most common, to very specifically cover the most common types of obscenity to provide the, kind of, notice to a bookseller that the appellant here is concerned about.

He can look at these examples, these statutes, these cases and he can go down and he pick off what he finds in his magazines or books and he can probably decide 99% of the cases on the basis of these examples, because they, while not completely all inclusive, I think they probably do cover the most common, most frequent types of obscenity that is going to be prosecuted and the bookseller is going to come into contact.

There may be borderline situations that these examples cannot cover, as with the drug situation, well, I would not mention that, but as the mind of man advance new types of activities, they are going to be borderline cases that the Courts are going to have to rule upon and I think this Court recognized that in Miller and recognized that in Hamling, specifically said that path by itself, that path is not sufficient to render these statutes unconstitutional.

Unknown Speaker: Then I ask, if there were two publications involved here?

Mr. Melbourne A. Noel Jr.: Yes your honor.

Unknown Speaker: Were they both in one count in information or??

Mr. Melbourne A. Noel Jr.: Yes they were Your Honor.

Unknown Speaker: And your contention is that both of them, each of them satisfies the Miller standards?

Mr. Melbourne A. Noel Jr.: Yes Your Honor.

Unknown Speaker: Let us assume we disagree with you on one of them?

Mr. Melbourne A. Noel Jr.: I think you could still uphold the conviction Your Honor.

Unknown Speaker: And why is that?

Mr. Melbourne A. Noel Jr.: Because I think, because they were lumped together it is one offence and I think that, especially in light of the very small sentence that was put down, one day in jail and a $200 fine and I think in light of, if he was peddling one magazine that was obscene out of the two, he was guilty of ?A? violation of Illinois Obscenity Statute, which is all the current charges.

I mean, it is not divided in two counts.

Unknown Speaker: Does the Illinois law, suppose the Supreme Court of Illinois had decided that one of these publications was not obscene, would the Illinois law have called for affirmance nevertheless.

Mr. Melbourne A. Noel Jr.: I cannot mention a specific case Your Honor to answer that question.

My belief is that it would be something, the reply something like the harmless error doctrine to say that the conviction was founded on 'A' violation of obscenity, and therefore, it will stand.

As long as the sentence does not reflect a feeling that there is a lot of offensiveness here and that society had to punish in some outrageous fashion.

I think the sentence reflex a minimal.

Unknown Speaker: Under which one of the specifics given in Miller do these publications fall under?

Mr. Melbourne A. Noel Jr.: That is a very good question Your Honor because of course the Miller examples do not mention Sadomasochism specifically?

I think that if we look at the example?

Unknown Speaker: So, if the court believes that those -- that the specific examples in Miller limited the category of patent offensiveness to those kinds of things, then you are in trouble?

Mr. Melbourne A. Noel Jr.: No, I do not think so Your Honor because?.

Unknown Speaker: Well, I mean to which?

Mr. Melbourne A. Noel Jr.: I think under these examples, the examples themselves are not meant to be a catalog of everything.

I think that there are different kinds of activities that come under these somewhat general terms in the examples and I would say that this kind of material that you will see in these two magazines, Bizarre World and the Study of Sadomasochism can come under either of two examples here in Miller, patently offensive representations of ultimate sexual acts perverted, actual or simulated.

I think that if it is fair to say that Sadomasochistic actions of the type described here, certainly by definition Sadomasochism is designed to arouse sexual interest and sexual pleasure.

It is a kind of sex related act which is perverted version of an ultimate sex act and I think it will come under that.

Secondly, in every one of these types of pictures, and there are many, many times throughout these magazines that this occurs, you have lewd exhibitions of the genitals.

It is almost impossible in the type of magazines that these are for you to have the pictorial content without having lewd exhibition of the genitals and so I think it comes under that example also.

The two possibilities and I think there is plenty of authority for the proposition that it is pretty well excepted that Sadomasochism comes under these examples because for example my opponent?s brief when he talks about the New Hampshire Supreme Court decision, that Court said, ?We are going to take the Miller examples and they are going to become the limits of New Hampshire law, but we are going to spell out what they include and following paragraph, New Hampshire Supreme Court said those examples include sadomasochistic abuse.

Similarly, the statutes that have been passed by very conscious legislatures attempting to catalog preciously?

Unknown Speaker: Is that the Harding case?

Mr. Melbourne A. Noel Jr.: Yes, Your Honor, the Harding case and secondly the legislative examples that have followed Miller where they try to be as specific as they can, the ones that we have brought to our attention here, for example the Louisiana Statute that is also quoted in my opponent?s brief.

The Oregon statute which this Court hold with approval and then in the Miller case, they all mention sadomasochistic abuse as being a type of obscenity and so they all these legislatures think that that falls within the examples that Your Honors gave in the Miller case.

Unknown Speaker: Mr. Melbourne A. Noel, Jr., could I follow up on the questions I asked before.

As I understand your argument, you say that the examples given by the Illinois Supreme Court in prior cases as well as adoption of the Miller examples, include about 99% of those within the general category, there is only may be about 1% in the catch of all?

Mr. Melbourne A. Noel Jr.: I would not want to be held in 1% of Your Honor, but I think?.

Unknown Speaker: But let us assume for purpose of discussion, the 1% has not specifically defined that would be then the general description and as I understand that Illinois Supreme Court has never said there may not be a prosecution for the 1%, there may be prosecutions for these 99% examples?

Mr. Melbourne A. Noel Jr.: It has, Illinois Supreme Court may answer you this way Your Honor, if I can, the Illinois Supreme Court has stated which types of conduct are not obscene.

In cases that, and so have the appellate court, in cases which came up and said this is a borderline situation, is that obscene or?

Unknown Speaker: Well, what they have done is given us 99% in specific examples and they have given us some, there are not the 100%.

Mr. Melbourne A. Noel Jr.: That is right.

Unknown Speaker: But there is still a 1% that is potentially subject to prosecution under the general definition because the Illinois has never said, we have listed these and this is all that can be subject to prosecution.

Mr. Melbourne A. Noel Jr.: I would say Your Honor, no one has ever said that, no one.

Unknown Speaker: Well, if a legislature for example gave a list and said this is all there is, that would be --

Mr. Melbourne A. Noel Jr.: I do not think that was a surprise really Your Honor.

I would be willing to bet that if we took the most specific statute in land and went down it with an obscenity expert, he could come up with possible combinations or versions of an act that would not be specifically covered in that list.

Unknown Speaker: But it would nevertheless be prosecuted?

Mr. Melbourne A. Noel Jr.: Which would be prosecutable until some Court said here is the definition, here is the Act, it does or does not apply?

Unknown Speaker: How do you read then page 27 of the Miller opinion, the sentence, under the holdings announced today, no one will be subject to prosecution for the sale or exposure materials unless these materials and so forth depict offensive hardcore sexual conduct, specifically defined by the regulating state law as written or construed.

As I understand what you are saying is 1% may be prosecuted, but not, no one.

Mr. Melbourne A. Noel Jr.: Well, I think what that means is that there has to be a definition, there has to be a substantial?.

Unknown Speaker: The 99% the case.

Mr. Melbourne A. Noel Jr.: The 99% definition.

Unknown Speaker: But then how do you, the words no one apparently were not used to say the Court did not mean what it said.

Mr. Melbourne A. Noel Jr.: Well, I think no.

I would not say that at all.

I think what that means is that at some point in a given ? of course anybody can be prosecuted for anything.

The question is, what will a Court do, if the prosecution will throw it out or not.

I think that opinion must leave open the possibility of judicial review and application of the definitions to whatever the prosecuting attorney is charging with being obscene, that is all I am saying, and I am saying that as with most other statutes, it is impossible to be a 100% certain that every possible example of what you are prohibiting is cataloged in that statute.

Unknown Speaker: And therefore, the ultimate test is the general tripartite standard and the requirement of specificity merely is -- the only needs a group of illustration.

Mr. Melbourne A. Noel Jr.: The ultimate test is what a Court of the State or Federal government and ultimately this Court believes is included within the specific examples given or is not included, I think that is the ultimate test and I do not think it is possible to remove that function from the Courts.

I do not think it is possible to set up an autonomous little operation with the legislature and prosecuting attorney so that each one knows exactly every thing that is prohibitable and that which is not.

I think you have to rely on the Courts for the ultimate fine-tuning.

Unknown Speaker: Is it not correct though that some of the other states have in affect said the only things which may be subject to prosecution are those identified specifically?

Mr. Melbourne A. Noel Jr.: Yes and then they have adopted the Miller examples, but every word indicated the Miller examples themselves are not a very long catalog and they have many possible types of conducts will be arguably included under it.

Unknown Speaker: It is it not there this difference between Illinois and these other states.

They have at least said the statute is limited to certain examples.

Illinois has never said that.

Mr. Melbourne A. Noel Jr.: Illinois has, that is true.

That is why I say Illinois is not taken the literalist approach, but Illinois has said more than some states.

Illinois has in fact said that it has specifically in Ridens II, the Court reprinted at length a large portion of this Court?s Miller?s opinion and said after further discussion, we now construe the Illinois statute as incorporating parts A and B of the Miller test, which included in their reprint, the specific examples of Miller obscenity and then later in People versus Gould Chief Justice Ward went on to reprint this whole item again and he said we have construed our statute to incorporated parts A and B as I have set out above in the above quotation, again referring to the examples.

They have done this in addition to the constructions that they have already placed on a statute.

So in my opinion what they have done and I think admittedly my job would be much easier if they had spelled all this out, but I think a fair reading of their prior decisions with the Ridens II and the Gould decision indicates what they have done.

They have taken this Court?s Miller?s standards and examples and add them on to the prior the decisions of the Illinois Supreme Court, Illinois Appellate Courts for an amalgam constitutional standard of obscenity.

I think they have said that we are going to be stick by what we have done in the past because it was correct.

In addition, we are going inform the public that we are adding on the Miller requirements and Miller examples and the combination of this will be applied as the Illinois Obscenity Statute in the future.

Unknown Speaker: As I understand that the Supreme Court of Illinois continued to construe the statute to reach materials that were utterly without (Voice Overlap).

Mr. Melbourne A. Noel Jr.: That is correct Your Honor.

They were careful do avoid a part C of this Court's Miller's test which reduced utterly without redeeming the value test.

They have said that that was already an Illinois law and that there were going to keep that until such time as legislature spoke otherwise.

So that we do have in this one particular standard that is more strict, and that was the standard by the way that was applied in this particular case.

I think that it is totally incorrect to say that under the Illinois statute even on its face that mere nudity could be prosecuted in Illinois, other than the fact that the Supreme Court said in Geraci that it cannot.

There is the simple fact that the Illinois statute requires and the comments to the statute that we have appended to the first part of our brief, I think are very illuminating as to what the intent of the legislature was back in 1961 when it passed the statute, and they said it and it is written in the statute that the matter of being accused or being obscene must go substantially beyond customary limits of candor.

Certainly, in this day and age, no Illinois Court is going to say that mere nudity goes beyond the customary limits of candor.

That element is written into the statute to prohibit the thing that was suggested here.

There is no way that nudity can be prosecuted under Illinois statute, either under the face of the statute or under the Illinois decisions that have come down following.

I think that the state?s position is that there is support for the Illinois construction of the statute in Ridens II and in People versus Gould, direct support for it in this Court?s opinion in Hamling versus United States.

I think substantially the same approach was taken by this Court as by the Illinois Supreme Court.

This court being a little bit more specific, but I think the approach is the same.

There is also direct precedential support in the State versus Watkins, which was one of the cases like Ridens, which this Court vacated and remanded, and sent back to South Carolina after the Miller decision was announced.

The State Supreme Court reaffirmed its prior ruling in a technique not to dissimilar to the Illinois technique said that we are going to limit our statute to types of obscenity such as those listed in the Miller examples.

That case came back up to this Court on appeal and the appeal was dismissed for one of those substantial federal questions.

So I think those are two direct precedents that are very closely analogous in justifying the decision of the Illinois Supreme Court in Ridens and in Gould.

Secondly, I would simply like to state that I do not believe it is true that if this Court ? well, we are not presented, this court is not presented here with the question of whether the Illinois Supreme Court failed to obey the remand of a case.

The case that was remanded by this Court after Miller was People versus Ridens, Ridens versus Illinois in this Court.

That case of course went through the Miller again with Illinois Supreme Court and it came up again on a Certiorari petition making the same allegations that had been made today before this Court about the statute and this Court denied Certiorari by a 5 of 4 vote.

This case, the Ward case comes long after that situation and of course we are not dealing with a remand situation here.

I do not think there is any question, Your Honors that upon reviewing the two publications involved in this case that they are obscene under any definition of hardcore pornography.

The only publication that there seems to be dispute about even between the parties to this cause, is a publication called Bizarre World and I would submit to the Your Honor that the main part of that publication is a 16 page full color pullout ?called dungeon domination? and in that particular little item between pages 14 and 43, there are many examples of torture with the apparent blood on the victim and torture and lewd exhibitions of the genitals and I would submit that if sadomasochism itself can be prohibited by obscenity laws then this indeed is obscenity and is properly considered prohibitable in Illinois.

The other publication, it does not seem to be too much disagreement between the parties.

I think that there can be no problem of retroactivity here.

I think if he had consulted counsel in 1971 before he purchased and sold these magazines and we looked at the many decisions, prior decisions of the Illinois Court, which deal with sadomasochism, Mr. Wesley Ward would have known that he was selling magazines that were prohibitable under Illinois law and he should have taken warning if he had looked and noted that, he should have had proper notice that this was prohibited conduct and he would not have done it.

I think there is no question here, but that the prior construction of Illinois statutes gave Wesley Ward sufficient notice that he could be constitutionally charged and convicted of the offences that were contained in his indictment.

Thank you very much Your Honors.

Chief Justice Warren E. Burger: Very well. Do you have anything further?

Rebuttal of J. Steven Beckett

Mr. J. Steven Beckett: Just a couple of remarks, Your Honor.

First of all, I would like to assume for the moment because it is true that Mr. Ward did consult a counsel back in 1971 or prior there too and the status of Illinois law was just like the status of obscenity law throughout the nation, hopeless confusion, as emphasized, I think in that Geraci opinion where the Court said we really do not understand why the Supreme Court of the United States said material like this is constitutionally protected, but we are going to say it is not constitutionally protected and I submit that in that situation we are very hard pressed to say that these particular materials which are not hardcore materials.

They are not the type of materials that this Court described in Hamling versus United States.

You do not have explicit sexual activity in the one magazine Illustrated Case Histories there, there may be suggestions of sexual activity, but in the other one there are no suggestions of sexual activity.

The Illinois Supreme Court has an affect in Ridens, in Gould, in Ward, reenacted the Illinois obscenity statute and they have done so not by in grafting any examples of obscenity or any specificity.

Unknown Speaker: What do you think that the Court should do if it disagreed with you on everything except on the issue of the obscenity of warrant of these?

Mr. J. Steven Beckett: I think that it would be a violation of the first amendment to allow a conviction for one constitutionally protected magazine to stand.

In this situation the state can certainly charge obscenity in two separate accounts.

So you have got the effect of a general verdict without knowing which magazine the judge relied on if at all.

In other words, the judge may have looked at Illustrated Case Histories and determined it is obscene, but the other one was and still convicted and now we get up to the United Stated Supreme Court, and they say, well, that judge was wrong, the other one is obscene.

Unknown Speaker: Was is a bench trial?

Mr. J. Steven Beckett: Yes, it was a bench trial.

The other one is obscene and the other one is constitutionally protected.

Unknown Speaker: Was there any request made for the equivalent of a special verdict?

Mr. J. Steven Beckett: Oh, there that was not.

Unknown Speaker: Well, then you would have think you are standing, you raise that issue is unimpaired at this stage?

Mr. J. Steven Beckett: No I do not.

I think certainly under I believe under the First Amendment, I do not think we should be allowed to be and remain convicted if one magazine is not obscene.

Unknown Speaker: You mean, yes I do.

I mean, no I do not.

Mr. J. Steven Beckett: Yeah.

Part B of Miller does not require a state to give examples.

Part B of Miller requires a state to give specificity.

If you have the 1% that Mr. Justice Stevens was talking about, that material may not be prosecutable.

Unknown Speaker: Yeah, but the most that will happen, even if we agreed with you on that one, would that we would remand, vacate the judgment and remand for re-sentencing or possible re-sentencing?

Mr. J. Steven Beckett: I think that if you agree with me then you would say that that statute in the cases have never?

Unknown Speaker: No, no.

Even if we disagreed with you on everything except the?

Mr. J. Steven Beckett: Oh, the obscenity 58.13

Unknown Speaker: Of one magazine then the most we would do, even if we agreed with you on that point would be the remand for re-sentencing vacate, we would not satisfy then, we would not say that the conviction could stand entirely?