Alexander v. Virginia

LOCATION: Board of Education, School District No. 1

DOCKET NO.: 71-1315
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Supreme Court of Virginia

CITATION: 413 US 836 (1973)
ARGUED: Oct 19, 1972
DECIDED: Jun 25, 1973

James E. Kulp - for respondent
Stanley M. Dietz - for petitioners

Facts of the case


Media for Alexander v. Virginia

Audio Transcription for Oral Argument - October 19, 1972 in Alexander v. Virginia

Warren E. Burger:

We’ll hear arguments next in number 71-1315, Alexander against Virginia.

Mr. Dietz.

Stanley M. Dietz:

Mr. Chief Justice and may it please the Court.

This is a third act in your trilogy of obscenity cases, but I am not going to follow the line urged by Mr. Fleishman and Mr. Brown-- excuse me, by Mr. Smith.

And that is because, as I view the exhibits involved in my case and as all of the testimony that was produced by the Commonwealth and by the defense that our material did not involved hardcore pornography, which brings me to think about the Roth case because the Roth case involved hardcore pornography.

The case -- certiorari was granted on the limited point of whether hardcore pornography was protected by the First Amendment, and you ruled that it was not.

In the Roth case, as I understand it, the Post Office Department submitted exhibits, examples of what hardcore pornography really was.

William J. Brennan, Jr.:

Well, Mr. Dietz, my recollection of Roth was that the concession was that the materials involved were obscene, whether hardcore or what, it wasn’t suggested.

We didn’t even have the exhibits here, and the concession I think is, as it appears in the footnote in Roth, simply that the materials there involved were obscene and that concession was made to present the question whether obscenity was protected by the First Amendment.

And, you keep talking about hardcore pornography.

I thought that was, I think, a phrase that came in much later.

Stanley M. Dietz:

Well, because Your Honor wrote the opinion for the Court, I was not involved in that case so I --

William J. Brennan, Jr.:

Well, you don’t find the words “hardcore pornography” anywhere in the opinion, do you?

Stanley M. Dietz:

No, sir, but I understood that there were exhibits submitted of hardcore pornography.

William J. Brennan, Jr.:

I know nothing about it.

We had no exhibits here in that case.

Stanley M. Dietz:

I stand and correct it.

Actually, I felt that in this pornography field it had really boiled down over the years to interpreting the Roth case to mean hardcore pornography.

William J. Brennan, Jr.:

Well, I think that’s a different argument.

Stanley M. Dietz:

Yes, sir.

Of course, in the very recent case, Reidel, you -- the Court, again, stated that hardcore pornography or that obscenity was not constitutionally protected.

Well, my argument is that the materials in this case, if you compare them with other materials with this -- which this Court has had under consideration in such matters as Weiner and Dolan (ph) versus California, which depict only simulated sexual activities, simulated sexual activities which I would define as possibly inches or possibly seconds away from the actual consummation, but leaving to the imagination the actual graphic depiction, the actual passage of the scene, and I would urge this Court to draw the line at that line at that place, differentiating between simulated sexual activities which should be constitutionally protected if you have the other elements involved for adults only and without any obtrusive advertising, which is the school of law which has mushroomed since the decision of this Court in Redrup versus New York.

Now, in this case that I have today, we have a statute in the State of Virginia.

It’s a civil statute, although it’s part of the Criminal Code, and it provides for any person, state’s attorney or commonwealth attorney, any person, any citizen to bring an action to declare a book obscene.

It specifically prohibits a jury trial.

I, therefore, say it is unconstitutional, because in an obscenity case I feel a jury trial is mandated by the First Amendment.

William H. Rehnquist:

What’s the First Amendment got to do with jury trials, at least on its face?

Stanley M. Dietz:

Well, I recognize that the First Amendment does not spell out the jury trial, but if you take the Roth case definition of what is obscenity and what is not constitutionally protected under the First Amendment, then it must be decided by community standards and the community is the jury.

William H. Rehnquist:

You want not only a jury but a jury of the kind they’ve got 500 years ago where the jury brings its own knowledge to decide whether to hear the evidence.

Stanley M. Dietz:

No, sir.