Byrne v. Karalexis – Oral Reargument – November 17, 1970

Media for Byrne v. Karalexis

Audio Transcription for Oral Argument – April 30, 1970 in Byrne v. Karalexis

Audio Transcription for Oral Reargument – November 17, 1970 in Byrne v. Karalexis

Warren E. Burger:

Byrne against Karalexis, Mr. Quinn you may proceed whenever you’re ready.

Robert H. Quinn:

Thank you Mr. Chief Justice.

Mr. Chief Justice, may it please the Court.

This matter is here on appeal from an interlocutory order of the United States District Court, for the district of Massachusetts, under the provisions of 28 United States Code 1253.

That provides for direct appeal from an order or judgment of a three-judge court granting temporary injunctive relief against enforcement of a state statute.

In our view, this appeal presents two equally important issues, which ought to be finally resolved by this Court.

The first is whether the court below abused its discretion in enjoining the district attorney from prosecuting in the future on account of the showing of the film, “I am Curious Yellow,” which the court below assumed to be obscene.

The second is whether under this Court’s holding in Stanley versus Georgia, any state can constitutionally prohibit public, commercialized dissemination of pornographic matter, absent distribution to minors, non-consenting adults, or by pandering.

The facts maybe stated briefly as follows: On June 30, 1969, after preliminary proceedings not relevant here, the appellees filed an amended complaint in the court below, alleging reason to believe that indictments would be sought against them, by appellant Byrnes office, under Massachusetts general laws, Chapter 272, Section 28 (a).

Shortly thereafter, the indictments were in fact sought and returned.

Appellees saw the declaration that the statute is unconstitutional and that injunction against prosecution there under.

They alleged the statute was overbroad, because among other things, adequately controlled commercial distribution of obscene material is protected by the First Amendment.

The court declined to grant injunctive or other relief, but requested briefs on the questions regarding the scope of this Court’s holding, in Stanley versus Georgia.

And the effect of that opinion on the Massachusetts Statute, prosecution continued in the state court, in a jury waived session and the appellees were convicted.

Following their conviction, the appellees renewed their request for injunctive relief.

After further argument, a majority of the court below held that Stanley versus Georgia went so far as to prohibit state prosecutions, with respect to adequately controlled public distribution of obscene material.

And the court decided that the Massachusetts Statute was probably unconstitutional as being overbroad on its face.

Based on this opinion, a majority of the court below enjoined the appellants from further prosecution with respect to showing of the film, I’m Curious Yellow.”

This matter was argued before this honorable Court on April 38th and subsequently ordered for re-argument.

In the meantime, the appellees’ appeal was entered in the State Court.

Oral argument in the Massachusetts Supreme Judicial Court has been delayed, pending a motion for postponement filed by the appellees here.

I address myself first to the question, whether the court below abused its discretion in granting injunctive relief.

Comity and federalism prompt a federal judge to be extremely reluctant to enjoin good faith enforcement of a state’s criminal laws by that state’s law enforcement officials.

What have we here to contravene that fundamental principle?

No monetary loss.

There is no evidence whatsoever of any financial loss on the part of appellees here.

They had no proprietary interest in the subject matter.

They’re not the owners of a film.

Rather they own a movie house.

There’s no chilling effect either on the appelles or their patrons.

Robert H. Quinn:

These are not politically hand bills, but commercial pornography.

Assumptively in the court below and after a finding in a trial, a subject matter assumed to be obscene, we submit.

All the more so is subject matter found in a trial below to be obscene, cannot be said to have any value within itself.

This film further showed for five-and-a-half months, pending the argument on the merits and the decision of obscenity on the facts, in a trial, in the Suffolk Superior Court in Massachusetts.

We’ve been only able to find one instance, where this Court approved relief granted against a state law enforcement official.

That is of course, the decision in Dombrowski versus Pfister in 380 United States 479.

The Dombrowski case was a matter of civil rights advocacy.

It’s record is replete with incidence of bad faith, for example night raids, made by law enforcement officials on the offices and the homes of individuals involved.

We have none of that here.

Here we have first of all, activity whose dominant theme is offensive to community standards of morality, whose appeal is to a prurient interest in sex, whose content is utterly without redeeming social value.

Here we have no bad faith, either on the record, or argued below on the part of the prosecution or law enforcement officials.

This has been a single case, pursued by the district attorney in Suffolk County, in the course of his work as the elected district attorney of the people, pursued while the film showing by the appellees in their theater continued for five-and-a-half months.

Here, we submit is a classic example for the application of the principle of abstention.

If the statute, Chapter 272, Section 28 (a) of the Massachusetts General Laws, should be overbroad, and we do not concede this, that’s fault here can be overcome by leaving the case to be resolved in the state court.

And by giving the state court the opportunity to narrowly construe the law and thus, avoid any constitutional defect.

This can be–

Potter Stewart:

What is the status of the proceedings if any, in the state courts?

Robert H. Quinn:

The proceedings below have been staid, Your Honor, pending or are subsequent to a motion by the appellees that the oral argument on this case be postponed until the decision in this Court was made on the issue of obscenity, generally.

Potter Stewart:

There was a conviction in the Suffolk County Superior Court.

Robert H. Quinn:

There was a conviction in Suffolk County Superior Court.

Potter Stewart:

And then an appeal to the highest court of your state.

Robert H. Quinn:

Appeal was prosecuted to the highest court of the state, the Massachusetts Supreme Judicial Court, that argument, I believe would have been made orally before the court in the first week of October, but sometime in September, I think September 16th, the motion was filed by the appellees here for postponement.

Postponement on the issue of whether obscenity can be proscribed any longer by any state court, a decision by this Court and–

Potter Stewart:

Postponement of the oral argument.

Robert H. Quinn:

Postponement of the oral argument, as far as that is concerned and we assent that —

Potter Stewart:

Postponement on the entire oral argument, I gather, wasn’t it?

Robert H. Quinn:

That’s what the Honorable Court decided that if there was going to be any postponement at all, it would be a postponement of the complete oral argument.

They would not separate the issues involved in one case.

Potter Stewart:

And so that’s — is that by formal order of the Supreme Judicial Court of Massachusetts?

Robert H. Quinn:

I believe it has been by formal order, Your Honor.

Robert H. Quinn:

Yes.

Potter Stewart:

Postponed pending a decision by this Court, in this case?

Is that it?

Robert H. Quinn:

Yes sir, on the motion of the appellees here.

Potter Stewart:

Did you resist the motion?

Robert H. Quinn:

We did not, we assented to the motion provided that the issues not be divided, but the case be taken as a whole.

We had no objection either to arguing the total case as a whole in October or to postponing the oral argument on the total case, until some decision should be made by this Honorable Court.

Potter Stewart:

But was there anything in the order of the — or action of the three-judge United States District Court or in any order or action of this Court that prohibited the Supreme Judicial Court of Massachusetts from proceeding to a judgment?

Robert H. Quinn:

None whatsoever Your Honor.

Only the motion affirming the action taken.

Potter Stewart:

Its own independent action on motion of the appellees here.

Robert H. Quinn:

That’s correct.

And I respectfully submit that on notice by both parties, I think that the Massachusetts Supreme Judicial Court would schedule a case for oral argument at the earliest convenient date.

Potter Stewart:

They do if what?

Robert H. Quinn:

I think that if pending a visit by the appelles and the appellants here, to the Supreme Judicial Court of Massachusetts, the Court would immediately schedule that case for oral argument there.

Potter Stewart:

Well, I understand as of now, the oral argument has been postponed, until after the decision of this Court, in these proceedings.

Robert H. Quinn:

That is correct.

Warren E. Burger:

May I ask you another question, Mr. Quinn.

Robert H. Quinn:

Yes, Mr. Chief Justice.

Warren E. Burger:

Does the record in this case show any proffer on the part of the State of Massachusetts of evidence tending to show pandering by the type of advertising used, advertising to help this film.

Robert H. Quinn:

It does not Your Honor.

Warren E. Burger:

Does it show anything in the nature of evidence that in fact, minors were not excluded, that there was no good faith effort to keep them from attending?

Robert H. Quinn:

It does not Your Honor.

Warren E. Burger:

You were going narrowly on this one central issue, independent of it – the pandering or access of minors.

Robert H. Quinn:

That is correct Your Honor, on whether as I’ve said in the second issue, to be considered by the Court, whether under the Court’s holding in Stanley versus Georgia, any state can constitutionally prohibit the public commercialized dissemination of pornographic matter, without any consideration to this distribution being to minors, or non-consenting adults or by pandering.

And I have addressed myself to the first argument, which I believe is basic to my appearance before this Honorable Court, that of whether the court below abused its discretion in enjoining the district attorney from prosecuting in the future on account of showing of a film, which has been adjudged by a competent court as obscene.

Unless if you’re — what you’re saying on this will never get in to the merits of the penalty.

Robert H. Quinn:

That is true your Honor, unless the court in its–

That’d be the merits on the Bill not from the Maryland case.

Robert H. Quinn:

I think last week, this Honorable Court heard a lot of arguments on the merits of that film and on the issue of proscribing obscenity, that’s correct, Mr. Justice Harlan.

Robert H. Quinn:

I have suggested that in this case pending, we have the classic example for the application of the principle of abstention, by this Court.

We further submit that if Chapter 272, Section 28 (a), should be read to be overbroad in the light of the most recent decisions of this Court, in Stanley versus Georgia, that that fault could be overcome by a decision and by a narrow construction made in that decision, by our Massachusetts Supreme Judicial Court in the single case, now pending before the Court.

This would avoid the constitutional defect.

And it would further avoid any possible irritant to the federal state relationship, which is a matter of grave concern to this Court, and a matter of grave concern to all of us in the field of Criminal Justice Administration in the United States of America.

Were we to assume that the statutory validity of the Massachusetts law is affected by Stanley versus Georgia?

We think this Court ought to leave for the state and its court to interpret and to limit the application of the state statute, within that holding of Stanley versus Georgia.

Similarly, as this Honorable Court itself has subsequently limited the application of Stanley versus Georgia.

My brother, the Solicitor General will discuss the substance of the second issue, which we have touched upon in the questions put before me, that relating to the constitutional right of any state or any government to proscribe obscenity within the framework of the First Amendment to our United States Constitution.

I respectfully submit again that this Court has heard many arguments on this issue that during this term, as well as the term before.

And I will leave the burden of that argument to my brother, the Solicitor General.

For these reasons, it is respectfully submitted that the judgment below should be reversed.

Warren E. Burger:

Thank you Mr. Quinn.

Robert H. Quinn:

Mr. Chief Justice.

Warren E. Burger:

Mr. Strauss.

Peter L. Strauss:

Mr. Chief Justice and may it please the Court.

As the Court knows, the government appears here today only with respect to the issues in this case, involving the meaning of its decision two terms ago in Stanley versus Georgia and as the Court knows that decision has led to a good deal of ferment in this general area, including the invalidation of two central federal statutes, which we shall be appearing here later in the term to defend.

The facts of Stanley and we think are significant.

The police almost by accident searching through an individual’s home for other purposes came upon three reels of motion pictures and some other items, which no one knew were there, looked through those films and concluded that they were obscene, arrested Mr. Stanley for possession of obscene matter, under Georgia’s statute, which permitted punishment for that purpose.

The case came here and the Court held and what I think was carefully limited language that the mere possession of obscene matter cannot constitutionally be made a crime.

That formula — excuse me?

Warren E. Burger:

Was there any showing in the Stanley case that the possession had been for or was intended for commercial profit, public showing?

Peter L. Strauss:

None whatsoever, to us the central fact and Stanley really was the very accidental nature.

No one knew that Mr. Stanley had that material or certainly no one in the general public knew that before it was discovered by happenstance in his desk.

Well, it’s not quite happenstance, the officers were there searching for other materials.

They certainly didn’t expect to find that.

Warren E. Burger:

So that the issue of public showing or pandering by advertising before public showing were not involved in the Stanley case at all?

Peter L. Strauss:

I don’t think it’s necessary, Mr. Chief Justice, to go so far to be as gentle with Stanley as to say that the issue of pandering wasn’t in that case.

I would put it the issue of public knowledge was not in that case.

And this Court, I think was quite careful in its statement, regarding that case, to indicate that it was simply a matter of private possession that was before and that that was all that the holding meant.

Lower courts however, have not been so minded about the opinion.

Peter L. Strauss:

There is as the Court knows and I’m sure this Court feels that a good deal of impatience about this very troublesome issue of obscenity.

And there are in the opinion here and there remarks which could be take in the way that court below here has taken them.

That if one is careful, if one restricts access to the movie to those who want to see it.

And to those who are adult enough, so that ordinary parens patriae, considerations do not come into effect.

And if one doesn’t offend sensibilities by advertising, well, then one has a constitutional right to show the movie, to commercially exploit it.

And again, since the Chief Justice has brought it up, I want to stress that we aren’t talking here about commercial exploitation, in the sense of the Ginsburg case in a pandering sense, simply public sale, unadorned by any kind of special attention on the hypothesis of this case to the sexual aspects or the sexually provocative aspects of the film.

I should like to start my discussion a little way off in the obscenity question, but in a way that I think again, calls attention to this central character of public knowledge of what’s going on.

Let us suppose that a traveling carnival should come to Washington.

Setup tents, which are perfectly well enclosed and screened from public view and announce that in those tents, for those who wish to pay and come and see it, there will be a bearbaiting contest in which five dogs and a chained bear will be set against each other, until some or all of the participants are dead.

Let’s suppose that that could be done in perfect safety for all of the viewers.

I think that it maybe perfectly clear that no one would leave that tent to commit an act of violence.

And I think it may also be clear that no one who would wish not to see the scene in the tent would be forced to do so.

But I submit it’s also clear that the community to which that carnival came could prohibit it, if it were so minded, and that’s a public policy question on which all might not agree.

But, I think if the community decided to prohibit that show, it could do so.

The distress which is caused to those who don’t come, but who know what’s going to go on in the tent, who know for a certainty what will appear and that is a very real distress.

The long term brutalization of society, which the society may fear will result.

The strain on social fabric through public tolerance of what is to many members of that society utterly repellent.

All of these factors would seem to me to justify such regulation.

It has never been held that society lacks power to protect the sensibilities or to deal with these occurrences, that it must not only tolerate, but in a meaningful sense legitimize these activities.

Potter Stewart:

Do you think your hypothetical would be quite so clear, if it were shown inside the tent or a movie of a bearbaiting contest or are you going to be getting to that?

Peter L. Strauss:

Yes, I think it would be as clear.

It’s inconceivable to me that the court would extend less protection to a theatrical performance than it does to film, just because the performance happened to be live, rather than preserved on acetate.

Potter Stewart:

Well, I suppose community, most communities do, make bank robbery a criminal offense.

But, would a movie showing a bank robbery be a criminal offense — an offense on the part of the television producer?

Peter L. Strauss:

No, but neither would a stage production.

In a bank robbery, I think and I tried to select the hypothetical carefully.

Potter Stewart:

We’re talking about the bears and dogs killing each other, aren’t we?

Peter L. Strauss:

That’s right, well that no offense against the law.

Potter Stewart:

So, it’s not an offense, you hypothesized [Voice Overlap]

Peter L. Strauss:

For the bears and the dogs.

Peter L. Strauss:

Excuse me, for the bears and the dogs, they commit no crime.

There is this offense of cruelty to animals, which I think is what you’re referring to.

But I think that is an entirely analogous offense to the obscenity offense.

It is an offense designed to protect human sensibilities.

The dogs and the bears that may survive the fighting aren’t in any sense punished.

Thurgood Marshall:

What about Bonnie and Clyde?

Peter L. Strauss:

Well, I think–

Thurgood Marshall:

Is that offensive to some people?

Peter L. Strauss:

I think my answer is–

Thurgood Marshall:

Isn’t that offensive to most people?

Peter L. Strauss:

I wouldn’t say Justice Marshall, and I suppose it’s not really important to do so, as I just stated, I don’t think it would make any difference, whatsoever, if Bonnie and Clyde were presented on the stage, rather than in the form of a movie picture, that’s part of my point.

Thurgood Marshall:

Do you think a state could ban it?

Peter L. Strauss:

I don’t think it’s necessary for me to say so.

I personally wouldn’t think so, but I don’t think that’s important here.

Thurgood Marshall:

You don’t see any problem with it?

Peter L. Strauss:

I’m afraid I don’t see the direction–I don’t see what you’re getting at–

Thurgood Marshall:

Well, if I understand you’re at the point of saying that obscenity is against the people in the communities, morals, customs, and beliefs.

And I’m really asking you, is Bonnie and Clyde also in that category?

That’s only the point I’m making, trying to make.

Peter L. Strauss:

I suppose such statutes have been generally thought to be more difficult to administer, without saying whether it was Bonnie and Clyde, in particular, I suppose if there were a statute, which could be sufficiently, carefully drawn as to which one could make the conclusion that was made in Roth, regarding obscenity legislation that it is not vague that a state could indeed prohibit the screen depiction of certain forms of carnage, yes.

Thurgood Marshall:

Crime?

Peter L. Strauss:

Yes.

Warren E. Burger:

Mr. Strauss, going back to this other earlier question, are there some forms of conduct, which if they occur in private are completely innocent and protected, but if performed in public are not protected?

Peter L. Strauss:

Well, I think that’s the matter of the Court, at least the forms of conduct that are coming to mind maybe a matter that the court hasn’t yet decided.

I may say, it maybe my fault, I have the feeling of having gotten into somewhat of an alley.

I am not trying to draw any distinction here between conduct on the one hand and representations of conduct on the other hand.

Warren E. Burger:

Well, my question is, precisely, precisely directed at that, now, perfectly simple example is that it’s entirely proper and highly desirable to take a shower.

And you might find yourself arrested, if you took shower in the center of Pennsylvania Avenue, is that not true?

Peter L. Strauss:

Certainly true, but —

Warren E. Burger:

Now, if you, on the other hand, you cannot rob a bank either in private or in public, with impunity can you?

Peter L. Strauss:

In terms of actual robbing of the bank, of course not.

Warren E. Burger:

The robbing of the bank is subject to penal sanctions, whether you do it in the utmost of privacy in the middle of the night or at high noon with a number of spectators.

Peter L. Strauss:

There are many who tried to do it in private.

Warren E. Burger:

So, that makes quite a difference between bank robbery and some of these other things, doesn’t it, the taking of a shower on Pennsylvania Avenue at high noon?

Peter L. Strauss:

Surely, it does.

I had a different impression of what had been troubling the other Justices.

I think I can say no more to it and it maybe in a sense twisting the Court’s language in Reynolds and Sims.

The Court said that legislatures represent the people, not houses or trees, or I might add dogs or bears.

And in giving that hypothetical, it seems to me that if one thinks about it carefully, one would reach the conclusion that those laws are there not to make the behavior of the dogs and bears criminal, but to protect certain human sensibilities.

And this is an area of traditional regulation, just as obscenity regulation.

It’s an area of traditional regulation, and one then does get to the question, is it important that this on film as distinct to in a live performance?

And I think the answer there is no, it is not.

This Court’s opinion last year in Shack gave no indication that it would have reached the different question, would have reached the different conclusion, had that been a film the Gorilla Theater episode, rather than a Gorilla Theater episode.

Indeed, if anything film performances can be even more intrusive in a sense to the society’s sensibilities in a way one has to deal with–in a stage production.

One has to deal with a situation which is necessarily human and in a real sense remote.

There’s only so close that you can get to the stage.

In a film performance with the possibilities of staging, close ups and what have you.

But these difficulties or I think really very substantially aggravated.

When we come to the question how we’re going to understand Stanley.

The government believes that the Court meant what it said, when it said that Stanley was a holding limited to its fact.

And it did not impair the validity of Roth for any commercial setting, as we’ve called the Court’s attention before.

And there is much reference in that opinion to notions of privacy and freedoms from intrusion and we feel those references are central.

And the opinions quotes at length from Mr. Justice Brandeis’s dissent in Olmstead.

It refers to the Griswold opinion, Griswold versus Connecticut, where the court put it this way.

The present case concerns a relationship lying within the zone of privacy, created by several fundamental constitutional guarantees.

And it concerns a law, which in forbidding the use of contraceptive, rather than regulating their manufacture or sale seeks to achieve its goals by means having a maximum disruptive impact upon that relationship.

Stanley is an entirely similar case.

It is a case in which the state sought to regulate in a manner having a maximum destructive impact and this Court, I think quite properly said that it might not do so.

Potter Stewart:

On what provision of the United States Constitution do you understand the Stanley decision to have been based?

Peter L. Strauss:

Well, I think there are three basically.

Peter L. Strauss:

There are two, which were expressed, the First and Fourteenth Amendment, and the third, which was not expressed, the Fourth Amendment.

And I think the Fourth Amendment centrality is made clear by the reference to Olmstead, by the reference to notions of privacy, that the stress really on privacy as a coordinate part of the opinion in that case.

In a way I think it’s central to the Stanley opinion, that unlike the other obscenity decisions in this Court, the opinion does not talk about the material.

The opinion refers to the rights of the person and not to the protected character of the material or not.

And when one starts talking about the individual rather than what he may have and the individual’s First Amendment rights, it wasn’t that the material was protected under the First Amendment, but that the individual had First Amendment rights.

Then it becomes, I think clear that what we are dealing with.

Again, citation to Griswold is a kind of penumbral analysis, which we try and set out in our brief, that to protect the individual’s rights to read, to learn, it is necessary to afford a kind of penumbral protection in which the matters which may not contain information, may not contain ideas are nonetheless ignored.

And again, I think the Court was very careful, while it did refer to a right to receive information and ideas.

It never once said that the material, which he had was material which contained information and ideas.

If it had said that, then it would’ve been saying that that material had First Amendment protection.

It didn’t say that–

Potter Stewart:

I don’t have the opinion in front of me, so I’m relying on my recollection, but would you disagree that so far as explicit articulation went at least, the decision was bottomed on the First Amendment, made applicable to the State of Georgia, at least for the Fourteenth?

Peter L. Strauss:

Well–

Potter Stewart:

Isn’t that what the court said?[Voice Overlap]

Peter L. Strauss:

I would have to agree–

Potter Stewart:

Specific supervision of the United States Constitution.

Peter L. Strauss:

I would have to agree that Fourth Amendment was not mentioned.

When however–

Potter Stewart:

But, in the First Amendment was–

Peter L. Strauss:

And the First Amendment was, when–

Potter Stewart:

And mentioned as rather euphemism.

Peter L. Strauss:

When however privacy of the home, notions of privacy are referred to as frequently as they were in that opinion.

One must believe that the Fourth Amendment was involved.

And in any event, when the opinions so carefully discusses the right of the individual, rather than the nature of the material.

I think one must be quite clear that the holding was not holding, that these materials were in any sense protected by the First Amendment.

And it was a holding that the individual, in his home was protected by the First Amendment.

And that to us is really central.

Mr. Stanley did not advertise to the world what he had in his bedroom.

As the facts of the case show, the police had no reason to suspect what they might find.

He kept it private, as long as he did so, society could claim no greater interest in what was there, than the supervision of his own personal morals.

Peter L. Strauss:

That this Court said was not enough, and I think the court was quite plainly correct in doing so.

But, here there’s no such privacy.

Appellees proclaimed to the world what maybe seen in the theater, however discretely they may do it.

And that notoriety in itself changes the issue from an issue of private morality to an issue of public morality.

Because the contents of the film and its location are known to the public, the government must not only tolerate, but in an important sense, legitimize that film.

And if the film is obscene and now we have to talk about the First Amendment protection of the materials, not the man, if the film is obscene, we submit that government can’t be required to do that.

Warren E. Burger:

What you’re saying I take it is, that if the same film that we’re dealing with here is possessed by private persons in their homes with no indications that they had it for commercial purposes that it would be completely protected under Stanley?

Peter L. Strauss:

Those persons would be completely protected under Stanley.

The film would not be protected.

Warren E. Burger:

Well, but if the persons were, they can’t reach the film as long as it remains in the house.

Peter L. Strauss:

Well, that’s true, but while these matters are subtle, I think that one has to be very careful just because of the risk of the kind of emanations, which one finds in the lower court opinions today.

The lower courts, rather carelessly I think have treated that opinion is going to the material.

I’m treating the opinion as going to the material, they have said, well, if an individual can have the material, then somebody has to have the right to sell it to him, and therefore, as long as he sells it to whom in a proper way, everything is alright.

I think as we read the opinion rather, one would say in the circumstance of an —

Warren E. Burger:

You’re referring to the Stanley opinion now?

Peter L. Strauss:

That’s right.

As we read the Stanley opinion, and one would have to say, rather that in the circumstances of an individual, having a book or a film in his house, which no one knows about, the only interest of the state in regulating his conduct, is an interest in private morality.

And that, in those circumstances, in the context of the First Amendment, in the necessity under Griswold of a penumbral protection for those rights, simply is not enough.

Warren E. Burger:

Thank you, Mr. Strauss.

Mr. Lewin.

Nathan Lewin:

Mr. Chief Justice, may it please the Court.

When this case was argued last term, among those argued with it was Gunn versus University Committee, number 7 last term.

And which the court dismissed the appeal on the last day of the term, when it set this case and its other companions over for re-argument.

On the ground that the three-judge district court in Gunn had failed to enter any injunctive order, whatever.

And it was therefore, quoting the Court’s language, “Not possible to know, with any certainty what the Court has decided.”

In this case, by contrast, the appealed order is short and specific.

And it clearly discloses what the court below has decided.

And we submit that if that injunction is analyzed in terms of what it does not enjoin, as well as in terms of what it does.

It emerges as a permissible and proper action, by a Federal District Court, seeking to preserve for state prosecutors and courts, their proper role in the enforcement of restrictions, upon the distribution of obscenity, while retaining the First Amendment rights of motion picture exhibitors and distributors in the interim.

To the extent, I would submit, that the opinion of the court below goes beyond the terms of the preliminary injunction and expresses views concerning the constitutionality of the statute as ultimate decision.

Nathan Lewin:

It’s nothing more than an advisory opinion or as was suggested in some of the cases argued before the Court yesterday, in terms of declaratory judgment, which maybe appealable by the state, if it views it is such to the Court of Appeals.

But, the issue here, we submit, is framed by the injunction, which appears at pages 44 and 45 of this record.

Now, what does it enjoin?

The injunction prohibits and enjoins the defendants, the state prosecutors, local district attorney and the state Attorney General’s office from proceedings civilly or criminally or otherwise interfering with the appellee’s exhibition of the film, “I am Curious Yellow” so long as that exhibition is conducted under certain specific circumstances, which cover the areas of pandering, and intrusion.

And it provides in addition, that the order is not to prevent or inhibit in any way, the prosecution of a then pending criminal proceeding in the Massachusetts States Courts, which was then on appeal, from a judgment of conviction and which the motion picture exhibitors, who are perfectly legitimate theater owners and have shown award winning films in the past was sentenced to one year in jail for having shown this film.

Now let me, if I may just clarify for a moment, just to clarify the status of that case, in the Massachusetts state court and supplement somewhat on what Mr. Quinn has advised the Court.

That case, those convictions, were appealed to the Massachusetts Supreme Judicial Court, briefs were filed.

In the state’s brief, which was response to the appealles brief in the state court, the state concluded with the following language.

Since–speaking of this Court, that court’s adjudication in the Maryland case, which was argued here last term, will bind the Commonwealth, it is respectfully suggested that this court, the Massachusetts Supreme Judicial Court, hold its decision upon the obscenity of the film, in abeyance, pending that adjudication, not the adjudication of this case, but the adjudication of the Maryland case, and which the obscenity of the film is an issue.

Pursuant to that suggestion, these appellees, feeling that that issue would be resolved ultimately by this Court, even irrespective of how they would resolve by the Massachusetts Supreme Judicial Court moved that the issue of obscenity and that issue alone await the decision of this Court in the Maryland case.

But that the other issues be considered by the Massachusetts Supreme Judicial Court.

The Massachusetts Supreme Judicial Court acting on that notion staid the entire argument of the case, so the entire argument is staid true in form on our motion.

But, really at the suggestion of the state that the Maryland case would be dispositive of the issue of obscenity, which I think is plain truth.

If the court were to — there were of course, other issues in the Maryland case, that assume that the court were to reach the issue of obscenity in the Maryland case, and were to decide that question one way or the other.

Of course, resolution of that issue, I might say might very–if it were resolved in favor of the film, might very well have the effective mooting out this very case, as well.

Because the sole issue here is whether these exhibitors may continue to exhibit this film in the interim.

Now–

Warren E. Burger:

Let me ask you this question, if I may, if the conduct, which is the target of the state of Massachusetts in this case, occurred on Pennsylvania Avenue, would you think that the principles would have the First Amendment right or would they be subject to arrest, trial, conviction, and punishment?

Nathan Lewin:

Mr. Chief Justice, I agree, they would be subject to punishment.

I think — let me just say, for purposes for our own argument and with the Court’s permission, the matters of the issues discussed by the Assistant to the Solicitor General, the Stanley issue and all that — all those ramifications of that issue were to be covered in our argument, by Professor Dershowitz, my colleague, who will be arguing the second half of the argument.

Now, we will definitely address ourselves to those questions, in this portion of the argument, I would limit my argument to — as it were the Dombrowski, the abstention, the Federalism issues–

Warren E. Burger:

I’ll defer my question to Professor Dershowitz then.

Nathan Lewin:

Thank you very much.

I’m afraid that on the question of the federalism and the federal court’s role in this case.

Some confusion may have been engendered by papers, which we filed at — upon the application of the state for stay last term.

When it appeared, I believe just from those papers is if in some way, the Federal District Court in this case, was barging into a state prosecution.

If anything, the record in this case demonstrate, we submit, that what the District Court below did was at successive stages of this litigation defer and refused to act until the juncture was reached, at which if it failed to act, speech which was eminent, pending, and in fact, had continued until the date of its action, would not merely be chilled.

If I may proceed from the Court’s metaphor, but would in fact be put in the deep freeze, because the consequence of the action, which caused the Federal District Court to issue the preliminary injunction, which it did, was the withdrawal by the prosecutor, in the state courts, of an agreement under which he would permit the film to continue to show while the various issues were being litigated through the Massachusetts courts.

In fact, what did the court below do?

Its order plainly demonstrates that the court permitted the one pending state prosecution to go on.

Nathan Lewin:

In addition to that, the opinion of the court below and the language of Judge Aldrich, who wrote the opinion, which appears at page 37 of the record, concludes with an explicit caveat to these appellees, stating that the court voices no opinion, as to the legal consequences if plaintiffs exhibit their film, under the protection of our injunction, and it is ultimately determined that our view was mistaken, and that such exhibition was properly considered elicit.

In effect, what that language in Judge Aldrich opinion states is that the continued exhibition of the film, even under the protection of the injunction is still subject to the risk that at the conclusion of whatever ultimate decision is reached on the various constitutional issues, these appellees maybe prosecuted, in fact retrospectively for the showing of the film, which they engaged in during the entire period of the litigation.

So that is if there is anything that’s clear from the terms and the order, it is that in no way forecloses any state court determination of any relevant issue and in fact doesn’t — not only under Dombrowski doesn’t enjoin any state prosecution but any pending state prosecution, but doesn’t even enjoin future state prosecutions.

At most it defers them if they’re legitimate to some ultimate date at which if they can properly be brought they can then be instituted.

Potter Stewart:

You say it doesn’t enjoin future prosecution?

Nathan Lewin:

No Your Honor, we think it does not enjoin.

Potter Stewart:

What do you think the language on page 44 means?

Nathan Lewin:

What it means is that the prosecutor may not in the period of time until the issues are resolved, institute civil or criminal proceedings or seize that film. But the language of Judge Aldrich that appears on page 37—

Potter Stewart:

Now, you are referring as to the order?

Nathan Lewin:

I’m referring to the order.

Potter Stewart:

And then you made a statement which I wholly agree that’s the order that’s being reviewed here.

Nathan Lewin:

That’s right, and the order enjoins the institution of proceedings.

It does not however say that if the film has finally found obscene, these appellees may not then be prosecuted for having showing the film in the interim.

If the case is viewed as we think it properly should be as to what are the appropriate steps for a Federal District Court to take when it has before a case in which there is some doubt as to the constitutionality of the statute under which the state is proceeding where the State has no injunction power.

And I think that’s important in this context.

The State of Massachusetts has not authorized each prosecutors to go into court and obtain injunctions against the showing of films.

It has an interim proceeding applicable to books but none with respect to films.

So it authorizes criminal prosecution.

Now there is a criminal prosecution with respect to a film under a statute which is a questionable constitutionality with respect to a film which a Federal District Court has found prior to its opening to be not obscene.

And Judge Aldrich took notice of that too and that appears in his opinion.

And the film is shown under very careful safeguards to avoid pandering, any showing to minors, any intrusion on the public.

In those circumstances, the Federal District Court says in the interim until the issues are resolved we think you have a First Amendment right to show that film subject possibly to future prosecution for you having shown it, but you will not be hold into court everyday and indicted everyday and have the film seized everyday because you are showing it because that would in effect be a form of censorship.

A form of censorship by threat to be sure but it would be a form of censorship.

And we submit that that’s under all doctrines of nonintervention or abstention or whatever federal policy applies we think that’s appropriate.

The court below stayed its hand until that point where the threat the prosecutor to make — to continue to prosecute and to indict and seize the film had the effect of an effect of closing it down.

Now let me—

What’s the statute of limitations on the obscenity prosecutions?

Nathan Lewin:

Six years so that there’s no question that that it would be within the statute if prosecutions were subsequently brought.

Warren E. Burger:

That would mean six years from the last showing?

Nathan Lewin:

Well, I think six years from any criminal act which would be the showing — any showing if they are to be prosecuted—

Warren E. Burger:

The only one we’re concerned about is six years from the last one, isn’t it?

Nathan Lewin:

Well, I think that should be true Mr. Chief Justice, but there is one there is already a prosecution.

The problem that this case presents is that a showing of the film can be subject to multiple prosecutions.

These appellees have assumed the risk of a single prosecution and indeed they are prepared to assume even the risk of multiple prosecutions if they’re proved wrong.

The only thing that they seek and that they obtain from — they sought more but the only thing that they obtained from the District Court was an order which prevented multiple prosecutions while the film was being shown, while the litigation was going on, and while their rights were still an issue.

At that period of time, we submit they’re entitled to federal relief to permit the film to show in the interim until that date when it is finally decided whether they’re right or wrong.

Anyway you are probably saying that an interference with the process of state criminal prosecution to the extent that it prevents prosecution by the state.

Can you escape that?

Nathan Lewin:

To that extent we agree Mr. Justice Harlan.

Well that’s the whole issue is, so that—I don’t quite understand your argument about it.

Nathan Lewin:

No, it’s because it’s an interference with a state criminal process to obtain rights which could not be obtained in the state criminal process Mr. Justice Harlan.

In other words, assuming even assuming that the law were which I think this Court’s cases have conclusively established otherwise, but even assuming the law were that one had to exhaust state remedies, as it were to obtain relief from a Federal District Court in a free speech case, in these circumstances, there is no way that these appellees could say and in fact obtain the right to show the film while its obscenity was being — the matter of its obscenity was being litigated.

They couldn’t obtain that in a defense to a state criminal prosecution.

There’s just no way they could.

They can defend the state criminal prosecution, they can say we’re not guilty, put the state to the test of proving the obscenity of the film.

But when they want to show the film on November 12, 1969 and thereafter, the only remedy they have is to go into a Federal District Court at that point and say, “We institute this action and seek this relief.

We have a right to show the film on November 13th and 14th and 15th while it’s obscenity is being tested under the state criminal process.”

Now, that we submit is a permissible interference.

What the cases prior to Dumbrowski and what the general principle of nonintervention of federal courts and state criminal process involves we submit, are only those instances where the same relief or the relief that the plaintiffs are seeking could be obtained from the state process.

Here, that’s just not possible.

These appellees, so far as trying to show the film in the interim could not obtain any relief from the state courts.

They could defend the criminal prosecution.

If the state had had an injunctive procedure under which the state prosecutor could go into state court and seek an injunction then they would have that remedy in a state court.

They could defend against bad injunctive proceeding.

Of course, if the state prosecutor decided not to institute it, they would never have it.

But assuming it did — they could defend and litigate the right of showing the film in the interim, there is no such procedure.

Potter Stewart:

Does Massachusetts have a declaratory judgment procedure?

Nathan Lewin:

It has a declaratory judgment procedure Mr. Justice Stewart.

However, the standards that the Massachusetts Supreme Judicial Court applies in the declaratory judgment cases indicate that this issue could not be raised.

We have this pending, I think on this Court’s docket now is the case involving the obscenity of the stage play Hare — the PBIC versus Byrne, which involved an attempt to obtain a declaratory judgment from the Massachusetts Supreme Judicial Court which was subject to various state objections that the state raised in that case.

Nathan Lewin:

And that case demonstrates how hard it would be even to obtain a declaratory judgment on the initial question, which is the obscenity of the film.

But certainly, in terms of the right to show it in the interim, which is really what we say is at stake here and all that is involved in this injunction that right could not be asserted in the state court.

And it certainly could not be asserted in a defense to a criminal prosecution because the only issue in the criminal prosecution would be whether the film is obscene, whether all the other constitution and statutory standards are met and the judgment of conviction and not whether the film would be shown of the 13th or any other days.

On this general principle of nonintervention, if I may just address myself to it briefly, this Court’s decisions ranging way back and certainly commentating in Zwickler and Khuta have made it clear.

I think Zwickler and Khuta, the Court quoted from a District Court opinion which made it, and I just quote that briefly.

The Court said, “We yet like to believe that wherever the federal court sit, human rights under the federal constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted and they be adjudicated in some other form.”

Now here, in this case we submit follows a fortiori from Zwickler and Dombrowski and all the others because the right that’s covered by this preliminary injunction and let me emphasize it is a preliminary injunction and therefore the standards that ordinarily apply to preliminary injunction, we submit should be applied.

In other words, District Courts have broad discretion to decide on the probabilities of success of the ultimate outcome of the litigation and issue preliminary injunctions in those terms.

Here we deal with a preliminary injunction and we submit for that reason certainly, rights which couldn’t be asserted in a state court, which these appellees had no way of asserting in a state court should properly or properly protected by the Federal District Court and should be affirmed here.

Now I would like — if I may just briefly to go to the question of the effect of the decision of the Court of Appeals for the Second Circuit, which was raised also in the argument last week before this Court, and which we think applies to these circumstances as well.

One has here a set of facts in which what the state prosecutors have sought to do was prevent the exhibition of a film under a statute which the court below found and we submit properly a subject to constitutional challenge.

When that film itself had prior to its opening been found to be constitutionally protected by United States Court of Appeals.

Now, we don’t argue and of course we couldn’t argue that defining of United States Court of Appeals is binding on the State of Massachusetts as a matter of res judicata.

What we do argue and we elaborate then the distributor who’s the appellant in the Maryland case elaborates at some length and our brief in that case and we think it applies here as well, is that there — in terms of protecting and giving wide scope to free expression the decision of the Second Circuit and the decision of the Court of Appeals or indeed any decision which is binding on the United States, should as a matter of First Amendment law be applied by this Court to bar other proceedings to prevent the exhibitions of the very same material.

Now that’s just a very — in terms of the practical consequence on distributors and exhibitors of films and books that’s just a very important rule.

This Court has on its docket right now pending in one form or another five cases involving the exhibition of this film, five cases out of the States of Alabama, Florida, Massachusetts, Maryland and Ohio all involving the exhibition of this film.

As was stated in the brief in the Maryland case there were 144 lawsuits in the country involving the exhibitions of this film essentially in the distribution of films and books throughout the United States to put a distributor or an exhibitor who has established to the satisfaction of a Court of Appeals and a judgment binding on the United States which could have enjoined by states throughout the United States.

That a film or a book is constitutionally protected must we submit act to prevent future harassment, multiplicities of litigation which otherwise makes the distribution of such First Amendment material or arguable First Amendment material close to impossible.

And that’s why the argument made is essentially that that judgment although not operative as a matter of res judicata should like various other decisions of this Court which have found judgments binding on the United States in the search and seizure area, in the self-incrimination area to be in effect have operative affect on state prosecutors and state bodies that that very same rule should be applied in the field of arguable obscenity in the filed of books or movies that are distributed nationwide that go through a federal proceeding that are conclusively adjudicated by a federal court as being constitutionally protected and should be—we submit free of multiplicities and repeated suits in various local jurisdiction.

Potter Stewart:

Your theory is that the Second Circuit Court of Appeals proceedings gave it kind of license a federal license that under the supremacy clause or for some other reason had to be honored in every state or county, is that basically your theory?

Nathan Lewin:

A license in the sense that it gave us a First Amendment shield.

We think that if — this is a one need to parade horribles.

The history of this case—

Potter Stewart:

I’m just asking about your theory of this.

Nathan Lewin:

Yes right, the history of this case shows and this movie shows what the contrary result — or what the absence of such a rule really results in, which is—

Potter Stewart:

Well what’s your rule dependent on that’s my question.

What’s the rationale that supported your submitted rule?

Nathan Lewin:

The rationale is that if vis-a-vis, the United States material is found to be constitutionally protected under the First Amendment, states which have had an opportunity to enter that litigation assuming it’s a judgment, which have had an opportunity to enter that litigation should not thereafter, as a matter of First Amendment law be able to inhibit its distribution, sale and publication by under local ordinances.

Potter Stewart:

Why?

Nathan Lewin:

Because if the right to free speech, the First Amendment right, is to be given the breathing space it needs which this Court has referred to in various occasions, the danger to it of threats of multiplicities litigation must be prevented.

Nathan Lewin:

In other words, it’s simply as it were a preventive rule, a prophylactic rule that we submit the Court should adopt to prevent the very kind of situation which is a reason with regards to this film.

Potter Stewart:

Well, I have still trouble understanding the rationale in support of the rule.

I understand the rule that you submit but I don’t understand the reasoning that supports it, apart from what I try to verbalize.

Nathan Lewin:

I think—

Potter Stewart:

To get sort of a federal license.

Nathan Lewin:

It’s —

Potter Stewart:

That is paramount to any attack of the state.

Nathan Lewin:

I prefer to call it —

Potter Stewart:

— a federal pilot’s license and then you can go on every directional through intrastate waters.

Nathan Lewin:

I’d prefer to call it a federal shield, but I think that’s essentially what it is that’s right, but only in a litigation.

Let me say federal license, which can’t just be granted unilaterally but only in litigation where the state has the opportunity to come in.

That’s really our argument we think of the state —

(Inaudible) operate then, very supposing the Second Circuit would check the film, or its —

Nathan Lewin:

Well, if it said the film was obscene it wouldn’t be here Mr. Justice Harlan, it’d be out of the country and we couldn’t have brought it in.

Of course we would have taken it up to this Court but it just wouldn’t be here.

Thurgood Marshall:

How would you know that this is the same picture?

Nathan Lewin:

I think that could be contested.

I think if a state were to say they’ve added things to the movie, I think that’s an appropriate issue that a state may consider.

Warren E. Burger:

That’d be a fact question in each case, wouldn’t it?

Nathan Lewin:

That would be if—but I think in this case I must say its totally undisputed that the very same versions of the film were being shown all over the country.

But—

Thurgood Marshall:

What worries me about the children in fact, it’s been shown before 5 million people.

It was a little warm rather than chilling.

Nathan Lewin:

It’s true, that’s true but it’s awfully cold in Maryland, Massachusetts, Alabama, Florida and Ohio.

Thurgood Marshall:

As I said last week it’s not totally cold in Maryland to the people who can’t drive to the district.

Nathan Lewin:

The problem with that Mr. Justice Marshall of course is that you’re imposing an added burden to obtain material which is subject to constitutional protection.

We think that’s not proper.

You can’t just say “Well, since if we allow it in various regions of the country where people can reach it by traveling that’s good enough.”

Thurgood Marshall:

I just don’t understand your answer to my brother Stewart here that you don’t have some obligation to litigate this.

You just want — now you don’t even want to litigate it, except in one court.

Nathan Lewin:

We think, well in —

Thurgood Marshall:

Isn’t that what you’re saying?

Nathan Lewin:

That is what we’re saying.

We don’t have an obligation to litigate if we litigate against the United States in a case where — in a federal court where the states and local jurisdictions could come in if they wanted.

Thurgood Marshall:

Well, you mean the State of Hawaii could come in to New York and defend its —

Nathan Lewin:

Oh! Yes.

If it wanted to claim that the film should not be shown in Hawaii, yes.

Thurgood Marshall:

You wouldn’t consider that a burden on Hawaii?

Nathan Lewin:

We think where the burden —

Thurgood Marshall:

What you would consider the burden on you if it didn’t have.

I’m just worrying about this shift in the burden.

Nathan Lewin:

Well, the difference is that the State of Hawaii has no constitutional right not to be in a New York Federal District Court.

What we maintain, and I think what the decisions of this Court in Dombrowski and prior to would have said is that what the First Amendment requires, in terms of breathing space is prevent where necessary even unnecessary multiplicities repeated litigation.

Thurgood Marshall:

So what do you see in Dombrowski that says that that applies to other peoples other than Dombrowski?

Nathan Lewin:

Well, I think what the Dombrowski could —

Thurgood Marshall:

What do you find in Dombrowski that says that?

Nathan Lewin:

Well, I think what the Dombrowski opinion does say is —

Thurgood Marshall:

Are you saying that the Dombrowski opinion is enough so that somebody tried to search somebody in New York, they can’t do it?

Nathan Lewin:

No, no I don’t — but what the Dombrowski opinion does say is that the threat of sanctions and that — by imposing on a party who’s exercising a First Amendment right, the obligation to go through repeated litigation that in itself will deter speech.

And I think, Your Honor, adverted exactly to that in the interstate circuit case.

There is language in the interstate circuit case which talks about the fact that the ordinance of the City of Dallas, if other cities do the same thing, will have an inhibiting effect on the motion picture industry in Hollywood.

Thurgood Marshall:

I thought we said in that that was all right involving children?

That you could prohibit children from seeing the picture, I thought that’s what we said in that case?

Nathan Lewin:

But the licensing statute in that case was struck down and Your Honor referred to the fact that if Dallas could do what it does, then every other city could do what it wanted to do and the result would be that those who produced films would not produce anything that’s even close to the line.

That’s exactly what we’re talking about here.

If this film can be subjected to a 144 lawsuits and five trips to this Court, then people are obviously deterred from producing any films which maybe subject to litigation.

Thurgood Marshall:

Have you any figure to show that these motion pictures are dropping off in numbers?

Nathan Lewin:

In terms of —

Thurgood Marshall:

Because I gather some would say the opposite.

Nathan Lewin:

You mean motion pictures that are close to the line if that — I think the real test is whether the effect of litigation is inhibiting —

Thurgood Marshall:

I hope you’re not saying that it’s been chilled.

Nathan Lewin:

Well I think Your Honor with all respect I think it has been chilled with regard to legitimate distributors and exhibits.

Thurgood Marshall:

It means it if one distribute their obscene pictures is bankrupt?

Nathan Lewin:

Well, I can only say that the distributor of this film has incurred very very substantial cost in litigating these issues through the various Courts and that in fact it is bound to be an inhibitory —

Thurgood Marshall:

Well, I assume that the profit — if there are four million that have seen it $5.00 a head, my arithmetic could get in trouble.

I wouldn’t get — what I’m trying to say is I wouldn’t get in to the point about trying to get this license.

You don’t need that for your case, do you?

Nathan Lewin:

I don’t think so, but I just an alternative ground that I think we have relied on in the brief and that I just wanted to discuss somewhat on not a lot.

Alan M. Dershowitz:

Mr. Chief Justice may it please the Court.

Warren E. Burger:

Mr. Dershowitz.

Alan M. Dershowitz:

Simply in response to that, it may be relevant.

Though of course it’s not I the record that the staff of the distributor of this film was not a commercial pornographer, has dropped from 39 to 3 and great part as a result to the cost of this particular litigation.

So it certainly does have a chilling effect.

Not only under distribution of films that are close to the line but on the distribution and the operation of a company which decides to distribute films which run the gambit and which may run a foul of state conceptions of immorality.

Warren E. Burger:

Now General Motors wouldn’t make that claim with reference to the drop in its stock.

Alan M. Dershowitz:

No but we do with reference to the drop in this stock.

At least in part and I think —

Warren E. Burger:

Pretty speculative, isn’t it?

Alan M. Dershowitz:

Well speculative but I think is supported by the information that we have at hand but I did want to dwell on that.

Warren E. Burger:

Before you — I have to interrupt you again, Professor Dershowitz.

Let me ask you.

Did you — would you accept the postulates I think advanced by the Solicitor General on the bearbaiting, the right of the state to prohibit bearbaiting contest for public exhibition or otherwise.

Alan M. Dershowitz:

Well I think the Solicitor General has suggested the only possible distinction between the Stanley case and retro cases that preceded it and the case that’s before this Court now.

That is the distinction which rests on public sensibilities.

That is the public knows what’s going on in the theater whereas the public does not know what’s going on in a private home.

I submit that that distinction was rejected by this Court in the case of Griswold versus Connecticut.

In that case you will recall the prosecution was not directed against the users of birth control.

The couple, the married, couple that was directed against clinics, centers they will call under Connecticut law.

They were open centers, they were visible, they were so to speak on Pennsylvania Avenue.

They were of course discreet and yet they disseminated the information and materials necessary for a birth control.

Alan M. Dershowitz:

The public, knew that birth control information was being disseminated and the public in Connecticut was offended by that fact alone as reflected by its legislation.

Yet this Court decided not only to protect the rights of those who would use birth control materials and information but also necessarily by its holding the right of a clinic though its public in some senses to discretely give out the information and materials necessary for the effectuation of the primary right.

Now in an important respect, this case is a fortiori from the Griswold case.

The Griswold case involved purely, the Fourth Amendment right.

The constitution is neutral on whether or not couples practice birth control.

There is no First Amendment right involved there.

Indeed, it’s an activity rather than any arguable speech.

So that case relied exclusively under Fourth Amendment.

This case although it may conceivably have Fourth Amendment overtones, we concede it cited the Olmstead case.

Certainly also the Government would concede has important First Amendment overtones.

The primary right, the right to satisfy ones emotional and intellectual needs in the privacy of his home is a First Amendment right centrally.

And so one would think, I certainly would argue that the decision of this Court permitting the dissemination of material necessary for the use of birth control in the Griswold case would necessarily require a limited discrete opportunity to obtain the materials which are necessary to satisfy the intellectual and emotional needs described in the Stanley case.

Warren E. Burger:

Would you mind coming back now to the bearbaiting that we were talking (Voice Overlap) —

Alan M. Dershowitz:

Right.

Now on the bearbaiting I would think there is no constitutional protection for bearbaiting.

Bearbaiting is an act of course.

It’s a real act.

Animals are killed.

The constitution certainly permits the states the right to protect the interest of animals as distinguished from the interest of the sensibilities of those people who are concerned about the rights of animals.

Warren E. Burger:

Are both involved in the prohibition?

Alan M. Dershowitz:

Both?

Warren E. Burger:

Aren’t both factors involved in a statute which prohibits that kind of conduct?

Alan M. Dershowitz:

Well, I think the example would be better if were a film, as you put it, a film of bearbaiting.

We know —

Warren E. Burger:

I know, switch on the reality through first, let’s stay on the live —

Alan M. Dershowitz:

Well I think I would have to say then that the constitution does not permit individuals who choose to have their sensibilities offended.

Perhaps that’s a contradictory term.

To choose to have your sensibilities offended.

The constitution would not permit prohibition of an event.

If it were protected by the First Amendment and arguable bearbaiting itself might not be the film where an exhibition of it might be — would protect that right, if the only interest at stake were the desire to protect people against sensibilities which they have voluntarily decided not to be protected against.

Warren E. Burger:

Well, then now are you saying that it’s all right to kill one bear and five dogs in a filming process but it isn’t alright to kill many more of them in the live showing, is that it?

Alan M. Dershowitz:

No I wouldn’t say that.

I would say a state would have the right to prohibit the killing of dogs and bears whether for film or for other purposes.

The protection of animals is perhaps arguably a constitutional right.

Warren E. Burger:

Since we agree on that, suppose it developed in a particular case that – no use naming the states but let’s say 14 states had not enforced, not sought to enforce or didn’t have any statutes against bearbaiting, and four-and-a- half million people had watched bearbaiting or the filming of bearbaiting, would that have any slightest relevance in your judgment on whether the showing of bearbaiting in Boston, Massachusetts could or could not be stopped under Massachusetts statute by prohibiting it?

Alan M. Dershowitz:

The fact that many people have seen it —

Warren E. Burger:

As the 14 —

Alan M. Dershowitz:

No, the First Amendment protects the individual right to receive information necessary to satisfy his emotional intellectual needs.

The fact that some people in Baltimore might come to see it in Washington, the fact that some other people in the United States have seen it, to me, to our argument is not necessarily relevant.

In fact, there were many people who would like to participate in an activity which has First Amendment ramifications and which the state is forbidding them to participate in that is to watch, to exercise the First Amendment right for no arguable, for no presentable reason.

Now, certainly what we would argue is that if a person takes a shower on Pennsylvania Avenue that certainly is proscribable on a number of grounds.

First of all it is not speech but more important it offends people. People don’t want to see other people taking showers on Pennsylvania Avenue.

The thrust of our opinion would give the prosecutors great powers to look at what’s offending other people.

It would take them from within the private theater, the theater that only is attended by people who want to go and would put them outside the theater to protect you and me from the intrusion on our sensibilities that would occur.

If movies opened on Pennsylvania Avenue and advertised in a pandering way, thrust its advertisements or its pictures or its commercials on unwilling viewers.

That is clearly not involved in this case.

The state conceded on July 14th, 1969 in open Court that there was no pandering.

The advertising was discrete.

No children were permitted into the theater.

The theater was policing that the public was forewarned and yet not forewarned in a way as it is so typical of many movies.

Not forewarned in a way which titillates.

It was forewarned in a discrete way so that what is involved in this case is the classic instance of only adults who choose to see an exhibition which the Second Circuit has held to be with socially redeeming value.

Only those adults are being denied the right to see that a First Amendment protected material we argue simple because of some tenable claim that public sensibility may be offended because others outside the theater know that people inside the theater are viewing this kind of film.

Warren E. Burger:

Let me go back to something you said earlier.

Are you suggesting that it is a universal rule that everybody is offended by bearbaiting for example?

Alan M. Dershowitz:

No.

Warren E. Burger:

I suspect that great many people would —

Alan M. Dershowitz:

No.

Warren E. Burger:

Either go to see it, wouldn’t they?

Alan M. Dershowitz:

By all means.

Warren E. Burger:

You’re not suggesting either that everyone, 100% would be offended by public showering on Pennsylvania Avenue.

Alan M. Dershowitz:

That’s right.

Warren E. Burger:

Well, then the fact that some — that there is a differing view on these matters doesn’t really enter into it, does it?

Alan M. Dershowitz:

Yes it does.

We would argue that the constitution gives greater protection to the right of privacy in this regard than the right to offend people by thrusting upon them stimuli.

That is everybody who wants to see somebody showering, assuming that would have some First Amendment protection could do it in a first — in a closed private theater.

There is no need to do it on Pennsylvania Avenue or innocent people would be offended.

And so I would say all doubts must be resolved in favor of privacy.

But this case presents no doubts.

There is nobody, not a single human being who was being offended because a stimuli is being thrust on him.

The only claim is that a human being is being offended by passing by the Symphony Cinema Theater and seeing a discrete sign saying “I am Curious Yellow is playing inside.”

We submit that kind of offense which is identical to the offense of a person passing by a birth control clinic does not deserve constitutional protection when fitted against an arguably First Amendment protective right.

Warren E. Burger:

Now you’ve introduced at least an element that’s new to me.

Suppose the prosecution could demonstrate that half of the people who saw the movie performance were offended by it and so testified.

Alan M. Dershowitz:

Judge Aldrich addressed himself to that question in oral argument and he said that there must be adequate warning before and an opportunity indeed to leave in the middle at any given time.

Indeed there was no evidence.

The state might have sought to introduce but there was no evidence of a single complaint brought by a single person of course other than a policeman who went to see the film, nobody complained about its offensive character.

One can imagine a constitutional statute which punishes a film which deceptively lures people into the theater on the assumption that it’s something else and then it turns out to be an offense or obnoxious film and complaints filed.

That is not this case.

Warren E. Burger:

Well, if I follow your thesis on, how about moving the bearbaiting in to the theater and charging $5.00 admission for it?

Alan M. Dershowitz:

Well of course the admission charge would be, we argue, irrelevant under this Court’s holding in the times case and at the state circuit.

Under our system, people simply must make money for an activity to go forward and First Amendment activities must be operated within our capitalistic system as well as other activities if they are in fact to occur.

Bearbaiting, I’ve state previously, bearbaiting is not in our view protected by the constitution because it is A, an act, B, it hurts animals.

But if it were a movie that were being played inside, yes we would have to argue that a movie played in a discrete theater.

Remember, I would like to remind this Court simply that it need not necessarily reach the issue of hardcore pornography in this case because there was no assumption that this film was hardcore pornography, no claim that was hardcore pornography and the Second Circuit decision can at least be relevant to the sense, to the extent of allowing this Court to decide the case on a record other than a hardcore pornography exhibition in a closed control movie theater.

Warren E. Burger:

I don’t want to over work to you on the bearbaiting but in order to have the film of bearbaiting, you got to go through an unlawful process in the first instance, do you not?

Alan M. Dershowitz:

If the process is unlawful then there is no right to make a film.

Warren E. Burger:

Is it unlawful?

Alan M. Dershowitz:

The process of bearbaiting?

The state has the right to make bearbaiting unlawful.

Alan M. Dershowitz:

Take another hypothetical of the film being made of a bank robbery in process.

We know that these things now occur.

Surely there is a right to exhibit that film in a public controlled theater even though it might be offensive to many.

Warren E. Burger:

But the bank robbery is illegal whether privately performed or any other place isn’t it?

Alan M. Dershowitz:

Right.

And I would think that bearbaiting would be illegal whether privately performed there otherwise because it results in the killing of animals.

Warren E. Burger:

Do you think that analogy is valid?

Alan M. Dershowitz:

I think the analogy, bearbaiting is not valid in the sense that bearbaiting which is an act and which is an illegal act in which hurts animals is different from the film made of acts legal where committed in fact in this case of being presented on a screen to a public who has chosen to view that.

Warren E. Burger:

But the difference between the showering on Pennsylvania Avenue and the bank robbery of Riggs Bank is that the showering on Pennsylvania, you say, is illegal but the showing of it is legal.

Alan M. Dershowitz:

But not on Pennsylvania Avenue.

The showing of film people showering at Pennsylvania Avenue would be illegal.

Indeed the showing of a film of people showering in a home would be illegal if the curtains weren’t drawn down.

We would argue that a theater with its curtains drawn down deserves more constitutional protection than a home with its shades drawn up.

That one must look at the functional definition of privacy and functionally a theater which is closed is more private than a home which shades are open.

Thank you.

Warren E. Burger:

Thank you.

Mr. Quinn.

Robert H. Quinn:

Mr. Chief Justice, may it please the Court.

Very briefly, I choose to touch upon three items which I think have been a part of the appellees argument.

The first relates to what I think has been referred to as a novel approach for law enforcement in the field of obscenity.

The suggestion is of course.

That a customs case in the Second Circuit is one that ought to invite the interest of every state law enforcement official.

This, I respectfully submit is one aspect or one approach to law enforcement of which I want no part whatsoever.

For the first reason, I don’t know how a state could intervene into a federal customs case.

I know of no provision that would entitle any of us who might be States Attorney’s General or District Attorney’s to step into this Court to be ultimately bound.

For another reason, I am not prepared anymore than any other individual in this Courtroom to make the assumption that some imported film or other item is obscene or ought to have my supervision immediately on its importation to be obscene.

I think first any one of us in law enforcement would have to have an opportunity to make a judgment on the facts would have to see the film as in this case in our jurisdiction.

It should not be asked either to come in out of curiosity to another jurisdiction or another Court or to come in on notice or in any binding effect of that particular decision.

On the contrary, in this particular case, there must have been some assumption to the validity of the particular act which is the showing of the film until there was a contrary decision made and this is exactly what occurred in the jurisdiction of the Commonwealth of Massachusetts.

There was an allegation or complaint and indictment, one single action taken by a qualified law enforcement official of Suffolk County.

Robert H. Quinn:

There were many arguments and there was a hearing.

There was a trial conducted.

And this covered a period of five-and-a-half months when the particular film in question showed, when there was no chill whatsoever on any citizen’s rights.

Whether the appellees here or any viewers as far as their opportunity to observe the film “I Am Curious Yellow” which two judges out of three and the Second Circuit Court determined was not obscene.

Potter Stewart:

General Quinn it’s not entirely clear in my mind as to when this five-and-a half month period came chronologically in this litigation when you say this film was really shown to us?

Robert H. Quinn:

From the beginning of the — from the Spring of 1969 Mr. Justice Stewart, which I think was probably in May and then an indictment was sought some time around the last week of June by the District Attorney of Suffolk County and there was no — there was action then taken by the appellees in the federal court but there was no controlling action taken by the federal court nor was there any other action taken by the district attorney of Suffolk County.

Just one single indictment and during the time when these arguments ensued and when the trial on the issue was held in a jury waived session in Suffolk Superior Court, that covered a period of five-and-a-half months.

Potter Stewart:

In that period and I understood Mr. Lewin to say, and you would agree, if I understood it correctly that with respect to a moving picture film, there is not just (Inaudible) as contrasted with a book.

Robert H. Quinn:

That is correct, that is correct Your Honor.

There is not that remedy available to the prosecutor but there is the remedy of declaratory judgment which was an approach endorsed by the Massachusetts Supreme Judicial Court in its decision of Commonwealth versus Baird where these First Amendment issues are brought into focus.

And there has been other precedent in the Massachusetts Court system for act of approach taken by anyone asserting his individual rights.

So this film showed for five-and-a-half months in the Massachusetts jurisdiction not withstanding the District Attorney of Suffolk County had no opportunity to appear in the Second Circuit.

Of course, implicit in this is the fact that we cannot assume that there were any threats on the part of the District Attorney of Suffolk County or the Attorney General of the Commonwealth of Massachusetts during this five-and-a-half month period.

There were no threats and I further suggest that a threat connotes illegal action on the part of a state law enforcement official.

Well, there was only one single action taken during this five-and-a-half month period.

There has been no action taken by the District Attorney since that period, only the fact that he will not pledge to undergo no further prosecutions, should this film be shown.

Though there was the forbearance on the part of the appellees here, after the finding and I respectfully submit that after a finding by a Court of competent jurisdiction in Suffolk County that there is obscenity.

That any prosecuting official, any law enforcement official who should take a pledge that he would not move against the film found in fact to be obscene in his jurisdiction would not be upholding his sworn duty to administer the law and to prosecute crime but there was no such statement made only that a change had occurred.

This was after the five-and-a-half month showing.

This was after a finding of obscenity.

This was after I respectfully submit, a removal of that presumption which must have existed on the part of individuals.

On the basis of the decision, the 2:1 decision in the Second Circuit.

I further suggest to this Honorable Court what else is a law enforcement official to do as far as these cases are concerned, if over his shoulder constantly is — I would not use the threat but is the possibility of federal court intervention in every action that might be under taken by that state law enforcement official in good faith, in the pursuance of his duty?

What else is he to do but stand still and I submit, let something now presumptively a crime continued to be perpetuated within his jurisdiction.

I would further suggest that if we are to remove the very pressing issue of obscenity from determinations by this Court or by any individual citizen, nobody has seriously suggested that I have heard that we not continue to apply the limitations which were mentioned in the provisos in the injunction by the court below.

Those limitations that provided this injunction shall not apply if the picture is advertised in a manner pandering to prurient interest in sex or is shown to an audience not warned of its possibly offensive character, or is shown to children under the age of 18 years, I respectfully submit that more constitutional issues could be raised in any one of these three classifications than I raise in the whole issue of what is obscene and not obscene under the context of definitions of obscenity as outlined by this Court in Roth versus the United States.

We would have to wonder what size ad newspaper add was advertising in a manner pandering to prurient interest.

We’d have to wonder, if showing the film in Disney Land with all the cautions in the world was nevertheless a failure to warn a possible offensive character.

We would have to wonder if some young people in these United States who come from, for example, the Mediterranean countries in the heritage as my own wife does, should not be allowed a greater degree of maturity than age 18 or than those individuals of my own heritage who might have come from Northern European countries.

No, I hardly think that removing obscenity as proscribed conduct could remove the problems that beset law enforcement officials and this Honorable Court alike in the area of obscenity.

Robert H. Quinn:

Thank you Mr. Chief Justice.

Warren E. Burger:

Thank you Mr. Attorney General.

Mr. Strauss you — nothing to add?

You have a few more minutes.

Peter L. Strauss:

I think in fact, Mr. Chief Justice that the 20 minutes that I was allotted by the Court have expired —

Warren E. Burger:

There is some margin.

Peter L. Strauss:

Alright.

I think the only thing that I would wish to note on the issue of Griswold versus Connecticut, counsel sought to bring that case to this aid, as certainly of the statute involved in that case where a statute prohibiting birth control clinics, we would be in for much harder time of relying on it.

The statute involved in that case was a statute which prohibited married couples from using contraceptives.

This Court struck down that statute in a prosecution against the directors of the clinics as aiders and abettors under that statute.

And in doing so and used the language that I quoted, the reasoning which had been found not only in that opinion but in ultimately prevailing dissent of Mr. Justice Harlan in Poe versus Ullman and I think again, that that is the central issue in Stanley that the state is invading the Stanley facts, the state is invading a completely private realm.

Here we are dealing with public conduct and because it is public conduct no matter how carefully guarded it may be, there are at least some sorts of materials which the state may prevent from appearing in the course of that conduct, thank you.

Warren E. Burger:

Thank you Mr. Strauss.

The case is submitted.