Butler v. Michigan – Oral Argument – October 16, 1956 (Part 1)

Media for Butler v. Michigan

Audio Transcription for Oral Argument – October 16, 1956 (Part 2) in Butler v. Michigan

del

Earl Warren:

Number 16, Alfred E. Butler versus the State of Michigan.

Mr. Robbins.

Manuel Lee Robbins:

Yes, sir.

May it please the Court.

In the early summer of 1954, Mr. Butler, the appellant in this case, sold a book to an adult police officer in Detroit, Michigan.

For this, he was promptly arrested, prosecuted and convicted under a statute which, from the very outset of the litigation to this very day in Court, we have contended is an invasion of the freedom of press and of due process of law.

After our conviction in the trial court, we sought leave to appeal to the Supreme Court of Michigan and the prosecutor, in consenting to the appeal, certified to the Court that in his opinion, the statute needed clarification.

But the Supreme Court of Michigan denied our application for leave to appeal and we had no clarification.

Now, before I start on the main argument of the case, I should like to just clear the atmosphere for a second to indicate what is not in this case.

We fully recognize that this is not a case of prior restraints.

We were convicted for selling a book.

Second of all, we also recognized that a properly drawn statute forbidding and punishing the distribution of obscene literature, just as simply as that, would be certainly valid under the exercise of a state of police power.

In other words, if the statute said it is a crime to distribute obscene literature, we say that that would be valid under the state police power.

Felix Frankfurter:

You mean counting those words?

Manuel Lee Robbins:

Pardon me, sir.

Felix Frankfurter:

You mean express — just as your expression that you could —

Manuel Lee Robbins:

Well, it — frankly, it doesn’t have to be verbatim repetition —

Felix Frankfurter:

But I just want to —

Manuel Lee Robbins:

— of my words but the mere proscription against the sale or distribution of obscene literature and not with a lot of other qualifying phrases after it.

It is not my opinion make it unconstitutional.

Felix Frankfurter:

(Voice Overlap) whether — and to infer from that that you would regard the words “obscene” period, as satisfying the (Inaudible)

Manuel Lee Robbins:

I would, sir.

Felix Frankfurter:

All right.

Manuel Lee Robbins:

Now, the statute that we have here is a far cry from that.

But before I get to the statute, I should like to call the Court’s attention to the book itself.

I have in my hand here a facsimile copy of people —

Stanley Reed:

Before — before you get in to —

Manuel Lee Robbins:

Yes, sir.

Stanley Reed:

— saying what you’re clearing out, is that also include whether or not the book as a whole is obscene?

Manuel Lee Robbins:

I’m coming to that, Your Honor.

Manuel Lee Robbins:

That is a — a point.

I am taking the position that as far as judicial — as far as our statute, I’d come to that later but I’m going to develop the point to the statute which — containing statute is not constitutional.

The book must be judged as a whole.

(Inaudible)

Stanley Reed:

You — you have an insertion in your brief, as I understand it, that the Court did not find the book as a whole obscene.

Manuel Lee Robbins:

I — that is true, sir.

I do say that in my brief.

Stanley Reed:

And would you argue that question?

Manuel Lee Robbins:

I will argue that question.

Felix Frankfurter:

But that’s a very different question from whether a statute inquisitor outgoing or make it define itself (Inaudible) an obscene book.

Manuel Lee Robbins:

If it’s just as —

Felix Frankfurter:

He — does the statute is sufficiently is not offending against the ruling (Inaudible)

Manuel Lee Robbins:

That’s right, sir.

Felix Frankfurter:

All right.

Manuel Lee Robbins:

I —

Felix Frankfurter:

So that one has not to look at any book just the statute can save.

The statue itself is all right.

Manuel Lee Robbins:

I say — I —

Felix Frankfurter:

But — no — no, that’s a different question.

Manuel Lee Robbins:

We are on a different question.

I have a different statute and I’m not —

Felix Frankfurter:

I —

Manuel Lee Robbins:

— claiming that this is just an obscenity statute.

Felix Frankfurter:

— I’m not.

Manuel Lee Robbins:

All right.

Now, so far as the book is concerned, I have in my hand a facsimile copy of people’s exhibit 1 which in the record of this case.

This is a paperback book.

It sells for 50 cents.

I’m happy to note that the covers of this book do not exhibit any sexually stimulating material.

The front cover is a serious parade of the sad and curious figures of the leading characters in the book.

Manuel Lee Robbins:

The back cover has got a comment about the book, by the side, the review of literature.

The front page has got some more reviews of the book, wholesome in their praise.

And on the whole, it would be very harder to view this book as an attractive nuisance for alluring children into or anyone else for that matter into any salacious reading.

Now, I should like to point out that much was made and much is presently made in my adversary’s brief of the method of distribution of this book and it take a sort of a separate rule for paperbound books as against hardcover books.

Now, the only sale in the record of this case was a sale to an adult police officer.

There isn’t a scintilla of evidence anywhere in this case that it was sold to any child or read by any child.

Now, there was evidence that it was distributed nationally throughout the country without any stimulating promotion campaign that it appears on open racks and stores that these stores are drugstores, or 5 and 10 cents stores, or department stores, or cigar stores, or news stands.

And it also appear that in some of these stores, school supplies may be sold.

Now, from that little — little bit of kernel comes the whole thesis that this book must necessarily, therefore, have been channeled or could be channeled towards an intended for adolescent reading only.

(Inaudible)

Manuel Lee Robbins:

No, sir.

This is a word per word — virtually word per word.

There were few punctuation changes of some sort but other than that, it is practically the same book, and I’m coming to the original edition of this book.

But there isn’t anything in the record that even approximates the quantitative analysis of proof that this book was channeled towards or intended for distributions to minors.

Gosh knows that adults can go to 5 and 10 cents stores and drug stores for many more reasons than children.

Now, it so happens at the time of the trial of this case, the hardcover edition of this book was in the public library of Detroit.

At the trial, the chief of the book selection committee of that library testified that in their opinion, they thought this was good literature that the public library ought to have it but because there were certain passages in it which were sexually stimulating, they put it on what they called the restricted shelf.

That meant that that while it was listed for the home reading — on home reading, that meant that adults could come to the library and ask for it and get it.

There was no problem about that but it was not on the open shelves where children might get it.

Now, just take the position, of course, that if the library had a copy of the hardcover, which you would pay $3 or $4 for and it was — you wanted to replace it or get a new one, if they wanted us to get this — the same book for 50 cents and save the library’s money and wanted this edition of the book, nobody would dare to sell it to him.

Now, the book itself, we’ve talked about the distribution and the format of this book.

The book itself is a — has been paraphrased in my brief, it has been elaborately commented upon on the record but frankly, it’s a story of a conflict within a man.

It’s the story of a man who has tasted worldly life and earthly pleasures and as a student of musicology comes to this Benedictine monastery in the countryside of France to study the Gregorian chant.

He lives in the monastery and then from there, for the first time in his life, he feels a different spirit evolving about him, he feels a call to an inner peace and — and happiness.

He starts to realize that his life head him to fleshly as it may have been is not what he is ultimately content with and he has this conflict developing in himself with how much of the world will he give up and how much peace and security are represented by the monastery.

Ultimately, he is one through the sanctity but not without some tempestuous problems on route.

Now, of course, he reminisces this from time to time as to his prior pleasures and dalliances and, of course, from time to time he lapses away from the monastic life.

Now, some of this language and some of the description, I admit, is in — of — of earthy nature.

It is realistic writing.

It is of the naturalistic vein.

Manuel Lee Robbins:

There is some discussion and treatment of sex situations.

There was also the blunt and earthy idiom of the French countryside.

But view it as a whole, as I will argue later and say now, as it must be, these were in parts that were indigenous to the story and at least fairly, reasonably connected with its plot.

Now, at the trial when our constitutional objections were overruled, we went ahead and defended this book on the merits.

We — the two eminent professors, one from the University of Pennsylvania and one from the University of Michigan, the very area where the prosecution was brought, testified that in their opinion, this was a serious work.

It was excellent writing.

It was high — highly ethical — ethically motivated novel.

And that viewed as a whole and by its dominating — dominating themes, it was a good piece of literature.

It would be hard to fathom under that testimony how our proof beyond a reasonable doubt could be established, but we have to look to the statute itself to find out exactly how we were convicted.

The statute says that if the book contains language in description which is obscene, and I’m coming to the other point just take it from obscene, it is a crime to distribute that book.

Now, I don’t have to labor the point to — to show that we certainly contained in isolated aspects, certain — certain language which of — is not related to the whole might be offensive.

But if — the — the statute in this case permits a conviction for the containing, not — and does not, in the realistic sense, consider that the book must be treated as a whole and by its dominant theme.

Now —

Felix Frankfurter:

Why don’t you go to the statute?

Manuel Lee Robbins:

Pardon me, sir?

Felix Frankfurter:

Why don’t you take us to the statute?

(Voice Overlap) —

Manuel Lee Robbins:

The statute appears on page 5 of my brief, Your Honor.

Felix Frankfurter:

But as I understood you, the defect here is in the statute, isn’t it?

You started out by saying this is not an ordinary obscenity.

Manuel Lee Robbins:

That’s right, sir.

Felix Frankfurter:

So, you’re attacking on the statute?

Manuel Lee Robbins:

My attack is on the statute —

Felix Frankfurter:

All right.

Manuel Lee Robbins:

— on its face and —

Felix Frankfurter:

Then go to the statute and found what it is.

Manuel Lee Robbins:

All right.

Now, the — the statute is rather lengthy one, as I reprinted it in page 5 of my brief.

I would — I think a fair and accurate paraphrase of the statute is that it’s a crime to sell a book or distribute a book which contains obscene, and I’m — there was immoral, lewd or lascivious language.

I — my position is that that would be virtually the same as obscene, contain obscene language or descriptions tending to insight minors to violent or depraved or immoral acts manifestly tending to the corruption of the morals of humans.

Manuel Lee Robbins:

That’s the part of the statute that we were involved with in this case, but as — we have no proof.

Felix Frankfurter:

It’s your suggestion that the statute had to go a period after lewd, lascivious and lawfully immoral, lewd and lascivious prints, pictures, figures or description —

Manuel Lee Robbins:

I have —

Felix Frankfurter:

— period.

It doesn’t appear you have no quarrel (Voice Overlap) —

Manuel Lee Robbins:

That’s right.

Felix Frankfurter:

Is that right?

Manuel Lee Robbins:

Yes, sir.

Felix Frankfurter:

All right.

I — I’m not challenging anything.

I’m just trying to find out.

Manuel Lee Robbins:

I’m sorry.

That’s right.

Earl Warren:

Does the statute say —

Manuel Lee Robbins:

Yes.

Earl Warren:

Does the statute say contain or does it say “is obscene”?

Manuel Lee Robbins:

No, containing, sir, containing obscene, immoral, lewd or lascivious language or obscene, immoral, lewd or lascivious —

Earl Warren:

Yes.

Manuel Lee Robbins:

— language or obscene, immoral, lewd or lascivious prints, pictures, figures or descriptions then —

Earl Warren:

Yes.

Manuel Lee Robbins:

— the qualifying phrase —

Earl Warren:

But without the qualifying —

Manuel Lee Robbins:

— tending to incite minors.

Earl Warren:

— without the qualifying phrase, you concede the statute is good?

Manuel Lee Robbins:

If it — that’s right.

It’s — that is —

Hugo L. Black:

You concede that’s your view.

Manuel Lee Robbins:

— the position I took from the start.

Hugo L. Black:

You concede that’s your view, I suppose.

You don’t —

Manuel Lee Robbins:

Pardon me, sir?

I didn’t gather your point.

Hugo L. Black:

I assume you concede that’s your view —

Manuel Lee Robbins:

That is my view.

Hugo L. Black:

— of this case.

Manuel Lee Robbins:

I can’t decide what’s constitutional, Your Honor, I understand.

Hugo L. Black:

You’re — you’re going a long way, it looks like, in connection with some other cases —

Manuel Lee Robbins:

I understand.

Hugo L. Black:

— that are written in this field.

Manuel Lee Robbins:

I understand.

Well, when I say “conceding”, I don’t mean any assumption of the authority of the Court.

I would say — perhaps, may I modify to say that I would not be here contending that a statute which merely says, this is a crime to distribute obscene literature is unconstitutional.

Hugo L. Black:

You mean you wouldn’t have taken the case?

Manuel Lee Robbins:

No, sir.

Stanley Reed:

Well —

Manuel Lee Robbins:

I — I have had happen —

Stanley Reed:

— your view — does that mean that your contention in regard to “containing” is not —

Manuel Lee Robbins:

That is only one of my contentions, sir.

I haven’t gotten — haven’t had —

Stanley Reed:

I know but you said just now that you would concede if you put a period after “descriptions”.

Manuel Lee Robbins:

Oh, I beg your pardon, Mr. Justice Reed.

You’re quite right.

I was in error.

I will withdraw my answer to Judge Frankfurter.

The containing aspect, I still would find unconstitutional.

Stanley Reed:

You — you think it had to be the entire book.

Manuel Lee Robbins:

That is right.

I didn’t realize the significance of that.

And if they took the “containing” out and then put the period then, then I would be content with the statute.

Thank you for pointing that out.

Manuel Lee Robbins:

Now, I have — we have eluded — I mean, the — there was a wealth of authority to the fact that book must be viewed as a whole by its dominant themes and you can’t take isolated passages out of their context.

Actually, at the trial, before the trial started, a long list of excerpts of the so-called salacious parts was prepared by the prosecutor, shown to his defense witnesses.

They were examined on that.

And a great deal of attention by prosecutor and by court was spent on having them read the excerpts and — and give their opinions about it.

The focus of the whole rebuttal by the people was on the excerpts.

Ultimately, of course, and I believe that was our undoing in the — in the finding.

And the judge in his opinion, the trial judge in his opinion that police stated that he find the book contains language and description.

Now, I want to point the Court in all candor, I want to point to the — the Court’s attention to a further comment that the Court made and — the trial court made in its opinion.

He says, “I find that the — that this book contains language and descriptions which is obscene,” and so forth and goes on with the qualifying phrases, and he says and what’s more, ‘When viewed as a whole, I don’t think these passages were necessary to the development of the — of the plot of the book where the conflict expressed.”

Now, that, I don’t want any — I shouldn’t want anyone to think that that isn’t anyway a view of the book as a whole.

He is saying he finds and he says he is taking the statute as it is.

He says he finds that it contained these things and then he gives as a matter of dicta, in all due fairness, an opinion that literarily, these other passages were necessary.

He doesn’t say bluntly and afterwards were at hand, he doesn’t say bluntly that this makes the book obscene as a whole.

He just says it wasn’t necessary to put these passages in the book but he doesn’t find the book, by its dominant themes and by view to the whole, was obscene.

He says that in his opinion, it wasn’t necessary to — to develop the conflict.

Now —

Stanley Reed:

Well, how can — I have difficulty in following you on that.

So I’m holding that the defendant is guilty because he sold the book in the City of Detroit, pertaining this language, and also because the Court feels that even during the book, as a whole, is not necessary to the proper development of the theme of the book your in conflict with.

Manuel Lee Robbins:

Yes.

That is the language I am referring to Your Honor.

I’m saying that that is a different than same that I find that this makes the book as a whole obscene.

Stanley Reed:

It may be different words but so —

Manuel Lee Robbins:

Well, I think that the —

Stanley Reed:

— hold the man is guilty because he sold the book containing this language, all the language of the book, I suppose.

Manuel Lee Robbins:

No.

Well, you have to look —

Stanley Reed:

What is all — all the language has been referred to —

Manuel Lee Robbins:

But the —

Stanley Reed:

— whatever it referred to, all through the opinion.

Manuel Lee Robbins:

But he is — he is repeating —

Stanley Reed:

All the passages are read, I don’t suppose you read the whole book.

Manuel Lee Robbins:

I read the whole book.

Stanley Reed:

No, I mean —

Manuel Lee Robbins:

The Court?

Stanley Reed:

To the — to the Court of the trial.

Manuel Lee Robbins:

No, the —

Stanley Reed:

The Court —

Manuel Lee Robbins:

— well, the — the book was submitted in evidence and the Court just read them.

Stanley Reed:

Obviously, there are words in there that are not —

Manuel Lee Robbins:

Common parlance.

Stanley Reed:

Well, they’re not common parlance.

There are also words that are not salacious or —

Manuel Lee Robbins:

Oh.

Stanley Reed:

— obscene.

But he says, pertaining this language, the book contains this language and I — during the book as a whole, I find the defendant guilty.

Manuel Lee Robbins:

If Your Honor please.

But he — that is — he is really — really repeating.

I mean, the emphasis on this opinion, I think, is on the “containing”.

Stanley Reed:

(Voice Overlap) —

Manuel Lee Robbins:

Because above that, he says however the Court does have to find that it is in violation of this particular statute because the statute does say that it is sufficient to contain lewd, immoral, obscene, lascivious language or description.

Now, his primary finding, if Your Honor please, I mean — and I — I have no better way of delving into a judge’s mind than anyone else.

But I think if you look at the conduct of the trial and look at the examination of the witnesses and then look at this opinion as a whole, you’re saying he is arguing all the time that it contains these things.

And then he, for some reason, and I don’t think this is — this was justified under statute, is saying, and his questions to the witnesses at the trial with the same way, he is saying “didn’t have to put this language in to get your point across, Mr. Author”.

Well, then —

Manuel Lee Robbins:

Now, that’s what he is saying here.

He is saying it was unnecessary.

That, if Your Honor pleases, is more, not a — a legal judgment of what is obscene language and description, that is more illegal judgement of how — of whether it was literally or artistically necessary.

Stanley Reed:

We’re taking right here about the problem of whether or not he determines that the book as a whole was obscene.

Manuel Lee Robbins:

Yes.

And I say he didn’t determine that the book as a whole was obscene.

Manuel Lee Robbins:

I say he determined —

Doesn’t the — doesn’t the first sentence in the first paragraph throw some light on what he was doing or he says, “So —

Stanley Reed:

Yes.

— so that if therefore — so that if therefore, if there ever is a reveal of my decision in this matter, I am not trying in any way to evade the issue, I am trying to follow the statute as it is”.

Manuel Lee Robbins:

That’s right.

That’s — that’s right, sir.

I think he took the bull by the horns.

And I think he was adding gratuitously.

He didn’t — he was telling the world, he saw no need for putting this to stop and that it didn’t help book any.

But he — I think he meant very definitely in the whole opinion and the whole conduct of the trial examine, he meant very definitely to hold squarely that this containing — this book contained.

And that’s what we were in court on and that’s what we were convicted of.

Harold Burton:

And he meant to give a definite interpretation to a statute that might possibly had been interpreted to mean it must be obscene as a whole and he refused to so interpret it.

Manuel Lee Robbins:

That’s right.

Harold Burton:

Therefore, we have the state court interpreting it as being purely limited to this containing point.

Manuel Lee Robbins:

I think that is true, sir.

I think it is limited to a containing point.

I think if he wanted to say, “Now, I’m — the only other way he could have done it if he really wanted to obviate my contention was to say, “Now, containing doesn’t mean just isolated passage, I’m saying that it contains it to the extent that the book as a whole is just replete please with it.”

Harold Burton:

And in order to —

Manuel Lee Robbins:

Now, he doesn’t say that.

They were words (Inaudible) and he doesn’t use it.

Harold Burton:

And in order to secure the constitutionality of the statute, it’s conceivable that he might have so interpreted.

Manuel Lee Robbins:

He might have.

Harold Burton:

And he didn’t.

Manuel Lee Robbins:

He might have and he didn’t.

He interpreted — he — he convicted us as a — because our book contained and I think it — that’s a fair — fair analysis of the whole trial and of the opinion.

Felix Frankfurter:

Does that mean, Mr. Robbins, that in a book containing 570 odd pages, under the construction given by the state court to the statute and the statute comes here as though that construction were written into it, if a book of 570 pages, if the prosecutor in Michigan, that he was (Inaudible) about it, as I understand it, if you have a book of 575 pages, prosecutor can say if there are three pages that are obscene and tend to do these things that he can rest and he makes out of the case, is that right?

Manuel Lee Robbins:

I think a very literal interpretation of that statute would — would justify that.

Felix Frankfurter:

So the —

Manuel Lee Robbins:

Yes.

Felix Frankfurter:

— the statute plus the construction —

Manuel Lee Robbins:

That’s right.

Felix Frankfurter:

— that you are contending and rightly —

Manuel Lee Robbins:

Yes.

Felix Frankfurter:

— that it comes here with an authoritative construction.

Manuel Lee Robbins:

That’s right.

Felix Frankfurter:

And therefore, if he does call out of this — this or any other book by the 70 pages —

Manuel Lee Robbins:

It is —

Felix Frankfurter:

— three pages, never mind what — what the context of those three pages and the hundred of pages before or after may due to those (Inaudible)

Manuel Lee Robbins:

This construction of the statute —

Felix Frankfurter:

And your position is that a statute which does that.

Manuel Lee Robbins:

Offends freedom of press.

And the Fourteenth Amendment.

Manuel Lee Robbins:

Offends Fourteenth Amendment.

Felix Frankfurter:

The case get down to that?

Manuel Lee Robbins:

This — does this case get down on it?

Felix Frankfurter:

Yes.

Manuel Lee Robbins:

This — the principles of this case get down to it.

I mean I don’t think — think that he just took up a few — just one or two little words —

Felix Frankfurter:

No, no, I — I didn’t mean that but —

Manuel Lee Robbins:

No.

The principles of this case go down to that.

It can’t —

Felix Frankfurter:

(Voice Overlap) the — the interpretation of what is conceived to be the law of this case.

Manuel Lee Robbins:

That’s right.

Felix Frankfurter:

(Voice Overlap) attitude by — the basis on which adjudication was made in this case is covered by the hypothetical simplification (Inaudible)

Manuel Lee Robbins:

That is true.

Felix Frankfurter:

Is that right?

Manuel Lee Robbins:

That is true.

I would — I would say that that is possible, a very possible thing that we would have to fear if this was the construction.

Now, this isn’t our — we’ve spent some time on it but it isn’t our major —

Stanley Reed:

What will say to the other —

Manuel Lee Robbins:

I beg your pardon?

Stanley Reed:

(Inaudible) I suppose?

Manuel Lee Robbins:

I — I didn’t get your point.

Stanley Reed:

You also say that the other construction would be possible that he did say as a whole.

Manuel Lee Robbins:

I don’t — I don’t exceed that.

Stanley Reed:

No, you don’t say so, but I — I suppose it’s a possible construction.

You say that the (Voice Overlap) —

Manuel Lee Robbins:

Well, not to me to say that it is possible when I enlarge it consistently that I didn’t think that’s what he meant but I — I suppose reasonable men could differ on it.

(Inaudible)

Manuel Lee Robbins:

I’m not a Michigan attorney, Your Honor, and I — I really can’t answer that authoritatively.

I think any judge in any court, when a question of constitutionality is raised would be obliged to follow the Constitution and the — his understanding of the statute and the Constitution had come to the best position under the law that he could.

I don’t think there is a statute that says judges must decide against constitutional issue or must — must uphold statute.

I would think that he had power to — to discard the statute and claim that it was unconstitutional but I cannot answer that authoritatively.

(Inaudible)

Manuel Lee Robbins:

Well, he is — yes.

Well — I tried this case, Your Honor, and the Recorder’s Court is an inferior court to try mainly misdemeanors.

It doesn’t have a stenographer unless you asked for one.

Isn’t it —

William G. Comb:

(Inaudible) City of Detroit.

Manuel Lee Robbins:

Its — its jurisdiction — I beg your pardon, my co-counsel has informed me.

Its jurisdiction is — applies to all crimes committed in the City of Detroit.

Felonies as well?

Felix Frankfurter:

It’s — it’s the great Criminal Court of Detroit, isn’t it?

Manuel Lee Robbins:

Is the great Criminal Court of Detroit?

Felix Frankfurter:

Yes.

Famous cases —

Manuel Lee Robbins:

I thought — I thought there was a county court.

Felix Frankfurter:

Famous cases had been tried before.

Manuel Lee Robbins:

I — I must apologize to any slight I gave to the Recorder’s Court.

Manuel Lee Robbins:

I was trying a charge there which — in — in this case which, I think, was punishable only by fine —

(Inaudible)

Manuel Lee Robbins:

— or small imprisonment.

Now, our first and foremost constitutional objection in this case is not the aspect of containing although, we pressed that with great sincerity.

I come again to the statute and say that, what this statute also does is to say that if this book contains any languages and — and descriptions which is — which of — is obscene for children, it can’t be sold to anyone.

In other words, if this is obscene and tends to incite minors and thereby, tends to incite minors to violent and depraved and immoral acts manifestly tending to the corruption of the morals of youth, it cannot be sold.

This means an adult couldn’t buy it.

This means the public library couldn’t buy it and educational institution couldn’t buy it.

And it means quite generally, that the whole world of adult readership is fobbed off because it might be bad for children.

Now, again, I don’t want to labor that.

I think it’s a very drastic inroad on our freedom of press.

In other words, what a child or an adolescent or a minor could not helpfully digest or it might work some — some evil on him, that book cannot be read by — or purchased by any adult.

No one — no one will sell that to an adult.

Now, of course, we all — as I said in the beginning, of course, the public — the police power of a State is quite right in protecting the adolescence and minors of a State but there are limits to the degree to which they can go.

They can’t take overly drastic and highly excessive means to protect this situation.

What’s more, they — they rid the whole — they reduced the whole adult readership in the community to the standard of a child’s library.

Actually, the statute, itself, I term, a legislative clarification of the rule in the Hicklin case.

The old 1868 rule in England was that a book was to be considered obscene if the matter had a tendency to debase or corrupt the minds or morals of anyone in to whose hands it might fall.

Therefore, it was the children and the village idiot and the moron that might be considered.

Now, by the last 20 years, most of the courts in this country have abandoned the implications of the Hicklin rule, not — not every single court but most of them have abandoned the implications of the Hicklin rule and taken a better position and saying that it’s the average person’s sex instincts which are the — used to be the test.

In other words, if the book is viewed as a whole and by its dominant themes, it’s dirt for dirt sake to the average person or just stimulates the sexual appetite of — of all classes of a community that it can — can be considered obscene.

If —

Manuel Lee Robbins:

But —

— if the statute was limited to sales of such books to minor, you’d have a different case, wouldn’t you?

Manuel Lee Robbins:

Well, I considered that, Your Honor.

I certainly would have a different case.

I would have a harder case.

I don’t know if I might —

I don’t want to debate it.

Manuel Lee Robbins:

— still might be here.

Manuel Lee Robbins:

I don’t know.

Might —

It would — it would be different.

Manuel Lee Robbins:

I might still not be here but I have a lot harder case.

Actually, there is no stuff like liquor and tobacco.

There is no constitutional freedom to distribute liquor and tobacco but there is as to literature and I —

I didn’t say (Voice Overlap) —

Manuel Lee Robbins:

— don’t know about (Voice Overlap) —

— I said difference.

Manuel Lee Robbins:

That’s right, Your Honor.

It would be a different case.

Now, that is our second great complaint about the statute and third complaint about the statute is one as to vagueness and uncertainty.

We say that if you’ll look at this statute and you see that obscene is modified by these clauses that its obscene language contains obscene language and descriptions, tending to incite minors to acts of violence, depravity and immorality.

Now, I suppose this — I don’t want to attack the word “violence”.

I guess I could come to some accepted definition of violence but I certainly would have a lot of trouble finding a definition of what is depraved or what is immoral which reason — on — on terms which reasonable men might not vary.

Felix Frankfurter:

You think those qualifications rendered the term “obscene” vague?

Manuel Lee Robbins:

Yes, sir.

Felix Frankfurter:

They take away — they take away without credence with the term “obscene”?

Manuel Lee Robbins:

That’s right.

Whatever concreteness we’ve had in the term of obscenity has been reduced and virtually eliminated by saying obscene in that they do these things.

That’s exactly the force and effect of — of these clauses.

Now —

This is not —

Stanley Reed:

Would you — would you think that — if something that was obscene conceivably not have a small influence on you?

Manuel Lee Robbins:

Oh, yes.

It can — can conceivably but — but things — the things that are depraved or what corrupt the moral’s view, I don’t actually know what —

(Voice Overlap) —

Manuel Lee Robbins:

— standard is covered by the moral’s view.

Stanley Reed:

I agree, it would be very difficult if you didn’t have the lewd and obscene in the last sentence —

Manuel Lee Robbins:

Yes.

Stanley Reed:

— first.

Manuel Lee Robbins:

That’s right.

That’s true.

But I don’t — I don’t believe that you can say obscene and then say in that, it does these things and claim that —

Stanley Reed:

That’s right.

Manuel Lee Robbins:

— you have a definite concept of obscenity at that case.

Stanley Reed:

That adds nothing to the requirement of this.

Manuel Lee Robbins:

Well, it — it isn’t just it adds nothing to, it’s very definitely adds such a wide field that I don’t exactly know what is — what publication might be interdicted.

Now, I say reasonable men can differ as to what depravity and what immorality are and what manifestly tends to corrupt and there’s another aspect of this thing, it’s tending.

It even adds to the confusion by saying what tends to do these things or what manifestly tends.

It even broadens and widens the entire — entire field of interdicted literature.

Now, there are no standard set up in the statute as to what tends to incite or what manifestly corrupts these youths.

There are no standards in the statute.

The judge doesn’t give any statements.

He doesn’t show in any way in — in which these standards might be operative.

There are no previous cases in Michigan giving us any sign post and all in all, I would say that no member of the public could conceivably understand.

He wouldn’t have enough notice to know what publications were interdicted.

William J. Brennan, Jr.:

So, Mr. Robbins, does that mean that, as you view the statute, it proscribes an obscenity, not ordinary obscenity but some special kind of obscenity?

Manuel Lee Robbins:

I said yes, it proscribes an obscenity which is defined in a way which is vague.

William J. Brennan, Jr.:

Well, might not the statute also be read as merely proscribing obscenity as ordinary — ordinarily understood but having certain effects?

Manuel Lee Robbins:

A court could construe — a state court could construe a statute — I suppose any way it — it chose to but we went to trial on the statute as it is now with all this verbiage in it, our witnesses were questioned.

Our witnesses in the other side, witnesses were questioned and there were examples of this in my brief as to whether something didn’t tend to incite minors to violent and deprave conduct.

We — we were — the Court, in its opinion, said that — he thought this — this was obscene, lewd and intended to — intended to incite minors to violent, deprave and immoral acts.

So that, all through this case, we’ve gone — we’ve gone on this litigation with the fact that it was established to the trial court satisfactory that was obscene in that it tended to deprave —

William J. Brennan, Jr.:

Well, is there any — is there any evidence to the question directly, whether this particular obscenity did have the effect of tending to incite so forth?

Manuel Lee Robbins:

This particular obscenity?

William J. Brennan, Jr.:

Involved in this book, in the excerpts?

Manuel Lee Robbins:

Oh, no, no.

They were — well, the witnesses were directed to certain excerpts of the book which viewed by themselves.

They paid a good little attention.

Manuel Lee Robbins:

Actually, there was no expert —

(Voice Overlap) —

Manuel Lee Robbins:

— there was no expert testimony as to what motivated views, none whatsoever.

There was no expert testimony on either side as to what the written were — what any of the — what written words, if any, in here would tend to incite as experts.

They were literally experts who, at times, thought that this material tended to deprave — to incite minors but there was no expert testimony on motivation of any sort.

Now, we were — at the trial, we were confronted by these words.We — we didn’t have a trial court that said, “Let’s just forget about all these other words, just let’s say we’re talking about obscenity.”

And that all this really doesn’t interfere with the question of obscenity.

If that was the case, the state court would have construed, it would have been a construction by a state court that this was just merely, as Judge Frankfurter said, we put the period after obscenity.

But we went all through the trial and we’ve gone all the way up here.

We’ve got an opinion by a trial court which included these words and we’ve had questions after questions to witnesses on that.

Felix Frankfurter:

And you say that those qualifying words used the otherwise clear meaning of obscenity to the point of vagueness making it unfair within Due Process Clause and have it (Voice Overlap) —

Manuel Lee Robbins:

I — I would say that except that I think, Your Honor, you say the otherwise clear.

I’m not so absolutely positive obscenity is completely free from any doubt but at least, it is —

Felix Frankfurter:

The Constitution is sufficient.

Manuel Lee Robbins:

Sufficiently clear of doubt.

Hugo L. Black:

What does it mean?

Manuel Lee Robbins:

Well, I have a great wealth of authority, a varying — a varying save.

I can give you only my personal opinion and that it means dirt for dirt sake.

That would be my best definition.

There was —

Hugo L. Black:

Do you think that’s a vague —

Manuel Lee Robbins:

Pardon me, sir?

Hugo L. Black:

That’s a clear, constitutionally clear description, “dirt for dirt sake”.

Manuel Lee Robbins:

I don’t know how constitutionally clear it is but it’s the best I’ve ever been able to arrive at.

Felix Frankfurter:

Do you think it’s more vague than (Inaudible)

Manuel Lee Robbins:

[Laughs]

Hugo L. Black:

Why do you think it’s more vague and immoral?

Manuel Lee Robbins:

I don’t really know.

Pardon me, sir?

Hugo L. Black:

Why do you think it’s more vague and immoral, that it phrases or less (Voice Overlap) —

Manuel Lee Robbins:

Well, I — I am acquainted with the opinions that advert to long usage.

I am — I am acquainted with that aspect of it.

I think that is an important aspect of it.

I think also because people deal with earthy things.

People have obscene literature and dirty books.

It has been in everybody’s mind for quite some time and over the years of experience with sex and with literature and with dirty things.

One gets some sort of common accepted feeling as to what is vague, what is generally permissible and what is not generally permissible.

Human experience is probably the best answer to that.

Felix Frankfurter:

In other words, the answer that may satisfy the constitutional requirement even though, you may not be able to give an algebraic equation for it.

Manuel Lee Robbins:

That’s right, sir.

Felix Frankfurter:

And you trust the judgment of what supposed to be a good juror.

Manuel Lee Robbins:

That’s right, sir.

Hugo L. Black:

If that’s true, why, on your argument, could you trust the good jurors on immoral, lewd or lascivious?

Manuel Lee Robbins:

No more than I could trust the judgment.

I — I couldn’t trust the trial judge to charge a jury on that.

Hugo L. Black:

Well, could — you could — do you think you could trust them less to charge on that and you could on obscene?

Manuel Lee Robbins:

Yes.

I think I could trust a judge on obscene.

Hugo L. Black:

Well, maybe obscene, maybe you could do that.

Felix Frankfurter:

I suggest, you say it has been done.

Hugo L. Black:

It has been done.

And I’ve — I’ve had —

The other has — the other has been done too, hasn’t it?

Manuel Lee Robbins:

I don’t know, I’ve only — I —

Hugo L. Black:

There are many statutes throughout the country that — that relates to what’s immoral, are they not, and lewd and lascivious?

Manuel Lee Robbins:

Yes, but there may be sign posts either inquire adjudication —

Hugo L. Black:

Maybe wrong but —

Manuel Lee Robbins:

— or in the statute or in the regulation.

Hugo L. Black:

And there have been sufficient, in many cases, could judges charge them, have it not?

Manuel Lee Robbins:

They may have been — you — my experience is not that broad, Your Honor.

Manuel Lee Robbins:

I’ve conceived that they may have been.

I — in my own experiences is, as far as literature is concerned, we — I have never been in a case whereas willing — let anybody charge as to what was immoral.

Felix Frankfurter:

The federal (Inaudible)

Manuel Lee Robbins:

Yes.

I —

Felix Frankfurter:

Is the federal — the old federal statute —

Manuel Lee Robbins:

With lewd, obscene in specific.

Felix Frankfurter:

Lewd, obscene and —

Manuel Lee Robbins:

Now, this Court — those words had been construed as (Inaudible) ever since the Schweringen case way back in 161.

Well, I — my argument has been eclipsed to this extent.

I think I’ve said about everything that can be said in this — in this field except that on the last point, I am — want to just to call your — the Court’s attention, that there were a series of motion picture cases, I know they are licensing cases.

I know they are — they — there are some distinctions because they — to some extent, they involve prior restraint.

But I think the tenor and the flavor of these — of these decisions and we haven’t been blessed with many opinions here but we’ve had a lot of decisions.

The flavor of these decisions is such that would strike down words of — such as immoral or what would debase and corrupt morals.

It would strike down that as being overly vague and — and too indefinite.

I say, of course, there’s no difference with the motion pictures and books but I say that the same flavor of those decisions, despite incidental distinctions, ought to prevail in this case.

Now, all in all, and I’ll conclude my argument with this.

All in all, if you want to really be realistic about freedom of press and due process of law about certainty and criminal statute affecting the distribution of literature, all in all, you are asked to construe here, the prosecution of a book which we never were afraid to — to publish and we never — we weren’t squeamish about it.

It was in — by eminent professors have called to the great work.

But we’re — we’re convicted here of selling this book and a statute which really says it’s a crime to distribute to anyone, to anyone a book containing language and descriptions obscenely motivating and corrupting minors or youth and they’re not interchangeable, under standards which are not ascertainable.

Felix Frankfurter:

Before you sit down, I just want to ask you one question.

At before your remark, what I think the (Inaudible) a little awhile ago, you’re familiar with cases that give respect — weigh the fact of the statute is familiar or old, isn’t that right?

You said something about it.

Manuel Lee Robbins:

Yes.

The statute is familiar or old.

Felix Frankfurter:

So it has behind in age, the statute (Inaudible)

Manuel Lee Robbins:

I — I don’t recall saying that but I — I —

Felix Frankfurter:

The thing regarding obscenity.

Manuel Lee Robbins:

Oh, I — I said long usage in the — in construction of obscenity, yes.

Felix Frankfurter:

(Voice Overlap) —

Manuel Lee Robbins:

Long usage as to the construction of obscenity.

Yes, I am familiar with that.

Felix Frankfurter:

(Voice Overlap) Now, that’s what I meant by age.

But why?

I notice in taking Mr. Shepherd’s brief that this statute long antedate the implementation.

Michigan anticipated.

Manuel Lee Robbins:

Yes, sir.

Felix Frankfurter:

(Inaudible) and this goes back to a hundred years —

Manuel Lee Robbins:

Yes, it does.

Felix Frankfurter:

(Voice Overlap) say about that?

One —

Manuel Lee Robbins:

I can say that the modern period of enlightenment, and I’m considering obscenity, is a young period but nevertheless, if we’re going to have freedom of press in the modern period, I really don’t care how old the statute is.

We’ve got a modern world to live in and we’ve got modern considerations for the distribution of literature.

Felix Frankfurter:

That may be an admirable argument in regress to modern clubs and legislatures if it’s conclusive on the Court but the Court had the last word on what is deemed modern?

Manuel Lee Robbins:

I don’t know.

All I can say is the fact that the statute is even older than the Hicklin case, if Your Honor please.

Felix Frankfurter:

I’m not saying that concludes the matter, I say it’s very important.

Manuel Lee Robbins:

It is important.

I don’t — I don’t minimize it.

I say if I — when — when the chips are finally down, the question is how big an infringement of freedom of press that we got today.

Felix Frankfurter:

If we have a scale on which we could weigh it, that — that would be easy but this all —

Manuel Lee Robbins:

Well, I’ll —

Felix Frankfurter:

(Voice Overlap) about judgement —

Manuel Lee Robbins:

But the —

Felix Frankfurter:

— on which age the longevity of the statute has, for one member of the (Inaudible) good deal of weight.

Manuel Lee Robbins:

It does have a good deal of weight but other things must —

Felix Frankfurter:

(Voice Overlap) —

Manuel Lee Robbins:

— have weighed also.

What’s more?

We didn’t have paperback books when this — when this statute was there.

Manuel Lee Robbins:

We didn’t have ready public distributions to adults throughout the community.

Felix Frankfurter:

Everything that’s new isn’t the (Inaudible)

Manuel Lee Robbins:

No, Your Honor.

I understand that.

Earl Warren:

Mr. Shepherd, Solicitor General.

Edmund E. Shepherd:

As I understand the word “obscene”, take it from the dictionary, it is that which is offensive to chastity of mind or in modesty expressing to the mind or abuse something that delicacy, purity and decency forbids to be exposed.

And in my view, that word is not only well understood, it is somewhat elastic in its content from age to age and maybe in different localities.

And my definition of obscenity would be that it is something which offends the conscience of the community and that the final arbiter, in determining whether a book is obscene, is the jury.

Now in —

Hugo L. Black:

I beg your pardon.

Edmund E. Shepherd:

— one of —

Hugo L. Black:

Is what?

Edmund E. Shepherd:

Is jury of the community —

Hugo L. Black:

(Voice Overlap) —

Edmund E. Shepherd:

— is the arbiter of the conscience of that community.

Now, we have one case, although only three which have, in any manner, vest upon this statute, that is the Supreme Court in Michigan passed upon, People v Lathers 223 Michigan 92.

In that case, publisher of a newspaper was taxed under this very law with publishing a story, I think, double meaning.

The judge, the trial judge took the question from the jury and told them that, without going to their jury room, they should render a verdict of guilty.

The Supreme Court of Michigan reversed that case on their judgment on the ground that the defendant was entitled to go to the jury on the question of obscenity.

Now, I’m not going to dwell very long on this question of vagueness because I want to come to that word “containing”.

I — I can’t personally see anything vague or indefinite about this statute.

I have convinced that, leaving out a lot of extraneous matter, this rather lengthy section to read this way.

As far as it is applicable to the X in this case, any person who shall sell any book containing obscene descriptions tending to incite minors to violent or depraved or immoral acts, and I insert the disjunctive there, or tending to the corruption of the morals of youth shall be guilty of a misdemeanor.

Now, for the life of me, I can’t see anything vague or indefinite in — in that language because the — the keyword there is this word “obscenity” as the dictionary defines it and merely because you have phrases added to that doesn’t deprive the person of his constitutional rights because it’s all hooked up to that keyword.

William J. Brennan, Jr.:

Well, Mr. Shepherd, may I ask?

Is this statute in the State’s burden in establishing guilt of the misdemeanor satisfied by proof of some special kind of obscenity which is not ordinary obscenity or is it that it requires a proof of some special effects of ordinary obscenity case?

Edmund E. Shepherd:

I — I do not apprehend that it requires proof in each particular case of some special effect on children or — or youths.

I don’t think that is true.

And as I read it, I think that any obscene description, such as we find in this book, would tend to the corruption of the morals of youth.

William J. Brennan, Jr.:

Well, then, are you suggesting that the statute deals only with ordinary obscenity and then actual —

Edmund E. Shepherd:

Yes, Your Honor.

William J. Brennan, Jr.:

— fact that the appended language “tending to incite” etcetera is surplusage?

Edmund E. Shepherd:

More or less, I would say or descriptive.

Earl Warren:

Do the statute always have that provision in about youth, Mr. Shepherd?

Edmund E. Shepherd:

The statute, as originally enacted, read this way, obscene descriptions tending to the corruption of the morals of youth.

In 1954, this other clause or phrase was added “tending to incite minors to violent or depraved or immoral acts”.

That — that was added in the amendment in 1954.

Earl Warren:

Perhaps after lunch, you could —

Edmund E. Shepherd:

Yes.

Earl Warren:

— you could tell us why they made that amendment.

Would you please?

Edmund E. Shepherd:

I’ll try to.