Grove Press, Inc. v. Maryland Bd. of Censors

PETITIONER:Grove Press, Inc.
RESPONDENT:Maryland Bd. of Censors
LOCATION:Arizona Dept of Public Welfare

DOCKET NO.: 63
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 480 (1971)
ARGUED: Nov 10, 1970
DECIDED: Mar 08, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – November 10, 1970 in Grove Press, Inc. v. Maryland Bd. of Censors

Warren E. Burger:

We’ll hear arguments in number 63, Grove Press against Maryland.

You may proceed whenever you’re ready Mr. de Grazia.

Edward De Grazia:

Mr. Chief Justice and may it please the Court.

This case is here on appeal from the judgment of the Court of Appeals in Maryland which affirmed an order of the Circuit Court of Baltimore City, upholding a decision by the State Board of Censors disapproving the film “I Am Curious Yellow” for exhibition in the State of Maryland.

The Maryland Film Censorship scheme under which “I Am Curious Yellow” was banned throughout the state is an amended version of the law which this Court held without dissent to be an unconstitutional previous restraint in Freedman v. Maryland.

Maryland in fact is the only state today which still retains a law on its books, making criminal the failure of Motion picture exhibitors to obtain prior approval by a censorship board of a film intended to be shown to adults.

“I am curios Yellow” was imported from Sweden by it’s American distributor Grove Press and it immediately became the subject of a custom’s forfeiture proceeding, but 11 months later was finally held to be constitutionally protected and not obscene by the United States Court of Appeals for the Second Circuit.

Soon thereafter, appellant, Five West Amusement Company, Inc. contracted with Grove to exhibit “I Am Curios Yellow” in Baltimore.

In accordance with Grove’s national distribution policy, the agreement provided that admission to the film would be limited to persons 18 years of age and older and the Grove would control all advertising copy.

On July 1, 1969 as required by the statute, appellants submitted “I Am Curious Yellow” to the Maryland Film Censorship Board consisting of three adult ladies, who following consultation with the State’s Chief Law Enforcement Officer and the Honorable Attorney General of Maryland, found the film obscene.

No record was made of the Board’s proceedings and although witnesses were heard, their identity and their testimony was kept secret.

No findings or supporting reasons were given by the Board in issuing its decision.

As required by the statute, following its disapproval, the Censorship Board petitioned the Circuit Court of Baltimore City asking it to approve its decision.

And after a hearing, an adversary hearing in which witnesses were heard on both sides, the Court affirmed the Board’s decision.

Appellants here appealed that decision to the Court of Appeals of Maryland which considered the matter de novo and found the statute unconstitutional and the Motion picture obscene.

The Maryland Court of Appeals reached its decision by a four to three division, disagreeing sharply over the conclusions to be drawn from the application of this Court’s Roth-Memoirs test for distinguishing protected expression from obscenity.

The majority saw fit also to disregard the decision reached with regard to the same film by the Second Circuit.

The Second Circuit also provided (Inaudible)

Edward De Grazia:

Two to one.

(Inaudible)

Edward De Grazia:

It was a majority of two to one, Judges Hayes and Friendly in the majority and Chief Judge Lumbard dissenting.

(Inaudible)

Edward De Grazia:

Well, I was going to — in fact Your Honor, would have referred later to Chief Judge Lumbard’s dissent in that case.

I think it is notorious that there are very rare cases in this field in which there is not a division of the justices at whatever level of court we may look at.

The issues presented by this appeal are two-fold.

Before I get to the issues, I would like to state that in terms of the Court of Appeals of Maryland’s majority opinion, although the majority applied the Roth-Memoirs three-pronged test, the court gave special weight to “the visual impact of a Motion picture as contrasted with the printed word.”

The issues presented by this appeal are two.

First is the Maryland statute defective as applied to “I Am Curious Yellow,” and second is “I Am Curious Yellow” obscenity or is it protected expression.

It is our position that the Maryland Film Censorship scheme is fatally defective because it is over broad and because it fails to provide adequate procedural safeguards.

The statute requires the Board to disapprove any film that is obscene.

Edward De Grazia:

The only definition of obscene provided by the statute however reaches any film whose effect is to “arouse sexual desires,” if that affect probably “outweighs whatever other merits the film may posses.”

The trouble with this definition is that it is in conflict with Roth and every other case that is followed.

This Court has never to my knowledge suggested that books or films maybe censored for arousing sexual desires.

Any film with a handsome actor might be perceived by lady censors as arousing sexual desires particularly if the actor appears naked if only for a few moments as he did in “I Am Curious Yellow.”

Similarly, any film starring a nude woman maybe perceived by a man as arousing sexual desires, particularly if the man — I’m sorry, particularly if the actress appears naked even for a few moments as she did in “I Am Curious Yellow.”

Moreover, the statute commands that the arousing affect be weighed against the film’s other values.

In this respect it is submitted, the statute is in conflict with this Court’s judgment and Mr. Justice Goldberg’s opinion in Jacobellis versus Ohio and is also in conflict, we submit, with Mr. Justice White’s dissent in Memoirs v. Massachusetts.

Finally, the Board is not required by the statute to consider whether the film goes substantially beyond contemporary community standards in its sexual depictions as this Court in Manual Enterprises versus Day held must be done before material can be found obscene.

In this regard, the film is also in conflict with this Court’s judgments and the prevailing opinions in Jacobellis, Memoirs and Redrup versus United States.

Secondly, the Maryland Censorship scheme is defective because of its procedural defects.

No record is made or required to be made.

The witnesses, there is no requirement that witnesses be revealed and their deliberations, the deliberations of the Board are secret.

No grounds are given for a decision.

The censors here have no function other than censorship whereas in the case of the Post Office as has been described today a possibly analogous role, the censors deal with other matters than obscenity.

Mr. de Grazia, am I right that despite the wording of the statute, the Maryland Court of Appeals who took — judge in this film in terms of the Roth and Memoirs statutes?

Edward De Grazia:

That is sure correct.

That is correct Mr. Justice Harlan.

So, you’re not making — not a basis for statute on its face but rather material question?

Edward De Grazia:

I believe that there have been opinions of the justices of this Court, including Mr. Justice Blackmun to the effect that it maybe necessary for the statute itself to define with specificity the requirements and criterion for censorship.

(Inaudible)

Edward De Grazia:

The — and in the case of Aptheker versus Secretary of State which is cited in our brief at 44, the Court I think clearly held that the Courts are not unlimited in the authority to rewrite otherwise defective statutes.

Potter Stewart:

Of course a state court is as far as we’re concerned, we just take — if a statute says brown and the state court says that really means green, then the state law is that it means green and that’s where we take it.

Edward De Grazia:

Well, Mr. Justice Stewart, it maybe the way you take them.

I’m not sure that a Censorship Board would take it that way.

The ladies on the Censorship Board are not I think trained in the law.

There is no indication to what extent of [Voice Overlap]

Potter Stewart:

The decision of Maryland Court of Appeals or the United States court on the censorship.

Edward De Grazia:

We are, yes Your Honor, but we are here dealing also with the censorship system which requires the prior submission and the suppression by a board, an administrative board of material which only later is judicially adjudicated for its obscenity.

Warren E. Burger:

Well, let’s assume that the first action was inadequate in some ways, isn’t it irrelevant after the Court of Appeals of Maryland has taken – the steps it’s taken?

Edward De Grazia:

Your Honor, Mr. Chief Justice, if the statute permitted this film or any film, at least any film which had been the subject of a prior positive judicial action to remain free for exhibition during the pendency of the board’s hearings and the legal proceedings thereafter, I would say yes.

Edward De Grazia:

But I don’t believe that it is the teaching of this Court that censors are — the censorship boards are free to reach erroneous conclusions through inadequate practices and procedures subject to the saving grace of a final judicial decision which as is perfectly plain in this case is more than a year after the film was originally suppressed in Maryland.

I would like to refer the Court also to Kingsley Books v. Brown in which the Court held that material ought to be permitted to circulate, pending a judicial decision — pending a final judicial decision subject only to a subsequent contempt proceeding.

Again, I wish to emphasize that in a case such as this where the film already known to the Censorship Board and known to the courts, the film already had been held constitutionally protected by the Second Circuit Court of Appeals.

Surely in the case such as this, there is no sufficient warrant for a board or a court to suppress the exhibition of a film, pending a final adjudication by this Court.

My second point is that “I Am Curious Yellow” cannot be held obscene under any of this Court’s test since Roth.

Warren E. Burger:

I’m not sure Mr. de Grazia, what inference you want us to draw if any from the fact that a federal court of three judges held one way and the State Supreme Court held another way.

Does that prove any more than reasonable men take a different view of some of these things?

Edward De Grazia:

Mr. Chief Justice —

Warren E. Burger:

You’re not suggesting that the Second Circuit’s holding in finding on Court of Appeals of Maryland, are you?

Edward De Grazia:

I would suggest that in an area as filled with difficulties as this one is that the Court of Appeals of Maryland indeed, the district, the Circuit Court of Baltimore should have heeded the — should have not followed the decision by the Second Circuit Court of Appeals, but should have found as a matter of law that if a majority of a high federal bench sees social importance in a film, sees no insufficient prurient appeal and insufficient patent offensiveness in a film, that surely, the film cannot be said to be utterly without for example social importance, utterly without value.

It seems to me that a decision by any justice, any judge of a federal or state court should be enough to warn another — a sister court away from a decision which suppresses a film.

In Roth, this Court said that obscenity was not protected expression, but in doing so, the Court emphasized that sex was not synonymous with obscenity.

The portrayal of sex for example in art, literature and scientific works is not sufficient reason this Court said, to deny material of the constitutional protection of speech and press.

That reasoning, we feel precisely covers this case.

“I Am Curious Yellow” is two hours of filmed art.

Dozens of witnesses and critiques prove that were it not otherwise perfectly clear from a viewing of this film.

The portrayal in this film of ten minutes of sexual relations cannot be taken to destroy the film’s entitlement to constitutional protection.

The relationship of the sexual episodes to the balance of the film was described at the trial and is contained in our brief on the merits at footnote 32.

I would like to merely read to you one sentence of what Mr. Vincent Canby, the New York Times film critique said on this point.

“A full length portrait of Lena, the troubled, liberated woman simply could not exist without these sexual scenes.”

As Judge Hayes said in the Second Circuit decision, “Whatever the dominant theme of this film may said to be, it is certainly not sex.”

Moreover, not only is the sexual theme subordinate, but it is handled in such a way as to make it at least extremely doubtful that interest in it should be characterized as prurient.

The same conclusion that this film is constitutionally protected also plainly follows from this Court’s decision subsequent to Roth.

I would wish to mention at this juncture two important facts about the Roth-Memoirs test.

First as was documented by the Commission on Obscenity and Pornography’s recent report, and I must quote this to you, “the three-part definition adopted in the plurality opinion in the Fanny Hill case is the version which has been codified into a number of state statutes, and it is the one which is almost universally used in state and lower federal courts.”

Second, the judgments required by Memoirs are enormously difficult to make with regard to particular materials and it is very easy for different judges and jurors to reach opposite conclusions as the same works.

As is well known, the recommendations of the commission are that all laws which prohibit or interfere with consensual distribution of obscene materials to adult should be repealed.

And that as this Court has intimated in such decisions as Redrup and Stanley, and Rowan v. Post Office, only laws aimed at the protection of juveniles or at the prevention of obtrusive or assaultive communications to unwilling or captive adults, are consistent with the constitutional values of free expression.

Are you going to devote any more time with the argument of Chief Justice inquired about and what the impact of the Second Circuit’s decision should be?

I understood your brief to argue that in the first common error, First Amendment right field, not as a matter of reason you dictated but it’s a matter of giving protective effect to the supremacy matter or to a preemption matter, the — and to relieve the rule in this field from the threat of different kinds of decisions from the state courts, and then given by the federal courts that the first federal decision as a matter of supremacy law or preemption law, as we used to call it, should be controlling?

Edward De Grazia:

That is our position.

Are you going to argue that for me?

Edward De Grazia:

Perhaps, I could say a few more words about it.

Well, I thought it was quite an interesting argument?[Laughter]

Edward De Grazia:

It seems to me that this field already replete with conflicting decisions, conflicting rules, overlapping tests could be improved where state courts to lend the courtesy or the supremacy to the judgments of federal courts in this area.

I would think that the federal courts might similarly respect the prior judgments of state courts at least if the state courts are applying the correct standards.

There was no suggestion in the Maryland Court of Appeals decision that the Second Circuit Court of Appeals had applied standards different from those which Maryland chose to apply.

In such situations, it seems to me that the prior judicial decision should be treated as in effect binding on the Second Court.

Would you carry that beyond the (Inaudible) that in all areas of the federal adjudication — federal constitution?

Edward De Grazia:

Mr. Justice Harlan, I wouldn’t.

I haven’t investigated that matter, but I doubt that I would.

Harry A. Blackmun:

Suppose the Second Circuit had gone the other way and judge Friendly resolved the case as Solicitor General’s (Inaudible) would you have the same argument?

Edward De Grazia:

If, Mr. Justice Blackmun, if the Second Circuit Court of Appeals had ruled differently, we would have appealed that decision to this Court.

And I had being involved in that case had every confidence that this Court would’ve reversed the Second Circuit Court of Appeals.

I think that we should keep in mind —

Harry A. Blackmun:

Suppose some other counsel would have handled it and didn’t agree?[Laughter]

Edward De Grazia:

Mr. Justice Blackmun, I’m sure that any competent counsel in that case would have appealed to this Court.

I want to emphasize that a point which now with the report of the Commission on Pornography, it seems to me is doubly persuasive and that is in this area where there’s a doubt, the expression should be permitted to continue and to exist.

And doubt should be resolved in favor of the expression and the decisions upholding the expression because there is absolutely no evidence of any social danger to individuals or to society from materials of the kind which are suppressed by statutes like this.

I mentioned the commission’s report today not because its findings are necessary to support our side, they are not.

The Roth-Memoirs test and in the alternative, the Kingsley Books v. Brown and Freedman cases are all the law — we believe we need for reversal.

However, the report is unquestionably the most important and authoritative commentary in this field of obscenity to have appeared since the American Law institutes’s draft at a modeled penal code and I have no doubt that you will have reference to it.

In the event, you should decide on clearer definitions or tests should be introduced in this or related cases.

I wish to point out that in my judgment, this case and this film provides this Court with a rare opportunity to reach a judgment that is unanimous and announce a clear and uniform opinion which might significantly relieve this bench and lower state and federal courts as well of the flood of litigation and conflicting decisions which have been the inevitable prices paid for the disagreements between the members of this bench and for a tests which fail adequately to be in touch with the realities of sexual attitudes, behavior and expression.

I therefore suggest the Court might wish o go beyond the reversal of Maryland on the basis of Roth-Memoirs or Brown-Freedman and reverse on a basis of a new formulation which finds it’s common rationale in a distillation of the wisdom contained in the opinions of Mr. Justice Harlan in Manual Enterprises, Mr. Justice Brennan in Memoirs, Mr. Justice Stewart’s opinion in Ginzburg and Michigan, the per curiam opinion in Redrup, Mr. Justice White’s opinion in Memoirs, Mr. Justice Marshall’s opinion in Stanley and the Chief Justice opinion in Rowan.

What is the ruling of this Court?[Laughter]

Edward De Grazia:

Yes, the rule Mr. Justice Harlan is that federal agencies and courts alike would be admonished not to obstruct or interfere with disseminations of films or any other materials unless they are hardcore pornography.

But they would be given leeway to prevent or prosecute these whenever the mode of their distribution carries with it the risk of exposure to unwilling adults or to children.

Here, may I remind you that general commercial motion picture distributions generally carries far fewer such risks that is of exposure to children or to unwilling adults than general distribution of books and magazines.

Your Honors, you all have had an opportunity to see this film and to have experience its dominating concern with political and social and moral values.

Edward De Grazia:

Its exploration of personal and national ethics of violence and non-violence, of criticism of American, Swedish, Russian, Chinese and Spanish governments, of youthful reactions to the war in Vietnam and the aspirations for a country which could adopt the policy of non-violent defense, of the ideals of Martin Luther King, of the irresponsibility of some parents and the anger of their children.

We have furnished the Court with — the members of the Court with copies of the film scenario so that you may be able if desire to refresh your recollection of the film’s social themes and intellectual ideas.

How many states of the union has this film been shown to?

Edward De Grazia:

This film has been shown to 5.5 million persons in 40 States of the Union and approximately 180 cities.

Hugo L. Black:

Has it created any kind of war like fraction and those things?[Laughter]

Edward De Grazia:

The South seems to be a little more resistant to the exhibition of this film and parts of the Midwest also than the North and the far West.

Hugo L. Black:

Did the people go to see the though?

Edward De Grazia:

People are going to see it all over, yes.

Well, that’s —

Edward De Grazia:

Well, except in Maryland.

2619 [Laughter] very much concerned about the Maryland decision.

Edward De Grazia:

Your Honor, we are concerned.

We were concerned for the state of freedom in this country for motion pictures.

We’re concerned about — for the state of freedom for other motion pictures that these appellants might want to distribute or exhibit and we’re concerned for the fate of other films, books, magazines and newspapers that it should be distributed throughout the country.

Thurgood Marshall:

What about the equal protection on limited people who live in Montgomery County and Creeks Villages County and come to Washington to see it?

And the people of Baltimore are too far away, you don’t have (Inaudible)

Edward De Grazia:

Mr. Justice Marshall, we mentioned that.

We touched on that in our brief, in our jurisdictional statement and our brief on the merits.

I think that — I personally cannot see how this country can tolerate a constitution which gives a man freedom of expression or to receive — gives a man freedom to receive ideas which is totally dependent on state, county or municipal boundaries.

I think there is a denial of equal protection of the laws, of the constitutional laws in such a case.

I would like to say the —

Thurgood Marshall:

These are not qualities for this suit?

Edward De Grazia:

Pardon me?

Thurgood Marshall:

Poor people who are unable to see this picture, you’d keep pleading for them, but they’re not parties to this case.

Edward De Grazia:

Distributors and exhibitors under the laws as it stands in this —

Thurgood Marshall:

They are not poor, (Inaudible).

Edward De Grazia:

I didn’t hear that Mr. Justice.

Thurgood Marshall:

They’re not poor.

Edward De Grazia:

I’m sorry, would you repeat your question?

Thurgood Marshall:

I said that people that are deprived of the — what you consider their right to see this picture are not parties to this case.

Edward De Grazia:

They are not parties.

It is the responsibility for supporting their rights, and defending their rights under the law of this land seems to rest on the shoulders of the commercial distributors and exhibitors of films and books of this kind.

Thurgood Marshall:

Simply because this is the only way, the only handling to gesture.

Edward De Grazia:

It’s the only way we can get to it. I’d like to save my remaining few minutes —

Harry A. Blackmun:

Mr. de Grazia, did you say that this has been shown in 40 states?

Edward De Grazia:

Yes Mr. Justice Blackmun.

Harry A. Blackmun:

Why are the people of the other nine states deprived of the social message of this film?

Edward De Grazia:

I would — I believe almost — I believe entirely because of litigation which commenced in those cases which has not finally been resolved in cases both civil and criminal which are pending — which have been suspended pending the decision of this Court in this case.

Warren E. Burger:

Mr. Attorney General?

Francis B. Burch:

Mr. Chief Justice and may it please the Court.

I would make apologies at the outset if I have a question put to me and have a little difficulty in hearing it and I just simply want to apologize in advance.

I had originally intended to argue this case by addressing myself first to the obscenity issue and then very lightly at the end to the questions raised by my brother with respect to the statute itself, the whole system of pre-censorship in Maryland and the question of preemption by the Second Circuit.

But let me, since he have made quite a point of both of those matters, let me first, if I may, go to the question of the over breadth of the Maryland statute.

I believe Mr. Justice Stewart, you pointed out that the Court of Appeals of Maryland in the Sansone case addressed itself specifically to that problem and held that obscenity was obscenity within the constitutional sense and that is all that could be banned by the Maryland Censorship Board.

And I might say that that brings to mind the Shuttlesworth case in Alabama where this Court held that plastic surgery on a statute which would otherwise be in violation of the First Amendment rights could act prospectively so that the surgery would correct whatever defect there was.

So we think Shuttlesworth is a complete answer to the point raised by my brother on that question.

With respect to the preemption, again, going to the question of the statute itself, my brother refers to the Kingsley case, the Brown case.

I simply point out that that was in 1957.

The Freedman case which dealt specifically with the Maryland’s system of pre-censorship was decided in 1965 and it’s very much on point, so I don’t know why he would ask this Court having once addressed itself to the Maryland statute, having found that it could constitutionally be amended which it was, sorry, and it was so amended that now, he brings up the Brown case of 1957.

On the question of preemption by the Second Circuit, first of all, we have an entirely different situation.

It would be a completely new theory of the law and frankly, we’ve researched it and we find nothing which would suggest that preemption would be appropriate in this particular case, but let’s look at the facts.

First of all, we were not party to the federal suit in New York.

There was no expert witness offered by the federal government.

The case was tried before a jury.

We had no right of appeal so he would say that if a court in some other jurisdiction were to decide the issue without ever our having had any opportunity whatsoever to enforce the rights of our statutes that we should be preempted.

I think simply to state the question is to answer, I don’t believe that this Court will ever take such a position.

Now, I can’t let it pass when we get to the question of obscenity, the description that my brother had or gave of the sex in this picture.

He talked about a few fleeting moments of a man in the nude and a girl in the nude.

He says and he acknowledges that hardcore pornography even under the unusual test that he suggests that hardcore pornography would be properly banned by any jurisdiction whether it be federal or state.

I would like ,if the Court is not already familiar with it, simply to refer of the description of the 17 — in the — Your Honors would pardon me for just a minute, I would like to find the particular reference of what this film is all about.

Francis B. Burch:

While I look for that, if I may, I would like to make one further comment about the theme of this movie.

There were some very interesting characterizations of the various things, Martin Luther King, the unrest in Sweden and this and that, and the other thing, and that this therefore gave it a redeeming social value.

I think it’s interesting if the Court will recall in our brief the reference to Rex Reed’s critique of the film I think in the New York Times in which he related a very interesting incident.

When the film had been shown to those who were going to write it to the critics that after the film had been shown, it was found out that the projectionist had put the second reel — the third reel second and the second reel last.

In other words, the theme was so completely disorganized and that there really wasn’t anything that they didn’t even know which film went where.

And if you will look at Judge Lumbard’s opinion in the New York case, you will find that they did the same thing when that case — when that film was exhibited to the court and the jury because in his opinion, Judge Lumbard says “The final scene in conformity to the dominant theme shows the female lead performing an orchiectomy or a episiotomy, or both on her murdered lover with a kitchen carving knife.

This happened to be in the second reel and not in the third reel, but when they showed it to the jury and to the court, it ended up but being in the third reel.

Now, let’s look at what the sex is in this movie.

I’m not going to use some of the expressions that we use such as in the opening scene when the young lady talks about what she can do in Rio de Janeiro for free, but you have a display of erotic Indian sculpture depicting a man with his hand on the woman’s vagina.

You have a discussion between Lena and another girl about different methods of masturbation.

You have the dialogue “are you that stupid,” so you don’t give a — you know what about it.

Detailed love making scene in Lena’s room showing both parties completely naked, exposing the male genital area, showing attempted intercourse against a wall, and also showing a scene of Börje caressing the girl’s breast with his tongue.

A scene depicting sexual intercourse between Börje and Lena on the palace balustrade in which although the parties are clothed, the act of intercourse is vividly displayed.

Scenes of nudity at the retreat and scenes depicting Lena looking at a sex manual showing various unusual positions for sexual intercourse.

Scene at the retreat showing Börje throwing Lena to the ground and committing an act of cunnilingus followed by a scene depicting the parties both completely nude with Lena kissing Börje’s penis as he caresses her vagina.

A discussion regarding sex which makes both of them horny.

Scenes depicting intercourse in the water, scenes depicting sexual intercourse in a tree between Lena and Börje, scenes showing fully the naked bodies of the two lying on the floor engaged in either actual sodomy or sexual intercourse with the man behind the woman.

This scene also dramatically emphasizes the erotic effects of the copulation.

I could go one and I could talk about the genitals in other scenes, I could talk about the tremendous active scene when he chases her into another room, throws her to the floor and has what appears to be intercourse in the nude.

Throughout this picture, you have ten or twelve minutes of sexuality, but it’s the most explicit sexuality that’s ever been shown.

You also have in the record the statement of the producer that what he sent over here to the United States to Grove Press as the material that would be used to sell the picture was mostly the emphasis on the sexual aspect of the film.

All of these is the dominant theme and it was so held by the lower court in our case, it was held by the lower court by the jury in the New York case, it was held by the lower court in the New York case, it was held by one of the two judges in the Second Circuit.

It was held by the lower court in our case and it was held by the Court of Appeals by a divided four to three opinion.

It was also held by a number of other cases, courts throughout the country that had had the opportunity to address itself to the issue.

They have found that this is a predominantly sexual obscene picture and that it has no redeeming social value.

What is the score board of the judiciary on this?

How many courts have voted obscene and how many have not?

Francis B. Burch:

I — do you have the — we recite in our brief the number of cases where it has been held to be obscene, where it has been held to be hardcore pornography and that’s exactly what it is.

The sex in here is only to sell the film, the rest of it is nothing.

The “I Am Curious Blue” case; this picture was developed by a series of interviews such as you see Lena conducting on the street and what not.

Francis B. Burch:

They took all of that, they extracted from it, that which they wanted to put in “I Am Curious Yellow” with about 95% of the sex that they’ve seen — that they filmed.

They put that together and they sold “I Am Curious Yellow.”

Then they came along with “I Am Curious Blue” and what a disappointment to those who we’re looking for sex because if — it reminded me of the comment by Mr. Justice Stewart or Mr. Justice Goldberg who said that the — in the Lover’s case, Jacobellis’ case that the sex in it was so fleeting that you would’ve known it except how you’ve been censored.

In this case, this is exactly what they did and they ended up with “I Am Curious Blue” and what happened?

5.5 million people have gone to see “I Am Curious Yellow” according to my brother.

In 40 states it has been shown in.

It was at the top of the box office.

I’d tell you, I’ve gone all over those figures.

It was in the top ten — top two or three in the country for four or five weeks running.

Along came on “I Am Curious Blue”, no sex, the same types have been used, the same depiction of unrest and social this and that and the other thing, and what happened in about four or five weeks, it’s fallen flat on its face and I doubt very seriously whether it’s being shown in the other states in the county today.

Why, because it has no theme, it has no social redeeming value and it has no sex.

If it had the sex that “I Am Curious Yellow” had, it would also probably be seen by the same number of people if they continued to show it as they have in the past.

So it is now against me to the part of the argument of addressing myself to what is the state of the law on this whole question and I agree is confusing.

I agree that it’s very difficult to read the opinions in these cases, I have been trying to make a summary of what each of the justices in the last 15 years have done in the various cases and quite frankly, and I say it with some apology, there is really no complete consistency among the views of the justices and among some of the justices’ own views.

They say one thing one time, they say something else another time and they come back and they end up with a somewhat different view that they had even the second time.

And again, I say it with apology, but this is really the problem and I think the Court recognized the problem, I think the Court sees that it has to resolve the problem.

Now, throughout the country today, all of the courts are viewing the whole question of obscenity with the three-prong test as being the applicable test.

While I have read every case on this subject and I have yet to find where a majority of the court has agreed on the three-prong test, the majority of any court has agreed on the three-pronged test.

Mr. Justice Brennan introduced the three-prong test in Memoirs and came out with the socially utterly without social redeeming value.

But there hasn’t been majority of the court that has subscribed to this as the viable concept and the principle that shall be applied in decision such as this.

What is the test?

I think the answer is what Mr. Justice Harlan has suggested and which I believe has been generally adopted by the Chief Justice and Mr. Justice Blackmun and to somewhat lesser extent by Mr. Justice White and that is that we’ve got to let the state if they use a rational basis in making a determination, we have got to let the states determine what is obscene and whether there has been a violation of that particular statute.

This is the only way we’re going to make any sense out of it and it’s the only way we’re going to end up the clogging of the courts with these cases coming in day in and day out all over the United States whether we’re talking about federal courts or whether we’re talking about state courts, whether we’re talking at the lower level or whether we’re talking at the appellate level.

We have today the greatest backlog in cases in the criminal field throughout all of the courts of the United States and because of the inability of the court to come to some reasonable definition of what constitutes obscenity that the states have a right to control, because of that, we are causing all of these criminals or these ones that have been charged with being criminal to languish in jail waiting for these other cases to be heard and to be tried.

Quite frankly, I know that some will criticize me for what I’m about to say, but I would rather see the whole law abolished than to have this state of confusion continue.

I think it serves no good purpose.

I think however that the public has a right based upon the acts of the legislature to have some protection in the field of obscenity.

I think this Court has said that it has to.

In Roth, it said that obscenity is not entitled to the protection of the First Amendment.

I believe it is correct, I believe it will be a sad day if it is ever the view of this Court that obscenity can run rampant and nobody can do anything about it.

Francis B. Burch:

Now, let’s talk for a minute about the difference between censorship in books, obscenity in books and obscenities —

Have you got an enormous background of obscenity cases in Maryland in regards to this case?

Francis B. Burch:

I’m just saying that there are 144 cases dealing with “I Am Curious Yellow” throughout the United States right now.

This is by the brief of my brother here.

We have maybe three or four or five cases a year that may come up when you go to the courts which then have to go through the process of the Appellate Court then come up here to the Supreme Court.

Aside from anything else on the great constitutional questions dealing with other First Amendment rights for this Court, obscenity cases seem to me to have taken up a good part of this Court’s time.

I’d be hopeful that this Court might be able to come up with a definition and quite frankly Mr. Justice Harlan, I subscribe to your approach to the problem because I think it’s the reasonable one.

I think Mr. Chief Justice Warren — pardon me sir?

Hugo L. Black:

What definition would you suggest?

Francis B. Burch:

If it’s determined by a judicially — a state court that on a reasonable basis that the particular matter is obscene then on the sufficient evidence rule, that would be permitted to stand.

Hugo L. Black:

In other words, your definition would be if the Court thinks it’s obscene, it’s obscene?

Francis B. Burch:

If they — if it is — if after there is reasonable [Voice Overlap]

Hugo L. Black:

Is that a definition?

Francis B. Burch:

Pardon me?

Hugo L. Black:

Is that a definition?

Francis B. Burch:

If there has been a reasonable basis, there’s an evidence introduced as to the nature of the sexuality, as to the experts if you must have experts say that there is a predominantly prurient theme.

Hugo L. Black:

Who would be used as the experts?

Francis B. Burch:

Well, I’m sure wouldn’t use the experts that my brother has used in the “I Am Curious Yellow”.

We used them — we have people who are professors, who have studied in the arts —

Hugo L. Black:

Professors?

Francis B. Burch:

Yes.

At the —

Hugo L. Black:

Anyone else?

Francis B. Burch:

At John Hopkins University, psychologist.

Hugo L. Black:

Anyone else besides professors?

Francis B. Burch:

Pardon me sir?

Hugo L. Black:

Anyone else besides professors?

Francis B. Burch:

Psychologist.

Hugo L. Black:

Anyone else?

Francis B. Burch:

And I would like to see somebody who represents the community as distinguished from somebody who is a man of letters.

Hugo L. Black:

But it seems like you are getting that from the 540 million or whatever it is that’s been seeing the picture?[Laughter]

Francis B. Burch:

But there are about some 210 million that may well be upset by what has been done and I don’t say that every — of those — one of those 5.5 million attended that movie for sex and many other I’m sure walked in without the realization what it was, others I’m sure went out of curiosity and many of them who came out were disgusted and probably would never go back to see a picture like that again.

Hugo L. Black:

What if they —

Francis B. Burch:

I don’t —

Hugo L. Black:

If they wouldn’t, that’s a good way to stop it isn’t it?[Laughter]

Francis B. Burch:

If what?

Hugo L. Black:

If they wouldn’t go back to get disgusted, and they wouldn’t see it.

Francis B. Burch:

That maybe true but those people who walk in as that theater is a semi–

Hugo L. Black:

You don’t want them destroyed in the meantime?

Francis B. Burch:

Do what?

Hugo L. Black:

You don’t want them destroyed in the meantime?

Francis B. Burch:

I believe in everybody having their rights within reasonable bounds.

I believe that everybody should have the right to read what they want to read in their own and I agree 100% with Stanley.

But I do not agree that the public should have forced it upon it’s sensitivities that which somebody wants to see themselves in a public or semipublic place.

That’s why I think there’s a distinction.

Mr. Justice Black, may I say this with some respect sir.

I believe that even under your own principle that this film can be barred because you say that censorship is permissible where there is — or where it is brigaded with illegal action.

And I say that —

Hugo L. Black:

Well, I didn’t say that.

Francis B. Burch:

That concurring in Mr. Justice Douglas’ opinion?

Hugo L. Black:

I said — I said where you have conduct —

Francis B. Burch:

Conduct, yes sir.

Hugo L. Black:

— which can be regulated and that’s —

Francis B. Burch:

And I say this is conduct.

I’m sure there’s lots of conduct in this film?

Francis B. Burch:

Pardon me sir?

I didn’t hear you Mr. Justice Harlan.

No, never mind.

Hugo L. Black:

You don’t want him to see the (Inaudible) conduct.

Francis B. Burch:

This was the point I was about to address myself to.

Warren E. Burger:

I suggest in all seriousness Mr. Attorney General that what you’re objecting to is the filming of conduct which if it occurred in the public place would be arrested in everyone of the 50 states of the union?

Francis B. Burch:

Exactly that.

Warren E. Burger:

Without any problem.

Francis B. Burch:

That’s my question.

I’d like to answer it by posing the question.

Suppose we were in a —

Warren E. Burger:

And that it makes no difference then whether they see it in the living or whether they see it depicted on a film or in a mirror?

Francis B. Burch:

There’s no difference except maybe the body of it.

Hugo L. Black:

Makes no difference whether it’s a publication or a picture or whether the thing is being done, you would say then that the First Amendment means nothing, wouldn’t you?

Francis B. Burch:

I would say that if in a public place or a semipublic place there is obscene conduct, I see no distinction —

Hugo L. Black:

You haven’t defined obscene for us yet.

Francis B. Burch:

Well, copulation, homosexuality, lesbianism, I call that obscene.

If that’s not obscene, Mr. Justice Stewart says he can’t define pornography but he knows it when he sees it.

And I could tell you that he referred to the brief of the Solicitor General of the United States and the very acts we’re talking about in “I Am Curious Yellow” are the very acts which we’ve referred to in the brief of the Solicitor General in which the Justice Potter Stewart gave — made reference to when he said I know a pornography when I see it.

I know it when I see it and I don’t think any person knows it.

Those who want to close their eyes to it and say it doesn’t exist, no.

Those who want to sell their spot, no.

It doesn’t exist.

It’s not pornography.

It’s not obscene.

It’s just a freedom of expression or freedom of somebody to do what he wants to do when he wants to do it and society be damned.

But my point is let’s go into that theater where this movie is being shown.

Let’s have a couple sitting there copulating in the isle.

Are they going to be subject to prosecution for obscenity, for lewdness?

If they are, would their First Amendment rights be denied because they were in a place where there was a little privacy that didn’t have to go in there in the first place?

Hugo L. Black:

And has anybody yet in the United States suggested that the First Amendment would prohibit punishment for that?

Francis B. Burch:

Well, the counsel in the case who argued Memoirs has written a book and he made quite a bit to do about how he addressed this Court on the so called parade of horribles.

He said that he could see that members of this Court would not buy the possibility that these other things could happen so that what he did was he devised his argument to say that what applies to a book obviously doesn’t necessarily apply to a movie or apply to conduct.

It doesn’t apply to what you’ll show in your home on television, but we’ve given them an inch.

They haven’t taken a mile, they’ve taken the proverbial 20 leagues and this is what’s going to happen because if this Court says that this kind of stuff can’t be shown indiscriminately in the movies, I’m telling you that you’re going to have people that are going to be able to live acts of sexual intercourse down in the block in Baltimore City or down in Bourbon street in New Orleans, or in other places of like —

Hugo L. Black:

You mean that a case that held that people could publish what they want to that’s of interest to people would justify saying that the same amendment protects people from having sexual intercourse on the streets, sidewalks and in churches and in and around?[Laughter]

Francis B. Burch:

I say that I can see that as an logical extension of the argument, yes, I can see it.

Hugo L. Black:

And that’s when —

Francis B. Burch:

I would pray to God it would never come to pass.

But I could see that it would logically happen, it could logically.

Because basically, what is the difference between live conduct on the one hand and a portrayal of it with music and all of the other with a living color and what not on the other on the screen.

It maybe even far more sexually stimulating to see it with all of the adornments that you would have with the technical color and the music and as I said before, far more so than seeing somebody sitting at the park, engaging in some form of sexual activity.

Is it possible?

Yes, it’s possible.

This is what I’m saying that I see this is a logical extension.

I have seen with all apologies again to the Court, I have been at the bar for 27 years, I have seen the extension of doctrines who later along — today’s test is not tomorrows.

You don’t measure today against what happened yesterday or what happened a year ago.

You measure it against what happened yesterday.

That now becomes a new test.

Then you go over here and you got the new test and so on and so forth.

First thing you know, you’re diametrically at opposite poles.

This is what I say can and this is what I say might well happen.

Thurgood Marshall:

Mr. Attorney General, you say you want us to straighten this up and in the next breath you say you want to straighten this up at about 50 other things.

Can we just stick with this one point?

Francis B. Burch:

I’m not saying I want you to straighten anything else up other than this particular matter Mr. Justice Marshall.

Thurgood Marshall:

Just this one point and you’re suggesting I understand is that the court once — the state court once deciding it, but you haven’t mentioned what’s standards the state court would apply, that’s my point?

Francis B. Burch:

I would say like we have in the trial of criminal cases that if there is sufficient evidence as I believe former Chief Justice Warren and Mr. Justice Clark suggested that if there is sufficient evidence as I believe it’s the view of Mr. Justice Harlan and Mr. Chief Justice Burger and Mr. Justice Blackmun and might well be Mr. Justice White’s view that I think that if that is established at least, we put to rest unless there is clear air as long as there is a substantial basis — amount of evidence to support the finding that then the banning of the particular law might apply.

Thurgood Marshall:

But do you go so far as to say that what — you still have eight judges on the Court of Appeals, do you still have eight?

Francis B. Burch:

Seven.

Thurgood Marshall:

Seven now?

Francis B. Burch:

Seven and five sitting — generally only five sit there, they’re rotating.

Thurgood Marshall:

Well, it’s the five individual’s opinion that this is obscene.

You want more than that, don’t you?

Francis B. Burch:

Everything in life has got to be based upon somebody’s judgment evaluation.

Thurgood Marshall:

Yes.

Francis B. Burch:

Mr. de Grazia was making a great part that there we’re two justices — judges in New York against one but if I got that jury of 12 that held that this was obscene and that it offended temporary community standards and that it was without redeeming social value, all of these people found it was bad.

But two judges against one said it was all right and with all due respect again to this Court, this Court acts as the ultimate censor.

You’re putting yourself in the position of the community and I’ve heard other members of this Court criticize the fact that this is happening.

And I heard Mr. — I read Mr. Justice Brennan say unless don’t talk about super censors, but then I read other opinions that say that this is what this court is.

It’s a super censor and as long as you’re going to be a super censor, you’re going to end up by having yourself completely choked by the mass of cases that are going to continue to come before or unless you, if I may that I won’t use the expression, but you know that Confucius once said that unless you — unless you just suddenly realized that you’re going to throw everything to the winds and let it happen, this is what you’re faced with.

In the continual of — I’m sorry, I hope I tried to address myself to some of the problems that the Court is having.

Warren E. Burger:

I think your time is up. Attorney General.

Francis B. Burch:

Thank you very much.

Warren E. Burger:

Mr. de Grazia, you have one minute left if you wish to —

Edward De Grazia:

I have nothing to add Mr. Chief Justice.

Thank you.

Warren E. Burger:

Very well, the case is submitted.