Cases by Issue - State

City of Littleton v. Z.J. Gifts D-4, L.L.C. - Oral Argument

Fri, 09 Jan 2009 14:49:07 +0000

Case:

City of Littleton v. Z.J. Gifts D-4, L.L.C.

Media File:

02-1609_20040324-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of J. Andrew Nathan

Chief Justice Rehnquist: We'll hear argument first this morning in No. 02-1609, the City of Littleton v. Z.J. Gifts.

Mr. Nathan.

Mr. Nathan: Mr. Chief Justice, and may it please the Court:

This case presents the narrow issue of the judicial review appropriate for a license denial under Littleton's ordinance where clear, objective standards guide the city's quick and guaranteed decision to grant or deny a license and render that decision subject to effective review in the courts.

As FW/PBS has made clear, none of the three risks the Court has articulated to justify the extraordinary remedy of a mandated judicial deadline exist here.

Those risks are: the government will err in line-drawing between protected and unprotected speech; self-censorship stemming from a censored decision that speech is not protected; and foot-dragging when the government is the plaintiff seeking to vindicate its decision to censor.

Instead, where the decision to grant or deny a license for expressive activity is bounded by valid time, place, and manner considerations, this Court has held that certiorari review is appropriate.

That is because the alleged risk here that the city clerk will violate the ordinance when it requires a granting of a license is not a risk that flows from the language of the licensing standards at all, but rather a refusal to apply those objective standards.

In short--

Justice Ginsburg: Mr. Nathan, would you explain to me how this generally operates with adult shops?

In the... in the film context, the film can't be shown.

These were in the old days when they had censure boards.

So there was a great impetus to have quick action.

But here, I take it that the business was up and running and it was the city that said you need a license.

And my question is, do these questions... does the business start first and the city come in and say you need a license, or do... does the entrepreneur wait until... and... and apply for a license before starting up in business?

Mr. Nathan: --Typically the latter, Your Honor.

The entrepreneur would apply for a license and, assuming it is granted, would then start the business.

Justice Ginsburg: So this is an atypical case where the business was running and the city came in and said, you need a license?

Mr. Nathan: This is a case where a business started and filed litigation at the same time as it started against the city in Federal court.

Justice Souter: I suppose the city could have sought to enjoin the operation of the business until it got the license.

It didn't in this case, I take it, but they could have.

Mr. Nathan: The city... yes, Your Honor.

The city did do that.

Justice O'Connor: The Freedman case seemed to require prompt judicial determination, didn't it?

Mr. Nathan: Yes, it did, Your Honor.

Justice O'Connor: And it's your position that the subsequent case involving PBS changed that standard?

Mr. Nathan: In the licensing context, a requirement of a prompt judicial decision we believe is unnecessary and that's what FW/PBS held.

Justice O'Connor: Well, that surprises me to hear.

I didn't know that's what we had done.

Mr. Nathan: Well, the decision mentioned the availability of judicial review as the second Freedman standard.

Justice O'Connor: What... what about the proposal some of the States have made whereby a provisional license could be given pending the eventual judicial determination?

Mr. Nathan: The problem with the provisional license is twofold.

First, it would allow the secondary effects that the licensing ordinance seeks to prevent while the provisional license is granted.

And second, it would allow the business to drag its feet in court, whereas a business that needs a license has every incentive to pursue that.

Justice Kennedy: Well, if... if there's a danger of delay in litigation that... that both parties fear... and apparently you feared... isn't that all the more reason that before you have a license which restricts the publication of allegedly lawful speech, that you should have a... a system for prompt judicial determination?

Mr. Nathan: But where you have an ordinance, Your Honor, that does not deal directly with speech, has separate objective licensing standards that do not have anything to do with speech, the government does not bear the burden of going to court first.

But more importantly, the court should be able to determine if... readily from a record that's created by the administrative process as to whether or not the decision to deny the license is a subterfuge to deny speech.

And in that case, what happens is... is that a mandated judicial remedy would require courts to determine even those cases where the business is not claiming that there's a First Amendment reason for the denial.

They're just claiming that the denial is incorrect.

Justice Kennedy: Well, I... I... you could... if we're sitting here drafting a model ordinance, which is of course part of the problem that I'm presented with so far as the respondents are concerned, but if you're... if we're trying to envisage a model ordinance, just account for that contingency, saying our prompt judicial determination procedure applies only if there's a First Amendment claim.

Mr. Nathan: But I guess the question goes back to whether or not the risks justify imposing a mandated judicial deadline.

Justice Ginsburg: How serious is the burden?

I mean, there are now a few circuits that have said that prompt judicial resolution, not merely access, is required.

I think it's the Fourth, Sixth, and Ninth.

What has been the resolution there?

What have cities done?

Mr. Nathan: Well, cities have been groping for a solution to that question.

In Colorado, we would have a separation of powers issue.

It's very difficult to engraft in Littleton's ordinance a requirement that courts that it does not control rule within a set period of time.

Some of the cities have attempted to pass legislation.

Some have attempted to create their own court systems.

None of those is guaranteed to work and none of them are, we believe, mandated by the risks entailed.

Chief Justice Rehnquist: Do any of the courts which have said that prompt disposition, rather than just access... have they gone on to say that prompt appellate disposition, because presumably you can appeal from the ruling of... of a superior court or a trial court, that that also is required?

Mr. Nathan: I do not believe they have held that, Your Honor.

But I don't think that it is clear as to exactly how that is to be done.

Chief Justice Rehnquist: Because ordinarily, even if you get a prompt disposition in the trial court, you can wait, you know, a good year before you get a disposition on appeal.

Mr. Nathan: Yes, that's true, Your Honor.

Justice Souter: Has... has anyone suggested that your... I don't know the... the merits of this separation of powers problem that you raise, but has anyone suggested that the answer to that may simply be not to try to directly control the courts to come down with a decision after X days or weeks or whatnot, but simply have a kind of circuit breaker provision that if they don't, the license will be deemed to be granted?

Mr. Nathan: Well, I... I think that that's in the nature of a provisional license which would be that after--

Justice Souter: It could be provision.

It could be permanent.

If... if the... if the State doesn't want to move fast, you would get the license in the meantime, or... or perhaps get it permanently.

But that would avoid separation of powers.

Mr. Nathan: --But it would also create the secondary risk by having an unqualified applicant, since that is what we're talking about in the standards that we're--

Justice Souter: Well, but we... we don't know.

That's... that's the whole point.

We don't know whether the applicant is qualified.

That's why you're in court.

And the... the way, in effect, I... to... it seems to me to ensure your interest is simply to... to have an encouragement to a prompt disposition.

And if the machinery of the State cannot somehow pull itself together to give the prompt disposition, then I don't know what you've got to complain about.

Mr. Nathan: --But this Court has always presumed the State courts will honor their obligations to review these types of cases and determine if there are First Amendment issues.

Justice Souter: Oh, I'm sure the State courts will, but I've come from a State court and I... I know what... what caseloads are.

And unless there is an inducement to move quickly, the... the State courts, you know, may have obligations to other litigants and... and not move as fast as the... as the First Amendment would call for.

Mr. Nathan: But that's why in... in Colorado the rule 106 gives the court the ability to in its discretion, determine if accelerating the case is necessary.

And--

Justice Souter: In... in which case then, if there were this kind of circuit breaker provision, the... the courts would... would have every procedural basis for honoring it.

Mr. Nathan: --But, of course, if the city doesn't bear the burden of going to court and it's the business that goes to court, it would then have every incentive to move as slowly as possible because it would automatically get a license even if it weren't--

Justice Kennedy: I just didn't... would have every incentive to?

I just didn't hear.

Mr. Nathan: --Move slowly because it would automatically get a license if a certain period of time went by even if it weren't qualified under the objective standards of the ordinance.

Justice Souter: But it would have to have filed its appeal.

Mr. Nathan: It would have to have filed its appeal, but it would have every incentive not to ask that that--

Justice Souter: Then... then simply have your circuit breaker saying if there's going to be an appeal, file the appeal within X days.

Mr. Nathan: --And--

Justice Souter: I mean, these are simply things that States can provide by... by law, it seems to me, without any great difficulty.

Mr. Nathan: --That's true, and I guess the question is... is whether the risks entailed require that they be imposed on the cities who have these types of licensing ordinances.

And we would seek to prevent the secondary effects that this Court--

Justice Souter: Well, if... if you take the position that in fact the State should move promptly here, what is the State going to lose by, in effect, a fail-safe requirement that it must?

On your theory, it's not going to be doing anything more than it ought to do in the first place.

So... so we would... we would be providing, on your theory, for the outlier case.

So what would be the... what would be the reason for complaint here?

Mr. Nathan: --Just that when the plaintiff goes to court, the business goes to court, it would have every incentive to... to try to go as slowly as possible, whereas the incentive should be, if it wants a quick decision, for it to move to expedite, to... to brief quickly and to argue quickly and ask the court for an expedited decision, and if one is not availing, to go up and ask the appellate court, under our rule 21 of the Colorado Appellate Rules, to order the court to rule quickly.

Justice Scalia: Mr. Nathan, I gather that a... I gathered from your brief that your... your principal point, or at least a principal point in this case, is your contention that this case is different from censorship cases where the judgment is left to a... a board with... with no standards as to whether a particular movie can be shown or not.

There immediate review is necessary.

Your claim here is that the matters that are determined by the administrative organ are not matters of censorship, but rather quite discernible, physical, and practical points.

What... what specifically was the basis for turning down the... the license here?

Mr. Nathan: Well, there's never been an application for the license in this case.

Justice Scalia: I see.

Well, what... what would have been... what would have been the issues if the application had been filed?

Mr. Nathan: In point of fact, except for the... its location... it's in an improper zone and it's within 500 feet of a church and day care center... Z.J. probably would have been granted the license, Your Honor.

Justice Ginsburg: But they say they're not an adult business, and that's the preliminary characterization.

I mean, they... they don't have a license.

They didn't apply for one because they said, we don't need a license.

We're not that kind of business.

Mr. Nathan: But, Your Honor, that issue was litigated fully in the district court and the district court held that not only were they an adult business, but that their arguments to the contrary were essentially frivolous.

Now, it took some doing, in terms of discovery where we had to provide photographs, videotapes, layouts, an accountant's determination of the amount of adult materials, but the district court ruled on that issue and found that they were unquestionably an adult business and even cautioned counsel about rule 11 in their claim that they weren't.

Justice Ginsburg: This is the Federal district court.

Mr. Nathan: Yes, Your Honor.

Justice Ginsburg: Is... is there no court, municipal level court, in Colorado as there was in Baltimore?

I mean, the... the reaction of Maryland to the Freedman case was to set up a proceeding in the Baltimore City court, and it had explicit time lines.

And then it provided for an expedited appeal to the Maryland Court of Appeals.

So why... I... I thought that the FW/PBS case said, we're... we're not going to follow... the... the government has to go into court because it isn't like censorship.

But the other two apply.

So why don't you just... why isn't that the solution, the one that was adopted in Freedman for... for the proceedings in court?

Mr. Nathan: Well, there's a serious question in the issues before the Colorado Supreme Court now as to whether a municipal court can handle a 106 review or whether it has to be a district court from the State.

But again, if you eliminate the... what has been called the third Freedman requirement of requiring the government to go to court, then since it... the... the business is the captain of that litigation, there's no reason to force the government to mandate a decision within a set period of time.

Justice Scalia: Do you concede that the second Freedman requirement demands that judicial review... or that... that a judicial determination be concluded?

Mr. Nathan: I do not, Your Honor.

Justice Scalia: I thought that that's the whole issue here, whether it's enough that you can promptly begin a suit or whether, in fact, what... what Freedman requires is that a suit has to be raced through to termination in these cases.

Mr. Nathan: Yes, Your Honor.

And our position is... is that the elimination of a third requirement makes it more rational to have the second requirement be prompt access and... and effective access to the courts which--

Justice Ginsburg: But everyone who complains about administrative action, adverse administrative action, has a right to promptly open the door.

So that, if you read it to just to say access, then it essentially does nothing.

Mr. Nathan: --In this case, however, and in many others, when you have clear objective standards, a quick exit from the administrative process, a record of the reasons for the denial, then access to the court is meaningful because a court can readily determine if there's a subterfuge to suppress speech through the licensing mechanism.

Justice Kennedy: And I suppose that interpreting the second requirement that way does prevent the administrative agency from delaying matters by simply delaying the issuance of its opinion.

Mr. Nathan: Exactly, Your Honor.

Justice Stevens: May I ask this general question?

I understand the standards are different, but just in terms of the procedure, if I applied for a license to run a dry cleaning establishment, would I have a different procedural set of hurdles than this litigant does?

Mr. Nathan: The... the licensing requirements in this case involve adult businesses.

Justice Stevens: Right.

Mr. Nathan: And so I'm not sure what sort of--

Justice Stevens: I know the standards are different to qualify for it, but I'm just wondering if you're denied the... the license, are you treated any differently than if I had applied for... to get into some entirely different business?

Mr. Nathan: --I don't believe so, Your Honor.

Justice Ginsburg: There's one curious feature in this and maybe you could explain it to me.

Apparently this business was denied a sales tax license and yet they were in business.

Mr. Nathan: They didn't apply for a sales tax license until 8 months after they opened, and by that time, because they had initiated litigation in the Federal district court, we had already determined that they were clearly an adult business and therefore they were denied the sales tax license because they were in an improper location, which is the only reason--

Justice Ginsburg: Can... can a business start up and... a retail business without such a license?

Mr. Nathan: --No.

That's why they were cited in court.

I'd like to reserve, if there are no further questions of me--

Argument of Douglas R. Cole

Chief Justice Rehnquist: Very well, Mr. Nathan.

Mr. Cole, well hear from you.

Mr. Cole: Mr. Chief Justice, may it please the Court:

It is neither necessary nor appropriate to require licensing schemes like Littleton's to provide prompt judicial determination.

It's not necessary because, as this Court's cases demonstrate, the type of judicial review required in licensing schemes must be correlated to the First Amendment concerns that the ordinances present.

The First Amendment risks here are far less than the risks of freewheeling censorship that were at issue in Freedman and its progeny.

The ordinance here does not license speech.

It licenses businesses.

Thus, prompt access is sufficient.

In fact, it would be inappropriate to impose a judicial deadline requirement for at least three reasons.

First, it would impede State and local efforts to control secondary effects.

Second, it would offend notions of comity and federalism by assuming that State judges will ignore their constitutional obligations to be sensitive to the First Amendment.

And finally, it would require local officials to impose time limits on those over whom they have no control.

Excuse me.

Thus, both constitutionally and jurisprudentially, prompt access to meaningful review is all that the Constitution requires.

The Freedman decision was motivated by two concerns, neither of which is present here.

There's neither the... the problem of unbridled discretion, nor a risk of self-censorship.

Unbridled discretion occurs only in two situations where you have either the possibility of administrative delay or standardless discretion.

And as this Court has recognized in a number of cases, the latter, standardless discretion, presents unique challenges for judicial review.

It makes sense in that context to require some type of judicial deadline because essentially meaningful judicial review on an expedited basis is impossible if there's no standard to give any indication as to why the administrative decision was made.

Justice Kennedy: I... I suppose that if we're concerned, as I... as I think the courts are concerned, about protecting First Amendment rights, one thing we could do is just say that if there's any apparent delay in determination, the United States district courts under 1983 are free to... are free to intervene at once.

Mr. Cole: And... and, Your Honor, if--

Justice Kennedy: I'm not sure if that helps you or if it helps the respondent.

Mr. Cole: --Well, 1983 is, of course, always available as a vehicle for someone that's asserting that their constitutional rights have been violated.

Justice Kennedy: Well, except that I... I would think the municipalities and the States would raise questions about deferring to the State courts for determination of State law issues and so forth.

Mr. Cole: Abstention doctrines, Younger abstention, for instance, might come to play.

Here the court... or I'm sorry... the city waived any abstention argument in order to allow the 1983 case to proceed.

Potentially it could have, notwithstanding the abstention argument, but of course, there would be the issue of abstention which is one reason why prompt access to some type of State remedy is so important in... in the case if 1983 is not an effective vehicle.

Justice Scalia: Of course, I guess we'd have to have either a statute, such as the statute that requires Federal district courts to expedite criminal cases.

I'm not sure a Federal district court can both take the case and also bump it up to the top of its docket.

Can they do that, leaving... leaving behind people who have been waiting several years to be heard?

I don't know that that will work without a Federal statute.

Mr. Cole: Well, and I guess at... at core, it doesn't matter whether you go to the Federal court under 1983 or to State court.

Presumably the sensitivity of the judge to the First Amendment concerns in both cases would be the same and their willingness to move it to the front of the docket would be the same.

We look... I mean, this Court has definitely in the past shown that where State courts are not sufficiently sensitive to First Amendment concerns, for instance, in the Skokie case, the Court demonstrated that it could fashion tools to handle what it felt was undue delay in the court system.

Chief Justice Rehnquist: But we've also held that Federal courts are... should be very loathe to intervene in ongoing State proceedings.

Wait till the State proceeding is over and then you can go to Federal court.

Mr. Cole: Absolutely, and in the Skokie case, it came up through the State court system and directly into this Court rather than via a district court model.

But... but the point is as long as you have prompt access, you're going to get access to a judicial official who is going to be sensitive to First Amendment concerns and, if necessary, has all the traditional tools of equity available to provide immediate relief, TRO's, PI's.

Justice Ginsburg: What... what does prompt access mean as opposed to relaxed access?

I... I just don't understand the content of prompt access if... if access is getting into court.

That's easy.

You file a complaint.

Mr. Cole: Well, you need... under State systems, most State systems have some form of requirement that... that the court knows that the administrative process is over so it knows it doesn't have to defer to the administrative process anymore.

So by having a clear exit, as well as a... a vehicle that's either prescribed by rule or by statute so everybody knows the appropriate vehicle and there aren't any questions about the jurisdiction of the court to hear the matter, as well as a record that... that they can use to make a... a prompt review when it gets before them, we would contend that that meets what this Court was talking about with respect to the second prong in FW/PBS.

Chief Justice Rehnquist: Does the local ordinance provide a limit, time limit, for the administrative proceeding?

Mr. Cole: Absolutely, Your Honor.

Chief Justice Rehnquist: What is... what is that?

Mr. Cole: I believe, as it's currently drafted, it is up to about 40 days, but it could be even quicker than that.

I say up to.

There are certain periods of time within which the applicant can act within the next 10 days, and so if they act within the first day, then that would shorten the time frame even further.

Justice Kennedy: Do you think those administrative requirements are... are mandated under the Constitution when First Amendment issues are... are present?

Mr. Cole: A prompt administrative decision, yes, Your Honor.

I believe that... that comes from FW/PBS, as... as well as to the... I mean, FW/PBS's interpretation of Freedman in the context of content-neutral licensing schemes.

Justice Kennedy: Well, why would you go that step unless you're being... you just think you're forced to under our decision?

Why would you go that step and... but... but then moot the whole thing out by having a... an... a protracted judicial process?

What... what sense does that make?

Mr. Cole: Well, Your Honor, there's been no showing here that there would be a protracted judicial process.

The--

Justice Kennedy: No, no, but I... I asked you if... if you concede that there is a requirement of expedition at the administrative process... at... at the administrative level, it then seems to me that it also follows there has to be one at the judicial level.

Mr. Cole: --Well, Your Honor, the... the question before the Court today, though, is what does Littleton's or a town like Littleton's licensing scheme need to provide.

There may be some independent constitutional obligations on State court judges to act promptly with respect to First Amendment concerns, but the question is, does that need to appear in the text of Littleton's ordinance?

Justice Kennedy: Do you concede that there are such obligations?

Mr. Cole: I concede that... that courts have an obligation under cases like Skokie to be sensitive to the time concerns that are presented by First Amendment issues.

I don't know that there's any--

Justice O'Connor: Mr. Cole, do you know whether there are any license... city licensing schemes that say if the... in the administrative proceeding it's determined that the license should issue and it is the city that's appealing, that then it has to be expedited?

On the other hand, if in the administrative proceedings, it's determined the license should not issue, then there the burden would be on the appellant applicant for the license to go forward.

Mr. Cole: --I'm not aware of any such city ordinances.

The California statute, which was passed as a result of the Ninth Circuit decision, I believe allows either the city or the applicant to proceed to court, whatever the licensing decision is.

Either the Tennessee or the... I believe it's the California one.

But... but I'm not aware of any city ordinances that do that.

The... Z.J. Gifts relies heavily at page 18 of their brief on a quote from Southeastern that says a free society prefers to punish the few who abuse rights of speech after they break the law rather than throttle them and all others beforehand.

To me, that puts a real point on the difference between the prior restraints that were at issue in Freedman and Southeastern and cases like that and the situation here.

That assumes we need to do some sort of sorting, bad speech and good speech, and we want to know should we do the sorting beforehand or after, and the Court says, not surprisingly, let's them talk and then we'll punish the ones who utter things that are not protected by the First Amendment.

Here there's no need to engage in that kind of sorting.

Any adult business has the prospect for creating the secondary effects that this Court has recognized in Renton and Young and... so it's not a matter of sorting them.

It's a matter of if you're an adult business, you need a license and that license might include requirements like where you can locate within the city.

Justice Scalia: Well, it is a matter of sorting them to the extent you have to figure out what's an adult business.

Now, you... you say that that issue is not in this case.

Maybe we don't decide very much if that issue is not in this case.

Why isn't that--

Mr. Cole: Well, Your Honor, I--

Justice Scalia: --a sorting type issue?

You claim you're not an adult business, in which case you're not even subject to this ordinance.

Mr. Cole: --Well, but if you're not subject to this ordinance, you're not going to be seeking judicial review under this ordinance, and you'll do what... what Z.J. Gifts did here, which is bring a facial challenge under the First Amendment before you've even subjected yourself to the licensing scheme.

One would assume that the judicial review that we require to be part of the licensing scheme would be to deal with those cases that come up through the licensing scheme and to which the judicial review would then apply.

If the... if the question is it's ex ante, does it even apply to me, that will be litigated in a different forum than what we're talking about here.

Justice Souter: All of which is true unless the... the city chooses to do, as it did not do here, and that is to enjoin the operation of the business in the absence of the license.

Mr. Cole: Well, and it... if they... if they seek to enjoin the business at that point, then you're right.

They could raise the constitutional defense presumably that they would have.

And at that point then--

Chief Justice Rehnquist: Thank you, Mr. Cole.

Mr. Cole: --Thank you, Your Honor.

Argument of Michael W. Gross

Chief Justice Rehnquist: Mr. Gross, we'll hear from you.

Mr. Gross: Mr. Chief Justice, and may it please the Court:

The core policy in Freedman, recognized in this Court's decision in FW/PBS, is that a decision to issue a license to present... protect the expression must be made within a brief, specified period of time because undue delay results in the unconstitutional suppression of protected speech.

Chief Justice Rehnquist: But Freedman was actual censorship and this is not that.

Mr. Gross: That's correct, Your Honor.

This doesn't involve a single film.

This involves a determination by the licensing officer, in this case especially, of the content of an entire business.

Chief Justice Rehnquist: Well, are you saying that the... the claims of the owner here are just as urgent under the First Amendment as in Freedman?

Because certainly PBS suggested they weren't.

Mr. Gross: FW/PBS did relax the third Freedman safeguard.

There's no question about that.

However, I think in the Court's analysis of... when the Court undertook that direction, the Court indicated that the license is the key to obtaining and maintaining a business.

And that's why the... the... why there's every incentive for a business to move forward with judicial review in the--

Justice O'Connor: Has there... has there ever been any proceeding here at all to determine what the issues are?

Mr. Gross: --There's been a lot of proceedings in this case, Your Honor, as Mr. Nathan indicated.

Justice O'Connor: But... but they're all on a challenge to the overall constitutionality of the... of the city ordinance?

Mr. Gross: That's not entirely accurate, Your Honor.

There... there was a nuisance case filed in the State court, in the Arapahoe County District Court, and the city in fact got an order enjoining the operation of its business.

It was brought on the basis of a zoning violation, sales tax violation, and sexual business violation.

Justice O'Connor: Is it... is it operating now, the business?

Mr. Gross: The... the business is operating now.

That order--

Justice O'Connor: On what basis?

Mr. Gross: --Well--

Justice O'Connor: I mean, happened to... to--

Mr. Gross: --With regard to that State court case, there was an order enjoining the... the operation of the business entered in September of 2001.

The business made a motion for a stay, pending appeal.

That motion was denied on December 27th of that year.

There was a contempt hearing.

The business was moved to be held in contempt.

At the contempt hearing, the trial judge in the State court, for the first time hearing the case... he found that the business was not in contempt of court.

In fact, the Federal court determined in the light most favorable to the... to the bookstore that 33 percent of the business was allocated towards regulated adult items.

The district court and State court, once he saw what was going on, there's testimony that 18 percent of the business was devoted to adult material, and the State district court made a determination that the business was not in contempt.

In fact, the injunction order in State court was later reversed in the State court of appeals in February of last year.

And so at the current time, there is no injunction order against the business.

The business is operating.

Justice Kennedy: --It... it seems to me that it's just much simpler for us to acknowledge, for the system to acknowledge that there's a strong First Amendment interest here, so expedition is important, rather than write some model ordinance.

You can go to Federal... if... if the State isn't complying with that rule, go to the Federal court.

Mr. Gross: And... and there was a facial challenge filed at the time the business was opened back in August of 1999.

They went to Federal court first.

The State did seek its remedies as a State court nuisance action and tried to shut down the business and was unsuccessful ultimately.

Justice Kennedy: I'm just not sure why that isn't adequate if a Federal judge thinks that the... the city... that the State system is delaying matters and that speech is at risk, the Federal court could issue an injunction.

Why should we write a model ordinance up here?

Mr. Gross: Well, the Federal courts are... I think, as indicated before, there are some issues of abstention, comity, and so forth, and those issues have come up quite a bit, especially if there's pending State court proceedings.

Here the... the State did go to State court.

The... you can always go to Federal court to vindicate your First Amendment rights.

And in... that's what we... what the business chose to do in this case on the facial challenge.

I think once the case gets started, once you apply for a license and your license is denied, you really need to go through the State court process.

Justice Breyer: Well, but... what... what is the problem in the case?

I mean, I... I had thought, perhaps naively, that the reason that one opinion used the word judicial access, prompt judicial access, and the other opinion used the word, prompt judicial decision, is that there really isn't any difference between the two.

Once you have prompt judicial access, the courts have loads of devices to give you a prompt decision.

And if you feel the decision isn't prompt enough, well, you can ask the appellate court to make sure you get your quick decision.

What's the problem?

Mr. Gross: Well, I think Freedman said prompt judicial review means prompt judicial determination.

I think the courts may have discretion to fashion the remedy, but again, getting the case under the State court dockets, getting--

Justice Breyer: Once you say that, the courts have discretion to fashion the remedy, that's the end of it, isn't it?

Of course, you get into court and then it's up to the judge, and if in fact the judge, as I just said, delays unreasonably, you like any other litigant have a host of judicial remedies.

So what is it?

How do you win this case once you agree to what I just said?

Mr. Gross: --Well, the core policy behind Freedman... it was enunciated in FW/PBS... is that delay could... results in unconstitutional suppression of speech.

And in fact--

Justice Breyer: We're all against delay.

I mean, I just don't... I mean, everybody is against delay.

And my question is what is it that you want in that respect that you haven't had.

Mr. Gross: --Well, in this case there was an erroneous deprivation of constitutional rights.

There was--

Justice Breyer: You mean you have not had... you've had unreasonable delay.

Mr. Gross: --Yes, and--

Justice Breyer: Aren't... isn't your client running his bookstore?

Mr. Gross: --The... the client--

Justice Breyer: Then what's the delay?

Mr. Gross: --The client... there... there's no injunction order entered in this case.

The delay is that on its face that the... the ordinance needs to provide for prompt judicial review.

Justice Breyer: Oh, that's a different matter.

You think it isn't enough, the ordinary remedies.

You want the ordinance to say in words judicial... prompt judicial review.

That's contrary, I think, to what you just said.

Justice O'Connor: Well, I thought it does say prompt judicial review in the sense of access.

Justice Breyer: Yes.

Right.

Justice O'Connor: What doesn't it say?

Mr. Gross: It provides... rule... it provides for judicial review under rule 106 of the Colorado Rules of Civil Procedure.

That process involves judicial review of the record, 90 days for the record, briefing schedules, 30 days for each side, 15 days--

Justice O'Connor: You don't like the briefing schedule.

Is that it?

Mr. Gross: --Well, the... the period of time it takes... it's a very long time.

It... generally judicial review... it's an appellate... appeal to the district court.

It takes at least a year.

Chief Justice Rehnquist: Well, a municipal... a municipality in most States can't prescribe the procedures in a State... in a State court.

Mr. Gross: That... that is correct, Your Honor.

California... the legislature did enact a statute, as referred to by the State of Ohio that--

Justice Scalia: It's... it's not even clear that the legislature can do it in some States.

Indeed, you know, I... I think there are limits to what a legislature can tell a court.

I think it can't tell a court to pump out a decision in 10 days.

You think it... you think it can do that?

Mr. Gross: --I think it can... it can... it depends on the court... on a State--

Justice Breyer: Why would you think under the Constitution that an adult bookstore has to have something written into an ordinance which... it's entitled to a fast decision.

I agree with you about that.

But why does it have to have it written in an ordinance when a person who's put in prison arbitrarily who also should have a very speedy decision is required to rely on ordinary court processes to get that speedy decision?

Mr. Gross: --Well, under the First Amendment... and this is not a... this is not directly on Freedman, censorship of a single item.

However, decisions of administrative officials... certainly administrative officials are subject to much greater pressures to censor.

Justice O'Connor: Yes, but the administrative procedures the city provides here all have these prompt deadlines.

You... and... and your business did not apply for that.

It just opened its doors apparently.

Mr. Gross: It went to court.

It did file a Federal case.

It did open its doors.

The city has been very--

Justice O'Connor: And the business knew, when it did that, that it was omitting the city review altogether, although it had been available very promptly.

So I... it's hard to get a focus on what... how... how your client has been hurt.

Mr. Gross: --The city... well, the city indicated before the business opened its doors that it perceived it to be an adult business before they even opened their doors.

They said, we've heard you're coming to town and we think you're adult business.

And so that... and then the city did deny a sales tax license on the basis that it was an adult business.

They won't define what that means.

They won't put any... any indication what those terms actually mean.

Justice Kennedy: Well, this... this goes maybe over the same ground, but let's assume that in the... in a circuit court in... in... say, in the Tenth Circuit, it's recognized that licensing restrictions that apply and... and permit requirements that apply to First Amendment materials are most sensitive.

And the... and the courts of the circuit, both the district court and the court of appeals, are... are very faithful in... in implementing... in implementing that rule.

Why do we have to have an ordinance?

Go to the Federal court and say speech is being chilled, speech is being suppressed, there's unreasonable delay.

The court says, I agree.

Mr. Gross: I... I guess--

Justice Kennedy: End of case.

Mr. Gross: --We'd have to wait an unreasonable period of time to initiate that case.

I think 37 Photographs talks about the 60-day judicial review.

Justice Kennedy: No.

The whole... no.

The whole premise of my question... maybe you're going to tell me it's hypothetical.

The whole premise is the Federal courts are open to hear claims of unreasonable delay that... that chills the expression of speech.

Mr. Gross: The Federal courts are open to that.

I... I would agree with that.

Certainly if there are State court proceedings pending, there may be issues of abstention that we talked about before.

Justice Stevens: Mr. Gross, can I ask you sort of a... a basic question that I haven't really thought through?

Should there be a different time schedule for the person who wants to operate just an ordinary bookstore that just sells textbooks for schools and... and trade books, on the one hand, and an adult bookstore on the other hand?

Would one of them be entitled to more prompt review of his license application than the other?

Mr. Gross: I... I would... yes, Your Honor.

I think under FW/PBS, the Court indicated that there was an additional burden placed upon adult bookstores and that Freedman had to be complied with.

Justice Stevens: So you think the Constitution commands more prompt treatment of an application by an adult bookstore than by an ordinary bookstore.

Mr. Gross: I... I think it... there's... you get into the issue of... of some kind of content... correlated content based restriction.

It may be based upon non-content based factors.

Justice Ginsburg: Do you need a license to open an ordinary bookstore in Littleton?

Mr. Gross: No, you don't, not a special license.

You need a sales tax license.

Justice Scalia: Well, there are other restrictions.

You... I'm sure you can't open it in the middle of a residential neighborhood, can you?

Mr. Gross: A commercial business you can't open.

I mean--

Justice Ginsburg: But you don't--

Justice Scalia: --Anywhere?

Justice Ginsburg: You don't need a license.

Justice Scalia: There's no zoning?

Mr. Gross: --There's an adult zoning provision in--

Justice Scalia: Well, there's not just an adult zoning.

I assume there's a commercial zone.

Mr. Gross: --Commercial zoning.

That's correct.

Justice Scalia: Well, so... so they can't open it anywhere.

They have to go through a procedure.

Mr. Gross: They have... they have to go through the commercial... yes, be approved for a commercial zone and if this--

Justice Ginsburg: But what... what is the commercial other than if they... if they're going to set it up in a place where you can have businesses... in other words, there isn't the same license requirement for these two businesses.

There's a special licensing requirement for adult bookstores because of their secondary effects.

Mr. Gross: --Yes.

Justice Scalia: What do you mean a special licensing?

You mean there are special zoning requirements?

What else besides special zoning requirements?

I assume there are special zoning requirements for... I don't know... sulfur factories and... and, you know, all sorts of things.

Mr. Gross: Certainly, and slaughterhouses.

There's commercial--

Justice Scalia: For slaughterhouses, sure.

Sure, there are.

Unknown Speaker: [Laughter]

Mr. Gross: --commercial zones, and there are... and there are residential zones.

Justice Scalia: Right.

Mr. Gross: Certainly.

And--

Justice Scalia: Right, so I mean, this is just the city has decided that it doesn't... and... and we said it's perfectly reasonable for the city to say that, that... that we don't want too many of these and we want them in certain areas.

Mr. Gross: --And... and that was--

Justice Scalia: And it can say that about slaughterhouses.

Mr. Gross: --Certainly, and about adult bookstores.

And... and, in fact, there was challenge to the adult zoning in this case and the Tenth Circuit upheld the adult zoning, and these bookstores are limited to less than 1 percent of the area of the City of Littleton.

This--

Justice Ginsburg: Is this bookstore now operating in a place where it isn't permitted to be under the Littleton ordinance?

Mr. Gross: --It's... the location... yes.

It's operating its... if the city says it's an adult bookstore, it's in an improper zone.

If it's not an adult bookstore--

Justice Ginsburg: And--

Justice O'Connor: --It's... I didn't hear you.

Mr. Gross: --If... if the bookstore is determined to be an adult bookstore, it's in an improper zone.

If it is not an adult bookstore, it is in a proper zone.

It's in a location which was formally occupied by a fast food restaurant on a highly--

Justice O'Connor: And you take the position that if you just sell 18 percent of the merchandise is adult, then it doesn't qualify?

Justice Ginsburg: I don't understand.

Mr. Gross: --That... that was what the Arapahoe County District Court ruled.

We... we were trying to ascertain what the term, substantially significant, means.

The city refuses to provide any definitive determination of what that means.

So we had to go to court, and that's what the court determined in that particular case.

Justice Ginsburg: Now, what I don't understand is you... you are concerned about the... the efficacy of judicial review.

You picked your forum.

You picked the Federal court rather than the State court.

Mr. Gross: Yes.

Justice Ginsburg: You got a review of that ordinance, every piece of it, for constitutionality.

I don't understand what complaint you have now about judicial review, having had judicial review in the Federal court and having had the Federal court uphold most of this ordinance.

So you've... you've had judicial review.

How... how... how are you a proper complainant about what access you might have had in the State courts if you chose to go there?

Mr. Gross: Well, we... we brought the facial challenge in the... in the Federal court.

There is... and there is continuing injury in this case.

The... the business has been cited with 2,620 violations of the licensing ordinance.

And in the event the Court... the law is declared unconstitutional, those... those violations would go away.

Each carries a $1,000 fine.

So there's potentially $2 million in fines.

Justice Ginsburg: But you... the... the unconstitutional area left is this prompt judicial review, but you've already had judicial review.

That's why I don't understand what is your current complaint.

Mr. Gross: The current complaint is it's... we brought the facial challenge on the basis that it doesn't comply with FW/PBS and Freedman.

And there was--

Justice Scalia: You think somebody else might not get prompt judicial review and that's enough to strike down the ordinance.

Right?

That's what the facial challenge is all about.

Mr. Gross: --Well, it's... yes, Your Honor.

I mean, this--

Chief Justice Rehnquist: Your real complaint... your real complaint is we granted certiorari.

Isn't that the--

Unknown Speaker: [Laughter]

Mr. Gross: --Well, we... we would... we would be happy to live with the Tenth Circuit order, for sure.

Justice Stevens: I have to confess to another problem.

As I understand part of your argument, you're contending you're not an adult bookstore, an adult establishment, aren't you?

Mr. Gross: That's correct.

Justice Stevens: So you're contending you don't have challenge... standing to challenge the ordinance.

Mr. Gross: Well, the city says we do.

[Laughter]

But we do have... there is an injury in fact in this case because the city has initiated 2,620 license violations, up to $2 million in fines in a municipal court.

That... that's a real injury.

And, I mean, this isn't the case like or Pap's or like Waukesha.

Justice Stevens: Maybe that's because you decided to go into business without getting a license, which might have been a fairly reckless thing to do, I would think.

Mr. Gross: Well, we went to Federal court and the... the city, you know, did pursue their claims in State court.

Certainly, I mean, the... the business can't be faulted for... too much for being a business.

I mean, in the Waukesha case and in the Pap's case, those businesses were out of business.

I mean--

Justice Kennedy: Is... is what you're saying that there is a reliance interest on the part of these businesses?

They should know that there is a... an efficient licensing procedure with judicial review so they can factor into their costs of... of doing business whether or not they can afford, say, 3 months of expedited litigation and that this is a... a First Amendment interest.

Mr. Gross: --That's correct, Your Honor.

The... with regard to a... an ongoing business, as opposed to an individual work of art, getting the license is key... is key to the... to the ability to maintain a business.

And so an investor, an entrepreneur, trying to start a business, hire employees, get a location, supply inventory, needs an assurance that there will be a decision within a specific period of time by a court.

This is not your run-of-the-mill administrative decision.

This... this involves the First Amendment issue based upon content of the speech, based upon this ordinance that is focused upon one class of businesses that--

Justice Kennedy: If... if the States know that the... that the penalty they suffer for not doing that is having to submit themselves to Federal court litigation where the Federal courts really sweep abstention aside and so forth because of the urgency, I guess that's maybe the decision that States should make.

Mr. Gross: --Well, I think the States... they need to... it's our position they need to expedite the judicial review, and... and the provisional license doesn't really solve the problem.

I would note that the municipal court... the municipalities do have the ability to... to enact laws, to have review in the municipal court.

In fact, last week I just went through a process where there's a requirement that review occur within 75 days of the administrative decision.

That was in Aurora, Colorado.

And that ordinance is attached to our response for the petition for rehearing in the Tenth Circuit.

Justice Scalia: You are content with the review in municipal court?

Mr. Gross: No.

Well, it depends on how it comes out.

Justice Scalia: No, I don't think so.

Mr. Gross: But... but certainly--

[Laughter]

And we're... we may well prevail in that case, but certainly we have a right to an appeal.

In this case, we prevailed on the appeal in the court of... State court of appeals and the Tenth Circuit on this issue.

Justice Ginsburg: If the... if the municipal court was good enough in Freedman, where you had a real censorship problem, why shouldn't it be adequate, entirely adequate, for adult bookstores?

Mr. Gross: It may well be, Your Honor.

I think the... you know, in that... there may... it may be... it may well be adequate if there's an independent judicial officer as opposed to a... a licensor, you know, going back to the Printing Act of 1662, a licensor of speech of a bookseller.

And here the definition of adult bookstore is... is really dim and uncertain.

We don't know what it means.

Chief Justice Rehnquist: Yes, but... but we're not talking about censorship.

I mean, we're not talking about a licensor who says you can sell this book or you can't sell it.

Mr. Gross: We're not talking about a licensor that talks a specific book.

We--

Chief Justice Rehnquist: Is a... when you talk about a municipal court, do you mean the municipal court, say, of the City of Littleton or a municipal court created by the State of Colorado?

Mr. Gross: --This would be the City of Littleton municipal court or the City of Aurora is the one I was referring to before.

Justice Ginsburg: Would... would you explain one puzzling thing?

Mr. Nathan told us that the district court said, of course, they're an adult bookstore.

That's so clear.

On that basic characterization whether you are or are not an adult business, the Federal court, according to Mr. Nathan, said you were an adult business.

Is that over and done with now so what you're left with is you are an adult business and you have to get a license?

Mr. Gross: On that day?

I mean, that was the Federal court's decision.

The Tenth Circuit did affirm the decision, in little bit less harsh terms than the district court, but certainly the decision was affirmed.

That is the final determination in this part of the case.

The business--

Justice Ginsburg: And yet, you're still operating in a place where you can't be if you are an adult business.

Mr. Gross: --Well, in response to that court order, the business has changed its operation quite a bit.

This is not a... a theater.

This is not an arcade.

This is not a cabaret with live entertainment.

This is a store that has a certain percentage of its stock and trade in regulated adult material.

It reduced that number.

It created a separate section.

It's tried to comply with the city.

It is willing to comply even further as long as--

Justice O'Connor: But that issue is not before us and isn't open.

That's been decided, hasn't it?

Mr. Gross: --Yes, yes.

Justice O'Connor: So we can take this case and decide it on the basis this... that it is an adult bookstore we're talking about--

Mr. Gross: Yes.

Justice O'Connor: --that must get a license.

Mr. Gross: Yes.

Justice O'Connor: So we don't have to get tangled up in this other business, do we?

Mr. Gross: No, we don't.

The Court does not.

I would note that, however, the... the city says that there's no discretion in this case, that it's purely a ministerial decision.

And to the extent that there's inherent vagueness in the definition of substantial and significant, it indicates that a licensing official can, in fact, exercise judgment and exercise some discretion--

Justice O'Connor: But that issue is not here.

Mr. Gross: --That... that's... it's correct.

I'm just--

Justice O'Connor: I thought we were just... I thought we took the case to decide whether the requirement for prompt judicial review means prompt judicial decision at the end of the day or just prompt access to the review.

Mr. Gross: --And that--

Justice O'Connor: There's a split of authority on that point.

Mr. Gross: --Yes.

And that is--

Justice O'Connor: And that's what we took the case to decide.

Mr. Gross: --Yes.

Justice O'Connor: Not whether there's substantial discretion or not.

Mr. Gross: No.

No, that's... I'm just trying to counter their argument, but certainly it really doesn't matter if there's discretion of not.

It's our position that even if there's not discretion, there needs to be a prompt judicial determination.

The licensors are subject to many pressures.

They're... they're humans.

It's a human situation and as the Tenth Circuit recognized, these businesses are very unpopular.

These businesses can be subject to a... the discretion in... in the decision.

And there needs to be a prompt--

Justice Scalia: I'm not... I'm not sure whether that... that helps or hurts your case.

What... what I find really peculiar is that if, you know, some homeowner has another child, need... needs to put in a new bedroom in the home, that person has to go through the normal zoning procedures and get... you know, get... get approval from the... from the electrician licensing board and everything else and then go through judicial review.

Likewise, if a new hospital seeks to locate, they... they have to go through zoning and all the other approvals and then through normal judicial review.

And... and what you're arguing is that somehow adult bookstores are... are so significant to the... to the life of the community, because of the First Amendment, that... that we have to give them special treatment.

You know, I... I have to wait 2 years before I can put in my bedroom, but the adult bookstore goes right to the head of the line.

That seems to be very strange.

And if... if that's where we've arrived at, we... we ought to retrace our steps perhaps.

Mr. Gross: --Well, I would... those are laws of general application, and certainly an adult bookstore, if it went through the normal process, would have to go through the same process as any other bookstore or any other commercial business or... or the residential person adding an addition.

In this case they've created a special burden upon adult bookstores.

The city... if the adult bookstore opens or any bookstore opens and doesn't follow along with these... with these particular--

Chief Justice Rehnquist: But the... the only burden is as to location, is it not?

Mr. Gross: --There's additional burdens in terms of licensing fees, inspections, applications.

There's additional burdens for hours of operation, for... cabarets and arcades have additional restrictions, regulations that don't apply to this store.

Chief Justice Rehnquist: But those... those really don't raise First Amendment concerns, do they, the fact that you might be limited in your hours, you couldn't go past 2:00 p.m.... 2:00 a.m.?

Mr. Gross: Arguably they... they raise First Amendment concerns in terms of time, place, and manner arguments, and I think there may... there's a case out of the Ninth Circuit.

It may be before this Court on a cert petition with regard to an hours operation.

But they arguably raise that there are additional burdens.

Just like in FW/PBS, there was an additional burden placed upon these stores on... by virtue of the content of the material that is sold and distributed from the bookstore.

Now, there's been many proceedings in State court in this case and that's... that's what we've talked about.

The court... in fact, there was an injunction issued and the State has the power to enforce laws of health, safety, and welfare against the bookstore.

Justice Ginsburg: How about the sales tax?

You're still operating without a sales tax license, but you're selling things.

Mr. Gross: We... we have worked out an agreement with the city where they do pay the sales tax.

They did not grant the license, but we have managed to resolve that issue.

The store has been collecting sales tax and has been paying the sales tax.

But the city... and at the current time, the city has not moved to follow up on their... their nuisance case in State court to enjoin for not having a sales tax license.

Of course, that... that is based upon the... whether the definition of a store is adult or not adult.

But the city retains the power to... to enforce the law through nuisance cases, just like any other case, in time... with regard to health, safety, and welfare of businesses.

Justice Ginsburg: Not enforce the licensing law.

Enforce the secondary... go after the secondary effects nuisance laws.

Mr. Gross: They could enforce those too.

The license... the zoning law would be a secondary effects law, and there... and at this point there is no injunction in State court.

The city is not proceeding on that case at this point, in which there's an injunction issued based upon the State court order... excuse me... the Federal court order.

That injunction was reversed on appeal in the State court.

There's been litigation on all different fronts in this case, in State court, district court, municipal court, as well as the Federal court.

Of course, we're here on the Federal case.

Justice Ginsburg: It sounds like you've got a lot of access.

Unknown Speaker: [Laughter]

Mr. Gross: We... it's... you can file a lawsuit.

I mean, there's... certainly you can... you have a right to file a lawsuit everywhere you can, and we've... we've... there has been lawsuits filed by both the city.

And the city had access on the... on the injunction case.

There was a stay denied, in fact, after... after the injunction was issued.

I mean, this business has been fighting to stay open.

It's been fighting and has stayed... in fact, stayed open unlike the case in Waukesha and Pap's, you know.

I mean, it's clear municipalities have taken every opportunity to try to regulate these businesses, try to put in every obstruction possible with regard to getting these businesses to... to be closed down.

Now, the issue... the answer to the question before this Court is that the essential constitutional requirement... and that was identified in... in the FW/PBS case as an essential requirement... is that prompt judicial determine does actually mean prompt judicial... does mean prompt judicial determination without an actual--

Justice O'Connor: It didn't say it in... it said prompt judicial review, whatever that meant.

Mr. Gross: --That's correct, based upon Freedman.

And if... if we take it back to Freedman, you read Freedman and Freedman does... did provide a right of access, a right of appeal and talked about judicial review interchangeably with prompt judicial determination, disposition, and so forth.

Now, without an actual judicial disposition, the administrative officials will have the power to shut down an entire business, not simply a single work of art, but it will be an entire business.

If there's an error... if there's an error with regard to... to what is... what the licensing official says, that's why prompt judicial review is so important in this case.

The erroneous deprivation of the speech rights will... will cause irreparable injury, and that's the core policy behind the Freedman case.

Now, in the absence of prompt judicial review, the... the status quote will be silenced.

In this case, the bookstore went to court and get... got the access, but... and the trial court will be understandably reluctant to alter the status quo of silence.

And that is essentially the default position of any trial court.

So without an explicit statement from this court with regard to the second prong of Freedman, it's not... I think it's difficult to assume that a State court with its heavy docket will actually provide a prompt decision.

Justice Ginsburg: Is there any experience in that regard?

This ordinance has been on the books for a time.

Have the State courts been dragging their heels?

Mr. Gross: Well, yes, this law was enacted in 1993.

It's been amended many times.

In this case, the State nuisance action was filed in January of 2000, and the district court issued its order in September of 2001, and that order was reversed in February of 2003.

That's the normal course of... of events in the State court litigation.

The city did not move for a preliminary injunction.

They did move for contempt.

It took a few months to get the contempt heard, and once the contempt was heard, it came out in favor of the bookstore.

So that's... that's the experience in this case.

This is the only adult business that's ever existed in the City of Littleton.

There's never been one before.

There were apparently a couple of massage parlors about 10 years ago.

And the city has put--

Rebuttal of J. Andrew Nathan

Chief Justice Rehnquist: Thank you, Mr. Gross.

Mr. Nathan, you have 2 minutes remaining.

Mr. Nathan: Unless there are any questions, I have... I feel no need for rebuttal.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Nathan.

The case is submitted.

Attribution:

The Oyez Project

Featured:

City of Los Angeles v. Alameda Books, Inc. - Oral Argument

Fri, 09 Jan 2009 14:50:27 +0000

Case:

City of Los Angeles v. Alameda Books, Inc.

Media File:

00-799_20011204-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF MICHAEL L. KLEKNER ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in Number 00-799, the City of Los Angeles v. Alameda Books, Inc.--

Mr. Klekner.

Mr. Klekner: Mr. Chief Justice, and may it please the Court:

Following its 1977 pioneering study, the City of Los Angeles enacted a, in 1978 a comprehensive zoning ordinance regulating the location of all types of adult business activities in the city.

The ordinance defined eight business activities and required that they each be separated from each other by 1,000 feet.

Notwithstanding the clear intent of the city's ordinance in 1978, it became apparent that the ordinance could and was being interpreted to permit more than one adult business in the same building.

This has been described by plaintiffs as a drafting error inadvertent loophole, but it was an ambiguity, and it became necessary to amend the ordinance in 1983 to remove that ambiguity, thereby--

Unidentified Justice: Do we know if, at the time the ordinance was enacted... 1977?

Mr. Klekner: --'78, sir.

Unidentified Justice: '78.

Do we know if, at that time, there were businesses like the one at issue here, i.e., a place where they have both sale and rental and viewing--

Mr. Klekner: I presume--

Unidentified Justice: --Do we know if those businesses existed in that form in 1978?

Mr. Klekner: --I believe they did.

I don't believe--

Unidentified Justice: All right.

Mr. Klekner: --that the study specifically analyzed specific combinations in one building.

Unidentified Justice: All right.

Mr. Klekner: That wasn't the purpose of the study.

Unidentified Justice: Well, your clients didn't have businesses like that.

Your clients just had one or the other, wasn't it?

What did they start off with?

I'm sorry.

Mr. Klekner: Our clients are innocent.

[Laughter]

Unidentified Justice: The businesses regulated here did not offer both.

Which did they offer when the ordinance was initially passed?

Mr. Klekner: I'm sorry, I did not hear the question entirely, sir.

Unidentified Justice: When the ordinance was initially passed, which of the two types of business did they offer?

Mr. Klekner: Well, these businesses started in the late eighties, early 1990's, either as a bookstore or as an adult arcade.

Unidentified Justice: That's what I'm asking, which... which?

Mr. Klekner: But it was well after the adoption of the ordinance.

Unidentified Justice: Which did they start as, a bookstore, or as an arcade?

Mr. Klekner: My recollection is that each... I think it was Highland Books started as a adult arcade, and the reverse was true for Alameda Books.

It started as a bookstore.

Unidentified Justice: Did your evidence in '78 or any evidence since then specifically address the question of whether the combination of more than one form of business at one location has any measurable effect on, you know, the deleterious effect that you measured?

Mr. Klekner: No.

The studies did not specifically look at combination of adult businesses in one place, or in one building.

They looked at the clustering effect in the city's various communities.

Unidentified Justice: Am I wrong in thinking that the study which you rely on, the 1977 study, did have as one category bookstore/arcade.

It had as discrete entities the massage parlors, the adult theaters, and the adult motels, but it was my understanding that the arcade plus bookstore, or video sales shops, that those were together in that 1977 study.

Mr. Klekner: The answer is yes and no.

That phrase appears several times in the study and in certain conclusions, but if you look at the... at certain of the questionnaires that were sent out to various businesses, community groups, the individual businesses were separately identified.

In other words, a bookstore, peep shows, movie theaters, theaters, massage parlors.

Unidentified Justice: Well then, is there nothing to what we're told, that the... this combination of video sales plus viewing is common and, indeed, an arcade can't survive as a stand-alone business, that the combination of, you can see it, and if you want it you can buy it, was common?

Mr. Klekner: Well, the issue of separateness, and whether a business, an arcade and a bookstore can, could, or should survive separately is off the table.

It was not part... there was a stipulation that the... that that would not be considered.

That's not before the Court.

As the record now stands, I guess the Court would have to presume, as did the trial court and the court of appeals, that survivability, economic viability of separate businesses or combined isn't an issue for this Court'--

Unidentified Justice: Well, each of these businesses was one or the other of those things and operated on that basis alone for how long?

Mr. Klekner: --Several years.

I can't--

Unidentified Justice: Do you know whether they operated at a profit or at a loss?

Mr. Klekner: --We never did any discovery on that, so the answer is, we have no way of knowing.

Unidentified Justice: But they did it for a couple of years, anyway?

Mr. Klekner: Correct.

Unidentified Justice: They were only an arcade and there was no selling going on when they were initially launched?

Mr. Klekner: It's my understanding that they might have sell... excuse me, sold some books, or what-have-you, but their primary business was having a series of video booths where you could watch adult movies.

Unidentified Justice: I get the opposite impression.

Maybe I was misled by the briefs.

I thought they had always operated as a combined business.

You say that's wrong?

Mr. Klekner: Not based upon the facts as I understand them, sir.

Unidentified Justice: Pardon?

Mr. Klekner: Not based upon the facts as I understand them, that... and I believe in 1991 it was Alameda Books that became both, and it was I think 1992 that Highland Books became both.

I might be off by a year or so, but there was a point in time where both... where each location became both adult business activities.

Unidentified Justice: I'd like to ask you... I'll assume with you for the moment you don't need any evidence.

I suppose you don't imagine... forget the evidence question.

All right, I take it that this ordinance... and I'm also assuming it, assuming this, you could have a particular place, 5,000 feet of books, or you could have 5,000 cubic feet of books, or you could have 5,000 cubic feet of arcade, but you couldn't have 5,000 cubic feet of both, all right.

Now, my question is, what's the theory behind that?

Mr. Klekner: The theory is the solution, not the facts.

If you go from jurisdiction to jurisdiction, the facts tend to support the same conclusion, that concentrations of adult businesses cause secondary effects.

How do you solve that problem?

And the city's decision was, because of the clustering effect, we termed it like a farmer's market type of effect for adult businesses, that dispersal was the solution.

Square footage, you could have 5,000 square feet of this, or maximum, is a different solution, based upon, New York did that in their solution.

They decided that the space limitation, square foot limitation was appropriate for New York.

That was not part of the solution for Los Angeles.

It was a complete dispersal of--

Unidentified Justice: All right.

Now, if, in fact, there is no space limitation, I would repeat my question, that it seems a fortiori if you can have a bookstore of gigantic size, or an arcade of gigantic size, but you can't have the two together, even of a little size, so I don't... I'm not talking about evidence.

I'm assuming, though, you have to have some theory, and the theory has to be a reasonable one, and it can't just be we want to censor everything, so what's the theory?

Mr. Klekner: --The theory is simply the solution adopted by the city of Los Angeles was to disperse.

If, in fact, we were faced with the megastore concept that, you know, the Wal Mart of adult bookstores, then that would be a different problem, that we could address in the future, at least as I understand this Court's precedent, but that's what we were faced with in 1977.

We were faced with the need to protect the city's neighborhoods from a lot of smaller businesses, if you will, and the solution was, we'll trade size, if you will, for dispersal.

New York, for example, said 500--

Unidentified Justice: But it still doesn't answer the question, exactly.

If the city wanted to address the concentration of adult businesses, certainly the 1977 study likewise addressed that, didn't it?

Mr. Klekner: --Correct.

Unidentified Justice: But now we're talking about an ordinance that doesn't focus on the concentration of adult businesses but, rather, the combination, because the city doesn't want the business to break into two parts, even though it tried to operate as one business, and I guess the 1977 study didn't address the combination, the effects of a combination of focuses in a single business, whereas your ordinance does.

Mr. Klekner: Well--

Unidentified Justice: As opposed to a concentration of businesses.

Mr. Klekner: --There are several responses to the question.

The first is that, as you... as I understand how you use the term, business, you're talking about a corporate organization or a single proprietorship.

That is not what the city's ordinance deals with.

Unidentified Justice: --operated as a single store, a single business.

Mr. Klekner: From the city's perspective, it is illogical, or not reasonable to say, for the city council to say, you know we have a problem here, on LaSeneca Boulevard, because we have two many adult businesses together, so we're going to require them to disperse.

There is no issue as to how we define these adult businesses.

That's not before the Court.

Unidentified Justice: Well, what if the ban were, you can sell adult VHS tapes but not Beta tapes in the same store?

Mr. Klekner: We haven't done that, and--

Unidentified Justice: Well, it's the same thing.

Can you break it down any way you want and say, it's fine because we're concerned about the--

Mr. Klekner: --Because we are concerned with the overall effect we have broken down the ordinance to its local components.

We have not tried to somehow slice and dice definitions so that you have several different types of retail adult establishments.

Unidentified Justice: --Do all of the categories that you have in the ordinance exist in the real world out there, video arcades only?

Mr. Klekner: Yes.

They did in 1977.

They did in 1991.

Unidentified Justice: Adult bookstores only--

Mr. Klekner: Correct.

Unidentified Justice: --without arcades in them--

Mr. Klekner: Correct.

Unidentified Justice: --and so forth, every one of the categories, adult movies only?

Mr. Klekner: Correct.

Each of these definitions, if you will--

Unidentified Justice: When you started out, though, there weren't all that many tapes.

There were books, adult bookstores.

Now, isn't the video much more prevalent today--

Mr. Klekner: --Actually, it's my under--

Unidentified Justice: --and you seem to say that the combination of this list, you think of a bookstore, nowadays one can browse, one can even go to a cafe and have coffee, and all that, or go to a record shop and listen to the tape and then buy it.

That combination of, I view it and then buy it or not, that seems to be a natural combination, unlike having half of my establishment a massage parlor and the other half a book shop.

Mr. Klekner: --The problem with your real-world description of a Barnes and Noble is, it doesn't exist in the adult entertainment world.

The evidence that was before the trial court was that the books, the magazines, the sex toys, the novelties, are all shrink-wrapped.

You cannot go into an adult bookstore, sit down and have your Starbucks, and browse through the material.

Unidentified Justice: And you don't prevent them... you don't prevent these stores from allowing customers to preview the films before they decide whether to buy them, the stores that sell adult films.

The ordinance doesn't prevent them from allowing customers, at no charge, to view the films before they buy them, does it?

Mr. Klekner: If I understand the correct... the question correctly, no.

Unidentified Justice: Under the ordinance, can a customer come in and say, before I buy this film, I would like to see it, and the store manager says sure, go ahead, look at it first, then you can decide whether to buy it?

Mr. Klekner: For free?

Unidentified Justice: For free.

Mr. Klekner: Yes.

Unidentified Justice: The ordinance permits that anyway, doesn't it?

Mr. Klekner: We are talking about--

Unidentified Justice: But they want to charge for it.

Mr. Klekner: --And the machines that allow you to view up to 60 clips, if you will, from various adult movies, or you go to another machine in another booth, you can... I want to see that entire movie right there, as opposed to the clips.

Unidentified Justice: What is your principal argument in opposition to the rationale in the court of appeals?

I have the feeling we're not letting you make the principal argument here that you wanted to make.

Mr. Klekner: The principal problem with the court of appeals decision is, of course, how it requires... what it requires, the use of secondary effects and how it is discounts, if you will, or disregards this Court's precedent, is effectively what the court of appeals has said.

Not only must we have empirical evidence of secondary effects in general, which the city does have, but you must also show that in this particular case this combination contributes to that secondary effects, which I submit is going to be, on an empirical basis, next to impossible to do.

The third--

Unidentified Justice: If it's next to impossible to do, why should you be allowed, under the First Amendment, to do it?

I mean, it sounds as though you're kind of making an argument from spectral evidence here.

You're saying, well, the evidence that we've got doesn't demonstrate the problem that we're addressing, but we ought to be able to address it anyway.

I mean, isn't that what it boils down to?

Mr. Klekner: --The problem we were addressing was, is there a correlation, to use the term you used, the word you used in Barnes--

Unidentified Justice: Yes.

Mr. Klekner: --between the adult businesses and secondary effects, do they cause a problem.

We have documented that.

Unidentified Justice: And you've documented it, but as I understand it, you've documented it with reference to adult businesses which were not at the time defined or identified as necessarily being businesses that offered only one service, as opposed to a business like these, that offers two, so that the evidence, as I understand it, did not address the issues that is before us now.

Mr. Klekner: But it did address that issue, because it is not reasonable to assume that if you have two businesses side by side in the same block, causing secondary effects, that it can require them to disperse, which is entirely--

Unidentified Justice: Yes, but we're... I think we're playing with words.

You're talking about two businesses side by side, and you were measuring the effects back in '78 of businesses side-by-side.

This is one business.

It's not side-by-side.

It's one business that sells two things within the same storefront.

Mr. Klekner: --But there's no evidence one way or the other--

Unidentified Justice: Isn't that your problem?

Mr. Klekner: --I don't believe it is... it should be a problem.

Unidentified Justice: You measured... you measured the effect of a video store... what do you call these, arcade store, and a bookstore side-by-side, and you found that that was deleterious, and the problem is that you did not measure what the different effect would be if you knocked down the wall between them.

Is there any reason to believe that that would make a difference?

Mr. Klekner: That's the whole point that the city's been trying to make all along.

There's no difference in effect.

You can't assume--

Unidentified Justice: Well, you don't know--

Mr. Klekner: --less or more.

Unidentified Justice: --How do you know that, any more than I know it?

I mean, I see your point when you say, look, if there are two different entrepreneurs on a block, each of them doing whatever they can to draw in clientele, the odds are they're probably going to draw in a greater concentration of people than one.

I mean, I will accept that, as at least intuitive.

Here, we're talking about one entrepreneur, and what seems at least intuitively arguable in the first place doesn't seem to be so obvious in the second instance.

Mr. Klekner: But you are describing this in terms of business organization.

Unidentified Justice: Yes.

Mr. Klekner: Which is not how the city's zoning ordinance works.

The zoning ordinance does not really care whether you're an L.L.P., a corporation on-shore or off-shore, or a sole proprietorship.

Under the reasoning that you're putting forward, I could open up at a location just because I have one company, as many adult businesses as I wish, or alternately, in order to get around the city's ordinance, the two side-by-side companies, businesses form a new corporation, they merge, now we have one corporate entity, ergo, we're home free.

That's not--

Unidentified Justice: And the... but the likelihood that your 1978 evidence is going to bear on these various possibilities depends on more specific facts.

If the two side-by-side entities that merge are, on the one hand, a massage parlor and a bookstore, it seems sensible to say they're going to be drawing the same concentrations of people that they would have as separate entities.

But when you're talking about combinations like books and video, it isn't obvious that you're going to be drawing different concentrations of people, and I think what we're stuck with here is that your evidence, through no fault of Los Angeles in '78, but your evidence just doesn't address the question as specifically as we have it before us now.

Mr. Klekner: --If you look at the nature of the businesses, you come to an arcade to stay there and look, and when you leave that arcade, you have a different frame of mind than if you went to the bookstore, got your shrink-wrapped magazine, put it in a brown paper bag, and went home, so that's one logical deduction you can make from all of the evidence that's before you.

Unidentified Justice: Isn't it an equally logical deduction that by looking at the cover of the shrink-wrapped magazine and watching part of a video clip, or a video clip of something that you ultimately buy, you're going to be left in about the same frame of mind in either case?

Mr. Klekner: No.

I think after watching 60 clips from adult business, from adult videos, as opposed to the cover of a shrink-wrapped magazine... the only reason--

Unidentified Justice: Aren't the... maybe the magazine covers are dull, but I--

[Laughter]

--assumed they were pretty racy, and if you look at 60 covers and 60 clip... I don't know, that's cutting it pretty fine.

Mr. Klekner: --Justice Souter, they're not live action.

Unidentified Justice: Mr. Klekner--

Mr. Klekner: That's the difference.

Unidentified Justice: --Mr. Klekner, your question presented seems to be quite narrow.

It says, is a city zoning ordinance which prohibits the operation of more than one adult entertainment business at a single location, including an adult bookstore and an adult arcade, invalid because the city did not study the negative effects of such combination?

Mr. Klekner: Correct.

Unidentified Justice: It seems to assume the city did not study the combination but, rather, relied on judicially approved statutory precedent from other jurisdictions.

I assume that's some reference to the Hart case from the Carolinas.

Mr. Klekner: Correct, North Carolina.

Unidentified Justice: Because the Ninth Circuit said that wasn't suitable reliance, is that right?

Mr. Klekner: Well, basically what the--

Unidentified Justice: The Ninth Circuit, I thought, thought that wouldn't do it because Hart addressed the health effects--

Mr. Klekner: --No, what the Ninth--

Unidentified Justice: --of the arcades, rather than the effects on crime.

Mr. Klekner: --What the Ninth Circuit effectively said was, there was some doubt whether Hart would survive scrutiny under this Court's Renton decision, but we are certainly confident that under Ninth Circuit precedent it's not a valid law.

The purpose of Hart--

Unidentified Justice: I don't know, it just struck me in reading the question that it was pretty much limited to whether they were right about whether you could rely on the Hart decision.

Mr. Klekner: --Hopefully not.

The city in 1983 specifically relied on its findings in 1977, the study that led up to the original ordinance, which as I said is not at issue.

That ordinance is reasonably... comparatively reasonable, according to plaintiffs.

The problem is... well, the issue with Hart is, Hart was decided in 1979.

It said that the city's '77 study, just as we--

Unidentified Justice: Before the adoption of this amendment?

Mr. Klekner: --That's correct, that in 1979, our study supported a North Carolina statute prohibiting more than one adult business in the location, that that was a sufficient evidentiary basis.

Confirming what the city council thought--

Unidentified Justice: The Ninth Circuit thought that Hart relied on the negative health effects of the arcade.

Mr. Klekner: --We are less... we, the city, is less concerned with the factual differences than with the legal reasoning and the fact that it fully supports, and should have been considered for that purpose by the Ninth Circuit, as validating the intent and purpose of the original ordinance and '83's amendment.

Unidentified Justice: Well, what we're getting down to is just how precise a particular study or a particular decision has to be.

I mean, does it have to be word for word what the city is talking about, or can the city draw reasonable inferences, if it affects A, it also affects B?

Mr. Klekner: That's what hopefully the... well, that's what the city has been trying to do, but again, it goes back to, you know, if you look at your precedents, when a city has these problems, the logical... the logical thing for the city to do is say, ban them.

We can't.

It's a violation of the Constitution.

We accept that.

That's what Renton says.

If you can't ban them, you should be entitled to a reasonable opportunity to experiment.

Unidentified Justice: And where I'm a little confused is, at the beginning of this segment of the argument, when we began focusing on this question, I thought you said something to the effect that we can't show this empirically, and I was surprised.

I thought you would say, look, this isn't rocket science.

If you have just a shoe store, and the shoe store all of a sudden starts to sell clothes, you're going to get more people.

That's the end of it.

Mr. Klekner: But--

Unidentified Justice: I thought that's what you were going to tell, but you--

Mr. Klekner: --When you... well, maybe I misspoke, but when you want to get into the empirical evidence of, are you a bad actor, this particular business is a bad actor, it's a very detailed nuisance type of analysis, and when you have these combinations of adult businesses, or side-by-side adult businesses, and you try to do that same analysis, the immediate thing that is going to occur, the first thing that is going to occur, it's not me, it's my neighbor, it's not me, it's this other part of the business.

We can't be expected to provide for a legislative scheme that detailed particularization of each possible permutation and combination of the problem.

That's exactly what Young and Renton stand for.

Unidentified Justice: --Let me ask you--

--Why doesn't--

--Go ahead.

No, please.

Let me ask you just one general question.

We often have said, the cities can rely on general experience of other cities and other studies, and so forth and so on.

Are there a lot of ordinances out there that follow the pattern of this particular ordinance, that would prohibit a single business from operating both a video arcade and a bookstore in the same location?

Mr. Klekner: There are some, Justice Stevens.

There are others that would permit such combinations, depending upon how the city that's... a particular jurisdiction analyzed the solution.

Unidentified Justice: But there are a substantial number who are similar to the one that we're talking about today?

Mr. Klekner: I won't use an adverb to describe the amount.

There are some.

I don't know if it's substantial or not.

Unidentified Justice: That's an adjective.

Mr. Klekner: Excuse me, yes.

Unidentified Justice: May I go back to Justice O'Connor's question, because she asked how the Hart facts could help you.

As I understand it, the facts in that... number 1, the basis for municipal action in that case was public health, and it was public health based on the sexual activities that were going on inside the booths, and as I understand it, Los Angeles in effect has an ordinance that requires open booths, lights on, freely seen... the booths can be freely seen from the front of the store, and so on, so it seems to me that Los Angeles has taken steps to preclude the health problem that that earlier case addressed and, if that's so, how could that earlier case support the Los Angeles ordinance?

Mr. Klekner: Well, again, the Hart reading of facts in that decision, again go to the fact that these combinations cause problems, and that the city's ordinance... excuse me, the city's study supported the inference that it's okay to... the solution is to separate these businesses.

Unidentified Justice: Yes, but the Hart... as I under... maybe I'm wrong, but I thought the basis for the governmental action in Hart was public health based on the activity that was going on in these booths.

Mr. Klekner: In part, yes.

Unidentified Justice: Yes, so it seems to me that it's off point for you.

Mr. Klekner: If there are no further questions, I'd like to reserve the remainder of my time.

Thank you.

Unidentified Justice: Very well, Mr. Klekner.

Mr. Weston, we'll hear from you.

ORAL ARGUMENT OF JOHN H. WESTON ON BEHALF OF THE RESPONDENTS

Mr. Weston: Mr. Chief Justice, may it please the Court:

At the time we filed our briefs, we knew of no ordinances similar to Los Angeles prohibiting the simultaneous inclusion of an arcade and retail sales within one establishment, other than the one that was in Hart v. Edmisten.

At the time the city adopted it, it itself... let me rephrase that.

At the time the city adopted it, the only one that apparently existed in the United States was the one in North Carolina and, subsequent to the city's adoption, as far as we knew, there were no additional ones throughout the United States.

This is an enormously unique and unusual approach to a problem apparently not supported or shared by the experiences of other cities.

Unidentified Justice: Do you know of any other cities that had the experience of businesses such as the two involved here, which were originally involved in one sex pandering activity, and then, after the ordinance was passed, went into a second one instead of opening up a separate store?

Mr. Weston: Justice Scalia, you'll--

Unidentified Justice: I mean, you know--

Mr. Weston: --You'll--

Unidentified Justice: --they may be unique, but the situation that they confronted may be unique as well.

Mr. Weston: --You'll pardon me for not adopting the reference of the Court in phrasing the nature of the business, but in fact the opposite is quite true.

Respondent's businesses at all times, as is made clear in the joint appendix at pages 19 and 20, as discussed at great length at page 6 of respondent's brief, particularly in footnote 6, at all times operated their arcades in addition to retail distribution, retail dissemination on the premises, in the same establishment of sexually oriented materials.

Unidentified Justice: That's not how I read those pages.

Shall we turn to them, page 20 of the appendix?

Mr. Weston: Please.

Unidentified Justice: Highland Book was issued a picture arcade police permit.

Prior to June of 1991 the only adult type of business use of Highland Books was its picture arcade, which at all times exhibited exclusively adult video tapes.

Mr. Weston: Right.

Unidentified Justice: This is the affidavit of the owner of both of these businesses.

Mr. Weston: That's correct.

Unidentified Justice: Mr. Wiener, right?

Mr. Weston: Yes, that's correct, Justice Scalia, but the point, the use of the term, adult business, was in the way that Los Angeles defined a use, and that if the Court will continue a little bit further--

Unidentified Justice: But that's the only thing that's relevant here.

Mr. Weston: --No, with all respect, Your Honor.

Up until sometime in 1989... well, let me phrase it this way.

For a considerable period of time in California, law existed such that the term, substantial numbers of retail materials... that was the operative term which separated a... an adult bookstore from a nonbookstore.

In other words, if one... one could operate the bookstore and carry a certain amount of adult material and not be denominated adult.

Unidentified Justice: Was he considered really another business?

Mr. Weston: That's correct.

Unidentified Justice: It was ancillary to the other business?

Mr. Weston: That's correct.

Unidentified Justice: Right.

Mr. Weston: Up until a very recent time in Los Angeles history, one could carry up to 49 percent of materials in one store and not be deemed to be an adult bookstore.

Unidentified Justice: This was a Los Angeles County ordinance--

Mr. Weston: No--

Unidentified Justice: --you're referring to now?

Mr. Weston: --No, what I'm referring to is California court decisions which had interpreted the phrase, substantial number, amount of retail stock in trade.

Unidentified Justice: In the county ordinance?

We're not talking about a State law, we're talking about a county ordinance?

Mr. Weston: It wasn't a law, Your Honor.

In other words, the California courts of appeal had construed the term, substantial portion of the stock in trade, to mean anything less--

Unidentified Justice: Why did they... why were they... why did they construe that term?

Where did the term come from?

Mr. Weston: --The term came... was an identical terminology utilized in many, many, ordinances throughout the State of California.

There was a vagueness challenge brought to it, and the court construed the term to mean a preponderance, more than 50 percent of stock in trade in order to avoid the vagueness.

That--

Unidentified Justice: This was a phrase used in a number of different city and county ordinances--

Mr. Weston: --Absolutely, Your Honor.

Unidentified Justice: --in California?

Mr. Weston: Absolutely, and in fact it's interesting to note, because we've spoken about Hart this morning, that the North Carolina statute in Hart was one that pegged the definition of a retail bookstore as a preponderance.

In other words, unless the store carried 51 percent of its stock in trade as adult materials in Hart itself, it would not qualify as an adult bookstore, and--

Unidentified Justice: And that's what you think Mr. Wiener meant when he said in his affidavit, prior to June of 1991 the only adult type of business, the only adult type of business use at Highland Books was its picture arcade which at all times exhibited exclusively adult videotapes?

Mr. Weston: --Yes, Your Honor.

Unidentified Justice: And you think he had in mind that no more than 49 percent of other business was--

Mr. Weston: If I may read--

Unidentified Justice: --That's what the next sentence says.

Mr. Weston: --Yes.

Thank you, Justice Stevens.

The next sentence, Justice Scalia, prior to June of 1991, the majority of items available for retail sale at Highland Books were of a nonadult variety.

Unidentified Justice: That's why the only adult business he was doing there was the other one.

They were of a nonadult variety.

Mr. Weston: But that's--

Unidentified Justice: He's not saying we were selling adult books, but selling less than 50 percent of adult books.

He said the only other business we had was a nonadult business.

Mr. Weston: --Justice Scalia, forgive me, I can only tell you what the circumstances were.

The phraseology that was utilized tried to use the terminology, the confusing terminology that Los Angeles used in terms of its description of what a use is, and Mr. Wiener at the time sold and displayed vast quantities of sexually oriented retail materials in the same stores, but under the L.A. ordinance at the time, it did not constitute an adult use.

Unidentified Justice: Well, I appreciate your testimony to that effect, but what his affidavit clearly says is that the only adult business he did prior to 1991 was the exhibition of adult videotapes.

The majority of the items available for retail sale were of a nonadult variety.

Mr. Weston: Forgive me, Justice Scalia, I don't want to belabor the point--

Unidentified Justice: Okay.

Mr. Weston: --but that's not a fair reading of it.

Prior to June of 1991, the only adult type of business use, the type of business use at Highland Books was its picture arcade.

That is defined exclusively, that term refers exclusively to 1270 of the Los Angeles zoning ordinance which defined a use and labeled a use a business, and the only way that one became an adult business and therefore a separate use was if one's stock in trade was 51 percent or more adult.

Mr. Wiener's was not.

It was substantial, but it was not a preponderance, and therefore the notion that this existed as an arcade bereft of and separate from any retail use is simply neither accurate factually nor supported by the declaration that was offered.

Unidentified Justice: I don't understand what this 51-49 pertains to.

Does it pertain--

Mr. Weston: Stock in trade of the retail establishment.

Unidentified Justice: --Well, and it means that if 49... if less than 51 percent is adult material, you're not--

Mr. Weston: It's not... at the time, in Los Angeles, it was not characterized as an adult use--

Unidentified Justice: --As an adult business.

Mr. Weston: --Adult use or business, that's correct.

Unidentified Justice: Right, okay, but it doesn't mean that if you have 51 percent in one adult business and 49 percent in another adult business, the 49 percent is not an adult business?

Does it mean that as well?

Mr. Weston: That is correct.

The 49 percent of adult retail material did... acted to... let me... if I may phrase it the other way.

51 percent of stock in trade at a business in Los Angeles, if it was adult, made that store adult, even if it was 20,000 total items, and virtually, and nearly 10,000 of them had nothing to do with sexually oriented material.

Unidentified Justice: Mr. Weston, I understand that that division, that that was by inventory not by sales.

Mr. Weston: That's correct, Justice Ginsburg.

Unidentified Justice: Because one of the problems was, you had lots of books, dull books that nobody was going to buy, and that you had... that was what you had for 51 percent, and then you had the stuff that people bought, and that was the 49 percent.

Mr. Weston: The record does not reflect that, Justice Ginsburg.

That may have been the fact although, of course, the opposite may have also been true.

Unidentified Justice: But it's true that it would not have been considered an adult bookstore so long as they maintained that 51-49.

Mr. Weston: That's correct, and if I may, as in Hart, Mr. Wiener's initial businesses, as they were initially constituted, did not conflict with the multiple use provision, notwithstanding the fact that 100 percent of the videotapes viewed in them were adult, and 49 percent or up to 49 percent of the retail items available for sale were also adult.

Unidentified Justice: But can I--

Mr. Weston: That did not constitute two adult uses under California law at that time, and that is exactly what the law was in Hart, that it was perfectly permissible to have 100 percent adult arcade material, and 49 percent retail books, videos and so forth, and that would not have conflicted with the prohibition in Hart.

Unidentified Justice: --Could you... can you explain... I'm just trying to get back to the main point here, at least as I understand it, which may--

Mr. Weston: Yes, Justice Breyer.

Unidentified Justice: --And don't assume I know a lot of the detail that you know.

I want to start this naively, so I take it what they're saying is, look, we have a zoning ordinance.

We have to have some way of defining what's a single business.

If it were a liquor ordinance and we said, selling liquor wholesale is one thing, selling it at a bar is another, so that's two uses, not one.

If it were a meat store which said, over-the-counter is one thing, at the restaurant is another... of course we could do it a million ways.

Mr. Weston: Certainly.

Unidentified Justice: But we have to do it some way, and so forget whether there's evidence or not.

Just let us do what's reasonable here, and this is one, and by the way, if it were a different kind of ordinance, if it were a cubic foot limitation, the fact that they counted it as two separate things rather than one, would cut in your favor, but here it happens to cut against you.

Mr. Weston: Well--

Unidentified Justice: But they say, either way, we're just trying to have a reasonable definition.

All right, now your response is what?

Mr. Weston: --Well, initially.

I think Your Honor... Justice Breyer, you have characterized fairly in some sense the city's position, because the city basically says, so logistically, if it's an adult business it generates secondary effects, and if there is secondary effects and there is adult business regulation not amounting to a ban, we can do anything we want, and courts are directed not to look meaningfully at it, and it simply gets dealt with as a valid ordinance.

But the problem with what Los Angeles has done is that, unlike what would be logical, or unlike what most zoning agencies do, which is to take a combined business such as Your Honor posits and zone it according to the most intense of the combined uses, Los Angeles, for example, makes reference to the fact that it deals with service stations and auto repair places differently, but the remedy that Los Angeles selects for that is not to say, an auto repair place must be here, and 1,000 feet away there must be a place where you... I've said it poorly, but that you cannot have an auto repair place here, combined with a place that pumps gas, even though there are separate uses.

What Los Angeles logically does, as every city does, is permit the combination and then zone the combination use according to the most intense of the combined uses.

Unidentified Justice: No, but that's a bad analogy, because auto places are not... try liquor.

Try thinking of it liquor, and probably they could.

They'd say, we only want one liquor license in 1,000 feet, and if you have a bar you don't have a shop, and it then becomes less obviously unreasonable on its face.

Mr. Weston: Let's take a--

Unidentified Justice: So let's assume it in their favor that way, and then argue against it.

Mr. Weston: --Sure.

Let's take a look at that one.

But what does Los Angeles do?

It doesn't ban the combined use, it simply again... I don't mean Los Angeles.

In your hypothetical, in the bar-restaurant, the zoning regulation would be appropriate for the more intense use, I assume--

Unidentified Justice: But this whole question is something that's secondary.

I thought the question before me is whether or not Los Angeles is reasonable in saying that the combined use draws more people without having a study.

I fully understand that you have an objection to the Government bifurcating your business.

Leave that off the table, so the only question is whether or not this whole business draws more people, and whether or not there's an empirical basis for it.

Isn't that what I'm supposed to decide here?

Mr. Weston: --I'm not quite sure about drawing more people.

I don't think that that was what the... that was not the focus of what Los Angeles was concerned--

Unidentified Justice: You mean, you had the arcade because it didn't draw any more people?

Mr. Weston: --No, it wasn't more people, it was the notion for a variety of reasons, and if we return to Young v. American Mini Theatres, there is at least... there's some indication in Young that it's not simply a question of people, but rather, what is the perception from the outside world?

Unidentified Justice: Well, but not simply a question of people, but surely the kind of secondary effects that have been spoken of in cases depend upon people's activities, and the people aren't 10 miles away, they're somehow associated with the business.

Mr. Weston: Certainly.

I... that's unquestionably reasonable, Mr. Chief Justice, but the articulation by Los Angeles in its statement of legislative purpose, which appears at... it's at page 74 of the appendix to the petition for certiorari, and I'm truncating it, but two or more adult entertainment businesses, operated as a single commercial enterprise.

This concentration of adult entertainment businesses tends to have an adverse impact on the neighborhood in which they are located.

The hypothesis, the asserted harm, was from a combination of adult businesses, and what was the evidence on which Los Angeles relied for this proposition?

The sole evidence was a study that measured not, as has been brought out earlier, whether there were harms unique, there were special harms that developed from a combination of two businesses within a single unitary establishment, but rather, whether there were secondary effects that resulted from the clustering of a dozen, or 15 or 20 unrelated adult businesses.

Unidentified Justice: At some point, Mr. Weston, don't you think the legislature is entitled to draw what might be common sense inferences from the studies that it made, and that it doesn't have to have empirical evidence for every single thing that it does in the ordinance?

Mr. Weston: Of course not, Your Honor, and for example, if the city, as it suggests, which we do not agree with, really thought... I don't mean to cast aspersions on the city.

If, in fact, the city's sense that this adult bookstore-arcade combination was so unique and so unusual, even though there's no evidence in the record of an arcade standing alone anywhere int he United States, except as part of an adult bookstore, but if it was so unique that they really hadn't dealt with it, one could understand that it would be appropriate, as the city has, to accord zoning treatment to this combined use, which is exactly what was done here.

The combined use is not free from the zoning requirements of the City of Los Angeles.

This combined use is 1,000 feet away from any other adult use.

It's 500 feet from any of the protected sensitive areas, and it is within the limited commercial zones which the city says it has to be.

Unidentified Justice: Mr. Weston, incidentally on the other point, I reviewed your footnote.

I tend to read footnotes quickly.

You were right on our other point.

Mr. Weston: Thank you, Justice Scalia.

Unidentified Justice: On--

Mr. Weston: I'm going to go home now.

[Laughter]

I thank the Court for its courtesy.

[Laughter]

This is a memorable day for me.

Unidentified Justice: --It seems to me that if you're objecting to the municipality's use of this other study, which didn't treat combined stores, you... it seems to me you have to tell us why it would be likely that combining the diverse businesses under one roof could make any difference.

I mean, you have situation 1.

You have a whole block full of adult businesses, a video store, a movie house, a bookstore, blah, blah, blah, okay, the whole block full.

Situation 2, you have the same block.

They're just not different stores.

It's just one big... you know, it's just Adult, Inc., and on one side there's the, you know, the arcade, and then the next part of the store there's the movie house, and so forth.

Why in the world would there be any difference in the two situations as far as its impact upon the community is concerned?

Mr. Weston: There are a number of responses to that, and they require a bit of articulation.

They're a little bit different, and as I was starting to say before in terms of Young v. American Mini Theatres, the sole evidence, essentially, in Young v. American Mini Theatres was an affidavit submitted by a man by the name of Mel Ravitz.

In that case, one of the things that Ravitz stressed... and this was, of course, the first concentration zoning, the first case that upheld discriminatory zoning in a sense of motion picture theaters according to the nature of the content of the materials exhibited there, and the basis was, of course, that the reason for the legislation was not because of the materials but, rather, because of some unique secondary effects associated with them, and this was a very unusual ordinance.

It was an anti-Skid Row ordinance originally to which Detroit, long after the original ordinance had been adopted, added adult businesses, and Ravitz' point was this, that there's a self-fulfilling prophecy that develops in a neighborhood when residents or prospective new residents or business people or whatever come into a neighborhood and they see lots and lots and lots of different storefronts, let's say soup kitchen, a rescue mission, pawn shops, adult bookstore, Sam's Adult Arcade, or even your excellent idea, the adult emporium--

[Laughter]

--and as a result, this then becomes a self-fulfilling prophecy of the imminent decline of a neighborhood.

So from the Young perspective, from the sense of declining property values, it becomes very different from having the eight or nine adult businesses to which Your Honor referred to close proximity in one block, or two blocks, which all of a sudden says tenderloin, or red light district, or whatever, as opposed to one single storefront that says, Highland Books, and which does not cause the visual--

Unidentified Justice: But it doesn't have to say that.

I mean, they're entitled to, you know, to divide the storefront into each of its components and have a sign on one that says, you know, adult videos, and then in the next bay have a sign that says, movies, and then the next bay, adult books, and so forth.

Mr. Weston: --But that's no different--

Unidentified Justice: I don't see any difference between--

Mr. Weston: --But that's no different, Justice Scalia, from a single 7-11 store that says, bananas for sale, 99 cents today, rutabagas a dollar and a half, and Coca-Colas on sale here.

It's--

Unidentified Justice: --Mr. Weston, in that respect, would you be making the same argument that you are now making for tapes plus arcade, sales of tapes plus arcade, if the combined uses were a massage parlor and an adult hotel?

Mr. Weston: --That's a very fair and good question, and I've been thinking about that one for a long, long time, and I think the easy answer to it is simply that with respect to the massage parlor there would be no First Amendment interest to protect, and therefore it wouldn't raise the question.

Now, that's a cute lawyer's answer.

It doesn't really help, I know, what you're, obviously what, Justice Ginsburg--

Unidentified Justice: Well, I guess you'd say the same thing about the adult motel.

Mr. Weston: --Absolutely, and--

Unidentified Justice: Although some people might consider that expression.

Mr. Weston: --Absolutely, and in fact I did say that in FW/PBS v. City of Dallas, when one of the three components was an adult motel, but interestingly... and I'll try to address the combination question, but interestingly, and this is one of the things that makes the L.A. study suspect to begin with, is that of the 88 adult uses that were focused on by the police department and the planning department in Hollywood, 41 of them... I beg your pardon.

Of the 9... of the 88 uses, 41 of them were either massage parlors or adult motels.

Unidentified Justice: Well, I don't think that question is fairly subsumed in the question presented.

I mean, I don't think there was any challenge below to the validity of the '77 study so far as it went.

Mr. Weston: No, you're exactly right, Mr. Chief Justice, there wasn't a challenge specifically to it, but as we--

Unidentified Justice: There wasn't a challenge specifically to it.

Are you suggesting there was some unspecific challenge to it?

Mr. Weston: --The specific challenge that was made was whether the study supported the city's stated purpose that combining a bookstore and an arcade in one establishment, in one physical structure, caused the kinds of problems, the only problems which the study evaluated and found and, in fact, in the city's own papers it makes clear, and we set this forth in page 2 of the respondent's appendix, we note to it, rather, in joint appendix 109, that on the contrary, the--

Unidentified Justice: Respondent's--

Mr. Weston: --I beg your pardon.

I've been confusing.

Unidentified Justice: --The red brief, in page 2?

Mr. Weston: Forgive me, Mr. Chief Justice.

I've misspoken.

At joint appendix, the beige document, page 109, there is language from the study that points out several respondents commented that the adverse effects, secondary effects, are related to the degree of concentration, and that one freestanding business may have no effect, and that's really what we're talking about.

Justice Ginsburg, with respect to your question, could there be some issues with respect to combined uses, our great fear in terms of the parsing argument that we have made is that if the city's novel and rather adventurous piece of legislation is upheld, that the next step, as inevitably as night follows the day, will be to parse these business into smaller and smaller kinds of subcomponents that--

Unidentified Justice: But you gave an answer that I didn't think was just a glib lawyer's answer.

You said books, tapes, those come under the First Amendment.

Mr. Weston: --Yes, Your Honor.

Unidentified Justice: Massages don't.

Mr. Weston: Right, and I--

Unidentified Justice: Yes, but what about combining a motion theater and a bookstore?

Mr. Weston: --I would... one would think that the same kind of analogy as we have offered here would be present, that with a motion picture theater and a bookstore there would appear to be no logical suggestion that the two of them would generate any greater secondary effects than the motion picture theater alone.

When we got into area--

Unidentified Justice: Well, look at it a little differently.

I understand your argument about arcades and bookstores being functionally connected, but with bookstores and motion pictures, I think the outburst argument has quite a lot of appeal.

If you had them separately owned and it would violate the ordinance, why should it not violate the ordinance if you combine them?

Mr. Weston: --Well, I'm not sure that the separate ownership is what constitutes the vice aimed at at the ordinance.

It's rather that by the city's unusual definitional situation of calling different media presentations or different uses different businesses, in the same sense like at a 7-11 the dairy section is a business and the--

Unidentified Justice: It seems to me if you have a 7-11 and an A&P next door, it's the same problem as if they're owned by the same owner.

I don't follow the argument when you get to motion pictures and bookstores.

It seems to me that those two businesses operated by separate owners would have precisely the same secondary effect as a single business operating both a motion picture and a bookstore.

Why am I wrong on that?

Mr. Weston: --I'm not aware of any data that would suggest that the combination would... the combination in, Justice Stevens, in your hypothetical that a theater and a bookstore together, I'm not aware of any data that would lead one to reasonably conclude that the combination of a retail use in a motion picture theater would generate more secondary effects than what I assume would be the more intense use, the motion picture theater operating alone.

Unidentified Justice: Well, you conceded a moment ago--

--That may be true... go ahead.

Go ahead.

You--

--That may be true if you interpreted secondary effects as just this look that the neighborhood has by having the businesses strung along the block, but secondary effects is also the number of people come who loiter, who drive around, who concentrate outside.

Then that is a secondary effect that it seems to me would be increased by the two uses.

Mr. Weston: I think that's fair, Justice Kennedy.

Certainly, if secondary effects is nothing more than patronage, then I'm not sure that I could argue, but that's not what the identified and hypothesized secondary effect is on the part... from the city, and in analyzing these ordinances, as I understand the Court's doctrine, one looks at the specific legislation and the asserted stated purpose, asserted statement of purpose, which in this case is whether the concentration of... I should say, the combination of adult businesses within a single unitary establishment causes the same kinds of secondary effects found by a clustering of 12 or 15 or 20 unrelated adult businesses in a very small area in terms of the neighborhood.

That was the city's hypothesized, hypothesis.

Unidentified Justice: Yes, but isn't one way to pose that question to pose it the way Justice Kennedy did?

The question is, does the particular combination increase the degree of clientele, because we know that the greater the clientele, the greater the crime rate is going to be, so there seems to me to be a factual basis for saying that the clientele is a kind of a surrogate measure for those very effects that the city can legitimately try to counteract.

Mr. Weston: With all respect, Justice Souter, I must question the hypothesis that it is the clientele that will cause the problems.

I would--

Unidentified Justice: The amount of clientele is associated with the problems.

It may be that that clientele is preyed upon by other people who come in, but the fact is, I think, that the study shows an association between the number of people concentration to come to these businesses and the secondary effects of crime, et cetera, that the city can do something to prevent.

Mr. Weston: --I--

Unidentified Justice: That's the hypothesis that I'm--

Mr. Weston: --I really don't think so in this instance, because if that were, in fact, the hypothesis of the city, surely, with all of the thought that they have given to this, there would have been an absolute size limitation or a square footage limitation that was part of the legislation to deal just with that problem, but they haven't.

As one of the questions before inquired, suppose it was a 50,000 square adult bookstore or an arcade or a cabaret.

Unidentified Justice: --Maybe they could do that.

You know, we have a one-step-at-a-time principle, that the State doesn't have to do everything it possibly could in order to validate what it has done.

Maybe it should prohibit any more than 250 arcades showing sex videos at one place.

It just hasn't done that yet.

It will get there when that becomes a problem, I assume.

Mr. Weston: And I suppose we'll be back here then having to address that.

Unidentified Justice: You seem to be arguing that we should decide this case on the assumption that the city's evidence, as it now exists, would not be a sustainable basis for an ordinance saying, you can't have two... you can't have 25 different adult uses in one arcade.

Do you want us to decide... are you saying that you're going to go for broke, that we've either got to sustain that proposition, or you lose?

Because I'm suggesting... I mean, my question was mean to suggest that there's a factual difference in degree.

It may be very intuitively obvious that if you put 20 of these uses in one business, you're going to bring in a lot of people, going to have a lot of problems.

It may not be intuitively obvious, and you may need some specific evidence simply by combining videos and books, it may not be intuitively obvious that that is going to create the problem, so I'm suggesting a difference of degree.

Do you reject that?

Mr. Weston: Not at all, Justice Souter.

Of course there may be--

Unidentified Justice: Thank you, Mr. Weston.

Mr. Klekner, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF MICHAEL L. KLEKNER ON BEHALF OF THE PETITIONER

Mr. Klekner: Thank you.

In our reply brief we cite heavily... in our reply brief we cite from the appellee's brief in Young v. American Mini Theatres.

Footnote 7 to our brief quotes the purpose for clustering, which is to attract people.

Basically, you're attracting unattended males on a frolic on their own.

Mr. Wiener, in his, one of his declarations at joint appendix 230, why does he combine businesses?

To attract patrons.

Typically, unattended males on a frolic on their own.

There is no qualitative or quantitative difference in the effect.

Unidentified Justice: Well, if you combine buying, they get out of the store.

If you have only the arcade, they'll linger longer.

Mr. Klekner: Well, that's... they're... you cannot expect an ordinance to solve everything in--

Unidentified Justice: I'm just questioning whether there's going to be more of a problem if you have the stand-alone arcade, where to see the film to the bitter end you have to stay there, but you really like it, so you buy it, and you get out quicker.

Mr. Klekner: --Well, but that's an argument to getting rid of the arcades.

The purpose of these ordinances is to spread out--

Unidentified Justice: But you can't--

Mr. Klekner: --spread out the patronage, to make sure that you don't have this clustering, this magnet effect.

You know, if you want your sex toys and your videos and your books you go to Third and Alameda because that's where everybody goes.

You want to avoid that.

That's the whole purpose of this, so it makes no difference, inferentially, one way or the other if they're side by side or in the same building, and inferences in this Court's precedent doesn't require that we have conclusive evidence, empirical evidence.

Paris Adult Theaters, Nixon v. Shrink, case after case says you can rely on inferences, and if the issue is fairly debatable... this is a debatable issue, you draw... you give deference to the legislative judgment because you can draw different inferences from the same evidence.

That is what's been done here.

We are... thank you.

Chief Justice Rehnquist: Thank you, Mr. Klekner.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Barnes v. Glen Theatre Inc. - Oral Argument

Fri, 09 Jan 2009 14:49:38 +0000

Case:

Barnes v. Glen Theatre Inc.

Media File:

90-26_19910108-argument.mp3

Related Transcript:

1990_90_26_argument.xml

Transcript:

Argument of Wayne E. Uhl

Chief Justice Rehnquist: We'll hear argument next in No. 90-26, Michael Barnes v. Glen Theatre, Inc.--

Mr. Uhl.

Mr. Uhl: Thank you, Mr. Chief Justice, and may it please the Court:

In Indiana under Indiana code, Section 35-45-4-1, a person cannot leave his home naked and walk down the street.

He cannot give a political speech in a park without--

Justice White: Without being in trouble.

Mr. Uhl: --That's correct.

[Laughter]

He would get in trouble, Your Honor, if he walked into a public place such as a bar or a bookstore without his clothes on.

Once inside the bar, he could not walk naked up and down the aisles in the bar, nor could he sit down at a table without his clothes on, nor could he stand up on the bar or on a stage at the front of that public establishment without his clothes on.

Justice Scalia: He can evidently sing in an opera without his clothes one.

Mr. Uhl: Well, our point, Your Honor, is that the plaintiffs say that if he starts dancing when he gets up on that stage or up on that bar, then he can do anything... or anything that can be defined as dancing... then he's privileged under the First Amendment to appear naked, notwithstanding Indiana's public indecency statute.

Justice Scalia: What about seeing an opera?

Am I correct in my understanding of what Indiana law is?

That there is an exception to the nudity law somehow for artistic performances, is that right?

Mr. Uhl: The Indiana Supreme Court, in order to avoid an overbreadth challenge, has held that the statute does not affect activity which cannot be restricted by the First Amendment.

And the term that the court used in that case was "a larger form of expression".

So--

Justice Scalia: Which includes opera but not go-go dancing?

Mr. Uhl: --That's correct, Your Honor.

Unknown Speaker: Is there... where does that come from?

Justice Scalia: Your Honor, the court looked at cases such as Southeastern Promotions where this Court in implied that the production of Hair, for example, needed to include nudity.

And I think, drawing from that line of cases, presumed that the First Amendment--

Justice Scalia: It is the good-taste clause of the Constitution?

How does one draw that line between Salome and the Kitty Cat Lounge?

I don't--

Mr. Uhl: --The line is drawn the same way the line is drawn anytime conduct is involved, and that is whether or not the conduct communicates.

If the conduct communicates, then the conduct is speech.

If the conduct does not communicate, then the conduct is not speech.

Justice Kennedy: --Communicates what?

An idea?

Mr. Uhl: Communicates a particularized message or an idea.

Justice Kennedy: What about a particularized message and an idea of sensuality?

Mr. Uhl: That could be communicated.

However, the plaintiffs in this case did not establish... did not carry their burden of proving that that was the particularized message that they were sending by their dancing.

Justice Kennedy: Because they were not good enough dancers?

Mr. Uhl: No, it didn't have anything to do with the quality of the dance, Your Honor.

It had to do with--

Unknown Speaker: Well, could a dance communicate that?

Mr. Uhl: --Yes, a dance could communicate that.

Justice Kennedy: But this one didn't?

Mr. Uhl: These dances did not.

Justice Kennedy: Because they were not good enough dancers?

Mr. Uhl: No, Your Honor, it wasn't the quality of the dancing.

Go-go dancing can be good or bad, but it either instance it's speech.

Chief Justice Rehnquist: Well, Mr. Uhl, are you conceding that if conduct does communicate, then it can't be regulated at all under the First Amendment?

Mr. Uhl: No, Your Honor, our second issue in the case is that even if this dance is speech, then it can be restricted under the First Amendment.

And basically we've drawn on two lines of cases for that argument.

First, we've argued that our statute is a general criminal prohibition on public nudity that applies... that is no directed at speech and is content neutral in the sense that it is irrelevant what message might be sent by the conduct.

Under the case... under last term's case of Employment Division v. Smith which involved drug use, this Court held that a general criminal prohibition such as that would be valid even as applied to native Americans who claimed that their use of peyote was a religious practice protected by the First Amendment.

Justice O'Connor: But in light of the Baysinger and other decisions of your State's courts it does seem that what's left is not content neutral in all respects.

Mr. Uhl: Your Honor, I think the respondents have over construed Baysinger when they say that Baysinger created some kind of a speech exception.

Justice O'Connor: Well, but you said today that Indiana has held that the statute doesn't apply to certain performances.

Mr. Uhl: Indiana's held that only if that is required by the First Amendment.

Justice O'Connor: Well, that seems to be the position that the court has taken, and in light of that, how can you take the position here that the statute is content neutral?

Mr. Uhl: The Indiana Supreme Court did not consider the possibility that this statute might be a reasonable restriction on speech.

That question was not raised in the case... in the Indiana Supreme Court case.

So basically Baysinger is nothing more than a tautology.

Baysinger simply said that the public nudity statute can prohibit public nudity to the extent allowed by the First Amendment.

Our argument here is that under this Court's regulability cases, Employment Division v. Smith or the other line of cases, the reasonable time, place, and manner cases, that this activity can be restricted consistent with the First Amendment.

And therefore, it does not... the Baysinger decision does not stop this Court from holding that that is true under the First Amendment.

Justice White: Suppose the dancers complied with the statute, and... would you say that then the dancing is protected by the First Amendment?

Mr. Uhl: Well, our second argument assumes that the dancing is speech.

Justice White: No, no.

If they complied with the statute and still danced, they would not be dancing nude.

In that event, would the dancing be protected?

I would suppose you would say no.

Mr. Uhl: The protection of the dance doesn't depend on whether or not the clothing is worn for the purposes of our second argument.

Justice White: How about the first argument?

Mr. Uhl: Well, the clothing doesn't change the nature of the dance either.

That's correct.

The clothing doesn't make the dance speech and doesn't protect it as speech.

The dancing is either speech or not speech.

Justice Kennedy: Well, Justice White's question puts this point.

Could you prohibit this performance... you don't want to call it a dance... if the women were clothed?

Mr. Uhl: Not on the basis of--

Justice White: Of the first... I thought... the dancing wouldn't... clothed or unclothed--

Mr. Uhl: --Oh.

Justice White: --it wouldn't... the message would not change or the lack of it wouldn't change.

Mr. Uhl: No, our position is that the dancers would still have to show that if they took off their clothes that there's an extra message.

Justice Kennedy: No, that's no... suppose the dancers were clothed and suppose the State of Indiana or a police official attempted to prohibit that performance, a clothed performance, would the First Amendment protect the performer?

Mr. Uhl: No, not these performances in this case.

Justice Stevens: Then you're saying it would be permissible to pass a statute prohibiting tap dancing?

Mr. Uhl: Unless tap dancing were shown to be speech under the First Amendment, that's correct.

Justice Stevens: Well, but under your view it doesn't convey any particular message so you could prohibit it.

Mr. Uhl: That's correct, Your Honor.

Justice White: Well, you might not be able to prohibit under some other provision in the Constitution.

You just say it wouldn't be protected by the First Amendment.

Mr. Uhl: That's correct.

Obviously due process and equal protection concerns would be--

Justice O'Connor: Could the State prohibit rock music?

Mr. Uhl: --Your Honor, this Court found in the Ward case that rock music is speech under the First Amendment, so no, it could not.

But--

Justice O'Connor: Well, how is it that music is protected but dance is not?

Mr. Uhl: --Music is different--

Justice O'Connor: Could you explain that?

Mr. Uhl: --Music is different from dance in that the very nature of the medium is communicative.

But by the definition of dance that's been submitted by the respondents--

Justice O'Connor: Do you think some of the rock music played in the Ward case conveyed a message?

[Laughter]

Mr. Uhl: --An artistic message.

Justice O'Connor: An artistic message?

Mr. Uhl: An artistic message.

Yes, Your Honor.

Whereas not all dance conveys an artistic message.

Justice O'Connor: Well, I suggest not all music does either.

Mr. Uhl: That may be a case-by-case determination and this Court hasn't addressed that except in Ward to say that music in general is communicative and therefore is speech under the First Amendment.

Justice O'Connor: Well, dance in general might be communicative under that test, might it not?

Mr. Uhl: We would resist that, Your Honor, because dance can be so broadly defined as to include perhaps what I'm doing here today.

Dance can be any--

Justice White: Song and dance.

[Laughter]

Mr. Uhl: --Well, not that kind of song and dance.

[Laughter]

The respondents have suggested that a production in which nudes simply stand nude on a stage would be dance or that if someone were to simply... rhythm is not important to the definition of a dance.

Improvisation can be dance according to the respondents.

Any movement can be defined as dance.

And if this Court were to hold that all dance as it's defined there is speech, then the First Amendment would be trivialized to include any kind of movement or motion that expresses some kind of emotion.

Justice Scalia: Why... what are you arguing about dance for?

Dance was not prohibited here, was it?

Mr. Uhl: That's correct.

Justice Scalia: These people could have danced to their heart's content so long as they had clothes on or--

Mr. Uhl: That's correct.

And our second argument assumes arguendo that the dance is speech and argues that even if it is speech that we can protect under the statute because that's correct.

The statute doesn't ban dancing.

It doesn't ban performances.

It simply requires that anytime a person in Indiana appears in public that vital areas of the body be covered.

And for that reason this is the type of general criminal prohibition that this Court... such as the one in Employment Division v. Smith... held can be applied consistent with the First Amendment, notwithstanding a claim that the conduct at issue is protected... is speech or religious practice under the First Amendment.

Justice Blackmun: --Mr. Uhl, I'm interested in one of your answers to Justice Kennedy.

Are we dealing with obscenity here?

Mr. Uhl: No, Your Honor.

There has never been a contention in this case that the dancing at issue is obscene.

Justice Blackmun: So the State stands by its concession that we are not dealing with obscenity?

Mr. Uhl: That's correct, Your Honor.

Justice Souter: If we were to find that an emotional communication as opposed to a particularized message were protectable, what would you then say to the argument on the other side that they simply cannot communicate the message in any other way except by nude dancing?

I think what they're saying in effect is that some kind of a medium-is-the-message argument.

Mr. Uhl: If the medium is the message, Your Honor, then it's our contention that the nudity is not an essential part of that particular medium.

The dance can be communicated just as effectively, or almost as effectively, with pasties and g-strings covering the vital parts of the body that are at issue under the statute.

And it's our contention that alternative means of communication are open to these plaintiffs and that the mere requirement of... that the certain parts of the body be covered is not essential to their communication.

Justice Souter: So you're saying they cannot define their activity by saying the medium and the message are identical and thereby evade the possibility of otherwise permissible First Amendment regulation?

Mr. Uhl: That's correct, Your Honor.

In one sense their claim that nudity is an inherent part of their dance is no different than someone who might be putting on a play and decide that the use of marijuana during the play is also protected because it's connected with this protected play.

I think the court would immediately reject that argument out of hand, that that kind of criminal conduct, even though it's in the context of a protected production, can be criminalized by a State.

Justice White: I suppose... you say that even if dancing nude might communicate a different message than complying with the statute, these particular dancers have never claimed or indicated that they were... had any such message to deliver I gather.

Mr. Uhl: That's correct.

One of the respondents in this case submitted an affidavit where she said that she intended to communicate and to entertain and then she stopped and didn't tell us what she intended to communicate or entertain.

And that respondent, respondent Sutro, also failed to submit any other evidence of the type of dancing that she wanted to perform.

She did not submit a videotape, as did some of the respondents, nor did she even just submit to the court a verbal or written description of the dancing that she wished to perform.

Justice Stevens: What... would the case really be different if the dancer had a sign up at... on the stage that said she was a member of a nudist colony and she believed it healthy for people to attend nudist colonies and some message with it and then said, I'll illustrate to you how nice it is to be nude or something like that?

Would that be a different case?

Mr. Uhl: No, Your Honor, that would be no different than the case in Florida of the sunbathers who claimed that they wanted to bathe out on the beach, and show--

Justice Stevens: But it's different in the sense that you have a particularized message, and the dance is suppose to dramatize this message that she's also got a sign stating it.

Mr. Uhl: --In terms of the particularized message, then it would be a different case.

You could very well--

Justice Stevens: Then you'd say that one would be protected, but as long as they don't put such signs up, it's unprotected.

Mr. Uhl: --It would be speech.

And whether it would be protected then is the question of whether the State can regulate it, and it would be our position that under this statute we can still require her to wear the minimal covering because... regardless of the fact that it's speech.

Justice Stevens: And why is that?

Mr. Uhl: Well, it's either because of the application of Employment Division v. Smith, because this is a general criminal statute, or it's by application of the reasonable time, place, and manner test that this Court has applied in other contexts.

Justice Stevens: Reasonable time, place, and manner being there's no reasonable time, place, or manner--

[Laughter]

--for this kind of dance.

Mr. Uhl: Your Honor, reasonable place in that the statute is limited to a public place.

Justice Stevens: Okay.

Mr. Uhl: And the Indiana courts have very carefully defined public place.

Reasonable manner in that this is a restriction simply on the manner of appearing, that is that there are certain parts of the body that need to be covered, and it's our position that that is sufficient narrowly tailored, just as the clothing on the dancers is narrowly tailored, to accomplish the State's interests in prohibiting public nudity.

Chief Justice Rehnquist: How about the O'Brien test?

Mr. Uhl: Well, this Court has found... in the Clark case the Court indicated that the O'Brien test is really no different than the reasonable time, place, and manner test.

We set them out separately in our brief, but basically it's the same test.

You look for a substantial government interest that is forwarded by the statute in a manner that leaves open alternative means of communication.

And I may not have articulated O'Brien precisely, but I think the Court indicated in Clark that they're basically the same test.

Justice O'Connor: Mr. Uhl, if there were a videotape of these performances, could the State ban outright the sale of the tape?

Mr. Uhl: No, Your Honor, because the videotape would not be live conduct, and the statute only goes to... and our First Amendment argument only applies to live conduct as opposed to depictions.

Justice O'Connor: Yes, I'm asking you whether a statute could withstand a First Amendment test if it tried to ban sale of the videotape of the performance.

Mr. Uhl: No, Your Honor, not unless the videotape were obscene.

Justice O'Connor: And why is that?

Why can you ban the real thing but not the videotape of it?

Mr. Uhl: This Court has always made a distinction between depictions of conduct and live conduct itself.

And I think that's because live conduct is something that is traditionally subject to State regulation and is something that more vividly presents the concerns that are at interest when the State try... legislates in this particular area.

The Court has always said that live conduct is to be treated differently.

Justice Kennedy: Are you saying that this is sexually explicit conduct and that that's a category that we can use to sustain the law?

Mr. Uhl: We're not arguing that it's a special category that therefore is excluded from the First Amendment.

However, I believe there is some support for the proposition that because this is sexually explicit speech that it may deserve a lesser level in a balancing test.

Justice Kennedy: And you have the LaRue case?

Anything else?

Mr. Uhl: Not off the top of my head, Your Honor.

There's another aspect of it that is also... falls into that kind of category and that is the commercial nature of the speech.

We've never argued here that because this is commercial-type speech that it therefore falls into the category of advertising.

But that doesn't change the fact that at least one of the respondents said that the only reason that she dances nude is in order to make more money.

And we think that in balancing the impact of the statute against the rights of these women to engage in this kind of conduct the court can take into account the fact that this is a speech that's done largely for a commercial purpose.

Justice Scalia: That's why Dickens wrote his books, too.

Mr. Uhl: Well, Your Honor, it's different.

Dickens wrote his book largely because he needed income, not only because he needed income, and there's a distinction there to be made.

Justice Scalia: You're sure about that?

[Laughter]

Mr. Uhl: I'm sure what Darlene Miller's intent was, Your Honor, and that was to make money.

Justice Stevens: Yes, but your supreme court distinguishes between the opera singer and this dancer and I suppose the opera singer wants to make money, too.

Mr. Uhl: That's true, although again the opera singer is in the position where that's not the only thing that she wants to do, but that the money is an important part of it.

So we can't distinguish this just on the fact that she's making money.

Justice Stevens: And are all the... how many performers are involved in this litigation?

Mr. Uhl: In this litigation I think there are three dancers who are actually a part--

Justice Stevens: And did all three of them say that was their only motive?

Mr. Uhl: --No, Your Honor, only Darlene Miller did.

We can infer, though, that Gayle Sutro who danced at the Chippewa Book Store had a commercial motive as well because there is evidence in the record that the reason she was dancing at the Chippewa Book Store was to promote a movie that was playing at the drive-in next door.

Justice Scalia: Yeah, but she may not have made the movie only to make money.

Mr. Uhl: That's true, Your Honor, and we didn't ban the movie.

We were only banning her coming in and promoting it nude.

Justice Kennedy: Are you really confident that we could make the distinction between dancing which is part of a greater form of artistic expression as opposed to dancing that is not artistic expression?

Who's to do this?

The legislature to do this?

Are we to do it, or both... kind of a joint venture?

Mr. Uhl: Your Honor, as in the case of obscenity where one of the issues is the artistic value of the work, trial judges and trial juries make the distinction under... in criminal prosecutions under this statute, just as in an obscenity case--

Justice Kennedy: But we have no settled jurisprudence.

We would be really striking out in a very new direction, would we not?

Mr. Uhl: --Well, Your Honor, there's... ever since Miller v. California, juries have been determining whether works that are charged to be obscene have artistic value.

So we believe that it's simply application of the same kind of test in this context.

I'd like to go through the reasonable time, place, and manner test just to make sure that all three elements of that have been presented here.

The... as I've said, this is a place restriction because it is limited to public places.

It is a manner restriction because it's a restriction on the manner of dancing, that is, nude or not nude.

In that way it's just like the rock music situation in the Ward case, where this Court held that the volume restrictions on that rock music were a manner restriction on it.

I have no doubt that the rock musicians would have said that the full impact of their music was lessened by the restrictions on the volume there, and the dancers here may very well say that the full impact of their dancing is lessened by the requirement of clothes, but that does not change the fact that this is a manner restriction.

The three elements of a reasonable time, place, and manner restriction are met here.

First, the statute is context neutral, that is, it is justified without reference to the content of the speech.

In fact, this statute applies regardless of whether there is speech involved, whether this is simply someone walking through the park or whether it's someone who is giving a political speech.

The second... the noncontent concerns here are very important.

The most important is the traditional requirement in our society that certain body parts be covered in public.

This goes back to the common law offense of public indecency and can be traced even further back in Western culture.

Justice Scalia: Excuse me, I should have jumped in earlier I guess.

I wish we could clarify exactly what the supreme court has said about nude dancing in the course of the theatrical production, because that does bear upon whether it's content neutral.

I mean, as I understand the law in Indiana, it isn't content neutral.

You can dance nude but only in certain... I don't know... high-toned kinds of productions.

Is that the test?

Mr. Uhl: As of now... all the supreme court has done in Indiana is said that the statute isn't overbroad and the reason the statute is not overbroad is because we assume... and I'm reading this in... we assume that the First Amendment puts limits on our ability to ban nudity.

And the way that assumption was stated in the Baysinger was we assumed that nudity must be tolerated in certain larger forms of expression.

Justice Scalia: Larger?

Mr. Uhl: Larger forms of expression.

Justice Kennedy: Some larger forms of expression meriting protection.

Mr. Uhl: Meriting protection.

Justice Souter: Would you defining the larger form of expression by particularized message?

Mr. Uhl: Yes, Your Honor.

Justice Souter: So if the particularized message distinction is not upheld, then you have no way of drawing the line between the higher and lower form.

Mr. Uhl: That very well may be true.

But if the Court holds that, then we still believe that this is a reasonable regulation upon the dancing.

Did I adequately explain the Baysinger decision, Your Honor, because I think that is important?

Justice Scalia: I gather you're saying that they don't really mean it.

That they're just saying, we're imposing that limitation because we think the Constitution requires that limitation and if the Constitution doesn't, then there isn't even that limitation on the statute.

Is that your interpretation of the case?

Mr. Uhl: That's correct, Your Honor.

The second element of the reasonable time, place, and manner restriction is whether the statute is sufficiently narrowly tailored.

The statute's definition of nudity is extremely narrow and carefully defined.

Furthermore, the Indiana courts have carefully defined the term public place.

For example, a situation where a single viewer goes into a booth and views a single dancer through a glass plate and closes the door behind him to do so, the Indiana Supreme... the Indiana courts have said that that is not a public place under the statute.

However, what we have in this case in the Chippewa Book Store is a ring of booths around a stage where a multitude of customers can watch the same dancers at the same time.

Justice Stevens: What's the State interest in that distinction?

If you have one customer, it's okay.

If you have ten, it's bad.

Mr. Uhl: Well, the State interest, Your Honor, is that the more this becomes an audience participation kind of a situation that the State's interest in regulating that kind of conduct increases.

Chief Justice Rehnquist: Why do they call this place a bookstore?

[Laughter]

Mr. Uhl: As I understand it, Your Honor, it is also an adult bookstore, that is, it sells pornographic materials in addition to offering this kind of booth entertainment.

Justice Souter: Mr. Uhl, I'm sorry to get out of sequence here, but I'd like to go back to a Baysinger point, lest I forget it.

And it's a question about the significance of Baysinger in relation to what this Court may hold.

If we do not sustain a distinction based on particularized message, so that we were to hold that the communication of some emotional content were sufficient to qualify for First Amendment scrutiny, would the effect of Baysinger be that this conduct would be allowed and that would be the end of the case?

Mr. Uhl: No, Your Honor, I think Baysinger would then very much be cut back, because if this Court were also to hold, as we've urged in our second argument, that we can still restrict this activity consistent with the First Amendment, then we can still do that.

Baysinger--

Justice Souter: So Baysinger would still be a tautology as you put it.

Mr. Uhl: --That's correct.

That's correct.

Justice Souter: Okay.

Mr. Uhl: The plaintiffs... back to narrowly tailored.

The plaintiffs have argued that we're required to carve out an exception to this statute based on the presence of consenting adults.

However, we've argued that that's not required.

First of all, that would be basically imposing a least-restrictive means test, which this Court has never required.

Second, consent is irrelevant, as in other public offenses such as prostitution or drug use.

Third, the concerns that the State is after in this particular kind of statute are even more prevalent in this type of business than in other type of businesses.

Finally, the statute does leave open alternative forms of expression, as I've argued previously.

The dancers have never asserted credibly that they... that their message is substantially changed or inhibited by the requirement that they wear pasties and g-strings.

Therefore, we would... we are asking that the Seventh Circuit decision in this case invalidating the statute as applied be reversed.

I would like to reserve the balance of my time for rebuttal, Mr. Chief Justice.

Argument of Bruce J. Ennis, Jr.

Chief Justice Rehnquist: Very well, Mr. Uhl.

Mr. Ennis, we'll hear from you.

Mr. Ennis: Mr. Chief Justice, and may it please the Court:

Nude dancing is sufficiently expressive to at least trigger First Amendment analysis for two independent reasons.

First, nude dancing is expressive, because performance dance is inherently expressive of emotions and ideas, and second, because nude dancing communicates a particularized message of sensuality and eroticism.

First, performance dance, like music, is one of the oldest forms of human communication and is inherently expressive of emotions and ideas.

In Ward, this Court found that music is expressive without bothering to determine whether the music at issue did or did not communicate a particularized message.

A particularized message test applies only to conduct that is not ordinarily expressive, such as flag burning.

Even that kind of conduct can be found expressive if in context it communicates a particularized message.

But the Court has never used that test to determine whether marching or picketing or other traditionally considered expressive forms of activity are expressive or not.

The Court's decisions made clear that if expressive... if conduct is otherwise expressive and protected by the First Amendment, the fact that the conduct involves nudity does not shed that protection.

For example, in--

Chief Justice Rehnquist: Mr. Ennis, would you concede that a State ban on nudity on public thoroughfares and sidewalks is constitutional?

Mr. Ennis: --Your Honor, I think it would trigger First Amendment analysis if it's intended to be expressive, but the State probably could regulate it because of the captive audience--

Chief Justice Rehnquist: Well, supposing they regulate it by prohibiting it?

Mr. Ennis: --They could probably prohibit it because of the captive audience problem or exposure to children, just as in Sable the Court said that although indecent speech is constitutionally protected, it can nevertheless be... regulated.

Chief Justice Rehnquist: So the vice in this statute as applied is that it takes it off the sidewalks and thoroughfares and regulates activity in a private--

Mr. Ennis: Well, it is effectively a private place.

It's called a public place, but it's a private building on private property that is enclosed.

Chief Justice Rehnquist: --What if your client had decided to perform a dance... this same dance... in a public park in Indiana?

Mr. Ennis: I think the State could prohibit that, because of the concerns as in Sable of a captive audience being forced to see a message they do not want to see or the possibility of children being present.

But what Sable makes clear is the State, in order to serve those interests, cannot categorically ban access to such speech by consenting adults, and that's all that is at issue in this case.

Justice White: Well, were children barred from all these places?

Mr. Ennis: Absolutely.

There's no dispute.

That's stipulated that this was only consenting adults.

ID's are checked at the door.

Justice Kennedy: You began by using a term... was it dance performance?

Mr. Ennis: Performance dance.

By that I mean dance which is intended as a performance in front of an audience, to distinguish that from recreational dance or dancing at home in your own room.

Justice Kennedy: Suppose someone wanted to increase business at the car wash or in a bar and they hired a woman and said, now, you sit in this glass case... and this is an adults only carwash--

[Laughter]

--you sit in this glass case and attract the customers.

Is that permitted?

Mr. Ennis: Your Honor, I think it would... if it was intended as expressive activity, if it was performance dance.

Justice Kennedy: No, it's just what I said.

The employer says this is the job, you is up there.

Mr. Ennis: I think that that would trigger First Amendment analysis.

Whether the State could ban it or not would depend on the State's justifications.

Justice Kennedy: Well, suppose he said, I've heard the arguments in the Supreme Court and you have to dance.

And she said, I can't dance.

And he said, just wander around when the music starts to play.

[Laughter]

Mr. Ennis: Well, Your Honor--

Justice Kennedy: I mean, that's the point, isn't it?

It's a question of what is performance dance.

What is it?

Mr. Ennis: --What is performance dance is a question in this case.

The main way that that is answered, if you'll look at the material cited in the briefs, Encyclopedia Britannica and others, is where there is an intention to perform in front of an audience through dancing.

That... the district court found as a fact, and that was not disputed here, that all of these respondents did intend to dance as communication and as expression.

That's a factual finding that's not at issue.

Justice Stevens: Well, even objectively I suppose you would say that any fool would say that there was a performance dance here, because there was dancing in front of people.

Mr. Ennis: Yes, that's correct, Your Honor.

Justice Stevens: Whether they intended to or not.

Mr. Ennis: Well, I think that's probably correct, Your Honor, but they did intend to.

Gayle Sutro's affidavit, for example, states that she is actually a professional dancer who has gone to a recognized dance academy, has a degree in both ballet and erotic dance.

Justice Scalia: Mr. Ennis, nobody is stopping her from dancing.

Suppose you win this point: dancing is expression.

They have not stopped her from dancing.

They have stopped her from going about nude, whether dancing or doing anything else, just as I suppose they have murder laws in Indiana which prevent people from killing people, whether in the course of dancing or not.

Now, would one have to analyze the Indiana murder law as a... as valid or invalid under First Amendment if the murder happens to be performed in the course of a public performance dance?

Would we have to consider that a First Amendment case?

Mr. Ennis: Well, let me turn directly to that, Justice Scalia.

That depends on the State's justifications, assuming this is expressive activity.

This statute cannot--

Justice Scalia: So your answer to my last question is yes, it does turn on the State's justifications.

Mr. Ennis: --It does--

Justice Scalia: That's a First Amendment case, if you kill somebody in the course of dancing.

Mr. Ennis: --If someone uses peyote or commits a murder for the purpose of committing... communicating or expressive activity, that would trigger First Amendment analysis.

But the State could nevertheless prohibit it.

And here's why, Your Honor.

This statute is not content neutral for two independent reasons.

First, the application of this statute to nude dancing is related to expression within the meaning O'Brien, and second, the statute as construed in Baysinger exempts other expressive activity precisely because of its artistic or expressive content or value and thus under Mosley and Raglan cannot be deemed a content-based statute.

First.

Chief Justice Rehnquist: The statute here, Mr. Ennis, isn't addressed to dancing at all.

It's addressed to public nudity.

Mr. Ennis: The statute in O'Brien was not... the statute in many of the cases, like the flag-burning cases, was not addressed to expressive activity on its face.

It was expressed only to the conduct of burning or mutilating the flag.

Justice Scalia: But the equivalent here would be addressing it to dancing.

In the flag-burning case, the equivalent to what happened here would be a statute that banned burning anything in the street, a flag or anything else.

And then people would have come in and said, well, you know, it's a ban on expression, because what I wanted to burn was a flag, and I think we would have said in the flag case... in fact I think we did say in dictum that if it was that kind of a statute it would be a totally different question.

And it's that kind of a statute you have here.

Mr. Ennis: Justice Scalia--

Justice Scalia: It's not nude dancing.

It's not dancing.

It's nudity, period.

Mr. Ennis: --Justice Scalia, the Court's opinion in O'Brien and all the flag-burning cases uses the same analysis.

It says the State must justify the application of an otherwise content-neutral statute to expressive activity for reasons unrelated to expression.

In this case, you can look at the State's briefs.

The State has acknowledged its fear that nude dancing is, quote,

"likely to inspire patriots to solicit sex from performers or contemplate rape or adultery. "

The State has admitted it has concerns about the effect of nude dancing on attitudes toward women and has argued that it should be free to ban nude dancing because it, quote,

"encourages activities which break down family structure and advocates adultery, licentiousness, prostitution, and crime. "

As Justice... Justice O'Connor's opinion in the Boos v. Barry makes clear these justifications are related to expression because they focus on the direct impact of speech on its audience and they are concerned with listeners' reactions.

Therefore, this cannot be considered a content-neutral statute, and that's why it is distinguished from the--

Chief Justice Rehnquist: Well, what if the dancer wanted to do kind of an Annie Oakley dance in the course of which she fired off a revolver at various targets around the room--

Mr. Ennis: --Yes.

Chief Justice Rehnquist: --and the State says that's a violation of our law.

You can't fire a revolver without a permit.

You can't do it in this kind of a place.

And the dancer says, well, I can't really get across the Annie Oakley message without firing off the gun.

Mr. Ennis: But, Your Honor--

Chief Justice Rehnquist: But the State then says, well, we have real fears that if you do it in a crowded adult bookstore you might hurt somebody.

That's certainly is talking about the application right there to the bookstore.

Mr. Ennis: --But it does not depend upon the listeners' reactions to the speech.

That's like setting a fire, perhaps burning a flag in an enclosed public building might be bannable because of the State's independent interest in fire safety.

It is unrelated to expression.

The State, as in O'Brien, has an interest in applying that statute to this expressive activity that is completely unrelated to the expressive activity.

Chief Justice Rehnquist: Well, why isn't the State's interest in banning public nudity unrelated to expressive activity?

It doesn't care whether expression takes place or not.

Mr. Ennis: The State has told us that it does care.

Chief Justice Rehnquist: Well--

Mr. Ennis: The State has told what its reasons--

Chief Justice Rehnquist: --Well, let's assume that the State has said hypothetically, we don't care what are the audiences' reactions.

We just don't think public nudity anywhere is a good idea.

Mr. Ennis: --Well, Your Honor, that would be a different case.

That is--

Chief Justice Rehnquist: So the State didn't advance quite the right justification here?

Mr. Ennis: --No.

Chief Justice Rehnquist: Is that your position?

Mr. Ennis: No, that's not my position, Justice Rehnquist.

There are two reasons why this is a content-based statute.

The first is the State did advance reasons, and the reasons it advances are related to expression.

The second though, is the Baysinger construction point.

In Baysinger the Indiana Supreme Court construed this statute so that it would permit some nude dancing in public and prohibit other nude dancing in public based solely on the State's subjective determination of whether that nude dancing had sufficient expressive value or artistic content.

Justice Kennedy: But before you get there, and this is an important point, but just on the last part about being related to expression, what about a noise statute?

Mr. Ennis: I think, Your Honor--

Justice Kennedy: Is that related to expression?

Mr. Ennis: --I think the noise point, for example, in your opinion for the Court in Ward, the Court found that controlling volume there was unrelated to the expression because it applied... no matter who was expressing the message and regardless of the State's agreement or disagreement with the views or the listeners' reaction to that.

Justice Kennedy: Well, why couldn't you say the same thing about nudity?

Mr. Ennis: You can't say that here certainly after the Baysinger construction, because the court in Baysinger makes clear that some nude dancing is permitted and others is prohibited based on the State's evaluation of its expressive value or artistic merit.

That's exactly what the State has argued over and over again before this Court.

Justice White: But there's no difference between that kind of dancing and the dancing in this case based on the effect on the audience, is there?

Mr. Ennis: I'm sorry, Justice White, I did not understand that question.

Justice White: Well, awhile ago you were talking about the effect on the audience.

Mr. Ennis: Yes.

Justice White: Do you think there's any difference between, say, opera and the dancing in this case, in terms of the effect on the audience?

Mr. Ennis: The State seems to feel there is.

The State seems to feel--

Justice White: I thought you were just talking about its idea of the artistic value rather than the effect on the audience.

Mr. Ennis: --The State seems to feel that if nude dancing is artistic, it has one effect on the audience and does not incite the audience to prostitution, rape, or adultery, but that if nude dancing is not artistic, it does have that effect on the audience.

Justice White: I suppose there are some things the State can prohibit even if... just because it has an effect on the audience.

What about shouting fire in a crowded room?

Mr. Ennis: Your Honor, I think that there are certainly some categorical exceptions to otherwise First Amendment protections that the State could argue here.

They have not.

That State's justifications here... they've said over and over again in their briefs, and in fact in the oral argument--

Justice White: Well, you just recited that the State thought that nude dancing would have some unsatisfactory on the audience and you say that's not permissible because that means it's really expressive.

Mr. Ennis: --It means that it is a content-based statute.

Justice White: Well, what about fire?

A fire in a theater?

Mr. Ennis: Fire in a theater has an effect regardless of whether the listeners agree or disagree with the message.

Justice White: Well, it depends exactly on what you say.

Mr. Ennis: Pardon me, Your Honor.

Justice White: It depends exactly on what you said.

You said, fire, rather than no fire.

Mr. Ennis: Your Honor, I think that there are... the distinction is that there what the State is concerned about is that the consenting adults in the audience will agree with this message, will follow what they take the message to be and will go out and have bad attitudes about women or commit prostitution, rape, or adultery.

It depends upon the State... the listeners' reactions of being persuaded by the message that the State wants to suppress.

That is not true in the shouting-fire-in-the-theater context.

It doesn't matter whether the people in the theater think there's really a fire or not.

There's a stampede and people get hurt.

That's a very different case.

Now, I think that Mosley and Raglan, which were the type of cases... the statutes discussed earlier make very clear that if a statute on its face or as construed exempts some expressive activity because of its content, then that statute must be deemed a content-based statute.

Justice Scalia: Mr. Ennis, what language... I've been looking at Baysinger... and I... it really does seem to me that all the Indiana court is saying is responding to an overbreadth argument.

The argument was that this statute would cover such things as the play, Hair, which can't constitutionally be covered and the Indiana Supreme Court just seemed to say, well, if it can't constitutionally be covered, it's not covered by the statute.

And you read that as a discrimination by the State on the basis of subject matter?

I... unless there's more explicit language in that opinion that I don't see.

That's all that I read into it.

Mr. Ennis: Your Honor, the opinion has the language you discussed and no more.

The way the State has described Baysinger in the Seventh Circuit and also here is that what Baysinger did was to say that nude dancing that has artistic content is--

Justice Scalia: Oh, well.

Mr. Ennis: --not within the statute and nude dancing without artistic content is.

Justice Scalia: Well, they shouldn't have described it that way.

Chief Justice Rehnquist: Are we to accept--

Mr. Ennis: No, they should not, but that is the State's justification for the statute.

Justice Scalia: --But we are dealing with an Indiana Supreme Court opinion, and I suppose the Indiana Supreme Court can speak for itself and it's not governed by what the attorney general recharacterizes it as.

Mr. Ennis: Well, certainly for purposes of this case the attorney general has represented what the State's interests are, whether accurately or inaccurately.

Those are the State's interests for purposes of this case.

And they... if you look at pages 10, 24 through 25 of the State's brief, they say over and over again that what Baysinger means is that if the dancing is artistic it's not covered by the statute.

If it's not artistic, it is prohibited by the statute.

In its oral argument in the Seventh Circuit, the State repeated this point over and over again.

Now, that brings me to another point, and that is we've been talking about whether there are justifications for this statute or not.

It is our position that the State has waived any right to attempt to justify application of this statute to respondents' dancing if this Court determines that that dancing is sufficiently expressive to trigger First Amendment analysis.

All through the Seventh Circuit, in 5 years of litigation, two levels at the trial court and two levels in the supreme court, the State never once attempted to justify application of this statute on the ground that it's a neutral statute of general applicability or it's content neutral or Renton analysis... none of those justifications whatsoever.

In fact, in oral argument in the Seventh Circuit, Mr. Uhl stood up and said, we don't have to try to justify this statute and we're not going to, because our position if simply that this dancing doesn't even trigger First Amendment analysis.

Even in its cert. petition to this Court, the Court... this State does not squarely argue that this statute can be justified.

Justice White: So we could leave... if we agreed with you on your first argument, I suppose, we'd just leave those other issues open?

Mr. Ennis: I think that's correct, Your Honor.

I think that this Court could rule that the respondents' dancing is sufficiently expressive to trigger First Amendment analysis and then rule that, as Judge Posner concurring and Judge Easterbrook dissenting, indicated that the State has waived any justification for applying that... this statute to these respondents.

Chief Justice Rehnquist: Mr. Ennis, the second question presented in the petition for certiorari is if nude dancing is speech whether Indiana's general public indecent laws are unconstitutional as applied to such dancing.

That surely brings... raises the justification issues.

Mr. Ennis: Well--

Chief Justice Rehnquist: Does it or does it not do you think?

Mr. Ennis: --I think it's a close question, Your Honor, to be quite candid.

Chief Justice Rehnquist: Do you think--

Mr. Ennis: If you look at their brief--

Chief Justice Rehnquist: --Well, I'm going to look at the question.

Mr. Ennis: --The question seems... it's ambiguous in my mind.

It could be construed that way or could not.

My main point is that all the way through the Seventh Circuit, the State didn't attempt to make such a justification, and they don't in the content of their brief.

Chief Justice Rehnquist: Did you raise that point in your brief in opposition to certiorari?

Mr. Ennis: No, the reason it was not raised in opposition is that it was not our understanding that the State had raised that point, since the text of their brief does not argue... Renton does not argue.

Clark--

Chief Justice Rehnquist: Well, you didn't have the text of the brief before you at the time you filed the brief--

Mr. Ennis: --Excuse me, I mean the text of the cert. petition.

Excuse me, Your Honor.

But let me say this though that even if the State is deemed to have raised that issue for the first time in its question presented in the cert. petition, there is no dispute that the State never attempted to justify this statute below.

It is the State's burden to justify application of a statute to expressive activity.

Chief Justice Rehnquist: --That might have been a consideration to be brought before us in considering the petition for certiorari, but you know our rule and in our Oklahoma City against Tuttle, anything that's nonjurisdictional that isn't brought up in the brief in opposition is waived by you.

Mr. Ennis: I know the rule, Your Honor, Rule 15 of this Court says that the Court has discretion to deem it waived if it is not raised in the brief in opposition to the petition.

And Court... of course the Court would have discretion to do that.

It would also have discretion in the circumstances of this case to say the issue was too important to be decided on such a sketchy record as we have here.

Chief Justice Rehnquist: Well, you don't think the opinions of the court of appeals are sketchy, do you?

Mr. Ennis: No, I don't think the opinions of the court of appeals are sketchy, but we didn't know until the State's main brief in this case what the State interests are to justify regulation of respondents' nude dancing.

They've posited now their interests.

They are content-based interests, because they depend upon the impact of the speech on the audience.

Let me turn for a minute to a point that the State did not raise in its oral argument but did raise in its main brief here: their argument that this statute can really be justified as a Renton-type statute, aimed only at secondary effects.

I think that that argument is totally inapplicable here for two reasons.

First, the ordinance in Renton by its terms focused only on secondary effects of certain specified businesses and did not prohibit or criminalize any expressive activity whatsoever.

This statute, by its terms, does not even mention secondary effects, has nothing to do with businesses of any type, and does criminalize and prohibit expressive activity.

Second, controlling secondary effects was the actual purpose in Renton.

Here, as the State candidly acknowledges in its brief, it is only a quote, "possible hypothetical purpose".

In Renton, it was clear that the Government was actually concerned with secondary effects and had reviewed studies and extensive evidence about that problem.

Here the State does not claim that the legislature was actually concerned about secondary effects or reviewed any evidence, and in fact, it is highly implausible that the secondary effects associated with adult businesses was a problem or a concern when this statute was first enacted in 1881.

Furthermore, although the constitutionality of this statute has been before the Indiana Supreme Court on numerous occasions, the Indiana Supreme Court has never even hinted that the statute aims at secondary effects.

Finally, the State's briefs here make crystal clear that the interests the State is advancing focus on the impact of this speech on its audience, on the listeners' reactions.

Accordingly, this is a primary effects case, not a secondary effects case.

One point I think is worth mentioning is that even if this decision is affirmed, the State of Indiana would be left with ample authority to regulate or perhaps prohibit nude dancing in a constitutional manner.

The State could certainly prohibit all obscene dancing, whether in public or in private.

It could... the State could certainly prohibit all obscene nude dancing.

That would not be affected by affirmance here.

That State could certainly under the Twenty-first Amendment prohibit dancing where alcohol is served, whether the dancers are nude or clothed.

The State could certainly regulate nude dancing under the Sable analysis in truly public places before unconsenting adults, captive audiences, or children.

And finally, if secondary effects were in fact a problem, the State under Renton could even zone, so long as it was a true zoning ordinance and was not a prohibition of a category of speech.

Justice Scalia: But subject to that time, place, and manner regulation, every community in Indiana would have to have some nude dancing, if an entrepreneur wanted to provide it.

You'd have to set aside a part of the community for nude dancing.

Mr. Ennis: Yes, Your Honor, I think that's--

Justice Scalia: The Constitution requires this.

Mr. Ennis: --I think that's what this... that's what is implicit in the Court's decisions in Miller and Sable.

Miller and Sable go to great, great careful links of attempting to decide what forms of sexual conduct the State can prohibit and what it cannot.

This is in effect and end run around Miller and Sable, because the State has conceded that this nude dancing is not obscene.

As Jenkins v. Georgia and other cases in this Court make clear, the mere fact of nudity does not equate with obscenity.

But here what the State is trying to do is without meeting the detailed requirements of the Miller test or the Sable test, nonetheless to categorically ban and eliminate an entire category of speech.

This is very different.

The artistic point here is very different from the artistic point in Miller.

Miller--

Justice Scalia: Miller was not action.

Miller was literature.

Mr. Ennis: --Right, but the Court's opinion in Miller I think has been understood to apply to live conduct and performance as well as to literature.

In Miller, the third prong of the test, of course, is an artistic prong test.

But that judgment is only reached once the court has already found that the speech is patently offensive and appeals to a prurient interest in sex and is, therefore, otherwise unprotected by the First Amendment.

The artistic merit test in Miller comes into save and give protection to speech that is otherwise unprotected.

Here, the State, as Justice Kennedy's question suggests, would be striking out on very new ground indeed.

Here the State would be saying that speech is only protected to begin with if it has artistic merit.

As this Court said in Hanaghan unanimously, what to one man is trash may to others have fleeting or even enduring values and it is not business of the State to determine which is trash and which is valuable.

The First Amendment leaves that judgment to the individual.

In fact as Justice Harlan wrote in Cohen v. California, one man's lyric is another's vulgarity.

And as Justice Harlan said, it is precisely because governments cannot make principal decisions between those kinds of communications, that the First Amendment leaves judgments in matters of taste to the individual.

Thank you very much.

Rebuttal of Wayne E. Uhl

Chief Justice Rehnquist: Thank you, Mr. Ennis.

Mr. Uhl, do you have rebuttal?

You have 4 minutes remaining.

Mr. Uhl: Thank you, Mr. Chief Justice, and may it please the Court:

We believe the second issue presented in the petition is properly before the Court for three reasons.

First, as Chief Justice Rehnquist pointed out, the issue was clearly raised in our petition for certiorari and there was no suggestion of waiver in the respondents' briefs in opposition.

Second, the issue was fully decided by all of the judges of the Seventh Circuit below.

Only one concurring judge, after addressing the merits, suggested that the issued may have been waived.

But he, too, joined the majority opinion in which the court clearly applied but found lacking our statute under the reasonable, time, place, and manner test.

And finally, we believe the issue is fairly included within the first issue that's presented, that at... resolution to the First Amendment issue in this case would be unsatisfactory if the Court simply stopped at a determination of whether this activity is speech without also determining whether or not it's regulable under this statute.

So we believe the question is fairly before the Court.

Justice Stevens: May I ask you on that, Judge Posner said that both the State's highest court and the law enforcement officials concurred in interpreting the statute, not as a blanket prohibition of public nudity.

Is that... do you still think it is not a blanket prohibition of public nudity or do you now take the position it is a blanket prohibition?

Mr. Uhl: For the purposes of our first argument--

Justice Stevens: No, you... are going to have to give me alternative argument answers?

Mr. Uhl: --Yes, Your Honor, we've made alternative arguments here.

For the purpose--

Justice Stevens: Have you ever before argued that it's a blanket prohibition of public nudity, including operas and the like?

Mr. Uhl: --No, Your Honor.

Justice Stevens: So, but you are making that argument now?

Mr. Uhl: Yes, Your Honor.

And we believe the statute stands under that argument.

Justice Stevens: And you believe that your opponent reasonably should have anticipated that argument when he filed his brief in opposition to your cert. petition?

Mr. Uhl: Yes, Your Honor, because the Seventh Circuit clearly went ahead and addressed that issue and then in our second issue in the cert. petition we clearly raised that issue: whether or not this statute is a valid... the public nudity statute... is a valid--

Justice Stevens: You don't... in your second question, you don't say a word about it being a blanket prohibition of public nudity.

Mr. Uhl: --I don't remember the exact frame--

Justice Stevens: It certainly doesn't suggest it to me.

Mr. Uhl: --but I believe it says that whether the statute is a valid regulation, and I believe the text of our cert petition clearly--

Justice Stevens: How should I interpret the statute as I face this case?

As a blanket prohibition or as a partial prohibition?

Mr. Uhl: --As a blanket prohibition, Your Honor.

As we suspected, the respondents have argued here today that basically any conduct anywhere that resembles dance is speech.

The burden is then on the State to justify our regulation of that conduct even if it's in a window in carwash, such as Justice Kennedy suggested, or out in the public park.

I don't think this Court has ever held that a State is required to come in with a common law crime that was in existence many, many years before the Constitution and the First Amendment were adopted and justify that statute as applied to live conduct.

There's been quite a bit of discussion during Mr. Ennis' argument of the State's interest in this case, and we'll confess a handicap here and that is that Indiana does not record legislative history.

Therefore, to some extent when the Attorney General's office or even the Indiana Supreme Court suggests what the State's interests are in upholding this statute, the legislative intent is simply inferred there.

There is no clear record of legislative intent in this statute.

But again we go back to the fact that this is a common law offense that involves traditional notions in our culture of what constitutes public decency in a public place.

And when it comes down to the fine tuning what we find is not that the defendant... that the respondents have any problem with the statute or its goals, but simply they disagree with our definition of what is a public place.

And that's a matter for the State courts and the legislature to determine and as long as that is a reasonable determination that is reasonably related to the goals of the statute, then the First Amendment does not prohibit the State of Indiana from enforcing this statute.

Therefore, again, we would ask that the Seventh Circuit's invalidating of the statute be reversed and that the district court be affirmed.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Uhl.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Osborne v. Ohio - Oral Argument

Fri, 09 Jan 2009 14:49:17 +0000

Case:

Osborne v. Ohio

Media File:

88-5986_19891205-argument.mp3

Related Transcript:

1989_88_5986_argument.xml

Transcript:

Argument of S. Adele Shank

Chief Justice Rehnquist: We'll hear argument now in No. 88-5986, Clyde Osborne v. Ohio.

Ms. Shank.

Mr. Shank: Mr. Chief Justice, and may it please Court:

The issues in the present case are three.

First, can an unconstitutionally, overbroad statute be construed on appeal and then retroactively applied to affirm the Appellant's conviction?

Second, may this state, consistent with First Amendment rights, prohibit the private, in-home possession of depictions of child nudity, where the nudity consists of either a lewd exhibition or involves a graphic focus on the genitals?

And third, has the Ohio Supreme Court successfully limited Ohio's child nudity statute to bring it within constitutional limitations?

Clyde Osborne was charged under an Ohio statute prohibiting the possession of pictures of nude children.

This statute was unconstitutionally overbroad on its face and as applied to Mr. Osborne.

The statute prohibited simple possession and mere viewing.

It failed to include an element of scienter, as required by this Court's decisions in Smith v. California and New York v. Ferber.

It failed to specify the age below which children could not be depicted, also as required by New York v. Ferber, and it prohibited depictions of mere nudity, contrary to this Court's decisions in Erznoznik v. Jacksonville and Ferber.

Mr. Osborne challenged the constitutionality of the statute prior to trial.

The court denied his motion, and the trial proceeded under the statute as written.

Only at the close of evidence did the trial court rule that the statute applied to depictions of those under the age of 18.

Mr. Osborne was convicted.

On appeal, the Tenth District Court of Appeals affirmed 18 as the age of minority, and construed nudity to mean a lewd exhibition of the genitals.

The Ohio Supreme Court redefined nudity on review to drop the requirement that genitalia by depicted; nudity now means, under that court's interpretation, either a lewd exhibition or, in the alternative, a depiction involving a graphic focus on the genitals.

The court added an element of scienter, recklessness, and again affirmed that 18 is the upper limit of the age of minority.

Mr. Osborne's conviction was affirmed under this new construction and he moved for rehearing on the ground that this retroactive conviction violated his right to due process.

His motion was denied.

Clyde Osborne stands today convicted under a statute wholly different from the one under which he was charged and tried.

And this is the basis of our first issue.

The statute in this case, as I previously noted, was unconstitutional on its face and due to its unconstitutionality was invalid.

A conviction obtained under such a statute is a nullity, and the conviction cannot be brought to life by a subsequent constitutionalizing construction of the statute.

This principle is well established in precedent from this Court.

In Lovell v. Griffin, Thornhill v. Alabama, and Shuttlesworth v. BIrmingham, this Court has held that an unconstitutional statute is in fact invalid on its face, that no one is required to comply with such a statute, and that a subsequent construction will not succeed in criminalizing preconstruction conduct.

This is, in fact, the essence of the overbreadth doctrine.

Unknown Speaker: How old was the child in question here?

Mr. Shank: There was hearsay testimony that the child was either 13 or 14.

However, no finding of fact on that issue was made, and the jury was instructed only to find that the child was under the age of 18, Your Honor.

Unknown Speaker: Any question that what Mr. Osborne... Mr. Osborne knew the age?

Mr. Shank: Your Honor, Mr. Osborne did testify that he had been told that the age of the child was 14, however, he had no actual or personal knowledge, and this was brought out in the course of the presentation of evidence at trial.

As I was saying, the essence of the overbreadth doctrine is that when a statute is unconstitutional on its face and one challenges the unconstitutionality of that statute, when the challenge has been... successful, the appellant cannot then be convicted under new and constitutionalizing construction of the statute.

Unknown Speaker: Well, correct me if I'm wrong, please, but those cases were not ones, were they, in which this Court or any other court held they were susceptible of being sustained under a narrowing construction?

Mr. Shank: Well, Your Honor--

Unknown Speaker: Or am I incorrect about that?

Mr. Shank: --In Shuttlesworth v. Birmingham, the court had in effect already given a narrowing construction... this is the second Shuttlesworth v. Birmingham, because there are two of the same name... had already been construed by the court by the time... by the lower state court by the time it reached this Court, and the Court accepted, for purposes of that case, that the new construction was constitutional, but still held that conviction under the old unconstitutional statute was not allowable.

Unknown Speaker: But... but that wasn't because the statute was a nullity, was it?

Mr. Shank: Yes, Your Honor.

The statute was invalid on its face.

The court didn't--

Unknown Speaker: Well, did... did... the court hold it had to be reenacted by the legislature?

Mr. Shank: --No, because, in the interim, it has been subjected to a new constitutionalizing construction, which the court--

Unknown Speaker: Well, then, if you say... then, if you say it a nullity, it seems to me that's a term that's not... the definition of which is not self-evident.

It certainly wasn't a nullity in the sense that the legislature didn't have to reenact it.

Mr. Shank: --Well, I think one of the clear points that demonstrates that it was a nullity--

Unknown Speaker: I am right about that.

Mr. Shank: --Excuse me, Your Honor?

Unknown Speaker: The legislature did not have to reenact it; it was still on the books with the narrowing construction after the state narrowed it.

Mr. Shank: That's true.

However, the Court did say in Shuttlesworth that under the statute, as it was written in its unconstitutional form, even though Shuttlesworth had applied for a permit, that he had been under no obligation to do so because of the statute's invalidity.

And it would completely unfair to say that a person had no obligation to comply with the statute because it was invalid, and then to subject them to a conviction, simply because it had later on been construed.

And so I think the fact that that... there was no requirement to comply with the invalid statute is a clear indication that it was in fact a nullity, because the Court wouldn't say you didn't have to comply with a valid statute.

In addition to... excuse me, Your Honors... in addition--

Unknown Speaker: Excuse me.

That... that means that the only way a statute can ever be narrowed, the only way you can ever give a narrowing construction to a statute is to have a prosecution of someone who... who is not smart enough to challenge it facially on constitutional grounds, or perhaps who is, but the court... the court throws out the case against that defendant, because the statute really doesn't mean what it seems to mean.

Is that the only way you can get a narrowing construction?

You see, I'm worried about what you're saying.

I don't understand how it... how... how can state courts given narrowing constructions, then, if, whenever they give one, the defendant gets off?

Then it's not a holding.

Then it's not a holding at all, it's just dictum.

Mr. Shank: --Well, I think that the court can do just what you said and say we cannot prosecute this particular defendant because the statute is unconstitutional.

Unknown Speaker: And all the rest is dictum?

Mr. Shank: I don't think that that would necessarily be true, because oftentimes the courts--

Unknown Speaker: No, the... the court then goes on and says, but, if you bring us another defendant, right--

Mr. Shank: --That... this is how--

Unknown Speaker: --under this same statute, in the future, this is how we would interpret it.

And that new defendant is on... is on notice.

Isn't that... all that dictum?

Mr. Shank: --Well, but, Your Honor, it's no different than when the court makes that same determination at the appellate level.

It doesn't mean that the decision is mere dictum, it stills says that the defendant is excused from liability and the court's holding is still the next interpretation of the statute that binds everybody else who is prosecuted.

In addition, if I understood your question, I think there is a different kind of situation where the court can narrow.

And that is the one that is frequently cited in Dombrowski, the famous footnote, Dombrowski Number 7.

And that is where the essential problem with the statute is not its overbreadth, but the overriding problem with the statute is its vagueness.

And in those circumstances, that's the kind of case where this Court has held many times that that person who falls within the hard core of what the statute addresses doesn't have... can't succeed under a narrowing type of construction, but--

Unknown Speaker: Ms. Shank, in... in your view, could the State of Ohio constitutionally apply this statute, now that the supreme court has construed it, to another defendant?

Mr. Shank: --Well, Your Honor, our third issue is that we do think that it's still prescribes protected materials and that it is... fails to serve a compelling state interest.

But were it, now, successfully made constitutional, yes, it would be applicable to those in the future.

Unknown Speaker: Well, so, in that sense, as Justice Kennedy points out, there may be some problem with calling it a nullity, if it can be applied to people in the future after the living... after the limiting construction?

Mr. Shank: I understand what you're saying, Your Honor, and I thought about that in terms of whether or not it would be better to try to address the question of void/voidable, but this Court's own language has always been either that it was invalid or that the statute itself was void.

And I think that that makes the most sense, in terms of accepting the Federal Constitution as the basis upon which all laws must be built.

If it violates that foundation of the Constitution, it should not have any validity.

And so from that perspective, I think that... that void is an appropriate term.

And I wanted to point out, Your Honors, that the policy behind allowing this is truly the core of the overbreadth doctrine, which allows one, whose own... whose own conduct may not be protected, to challenge a statute.

Because if one, whose own conduct wasn't protected, could not challenge a statute for its overbreadth and succeed, if in fact all that he could achieve would be a narrowing construction and then a subsequent conviction, there would be no point to him ever raising the challenge.

Unknown Speaker: It's a possession statute, right?

Mr. Shank: Yes, Your Honor, it is.

Unknown Speaker: Well, is it... is it clear that we would apply the overbreadth doctrine to this?

Is... what is... what is the expression?

What is the First Amendment expression protected by this?

Mr. Shank: What's being prohibited--

Unknown Speaker: He's not expressing this photograph to anybody, it's... it's his own photograph, he could have taken it himself for his own delight, right?

Mr. Shank: --That's true, but it's just like a book that you buy for yourself or a diary that you write for yourself, it's... it's a communication that you hold.

Unknown Speaker: To yourself?

Mr. Shank: Well, certainly.

And when one holds a book and then subsequently reads it, it's still a communication.

And when one holds a picture and subsequently views it, it's still a communication.

Unknown Speaker: If there were restrictions upon the distribution of that book to you, those restrictions would relate to the First Amendment, to communication.

But if the restriction is just something you do in the privacy of your own room, I don't see how that's a First Amendment communication interest and how the overbreadth doctrine would even apply to it.

Mr. Shank: Well, Your Honor, I think that anything that one uses... and now we're moving towards the issue of the privacy interest in your own home--

Unknown Speaker: Right.

Mr. Shank: --anything that one uses in one's own home, whether you want to characterize it as eliciting feelings or as being communicative or generating new thought processes, it's all protected by the First Amendment.

As this Court said in Stanley v. Georgia, the state has no interest in controlling the thoughts of any person or controlling what one person has... or in even viewing into the contents of one's library.

And I think under that analysis, it definitely is a First Amendment, protected-type of communication.

Unknown Speaker: A lot of water has flowed under the bridge since Stanley, Ms. Shank.

You know the Court really narrowed Stanley [inaudible] and cases like that.

And... and here the state, I would think, has considerable interest in preventing any access to child pornography in a way it wouldn't have to just obscenity.

Mr. Shank: Well, one of the things about this case is I don't believe that the state has demonstrated any kind of compelling interest in regulating the materials addressed in this statute, at least with regard to those that depict children under the age of 18 and over the age of 15.

Unknown Speaker: Well, why does the state... why does the state have to demonstrate a compelling interest?

Mr. Shank: Well, even if the Court wanted to say it was merely substantial, but we are talking about fundamental constitutionally guaranteed rights--

Unknown Speaker: A fundamental, constitutionally guaranteed to have child pornography?

Mr. Shank: --No, it's not a right to child pornography.

It's a right to have... to receive communications, it's the right to privacy in the home--

Unknown Speaker: Well, but... but you're... in this case, this man was convicted of having pictures of nude, minor males in his possession, so as to apply it to him, it's a right to receive child pornography, isn't it?

Mr. Shank: --It would be... that... that would be included within that broad right, yes, Your Honor, it would be.

Unknown Speaker: That's... that's the interest the state has to show some... you say a compelling interest, but perhaps that isn't the test; that's the interest the state is protecting here.

Mr. Shank: Well, the state does claim to be protecting its right to stop sexual abuse of children, which it says is necessarily involved in production of these types of pictures.

However, the State of Ohio, at least with regard to those over the age of 15, permits sexual conduct.

It's legal for any adult to have sex with a child over the age of 15 in the state.

Fifteen is the age of consent, and under Ohio revised code 2907.04, corruption of a minor, adults may have sexual conduct... that is, any kind of sexual activity with one 15 years of age or older.

And I think before the state can claim that it has an interest in stopping sexual abuse of children by invading people's homes and privacy and controlling the regulating... regulating this type of depiction, it first must try to stop what it alleges to have a compelling state interest in stopping, that is, sexual abuse, by making that actual conduct illegal.

Unknown Speaker: I think having... having sexual relations with a... with... with a minor under... what is it, under... 15 is the age?

Mr. Shank: Yes.

Unknown Speaker: I mean, I assume that if you didn't make 15 the age, or you would... you might be convicting many 18-year-olds for having sexual relations with... with 17-year-olds.

That's quite a different interest in protecting minors than the interest in protecting minors from being used as the... as the subject matter of pornographic distributions.

I mean, isn't that... isn't that a different interest?

Mr. Shank: Well, it is a different interest, and the states recognize that different interest in other statutes.

There is a statute that says that you cannot have sexual contact, which is any kind of sexual touching short of intercourse with one who is between the ages of 13 and 15 unless there is a four year or less difference in the age of the older partner and the child contacted.

So when Ohio has chosen to make that kind of age differentiation, that you just mentioned, be critical, they have put it into the statute.

That's not what happened with the age of consent.

The age of consent statute makes no limitation.

Any adult may engage freely in sexual conduct, which is all types of sexual activity, with anyone over the age of 15.

If the State of Ohio, if the general assembly believed that sexual conduct constituted sexual abuse, they would have made it illegal to engage in that activity.

Trying to then assert a state interest in stopping that activity to justify the regulation of private, in-home possession of such depictions makes no sense, when the state has yet to try to stop the activity by overtly prohibiting it.

Unknown Speaker: I'm saying the activity is different from being in the career of portraying the activity.

You can think it is worse to bring a child into the career of being a porno star than you can think it is to have sexual relations with a child on one occasion.

Isn't... isn't that quite a different thing?

Mr. Shank: I see what you're saying, Justice Scalia, and I do think that there's a difference between a commercialized drawing in of a child into a life of pornography and the things that are dealt with in this statute.

This statute does not address commercial production, distribution.

This statute is completely limitless in terms of the types of materials that can be used.

Unknown Speaker: xxx but the evil at which it's directed is that.

I mean the state asserts that the only way to dry up all of these things, to dry up that kind of activity, child... the child pornography business, is to simply make it illegal to... to have this kind of material, just... just as you stop, you know, elephant poaching by making it illegal to have ivory.

Mr. Shank: Well, the state certainly has an obligation, before it starts trying to allege that it's working towards that goal, to make the activity involved in such depictions illegal, and it has not.

And it goes much further, it allows all kinds of sexual conduct.

And in addition, if the state truly is interested in stopping that kind of activity, it would not have created the exceptions that exist in this statute.

Parents are now permitted to possess depictions of children that are lewd exhibitions or involve a graphic focus on the genitals under the state supreme court's decision.

Parents are now, under this interpretation of the statute, permitted to give consent for the use of their children for the production of this type of material or to give their consent to others possessing it.

And the State of... and the statute, as construed, allows people to keep pictures like this for artistic purposes.

If, in fact, these pictures are of sexual abuse of children, there is no interest that legitimizes letting those exceptions exist.

As this Court said in Florida Star v. B.J.F., when the state creates a statute that is underinclusive and leaves a broad area of the activity it supposedly has an interest in stopping, unprohibited, the state has demonstrated its lack of a compelling interest in dealing with that subject matter.

And for that reason, I think the State of Ohio has failed to demonstrate that it has a compelling interest either in prohibiting the private, in-home possession of these materials or in prohibiting, in the broader question of the overbreadth of the statute, in bringing it into a narrowly-tailored stance that serves a compelling state interest.

Unknown Speaker: Do you read our cases as saying a compelling state interest is required before the state or the Federal Government may enact a law prohibiting the sale of obscenity?

Mr. Shank: I read Stanley v. Georgia--

Unknown Speaker: I think the answer to that is no, that obscenity is just deemed not to be protected speech.

Mr. Shank: --That's true, but I believe that when you go to the point of prohibiting the private, in-home possession, as noted in Stanley v. Georgia, and there, are again attacking or invading the fundamental rights to privacy to receive information and to think thoughts, you have again moved into the area of fundamental rights and a compelling interest is in fact required.

Now, again, and the third issue in our case is that we do not believe that these pictures fall within a category of unprotected speech.

In New York v. Ferber, this Court said that in order to constitute child pornography, the depictions must include characterization... pictures of sexual conduct.

That's not required in this statute.

And depictions of sexual conduct or sexual activity of any kind are regulated by two other statutes, the two that immediately precede this one, Ohio Revised Code 2907.321 and 322.

In fact, these still regulate depictions of mere nudity.

Now, this Court in Ferber did say that graphic or... lewd exhibitions of the genitals, so long as that phrase was not construed too broadly, would qualify as sexual conduct.

But in this case, the Ohio Supreme Court has limited the requirement that genitalia be depicted, and this construction is the only statute in the many that deal with this type of material that doesn't at least require that genitalia be depicted, and for that reason, brought it into the definition of nudity, which is included in 2907.01(H).

That includes depictions of breasts, buttocks, the pubic area, as well as genitals.

So even under the state supreme court's statute and even under the broadest characterization of the kind of materials this court felt could be characterized as unprotected in New York v. Ferber, this statute falls.

And as I previously pointed, out, this statute does not address depictions that are commercial in nature.

It also includes mere possession and viewing... simple viewing of these photographs.

And Ferber dealt with the production and distribution of this type of material.

For that reason, we do not believe that it falls within the Ferber definition, and as I previously pointed out, I do not think that it fits the state... that the state has demonstrated a compelling state interest in prohibiting the possession of these materials.

I reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Ms. Shank.

Mr. O'Brien, we'll hear from you.

Argument of Ronald J. O'Brien

Mr. O'Brien: Mr. Chief Justice, and may it please the Court:

Ohio has adopted a comprehensive statutory scheme dealing with child pornography, which deals with production, distribution and possession, and it goes on a continuum from material that is involving a minor, whether the material is obscene under Miller, to material that depicts sexual conduct, typically vaginal intercourse, anal or oral intercourse, and then finally, what's involved in this case, material that depicts child-oriented nudity.

The Ohio Supreme Court, and prior to that, the Tenth District Court of Appeals... we have ten Ohio appellate judges looking at this statute, and all of them concluding and giving a proper narrowing construction... the statute... when you consider the entire scheme in pari materia, when you consider the exceptions and exemptions is... is directed at the lewd exhibition or the graphic focus on the genitals.

Ferber itself in the New York statute in question in Ferber permits, as a description of unprotected speech as child pornography, lewd exhibition of the genitals.

It's the State's position that the statute, both on its face and as applied, was... was constitutional with respect to the defendant Osborne.

The statute itself, when you... when you read it, and the Ohio courts made this clear, is directed at the kind of material the court was concerned with in Ferber and found that to be unprotected speech.

Ohio, along with 18 other states, has also concluded that you need to address this problem not just with respect to production, not just with respect to distribution, but it's also necessary to get to the point of prohibiting possession of material that fits... fits the definition, and that possession follows a continuum in those three state statutes, not only with respect to the lewd exhibition of the genitals, but also with respect to the obscene and/or the actual sexual conduct depicted in the... in the materials.

The state thinks that the defendant in this Court is extending what this Court has repeatedly said should be viewed narrowly, and that is the... the Stanley decision from 1969.

Stanley obviously predated Ferber, and the Court, I think, when the Court factors in the Ferber decision with Stanley, and looking at Stanley itself, it said, where... where compelling reasons exist, the state can enter into the home and prohibit certain possessory offenses involving printed, filmed or recorded material.

That this case is an exception to Stanley in that regard, that this... this case is a case that does present compelling reasons, as the Court recognized in the... in the subsequent Ferber decision.

The child pornography in question, and I think the record in this case amply reflects we're not talking about mere nudity here, we're talking about almost gymnastic poses with a young man, which the defendant admitted, and I think in response to one of Justice Blackmun's questions, we should point out the evidence of the defendant's knowledge of this young man... young man's age, apart from just looking at the photographs themself, was the defendant's admission that when they were given to him, he was told the boy was 14.

On the back of State's Exhibit 1D there is a notation that says Tommy-13> ["].

So the evidence was clear with respect, apart from looking at the photograph, that the evidence was clear that it is a young man.

It is the kind of material the Court, and I think the 18 states in addition to Ohio that have prohibited possession, is concerned about.

The gymnastic-type poses involved in this case concentrate graphically on the stretched anal area of the boy, the boy having a... all parts of his body exposed, his genitalia turgid... how the defendant himself described it.

In one of the photographs there is a dildo which... which the defendant admitted he recognized as a dildo, which is placed to the man's anus.

So I think when the defendant... appellant in this court describes the statute as dealing with mere nudity, I think we have to look at it in the context of the material that he was prosecuted for possessing, and that material I think clearly is within the confines of Ferber.

And when we look at the state interest that justifies going into the home, prohibiting that possession, and I think I agree with Justice Scalia when he made reference to.

We're not talking about pure speech, we're not talking about core First Amendment expressive type of conduct, we're talking about a possessory offense dealing with certain kind of material that has the visual depictions of the minor engaged in this kind of specified sexual conduct, or the lewd exhibition of the genitals.

And I--

Unknown Speaker: Mr. O'Brien, what do you do about the overbreadth contention that... I mean the... the defense's argument here is that Mr. Osborne had every reason to read this statute and say, that's a ridiculous statute; it's... it's just too broad.

You mean somebody can't have a picture of a nude child?

You know, what about parents?

Obviously, the statute is too broad, since it's too broad, I know the Supreme Court law, it's... well, it can't be imposed against me.

What do you do about that?

Mr. O'Brien: --Well, I think, Justice... Justice Scalia, I think that the defendant, or anyone else like him, looking at this statute, even before the Ohio Supreme Court construed it could look at that the continuum I mentioned earlier, look also specifically at this statute that prohibits the possession of nudity-oriented material, except under the following circumstances, and the statute itself sets forth the kinds of circumstances that would be exempted or accepted.

And it seems to me that the defendant in this case knew that the kind of material he possessed is the kind of material the statute was directed... directed at.

Unknown Speaker: Oh, I'm sure he knows that.

But that's often the case when a defendant is prosecuted under... that's what the overbreadth statute means, even if you're in the core of what the legislature was obviously directing its guns at, if they've... if they've drawn too... too wide a... an area, it's too bad.

Mr. O'Brien: Well, I think the... the Ohio Supreme Court, in addressing that, is how I believe I should respond, and that is looking at the statute as a whole, and looking at the exemptions and exceptions in there, that it did give fair notice, fair warning to Mr. Osborne and others that this is the kind of material that it was designed to address, and not just mere nudity.

Otherwise, there is no reason for the legislature to have inserted in the statute the exceptions and exemptions for artistic, medical, proper... other proper purposes that are in the statute itself.

Otherwise there's no reason for them to be in there if the defendant would take it to mean we're only dealing with mere nudity, which obviously is not the type of conduct that can be proscribed, mere nudity.

Unknown Speaker: I'm not sure I understand what you're saying.

Are you saying that the only issue in this case is whether he had sufficient notice?

And that so long as... as a court narrows the statute when it's brought before it for construction, the only question presented is whether the defendant had sufficient notice that what he was doing was unlawful?

Mr. O'Brien: Not the only question, but I think it's one of the questions that would be before the Court, and I think that the Court would say, looking at the--

Unknown Speaker: I know it's one of them.

What... is it the only one?

If it isn't the only one, then... then the other one is, was it overbroad?

Mr. O'Brien: --Well, I think the Court would ask... yes, it was overbroad on its face before it was construed by the state court.

Unknown Speaker: It was?

Mr. O'Brien: Correct.

And I think the Court addressed that in Oakes last year, that the defendant may raise the defense, that doesn't mean that he wins when he raises that overbreadth defense.

And it--

Unknown Speaker: But didn't the majority of the... the members of the Court in Oakes want to look at the statute as it was originally written and... and wouldn't accept a subsequent mooting of the case?

Mr. O'Brien: --Well, that was a legislative mooting, Justice O'Connor--

Unknown Speaker: Well, but, nonetheless, the focus was on the statute as originally written?

Mr. O'Brien: --That's correct.

Unknown Speaker: And what if that is done here?

Mr. O'Brien: I think if that is done here that, looking at the statute as... as originally written, it seems to me that when you consider the proper purposes, exceptions and the other exceptions and exemptions in the statute, and the entire statutory scheme, it seems to me that it is not overbroad, even before the narrowing construction.

Unknown Speaker: But what if a majority of this Court thinks that it is overbroad as originally written, as apparently the members of the Ohio Supreme Court thought?

Suppose we think that's right.

Now, where does that leave you?

Mr. O'Brien: Well, I think that would leave us, if a... if a majority of the Court thinks the statute as written prior to being narrowed is overbroad, at least five members of the Court in the Oakes case would say that the statute was a nullity from the beginning and that it is a proper method to say the defendant's conduct was lawful at the time committed, and therefore can raise that overbreadth defense and have the conviction reversed.

And it would; I suspect, also result in the defendant's discharge if that's the Court's view.

I think the Court would--

Unknown Speaker: Is that inconsistent with Shuttlesworth?

Mr. O'Brien: --I... I think, Your Honor, it's our position that even if the Court would look at the overbreadth argument and say it's invalid on its face, the conduct was lawful, the statute not applicable, that the defendant may be entitled to have the conviction reversed, and be retried, but not discharged.

I think I would make the distinction between a reversal of the conviction with a remand for a new trial, as opposed to a reversal of the conviction and a discharge by the defendant, because the statute was invalid on its face and... in toto, in... right from the beginning.

Unknown Speaker: xxx a state court where... where an overbreadth objection to a conviction is urged and the... the state supreme court says, well, that isn't what the statute means at all; it's not overbroad at all because here is what that statute means.

We're not a legislature and we can't change the terms of the statute, but we construe what the legislature meant.

Is that what the Ohio Supreme Court did?

Mr. O'Brien: That's what my position is, Your Honor, they took a statute, not only the Ohio Supreme Court, but--

Unknown Speaker: They just construed it?

Mr. O'Brien: --Correct.

Unknown Speaker: This is what it's always meant?

Mr. O'Brien: I believe that's... that's my view of what they did.

Unknown Speaker: And if you... and if you think it meant something else, you're wrong?

Mr. O'Brien: That's... that's my view of what they did, yes, Your Honor, and I think it was a proper and rational decision by them, looking at the statute, what... what its purposes are in the context of all the statutes that deal in this area, together with what the legislature was trying to get at, including the exceptions and exemptions.

I don't think any other conclusion could have been reached by them or any other reasonable person.

Unknown Speaker: But for a person who is confronted with that statute, ex ante, before the supreme court has adopted that construction, for him to be bound by it, surely he has to be able, reasonably, to predict that kind of construction?

Mr. O'Brien: I... I agree with that, Your Honor.

And I think looking at the Ohio statute in this case, that the defendant could reasonably predict that the kind of material we were trying to proscribe was not "mere nudity", but was that which was something more than mere nudity.

Unknown Speaker: Well, wouldn't you go further than that and say that the state must also put in the... those elements of the statute as part of its case, which you didn't do?

You didn't show intent--

Mr. O'Brien: I think--

Unknown Speaker: --you didn't show lewd exhibition.

The jury was charged in those terms.

Mr. O'Brien: --Well, I think I would make a distinction as to... as to whether the state proved it and whether there was a jury instruction on it.

The state clearly proved there was a lewd exhibition of the genitals by virtue of marking, identifying and having... admitting into evidence the photographs themselves, which speak for themselves.

Unknown Speaker: But the jury wasn't charged on that.

Mr. O'Brien: The jury wasn't charged on that, and the Ohio Supreme Court, I think, Your Honor, addressed that by saying, we agree that jury was not charged on this issue, we are not going to relieve the state from that burden.

We will look at this material, and it's clear, beyond per adventure, when you look at the material, we're dealing with a lewd exhibition of the genitals.

Had the jury been charged in that regard, the jury could not have come to any other conclusion.

Therefore, using the plain error doctrine, or harmless error, that it was not reversible error--

Unknown Speaker: The case is so obvious we don't really need a jury trial?

Mr. O'Brien: --No, I'm not saying that, Your Honor.

Unknown Speaker: That's, in essence, what the appeals court is saying, right?

Mr. O'Brien: I don't think so, Your Honor.

Unknown Speaker: The jury never found it, but it's so obvious that any jury could find it.

I mean we could get rid of a lot of jury trials that way.

Mr. O'Brien: Well, I don't think that's what happened in this case, Your Honor.

I think what... what was presented to... to the jury and I... I must say that--

Unknown Speaker: But the jury was never asked to find it, and the jury never did find it, did it?

Mr. O'Brien: --No--

Unknown Speaker: The jury never found it?

Mr. O'Brien: --No, Your... no, Justice Scalia, they did not.

But I think the... the plain error doctrine, in that instance, the court will say that unless the manifest miscarriage of justice will occur, and the Ohio Supreme Court addressed that in this case, that... and I assume that had they felt that a manifest miscarriage of justice would occur if the defendant's conviction would be affirmed under those circumstances--

Unknown Speaker: Did the... did the defendant request any... any charge on intent?

Mr. O'Brien: --The defendant did not request a scienter intent charge or did not request a limiting instruction with respect to the lewd exhibition of the genitals that was later the narrowing construction by the Ohio Supreme Court.

Unknown Speaker: Do you think the... do you think the Ohio Supreme Court's opinion really means that they said that, to the extent this statute reaches mere nudity and other things, it is unconstitutional and... but we'll just declare it unconstitutional to that extent?

Is that what they did, or did they just say the statute has always meant this?

Mr. O'Brien: I... I read it, Justice White, as saying that we are construing this statute, and this is what it meant when it was enacted and when it was adopted, and that's what it's directed at.

And... and that's... that's how I read the decision, and they were not doing anything other than construing that statute in that regard.

Unknown Speaker: So that's different than a legislative revision of the statute pending appeal?

Mr. O'Brien: In my view it is, because in a tradition of common law, the courts, on appeal, have that option of construing statute, and I think it's different than a subsequent legislative amendment changing the elements of the offense, particularly with respect to what happened in Oakes.

I would make that distinction.

I think, with respect--

Unknown Speaker: Suppose the defendant here had asked that... that the jury be charged with reference to intent, and the trial judge had refused the instruction, the same result, a valid trial?

Mr. O'Brien: --And when you say intent, you mean regarding a lewd exhibition of the genitals or--

Unknown Speaker: Yes.

Scienter.

Mr. O'Brien: --If the defendant had requested it and it had been denied, I would agree there would be a problem, yes.

Unknown Speaker: Well... how is that different from what we have here?

Mr. O'Brien: I think it's different from what we have here because at first the defendant didn't request it, and... and [inaudible].

Unknown Speaker: Well, I mean, why... why do you say there's a problem?

It's just denying the defendant the satisfaction of having the jury consider something, which you now say it doesn't have to consider anyway?

Mr. O'Brien: Well, I guess, just in my own mind, in terms of making a record, I would... I would think the defendant would be better off had that requested instruction been made, had it been denied and then they were claiming that was error.

Unknown Speaker: But you... you acknowledge that there is a real problem if he request the instruction and it's not given.

And I assume that's because the jury verdict is somehow inaccurate as a reflection of what the statute requires.

And I don't see how that's any different from his failing to... to ask for something which the... which was not in the statute until the court later construed it.

Mr. O'Brien: Well, I guess it just seems to me that the defendant would be better positioned to argue that... that it was error and... and reversal of his conviction is justified had he requested it and had it been denied.

And maybe I'm wrong in that regard, but it just seems to me that that would be a better position for the defendant to be in than to not have requested it, not have it denied and have the matter go up on appeal and raise it for the first time in an appellate court, and... and say that... that it was a problem.

Unknown Speaker: Does Ohio have any doctrine that the courts will imply an intent requirement?

About 40 years ago this Court decided a case called United States against Morrisett, where we said that even thought the statute punishing someone criminally did not say that there was an intent requirement, one would be implied on common law principles.

And so the federal courts have frequently implied the existence of an intent requirement, even though the statute didn't say so.

Does Ohio have any similar doctrine, do you know?

Mr. O'Brien: Yes, Mr. Chief Justice, 2901.22 of the Ohio Revised Code, and it's discussed in the Ohio Supreme Court opinion in this regard, says that when a statute is silent with respect to intent or scienter that unless the... the criminal proscription plainly indicates that strict liability is to be imposed, that you pick up another statute with a minimum culpable mental state of recklessness, which... which, at least in this regard, is... is the perverse... the disregard of a known risk.

Unknown Speaker: So a defendant defending a prosecution under this statute would have presumably been justified in asking for an instruction on recklessness in this case, on the basis of that statute?

Mr. O'Brien: That would be my view, Mr. Chief Justice.

And there have been two Ohio Supreme Court opinions, one in 1980 and one in 1984, which I cite at page 37 of the brief, that... that have... have done that, with respect to the child-endangering statute, and with respect to certain prostitution offenses, where there is no mental state in the statute itself, but they pick up the recklessness statute.

And we argue that both the statute, which is 15 years old, and those existing Ohio Supreme Court decisions did give an indication that that was, you know, an element of scienter.

With respect to... to Stanley, and that is an issue that not only Ohio, but the other 18 states that have possession offenses on... on the books in the various states have great concern, and that is whether Stanley would preclude the application of a possession offense when we're dealing with the defendant's own home.

It's our position that the Court found in... in Ferber that there are a number of interests the state has in controlling and regulating child pornography, mainly because of the harm caused to children through its production, distribution and use.

That harm being physical, psychological, emotional mental, physiological, and that that interest in proscribing possession of the material is the same as it is in a production and distribution.

The permanent record of harm which the Court was concerned with in Ferber is ongoing and continues, while the possession occurs in the privacy of the home.

And I must note that... that it, either in the District of Columbia here or in... anywhere across the country, you cannot walk into a stand, or what might be called adult bookstore, and purchase child pornography, simply because the... the distribution statutes and this Court's decision in Ferber, it has been driven underground.

The only method... or an additional method that the state needs in that underground child pornography market is that possession offense if we're going to dry up the market.

That is an interest I believe the state has, in addition to the interest of avoiding that continuing haunting fear on the child who's been used in this kind... in producing this kind of material.

The Court was concerned with... and noted in Ferber itself that that permanent record was evidence of ongoing harm due to the psychological and emotional distress to the youngster.

Just by knowing the fact that it's out there, many times it's used to blackmail the youngsters, the fear of subsequent public exposure or use in commercial distributions all cause that child, in trying to recover from the original abuse, the child's sexual abuse, trying to recover, that is what the experts say a severe problem in addressing it.

And I think the possession statute, in... by just merely saying it is illegal to possess it, goes a very long way in... in fighting the problem, which has been... has gone underground, in trying to dry up that market, which I think the state has a very strong interest in doing.

Unknown Speaker: The fact... let me just ask... the fact that it's gone underground, I don't see why that makes efforts to prohibit the sale or the commercial distribution unlawful, though.

I mean, that's still an effective way of attacking this problem, isn't it?

Mr. O'Brien: It's an effective way, Justice Stevens, but I... I believe that the states need that additional tool of a possessory offense.

If they are... they are denied that possessory offense and are told you must only prosecute people in this industry or pedophiles who are interested in collecting or keeping this material, if you are only permitted to prosecute those who produce or sell it or otherwise distribute it, I think we're going to have a serious problem in trying to... to continue to address it, simply because the production is always surreptitious.

Unknown Speaker: Well, but that's true of a lot of criminal activity.

Producing narcotic drugs, for example, is surreptitious and the sale is surreptitious, but they make lots of arrests of people who do that sort of thing.

Mr. O'Brien: And many of the arrests are on possession offenses.

Unknown Speaker: Right.

Mr. O'Brien: And because you are able to arrest those people on possession offenses, you are able to even move up the ladder to those involved in the sale and distribution.

Unknown Speaker: But... but you seem to talk about the fact that it's underground means that... that the prohibition against sale and production is meaningless, but I just don't quite follow.

Mr. O'Brien: No, it's not meaningless, Your Honor.

In fact, we still have two good statutes that we will use when we can prove production and distribution.

What I'm saying is, is because it's underground and you can't walk into Paul Ferber's bookstore in Manhattan and buy child pornography today, that because it's underground that the additional tool of having a possession offense is necessary to address the problem.

And that the state does have an interest in going to that possessory offense and applying it to... to the home or anywhere else that it might be possessed.

So I guess what the state's interest, besides that is, is as we pointed out in our briefing materials, not only the permanent record of harm that exists, but we can attempt to dry up the problem with that additional tool.

And finally, the materials used to... to continue that cycle of child sexual abuse that... that the Court addressed in Ferber, by means of seducing other children to engage in activity, and we have cited in our brief an extensive background regarding how the material is used to further additional sexual abuse, to condition children to the use.

I guess, in comparing those interests with the defendant's interest, I think that's what the Court needs... needs to do, and the defendant's interests to receive information or ideas, it seems to me are de minimis compared to what the state's interests are.

And I fail also to see what idea or information is conveyed by the four photographs in question here.

It seems to me we're not discussing the merits of... of sexual conduct with children or debating that.

It seems to me that the... the idea communicated or the items in the library that's supposedly infringed is... is very minimal compared to the state's interest in... Justice Stevens, do you have a question?

Unknown Speaker: Another question I had.

We talked about a scienter requirement in this, what is it in the way of scienter that has to be proved under the--

Mr. O'Brien: It would be recklessness under the--

Unknown Speaker: --Reckless... what sort of recklessness?

I mean, in what regard was--

Mr. O'Brien: --Well, there is... there is a specific definition.

There are four culpable mental states in Ohio, purposely, knowingly, recklessly, and negligently.

Unknown Speaker: --Well, purposely... say it's purposely knowing.

What does the... what does the defendant have to purposely know?

Mr. O'Brien: He has to perversely disregard a known risk is the statutory language.

Unknown Speaker: Well, but... but, risk of what?

I mean, he knows it's a picture of a child.

Is that all that's required?

Mr. O'Brien: Well, it seems to me, he has to know it's a picture of a minor, he has to know that it is a minor which is nude, and not only nude but involving a lewd exhibition or graphic focus on the genitals.

Unknown Speaker: And the defendant contends he didn't know any of these things, is that what it amounts to?

Mr. O'Brien: I'm not sure he contends he didn't know those things; I think he's contending that the statute, at the time, before its construction, would not lead him to believe that.

Unknown Speaker: Not--

--He's contending at least that the jury... that the jury didn't find that he knew those things?

Mr. O'Brien: I... I think that's correct, Justice Scalia.

And, in conclusion, the... the State of Ohio would--

Unknown Speaker: Would that apply if he was blind?

Mr. O'Brien: --I would say not, because there's no way the state could prove that he... that he knew the material that he possessed depicted the visual depiction of a minor and that the depiction was a--

Unknown Speaker: xxx Ohio [inaudible] with the possession of one marijuana cigarette are you guilty of a crime?

Mr. O'Brien: --One marijuana cigarette would be what is known in Ohio as a minor misdemeanor, and particularly with respect to marijuana if the amount is less than I believe 100 grams, which is approximately three ounces.

It's not a criminal offense.

Unknown Speaker: Isn't the usual statute possession with intent to distribute?

Mr. O'Brien: There are statutes like that, but in addition to that, Justice Marshall, there are also simple possession statutes.

Possession has to be a knowing thing.

If someone walked up and put something in my pocket and I didn't know it was there, and I got stopped, you know, I didn't knowingly possess it, even though it was on my person.

And it seems to me, however, that is different from, you know, knowingly possessing an item, whether it's a marijuana cigarette or photos.

Unknown Speaker: So your main idea is to protect the children?

Mr. O'Brien: Correct, Your Honor.

Unknown Speaker: Where were these children from?

Mr. O'Brien: The record in this regard, Justice Marshall, indicates that the defendant obtained them from a man... in Columbus he obtained them... from a man in Florida who was charged with federal postal mailing of child pornography.

Unknown Speaker: And what... what interest does Ohio have to protect the children in Florida?

Mr. O'Brien: Well, there's no evidence that the photographs were taken in Florida.

The photographs were delivered to Clyde Osborne by Jack Smith in Columbus, Ohio.

Unknown Speaker: Were the pictures taken in Ohio?

Mr. O'Brien: The record says the pictures could have been taken anywhere.

However, Justice Marshall, I believe the State of Ohio has an interest--

Unknown Speaker: Including Egypt?

Mr. O'Brien: --The pictures, according to the records, could have been taken anywhere.

Unknown Speaker: I don't see how you protected the children in Ohio.

Mr. O'Brien: Well, I... I think that protecting the children in the State of Ohio--

Unknown Speaker: Wouldn't you call that overbroad?

Mr. O'Brien: --I don't think I would, Your Honor.

I see the red light is on, so I will conclude my remarks.

Thank you.

Unknown Speaker: Thank you, Mr. O'Brien.

Ms. Shank, you have seven minutes remaining.

Rebuttal of S. Adele Shank

Mr. Shank: I think one of the remarks that was made close to the end of Mr. O'Brien's comments is telling about the effects of this statute.

He noted that when the state finds that it is able to, it will use its other two statutes on production and distribution to go after people who have this type of depiction.

Those two statutes already prohibit possession of those kinds of depictions that constitute obscenity in Ohio and that depict sexual activity as it's defined under the Ohio law.

Mr. O'Brien's acknowledgement that those statute will be used... used to go after these people is a clear indication that the construction of this statute has moved it from what it originally was intended to be by the Ohio legislature, which was a prohibition against depictions of mere nudity, and changed it into a child pornography statute, which is what those other two statutes, Ohio Revised Code 2907.321 and 322 are.

Unknown Speaker: xxx the supreme court's opinion, they... they say this is what the statute always meant.

They construe the statute and say this is what it's... this is what it's... what it's always meant.

They don't... they... they deny that it's ever been overbroad.

Mr. Shank: Well, Your Honor, I know that they do claim that it is not overbroad.

I am not sure they go quite as far as saying that they had absolutely... that it was clear that that's what it meant.

In fact, on page 42 of the joint appendix, the beginning of the first full paragraph, the court acknowledges that it is true that the statute does not expressly limit the prohibited state of nudity to allude exhibition or graphic focus on the genitals.

Unknown Speaker: Not expressly, but then they say if you take into consideration the other aspects of the statute, it doesn't cover just nudity.

Mr. Shank: I agree that they do say that, but they say it in a very--

Unknown Speaker: Well, that's the construction.

Mr. Shank: --It's a... Your Honor, I have to... I simply point out to the Court that their language is kind of back and forth, and that at the conclusion of that little discussion, they do then say, and that's... this is in the center of the final full paragraph, again, on page 42 of the joint appendix, that as... authoritatively construed that day by the court.

So, I think that although the court does waffle on the point, I think it's very clear from its own opinion that it acknowledges that that wasn't the case and that it's construction that day is what brings the statute into what it hopes to be constitutional lines.

Another point that was raised by Mr. O'Brien is the fact that he alleges that 18 other states have statutes that are very much like ours.

In fact, that's not true.

None of the 18 state statutes cited by Mr. O'Brien or in the amicus brief from the Ohio Attorney General include viewing as a potential for conviction.

Every other statute requires that there be a depiction of the genitals.

A number of those statutes, although they prohibit possession... prohibit possession for specific purposes, some of them for distribution.

Essentially, there is not a single statute that replicates the Ohio statute.

Ours is the broadest statute in the country.

Mr. O'Brien suggested that a retrial would be appropriate in this case, and it would not.

Unknown Speaker: Excuse me.

Is that before or after the--

Mr. Shank: That's after the construction.

Unknown Speaker: --After the construction.

Mr. Shank: Yes, because even after the construction, Ohio still includes mere viewing, and Ohio includes possession without any restriction for why it's possessed, and Ohio does not require that genitals be depicted.

With regard to whether or not this should go back for retrial, the answer is no.

Even though the statute was construed, and even though the state contends that there might have been sufficient evidence, which we do not acknowledge at this point, to get a conviction, had it been dealt with properly, you can never make up for the fact that the defendant didn't have notice at the time he acted of what conduct was prohibited.

When a statute uses--

Unknown Speaker: But if... if the state supreme court has construed it more narrowly, surely the defendant must have been given notice by the language of the statute of everything he possibly could have been subjected to, and perhaps more?

Mr. Shank: --Well, in fact, I believe that what you're saying is the essence of the concept of overbreadth again.

Unknown Speaker: No, it's the essence of the contest... concept of fair notice.

Mr. Shank: Exactly, which is part of what the problem--

Unknown Speaker: Well, no.

No, fair notice and overbreadth are two quite different things I had thought.

One... one is the doctrine of vagueness, and the other is that the statute covers too much ground.

Mr. Shank: --Well, and I understand what you're saying, Chief Justice Rehnquist.

But... and Paul [inaudible] has addressed this exact issue.

When the language of the statute literally includes within its meaning, conduct that is clearly, constitutionally protected, it, in effect, gives no notice that any conduct is prohibited.

And for that reason, there is no notice when you have a statute that's overbroad on its face.

And this was noted by this Court in the Shuttlesworth decision.

It was also noted in another case we've cited in our brief, Ashton v. Kentucky.

In both of those cases the Court found that the statutes were invalid on their face and noted that the language used in the statutes fell within parameters that this court had held in other cases was... were unconstitutional.

Unknown Speaker: Does it make a difference that Shuttlesworth was a prior restraint case?

Mr. Shank: I don't believe it does, because the same principles were followed, as I just noted, in Ashton, which was not.

That was simply a criminal libel statute.

And the same principles were followed in Thornhill v. Alabama.

That was a loitering statute which was... prohibited picketing in the site of a labor dispute... anywhere near the site of a labor dispute.

So this type of decision has not been limited to situations where there was a licensing or permit requirement.

In addition to the fact that you can't make up for the fact that there was no notice, another aspect that I think negates against a retrial in this case is the fact that Mr. Osborne was denied the opportunity to have a fair trial or... and... and goes against... I notice my time is up.

Unknown Speaker: Thank you, Ms. Shank.

Mr. Shank: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

FW/PBS, Inc. v. Dallas - Oral Argument

Fri, 09 Jan 2009 14:49:23 +0000

Case:

FW/PBS, Inc. v. Dallas

Media File:

87-2012_19891004-argument.mp3

Related Transcript:

1989_87_2012_argument.xml

Transcript:

Argument of John H. Weston

Chief Justice Rehnquist: We'll hear arguments first this morning in Number 87-2012, FW/PBS v. City of Dallas; 87-2051, M. J. R. v. City of Dallas; and 88-49, Calvin Berry v. the City of Dallas.

Mr. Weston.

Mr. Weston: Thank you, Mr. Chief Justice, and may it please the Court:

These three consolidated cases present various challenges to this Dallas licensing ordinance.

The FW/PBS Petitioners and the M.J.R. Petitioners, bookstores, motion picture theaters, arcades, cabarets, attack the ordinance on various First Amendment grounds arising from their communicative activities.

The Calvin Berry, III Petitioners, motels, are included within the scope of the ordinance solely because they provide room rentals for periods of less than 10 hours.

They assert a different challenge, the absence of any justification for including them within the ordinance.

If the Court please, I will turn to the Berry matter first.

Under the ordinance, hotels or others providing rooms for rent for less than 10 hours are qualified, or are included as sexually oriented businesses.

And also under the ordinance no one may rent rooms for less than 10 hours unless they have license under the ordinance.

On its face, this legislation applies not only to Petitioners' hotels, but also to the Hilton, to Holiday Inn, the Sheraton, as well as other hotels and motels which provide accommodations for those in the airline industry and truckers and others on travel-sensitive and short schedules.

Given the lack of any reference whatsoever in this record or in the entire legislative process to short-term rental establishments, Petitioners respectfully assert that the scheme as to them is over inclusive and irrational, and is violative of equal protection and due process of the laws.

And if the Court please, I will now turn to the arguments of the other two Petitioners.

Respondents invite this Court to make radical and wholesale reductions in the most basic protections of the First Amendment which have traditionally safeguarded expression in this country.

They attempt to justify their ordinance by several quite remarkable propositions, including their statement that under the ordinance no religious or political discourse would be restrained.

I suppose, fairly, their argument extends to that if speech does not contain a component of religious or political discourse, it is then subject to lesser and perhaps ultimately no First Amendment protection.

If the First Amendment is to have any continuing long-or short-term validity, Respondents arguments must be resoundingly rejected.

This Court has consistently held over a long, long period of time--

Unknown Speaker: Would you accept a grudging rejection?

Mr. Weston: --If I can't get a resounding rejection I would accept a grudging one, Justice Scalia, as long as it is unequivocal.

This Court has held over a long, long period of time that any laws requiring, as a precondition to the engaging in speech, licenses--

Unknown Speaker: Well, these... these people are not, strictly speaking, engaged in speech.

They are selling stuff, aren't they?

Mr. Weston: --Well, I think that's... that's true, Your Honor.

There is... certainly consideration charged for the expression, but this Court has continually held that the fact that there was a charge attendant to expression itself, whether it be in the context of the sale of a newspaper or the sale of a book or the selling of an admission ticket for a ballet dance or for theater, certainly was no indication--

Unknown Speaker: No, I am not suggesting the... the exchange of something for the performance makes it anything less than speech, but these... these people are engaged in a commercial business.

Can't... can't a state require a license of these people the same way it requires the licensing of other people, for purposes of collecting a sales tax--

Mr. Weston: --Well, of course, Mr. Chief Justice.

I'm sorry, our point is not that a license per se is impermissible.

Of course not.

But rather that any license of this nature must be construed, must be evaluated, as this Court always has, as a prior restraint in the beginning.

Unknown Speaker: --Well, why... why is it a prior restraint?

Mr. Weston: Because without the license one may not engage in the speech.

And as this Court recently noted, its... in summarizing its decisions on prior restraint, that a prior restraint is classically that circumstance where government can deny or does deny a form in advance of expression.

One may not engage in the speech until one has a license.

One may not obtain... one does not get the license simply on paying the filing fee and paying... and paying one's money and filing the application.

Unknown Speaker: So requiring a permit for a parade, then, is a prior restraint?

Mr. Weston: Is a classical prior restraint, although it may be an adequate and a valid prior restraint.

As the Chief Justice well knows, not all prior restraints are invalid.

They simply start off requiring the extremely heavy scrutiny of this or any constitutional court, and they come to this Court or any other court with a heavy presumption against their invalidity.

That is the only point that we make.

And because the governmental power inherent in these prior restraints is so extraordinary, a set of rules involving strict scrutiny has of course been set up to ensure that government does not, intentionally or unintentionally, abuse the extraordinary power which these devices give them.

Unknown Speaker: And you take the position that commercial sales of sexually explicit speech are entitled to exactly the same protection as, for example, a political rally.

Mr. Weston: We take the position that there is no justification, Justice O'Connor, for creating any sort of hierarchy for speech under our constitutional framework.

We certainly think that there is nothing that indicates that the founders or the framers had any such concept.

We see no justification for doing so, and quite frankly, the response I guess to the implied question might well be why, and followed by what next.

The establishment of any hierarchy of speech diminishes ultimately the value of all speech.

And we would respectfully submit--

Unknown Speaker: Well, how about commercial speech.

Do you think that gets the same protection as political speech?

Mr. Weston: --Well, the Court obviously has wrestled with the question of--

Unknown Speaker: Do you think our cases would support the position that they are entitled to the same protection?

Mr. Weston: --No, I think that--

Unknown Speaker: Well, then there is some hierarchy.

Mr. Weston: --No.

I think that generically the Court certainly has indicated that at least commercial speech, in some circumstances, is not entitled to the same speech, but I think--

Unknown Speaker: Is this at least commercial speech?

Mr. Weston: --No, Your Honor, this would not qualify as commercial speech any more than the sale of a book, the sale of a newspaper, the sale of a ticket to a lock concert or whatever.

This speech is, in essence, speech or pure speech, which is to be construed and viewed exactly in that context, separate from the commercial, commerciality of the message, which lends the potentially second-class status to commercial speech.

The point I was going to make, Justice Stevens, is simply that the aspects of commercial speech seem really to be more akin almost to a time, place and manner circumstance with respect to it, rather than the content of the message of the commercial speech.

Unknown Speaker: What about obscene speech?

Is that a... is that a separate category?

Mr. Weston: Well, we know, Justice Scalia, that at least up until the present a continuing majority of this Court has held that obscene speech is simply expression, but not speech in the First Amendment sense.

Unknown Speaker: Well, you can call it not speech, but it's speech, isn't it?

Mr. Weston: Well, with all respect--

Unknown Speaker: I mean, let's not play games.

We have established a separate category of speech, obscene speech, to which we accord no protection, zero.

Right?

Mr. Weston: --Again, not wishing to play games at all, but this Court's decisions have made clear that, for purposes of the First Amendment, obscenity is not speech.

It is expression, but it is not speech.

And therefore, it is not entitled, after determinations of obscenity, that it is nonspeech, to any of the protections.

It may be seized, it may be destroyed.

It simply offers none of the incidence of protected quality which the expression in this case manifestly retains, because this material is not alleged to be obscene, and the standard for judging it or identifying it--

Unknown Speaker: Well, but if we can say that there is a separate category of speech which is not speech, as we have done in obscenity, I suppose we could say there is a separate category of speech which is only partly protected speech, as we have already done in commercial speech.

Mr. Weston: --Well, again--

Unknown Speaker: And indeed haven't we done that with respect to pornography, something just short of obscenity.

Haven't we permitted certain restrictions upon that that are not permissible with respect to--

Mr. Weston: --But not on the basis... well, obviously.

Perhaps we should define terms.

Obscenity is that erotic expression which has been determined to be beyond the pale of the First Amendment; it is nonspeech.

Commercial speech, as I have suggested, is not so determined by reference to its content.

It is more its purpose or its offered role or why it is being done in... in connection with any analysis that may be provided.

It really is, I believe, analytically, much more of a time, place or manner type of restriction.

With respect to pornography, sexually oriented speech, I am not aware of any majority holding of this Court which, on the basis of its being sexually oriented speech, has concluded that it is entitled to less protection.

Certainly, I am aware of what I respectfully call some tentative forays in that direction, but I do not believe, and I... I feel quite certain in saying, that there has been no such ruling on the part of this Court.

Unknown Speaker: --What about defamatory speech?

Mr. Weston: Defamatory speech typically has also been considered to be speech which is simply beyond the pale--

Unknown Speaker: Well, that is not correct; just a different burden when it is against a public figure and that sort of thing.

There are different rules applied to defamatory speech is a form of speech.

Mr. Weston: --Well, I think that is fair.

But again, defamatory speech is subject to whatever restraints or whatever inhibitions only after a determination that it falls into this quasi or this specifically unprotected category.

Unknown Speaker: Yes, but we're talking about speech that you would only say has been entitled to less protection if one can so conclude after determining it was sexually oriented speech.

You make that determination before you say it gets less protection.

Mr. Weston: I... I think there would not be a problem determining that speech were sexually oriented.

I think the problem would then be in terms of, at least with respect to that aspect of it, exactly how broad the category would be.

Because if one, for example takes a look at the definitional language in this ordinance, it makes very, very clear that even verbal descriptions of sexual activity bring material within the category under the ordinance.

I suspect that this would include Ulysses, and the extraordinary James Joyce depictions of a very explicit sex in the Molly Bloom soliloquy, as well as it would contain Harlequin dime store novels which deal extensively, and if not explicitly, describe certainly implied ultimate sexual activity.

Unknown Speaker: But strictly speaking, material doesn't come within the ordinance.

The ordinance does not ban any material whatever.

It just says that if a person is engaged in a business, a primary purpose of which, a primary purpose of which is the sale of such material, he needs to comply with the licensing.

Mr. Weston: Well, interestingly, Justice Scalia, the ordinance says that only with respect to bookstores, and that may well be why the city in its brief discussed bookstores only.

The other media, interestingly, are described in much more elastic terms.

For example, with respect to arcades, it's clear that the dissemination of even one film with a sexually oriented--

Unknown Speaker: Well, wait.

What kind of Plaintiffs do we have here?

Do we have arcade Plaintiffs--

Mr. Weston: --Yes, we have arcades, we have bookstores, we have theaters, we have adult cabarets, we have a... a rather broad array.

Unknown Speaker: --Do these Plaintiffs include all of the kinds of businesses covered by the ordinance?

I didn't understand that.

Mr. Weston: No, no, Your Honor.

They do not include sexual encounter establishments and nude modeling establishments.

But they include all of the potential speech oriented businesses, which are--

Unknown Speaker: Well, is... is it your position that if the ordinance is bad with respect to arcades, it's... it has to be bad with respect to bookstores too?

Mr. Weston: --No, I think that it would have to be evaluated in, with respect--

Unknown Speaker: Right.

So then respond to the point I made regarding bookstores.

Mr. Weston: --The--

Unknown Speaker: It is the case that no material is... is... prevented from being sold.

Mr. Weston: --Well, on the face it may appear that way, but it is very unclear as to what, in the literal language of the ordinance, is a... a principal business purpose, in terms of what exact... as opposed to primary... and that may make... I'm not trying to split hairs, that may make some semantical difference, because the term is... and a practical difference.

The term is simply not defined anywhere in the ordinance.

But... I... what... the notion clearly is, is that under the Dallas ordinance one may not disseminate the speech one has chosen to disseminate, absent obtaining a permit.

The only way, under the implication in... in Your Honor's question, that one may do so, is by agreeing to or choosing to disseminate other speech which would... which one would not otherwise do, some governmentally implied alternative speech, in order to qualify under the ordinance.

So, given that one could not justify the ordinance by requiring one to carry speech which otherwise one would not, Riley, Terminiello, one would think that in a real sense, Justice Scalia, this piece of legislation does in fact impose a total prior restraint in the City of Dallas on the ability of one to disseminate the speech one chooses in the absence of obtaining the permit.

Unknown Speaker: Actually you don't have to do other speech in order to fall out of the a primary purpose of which.

You could sell shoe shines and chewing gum, right?

Mr. Weston: No, because... I don't think so.

Unknown Speaker: Really?

Mr. Weston: Because one would... well, I suppose theoretically--

Unknown Speaker: Sure you could.

Mr. Weston: --Unless--

Unknown Speaker: You don't have to sell, the state in order... in order for you to avoid the licensing scheme, the state is not requiring you to... to promulgate other speech, so long as you have other business which makes the sale of the sexually explicit material not a primary purpose.

Mr. Weston: --I... I think that is probably a fair observation.

One could sell 95 percent a box of five cent Kleenex, or "Kleenices" and at the same time have one's entire other selection be sexually oriented expression, and conceivably, and again we don't know how the legislation will be dealt with, but of course the point would be what is one's principal business purpose.

And if the purpose was deemed to be the sexually oriented material, notwithstanding the acres and acres of shelves of Kleenex boxes, apparently the ordinance would still require qualification.

In my experience with these kinds of ordinances around the country, and it now spans more years than I would like to admit... these definitional aspects are expanded consistently to deal with whatever attempts are made by businesses to exempt themselves from the scope of the... of the legislation.

And so we would conclude, with respect to this portion, by simply noting that in a fair and principled sense this legislation is indeed a prior restraint.

One may not disseminate the speech of one's choice in a real sense, and depending on which of the media are involved, without applying for and being granted the permit.

And it is manifestly clear that none of the Freedman level safeguards are contained within it, there is no time period within which the city must grant the license or go to court to justify the denial.

There is no obligation on the part of the city to go to court to justify the denial at all, and manifestly there is no--

Unknown Speaker: Well, how would that fit in here?

I mean, in those cases it was a question of some... something being banned by a sensor, as I recall.

Mr. Weston: --But not in Riley, Mr. Chief Justice, where it was exactly a periodic--

Unknown Speaker: Well, let's... let's take Free... didn't you also mention Freedman?

Mr. Weston: --Well, yes, but the significance of Riley, of course, is that Riley expands the item specific factual setting of Freedman and many of the subsequent cases, and applies it to the totally so-called content neutral requirement of obtaining a periodic license as a precondition to be able to engage in speech where the purpose of the speech was to raise money.

Riley is, with all respect, an unequivocal application of the Freedman doctrine to the general, mere license as a precondition for speech.

And what I find most eloquent in the city's brief is that at no point, despite our frequent references to Riley and discussions of it and its being a new and important case, not one mention of Riley or attempt to distinguish its... its, we respectfully submit, clear holding.

What we would submit is for all of the reasons which underlie the Riley decision and the absence of the Freedman safeguards with respect to the entirety of this--

Unknown Speaker: Well, what... what would you... you say you are entitled to a quick hearing, in effect, on what?

Mr. Weston: --On whether the applicant is entitled to the license, so that the applicant may then commence the applicant's speech-oriented business.

Imagine, let me just, if I may--

Unknown Speaker: So... so what would you be arguing, supposing the city turns down the license, that you qualified under the terms of... of the statute?

Mr. Weston: --Yes, it may... it may well, the disqualification potential--

Unknown Speaker: Is that... is that what Riley held, that you had an, a... a right to appeal, whether or not you qualified under the state law?

I... I didn't read it that way.

Mr. Weston: --But isn't that the absolute implication?

The state sets us a licensure requirement which says that before you may speak you must obtain a permit.

You are to stay in limbo--

Unknown Speaker: Before you may sell these things.

You know, call it speak if you want, but this... the owner of these stores isn't speaking.

He's selling books.

Mr. Weston: --Mr. Chief Justice--

Unknown Speaker: Do you mean that every bookstore, I think this is the point, do you mean that every bookstore cannot be subjected to normal licensing requirements, but you have to have a... a special accelerated provision for the licensing of that type of business that engages in expression.

Bookstores, I suppose, stores... I don't know, stores that tell... sell television sets, they cannot be subjected to normal business licensing, which don't have time limits on... on when the city council must act.

Mr. Weston: --Justice Scalia, I don't think it is fair to include television sets within it, and I know that's not the--

Unknown Speaker: All right, leave out... sorry about that, I went too far.

Forget television sets, just... just... just bookstores.

Mr. Weston: --Yes.

The burden on municipal government with respect to it is de minimis.

Unknown Speaker: Is that the practice in... in communities throughout the country, that there are special licensing provisions for bookstores?

Mr. Weston: Absolutely.

In many, many communities, if not most, particularly where those communities truly are not interested in stifling any message or eliminating any materials disseminated at the businesses.

What those ordinances provide is that they have special time periods for First Amendment businesses, for expressive-oriented businesses, they have special provisions so that either the businesses may operate on the filing of an application fee, or they have a provision that states that either the permit is granted, or... is denied within 30 days or deemed granted, or some... or some time period.

Unknown Speaker: Well, what... what... what if a city has an ordinance that simply says in order to do business you've to show you have got a sales tax certificate, you are going to pay your sales tax, you have to have a... a zoning certificate to show your business in compliance with the zoning.

And it applies that across the board to everybody, including bookstores.

Now, do bookstores but nobody else have a right to a quick hearing on that sort of thing?

Mr. Weston: Well, with respect--

Unknown Speaker: You... you can answer that yes or no, can't you?

Mr. Weston: --Yes.

Unknown Speaker: Bookstores do.

Mr. Weston: Certainly.

And this Court has on many occasions made separate and... and set more sensitive requirements in connection with speech businesses or speech... speech-involved circumstances, simply because the cost of not doing so is terribly, terribly great.

We know that--

Unknown Speaker: Well, what on earth... what on earth is the cost of not doing so?

Why shouldn't a proprietor of a bookstore be held to the same zoning requirements and sales tax requirements as everybody else?

Mr. Weston: --But, Mr. Chief Justice, we're not suggesting in any way that the bookstore shouldn't be subject to the same requirements.

Unknown Speaker: Well, then why does the Constitution require a special deal for the bookstore owner?

Mr. Weston: Because we have placed speech and the First Amendment at a... at a special--

Unknown Speaker: But there is no case from this Court that comes anywhere close to supporting what you are saying.

Mr. Weston: --That what, Mr. Chief Justice, that have to be special concerns--

Unknown Speaker: That... that a bookstore, subjected to a general license requirement like everybody else to show that it is in compliance with a zoning ordinance, is entitled to a special hearing.

Mr. Weston: --The special hearing--

Unknown Speaker: Now, isn't... what... what is your closest case?

Mr. Weston: --If I may--

Unknown Speaker: Could you tell me what the case most closely supporting that position is?

Mr. Weston: --Yes, well, Riley is the one that most immediately comes to mind.

But the contemplation that there is some special hearing which we seek in connection with this is simply not the position.

One has, municipally, the opportunity to appeals.

One has the opportunity to litigation.

But what we are saying here is that, whereas, just as a store... a municipality may ban bowling alleys or may ban hardware stores or incinerators, or may subject that kind of activity to very, very long periods of time before permitting that activity to go, there is very little impetus on the part of a municipal government to do anything to frustrate or delay or retard the granting of the permit.

There is simply no issue that the speech involved in the concern will play any role.

This is not--

Unknown Speaker: How about a convenience store that sells newspapers and magazines?

Are they... they entitled to a special accelerated hearing, too?

Mr. Weston: --It would seem--

Unknown Speaker: Or a supermarket that, you know, sells--

Mr. Weston: --No, I... I think that's a fair question--

Unknown Speaker: --I think it is.

Mr. Weston: --and in order to balance it out it would seem that if businesses are primarily involved with expressive activity, then they should be dealt with in a way that permits the businesses to be protected from what we all know to be the case.

And that is that government will silence by delay indirectly if it cannot silence directly.

Unknown Speaker: And that is a constitutional principle, that if... if you sell nothing but newspapers you are entitled to an accelerated hearing, but if you sell newspapers and bubble gum or, you know, a lot of other things in a convenience store, you are not?

That's a constitutional principle?

Mr. Weston: I think the point... well, I think that is a fair implication in the fair sense, Justice Scalia, of what this Court's opinions have... have indicated, and certainly a fair sense of what the First Amendment protections have been designed to be, and must be, in order to make anything more than a hollow promise, the guarantees that speech will not be interfered with before a final judicial determination of its unprotectedness.

And what these pieces of legislation do is simply permit the cities to be able to do indirectly what they cannot do directly.

And unless we can maintain this kind of principled articulation of... of indication to government that where the First Amendment is concerned, and where we deal with primarily First Amendment or expressive businesses, given the minimal cost to government, and I assure you that these are minimal costs.

We are not dealing with nuclear power plants.

What the issue is here is a retail establishment to be able to sell books or to show movies.

That is the bulk of what the conduct is.

Unknown Speaker: And what, in a nutshell, are the requirements that you say have to be met?

Mr. Weston: Three, Justice O'Connor, with respect to this, and... and particularly dealing with the municipal piece of legislation where surely the municipal government is not in a position to control the progress of the courts, as the... as state government may well be.

That there must be a reasonable time period within which government must either grant the permit which government has said is... is required in... in order to do the speech conduct.

Secondly, that if government does not grant the permit within the reasonable period of time, then government must go to court to explain why it has failed to grant the permit.

And lastly, as part of that judicial proceeding, government must bear the burden of justifying its failure to grant the permit.

On that basis, there will be a meaningful opportunity for... for businesses not... to... to be protected at the trench level, at the... at the street... municipal level from censorship by delay and administrative and bureaucratic silence.

Unknown Speaker: Counsel, do you take it, take the position that the requirement for the license be denied for one who has been previously convicted of a crime as an independent basis for striking either that provision or the whole ordinance?

Mr. Weston: With respect, I think I understand your question, Justice Kennedy.

With respect to the Freedman argument that I have made, that would be with respect to the totality of the ordinance.

With respect to the specific non, either speech or nonspeech criminal conviction disqualification provisions, we would attack those independently.

Most immediate--

Unknown Speaker: My question is to those, I take it that a court, in sentencing, could impose these as a condition of parole, could it not?

Mr. Weston: --Or probation--

Unknown Speaker: Or probation.

Mr. Weston: --Surely.

Unknown Speaker: Well, then why can't the city exercise that same power here?

Mr. Weston: The aspect of a court imposing that particular post-probationary limitation is simply a substitute for the court's having the opportunity to place the defendant in jail, and by so doing deprive the defendant of doing anything, whether it be any sort of speech, any sort of business, any sort of normal human relationships.

That's a far cry, it seems, in terms of the analysis of a city not involved in the conviction situation, but the city more importantly dealing with the absolute license to speak.

Unknown Speaker: Well, it seems to me the prohibition is... the same in either case, and... and the court is certainly bound by the First Amendment just as the city council is.

Mr. Weston: The... but once again we know that a prisoner contained, confined in... in some custodial setting, simply loses basic rights of all dimensions.

And the probationary notion is simply a vicarious extension of the fact that the defendant's body could otherwise be imprisoned.

The term beyond the penal period is simply not subject to continuing restraint with respect to virtually any civil rights, at least as... that is not quite entirely true, we know that one may not possess a gun, in... in that sense, but in terms of fundamental rights, one, those... those restraints simply do not endure.

With respect to this setting, and what we stress, of course, is the obscenity conviction as a basis for disqualification or revocation, is, in this circumstance, the obscenity conviction clearly violates the classical prior restraints of Mere Citizens for Better Austin v. Keefe.

Unknown Speaker: I... I still don't see... I still don't see why a court can do it but the legislature can't.

The court says instead of giving you ten years I am going to give you five years and a probationary period during which you can't sell this kind... this kind of material.

Why can't a legislature say the same thing: well, we were going to make it ten years for obscenity, but instead we'll make it only five years and for the next, and permanently you can't go into the obscenity business afterwards, or the pornography business.

Mr. Weston: At the risk of sounding simplistic, the... the legislature, with respect to the Dallas city council, is simply not the legislature which has created the original punishment which provided the judge the opportunity to keep somebody in jail for ten or 15 years.

Unknown Speaker: Well, you're... you're avoiding the hypothetical though.

As a matter of state law, this hasn't been challenged beyond the authority of the city to do it.

Let's assume the legislature passed the law, in order to answer the question.

Mr. Weston: Well, but with respect to... I'm seeking to answer the question, it is not simply a question of legislative power.

Justice Scalia's question, Justice Kennedy, was simply why, if a court can keep an individual on probation where the court had the opportunity to confine that body, why can't a different legislature set a series of criteria for its own... for its own regulated business.

And the two, with all respect, strike me as complete non sequiturs.

The judge has the ability to keep that individual in jail; the judge owns that person.

The... the difference--

Unknown Speaker: Well, the legislative body of course determines the penalties for criminal offenses.

Why can't the legislative body say, in addition to whatever else is imposed in criminal sentencing, we determine it's inappropriate for someone convicted of certain crimes, for a certain period of time, to go into the business of selling sexually explicit material?

Mr. Weston: --I... I--

Unknown Speaker: You may answer the question.

Mr. Weston: --Thank you, Mr. Chief Justice.

I note, Justice O'Connor, really there are two aspects.

One, of course, are the speech predicate offenses, which then trigger the remedy to which the Court refers, or the nonspeech predicates to which... which trigger the same remedy.

With respect to the speech predicates I would simply note that it was the State of Minnesota in Near which sought to create the disqualification on Near for following the determinations that he had engaged in criminal libel or... or... or libel.

So it would appear that, for this Court, merely ceding the right to create this disqualification to the legislature is of no moment.

With respect to the analyses for the nonspeech predicate conduct, which are legion throughout this legislation--

Unknown Speaker: I think you have answered the question, Mr. Weston.

Your time has expired.

Thank you.

Mr. Weston: --Thank you, Mr. Chief Justice, I'm sorry.

Unknown Speaker: Ms. Muncy.

Argument of Analeslie Muncy

Mr. Muncy: Mr. Chief Justice, and may it please the Court:

While the Petitioners have raised a myriad of issues, I believe the critical issue in this case is whether the city has a justification for the licensing provisions in the ordinance that is unrelated to the... to the suppression of speech, and whether these provisions are substantially broader than necessary to achieve the city's purpose.

It is clear from the circumstances that led to the adoption of the ordinance that the city has ample justification for these provisions.

In 1985 and 1986 the City of Dallas was experiencing a proliferation of sexually oriented businesses in the city, as were many other large urban areas.

They were beginning to cluster in some areas and then they were beginning to open up in small neighborhood shopping centers.

So the city council determined that it should investigate the effects of these businesses, and did so by looking at studies from other cities.

It... it became evidence from these studies that there are serious problems of crime and urban blight associated with sexually oriented businesses.

The city... the city staff collected studies from nine cities, including Los Angeles, Phoenix, St. Paul and Austin, Texas.

Each of these studies was consistent in their findings that these businesses foster higher crime rates and lower property values in the areas where they are located.

Secondly, the city council looked at Dallas itself.

Unknown Speaker: Didn't those studies have to do with the problems arising from the concentration of such businesses?

Mr. Muncy: The studies looked at both areas, where there were concentrations of those types of businesses, and they looked at areas where maybe there was only one located, and I refer especially to the study from the City of Austin which looked at both--

Unknown Speaker: I thought the studies basically... address... addressed the concentration or the location of the in neighborhoods or adjacent to schools.

Did any of them address the question... I guess Dallas has zoning ordinances in effect requiring that such businesses, the businesses in question here, be spread out and located in only certain areas.

Is that right?

Mr. Muncy: --That is correct.

This ordinance created location requirements for sexually oriented businesses, and this Court did not accept any of the questions on that--

Unknown Speaker: That is not at issue here.

What is at issue is an additional requirement, to wit, the licensing requirement.

Mr. Muncy: --Yes, but we do have--

Unknown Speaker: Did the studies have to do with the effect of letting someone who has been previously convicted of any of these offenses go into business again?

Mr. Muncy: --No, the studies did not address that, only--

Unknown Speaker: I mean, they really supported the zoning aspects, didn't they?

Mr. Muncy: --They were--

Unknown Speaker: Not the licensing aspects?

Mr. Muncy: --Yes.

They were initiated to justify zoning, but they approached the crime that is generated by the businesses.

In addition, the city council looked at what was happening in Dallas and did studies around, or did a study around an area in Dallas where there were a number of these businesses.

And we do... while they are not in the Joint Appendix, there are exhibits in the record that describe what was happening in Dallas, and particularly an affidavit from a Dallas police officer that describes graphically what actually goes on in these businesses.

And if you are interested in looking, those are Defendant's exhibits number 19, 20, 21, 22, and 23.

The city council then decided to regulate the... the businesses and enacted the ordinance which is... which under attack here today.

Now, the question is, is there any constitutional problem with what they did.

While the Petitioners have attacked almost every provision in the ordinance, as best I can tell, there are... there are primarily two matters that are at issue.

Number one, whether persons convicted of certain crimes can be disqualified from operating sexually oriented businesses for a temporary period of time.

And secondly,--

Unknown Speaker: Are you raising any question of standing here at all to attack that particular position?

Mr. Muncy: --We did not raise the question of standing at this level.

We looked at the cases on standing and it seemed to us that we would not have a chance of prevailing on that issue, and we did not raise it at this level, although we did raise it at the lower levels.

Unknown Speaker: Do you think there is standing here?

Mr. Muncy: I believe that there are one or two of the Petitioners that have had their licenses denied based on criminal conviction.

In that... in that case I would have standing.

The second issue that I think is of some--

Unknown Speaker: Before you leave that, would you refresh my recollection.

Does this just prevent the licensee himself, I mean disqualify the licensee himself if he has a prior conviction, or does it also prohibit him from employing people who have prior convictions?

Mr. Muncy: --No, just the licensee.

Unknown Speaker: Just the licensee.

Mr. Muncy: Yes, the person operating--

Unknown Speaker: Well... well, the spouse of the licensee can be convicted of one of these crimes and that disqualifies the licensee, does it not?

Mr. Muncy: --Yes, it does.

The second issue that I think--

Unknown Speaker: One other point.

If someone is living or residing with the licensee and that person is convicted of one of the specified offenses, is that not grounds for denying the license?

Mr. Muncy: --Yes, it is.

But the second issue that the Petitioners have discussed most frequently is the, is whether the Freedman procedural safeguards apply to the licensing portion of the ordinance.

In response to the issue on--

Unknown Speaker: Could you... I... I... I didn't quite realize what Justice Kennedy just pointed out.

Does this mean that if somebody, say in a family, one member of the family, worked in a bookstore and got sometimes convicted of selling one obscene magazine, then everybody who lives in that family could be disqualified from... in that home, would be disqualified from getting a license?

Mr. Muncy: --No.

What it means is that if a person is, owns or operates or is the applicant or licensee for a sexually oriented business is convicted of one of the offenses that disqualifies, then that person's spouse or a person residing with that person cannot become the applicant or the licensee for that... for that business, or for a similar sexually oriented business in the city.

Unknown Speaker: The person has to have been operating a business at the time of the conviction.

Is that what you are saying?

In other words, say just before the ordinance was passed, Mr. X... Mrs. X was convicted of selling obscene magazines, working in a store.

Mr. Muncy: Then Mr. X would not be able to obtain a sexually oriented business license.

And the basis for that is that under Texas community property law both marriage partners have the same interest... financial interest, in the business as the other.

Unknown Speaker: And what if they were not married, if he just lived with Ms. X and she was convicted?

Mr. Muncy: You have hit on the basis for that provision being in the ordinance.

At least in Texas, common law marriages are quite prevalent, and that is the reason for having that--

Unknown Speaker: Well, say it's not a common law marriage.

I want to get away from the marriage.

They just live together, and therefore he's barred under the ordinance.

Mr. Muncy: --That is correct.

Unknown Speaker: How... how can you justify that?

Mr. Muncy: As I said, the... the base for including that provision in the ordinance is the prevalence of common law marriages in Texas.

And so, I suppose if they are not married and it is not a common law marriage, it's easy enough to move to a different apartment, if that is what it takes to get their license.

But--

Unknown Speaker: Or couldn't one say it is wholly arbitrary if you have those facts.

I mean, the ordinance isn't intended to make people break up their social relationships, is it?

Mr. Muncy: --No, it is not.

Unknown Speaker: So to that extent you are conceding, I think, the ordinance is over broad.

Maybe it's not very important--

Mr. Muncy: Well, I won't concede that it is over broad.

The... I think there are remedies for... for the person who is living with another one, but I... I... the best representation I can make to you about those two provisions is they are to get at the marriage situation.

Unknown Speaker: --What if they are brother and sister?

Does it still apply?

Mr. Muncy: It still applies, and in that case--

Unknown Speaker: So, if the sister is convicted of something, the brother cannot get a license?

Mr. Muncy: --In that case I think our... our argument would be that the close family relationship really means that the person who... who will continue to operate the business is probably the one that had the conviction in the first place.

Unknown Speaker: Well, what if the facts are just the opposite?

It was an isolated incident.

The woman worked for a convenience store that sold one obscene magazine; she happened to get convicted.

That disqualifies her brother.

Mr. Muncy: That disqualifies him if they are living together, from operating a sexually oriented business.

Unknown Speaker: If it disqualifies her brother, I suppose it disqualifies her father, too.

Mr. Muncy: If they are living together.

Unknown Speaker: They live in the same home.

And then I don't understand the justification for that.

I think you have said there is none, I think that's it.

[Laughter]

Mr. Muncy: The best justification I can give is that the intimate relationship that they have from living together probably indicates that in the operation of the business, we'll have the same operator that we had before the new license was issued.

Unknown Speaker: Well, I'm assuming there never was an operator before.

This is a brand new license.

The father or the brother applies for it, and a member of the family... household, has previously been convicted of one offense involving the sale of one obscene magazine.

And that disqualifies the whole household.

Mr. Muncy: I understand your question.

Unknown Speaker: Mrs. Muncy, do we have somebody who has standing to challenge this particular provision of the ordinance?

You say we have people who have been convicted.

Have... have they been convicted on the basis of being somebody's brother or sister, or live-in, noncommon law spouse?

Mr. Muncy: To my knowledge, none of the Petitioners has been disqualified on the basis of either of those provisions.

Unknown Speaker: So, maybe that provision is not before us.

Mr. Muncy: It is possible.

Unknown Speaker: That goes back to my question.

I... I'd like to get away on your responses to the implications of immorality.

Suppose the individual is an old World War II buddy who lost a leg, and he is sympathetic to him, and invited him to live in his house.

He'd still be disqualified?

Mr. Muncy: I would... yes, he would, but that is certainly not--

Unknown Speaker: Since we are getting into this matter, counsel, I... I... I think there are two different provisions.

One is, is that there is a disqualification if a spouse has been convicted of a crime.

The second is a disqualification if someone is residing with an applicant and that person has been denied a license.

Is that not the distinction?

So I think your case is slightly stronger than it sounds, unless I am misreading the ordinance.

Mr. Muncy: --That is correct.

That person--

Unknown Speaker: So the only... the only nonspousal disabilities are for persons who are residing with the applicant, if those persons themselves have been denied a license.

Is that not correct?

Mr. Muncy: --That is correct, that is exactly correct.

Unknown Speaker: Thank you.

Mr. Muncy: Yes, thank you.

But--

Unknown Speaker: Which explanation is quite apparent.

Its purpose is to prevent the evasion of the provision by simply when you are denied a... a license, getting it granted to someone else who is closely related to you, and you are the actual person running the business.

Mr. Muncy: --That is exactly the purpose of the provision, yes.

But, getting to the individual whose license is denied or revoked because of a criminal provision, the first point I want to make on that is that the First Amendment rights of consumers is in no way... no way affected by that provision.

These people are... intermediaries who are purveying the messages of others.

And if one individual has a license denied, there will be another to step in and take his place to operate that business.

Because, as the Petitioners pointed out in their Brief to the Fifth Circuit, the competition for locations under the location restriction is going to be fierce.

And again, the distributors, the national distributors of this material which are represented by the attorneys here today, have a vested interest in making sure that the number of outlets of these do not diminish.

And what we hope is that the result of this provision will make sure that these national companies that distribute this material will be motivated to find responsible people to operate the businesses that service their local outlets.

Unknown Speaker: Well, we don't have cases which say that a licensing procedure can be imposed on the press or the media on the grounds that other segments of the press or the media can promulgate the same message, do we?

Mr. Muncy: No.

Unknown Speaker: You... you are asking us really to strike out on... on very new ground on that argument, are you not?

Mr. Muncy: All I... all I'm saying is that the availability will not be diminished.

The First Amendment rights--

Unknown Speaker: All I'm saying is that that is a new argument for which you have no precedent.

Mr. Muncy: --The question of availability was referred to in--

Unknown Speaker: Is that correct or not?

Mr. Muncy: --in Justice Powell's concurring opinion in Young.

And I... he... he made quite a bit of that, and expressed the importance of availability of the material to the customers that... that seek... that seek it, to read it.

The second point that I want to make is that the only conceivable First Amendment interest that I think one can really be concerned about is that of the individual whose license is denied.

And we contend that this is an attenuated First Amendment interest at best because it has absolutely nothing to do with the content of the material that is being sold in the... inside the establishment or its creation.

It solely relates to the running of a commercial business.

Now, we're not saying that these--

Unknown Speaker: It has something to do with the content of the material that is sold, because it has... it is limited to sexually explicit material, isn't it?

Mr. Muncy: --That is correct, Mr. Chief Justice, but this ordinance is content neutral under the analysis in the Renton case, and the disqualification has nothing to do with the content of the material that is sold inside the establishment.

The disqualification is based on whether this individual has been convicted of prostitution or public lewdness or promotion of prostitution, or one of the other of 13 crimes that serve as a disqualification.

But we are not saying that individuals cannot express themselves through sexually explicit material, if that is what they want to do, just because they have had this license denied.

They may sell this same material, either wholesale through the mail, even door to door, and in fact, the day after a license is denied or revoked, they can sell the same material that was sold inside the business out on the street corner.

There is nothing to prohibit it.

I think that graphically illustrates that this ordinance has nothing to do with restraining any particular expressive material or an individual's right to sell it.

It only relates to the operation of a commercial business.

I think, given the legitimate and substantial interest that the city has that led to the passage of this ordinance, the city's position is that the minimal incidental burden that it places on the individual's right is more than outweighed by the city's substantial interest.

Unknown Speaker: Mrs. Muncy, what is it take to establish that a principal purpose of the business is the sale of... of... these... these materials portraying sexual acts?

Is... suppose I run a general bookstore and my overall purpose is to sell books, and it turns out that a substantial portion of the books, I don't know what you want to consider a substantial portion, but a substantial portion does contain either pictures or verbal descriptions of sexual activities that... that come under the ordinance.

Could it be said on that basis that I have as a principal purpose of that business, or do I have to have explicitly in mind when I go into the business... business, I am going to run a porno shop.

I... I want to have either a whole shop that is devoted to pornography, or I am going to have a, you know, a section of the store devoted to it.

Which, is there some scienter requirement?

Mr. Muncy: No, there isn't.

Unknown Speaker: There isn't.

Mr. Muncy: No.

As a practical matter, in the City of Dallas, we... there has been no confusion over that question because these businesses for the most part are 100 percent sexually explicit material.

However, we've had... given some thought to how... if we were called on to draw the line, how would we do it.

I think there are several factors that would enter into that.

One would be the percentage of the business in terms of display in the store and amount of sales, but equally important, I think, is the way the proprietor advertises the business.

Because a sexually explicit business has to attract a certain clientele, and if you don't advertise it you won't get that clientele.

Unknown Speaker: Well, that sounds like a sienter requirement.

I mean, that... that seems to me to be direct... directed precisely at what I asked you was a purpose and you said it wasn't.

You... you... you seem to be... to be saying the person must want to sell sexual material, that that's--

Mr. Muncy: I'm saying that could be one of the factors in the determination.

The other is the amount of display and the percentage of sales.

In... in... in discussing what percentage would... would it take to make this a sexually explicit business, I think we have discussed 10 percent to 25 percent of the business being in that type of materials as triggering that that is a principal business purpose of that particular business.

Unknown Speaker: --All right, well, let's assume Barnes and Noble's is running a bookstore in Dallas and 10 percent of its books contain description of sexual acts that come under the ordinance, which might not surprise me, and only one of those books has no literary or artistic value.

That's all it would take, right, if one book--

Mr. Muncy: No, that would not be a principal business purpose of that store.

Unknown Speaker: --Why wouldn't it?

Mr. Muncy: One book?

Out of thousands?

Unknown Speaker: No, no, no.

Ten percent of the books.

Mr. Muncy: Oh.

Unknown Speaker: Ten percent of the books contain description of sexual acts--

Mr. Muncy: Oh, I see.

Unknown Speaker: --but all of them except one book have literary value.

Mr. Muncy: Literary value.

Unknown Speaker: They would come within the ordinance, wouldn't they?

Mr. Muncy: No, because--

Unknown Speaker: There is an exception for literary--

Mr. Muncy: --There is exception from the licensing requirements for, and from the location requirements, for books with literary value.

Unknown Speaker: --No, there isn't.

The... the exception says it is a defense if every book has--

Mr. Muncy: Each.

Unknown Speaker: --each book has literary or artistic value.

That is quite different.

So if Barnes and Noble's happens to sell one book that has no literary value, and sells 10 percent of its overall sales of, you know, Ulysses and other books that describe sexual acts, Barnes and Noble is under the ordinance then, right?

Mr. Muncy: What I am saying is, you have told me that only one book qualifies for the licensing provisions under the ordinance, and what I am saying is that means that it is not a principal business purpose of that store.

Because the other, remainder of the 10 percent, are exempt under the exception for literary value.

Unknown Speaker: But no, they are not exempt.

They are not exempt.

You... you just acknowledged that the exception applies only if every--

Mr. Muncy: All right.

I think we're talking past each other.

Unknown Speaker: --I know I hope so.

Mr. Muncy: The, each book of the 10 percent, except one, is exempt from the licensing requirement.

Each but one.

And only one book qualifies as sexually explicit with no literary value, if I understand your hypothetical correctly.

Unknown Speaker: That's not how it reads.

Now... now, if you are telling me that is how it is interpreted, it will make it a lot easier case.

But that is certainly not the way it reads.

The... do you have the exception handy?

I forget what... I forget what section it is, but it says it shall be a defense to any prosecution that each... each of, each item of the sexually explicit material has literary value.

Mr. Muncy: I think I understand your question.

What I'm saying is that it will not qualify as a principal business purpose, so if only one of the books doesn't meet this exception, or this defense, that's my... that's what I am saying to you.

Unknown Speaker: But the business purpose has to be a purpose to sell sexually explicit material, which is simply defined as material that describes these sexual acts, whether it has literary value or not.

So, if you have as a business purpose selling this stuff, whether it has literary value or not, you have the... the offending purpose.

Mr. Muncy: I understand what you are saying, and my response would be that it wasn't the intent--

Unknown Speaker: Mrs. Muncy, were there any of the bookstore Plaintiffs in this action correspond to Justice Scalia's hypothetical, like Barnes and Noble--

Mr. Muncy: --No.

All the Petitioner bookstores in this case are 100 percent sexually explicit materials.

And just--

Unknown Speaker: --Was there a finding of fact on that?

Mr. Muncy: --I don't believe so, no.

No.

It's... no.

But just to--

Unknown Speaker: This was a facial challenge to the ordinance?

Mr. Muncy: --Yes, a facial challenge.

It was decided on the motions for summary judgment.

But just to comment once more on Justice Scalia's question.

The way I am describing the ordinance is the intent and the way that it is enforced.

Unknown Speaker: All right.

Mrs. Muncy, may I ask, the ordinance contains none of the Freedman procedures, does it?

Mr. Muncy: That's correct.

Unknown Speaker: Why?

Mr. Muncy: There... there--

Unknown Speaker: Why isn't that, without them isn't it fatally unconstitutional?

Mr. Muncy: --The Court has invalidated two types of licensing ordinances that don't contain the Freedman protections.

First is, where the issuance of a license, is dependent upon the content of the material.

And the second is, where the issuance of a license, is dependent upon totally, unbridled discretion of the issuing official.

And neither of those situations applies in this case.

There is nothing in the issuance of the license that has anything to do with the content of the material in this licensing system.

And secondly--

Unknown Speaker: Do you think that's what the Riley case found?

Mr. Muncy: --I don't think the Riley case is applicable here at all.

First... first of all, I believe the Court in the Riley case said that that was a content-based statute.

This is a content-neutral ordinance.

And second of all, the licensing portion of the ordinance... of the law in the Riley case, was invalidated because there was no time limit on when... it license could be issued.

And in this case we have a 30-day time limit.

The chief is required to issue the license within 30 days.

Unknown Speaker: And if it's... if it's denied, there is no provision that the city must take it to court and bear the burden of proof.

Mr. Muncy: That's... that's correct.

But each of the requirements for the license is objective, and it serves and provides criteria for a court to determine very easily if there has been any abuse of those requirements.

Unknown Speaker: Did Riley say that was an exception?

Mr. Muncy: I don't believe Riley addressed that issue.

Unknown Speaker: He doesn't have to issue it in 30 days unless there has already been obtained the certain other permissions... fire and... and other--

Mr. Muncy: Petitioners argued--

Unknown Speaker: --permission from other city's authorities that are needed, isn't that right?

Mr. Muncy: --Yes.

Petitioners argued in their reply brief that that was... could be used as a delaying tactic.

But let me say, the way the ordinance is administered, when an applicant puts in his application he is given the telephone numbers of the inspectors, he is told to call them, set up an appointment for when he will be there to allow the inspectors to inspect the business, and every effort is made to get everything done within 30 days.

If--

Unknown Speaker: I suppose that if that is bad anyway it is bad because the fire licensing ordinance is bad.

That is to say, even without this ordinance, if you didn't issue a fire permit to a... to a bookstore within... within a specified period you would be in violation anyway.

Mr. Muncy: --That is correct.

And... and with respect to the inspection provisions, because much has been made of that, under the Dallas development code every... every business is required to get a Certificate of Occupancy when it moves into a new location and... and the use of that structure changes.

Those requirements for a Certificate of Occupancy and the inspections that are required in that instance are exactly the same as the inspection... provisions that are in this ordinance.

So there is nothing different or unique about these inspection provisions than apply to all businesses that operate in the city.

Unknown Speaker: You don't have special provisions for bookstores?

Mr. Muncy: No, we do not.

It is the same for--

Unknown Speaker: Do you know if any Texas cities do?

Mr. Muncy: --I can't answer for other Texas cities.

All... all businesses must have a Certificate of Occupancy that require these inspection provisions.

For just a... a moment, let me comment on some of the arguments that counsel made.

On the question of principal business purpose not being in the language regarding video arcades and movie theaters, there the language is "regularly features sexually explicit films".

I have already addressed the question of the time period, there is a 30 day time period with regard to issuance of the license under this ordinance.

If the Court has a problem with analyzing the licensing provisions under a time, place and manners standard, I don't think the Court should have any problem in applying the O'Brien standard to the Dallas ordinance.

The... the incidental restriction that this ordinance places on a... a... an individual's First Amendment rights is not substantially broader than necessary to accomplish the city's crime control interests.

And the requirements and... and the disqualifications apply only to businesses that are documented to cause these types of sex-related crimes, and only sex-related crimes serve as disqualifications.

So I believe that the Court can apply the O'Brien standard, and it's our position that... that the provisions of this ordinance pass muster very easily under that intermediate level of First Amendment analysis.

Unknown Speaker: May I ask one question about the findings that the city made to justify the ordinance?

You said there was an increase of crime in the areas where these business take place.

Does that mean there was an increase in sex-related crime, or in all kinds of crime?

Mr. Muncy: The studies that are conducted by the other cities generally found the increase was in sex-related crime.

The study that the City of Dallas conducted in the areas that it looked at were in other kinds of crime as well, and in fact found that the increase in crime in the Dallas area around where these businesses were located was 90 percent higher than comparable commercial areas where they are not located.

Unknown Speaker: More robberies and... and things of that kind.

Mr. Muncy: Yes, assaults--

Unknown Speaker: But... but they don't disqualify people for having been prior felons, other than just... disqualification is only for prior sexually related crime.

Mr. Muncy: --It is only for sex-related crimes, and the lower... we had other crimes serving as disqualifications and the district court found that those were not sufficiently related to the licensing purpose, and so we removed those other crimes from the ordinance before it was appealed to the Fifth Circuit.

The licensing provisions of the Dallas ordinance have considerably less direct impact on the First Amendment rights of these individuals than do the location requirements in the ordinance, but they are equally important to the city's crime control purposes.

And so, for sound policy reasons as well as cogent legal justifications, we submit that the Court should affirm the court of appeals in this case.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mrs. Muncy.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Massachusetts v. Oakes - Oral Argument

Sun, 06 Feb 2011 03:45:40 +0000

Case:

Massachusetts v. Oakes

Media File:

87-1651_19890117-argument.mp3

Related Transcript:

87-1651_19890117-argument.xml

Transcript:

ORAL ARGUMENT OF JAMES M. SHANNON ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument now in No. 87-1651, Massachusetts v. Douglas Oakes.

General Shannon, you may proceed whenever you're ready.

Mr. Shannon: Thank You, Mr. Chief Justice, and may it please the Court.

This case comes to the Court on writ of certiorari to the Supreme Judicial Court of Massachusetts.

And it raises the question as to whether the overbreadth of a Massachusetts statute whose purpose is to prevent the sexual exploitation and abuse of children is so real and so substantial as to warrant striking down the whole statute on its face.

The relevant statute, Chapter 272, Section 29A, punishes whoever hires, entices, employs, procures, uses, causes, encourages or knowingly permits a child under the age of 18 to pose or be exhibited in a state of nudity or to participate in sexual conduct for the purpose of any visual representation.

Unidentified Justice: Just so I get it straight, you talk about overbreadth.

What's your position on whether the conduct or the... these... this... what this father did... is it protected or unprotected?

Mr. Shannon: It... it is our position, Your Honor, that although the court below specifically did not react the question as to whether the Respondent's activity was protected or not... it is position that it was clearly not protected.

Unidentified Justice: And it certainly wasn't under the statute.

I gather.

Mr. Shannon: It--

Unidentified Justice: I mean, the statute would certainly forbid it.

Mr. Shannon: --That's right, Your Honor.

It would... would forbid it.

Unidentified Justice: And you say that it's... it could constitutionally do that.

Mr. Shannon: Yes, Your Honor.

Unidentified Justice: xxx--

--General Shannon, the statute has been amended in Massachusetts since we took the case, has it not?

Mr. Shannon: It has, Your Honor.

Unidentified Justice: To add a lasciviousness requirement?

Mr. Shannon: There is a requirement now of lascivious intent which didn't exist prior to the Supreme Judicial Court's decision.

Unidentified Justice: And I gather, would you think that the defendant in this case would have been subject to prosecution and he could be found guilty under the new statute as amended?

Mr. Shannon: I think that the defendant in this case, Your Honor, could have been prosecuted under the nude statute... the new statute because the definition of lascivious intent in that statute includes inappropriate attire and... and suggestive poses.

And I think he could have been--

Unidentified Justice: Right.

Mr. Shannon: --prosecuted.

Unidentified Justice: Is there any other state that has a statute as broad as the one at issue in this case?

Mr. Shannon: I believe, Your Honor, there are two states that have statutes which would prohibit depicting children in the state of nudity.

Kansas is one, and Ohio is the other.

Although the wordings of the statutes are... are a little bit different from Massachusetts, they specifically speak about nudity, depicting a child in a state of nudity being a prosecutable offense.

Unidentified Justice: But the Ohio Supreme Court has... has narrowed the interpretation of its statute, has it not?

Mr. Shannon: That is... that is my understanding, Your Honor.

Unidentified Justice: But you think Kansas is equivalent to Massachusetts?

Mr. Shannon: I do, Your Honor.

Unidentified Justice: You phrase the issue as to whether not overbreadth invalidates the statute.

Do you concede the statute is overbroad?

Mr. Shannon: Yes, Your Honor, we do concede that there is overbreadth.

As the court below said, read literally, the statute would reach benign family activity.

The one example that they used is the... the activity of a parent depicting a child... photographing a child, a toddler, one-year old toddler romping on the beach without a bathing suit on.

Unidentified Justice: Well, the statute doesn't say depicts and it doesn't say photograph.

It says permits a child to pose or be exhibited.

Mr. Shannon: For purposes of visual representation.

Unidentified Justice: But that... that's different than... than permitting the child to be depicted.

Mr. Shannon: Your Honor, the statute does prohibit posing or permitting a child to pose.

There's no question about that.

And it is our belief that in citing that--

Unidentified Justice: What if somebody just snaps the little baby in the wading pool?

Is the baby posing.

Mr. Shannon: --Well, the parent might be permitting the baby to pose or be used for visual representation, and that is the basis for the Supreme Judicial Court's--

Unidentified Justice: Well, again, it doesn't say visual representation.

It's your statute.

If you want to say it's overbroad, I suppose you can.

But it says to be exhibited.

It's not... It's not--

Mr. Shannon: --Well--

Unidentified Justice: --clear to me that a family snapshot is an exhibit.

Mr. Shannon: --Your Honor, is raising I think a very important question here and that is whether... whether even that which has been suggested by the Supreme Judicial Court as being technically or literally in violation of the statute would be because prosecutors in Massachusetts have certainly never read this statute and the words of this statute as to involve that kind of activity.

Unidentified Justice: Well, don't we have to accept the broad interpretation given it by the Massachusetts Supreme Court, and didn't we say in Ferber that we would accept the interpretation of the state court?

Mr. Shannon: Your honor, what we have here I believe is not the construal of the statute really as much as it is a literal reading of the statute--

Unidentified Justice: Well, the court read it literally and said it would... it would be violated by taking a picture of a nude toddler.

Mr. Shannon: --I think that what the court did below was exactly what this Court has said it shouldn't do.

It took one... one conceivable violation, one conceivable infringement on constitutionally protected activity, and constituted that as substantial overbreadth.

Unidentified Justice: Well, are you asking us to reinterpret the statute, or are you willing to have us accept it as it's broadly read by the court?

Mr. Shannon: We are asking... we... we believe that this Court should accept the statute as it has been interpreted by the court, but make a determination as to whether the overbreadth that the court below spoke of is substantial and real--

Unidentified Justice: General Shannon, you mentioned a moment ago that the picture of the toddler on the beach was benign.

Is... is... are you saying it's protected by the First Amendment or that it was just not intended to be covered by a sensible statute?

Mr. Shannon: --Your honor, I think that there is a very substantial argument that could be made that none of the conduct that is implicated by this statute is protected by the Constitution.

On the margins, perhaps there are some... some... some entwinement with constitutionally protected activity.

Now, in the case of a benign family photo, it is arguable I suppose that that kind of activity is protected by a right to privacy.

In some other cases, perhaps taking pictures of children in a state of nudity might be protected by some associational rights.

But even conceding that this statute implicates protected conduct, we believe that this... it does not implicate conduct to the degree that what we're talking about here is anything like real and substantial overbreadth.

Unidentified Justice: If you're talking about some conduct protected by some guarantee of privacy, there wouldn't be any overbreadth analysis.

Mr. Shannon: That's correct.

Unidentified Justice: Overbreadth analysis comes only with the First Amendment.

Mr. Shannon: That's correct.

If we were talking about some associational rights, there might be some possible overbreadth analysis.

But even if we were to concede that this implicates the First Amendment on the margin in some way, which we are willing to concede for the purpose of this argument, I feel very comfortable in saying that any overbreadth here is not real and not substantial, that any possible infringements on constitutionally protected activity are best resolved to the case-by-case analysis that was suggested in the Ferber... in the Ferber case.

And that... and that is what our argument is, Your Honor, because the court below did not go further than to think of this one conceivable impermissible application of the statute, the... the child on the beach or the child in the wading pool.

It then jumped to the conclusion that that one conceivable misapplication of the statute constituted real and substantial overbreadth, and we think in so doing--

Unidentified Justice: General Shannon, have you looked at the brief filed by the Law & Humanities Institute in support of Respondent?

They have all sorts of pictures in there they claim are great works of art and one thing and another.

Do you think any of them are protected by the Constitution?

Mr. Shannon: --I... I do not, Your Honor.

I believe that the Commonwealth of Massachusetts could prohibit constitutionally the taking of those pictures in... in Massachusetts.

And the reason is that the... those pictures, those very sorts of pictures that are contained in that brief, have been shown to do harm to the children who are used as models.

Our legislature made that determination, to be sure, back in 1977 and again when the statute was reenacted in 1982, and tried to deal with it--

Unidentified Justice: Well, then it's quite clear that under your view there's no requirement of any lascivious intent then.

It's quite clear, isn't it, because a lot of these pictures... there's nothing lascivious about them?

Mr. Shannon: --That's... that's rights.

There should be no requirement of lascivious intent in my--

Unidentified Justice: So, it's your... your position any picture of a... any picture of a nude person under the age of whatever it is is... is totally unprotected unless it's an infant.

Unless it's an infant, is that it?

Mr. Shannon: --I would... I would point out to the Court that there is an affirmative defense in the statute that tracks the language of Ferber for... for works of art that are produced for... for a bona fide museum or... or school.

Unidentified Justice: Well, but you've told me none of these would qualify under that.

Mr. Shannon: Well, Your Honor, I... believe that the question of whether the product of the posing ends up being a legitimate work of art is wholly irrelevant to the consideration of whether making that particular photograph or painting did harm to the children who were involved.

And that is the concern that the Commonwealth has in this statutes.

Unidentified Justice: And you presume that in every such case, there is harm to the child.

Mr. Shannon: That is a presumption, Your Honor, that the legislature has made, and I think... I think that they had a very rational basis for making that presumption because, as we have pointed out in our brief--

Unidentified Justice: What is the rational basis?

Mr. Shannon: --The... the rational basis, Your Honor, is... has I think been substantiated by study after study that shows that the use of children in nude photography does do harm to them, does cause them guilt and shame and fear--

Unidentified Justice: Does it show that one picture of one nude child harms that child?

Mr. Shannon: --This is a case--

Unidentified Justice: Does that study show that?

Mr. Shannon: --Yes, Your Honor.

Unidentified Justice: Where is that study?

Will you tell me please?

Mr. Shannon: Your honor, I... I would refer Your Honor to the Riceman Report which is contained in the briefs of amici and to the numerous--

Unidentified Justice: It says that one picture of a nude child injures the child.

Mr. Shannon: --Yes, Your Honor.

I... I think that study after study has shown that taking pictures of children in a state of nudity--

Unidentified Justice: I didn't say what children.

I said a--

Mr. Shannon: --One child, Your Honor.

Unidentified Justice: --one picture of a, one, child.

Mr. Shannon: Your Honor, I believe that the... that it's clear that the reports, the studies, that have been done both before Ferber and since Ferber show that... that posing children in that state does do them... posing a child in that state of nudity does--

Unidentified Justice: Well, I want that quote.

Where is that quote?

Mr. Shannon: --I... I can refer Your Honor to the... to the Riceman Report.

Unidentified Justice: To the report that says the picture of one child taken one time injures that child.

Mr. Shannon: That any posing of a child in a state of nudity, Your Honor, can and does in many cases do harm to that child, that the child will experience shame, fear of blackmail, guilt, that pedophiles that typically take pictures of children as a way of lowering their inhibitions so that they can use them for their own sexual gratification.

Unidentified Justice: This includes a picture taken by a child that the child didn't know about?

Mr. Shannon: If the child later became aware that a picture had been taken.

One of the cases in--

Unidentified Justice: That was not in my hypothetical.

My hypothetical is the child is down on the beach in the nude and he sees nobody else out on the beach and somebody takes a picture, that that injures the child?

Mr. Shannon: --If the child didn't know that a picture had been taken, I suppose the child would not... would not be injured.

Unidentified Justice: Well, so, then your statement is not correct.

The child is not injured automatically.

Mr. Shannon: The child might not be injured automatically, but the child would be injured if that picture were then used for... shown to somebody else or if that picture were then kept by the person who took the picture--

Unidentified Justice: Have you ever seen baby pictures of a child... a nude child on a rug, on a bear skin?

Mr. Shannon: --Yes, Your Honor.

Unidentified Justice: A lot of them, haven't you?

Mr. Shannon: Yes, Your Honor, and... and this statute--

Unidentified Justice: And those children are all injured?

Mr. Shannon: --This statute is not aimed at that--

Unidentified Justice: Those children are all injured?

Mr. Shannon: --They are... they are not injured, Your Honor.

But this... this statute is--

Unidentified Justice: But wouldn't they be covered by this statute?

Mr. Shannon: --As a literal reading of the statute would cover those children, but this statute has never been used for that purpose.

It was never aimed at that purpose.

It was never in the thinking of the legislature, nor has it been in the thinking of any prosecutors that it would be used for that purpose.

When I go around my office in Boston, many, many of my assistants who are well aware of the existence of this statute, have those bear skin rug type pictures of their infants on their desks.

They don't have any fear that they're going to be prosecuted, nor does anybody else have any fear that they're going to be prosecuted because every person, as the court below, would view those pictures as being lawful.

The question here is does the state have the ability to try to get at activity which has been shown and demonstrated in case after case to be harmful to children.

And that's what this statute is... is all about and that is the way in which it has been used.

The record of enforcement in Massachusetts shows very clearly that... I should point out that in... in making the claim of overbreadth, Respondent has not produced one case where this statute has ever been applied to anything that closely approaches a constitutionally protected activity.

We have produced, however, in our... the appendix to our brief a listing of every prosecution that has been brought under the statute since 1977, 29 prosecutions.

And in 26 of those cases, the charges for violation of this statute were accompanied by charges for either statutory rape or indecent assault and battery--

Unidentified Justice: Yes, General Shannon, but what that means I suppose is that if you make a charge that's much more serious than this and you're not quite sure you can prove that one, you're sure you can get them on the photograph charge--

Mr. Shannon: --In some cases--

Unidentified Justice: --So that it's sort of a nice second weapon to have in those cases.

Mr. Shannon: --That's right, Your honor.

In some cases that is true.

But I would not minimize the harm that is done to a child, even a child--

Unidentified Justice: Because if you really have proof beyond a reasonable doubt of all those other offenses, you wouldn't need this statute at all.

Mr. Shannon: --It is... it is well-known, Your Honor, that proving cases of statutory rape, a rape on a child or sexual abuse on a child, is very difficult because oftentimes, as in this very case--

Unidentified Justice: And this statute enables you to avoid the problem of proving that kind of crime by proof beyond a reasonable doubt.

Mr. Shannon: --We have to prove beyond a reasonable doubt that a child was posed or photographed in a state of nudity.

And... and even in cases, Your Honor, where there has been some other form of sexual abuse, this is an important charge because it has been shown that this kind of activity does a separate harm to children.

Children are afraid that the existence of these photographs or pictures can later come back to haunt them or to blackmail them, and it causes a continuing harm of depression and shame and guilt and all of the things that are referred to in the briefs.

So, this is a... an important statute standing on its own, and it's an important statute when it is used along with other charges to prevent the sexual exploitation and abuse of children.

And that is the only purpose for which this statute has... has ever been used.

Unidentified Justice: Mr. Shannon, do you think that the new statute that directs itself to the posing with lascivious intent is adequate to protect the state's interests here?

Mr. Shannon: I hope that it is, Your Honor, but I am not sure, to be... to be very honest because it has--

Unidentified Justice: That certainly seems to be the way most states have gone.

Mr. Shannon: --We... we passed this statute, Your Honor, because of the importance that we placed on having a tool to prevent this kind of activity while this Court was considering this... this very case.

And we certainly hope that it's going to meet the needs that we have found.

But I would also point out to Your Honor that in the briefs that have been filed on the other side in support of the Respondent's position, they have raised questions about whether this statute can be subject to the same kind of attack.

And the reason that they have done that and the importance of this Court's deciding this case is that after the Ferber decision, it was pretty clear to states that they could take action to prevent the production of materials using children as models if those materials showed children engaged in sexual conduct.

But it left hanging the question of what about nudity?

What about other types of activity which has been show to cause harm to children?

Unidentified Justice: Well, Ferber... the opinion in Ferber said nudity without more is protected expression, did it not?

Mr. Shannon: It did, Your Honor, and I believe where it said that it was referring to the Erzoznick opinion, but it wasn't talking I don't believe, Your Honor, about nudity among children.

Just as in Ferber the Court said that sexual conduct that didn't meet the obscenity standards of the Court could be prohibited by the state, we believe that the Court should now take the next step and deal with this other body of material which has been shown to do harm to children, which the state has, I would suggest, not just a legitimate interest, but a compelling, surpassing interest in... in prohibiting, that we should be sanctioned in our efforts to do just that.

The same rationale of Ferber applies to this... this fact situation.

Unidentified Justice: If you look at the statute and divide it into two parts, the first part being whoever permits the child to pose or be exhibited in a state of nudity, and then the next part is what the sexual suggestiveness part of the statute, as I understand it... please correct me if I'm wrong... the trial court instructed the jury just on the first part of the statute?

Mr. Shannon: Yes, Your Honor, that is my understanding.

They used the... the... they used the words of the statute... I can't recall at the moment.

I guess they just did use the first part of the statute.

Unidentified Justice: So, it's only the so-called or the allegedly overly broad statute that was the basis for this conviction.

Mr. Shannon: That is right.

There was no evidence introduced at the trial that there had been any sexual... overtly sexual conduct or that the second part of the statute was implicated at all.

These were photographs which were taken... evidence was introduced at the trial that the photographs were taken by the Respondent of his 14-year old stepdaughter topless wearing just a pair of briefs and a red scarf on top of the bar in the family home when they were there alone.

And the words of the statute, the first part of the statute, were used as the charge to... to the jury.

So, I would also point out, though, that the... that the decision of the Supreme Judicial Court, of course, affects the whole statute, including that part which goes exactly at the Ferber... goes at the Ferber situation.

What the Court should do is consider the plainly legitimate sweep of the statute, consider whether there is a... a criminally... constitutionally regulable core of activity here... and I would submit that it is clear that there is... and then determine whether any overbreadth in the statute is real and substantial and so real and substantial as to necessitate the Court's striking down the whole--

Unidentified Justice: Is there a severability clause for this statute that's applicable to it, General Shannon?

Mr. Shannon: --There is, Your Honor.

There's a severability--

Unidentified Justice: Why did the Court not refer to the severability clause and sever out any possibly valid portion, do you think?

Mr. Shannon: --Your Honor, the court didn't answer that question, and it is a baffling question.

The dissents referred to the severability clause and said if there's a problem, we can sever those constitutionally protected parts of the statute from those which aren't.

Or the court could have put a limiting construction on... on the statute if it had wanted to do so.

And that is why I believe what the court below did was clearly unnecessarily striking down this statute using the federal Constitution to do it.

Unidentified Justice: Well, it's not clear to me that if part A is... is... is void and part B is valid, if you have it before you to save part B when part A was the only thing the jury was instructed on.

Mr. Shannon: I'm... well, I think, Your Honor, the Supreme Judicial Court of Massachusetts--

Unidentified Justice: I mean, why should they go on to explore part B if part A was the only thing presented to the Jury?

Mr. Shannon: --Their decision clearly affects both part A and part B.

What they did in this... in this decision was they struck down the whole statute, 29A, which include both depicting children... picturing children in the state of nudity and... and picturing children engaged in sexual conduct.

So, they... they struck down the whole statute, including that part which has already I believe been clearly sanctioned by... by Ferber.

And so, the question arises how could they--

Unidentified Justice: Well, let me... let me put it to you this way.

Assuming that we have it before us... I'm not sure that we do since it's a state court statute.

Assuming we would somehow say, well, the statute is void in its first part and valid in the second, how does that avail the state here when only the first part was the basis of the charge?

Mr. Shannon: --It doesn't.

It doesn't, Your Honor.

And that would leave a whole body of activity that has been shown to harm children which the state would be powerless to prohibit.

And that is... and that is our concern.

And that is the nub of our... of our case.

Unidentified Justice: General Shannon, suppose we, on the overbreadth problems, simply said, well, the... the only reason we have this overbreadth rule is in order to prevent legitimate First Amendment activity from being stifled and deterred.

But now that the Massachusetts legislature, the Supreme Court of Massachusetts, the supreme legislative court, has modified the statute, there's no real problem about that anymore.

There's... there's no inhibitory effect of this statute anymore, so we shouldn't consider overbreadth.

Could we decide the case that way, and if we did, would that... would that satisfy you?

Mr. Shannon: Your honor, I... I believe that the statute... that the case should be decided on... on overbreadth grounds because there are so many questions as to how what our highest state court did below affects the new statute and how it might affect other statutes.

Unidentified Justice: But even if it was overbroad, it is certainly not inhibiting anybody anymore because the Massachusetts legislature has amended it.

So, why can't we say... you know, just send it back and say if this conviction is a valid conviction, it can stand?

Mr. Shannon: Well, the--

Unidentified Justice: Because there's no overbreadth problem anymore even if there... you know, even if there--

Mr. Shannon: --Well, the court... Your Honor is absolutely correct in suggesting that this statute can no longer inhibit speech, and... and so, the Court could do that.

But I think that the question still remains--

Unidentified Justice: --You'd be stuck with a new statute though.

Mr. Shannon: --We have a new statute, and we... we are stuck with it.

We don't know how well it's going to... how well it's going to work.

I would point out to the Court we have other prosecutions that we're concerned about which might have to be prosecuted under the old statute, and we have a core of activity that took place prior to the enactment of the new statute which we can't do anything about right now.

I've already had inquiries from district attorney's offices about... about taking a picture, similar situations to the one in this case, that took place prior to the enactment of the new statute, and they're asking me what can... what can we do.

And the answer is right now I'm not sure what we can... what we can do.

So, those I think are also good reasons why the Court should decide this case.

But the principal reason is that the court below I think clearly made error when it struck down the whole statute as being substantially overbroad and because this is a question I think of surpassing interests not only to Massachusetts but to other states as well.

Unidentified Justice: You... you think it erred in striking down part 1.

You... you would not be willing to see the judgment stand striking down part 1, but leaving part 2.

Mr. Shannon: No, I would not, Your Honor.

I think part... the first part of the statute, the part dealing with nudity is very... is a very important tool, a necessary tool if we are to adequately protect children.

This, as this Court well knows, is an issue that the states have been trying to deal with with some difficulty now for the last decade or more.

I don't think we've heard the final word of it from legislatures.

And I certainly do hope that the new statute is going to be effective in preventing the activity that we're trying to reach here.

But as I suggested, it has already been suggested to us that it's going to be challenged on the same overbreadth... overbreadth grounds, and I think that the state has such a compelling interest in this area that we should be given some latitude in how... in trying to reach this activity which has been so clearly and convincingly shown to cause grave and serious and lasting harm to children.

I can think of no obligation of the state more important than the state's obligation to take action to prevent the children who live in the state from harm.

Section 29A is an important part of our efforts in Massachusetts to do that.

And I would ask the Court to reverse the decision of the Supreme Judicial... Judicial Court.

If the Court has no further questions now, I'd like to reserve the balance of my time for rebuttal.

Unidentified Justice: Thank you, General Shannon.

Mr. Vita, we'll hear now from you.

ORAL ARGUMENT OF RICHARD J. VITA ON BEHALF OF THE RESPONDENT

Mr. Vita: Thank you, Mr. Chief Justice, and may it please the Court:

It appears at least in argument that my brother has conceded several points that appear to have been in contention in the briefing by the Attorney General's Office.

But we can accept his position with regard to the fact that the Massachusetts statute in question in this case is overbroad and... and also that the activity in taking the photograph involves First Amendment rights.

And starting then from... from that point, I move to the issue of whether or not facial overbreadth in that analysis is appropriate in this case.

And the standard, however strict, that the court has noted that its application is strong medicine and that it should be used with great caution--

Unidentified Justice: Well, what's the purpose of the overbreadth?

Is it to avoid chilling legitimate First Amendment conduct by others?

Mr. Vita: --Yes.

Unidentified Justice: Is that the purpose of it?

Mr. Vita: I believe that that is one of the central purposes--

Unidentified Justice: Well, if that statute isn't on the books anymore, as Justice Scalia has suggested, why should we hold it... hold anything invalid under overbreadth analysis?

That statute is gone.

How could it inhibit anybody now?

Mr. Vita: --The original statute--

Unidentified Justice: Yes.

Mr. Vita: --under which Mr. Oakes--

Unidentified Justice: That's what's before us.

Mr. Vita: --Were this Court to determine that the new statute with the lascivious intent requirement is an appropriate area of regulation--

Unidentified Justice: We don't have the new one in front of us.

We only have the old one, and it doesn't exist anymore.

It has been replaced.

Mr. Vita: --Well, obviously, most respectfully, were the Court to uphold the decision of the Massachusetts Supreme Court striking down the statute on reasons of overbreadth, then the... the chilling effect upon the citizens of the Commonwealth would not exist because there would be... the remainder would be the clear statement of the--

Unidentified Justice: Well, I guess that isn't my question.

The Massachusetts court found it overly broad and struck it.

We're reviewing that decision.

In the meantime, the legislature has replaced the statute, has it not?

Mr. Vita: --Yes, it has.

Unidentified Justice: So, I'm asking what is there of the original statute to which an overbreadth analysis would now apply?

Mr. Vita: Well, it would seem that during the... the pendency of this appeal to the Court, that citizens might be in a quandary with respect to whether or not activities that they would choose to engage in are nonetheless going to be the subject of a potential prosecution.

I think the chilling effect during the pendency--

Unidentified Justice: I assume you can only prosecute under the new statute.

The Commonwealth hasn't said you can prosecute under the new or the old, have they?

I mean, isn't the old statute gone now?

Mr. Vita: --Yes, it would be unless this Court reversed.

Unidentified Justice: So, there's no... no inhibitory effect then and there's no possible harm to be done by overbreadth of the old statute.

It's gone.

Mr. Vita: Well, I submit--

Unidentified Justice: If your client could... could properly have been convicted under a narrowly drawn statute, he was properly convicted.

And if... if others were wrongfully deterred by that old statute, it doesn't matter because that statute is not there anymore.

Mr. Vita: --Well, I would submit that the... the--

Unidentified Justice: Everybody wins except your client.

All... all your amici will abandon you, and it's just your client that suffers from the old statute.

Is that right, Mr. Vita?

Isn't it true that if we reverse, the old statute would come back to life and people who were committing these acts before the new statute was passed would be subject to prosecution.

The Attorney General said there are a number of pending cases they don't know what to do about.

Mr. Vita: --That's--

Unidentified Justice: And they would be prosecuted if we reverse.

That's why he wants us to reverse it.

Mr. Vita: --That is correct.

And I... I also think--

Unidentified Justice: In other words, the legislative action that was taken was not a repealer of this statute.

It was just the enactment of a new one, and this statute remained on the books subject to being stricken by the Supreme Judicial Court?

Mr. Vita: --I believe that it was a repealer of the statute.

Unidentified Justice: Well, then it can't come back no matter what we say and no matter what the Supreme Judicial Court says.

It's gone.

Mr. Vita: That is correct.

And I think then the issue would relate to the new statute as to whether or not lascivious intent on the part of the person that would take a photograph is--

Unidentified Justice: That would have to be in some other case.

Mr. Vita: --That's correct, Your Honor.

Unidentified Justice: Do you--

--But now, under the old statute, is it your position that the acts actually engaged in by your... your client are protected by the First Amendment?

Mr. Vita: Yes, Your Honor.

Unidentified Justice: And what case of ours do you think supports that?

Mr. Vita: Well, Your Honor, I would point to... point to the Ferber decision in which this Court... this Court stated on page 774,

"nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on lewd exhibition of the genitals. "

The term "lewd exhibition of the genitals" was part of a definition of sexual conduct under the New York statute, and it would appear from that language that the Court was... was not willing to make an assumption that... that the State of New York would widen the definition of sexual conduct to go beyond the lewd exhibition of the genitals.

Unidentified Justice: But if... if... if the... if the... if overbreadth goes out of the case because the old statute has been repealed and it can no longer itself be a deterrent to any... anybody who wants to engage in First Amendment activities, the issue then becomes whether the conduct that your client that the Chief Justice asked about is protected or not.

And... and the state court never reached that issue.

Your... your client was... was convicted and his conviction was reversed because the statute under which he was convicted was held invalid on its face.

And the court didn't reach the issue of whether this particular conduct was protected.

Mr. Vita: It is--

Unidentified Justice: And we wouldn't have to decide that.

We can go back and we can... we could remand that, I suppose.

Mr. Vita: --Well, the issue was raised before the Supreme Judicial Court not on a claim under the state constitution whether or not this statute which prohibits the posing or depiction in a state of nudity or semi-nudity.

The issue that was addressed by the court was what... a federal constitutional question under the First Amendment.

Unidentified Justice: Counsel, would you concede that lascivious depictions of child nudity can be prohibited by the state?

Mr. Vita: I would not, and I... essentially the--

Unidentified Justice: And why not?

Mr. Vita: --The... the aims that have been stated for the banning of this type of activity have been directed towards conduct that will likely result in injury or harm to the child.

One can--

Unidentified Justice: Well, there's not much doubt, is there, that photographs of the type taken here of a post-pubertal child in this condition could be very harmful to that child?

Do you dispute that?

Mr. Vita: --Well, I do dispute that, but if I could just finish the answer to the lascivious intent.

Upon analysis, it would matter little to the child in question whether or not the person who had taken the photograph... the intent of the person in doing so... if... if there was to be injury to the child and whether or not that would occur in a given case is certainly not answered by a provision which requires that the photographer have this so-called lascivious intent.

So--

Unidentified Justice: But our whole law of homicide... the injury is the same in each case.

There's a death of a human being.

But the punishment for it depends greatly on what the state of mind of the charged defendant was.

Mr. Vita: --The... the Petitioner in this case, I submit, in its brief and in its argument has failed to articulate a convincing, empirical, scientific or psychological demonstration that proves the rational basis that nudity or semi-nudity does, in fact, result in... in serious harm to the child.

Most of the... virtually all of the authorities in the arguments presented deal with the issue of pornographic materials.

Unidentified Justice: Well, I take it they don't have to prove that, or do they, under the law?

If it's a rational judgment to be made by the state, that suffices.

Mr. Vita: Well, I... I submit that the--

Unidentified Justice: I mean, they don't have to prove it one way or the other.

If there's evidence on which they might act and it might come to that conclusion, even though we may disagree, that's the end of it.

Mr. Vita: --Most respectfully, Your Honor, I... I believe that the Court is entitled to determine whether or not the aims targeted by the statute are fairly restricted by the type of conduct that is prohibited under the statute.

In this particular case--

Unidentified Justice: Well, but we were starting out case by case, and you say that even a photograph taken with a lascivious intent is protected.

So, you don't even get beyond that point.

Mr. Vita: --That is correct.

I... I believe that... that the decisions of this Court that have on several occasions held that nudity without more may not be properly limited, that... that those decisions of the Court carve out an area of protected activity, and that it's only, the Respondent argues, where sexual conduct, as that has been defined in the legislature in accordance with the decisions and pronouncements set down by this Court, may be properly limited.

Unidentified Justice: Mr.... Mr. Vita, may I ask?

Assuming as... as everybody seems to assume, that there's a constitutional right to take a picture of your baby on a bear skin rug, which... which I'm not sure of, but let's assume that that's so, why is your claim of overbreadth a First Amendment claim of overbreadth as opposed to a claim of overbreadth on... based on some other constitutional ground?

Specifically, you would acknowledge, would you not, that the state could make it unlawful and criminal to take a picture of an individual naked without that individual's knowledge or consent, for somebody to sneak in and use a telephoto lens taking a picture of you or me taking a shower?

Can a state make that unlawful?

You're not sure about that?

Mr. Vita: I cannot--

Unidentified Justice: I certainly hope it can.

You mean the First Amendment requires that people should be able to go around taking photographs of other people in the nude without their knowledge or consent.

It doesn't require that, does it?

Mr. Vita: --Well, I... I don't... I cannot say that there's any statute that has been enacted that would fall within the example that you have cited.

But I would think--

Unidentified Justice: I'm sure there are a lot of civil prohibitions which would likewise fall under the First Amendment bar if... if the First Amendment prevented it.

Certainly it would be an invasion of privacy, wouldn't you... wouldn't it?

You're not sure about that?

Mr. Vita: --Well, it might depend on the circumstance.

I can think of examples where... where it... it might clearly fall within protected activity.

I can perhaps mention to the Court at some--

Unidentified Justice: Well, let's assume I don't... I was... I thought that was an easy question.

My second question, which was... I... I also thought was easy, could the state make it unlawful for someone to take a picture of a minor without the minor's... in the nude without the minor's parents' consent?

And again, that seems to me like a pretty easy question.

Even if you want to take a picture of your own baby in the nude on a bear skin rug, it doesn't seem to me that other people ought to be able to do that if you don't want it done.

Now, if all of that is true, then, it seems to me, we have established the principle that the First Amendment does not absolutely mean that people can take pictures of other people in the nude without their consent.

And all we're talking about is whether the government can prevent parents from giving that consent.

Now, that be a constitutional prohibition.

Maybe the government can't.

Maybe the government can't prevent parents from giving their consent, but if that's a problem, it's not a First Amendment problem.

It's a problem to what extent the government can intrude into the parent-child relationship.

It has nothing to do with the First Amendment.

And therefore, the overbreadth problem wouldn't exist unless, of course, you disagree in your answer to the other two questions which I... I gather you do and were wise to do.

Mr. Vita: --Well, I... I submit that the analysis that we have argued that the... the process of photography involves expression.

In some cases it's more marginal than in others, but nonetheless--

Unidentified Justice: Yes, but your expression stops at my body.

And If I don't want particularly want you to take a picture of me in the nude, I don't have to, do I?

Mr. Vita: --No, that's correct.

Unidentified Justice: I don't think you're talking about the First Amendment with the bear skin rug examples.

I think you're talking about some ability of parents to... to... to control their relationship with their child.

But that's not the First Amendment anymore.

Mr. Vita: Well, there are many other examples of the type of conduct that would be restricted and this statute would prohibit beyond the... the one that was so plainly cited by the Massachusetts Supreme Court, beyond the toddler who is romping nude on the beach.

There could be pictures taken for the purpose of... of demonstration or discussion in a forum precisely on the subject of whether or not given photographs fall within the area of child exploitation or child pornography.

There also could be a potential claim involving artists, painters or sculptors whose works frequently do not become involved in museum or libraries until sometimes after their death--

Unidentified Justice: Do you think--

Mr. Vita: --far after the time of the taking of the photograph.

Unidentified Justice: --Do you think if I'm... if I'm a painter, I could, contrary to state law, induce the minor daughter of the people next door to come over and pose for me and say that's... even though the state law forbids it and say that's the First Amendment?

Mr. Vita: Well, think that when the issue is framed in terms of manipulation, coercion--

Unidentified Justice: Well, I'm not talking about... I'm talking about--

Mr. Vita: --and those types of activities, were a statute to be properly limited and the type of nudity were... were described in a manner that would... would satisfy the Court's concern about areas that... that would be clearly protected--

Unidentified Justice: --Well, supposing Massachusetts enacted a statute saying that no one shall induce a minor child without the consent of the parents to pose in various nude things, just like Massachusetts has said, does the First Amendment protect that?

Mr. Vita: --In that particular case, it... it... it may not protect it depending on the... the type... the type of... of portrayal.

Unidentified Justice: Well--

Mr. Vita: The content of the photograph.

Unidentified Justice: --Well, why should it make any difference at all how the photograph turns out if the evil at which the state is aiming is the posing of a minor child in that way without the consent of the parents?

Whether it's an impressionist, a representation or abstract will make no differences to the injury.

Mr. Vita: Well, in some given circumstances, there may be some minor children who, without the consent of their parents, that would have permitted themselves to be photographed that may not result in injury.

It may depend on... on--

Unidentified Justice: You say the state can't generalize from the... the material it has, that it would have to show some sort of injury in every case?

Mr. Vita: --Well, I believe that if the... the state would have to show that the banning of mere nudity alone by the very act of permitting someone to pose in nudity is, in fact, harmful to the child.

Can we say that those, however in the minority they might be, that choose the nudist lifestyle... can we say that in all circumstances that... that a photograph of such a child who enjoys the... the... and chooses in a family way the benefit of... of that type of... of expression... can we say and be sure that it's harmful to the child?

Unidentified Justice: No, and I suppose I can't say categorically that every young woman below the age of... of... of legal consent who... who is statutorily raped is harmed either.

I can't say that, but I can make a generalization and make it a crime to have intercourse with a young woman below a certain age even though I can't... I can't absolutely swear that every... every young woman below that age who... who gives her consent doesn't know what she's doing and is therefore being harmed.

But I can make it a crime anyway, can't I, on the basis of general assumptions?

Mr. Vita: Well, you... you... you could make that analogy to a statutory rape type of case.

But I submit that this area of protecting the subject matter of nudity has long been safeguarded by this Court.

And even though it's a... an issue that generally is one that is unpopular, is perhaps not exercised by a great many Americans, it nonetheless will still require this... this Court to be careful not to infringe upon the rights of... of those who may legitimately have their conduct chilled or be encompassed within such a draconian statute.

I point out to the Court for purposes of the issue of whether it's substantial that the statute is punishable by not less than ten nor more than 20 years or fines or both.

This Court in Ferber has... has indicated that the--

Unidentified Justice: But, counsel, do you admit that there is a psychological damage to these children who are photographed in the nude?

Mr. Vita: --I do not admit that in... in--

Unidentified Justice: Well, what do you say in contrast to what they say--

Mr. Vita: --Well--

Unidentified Justice: --In the opinions and briefs and all of the lot?

Mr. Vita: --The photographs that... and the studies that have been cited and the reports referred to almost exclusively deal with the subject matter of using child models in pornographic pictures.

And this Court has... has stated in Ferber that it would require at least a lewd exhibition of the genitals by way of one example of what is pornographic.

There are also references in their reports with regard to harm that deal with the Miller test or obscenity issues.

However, this Court, I submit, cannot feel comfortable in banning a... an area of expression that is much a part of our culture and has been over the years clearly protected.

Unidentified Justice: What's the difference between taking the picture of a child frolicking in the sand in the nude and being taken upstairs, downstairs and put on a bar and told to take her clothes off?

Mr. Vita: I do see a difference.

Unidentified Justice: You do see a difference, don't you?

Mr. Vita: And I can... I can... I believe that a statute can be drawn that could meet the legitimate aims of the state to avoid the... the issue of child exploitation in the example that you're talking about where--

Unidentified Justice: xxx.

Mr. Vita: --the language of the statute--

Unidentified Justice: Isn't that this case?

Mr. Vita: --Well, as... as--

Unidentified Justice: xxx.

Mr. Vita: --applied to this case, if the... if the statute--

Unidentified Justice: Do you think the statute applies in this case?

Mr. Vita: --I believe that the statute as applied in... in this particular case under Ferber is... is unconstitutional and that is because the... the... the conduct that is depicted in the photographs in this case involve the exposure of a... of a young woman's breasts and that there--

Unidentified Justice: So, if this 15-year old had said to her stepfather, daddy, I don't want to do this, and he said don't worry.

It's... you've got to do it because this is not going to be a lascivious photograph.

And she says I... I just really don't... I don't want to.

There's nothing the state can do to protect that child?

Mr. Vita: --Not Mr.--

Unidentified Justice: I find that--

Mr. Vita: --Justice Scalia, it... my point is... is that a statute could be carefully crafted that would be limited to circumstances where the child is coerced, is... is otherwise compelled to submit against her will, poses that are in a sexually exploitive portrayal, that the Court would define is--

Unidentified Justice: --If they're sexually exploitive.

Mr. Vita: --within the legitimate sweep of--

Unidentified Justice: Only if they're sexually exploitive, otherwise the child must submit to the... to the parent's desire to take the photographs.

Mr. Vita: --In the example that you have cited where the... the child is... is saying no and is being compelled by the parent, of course, that's not an issue in the facts of our case.

Unidentified Justice: What... what about the facts in this case?

Could the legislature by a properly, narrowly drawn statute punish the conduct that occurred in this case?

Mr. Vita: xxx.

Unidentified Justice: The jury has before it just the evidence it has here, nothing more.

Mr. Vita: In--

Unidentified Justice: Can this--

Mr. Vita: --With a different statute carefully drawn?

Unidentified Justice: --Punish the conduct in this case.

Mr. Vita: I believe if there was a carefully drawn statute, that it could.

Unidentified Justice: That must... that must be because there are other elements than pure speech involved.

Mr. Vita: No, I believe that... most respectfully, that this Court could define a core of conduct in which it could delineate sexually explicit actions by the... the young woman which would take it out of the area of... of protected speech.

It could define that the nudity in the statute--

Unidentified Justice: May I interrupt?

Mr. Vita: --must be of a type that it would create the kind of harm that the purpose of the child pornography statute--

Unidentified Justice: May I ask you again?

I'm not... there seems to me some tension between your answer to Justice Kennedy and part 2 of your brief.

Are you taking the position that the conduct in this case is not constitutionally protected?

Mr. Vita: --No, I'm not, Your Honor.

Unidentified Justice: So, no matter what the statute said, you--

Mr. Vita: I thought the question was--

Unidentified Justice: --You say no matter how narrowly drawn the statute is you still would win according to your argument.

Mr. Vita: --Yes, Your Honor.

Unidentified Justice: Well, that's not what I understood you--

Mr. Vita: I took it as a hypothetical question, could any statute be fashioned that could proscribe the kind of activity.

Unidentified Justice: --This activity, and your answer to that is no, isn't it?

Mr. Vita: That's correct, Your Honor.

Unidentified Justice: Yes, that's what I thought.

So... so then this conduct could not be punished?

Mr. Vita: That's correct, Your Honor.

Unidentified Justice: xxx that.

What if... I mean you can volunteer it?

Mr. Vita: Well, Your Honor, there's no... there's no authority, a court decision of this Court or other authorities that... that would squarely address the issue.

And I might say that this particular statute is virtually unique among... among states.

I might point out that--

Unidentified Justice: You mean the state cannot prohibit a father from taking his child downstairs in the basement, telling her to get up on a bar, take her clothes off and put a shawl around her?

And the state can't prohibit that?

Mr. Vita: --Well, in this particular case, Your Honor--

Unidentified Justice: No.

I said can a state prohibit that action?

Mr. Vita: --No, Your Honor.

Unidentified Justice: With properly drawn statutes?

Mr. Vita: Yes, Your Honor.

Unidentified Justice: Yes... yes, what?

Mr. Vita: Yes, it cannot be... it cannot be... a state cannot proscribe that type of conduct.

Unidentified Justice: There's no... you can't draw a statute on that?

Mr. Vita: Yes, Your Honor.

Unidentified Justice: And your... your answer is the same, if I understand you correctly, if it weren't the father.

If it were... if it were a stranger who... who induced the young woman to do that so long as he didn't twist her arm, of course, the state could not prohibit that either.

Mr. Vita: Well, I think that once you're getting beyond the parents, it would depend upon whether or not there was--

Unidentified Justice: What does the parents or not have to do with the First Amendment?

That's a different issue.

Mr. Vita: --Well--

Unidentified Justice: If that's... if that's the claim of overbreadth, it's not overbreadth that we take cognizance of.

Mr. Vita: --Much of the Petitioner's argument is directed towards instances where the child has been manipulated, coerced, forced or compelled to submit to the... to the degrading photographs.

I submit that in the absence of any evidence that would show that that is occurring within the ambit of the statute is... is protected.

For all of those reasons, the Respondent asks the Court to affirm the decision of the Massachusetts Supreme Court.

Unidentified Justice: Thank you, Mr. Vita.

General Shannon, you have three minutes remaining.

REBUTTAL ARGUMENT OF JAMES M. SHANNON

Mr. Shannon: Your Honor, unless the Court has further questions, I have nothing further to add.

Unidentified Justice: Very well.

The case is--

--I have one.

May I ask just one?

Would you clarify, General, just exactly what is the status of the new statute?

Did it repeal the earlier statute, amend it?

Exactly what is it?

Mr. Shannon: It... the old statute can be used, Your Honor, to prosecute those activities which took place prior to the enactment date of the... of the... of the new statute.

Unidentified Justice: So that if we were to reverse, as you ask us to, that would revive some prosecutions or potential--

Mr. Shannon: Yes, Yes, Your Honor.

Unidentified Justice: --Thank you.

Whatever prosecutions are... are pending, all the acts have taken place I take it.

Mr. Shannon: Any... any acts that would be prosecuted under the old statute have already... have already taken place.

Unidentified Justice: And it doesn't seem to me like the old statute would be any basis whatsoever for a finding of overbreadth.

It's not about... as Justice Scalia has said, it's just not about to deter anybody else.

It's gone.

So, I don't know why the... these cases that are pending shouldn't turn on the specific conduct that's at issue.

Mr. Shannon: The... the old statute, of course, Your Honor, did not have a lascivious intent requirement which--

Unidentified Justice: I... I know that, but it's gone.

Mr. Shannon: --Except for purposes of prosecution.

Unidentified Justice: Yes, but the reason for overbreadth is--

Mr. Shannon: Yes.

Unidentified Justice: --the state has to get rid of its... its price for having the statute unnarrowed is you can't prosecuted anybody.

But once it's narrowed, you can prosecute anyone you want.

Mr. Shannon: The old statute will have no chilling effect on future conduct.

That is correct, Your Honor.

Unidentified Justice: Was the old statute repealed?

Mr. Shannon: It was... it was reenacted.

I think... my... my understanding of it is there is a new statute on the books which supplants the old statute.

The old statute applies only to... only to activity that took place prior to the effective date of the new statute.

So, the new statute will not... not be used without further... the old statute will not be used without further action by the legislature to revive it, Your Honor.

Thank you.

Chief Justice William H. Rehnquist: Thank you, General Shannon.

The case is submitted.

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Featured:

Fort Wayne Books, Inc. v. Indiana - Oral Argument

Sun, 06 Feb 2011 03:46:09 +0000

Case:

Fort Wayne Books, Inc. v. Indiana

Media File:

87-470_19881003-argument.mp3

Related Transcript:

87-470_19881003-argument.xml

Transcript:

ORAL ARGUMENT OF JOHN H. WESTON ON BEHALF OF PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument now on Number 87-470 Fort Wayne Books, Inc. versus Indiana, and Number 87-614, Sappenfield versus Indiana.

Mr. Weston, you may proceed whenever you're ready.

John M Weston: Mr. Chief Justice, and may it please the court, recently in Hustler Magazine versus Falwell, this Court reaffirmed the need to give adequate breathing space to First Amendment freedoms in order to protect them.

These cases before the Court this afternoon raise an essential element of that protection, the right to be wrong.

Today's cases involve book stores, but this Court's decision will unquestionably touch and affect newspapers, publishers, the motion picture industry, television and radio broadcasters and religious and political organizations.

In short, anyone or anything who or which engages in conduct presumptively protected by the First Amendment.

Ultimately, its greatest impact will be on the American public's right to receive vast quantities of protected expression.

If these statutes are sustained, the protective bulwarks surrounding First Amendment freedom so painstakingly crafted by this Court will crumble.

Affirming the judgments below would eviscerate the longstanding prior restraint and chilling effect doctrines--

Unidentified Justice: Mr. Weston, in Sappenfield there wasn't any seizure, was there?

John M Weston: --That's correct, your Honor.

Unidentified Justice: So, what is going to chill people about simply upholding the possibility of prosecuting under the statute?

John M Weston: But in Sappenfield, your Honor, although it was brought pursuant to the Indiana criminal RICO statute, the civil RICO statute is a direct adjunct of that and given the collateral estoppel provisions of civil procedure, forfeiture and subsequent restraint and so forth are automatic upon conviction.

The chilling effect regarding the Sappenfield statute which has been discussed and which we will discuss, involves the facial presence of the potential enormously high jail sentence in connection with engaging in conduct, a presumptively protected by the First Amendment--

Unidentified Justice: But, peddling obscenity is not presumptively protected by the First Amendment.

John M Weston: --No.

Of course, your Honor.

Obscenity is not protected by the First Amendment.

But speech, up until the moment it is determined to be obscene, is surely protected by--

Unidentified Justice: Nothing happens to these people in Sappenfield until there is a determination.

John M Weston: --That's correct, your Honor, except to the extent that someone like Sappenfield, a book seller, or someone in another endeavor subject to the possible application of obscenity law faced with the draconian potential sanction of eight years in a criminal jail sentence for violation of the statute, which at best is inelastic with a limited scienter standard, will certainly think more than twice before electing to deal with sexually oriented material.

Unidentified Justice: Well, what if an ordinary obscenity statute simply provided for an eight-year term?

John M Weston: That question, of course, your Honor, is not specifically before the Court, but certainly raises in--

Unidentified Justice: Well, you would be making the same argument.

John M Weston: --A similar one.

Although, quite frankly, under the Indiana RICO statute, particularly in light of the semantical complication of the traditional RICO language and some greater elastic language under the scope provisions of the statute, there is probably a broader reach and a greater vagueness problem that might attend the usual Miller standard.

But, to deal with the Court's question, Justice White, you're quite correct.

That the argument that we make with respect to the potential chilling effect of high penalties is one which would be equally applicable to a general obscenity statute.

Unidentified Justice: Do we have a final judgment here?

John M Weston: We have final judgments, your Honor, with respect... Justice Blackmun, to the issues raised in the courts below.

That is to say, that the Indiana Supreme Court considered and approved in a final judgment all of the pretrial sanctions which were utilized and available, all of the post-trial sanctions which were the basis anticipatorily for the pretrial sanctions, and also the principle that conduct at one bookstore in a chain may be visited in terms of effect on other bookstores in the chain.

With respect to Sappenfield in the court of appeals, the challenges to the facial constitutionality of the criminal RICO statute had been made in the trial court and in the appellate courts and they were rejected by the court of appeals in a rather brief opinion based on the Fort Wayne decision in the Indiana Supreme Court.

So, under this court's decisions, the matters were certainly rendered to the highest courts in the state to consider them, were decided by those courts, and in terms of the overriding federal interest at stake here, would not be aided by remanding the causes to trial where further proceedings might occur which would prevent those issues from--

Unidentified Justice: Mr. Weston, did any of the respondents or the defendants in the Sappenfield case even indicate with us an interest in pursuing the case here?

John M Weston: --I beg your pardon, Justice O'Connor.

I'm sorry, I'm missing your point.

Unidentified Justice: Well, none of the parties in the Sappenfield case, 4447 is it?

Corporation?

John M Weston: Oh, I beg your pardon--

Unidentified Justice: Had indicated any interest in pursuing their matter?

John M Weston: --Not in Sappenfield, Justice O'Connor.

There are theoretically three cases before the court.

Unidentified Justice: In the 4447 case--

John M Weston: That is correct, your Honor.

Unidentified Justice: --is anyone here at all on that case?

John M Weston: That is correct, your Honor.

No defendant below in the 4447 has filed a direct appearance in this court.

An individual who was named as a defendant, Burk Mendenhall did file an amicus brief in this Court in this cause but is not a direct party.

Unidentified Justice: Okay.

Mr. Weston, I understand you can make facial challenges, but don't your facial challenges have to pertain to a portion of the statute that's been applied against you?

As I understand it, some elements of the scheme here have not yet been applied against anybody, in particular the prohibition against an individual's engaging in the same business again.

John M Weston: That is correct.

Unidentified Justice: Nobody has been subjected to that.

Isn't that right?

John M Weston: No one has been subjected to it except the complaint which remains in the Fort Wayne case retains that prayer.

The Indiana Supreme Court specifically held that all of the available sanctions under the statute were constitutional, raising no First Amendment questions in specific rejection of the opinion which invalidated the entire statute on its face with specific focus on those remedies rendered by the court of appeals.

As well, in the original 4447 case, which as Justice O'Connor points out, is not really before the court, the original complaint sought the general injunctive remedies.

Although there was an amended complaint filed four or five weeks later which abandoned that request.

But the Indiana Supreme Court, your Honor, Justice Scalia, has clearly upheld the full panoply of remedies as against specific lower court judges.

Unidentified Justice: I understand that.

I just want to know whether that was before the Indiana court.

John M Weston: Absolutely.

Without question.

Unidentified Justice: In both of these cases that are up here there was a prayer to enjoin the parties from engaging in the business in the future?

John M Weston: Not in Sappenfield, which was exclusively a criminal prosecution with none of the injunctive or civil type remedial provisions available.

However, in Fort Wayne, unquestionably the complaint sought such a remedy.

It is live.

It is part of the complaint.

The original 4447 complaint, subsequently amended to omit it, did include that, and the Indiana Supreme Court specifically approved all of the panoply of remedies available under the statute.

Again, if I just may finish the point, in Sappenfield it is automatic that following conviction, should one occur, there will be a civil forfeiture and the entire... and under collateral estoppel principles, nothing can be raised by the defendant and there will automatically be full forfeiture with the full panoply of the remedies, at least if nothing is disturbed in light of the--

Unidentified Justice: But we wouldn't know what remedies in fact would be selected or used by the court.

Is that right?

John M Weston: --I suppose that's true, except to the extent that under the Indiana court... under the Indiana statute forfeiture is mandatory subsequent to in essence a conviction or--

Unidentified Justice: If the items forfeited were the product of illegal activity.

John M Weston: --Oh, no, Justice O'Connor.

Quite much more broadly so.

One would have hoped that that would have been the ruling.

But it's very, very clear.

And I might add that of course the court of appeals in Arizona, in Arizona versus Feld, so construed and limited its RICO obscenity predicated statute to limit only specific proceeds attributable to materials found to be obscene in appropriate litigation.

It's very clear, both in--

Unidentified Justice: No.

What if... What if under the state RICO law, let's say, the predicate offenses are dealing in narcotics and the products are funnelled into a bookstore?

John M Weston: --Oh, well, there's certainly no question about that.

Unidentified Justice: The contents of the bookstore--

John M Weston: Of course, Justice O'Connor.

Unidentified Justice: --can be forfeited.

John M Weston: And really that's like... that's the Arcara type situation in a way because there there would have been no speech conduct, no expressive conduct at all as the predicate offense.

Whatever proceeds flowed from that would certainly be subject to scrutiny under legislation which already exists.

Unidentified Justice: And what difference does it make if the predicate offenses are obscenity convictions instead of drug, narcotics convictions?

John M Weston: Well, as I thought your concurring opinion made clear in Arcara, Justice O'Connor, that where the predicate conduct was expressive, then, of course, a full First Amendment standard of review would be required in order, aside from all the obvious reasons, to make sure that there was no interference with speech based on a desire to thwart the speech.

Unidentified Justice: Well, required for what?

For the initial pretrial seizure?

John M Weston: No.

One would think not only for the initial pretrial seizure, but for an examination of what the available post-trial remedies might be.

For example, by the time Arcara reached this court, it was certainly in the position of a post-trial situation after the full order had been issued with the court examining the question.

So, if the First Amendment concepts have any meaning whatsoever, if the principle of Near versus Minnesota and Citizens for a Better Austin versus Keefe have any meaning what those unbroken... what that unbroken line of cases tells us... and, of course, there are almost no examples challenging it.

Unidentified Justice: I'm sorry to interrupt you.

John M Weston: No, not at all, Justice.

Unidentified Justice: But, what is the status of 1447 Corporation, ISSI Theater Corporation, Plaza Entertainment Center and Burton Gorlick?

Are they before us at all?

John M Weston: They are not, your Honor.

As a matter of formal notice, when Fort Wayne Books filed its petition for certiorari, it was required to give notice to those individuals, which we did.

There has been no response... in individuals and corporations... there has been no response with respect to those individuals asking to be litigants before this honorable court.

Unidentified Justice: So all that we have, in your view, in any event, is Fort Wayne Books and Sappenfield?

John M Weston: That is the position that... certainly with respect to my representation, your Honor.

Unidentified Justice: Thank you.

John M Weston: If the principles of prior restraint, if the principles of Near and Austin have any significance, they represent a basic governing concept which has ennobled this country's history almost from the beginning.

And that is that one may not lose one's right to speak by virtue of speaking.

That if books or magazines or films, or any other... or newspapers, or any other expressive entity or matter is going to be suppressed, it must be so only by virtue of its own validity or invalidity.

Unidentified Justice: You can't use that... you can't lose that right even by virtue of something other than speaking.

I mean, I supposed you can't make it a penalty for a narcotics trafficking that you can't make speeches anymore.

John M Weston: I would agree, Justice Scalia.

Unidentified Justice: Right?

So what the problem is is the remedy and not the crime that invokes the remedy.

John M Weston: Certainly at a major level, absolutely.

The remedy, of course, in these situations, as was first articulated in Near is absolutely inappropriate regardless of whatever the determination may be with respect to the predicate offense.

The question with respect to whether obscenity may still be criminalized or rendered illegal is not necessarily before this court in terms of the questions we raised.

The court is quite correct.

Certainly with respect to the civil RICO statute, the biggest concern expressed is indeed with the remedy.

But, nonetheless... or, to follow along with the same concept, these cases present what must be the most egregious violations of prior restraint.

And when I say these cases, particularly with respect to Fort Wayne Books and the facts which I guess are not formally before the court in the--

Unidentified Justice: Including Sappenfield within the term of "these cases" presenting egregious violations?

John M Weston: --No, your Honor, that was the point I was trying to cut back from to make--

Unidentified Justice: Well, perhaps you shouldn't use the term "these cases".

Maybe you should say "this case".

John M Weston: --That would be a better approach, Mr. Chief Justice.

Yes.

Thank you.

With respect to the forfeiture provisions, the cases which raised the forfeiture provisions, they appear to present the most egregious violations of the Near principles and the prior restraint principles based on expressive conduct challenged by the state, vis-a-vis virtually unlimited examples of unlitigated, unchallenged other books, magazines, films, and the opportunity to express other sorts of--

Unidentified Justice: Well, Counsel, of course, if you sentence someone to jail for ten years, his or her speech is chilled during that time.

It's more difficult to speak when you're in jail.

John M Weston: --Yes, Justice Kennedy.

No question.

Unidentified Justice: And in this case, focusing just on the pre... on the post-adjudication seizure for the moment, suppose that a bookstore is engaged in selling other items too and just those other items are seized.

Or a grocery store is selling a few books and all the grocery assets are seized.

Is that a prior restraint after an adjudication of obscenity?

John M Weston: It would depend, it seems to me, on what funds were utilized in order to justify the seizure.

Unidentified Justice: Well, suppose they're within the statute.

Their proceeds did derive from the operation, and you seized all of the operation other than the books.

John M Weston: Would the funds, however, that were utilized--

Unidentified Justice: Yes.

John M Weston: --Is this in terms of a proceeds tracing statute or some sort of contagion?

Unidentified Justice: This is under this statute after an adjudication of sales of obscenity.

John M Weston: It would appear--

Unidentified Justice: And you show that the proceeds are derived from the operation.

John M Weston: --If there were six books, six books alleged to be obscene, found to be obscene, generated a certain sum of money, that money, under procedural safeguards, could be traced and utilized to forfeit either that sum or that which they had acquired.

Unidentified Justice: And is that consistent with the First Amendment?

John M Weston: It would appear to be, under appropriate procedural safeguards such that only proceeds from materials specifically found, specifically delineated, challenged, and judicially determined to be obscene--

Unidentified Justice: All right.

Now, suppose, to take it the next step, the purchase is for more books.

Could the books be seized?

John M Weston: --Again, under appropriate procedural safeguards there is no necessary First Amendment barrier to tracing funds from specifically delineated materials found to be obscene which generated those proceeds.

The problem with the hypothetical which your Honor proposed is that if there were a hundred books in the store, six were alleged to be obscene, six were found to be obscene, and the proceeds from those six books resulted in $15.00, it would be a First Amendment violation to attempt to interdict or forfeit, or do to anything with the proceeds from materials not found to be obscene.

And that was why I asked--

Unidentified Justice: It's a First Amendment violation only?

So that if it's a drug case, I assume you can seize all the assets?

John M Weston: --Your former brother on the Ninth Circuit, Judge Kozinski, of course, in Busher has raised a proportionality question in terms of other circumstances.

But I would like to direct our own focus this afternoon to the First Amendment consideration.

Unidentified Justice: But you have to explain why the First Amendment is the limiting principle.

If this statute is permissible as to contraband other than speech or alleged speech, why can't it be applied to obscenity after an adjudication?

Because obscenity, as we know, is not protected speech.

John M Weston: That is correct, your Honor.

And with respect to obscenity we are... and perhaps I did not make myself clear, but we're not questioning under appropriate procedural safeguards the ability to track proceeds from material specifically determined to be obscene.

What we object to and what it appears that the court's decisions have prohibited, is the use of funds from materials not determined to be obscene to be forfeited because other materials have been determined to be obscene and their proceeds may be subject to forfeit.

Unidentified Justice: Why is that?

I don't understand.

Let's assume that all of these proceeds from the sale of non-obscene materials add up to a million dollars.

You're saying you can't do that because that million dollars didn't come from the obscene sales.

But you acknowledge that you can impose a fine of a million dollars.

John M Weston: Well, we acknowledge--

Unidentified Justice: What's the difference whether you call it one or call it the other?

John M Weston: --We acknowledge that a fine may statutorily be authorized.

We certainly do not acquiesce in the notion and light of the potential First Amendment challenge to such high fines on the same basis that the chilling effect would arguably invalidate the potential for a high jail sentence under the present state of the Miller test and the limited scienter standard.

With respect, also, Justice Scalia, to the possibility of a high fine, at least it's subject to analysis.

In other words, that the high fine will not necessarily be applied, it may be examined.

And to the extent, even under traditional sentencing criteria, that it may have the impact of closing down a business, it in itself is subject to reduction or First Amendment scrutiny.

Not terribly different from the notion that some courts have begun to apply in terms of punitive damages in defamation cases, for example, or invasion of privacy cases where to do so would tend to close the business.

But there is another limited--

Unidentified Justice: Well, let me ask one other question before you go on.

John M Weston: --Sure.

Unidentified Justice: This line between proceeds and non-proceeds.

That isn't a line that's adopted in the Federal RICO statute either, is it?

John M Weston: Not at all.

Unidentified Justice: The Federal RICO statute does not require that it be derived from proceeds of the unlawful--

John M Weston: It's unclear.

In the one case... the one Federal case which discussed this issue, United States versus Priva, the prejudgment opinion of the court appears to limit the reach of the forfeiture to proceeds from materials determined to be obscene.

Subsequently, at the time of forfeiture, however, it became very clear that the court's interpretation had changed and the statute was applied to reach the entire panoply... or, the entirety of the assets.

But, really, not so much on a proceed tracking theory as much as an equally impermissible contagion theory.

Somehow that a book on a shelf presumptively protected, never alleged to be obscene, somehow acquires an obscene character by virtue of the fact that it's neighbor was alleged to be obscene and determined to be obscene.

Unidentified Justice: --It doesn't have to have an obscene character.

We're punishing you by taking away from you.

Just as we're punishing you by making you pay a million dollars.

It's not that the million dollars is obscene or that there is anything evil about the million dollars.

But that's just the punishment we've selected.

John M Weston: Well, let me suggest, with respect to that possibility.

Certainly in Times versus Sullivan this Court considered a relatively similar potential application of the same doctrine.

A very large series of state judgments for expression deemed to be unprotected.

The Court viewed the potential possibility and concluded clearly that in terms of the potential for chilling effect and the harm to publication and to First Amendment Interest, the unrestricted potential for imposing that kind of damage award required a higher scienter standard.

And such was imposed, and that was the way the chill was dissipated.

The circumstance that we face here, obviously with an equally low scienter standard, or perhaps even a lower one and a more difficult to apply definition for the alleged wrongdoing may also require a heightened standard.

My point being not that that necessarily answers the question of why a fine is okay and something else is not, but simply that the court will not cast a blind eye to what the realities are of the circumstance.

I would also point out with respect to what the social interests are involved that it is not only the interests of the book seller that is being protected, but what is protected in this circumstance is the reciprocal right of the public to be able to receive presumptively protected material.

And the notion of simply forfeiting unlitigated material removes such material from the public.

On the one hand, it might be an acceptable slap at the... when I say acceptable, from the point of, say, law enforcement... an acceptable slap at the individual who is the seller, but it would be inevitably the public that would be the loser.

Unidentified Justice: Well, Mr. Weston, supposing a drug kingpin were laundering his money in a chain of bookstores, would that mean that those bookstores and the proceeds were not subject to forfeiture the same as if he were laundering his money in a bunch of grocery stores?

John M Weston: No.

Absolutely not, your Honor, as I thought I had explained to Justice O'Connor.

The predicate conduct is what makes the significant difference.

If the predicate conduct is not expressive, is not speech, then what is generated from that conduct may be, under appropriate procedural safeguards, tracked and dealt with as appropriate.

Unidentified Justice: And what if predicate conduct is obscenity?

John M Weston: And we have indicated that to the extent that the predicate conduct is obscenity, that with, again, appropriate protections, the material may be prosecuted, the material may be subject to scrutiny, and proceeds from the specific materials are subject to tracing and ultimate forfeiture.

What has been done in these cases is simply to deal with it as if it were contagious.

And to forfeit unlitigated materials and assets from presumptively protected unchallenged materials and simply forfeit them by virtue of their being on the same premises.

Unidentified Justice: But, Mr. Weston, is it clear that that remedy would be entered at the end of a proceeding?

I didn't read the Indiana Supreme Court necessarily going that far.

It speaks in terms of disgorging assets acquired through racketeering activity.

And if you have, say, ten percent of the bookstore's inventory is obscene and 90 percent is non-obscene, and, say, they could prove that 90 percent of the assets were perfectly lawful and not the proceeds of the sale of the ten percent, are you sure they could forfeit the whole bookstore?

John M Weston: Under the Indiana Supreme Court opinion, it appears, your Honor, very clear that they could do so.

And one of the judges--

Unidentified Justice: Well, it appears they could ask for a remedy.

I'm not so sure.

This, perhaps, goes to the question of finality too.

You think it's perfectly clear that under the statute if they prevail and prove that anything in the store is obscene that the remedy automatically will follow and that they can seize the entire inventory?

John M Weston: --Yes, Justice Stevens.

Unquestionably because that issue was before the Indiana Supreme Court and when I argued the cause before the Indiana Supreme Court I made that point.

That in the Indiana situation there were eight items alleged to be obscene with a possible value of something like $200.

I'm just guessing.

The material that was sequestered and held in the closed bookstore in Indianapolis exceeded that sum by exponential figures.

It was very clear what the theory of the state was in an oral argument and in every position in the course of the argument, that it didn't matter what was in the bookstore, it didn't matter what was present or what proportion, if there was any proof exclusively of this racketeering concept being defined specifically as two examples of inappropriate conduct, that would answer the question.

That everything was then subject to forfeiture.

Unidentified Justice: But the court says,

"It cannot be presumed that prosecutorial discretion will be abused to the extent of threatening the continued existence of bookstores and theaters. "

I thought they weren't necessarily meaning that one misstep in a bookstore and the whole store is automatically closed.

Do you read it that way?

John M Weston: Two missteps.

Unidentified Justice: Two missteps.

Right.

John M Weston: And that is exactly what happened both in Indianapolis and Fort Wayne.

In Indianapolis there had been no prior convictions.

There were allegations at each of two stores that there had been four materials offered for sale which were alleged to be obscene.

On the basis of that, a third store about to be opened... never opened, never sold an item... was closed by virtue of its alleged involvement with the other two.

In Fort Wayne, on the basis of 39 alleged examples of obscenity, three stores were closed.

And I simply suggest that this is not speculative.

Those stores were closed for 13 months.

Unidentified Justice: Well, don't we reach those issues in connection with the pretrial seizure question?

John M Weston: Well, the pretrial seizure, Justice--

Unidentified Justice: It would just seem to me that what we ought to address is what happened on the pretrial seizure and possibly the question of the predicate offenses.

But perhaps the full range of penalties after a conviction just isn't a final judgment and properly before us.

Now, is that a possibility to you?

John M Weston: --I don't think so, Justice O'Connor, although I understand in terms of certain principles of jurisprudence of course why the question would be asked.

But the issue was clearly before the Indiana Supreme Court.

The court of appeals went through the potential parade or horrors and struck down the statute or its face, in its entirety, for just those reasons.

And the Indiana Supreme Court rejected it and in essence rejected your concurring opinion in Arcara saying that there was absolutely no necessity of applying any First Amendment analysis here and end of the question.

And simply said that the full range of RICO penalties is perfectly appropriate here, no different whether these materials are books or groceries or widgets.

So, I would suggest that at this juncture, given the final judgment of the Indiana Supreme Court, there is no appropriate basis for maintaining the... for staying this Court's scrutiny and hopefully its hand.

I would suggest, in concluding, with respect to the parallel to the Near versus Minnesota situation and the inapplicability of RICO because it's very clear that this court has maintained that in prior restraint cases the operation and effect of the legislation and of the procedures would be looked at.

And the Indiana Supreme Court was very clear, as was Mr. Goldsmith in his brief, that the basic purpose of RICO was remedial in order to deal with a perceived evil, in order to stop a particular kind of conduct.

And the remedy sought under the RICO statute is clearly not simply punishment for subsequent activities, but, instead, broadly remedial to eliminate a particular kind of undefined conduct prospectively.

And I think--

Unidentified Justice: I thought one of your basic positions here and in the state courts was that if books are involved, you just can't close down a bookstore.

John M Weston: --That is correct, your Honor.

And, certainly, our constitutional position, although the Indiana Supreme Court rejected its--

Unidentified Justice: But aren't you claiming that even if you could... if the obscenity convictions are the predicate crimes, aren't you claiming that even if you trace the proceeds of the sales from obscenity... if you can trace those to buying more books, you can't seize them?

John M Weston: --No.

No, your Honor.

Under--

Unidentified Justice: Do you concede that they can?

John M Weston: --Yes, your Honor.

Under appropriate procedural--

--Well, that isn't what you... I don't... I thought you were arguing... or, some people in this case are arguing that you cannot seize a bookstore even if you can trace it.

Not seize a bookstore, your Honor, but seize the particular books.

If... I thought... when Justice Rehnquist Inquired... Chief Justice Rehnquist inquired if, say, there were drug sales--

Unidentified Justice: Yes.

John M Weston: --proceeds from drugs, that sales from the drugs had bought the New York Times, could the New York Times be forfeited with appropriate procedural safeguards?

Unidentified Justice: Yes.

John M Weston: Of course.

And I think we're not disputing that possibility, if there are specifically identified obscene books.

If those books are properly, under appropriate standards, tried, found to be obscene, the $97.00 that flow from those books may be traced.

If they bought $97.00 worth of books, it may be suppressed or forfeited.

If they bought some drapes or a videotape on how to play golf, that may be suppressed.

But what may not be done is that because $97.00 worth of books were sold, the entire bookstore closed.

Chief Justice William H. Rehnquist: I think you have answered the question, Mr. Weston.

Your time has expired.

We will hear now from Mr. Goldsmith.

John M Weston: Thank you, Mr. Chief Justice.

ORAL ARGUMENT OF STEPHEN GOLDSMITH ON BEHALF OF RESPONDENTS

Mr. Goldsmith: Mr. Chief Justice, may it please the Court, let me just... Yes, sir.

Unidentified Justice: xxx 47, whatever that number is, out of this case?

Mr. Goldsmith: We think we're here, your Honor.

The Indiana Supreme Court consolidated Fort Wayne and Indianapolis, which is called 4447, and then this Court consolidated, when it accepted the petition for certiorari, the Indianapolis and Fort Wayne cases with the Kokomo case, which is called Sappenfield--

Unidentified Justice: Well, now, you we're the prosecuting attorney--

Mr. Goldsmith: --Yes, sir.

Unidentified Justice: --in 4447?

Mr. Goldsmith: Right.

Unidentified Justice: Well, how is that case here?

All we've got is Fort Wayne and Sappenfield.

Mr. Goldsmith: Well, it's a procedural question, your Honor.

The Indiana Supreme Court consolidated under the 4447 court cause number, 4444 and Fort Wayne.

This Court then accepted certiorari on that cause number in both of those cases.

We are listed as--

Unidentified Justice: We accepted the--

Mr. Goldsmith: --Yes, sir.

Unidentified Justice: --In 4447?

Mr. Goldsmith: Yes.

Except none of the--

Unidentified Justice: Well, why doesn't--

Mr. Goldsmith: --Well, because... I'm sorry.

Unidentified Justice: --Go ahead.

Mr. Goldsmith: The confusion, your Honor, is that the defendants in that case did not become petitioners in this case.

The 4447 defendants didn't elect to participate in the argument today.

Unidentified Justice: The case just got here on its own?

No--

[Laughter]

Mr. Goldsmith: Well, your Honor, this Court accepted certiorari for... under a petition that came from a cause number that included 4447 and included Fort Wayne.

The defendants in 4447 elected not to participate, but the Court granted certiorari.

The petitioners listed the state as a respondent and myself... I'm listed as a respondent.

Unidentified Justice: Maybe we granted it improvidently then.

Mr. Goldsmith: Very well--

Unidentified Justice: I don't recall that we've ever let one side beat up on another who is not even here.

Mr. Goldsmith: --Justice Scalia, I think if I could address my remarks to the overall issue of the RICO laws and the only reason that the Indianapolis--

Unidentified Justice: Don't you sign with the clerk's office who represents who?

Mr. Goldsmith: --Yes, sir.

I represent--

Unidentified Justice: Well, did you sign that?

Is that filed in our clerk's office?

Mr. Goldsmith: --Yes, sir.

Unidentified Justice: You're sure?

Mr. Goldsmith: Yes, sir.

Unidentified Justice: ISSI and Plaza Entertainment and Burton Gorlick.

Mr. Goldsmith: Those were all of the defendants who were rearranged--

Unidentified Justice: Well, what you're submitting, does that go also for them?

Are you telling us they are here too?

Mr. Goldsmith: --Well, they are here as not... pursuant to this Court's rules, they are here as nominal respondents because they did not elect to come forward as petitioners.

But, nevertheless, may it please the Court--

Unidentified Justice: Well, how come you're representing them?

Mr. Goldsmith: --I represent Sappenfield, Fort Wayne and if 4447 is here, I represent them as well.

I represent the State of Indiana in the consolidated RICO cases that are before this court.

The only significance to 4447 other than a fact that it continues as a case when this Court is finished with it, is that it is a civil RICO case without pretrial seizures, Sappenfield is a criminal case that's been stopped midstream without any pretrial seizures, and Fort Wayne is a case with 39 prior convictions and pretrial seizures.

They represent a range of what can happen underneath the RICO laws.

In terms of directing attention to the issues, though, I would suggest to the Court that the most important issue in terms of law enforcement in the long run is whether in enforcing a RICO law after judgment, and after conviction, the state may impose sanctions that affect First Amendment materials.

It's the post-trial, post-judgment, post-conviction remedies that can be applied to assets, regardless of whether those assets expressive materials, as alluded to in the Arcara case, that are of critical importance in this case and in the future RICO enforcement.

Unidentified Justice: Mr. Goldsmith, will you help me with the issues a little bit.

Your opponent agrees they can be applied... the sanctions can be applied to First Amendment materials if they are traced to show they are proceeds of the violations.

So, we don't... everybody agrees they can be applied to First Amendment issues.

That much is clear, is it not?

I just heard him say that a few minutes ago.

Mr. Goldsmith: Yes, your Honor.

But he tried to limit that at tracing.

Our position is that it would not stop there.

Unidentified Justice: Well, that's right.

Your position is... and is he correct?

Do you agree with his statement of your position, that you're saying that if in a bookstore two obscene books are sold, automatically you can seize the entire inventory?

Yes or no?

Mr. Goldsmith: I don't agree that that could necessarily happen.

Unidentified Justice: Can it happen under your statute?

Well, it did.

Mr. Goldsmith: Justice White, I think in terms of post-trial sanctions, it has not happened in any one of these cases.

Unidentified Justice: I know.

But you could answer Justice Stevens what your position is.

Mr. Goldsmith: My position, Justice Stevens, is post-trial that becomes an Eighth Amendment question, which could or could not occur, depending on the proportionality of the response.

Unidentified Justice: Oh, I'm not asking you about its constitutionality.

I'm asking you about the meaning of the statute.

If the statute is applied as it's been construed by the Indiana Supreme Court, could you, as the prosecutor, say to the judge,

"We have proved that three books were obscene in this store. "

"Kindly enter an order closing the entire store and forfeiting the entire inventory? "

Mr. Goldsmith: I could--

Unidentified Justice: If that's all you've proved?

Mr. Goldsmith: --I could ask for that remedy and--

Unidentified Justice: And would you be entitled to it under the statute?

Mr. Goldsmith: --It would be a proportionality question.

I would be... officially I would be entitled to it under the statute.

Yes, sir.

Unidentified Justice: So, the only objections to that relief would be constitutional objections?

Mr. Goldsmith: If I convince the judge and the jury and then the outside--

Unidentified Justice: That the three books were obscene and they were sold in a particular store and the rest of the store was filled with nothing but Charles Dickens and William Shakespeare?

Mr. Goldsmith: --Yes, sir.

Unidentified Justice: Well, didn't... wasn't there a seizure of the entire store before trial?

Mr. Goldsmith: There was a--

Unidentified Justice: Based on just probable cause to believe that obscenity was being sold there?

Mr. Goldsmith: --In the Fort Wayne case, that's true.

Unidentified Justice: A few items of obscenity being sold there?

Mr. Goldsmith: Well, it was based on the allegation that there had been 39 prior convictions at those three stores.

Unidentified Justice: Yes.

But that doesn't necessarily indicate that even a major share of the merchandise in the store were obscene.

Mr. Goldsmith: Nor, Justice White, no one of these cases takes the position that whether or not the materials seized are obscene is significant.

It's as to whether they are the proceeds of a prior existing crime to wit an obscenity.

Unidentified Justice: Yes.

Mr. Goldsmith: And in this particular case, the state maintains that once there is an adjudication of obscenity, then it becomes a proportionality question because of 39 prior convictions, each conviction carries a year sentence.

So, the prosecutor had his choice between putting the owner in prison for 39 years or confiscating $25,000, $50,000 or $100,000 worth of books.

That's a relationship--

Unidentified Justice: Yes, but I thought... I thought the remedy was seizure of the proceeds of the violation.

Mr. Goldsmith: --The Indiana and Federal Racketeering laws, it's the position of the respondents, allow seizure of proceeds and also seizure of other assets if they are derived from a criminal activity to wit--

Unidentified Justice: Yes, if they are derived from a criminal activity.

Now, suppose there is only one book that's been proved obscene and sold.

Now, it's awfully hard to conclude that the whole store full of books and the real estate itself is derived from the sale of one book.

Mr. Goldsmith: --Yes, Justice White.

We agree with that.

Unidentified Justice: So, that's a state statutory construction problem in the first instance, I suppose.

Mr. Goldsmith: In the trial court, just because there is a sanction allowed statutorily for a crime doesn't mean that the maximum is automatically going to be imposed.

Unidentified Justice: I agree with that.

I thought you had answered Justice Stevens earlier... that it is a matter of statutory construction.

If there were a conviction on the predicate offense, this sort of forfeiture would automatically follow.

Are you now saying... or, at least, are you saying, whether you said something different before or not, that the trial court has discretion to determine what sort of a penalty along those lines will be imposed?

Mr. Goldsmith: Mr. Chief Justice, that's correct.

I meant to answer Justice Stevens, his direct question.

We would be allowed to ask that under the statute.

It wouldn't in any way be mandatory.

The trial judge would have discretion to fashion the penalty in the same way he would fashion the penalty in years, fashion the penalty in terms of fine, and fashion the penalty in terms of confiscation and forfeiture of assets.

They all are ways to enforce a law.

RICO, as this Court has ruled is--

Unidentified Justice: You're getting me confused now.

I thought you said before that it doesn't have to be... I thought you said earlier it doesn't have to be proceeds derived from the obscenity.

Mr. Goldsmith: --That's the state's position.

Unidentified Justice: You said that.

But just now you've said it has to be derived from.

What are we talking about?

How does the Indiana statute work?

Is it necessary that there be a derivation from... derived from the proceeds of the unlawful activity or not?

Mr. Goldsmith: There has to be a nexus between what you're trying to forfeit--

Unidentified Justice: Oh, of course.

Mr. Goldsmith: --and what you have previously convicted for or judged.

What we disagree with the petitioners on is the need to trace the assets from book up to organized crime back to another bookstore.

We don't believe that that--

Unidentified Justice: What is the nexus?

It's enough that you sold it in the same business?

Is that enough?

Mr. Goldsmith: --The people would need to be same.

You would have to show that they invested money from the first criminal proceeds into the second criminal proceeds.

You'd have to show relationship in terms of enterprise between those two.

Unidentified Justice: Yes.

But, Mr. Goldsmith, if I'm not mistaken, you have two ways of describing the term criminal activity.

The two obscene sales are one form of criminal activity.

But they also, if I understand you correctly, make the entire enterprise in which those books were sold a criminal enterprise and an unlawful activity, under your RICO statute.

So, if the bookstore has sold two or three obscene books, it becomes, in its entirety, a criminal activity.

Isn't that the way it works?

Mr. Goldsmith: Yes.

Unidentified Justice: And, therefore, everything in the store is automatically subject to forfeiture because the whole store is a criminal activity by reason of the fact that the two obscene books were sold there.

Isn't that the way it works?

Mr. Goldsmith: It does.

But just so I... it's automatically is subject to forfeiture.

That doesn't automatically mean that a court would exercise its discretion if there were a proportionality problem.

The same is true... this case is no different than the--

Unidentified Justice: But how can there be a proportionality problem if under the RICO statute the pattern of activity is satisfied by the sales of two or three items which are part of the ongoing business?

Then the whole business is a criminal enterprise.

Isn't that... that's the way RICO works I thought.

Mr. Goldsmith: --It does.

Unidentified Justice: Yes.

Mr. Goldsmith: The court, it's the state's position, would fashion the remedy at the extent and scope that it wished.

The same as the 39 prior convictions, it could put the person who owned it in jail for 39 years or one year.

Similarly, we view this case as an Arcara case and that simply says that this is no different than if there was narcotics sold at store one and the person sold the cocaine three times and two times, took the money and went into business in a toy store or bookstore or any other sort of store.

That would be subject to the confiscation of the state.

And to rule that this case is anything else, would reduce the sanctions of racketeering laws.

It would provide a safe haven behind expressive materials for organized crime.

That's why we believe this case is an Arcara case.

And if it's not an Arcara case, it's an Eighth Amendment case.

But it's surely not a First Amendment issue.

Unidentified Justice: Mr. Goldsmith, do you also defend the right of the state to get a pretrial seizure without any hearing pre or post-seizure and based on a conclusory affidavit of the police officer?

Mr. Goldsmith: Justice O'Connor, this is the most difficult position for the state to maintain in this case.

Unidentified Justice: No.

I just asked if that's the position you take.

Mr. Goldsmith: It is the position of the state--

Unidentified Justice: That's perfectly okay?

Mr. Goldsmith: --that if in the Fort Wayne case with 39 prior convictions beyond a reasonable doubt, an allegation of identity of parties that that was permissible conduct, but we admit, your Honor, that that is the most difficult position for the state to maintain in this case.

Unidentified Justice: Well, you concede that the seizure of Fort Wayne Books and the stores was not to preserve evidence for trial?

Mr. Goldsmith: Yes, we concede that.

Unidentified Justice: Okay.

Mr. Goldsmith: And that's one reason that it's come back--

Unidentified Justice: Then how do you avoid the Marcus rule, do you think?

Why doesn't that apply?

Mr. Goldsmith: --Well, I think that if it doesn't apply... we may--

Unidentified Justice: Why doesn't it apply?

Mr. Goldsmith: --It would not apply, your Honor, because of the 39 prior convictions.

But I would suggest to the court... because this is really just a continuation of the first action.

Federal RICO is all in one action and Indiana RICO collateral estoppel from the criminal cases.

I would also acknowledge, your Honor, this is a very difficult position for the state and it may be that the RICO laws pretrial ex parte we have a Brockett severance issue that ought to occur here as it relates to the pretrial ex parte seizures.

I'm going to be very careful, though, to separate that in terms of my argument from the sanctions post-trial which we believe present an Arcara issue.

But I do acknowledge that the pretrial seizures, without a hearing, present a very difficult position for the case, for the state and it's based on, however, the prior 39 convictions.

That's the way we distinguish the case.

Unidentified Justice: Does this statute provide for fines?

Mr. Goldsmith: Yes, sir.

Unidentified Justice: What's the maximum fine?

Mr. Goldsmith: The maximum criminal fine, I believe is $10,000, Mr. Chief Justice.

Unidentified Justice: Well, now, is it your position that the non-obscene portion of the books sold could be forfeited even though, say, they were of a value of $40,000 or $50,000 as a result of a successful criminal prosecution?

Mr. Goldsmith: The legislative procedure in Indiana is that the state could bring a civil action based on the criminal conviction and ask for remedy in excess of the $10,000.

That, your Honor, we think is reasonable given the fact that the court had an option between $10,000 and eight years, and what this court would be doing if it were to suggest that the forfeiture is unconstitutional under the Eighth Amendment is to say that a seizure of $50,000 or $100,000 is a more severe penalty than the eight years.

And we think it would not restrict expressive material to take a million dollar operation... we haven't even had a chance to go to trial to show the factual worth of the defendant... and take a $50,000 or $100,000 penalty, we may have a much less restrictive effect on expressive rights than putting the owner in jail for eight years.

Unidentified Justice: Yes, but then this is something quite different, really, from saying that you're fined $10,000 and these books are attached to make sure that you pay the fine.

Mr. Goldsmith: It's different in that under a fine the defendant has the option from where he should get the money.

Yes, sir.

Unidentified Justice: And it's also different in that there is no particular monetary limit on it.

Mr. Goldsmith: There is no limit in terms of obscenity or narcotics or anything else to RICO enforcement nationally or at the state level.

That's correct.

That's why, Mr. Chief Justice, we believe this is an Eighth Amendment proportionality issue and not a First Amendment expressive material question.

If this does... the state's position is that we need to begin first with Arcara post-trial.

After look at Arcara and satisfy ourselves that this does not relate... this is content-neutral, does not relate to expressive materials... the obscenity is a predicate.

Once it's found to be obscene, it's the same as drugs.

Then you move... that's the issue one.

There's an expressive issue on the front side.

On the back side are the sanctions.

The sanctions, it is our position, make no difference whether they are books that are involved, or any other material where enforcing is sanctioned.

And in that regard, it's either Arcara, or it is an O'Brien test, as modified by Albertini.

Albertini clearly said that an incidental burden on speech is no greater than is essential and, therefore, it's permissible under O'Brien so long as neutral regulation promotes a substantial government interest.

This promotes a substantial government interest.

Finally, the discussion of Near we believe also is misdirected.

In that case, the Court exactly said they were not looking at the permissible scope of subsequent punishment.

This is a subsequent punishment case and not a prior restraint case.

Once there is a conviction for obscenity, it is a subsequent punishment and not a prior restraint.

And if it has incidental effect, it has incidental effect under the O'Brien test as modified by Albertini.

Unidentified Justice: Are you just going to leave it up in the air on the pretrial seizures or are you just going to say that that's a difficult question?

Are you conceding error?

In the Fort Wayne case you say there are 39 priors that had already been adjudicated and you save the pretrial procedures on that basis.

But how about this other case that you say is here?

Mr. Goldsmith: There are--

Unidentified Justice: Which I'm not sure it is, but if it is, there weren't 39 priors in those cases.

Mr. Goldsmith: --That's right.

And in that case, your Honor, there were three bookstores.

Two which were open--

Unidentified Justice: Right.

Mr. Goldsmith: --and the court explicitly allowed them to stay open and sell their books and didn't interfere at all because they were ongoing businesses.

The third store was not open yet and the 72-hour order was that they come into court before they opened up.

The object of the Indianapolis pretrial orders was to maintain the status quo until a full adversarial hearing 72-hours later.

I would submit and I would concede that RICO cannot and should not allow ex parte closure of bookstores absent prior convictions.

That clearly would be unconstitutional.

Unidentified Justice: Absent prior convictions?

Mr. Goldsmith: Yes, sir.

And with prior convictions, we would acknowledge that there is no authority from this Court directly on point either way.

Unidentified Justice: Well, you know, in a RICO case like this were you allege but haven't yet proved three obscenity violations, you would say that until the actual case is tried out you cannot seize or close down the business?

Mr. Goldsmith: Absolutely not.

It would clearly be a violation of their First Amendment rights.

Unidentified Justice: But you would allow an order preventing the wasting of assets?

Mr. Goldsmith: Clearly, Justice Scalia, the same as a narcotics case, an order not to dissipate assets would be appropriate.

And I would suggest, in modification to my prior answer, if there were some allegation that the assets were being moved to Europe, that it might be proper to seize them.

But absent a suggestion that the assets are to flee, an order not to dissipate, which was the Indianapolis order not to dissipate... the reason that I'm so intent on that, Justice Scalia, is because the important tool here is the post-trial sanction which looks just like any other penalty after trial because obscenity does not have any First Amendment expression.

And this remedy is content neutral.

In this particular case it's applied to a bookstore.

But if it were applied to any other set of assets, it would be the exact same discussion.

Unidentified Justice: Don't you think that your state supreme court held that you could have a pretrial seizure of the bookstore just based on probable cause?

Mr. Goldsmith: I think that the Indiana Supreme Court held... three justices held that in the Fort Wayne case with prior convictions there could be a pretrial seizure.

Yes, sir.

One of the chief justices dissented on the Fort Wayne case.

Unidentified Justice: But there is no holding that... there is no holding that just on probable cause you could have a pretrial seizure?

Mr. Goldsmith: That's correct.

There is no holding.

And I think that what we're facing here is if the Court is troubled by the facial ex parte ability of the Indiana law, that we have a Brockett analysis that ought to be made, and that part ought to be severed out.

But it should not affect the remedial opportunities of federal or state RICO.

And the best way to look at that is the Sappenfield case.

It's a traditional criminal case that wants to go to trial based on obscenities as the predicate and enforce a sanction at the other end.

That is a typical RICO case and the issue of ex parte seizure at the front end shouldn't affect the court's sanctions on the back end of the case.

It's particularly important that we consider this case... this Court has accepted any number of remedies that affect expressive materials so long as they are not aimed at the content of those materials.

Unidentified Justice: If we sustain the statute, it has a strong deterrent effect on your state, does it not?

Mr. Goldsmith: Absolutely.

Yes, sir.

Unidentified Justice: Don't you think in candor that some businesses which sell books as just part of their inventory might give up that line of inventory just to keep well clear of the statute?

Mr. Goldsmith: Justice Kennedy, I acknowledge that this has a powerful deterrent effect.

I'm not particularly embarrassed about that.

I don't think it would cause people to stop selling books.

I think that it might cause persons to conform their sale of obscene books more on the side of indecent books.

But, of course, that's the purpose of criminal obscenity laws.

It is to deter conduct.

And I think that what we have before the Court today is an acknowledgement that obscenity is a powerful source of funds for criminal activities and that we have a sanction that is equally powerful.

And if the state--

Unidentified Justice: But are you completely confident that the deterrent is not so strong that indecent but non-obscene expression is not going to be affected?

Mr. Goldsmith: --Your Honor, it's the state's position that obscenity law in the United States today has developed to such a hard-core standard and is so clearly understood to have such a hard-core standard that I would anticipate that it would have a deterrent effect on legitimate sale and expression of ideas.

And that would not be the case because, even here, there has to be a conviction for the obscenity predicate.

And we don't believe that it would have a chilling effect, but rather a deterrent effect, on people who are involved in the expression of ideas.

Unidentified Justice: --Smith in California was decided, wasn't it?

Mr. Goldsmith: Well, this case relates not to the content of the materials.

But this case does not come into being until there is a finding of obscenity.

And then the sanctions are in place.

And we believe that that differentiates it from the prior rulings of this court.

That's why we think it's an O'Brien/Albertini case if it's a First Amendment case at all.

Unidentified Justice: Incidently, Mr. Goldsmith, you must be tired of my pressing 1447, or whatever it is.

Is there a separate judgment in that case?

Mr. Goldsmith: There is no judgment in any case before this Court today.

There is a ratification by the Indiana Supreme Court of the facial constitutionality of the RICO laws which would allow the enforcement of sanctions by the court.

Unidentified Justice: Well, did the Indiana Supreme Court enter a judgment in 4447?

Mr. Goldsmith: The Indiana Supreme Court's opinion applies to 4447.

The court case hasn't yet been tried because it's--

Unidentified Justice: Well, I know.

But the Indiana Supreme Court entered some kind of judgment, did it not?

Mr. Goldsmith: --The judgment of the Court was to reverse the court of appeals and remand the case back for trial.

One of the three... just to give you an idea of the import of the sanctions here, one of the three stores was burned down.

There was an arson conviction in federal court.

And under federal racketeering law, the interests of that person in these other stores were forfeited.

So, we have a closure from an arson as a predicate that really parallels what we would see from obscenity as a predicate.

Unidentified Justice: It's a small point.

There's been a final judgment that pending trial in the Fort Wayne case that the stores may be closed.

Mr. Goldsmith: Yes, sir, that's correct.

Unidentified Justice: And you say that's permissible because there were 39 prior convictions?

Mr. Goldsmith: That's correct.

Unidentified Justice: I just want to get one small point on the meaning of the statute.

The predicate of... you have to have... what is it, two or three?

Mr. Goldsmith: Two.

Unidentified Justice: And is it two sales of the same book or does it have to be two different books?

Mr. Goldsmith: This is a basic racketeering law.

It requires two predicate offenses.

The predicate offenses have to be obscenity.

It could be one book.

I suppose it could be two books at two separate times that were sold.

Unidentified Justice: But it could be the same book on Monday and then another copy of that book on Tuesday?

Mr. Goldsmith: Or it could be two murders or it could be two heroin--

Unidentified Justice: Yes.

But I'm just asking you a question about this.

Mr. Goldsmith: --That's right.

So, the conviction or judgment for those offenses would throw the case back into the RICO analysis if there was a common enterprise.

And what we really have here is not a draconian response.

I prefer to use the Russello analysis that we have new weapons of unprecedented scope and we're dealing with an organization with lots of money and so they're financial remedies, instead of the traditional criminal remedies, which put the store clerk in jail for a number of years.

And we believe that these remedies post-trial, at least, fall within traditional First Amendment and Eighth Amendment literature.

And if they have an incidental effect under O'Brien and Albertini, that that effect is constitutional.

And deprive the right of the state to use its sanctions in a racketeering law essentially and when it involves bookstores, provides a safe haven behind which narcotics dealers can buy a few books and provide a facade of respectability.

We believe the state's sanctions should not be limited.

This is really what this is; it's an Arcara case and it's not a First Amendment case.

That the sanctions which ultimately come before this Court, need to be judged in terms of Eighth Amendment, a proportionality law as applies to all the RICO laws.

Thank you very much.

Chief Justice William H. Rehnquist: Thank you, Mr. Goldsmith.

The case is submitted.

Your time had expired, Mr. Weston.

John M Weston: Thank you, Mr. Chief Justice.

Attribution:

The OYEZ Project

Featured:

Pope v. Illinois - Oral Argument

Fri, 09 Jan 2009 14:48:29 +0000

Case:

Pope v. Illinois

Media File:

85-1973_19870224-argument.mp3

Related Transcript:

1986_85_1973_argument.xml

Transcript:

Argument of Glenn A. Stanko

Chief Justice Rehnquist: We will hear arguments next in No. 85-1973, Pope against Illinois.

Mr. Stanko, you may proceed whenever you're ready.

Mr. Stanko: Mr. Chief Justice, and may it please the Court:

The constitutional test for obscenity which is applicable to the states through the First and the Fourteenth Amendments contains three parts, each part of which must exist separately and independently in order for a work to be found obscene.

The third part of that three-part test, the third component, is a value consideration.

And that value consideration has been specifically crafted to protect works having value from hostile majoritarian sentiment.

Richard Pope and Charles Morrison were both tried under a State of Illinois statute which allowed the views of a majority to determine the question of whether the work was utterly without redeeming social value.

In short, community standards were applied to the value consideration.

That Illinois obscenity statute is unconstitutional in each and every possible application, no matter to whom applied or to what applied, whether it's a retailer, a distributor, a publisher, or, as in this case, a clerk in an adult bookstore, or whether it's applied to a--

Unknown Speaker: Well, we're really just talking about this particular case.

This statute has been replaced, hasn't it?

Mr. Stanko: --That's correct, Your Honor.

Subsequent to the convictions in this case, the State of Illinois passed a new obscenity statute.

I think it's instructive to note that the obscenity statute put into place by the State of Illinois legislature conforms precisely to the construction for which we argue in this case.

And explicitly, it puts community standards into the first element of the test, which is the patently offensive part of the test.

It includes community standards in the second element, which is the... excuse me, the first is prurient interest; the second is patently offensive.

And it omits community standards from the value determination.

So what we have is the State of Illinois arguing for a construction of the statute which is really consistent... inconsistent with what it has on the books right now.

Unknown Speaker: Well, Mr. Stanko, I don't understand your point when you say that the issue is whether, you know, the majority can run roughshod over... it really isn't an issue of whether the majority can or not.

Your complaint is that it has to be the majority that does it, and that you can't use community standards.

You're perfectly willing to have literary works banned because the majority considers that they have no literary merit.

Mr. Stanko: That's not true at all.

Unknown Speaker: All you're insisting is that it be a nationwide standard and not a community standard.

It's just a question of how big the majority has to be, isn't it?

Mr. Stanko: That's not true, Your Honor.

Unknown Speaker: Oh, then I don't understand your--

Mr. Stanko: I'm not arguing for a standard.

And I think it's improper to characterize it as a standard.

The value determination is a focus.

The jury should look at value and determine it, just as it determines similar elements in any other criminal case.

If you try an aggravated battery case, for instance, the jury looks to determine whether great bodily harm was done to the individual.

They're not told to look through the eyes of the community and decide whether the average person applying some standard would find that great bodily harm was done.

They take the facts and the evidence in the case and evaluate whether great bodily harm was done.

Unknown Speaker: --Well, are you saying that the jury here then should simply evaluate on its own whether or not there's redeeming value?

Mr. Stanko: I'm saying that the jury should evaluate based on the evidence in the case.

Unknown Speaker: Well, what sort of evidence would be admissible, under your view?

Mr. Stanko: Any evidence which would relate to the value of the particular work.

It might be, such as in Jenkins v. Georgia, evidence of reviews, criticisms.

It might be expert testimony relating to the work.

Unknown Speaker: And how would the judge charge the jury?

Mr. Stanko: The judge would do more than charge the jury that they are to determine if the work, in Illinois, under this statute, was utterly without redeeming social value.

He would not charge them that they apply that... they determine that applying contemporary community standards.

Unknown Speaker: But he wouldn't say any... he wouldn't have to say anything else that, you know, you must give some consideration to the expert testimony and that sort of thing?

Mr. Stanko: No, I don't think he has to say anything about the expert testimony.

He does, as in any criminal case, and as occurred in these two cases, tell the jury to use... to evaluate the evidence using their own observations and experiences in life.

Unknown Speaker: Well, what difference would this make in the outcome of any case?

You know, juries, I think, apply community standards whether they're told to or not?

Mr. Stanko: Because in many cases, particularly when you have a small community, the jury could ascertain that in this community this work would be found to be unacceptable, and we find that it would be obscene, applying contemporary community standards.

But if we sit back and divorce the feelings of the community from the inquiry itself, we find that, yes, this work does have some value.

Unknown Speaker: Do you think jurors would do that without any more charge than you've suggested from the judge?

Mr. Stanko: I think they can and do that everyday, Mr. Chief Justice.

Unknown Speaker: Mr. Stanko, may I inquire whether the petitioner offered any evidence that the materials here had redeeming social value?

Mr. Stanko: There was no evidence offered in either one of these cases, Your Honor.

Unknown Speaker: Then how would the petitioner be prejudiced here?

Mr. Stanko: Well, in each of these cases, an attack was made on the validity of the statute, both as written and construed.

The attack was that the statute was unconstitutional because it allowed community standards to be applied to the value consideration.

That is sufficient, certainly under Illinois law, to raise the constitutional issue.

There's no requirement that evidence, or an attempt to present evidence--

Unknown Speaker: But you lost on that issue, and the petitioner was tried and convicted.

Mr. Stanko: --That's correct.

We lost... the statute was effectively construed by the trial judge to include community standards in the consideration.

So at that point to present evidence, unless it was within the community itself, of value, would have been nothing more than a useful ceremony.

Unknown Speaker: But you didn't even make an offer of proof?

Mr. Stanko: That's correct.

But under Illinois law, no such offer would be required to preserve the issue.

Unknown Speaker: xxx an instruction to consider community standards?

Mr. Stanko: Yes, there was.

Unknown Speaker: So the jury was told to look to community standards?

Mr. Stanko: The phrasing of the instruction allowed the jury to apply community standards, that's correct, Your Honor.

Unknown Speaker: What instruction did you request?

Mr. Stanko: In the Morrison case, there was a specific instruction which included community standards in the first two elements and excluded it from the third element.

There was another instruction which would have, by itself, advised the jury that they could consider community standards only on the first two parts of the test.

In the Pope case, because of the construction given by the trial court both in that case and in the earlier Morrison case, there was no separate instruction tendered by the defense relating to community standards.

The instruction was crafted along the construction given by the trial court.

Unknown Speaker: I must say, you've sort of thrown me off.

Because I... it's not your fault, I suppose, but I had thought you were seeking... as I think the Chief Justice thought... that you were seeking an implicit instruction that the third part has to be determined on the basis of national standards.

But you're not.

All you want is the absence of an instruction that it be determined on the basis of community standards?

Mr. Stanko: Well, the relief sought in each case flows from a constitutional facial attack on the statute.

And the facial attack is that the statute allows community standards to come in on the third element.

Flowing from that is the instruction issue that as a result of that instruction, juries are being instructed that community standards are to be applied to all three elements.

We would be more than happy to not have a specific instruction which says, you may only apply it to the first two elements, but just have an instruction that lays out the elements of the test, put community into the first two elements, leave it out of the third element, and the jury has what it needs to make its consideration.

One of the promises of Miller was that the First Amendment protects works which, taken as a whole, have serious literary, artistic, political or scientific value, regardless of whether the government, or regardless of whether a majority of the people approve of the ideas in that particular work.

Majoritarian rule is the essence of contemporary community standards.

And ultimately, I think, the State of Illinois recognizes that that is the vice to be protected against in its brief.

Page 31, it says, the courts of review are the protectors of expression from suppression by majority rule.

Well, certainly if the courts of review are the protectors, the jury in the first instance should be the protector.

Page 21, Respondent admits--

Unknown Speaker: Mr. Stanko, may I interrupt you on that point?

Is it your view that the value determination is a question of fact or a question of law?

Mr. Stanko: --It's a question of fact for the jury.

For a court of review, I believe it would be categorized as a mixed question of fact and law to decide.

It's a constitutional fact which any court of review has to review independently.

Unknown Speaker: Maybe there's a third category: fact, law and taste.

Mr. Stanko: Well, I suppose taste might enter into the court's determination of the fact, but that's the way I would view--

Unknown Speaker: I'm a little unclear.

You say it's a question that has to be reviewed independently.

Is it sort of on a de novo standard, the judge's own view of whether there's value there?

Or whether the jury could permissibly think there was no value there?

Mr. Stanko: --Beginning with Jacobellis v. Ohio and on through the Miller line of cases, Smith v. United States, this Court has recognized in an obscenity case any appellate court, and ultimately this Court, has an independent... has an obligation to independently constitutionally review the facts pertaining to obscenity.

Unknown Speaker: I understand.

What I'm really asking, I guess, is, do you think the scope of review, on an appeal or by the judge ruling on a motion in the trial court is any different on the third element than it is on the first two elements?

Mr. Stanko: I think it's broader on the third element, Your Honor, necessarily so.

Because when community standards are applied to patently offensive or to prurient interest, certainly an appellate court, in a state that might have a countywide standard, or this Court, is not going to be in a position to know what the community standards were.

So by necessity, there's going to be some limitation of the review.

When you get to the value element, you're in a position to look at everything without community standards being superimposed.

Recognition was given to that in Smith v. United States: the third element of the test is particularly amenable to judicial review.

Now, I believe that's correct.

I believe that's kind of the tie that binds everything together when you get up into the appellate court or to this Court.

Unknown Speaker: Mr. Stanko, I was not being entirely facetious when I said, you know, there may be three categories.

You put it to us as though the question of whether it is utterly without redeeming social value, or under the modern test, whether it has any literary or artistic merit, is simply a question of reality.

It either does or doesn't.

But you know there's a Latin maxim... the point is so well known that there's Latin maxim: de gustibus non est disputandum.

It's no use arguing about matters of taste.

You can't say as a matter of fact that a particular work of modern art is, you know, has artistic merit or not.

Some people will say it's wonderful; other people will say it's terrible.

Now, I can understand how a jury or a court can decide that matter on the basis of either local community standards, that is, most of the people in this community think it's a nice piece of art, or even national standards, most of the people nationally think it's good art.

But I don't see how a jury is to abstract itself from community standards and decide, as a matter of fact, whether this is good art or not.

Isn't that utterly unrealistic?

Aren't you really driven to telling the jury, either use local standards or use national standards?

You can't tell them, as a matter of fact, is a Campbell's Soup can good art or not?

Mr. Stanko: There are many situations in which something may have value, but only a minority of people, but not to a majority of people.

If you look at many of the works that were held obscene years ago... Ulysses, God's Little Acre... any number of things that state courts held obscene, you will understand that the majority might dislike something that ultimately does have value, does have importance to someone.

I think a jury can understand the concept that, okay, a majority of people in this community don't particularly care for this work, but we see that it conveys an idea, we see that it conveys information, that could have importance to some portion of our society.

We're going to set aside those feelings of the community and say, this work does have redeeming social value of some sort.

And I think a jury... it's difficult--

Unknown Speaker: But each one is to judge on the basis of his own determination, not looking to national standards, do art critics nationally think so, do other communities think so, but rather, the juror is to look at it and say, this has artistic merit.

That's what you want them to ask the jury to do?

Mr. Stanko: --I want the jury to look at it based on the evidence.

I don't want the jury to decide it based on personal opinion.

And certainly jurors are instructed not to apply their own personal opinion.

Unknown Speaker: Art is personal opinion, is what I'm suggesting.

Mr. Stanko: Well--

Unknown Speaker: Unless you look to a national standard or a community standard, there's nothing else but opinion.

Mr. Stanko: --I would suggest that evidence can be adduced about works that could show the jury that although their taste did not extend to these works, that there was a significant segment of society had value.

Look at the--

Unknown Speaker: Now you're back to saying that what the instruction has to be, ask the jury whether nationally a lot of people would consider this to have artistic merit.

So you are saying that they are to apply a national standard; not their own judgment.

Mr. Stanko: --The evidence could be national in scope.

And certainly if the evidence came in from Washington, D.C., that a particular work had value, an Illinois jury could consider that evidence.

But when you talk about a standard, you're talking about comparing one thing to another.

And a standard implies a majority determination of some kind.

We are not asking the jury to compare the value of a work to a majority determination across the United States.

We are asking the jury to look at whatever evidence may be available, whether it's in the State of Illinois, or whether it's on the West Coast or up in Maine or whatever, regarding this particular work, and make a decision whether or not it has some value.

I think that's the distinction.

Unknown Speaker: Is there ever in these cases, or was there in this, any attempt by the judge to tell the jury what value meant?

Mr. Stanko: No.

No, other than putting in the term, utterly without redeeming social value, that was the extent of it.

Unknown Speaker: Except that they said community standards.

Mr. Stanko: Community standards applied to all three elements, yes.

And I don't this case is really a case where--

Unknown Speaker: Was there a definition of community standards?

Mr. Stanko: --No.

Well, ordinarily adults in the State of Illinois.

The community in... the community in the State of Illinois, in every case, no matter where tried, is a statewide standard.

Unknown Speaker: So it's a statewide standard?

Mr. Stanko: That's a statewide standard, that's correct.

Unknown Speaker: And the jury is told that?

Mr. Stanko: Yes, they are.

The value independent, an independent value element, is extremely important to anyone whose in the business of publication, distribution of literature of any kind.

It's difficult to determine what the community standard is from state to state, county to county, city to city.

And certainly anyone in the national publishing business would not realistically be in a position to do that.

But if that person who wants to disseminate the material knows that that material has value in it, then that person has a safe harbor.

All lawyers like to look for the safe harbors.

Well, in obscenity, the safe harbor is, I may have a work that some patently offensive sexual conduct, I may have a work that appeals to the prurient interest, but I also know this work has value.

And knowing that, even if the ideas I convey are unorthodox, even if they're unpopular, I can go ahead and convey that material, I can sell that material, whether or not it is consistent with the norms of taste in the community.

On the other hand, an obscenity statute such as Illinois', as it has been construed, has a negative impact.

Any determination of obscenity is made on a parochial basis.

Prevailing local tastes become the standard.

And the resulting chill destroys the opportunity for persons to have unimpeded access to information and ideas.

I think this idea of unimpeded access is important.

And if we look back 20, 25 years ago, there are many things that a majority of the people would have felt were not of value; certain information about contraception.

The Joy of Sex is a book that--

Unknown Speaker: xxx just parochial?

Mr. Stanko: --It's a State of Illinois standard.

Somehow Chicago is amalgamated into the State of Illinois for determining the standard.

But they would be, for terms of trying a case, going into the city, you have to ascertain the community standard for that particular city.

Unknown Speaker: Where was this case tried?

In Chicago?

Mr. Stanko: No, this case was tried in Rockford.

Unknown Speaker: Rockford.

Mr. Stanko: Ninety miles northwest of Chicago.

Unknown Speaker: Winnebago County.

Mr. Stanko: The jury was selected on a... juries in Illinois of course come from the country.

So what you are in a position of having a jury from one particular country ascertain what the statewide community standard is.

Unknown Speaker: What's the population of that country?

About 100-, 150,000?

Mr. Stanko: Of Winnebago County?

Unknown Speaker: Yes.

Mr. Stanko: 250,000.

Unknown Speaker: 250,000.

Mr. Stanko: The idea is, with majoritarian rule, when it comes to value, we freeze the state of knowledge on certain things.

If the idea is not acceptable to the majority, it doesn't have the opportunity to germinate; it doesn't have the opportunity to develop.

On the other hand, if we let an idea that may be acceptable to a minority of people grow, if we don't ban it just because a majority of people feel it's an unpopular idea, an unorthodox idea, then at some point in the future, 15 or 20 years from now, it may have worth to a significant segment of society.

Unknown Speaker: I don't understand what you just said.

If a minority of people think it has value, it has value.

Is that it?

Mr. Stanko: What I'm saying is that if we suppress works based on majority view, then works that may have value, albeit to a significant... albeit to a majority... minority of society, may never have the opportunity to grow and develop.

Unknown Speaker: That may be true, but how do you charge the jury?

Do you charge the jury, if any minority of people think this has value, you have to let it--

Mr. Stanko: Well, I don't think case involves the scope of what the charge would be.

But going beyond that, I think you charge the jury that the jury determines whether the work is utterly without redeeming social value, and leave it at that, and let the jury make its determination based on the evidence and based on other instructions given.

Unknown Speaker: --And you're confident that on the basis of that instruction the jury is going to come to a conclusion that if a minority somewhere thinks it has redeeming social value, the jury has to find it has redeeming social value?

Mr. Stanko: I think if there's evidence to that effect, and the jury believes that evidence, it can make that determination.

Unknown Speaker: I would find that a confusing xxx way as a juror member who got that charge.

I wouldn't think that that's what it meant, if there's a minority who likes it--

Mr. Stanko: Well, certainly, there would be opportunities for states to develop that charge.

And once again, the scope of this case, the issue in this case, doesn't involve exactly how you would charge the jury.

The question is, are you going to let the jury make the determination based on what a majority of people feel about the work in the community?

Are you going to let parochial test prevail?

And that's what should be avoided.

Unknown Speaker: --Mr. Stanko, it occurs to me, there might be cases in which it would be more favorable to the defendant to use the local standard rather than the national standard.

Supposing you had a work that had special appeal to Scandanavians, who would understand some particular message; or it might appeal to a lot of people in Rockford but not nationwide.

So maybe there would be cases it seems to me where you might be better off with a local standard.

Mr. Stanko: Well, that may be true.

But at the same time, if that's correct, then evidence could be brought in to bear on the value determination, and I think that evidence will be relevant on how the jury ultimately decides that question.

Obscenity is both a local and a national concern.

And certainly this Court in Miller, when it told us that the people in one city or country do not have to accept what people in another city or county find tolerable, indicated that.

In Smith, we were also told that to the extent that local concern is relevant, the jury's application of contemporary community standards fully satisfies that interest.

On the other hand, we have the interest that fundamental limitations on the First Amendment... fundamental limitations on the state through the First Amendment do not vary from community to community.

If the local community standards, and the values, are to be tied together, ultimately it's the value concern which gives the works the national protection.

It's a consistent element.

It's always there for a court of review to draw on.

Ultimately it's here for the Supreme Court to draw on.

And it's been present ever since the beginning when Roth was decided.

Although not stated as part of the test in Roth, value was certainly talked about, and the Court said that something was obscene only because it was utterly without redeeming social importance.

It was present again explicitly in Memoirs when we used... when the Court used an "utterly without redeeming social value" test.

And finally, in Miller, when the more restrictive

"lacking serious literary, artistic, political or scientific value. "

was adopted, it was present.

It's always been there.

And it's always been there for a jury or a court, an appellate court or this Court, to reach in and rescue a work because a parochial jury had determined that work to be obscene.

And that's really consistent with what we talked about earlier, the scope of review, particularly amenable to judicial review, as this Court indicated in Smith.

The Illinois obscenity statute is unconstitutional in each and every application.

It's unconstitutional as applied to Mr. Pope and Morrison.

It would be unconstitutional no matter to whom or to what applied, in any circumstances.

Sensitive tools are required to operate along that dim, uncertain line between protected speech and obscenity.

This is not a sensitive tool.

This is a bludgeon.

We would ask the Court, as it did in Pinkus, Pinkus v. United States, where children were included in the community, to reverse the conviction in this case.

We would also ask the Court to hold the statute facially invalid.

If the Court has no more questions, I'd like to reserve the balance of my time.

Argument of Sally Louise Dilgart

Chief Justice Rehnquist: Thank you, Mr. Stanko--

We'll hear now from you, Ms. Dilgart.

Mr. Dilgart: Mr. Chief Justice, and may it please the Court:

I'd like to supplement Petitioners' summary of evidence in this case, because this record reveals that petitioners were pandering sexually exclusive material of the hard-core variety solely for its prurient appeal and commercial gain.

These six magazines were purchased from two adult bookstores in Rockford, Illinois, that advertised magazines and marital aids for sale, and video films to watch inside the stores.

Access to those stores was limited to adults only, and there hundreds of magazines just like these for sale inside those stores.

Everyone of the magazines was sexually explicit, and the proprietors had even grouped the magazines in categories, categories that advertised the prurient appeal of the particular subject matter involved.

The titles alone of these magazines revealed that their extensive... their exclusive purpose is to appeal to prurient interest.

Each one of the magazines which you have before you today contains an uninterrupted series of photographs depicting the same kind of offensive hard-core sexual conduct described by this Court in Miller and defined by Illinois law.

Not one of those magazines contains any stories or any attempts at literature.

There are only extended captions, captions that reiterate in graphic terms the explicit nature of the photographs themselves.

So I submit to you, then, in this context, that there is no evidence within this record upon which any jury could find some type of value.

Petitioners pandered materials portraying hard-core sexual conduct.

The authors of these magazines do not even try to convey ideas or artistic messages.

So I submit to you that a jury applying any value standard, under either of the parties' tests, would necessarily find these magazines to be obscene.

At issue before this Court today is--

Unknown Speaker: Is it your view that in order to decide this case we have to read these magazines?

Mr. Dilgart: --It's been my understanding of the Court's decisions in the past, Your Honor, under appellate review, that the Court will undertake that duty, and has a constitutional obligation to conduct a review to make sure that the First Amendment has not been violated in this case.

Unknown Speaker: Were they set forth in the Joint Appendix, the parts that you're saying we should look at?

Mr. Dilgart: I'm sorry, I couldn't hear the first part.

Unknown Speaker: Are the portions of the magazines that you think we should look at in the Joint Appendix?

Mr. Dilgart: No, it's my understanding that all the magazines as people's exhibits, and are within the record in that matter.

Unknown Speaker: But you think we should read them, even though you didn't bother to put them in the Joint Appendix?

Mr. Dilgart: That would be correct, Your Honor.

Today this Court is asked to decide whether value determinations should be made with reference to ordinary adults within the community.

We wish to make two arguments.

First, that such an instruction does indeed serve the First Amendment.

And secondly, even if value determinations may not be made in this manner, the petitioners' convictions must nevertheless be affirmed because they were not materially prejudiced by the instructions at their trials.

After Memoirs and Miller, jurors are required in the first instance to sit as fact-finders to determine if the material appeals to prurient interest, depicts sexual conduct in a patently offensive way, or whether the material has value.

This Court has indicated that those three elements coalesce in a community definition of obscenity.

So in submitting the case to the jury for its initial determination, then, there's no reason to treat value determinations in any other way.

Jurors need a consistent frame of reference when making these three determinations.

In these particular cases, the Pope and Morrison juries were instructed to discard their personal opinions, to consider the views of ordinary adults within the whole State of Illinois.

We submit to you that that instruction was constitutionally proper.

Jury determinations of value should be made with reference to community standards.

And I use the term "community" in the sense that, by definition, it will look beyond the idiosyncratic opinion of a single person to focus on common views held by a larger group of people.

Juries were designed to bring a sense of community to the law, and jurors perform their intended function when they make judgments of this very sort.

Contrary to petitioners' claim, community standards are, in a sense, objective, because they prevent jurors from indulging their personal opinions or tastes.

That does not mean that the First Amendment requires any particular geographic designation of the community, because I submit to you that decisions of those nature are best left to the states.

Allow the states to decide the geographical designations in a manner consistent with our traditions of local government, in matters of public welfare.

Yet the contrary... the inference here is that if a state wishes to adopt a statewide standard, as it did in this case, to facilitate the juries' decision-making, then that state may constitutionally do so.

Unknown Speaker: What do you do about the publisher who thinks that he has something of artistic merit, but it has material in it that he thinks would offend some communities' sensitivities, explicit sexual material.

Nonetheless, he thinks it has artistic merit, and he would be very confident to send it out there under our three-part test except that there may be some little community that just doesn't like this kind of art.

Now you're saying he's just at risk.

Mr. Dilgart: I would submit three things to you, Your Honor.

First of all, that that's not the situation in our case.

Unknown Speaker: I understand that.

Mr. Dilgart: Because, again, there was no intent to convey ideas.

Unknown Speaker: I understand that.

Mr. Dilgart: Secondly, I would submit that there is not a significant notice problem of a nature that you suggest, because under the standard that we advocate today, people can... authors and distributors can reasonably know the contours of that community definition.

In this case, in fact, petitioners introduced evidence of the statewide standard.

Petitioners here knew the contours of the community standard.

Unknown Speaker: Of what the community thought was good art and what was bad art?

I think it's a lot easier to learn the community standard on the first two points than on the third.

I have no idea what they consider good art out... I don't even know what they consider good art inside the beltway.

Mr. Dilgart: The problem that we would have is, under the alternative approach advocated by petitioners, they'd have no indication whatsoever, because we would not even know what the standard was.

If there is to be an objective standard, such as that advocated by petitioners, some sort of abstract definition, a per se value test, then I submit to you that the notice and chilling problems would be significantly... significantly greater there.

The best approach that we can present to the Court in this case today is an approach in which people may sit as ordinary adults within a particular community, a community from which they are drawn, where they will reasonably be expected to know the views of that community.

It is a better approach than an objective per se standard or a national standard, which as I understand it, are the options in this case.

Unknown Speaker: May I ask you, following up on Justice Scalia's thought, supposing a publisher had a book that he wanted to sell in Illinois, and he's in New York, and he took it to the art critic or the literary critic of the New York Times, and that person told him, this has got a lot of value.

It's going to be great art in the next couple of generations.

And he asks somebody at the Chicago Tribune, and he says, this is junk.

Don't bother selling it in Illinois.

I take it the evidence of what the New York Times critic told him would not even be admissible in the case?

Mr. Dilgart: We do not agree, Your Honor.

We would... we would submit to you that any evidence which is relevant to the value of the material is admissible as relevant to the material's value.

Unknown Speaker: Relevant to the value as measured by the Illinois standard?

Why would the New York Time's critic's opinion have any value for that?

Mr. Dilgart: It would be admissible as any other sort of expert testimony.

The New York Times critic in that case could not usurp the jury's function and make the ultimate determination; but the juries could consider that.

Unknown Speaker: What if the New York Times critic said to the author, this is great stuff in New York and east of the Hudson, but I know they wouldn't like it in Illinois.

It would be considered junk in Illinois.

Would his evidence be admissible or not?

Mr. Dilgart: To the extent that a defendant would seek to introduce evidence pertaining to a community reaction outside the state standard employed, no, it would not be admissible in that context.

Where is here, then, the Hamling approach?

The subjective, idiosyncratic approach has been rejected.

And jurors will look beyond personal opinions to consider the views of ordinary adults within a community.

I submit to you that the demands of the First Amendment have been satisfied.

To the extent the petitioners decry the possibility of parochial determinations of value in this standard, I submit the petitioners' fears are not well founded.

The First Amendment does not require a national standard.

It does not require homogenous expression.

This Court, in the Hamling decision for example, has indicated that different judicial districts may have different community determinations, just as different states may regulate in different ways or not at all.

And as a logical conclusion, I feel that different states may reach different conclusions concerning, say, the artistic value of a work.

The proper check against unconstitutional results has already been provided by the existing safeguard of appellate review.

Under the broad scope of appellate review for First Amendment cases described in Bose, this Court, regardless of the community standard employed, may exercise its independent judgment to review any of the three--

Unknown Speaker: What standard would the appellate court have to apply on appellate review of this third part of the Miller test?

Would it have to review what the Illinois community standard is, I suppose?

Mr. Dilgart: --I must be candid and say that the Court has not spoken with utter clarity in the past, because this issue has never been before the Court.

As I read Miller, Miller approved and required the use of community determinations, community standards, for the first two prongs.

And about two paragraphs later, the Court noted that of course it would have independent appellate review, of the New York Times nature, available to it.

That suggests to me two possibilities.

Either community determinations can be reviewed, and that the courts will not have difficulty in doing so.

Or, that the courts are not necessarily restricted to assessing the sufficiency of evidence underlying the community standard employed.

Unknown Speaker: Well, Ms. Dilgart, in Jenkins v. Georgia, we reviewed, was it, a patently offensive determination, and said there just wasn't enough evidence to support a patently offensive.

And I gather that all concede that "patently offensive" should go under community standards.

Mr. Dilgart: I read Jenkins a little bit differently, Your Honor, because Jenkins, as I understand it, looked to see whether or not the described types of hard-core sexual conduct were present within the movie, Carnal Knowledge.

Unknown Speaker: Oh, the first part of the first prong of Miller?

The things that were permitted and not permitted as described in Miller?

Mr. Dilgart: Under the second prong of patently offensive sexual conduct, yes.

I read the case more narrowly.

Respondent believes that petitioners proposed instructions for value determinations will not assist a jury.

In fact, we believe that petitioners' proposals might actually encourage unconstitutional results.

To the extent that petitioners would exercise any reference to ordinary adults within a community, petitioners, we feel, would remove that portion of the instruction that jurors will not indulge their personal or intolerant views.

And I would like to address some of the Court's questions in the opening part of the argument, and discuss the three possibilities for petitioners' standards here as I see them.

First of all, I find reference within petitioners' briefs to some sort of objective standard.

It is my belief that if petitioners are asking this Court to enumerate all possible criteria for value in the abstract, in order to formulate some sort of other objective test, then we would oppose any shorthand per se value test.

These simply are not susceptible to definition.

There is no Merck Manual for obscenity.

There's no field guide to literature.

Nor should any per se test be adopted in advance of the material's distribution, for that material may be pandered.

These matters, we believe, are best left to the initial determination of a jury drawing on their own knowledge, considering any expert testimony which may have been admitted at trial, and with the safeguards of the Miller case and appellate review.

The second possibility for petitioners' standards concerns a national standard.

Because they repeatedly fear in their brief the possibility of parochial determinations, they also, at least to my mind, seem to favor a national community standard.

We find three flaws with that approach.

First, parochial determinations are not per se unconstitutional.

The First Amendment does not require a national standard.

Secondly, we doubt that that sort of standard could ever be defined.

I do not know how anyone in Illinois can divine the... at least of artistic value or literary merit for Las Vegas and New York.

And finally, I think it's been suggested earlier by the Court, that a national standard could actually work to petitioners' disadvantage, in the event that distribution of some magazines was ultimately discouraged in some portions of the country.

The third and final standard that's suggested by petitioners, and amici especially, would place value determinations in the hands of experts, upon the dubious assumption that jurors cannot be trusted to determine value within a work.

We suggest... we reject, rather, any suggestion that obscenity determinations be made by blue ribbon panels of experts.

Jurors have been deciding questions of obscenity xxx all along.

The courts have always assumed that laymen can recognize value.

Jurors, we believe, can be trusted to recognize bona fide expressions of ideas, even if they don't personally approve of those ideas, or even if those works don't suit their particular taste.

Ultimately, any of petitioners' standards will mandate the use of expert testimony in obscenity prosecutions, because all of petitioners' standards presuppose some body of knowledge beyond the ken of the average juror.

We reject both that assumption and the conclusion requiring expert testimony in these cases.

In contrast, we believe that jurors sitting as ordinary adults are entitled to determine which magazines have value to them.

A community standard, with an appropriate scope of appellate review, will best serve that goal.

We'd like to talk for a moment, too, if we may, about some of the safeguards that are inherent within the system.

Petitioners, I feel--

Unknown Speaker: Excuse me, General Dilgart, before you get to that, you asserted earlier that it doesn't matter here anyway, because even under the standard that the petitioner asserts, these magazines would have failed.

Why isn't this just a typical First Amendment situation in which a party is allowed to raise the rights of a third party not before the Court?

That is, even though this petitioner has no proper cause to complain, there are other people who do have cause to complain, and he's allowed to assert their attacks on the statute.

Why doesn't that line of cases apply?

Mr. Dilgart: --It's my understanding that that line of cases... there's been conflicting opinions within the Court in the past on that topic, I know.

But it's been my understanding that in a recent decision, New York v. Ferber, I believe, that this Court, referring to the Broderick v. Oklahoma substantial overbreadth analysis, indicated that that would not be necessary because of the values to be protected by the First Amendment.

Unknown Speaker: Indicated what?

I didn't... indicated what?

Mr. Dilgart: That these standing rules would be relaxed because of the values permitted by the First Amendment.

Unknown Speaker: Would be relaxed?

Mr. Dilgart: Uh-huh.

Unknown Speaker: Well, that's exactly my point.

So the petitioner here would be allowed to raise points that he has no real reason to complain of, but somebody else has reason to complain of.

Mr. Dilgart: But as I understand it, the two analyses are conceptually distinct.

Because I understand the standing concept in the overbreadth analysis, whereas in this case, petitioners' convictions could not be reversed because they can't demonstrate material prejudice for the instructions they received at trial.

Unknown Speaker: You say this is not overbreadth... okay, I'll have to think about that.

Well in any event, we have to determine whether the convictions can stand, don't we?

Mr. Dilgart: Absolutely, Your Honor.

Unknown Speaker: Now, would you clarify for me, did the court, the trial court, give the defendants instruction number two, which asks that they apply statewide standards to all aspects?

Mr. Dilgart: Yes, Your Honor, the defendants... two parts here.

The defendants tendered instructions which applied statewide standards to all three prongs.

Also--

Unknown Speaker: Then how did... how did the petitioners preserve, in your view, the argument that some other standard should apply?

Mr. Dilgart: --It would be my... petitioners... it's a more complicated situation, inasmuch as petitioners did not even tender instructions which would define a national or an objective standard.

And I would submit that to the extent that this Court finds those factors to be relevant, it should do so.

Unknown Speaker: Should do what?

Mr. Dilgart: That this Court is entitled to take into consideration the state of this record in deciding whether to affirm or reverse.

I think at this point I would like to devote some more remarks to the material prejudice issue and see if I can tie some of these things together.

Even if community determinations not... community standards were not applied to value determinations, these convictions should be affirmed because petitioners were not materially prejudiced by the instructions used at trial.

The authors of these six magazines did not try to convey ideas or artistic messages.

As a matter of fact, these magazines were found to be utterly without redeeming social value under the more rigorous Memoirs test.

Petitioners' jurors in these cases were drawn from a reasonably diversified and cosmopolitan state, and they applied an ordinary adult person standard to persons within that state.

These jurors were required to reject their personal views.

Petitioners did not introduce any evidence of a national or objective standard, nor did they tender instructions which define those terms.

Petitioners on this record cannot demonstrate material prejudice--

Unknown Speaker: If I understand this argument, you're saying even if the statute is obviously unconstitutional on its face, that doesn't make any difference.

Mr. Dilgart: --Well, of course we would not agree that it's unconstitutional on its face.

Unknown Speaker: No, of course you don't.

But for the purposes of this argument, you could assume we've got an unconstitutional statute here; we've got an unconstitutional instruction to the jury.

But these people are really guilty, so we don't have to worry about all that stuff.

Mr. Dilgart: Well, we would also argue that the statute was not unconstitutionally applied to them.

Unknown Speaker: Even though the instruction was obviously unconstitutional?

Mr. Dilgart: I would not agree that the instruction was unconstitutional.

Unknown Speaker: I mean, even if it were obviously unconstitutional, you'd still say it wasn't, because there's no evidence of... in your view there's no evidence of redeeming social value.

Mr. Dilgart: Well, I would argue that even if the jurors were improperly instructed, the Court must affirm because there's no evidence that--

Unknown Speaker: Right.

Even if the instruction is unconstitutional, and the statute is unconstitutional, we should still affirm.

Mr. Dilgart: --It was not unconstitutionally applied to them.

Petitioner cannot demonstrate material prejudice because they can't show that juries using any other standard would have reached a different conclusion in these cases.

I would like then to turn... devote some of my remarks to the constitutionality of the statute at this time.

Petitioners are contending that the Illinois obscenity statute was unconstitutionally applied to them.

They must necessarily claim, then, that these six magazines had some value to be discerned by a jury applying a noncommunity standard, because the authors of these magazines didn't even try to convey ideas or artistic messages.

There was no possibility of a value finding under any of the parties' standards.

These magazines are, indeed, obscene.

We also dispute the argument that the Illinois statute is facially invalid or overbroad.

The number of impermissible approaches always involves a prediction, at best.

But with this record, a record containing no evidence of an objective or national standard, and no evidence that the Illinois standard differed from petitioners' standards in anyway, with this record the number of impermissible applications would be unfounded speculation at best.

Absent a real indication of substantial overbreadth, then, the Illinois statute should be permitted to stand.

I think, perhaps, that petitioners have misstated something in the opening portion of their argument.

I would submit to you that the Illinois statute... neither the Illinois statute nor the Illinois courts, through any authoritative construction, have ever required the application of any community standard to value determinations.

As a matter of fact, the Illinois appellate court in these cases merely refused to reverse on the facts of these cases.

They did not mandate the use of community standards for value determinations in the future.

There is no reason then to believe that this result would ever be repeated, and as a result, invalidation of the statute would be wholly inappropriate.

Respondent is concerned as well that perhaps petitioners have exaggerated the possibility of borderline cases or unconstitutional verdicts when this community based standard of review is used... or community based standard of value determinations is used.

In addition to the broad powers of the appellate courts, there's a number of other important safeguards here.

A defendant is always free to seek jurors with diverse experiences and particular backgrounds during his voir dire examination.

Expert testimony will always be permissible under our approach to establish the value of a particular work or to define the relevant community attitudes.

The return a guilty verdict, the jury must deliberate within the confines of the Miller decision, and the jury must also find prurient appeal and patently offense sexual conduct.

The prosecution bears a burden of proof with respect to all three of the Miller tests, and so there is a presumption of nonobscenity in these cases.

Defendants will receive all of the safeguards of any prosecution, including the presumption of innocence and the reasonable doubt standard.

I would submit, as well, that authors and distributors already know the types of hard-core sexual conduct that might be deemed to be patently offense.

And their own pandering activities, just like in this case, will legitimately increase the risk that a particular work may be found to be obscene.

Unknown Speaker: General Dilgart, go back a minute or so ago.

Maybe I was dozing off.

But you said there was no requirement here that the jury use community standards, and it's unlikely that there would be a requirement in the future?

Mr. Dilgart: My point, Your Honor--

Unknown Speaker: I thought that's what this case was about, and I thought almost all of your preceding argument was directed at the validity of using community standards.

And now you're telling me that this case doesn't involve the use of community standards?

Mr. Dilgart: --Speaking with respect to the second issue raised by petitioners, on the unconstitutionality of the statute, our position is that no Illinois court, and neither the old nor the new Illinois statute, have ever required the application of community determinations for value.

This is not a result which is required in Illinois.

I agree that this is the best approach.

It is the approach that we urge the Court to adopt.

But I wish to clear up any confusion engendered by petitioners when he says that the Illinois courts have... have mandated this approach in the past.

That simply is not the case.

Unknown Speaker: They did affirm this conviction, where the trial judge had charged that community standards should be applied in determining the third part.

Mr. Dilgart: Absolutely.

And the appellate court only said, on appeal, that they refused to reverse on the facts of this case, and said nothing more.

Unknown Speaker: Oh, so you mean maybe they're going to allow community standards sometimes and not allow it other times?

You don't want us to think that that's what they're doing, do you?

Mr. Dilgart: To the extent that we could read anything from a silent opinion, I could only submit to you that there is no directive in there to require this result in a future case.

There's no affirmative language, in the statute or any of the court... or any of the cases concerning this statute that would require this conclusion.

Unknown Speaker: I understand the point you're making.

Mr. Dilgart: I think I'd like to make some concluding remarks, if there are no other particular areas which the Court wishes to investigate.

I'd like to summarize and tell you that value determinations should be made with reference to the views of ordinary adults living within the community.

To us, that is the soundest approach.

It rejects the Hickman test.

It assures that the First Amendment will be satisfied by rejecting intolerant or personal views.

And it also, unlike petitioners' standards, gives an affirmative guide to the jury.

It tells them not only what they cannot consider, but also, where they must look in making this important determination.

Jurors traditionally have been allowed to rely on their own knowledge and experiences.

And they should be permitted here, once again, to do so.

They should be permitted to rely on their own knowledge and experience in the community in making these determinations.

But even if a noncommunity approach should be necessary here, thenl petitioners' convictions should nevertheless be affirmed, because these petitioners pandered hard-core pornography, found by a jury to be utterly without redeeming social value.

As this Court has observed in Miller, to equate a robust exchange of ideas with the commercial exploitation of obscenity is merely to demean the First Amendment.

Thank you.

Rebuttal of Glenn A. Stanko

Chief Justice Rehnquist: Thank you, Ms. Dilgart.

Mr. Stanko, you have four minutes remaining.

Mr. Stanko: Thank you, Your Honor.

If this isn't a construction of the statute, I don't know what is.

The issue was presented to the Illinois appellate court.

The Illinois appellate court resolved the issue by saying, it should also be noted that thus far the United States Supreme Court has never held that an objective standard as opposed to a community one should be applied in the judging of materials on utterly without redeeming social value.

When you combine that with some language in the statute about interpretation of evidence, it says, obscenity shall be judged with reference to ordinary adults, you have a construction of the statute.

And I don't think the state ever argued in their briefs that there was no construction of the statute.

To answer Justice Stevens questions, no, Justice Stevens, you do not have to view the materials in this case.

The issue in this case isn't whether the materials are obscene.

The issue is the facial constitutionality of the Illinois obscenity statute.

That statute, as applied to my clients, and as applied to anyone else in the world, or in the State of Illinois, is unconstitutional.

You don't even get into the Broderick overbreadth analysis.

Because there is no application of this statute which conceivably could be constitutional.

Unknown Speaker: 0 xxx.

Mr. Stanko: No, but there was language incorporated into the jury instructions from the statute.

Unknown Speaker: If the jury instructions had not referred to community standards, you wouldn't be here?

Mr. Stanko: Well, they would have been in error.

Unknown Speaker: I mean, the statute was still there.

Mr. Stanko: If the--

Unknown Speaker: You wouldn't be here.

You wouldn't care if the court made an error in your favor.

Mr. Stanko: --If the jury instruction had not included community standards on the third element, you're right, we wouldn't be here.

But that would have been a construction of the statute consistent with what we argue for.

And that didn't happen.

Unknown Speaker: Mr. Stanko, defendants' instruction was the one that was given, was it not?

Mr. Stanko: In one case.

In the first case... there's two cases... in Morrison, which was the first one tried, defendants tendered instructions which would limit community standards to the first two elements.

They also tendered... the defendant also tendered another instruction which would say specifically that you only apply community standards to the first two elements.

Unknown Speaker: Well, in Pope, as I understand it, defendant's instruction was requested and given, and it specified application of statewide community standards?

Mr. Stanko: Right.

And Pope was tried after Morrison in front of the same trial judge, and after denial of the same motion asserting that community standards should not be included in the statute.

So we already had a construction from the state court judge as to what he was going to do.

We tendered the most favorable instruction we could get, consistent with that construction.

I'd like to answer one of your concerns, Justice O'Connor, when you asked, well, what standard would this Court apply in reviewing materials?

I think you recognize the problem, and that is, that if you apply community standards to the value component, how does this Court review the materials if you're not familiar with the community standards in the State of Illinois.

And one has to remember that in many cases the state is not required to put on evidence... in all cases, the state is not required to put on evidence of contemporary community standards.

So there really could be no meaningful judicial review of that particular finding.

In response to a question of yours, Justice Stevens, I think I heard counsel say that evidence of value in New York could not be admitted in Illinois if the state's construction was adopted.

And that's the problem.

That illustrates the problem.

In Jenkins, which was a Georgia case, there was all kinds of evidence about national acclaim, critical reviews; that type of information.

The court even took judicial notice of information not originally in the record.

Now Jenkins, of course, didn't decide the case on value.

But I don't think this Court would or has suggested that evidence outside a particular community should not be relevant to the constitutional determination.

Unless the Court has any further questions, I will not speak any further.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

New York v. P. J. Video, Inc. - Oral Argument

Fri, 09 Jan 2009 14:48:35 +0000

Case:

New York v. P. J. Video, Inc.

Media File:

85-363_19860304-argument.mp3

Related Transcript:

1985_85_363_argument.xml

Transcript:

ORAL ARGUMENT OF JOHN J. DeFRANKS, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: Mr. DeFranks, I think you may proceed whenever you are ready.

Mr. DeFranks: Mr. Chief Justice, and may it please the Court:

The present case on a writ of certiorari to the New York Court of Appeals involves the warrant seizure of 13 videocassette recordings including eight titles alleged to be obscene under New York's obscenity law.

The issue as we see it, before this Court, is twofold: firstly, whether the New York Court of Appeals has elevated the standard of proof necessary to support the evidentiary seizure of presumptively protected material, and secondly, whether the Constitution of the United States requires such an elevation in light of the circumstances of the present case and the available First Amendment safeguards.

Now, although it is here disputed, I think the record provides firm support for our contention that the standard has in fact been elevated.

In the words of the majority, there must be enough proof before the Magistrate to allow him to judge the obscenity of the films and to determine that they are not entitled to constitutional protection.

Unidentified Justice: And you think that's the function of the jury in the trial of the case?

Mr. DeFranks: Yes, sir.

It was mere than imprecise language on the part of the Court of Appeals, and this is clear upon reading the dissent.

In the third paragraph of the dissenting opinions he points out to the majority that they have required an unambiguous demonstration of obscenity in order to support the present seizure.

He advised them that the standard has been universally rejected by the courts of the United States.

The majority responds in footnote 3, not to deny the elevated standard but in essence to confirm it, chiding the dissent for not having provided any case authority for his claim of universal rejection.

The dissenter took four more opportunities to point out to the majority that they have elevated the standard of proof.

All four references were ignored.

They certainly were not denied.

Unidentified Justice: Mr. DeFrank, do we have, to read the dissent to understand the majority opinion, do you think?

Mr. DeFranks: No, I don't believe you have to, but the dissent makes it very clear.

The majority speaks for itself on the unequivocal standard where they say, we look at this information and we can see it being inculpatory, or another interpretation where it may be less inculpatory.

So, the majority makes clear what they are doing.

In its legal analysis the Court of Appeals committed a fatal flaw which probably resulted in the elevated standard.

They relied upon the scrupulous exactitude requirement of Stanford to raise the standard of proof, yet in this case the Magistrate made the probable... cause determination.

He designated only certain films for seizure, and only those films were taken.

Further, the term "scrupulous exactitude" seems to be contradictory to the term "probable cause".

How can we ever be exact about what supposedly is Appeals probable, and that was the question the Court of was determining.

More importantly, the Court of Appeals aired in applying a prior restraint analysis to this case.

No prior restraint was demonstrated.

No substantial restraint was demonstrated.

And in fact, the record indicates that there ware available safeguards to prevent any type of substantial restraint.

Unidentified Justice: When you're talking about substantial restraint, Mr. DeFranks, you're talking about seizing of all the copies of a magazine or something like that?

Mr. DeFranks: Or even one, if it's the only offering of a movie theater, I would suggest, that might--

--well be a substantial restraint, if it's not replaceable.

Unidentified Justice: There's some suggestion in respondent's brief, that could have been the case here, that this was the only copy or something?

Mr. DeFranks: Indeed, 85 days after the seizure there was an assertion that, "these were our only copies".

There was no demonstration, though, that they couldn't have been replaced, that others could not have been made available through the distributor.

These videocassettes are mass production items.

They come in mass produced boxes with descriptions and pictures on the outside.

It's clear they're not unique.

We are not talking about a first-run film, in this particular case.

It's important to note that no injunction or order against further dissemination was ever contemplated, nor was an order of destruction ever contemplated in this case.

Unidentified Justice: Well, what... the circumstances here, it's a business that rents out videotapes?

Mr. DeFranks: Yes, Your Honor.

Unidentified Justice: And if the State ware to seize under the warrant, in fact the only copy of the videotape in such a business for a particular film, is there an obligation on the part of the State to provide hearing?

Mr. DeFranks: There's an obligation not only to provide a hearing, adversarial under Heller, but there's an obligation to allow him to copy it.

If the copying process is not good enough, we must return to him the original.

Unidentified Justice: Well, does the State have to offer that in the first instance and find out whether that's the case, or not?

Mr. DeFranks: It was determined under Heller that there need not be a pre-seizure adversarial hearing.

I believe it was also determined in Helller that he's entitled to a post-seizure adversarial hearing upon his request.

Unidentified Justice: So, the burden is on the business owner to request it?

Mr. DeFranks: Yes.

Unidentified Justice: Which was not done?

Mr. DeFranks: Was not done, and I submit the burden--

Unidentified Justice: If it had been done, copies would have been made?

Mr. DeFranks: --Copies would have been made, of course.

Copies would have been made.

Unidentified Justice: If he wanted them?

Mr. DeFranks: In preparation for trial he requested, 30 days after the seizure, inspection and/or copying to prepare for trial.

It had nothing whatsoever to do with continued dissemination.

Of course, it came some time after the seizure.

We responded by saying, what you want, if you want inspection you're welcome to come and inspect it any time you want.

But he never, upon our response, said,

"Well, I have to have copies to disseminate, to provide the public with access to these materials. "

So, we submit that under Heller he has not demonstrated a substantial restraint.

Unidentified Justice: If there was only one copy in the first place, I suppose all you're obligated to do is to get that back to him.

You make a copy for yourself and give them one copy back?

Mr. DeFranks: That's indeed what Heller says, and we would have been compelled to do so.

Unidentified Justice: Mr. DeFranks, you think that in... for a warrant to be proper that there has to be established probable cause, that every element of the crime has been committed, or something less than that?

Mr. DeFranks: For the warrant to be sufficient, I would contend that the affiant should indicate that he's reviewed the entire film.

He should attempt to describe--

Unidentified Justice: Just answer the question, please.

Does every element of the crime have to be supported by probable cause?

Mr. DeFranks: --At least an inference.

You should be able to draw from the evidence an inference as to each element, the three-prong test.

Unidentified Justice: And I Guess the argument here focuses on whether in fact all the elements of this offense have been met?

Mr. DeFranks: Yes, and I would submit that they have.

Unidentified Justice: By inference?

Mr. DeFranks: By inference, yes.

With respect to the safeguards, I did want to point out one more safeguard because it goes to the question of whether or not something material might have been left out of this film.

It was the focus of the Court of Appeals' decision and the focus of my opponent below, at least with regard to one of his arguments, that perhaps one of the elements had not been proved by the affidavit.

Perhaps it could not even infer... something, what they were suggesting was something--

Unidentified Justice: By the way, can you help me find the affidavit?

Mr. DeFranks: --Yes.

The affidavits were talking about are in the... attached to the dissenting opinion of the Court of Appeals.

They would be at 825.

Unidentified Justice: Thank you.

Mr. DeFranks: As I was saying, the focus of the Court of Appeals was that something might have been left out in this case.

We would submit that this Court's decision in Franks versus Delaware operates as the perfect safeguard for that type of complaint, because under Franks he could have demonstrated that something material had been left out, relative to one of the elements of the crime.

It would have forced a viewing of the film, based upon his contention that there was a reckless disregard for the truth.

It's interesting, in New York we have three reviewing courts concerned with this case.

No court, up to this point, has ever seen the materials that are the subject of this petition.

We submit that nothing in this case justifies the elevated standard required by the Court of Appeals.

There was no prior restraint.

There was no substantial restraint.

There was no mass seizure as is contended.

There was not even a violation of anyone's privacy interest.

We submit that in light of those factors, probable cause should be the standard, probable obscenity, and we contend that the affidavits in this case demonstrate probable obscenity as to the three prongs of the Miller test.

First, the affidavits are introduced by the statement,

"The following describes the content and character of the films. "

All the films are denominated as adult films, indicative of their strong sexual content.

From eight to 15 sexual acts found offensive by any constitutional standard by the New York Court of Appeals are described in these affidavits.

The Court of Appeals had no problem with respect to the second prong of the Miller test.

Common sense indicates that where there are so many acts performed in the course of a film, and that these arts must consume a substantial period of time, the film must have as its predominant appeal the prurient interest in sex.

Unidentified Justice: Well, the affidavits purport to describe each scene in succession.

Mr. DeFranks: Yes, they do, but there are affidavits we are concerned with which do not go in succession either.

At one point the affiant says, another scene rather than the following scene, et cetera, Your Honor.

These films... these affidavits, excuse me, give not a single clue as to any redeeming literary, artistic, political or scientific value, and indeed none could be expected based on the predominance of the sexual activity in the affidavits.

Unidentified Justice: Mr. DeFranks, assume for a moment that the warrant was not supported by probable cause here.

Is it clear from the record that the officers acted in good faith in executing the warrant?

Mr. DeFranks: Yes, it is.

Unidentified Justice: Do you think then that, under the Leon case, that the material could be seized in any event?

Mr. DeFranks: I would think that under Leon this warrant and seizure would be upheld.

My problem is that the New York Court of Appeals has rejected the good faith exception to the warrant requirement.

Thus, if the case were determined on a good faith basis and I remanded, I'd be a loser.

Unidentified Justice: As a matter of state law?

Mr. DeFranks: Yes.

Given that the Magistrate credited the assertions of the affiant in this case, and there being no reason for anyone to suggest that something was left out of these affidavits, I think it's fair and it's reasonable to conclude that the films demonstrated probable obscenity.

Lastly, in conclusion, I assert and we request that affidavits be accepted as a legitimate basis upon Which to found a probable cause determination in an obscenity case.

Mandatory viewing of every frame of every film would severely tax an already overladen judiciary.

Further, the affidavits can be supplemented by inquiry by the Judge.

He can make inquiry of the affiant.

This Court's determination that the review of obscenity requires a focused search implies that there should be interrogation, in fact, when the Magistrate has some concern as to the sufficiency of the affidavits.

I think more importantly, though, the existence of the safeguards to prevent substantial restraint, in this case render reasonable the use of affidavits to determine probable cause, in conclusion, I ask this Court--

Unidentified Justice: May I ask you a question.

Mr. DeFranks: --Yes, sir.

Unidentified Justice: You are not asking us to review the affidavits themselves to decide whether there is probable cause, are you?

As I understand the question presented, the question is whether matter of federal constitutional law something more than probable cause is required, and that is all you are asking us to decide?

Mr. DeFranks: Well, I'm asking two things.

Number one, whether... this Court to determine whether or not an elevated standard has been imposed.

Unidentified Justice: Supposing we read the Court of Appeals' opinion, and I was looking at page A-7 right after the footnote you refer to, and they are talking about, probable cause can or cannot be inferred.

Supposing we read the opinion as just having not applied an elevated standard of probable cause, contrary to the dissent's view, that's one reading, what would you ask us to do then?

Mr. DeFranks: Well, I would ask that if it were determined that the Court of Appeals was applying a probable cause standard, and I don't believe that that's the case, I would ask that you review the sufficiency of the evidence here as you did in Gates.

Unidentified Justice: You want us to review each of these affidavits and then render an opinion on whether that's probable cause?

Mr. DeFranks: The same as you did in Gates, make a legal determination as to their legal sufficiency.

Unidentified Justice: As to each of these movies?

Mr. DeFranks: As to each of these movies.

Unidentified Justice: And what is it in the opinion... could you tell me where you think the majority makes it most clear that they are applying an elevated standard, without regard to what the dissent says about it, because sometimes I think it's a mistake to rely on other opinions to interpret the majority.

Mr. DeFranks: Well, first I would refer the Court to page A-7 where they refer to their standard.

This would be footnote 3 at A-7.

That's the majority referring to the standard as being rejected unanimously.

Unidentified Justice: That's referring to what the dissent said.

It said, dissent doesn't cite any... but is there anything in the text of the opinion that supports your view that they have applied anything other than a probable cause standard?

Mr. DeFranks: All right.

I would submit that page... the top paragraph of page A-7, the Court there indicates that the affidavits are ambiguous, equivocal.

We submit that to determine probable cause there always is going to be some equivocalness of the information because we can't determine, at least to a prima facie standard or to a proof beyond a reasonable doubt, that the films are obscene.

Unidentified Justice: Well, right after the footnote on page 3, they say,

"Probable cause cannot be inferred from the title of an hour and a half long a film, or from the description of a few scenes. "

But they seem to be trying to determine probable cause, which concerns me.

Mr. DeFranks: As we suggest, they pay lip service to probable cause and as the dissent--

Unidentified Justice: You agree they do pay lip service to the probable cause standard?

Mr. DeFranks: --Yes.

Unidentified Justice: But you say they misapplied that?

Mr. DeFranks: Yes.

As the dissenter points out, they were asking for an unequivocal demonstration of obscenity to establish probable cause to believe that the material was obscene.

Unidentified Justice: Well, you say that, but their opinion doesn't say they're asking for an unequivocal demonstration of obscenity, does it?

Mr. DeFranks: No, but I think that the statement at page A-7 can be interpreted as saying, it must be unambiguous.

They criticized our affidavits for being ambiguous.

The result is that they must be demanding unambiguous affidavits.

Unidentified Justice: Well, you say from the sentence in A-7, that they are interpreting the affidavit in the way least damaging to the defendant--

Mr. DeFranks: Yes.

Unidentified Justice: --I mean, that is not a proper application, or that's not the proper--

Mr. DeFranks: In avoiding what this Court has said about deference to the Magistrate.

In conclusion, I would urge that this Court recognize that there was no mass seizure here and that probable obscenity is the standard, that therefore the decision of the Court of Appeals be reversed.

Chief Justice Burger: Mr. Cambria.

ORAL ARGUMENT OF PAUL JOHN CAMBRIA, JR., ESQ. ON BEHALF OF THE RESPONDENT

Mr. Cambria: Mr. Chief Justice, and may it please the Court:

I believe that the decision below is simply a reflection, first of all, of the Court's interpretation of its own rules.

As you'll notice when you read their decision, they rely substantially upon decisions of the New York State Court of Appeals, and they discuss, and I think in line with Maryland v. Macon, they discuss the federal cases as guidance and they take the federal law of Roaden and Lee and so on from the standpoint of saying that there has to be a presumption of protection under the First amendment, that there is a higher hurdle that must be achieved when we're analyzing this kind of material, but basically th bedrock of this decision is state law.

And in answering Mr. DeFranks, he says that they do not, the majority, answer the dissent, and the dissent cites no authority, they cite no state authority.

They rely from time to time upon federal cases which I think, when you analyze them, we determine just how low and how easy it has become throughout all these federal jurisdictions to obtain a warrant, to stop a publication which happens naturally in every case where a search warrant is issued.

There is a chill that occurs.

I think that the language of the Chief Justice in the Roaden case, and speaking on behalf of the Court indicating that when you take a film it's the equivalent of taking a number of books and magazines, and that holds true here, and that's what's happened.

Unidentified Justice: What was the chill here, in your view?

Mr. DeFranks: The chill here, Your Honor, is the fact that once A... this is not, first of all, an adult Bookstore.

This is not a yellow front bookstore.

This is a place where films are rented to the public from Stagecoach and Citizen Kane, all the way to some of films that are listed here in this piece of litigation.

And so, when someone is given a search warrant and they take not simply one copy for evidentiary purposes but all the copies that they could find, and in this case you'll see and the record shows that they took two copies when they found two copies, and they took one copy when they found one copy, and the police had already copied themselves all of these tapes prior to the time they executed their search warrant.

They had no reason to take these particular tapes if they were simply interested in evidence versus interested in something beyond evidence which would necessitate them taking all the copies that were available.

Unidentified Justice: Mr. Cambria, was this point addressed by the New York Court of Appeals?

Mr. Cambria: The New York Court of Appeals, to my recollection, did not specifically address how many numbers of copies were taken.

Unidentified Justice: Did they unspecifically address the question?

Mr. Cambria: Pardon me?

Unidentified Justice: Did they unspecifically address the question?

Mr. Cambria: Only in reciting what had happened and what was taken.

Unidentified Justice: Did you make this argument to the New York Court of Appeals?

Mr. Cambria: We did not make an argument, a prior adversary hearing argument, because we don't believe that prior adversary hearing is... this isn't the Heller case, I submit, because in Heller this Court didn't do away with the necessity of the scrupulous exactitude.

It just said that once the Magistrate has been satisfied and once the higher hurdle has been achieved, if you accomplish a mass seizure then you must give a post-seizure hearing.

But, it doesn't do away with the initial step which requires the scrutiny, and what this Court said below is that, we think there are three parts to the test.

There isn't just one part.

And this particular police officer concerned himself... and frankly he wasn't a police officer, he was someone from the District Attorney's office, he concerned himself only with attempting to describe the sexual conduct part, the second part of the Miller test.

He did nothing to address the other two parts of the test, and I think that this Court--

Unidentified Justice: Well, under Illinois versus Gates, doesn't the Court ordinarily defer to reasonable inferences drawn by the issuing magistrate, even though they aren't the only inferences that might be drawn?

Mr. Cambria: --I think the two things, yes, I think that under Illinois versus Gates that is a fair reading of the opinion there.

Secondly, that has not yet been applied in the State of New York and I reaffirm the fact that we have--

Unidentified Justice: So, it's your position that we just shouldn't apply the Illinois versus Gates standards of reviewing what the Magistrate did, is that your position?

Mr. Cambria: --Yes, and particularly in this First Amendment area.

If these cases mean anything, that were decided by this Court over a long stretch of our history, saying, "scrupulous exactitude", and "higher hurdle" and "focus searchingly on the question" and so on, all of those words, if they mean anything then it seems to me that what we don't do is, we don't fill in the blanks and assume that the other two prongs exist, as this Court last term was not willing to fill in the blanks in the Spokane Arcade case.

There the argument was made on behalf of the Government that prongs B and C supply... or the test that was given there in Washington... supply prong A, and that fills the bill, and this Court took the position that... I think I'm accurately reflecting it... that they're separate, that they're independent, that you can't have one slosh over, if you will, onto the other.

And what the Court below said was, and I submit this is the most important part of it, you must pay attention and deference to all three parts of the test.

Now, when we look at this affidavit, this particular investigator from the District Attorney's office never even claims that he read the obscenity statute, that he even knew that there were three parts to it, that he even appreciated that there was more than one--

Unidentified Justice: What difference does that make on the question of issuing a warrant?

Mr. DeFranks: I think it makes this difference, if I might, Mr. Chief Justice.

If the Goverment here takes the position that Franks v. Delaware applies, which I submit it doesn't, then in order to achieve a hearing under that issue, under Franks v. Delaware, don't I have to show that there's a reckless disregard for the truth or that there's an intentional misstatement of the facts?

Now, if I'm in a position where they have a person who goes in, who doesn't even recite in his affidavit that he's familiar with the fact that there are three prongs to statute, then how can I attribute to that individual the reckless disregard for sensitivity to the three prongs, or an intentional statement on the part of that individual that they left out information which would have borne upon the other two prongs of the test?

Unidentified Justice: Well, all of the things you're saying there, of course, are very important, in a very important way on the ultimate decision, but how do they bear on whether a warrant should issue?

Mr. Cambria: --I think that when we make a decision about probable cause, and I hope the history of the Court bears me out... I know it does with regard to the State Court decisions... that all of the elements must be satisfied in some preliminary fashion.

Unidentified Justice: There isn't in the record... the record doesn't show what the Magistrate thought, does it?

Mr. Cambria: Well, yes, it does, and I'll say how it does.

Unidentified Justice: What does he say?

Mr. Cambria: Under 690.40 of our New York procedures, any communication whatsoever, beyond the papers is and must be recorded.

There was no such communication on this case.

Unidentified Justice: It may not, but you're not suggesting that the Magistrate didn't know about what the cases required?

Mr. Cambria: But the Magistrate never reviewed any of the materials, Your Honor.

That's the problem.

The Magistrate, I think--

Unidentified Justice: The Magistrate read the affidavit and let's assume the Magistrate said, I know all about these three prongs and I've read all these affidavits and I infer that all... there's probable cause to believe that all three prongs are satisfied.

Mr. Cambria: --I think that that's precisely what--

Unidentified Justice: We must assume that's what... that he did that, at the minimum.

Mr. Cambria: --I think, as it comes up here, that assumption comes with it.

As we see the Court of Appeals' analysis of it, the Court of Appeals said, there is no basis for you to do that, interpreting our cases which require a full and searching inquiry, using the words of the Court of Appeals, and are measured in comprehensive exam, we say that there was something more that had to be done, that at best, at best these affidavits could be described as ambiguous, and the Court said, the Magistrate should have taken that extra step.

And what I'm suggesting to this Court is, this case is not--

Unidentified Justice: The State Court did decide this as a federal question, didn't it?

Mr. Cambria: --Pardon me?

Unidentified Justice: This was decided as a federal question?

Mr. Cambria: I don't believe that that's so, Your Honor.

I believe that when you analyze this decision, that this case is one State Court decision after another that does not have to rely upon, an does not rely upon federal precedent in order to be self-standing.

Unidentified Justice: Well, we just shouldn't ever have granted this?

Mr. Cambria: I agree, and I said that in my petition, in my opposition to the petition, because when you look at this case and you look at the main cases, the Podbora case, it relies on another New York State case and that New York State case chronicles all the state decisions.

And when you look at the opening salvos, the state Constitution is involved, all the state cases are discussed, and those are the things that the Court dwells on, the Court of Appeals.

They don't dwell on the federal cases and say that it's a federal standard.

They use the language of their own cases and they say it's a state standard.

And, I think what the problem is, is when the court found there was an ambiguity here, and the ambiguity was because there was no addressing of the other two prongs of the test, and they said that in this particular very important area where we've used all these words, that they don't consider platitudes like "scrupulous exactitude" and so on, that in this area we can assume and conjecture the various elements, that... I am sorry.

Unidentified Justice: Where is the clearer statement in the case which we require to go off on the adequate and independent state grounds, in light of the Court's language dealing with application of the Fourth Amendment in the citation of Roaden, Marcus versus the search warrant, Stanford versus Texas, Maryland versus Macon?

There is no clear and plain statement that the Court was relying on state law.

Mr. Cambria: I think that when we analyze the decision at A-4 of the record, they start off by talking about it in parallel terms.

They say, New York Constitution, Article 1, Section 12, they cite that first.

They then go on to the Fourth Amendment.

They talk about reasonable cause under Article--

Unidentified Justice: It certainly doesn't meet the Michigan versus Long standard by any stretch.

Mr. Cambria: --Well, I think that it meets it in this sense.

I think that Michigan versus Long says, and later on decisions of this Court, Upton, in the concurrence in Upton, indicated that it would be better, and there should be a definitive statement, so a lot of time is not wasted by reviews back and forth.

But I don't believe that this Court said that if, in fact, the State Court does not specifically make a statement but makes it quite clear from their determination that the federal cases are guideposts and benchmarks but not what they're relying on in making the decision.

They really use the federal cases for propositions such as, items are presumptively protected, or there's a higher standard for books than there are for weapons.

Unidentified Justice: Take a look at A-4 and A-5, Mr. Cambria, the sentence beginning in the... it says,

"Thus, in applying the Fourth Amendment to such items the Court must act with "scrupulous exactitude",. "

and it cites Stanford versus Texas, a case from this Court, see also Maryland versus Macon, a case from this Court.

Mr. Cambria: Yes, I think that that's true in connection with that general principle which no one disagrees with, I hope, that there must be scrupulous exactitude.

But in fashioning what the Magistrate's duty is down below they rely specifically and only on the New York State cases.

They say here, and the nub of the decision is, the Magistrate below, given all the platitudes of scrupulous exactitude and other things, the Magistrate below should have gotten involved.

It could have been the simplest thing, simply ask a question.

Would it be too much to ask that we had a procedure where the Magistrate simply said to the police officer, did you leave anything out?

Was there dialogue?

Was there a story?

I mean, a few pointed questions like that.

Affidavits would be sufficient.

There wouldn't be an, bogging down of the warrant process.

It would just be true to the New York State precedent by saying, you've got to get involved, we can't just assume that these points are established.

We can't assume that these other facts will be established.

Because, really, when you look at the three-part test of Miller, the most important and the most difficult parts, R-A and R-C, the middle part is the easiest part.

Unidentified Justice: Well, was the Miller case concerned with the issuance of a warrant, or was it concerned with the merits?

Mr. Cambria: Well, I think that we have to define what it is and what happened here is... forgetting the Miller case, taking the statute which the Court refers to, 235, it incorporates the definition of Miller.

Unidentified Justice: All the things you were referring to from the Miller holding had to do with decision on the merits of the case, had nothing to do with the warrants, isn't that so?

Mr. Cambria: If we look at... well, I think that interprets that statutes and you have to have... when you're finding probable cause you have to start somewhere and I submit, Mr. Chief Justice, you must start with the statute and say, what are the elements that I as a judge am attempting to find probable cause to issue a warrant for.

And once you do that, you say there are three, and in this case I'm submitting that the court below is recognizing the two most important elements are the first one and the last one.

Everybody can describe the sexual conduct.

That's easy.

Butwhere the judge is the most important critical factor is analyzing the pruriency part and analyzing the value part, and we see that when we look at our cases.

I cited for the Court--

Unidentified Justice: Tell me, Mr. Cambria, do you think that it was the Magistrate's duty to see the motion pictures?

Mr. Cambria: --I... the Court of Appeals, of course, says no.

The Court of Appeals says they can go on affidavits but they must get involved affirmatively.

Unidentified Justice: And you agree to that?

Mr. Cambria: I believe that in exigent circumstances that that could be a substitute which would be available to the Court, meaning in the sense that--

Unidentified Justice: Well, ordinarily do you think the Magistrate should see the films?

Mr. Cambria: --I think that the Magistrate should review the film.

That's the way that the citizenry of our country--

Unidentified Justice: He has to do that before he decides whether to issue the warrant?

Mr. Cambria: --I say yes, because I think that's the best way, and in this case it was easy.

They had--

Unidentified Justice: If this were a federal issue, is there any case of ours that says that?

Mr. Cambria: --There's no case which says that.

It was left open in Lee Art, and it's been talked about a number of times in other cases but there's no case that I know of from this Court that says that you must see the film.

As far as I can determine the circuits are everywhere, in the sense that if we look at a catalogue of what some of the circuits have done as far as sufficiency of warrants... I mean, we can find the Fifth Circuit, for example, saying... and the Second Circuit saying that a simple picture and a few words description uttered by a police officer in an affidavit is enough to issue a search warrant.

Now, I submit that absolutely in no way takes into account the first and the third prong of the test, and I'm not saying there should be guilt or innocence, it shouldn't be a screenplay attached to the warrant, shouldn't be any of those things.

But we must in some way discuss these prongs because they are part of the offense involved, and in addition to that if we're going to be true to all these statements we've made about the higher hurdle which must be achieved, or the scrupulous exactitude, then what does it mean if it can be satisfied by simply saying, there is a picture, I saw it, it shows this sexual conduct, and there was a brief description on the box and therefore the warrant should be issued.

I submit that what this case below has meant, what it does mean, is that it's the procedure which is important.

If we take this procedure and we applied it to Tropic of Cancer or Capricorn, and I made reference to this in my brief, if we took this procedure and applied it to that, we could take the language that you find at page 145 of the decision written by the Ninth Circuit Court of Appeals in Capricorn and Tropic of Cancer, and in that case the words of the Judge were that,

"Practically everything that the world loosely regards as sin is detailed in vivid, lurid, salacious language of smut, prostitution and dirt, and all of it is related without the slightest expression of an idea of abandonment, consistent with the general tenor of the book even human excrement is dwelt upon in the dirtiest words. "

"The author conduct the reader through sex orgies and perversions of sex organs and always in the base language of the bawdy house. "

"Nothing has the grace of purity or goodness. "

I submit that this... that the cases that we cited in our brief, talking about the low threshold that's emanated because of no stringent decision that there ought to be in this area, would take that language which was written by a federal judge in the Ninth Circuit and would say that that was enough of a description of Tropic of Cancer and Capricorn, Henry Miller novels which are all accepted now, to make them the subject of a search warrant for purposes of scrutinizing them with regard to obscenity.

It would be the same way if we paid no deference to the first and third prongs of the test, if I were to review Hair or one of the other accepted Broadway plays and just describe the sexual conduct that I saw with no reference to the music, no reference to the story line or the political satire, we'd be in the exact same position and I submit that a judge, following this laid-back approach, this lax approach, could simply issue a warrant, and where would I be under a Franks versus Delaware argument to say that the person who reviewed Hair, for example, didn't read the obscenity statute, never declared that they did.

Usually officers in their affidavits may say they have a background, if they're in drug work and they're asking for a search warrant with regard to drugs, they iterate that they had some kind of experience in the past so that you'd have some way of putting what they say into context.

We don't have that here, and if I gave you an affidavit from Hair, untaught as--

Unidentified Justice: Let's take--

Mr. Cambria: --Your Honor?

Unidentified Justice: --A different kind of case.

A police officer comes in and says

"I saw Joe Blow shoot and kill John Jones, and I want a warrant for his arrest. "

Is that enough--

Mr. Cambria: I submit that would be enough for two reasons.

Unidentified Justice: --Doesn't have to do anything about... doesn't hays to do anything at all about the merits.

Mr. Cambria: Right.

Unidentified Justice: And that's sufficient?

Mr. Cambria: Right, and that would be enough because, number one, he would have hit all the elements of murder, and secondly--

Unidentified Justice: I beg your pardon.

He didn't say "premeditated".

Mr. Cambria: --I think that the simple taking of life would have enough to show a violation of at least New York law.

Unidentified Justice: Why would not simple obscenity be enough?

Mr. Cambria: Because the difference is, there's no First Amendment which presumptively protects murder.

There is a First Amendment which... and in Article 1, Section 12, which presumptively protects these publications which to, use the words of Roaden, are arguably--

Unidentified Justice: Have you anything else to go along with that?

Mr. Cambria: --Pardon me?

Unidentified Justice: Have you anything else to bolster that?

Mr. Cambria: I think I have all of these decisions that indicate that there must be the determination by the Magistrate and that the Magistrate has to make the finding and the determination through a higher hurdle, through a scrupulous exactitude, through a searching, focused inquiry, and I submit that that's the difference here.

Unidentified Justice: And that's only true for First Amendment?

Mr. Cambria: I believe that that's true, and I believe that this Court has said that that's true.

Unidentified Justice: What if you murdered an author, would that involve--

Mr. Cambria: Excuse me.

Unidentified Justice: --If you murdered an author, would that involve a First Amendment--

Mr. Cambria: I suppose that if you were a district attorney and you murdered an author because you were trying to silence what he was writing at the time, that that could be a First Amendment matter and we could have an argument with regard to it.

If I might, in summing this up--

Unidentified Justice: --May I ask you a question before you sum up, Mr. Cambria.

Mr. Cambria: --Yes.

Unidentified Justice: Because the question presented in the cert petition, I'm trying to figure out some way where I don't have to decide whether there's probable cause in all these affidavits, because that doesn't seem to me to be something I should have to do in a case like this.

Do you agree the issue is just what standards should be applied in reviewing the affidavits that we have to decide under the questions presented, and if so, do you think the Court of Appeals applied... required more than a showing of probable cause?

Mr. Cambria: I think that the question here is, under New York State, as they perceive their laws, their statutes, their laws, their cases, did the Judge here, given these facts, have a sufficient basis to try to make a probable cause determination and only a probable cause determination.

The Court says on page A-5, consistent with these rules, the task of the issuing Magistrate in this case was not to decide guilt or innocence but to determine in a preliminary way from the information submitted and available to him, whether there was probable cause to believe that the material to be seized was obscene within the tripartite definition of the statute.

Unidentified Justice: I recognize that, buy what about the sentence at the bottom of A-4, because there was seizure based upon ideas, that was based upon ideas, they contain... there is a higher standard for evaluation of a warrant application seeking to seize such things as books and films as opposed to--

Mr. Cambria: I think what that means is this: as this Court said in Roaden and Heller and Lee Art and all the cases we've talked about today, there's a higher standard in a sense that the judge must focus searchingly on the question of obscenity, and even this Court used the word, on the question of obscenity, in Marcus, as opposed to probable obscenity.

So, what we're saying, I think is what we've said in all these First Amendment... all these search and seizure cases that the Court has decided.

There is a higher hurdle in the sense of analyzing probable cause, because we do require this scrupulous exactitude and we do require it at the seizure stage.

That's the would be involved.

Other than that, only time the judge we'd have a decision on the merits.

So, Roaden and Lee and all these cases which dealt with search and seizure couldn't have meant anything else except that in restraining the material ex parte which is what happened by the search warrant, there must be a higher hurdle, not guilt or innocence but a higher hurdle in how you evaluate probable cause.

So that it must--

Unidentified Justice: --You rely on Roaden, and my recollection of that case is that there was no warrant involved.

They arrested the theater owner and took the film with them.

Mr. Cambria: --That's true.

I say Roaden--

Unidentified Justice: That case is--

Mr. Cambria: --Well, I take this position--

Unidentified Justice: --several times--

Mr. Cambria: --Roaden, in the sense that Roaden seems to chronicle all the cases in this area, because Roaden takes us back to Marcus and says we have a higher hurdle.

It then talks about Lee Art Theater which was a case with a warrant where there was a perfunctory or a conclusory showing, and so it's really a number of cases all together, and in New York it's a whole number of separate cases all together.

Roaden didn't have a warrant but Lee Art had a warrant.

Marcus had a warrant.

A Quantity of Books had a warrant.

Heller had a warrant.

And in all of those cases the Court always said that in this preliminary warrant procedure we must have this higher hurdle, and that's all the Court was saying below, was that we must have this higher procedure not to establish guilt or innocence but have the Magistrate make the findings and have an adequate basis to make the findings, and I believe that's all they're saying.

They're not saying, we've got to try the case before we ever have a trial, in essence, that we do it.

And the procedure that they suggest here is not elaborate.

It's not cumbersome.

It's simply, if you're going to rely on affidavits as an issuing magistrate, get involved.

Ask some questions when there are ambiguities, under our state log of cases.

Ask some questions.

It's as simple as that.

I think we're entitled to that.

Unidentified Justice: --May I ask you another question that puzzles me about this litigation.

I wonder what you accomplish by your Motion to Suppress.

Supposing you won your Motion to Suppress and they suppressed the stuff pursuant to a warrant, and then you still go to trial.

Can't they just go rent the movie and put it in evidence?

Mr. Cambria: I... when we made that argument below, the response was that there would be some evidentiary objections.

I don't have any idea--

Unidentified Justice: Respondent... these people who made up the affidavit know what the movies are, and I guess they're on the market.

I don't understand why you have to have such a big fight to suppress this stuff.

Mr. Cambria: --Well, the problem--

Unidentified Justice: From either side, I mean, I don't know what you gained.

Mr. Cambria: --What we gained is this: the minute that that warrant hits that store, which again is not the yellow front store, that sends a chill up the spine of those individuals that's heard from coast to coast, and I mean that with all sincerity, because each time this warrant hits a store and some presumptively protected material is taken off the shelf pursuant to the warrant, that constitutes a chill which every one of us--

Unidentified Justice: Would it be as much of a chill as being found guilty or the basis of... I assume some of it--

Mr. Cambria: --Your Honor, that issue was brought up in the Hair case, Southeastern Promotions, and of course this Court found there that the punishment after the crime such as in penal law situations is one thing, but punishment pre-crime which is the restraint situation is something more onerous, and I take the position that it is.

And I submit what happens, is, this procedure is important to us, and it's very important as to how it affects not just these books, magazines, films, what have you, but all the others, the Tropic of Cancers of tomorrow, the Hairs and other cases of tomorrow.

How low can the threshold be, is what it amounts to.

In New York this Court has said that the Magistrate should be involved.

There should be this focused inquiry and so on.

I submit that's fair, it's reasonable, and we're all entitled to it, and I ask you to affirm the decision below based upon the fact that we are entitled to that much since it will not stifle the criminal process--

It will not in any way hamper prosecutions.

It will simply protect us from overzealous individuals who come forth with warrants based upon applications like these where the Magistrate clearly was not involved and wasn't true to the New York State decisions that he's mandated to be bound by.

I thank you very much.

Chief Justice Burger: Mr. DeFranks.

ORAL ARGUMENT OF JOHN J. De.FRANKS ON BEHALF OF PETITIONER -- REBUTTAL

Mr. DeFranks: I would like to just make one point, with regard to Franks versus Delaware.

If the affiant were to leave out the music of Hair, the dancing of another particular film, that would qualify as a reckless disregard, he couldn't be faithful to a performance and leave out something like that, and that's the way the third prong is proven, by omission.

Even when the Magistrate reviews the film there's nothing that lights up the screen and says there are are no literary, artistic, political of scientific value.

It's one that's done by omission.

Unidentified Justice: Mr. Attorney General, why didn't you buy a copy of this and renew... re-open the case rather than bothering us with it?

Mr. DeFranks: Well, they weren't all firsthand.

Unidentified Justice: You didn't have--

Mr. DeFranks: They were... having rented it and not returned it during a certain period, that might well he considered a seizure had we not returned it pursuant to the rental agreement, seizure without a warrant.

Unidentified Justice: --Well, couldn't you have rented it long enough to copy it?

Mr. DeFranks: We could have rented it long enough to copy it, yes, we could have.

Unidentified Justice: In fact, he says you did that, is that right?

And saved us all this trouble.

Mr. DeFranks: We did rent certain of them and copied certain of them, yes.

Unidentified Justice: If you had the copies, then why did you have to fight about the suppression?

Mr. DeFranks: Because the actual films were the best evidence in this case to present to the jury.

We would have had to then--

Unidentified Justice: The copies were not legible, is that what it is?

Mr. DeFranks: --Well, they would have had to have been verified.

It was just to eliminate--

Unidentified Justice: Do you think it's harder to verify copies than to come to the United States Supreme Court on an issue?

Mr. DeFranks: --No, but there was also more of an impact on the jury to show them the actual films that were taken from the store.

These were the films which were the subject of the promotion charge.

Unidentified Justice: Is it correct that the only purpose of the seizure was for use as evidence?

There was no attempt to try to discourage the business before there was a trial on the merits?

Mr. DeFranks: Not at all.

Unidentified Justice: Not at all?

Mr. DeFranks: No attempt.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Renton v. Playtime Theatres Inc. - Oral Argument

Fri, 09 Jan 2009 14:48:37 +0000

Case:

Renton v. Playtime Theatres Inc.

Media File:

84-1360_19851112-argument.mp3

Related Transcript:

1985_84_1360_argument.xml

Transcript:

ORAL ARGUMENT OF E. BARRETT PRETTYMAN, JR., ESQ. ON BEHALF OF PETITIONERS

Chief Justice Burger: We will hear argument this morning in The City of Renton, et al. v. Playtime Theatres, Inc., et al. Mr. Prettyman, I think you may proceed whenever you're ready.

Mr. Prettyman: Mr. Chief Justice, and may it please the Court:

This case, which comes here from the Ninth Circuit, involves an attempt by a small city in the State of Washington to zone adult theatres away from residence, churches, parks and schools.

You'll recall that in 1976 in Young [= v.] American Min Theatres, you upheld a Detroit ordinance which treated adult theatres differently than general fare theatres because of the adverse secondary effects caused by the adult theatres.

The City of Renton's attempt began more than a year before any adult theatres had actually come into the city, but the secondary effects of these theatres had been perceived nearby in the State of Washington, in the City of Tacoma, in the City of Spokane, and just a mile to the north in the City of Seattle, which had had its own case which had gone through the state supreme court.

This Court had denied certiorari.

The zoning ordinance in that case has been upheld.

Renton wanted to deal with this problem before it became a problem.

It wanted to obviate these secondary effects before they ever got into the city, because, quite candidly, some other cities, as a result of Young, had attempted to deal with specific situations in front of them, and those ordinances had been struck down.

So, Renton, during the following year, the City Council, through its committees studied what had happened in other cities.

It looked at the opinions that had come down in other places; not just in the State of Washington but in other cities as well.

It held a number of meetings.

These were public meetings.

In some of them it listened to citizens voice their concerns.

These citizens were not only from Renton but from some from nearby cities.

And it finally passed one of three ordinances.

The first ordinance prohibited the location of adult theatres within 1,000 feet of residences, of single or multi-family dwellings, churches, or parks.

As to schools, this first ordinance provided that adult theatres could not be located within a mile of these schools.

That was later reduced in the second ordinance to 1,000 feet.

After the first ordinance was passed, Appellees, whom i'll call Playtime, brought a suit in Renton seeking declaratory judgment and an injunction based on their First Amendment rights anti equal protection.

And they shortly thereafter, virtually within the same week, brought two existing general fare theatres in downtown Renton, in one of which they said they intended to show adult fare on a regular basis.

The result of our second ordinance, when you drew circles around the areas that these theatres could not locate next to, in effect created a permissive or set-aside zone in the City of Renton which consisted of some 520 acres.

This is, incidentally, a larger area than the entire commercial area of the City of Renton, and it is more acres than all of the multi-family residences in the City of Renton.

The district court said that--

Unidentified Justice: Now many square miles in the--

Mr. Prettyman: --Pardon me?

Unidentified Justice: --How many square miles in the city?

Mr. Prettyman: It's 15.3 square miles, Your Honor.

Unidentified Justice: And 520 acres would be somewhat less than a square mile.

Mr. Prettyman: Yes, sir.

It's enough for over 400 theatres.

That's undisputed by the other side, Your Honor, including parking lots.

Unidentified Justice: Does the record show us whether the City considered the commercial suitability of the 520 acres that were set aside for adult theatre usage?

Mr. Prettyman: The City's real concern was with their being too close to the prohibited areas, and I think it's fair to say that the record does not reflect a concern as to precise--

Unidentified Justice: As to the suitability of the property that was available for that.

Mr. Prettyman: --Except to this extent, Your Honor.

Mr. Clemmons, our policy development director, who had been with the City for a number of years and was thoroughly familiar with the City, was constantly advising these committees of the City Council, and consequently I assume that he knew and was advising them about the nature of the area that was left over.

The City... Renton is a small enough city so that the City Council is, I think, thoroughly familiar--

Unidentified Justice: Is that part of any required consideration, do you think, to uphold the validity of a zoning regulation?

Mr. Prettyman: --Let me put it this way, Justice O'Connor.

I think that if the set-aside zone was entirely, totally unsuitable to the extent of being unavailable... If I can use an extreme example, if it was an island with no bridge that you had to swim to to get to your adult theatre, I think that would be very quite relevant.

But I think where the Ninth Circuit went wrong was in saying that just because this area is largely undeveloped or is in the state of development and has commercial ventures on it now, that--

Unidentified Justice: Well, is it relevant that the City at least consider it as part of the calculus, do you think--

Mr. Prettyman: --It seems--

Unidentified Justice: --so that deference could be given to it if has considered.

Mr. Prettyman: --It seems to me that what you look at is what results.

You don't look at whether, you look at whether the City had a legitimate right to do what it did; then you turn around and look, well, what is the result?

Do you have a Schad situation where they had, in effect, excluded them from the City?

Or do you have an area for over 400 theatres that's developing, in the state of development that they can easily go into?

Unidentified Justice: What was the situation here?

You speak goodly, if I may say so, of 400 theatres, and yet a lot of this area was already industrialized, was it not?

Mr. Prettyman: Uh, only part--

Unidentified Justice: Were there more than three sites available?

Mr. Prettyman: --Oh, yes.

Oh, absolutely, Your Honor.

I think what you may be thinking of is the other side sent a gentleman out to the zone, and he could find only three people who said that, in effect, they'd be willing to sell, but there are far more than three sites available.

Over half of this land is undeveloped.

It is just sitting there.

Unidentified Justice: In other words, there were no theatres in that area.

Mr. Prettyman: Absolutely not.

There were no theatres there.

Unidentified Justice: And how far from that area were the two theatres that Playtime acquired?

Mr. Prettyman: Your Honor, if I can show this to you visually, if I may impose upon you to look at page 141a of the Appendix to the jurisdictional statement.

Unidentified Justice: What page?

Mr. Prettyman: 141a.

It is called Exhibit U.

You will see the set-aside zone in grey, here, in the heaviest color, and you will see running east-west, just north of there, a very heavy line which is Route 405.

If you follow Route 405 up north where it crosses the light east-west line at the top, or where the Renton and Roxy Theatres were located, those were the two that they bought.

Those are only, really, probably ten minutes from the northern edge of the permissive zone.

There is another theatre just south of that, between the set-aside zone and the Renton and Roxy Theatres, and they're the only three sets of theatres in the City of Renton.

The Renton Cinema actually has three screens, so there are five screens altogether, but there are only three theatres in the City at the present time.

Unidentified Justice: Mr. Prettyman, on your question about access, how do you put movie, drive-in movies, into that argument?

Mr. Prettyman: I think you--

Unidentified Justice: They have as much access as a drive-in movie.

Mr. Prettyman: --Yes, well, I think clearly if drive-in movies were going to show adult films that this would be an excellent place for them to be, because this is extremely accessible.

You're got entrances on most sides of this set-aside zone.

You've got highways nearby, and I think, Justice Marshall, if you want any indication of how far people will go to see these movies, let me give you the example of Point Roberts, which is a small city.

It looks like it really ought to be part of Canada.

It's kind of hanging off the edge, there, but it's actually part of the State of Washington.

It has a year-round population of 250 people, and you know how many patrons they have a week at that adult theatre which is also owned by Playtime?

Fifteen hundred.

And where do they come from?

They come primarily from Vancouver, which is 36 miles away.

Now, we're talking about a set-aside zone in Renton which is just a matter of a few miles from the outer edges of the City.

You're talking about, from the most northern edge of the City, you're probably talking twenty minutes, maybe ten, fifteen minutes from downtown.

And here is a zone which is easily accessible, as the district court held.

It's criss-crossed by streets and highways.

It is now well lit, and it is, in my view... I was just out there ten years ago.

It seems to be sort of the coming area of the city; the next area, if you will, that's going to be, that's going to be built up.

It seems to us that there are three, basically three issues here, and that the Ninth Circuit was wrong on all three.

The first issue really relates to whether we are allowed, we're allowed to look at the experience of other cities in passing this ordinance, and the Ninth Circuit said that we could not.

Unidentified Justice: In that regard, Mr. Prettyman, the ordinance of this City was justified on the secondary effects that these theatres have on particular other land uses, like residence land or churches or schools.

Now, does the record show us whether the City relied on evidence of that sort gathered in other cities?

Mr. Prettyman: Well, I think the mast obvious example is the City of Seattle, where Seattle was... Seattle had 13 adult theatres.

Ten of them were downtown; three were out in residential areas, and they were the three that they were concerned about.

One of them was all by itself in a residential area, and Seattle passed its zoning ordinance in order to get all of them into a kind of bad area right downtown rather than out near residences, and so we were looking at that example.

I might also say in regard to Young--

Unidentified Justice: And did Seattle's studies show the secondary effects of having an adult theatre in a residential neighborhood?

Mr. Prettyman: --Yes, ma'am, they did.

They showed that, that they caused transience to come in.

They showed an increase of crime, and they showed, in effect, that property values would go down.

One of the things that I think people forget when they look at Young is everybody concentrates on the fact that the prescription was 1,000 feet from any two other adult uses.

What they forget is that in the Young ordinance, it also prohibited adult theatres within 500 feet of residences, and that particular prescription wasn't even fought in this Court, I assume, because it was assumed to be, assumed to be constitutional.

But that was part of the Young ordinance, and we had that to look to, and therefore ours is really a tighter and more permissive ordinance in that respect than--

Unidentified Justice: Detroit and Seattle were doing it two different ways; Detroit by dispersal and Seattle by concentration?

Mr. Prettyman: --Yes, that's exactly right.

And different cities have used different methods.

This Court said in Young that it made no difference, really.

In fact, you approved both methods, both the dispersal method and the concentration method.

You specifically said that in Young, and as a matter of fact you even said that that was true as to theatres in general, that they could be dispersed; that, in other words, the way that you deal with the problem is constitutionally irrelevant.

So, our point in regard to whether we could rely on the experience of other cities is very simple, and that is, what was there for us to study?

They weren't in there yet.

We weren't dealing with one theater or twenty theatres.

What we were saying, in effective land use planning, which is what zoning is all about, we were saying when they come in here, whether it be one or forty, we're going to want them away from our residences and churches and parks and schools.

Let me tell you that Renton is an interesting town in this respect, because it doesn't have this commercial area over here and the churches over here and the residential area over here.

It's all mixed up together, so that right downtown, right in the same block with these two theatres that Playtime has bought, are residences, and two little churches as a matter of fact.

The record does not show that, let me make clear.

That is outside the record, but it just happens to be true, and I am sure Mr. Burns will not dispute it.

But in the same block as these two theatres are residences and two little churches, and with the high school just two blocks away.

Unidentified Justice: Mr. Prettyman, can I interrupt you with something that's troubling me--

Mr. Prettyman: Certainly.

Unidentified Justice: --about the case?

Did the court of appeals, in the words of the jurisdictional statute, hold the ordinance invalid, in your view?

I'm just wondering if we have an appellate jurisdictional question.

Mr. Prettyman: Oh, I don't think that, sir, that's there's any question that they held it in violation of the First Amendment.

They--

Unidentified Justice: They sent it back for allowing to shore up the record, in effect.

Mr. Prettyman: --Well, that was rather strange.

The reason, if they are sending it back, they are sending it back because they thought that a motivating factor, at least there was an inference that a motivating factor might be that we were trying to suppress First Amendment rights.

Our response to that is twofold.

First of all, Your Honor, why are you looking at intent or motive in a case where you have a substantial government interest and only an incidental restriction on First Amendment rights.

You didn't do it in Young, although there was a suggestion there that there might have been a bad motive.

You refused to do it in O'Brien, even though that was clearly argued that they had a bad motive, so you never get to--

Unidentified Justice: I understand your argument on the merits of the motive, but if that issue remains open, is it clear that they have already directed the district judge to hold the ordinance invalid?

Mr. Prettyman: --Oh, I think that's quite clear, Your Honor, that they have said that it is, that it violates the First Amendment.

Unidentified Justice: And is there... I see.

Mr. Prettyman: Yes, absolutely.

Passing on, then, let me simply say in regard to, I believe I have mentioned that the second issue relates to the set-aside zone itself; the nature and content of this zone.

And let me just read you what the district court said about that, because I think it goes directly to this question.

This consists of acreage in all stages of development from raw land to developed, industrial, warehouse, office and shopping space.

It is criss-crossed by freeways, highways and roads.

I think that is the nature of this zone, and I think that that should be perfectly permissible for First Amendment purposes.

He also--

Unidentified Justice: Mr. Prettyman, do you think that the Court has to analyze this statute under the O'Brien factors?

Mr. Prettyman: --Justice O'Connor, let me say this as to that.

As you know, the plurality in Young declined to do that, and put the secondary, these adult theatres in a kind of secondary status, sort of on a level, if you will, with commercial... and that Justice Powell, who wrote the opinion that made the difference in the result, refused to do that and adopted the O'Brien test.

Quite candidly, the reason that we have not taken a position is that it seems to us that it really doesn't make any difference in the result in our case which way you go, because the result is the same.

If you asking me, however, what I would like to see?

Unidentified Justice: I am asking.

[Laughter]

Mr. Prettyman: All right.

I thought you were, Justice O'Connor.

I would say, quite candidly, that it seems to us that the plurality view more neatly fits the particular problem at hand.

O'Brien, after all, was a criminal case, and the four-part test developed in that case, it has been used in a variety of circumstances, and we are happy with it if you want to apply it here.

But it seems to us that the plurality really goes directly to secondary theatres.

It talks about the fact that these are showing films which, in a separate case in the state court right here in Renton in an abatement action, have been held to meet the Miller test; and, therefore, there's a real question in our minds as to whether, as Justice Stevens said, you're going to march your sons and daughters off to war to protect these kinds of films.

And it seems to us that these are films that perhaps because of the secondary effects caused by the theatres that they're played in, do not deserve the high degree of protection that other types of speech do.

Unidentified Justice: If O'Brien factors were applied, one of them is a requirement that the governmental interests be unrelated to the suppression of free speech.

Mr. Prettyman: Correct.

Unidentified Justice: And how would you apply that here?

Mr. Prettyman: I don't think that that means that you go back and interrogate the City Council members about what their intent is.

As a matter of fact, the Ninth Circuit itself has held in the Foley case, that you can't do that.

If we had a remand here, we can't, nobody can go back and subpoena and take the depositions of the City Council members and determine what they thought, and of course we don't think you should.

So, I don't think it means that.

I think what it means... you see, we put the emphasis on interest, the government interest must be unrelated.

And the governmental interest in this case is clearly a proper one; namely, to make sure that these adverse secondary effects do not impact upon residences and churches and so forth.

That is the interest, I think, that is involved, and that is wholly unrelated.

We recognize in our findings, there is a finding which the City Council entered which says specifically that these theatres have a right to operate.

Unidentified Justice: Well, it isn't, it can't be literally true that it's unrelated, because at least in order to avoid the secondary effects, you are forbidding, you are forbidding these constitutionally protected kinds of speech to... you're making them move.

Mr. Prettyman: It's unrelated to the suppression of speech and what the, what the--

Unidentified Justice: It's only because they're a speech of a certain kind that you're making them move.

Mr. Prettyman: --I'm sorry, Your Honor, but it's not because of that.

It's because of the secondary effects.

It's because of what's--

Unidentified Justice: Well, the only reason the secondary effects will occur is because of the nature of the speech.

Mr. Prettyman: --Well, I'm not--

Unidentified Justice: Isn't that right?

Mr. Prettyman: --It is related.

The secondary effects are related in a sense that these kind of films do apparently draw transience, that they do apparently create more crime, so in that--

Unidentified Justice: All right--

Mr. Prettyman: --sense, it is related, but--

Unidentified Justice: --Yes, of course it is, but that shouldn't make any difference to your case.

Mr. Prettyman: --It didn't make any difference in Young.

Unidentified Justice: That's right.

Mr. Prettyman: It certainly didn't.

Absolutely.

Let me just say that I've indicated that you shouldn't really reach the issue of intent, and I would certainly hope that you wouldn't, but if you do I hope that you will reach it on the basis of the City Council's findings and not kind of get into some kind of subjective inquiry into what the City Council might have had in mind.

Let me just say one other thing, and then I will reserve my time.

Small cities like Renton are dealing with a very serious problem here, and they have been largely unsuccessful in doing it.

These adult theatres are proliferating.

They are moving into areas unlike what they used to, sort of out on the edges or perhaps right in the middle of downtown.

They're going all over now.

And we have made a good faith attempt that was not directed toward a single theatre, which sometimes the case.

A theatre moves in and we say, we're going to get that theatre.

We didn't do that.

We, we, we wanted to deal with the problem in advance, and we submit to you it was a good faith attempt, and we have left plenty room, room that's more than commodious enough for these theatres to come into.

It's easily accessible.

And I submit to you that if this effort fails, that it will really prevent small cities and towns across the country from dealing in an intelligent fashion ahead of time with this very serious problem.

Unidentified Justice: You said there were three questions, three issues in the case.

Have you discussed them all?

Mr. Prettyman: I hope I have, Your Honor.

Well, the first one--

Unidentified Justice: --the other two?

Mr. Prettyman: --The first one related to whether we can rely on the examples of other cities.

Unidentified Justice: What are the other two?

Mr. Prettyman: The second related to the nature of the set-aside zone itself, and the third related to the motive of the City Council.

Unidentified Justice: Okay, thank you.

Mr. Prettyman: Thank you.

Chief Justice Burger: Mr. Burns?

ORAL ARGUMENT OF JACK R. BURNS, ESQ. ON BEHALF OF RESPONDENTS

Mr. Burns: Mr. Chief Justice, may it please the Court:

This Court's decisions allow regulation of an adult business whose operational characteristics produce some identifiable secondary effect.

In other words, is there, is the form of speech intrusive in, to some extent?

Is it too loud; is it too ugly?

We're talking, essentially, about a secondary effect that we can see, touch, hear or feel.

In other words, is the mode incompatible with the zone that we're dealing with?

Renton's ordinance, on the other hand, is related solely to perceptions about the effects of the content of the speech.

It's not related to land use concerns.

It's aimed at the speech and not at the style of the speech.

Unidentified Justice: Well, Mr. Burns, is it not more accurately the kind of people it attracts?

Mr. Burns: Your Honor, there is no evidence in this record that this kind of speech attracts any other kind of people than the people that are in this courtroom.

There's nothing in this record that establishes that it attracts an adverse kind of people or anybody other than the general public that is making itself or desires to make adult material available to--

Unidentified Justice: What you're saying is that we cannot take traditional notice of the contrary?

Mr. Burns: --Well, Your Honor, I think that we have to look to what this Court said in Young, in that certain things are not, are not, we just can't assume that they exist as a matter of experience.

The only thing that this Court found as a matter of experience that they could rely on in Young was that congregating various types of uses together produced a detrimental secondary effect, and that effect was a deterioration of property values.

But I think you have to look at what happened in Young.

There, you had an ordinance that had been in place for years.

It regulated many kinds of uses, and what Young did, or Detroit did, was they added adult theatres to those regulated uses, and said these uses, all of them as a whole, when they congregate together, they produce this adverse secondary effect of a deletion in property values.

That is not the case here.

What this ordinance does and what Renton has done is said that a single adult theatre in a commercial zone, not in regard to other businesses that may be regulated or may not be regulated, because it doesn't regulate any other kind of business, that that single adult business will cause these deleterious effects.

Unidentified Justice: Well, Mr. Burns--

Mr. Burns: Yes, sir?

Unidentified Justice: --Mr. Prettyman said that the City of Renton was entitled to rely on the City of Seattle's experience, and he said that a Seattle study had shown that adult theatres in residential areas produced, you know, transience, crime, that sort of thing.

Do you say there was no such Seattle experience, or that the City of Renton might not rely on that Seattle experience if that was Seattle's experience?

Mr. Burns: Your Honor, I take exception to his description of what the experience of Seattle was.

Unidentified Justice: Well, first of all, do you contend that the City of Renton was not entitled to rely in drafting its ordinance on whatever experience the City of Seattle might have had?

Mr. Burns: Your Honor, if the City of Renton is going to rely on Seattle's experience, it should target the same evils at which Seattle targeted its ordinance, and it should rely on the same means.

It should not be able to say--

Unidentified Justice: Why is that so?

I mean, if a Seattle study shows particular facts flowing from the location of an adult theatre, why can't the City of Renton say, we don't like these facts to exist in certain zones in our city.

We're going to go at it differently than Seattle, however.

Mr. Burns: --Your Honor, I think it's risky to rely on the experience of other cities for a number of reasons.

Unidentified Justice: Well, it's sufficiently risky so that the Constitution forbids Renton from doing it?

Mr. Burns: Absolutely, because what we do then, if you allow a city such as Renton to pick the City of Seattle or pick the City of Tacoma and say, they passed an ordinance, we are going to mimic it, we are going to rely on it, you have effective immunized and sanitized that ordinance from judicial scrutiny, even though the reasons may be painfully fabricated; even though the reasons that they assert may not apply in their city.

Because I would submit to this Court that--

Unidentified Justice: Mr. Burns, if your opponent is right... I haven't read this, the Washington case, but he said that in the Seattle experience there was one theatre out in a residential neighborhood, and that that was a bone of contention, and that would be a comparable example, wouldn't it?

Mr. Burns: --No, it wouldn't, Your Honor.

As I recall, there were three theatres out in residential neighborhoods that were affected by--

Unidentified Justice: But they were separated from one another.

Mr. Burns: --Pardon me?

Unidentified Justice: He indicated they were separated from one another, so you might have a residential neighborhood with one theatre in it, and they said you have to move that theatre.

Mr. Burns: That's true, but what they did in Seattle was different than what Renton did here.

Seattle moved all the adult theatres--

Unidentified Justice: But just to the point of whether there is anything on which they could base concern about a single theatre, at least that would be some evidence, wouldn't it?

Mr. Burns: --But, Your Honor, it may be some evidence, but I think we have to look to the issue that we have to solve these problems that deal with First Amendment concerns by the least intrusive means.

You do not take a sledge hammer when a scalpel will do.

The experience of Seattle is different--

Unidentified Justice: So, for that argument you basically ask us to re-examine Young, don't you?

Mr. Burns: --No, I'm not asking you to re-examine Young, because I think that this case is--

Unidentified Justice: But you did--

Mr. Burns: --different than Young.

Well, I did to the extent that it's a time, place or manner restriction, but on the basic facts I'm not asking you to re-examine Young.

I think that this case can be decided within the confines of Young.

But I don't think this is a Young case.

Unidentified Justice: --What are the confines of Young on the standard you resort to?

Mr. Burns: Your Honor, the Young case, as I read it, is, as I read Justice Stevens' opinion, is that if there is a demonstrable adverse secondary effect that we can see and we can touch and we can feel, the City can be concerned about that and regulate it by the least intrusive means.

In Young, the Court made its decision based upon the fact that there were a myriad of locations available, that there were locations available in all kinds of zones, all commercial zones.

The Renton ordinance specifically removes adult theatres from all commercial zones of the City of Renton.

They simply are not allowed in the commercial zones.

If, I think in that respect a look at the map is useful.

If you would look at the last page of the jurisdictional statement, which is page 142a, Appendix V, you can see where these theatres have been relegated to.

It's essentially an industrial wasteland.

There are undeveloped areas.

There's a tank farm.

It's criss-crossed with railroad spurs.

It is essentially--

Unidentified Justice: Is that such an unlikely location for, say, a drive-in theatre?

Mr. Burns: --It would, because a drive-in theatre probably would not be permitted in that zoning.

Essentially, the drive-in theatre business in this country in commercial areas--

Unidentified Justice: But I thought we took it as stipulated that an adult theatre was permissible.

Are you saying that an adult self-contained theatre would be admissible but perhaps a drive-in theatre not?

Mr. Burns: --It's in the record below that there would be a zoning change required in order to locate an adult theatre in this area.

These are permissible locations, but that doesn't mean that the zoning is appropriate.

Unidentified Justice: But you say it's an industrial wasteland.

Do you insist that there be a theatre building in existence for you to come in and rent?

Mr. Burns: No, Your Honor, but I think access has three components.

Those components are, first, permissible locations; secondly, that those locations, that there be available locations to go to; and thirdly, that there be suitable locations for a commercial business such as a theatre.

Unidentified Justice: Well, what do you mean by an available location?

Mr. Burns: Your Honor, if the City is going to regulate and restrict where a theatre can locate, and in fact nobody will sell or rent property to a theatre, the restriction and burden on speech has become substantial, not incidental, because there is no place that they can go.

Unidentified Justice: Well, would that entitle a theatre to locate out of a commercial zone and in a residential zone because no one in a commercial zone would sell them theatre space?

Mr. Burns: No, Your Honor.

Unidentified Justice: Well, why wouldn't it under your reasoning?

Mr. Burns: It wouldn't because if, if a general audience theatre were permitted to locate in a residential zone, then it's my position that an adult theatre should be allowed to locate there as well unless you can demonstrate that there's some adverse secondary effect that arises out of the operation of the adult theatre that does not arise out of the operation of the general release theatre.

Unidentified Justice: Well, how about the transience and crime from the Seattle study?

Mr. Burns: Your Honor, the City of Renton didn't look at any data from Seattle.

The record is clear that all the planning director and the City Council looked at with respect to the City of Seattle was the decision of our state supreme court.

Unidentified Justice: Well, did the City of... did the decision of your state supreme court summarize findings that had been made in Seattle?

Mr. Burns: Yes, it did.

Unidentified Justice: Well, why on Earth shouldn't they be able to look at the supreme court opinion as a secondary source?

Are you going to require the best evidence rule?

Mr. Burns: Your Honor, when we're looking at speech, I think that we need to have empirical evidence that's of a compelling nature.

We can't rely upon hearsay, opinion--

Unidentified Justice: Now, that's a nice sounding phrase, but how would you define empirical evidence that's of a compelling nature, as opposed to just garden variety evidence?

Mr. Burns: --Your Honor, in a commercial zone, what is the problem that transients cost... cause?

Let me ask that as a rhetorical question.

That, the major problem that I see with the findings in the Renton ordinance is that they're assertions.

They're conclusions.

They're simply assertions of harm that may not, in fact, exist.

And if transients cause a problem, what kind of problem is it that they cause?

There's no indication in this record of any sort what kind of problems a transient would cause.

Now, if a transient causes problems, let's deal with those problems in some specific way.

If it--

Unidentified Justice: Provide them with bus tickets?

Mr. Burns: --Pardon me?

Unidentified Justice: Provide them with bus tickets?

[Laughter]

Mr. Burns: That may be one answer to the problem, but I think that this Court's decision required that when we're dealing with First Amendment concerns, we have to deal with the problem in the least intrusive way.

If you had, as I think Justice Blackmun said in Schad, if there's a problem with traffic, deal with the traffic problem.

If there's a problem with signage, deal with the signage problem, but do not simply relegate these theatres out to this uncommercial area in the guise of meeting a land use concern.

What essentially they're getting at here is a censorship concern.

Unidentified Justice: You said something that I'm not sure I understand.

It's about what the members of the City Council were thinking; what influenced their opinions.

Is it not reasonable to assume that the members of any city council in a particular state know what's going on in other cities?

What the experience of other cities is, whether it's with traffic or flooding or with these so-called adult theatres?

Mr. Burns: Your Honor, there's nowhere in this record that I can find what their concerns were about these theatres.

Unidentified Justice: Well, why do they have to... do they have to put their concerns in the record?

Do they have to say what they're thinking?

Mr. Burns: I think so, Your Honor.

Unidentified Justice: What they have against them?

Mr. Burns: I think what... they have to make findings of fact that justify the restriction on speech.

I don't think there's any way around that, because if their intent is to, is to sensor speech and to oppress it in any respect, that's an improper attempt which cannot be sanctioned in any sense.

What Renton is suggesting to this Court is a rule that would allow it to state a governmental interest and say that we have made available permissible locations, and then insulate that decision forever from judicial scrutiny, and that rule, I don't believe, can be accepted by this Court.

The essential difference between this case and Young is that there is an intolerable burden on speech that exists as a result of this ordinance, and that's problem of access.

If government makes no rule about access and does not limit access to speech, then there's no intrusion that can be blamed on the government and no violation of the First Amendment.

On the other hand, if government does make the rule and government does limit access, then I think government has the duty to establish that not only are there permissible locations, but that somebody can actually go there, because otherwise they've precluded them through a de facto zoning scheme from going anywhere, and they're created what they've perhaps set out to do, was censor the material and remove it entirely from the City.

In this respect, I believe that the zone that I described and as depicted on that map is a substantial burden on speech.

The alternative locations are unsatisfactory.

As this Court has said before, an individual is not to have his right of free speech circumscribed on the argument that he can exercise it somewhere else.

These locations make it more difficult both for sellers to reach an audience and for the public to make the material available to us... to itself.

Its design, this ordinance is designed to prevent some people from getting the information by making it more difficult to get it.

What Renton has said, in essence, out of sight, out of mind.

We can't identify what's wrong with these locations.

We can't identify what the harm is to churches or schools, but we know it exists somewhere--

Unidentified Justice: Could I, could I ask, suppose that in this record there was evidence of the likely effect of adult theatres being too close to residential districts.

And suppose the evidence was such that even you would agree that there's a pretty good showing that that would have these harmful consequences.

But then the rest of the facts here are the same.

Would you say that Renton then could not exclude these adult theatres from these locations?

Mr. Burns: --Well, Your Honor, to answer your direct question about residential areas, I think they could make such a showing.

They could exclude under Young.

Unidentified Justice: And even though the only place these, even though the only place these theatres could then go is to this area that you say is wholly unsatisfactory?

Mr. Burns: Well, that creates a more substantial--

Unidentified Justice: Well, that's my question.

Mr. Burns: --Okay.

Well, if, if they can show a substantial harm, I believe that they can regulate, Your Honor.

Unidentified Justice: And even though this area that the adult theatres would have to move to is as unsatisfactory as you say it is?

Mr. Burns: Yes, Your Honor.

Now, the reason that I say that is that, is that there are locations out there, permissible locations.

If none are available, however, we have to balance these interests that--

Unidentified Justice: Well, that's what I'm asking.

The other facts in this case are the same except that there's adequate proof of, of harm, of potential harm to the residential areas.

Mr. Burns: --If there is adequate proof of potential harm, they can zone out.

That's a demonstrable secondary effect.

On the other harm, Your Honor--

Unidentified Justice: Even though, even though other sites may not be available?

Mr. Burns: --Well, I think, in my personal view, a city has the right to deal with these problems as they can any other kinds of land use problems.

However, in dealing with those problems, they have to be sensitive to the concerns that exist.

But the problem here with Renton is that they have zoned these theatres out of the commercial areas as well as the residential areas.

And when you zone them out of the commercial areas as well, the problems that may exist and the concerns that you're trying to protect in a residential area do not exist to the same degree in a commercial area.

Now, Renton's ordinance is different from the ordinance in Young and the ordinance in Seattle, in that Renton's ordinance excludes these operations or these businesses from a location within [= 1,000] feet of any residential unit.

Unidentified Justice: Well, now, is none of the property in the 520 acres zoned for commercial use?

Is that what you're saying?

Mr. Burns: Generally, Your Honor, it's zoned for industrial use.

Unidentified Justice: Is any of the property in the 520 acres zoned for commercial use?

Mr. Burns: Not to my knowledge, Your Honor.

Unidentified Justice: Well, can a commercial property be located in an industrial area?

Mr. Burns: Well, to that extent that it can, there are less--

Unidentified Justice: I mean, it's not forbidden.

It's not forbidden even--

Mr. Burns: --No.

Unidentified Justice: --though, so the answer is commercial establishments may be located in an industrial area.

Mr. Burns: They can; but, Your Honor, there's evidence in this record that a commercial establishment such as a theatre requires a certain kind of location that nobody disputed.

It's a recreational kind of activity.

It needs streets--

Unidentified Justice: But it would not be against the zoning law for this theatre to be in the industrial area.

Mr. Burns: --No, it would not be against the zoning law.

Unidentified Justice: Does the record disclose that there is at least one shopping center in the 520 acres?

Mr. Burns: Yes, Your Honor, that's a fully developed shopping... well, yes, it is.

But it's, it is in a location which is outside of that main area.

If I could point it out to you on a map which Mr. Prettyman showed to you.

It's the map on page 141.

Unidentified Justice: 141a?

Mr. Burns: 141a, Your Honor.

It is the location which is up here in the corner that looks somewhat like an upside down L.

That is the location of the commercial shopping center.

Unidentified Justice: Up in the extreme right corner?

Mr. Burns: Yes, Your Honor, if you can see where I'm pointing.

It's sort of an upside down L that's in grey.

Now, that particular location, Your Honor, is a fully developed shopping center--

Unidentified Justice: Oh, I see.

He has that upside down.

Mr. Burns: --However, that location is not available in a practical sense, in that the location is very small in size.

In the opinion of our experts, it would not have enough land to accommodate an adult theatre.

So, while that particular location is both suitable and permissible, it's not available in the sense that it's not large enough, and it's not available in the sense that it's probably not for sale.

Unidentified Justice: But there would be other undeveloped land nearby--

Mr. Burns: No.

Unidentified Justice: --that presumably could be available?

Mr. Burns: Well, Your Honor, that little L-shaped area is the only area there that is available.

The other area is that little rectangular area to, as you're looking at the map, directly beneath it over here, which is an industrial warehouse kind of area which is served by railroads.

And then the main core of the 520 acres is down in this undeveloped land, which I showed you in the aerial photograph.

Unidentified Justice: What do you mean unavailable?

Mr. Burns: I mean unavailable in the sense that somebody will not sell it or rent it to you, Your Honor.

That's what I mean by unavailable.

We had, the record below establishes that there was a real estate expert who went around to every property owner within this land area and queried whether their property was for sale or whether they would rent it for use as an adult theatre.

The almost unanimous answer of those people was no.

Unidentified Justice: But, again, if there had been adequate proof or some grounds for believing, a decent grounds for believing there would be danger to residential areas, this unavailability would make no difference?

Mr. Burns: Not but in that area it wouldn't, but there is no proof that there's any danger--

Unidentified Justice: I know that's your claim.

Mr. Burns: --to the commercial areas, Your Honor.

It is our position that this ordinance asserts no compelling governmental interest in the sense that the concerns of this ordinance are with the effects of the content of the speech, not the operational characteristics of the business, which we believe is the key determinative factor.

There's no difference in this record in the operational characteristics between an adult theatre and a general audience theatre.

There's no indication that this theatre draws transience or does anything else of an outward nature.

Unidentified Justice: When you say this theatre, are you referring to an unbuilt theatre in Renton?

Mr. Burns: Yes, Your Honor.

I'm referring to my client's theatre in one sense and to the unbuilt theatre, because this ordinance affects the first use that comes into town.

It's not an ordinance that says that these kinds of uses cannot congregate together or must be separated.

Unidentified Justice: It would be hard to get any empirical evidence that an unbuilt theatre did much of anything in Renton, I suppose.

Mr. Burns: But, Your Honor, there are locations in small cities within the State of Washington where there is one adult theatre.

Unidentified Justice: You say that--

Mr. Burns: And they could go get that kind of evidence if they wanted to.

Unidentified Justice: --But they can't go to Seattle.

Mr. Burns: Well, what they did in Seattle is different, Your Honor, and I think that's the distinction and the difficulty in relying on the experiences of other cities.

If you're going to rely on what Seattle did, be concerned about the same problems and do the same thing.

If you're going to rely on what Detroit did--

Unidentified Justice: But it, but if Seattle made a study in anticipation of taking some action in its city, regardless of what action Seattle took as a result, why can't the City of Renton rely on the studies paid for and produced by the City of Seattle?

Mr. Burns: --Your Honor, I don't object to that, but Renton never looked at that study in this case.

They never even looked at it.

Unidentified Justice: Well, but the State of Washington's courts looked at it, and I would think that might even be the best evidence.

Mr. Burns: Your Honor, I don't believe that reading a court decision supplies the empirical basis needed to make a zoning decision.

Unidentified Justice: It doesn't, even though the court's decision is based on, on satisfactory empirical data?

Mr. Burns: Your Honor, it doesn't give you the empirical data, the underlying studies upon which to make the decision.

I don't believe that simply by reading court decisions, any municipality can say we have that problem; these studies support our answer to it.

I just don't find that persuasive.

In--

Unidentified Justice: Do you contend that the court somehow has to make sure that every city council member has set aside so much time and really studied a particular thing in a particular manner to survive constitutional testing of their actions?

Mr. Burns: --Your Honor, if they're going to infringe upon First Amendment interests, then the answer is yes.

I think that they have to be extremely careful to what they're doing in order to place any burden on speech.

In that respect, I would--

Unidentified Justice: You don't think any post hoc production of evidence would suffice?

Mr. Burns: --Certainly not in this case, which all the evidence was post hoc.

But what I would suggest as a minimum is that if they're going to rely on the experience of other cities, that they say that a city compelled to assert precisely what it is they're relying on and why they're relying on it, and put that in their findings of fact and their conclusion of--

Unidentified Justice: Mr. Burns, supposing they had a growing, a rapidly growing city, and didn't have any motion picture theatres at all, and they had to plan a city plan with zoning in it, and they decide to put motion picture theatres in a commercial zone.

Do they have to go out and make an independent study, or can they rely on the experience of other cities for that kind of decision?

Clearly, it would burden the First Amendment interest.

Mr. Burns: --But, Your Honor, as long as they haven't based their decision on content, at that point I think what they've done is okay.

If they say general audience theatres can be in one zone and adult theatres have to be in another zone, then they're making a distinction based on--

Unidentified Justice: So, it's critical to your case, as I understand it, it's critical to your case that this is a content regulation?

Mr. Burns: --Absolutely, Your Honor, absolutely.

Unidentified Justice: So, you do really ask us to re-examine Young?

Mr. Burns: No--

Unidentified Justice: You say so in so many words in your brief, and I'm just surprised you don't stick to your guns.

Mr. Burns: --Well, I don't think I'm asking you to re-examine Young, because I think that that this case can be analyzed under Justice Powell's decision, his use of the O'Brien test, but I don't even believe the O'Brien test is appropriate in this case, because I believe that the burden on speech is substantial here.

It's not minimal or incidental, and therefore strict scrutiny is the test that ought to be applied.

And so, I can live with Young.

Young says to me, Justice Stevens, that we can base decisions on content with respect to motion picture theatres so long as there is an identifiable secondary effect from the operational characteristics, not that we perceive that the speech is going to have people react or not react in one manner or another.

Let me conclude--

Unidentified Justice: Before you move to another... The district court found, and this is on page 28a of the Appendix, Appendix to the jurisdictional statement, 28a, the last sentence in the full paragraph on that page, that ample accessible real estate is available for the location of adult theatres in Renton.

The court of appeals declined to accept that.

It also declined to apply the clearly erroneous rule to it, relying on this Court's decision in Bose, B-o-s-e.

Do you rely on Bose?

Mr. Burns: --Yes, I do, Your Honor.

Unidentified Justice: You're aware that Bose involved Sullivan against New York Times and proof of malice.

Mr. Burns: Yes, sir.

Unidentified Justice: Do you have to prove malice in this case?

Mr. Burns: No, I don't think you to have prove malice.

I think--

Unidentified Justice: Well, why is Bose relevant, then?

Mr. Burns: --Well, I think Bose stands for the proposition that where there are fact law determinations and the law is critical to how one analyzes the facts, that the court has the responsibility to examine those de novo.

Much as in the area of obscenity, where this Court reviews de novo, or has the right to review de novo, the obscenity of any material before it.

A district court or a jury may find it obscene, and that's a finding of fact, but this Court has to make that ultimate First Amendment decision which is based upon the fact law problem.

Unidentified Justice: In every First Amendment case?

Mr. Burns: Yes, Your Honor.

Unidentified Justice: Even where the district court has held that the effect on First Amendment rights, if any, was quite incidental?

Mr. Burns: That, again, the incidental effect is another fact law determination that I think is, is critical.

Unidentified Justice: --mixed question of fact and law?

Mr. Burns: Yes, Your Honor.

I would say, in conclusion, that the notion that pervades Renton's ordinance is that there's a need to protect certain places, schools, churches, and so on from adult theatres.

But that need, that express need, the whole purpose of this ordinance is nullified by the under-inclusiveness of the ordinance.

This ordinance deals only with adult theatres.

There is no evidence in this record or anything that I can find that establishes that an adult theatre has a different operational characteristic or effect upon these places than other adult businesses which are not regulated and not subject to the burden of this ordinance.

For those reasons, Your Honor, I would submit that the judgment of the Ninth Circuit should be affirmed.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Prettyman?

Mr. Prettyman: Three brief points, Your Honor.

First, my co-counsel tells me I said that I was out there ten years, and I meant ten days ago.

I apologize to the Court.

The first point is this.

Mr. Burns said that there's nothing in the record to indicate that adult theatres attract people other than those that are here in the courtroom.

I assure you that that is not the case; that this record shows, through Mr. Clemmons' testimony, who attended virtually all of these meetings, that what these committees and the City Council considered were the experiences of other cities as reflected in some documents, but primarily in the decisions which, as Justice Rehnquist has pointed out, fully set forth precisely what had gone on in those communities.

Justice Stevens, in the Seattle case, Northend Cinema, if you... they noted that the Apple Theatre, for example, in the First Hill community by itself, and then two other theatres in another residential community, had the adverse effects.

Mr. Clemmons had been, incidentally, for seven years in Milpedes, California, where they had had an adult problem, and he was familiar with that and could tell the City Council about it.

The record also indicates that we looked at Tacoma.

Tacoma had a case which the Ninth Circuit, where they approved a zoning ordinance in an unreported decision.

We've cited that in our reply brief--

Unidentified Justice: Why did they, why did they approve that?

Did they recite the adverse effects?

Mr. Prettyman: --Yes, they did.

Unidentified Justice: Likely or probable or actual, or what?

Mr. Prettyman: No, they cited actual in that case, and it was primarily based upon things such as property values going down and that kind of thing, which of course we relied on here.

If you want to see a good example of a study which goes to a single theatre, look at the Phoenix study, which is cited in our brief, which compared a single adult theatre in an area with another area that did not have one and found, for example, that the crime rate was three times as high.

Unidentified Justice: Mr. Prettyman, may interrupt you?

You're now focusing on the justification for the ordinance, and turn your attention to what remains available for the adult theatres, that phase of the case, and that as Justice Powell pointed out, the district court found that there was ample accessible real estate there, and the court of appeals then says the standard of review is de novo.

What, in your view, is the correct standard of review of that finding of fact?

Mr. Prettyman: That was going to be my third point, and I'll go to it immediately, Justice Stevens.

It seems, the reason that we haven't paid much attention to that in our briefs is that we're happy to have you use strict scrutiny if you want to, because we think we passed the test.

But it seems to use that the Bose test is really a strange one to use in this context for the reasons that Justice Powell pointed out, and it is very interesting that the Ninth Circuit itself, different panels admittedly, in the Tacoma case and the City of Carona case, which is cited by Mr. Burns in one of his later briefs, both use the clearly erroneous test in this situation.

And it seems to us that in a situation where you have such an incidental restriction on First Amendment rights as opposed to one where you have a total exclusion or some factor such as the malice situation--

Unidentified Justice: Yes, but in Young, of course, it was specifically assumed that the total market for the particular speech was not diminished.

Mr. Prettyman: --I think you can assume that here.

The most that we have in this--

Unidentified Justice: You can't under this finding, but the question is whether that finding is important enough to merit more careful review and some finding--

Mr. Prettyman: --Well, Your Honor, I think that where you have an area that will accommodate over 400 theatres and it's readily accessible and criss-crossed by roads, the most that you've got is an inconvenience.

Somebody who may want to be downtown and see one is going to have to drive for a little bit.

Unidentified Justice: --Mr. Prettyman, I take it that your opposition indicated that there was sufficient proof of probable injury to residential neighborhoods, that availability wouldn't make any difference.

Mr. Prettyman: If there was sufficient proof, availability wouldn't make any difference?

Unidentified Justice: No, no, no.

If there was sufficient proof of harm to residential neighborhoods--

Mr. Prettyman: I don't go that far.

I don't say that if you had harm to residential neighborhoods you could zone them; you could do a Schad.

I don't say that.

And I think the reason, Justice White, is that there would then have to be some accommodation.

You might have to, you might have to restrict your area from 1,000 feet to 500.

You might have to accommodate in some fashion to make sure that there was some outlet for this expression.

Unidentified Justice: --But you think that whatever, whatever threshold availability there was was passed, here?

Mr. Prettyman: It's clearly that in this case, yes.

The only other point I would make is that he said that we zoned him out of the commercial area.

We didn't zone them away from the commercial area, we zoned them away from residences and churches and stuff, and it just so happened that in our city they're all mixed in with the commercial zone, so they're not right downtown.

But let me pose this question to you.

Do they have a right, do they have a constitutional right to be where they want to be, where most customers are walking by the door, where they don't have to put up signs because there's so many people walking by that they'll get a ready audience?

Or can we put them away from where they're doing the harm but where people can still go, you still have plenty of film, plenty of theatres, plenty of access, and everybody can see what they want to?

And with that, I hope very much that you'll reverse.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

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ORAL ARGUMENT OF ROBERT M. PITLER, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in New York against Paul Ira Ferber.

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

Mr. Pitler: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether New York can make it a crime to disseminate materials, for example, a movie, which show a 12-year old child actually having sex with an animal or an adult without requiring that the entire movie be obscene.

The purpose of this kind of legislation is, of course, to protect children from sexual abuse.

This purpose distinguishes this case and New York Penal Law Section 263.15 from the obscenity cases and statutes which have previously come before this Court.

In the previous cases, in the obscenity cases, the interests of the state are generally to protect the viewer, not to protect the people who participated in the film.

That much is made clear by the opinion for the Court by Chief Justice in the Paris Adult Theater case.

In that case three state interests were mentioned in support of general obscenity legislation, and all of those interests, without going into them, are aimed at protecting the viewer or the community from seeing the film.

Indeed, the obscenity standard itself is designed, in talking of terms of community standards, appeal to the prurient interests, the standard itself is designed to protect the viewer.

Here, the statute in question is not at all designed to protect the viewer.

You know, one can say, pardon the expression, in terms of obscenity legislation to some extent you deal with a victimless crime.

This statute and the concern here, we are not dealing with a victimless crime.

We are dealing with a crime against a child who is made to perform any and every kind of sexual conduct by an adult.

And that child is made to do so generally, I would think, involuntarily.

He is case in a role which will have a profound adverse effect upon him, and that adverse effect is both physical and mental.

And I am not going to repeat what we have set forth in Appendix B to our brief about all the damage that is done to children.

And the harm to children is not limited to the production process itself.

The child's privacy when he is made to appear in that film is forever invaded.

He knows in his mind that he is on that film and that film is being disseminated all throughout the United States.

The embarrassment caused to him, the emotional and psychic trauma to him is quite grave.

Now, our adversaries recognize that the state interest here is compelling at least with respect to the production part of the statute, in prohibiting people from using children in production of the materials.

There is no challenge to that part of the statute.

But once the production is completed and the sexual abuse, as we call it and I think properly so, is memorialized on film, our adversaries say the First Amendment then comes into play and you may not prohibit the dissemination of that material even though it was committed by committing a crime against a child.

They say this is especially so, because there are less restrictive ways to deal with the problem than an outright ban on dissemination.

They point to two.

One less restrictive way they think of dealing with the problem involved here is the production statute itself.

It is good enough just to ban the use of children.

We submit to the Court that that is not an effective alternative to the dissemination statute.

And the reason it is not an effective alternative, the dissemination statute, is because most of the production is done secretly.

They cannot be found out.

The producers are very, very difficult to infiltrate, very difficult to find.

Unidentified Justice: Your submission is that the dissemination prohibition is essential to supplement the production prohibition, which you say you can validly do.

Mr. Pitler: Yes.

In effect, it is part of a statutory scheme which is designed to protect children, and you cannot protect children just by the production statute.

Unidentified Justice: Well, how can you... then how do you... I am sure you will get to this sooner or later and you may do it in your own course if you want to, but how do you explain then your prohibition of distribution on production that has taken place outside the state?

That certainly is not as a supplement to any kind of production that you are legally authorized to prohibit.

Mr. Pitler: Well, one of the problems is that you cannot determine where the production takes place in a lot of these films.

It's impossible.

They don't say... they don't have a list of credit--

Unidentified Justice: But suppose it's quite possible.

Suppose in a particular case everybody concedes the production took place in California.

Then what's your--

Mr. Pitler: --We would say that those films, in effect, would feed a market that would make it likely that children in New York would be used to make other films.

Basically, it's a kind of market analysis.

It doesn't make a difference where the film is made.

It feeds a market.

People want to buy the films, there's a desire for more films, and then children, regardless of where they live, in effect, will be made to appear in these films.

And therefore, it would serve that purpose as well.

Unidentified Justice: --More pressure, more invitation to secret production in New York.

More likely that--

Mr. Pitler: Or taking the New York children elsewhere to make films, as well.

Now, it's our position that the only way that you can get at the use of children is to ban the dissemination.

It's really the least restrictive alternative.

So in effect, the distributors provide the economic incentive for making these films.

And this is something that's recognized in testimony before the Congress and from rather diverse sources.

From Charles Rembar to the L.A. Police Department, from Professor Tribe of Harvard to a senior editor of Playboy Magazine, everyone recognizes the best way, the most effective way and the most realistic way to get at the abuse of children in the production is to ban the dissemination.

The second alternative to the dissemination ban of New York is the obscenity standard.

In effect, limit the ban on dissemination to materials that are obscene.

We believe that most theoretically and realistically, that does not work.

First of all, as a matter of theory, as I said in my opening remarks, the obscenity statute is designed, and the standards that this Court has enunciated, is designed to protect the viewer, not the child who is made to perform.

Moreover, even a work is not obscene in the legal definition, a child has been abused in the production of that work.

You cannot get away from that fact.

And moreover, the obscenity standard, we would submit, is not a sufficient deterrent to deal with this particular kind of issue.

You have to prove... the obscenity standard requires you look at community standards, to the prurient interests, to whether there's a particular group involved.

And I think no case better illustrates why this is an ineffective deterrent than the instant case.

The defendant here was charged with both disseminating an obscene move and just disseminating a movie containing sexual conduct of a child.

He was acquitted with respect to the obscenity on charges.

And if you read the record, I thought that this would be a relatively simple case.

You show the film to the jury... I don't know if the Court has seen the film yet but it is in the courthouse and it would be relatively simple.

The entire trial was devoted in this case, despite the fact that these films were entirely devoted to sexual conduct, to... does this appeal to the prurient interest of a particular group?

Now, I would think when a child is abused in the making of a film, society shouldn't be interested in whether or not the film appeals to the prurient interest of a particular group.

We shouldn't be interested in whether there are other films out there similar to this film that are sold regularly.

And we shouldn't be concerned about any particular group.

The jury was out approximately 12 hours in this case, all focusing on... all their questions show they were focusing on the obscenity question.

Unidentified Justice: --Twelve hours on both counts?

Mr. Pitler: Yes.

All focusing on the obscenity question.

Unidentified Justice: Does the record show here where the film was made?

Mr. Pitler: No, Your Honor.

In most of these films, it is virtually impossible see where they are made.

Unidentified Justice: And there was no proof in this case about that, I gather.

Mr. Pitler: At one time there was an offer of proof that they wanted to prove that the film was made in Europe, and the judge rejected that saying that was not relevant to the statutory scheme, for the reasons that I gave Justice White, in order to deter the abuse in New York.

Unidentified Justice: I take it you were surprised at the verdict.

Mr. Pitler: I didn't try the case, but upon reading the trial transcript, I was not surprised at the verdict.

Unidentified Justice: You were not surprised at the acquittal on the one count and--

Mr. Pitler: No, because so much confusion was caused between the experts on the group involved, that I'm not sure the jury could follow any intelligent instructions with respect to that.

Unidentified Justice: --Well, can't that also be explained under the ancient proposition of inconsistent verdicts, which the system has found tolerable?

We have never expected consistent verdicts, necessarily, from the--

Mr. Pitler: Well actually, I think the verdicts in this case are consistent.

Unidentified Justice: --One explanation could be for some people, but inconsistent verdicts are part of the system.

Mr. Pitler: That is certainly true, Your Honor.

Unidentified Justice: May I just clarify one thing?

Is it correct that there were two films and as to each film there was a charge both on the obscene section of the statute, and also on the non-obscene statute.

Mr. Pitler: That is correct.

Unidentified Justice: So it's kind of like a lesser included defense.

Mr. Pitler: No.

Unidentified Justice: What if they found him guilty on all four counts?

Could that verdict have stood?

Mr. Pitler: Yes.

I think--

Unidentified Justice: That the film had been both obscene and not obscene?

Mr. Pitler: --No, they wouldn't have to... in other words, obscenity would be irrelevant.

They could say that the theme of the film is obscene... I have to withdraw that.

I'm not sure exactly what instructions were given to the jury in this case.

They could have been instructed that once you find the conviction on the obscenity, you don't reach the second.

But I don't think... I'm not--

Unidentified Justice: What is your view of the statute?

Supposing the films had been obscene.

Your view is that they could be convicted under all four counts?

It seems to me there's kind of a double punishment problem there,--

Mr. Pitler: --No.

In New York you would only have a double punishment problem if they were served... if consecutive sentences were to be imposed.

You would have what I think we call a multiplicity.

But the only remedy with respect to multiplicity is you do not allow the sentences to be increases.

Unidentified Justice: --There's nothing about the portion of the statute that is before us that requires non-obscenity as an element, is there?

Mr. Pitler: That is correct.

And that question was suggested: the non-obscenity would not be a lesser included offense of the obscenity count.

I think they would stand together.

Unidentified Justice: So you could violate this particular statute even if the movies were obscene.

Mr. Pitler: Yes, but the prosecution--

Unidentified Justice: If you used children in producing an obscene movie, do you violate this statute?

Mr. Pitler: --The answer is yes, but the people would not have to prove the film--

Unidentified Justice: I understand.

But you could.

Mr. Pitler: --Yes, you could violate the statute.

But it's the problem of the proof of obscenity is why the legislature did away--

Unidentified Justice: I understand, I understand.

Mr. Pitler: --Now, it may well be that when we're dealing with protecting the viewer in the obscenity context, that we're prepared to pay the price of standards that may not effectively deter abuse xx that circumstances, as I said before, we're sort of dealing with a victimless crime.

But I don't think when we're dealing with protection of children, that the New York legislature decide and I would hope this Court would hold, that have to run hope of acquittals in having an ineffective deterrent to the abuse of children.

That brings us to the statute on its face.

Now, one of the problems before this Court of Appeals held that obscenity was like a threshold question.

If the statute didn't require proof of obscenity, the statute was unconstitutional and therefore, there'd be no limiting construction possible.

They didn't deal with proposed limiting constructions or even go to it, because they said obscenity was the bottom line.

What I'd like to do is to go through the statute and at least show why, on its face, the statute is not over-broad, and in the course of that, to at least offer some potential limiting constructions that the New York Court of Appeals might and probably would consider.

First,... and it is 263.15 of New York's Penal law and it is found, I believe, on page 3a of the Appendix to our brief.

Now, we have shorthanded the statute a little bit, but basically, it prohibits dissemination of material depicting the sexual conduct of children.

And the sexual conduct we think is defined in pretty precise terms.

It's bestiality, sexual intercourse, sodomy, lewd display of the genitals, explicit simulated... any of the conduct simulated.

And if these terms sound familiar, they certainly are because they are right from the Miller versus California standard talking about the hardcore kind of sexual conduct that could be prohibited in the obscenity context.

Now, amici and our adversary have suggested that the term "lewd display of the genitals" is vague and that would deal with just simple nudity.

I think that a reading of this Court's opinion in the Miller case and the Paris Art Theater case and the New York Court of Appeals case in People versus Heller shows that that concern is totally unwarranted.

Now, it's true the New York court has not yet had a chance to interpret the statute, but lewd exhibition or lewd display of the genitals, at least as far as this Court is concerned and the New York court is concerned, feels it a patently offensive depiction, designed to appeal to an interest in sex.

Now, the amici point to medical texts saying these medical texts would be covered by this statute.

But I don't think there is any way, I don't think any reasonable person, I don't think any prosecutor, I don't think any jury, I don't think any judge and I don't think any bookseller can really look at a medical text and think for a second that that is a lewd display of the genitals within the meaning of the statute.

Unidentified Justice: Mr. Pitler, can I interrupt you there?

At page 3a of the jurisdictional statement... or I guess it is the cert petition rather... there's a paragraph in which the court of appeals describes what it says the statute covers.

And one of the things it says it covers is just what you have described.

It says,

"It would also prohibit the sale, showing or distributing of medical or educational materials containing photographs of such--"

Mr. Pitler: Judge, I think that they were dealing with the statute on its face, saying, in effect,--

Unidentified Justice: --Haven't they construed their own statute?

Mr. Pitler: --Judge, I don't think that you can read the court of appeals' decision as construing their own statute because I think even though they said that, I don't think they were focusing on lewd display of the genitals at the time.

They would have to find it inconsistent with their own decision in People versus Heller.

And I think a fair reading of the opinion, which I must say, in all deference to the court of appeals, not one of the great exhibits of judicial craftsmanship.

Because they were saying look, the statute... we will allow you... I was going to say hopefully, this case will go back to the court and I am perfectly prepared to tell that to them during the argument as well.

But I think that they were concerned about the obscenity part of the statute, the absence.

And they said look, obscenity is not covered by this statute, and that everything else just follows.

I don't think they were really focusing on it.

And indeed, I don't recall even our brief or in our adversary's brief really focusing on the term "lewd display of the genitals" at the time before the court of appeals.

Unidentified Justice: Well maybe they were careless and didn't look at the word "lewd" as carefully as they should have.

But it seems to me that paragraph tells us what they think the statute prohibits.

And maybe that's crazy for them to read it that way, but can we reread a New York statute differently?

Mr. Pitler: No, clearly not.

But I would urge Your Honor to read the opinion in its whole and entirety.

--mention that, but I think a fair reading is that the court did not focus on that issue, and their--

Unidentified Justice: Well, they clearly did not focus on the meaning of the word "lewd", I agree with you completely.

Mr. Pitler: --And if we are right, if they say you must prohibit obscenity and only obscenity, and this Court says no, the state can go further, this case could go back to the New York Court of Appeals for them to decide precisely how they think "lewd" should be defined.

And I can assure Your Honor that we are going to urge the court that lewd has to be defined exactly as we have suggested to this Court, and that's the way it should be defined.

And I think if the case goes back and the court decides to give a limiting construction, that is precisely what the court will hold.

They have not so held yet.

Even though, again, the language read literally might cover that, I think you have to read a little bit more into it, though.

Unidentified Justice: Do you know if the argument was made to them at the time of that appeal, what the word "lewd" meant or how--

Mr. Pitler: My recollection is that it was not focused on.

I don't think the argument was made.

Unidentified Justice: --Do you think the point is fatal to your case, Mr. Pitler?

Mr. Pitler: Pardon?

Unidentified Justice: Do you think the point is fatal to your case, is critical to your case?

Suppose the court meant exactly what it said.

What would your response be?

Would you say that you cannot forbid... would you agree, or would you say that the state can forbid the use of children in non-lewd photographs displaying the genitals?

Mr. Pitler: Unless there were some other exception for medical treatise is required by the Constitution, I would say the state could not do that.

Unidentified Justice: Could not do that.

Mr. Pitler: Could not.

Unless there were an exception somewhere else dealing with legitimate scientific works.

And our adversary cited a number of books, very fine and legitimate treatises where there are pictures--

Unidentified Justice: But then you would say but the only reason the statute would be invalid then is because it was over-broad.

Mr. Pitler: --Yes, the statute would be over-broad.

Unidentified Justice: Don't you think it would substantially over-broad, if that's all it... if that was the only degree of its over-breadth; that it just happened to ban medical treatises?

Mr. Pitler: We certainly then could use the broad analysis there and say that the statute might be unconstitutional as applied in a particular group of cases, but the statute still would survive, thank you very much.

Unidentified Justice: These people certainly weren't publishing medical treatises, were they?

Mr. Pitler: Oh, no, sir, they certainly were not.

So the term "lewd" I think really has not been defined by the court of appeals.

I think this Court has looked at the term similarly, and it is clearly the legislative intent.

The fact, that they use the word "lewd" and they didn't use simple nudity to describe the kind of conduct, so there really isn't a problem with respect to the term "lewd".

Next, the question is: is there really a real fear of over-breadth with respect to the statute.

And we think really not.

Our adversary... amici points to a whole number of books that say look, they are covered by the statute.

By and large, those are books that may have some display of genitalia but not in a lewd way at all, and I don't think anyone could disagree with that.

There is some simple nudity but this statute is very carefully drawn, it does not cover simple nudity.

What it does cover is nudity when accompanied by an explicit, simulated sexual act.

And to the best of my knowledge, almost all these books do not.

And if there is one somewhere, or two somewhere, it seems to me that that's a pretty small price to be paid for the statute in the way it protects children.

Unidentified Justice: So you would not regard the frieze in this building, that one, with its display of nudity, both sides, as not being offense to the statute?

Mr. Pitler: Judge, my quick look around shows me that there's nothing lewd in any of that.

And anyway, I would doubt--

Unidentified Justice: Well, there are children on both ends of that one up there.

Mr. Pitler: --Still looking, I don't see anything... and I don't think there's a prosecutor in this country or a jury in this country... You know what you have to do is you have to take a picture and then disseminate it in New York.

I don't think there's a real fear of that at all.

Now, even assuming that the First Amendment somehow requires some kind of limited exception for educational, medical and scientific material, it certainly can be read into the statute if the New York Court of Appeals would choose to do so.

Amici has suggested what we think is a fine standard, and that is educational, medical and scientific materials which as an essential part of their presentation contain depiction of sexual conduct by children.

The fact that the statute doesn't have it doesn't make the statute fatally over-broad.

It's something that, once, could be dealt with on a case-by-case basis, or even the court of appeals if it chose to do so, could read it in.

The other kind of over-breadth that is pointed to, and I think it can't be serious, is what I call the dissemination kind of over-breadth.

Previously I was talking about content over-breadth.

What I mean by dissemination over-breadth, I sent these films to the court, pursuant to a request from the court.

Literally under the statute, I have disseminated the films.

Now, even though I was a prosecutor, I didn't feel prosecution,... I don't think anyone... I wasn't discouraged at all, I wasn't worried about it at all, and I think the so-called dissemination over-breadth is just not a real threat, at least with respect to the situations that they posit.

For example, giving the copies of the films to the news media to show so that the news media will write stories about the films, and give them to the television media.

I don't think there's a real fear and certainly could be limited.

By the way, the statute expressly gives an affirmative defense to librarians.

So you don't have any concern with respect to them.

And although the statute uses the word "procure", I don't think it means in the possessory sense, but rather, procure for the purposes of further distribution.

But simply, the statute, we think, is crafted to deal with a very, very serious problem.

A problem that cannot be dealt with by simply prohibiting the use and production.

Seeing my white light, I have five minutes, I would like to reserve that time for rebuttal.

Thank you.

Chief Justice Burger: Mr. Fahringer?

ORAL ARGUMENT OF HERALD PRICE FAHRINGER, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Fahringer: Mr. Chief Justice, and if it please the Court:

It is our view that if this statute is resurrected, it would mark an abrupt departures from an unbroken series of cases extending over a long stretch of this Court's history, holding as postulate the proposition that whenever any law is conceded, as this one is, to suppress constitutionally-protected material, or non-obscene material, despite the compelling state interest, where there are available alternatives less restrictive, it has never been tolerated.

It is my view, Your Honors, that the New York Court of Appeals condemned this statute because it imposed significant burdens on freedom of speech without any assurances that it would give any added protection to the young people of this country, beyond those already provided by two, what I consider to be, very effective statutes: the law that makes it a felony to use a child in the production of a film or a book, and the law that makes it a felony, increases punishment, if a person sells that book--

Unidentified Justice: What do you think about the validity of that law?

The felony to use a child in making a non-obscene movie.

Mr. Fahringer: --I believe it's valid, Your Honor.

And I say--

Unidentified Justice: Why is that?

Mr. Fahringer: --Because, Your Honor, I--

Unidentified Justice: What case supports that in this Court, for example?

Mr. Fahringer: --Your Honor, let me say this: I am talking, of course, about sexual conduct.

I can understand--

Unidentified Justice: Well, but you concede that the state may make a felony out of producing a non-obscene movie.

Is that right or not?

Mr. Fahringer: --Yeah.

Your Honor, what I'm suggesting is... if I can correct my answer to this extent... I think in terms of not nudity, not even lewd nudity.

I think in terms of--

Unidentified Justice: Well, I just asked you a simple question... making a non-obscene movie.

Mr. Fahringer: --I welcome it, Your Honor.

Then I would say no, they cannot.

What I was thinking of was taking--

Unidentified Justice: All right.

May they make it a felony to use a child in producing any non-obscene movie that you can think of?

Mr. Fahringer: --No, Your Honor, they cannot.

What I say is this... if they used--

Unidentified Justice: Suppose they could.

I thought you conceded in the first place that they could make--

Mr. Fahringer: --Because, Your Honor, I was only thinking in terms of sexual conduct, using young children in commission of sexual acts, which per se is obscene.

Unidentified Justice: --I know, but there's... I suppose there's a lot of things that might be sexually stimulating that aren't obscene.

Mr. Fahringer: Your Honor, you may be correct.

Unidentified Justice: All right.

May a state forbid using children in sexually-oriented movies that aren't obscene?

Mr. Fahringer: If, Your Honor, there were findings that that would be harmful to the children, I think the state has the power to do that.

In other words, I--

Unidentified Justice: You don't need to argue about this distribution business.

You just say that the law against production is bad, and a fortiori the distribution is bad.

Mr. Fahringer: --Your Honor, that's not the issue, but I am happy to discuss it with you if you like.

What I'm saying is this: I think throughout this whole area, if it please Your Honor, what happens to all of us is there have been very few actual scientific findings in this area.

They take for granted, Your Honor, that the distribution of a film... and they make this second argument in this case... that this would have some sort of an impact upon the child.

Let's take a 14 or 15-year old who is photographed nude.

Putting aside sexual conduct.

They say that that, of course, is clearly condemned under the statute and there has to be no finding of obscenity.

I'm not sure what they--

Unidentified Justice: Well, legislatures don't have to make a finding, though.

This was sufficient for the New York legislature, I take it.

Mr. Fahringer: --Well, Your Honor, they obviously had great misgivings about the constitutionality of this statute or they--

Unidentified Justice: Well, they passed it, didn't they?

Mr. Fahringer: --But they wouldn't have enacted the other section which this section completely duplicates.

I don't agree with the prosecution in terms of the trial of this case, and I tried it, Your Honor.

Obviously, you have no need for the section that makes it obscene to sell these films if you have a section that says just sexual conduct in itself is enough.

Unidentified Justice: Well, the New York legislature didn't take your judgment on that point, it passed both statutes, did it not?

Mr. Fahringer: But, Your Honor, all I'm--

Unidentified Justice: Did it or did it not?

Mr. Fahringer: --Well, Your Honor, all--

Unidentified Justice: Can you answer a question?

Mr. Fahringer: --Yes, Your Honor.

Unidentified Justice: Can you answer it either yes or no?

Mr. Fahringer: Well, yes, they did, Your Honor.

They had misgivings about Section 6... the 15,.15 section, obviously, because there would have been no need for the one requiring the obscenity.

All I'm saying, Your Honor, if it please you is that creating the two sections, obviously you have to conclude from that, as they did in the commentary under the legislative history, that there would be no need for this section... I'm sorry, there would be no need for the obscenity section if this section was constitutional.

It seems to me the only conclusion you can draw is their fear that this section would be declared unconstitutional and they have an obscenity section.

Unidentified Justice: They have a fullback.

Mr. Fahringer: That's correct, Your Honor.

I didn't mean to suggest otherwise to the Court.

And, Your Honor, I think in the trial of this case, as a matter of fact, to follow that logic to its conclusion, in the trial of this case if they had found the defendant guilty under either one of the sections, the verdicts would have been repugnant then.

Because obviously, one duplicates oneself inclusive of the other.

Unidentified Justice: I thought from your adversary's comment that since he says that non-obscenity is not a requirement for this section before us now, that they aren't duplicative.

Mr. Fahringer: Well, one is inclusive.

The non-obscenity section obviously would include the obscenity section because it means... if the two children were just shown participating in anything that was not obscene, the man is convicted.

There would absolutely be no need then to find the obscenity section.

If you found the obscenity section, I suppose there would be no need to go further and find the non-obscenity.

Unidentified Justice: So you regard this as kind of a lesser included offense?

Mr. Fahringer: Yes, Your Honor, I would.

And I would think, Your Honor, that a verdict that would have been returned on both counts would have posed very serious--

Unidentified Justice: Could a state legislature make it unlawful, make it a criminal act for an adult to arrange for or induce children aged 7, 8, 9, to engage in these acts?

Mr. Fahringer: --I think they could, Your Honor.

Unidentified Justice: Isn't that what they have done here?

Mr. Fahringer: No, not--

Unidentified Justice: In essence, isn't that what they have done?

Then they have added to that the filming of it, which simply compounds the situation.

But the conduct you admit could be made a criminal act.

Mr. Fahringer: --Absolutely, Your Honor.

I have never had a quarrel with the fact... I don't know scientifically how sound this is, but it seems to me the state has a legitimate interest in regulating the conduct of children below the age of 16 involved in sexual activity, where there is a serious question of whether they're consenting to it and the harmfulness that, of course, can occur to them.

Unidentified Justice: Can you add one... non-obscene conduct?

Does a state have a legitimate interest in prohibiting non-obscene conduct by children?

Mr. Fahringer: I think they could, Your Honor.

Unidentified Justice: Yes.

And could they then prohibit the filming of it?

Mr. Fahringer: I think they could.

Unidentified Justice: Non-obscene.

Mr. Fahringer: I think they could, because--

Unidentified Justice: So now you agree that the state may prohibit the production of non-obscene films in which children are the actors.

Mr. Fahringer: --But I think, Your Honor, as a part and parcel that I have to say in answer to your question that there would have to be an indication, some finding, that it was harmful to the children.

Obviously, to do it with children that are--

Unidentified Justice: All right.

Let's suppose the legislature found it.

Then you would accept it?

Mr. Fahringer: --I think, Your Honor, under the circumstances I would.

But what we are dealing with here, Your Honor, is a far cry from that.

And it seems to me that to sustain this statute really does imperil a large body of literature that could be of some worth to society.

And I would like to--

Unidentified Justice: Mr. Fahringer, would you concede that not only is the legislative interest legitimate, but it is compelling in the area of child pornography?

Mr. Fahringer: --Absolutely, Your Honor.

Unidentified Justice: It is the most compelling interest that one could imagine for a legislative act?

Mr. Fahringer: I'm not sure it's the most compelling.

I would say drugs might go above that, Your Honor.

But what I say to you is that two statutes, if it please Your Honor, that we now have in existence which came out of that same offensive against child pornography, are more than adequate to deal with the problem.

That's my only thesis here in this Court.

Unidentified Justice: But not in the legislative view, obviously, or they wouldn't have passed this additional statute which obviously the legislature determined was essential to get at the problem.

Mr. Fahringer: There's no question, Your Honor, it was an adventure on the part of the legislature to go one step further and to get convictions in this area without the proof of obscenity.

What I've said... you know, when they conducted congressional hearings in this matter and experts came from all over the country, as Mr. Pitler pointed out, and the federal government enacted law, with equal concerns just as compelling to them, the conclusion of the consensus of experts was that the child pornography we're talking about can be easily convicted under an obscenity statute.

And there is no need to eliminate this element and jeopardize all this other literature which could be of some use to society.

That's what the federal government came to, and I think that's persuasive, and I think the fact that 26 other states in this country presumably conducting hearings also concluded that they could wage war successfully against pornography--

Unidentified Justice: So it's your position that it's very easy for the state to uncover where these films are made and to put a stop to it?

Mr. Fahringer: --No, I'm not.

What I'm saying is it's being prosecuted all over the country, it's being prosecuted in Miami, Florida right now and federal court in cases I know about it.

And I'll tell you this, Your Honor.

It seems to me, if I may say this in all due respect, you have that same problem in the drug trade, but no one has ever suggested we reduce the burden of proof in the drug business and eliminate proof beyond a reasonable doubt or presumption of innocence because it's hard to get convictions.

I think the drug problem in this country is probably paramount to everything else, and yet we haven't discarded these procedural safeguards that this Court has built up over the years so that it's easier to convict drug distributors, which is also done in--

Unidentified Justice: Well presumably, the promoter or distributor is well able to know what's in the film.

It isn't as though they're innocent of knowledge of what's contained in what they're selling.

Mr. Fahringer: --Well let me give you an example, Your Honor.

This book, Show Me, that is prominently featured in both of the briefs is a respectable book, it was produced in Germany with very young children in it, and the book is avowedly for the purpose of educating children in adolescent sex.

Now, that book, Your Honor, certainly... I don't think anybody in the world would doubt that that book could be prosecuted under this section.

There are people in New York... and this is a matter of public record... that have spoken out against the book and have gone on the air and condemned the book.

So much so that the publisher of that book, of course, launched the declaratory judgment action--

Unidentified Justice: Is there anything in the record about that book?

Mr. Fahringer: --Yes, Your Honor, there's--

Unidentified Justice: Did I understand you to say or imply that you need some experts of some kind to indicate that the conduct involved here is damaging, injurious to young children?

Mr. Fahringer: --What I said is this, Your Honor, that I could conceive of the state's interest in terms of making non-obscene films, people who put children together in non-obscene films and the children are actually engaged in the conduct, that that might be prohibited with a finding that this would be harmful to the children.

I certainly would assume that it's harmful to the children.

Unidentified Justice: Do you think the members of the legislature need someone else to tell them that this is damaging to children?

Mr. Fahringer: Your Honor, let me give you an example.

If you took a 15-year old boy an a 17--

Unidentified Justice: Let's take a 7 or 8 or 9, because that's what you've got here.

Mr. Fahringer: --Your Honor, I don't think the legislature would need anybody to tell them that.

But you certainly have 14 and 15-year olds under a 16-year statute, a headline, a top, and it seems to me if you took a 15-year old boy and a 16-year old girl and used them to make a sex manual where they were not involved in explicit sexual acts but used it for the purposes of educating adolescents about sexual behavior but it was quite explicit, they were touching one another, I can understand how people might come forward and say that this would not damage these children for the rest of their life if it was done in a clinical environment.

Unidentified Justice: Are you suggesting that this material is beneficial, educational material for children?

Mr. Fahringer: Oh, Your Honor,--

Unidentified Justice: Do you seriously advance that?

Mr. Fahringer: --Well, Your Honor, what we're saying is... if it please the Court... I don't mean to offend you, but in the amicus brief,--

Unidentified Justice: You don't offend me and I don't mind if I do offend you on this point.

Mr. Fahringer: --But the point of it is in the amicus brief, we have listed the growing number of books that are being used today to educate adolescents in sexual behavior with pictures and photographs, and that's basically the book Show Me which is discussed in both briefs here and they brought a declaratory action under this statute because they were fearful they were going to be prosecuted.

Unidentified Justice: What if New York simply passed a law, akin to its child labor law, saying that no child shall appear in a moving picture who is under the age of 16?

Mr. Fahringer: Because of the historic difference in this Court that we have always made between goods and things of that sort and the First Amendment.

When the picture goes into a book, Your Honor, it becomes an idea, and then it comes--

Unidentified Justice: Well, can you give me an answer to my question?

Mr. Fahringer: --I'm sorry, Your Honor.

Unidentified Justice: It's answerable I think yes or no.

I asked whether or not if New York should, analogously to its child labor laws, pass a statute that said no child under 16 shall appear in a motion picture, just like no children under 16 are allowed to work most other places.

Would that be violative of the First Amendment?

Mr. Fahringer: Yes, I can see how it would be, Your Honor.

Unidentified Justice: Do you think it would be?

Mr. Fahringer: Well, I could certainly... you mean if you eliminated all 16-year old actresses in this country, they couldn't make a film and Brooke Shields and everybody else would be out of business?

Unidentified Justice: Right.

Mr. Fahringer: I think that would be unconstitutional, Your Honor, because I think they're an integral part of the First Amendment in terms of making these films, and the same way if you said that--

Unidentified Justice: So that the state can prohibit working children under 16 and any other area, but it can't prohibit them from working in films?

Mr. Fahringer: --Your Honor, I'm sorry, if it were not discriminatory.

In other words, if you're saying they just took 16-year olds and said they couldn't work in films.

If they said 16-year olds couldn't work in any industry at all, couldn't do any kind of--

Unidentified Justice: Including in films.

Mr. Fahringer: --I'm sorry, then, Your Honor, I would have to say that would be consistent if the state made that judgment.

It eliminates it then from the First Amendment concern because you're talking about it across the board... that a 16-year old can't work at anything in this country, and that would seem to me that--

Unidentified Justice: No First Amendment problem?

Mr. Fahringer: --There would be no First Amendment problem.

Unidentified Justice: The state is arguing I think in part that the injury that is being prohibited or avoided by this particular statute is the constant distribution for others to see the recorded pictures or films of these children in sexual conduct, and that it's the subsequent exhibition and display to other people that adds further harm to the children.

That there is harm above and beyond merely the initial taking of the photograph in the constant viewing by others and the subsequent psychological damage to the children as these acts are reproduced and shown to others.

Now, does the state have no substantial interest in addressing those problems?

Mr. Fahringer: Yes, Your Honor, and I think it's accommodated by the obscenity statute, because those films would be found obscene and they would be illegal anyway in the distribution line.

What I keep coming back to here... and I really think this is the core of our argument... and that is, the statutes that are on the books of New York right now, as the New York Court of Appeals really found, are more than adequate to accommodate these problems.

The problem you just posed is certainly taken care of by an obscenity statute.

You don't need for that purpose a statute that says any conduct of any kind is forbidden and make it a felony for a person to sell a book like Show Me or Young and Sex or some of the other books that we demonstrate in the amicus brief here.

I might say this, if it please Your Honor, that there are indications in the amicus brief that this literature, which certainly could lend itself to prosecution under this statute... the district attorney says we would never prosecute anybody like that, but certainly this Court has seen enough evidence of people coming forward and inaugurating prosecutions through prosecutors in small rural communities which are shocking to all of us.

Taking The Fixer out of the library, the Naked Ape, Slaughterhouse Five.

Unidentified Justice: Well, couldn't we, instead of concentrating on other people's books and pictures, concentrate on your client's pictures and books for a moment.

Do you think that your suggestion that the obscenity statute was more than adequate to cover this type of abuse would be agreed to by the person who prosecuted this--

Mr. Fahringer: Absolutely.

Your Honor, let me tell you what happened in this case.

They went on--

Unidentified Justice: --I'd like to finish my question if you'd allow me to.

There was a conviction on the section of the statutes before us, but an acquittal on the obscenity count.

And I take it if there had been just the obscenity statute in effect, it would have been an acquittal on the only count that was brought.

Mr. Fahringer: --The reason for that, if I can tell Your Honor, was that the prosecutor in this case decided to proceed under the unique theory established this by Court in Michigan versus New York and said that these films would only appeal to male homosexuals.

Now, Your Honor, from my standpoint as a trial lawyer, I tell you, that took it right out of the jury's lap.

The question was, would these movies appeal only to a male homosexual.

Two experts came in and testified that surveys had been run in prisons in Connecticut, and that 87 % of the people were heterosexual and had families.

And another expert came in and testified... at that time, Your Honor, the Kinsey Report on homosexuals had just come out which absolutely contradicted that.

It was a guess on his part, so the jury had a very easy decision.

It was confusing, there was a lot of expert testimony.

But I am convinced, Your Honor, as the person who tried the case that what they found is that the overwhelming empirical evidence was that these films would not appeal to a male homosexual.

Now, I submit to Your Honor as an officer of this Court, had it been tried on the straight obscenity level with the average person sitting in that jury box saying would these films appeal to my morbid or shameful interest in sex, there is no doubt in my mind there would have been a conviction.

Unidentified Justice: What's that got to do with the injuries to the children, which is the focus of this statute?

Mr. Fahringer: Because, Your Honor, what I'm saying is that the injury to the children is accommodated by the law that makes it a crime to use them and by the law that makes their crime--

Unidentified Justice: Is there anything new about having three statutes that you could use alternatively to prosecute particular conduct?

Mr. Fahringer: --Only that, Your Honor, the third statute in this case, based upon a long line of decisions out of this Court, goes much further.

It will imperil, it will suppress a good deal of useful literature.

Now, it may not be that medical books are going to be suppressed here, but Your Honor, may I put this question.

What if someone wanted to write a book on child pornography and use some examples of it?

What about Sixty Minutes?

What about the woman that we cite in our brief who actually took some of the material before she wrote the Law Review article?

There's no question she's guilty under this statute, and if she had wanted to use any of the examples in her book... if Covenant House, Morality in Media, wanted to advocate their cause with visual pictures in their publication showing what a horrible thing child pornography is in this country, they would be, guilty under this section.

And I just think that's preposterous.

And I also want to talk about the books that come in from... how about the book, Prostitutes in Bombay?

How about Incest in Peru?

If these books come into this country, books that are surveys of serious sexual problems today dealing with adolescents, none of those books would be available for sale in New York under this section.

Because there's no question, I think in many of those instances there would be lewd pictures, and there is no question that there might even be sexual conduct.

And yet you could not sell those books in this country, even though they were worthwhile and had some scientific value.

Incidentally, I wanted to just--

Unidentified Justice: Mr. Fahringer, may I interrupt you just a second.

You've given the example of the book, Show Me, two or three different times.

Would that book have been lewd within the meaning of the statute?

Mr. Fahringer: --Your Honor, I think that there are people who say it would.

Obviously, you know my bias and I don't think it is.

But I want to tell you this: that there is touching among the young children and--

Unidentified Justice: To what extent did the question of what lewd means... was that presented to the court of appeals in argument?

Mr. Fahringer: --It wasn't, Your Honor.

Unidentified Justice: It wasn't argued?

Mr. Fahringer: I agree with Mr. Pitler.

I was there and I think he was in the courtroom and it was never discussed at all.

But it's clear to me--

Unidentified Justice: What you're saying is that a book like that could be argued... could be subject of argument.

Mr. Fahringer: --And then you see, it seems to me we come to the most troublesome aspect of all in this case, the chilling effect, the impact it's going to have on responsible publishers.

A book like Show Me may not be put out because maybe, maybe somewhere in Watertown, New York or in an outlying area, someone might come in and bring a criminal action against the publisher.

So we'll never know what books, either in sexual manuals, descriptions of adolescent sex or books that have to do with exposes of the problem, will never be published because--

Unidentified Justice: The chilling effect doesn't have anything on your clients because they don't even let you know where they made them.

They don't even want you to know who did it.

Mr. Fahringer: --Your Honor, let me say this in all--

Unidentified Justice: That's true, isn't it?

Mr. Fahringer: --Your Honor, that is not true.

In this case we tried to prove that these films--

Unidentified Justice: Well, is there anything on this film that shows who produced it, anywhere?

Mr. Fahringer: --No, Your Honor, all I'm saying is... I wanted to come back to the fact that in the record we made an effort here, we made an offer of proof, to show that these films came in from out of the country.

The judge sustained the objection and we weren't able to--

Unidentified Justice: You made an offer to prove anything that you wanted to prove, but that wouldn't have proved it.

Mr. Fahringer: --I realize that, Your Honor.

But the fact of the matter is that an awful lot of books and films... and I'm talking now about material that has some scientific value or some literary value... are produced overseas.

And certainly, when they come into this country the American public should have a right to see them.

Unidentified Justice: Could the New York constitution provide by statute that every film must have the name of every actor and participant, every producer, every cameraman and the locations?

Mr. Fahringer: That has already been foreclosed in New York by a case up there, Your Honor, that forbids that under the First Amendment.

Unidentified Justice: In the New York--

Mr. Fahringer: In the New York Court of Appeals.

They ruled on it, Your Honor... it had to do with publications, but they said that it was unconstitutional to require a publisher to put his name on the pamphlet or the book because it might, of course, inhibit his putting out controversial books.

Unidentified Justice: --Under state law.

Mr. Fahringer: Under state law, that's right, Your Honor.

Under our New York State Constitution.

Unidentified Justice: Does that add weight, then, to the state's argument that this kind of a statute is necessary under those circumstances to reach the problem?

Mr. Fahringer: I don't think so, Your Honor, because all... all we come back to, it seems to me, is that everything we're talking about in this Court would be found obscene under the obscenity statute.

One of the things that is disturbing to me is the prosecution hasn't come forward with any figures, any statistics of any kind to indicate that we simply cannot go forward with these prosecutions without this third section.

There's no statistics here that we've tried 37 child pornography cases and we have only been able to get two convictions.

And I don't know of any other statistics across the country.

The few Law Review articles that are cited are really very self-serving and they're speculative by people who have views in the industry.

But it seems to me the only way to go about that in a logical fashion is to say that we can't get... 26 states apparently feel that they can conduct this campaign against child pornography successfully with what they've got, and the federal government feels that way.

Now that, I think, lends force to my position here today that until they come in and show this court, we simply cannot prosecute child pornographers unless we have this third arm, it seems to me that recognizing that it imperils all this other literature, it seems--

Unidentified Justice: But they obviously wanted to go further and prosecute some who were not child pornographers but who violated this third portion of the statute.

I mean, the evil they were striking at was broader than the child pornography in the sense of the constitutionally obscene.

Mr. Fahringer: --And what I'm saying in answer to that, Your Honor, because I think that is an incisive question.

One is if it's the protected material, that they are never going to go after the books and things of that sort, obviously there's never going to be a prosecution under the so-called legitimate material.

If it's the other material, that is the 42nd Street Times Square material, that's going to be found obscene under the obscenity doctrine anyway.

Unidentified Justice: Except in the one case in which you've just successfully or partially successfully tried, where they found it not obscene but convicted him under this statute.

Now you have a reason you say that happened, but nonetheless, that is what happened.

Mr. Fahringer: No question.

But, Your Honor, I do think that's a compelling reason.

We don't have a case were they tried it under a straight obscenity statute where it went to the jury and the jury themselves had to decide whether or not this would appeal to our morbid or shameful interest in sex.

And that's the case, it seems to me, you need, not a case where it would appeal to a deviant group.

Because I could easily understand how a jury would find this would appeal to us, our own morbid or shameful interest in sex, but it certainly... the evidence is to the contrary with another group.

Your Honor, I would only... since I see that my time is expiring,... the language you used in the Shad case which is one of your most recent cases and one that we rely very heavily on in our brief, where you said that the state has really not established its interests could not be met by methods that are less restrictive on protected forms of expression.

And there you said... and I think it applies to this case... that even if the infringement is incidental and only applies to a small number of cases in the First Amendment area, we must still scrutinize that regulation with great care to see whether or not there are other methods available to reach the state's objective.

Unidentified Justice: Counsel, you mentioned scrutinize with great care.

Your brief, as I understand it, agrees that the state has a compelling interest in this area.

Did the New York Court of Appeals agree that the state has an interest of that level of scrutiny?

Mr. Fahringer: I think they did, Your Honor.

Unidentified Justice: Would you indicate where it said so?

Mr. Fahringer: You mean in the decision?

Unidentified Justice: In the opinion.

Mr. Fahringer: I'm sorry, I can't.

I thought it was implied.

I don't think--

Unidentified Justice: Do you think it was stated expressly?

Mr. Fahringer: --It may not have been, Your Honor, I'm sorry.

What I wanted to read to you is this, the very end of--

Unidentified Justice: How can we tell what standard it applied, if it didn't say so?

Mr. Fahringer: --I never doubted for a moment that they agreed that there is a concern, but they said in the end of their opinion those who employ children in obscene plays, films, books are still subject to prosecution in this state, as are those who sell or distribute obscene material.

All we hold today is that those who present films, plays or books portraying adolescent sex in a realistic but not obscene manner cannot be prosecuted under this statute.

Unidentified Justice: But the only interest that I recall the court of appeals having identified is a legitimate interest, which is far short of the compelling interest standard.

Mr. Fahringer: Well, that may be correct, Your Honor.

One of the things that you've just alerted me to that I haven't even discussed with this Court is that they spent an awful lot of time finding that this statute was under-inclusive.

They said that if the state's real concern is the welfare of children, then why isn't it that they do the same thing with children who over-work long hours and are not paid or whatever, and do dangerous stunts and things of that sort.

And to me, that does make a lot of sense.

I don't think the court has to go that far.

They even say that it appears as though they've just selected this class of material--

Unidentified Justice: It's not the First Amendment argument, is it?

Mr. Fahringer: --Well, it--

Unidentified Justice: What do you think it is?

It's the due process or an equal protection argument.

It's not a First Amendment argument.

Mr. Fahringer: --Well, it wasn't Erznoznik because there, what you said in Erznozkik with the drive-in theater that they only picked nudist films to foreclose--

Unidentified Justice: That's a content-oriented thing.

Mr. Fahringer: --Content-oriented.

Well, that's what this basically is, Your Honor, content-oriented.

Unidentified Justice: I don't know about that.

Mr. Fahringer: The distribution part is.

In any event, there was an awful lot of preoccupation in the court of appeals with that phase of it.

And what I wanted to simply state, the court of appeals said it seems as though they just selected this one narrow area because of the legislator's distaste for this type of material.

Your Honors, I'll end as I began, by simply saying that it really seems to me the evidence in this case is compelling, and there's none to the contrary, that the two statutes that are in existence in New York are more than adequate to deal with this problem.

And it's unnecessary to impose significant restrains on free speech where there are existing alternatives.

Thank you.

Unidentified Justice: Mr. Fahringer, let me ask you one question before you sit down.

I take it this statute has no civil sanctions or remedies of any kind for this kind of material.

Mr. Fahringer: No, it doesn't, Your Honor.

Unidentified Justice: Would you say that the constitution would tolerate some kind of civil control of this sort of material, the distribution of it?

Mr. Fahringer: Well, Your Honor, I would still have some problems with that if it were going to... if it is civil or not, it seems to me it has a deterrent effect, and I would think that it could run afoul of the First Amendment.

Chief Justice Burger: You have five minutes remaining, counsel.

ORAL ARGUMENT OF ROBERT M. PITLER, ESQ. ON BEHALF OF THE PETITIONER -- Rebuttal

Mr. Pitler: Thank you.

May it please the Court, Mr. Chief Justice, let me turn to the under-inclusive argument first.

In Erznoznik, you didn't have a situation like you have here.

Here you have a market that's being fed, a dissemination market that's being fed.

The only way you can get at that market is to ban the dissemination of these materials.

There's no market for pictures of circus performers made clandestinely, whether they are children walking on tightropes, being shot out of a canon, swinging on the trapeze.

There's no problem with respect to that market at all, and therefore, the legislature had a very good reason for choosing--

Unidentified Justice: Mr. Pitler, how can we intelligently decide the extent that this market really exists, as a court?

Mr. Pitler: --Judge, we have cited in our appendix--

Unidentified Justice: I know, but can we really rely on that?

Mr. Pitler: --Judge, the Virginia Supreme Court was prepared to say that the industry was $500 million a year.

And certainly, if the Virginia--

Unidentified Justice: How do I know that?

I mean, if I were a congressman I could find it out, but--

Mr. Pitler: --And if you were a state legislator you could, and the New York state legislature did find out and they did make that determination.

And it seems to me that that's a pretty good finding.

Unidentified Justice: --Did they find the volume of the business and so forth?

Or did they just pass the statute?

Mr. Pitler: No.

There, if you look at what we call the bill jacket, you will see comments from various legislators that they had hearings.

One on the Mental Health Committee had a hearing, for example, and they were shown any number of films that were freely produced in the market--

Unidentified Justice: I understand.

But your argument is that these other statutory provisions are not an adequate solution to the problem.

Mr. Pitler: --That's correct, Your Honor.

Unidentified Justice: And those comments were made before these other statutory provisions were passed.

I mean, how do we know how much of the job would have been accomplished by the prohibition against the obscene materials and the prohibition against the non-obscene performances?

We really don't, do we?

You may be dead right, but I just don't know how to--

Mr. Pitler: Judge, I can't prove it empirically, it's true.

But it seems to me that a legislature is entitled to make some findings based on the information that is available to them.

And they did make a finding.

I might say that our adversaries have never disputed the size of the child pornography market.

They have never said we are wrong about that.

They never took us up on that.

And we under-estimated in our brief.

We talked about $200 million a year.

Whether it's $200 million or $500 million, we've never been challenged by either the amici or the respondent in that regard.

And it seems to me that, along with the legislature's finding, should be good enough for this Court.

I can see from your reaction that I'm not persuading you--

Unidentified Justice: --I just don't know.

When was the statute passed?

Mr. Pitler: --1977.

Unidentified Justice: Yes, so it's five years.

And has there been any change in the amount of the market during the five years?

Do we know?

Mr. Pitler: There was some testimony in a hearing by a police officer... I think Police Officer Rice... who said when this statute was passed, the stuff started to disappear.

Unidentified Justice: And we know it's because of the provision in dispute here, or because of the other two provisions?

Mr. Pitler: No, we do not.

But it disappeared from adult bookstores.

It's still a very big mail order business in New York.

Unidentified Justice: Let me ask one other question.

I noticed in your reply brief you indicated that most of the horrible examples that the amici and so forth describe in their briefs really wouldn't be covered by the statute.

But what about the category the Show Me book falls in?

Mr. Pitler: You know, Show Me is an interesting case.

You know, we were hauled into district court in New York about Show Me.

As soon as the statute was passed.

And you know, we went in and we said we've never even heard of this book; we have no plans to prosecute it, we don't know--

Unidentified Justice: But what about it?

Could a prosecutor in a small community in New York successfully prosecute a book seller for selling that book?

Maybe you would not do it in Manhattan.

Mr. Pitler: --Your Honor, I don't know the answer to the question.

It is possible that he could.

There's at least one picture in there that would cause some concern.

But let me say, Judge, that we're talking about one book out of so many that--

Unidentified Justice: Well, I think that could be used as an example of a category of educational materials.

Mr. Pitler: --No,... let me try to respond to that.

Because in the future, people that are making these books that want to sell them, all they have to do is not use these kind of photographs.

You can get the exact same idea across in sexual education of children without showing children engaged in actual sexual conduct or simulated sexual conduct.

You don't need to use the children with respect to that.

And if this statute is upheld, people will be aware of that fact.

So I don't think there is a real fear.

And you can trot out so many books, but there's... for example, during argument, Prostitutes of Bombay.

There's nothing in that book that comes within the statute.

And--

Unidentified Justice: That case is not before us.

Mr. Pitler: --I understand that.

Chief Justice Burger: Your time has expired, counsel.

Mr. Pitler: Okay.

In sum, the First Amendment is not absolute.

It has to be balanced, and we believe this statute strikes the appropriate balance.

Thank you.

Chief Justice Burger: Thank you, gentlemen, the case is submitted.

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Flynt v. Ohio - Oral Argument

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Flynt v. Ohio

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