LOCATION: Charlotte-Mecklenburg School District
DOCKET NO.: 55
DECIDED BY: Burger Court (1970-1971)
CITATION: 400 US 410 (1971)
ARGUED: Nov 10, 1970
DECIDED: Jan 14, 1971
Facts of the case
Media for Blount v. Rizzi
Audio Transcription for Oral Argument - November 10, 1970 in Blount v. Rizzi
Warren E. Burger:
We'll hear arguments in number 58, United States against the Book Bin.
Mr. Strauss, you may proceed whenever you are ready.
Peter L. Strauss:
If I may just --Mr. Chief Justice and may it please the Court.
Obviously, this case concerns the same legal questions and so I will be making a continuous argument in that sense, but if I may just a moment, correct a couple that I think a factual overstatement regarding the case just concluded.
My understanding is that the stays which are in effect concerning the mail received by the mailbox in this case were consented to or at least not opposed by Mr. Fleishman on behalf of his client and -- well, he may have given a contrary impression.
The original orders in this case came on as a result of unsolicited advertisement which the Post Inspectors received from the mailbox.
Now proceeding to the Book Bin then I think my statement may be brief.
Appellee advertises and sells through the mail and like the mailbox, a substantial number of publications of the character suggested by the advertising exhibit reproduced at pages 58 and 59 of the record.
A Section 4006 proceeding was brought against the Book Bin alleging that one of these publications entitled Novels of France was obscene and on June 6, 1969, the government sought a Section 4007 protective order in United States District Court for the Northern District of Georgia.
Appellees counterclaimed for an injunction forbidding enforcement of Sections 4006 and 4007.
A three-judge District Court was convened and granted the counterclaim.
The Court found that the procedures for examining mail possibly connected with the challenged publication were overbroad and that the procedures generally failed to meet the standards of Freedman versus Maryland.
On the government's appeal, this Court noted probable jurisdiction on March 2 of this year.
If I may go -- turn first and I realize Mr. Justice Harlan that your question regarding the scope of relief in this case remains open and is perhaps the most serious of the questions in this case, but I do want first to examine briefly the other procedures of Section 4007, the operative procedures as it were.
The procedures that put in an operation because the scope of relief question is really shared with Section 4006.
Section 4007 as I stated at the beginning of the prior case is basically a reference to Rule 65 of the Federal Rules of Civil Procedure.
It entitles the government to get interim relief against the distribution of the magazines of this type or against fraudulent enterprises and circumstances in which such relief could be obtained under Rule 65.
That means among other things that the proceedings cannot be ex-parte and therefore, the consideration, which principally I think animated this Court's decision or the concern I suppose, which principally animated this Court's decision in Kingsley Books and subsequent opinions construing that case as absent.
In addition, there is the necessity of showing a probable cause in two respects.
First to believe that the magazines are obscene and that would be a judicial finding and second a probable cause to believe that indeed, the government will be irreparably injured, that there is some need for emergency relief and Kingsley Books spoke to both of those issues.
The Court said at page 440 of volume 354 of the report, “Authorization of an injunction pendente lite as part of this scheme during the period within which the issue of obscenity must be promptly tried and adjudicated in an adversary proceeding for which adequate notice, judicial hearing and fair determination are assured is a safeguard against frustration of the public interest in effectuating the judicial condemnation of obscene matter.”
It is a break on the temptation to exploit a filthy business offered by the limited hazards of piecemeal prosecutions sale by sale of a publication already condemned as obscene.
And I think Mr. Justice Harlan in his concurrence characterizing it accurately in his dissent rather in quantity of books, stated the grounds that were important to that decision and into the distinction of that decision that was made by this Court in the Market case -- excuse me, on the Marcus case.
First, that the court could exercise an independent check on the judgment of the prosecuting authority at the point before any restraint took place, second that the restraints ran only against the named publication, third, that no extensive restraints were imposed before an adversary proceeding and fourth, that the New York code required decision within two days of the trial on the obscenity question.
Now, the only issue regarding those four statements in this case I believe is the matter of time and it is the government's position basically that that question is adequately controlled by the power which a court of equity always retains to modify its judgment when subsequent events show that indeed, the person against whom a temporary restraint runs is being improperly or unfairly injured by the pendency of the proceedings by the continuation of the relief during a period of undue delay.
In that respect, I would like to clear up some confusion which I think may exist regarding the relationship that we see between Section 4007 and 4006.
4006 in no event takes effect before a final administrative decision has been reached.
Once a final administrative decision has been reached, it does take effect of its own force and without need for enforcement.
The person against whom the order is entered may then seek review as was done in these cases essentially and the issue then is what is the affect of that petition for review.
The government's position, principle position is that that petition for review operates to convert the Section 4006 order into what is in effect a Section 4007 order, an order impounding the mail for the duration of the proceedings to challenge the administrative decision.