Alberts v. California

PETITIONER:Alberts
RESPONDENT:California
LOCATION:California State Capitol

DOCKET NO.: 61
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 354 US 476 (1957)
ARGUED: Apr 22, 1957
DECIDED: Jun 24, 1957

Facts of the case

Alberts conducted a mail-order business which sold sexually explicit materials. He was convicted in a Municipal Court in California on a misdemeanor complaint which found him guilty of selling lewd and obscene books and of composing and publishing an obscene advertisement for his products.

Question

Did the California Penal Code’s obscenity provisions, criminalizing the selling and distribution of obscene literature, violate the freedoms of speech and press as guaranteed by the First and Fourteenth Amendments?

Earl Warren:

Number 61, David S. Alberts, Appellant, versus the State of California.

Mr. Fleishman.

Stanley Fleishman:

Ready for the appellant, Your Honor.

Earl Warren:

You may proceed.

Stanley Fleishman:

If the Court please.

This is a criminal appeal from the State of California.

The appellant was convicted under California Penal Code, Section 311, which among other things makes it a crime to keep the sale and to advertise obscene books.

The case started with array.

At an appointed hour, police officers descended upon the home, the business office and the warehouse of appellant and they seized hundreds or thousands of books and pictures, parting them away in two trucks and in a car.

Appellant was charged in the exact language of the complaint.

The evidence was simple.

The State proved that the appellant had in fact mailed circulars advertising pictures and books.

And then it proved that the appellant in fact kept pictures and books to fill by mail the orders received by mail.

From the welter of material seized, the State selected some 31 books, 10 magazines and an assortment of pictures and introduced them together with some mailing paraphernalia such as circulars and the like.

This was the entire case of the State.

The trial court found the appellant guilty and sentenced him to a 60-day jail term, a $500 fine and gave him two years probation.

In affirming, the Appellate Department stated that it found that appellant had in fact kept books for sale and had advertised the books.

The Appellate Department did not consider the pictures that were in the case.

The appellate court here marked these books (Inaudible)

Stanley Fleishman:

No, it did not, Your Honor.

(Inaudible)

Stanley Fleishman:

It did not.

It merely said that — that some of the books were obscene in its opinion.

That’s all it said.

Felix Frankfurter:

Was this before a jury?

Stanley Fleishman:

No, it was not, Your Honor, trial by court.

Is it possible to tell from this record what pictures these were from (Inaudible)

Stanley Fleishman:

I would say that it would include the six books, if anything, that the State insists were included in it.

There are three novels and three medical text or works by doctors.

There are some confusion as to three but I would say that at least the three novels were found by the trial court to be obscene and the State now says they’re obscene, although the Appellate Department did not rule on that, Your Honor.

Stanley Fleishman:

There’s a procedural thing, I think, it’s not material however, to the issue as we — as we view it because it’s our position that the statute and our attack here, Your Honor, is upon the statute.

We believe that —

Felix Frankfurter:

Is that the — it may not be material from what you want to argue.

But is that the only question before us?

Are you — put constitutionality to — aside, evidently, you don’t put that aside.

You don’t — I mean the constitutionality of the statute on its face.

I gather from what you’ve just said, you don’t raise a question that assuming the statute was constitutional, it wasn’t evidence justifying the conviction.

Stanley Fleishman:

We do take that position.

We say every book it — no matter what we have here, every book is constitutionally protected —

Felix Frankfurter:

Well, but again —

Stanley Fleishman:

— so that even —

Felix Frankfurter:

— I understand that but putting the constitutional question aside —

Stanley Fleishman:

Yes, Your Honor.

Felix Frankfurter:

— assume the statute is constitutional, if you can bring your mind to that —

Stanley Fleishman:

Yes, Your Honor.

Felix Frankfurter:

— to that conclusion, argumentative.

Assume that you make any other point that there wasn’t evidence by which the trial court could have found that these books were obscene within the scopes of the statute as construed by your court, whatever — it made a construction maybe to make that point.

Stanley Fleishman:

It’s our position that under the construction of the statute by our court, each and every book was not obscene.

Felix Frankfurter:

All right.

And so that passing or before getting to the — or not getting to the main question that you seek to raise, and you say, we would have to say whether this particular book was obscene.

Stanley Fleishman:

It would be our position that we would be entitled to a reversal, Your Honor, if — because —

Felix Frankfurter:

I just want to know what the issues are here.

You just — you said a minute ago, this is all the material because you say the statute on its face is unconstitutional.

Stanley Fleishman:

That’s correct.

Felix Frankfurter:

Everything fall if that’s so, but suppose that isn’t so, what then?

Stanley Fleishman:

Then, we say there is other confusion in the record as to what we were convicted under.

Felix Frankfurter:

That’s the next question I was coming to.

That was the bearing of Justice Harlan’s question as I understood it.

Namely, do you maintain that in as much as there was a hodgepodge and no — no selection that the judgment of conviction violated due process because you were convicted on no particular charge or — or the charge wasn’t sustained?

Stanley Fleishman:

That is included without our — within our complaint, yes.

Stanley Fleishman:

We complain about that also.

Earl Warren:

So, where do you find that in the questions presented for review to this Court?

Stanley Fleishman:

Under question one, Your Honor, in our jurisdictional statement.

Earl Warren:

Would you read that portion that you rely on for that purpose?

Stanley Fleishman:

Whether the — upon its face and as construed and applied as what we are talking about, Your Honor.

Earl Warren:

Now, where — where are you reading from?

Stanley Fleishman:

On page 4 of our jurisdictional statement.

Earl Warren:

Well, I have — is that the same as the questions presented for review on page 7 of your brief?

Stanley Fleishman:

It includes that there, it was stated differently, yes, Your Honor.

Earl Warren:

Well, let’s take it the way it’s stated in your brief.

Stanley Fleishman:

It’s under 1 (c).

Earl Warren:

All right.

How does that read?

Stanley Fleishman:

“It is impossible to determine even after conviction and affirmance in the state courts in what particular appellant defended the law.”

Earl Warren:

Well now, and must that not be read — that’s only a part of a sentence.

It’s only a clause in there.

Shouldn’t you read the whole (c) with that?

Stanley Fleishman:

Certainly, there were — we had a whole due process question here, Your Honor.

In the due process question under (c), we had in mind the vagueness of the statute, and because of the vagueness of the statute, the necessary vagueness of the trial throughout, it was all tainted with the — and it’s all tainted because of the essential vagueness of the statute, Your Honor.

But that part of it, in my opinion, was that particularly whereas in the case at bar, it is impossible to determine even after conviction of what we were convicted.

That was meant to include the argument that we are now discussing.

Felix Frankfurter:

May I suggest the reason when I asked the particularity about these matters is that when briefs are submitted, your jurisdictional statement or petition for certiorari raising questions, the Court then decides whether it wants to bring out as it brings the case here all the questions or whether it wants to sit down.

And that’s why this Court has been very strong against considering questions that weren’t formulated on the basis of which jurisdiction was noted.

Stanley Fleishman:

Well, I think in our jurisdictional statement, we did attempt to set it forth fully, Your Honor.

Felix Frankfurter:

Well, you really, Mr. Fleishman.

You think your questions in your jurisdictional statement remotely would indicate to consider anybody.

To me, thinking to try and to read it intelligently that you wanted to raise that there wasn’t evidence on which the Court could have convicted.

Do you think that’s involved into the one?

Stanley Fleishman:

Well, it’s not a — an evidence question, Your Honor.

This is a — a constitutional question.

Stanley Fleishman:

What we meant to raise by the jurisdictional statement was that this trial because of the vagueness of the statute resulted in a hodgepodge as Your Honor point —

Felix Frankfurter:

You didn’t say a word about vagueness in your statement of constitutional questions presented, not one word or intimation.

Other — in other cases indeed as triad, there were those explicit statements.

This appeal presents the following questions under the constitution of the United States, one and two.

One is that that it abridges freedom and two that it conflicts with the mailing, then it was preempted by the federal authority.

Stanley Fleishman:

One was that it abridges freedom because it a vague statute, it’s a sensorial statute.

It’s — it’s vague in — in the area of free speech, Your Honor.

Felix Frankfurter:

Well, you — you’re now telling me it’s vague.

What I am saying is you didn’t say any of your jurisdictional statement.

Stanley Fleishman:

I’m sorry if — if Your Honor didn’t see it there.

I — I thought we —

Felix Frankfurter:

Alright.

I couldn’t see it if it isn’t there.

Stanley Fleishman:

As I was saying, the appeal here is basically upon the statute.

Penal Code, Section 311 makes it a crime for anybody to write, published, print or in anyway distribute or advertised an obscene book.

That’s all that said in the statute.

There is no definition as to what is obscene.

There has been a construction given to this statute by the Appellate Department to the Superior Court in the case of People versus Wepplo.

That is the authoritative construction of the statute.

There it is said that a book is obscene if it has a substantial tendency to corrupt or to deprave its reader.

How?

By arousing lascivious thoughts and inciting lustful desires.

Now, it’s immediately apparent, Your Honors, that this statute encompasses all books at the outset, all books.

Then, a court may in a sifting process permits some books to go as good and condemn others.

But in doing so — in doing so, the Court has no guidance or whatsoever because we submit at the outset that it is impossible, utterly impossible, for a defendant to know in advance whether a book is going to arouse lascivious thoughts or lustful desires and if these desires and thoughts in turn are going to corrupt the person.

And it is likewise impossible for a judge or a jury to make this determine — determination legally, they may make it emotionally.

Now, there are, of course, a great number of cases.

This Court holding that where a statute is so broad that it may encompass protected as well as unprotected First Amendment rights that the statute must hold before we ever reach particular application of the statute.

Our first contention is that because this statute, as interpreted, applies only to thoughts and only to desires because it has nothing to do with conduct that this statute is absolutely forbidden in total nothing, no book we contend that only arouses thoughts and only arouses desires maybe condemned under the First Amendment.

I say no book.

Stanley Fleishman:

But in any event if some books may be condemned under the statute, it’s perfectly claim that the statute is broad enough to include within it books that may not be so condemned.

History proves this under the standard obscene works of the greatest work have been condemned and with in a great variety of cases.

The State concedes as much.

They say that’s true but that was of yesterday, they say, those things don’t happen today.

Earl Warren:

Are any of — are any of these books obscene as of today?

Stanley Fleishman:

Certainly, Your Honor.

Lillian Smith’s Strange Fruit is an obscene book.

Felix Frankfurter:

Is that one of the books in this case?

Stanley Fleishman:

No, it is not.

It’s an obscene book in Massachusetts which —

Earl Warren:

Well, I didn’t ask —

Stanley Fleishman:

— had the same standard.

Earl Warren:

— I didn’t ask about that —

Stanley Fleishman:

I’m sorry.

Earl Warren:

— particular book.

I asked you if any of these — any of these books that are in this case are obscene.

Stanley Fleishman:

In our particular case, Your Honor?

Earl Warren:

Yes.

Stanley Fleishman:

Well, we don’t concede anything is obscene.

Earl Warren:

Well, I asked you if there were.

You — you say they are not obscene.

Stanley Fleishman:

That’s right.

Earl Warren:

None of them are obscene.

Stanley Fleishman:

None of them are obscene.

Earl Warren:

Well, I just want your view point, that’s all.

Felix Frankfurter:

Well, you say there is no such thing as obscenity controllable by law.

Stanley Fleishman:

That is not what I say, Your Honor.

I —

Felix Frankfurter:

Well, what do you say?

Stanley Fleishman:

I say that the standard that California replies, which is a mental obscenity statute which says, “That if a book is going to arouse bad sexual thoughts that it’s a bad book and it’s an obscene book and that that book may not be distributed.”

Stanley Fleishman:

I say that is no good.

Now, it may be — it may be that an obscenity statute which is narrowly drawn and which is related to conduct may breach some material which Your Honors think maybe controllable.

Felix Frankfurter:

What do you mean by related to conduct that the book must say to whomsoever it’s addressed you go out and do this, is that what you mean?

Stanley Fleishman:

Yes, Your Honor, that’s —

Felix Frankfurter:

That’s what you mean?

Stanley Fleishman:

that’s — that’s what I mean.

Yes.

I believe that under our Constitution, the mere arousing of thoughts, any thoughts, bad political thoughts, bad religious thoughts and bad sexual thoughts, thoughts as such, may not be controlled by Government.

Now —

You’re saying as I — I understand it was no matter how pornographic the books are that — but no matter how pornographic is said to the matter (Inaudible) picture or bookcase can be constitutional against this fellow (Inaudible).

Stanley Fleishman:

I’m saying that we would have to have, Your Honor, a much narrower statute.

I’m saying that all statute talks in terms merely of the effect it has on a person’s mind.

Now — if on the other hand, something that Your Honor may have in mind, it could be tied in with conduct perhaps and could be specifically defined, perhaps that would be reachable.

I have in mind for example Judge (Inaudible) and Judge Frank’s test that they set forth as constitutional requisites.

Now, there is much there that may not satisfy all of us but at least it shows the relevant factors.

You have to have a narrow statute and you have to relate it to conduct.

So far as it merely touches the mind, it’s our position that we as free Americans have the right to choose.

But how does any of the support aggregate such an (Inaudible)

Stanley Fleishman:

Well, then to the extent —

What I’m trying to find out is — that I don’t (Inaudible) question.

You said unless the book with a picture told any individual, throughout (Inaudible)

Stanley Fleishman:

I’m not prepared to draw the statute that may meet the test, Your Honor.

My argument here is merely that our statute is so broad that it includes what Your Honor has in mind when he says pornography, as well as works of great value that all of us would admit has to be permitted and that if the State may control some part of this area, it must do it by narrower legislation than we have before us today.

Felix Frankfurter:

Do you — do you agree or disagree that there is such a thing as pornography?

This isn’t an academic (Voice Overlap) because —

Stanley Fleishman:

I understand that, Your Honor.

Felix Frankfurter:

— you were asking us to strike down a statute which every state of the union had.

And when you say it isn’t your business to draw a statute that would stand, it is if I may say so to your business to enlighten me as to what the scope of — what the standard, what the tests are which I am to apply.

Stanley Fleishman:

I understand.

Felix Frankfurter:

And therefore, it seems to me they are going to ask you whether you can see there is such a thing as pornography in this world.

Stanley Fleishman:

I — under our statute and I —

Felix Frankfurter:

We’re not talking about the statute.

Forget about the statute.

Is there such a thing as pornography?

Stanley Fleishman:

If Your Honor please.

Pornography means different things to you that it does to me and I can’t answer that question without — because we’re not talking the same language.

Felix Frankfurter:

May I say that you’re here under constitutional provision, the Due Process Clause which may mean very different things to you from what it does to me.

And which is so vague that this Court constantly divides on that.

The fact that a concept may have different content for different people doesn’t mean it’s unconstitutional.

Stanley Fleishman:

Let me answer it this way, if I may, Your Honor.

I believe that there is some material that is so highly erotic that perhaps most of us in this room and most people in America would say that this is so erotic as to offend most of us and therefore, we personally don’t like it.

I would concede there’s that much.

But I do not concede that there is anyway where by you or I or anyone in this room can look at a book and say of that book that it’s going to arouse lascivious thoughts, lustful desires and corrupt the person.

I say that’s impossible.

Felix Frankfurter:

Well, I think, if I may say so, you — you’re raising two different questions.

I understand you, intellectually I understand you, when you answered a little while ago that near arousing of thoughts of feeling, not incitation, now that’s an ambiguous word, not telling me or somebody else to do something that conduct must be carried, not merely the likelihood that conducts may come.

You say unless the book says on the titled page, this is calculated to have you go off and commit federacy or something like that.

I understood you to say that it’s necessary to have the additional factor of conduct.

Now, you say, there may be books that — to offend everybody.

Now, offend is a personal feeling or a community feeling.

It has nothing to do with conduct.

Stanley Fleishman:

That’s true.

And I think that the First Amendment forbids that, Your Honor.

I don’t —

Felix Frankfurter:

Very well, I understand you.

Now, if you stick to that, I understand you.

If you say that you take the position that no statute can outlaw or make it an offense or inappropriate ways or ascribe books that have tendency that maybe deem to offend the community.

I understand you that there must be the additional factor of making somebody go out and do something, which the community may implicate.

But you can say it may be so offensive but then, it can because once you open the door as to who’s to judge, what does and what doesn’t offend.

Stanley Fleishman:

If Your Honor please.

Stanley Fleishman:

Perhaps, I can clarify it this way that insofar as the material may offend, only offend unrelated to conduct, the First Amendment absolutely prohibits.

The second point that we raised is —

Felix Frankfurter:

And unrelated to conduct, you mean that the author must indicate in pretty or ambiguous way that he wants to read or to do something, is that what you mean?

Stanley Fleishman:

Yes.

Felix Frankfurter:

All right.

I understand you.

Stanley Fleishman:

The other point is that due process wise under our statute which says that you have to incite — the book has to incite thoughts and arouse desires that nobody can tell in advance neither the defendant in advance nor the jury when it has to determine the question or the judge so that under our definition of what’s obscene, it’s impossible.

There’s no — there’s no point where we can say this is — this we agree is bad under that statute.

There is nothing.

There is no line or whatsoever.

Now, all of the tests, Your Honor, that have been looked to, to justify, these obscenity statutes, upon examination show that in truth they are no justification.

The one that perhaps has been resorted to most and with less — with the least, perhaps, of justification is history.

When you have an argument in one of these cases, you go before a court and you say “But what’s obscene?”

They say, “Well, obscenity has been defined so long.

It’s been around so long that everybody knows what it is because it’s been with us for so long.”

If Your Honors please, I think that history proves the opposite insofar as certainty is concerned because history proves that under the standard, all manner of things that are — today admitted to be good, had been condemned as bad so that it gives us no light in terms of finding particularly in terms of identifying how a particular book is going to have the — the — affect that is attributed to it.

Felix Frankfurter:

You mean you can’t determine it automatically.

You mean —

Stanley Fleishman:

We can’t —

Felix Frankfurter:

— without formula?

Stanley Fleishman:

You cannot determine it at all.

Felix Frankfurter:

Does the Board tried — wrote a book called “Convicting the Innocent.”

I must have viewed that from time to time, innocent people have been convicted of murder because of misjudgments.

Does that mean —

Stanley Fleishman:

But if Your Honor —

Felix Frankfurter:

— does that mean that’s so vague that jurist send people to do electric chair or near thereto?

Stanley Fleishman:

You can prove after the event that that’s false.

In this case, you can never prove that the jury’s opinion was right or wrong.

It’s —

Felix Frankfurter:

But I thought you just proved it by saying history proved they were wrong.

Stanley Fleishman:

Not in terms of arousing lascivious thoughts or lecherous desires or whatever statute that’s being used.

If Your Honor please, let me give an illustration.

As I said, the people — the State said that all of the mistakes were of yesterday that they don’t make mistakes today.

Now, maybe this is so.

Maybe they are wiser today and use their judgment in such a way that they think only bad books are reached.

But I oppose this to Your Honors, if the State decided to bring a complaint against a bookseller for selling Kinsey’s reports might not a jury find and properly under the standard used that this book, Kinsey’s report, might arouse lustful desires or lascivious thoughts and thereby — and thereby, corrupt and deprave a person.

Now, if it might, there would be no way of reversing this item because the jury makes the law as it decides the case.

They say it’s going to have this effect and then, there is no way of disproving it and that’s the difference, Your Honor, between convicting the innocent and convicting the guilty because you can disprove it.

If a man is wrongly — wrongly accused of murder and he can prove otherwise, then he will ultimately justify himself.

Felix Frankfurter:

The courts of — but highest courts all over the place have said that a scientific book in — the matter of law can’t be brought within that rubric.

Stanley Fleishman:

If Your Honor please, that’s not the standard we used in California.

Wepplo does not have that exception.

Felix Frankfurter:

But you haven’t told us what the standard is.

You haven’t told us a thing of — except your own elucidation of what you read this statute to mean, namely, that a book in the office of a gynecologist is lewd, obscene and lasciviously.

That’s all you’ve told us, that’s far.

Stanley Fleishman:

If Your Honor please, the standard that California uses will be found in the footnote on 73 and also on 23.

I’d like to save the balance of my time to — for rebuttal, if Your Honor please.

Earl Warren:

Mr. Whichello.

Fred N. Whichello:

Mr. Chief Justice and Associate Justices.

I’m sure that as I begin my first address to this addressed tribunal that I share the feelings of all the counsel who have preceded me through the years that this is perhaps the highest achievement that a counsel can reach in practice.

I wish I thought more adequate to it.

In answering counsel for the appellant, if Your Honor please, I would like first to attempt to clarify the issues as I see them express as best I can in legal language from the jurisdictional statements and the briefs and as best I can together what that counsel has just said.

As I see it, the contention of the appellant is basically that the statute is unconstitutional on its face in any event because it violates the First Amendment, invades and encroaches upon the right of freedom of speech and freedom of the press because it is so vague and indefinite as to constitute a deprivation of property and liberty and a violation of due process of law for the reasons that one cannot tell when he is violating or encroaching on this statute by his conduct and because prosecutors and judges may become censors by arbitrary action.

And lastly, that in this particular application, the exclusive postal power of the Federal Government has been encroached upon.

That last point in my opinion was due respect to appellants’ counsel, and so totally without merit that I’m not going to spend anytime on it at all.

I would like to call Your Honors attention to the fact that the statute involved here has in its introductory sentence something quite important on several of the issues involved here.

It commences with the words every person who willfully and lewdly either rights, keeps for sale, advertises and so on.

Now, those words “willfully” and “lewdly” are not always present in such statutes.

And they, of course, post a degree of safeguard for the defendant under due process as well as it’s exemplified in the same Wepplo case that we have mentioned in which counsel and I differ as to whether the construction of the statute on the definition is pure dictum as I contended it is because the case was reversed on this very word “lewdly” and that that defendant in Wepplo was asked by his counsel if he did whatever he was trying to do lewdly and an objection was sustained to that.

And the case was reversed because of the fact that the statute said “lewdly” and the defendant should be allowed to testify that he didn’t presumably as he was going to that he didn’t do it lewdly.

Fred N. Whichello:

Now, the Court, before coming to that point, does use the phrase that counsel mentioned and to that extent as — as dictum, as an expression of opinion by the Court, becomes of some interest, although, I don’t think it binds anybody because it is pure dictum.

And also, I think we should bear in mind while I’m speaking of that that it went as far as it needed to for the facts in that particular case.

Now, in that same connection, I want to call the Court’s attention to the fact that it’s been mentioned that that is that the defendant or the appellant here, who could have had a jury under California law if he had chosen, chose to waive it in the manner was tried by a court.

Therefore, there was not at any stage of this proceeding and instruction defining the word obscene.

And it is our contention that it — that under the presumption of constitutionality and the presumption of regularity in the lower courts that the trial judge is presumed here and in all the intermediate courts after the conviction to have correctly and accurately and constitutionally define the word obscene if it’s possible so to do.

I mentioned that because nowhere here do we have an instruction which pins us down to a particular definition that no court in California, as a matter of fact, has given a definition other than as dictum in the Wepplo case as I have described.

Now, I don’t want to be misunderstood.

I feel that our exhibits in this case, very definitely, do meet that test, although, I think we also go further and into a definition, which is perfectly proper under all these circumstances of the word obscene even though it was necessary in the Wepplo case.

Now, I would like to make this point —

Felix Frankfurter:

Would you mind stating —

Fred N. Whichello:

Yes, Your Honor.

Felix Frankfurter:

— what construction, the highest court, as far as this has gone in your State have given to the statute?

Fred N. Whichello:

None other than by dictum in the Wepplo case, if Your Honor please, and that is correctly —

Felix Frankfurter:

I mean it’s never been before an appellant try to do them in your — in California?

Fred N. Whichello:

Not on the definition of the word obscene, Your Honor, no.

And as a matter of fact, only before the appellate court, about three times at all.

Most of our defendants plead guilty.

Felix Frankfurter:

Where did the statute appear on your statutory?

Fred N. Whichello:

1870, I believe.

It’s a very old statute.

Felix Frankfurter:

So they’re not before an appellate court?

Fred N. Whichello:

On the question, Your Honor, of definition, no.

Felix Frankfurter:

By — well, didn’t they have to — what were the appeals about?

Fred N. Whichello:

Well, the — the Wepplo appeal as this matter of the word “lewdly.”

And there — there’s a Pickwick Book case and one or two others, but none of them involved this matter of definition as I — as I think counsel agrees.

I don’t think there has been a construction by the courts of our State, if Your Honor please.

Felix Frankfurter:

I’ll have to read that opinion but I suppose if the conviction is brought up to an appellate court and the appellate court sustains the conviction, it must have said something about what the statute covered.

Fred N. Whichello:

Well, in — in Wepplo —

Felix Frankfurter:

Or maybe not — maybe not —

Fred N. Whichello:

— they did make that statement.

Fred N. Whichello:

Now, it is surprising, Your Honor, I expected to find it and — and didn’t with all the research that I could do.

I would like to make this point, if Your Honors please, that the matter of —

Felix Frankfurter:

I found it on the very first page.

I’ve just opened it.

The Wepplo say — said it doesn’t give the definition.

I don’t know what you mean by saying it doesn’t — what do you conceive the definition of this?

Fred N. Whichello:

Your Honor, there’s a definition there but it was — by way of dictum.

Felix Frankfurter:

Why was it dictum?

Fred N. Whichello:

Because they reversed the case for lack of admission of evidence that the defendant was not acting lewdly and there was not an attack on the question of — of the definition of the word “obscenity” in any sense.

The Court merely makes the statement in passing and — and I don’t quarrel with it, Your Honor.

My only objection is it didn’t go quite far enough.

Felix Frankfurter:

Well, it does — it said something in the second paragraph, which is from my point of view, very important since Section 311 Penal Code condemned the sale of a book rather than a part of a book.

Do you agree with the contention that a book must be considered as a whole in determining whether this law is violated?

Fred N. Whichello:

Yes, I think that’s —

Felix Frankfurter:

In that sentence, it already reached it one of the most important aspects of this problem and the source of all mischief due to (Inaudible) definition —

Fred N. Whichello:

Yes, Your Honor.

I think we —

Felix Frankfurter:

— because they have no definition.

That’s one of the most important aspects of this whole problem.

Fred N. Whichello:

Yes, I think we’re all agreed that these works must be construed on a whole, Your Honor, and not on an isolated passage, yes.

Felix Frankfurter:

Maybe agreed on the fact but its significance becomes relevant, doesn’t it?

Fred N. Whichello:

Yes, it does, Your Honor.

I would like to make the point, if Your Honors please, that the contention that these works are not obscene and have any social or scientific value or whatever was not made at any stage of this case until the appellant’s closing brief in this Court.

Other counsel during the trial and the entire record is before this Court, including every word of argument was made at no time contended these works weren’t — were of scientific or of any other type of value.

He merely argued they were vulgar rather than obscene.

In appellant’s opening brief, there was no such contention.

And in our brief, we make the statement that to give appellant his duty, he never contended these things had any social value.

Now, of course, in his closing brief and in his oral argument, he contends otherwise.

Now, in that particular regard without standing here and quoting from some of these exhibits as I would hate to do, I want to call Your Honors attention first to the fact that in this record there is something that is very unusual, which appellant asked to be made part of the record and I’m glad that he did.

And that is an analysis that was prepared by our office of the exhibits originally for our own use.

Fred N. Whichello:

When the Appellate Department of the Superior Court, Los Angeles County, some in our oral argument using this, they asked for copies and it was stipulated they might have them and it’s become part of this record.

That suggests which particular exhibits and which pages we consider the most obscene and I feel what was on that basis, you’ll find the decision was made by the Appellate Department of the Superior Court and they do not doubt that some of the books were obscene.

Again, bearing in mind carefully, that this was a court trial and if the Court found anyone of these exhibits to be obscene, the defendant is properly convicted so far as that point is concerned.

And the fact that some other exhibit might turn out to be innocuous does not mean that the Court in California, trial or appellate, held that the innocuous book was obscene.

I’ll be frank to state to the Court, if I’ve been trying this case, I wouldn’t have put so many exhibits in.

I would have made a more careful selection, but as long as — the legal situation is as it is, I feel that if anyone of these exhibits is obscene, the Court properly found at least so far as this Court is concerned that the defendant did violate the statute.

Hugo L. Black:

You’re talking about either one of the exhibits or either one of the books.

Fred N. Whichello:

Anyone.

There’s — there’s quite a number.

Hugo L. Black:

Anyone of the books?

Fred N. Whichello:

Yes, Your Honor.

Hugo L. Black:

As a whole?

Fred N. Whichello:

There are also pictures —

Hugo L. Black:

The —

Fred N. Whichello:

— as it’s mentioned in the brief.

Hugo L. Black:

I — I didn’t quite understand what you meant.

You mean that you have to show that one of the books as a whole is obscene?

Fred N. Whichello:

Considered on the whole, yes.

If that is done, then the fact that there are other books, which are completely innocuous and I don’t know why in the world be trialed after they put them in, doesn’t mean that the California held that innocuous book to be obscene.

That was the point I wanted to make.

William O. Douglas:

We have to read them all then.

Fred N. Whichello:

No, Your Honor.

Again, a part of the record is the — is the — summary that I spoke off which appears at page 13 of the transcript of the record and Your Honor will notice, for instance, in the right-hand column that we have indicated that of Exhibit 5, the book called “Petting” as an erotic exercise, the picture of conjugal love, questions and answers about oragenital contacts are very obscene.

We indicate the page numbers, pages 17 and 19 and page 24.

Now, of course, again as we’ve said to —

William O. Douglas:

What conclusion is that?

It’s very —

Fred N. Whichello:

The prosecutor who, of course, points out wherein he thinks his evidence sustained in this case, Your Honor.

Earl Warren:

And the trouble with all that is that for all it appears in this record, the Court may have disagreed with you.

Fred N. Whichello:

Well, if Your Honor please, I think with the presumption of regularity, which always prevails on appeal that we would have to presume that the Court found whatever this Court finds to be obscene to have been obscene.

Fred N. Whichello:

May I make this one enlargement on that point?

Hugo L. Black:

That would be a pretty broad presumption, wouldn’t it, in connection with the (Inaudible) case?

Fred N. Whichello:

Well, would — would — surely, Your Honor, it wouldn’t feel that we should presume the Court made a mistake.

Hugo L. Black:

No, but I understood you to say that the Court should be presume to find any part of this obscene that we should lay this and find it obscene.

Fred N. Whichello:

Very definitely, Your Honor.

Otherwise, we have no presumption of regularity at all.

Earl Warren:

Well, you got to have something that approaches a decision.

Fred N. Whichello:

Yes, Your Honor.

But in a criminal case, of course, the Court draws no findings.

He simply speaks at the end and he says he finds the defendant guilty.

Now, even if earlier in the trial, he made remarks to the contrary about one of these exhibits as counsel makes the point, his verdict where he finds the defendant guilty is the thing that speaks the loudest.

And the presumption of regularity we feel, it’s at least our contention, is such that if any of these exhibits considered as a unit on the whole are obscene.

We’ve indicated the ones we think so.

Then, so far as that point is concerned, the conviction is proper so far as this Court is concerned.

Felix Frankfurter:

Would each one of these — would each one of these items offered in evidence?

Fred N. Whichello:

Yes, Your Honor.

Felix Frankfurter:

Separately?

Fred N. Whichello:

No, they are grouped.

For instance, Exhibit 5 includes nine books.

They were — they were offered in evidence and received in groups, if Your Honor please.

Felix Frankfurter:

And as the offer was made whether objection for each separate offers?

Fred N. Whichello:

No, there were — the only objection was to one letter which is Exhibit 17 and that was admitted for a limited purpose only, and bear in mind there was no jury.

That was the only exhibit that was objected too at the trial.

William O. Douglas:

You have nine copies of all these books here or just one?

Fred N. Whichello:

No, Your Honor.

I think one.

I think they were all shipped here from the Appellate Department of the Superior Court as a bunch and I haven’t seen them here but I assume that’s the situation.

Hugo L. Black:

How many pages are there in the aggregate?

Fred N. Whichello:

I beg, Your Honor, pardon?

Hugo L. Black:

How many pages are there in the aggregate that we have to look at?

Fred N. Whichello:

Well, I — I might suggest this, Your Honor.

If you start with the pages indicated by the prosecution, at least you have a lead as to whether there’s anything that might be obscene —

Hugo L. Black:

(Voice Overlap) —

Fred N. Whichello:

— but on the — the version of — of considering —

Hugo L. Black:

(Voice Overlap)

we had to look at each book and read the whole thing and see if appraise it as a whole.

Fred N. Whichello:

Under the appraisal on the whole, well, that’s all one can do.

I — I couldn’t take the time to read it all to, Your Honor, here.

[Laughs]

Hugo L. Black:

Well, I don’t know if I understand it.

I’m just wondering how much we had to read in order to reach conclusion or how many pages.

Fred N. Whichello:

Well, of course, they — they vary in pages.

Hugo L. Black:

How many pages are there in a whole?

Fred N. Whichello:

Maybe a couple of hundred in some instances, something like that.

William O. Douglas:

Sometimes we’d had to see a whole movie.

Fred N. Whichello:

Yes, I — I can understand that.

I’m afraid this will take longer than any movie I ever attended [Laughter] but I — I think the way you escape it in view of the rule of construction on the whole.

Tom C. Clark:

You only object to Exhibit 5, don’t you?

Fred N. Whichello:

Oh, no, Your Honor, no indeed.

Again, referring to page 13.

Exhibit 5 has three items that we consider very obscene.

Tom C. Clark:

Let’s say, you object to only the ones in — within Exhibit 5.

Fred N. Whichello:

No, Your Honor.

Other exhibits, Exhibit 6, for instance, is moderately obscene.

Exhibit 9 is very obscene and so on down the column.

William J. Brennan, Jr.:

What’s the distinction between moderately and very obscene?

[Laughter]

Fred N. Whichello:

[Laughter]

Well, that gets back to the whole somatic question, what is obscenity, Your Honor.

And — and may I answer that by taking just a moment to say this.

Fred N. Whichello:

I think all this business about the term being vague even as Judge Frank says, exquisitely vague is a complete somatic misunderstanding.

I think it confuses the proposition that some things are hard to tell on borderline cases with basic vagueness or — or indefiniteness.

Now, there’s a very fine illustration of that in the Solicitor General’s brief in this case.

He said “If you take a motion picture” such as Justice Douglas mentioned a moment ago which starts off innocuously, as all such pictures do that I’ve seen and ends up with something that is so obscene that even Mr. Fleishman would agree that it was obscene.

There is a point in the frames on that motion picture where it passes the line and becomes obscene.

There — there can be no question about that.

Hugo L. Black:

How do we find (Voice Overlap) —

Fred N. Whichello:

Exactly.

There would be endless debate as to just which frame but we would certainly arrive at a point eventually where everyone would agree.

Now, where there is a suggested application to a frame about which one differs, that is one question.

But when the — the evidence is — is very clear, then there’s no problem at all and that is indefiniteness.

Every man on the street knows what obscenity is.

William J. Brennan, Jr.:

Well, does this tell me now the answer to my question?

Fred N. Whichello:

I beg your pardon.

Pardon, if I didn’t —

William J. Brennan, Jr.:

Does that answer my question or was it —

Fred N. Whichello:

I thought it did.

William J. Brennan, Jr.:

— or is it —

Fred N. Whichello:

I maybe wrong.

William J. Brennan, Jr.:

All right.

That’s odd.

Fred N. Whichello:

I’m very sorry if I did.

Now, if the Court please, I would — I have five minutes more and I would like very much to do this because it answers a number of these contentions by the appellant.

And that is to read extracts from his advertisements that are in evidence.

Bearing in mind that certain pictures sent out to gynecologist for their library would not be obscene and the same picture was sent to high school boys, obviously, would by almost any reasonable person’s definition.

Here’s how he advertises his words that he know says have scientific value.

Then, by bigots who cannot stand the meaning of the word “sex” but available to you if you hurry.

Harold Burton:

Where are you reading from?

Fred N. Whichello:

I — I am reading at the moment from page 87 of the transcript of the record which is a summary by the trial court of Exhibit 3, if Your Honor please.

William O. Douglas:

Here’s — here’s a line that apparently somebody thought was obscenely, “leave the light on is just more cozy.”

William O. Douglas:

[Laughter]

Fred N. Whichello:

I think that would be debatable, Your Honor, in that case.

William O. Douglas:

That’s in the prosecution’s summary to the — the case.

Fred N. Whichello:

Another reads, note, we make every possible effort to prevent these books from reaching young people or persons who had used them for fulfillment of indecent desires.

Another, Wild French cartoons, you’ll giggle, you’ll gas and you’ll pop an eyebrow.

For these are the no holds by Frenchie Cartoons you’ve heard so much about.

Then another one, French love stories, racing and risky is only the French know how.

And I’ll submit to Your Honors that that is not directed at scientific investigators or anybody with any serious interest in that matter is obviously aimed only at the prurient and it is within the entire scoop of the appellant’s activities as — as reflected by this record that we must judge it.

Felix Frankfurter:

May I —

Fred N. Whichello:

Yes, Your Honor.

Felix Frankfurter:

As we move back, I read something that you make any endeavor not to reach beyond what —

Fred N. Whichello:

Yes, that part of the advertising, if Your Honor please.

Felix Frankfurter:

Is it?

Fred N. Whichello:

Yes, included with these other sentences and construed on the whole.

It is obviously —

Felix Frankfurter:

Well, I’ll just read it.

Fred N. Whichello:

— an attempt to be inviting.

Felix Frankfurter:

Just read that, would you?

Fred N. Whichello:

Yes, Your Honor, “No, we make every possible effort to prevent these books from reaching young people or persons who would use them for the fulfillment of indecent desire.”

Felix Frankfurter:

Now, where — where do you read this from?

I don’t mean the record.

Did they put this on the book or in (Voice Overlap) —

Fred N. Whichello:

That is — that is a — an advertising letter that the Court is referring to which I think is a part of peoples Exhibit 3 —

Felix Frankfurter:

And to whom was —

Fred N. Whichello:

— and it’s certainly an evidence.

Felix Frankfurter:

— to whom was the advertisement sent?

Fred N. Whichello:

The — the mailing list picked out were — were simply names and addresses all over the country, if Your Honor please.

I — I can certainly say they weren’t confined the doctor or medical men or anything of that sort.

William J. Brennan, Jr.:

Well, were they confined for the young or the old?

Fred N. Whichello:

I — nothing said as to the age, if Your Honor please, on the mailing list and — and what that effort is, of course, I don’t think it existed.

Fred N. Whichello:

My interpretation to that in the entire picture is that, again, it say, “Come on, send for these things because they are — to that degree indecent.

Hugo L. Black:

You had to be — you had to be savant.

Fred N. Whichello:

I beg your pardon?

William J. Brennan, Jr.:

You had to be savant to get a common question.

Fred N. Whichello:

Yes, exactly.

And one other thing I want to call Your Honors attention to is that there are pseudo masochistic things here in the form of cartoons that on the barest glance indicate no possible or other purpose than to interest sexual perverts of that type and seeing activity of that sort in the form of cartoons and couldn’t have the slightest social or educational value to anybody, anywhere, anytime.

Could you adjust to the work age, so to speak, could you indicate on page 5, what, in your opinion, is the most obscene item in the list?

Fred N. Whichello:

On page 5 of the transcript of record, Your Honor?

Well, no, that exhibit of yours on page — page 13.

Fred N. Whichello:

On page 13.

Yes —

(Voice Overlap) —

Fred N. Whichello:

— Your Honor.

I — I would say that the — questions and answers about oragenital contacts —

What item is that?

Fred N. Whichello:

That’s under Exhibit 5, item 1, 2, 3, 4 down.

Exhibit — yes, it’s advertised in Exhibit 3 by the way which is one, which I just read from which indicates it was not directed of any scientific investigator of any kind.

William J. Brennan, Jr.:

Is that the name of the book?

Fred N. Whichello:

Yes, the name of the particular book is “Questions and Answers about Oragenital Contacts.”

Now, may I say just one very brief word about this?

Appellant’s brief and many of the opinions in this case is construing similar statutes to this.

It seemed concern entirely with people who like these items and who sent for them and who are erotically aroused by them.

I want to submit to this Court that I have set forth in my brief six classes of people that I don’t think are ever any moral danger of being aroused by these things but whose disgust and reaction of this pleasure is something entitled of protection of the State under the police power that this in considering the — the social value of these materials compared briefs to free speech, this short — Court should consider these classes of people who do not like these things, who are disgusted by them and in the case of little children who are terrified by them.

As we mentioned in our brief, it’s a common experience with every prosecutor whoever prosecuted criminal cases.

That one little girl there are shown of obscene pictures by sex criminals are the preliminary step to their crime and it happens literally every week in the courts, the invariable reactions of that child is far from being erotic or being any danger to make her immoral.

She is simply terrified.

And we’ll submit that under those circumstances, those class of people should be considered by this Court.

Now, the rest of the time is reserved for Mr. Clarence Linn, a distinguished Assistant Attorney General of the State of California.

Thank you, Your Honor.

Earl Warren:

Mr. Linn.

Clarence A. Linn:

Thank you.

Counsel is worried about people who had good motives suffering under the statute at California.

A reading of the statute that counsel has referred to it, every person who willfully and lewdly, either rights opposes, stereotype and so forth.

Under that statute, no person exhibiting the statue of Hallebardier or Venus de Milo or any pictures of the classical nature exhibiting nude figures put under any circumstances to be affected by this statute.

Counsel didn’t mention — hasn’t mentioned yet but probably will.

The Chaucer’s Canterbury Tales could be prescribed by the statute.

I don’t know how anyone who take in addition ancient or modern of Chaucer’s Canterbury Tales and exhibit them lewdly.

It’s just — those are the things that — that don’t happen.

And they don’t happen under the California statute.

The Wepplo case has been referred too.

The case went off on the point that the Court had refused to instruct the jury properly on the question of whether these matters were exhibited lewdly.

Then, in dicta, the Court gave a good definition of what the Court thought would — would answer the statute.

You must consider the whole book and its purpose.

Otherwise, you have nothing to worry about in the case.

I think — probably, the question of definiteness and indefiniteness will come up later.

Before I come to that, the counsel — there were questions asked about the evidence in this case.

There was no objection raised in the lower court or here that the evidence is insufficient.

No question of that kind at all, the question briefed and submitted, not with the chandler that was exhibited in the New York case and Wepplo whether this statute such a standard by which a defendant do not know how to protect himself.

That’s all there is in the case here.

And also whether the First Amendment prohibit all interference with speech.

Now, that question has been answered in the Chaplinsky case and the quotation in a complete answer to — of that proposition allowing the broadest scope for the language and purposes of the Fourteenth Amendment.

It is well understood that the writers’ free speech is not absolute at all times on and under all circumstances.

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem.

These include the lewd and obscene, the profane and libels and the insulting or fighting words.

Those which by their very utterance inflict injury or tend to insight an immediate breach of the peace is that well observed that such utterances, and here is the essential part of that quotation.

Those utterances are no essential part of any exposition of ideas or of such slights social value as a step to truth but any benefit that may be derived from them is clearly out waived by the social interest in order and morality.

A complete answer by the late Mr. Justice Murphy to the argument as of May — as to the First Amendment is included in the Fourteenth.

And then, we come to the question of definiteness and that matter was to dispose of by Honorable Judge Frankfurter in this language.

In these matters, legislatures are confronted with a dilemma.

If a law is framed with narrow particularity, too easy opportunities are afforded to nullify the purposes of the legislation.

Clarence A. Linn:

What risks do the innocent run, a draft of paragraph, of being caught in a net not designed for them?

How important is the policy of the legislation so that those who really like to pursue innocent conduct are not likely to be caught unaware?

How easy is it to be explicitly particular?

How necessary is it to read a somewhat penumbral margin but sufficiently reveal by what is condemned to those who do not want to sail close to the shore of questionable conduct?

These are light questions confront legislative press.

Answers to these questions are not to be found in any legislative manual or in the work of great legislative craftsman.

They are not to be found in the opinions of this Court.

They are questions of judgment but purely within the responsibility and the competence of legislatures.

The discharge of that responsibility should not be set if not by abstract notions about indefiniteness.

Felix Frankfurter:

Do I — am I right in thinking that you read from — an opinion of mine, which could not commend itself to the Court?

Clarence A. Linn:

I — I don’t think that that language did not commend itself to the Court.

It was an opinion which commend itself to me and

I take that that is — that is — I won’t say that at — at the straw.

[Laughter]

That doesn’t — isn’t the straw into the whole broom.

Felix Frankfurter:

Do you think I could cooperate occasionally to make him adjust?

Clarence A. Linn:

[Laughter]

Oh, yes, Your Honor, it has and I think we all agree with that.

[Laughs]

Earl Warren:

Mr. Fleishman.

Stanley Fleishman:

If Your Honors please.

I’d like to come back to a statement Mr. Whichello made in passing certain in which he was discussing the Wepplo case.

And he said he’s only disagreement was — with it was that it didn’t go far enough.

And Your Honors would — will observe in the brief where actually he tended to push the effect of these statutes.

Now, I want to in the brief time left me — left to me make just one single point.

And that is that the State of California throughout, including today in Mr. Whichello’s argument, has contended that “The Picture of Conjugal Love”, this picture, is one of the most obscene books in the record.

It’s our contention, Your Honor, that this book happens to be a classic.

It’s just that simple.

And any standard that properly applied and the State said that they are properly applying the standards of this book, any standard which is properly applied and which will catch with in its net.

This book must be a bad standard and unconstitutional —

Felix Frankfurter:

What is the book?

Stanley Fleishman:

— standard.

Felix Frankfurter:

Which of the —

Stanley Fleishman:

“The Picture of Conjugal Love”, it’s one of those in Exhibit 5, Your Honor.

Who wrote it?

Stanley Fleishman:

A Dr.Venette.

It was written in 1688, Your Honor.

It was the first Kinsey report.

It was the first Kinsey report that is being condemned now.

I’d like it, Your Honor if you please —

Felix Frankfurter:

If you — if you — what you would do with the case in which conscience is abstract, a careful abstract of the Kinsey report is mailed exclusively to boys in the famous prep schools of the Untied States —

Stanley Fleishman:

I think —

Felix Frankfurter:

What would you say to that?

Stanley Fleishman:

I think a narrowly drawn statute addressed to children would be a statute, which would commend itself much more readily to me and to Your Honors.

Felix Frankfurter:

Well, the fact that’s a classic doesn’t answer all the questions, doesn’t it?

Stanley Fleishman:

No, it doesn’t but the — the —

Felix Frankfurter:

And the classic may has if reasonably brought out in debates in the House of Commons that classic may have illustrations that may add an element to the classic text and make a difference.

Stanley Fleishman:

If Your Honor please.

As — this statute is not limited to children.

It —

Felix Frankfurter:

I’m not saying it is.

Stanley Fleishman:

— applies with a reason.

Felix Frankfurter:

I’m just addressing myself to your suggestion that this book, which — in my ignorance I have not heard of, perhaps, in my undue purity, I have not heard of because it’s a classic, therefore, okay.

Stanley Fleishman:

If Your Honor please, this — this work illustrates to me one of the really difficult problems in this whole area.

We all approach it, if Your Honors please, with a prejudice.

I know it because when I had it on my first case, I was prejudice also.

But the fact of the matter is that in this area of sexual conduct, we are now undergoing great changes, the people of America.

And can’t the people think about —

Felix Frankfurter:

Because I take that as a — as a dogmatic proof or scientific proof.

Stanley Fleishman:

That —

Felix Frankfurter:

These statements that are made about what the American people think on sex.

Are those all established canons that came from Moses to Sinai by Kinsey?

Stanley Fleishman:

I believe that — that it’s — at least as established as many of the things that are asserted as being the basis for obscenity —

Felix Frankfurter:

That’s where — that’s where the fun come between the judiciary and the legislature comes in because they are susceptible of scientific proof.

This Court doesn’t sit here as college of purity.

Stanley Fleishman:

But if Your Honor please, these three legislatures doesn’t draw the standards for obscenity, the judge and the jury draw it.

And each case, the standard is made, the law is made for that case.

That’s not the function of courts.

Felix Frankfurter:

So, it isn’t negligence.

So, it is the difference between manslaughter and murder.

So, it isn’t Sherman law cases.

Stanley Fleishman:

If Your Honor please, in criminal law cases, the standard has to be more specific.

Felix Frankfurter:

But I’m talking about the Sherman law case, Nash against United States where —

Stanley Fleishman:

I understand that.

Felix Frankfurter:

— where Justice Holmes for this Court said, well, I suppose would put an end to this argument that simply because they’re on the risk of what a jury may have to decide doesn’t mean the legislature have exceeded the constitutional speed limit.

Stanley Fleishman:

I believe the International Harvester case says though that when something is not knowable that’s a different situation.

This is not knowable in the Nash case —

Felix Frankfurter:

Although, it’s been on the statute book of every State of this union and of the United States for — every State of this union for 150 years and on the statutes of United States for a 100 years only is not quite.

Stanley Fleishman:

If Your Honor please, I —

Felix Frankfurter:

We just discovered that there is no content to it because it’s difficult to apply.

Stanley Fleishman:

I say the California standard and that’s all that we have undertaken, Your Honor, the California statute which says that a defendant must know in advance that this book of “Conjugal Love” is going to so arouse people and incite such bad sexual thoughts in them that they are going to be corrupted and deprave.

I say that is unknowable by everyone in this courtroom.

It is unknowable fact.