Byrne v. Karalexis

PETITIONER:Garrett H. Byrne
RESPONDENT:Serafim Karalexis et al.
LOCATION:Symphony Cinema, Boston, Massachusetts

DOCKET NO.: 83
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 216 (1971)
ARGUED: Apr 30, 1970
REARGUED: Nov 17, 1970
DECIDED: Feb 23, 1971
GRANTED: Mar 23, 1970

ADVOCATES:
Alan M. Dershowitz – for the appellees, reargument
Edward De Grazia – for the appellees, argument
Nathan Lewin – for the appellees, argument and reargument
Peter L. Strauss – for the United States, as amicus curiae
Robert H. Quinn – pro se, for the appellants

Facts of the case

Serafim Karalexis owned and operated a movie theater in Boston that was showing a movie entitled “I am Curious (Yellow).” The film was produced in Sweden and is about a girl’s search for identity and her relationship to the contemporary social and political problems of the time. During the course of the film, she takes a lover, and the film shows their explicit sex scenes, including scenes of oral sex. Suffolk County District Attorney Garrett H. Byrne determined that the film was obscene because it appealed to a “prurient interest in sex,” was offensive to community moral standards, and had no redeeming social value. He charged Karalexis with violating a state statute that prohibits the exhibition of obscene films.

Karalexis sought an injunction in district court in order to prevent this prosecution and future ones under a law that he argued violated the First Amendment protection afforded to such films..The district court held that the law was likely unconstitutional and granted the injunction.

Question

Can an injunction be filed to prevent the use of a state statute that prohibited showing obscene films?

Warren E. Burger:

We’ll hear arguments in number 1149, Byrne against Karalexis.

Mr. Quinn, you may proceed whenever you’re ready.

Robert H. Quinn:

Mr. Chief Justice and 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 U.S.C 1253.

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

Future enforcement.

Robert H. Quinn:

That’s correct, Your Honor.

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 on the showing off 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 to unconstitutionally prohibit public commercialized dissemination of pornographic matter, absent distribution to minors, to non-consenting adults or by pandering the facts —

Thurgood Marshall:

What is there in Stanley that protects commercial distribution?

Robert H. Quinn:

That is not the way we read it Your Honor and I do not think that is the way the author of the opinion wrote it.

If you prevail on the first branch of your case, why do we get the second point?

Robert H. Quinn:

I think it’s significant to get to the second point for the same reason stated by my brother, the distinguished Assistant Attorney General in the immediately prior argument, Your Honor.

And yet as Mr. Justice Stewart pointed out the substantial and irreversible point though in ourselves that I would say we will do but what was said that our Court exactly did, being in the pair with the state prosecution.

Robert H. Quinn:

I submit respectfully Your Honor that there exists now a great deal of confusion.

I know that —

Robert H. Quinn:

Among lower court.

You have to argue this case on some kind of principle and not just because it would say, it’s nice to have a little certainty on time.

Robert H. Quinn:

I submit Your Honor that the principles exist in Roth versus the United States and the opinions following that and also in Stanley versus Georgia.

Potter Stewart:

But those issues will get here as to the state courts, won’t they?

Robert H. Quinn:

That is correct, Your Honor but in the meantime, we submit that there exist a great deal of confusion and a chilling effect among law enforcement officials as far as the degree to which they can go.

Potter Stewart:

That’s a switch.

Robert H. Quinn:

In reading the statue —

William J. Brennan, Jr.:

Tell me.

What is the standing of — there’s already been a conviction as I understand it, is that right?

Robert H. Quinn:

That is correct Your Honor.

William J. Brennan, Jr.:

Of this distribution Mr. Attorney General.

Robert H. Quinn:

Yes sir.

William J. Brennan, Jr.:

And there was something about some delay in the hearing of the appeal which is in the supreme judicial court, is it?

Robert H. Quinn:

That’s correct.

Our understanding Your Honor is that the Bill of Exceptions was entered in the Massachusetts Supreme Judicial Court yesterday.

So —

William J. Brennan, Jr.:

And in an ordinary course, will there be oral argument in that case?

Robert H. Quinn:

In the ordinary course, there would be oral argument and very likely in the October sitting of the Court because of course it’s too late now for this argument to reach the May sitting —

William J. Brennan, Jr.:

That’s what I was trying to get to you.

So we won’t get a decision which goes to the constitutionality of the statute, doesn’t it?

Robert H. Quinn:

The decision would go.

I submit that a decision would go to the constitutionality of the statute as well as to the question of obscenity vel non?

William J. Brennan, Jr.:

But we probably wouldn’t get that then from your high court until December or January?

Robert H. Quinn:

That’s a fair assumption Your Honor.

William J. Brennan, Jr.:

Thank you.

Robert H. Quinn:

I would add parenthetically that if there had been all haste in the preparation of the Bill of Exception so that it might be entered by the Court, it’s very likely that this case would have been argued in the state court at next week’s scheduled arguments in the May sitting.

The facts maybe stated briefly as follows.

On June 30, 1969, after preliminary proceedings not relevant here, appellees filed an amended complaint in the court below alleging reason to believe that indictments would be sought against them by appellant Byrne’s office under Massachusetts General Laws, Chapter 272 Section 28(a).

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

William J. Brennan, Jr.:

This was after the suit is filed?

Robert H. Quinn:

That is correct Your Honor.

After the suit was filed but before there was any action taken if I may say respectfully, there was a bit of a raise to the courtroom doors, two courts involved.

Appellees sought a declaration that the statute is unconstitutional and an injunction against prosecution there under.

They alleged that 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 questions regarding the scope of this Court’s holdings in Stanley versus Georgia and the effect of that opinion on the Massachusetts statute.

Prosecution continued in the state court in a jury weighed session and the appellees were convicted.

Following their conviction 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 prosecution 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 of I Am Curious (Yellow).

I address myself first to the question, why did the court below abused its discretion in granting injunctive relief?

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

William J. Brennan, Jr.:

In the application to the Mr. Attorney General is a nice significance in the fact that this proceeding had been brought before actually a criminal prosecution was initiated?

Robert H. Quinn:

I respectfully submit — no Your Honor.

William J. Brennan, Jr.:

Haven’t we made the distinction in that —

Robert H. Quinn:

That is correct Your Honor, you have and the Congress as legislative a distinction — legislated a distinction in that respect.

But I respectfully submit that what we have here in the facts that I suggested were not relevant to the facts present.What we have here really was the seeking of an indictment before any approach to the federal court.

This indictment was subsequently dismissed in the judgment of the district attorney because there was lacking scienter in the terms of the indictment and the district attorney then in the normal course of his business proceeded to seek a new indictment including all of the proper elements of the crime so that there would not be a dismissal on a basis of a technicality.

And during the interim —

William J. Brennan, Jr.:

How long after this suit was brought — it was the second of that, I think.

Robert H. Quinn:

I would say within a week of the hearing on the motion to dismiss Your Honor.

On June 25th, the matter was dismissed on motion of the district attorney in the Suffolk Superior Court.

On June 30th, the appellees here were in the federal court and within days there, there was a process of indictment again in the Suffolk Superior Court.

Well, what have we here to contravene that fundamental principle which I have now stated?

No monetary loss for there is no evidence whatsoever on the record of any financial loss on the part of the appellees here.

As a matter of fact, there is no proprietary interest.

They’re not the owners of this film.

They own a movie house which shows this and other films.

We can hardly say further —

Warren E. Burger:

I’m not sure what difference it makes whether they’re owner to whether they’re showing it.

How does that –?

Robert H. Quinn:

I think it goes to the essence of whether injunctive relief can be granted Your Honor whether there is monetary damage.

We submit that there was no showing of monetary damage that simply stating that they own a movie house and they are showing or might want to show a particular film is not sufficient showing of damage.

As a matter of fact, I think in one of the briefs, the red brief, there is a mention of the other films that have been shown since in the judgment of the appellees here, they should show other films.

Thurgood Marshall:

Could we take judicial notice that “I am Curious, Yellow” gets a heavier box office price than the others?

Robert H. Quinn:

I don’t know how, Your Honor.

There are great deal —

Thurgood Marshall:

Just look in the newspaper.

Robert H. Quinn:

There are great deal of exciting films, Mr. Justice Marshall.

You know many at times, I attempted to go to one of the theatres of the appellees involved here and I’ve never been able to get inside the theater.

(Inaudible) prosecuting.

Robert H. Quinn:

I didn’t think I look that way Mr. Justice.

And we can hardly say that there is any chilling effect here either on the appellees or their patrons.

We are not talking about political handbills.

Robert H. Quinn:

We are talking about commercial pornography assumptively in the court below and on a finding after a trial in the Superior Court of Suffolk County.

A subject matter assumed to be obscene, we submit, cannot be said to have any value within itself.

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

We find only one instance where this Court approved relief, granted against a state law enforcement official.

That was the case of the Dombrowski versus Pfister.

It concerns civil rights advocacy.

The record is replete with incidents of bad faith on the part of local officials.

This is epitomized by the anecdote of night rage on citizen’s officers which discouraged their protected activities.

These are not the facts in the case of Byrne.

We have here activity whose dominant theme by assumption and by a finding on the facts after a state trial is offensive to community standards of morality, whose appeal is to a prurient interest in sex whose content is utterly without redeeming social value.

Furthermore, there is no bad faith whatsoever either evident on the record or argued in the court below on the part of the prosecution law enforcement officials.

This has been accepting the instance that I’ve related to you Your Honor, Mr. Justice Brennan.

This has been a single case pursued in the course of his work by the District Attorney of Suffolk County.

We submit therefore that there is no showing of irreparable injury which would prompt and support the action taken by the majority membership of the court below.

Moreover in this case, we have a classic example for the application of the principle of abstention.

If the statute in question, Chapter 272, Section 28(a) of the Massachusetts General Laws should be overbroad and this we do not concede.

That faults can here be overcome by leaving the case to be resolved in the state court and giving the state court the opportunity to narrowly construe the law and thus avoid constitutional defects.

And this can be done in a single matter pending in the Massachusetts courts.

Assuming however that this statute is —

The content to stop at that point —

Robert H. Quinn:

Why should I not be content to stop at that point, Mr. Justice Harlan?

I think as I have stated before that there must be some consideration given by this distinguished court to the aspect in which our complete American society finds itself as far as the issue of obscenity.

Potter Stewart:

But if you’re right — if you’re right in what you’ve just told us then it would be quite wrong for this Court in this case at this time to give that sure guidance that you feel so much the need of.

Robert H. Quinn:

I submit Your Honor that it is not without precedent that this Court has made distinctions and has made findings as far as the procedure in cases like this where it rendered what appeared to be sufficient decision on one part of the case to eliminate consideration of the second point but then went on in its judgment for proper interpretation of the law to considering a second point.

Potter Stewart:

Well, there’s nothing — of course there’s nothing wrong and nothing impermissible about you’re making alternative arguments but if you do prevail on this argument you just made to us then that’s the end of the case then we obviously don’t get in to the merits of the substance of the merits of this particular movie at all.

Robert H. Quinn:

That is correct Your Honor but I submit that we continue to have two judges of three in the three-judge district court in Massachusetts making a decision of probable unconstitutionality.

We continue to have a federal judge in California making another decision of unconstitutionality of a federal statute.

We continue to have that confusion that I mentioned before.

Let me put a practical question to you and this is not suppose to be a humorous.

Now, what you’re arguing now in effect that showing effect on you prosecutors, state prosecutors of the confusion that manifest to exists under this court’s decision and this holds and it repealed nobody could belie that.

Now as between that — as between the propositions that you’ve just argued namely the implications of federalism that going into federal courts not getting into restraining state enforcement regardless from proceeding to enforce their own law by letting individual constitutional questions come up to the state system.

What do you think of if you have to look at these two countervailing effects, chilling effect of all this, which do you think is the most important?

Warren E. Burger:

You want to ponder on that counsel and give us your response after your lunch?

Robert H. Quinn:

If that’s the pleasure of the Court, yes Your Honor.

Thank you.

Warren E. Burger:

Mr. Quinn, you have had time to ponder.

Now, do you want to address yourself to Justice Harlan’s question?

Robert H. Quinn:

Thank you Mr. Chief Justice and may it please the Court.

I did not need quite the hour’s hesitation to answer respectfully, Your Honor.

I have no doubt in my experience as Attorney General that of extreme importance and primary importance in consideration of this Court today is the first point, that point of abstention as far as the Court, three-judge federal court in its action on this case.

This is of extreme importance to all of us because in addition to the confusion, it establishes in the judicial system and in law enforcement administration.

It also, I respectfully submit, creates great or a possibility of disrespect with the public at large and it is that point additionally that makes it advisable, we submit, for the further consideration of the problem of obscenity and for the consideration of clarifying exactly this Court’s views on obscenity.

I go now to another factor relied on in the majority opinion below because it leads to the second question presented in our case here.

That court gave great weight to the likelihood of success for the appellees here in their posture on the facts.

That success depends on the answer to the question, “Can public commercial dissemination of pornography be proscribed by any state?”

Before Stanley versus Georgia, we submit that there was no doubt at all above this principle.

Roth versus the United States, the leading case on this subject based that answer on the fact that obscenity is not protected speech within the First Amendment.

We agree with Mr. Justice Marshall that the holding in Stanley in no way impairs the principle so well annunciated in Roth.

In fact, only last week, this Court summarily affirmed in Gable versus Jenkins number 1049 on the docket of the Court, a case involving action under a distinguishable statute in the same jurisdiction as Stanley.

Distinguishable from the statute in the Stanley case but a statute very much like that upheld in the Roth case and very much like the statute under consideration in the case at bar.

The statute upheld in Roth prohibited commercial distribution of pornography.

The Massachusetts statute, Chapter 272, Section 28(a) is of like tenet.

It strikes at public dissemination.

This, we submit, does not affect a fact situation like that present in Stanley versus Georgia.

Is that case you referred to last week and now is heard as the premise?

Robert H. Quinn:

It was a summary affirmance, Your Honor.

Byron R. White:

What’s the name of the case?

Robert H. Quinn:

Gable versus Jenkins, number 1049.

As I recall, I think there were two justices either abstaining or dissenting, Your Honor.

For all of the foregoing reasons that I have brought forth —

Hugo L. Black:

Did you say number 1249?

Robert H. Quinn:

1049 Your Honor.

I’m aware that the Solicitor General is going to take some time of the honorable court and will dwell exclusively on the issue of obscenity and the relationship between the Roth decision and those following it and Stanley versus Georgia.

So I will conclude, submitting that for all of the foregoing and for the reasons brought forth in our brief, we submit that the court below abused its discretion in granting relief and should be reversed on that instance.

We also submit that the right to prohibit obscenity, that right annunciated in Roth and the right to possess obscene matter in the privacy of one’s home that right protected in Stanley are compatible as this Court has held.

And that therefore, the Massachusetts statute is constitutional.

We asked this Honorable Court so to hold and add again if I may be able to do so a special plea on behalf of the judicial systems of the several states, the enforcement officials and the legislatures of those several states that this Honorable Court make that latter point clear.

I suppose on your latter proposition that we accepted it and the case then go back to the Court of Appeals to have that as reversed to this as to whether this is within or without the Roth case.

Robert H. Quinn:

I think that this Court here could consider that, Your Honor.

If we are to bypass the Court of Appeals then that’s — I mean the three-judge court?

Robert H. Quinn:

I submit that we do have here a commercial aspect.

This is the appellees here in question where the owners and the manager and the corporate owner of a movie house so that there is sufficient here for the Court with other cases presently under consideration there is sufficient here for the Court to elaborate on what we find in Stanley versus Georgia.

Hugo L. Black:

How can a man who’s charged with a crime if he able to know for himself in the events of the trial whether or not a piece of literature or whatever you may want to call it has a redeeming social value?

Robert H. Quinn:

I respectfully submit Your Honor that this is basic to the question of obscenity no matter where the issue is applied.

I’m well aware of the position of Your Honor regarding obscenity but there is another opinion and there is an opinion supported by actions of the legislatures of the several states as well as the United Sates Congress which has proscribed obscenity and there is support in legal opinion that suggests that obscenity in its reference may properly continue to be difficult a specific definition and specific application as has been stated by one justice I know it when I see it.

Hugo L. Black:

Yeah, but what I’m getting at here is if one element of the crime here that whatever you’re examining has no redeeming social value, how can any man who handles literature of any kind know whether he is violating it or not?

Robert H. Quinn:

It is extremely difficult to do so Your Honor and this is another reason why further clarification of the distinctions made by this Court would be helpful to all of us who are in society and in law enforcement.

Warren E. Burger:

I suppose an addendum to that answer might be that the states did not make that standards but they have to try to live with it.

Robert H. Quinn:

Respectfully.

Hugo L. Black:

But if the Federal Constitution requires, no man be convicted of a crime unless it’s accurately described so that he can know whether he is violating the law, that is a state problem and a federal problem, isn’t it?

And if he cannot be convicted, if the test at each time whether it has a redeeming social value, is that to proven by evidence?

Is it to be proven by the — tried by the jury or is it to be tried by this Court ultimately?

And can a man ever know whether it has redeeming social value until his particular case gets up here?

Robert H. Quinn:

I must answer in the affirmative to all of these disjunctives, Your Honor.

There is an evidentiary problem in determining obscenity or not.

This is the case that was tried in this particular matter in the state court.

There is also of course the overview of this Honorable Court as far as the extent to which the factual problem of obscenity goes and constantly, we have seen cases brought before here arguing the issue of obscenity on a given set of facts.

Fortunately, that is not the case here.

Pardon Your Honor.

Hugo L. Black:

Those facts — the facts in the case was sufficient to show that the article of whatever that was purchase to sell as a redeeming social value.

Hugo L. Black:

That should test to it.

Robert H. Quinn:

That’s one of the tests, yes Your Honor.

How this is established is extremely difficult I’m sure for the Court as well as for individual late people, citizens of Unite States of America.

Suppose you could say that from the moment constitutional to your life and it’s not about its attributes.

Robert H. Quinn:

Well stated, Your Honor.

Hugo L. Black:

Life would have its hazards but under the Constitution suppose everybody has suppose I thought up to now on the discussion of obscenity, no man could be convicted of a crime unless it could be defined in such a way that he could know whether he is violating the law.

Robert H. Quinn:

That’s correct, Your Honor.

Warren E. Burger:

I suppose a man operating a motor vehicle under the reckless driving laws has a certain area that we up here call the penumbra where he might think it was not reckless but somebody else, some officer might think it was reckless.

He has to make a difficult judgment there too, doesn’t he?

Robert H. Quinn:

In Massachusetts, we always thought that 20 miles an hour was a reasonable speed practically anyway, Your Honor.

That’s correct.

Thank you.

Warren E. Burger:

Mr. Pauley.

Roger A. Pauley:

Mr. Chief Justice and may it please the Court.

At the outset, I should like to indicate as our amicus brief shows and as General Quinn has pointed out the interest of the United States in this case is limited to that aspect of the District Court’s decision that considered and interpreted with this Court’s holding in Stanley versus Georgia.

We therefore take no position on the procedural issue that is also involved in this case and it has been the subject to extensive briefing an argument by the parties.

I should like also to note the reasons for the Government’s interest in this case as the Court well knows the Federal Government as well as the states has laws that bear upon the matter of obscenity.

The Government bans the importation of obscene materials and the Federal Government again through a statute enacted by Congress proscribes the interstate mailing transportation through the mails of obscene materials.

In addition, as a treaty that the United States is a party too that the Court referred to in the Roth case in Mr. Justice Brennan’s opinion that requires the United States to take necessary steps to prohibit the international traffic in obscene materials.

Moreover, we have a number of pending cases as we refer to in our amicus brief in which the issue of meaning and effect of Stanley is centrally raised.

Those cases are working their way up to this Court but because this case is being considered this term and those cases will not — we thought it’s appropriate to express our views on the question of the meaning of Stanley at this point not to run the risk of not having an opportunity to do so.

Potter Stewart:

Did I understand from scanning your brief that at least one Federal Court I think in California has held this federal legislation or part of it constitutionally invalid based on Stanley.

Roger A. Pauley:

Yes, that’s correct, Your Honor.

Potter Stewart:

And that was the importation statute (Voice Overlap).

Roger A. Pauley:

Yes, that’s correct and based essentially on the same reading of the opinion in Stanley as (Voice Overlap).

Yes, that’s correct.

Hugo L. Black:

Is the Solicitor General able to give us anymore definite definition of this crime than it must be something that does not have a redeeming social value?

If so, what is its definition?

Roger A. Pauley:

As Your Honor knows the issue of obscenity is one that has divided the Court perhaps more than any other issue in recent times and we’re of course aware of your position and the position of Mr. Justice Douglas on the matter.

Hugo L. Black:

I’m not just talking about the position of any individual.

Hugo L. Black:

I’m talking about a situation that has been on evident, honest, deliberate purpose to find some way to make a definition that does not leave people in uncertainty.

Roger A. Pauley:

Your Honor —

Hugo L. Black:

Solicitor General any idea of a better way than the test to be whether it has redeeming social value.

Roger A. Pauley:

Your Honor, that’s one — as I understand it, that’s one aspect of several what the Court has applied in determining obscenity.

I think the answer to your question is no, and I think it would really be an insult to the intelligence of those justices and judges and counsel who have struggled over the last 15 or 20 years to come at a definition to suggest —

Hugo L. Black:

Then why there’s struggle?

Roger A. Pauley:

To suggest that we — you’re quite right.

As Mr. Justice Harlan pointed out in cases taken and considered on the merits, this Court his count then was 55 separate opinions and it’s over 60 now.

It’s a very difficult problem but I would suggest that one way of looking at it as Attorney General Quinn did is that it is a problem that the legislative branch, both of the state and the federal level has some role to play in and the statutes that the states have enacted and the Congress has enacted, they have sought to reflect as best as they can, this Court’s articulation of the pertinent constitutional standards.

There is that the Chief Justice indicated a penumbra where an individual has to make a very difficult choice.

Hugo L. Black:

Lucrative guess.

Roger A. Pauley:

Choice as —

Hugo L. Black:

But doesn’t he have to make a guess?

Roger A. Pauley:

I think that’s correct Your Honor.

I don’t think that that’s limited to the area of obscenity.

I think that perhaps there’s a heightened impact there because of the First Amendment and as protection of free expression.

But I don’t think that we should throw the whole notion of obscenity legislation out simply because it’s difficult to arrive at a dissatisfactory definition.

I think the Court has worked through the cases that had come to it to reach such a definition.

We think that the definition stated in Roth as explicated in subsequent cases, Memoirs and Redrup as a workable definition that permits on the one hand free expression of those ideas that the framers of First Amendment had in mind protecting and yet allows states and the Federal Government to prevent on behalf of the people, material it has, has no role to play in the discussion about —

Hugo L. Black:

How do we know exactly what ideas the framers had in mind?

Roger A. Pauley:

Well, Your Honor, the Court traced this in the Roth case, traced the history of the First Amendment and it was quite clear at the time that the First Amendment was adopted and ratified that there were obscenity laws on the books at that time.

Hugo L. Black:

Undoubtedly.

Undoubtedly, but I thought the object to the Constitution was to say what the Government could do and what it could not do.

Roger A. Pauley:

That’s correct, Your Honor and I think that this Court has —

Hugo L. Black:

You didn’t just ratify what had been done before, did it?

Roger A. Pauley:

No, but I think the Constitution has to be read in the historical context in which those words were written and that’s what the Court in Roth said and that’s the point of departure that the Court has followed since that time.

Potter Stewart:

Well, there weren’t any federal obscenity laws —

Roger A. Pauley:

That is correct.

Potter Stewart:

— on the books at the time the Constitution was written because there was no Federal Government until the Constitution was ratified.

Roger A. Pauley:

That’s correct.

Roger A. Pauley:

There —

Potter Stewart:

And the First Amendment is directed only at governing what the Federal Government can do.

At least that was true until the Fourteenth Amendment came along.

Roger A. Pauley:

That’s correct.

The first federal statute was enacted in 1842 on the obscenity question.

Warren E. Burger:

Would you agree Mr. Pauley that the guidelines in the antitrust field for example on anticompetitive effect or relevant market are perhaps better guidelines more precise than any that had been afforded in obscenity.

Roger A. Pauley:

I don’t — I don’t think there any better.

No Your Honor.

Warren E. Burger:

Would you think they are no better or about the same?

Roger A. Pauley:

I don’t know how you made that qualitative evaluation.

I think they have the same sort of ambiguity and vagueness in them that —

Warren E. Burger:

Well, that question was preliminary to the one that I now put to you.

A great many businessmen and expert antitrust lawyers think they have as much difficulty in understanding applying and interpreting statutory standards and opinions of this Court on anticompetitive effects of a particular line of conduct or the relevant market of a particular business as exhibitors and publishers do with the obscenity fields.

Would that — do I — do I overstate it?

Roger A. Pauley:

Your Honor I agree and I think as I indicated Mr. Justice Black.

There are variety of areas of the law in which there is an area of uncertainty and the language simply doesn’t lend itself to any better definition and the Court has struggled and attempted and worked and I assume will continue to work with the refinement of the standard as best as it can in this area and in the area you referred to in another area.

Warren E. Burger:

75 no, 76 years ago, these Court divided almost four-and-a-half to four-and-a-half on the Northern Securities case or I think it was the predecessor but a couple of months ago, we — without dissent affirmed the merger of the same two railroads.

So I suppose in the interval, there has been a lot of doubt about the problem of competition and monopoly in that area.

Roger A. Pauley:

Yes, Your Honor.

I think that’s correct.

Hugo L. Black:

Do I understand you to agree with the statement that was many businessmen think there are no boundaries.

Are you saying that you do not think of anymore about solid boundaries for the antitrust laws then for obscenity which are you saying?

You said you agreed to something.

Roger A. Pauley:

I think the Chief Justice was suggesting that in the antitrust field under the broad dictates of the Sherman Act and Clayton Act, this Court’s opinions construing those statutes that there was at least as much ambiguity about those opinions and the standards there enunciated as in the obscenity field.

Hugo L. Black:

So you think that’s the case?

Roger A. Pauley:

Yes, I think so.

Warren E. Burger:

You think so.

I think you perhaps overstated inadvertently my position.

I think there’s a difference but it’s one only of degree.

I think the publishers and exhibitors maybe have a little harder time of it.

Warren E. Burger:

I’m sure they think so which perhaps the businessmen think they have the harder time of it.

Roger A. Pauley:

I would like to turn to Stanley.

It has been discussed a bit but that’s the central concern for us and I should like to give the Court the Government’s view of what Stanley holds and what it doesn’t hold.

As we read that opinion and expressly disclaimed undermining of Roth in its progeny.

It said, instead that the concern there was with the mere possession of material that might be regarded as obscene and the privacy of an individual’s home.

Now, we suggest that it’s inappropriate the District Court to extrapolate from that narrow holding, a decision with what we regard as sweeping implications in all field of obscenity as it has.

What the District Court essentially did as the Court is aware here as whole dividing to the one that because there was a right to possess privately, materials that might in other context be regarded as obscene, it was necessarily a right to receive them.

And since there was a right to receive them, there was necessarily a right to distribute them and therefore, has a right to commercial distribution that adheres to any exhibitor of a film or distributor of a book or whatever.

We think that the Court is wrong in its logic.

We think that this Court’s opinion in Stanley should be honored for what it said.

It said that it was limited to the question of mere possession.

It did place its holding on First Amendment grounds but as we indicated that the whole opinion is rather full of language.

It speaks in Fourth Amendment terms.

It speaks about a concern about privacy in a man’s home.

And I’m not talking as appellees suggest about some protected area.

That’s been done away with by the Court in the Katz case.

What we’re talking about is an individual’s privacy and I would suggest if Mr. Stanley would like to carry an obscene book down the street, he could do that too and couldn’t be prosecuted.

Potter Stewart:

Yeah, but where would he have acquired this book?

Roger A. Pauley:

I don’t know where he would have acquired it Your Honor and I don’t think that — I really don’t think that it matters where he acquired it.

I think the Government has a —

Potter Stewart:

No, you’re saying it matters very much where you acquired it, don’t you?

How would you suggest that he would have gain possession on this book that he has an absolute constitutional right to possess?

Roger A. Pauley:

He could have obtained that in a variety —

Potter Stewart:

And that you almost have to have written it himself, wouldn’t he, under your theory.

Roger A. Pauley:

No Your Honor, I’m assuming that he obtained it from the same sort of source that other Stanley has obtained similar sorts of materials.

Potter Stewart:

That’s what you’re telling us.

It’s illegal or can be made illegal and it has been made illegal by the States or Federal Government for one Mr. Stanley to sell or give the book to another Mr. Stanley which Mr. Stanley found that he has to create his own.

Roger A. Pauley:

Well, he doesn’t have.

We know it’s a practical matter that Stanleys can obtain this material.

The question is whether the holding in Stanley reaches so far as giving constitutional sanction to the people that were distributed and I would suggest that it does —

Potter Stewart:

Suggesting it, would be of kind of an empty right and that the Court in Stanley have been spending a lot of time writing a very eloquent opinion about almost nothing at all if the right of possession of something doesn’t involved or bring in its train the right to acquire it.

Roger A. Pauley:

Well, I’m not —

Potter Stewart:

The absolute constitutional right that was up held in Stanley.

Roger A. Pauley:

I’m not suggesting that he doesn’t have a right to acquire and I’m suggesting that it doesn’t extend so far as to hold with distributors have a right to disseminate material contrary to obscenity statutes.

Thurgood Marshall:

So far as the record of Stanley, it shows that somebody might have given it to him.

Roger A. Pauley:

Yeah, I don’t know where he get the film and —

Potter Stewart:

Or somebody might have mailed it to him.

There’s nothing in the record that show where he got that film.

Roger A. Pauley:

We made the basic right it seems to me Mr. Justice Stewart.

It’s really a right not to be interfered with by the Government in this possession and the right has as we think Fourth and the Fifth Amendment underpinnings that —

Potter Stewart:

Stanley — the opinion of the Court in Stanley as I understood it.

I did not join it as you know is based on the First Amendment of the separate opinion in that case which I do know something about and we’ve written it was based on the Fourth Amendment —

Roger A. Pauley:

That was a different Fourth Amendment (Voice Overlap) yes.

But I would suggest that there’s a long quote in there from Olmstead which was a Fourth Amendment case and there’s repeated references to invasions of privacy and that’s Fourth Amendment talk as far as I read this Court’s case.

It seems to us that what the Court should do in this area is to adhere to the standards that it has annunciated in the past and instead of the bold departure that the District Court here has suggested, the District Court suggested that so long as material commercially disseminated was adequately controlled, and by adequately controlled, the District Court suggested not allowing minors in, no pandering and not — and ensuring that there was no intrusion into unwilling or uninterested people.

The District Court suggests that so long as that was done that commercial distribution of films, book, whatever would be constitutionally protected.

We think that that’s a misguided notion because first, it doesn’t give sufficient weight to the legislative judgment in this matter.

It has been a running debate about the empirical evidence on the inducement of obscene materials to antisocial conduct as the Court knows as a presidential commission presently studying this matter.

We don’t know what they’re going to come up with.

They are going to make a report in the middle of this year.

Now, I suggest that a part of wisdom would be to wait and see what they’d come up with.

What are these matters — was it in the middle of this year?

Roger A. Pauley:

That statute requires a report by July 31st this year.

Yes, Your Honor.

I’m not positive that they are going to make it by then but that’s what the statute required.

Because it seems to us — this is so because where you end up if you accept this position is essentially that hardcore pornography, whatever it is, assuming —

Hugo L. Black:

That’s what I would like to — I think we’re lost on that.

Hardcore pornography.

Roger A. Pauley:

Assuming you can know it when you see it.

You can’t — it will be allowed in and the kind of material —

Hugo L. Black:

(Voice Overlap) you can understand it with your brain.

When you hear it — I don’t understand.

Roger A. Pauley:

But Your Honor as you know, the only conclusion if you accept that is to allow everything in and say that the —

Hugo L. Black:

And the only conclusion the other way is just to say there was sex which is one of the strongest urges of the human race cannot be publicly discussed or privately discuss unless you would straight some other amendment to fit the project.

It puts that subject out of this — of course it can’t be done, everybody knows that it can’t be done.

You can’t (Inaudible).

Roger A. Pauley:

I think there is certainly a position between those extremes that the Court has sought to carve out and I would hope that would continue to carve it out.

Indeed, it seems that the appellees concede that the District Court’s resolution is no panacea.

This is the so called assault theory or nuisance theory of obscenity.

Somehow, that’s going to get the Court out of all these problem but it won’t get them out of all these problems.

It’s clear that it won’t get them out of all these problems because in the first place, you’re going to have to decide in each case whether these three-pronged test has been complied with adequately and you’re going to have to decide in cases where the distributor or the exhibitor determines that he doesn’t have to comply with the three-pronged test.

You still are going to have to apply a standard of obscenity.

So it’s no panacea and they admit that.

They back off and they finally say, “Well maybe what you should do is draw a line between what’s concededly obscene and possibly obscene.”

We suggest that that’s just a different verbal formulation and that does in advance the inquiry anywhere.

It seems to us finally that the basic problem here is one of whether this Court should seek to create for the society.

A society that is concerned about morality, whose people are concerned about pornography, create a fixed and inflexible rule that prevents legislatures from reflecting the will of the people and I would suggest that the Court shouldn’t do that and it hasn’t done that up to now and we suggest that it’s not appropriate to do it.

So if the Court reaches the issue that’s presented on the question of the meaning of Stanley, we suggest that it would be appropriate for the Court to overturn the District Court’s decision and restore Stanley to the limited and original meaning that we think the Court had in mind.

Hugo L. Black:

But it’s your judgment that the Court can do any better if it’s as deadly to create a definition.

They can’t do any better than what’s done in the opinion written by my Brother Brennan?

Roger A. Pauley:

No Your Honor, I don’t think so.

I think the Court — all the minds in the Court, the counsel that have sought to assist them have struggled as I indicated it with this problem for 15 or 20 years and I don’t suggest there’s a better formulation that could be arrived at.

I think it’s a difficult problem and —

Hugo L. Black:

Well, I don’t either.

Roger A. Pauley:

But the standards of the Court has annunciated, they give very wide range to free expression and the Court has moved really to a point where what is prohibited is essentially the hardcore sort of pornography.

It doesn’t really express ideas that have any merit or any word.

It seems to us that that’s a sound and sensible position and that’s a position that people and the legislatures can live with.

Thank you.

Warren E. Burger:

Thank you, Mr. Pauley.

Mr. Lewin.

Nathan Lewin:

Mr. Chief Justice and may it please the Court.

The Attorney General of the State of Massachusetts and the Solicitor General as amicus curiae have, I submit, argued before this Court a case that simply is not here and an issue that is not fairly presented by the order which is here under review.

I would just like to take a minute to summarize what in fact has happened here.

A theatre owner threatened with criminal prosecution under a state statute of dubious constitutionality for showing a film which was found non-obscene by a Federal Court of Appeals and has been widely and seriously reviewed, instituted a proceeding under 42 U.S.C 1983 in a Federal District Court to prevent the threatened prosecution and harassment by the state prosecutor under the local obscenity statute.

The federal court upon entertaining that complaint, refused to intervene even with a subsequently instituted prosecution under the state statute and appellants here can see that unlike —

William J. Brennan, Jr.:

Is it accurate really to say it was subsequent — as I understood it, there had initially been a prosecution in the indictment to some infirmity was superseded by another indictment after this suit had been filed.

Is that what the law confines?

Nathan Lewin:

It’s true.

There was a prior indictment.

That earlier indictment is not involved in this case.

William J. Brennan, Jr.:

I know that but —

Nathan Lewin:

Well, in the technical —

William J. Brennan, Jr.:

On the questions whether or not it was a pending prosecution when this suit was brought to the District Court —

Nathan Lewin:

I think the —

William J. Brennan, Jr.:

Is it difficult to argue that there was none pending when you — when the suit was filed?

Nathan Lewin:

There was a prosecution pending when this suit was originally instituted.

At the time the final amended complaint was filed, the amended complaint which really presented the issues before the Court, there was then no outstanding indictment.

That indictment had been dismissed because —

William J. Brennan, Jr.:

It’s only a matter of days before the second.

Nathan Lewin:

It was a matter of days, that’s true Mr. Justice Brennan.

But —

William J. Brennan, Jr.:

But it can’t really a continuity of the initial prosecution?

Nathan Lewin:

Well, I think in terms of 2283 which after all is a technical statute.

William J. Brennan, Jr.:

That’s what I’m thinking about.

Nathan Lewin:

Right.

Which after all is a technical statute.

I think it’s appropriate to construe that particularly in the First Amendment contact is to construe it narrowly but let me go beyond that Mr. Justice Brennan.

I don’t think that’s essential and it’s no way essential in our case because even if one assumes that the indictment that was entered subsequent to the firing of the last amended complaint was one which was entitled to protection under 2283, the three-judge district court in this case in fact fully protected that prosecution.

It refused in anyway to interfere with that state prosecution.

The issue that was presented to the District Court and which prompted the entry of the order which is here under review, the interlocutory order which appears in pages 44 to 45 of the appendix.

Nathan Lewin:

The circumstances which prompted the entry of that order were solely and exclusively the fact that in the interim that state prosecution had gone through a trial and a judge had found the appellees in this case guilty.

The state prosecutor then returned to the federal court and said that whereas heretofore, I have by stipulation permitted this film to continue its exhibition during the pendency of that trial, I hereby withdraw that stipulation and that appears in the transcript which is on file here in this Court several times.

It was at that point that the three-judge district court was faced with the question on which should acted in this order and that question was, was it to permit a state prosecutor at that juncture to threaten by threatening indictments and seizures to threaten a theatre owner out of permitting him to show his film.

Now, I point out to the Court.

What you’re saying is this is not applied to any of the three cases involved, you say your question could reach the Dombrowski, right?

Nathan Lewin:

Right.

We think this follows a fortiori from Dombrowski.

We think it’s for — right.

The Dombrowski issue and not in 2283?

Nathan Lewin:

Definitely not a 2283 issue and we think it’s not even a Dombrowski issue for this reason Mr. Justice Harlan.

That’s not the question.

Nathan Lewin:

It’s not a Dombrowski issue because in this case, the relief actually granted by the District Court did not in anyway extend to state prosecutions and in fact we submit if the order is read and we think that this Court must judge the case on the order if the order is read, it remove not a single issue either factual or legal from the purview of the state court in its consideration of the state prosecution.

What the order did —

William J. Brennan, Jr.:

That is the declaration of unconstitutionality.

Of course, it was not conclusive upon the state court.

Nathan Lewin:

Indeed Mr. Justice Brennan.

The judge was very careful to talk about constitutionality in terms of probable constitutionality.

Now, that makes absolutely no sense unless one considers the case in the context of this interim relief.

As the case was presented to the three-judge district court, it was faced with the question of whether it should at the point where the state prosecutor had said “I will now seize this film.

I will now indict again and again if this film is shown.”

The three-judge court was faced with a question whether having previously allowed the state court proceedings to continue whether it should then having indeed abstained, we submit that under the traditional view of what abstention is, that’s exactly what the district judge said in this case.

He said, I’ll retain jurisdiction over this case.

I’ll permit you to make your constitutional claims in the state court and you can come back to me ultimately after you’ve gone to that state procedure but then there was a change of facts.

Suddenly, there was a conviction and the prosecutor said, now, the film has got to stop and I will indict and seize.

At that point, the three-judge district court said, “We have to consider what the probable outcome of that state case will be because that is relevant to a determination as to whether this exhibitor is entitle to interim relief and it was for that reason and for that reason alone that the three-judge district court then went on to consider in terms of probable outcome, the constitutional issue which was presented by the challenge of the statute on his face.

The temporary injunction against further prosecutions.

Nathan Lewin:

He issued Mr. Justice Harlan a temporary injunction against proceeding civilly or criminally or otherwise interfering with the exhibition.

Now, I think an important element in understanding that injunction is the sentence which is really the next to last sentence of the district judge’s opinion.

He says and I quote, “Finally, we voice 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.”

What Judge Aldrich was saying in that sentence, I submit, was that if these appellees who are not entitled to be free of the threat of the job owning as it were of a local DA now go out and continue to show the film “I am Curious (Yellow)”, they are assuming the risk they were assuming all along, that if at some future date the film was found obscene and that — and the statute is found constitutional, they may be prosecuted even, even for the period of exhibition between the date of the injunction and the date of that finding.

Nathan Lewin:

All that the order did, Mr. Justice Harlan, was tell the DA, “You may not threaten these prosecutors with indictment.

You may not seize this film; you may not interfere with its showing,” but nothing beyond that.

Well, it’s called up the state process during that period.

Nathan Lewin:

It does.

In interest.

With —

They shouldn’t have done that.

Nathan Lewin:

Right, but it holds up the state process in the interim but does not forever foreclose a prosecution, even for that interim period.

In other words, ultimately, they may prosecute.

Now, the question then is, and we submit that’s — that — well, let me first turn then to the — in that context to the abstention point.

The question with respect to this interim relief, which the three-judge district court granted is, was that an appropriate action by a Federal District Court?

Was that appropriate in terms of abstention?

Was it appropriate in terms of the injunctive relief, which is — where the ground rule for injunctive relief set out in this Court’s opinion in Dombrowski?

We submit it plainly was.

Unlike all the other cases which this Court has heard in the last two days, this is an instance of ongoing, continuing to this very day suppression of speech.

Nothing is more plainly demonstrable than the fact that from the time that the district attorney withdrew his stipulation, this film was not shown by these appellees in Boston.

It is not shown today only because that stipulation was withdrawn.

So if we’re talking —

Byron R. White:

Why is it not being shown?

Nathan Lewin:

It’s not being shown because the district attorney announced to the Federal District Court on November 12, 1969 that if that film reopened, he would seize it and he would prosecute, although he had — it had been one prosecution —

Byron R. White:

So why didn’t you show it?

Nathan Lewin:

Because it would just subject out my clients to continuing harassment of seizures and prosecutions.

If we would open the film, it would immediately be seized by police officers, there could be an indictment —

Byron R. White:

So the substance of your position then is that federal intervention is justified by a desire to avoid a state criminal prosecution?

Nathan Lewin:

Federal intervention is justified, Mr. Justice White, when the state prosecution — the threat of state prosecution is being used to close down a film which — whose obscenity is then being litigated in the state courts.

Byron R. White:

Well, what is effective — when the threat of criminal prosecution is effective enough to deter someone from exercising what he claims or his right of free speech, and which he would otherwise exercise.

Nathan Lewin:

That’s exactly what we say.

We say that a Federal District Court could enjoin — what we say, there are — there are a host of reasons supporting this injunction.

The District Court chose one reason, which is that if viewed, this statute has probably unconstitutional understanding.There are narrower grounds for sustaining that order, Mr. Justice White, than what the District Court did.

We urge the Court to affirm on the District Court’s reasoning, but there are narrower grounds.

Nathan Lewin:

We’ve set out at pages 54 to 62 of our brief our argument that in fact, a state prosecutor may not constitutionally job-own a film to — by that, I mean threatened prosecution and multiple prosecutions of a film in order to — to have it closed when in fact that very film is being litigated, its obscenity is being litigated in a state court, is then under litigation, and there are constitutional challenges to the statute under which it’s being litigated —

Byron R. White:

Well, I suppose there’s some risk that you have to take.

You could go ahead and show your film.

You just don’t want to take the risk.

Nathan Lewin:

Oh, no.

We are taking the risk.

Our clients —

Byron R. White:

Are you showing the film or not?

Nathan Lewin:

Right now, we are not.

We have taken the risk —

Byron R. White:

Well, why aren’t you?

Nathan Lewin:

Well, let me explain that, because the repeated prosecutions repeated multiple prosecutions are more of a risk we think than we are required to take.

Byron R. White:

So it’s your decision to that respect?

Nathan Lewin:

Only under the arrest, it’s our decision as to any decision under the arrest —

Byron R. White:

(Voice Overlap) I suppose they would be in the same position as the prosecutor never said a word.

Nathan Lewin:

No.

No, Your Honor.

Byron R. White:

Why?

Nathan Lewin:

Because if the prosecutor —

Byron R. White:

You would never know what the prosecutor is going to do.

Nathan Lewin:

If — if the prosecutor is by indict — we — we don’t deny the prosecutor’s right to indict and to prosecute after he has a finding that a film is obscene, and that’s been concluded.

We’re assuming that risk.

The risk we don’t have to assume, Mr. Justice White, and I think that’s the risk that this Court talked about in Dombrowski, is what I think is very practically a risk of a very much different magnitude, and that is day in and day out seizures of films, repeated indictments for everyday in which you show a film.

Byron R. White:

Well, what is he supposed to do?

What is the prosecutor supposed to do?

Say, “I think you’re breaking the law but you can — you think you’re not but you can go and — but I am constitutionally obligated to let you go on breaking the law until we get a decision,” is that your position?

Nathan Lewin:

We think where state — let me say this, Mr. Justice White, where the state provides an injunctive remedy as it may, and this Court in the Kingsley Books case, for example, set out very specifically the rules for injunctive remedies —

Byron R. White:

Well, did the state —

Nathan Lewin:

— where the state provides a Board of Censors, Mr. Justice White.

Of course, it can do that.

Nathan Lewin:

But the State of Massachusetts has not done that.

What the State of Massachusetts has done is it had said, “You may proceed by way of criminal prosecution.”

Byron R. White:

But did the state court refused to issue the temporary relief?

Nathan Lewin:

The state court couldn’t issue.

It was a criminal prosecution.

Byron R. White:

Well, why couldn’t the state enjoin the prosecutor for many further prosecutions pending decision of the case?

Nathan Lewin:

It — it was a criminal prosecution brought by the state.

There is no way to my knowledge in which in a criminal prosecution you can ask a judge in a state court to enjoin the prosecutor from bringing other prosecutions.

Byron R. White:

Did you try it?

Nathan Lewin:

We did not try it.

We will — we are entitled to go into a federal court, Mr. Justice White, under — under the — this Court’s decisions —

The state court can’t do it but the federal court can.

Nathan Lewin:

But the federal court doesn’t have — the state court may be able to do it in an independent proceeding, Mr. Justice Harlan, and then you’ll squarely up to the question of whether we’re obliged to institute a separate proceeding in a state court where we — where we choose instead to go to a federal court.

In this Court’s case in England versus Louisiana State Board of Medical Examiners, that was specifically rejected by the Court.

If we have a claim on the year 1983, if we’re entitled to present to a Federal District Court our claim that the prosecutor is not permitted, either because the statute is unconstitutional or because he is in effect what — what this prosecutor has an effect done is he has implemented a system of informal censorship.

There is no judicial superintendence of what he does.

There is no review.

Indeed, as you pointed out, Mr. Justice White, his success is what makes the whole thing non-reviewable.

If he — he can go over to any exhibit or motion picture films in Massachusetts and say, “I will indict you tomorrow if you show that film,” then of course the exhibitor would close up.

And if he says, “I’ll indict you time and again and again and again if you show it,” then for a fortiori, it will close up.

But now, our client has taken the risk.

He is in fact under a — presently under an appeal sentence of one year imprisonment for showing this film.

He’s in fact assuming a further risk under Judge Aldrich’s opinion that if in fact this film is found obscene, he can be prosecuted after the judgment of conviction is ultimately affirmed and after this Court acts on that film.

He can be prosecuted from everyday that he now shows that film.

The only relief we’re seeking is interim relief.

Byron R. White:

So pending a state criminal prosecution, pending the outcome of the state criminal prosecution that federal court is authorized to require that the conduct that’s challenged by the state be permitted to continue.

Nathan Lewin:

No, Mr. Justice White, that’s not — our position, is —

Byron R. White:

Well, it is —

Nathan Lewin:

That when its speech —

Byron R. White:

There is where there is a film involved.

Nathan Lewin:

When it’s continuing speech, yes.

That is our position because otherwise if you don’t do that — if you don’t do that, then in fact what you’re saying to a district attorney is you may, without any state statute — this Court has said time and again in the First Amendment area, if the state legislates, it must narrowly define the conduct to be prohibited.

Byron R. White:

Well, then — I suppose then Freedman against Maryland really ought to be amended in your position to say that no state Board of Censors can stop a film pending appeal of the censorship decisions.

Nathan Lewin:

No, because —

Byron R. White:

Why not?

Nathan Lewin:

— because Freedman and Maryland provides the very procedural safeguards which we say your absence —

Byron R. White:

It’s not on appeal, it doesn’t.

It doesn’t regulate the length of time that it’s on appeal —

Nathan Lewin:

It does —

Byron R. White:

— especially to this Court.

Nathan Lewin:

True, it doesn’t regulate the length of time, but what it does — what’s happened in Freedman and Maryland, Mr. Justice White, is that the State of Maryland has focused on the question of exhibition of films and it has said that with regard to the exhibition of films, we authorize this procedure.

The State of Massachusetts has never done that.

Byron R. White:

Yes, but nevertheless, in the Freedman case, the State of Maryland would be saying you can’t show the film and you’re not going to show it until — unless you can get this order up set on appeal and it may take a long time, and Freedman doesn’t even limit the time to the Court of Appeals in Maryland.

Nathan Lewin:

It may — it may indeed, but the difference we think between that case and this is that there at Maryland has specifically focused on the question of films and has made a determination as to what are the appropriate procedures in the interim.

That is just not true in Massachusetts if Massachusetts could very easily enact an injunction statute as was approved by this Court for example in Kingsley Books —

Byron R. White:

Well, you haven’t given them the chance to focus on it.

You haven’t even asked them about the interim state.

Nathan Lewin:

Well, that’s —

Byron R. White:

You haven’t even asked the state court or anybody else in the state about an interim state.

Nathan Lewin:

There is no — Your Honor, the option we had in a state court was simply to institute a separate proceeding.

Byron R. White:

So what if it was?

Nathan Lewin:

Well, we’re not required to do that.

If we have a right under 1983 —

Byron R. White:

That’s the issue here.

Nathan Lewin:

Pardon?

Byron R. White:

That’s one of the issues here.

Nathan Lewin:

No.

Your Honor, with all deference, I think the issue here is — I mean that issue was taken care of by — by the England case.

Very specifically what the Court said in England versus Louisiana State Board, and I refer to page 415, when a federal court is properly appealed to in a case over which it has by law of jurisdiction, it is its duty to take such jurisdiction.

The right of party plaintiff to choose a federal court when there is a choice cannot be properly denied.

Nathan Lewin:

We’re not —

Byron R. White:

Sounds like my Brother Marshall.

Nathan Lewin:

Pardon?

Byron R. White:

Nothing.

Nathan Lewin:

No, the — the additional difference, Mr. Justice White, is that there is here no question of state law, which — which we would want to go to a state court on.

What you’re urging us to do in terms of bringing a separate suit in a state court is to bring a separate suit for the purpose of having the state court make the very constitutional determination that we’re asking the federal court to do.

Now, that is specifically said in McNeese was impermissible and it was the wrong standard to apply.

You can’t force a plaintiff to claim his federal constitutional right in the state court when it’s the same right that he’s claiming in the federal court.

Byron R. White:

How about the constitutionality of the statute by the state?

Nathan Lewin:

Well, the constitutionality of the statute —

Byron R. White:

Are you going to say that you can have a decision on that in the federal court?

Nathan Lewin:

Only in the context of this interim relief.

We think that —

Byron R. White:

But why?

In your argument, you cannot force a man to make his federal constitutional claim to the state court.

Nathan Lewin:

No.

Byron R. White:

You just said it.

Nathan Lewin:

Because I think the claim that’s being made, Mr. Justice White, with regard to the state statute is that the state court may construe that statute narrowly.

That’s the ground for abstention.

The ground for abstention, the only ground urged by the appellants —

Byron R. White:

I wasn’t even talking about abstention.

Nathan Lewin:

Well, but the only ground urged by the appellants here is that it’s not that — it’s not that the state statute may be found unconstitutional by the Massachusetts Supreme Judicial Court.

The only ground is that the Massachusetts Supreme Judicial Court may construe that statute narrowly.

Now, that is just not true with regard to this other point.

Now we are now — let me make clear that what we are saying essentially is that this interim relief is permissible and was appropriately granted for, as I say, a variety of reasons.

The first and second reason is that the statute is unconstitutional on its face and that it’s unconstitutional as applied to the exhibition of this motion picture by these appellees, what we gone into in some detail by my colleague, Professor de Grazia.

But what I would like to address myself to is the narrower grounds, which are that in the absence of any state injunction statute, in the absence of any state statute such as that in Freedman and Maryland, in the absence of any state provision that says to a state district attorney, “You may call the termination of a film.”

This district attorney could not in effect stop this film from being shown by withdrawing that stipulation, and that is really all that the order that was issued by Judge Aldrich did.

It simply said to the state district attorney you may not interfere with the exhibition of this film.

What was in that make known stipulation of the state, the prosecutor made no statement or whatever but he simply went around enforcing the laws.

What would you say then to the propriety of the federal courts –?

Nathan Lewin:

We think the same would be true if our plaintiff could show that that repeated indictment and seizure was like the allegations in Dombrowski pursuant to a plan to suppress the speech.

Here, we didn’t have to show that because here, there was a stipulation and it was withdrawn, and the obvious purpose of its withdrawal was to terminate the showing of film, which it did.

So we’re now in the posture where the film played from May to November, no great harm done to the citizens of Massachusetts.

It played from May to November.

The prosecutor then withdrew his stipulation, the film showing immediately terminated, the District Court entered its order, and we’re seeking affirm it’s just an order to allow this film to play.

The film is —

Well, what you’re really arguing I think is that the peculiar patterns of this case, this is within the four corners of the Dombrowski case.

Nathan Lewin:

Yes, sir.

And you’re arguing that the looking apart from that (Voice Overlap) enable the federal courts to stop him whether it was more than at least one prosecution.

Nathan Lewin:

Yes.

We think — as I’ve tried to point out, we think it’s even beyond Dombrowski because in Dombrowski, the District Court was being asked to take an issue away from the state courts, to take away from the state court the issue of a constitutionality of that Louisiana Subversive Activities Act.

Thurgood Marshall:

Mr. Lewin, there’s not a lot of difference.

In the Dombrowski case as I read it, they were putting that man out of business in this whole organization.

And if I understand General Quinn, your client is still in business running with a packed audience.

Nathan Lewin:

I think — I think really the distinction is cut the other way with all due respect, Mr. Justice Marshall.

I think in Dombrowski, the —

Thurgood Marshall:

Were you having —

Nathan Lewin:

— the suppression was much — was much less direct.

What was happening was they were occasional seizures, occasional ransacking of the files.

There was a broad allegation that this would drive away members at some time in the future and would put him out of business.

Thurgood Marshall:

Do you have any of those allegations here?

Nathan Lewin:

In this case, we have the fact.

We have the very fact that here is an exhibitor who wants to speak —

Thurgood Marshall:

Well he’s — well, it is — well, let’s face facts.

Is that except if they want to speak or make a book?

Nathan Lewin:

We think that makes no difference constitutionally.

In this Court’s opinions from New York Times in Sullivan through —

Thurgood Marshall:

Well, granted but I — I’d be no — you say he’s been denied his speech all the time this has been pending.

Nathan Lewin:

That’s true.

Thurgood Marshall:

And if I understand it correctly, you’ll admit that his theater hadn’t been closed yet.

Nathan Lewin:

Your Honor, the fact that it hasn’t been closed — if I — if I, for example, want to speak with respect to a congressional action and I’m told I could speak with regard to the World Series, I was still allowed to speak but —

Thurgood Marshall:

Then I assume you’d say that if the prosecutor said you shall not say, “Thy kingdom come” on the corner that he’d been denied his right to speech?

Nathan Lewin:

I think —

Thurgood Marshall:

Unless there’s anything else he wants to.

Nathan Lewin:

I think I’m probably — Your Honor, Dombrowski would have been a much stronger case if what had happened in Dombrowski was the state prosecutors were taking Mr. Dombrowski, just hypothetically, and arresting him or threatening him with arrest if he opened his mouth or if he distributed the pamphlets which —

Thurgood Marshall:

That’s Dombrowksi.

Nathan Lewin:

No.

In Dombrowksi, there were seizures and it was claimed that the seizures were part of a plan, but there was not as there is here, the gag in the mouth.

Really in this case —

Thurgood Marshall:

Well, is there — is there anything in this case that says that the prosecution or anybody is out to stop this man’s speech?

Nathan Lewin:

That’s plain, Your Honor, from the withdrawal of the stipulation and the fact that immediately upon its withdrawal —

Thurgood Marshall:

Well, I can construe that in saying we don’t want you to show this one picture.

Nathan Lewin:

But that’s a speech, Your Honor.

That’s the speech just as surely as Mr. Dombrowksi’s pamphlet or Mr. — take Mr. Harris’ case, the case Your Honors heard as in the first of this series.

We think that would be parallel to this one if on the day after the day for which he was arrested for distributing a pamphlet, Harris said, “I want to distribute pamphlet again today and again tomorrow and the day after and for a whole month.”

And the sheriff would come up to him and say, “We’ll arrest you every time.”

Thurgood Marshall:

That’s Harris’ pamphlet.

Nathan Lewin:

Well —

Thurgood Marshall:

This is not this man’s film.

Nathan Lewin:

Well, it is Your Honor.

Thurgood Marshall:

How?

Nathan Lewin:

He is exhibiting it.

Let — let me just —

Thurgood Marshall:

It’s his on — it’s his by being loaned to and to be — for a price.

Nathan Lewin:

Right, and he wants to exhibit —

Thurgood Marshall:

That’s a lot different from a man that prints his own pamphlet and has a right to distribute it.

Nathan Lewin:

Let — let me just for a minute add, Your Honor, because I think we should — I should respond to claim that’s been made in the brief by the state and that was made here on oral argument.

It’s true that this film does not belong to these exhibitors.

The distributor of this film is Grove Press which is not a party to this case.

Nathan Lewin:

Grove Press moved to intervene in the court below.

Intervention was denied on the ground that its interest would be fully represented by the exhibitor.

We think that entitles an exhibitor that makes all the claims that the distributor would have made and indeed, we submit the exhibitor is no different if Harris had an associated.

It’s Harris’s rights to his pamphlet and he hands it to an associate who isn’t smart enough to write it himself and tells them, you distribute it.

I don’t think the associate has less rights than —

Thurgood Marshall:

The problem is that the man that’s in business to run — he hopes to run a packed house everyday and here’s a one film you can’t show and he runs a packed house everyday and despite your claim that he is interested in speech, how is he damaged?

Nathan Lewin:

Because he is not —

Thurgood Marshall:

You admit he is not damaged financially.

Nathan Lewin:

Well, I don’t know.

I don’t think that’s true.

I think as it was pointed out here, it’s a fact which you referred to that it’s well known that this film has been doing far better than other films.

I don’t — I admit that the record doesn’t have the fact on whether this exhibitor would have done better with one — with this film than he did with the one he used in place of it.

But I submit that if an exhibitor wants to show film A and he is constitutionally entitled to show it, it makes no different that the state says, “Then you can show film B instead.”

If that were right and the state would be controlling speech.

That’s the worst kind of regulation.

Thurgood Marshall:

That depends on the professor’s argument of whether he does have a constitutional right showed.

Warren E. Burger:

What you’re saying is that one of the speeches he wants to make, he is afraid to make.

Nathan Lewin:

That’s right.

He wants to make this speech.

This exhibitor says, “I want to show this film and the prosecutor who is able to achieve by various other means.

He is able to achieve his lawful ends, which is to prosecute if in fact an offense has been committed.

And in fact he has prosecuted and in fact all the issues are going to be considered in the state case.

That prosecutor chooses instead to suppress the film without statutory authority, without the benefit of any procedure that’s been authorized by any state court, suppress the film simply by threatening it to death and that’s what this prosecutor has done.

He has threatened this film to death.

He simply closed it up by saying, “If you don’t close it up, I’ll just prosecute you and I’ll seize you and I’ll prosecute you again and there is no exhibitor.”

We submit that even an exhibitor who is willing to run the risk and our client is willing to run the risk of ultimate jail sentence.

He is under a one year jail term.

Even a prosecute — even an exhibitor who is willing to run the risk is not prepared to be hold into court everyday to answer a new indictment everyday to plea, to have his film seized, to have to retain mirage of attorneys in order to be able to show a film which an important element which I think I haven’t mentioned at all, this is the fact that this is the film which the court below knew and which this Court can certainly take judicial notice of had been found constitutionally protected by United States Court of Appeals.

So we’re not dealing with just some — whatever it may be hardcore pornography.

We’re dealing with the film which the United States Court of Appeals has said in a suit court by the United States is subject to constitutional protection.

Potter Stewart:

But that was no part at all of the District Court’s reasoning.

Nathan Lewin:

I don’t think so —

Potter Stewart:

They’ve considered on the hypothesis that this was —

Nathan Lewin:

Well, Mr. Justice Stewart, it maybe a fine reading of the opinion.

And I think (Voice Overlap).

Potter Stewart:

When I read it, I don’t know how finally I read it but I read it carefully.

Nathan Lewin:

Well, no.

I just mean, my proposed reading of it but at the top to page 33, Judge Aldrich says, “For the purposes of this case, we’ll assume that the film is obscene by standards currently applied by the Massachusetts Court footnote, another court viewing the same film is different, United States versus “I am Curious (Yellow).”

I think what Judge Aldrich was saying is, well alright, the Massachusetts Court has, we know (Inaudible), will assume arguendo that that would be upheld but it is by no means, by no stretch of the imagination, totally work was hardcore pornography.

It’s a film which maybe Massachusetts will find obscene, the Second Circuit has found not obscene.

And I think that’s an important element in deciding whether that film should be entitled to be shown in the interim while these appellees are making their way through the Massachusetts Courts and being forced to assert in those courts every right, every claim that they might have.

The federal court has entertained in effect, no substantive claim either factual or constitutional other than the claim essential to what they’re entitled to interim.

Potter Stewart:

How many state prosecutions had there actually been, one or two?

Nathan Lewin:

They’re been instituted by a complaint in addition to the one in Boston.

I think three others?

Three others in all that account.

Potter Stewart:

And what’s their status now?

Nathan Lewin:

They’re just waiting really.

Of course this Court has the obscenity vel non as one of the issues of this film on its docket in number 905 which should be heard next term.

So I think they’re probably just awaiting the outcome of —

Potter Stewart:

Well, I guess they’re —

Nathan Lewin:

Yes, they all played one day and let me say again.

What the District Court means that each one of those exhibitors also will be forced to a criminal trial and we’re not contesting that, we haven’t appealed the abstention issues and all the federalism issues would be presented in this case, had we appealed, the District Court’s refusal to enjoin the ongoing state proceeding.

We did not appeal that.

So therefore, the abstention should be just on here.

The District Court has in fact, no matter what said has in fact abstained and the only issue that’s here on this appeal is what happens in the interim.

Potter Stewart:

Well now, this District Court issued an injunction and that injunction has been stayed, has it not, by us?

Nathan Lewin:

Yes sir.

Potter Stewart:

And this therefore brings us back to the situation that existed before the issuance of the injunction by the District Court which you said was an intolerable situation because you are going to be prosecuted everyday, what in fact — the fact is now you’re not exhibiting —

Nathan Lewin:

We’re not exhibiting the film.

Nathan Lewin:

We got a — and with our speech in a plainest sense is being suppressed.

We are just not —

Potter Stewart:

Well your — that’s your choice isn’t it, whether or not you exhibit it?

Nathan Lewin:

No, I don’t think it is, Your Honor.

I think it’s no more our choice than it was the choice of Viva Maria in Interstate Circuit not to exhibit that film or the exhibitor exhibiting it because the informal censorship or the Interstate Circuit case had found the juveniles should not be allowed to see that film and this Court struck down in the Interstate Circuit case.

A system under which it noted self regulation would be the result in Smith and California.

It was bookseller’s own individual choice not to sell books if he hasn’t read them but that’s not a defense.

If the state is forcing to that choice, it’s not a choice at all and that’s really what the state is doing with no —

Potter Stewart:

You said this is a fortiori from Dombrowski, as I understand your argument.

Nathan Lewin:

Yes.

Potter Stewart:

And yet this —

Nathan Lewin:

Because —

Potter Stewart:

In Dombrowski, the allegations were that it was deliberate pattern and course of harassment and abuse of a statute and a bad faith course of conduct here and I don’t understand that there’s any such a claims at all.

There’s no claim of bad faith, there’s no claim of deliberate harassment, there’s simply a prediction of good faith enforcement by the prosecutor of law of Massachusetts makes quite different from Dombrowski, doesn’t it?

Nathan Lewin:

Well, Zwickler and Koota certainly established that bad faith is not an essential element in getting the — in the federal courts getting in to these cases.

We submit that here, there’s an alternative reason which just didn’t exist in Dombrowski because in Dombrowski, again, the prospect of interference with speech was off in some future date.

It’s true there were general allegations about it and general allegations of harassment and bad faith.

But the fact to the matter is here, you have a very evil that the Court forth was a prospect in Dombrowski because what the Court was concerned about in Dombrowski was that the conduct of the prosecutor was going to chill the expression of First Amendment rights.

It was going to prevent Mr. Dombrowski from expressing his views.

In this case, what the prosecutor has done has in the most demonstrable way, achieve that result.

It doesn’t only have the prospect to do it but it’s achieved.

Moreover, —

Potter Stewart:

You mean have chilled into death.

Nathan Lewin:

It’s chilled to death, that’s right.

It just can’t be shown.

It’s just dead.

And with motion pictures, we submit that the essence.

If you can’t show a film that’s being nationally distributed at the time when it is nationally reviewed in national magazines, people just won’t be interested in it anymore.

Warren E. Burger:

And then you lose money.

Nathan Lewin:

Which we think is a permissible con — this Court it is repeatedly recognized as a permissible constitutional consideration.

Warren E. Burger:

But that’s the consequence to him.

Nathan Lewin:

That’s what the New York Times case was all about and the court said back indeed in Ginsberg.

This Court went out of its way to specifically say that has no part of our decision in this case the fact that money is being made.

But I think the distinction from Dombrowski is even greater than that.

I think there’s really a fallacy in trying to compare this with Dombrowski.

We’re not in the Dombrowski ballpark because we’re not talking here that the federal court invalidating the state statute.

In Dombrowski, the plaintiffs went in specifically to move from the jurisdiction of the state courts the question of the federal constitutionality of the state statute.

That’s not in this case at all.

So we’re not really in Dombrowski in that situation.

We don’t need a Dombrowski exception.

Warren E. Burger:

Mr. Lewin, I should tell you you’re down for about 12 minutes for Professor de Grazia.

Nathan Lewin:

Professor de Grazia time.

I’m sorry.

Warren E. Burger:

Professor de Grazia.

Edward De Grazia:

Mr. Chief Justice, may it please the Court.

I want to speak mainly to the issue of the unconstitutionality of the statute on its phase and as it was applied to the circumstances of the exhibition below.

Before I do that, I would like to make one or two remarks concerning the statements or questions raised by the Chief Justice and by Mr. Justice Marshall concerning the interest of the exhibitor which is being — which was defended by the district court below.

It is not only his right to make money.

It is his right as was ably argued by Mr. Lewin to show this particular film but more important was the right of all the people in Boston who might want to see this film to see its ideas to consider its images.

It was their right which was being stifled by the State of Massachusetts.

Warren E. Burger:

Well, is the exhibitor in that circumstance the appropriate party to vindicate that right?

Edward De Grazia:

I believe he is Mr. Chief Justice.

Warren E. Burger:

I don’t suggest that he is not.

I just raised that question.

Edward De Grazia:

I believe he may be the only person and he is certainly the logical person.

He is the person —

Warren E. Burger:

He has the most immediate interest, immediate impact.

Edward De Grazia:

He has the most direct interest.

It’s his skin that’s at stake also.

I think that booksellers and motion picture exhibitors, they run a hazardous business if they’re publishing in the area — if they publish sexual material and I think it’s up to this Court to see that they get the measure of protection they need for performing an important social and constitutional duty.

Edward De Grazia:

I don’t think it’s fair, I don’t think it’s just to say that these people can run the risk of going to jail for a year.

They are — merely because they may no be able to reach judgment that a majority of this Court might reach concerning whether or not a particular film or a particular book is obscene.

It’s an exquisite question.

It’s a very difficult question.

I think it’s something which — which you are trying very hard that this Court, this Honorable Court is trying very hard to clarify so that we will have a situation where — for instance, we’ll know what material is obscene.

For instance, we’ll be unnoticed of what behavior with respect to possibly obscene material will end them in jail or will cause them to be punished or will cause their films or their books to be suppressed.

Warren E. Burger:

Would you — do I get from that to his intimation that you concede that there is some suppressible material that there are some movies that could be suppressed under a federal statute?

Edward De Grazia:

Mr. Chief Justice, I do.

I think that the direction of this Court is going in its opinions at least for the next 20 years I would anticipate that there will be material that will validly be proscribed.

However, I would like to say that I think the direction that this Court is taking and a proper direction and a hopeful direction is to focus more and more on the behavior of the parties involved to look less and less, to be concerned less and less with the obscenity of vel non of material because obscenity vel non in fact differs from person to person, from prosecutor to defendant, from judge to judge, from court to court, from state to state, from country to country, from culture to culture.

Hugo L. Black:

Do I understand you in the answer to the question that you say that you concede that the First Amendment does not protect this literature or whatever it is they’re talking about?

Edward De Grazia:

Mr. Justice Black —

Hugo L. Black:

Or do your concede that that court have decided that up to now, which do you concede?

That’s quite different (Voice Overlap) if you’re making a confession that First Amendment doesn’t protect you.

I would like to know it.

Edward De Grazia:

The Court has decided that.

Hugo L. Black:

Are you making a concession that the First Amendment does not protect your client?

Edward De Grazia:

Well I — this case doesn’t require me to.

Oh! No, Your Honor.

Hugo L. Black:

Well, I understood you to answer the question if you concede it, the Chief asked you a question if you concede it.

Edward De Grazia:

I’m sorry.

I must have misunderstood the question.

Hugo L. Black:

I thought surely, you did.

Warren E. Burger:

Well, let’s try again.

I thought you did concede explicitly that there is some material which could be suppressed that is it could be so bad whatever that means under the standards that it’s so bad that it could be lawfully suppressed.

Edward De Grazia:

It’s clearly enough the material in this case, Your Honor.

Warren E. Burger:

Well, no.

I’m not talking about this case.

Is there some kind of material which could be suppressed?

Edward De Grazia:

In my judgment, there is a state that may validly pass — may pass a valid statute proscribing and punishing certain kinds of behavior with respect to material which might — which might — can be called obscene but it will be the behavior focused on which imparts the criminality to the situation, it is not the material of itself.

It’s the behavior that results in disseminating the material.

Edward De Grazia:

Yes, it’s the dissemination of material which is involved.

Yes.

Well, Your Honor, for example the state court in this case below spread perhaps 100 pages — 100 pages of an opinion, trying to decide whether or not the three-pronged test of Roth was met in this case and then in one sentence found that their necessary guilty knowledge or scienter for criminal culpability was existed and he found that in one sentence despite the fact that these exhibitors were knew that the Second Circuit Court of Appeals had found the film constitutionally protected and could not possibly imagine that the film was obscene.

It could not possibly have the guilty knowledge that this film was obscene or that their exhibition of this film was criminal or culpable.

Warren E. Burger:

Well, of course Judge Aldrich and his two colleagues were not absolutely sure about this, were they?

Edward De Grazia:

I don’t think Judge Aldrich had any question in his mind.

I think that he chose not to reach the question in order that he could reach more interesting and more deep — deep-sounding questions concerning the law of obscenity.

Warren E. Burger:

Well (Voice Overlap) probable unconstitutionality which is I suppose when a judge uses that term, he means something like probable cause.

This was probable cause in reverse.

Edward De Grazia:

The — the three-judge court based its preliminary injunction principally on the probability that the statute is unconstitutional on its face and as applied to the circumstances below.

The principally — the Court relied on the Stanley v.Georgia opinion.

There are — this statute, it is our position and we urge you to consider that this statute is overbroad and the number of other respects procedurally and substantively and is in fact not only probably but quite certainly unconstitutional.

I’d like to direct myself to that question for a few minutes.

We don’t deny for purposes of this case that the State of Massachusetts has some power to deal with social problems involving alleged obscenity, alleged obscene material but we insist as this Court has insisted that when a state legislate in this field that which touches on First Amendment freedoms that it do so was specificity and with careful consideration to the First Amendment freedoms that are involved.

Hugo L. Black:

Why — if it has that vow, well, why hasn’t it done so in this case?

Edward De Grazia:

The State of Massachusetts —

Hugo L. Black:

I can’t see that part of your argument.

Edward De Grazia:

Why hasn’t the State of Massachusetts done it?

Hugo L. Black:

Why is it not specific?

I thought it was.

Edward De Grazia:

Mr. Justice Black —

Hugo L. Black:

As specific as it could be made.

Edward De Grazia:

It is — the statute is not specific as it could be made.

Hugo L. Black:

How could it be made anymore specific?

Edward De Grazia:

The Massachusetts statute with respect to books for example provides in rem proceeding, provides a number of — a great number of procedural constitutional safeguards to protect the rights of publishers and book sellers.

Hugo L. Black:

That procedural safeguard, that has nothing to do with the fact that I understand you to say now.

You’re defending this on the ground that although a court can abridge speech that the court deems immoral or obscene that here it hasn’t done so, it’s definitely and I think it has in the State of Massachusetts.

Edward De Grazia:

The definition in the book statute is no more precise specific than the definition in this statute, Mr. Chief — Mr. Justice Black.

That is true.

Edward De Grazia:

I would now — I am not attempting here to say — I would not suggest here that that book statute is constitutional.

It’s not itself overbroad.

I am suggesting, however, that most of the vices contained in this statute as it is being applied to films are not contained in the Boston book, in the Massachusetts book statute.

For example criminal prosecutions are not brought until after there has been an in rem proceeding and a judicial determination of obscenity with respect to a particular book.

For example, booksellers are given the benefit of any prior final decision concerning non-obscenity of a book and are protected by an absolute presumption against the criminal prosecution.

For example, police and prosecutors do not bring criminal actions involving books in Massachusetts unless and until the Attorney General of the state has considered the material, weighed the constitutional issues and decided whether or not the book is probably obscene.

And then during —

Hugo L. Black:

Well that — that doesn’t decide anything does it?

Edward De Grazia:

It doesn’t solve the substance of problem —

Hugo L. Black:

If the Attorney General decides that the Attorney General thinks it’s constitutional.

That wouldn’t be binding on anybody, would it?

Edward De Grazia:

With the Attorney General’s action —

Hugo L. Black:

Yes, the Attorney General decides it’s constitutional.

Would that be binding on the evidence?

Warren E. Burger:

Which just means that he is going to take it to the grand jury or issue an information charge, doesn’t it?

Edward De Grazia:

Well, I simply what I want — I don’t want to suggest that if Massachusetts enacted a new statute applicable to films which provided precisely with the Massachusetts statute applicable to books provided that that would solve all the problems but I’m suggesting that the state can in Massachusetts obviously can look at the problem of freedom of speech in films and look at the problem of obscenity and come a lot closer to protecting the rights of the persons who have as their duty the exercise of First Amendment rights in trying to pursue their legitimate state interest in obscenity — their interest, their purpose in protecting — in protecting the people of the state from obscenity.

Now, I suggest that what this Court said in Stanley.

What this Court said in the Redrup are the legitimate state purposes.

I think that if the statute were restricted to the dangers pointed out in the Stanley v.Georgia decision and in Redrup that is the dangers of pandering, of solicitation, the dangers of that material might fall into the hands of children and the danger of obtrusive, evasions of privacy that we would have a statute that people could operate under without wholesale violations of their constitutional rights.

Warren E. Burger:

I think your time is up —

Edward De Grazia:

The time is up.

Warren E. Burger:

— Professor de Grazia.

Edward De Grazia:

Thank you.

Warren E. Burger:

General Quinn, you have four minutes left.

Robert H. Quinn:

Thank you Mr. Chief Justice and may it please the Court.

We all agree that we have difficulty with the definition of obscenity.

I must confess now.

I have a great deal of difficulty with the definition of the word “threat”.

Hugo L. Black:

Word what?

Robert H. Quinn:

Threat, Your Honor.

Robert H. Quinn:

After five-and-a-half months of showing of the film by the appellees here, “I am Curious (Yellow),” after a trial in the merits in Superior Court lasting days not suddenly in a colloquy in the federal court, the district attorney declines to renew a stipulation which he made previously that he would not seek further prosecution or seek to enjoin the showing of this film until the conclusion of the trial in the merits.

This — this is all called threats.

This is all called job owning.

This is all called multiple prosecutions.

This is called Dombrowski a fortiori.

Hugo L. Black:

The what?

Robert H. Quinn:

Pardon my Latin, Mr. Justice Black.

Warren E. Burger:

Dombrowski complicated it a little.

Robert H. Quinn:

This is called Dombrowski a fortiori, I submit, it is neither a fortiori although weaker.

It is completely not the case.

The record shows no evidence of threats whatsoever but simply a declination to renew a stipulation by the district attorney.

Well, you just shown that it legally threatened your (Inaudible) as a matter of injunction, the official factions.

Robert H. Quinn:

I submit that however we interpret or define threat that cannot be held to be a threat legally in the English language or even in the Swedish language.

Further, we must accept the fact that my brother has conceded that there has never been an effort made in the state courts of Massachusetts to continue the showing of this film.

I submit in conclusion that the appellees here are not Grove Press, Inc.

The appellees here are film distributors.

The action on the part of the appellants has never under any color or interpretation of that action been able to be defined as threats or anywhere near the fact of situation existing in Dombrowski versus Pfister.

Potter Stewart:

Quinn, I’m — perhaps it’s been made clear but if so, I missed it.

What is the posture of the state prosecution now in the Massachusetts Court?

There has been a conviction on its own appeal.

Robert H. Quinn:

And the Bill of Exceptions was entered yesterday in the Massachusetts Supreme Judicial Court which leads us to the safe assumption that this Court, this case will be argued on the merits in Massachusetts in the October sitting.

Potter Stewart:

The October sitting.

How long does it take for the Massachusetts Supreme Court get the answer to this?

Robert H. Quinn:

Our Massachusetts Supreme Court has a tradition of never having to let the year pass without deciding all of the cases that were argued before and I think it’s safe to assume that within a month or two after the oral argument that there’d be a decision on this case, Your Honor.

Warren E. Burger:

So it would be in this calendar year.

Robert H. Quinn:

That is correct, Your Honor.

I thank you, Mr. Chief Justice.

Warren E. Burger:

Thank you, General Quinn.

Thank you gentlemen.

The case is submitted.