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


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.

Stanley M. Dietz:

I would follow the guidance of late Justice Frankfurter in Smith versus California when he said that it’s a jury question that you have to introduce expert testimony of these points of prurient interest and community standards to guide the jury in their deliberations.

William H. Rehnquist:

But that was a criminal case, wasn’t it?

Stanley M. Dietz:

Smith versus California was a criminal case.

I recognize the distinction, and Roth was a criminal case.

At the same time, this Court decided Kingsley Books case, Kingsley Books versus New York, Regents of New York.

That case was a civil case and it did not raise this issue of a jury trial because, in that case, a jury was not requested.

I believe that Mr. Justice Frankfurter wrote the opinion for the Court and noted that advisory jury was available in New York but none was requested, but in my case, I have, right from the outset, requested a jury trial but this state statute specifically prohibits jury determination.

And, through my experience in defending, representing this particular company, we have many, many instances where a jury looks at obscenity exhibits differently than a judge alone.

You have pending in this Court a petition for certiorari, another case that I had, of Village Books versus Marshall where a judge viewed a book and said that was obscene.

He issued an injunction against it in the State of Maryland.

That same book tried before a jury, three different jurors, three different jurisdictions, acquitted because that was he criminal cases and I recognize there’s a different standard of proof involved.

But, I feel very strongly that First Amendment case, obscenity case, a jury trial should be allowed where prayed.

The second point that I claim this statute is unconstitutional is that it specifically provides for the community standard to be a city or a county.

It doesn’t even limit the community standard the way that, in the case that Mr. Fleishman argued to the State of California, it’s not the State of Virginia.

It’s evidence of community standards in that city, in that county.

This is — of course it’s very easy for the state to say “well, how else can we get experts?”

There are no things as an expert on national community standards.

So, what are we faced with?

We are faced with a so-called expert who, as we have in the record of this case, who had been part of a group that studied obscenity a year-and-a half before in that area and who had spoken with different people in various civic groups which consisted of the Navy Wives Club and who hadn’t been in an adult bookstore in a year or more, which I use the phrase “adult bookstore” to be referred to in the California case as “dirty bookstores.”

Well, I take issue with that.

Adult bookstores are stores that only trade with adults, who do not allow juvenile’s entrance and it’s so-stipulated in our case that we do not do business with juveniles.

All the states or nearly all the states have statutes.

The District of Columbia does, the State of Maryland does, where they differentiate a different penalties involved if you deal with juveniles in the obscenity field, but that was not an issue.

They stipulate in our case no juveniles involved.

So, it brings us back to the Community of Portsmouth and, I might say, this is not a situation where you have in Los Angeles some 250 adult bookstores.

This bookstore was the one and only bookstore in the City of Portsmouth.

I don’t know the exact population.

I think it’s about 70,000-75,000 people, but this is the only bookstore — adult bookstore in that city.

Warren E. Burger:

Do you think it makes a difference under the First Amendment whether they have 1 or 250?

Stanley M. Dietz:

No, sir.

Stanley M. Dietz:

I mention not, because I was discussing community standards and, earlier, I heard in argument — statement that, are we to apply the community from some small city in Montana as a standard as compared with the entire State of California.

California is covered with adult bookstores.

There are not quite so many in the Tidewater area.

There are approximately 10 that I am aware of, but only 1 in the City of Portsmouth.

Now, our community standards is — might be argued that the majority of the people in the community don’t go into these bookstores and don’t make purchases from these bookstores.

Well, I would then argue to this Court that this is quite true.

The majority of the people are not costumers in my client’s bookstore, but the First Amendment was not made or created to protect only the majority view but I think, principally, the minority view point.

That’s the one where you have under the First Amendment the right to get up and say “well, I don’t agree with all you people.

This is my point of view.”

And that’s what’s being done in this bookstore in the City of Portsmouth.

Now, if I might, at this point, refer to another element of the issue of obscenity, they claim that and the judge, in his opinion, found these books to be patently offensive, patently offensive to whom?

Certainly not to the customers who go into that bookstore.

They are not forced in.

We don’t have sidewalks that pop them into the store as they walk by.

An adult bookstore, and particularly the adult bookstore in Portsmouth has the windows blocked out.

You cannot see inside and there are big signs, “Adult Bookstore, no minors allowed”.

And, if anyone comes into the store who might be close to the age of majority, he must demonstrate his credentials to prove that he is, in fact, adult.

Now, the second point that I wanted to claim as far as the statute being unconstitutional is that it affects a prior restraint.

I won’t spend too much time on this point because they never, in fact, got the restraint off the ground.

They, in this case, they went into the bookstore, took a list of all of the books that had anything to do with sex, issued a subpoena duces tecum to the management of the store to appear in Court with a copy of the books.

The people appeared and the books were taken.

Following which, the– two of the judges reviewed the books and issued a show cause order and the Commonwealth attorney filed a petition asking that all of these books be declared obscene.

Now, at that time, they also filed a notice to the two employees of the bookstore.

I think three or four days later, they were going to ask the Court for a temporary restraining order.

This is where we claim there would have been a prior restraint.

It would have been granted had not we gone into Federal Court to ask for an injunction.

Then, the motion for restraining order was continued indefinitely and we never actually did have a hearing on the motion for restraining order, but this restraining order would have been in effect.

There is absolutely no time limit as this Court has held constitutionally mandated in obscenity statutes of this nature.

There is no time limit other than the general boundary that it should be heard as soon as possible, as soon as it’s expedient.

As it turned out, in this case, these proceedings started in May and the hearing was held in November.

Stanley M. Dietz:

The decision did not come until December of the same year.

Now, in this Court’s granting of certiorari in this case, you added as an issue whether or not these sexually oriented materials are constitutionally protected.

Now, we feel this case to be the perfect vehicle for the argument that, following Redrup, this material is constitutionally protected.

Firs of all, because it does not involve any material which could be considered hardcore pornography, and definition of hardcore pornography of course we draw from the opinion of Justice Stewart which, I believe, was actually the definition of the United States Government in US v. Ginsberg.

And, in all of our materials, we do not have that element of graphic depiction of sexual activities.

The testimony that was produced by the state of many of their witnesses said that this is not hardcore pornography.

One of them said it would only be obscene for juveniles, for 19-year-olders.

So, that was a gentleman who was a part time police officer and part time printer who testified as an expert for the State of Virginia.

I would like to reserve some time for rebuttal if I may.

Warren E. Burger:

Very well, Mr. Dietz.

Mr. Kulp.

James E. Kulp:

Mr. Chief Justice and may it please the members of the Court.

The downside of this case, it must be borne in mind, that the type of procedure we’re talking about involved in this case is a civil procedure in realm as opposed to a criminal prosecution.

The procedures in Virginia under this civil procedure provides for no criminal sanctions whatsoever.

It’s merely an action against the books which are alleged to be obscene.

Potter Stewart:

So there’s nothing about conduct in this case?

James E. Kulp:

No, sir.

Potter Stewart:

It was just the suppression on the book, sales of books.

James E. Kulp:

That’s correct.

This statute is, of course, a creature of statute and was unknown in the common law.

It’s long been established that neither the state nor the federal constitution guarantees or preserves a right to jury trial except in those cases where it existed when the constitutions were adopted.

The Fifth and Sixth Amendments deal exclusively with criminal proceedings and the Seventh Amendment, while dealing with civil actions, pertains to suits at common law and where bail exceeds $20.

In Kingsley Books versus Brown, this Court upheld a New York statute which is very similar to the statute involved in this case, and a determination in the New York case was for a procedure without a jury.

And, this Court held that it was not for this Court to limit the state in resorting to various weapons and armory of the law and it can use the criminal, civil, or some combination of these two procedures.

Warren E. Burger:

Mr. Kulp, let me ask you a question.

Suppose the book dealer had 1,000 of the particular book that came under the ban of this statue in the view of the Commonwealth and you proceeded against one of them in the in rem proceeding, the book — against the book itself.

Would it be a violation of the statute if this dealer gave the balance of the books away for nothing instead of selling them?

James E. Kulp:

No, sir.

I don’t believe so, because the statutes, as I recall and believe to be in Virginia, is that if sale or some commercialism involved, whether it was a transfer of this, I don’t believe that would come under the statute in this case.

Warren E. Burger:

Can he give them away to minors?

James E. Kulp:

No, sir.

I don’t think he can do that.

There’s a specific statute which would prohibit the giving of the articles to minors.

I might have to back up.

I think that, probably, the criminal statute in Virginia might even prohibit the giving of these books to another person.

Now, the question about the prior restraint, of course, as this Court knows and the record shows, there was no prior restraint in this case and, as Mr. Dietz says, advised the Court.

The one thing I would like to call the Court’s attention is the fact that the record will show, it is not in the appendix but in the record, the trial record itself, it will show that Mr. Dietz agreed to continue this case.

So, this question of when the case started and when it ended is not exactly a matter of time that is really for this Court to consider in the prior restraint aspects, because, as this Court indicated in 37 Photographs, it said that no seizure or forfeiture will be invalidated for delay where the claimant is responsible for extending either the administrative action or judicial determination beyond allowable time limits.

So, I simply submit that, in this case, Mr. Dietz did not prosper any hearing in this matter and, in fact, going in and requested a continuance.

William J. Brennan, Jr.:

Mr. Kulp, when the state prevails in one of these proceedings, what happens to the books?

James E. Kulp:

The books are permanently enjoined, as they were in this case, from being sold.

Byron R. White:

But they are —

James E. Kulp:

There’s no destruction statute involved.

Now, as to the community standards, of course, this statute sets a community standard being the community wherein —

Byron R. White:

Is that to say that the state doesn’t keep them.

They’d return them.

James E. Kulp:

No, sir.

Byron R. White:


And the bookseller is simply subject to an injunction.

James E. Kulp:

That’s correct and if he violates it, of course, could be subject to a contempt of court.

William J. Brennan, Jr.:

Well, as I had interrupted, what, 339 different books involved in this case?

James E. Kulp:

Yes, sir.

They were all single copies that were brought in.

Byron R. White:

Are these whether hard-covered book or —

James E. Kulp:

Most of them soft-covered.

I don’t think there were any hard-covered books.

They were large more like — they’re really magazines as opposed to little pocketbooks.

William J. Brennan, Jr.:


James E. Kulp:


Byron R. White:

So this ends up as an injunction against some kind of an attempt to sale.

James E. Kulp:

Yes sir, it is —

Byron R. White:

Is that all?

Is that the only —

James E. Kulp:

Well, it’s against the books and it sales that —

Byron R. White:

They may not be sold?

James E. Kulp:

They may not be sold, that’s correct.

Thurgood Marshall:

Can he live the store open as a library?

James E. Kulp:

Well, I think that he might then subject himself to a criminal penalty.

Thurgood Marshall:

About what?

James E. Kulp:

If the books were sold.

Thurgood Marshall:

I didn’t say sell it, just leave it open.

If anybody wants, can come in, can read them.

James E. Kulp:

I would say, there’s no probably no statute in Virginia which would prohibit that.

Warren E. Burger:

You would disguise this all along as an in rem procedure, but of course an injunction is not an in rem procedure, is it?

James E. Kulp:

No, sir.

It’s — actually it’s an injunctive procedure but it goes against the books as against an — as opposed to a person.

The procedure is —

Byron R. White:

The injunction — did the injunction name anybody?

James E. Kulp:

Yes sir, it names the people who are the producers or the publishers of these books.

Byron R. White:

But it enjoins them, doesn’t it?

James E. Kulp:

Yes, sir.

It enjoins them from selling these particular books which have been listed in the —

Thurgood Marshall:

How do you get in rem out of that?

In rem is a person there.

James E. Kulp:


Well, I think that the procedure does allow for the, and calls for the injunction for these persons not to sell these books which have been judged to be obscene.

William H. Rehnquist:

Under Virginia procedure, it’s a possible offense for someone else who had no connection with the people who are defending against the state in the first action?

Could those people re-litigate in some other Court the question of whether they were obscene, because they weren’t parties at the first action or would the books themselves be branded as obscene by virtue of the in rem character?

James E. Kulp:

No, I think that, probably, they would be able to litigate it in some other situation.

Warren E. Burger:

Well, wouldn’t it be res adjudicata as to the book itself if it’s an in rem action as to the first stage?

James E. Kulp:

Well, I think it would be a decision to the effect that those books have been declared obscene, but I don’t think that the injunction would only apply to those people who were brought into Court as parties or who were served with notice.

Warren E. Burger:

Is this an ancient statute or —

James E. Kulp:

No, sir.

This is fairly recent.

I don’t know.

I can — I don’t — it’s not within the last two or three years, but I think it was in 1960 if I’m not mistaken, somewhere along that time.

Potter Stewart:

We’re talking about 18.1-236 that’s on Page 19 (a) of the —

James E. Kulp:

Yes, sir.

Potter Stewart:

Certiorari petition.

It does say that the order to show cause shall be directed against the book by name or description.

Then, it goes on to say authorizing the Court to issue a temporary restraining order against the sale or distribution of the book alleged to be obscene.

Now, does that order also run against the book so it makes anybody who sells it anywhere in the jurisdiction of the Court –

James E. Kulp:

I don’t believe so, Your Honor.

Potter Stewart:

Violate the order.

William J. Brennan, Jr.:

Well, it says at Page 19 (a), the order of the Court below was in accordance with its findings that the magazines listed are declared obscene and the said Alexander Collier and Village books Inc. Media Arts and Guild Quest Limited are hereby restraint from either the sale or commercial disposition of the forementioned magazines.

That’s the order before us, isn’t it?

James E. Kulp:

Yes, sir.

In a notice on Page 19 (a) that the statute was — on 22 (a), was enacted a Chapter 233 of the Acts presumed at 1960.

As to the community standards, the First Amendment, in clear language, states that Congress shall make no law abridging the freedom of speech or press.

There’s no specific mention of the states in this amendment and the freedom of speech has been made applicable to the states through the Due Process Clause of the Fourteenth Amendment.

Therefore, what the states may constitutionally do in this area must be judged upon the language of the Fourteenth Amendment and not upon the language of the First Amendment.

The question arises as how would a national standard be determined?

Would each locality have to have its own set of “experts” to go around the country in order to ascertain what material is acceptable?

How many people would be required to be interviewed?

Would they be required to go into the rural areas as well as to the large metropolitan areas?

If a national standard is required, we will be relegated to the type expert which the appellants presented in this case.

It appears that this Dr. Hamlin, who was in the Georgia case, also appeared in this case.

We get experts from out of state who come into town on the day of the trial and, in this case, the record shows that they spent no more than 10 or 15 minutes thumbing through not more than half of the books which were involved in this case and then making their opinions known to the Court.

We compare this to what the state experts did on the other hand.

These people are all local people.

James E. Kulp:

They had examined each book thoroughly.

They had knowledge of what the customs were and what the community standards were in Portsmouth, Virginia, and as Former Chief Justice Warren said in Jacobellis, he said he didn’t believe that there was a provable standard and that this Court had not been able to annunciate one, and it would be unreasonable to expect the local Courts to define one.

As this Court said in Missouri versus Lewis, the Fourteenth Amendment does not profess to secure all persons in the United States to benefit the same laws and the same remedies.

Great diversities, in this respect, may exist in two states, separated only by an imaginary line.

When we get to the question which this Court asked counsel to brief and argue, the answer to the question of whether the display of any sexually oriented pictorial magazines for commercial sale were surrounded by notice to the public of that nature and by reasonable protection against exposure of the magazines to juveniles, the answer, I believe, to this question depends upon whether we’re talking about sexually oriented pictorial magazines which are obscene.

If the magazines are, in fact, obscene, then there is not constitutional protection for the reason that in Roth this Court held that obscenity was not within the area of constitutionally protected speech.

This question was clearly answered, I believe, in the negative in United States versus Reidel decided in May of last year.

In Reidel, the jurisdictional statement was whether the government could constitutionally prohibit the distribution by the mails of obscene materials to willing recipients who state that they are adults.

To which question, this Court responded by holding that the government could prohibit discrimination of obscene material through the mails.

This Court expressly rejected the argument that Stanley, somehow, limited Roth and that the state and federal governments were constitutionally limited to prohibiting distribution of obscene materials to juveniles and unconsenting adults.

Stanley recognized that the states retain broad powers to regulate obscenity.

There’s being a espouse to proposition that since the President’s Commission on obscenity found no cause of relationship between pornography in any social conduct and sex crimes, then the states have no interest in protecting consenting adults from pornography.

The position of the Commonwealth of Virginia is that this argument completely takes away from the states the right to reject the findings and conclusions of the President’s Commission.

The Commission’s report has not only been rejected by the President, by the Senate, it has been criticized by the scholars.

The Commission’s study did not explore the long range effects of frequent exposure to the obscene.

At the time the Commission was concluding that public opinion did not support any legal restrictions on the right of adults to read or view explicit sexual material, the Gallup Opinion Index found 80% of the adult population bearing stricter laws on pornography and a Harris Poll, at the same time, found 76% of the population want pornography legislature — literature outlawed.

The Commission also reported that in Copenhagen, the rape — a reported rape declined during the period in which pornography has been widely available.

Therefore, the Commission concluded that there was no cause or connection between sex crimes and pornography.

However, the Commission completely dismissed the fact that, in this country, adult arrest or forceful rapes increased 50% in the last decade when the availability of erotic material also increased.

The obscenity report published by Stein & Day Publishers in 1970 found evidence of a demonstrable correlation between rising obscenity statistics and rising crime rates.

Within the last few weeks, a British study found that British society was threatened by the growth of pornography.

Commonsense does suggest that if good literature can ennoble its readers, fowl literature can degrade them and that to depersonalize and derational — romanticize sex may be damaging and certainly cannot be helpful to the development of happy human relationships.

The people who are presently saying that a book does not corrupt are the very same ones who seemed convinced that displays of violence on television do indeed have the power to corrupt.

The position of the Commonwealth is that in the question of the area of obscenity that this Court has specifically held in Roth and reiterated in Stanley and reiterated once again in Reidel and 37 Photographs that obscenity is not protected by the First Amendment and while it may true, and while it may be proven true at some time, that certain areas in this law should be changed.

It’s the position of the Commonwealth that this matter rests in the hands of the legislature.

And, we would ask this Court to affirm the judgment.

Warren E. Burger:

Thank you, Mr. Kulp.

Mr. Dietz, do you have anything further?

Stanley M. Dietz:

If it please the Court, I’d like the opportunity to answer a few of the questions that the Court posed to Mr. Kulp.

Mr. Chief Justice Burger, I believe you asked the question regarding giving away of this material of this statute which appears on 19 (a) that deals only, in paragraph one, whenever he has reasonable cause to believe that any person is engaged in the sale or commercial distribution of any obscene book, etcetera, any citizen or the attorney for the commonwealth of any county, etcetera, may bring it to the attention of the Court.

Stanley M. Dietz:

Now, that is particularly interesting, because it says any citizen who has an interest and then we get to the issue of this injunction, because if you will consider the very final paragraph of the statute as it appears on 22 (a) of the petition for certiorari, paragraph 13, “It is expressly provided that the petition and proceeding, authorized under this article, relating to books alleged to be obscene, shall be intended only to establish scienter in, cases where the establishment of such scienter is thought to be useful or desirable by the petitioner.”

“Only to establish scienter,” I cannot visualize how any common citizen who might be offended by the sale of a book would be concerned about scienter —

Potter Stewart:

What do you suppose that means?

What do you suppose that subparagraph 13 means?

Stanley M. Dietz:

I believe that they intended it to open the door for them to use this in a criminal prosecution.

I argued in the Supreme Court of Appeals in Virginia that this statute is vague and unconstitutional.

It contends no provision for granting an injunction, no provision for an injunction.

It only contends a provision for a temporary restraining order, and that is in paragraph 5.

And it does have, as its valid purpose, only to prove or establish scienter whenever it might be considered important by — to the petitioner.

And, of course, in this case in the lower court and in this brief, I argued that the judge overstepped his balance in even granting this permanent injunction and he never granted a temporary restraining order.

Warren E. Burger:

Well, is the temporary restraining order, procedurally under this statute, directed at the period between the seizure of the book and the determination of its quality?

Stanley M. Dietz:

I would have to assume so.

It does not so-state, but it does say that this can be granted upon four days notice after the filing of the original show cause order.

Now, the show cause order has to be advertised in a newspaper for three weeks.

Following which, the respondents or any interested party has the right to come in and defend.

As it occurred in this case, because this was a bookstore that had counsel, I immediately came into the case.

As a matter of fact, we had a counsel even at the time that they served the subpoena duces tecum and when we produced the books in the Court.

Warren E. Burger:

Well, was the temporary restraining order, in effect, between the date of the seizure and the date of the hearing?

Stanley M. Dietz:

It was never issued.

The motion was never granted.

Now, I might clarify this.

Mr. Kulp said that I agreed to a continuance.

Actually, I believe that if you read the record carefully, I appeared in Court on the day that the temporary restraining order was to have been heard and I asked — first, I asked them for a stay, which was denied, then, I asked him to just continue it indefinitely, which was granted, because — and that was not the trial, that was only the temporary restraining order feature, because I had filed an action in the United States District Court asking for an injunction to prevent — prohibit any further proceedings in the Court of Hewstings, and —

Potter Stewart:

So all of these —

Stanley M. Dietz:

That’s what stopped —

Potter Stewart:

Excuse me.

Stanley M. Dietz:

Yes, sir.

Potter Stewart:

Excuse me, I didn’t mean to — I’m sorry.

I didn’t —

Stanley M. Dietz:

Well, I say that’s what stopped the Court from issuing the temporary restraining order.

Potter Stewart:

But under this statute, all you — all that the — it’s ultimately secured if there’s a finding that the book is obscene.

It is a kind of a declaratory judgment, is that it?

Stanley M. Dietz:

Well —

Potter Stewart:

That’s the way it looks to me.

Stanley M. Dietz:

Well, I wouldn’t say a declaratory judgment — well, right, a declaratory judgment, but it says it’s only to be used to establish scienter when anybody should have any further use for it.

So, I would assume that if they brought — if they went ahead and sold these books while a temporary restraining order was in effect —

Potter Stewart:

Or after such a declaratory judgment.

Stanley M. Dietz:

Or after judgment, then they could come into Court and get around the — what this Court said they must prove in Smith versus California as far as scienter or knowledge of the obscene nature of the material by a bookseller.

Potter Stewart:

Yes, but there is no — ultimately there is no — this statute itself doesn’t either — it doesn’t impose any restraint ultimately on the sale.

It’s just a judgment.

The Court shall order the Clerk of the Court to enter judgment that the book is obscene.

That’s the end of it.

Stanley M. Dietz:

That’s according to the statute but, as it was applied and had the entire order printed in the petition for certiorari on Page 19 (a), the judge did issue a permanent injunction against my client and restrain them from either the sale or commercial distribution of all of the magazines, and that — all of the magazines, that’s an interesting point because — and I argued to the Court below that some of these magazines had been considered by this Court in different cases, but he’s still enjoying those as well, even though this Court had applied constitutional protection to these magazines.

Warren E. Burger:

To the specific issues or just to the same magazine on some other issue?

Stanley M. Dietz:

As it so happen, this was the same magazine.

I’m not sure of the specific issue, but if it —

Warren E. Burger:

Well, that would be the whole story, wouldn’t it?

Stanley M. Dietz:

Yes sir, but if you look at the magazine involved, you just compare it and the magazines were girly magazines and the only thing that changes is the face of the girl.

The position, everything else, is the same.

Potter Stewart:

And the Supreme Court of your state affirmed that permanent injunction?

Stanley M. Dietz:

The Supreme Court of Virginia inferred the entire proceedings of the Court below, and I argued this point in the Supreme Court of Appeals of Virginia.

William H. Rehnquist:

And they said, didn’t they, that where something was found to be obscene, it was perfectly proper to enjoin them?

Stanley M. Dietz:

I don’t —

William H. Rehnquist:

It fits to that effect, didn’t it?

Stanley M. Dietz:

Well, the general effect was they sustained the lower court.

So, they sustained the injunction.

William H. Rehnquist:

Yes, but they didn’t pass — they did say “where something is found to be obscene, under Virginia law it’s proper to enjoin them.”

Stanley M. Dietz:

I believe that’s a general effect, Justice Rehnquist, but– well, I’ll say no more.

That’s what they did.

I don’t believe that they acted within their jurisdiction in doing that anymore than Judge Bane acted within his jurisdiction under this statute in issuing the injunction.

Stanley M. Dietz:

This, as was argued by Mr. Kulp, this is a creature of statute only.

There’s no common law right to declare a book obscene, non-mailable.

It’s only by a statute and this judge exceeded what the legislature intended that he had the power to do in his authorization.

I argued that this statute was unconstitutionally vague.

I have that in my brief and that is the prime pertinent reason and, I believe, my time has expired.

Unless there are any other questions by any member of the Court, I’ll submit.

Warren E. Burger:

Thank you, Mr. Dietz.

Mr. Kulp, your argument is submitted, but if there is any Virginia statute which authorizes a permanent injunction, it has escaped our attention in the briefs and you may call our attention to it, if there is such, sending a copy of course to your friend.

I’m not suggesting you submit additional argument but merely a citation if any.

James E. Kulp:

I believe I might be able to answer that right now.

To my knowledge, there is no statute which authorizes the permanent injunction, which the Court declared in this case, but the Supreme Court of Virginia in its decision which is shown on Page 2 (a) of the petition for writ of certiorari held that if the material is judged to be obscene, then it is perfectly proper to restrain its sale or distribution.

So, this is the statutory construction put on it by the Supreme Court of Virginia.

Warren E. Burger:

Very well, thank you.

The case is submitted.