Heller v. New York

PETITIONER:Heller
RESPONDENT:New York
LOCATION:Navajo Reservation

DOCKET NO.: 71-1043
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: New York Court of Appeals

CITATION: 413 US 483 (1973)
ARGUED: Nov 14, 1972
DECIDED: Jun 25, 1973

ADVOCATES:
Irving Anolik – for petitioner
Lewis R. Friedman – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – November 14, 1972 in Heller v. New York

Warren E. Burger:

We’ll hear arguments next in 71-1043, Heller against New York.

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

Irving Anolik:

Mr. Chief Justice and may it please the Court.

This case is somewhat similar to the prior case.

However, there are marked differences.

In this case, Your Honors, just to orient the Court briefly, on July 29, 1969, Inspector Smyth went to the Gerak Theater in Greenwich Village and saw a movie, which is the subject of the litigation before this Court, Blue Moon and apparently felt that it was obscene.

He then communicated with the Prosecutor’s Office and on July 31, 1969, together with Just– the Judge Arthur Goldberg, no relation to any judge in this Court, he returned to the theater and Judge Goldberg and Inspector Smyth saw the film again.

At that point, after the film was completed at July 31, Judge Goldberg forthwith signed a search and seizure order without a hearing of any sort whatsoever and also issued warrants for the arrests of Mr. Heller, the petitioner here, and two other employees of the theater.

As it turned out, of course, two of the three arrests should never have occurred because, before the beginning of trial my concession with the District Attorney, those two arrests were– those two individuals were dismissed in the case because they should never have been arrested.

The issue as to whether or not they should’ve been an adversary hearing is preserved in this record.

It is the position of the petitioner that in a First Amendment situation that we have here, the general rule appertaining to search and seizures cannot be followed, that an adversary hearing is essential to protect vital First and Fourteenth Amendment rights.

We have the seizure of a film.

William J. Brennan, Jr.:

I see.

You mean, an adversary hearing to determine obscenity del not.

Irving Anolik:

That’s right.

William J. Brennan, Jr.:

Not just probable cause.

Irving Anolik:

No, to determine obscenity del not.

That’s correct because, first of all, we do not have a clear and pleasant danger here as we might if a person possessed munitions or narcotics or something of that sort.

Indeed, we know from various cases and even from the history of this case before the New York Courts that there was sharp disagreement as to whether this film was even obscene and we do not, unlike our prior– unlike the prior case, we do not for a moment concede that this was obscene.

In fact, we don’t think it was and, indeed, in the intermediate Appellate Court, the Appellate term of the Supreme Court.

The decision was two-to-one with Justice Markowitz dissenting and, in the New York Court of Appeals, the Chief Judge and another judge dissented and held that– or said that the film was not obscene.

So, we have a real sharp issue as to obscenity, but I want to pass what I consider to be an even more paramount issue.

The problem that we face here is that once this film was seized and the printed–

William J. Brennan, Jr.:

Was it the only print?

Irving Anolik:

Yes, the only print and, indeed, that–

William J. Brennan, Jr.:

Is that clear too in the record?

Irving Anolik:

No, it does not.

It does not appear clearly in the record.

William J. Brennan, Jr.:

Then how will we assume it?

Irving Anolik:

Well, I can only say you asked a question and it has been told to me.

Irving Anolik:

The District Attorney has taken the liberty toward the end of his brief to go outside the record to tell you what his experience has been with respect to subpoenas, and I ask this Court to accept it or reject it however–

William J. Brennan, Jr.:

Like the picture in the previous cases, it’s also showing in Washington?

Irving Anolik:

I really don’t know.[Attempt to laughter]

However, let us assume, Justice Brennan, that arguendo it is the only print because if– I don’t want to go–

William J. Brennan, Jr.:

You don’t think that makes a difference?

Irving Anolik:

It makes a difference? No, I don’t think it makes a difference at all.

William J. Brennan, Jr.:

Well, the only print, what, in existence?

Irving Anolik:

Apparently, the only one in existence.

William J. Brennan, Jr.:

Isn’t– shouldn’t there be another question of whether there’s more than one print that might be available to this man?

Irving Anolik:

The– apparently, there was no other available to this man, but we have an overwriting problem.

William J. Brennan, Jr.:

Is that clear in the– is that clear in the record?

Irving Anolik:

It is not clear in the record, no.

It is not clear.

I’m asking the Court to assume arguendo, however, but that was a–

William J. Brennan, Jr.:

But you appreciate why we’re asking all those questions to call in both Quantity of Books and Marcus.

End–

Irving Anolik:

I know.

William J. Brennan, Jr.:

The end result there was to take everything out right of the circulation.

Irving Anolik:

I know that.

However, we maintain that the seizure of a film must be equated with the seizure of a mass Quantity of Books.

Byron R. White:

Why, if there’s another film available?

Irving Anolik:

Let us assume there’s another film available, Justice White, the deterrent effect of an immediate arrest for showing that other film casts a chilling effect and an impossible burden.

Byron R. White:

Marcus and Quantity didn’t hold that the man couldn’t be arrested right then.

Irving Anolik:

I realize that.

Byron R. White:

That issue has been on many times.

Irving Anolik:

I realize that, but by the same token–

Byron R. White:

Why is there any more of a chilling effect when in connection with movies?

Irving Anolik:

Well, because of the fact that movies can be shown to a large audience.

In other words, it is the size of the audience that must be the criterion and not the item.

The District Attorney, indeed, in his brief says, on page 35, that this Court should consider the seizure of a film and equate it to a seizure of one book, and we do not subscribe to that and, indeed, the United–

William J. Brennan, Jr.:

I guess you wouldn’t even have to argue it if we– the record show that, actually, this was the only print in existence, wouldn’t you?

Irving Anolik:

Unfortunately, that was never actually developed in the record.

I have not tried the case.

It was not actually developed in the record, Justice Brennan.

But, to say that another print of the film is available, I think, actually begs the issue here because it is the adversary proceeding that we are addressing ourselves to at this time, and we think that is a very important issue and we are leading aside to the time being whether or not it’s even obscene.

Warren E. Burger:

Well, if this were, in fact, the only copy of this film in existence that it would not be such a unique composition that it would’ve been made the subject of some inquiry at the trial?

Irving Anolik:

Perhaps it would, Mr. Chief Justice.

Warren E. Burger:

Are there very many films of which there is only one copy in this area?

Irving Anolik:

No, I would say that it’s quite unusual for a film to be produced where there’s only one print.

That’s quite unusual.

William J. Brennan, Jr.:

Is this the kind of film that’s–

Irving Anolik:

This is a low-budget–

William J. Brennan, Jr.:

I mean, does it run the ordinary booking procedures?

Irving Anolik:

As far as I know, it was shown in only one theater in New York.

This was not syndicated through a number of theaters.

It was only at the Gerak Theater that this was being shown.

Apparently, it was a low-budget picture.

The quality of the film is not even good.

I think that’s conceded in the record.

It was–

William J. Brennan, Jr.:

Is this as war hole?

Irving Anolik:

It’s a war hole film, but it’s not like some of those others which are being syndicated around town such as Heat and things of that sort.

This is a different type and this was apparently issued through a corporation of which he was one of the owners of the stock.

Warren E. Burger:

There wouldn’t be much profit in it if there were only copy, would there?

Irving Anolik:

There probably would not be, but let us–

Warren E. Burger:

There had to be.

Irving Anolik:

There may have been copies in the west coast.

That’s a possibility but, nonetheless, the seizure here amounted to what we consider to be a violation of the First Amendment.

Now, the problem that arises, of course, is that the film itself is seized and it’s true that the District Attorney argues that, well, a motion to suppress can be promptly made.

But, he casts the burden upon the defendant to make such a motion and says that were the burden otherwise, in other words, if an adversary hearing had to be held before you could seize a film, then a defendant could delay such an adversary hearing and delay justice, but you can turn that right around.

Irving Anolik:

The District Attorney asks this Court to assume that the District Attorney or other prosecutor would never delay such a proceeding.

That is not at all evident.

We’re not dealing with New York County alone.

We’re dealing with an overwriting consideration here.

There could be delay on the part of a prosecutor but, more important than that, when we deal with a First Amendment situation such as this where we have a theater with 299 seats, and this incidentally is a closed theater.

This is not a theater such as in a Rave or in the Roaden case where maybe you can see something from the road.

Mr. Heller who testified, who happens to be an attorney incidentally, testified that the– there was a sign in the lobby of the theater that the film was marked X, that no one under 17 would be admitted and, indeed, he said they, including him, enforced a rule that no one apparently under 18 was admitted.

There was no complaint received by any member of the public.

This was a situation where the police, apparently protecting some unknown and anonymous person, were arrogating to themselves the right of censorship over films, decided to look at the films and “well, we’re going to seize this film.”

That’s about the size of it, and we maintain that the problem of not holding the adversary hearing, in essence, means that the prosecutor can arrogate to himself the right to seize the film and to put the theater out of business because most theaters book films, let’s say, for three, four days a week or so.

It’s not that easy once the film is seized suddenly, as was– as happened here, to suddenly get another replacement film.

It’s quite difficult in fact.

The arrest of the personnel is quite a traumatic effect, as indeed two of the three arrests here should not even have occurred.

And, the net result is that not only do you have an economic loss to the owner of the film, but you have a tremendous economic loss to the movie house, the exhibit.

Now, let us consider the situation where a prosecutor, perhaps not as liberal as some, decides that a particular movie is offensive.

That prosecutor, if he follows the procedure here, can handpick a judge and, incidentally, there’s no– nothing in the record here one way or the other as to how Judge Goldberg was chosen to come down to Court.

So, we could– we have a right at least to speculate that maybe this judge was handpicked, brought down, and he issues this forthwith warrant.

Now, if Judge Markowitz, for example, who dissented in the Appellant term, had been used as the magistrate, there would not have been a seizure, there would not have been an arrest and, indeed, this case may not– might not have even been up here.

So, w have that dangerous situation in a First Amendment case whereby the District Attorney can decide, perhaps subject to a certain ethics of course, and we don’t maintain that all prosecutors necessarily have the ethics of the New York County District Attorney’s Office, but the fact remains that the magistrate came down there and forthwith issued this search and seizure order and arrest order.

William J. Brennan, Jr.:

Do you know whether that’s a standard procedure?

Irving Anolik:

Now, I understand that since this situation has occurred and in view of Death View Amusement Park, in the Second Circuit– an astro film is in the Second Circuit and, indeed, decisions in Sixth Circuit Courts of Appeal– I believe the procedure in New York County is that they do give out that sort of hearings now.

Apparently, it recognizes the serious question as to whether they should or should not.

This is the case which apparently will crystallize whether or not they should continue doing it, but I’m sure Mr. Friedman will be able to speak more authority as what the actual procedure is.

But, be that as it may, in the brief of the District Attorney, he says that Judge Goldberg and Inspector Smyth did not see or do not recall seeing signs that this was restricted to people over 17 years of age and that the film was marked X.

Mr. Heller testified under oath that that was in fact the case, and there’s nothing to contradict that in the record.

Merely, the fact they didn’t recall seeing it certainly is not contradiction.

The–

William H. Rehnquist:

Is that testimony in the record of Judge Goldberg and Inspector Smyth or is that just in the brief?

Irving Anolik:

No, that’s in the record.

William H. Rehnquist:

It’s in the record.

Irving Anolik:

Judge Goldberg testified and so did Inspector Smyth testify.

As a matter of fact, Justice Rehnquist, there was an attempt to cross-examine Judge Goldberg as to what criteria he used to determine what– why this was obscene and, indeed, perhaps to determine if he was even familiar with the standards laid down by this Court in Roth and in other cases because I don’t think we have a right to assume that lower Court judges necessarily are always conversant with the standards laid down by this Court.

In an adversary hearing, at least these matters could be called to the attention of these jurors to determine “are you, in fact, judging this seizure by the standards set down by the Supreme Court of the United States or is it some visceral reaction that you are motivated by?”

William H. Rehnquist:

Your concept of an adversary hearing, that would be where the counsel for the defendant would have a right to cross-examine the magistrate?

Irving Anolik:

At least to cross-examine the complainant be he a magistrate or for Inspector Smyth.

William H. Rehnquist:

I take it that Judge Goldberg here where it was not a complaint and he was basically in the position of someone who–

Irving Anolik:

He was the magistrate who issued the search warrant, that’s correct.

William H. Rehnquist:

And you’re saying that in your concept of an adversary hearing defense counsel would have a right to cross-examine someone sitting in Judge Goldberg’s position?

Irving Anolik:

No.

I would say that if the party at least who was in the role of the complainant.

The problem with this case, Justice Rehnquist, is that Judge Goldberg became a prosecution witness, so to speak, in this case saying that he determined that the film was obscene and, to that extent, having become a witness at the trial, counsel at least tried to determine what standards he had applied and they did not permit cross-examination as to that question.

I am not saying–

Potter Stewart:

Excuse me.

Irving Anolik:

Yes, Justice Stewart.

Potter Stewart:

Excuse me, I–

Irving Anolik:

I am not saying that necessarily, in all cases, I would say that where a detached impartial magistrate issues a search warrant that you have a right to cross-examine him as to why he did it.

If I interpret it saying that, I didn’t mean to imply that, Justice Rehnquist.

I am saying that at least the complainant, in this case, Inspector Smyth.

At least to that extent, cross-examination should be permitted and an opportunity to call to the attention of the magistrate the precedence and the holdings of this Court and, perhaps, the Courts of New York as to what the definition of community standards are, what the definition of obscenity is under the Roth testing of the test.

That, at least, should have been permitted and ought to be permitted in any First Amendment situation case.

That is our position, Justice Stewart.

Potter Stewart:

Is a copy of the search warrant in the appendix here?

I don’t seem to be able to find it.

Irving Anolik:

I thought it was reproduced.

Potter Stewart:

Well, perhaps it is.

Irving Anolik:

Your friend from the state seems to indicate that he doesn’t think it’s in there.

Potter Stewart:

What Judge Goldberg did find– he didn’t find that this movie was obscene.

As a matter of fact, what did he recite?

There was probable cause to believe that–

Irving Anolik:

It– if it were to follow the usual search warrant situation, it would say probable cause to believe that a search warrant should issue, and he applied a Fourth Amendment standard to a search and seizure situation.

Irving Anolik:

That is what would obtain here, and that is the situation which, no doubt, motivated Justice Goldberg.

We maintain that a Fourth Amendment standard may not be applied in First Amendment situations such as this.

William J. Brennan, Jr.:

Well, Mr. Anolik.

Irving Anolik:

Yes?

William J. Brennan, Jr.:

When you talk about adversary hearing, what do you concede this to be?

I gather, certainly one element has to be and there has to be a judicial determination that the film is or is not obscene.

Irving Anolik:

That is correct.

William J. Brennan, Jr.:

And, for that purpose, what kinds of proof would the city have to use and what kind of proofs and defense would you use?

Would this be a full-scale trial?

Irving Anolik:

It would certainly be a full-scale hearing.

They presumably have to–

William J. Brennan, Jr.:

I–

Irving Anolik:

Yes?

William J. Brennan, Jr.:

A full-scale trial?

Irving Anolik:

Yes.

William J. Brennan, Jr.:

When you’re talking about a determination going on.

I suppose, nothing short of that–

Irving Anolik:

That’s correct.

William J. Brennan, Jr.:

Would suffice, would it?

Irving Anolik:

I would say not.

William J. Brennan, Jr.:

Well, what does that mean?

That you could introduce all kinds of expert testimony?

Irving Anolik:

Yes.

William J. Brennan, Jr.:

Bearing on– the city would have to prove obscenity.

Is this a city or a–

Irving Anolik:

This is the State of New York, Your Honor.

William J. Brennan, Jr.:

State?

And, the state would have to–

Irving Anolik:

The County of New York.

William J. Brennan, Jr.:

The state would have the burden of proving obscenity in the first instance.

Irving Anolik:

That’s correct.

William J. Brennan, Jr.:

And by what, preponderance or–

Irving Anolik:

No, I would say that they would have to prove it by the standard appertainable to a criminal prosecution.

William J. Brennan, Jr.:

Beyond reasonable doubt?

Irving Anolik:

That’s right, beyond reasonable doubt.

I don’t think preponderance–

William J. Brennan, Jr.:

You mean, not because the object of seizing the film is to get evidence to support a criminal prosecution?

Irving Anolik:

Well, the object of seizing the film here is to, in effect, take the film away, out of the possession of the individual and, while it’s true that is evidence, we maintain they must proceed by subpoena and, of course, with the subpoena you can make a motion to quash a subpoena.

But, in a First Amendment situation, we would ask that nothing less than a full adversary hearing–

William J. Brennan, Jr.:

I understand that.

I’m interested why you suggest it has to be beyond a reasonable doubt.

Is it that it’s connected with a possible criminal prosecution or even if it isn’t, you’d still say that it had to be unreasonable?

Irving Anolik:

No.

If it’s an injunction, then I would say a fair preponderance of the credible evidence might be sufficient.

Warren E. Burger:

What you’re saying is that there must be a full-scale adversary criminal trial to determine whether there should be a full-scale adversary criminal trial.

Irving Anolik:

I would say that the standard that you would use–

Warren E. Burger:

Well, isn’t that what you’re arguing?

Irving Anolik:

In effect, I would say– although it seems to be rather logical to say that, I would say, in effect, that would have to be our position.

Warren E. Burger:

Well, there’s no escape from it, is there?

On your position, you want a trial to see whether there should be a trial.

Irving Anolik:

Well, I would say that perhaps we could use a different standard because, as I understand it, a standard as to, for example, a fair preponderance might be sufficient to see that at least some gross miscarriage of justice has not occurred.

Warren E. Burger:

But then you’re backing away from your ammos to Justice Brennan.

Irving Anolik:

I would be prepared, as I say, to at least reanalyze the standard of proof, in view of the way you set the question, Mr. Chief Justice.

I would be willing to do or at least concede–

Warren E. Burger:

Well, don’t let my questions mislead you.

I just want your answers.

Irving Anolik:

No, it is my position, as I say, that nothing less than a full adversary hearing where a proof beyond reasonable doubt is obtained should be had.

William J. Brennan, Jr.:

And yet, I take it, if the tryer applied beyond reasonable doubt standard and then they– and determined obscenity and then a criminal prosecution ensued, you’d still insist the state had over again, in the criminal trial, to prove obscenity beyond a reasonable doubt.

Irving Anolik:

Well, I would say that would, of course, would seem to be a situation where you’d have a jury trial perhaps on a different scale, because there you’d be trying–

William J. Brennan, Jr.:

But still, the st–

Irving Anolik:

An individual.

William J. Brennan, Jr.:

The standard for the decision of the jury would have to be obscenity beyond reasonable doubt.

Irving Anolik:

Yes, but the point is, in the one case, you’re judging the film itself.

In the other case, you’re judging whether he promoted in– obscenity.

It’s a little bit different standard there because it’s Section 235, the obscenity Section 235.05 that we have promoting obscenity.

So, it’s a little bit different standard that we’re dealing with.

Thurgood Marshall:

Mr. Anolik.

Irving Anolik:

Yes?

Thurgood Marshall:

Assuming that they follow this procedure and they seize the man who was showing the film who is the owner and he is also the operator, and you have this full adversary hearing and you lose there, and you have a second trial– you have the trial and you waive the jury.

Please tell me the difference between the first hearing and the second.

Irving Anolik:

The first hearing would determine what the film itself–

Thurgood Marshall:

I’m talking about what happens.

Irving Anolik:

What happens?

n the first hearing, there would be a determination of whether– as to whether the film itself is obscene under appropriate community standards.

Thurgood Marshall:

Well, in my case there’s no question the man showed it.

Irving Anolik:

That he showed the film?

No, doubt about that.

Thurgood Marshall:

Well, in the second case, what other evidence would you put in?

The fact that he shown–

That he showed the film?

Irving Anolik:

No, he– I think that we have–

Thurgood Marshall:

What else would you put in?

Irving Anolik:

No, I think you’d have to show that he had knowledge and intent.

Thurgood Marshall:

To do what?

Irving Anolik:

To show an obscene film.

In other words, we maintain that there is, at the basis of a criminal statute, at least that degree of due process which would require the state to establish that this man knowingly and willfully–

Thurgood Marshall:

The state shows that they went in the place and they found the man up in the place in the projection room running the camera and they also saw him picking up the money and there was nobody there but him.

Now, what else do you have to show?

Irving Anolik:

Well, the– I think you’d have to show some intent.

Thurgood Marshall:

How?

Irving Anolik:

Well, that for example, this man, in good faith, believes this was not an obscene film because it’s–

Thurgood Marshall:

Well, he’s already testified in the other hearing.

Irving Anolik:

He has testified, that’s right, but he was not the subject of the other hearing.

The subject of the other hearing was the film itself.

Thurgood Marshall:

He wasn’t?

Irving Anolik:

Well, we maintain that it was the film itself which is the criterion of the other hearing.

Thurgood Marshall:

Well, suppose in this– my hypothetical, they start this adversary hearing the day after the picture is shown, adversary hearing, and the other hypothetical is they start his trial on the merits the day after the hearing.

The difference being, what?

Irving Anolik:

The difference being that, in the one case–

Thurgood Marshall:

I mean practical business.

Irving Anolik:

The practical is that, in the one case, we’re testing out whether or not the film itself should’ve been seized, whether or not it’s in fact obscene.

Let us assume the Court then decides that contrary to the position of the defendant, that they hold that the film was obscene.

The issue then is did he promote– if he pleads not guilty, now, it may be that he was found in the projection room.

It may be that he was found taking money, but that would not automatically presume him guilty.

Having plead not guilty, he’d be entitled to a trial as to his own–

Thurgood Marshall:

Well, what we’re worried about, isn’t this just like some narcotics cases when you, as defense counsel, you lose the motion to suppress, you lose your case?

Irving Anolik:

No, I wouldn’t think so, because in narcotics cases there, again, has to be some element of criminal intent and knowledge because, frequently, a person who’s found in possession of heroin and there’s a chemical analysis.

There’s absolutely no doubt that the matter is heroin and that he was found with it and was sold to an agent.

That does not mean he’s not entitled to a trial in the merits.

Thurgood Marshall:

I said I’m going to practical.

I said, practical.

Irving Anolik:

As a practical effect, I’ll say this.

That I have seen cases, Justice Marshall, where there had been disagreements or acquittals of defendants notwithstanding the fact that, on a motion to suppress, they lost the case they were called.

Thurgood Marshall:

I wouldn’t push you a number.

Irving Anolik:

No, there aren’t too many of those.

I’d have to agree.

There aren’t too many of those because you are taking the narcotics here, but why don’t we take some other situation where we’re not dealing with anything as dramatic as narcotics, where we’re dealing with something, perhaps the possession of an unloaded gun or the possession, for example, of the material–

Thurgood Marshall:

All of those that I– I limited mine to that because I don’t think the others apply.

I still– I’m unconvinced of the difference between these two when you ins– I only limited my questions that you insist that there’d be beyond reasonable doubt.

Irving Anolik:

Well, Your Honor, as I said, I– if you noted, I was willing to backtrack a little bit on that aspect.

Irving Anolik:

I would say that I perhaps should adopt the standard of a fair preponderance for that purpose, and insist upon beyond reasonable doubt for the purpose of trial.

As I say, upon analysis, Justice Marshall, and if you would give me an opportunity perhaps to amend my rather adamant position previously, that perhaps upon reflection a preponderance test should be used in the initial hearing and reasonable doubt in the trial proper.

That would be perhaps a more reasonable situation.

What– an adversary hearing, however, of some sort must, of necessity, be held, we maintain, to protect a First Amendment right.

Potter Stewart:

Mr. Anolik.

Irving Anolik:

Yes, Justice Stewart?

Potter Stewart:

How do you visualize this adversary hearing? The movie would have to be there, wouldn’t it?

Irving Anolik:

The movie would have to be there, but the point is this.

It should not be in– with the possession of the District Attorney because assuming– let’s say that we won the suppression hearing.

They said it should not have been seized.

Under New York law, the District Attorney could appeal that and retains possession of the property until it goes through the Appellate process.

He is not required to return that film because that’s true in all search and seizure cases.

The District Attorney can appeal forthwith if he says he cannot proceed with the case and, therefore, he retains possession of that until it goes through the full Appellate process.

We do not have a concomitant right of appeal if the suppression is not granted because we would have to either, plead guilty and then appeal, or else we have to go through a full trial and then appeal for the judgment of conviction before we could appeal that question.

Potter Stewart:

Well, that brings me back to my question.

How do you visualize that the final adversary hearing will work?

Irving Anolik:

It would work by–

Potter Stewart:

Would there be a subpoena first to–

Irving Anolik:

Yes, a subpoena and we maintain the subpoena is perfectly alright because there’s a contempt power behind it.

Potter Stewart:

A subpoena duces tecum.

Irving Anolik:

That’s correct, for the film.

Potter Stewart:

To the theater owner–

Irving Anolik:

That’s right.

Potter Stewart:

To produce the film and that immediately would take the film away–

Irving Anolik:

Just–

Potter Stewart:

From the projection booth and deprive all these people of their First Amendment rights to see it.

Irving Anolik:

But just for one day, not for weeks or months or years, just for one day, just for the purpose of showing it.

Potter Stewart:

You’re suggesting that–

Irving Anolik:

And then it’s immediately returned.

Potter Stewart:

You’re suggesting that the subpoena has to be– that the hearing has to be within a matter of hours after the subpoena?

Irving Anolik:

I’d say that they would have to schedule a showing.

On the subpoena, you are to bring the subpoena on the– at 10 a.m. on Monday, whenever it might be, for the purpose of showing it to the Court.

They bring it there at that time, they show it to the Court, and they take it right back to the theater.

Warren E. Burger:

Then, when you come to the later trial, how is the state going to meet its burden of proof of showing that the film brought in at the trial is the same film they had–

Irving Anolik:

But, that’s true–

Warren E. Burger:

At the preliminary?

Irving Anolik:

Well, Mr. Chief Justice, that’s true of any situation where you have subpoenaed records.

As I understand, a subpoena does not entitle–

Warren E. Burger:

You can make copies.

You can do a lot of things.

Irving Anolik:

Well– but, it’s not that easy.

It has to be taken to particular labs.

Exhibitors don’t have the facilities to do that and, also, why should we imply bad faith on the part of any citizen without proof of that?

I mean, why is it that the District Attorney can do no wrong?

The District Attorney might doctor that film, for all we know, if he has it in his position.

Why should we assume that he wouldn’t do that?I mean, if this is custodia legis in the hands of an individual, it’s his property.

Why should he be deprived of it and why should we–

Potter Stewart:

I suppose there could be ancillary restraints on its return against tampering with it and so forth, which would–

Irving Anolik:

Absolutely.

Potter Stewart:

Which would subject the exhibitor to contempt if it–

Irving Anolik:

Not only contempt, perhaps forgery prosecution of offering a forged document.

I mean, I think there are a lot of inhibitions that can be done.

Now, Sixth Circuit Courts of Appeal have held that adversary hearing should be held.

Potter Stewart:

Just– I wasn’t– I’m not finished with my questions.

Your idea– your submission is that there’d be a subpoena and that the constitution requires that the hearing be very, very prompt after–

Irving Anolik:

That’s correct.

Potter Stewart:

The theater owner shows up in response to this subpoena duces tecum.

Irving Anolik:

Right.

Potter Stewart:

And then, let’s assume that the magistrate, after the adversary hearing, finds that this probably is or that the prosecution has sustained its burden of proving by a preponderance of the evidence that this is obscene, and then what happens?

Does he–

Irving Anolik:

What happens is then, it’s true.

He’s going to be the problem of his film.

He’s going to be the problem of his film–

Potter Stewart:

Is he?

Wouldn’t you–

Irving Anolik:

Pardon me?

Potter Stewart:

I thought that you would say that the constitution requires that, nonetheless, the film be returned to the theater until or unless there’s been a criminal conviction.

Irving Anolik:

I’m sorry.

Did you say before the criminal conviction?

I misunderstood your question.

Potter Stewart:

We’re talking about this–

Irving Anolik:

The hearing–

Potter Stewart:

Adversary hearing that you say the constitution requires.

I’m trying to find out what it is in your hard work.

Irving Anolik:

And if it’s only the adversary hearing, they would have to wait for a conviction on the merits, we would maintain.

Potter Stewart:

So that–

Irving Anolik:

Before that was done.

Potter Stewart:

So that, although there’s a finding by the magistrate that the preponderance of the evidence shows that this is an obscene film.

Irving Anolik:

Right.

Potter Stewart:

Then, you say that, after such a finding, the constitution requires that the film be returned to the theater.

Irving Anolik:

Your Honor, we would have to say, to take a constant position, that until there’s a finding of guilt by a Court that the film, it being a First Amendment property right we’re dealing with–

Potter Stewart:

Yes.

Irving Anolik:

Should not be seized at all.

Potter Stewart:

That’s what I thought.

Irving Anolik:

We don’t think that present situation requires that to be seized.

Potter Stewart:

Well, you see, because all these cases in these briefs talk about an adversary hearing and I have a very great deal of trouble visualizing what–

Irving Anolik:

It would be an adversary hearing and we–

Potter Stewart:

What the counsel had in mind.

Irving Anolik:

We would use a standard of a fair preponderance.

Potter Stewart:

Alright and–there’s a finding that by a fair preponderance of the evidence the film is obscene, then you say the constitution then requires the film to be returned to the theater?

Irving Anolik:

That’s correct.

Potter Stewart:

Immediately or very promptly.

Irving Anolik:

As promptly as possible.

Potter Stewart:

And then the case comes to trial, then what happens?

Irving Anolik:

Again, through subpoena, it is displayed to the Court, and until there’s a finding of guilty, it should not be seized.

Potter Stewart:

Well, it’s subpoenaed and then displayed to the finder of the fact, the jury or the trial judge.

Irving Anolik:

That’s correct.

Potter Stewart:

And then it’s– and then, assuming it’s a criminal trial, then the man may be punished but the film never does gets seized, does it?

Irving Anolik:

Well, eventually, if it’s deemed to be obscene after a trial on the merits beyond a reasonable doubt, then I presume they could seize it because it would technically be contraband at that point.

Lewis F. Powell, Jr.:

Mr. Anolik.

Irving Anolik:

Yes?

Lewis F. Powell, Jr.:

Suppose it were feasible for a copy of the film to be reproduced promptly, say, by an independent lab. Under circumstances, it would assure that there was no tampering with the film and that your client, therefore, could have the original back in 24 hours.

Would that satisfy your First Amendment position?

Irving Anolik:

I would say so.

I think for– like a video tape or something of the films?

Lewis F. Powell, Jr.:

Yes.

Irving Anolik:

That might be– that would probably satisfy it.

Lewis F. Powell, Jr.:

This would avoid having the duplicate trials.

Irving Anolik:

That’s correct.

Thank you very much.

Warren E. Burger:

Mr. Friedman.

Lewis R. Friedman:

Mr. Chief Justice and may it please the Court.

The state has, as this Court has held many times, a valid important interest in the prosecution of obscenity and the enforcement of the obscenity laws and that is a state interest which may be vindicated in any number of ways.

The state has a number of alternatives opened to it, and the Court has also held that if there is an important governmental interest which might incidentally limit protected speech that the Court must weigh the interest of the state on one hand and the procedures used so that the incidental effects can be minimized and that it is this tight of balance that must be decided in any given situation.

And, what have we here?

We have here a situation where the state has chosen to use its penal statutes, its penal provisions which impose a penalty for the prior showing of the film.

That is, they do not aim at the future showing but only at the showing that occurred at some point in the past at some act the defendant has already performed and, in the course of enforcing this valid state interest of imposing a penalty for the past showing, the state of necessity must have evidence.

And, in order to obtain evidence, there are two choices at this stage.

The state, in a case of a film, must have testi– can have testimony of someone who has seen the film that testifies to its contents, or can have the film.

Now, if a person who has seen the film tries to testify, the problems of proof are, in many cases, overwhelming.

Lewis R. Friedman:

And I believe, as the summary of evidence which we have given in our brief indicates, any testimony concerning Blue Movie would have been very hard to discern by the tryer of fact.

It is a type of movie which can be seen in its entirety, as it– sorry, which must be seen in its entirety as the only way to ascertain what this movie is.

The description is very difficult to do and, I say, even counsel, with great deal of leisure, have had difficulty attempting to summarize it in any useful form.

Now, given this problem, why should the state be relegated to less than the best available probative evidence of a crime?

Why must the state rely on secondary evidence which is really, in a case of this sort, worthless?

Because, in this case, I would submit that a finder of fact would have had almost impossible task in figuring out what Blue Movie is about.

Now, they say the state has chosen the penal sanction, and I mention that because that distinguishes, in large part, many of the prior cases in this Court where states have tried a civil injunctive remedy.

That is where the state has attempted to prevent future showing.

What we are doing here is enforcing a right against past showings.

Now, it is true–

Byron R. White:

Why do you need to take the film out of circulation?

Lewis R. Friedman:

Your Honor, we– the film didn’t have to be withdrawn from circulation in order to prosecute it.

Byron R. White:

You seized it, didn’t you?

Lewis R. Friedman:

We did seize the film and, in partial answer of a question Mr. Justice Marshall had asked before, the film was currently in this Court’s custody actually.

It was delivered to the Court by the District Attorney.

We still have the film, but–

Byron R. White:

Was– Wouldn’t it have been enough for your purposes to subpoena it for the trial?

Lewis R. Friedman:

Well, Your Honor, the subpoena route is not as simple, I submit, as has been suggested by my adversary.

The subpoena route has raised many serious Fifth Amendment problems where the perspective defendant is subpoenaed to produce a document in his possession which is incriminating.

And, as a practical matter, we have been subjected to collateral proceedings every time we ever tried the subpoena route.

Byron R. White:

At the time of the trial, the film would finish its showing and they’d be out of jurisdiction anyways.

Lewis R. Friedman:

That’s correct, and I think the contemptor’s power is not a very effective one for this reason. As has been mentioned several times here, the films are on a schedule of circulation and if the current distributor–

Byron R. White:

But if there were–

Lewis R. Friedman:

Has a contract right which limits his right to possession to a very limited period of time, he may well have a defense to any contempt proceeding.

William J. Brennan, Jr.:

Ordinarily, does he get more than one print?

Lewis R. Friedman:

The individual distributer, generally, would have one print, although–

William J. Brennan, Jr.:

Is that the sort of distribution method this film was subject to?

Lewis R. Friedman:

Well, Your Honor, I presume that each person who had this film had one print in his possession.

The record doesn’t tell us, but that more than one print exists, I think, is just facing the facts of–

William J. Brennan, Jr.:

Well, I know, but that–

Lewis R. Friedman:

Commercial distribution.

William J. Brennan, Jr.:

That doesn’t mean much if there’s not a second print available to this exhibitor, does it?

Lewis R. Friedman:

We don’t know whether there’s a second print available to this exhibitor.

We don’t know what the terms of his distribution agreement were.

He never put any of this in the record, Your Honor.

If the– if he was going to lie on that claim, then the record is–

Byron R. White:

Let’s assume that there were two copies readily available to him and you could have one of them but he could go on showing the other.

If all you want is evidence, just having one copy but letting the other one show would satisfy your need, wouldn’t it?

Lewis R. Friedman:

Yes, it certainly would, Your Honor.

There are a number of situations where films have shown in several theaters even within the city and we have seized one print for evidence, but the problem is this, and it’s a very practical problem.

The seizure of that first print will effectively tell any defendant who is represented by competent counsel that perhaps he ought not to show the film in the future.

Byron R. White:

Well, that–

Lewis R. Friedman:

But not because we are preventing it, but because practicality of law enforcement is that the penal sanction, having been invoked as to one showing, the man runs a risk of subsequent prosecution.

Byron R. White:

Well, isn’t that–

Lewis R. Friedman:

Where they’re not subsequent seizure.

Byron R. White:

What’s the significance of that?

Lewis R. Friedman:

Well, the point is, Your Honor, that the mere fact that the film is not shown again even if he had a second print available would not necessarily be because the state would seize it, but because the man might be well-advised not to show it.

Byron R. White:

Yes, but that’s a little different situation than when you effectively preclude him from showing the film.

Warren E. Burger:

Each exhibition is a new crime, is it not?

Byron R. White:

That’s correct, Your Honor.

I do not recall, offhand, the situation where we have actually prosecuted multiple counts for every repeated showing, but I can bring to this Court’s attention a case which is currently pending in the Courts of New York County in which we have started a prosecution and this prosecution was started by the same route as was used here, the issuance of a search warrant on August 17, 1972.

On August 18, the judge who awarded the seizure directed the film to be returned to the distributor.

That film was at the hand of the distributor.

It has never been produced in Court to this date.

It was on the calendar for yesterday.

It was not produced yesterday.

The distributor is showing it.

Since the time of the seizure, I believe published reports have shown that about $400,000 in gross has been taken-in in this picture.

It’s a film showing in several theaters in New York.

The prospect of the defendant being charged with multiple counts has maybe not dissuaded him, although the statute of limitations has not yet run in that case.

Byron R. White:

Why did they tell you that until you decide obscenity, you’re not supposed to take steps to preclude circulation of it?

Lewis R. Friedman:

But, Your Honor, the problem is this, and that’s why I refer to this case involving a film called Deep Throat which, I believe, is referred to in one of the briefs for amicus curiae in this matter, a motion in brief which has not yet been accepted by the Court.

In that case, the defendant has no incentive in conducting a hearing.

There is no interest on this defendant’s part.

Warren E. Burger:

Well, isn’t there a solution?

Lewis R. Friedman:

They have this case come to a hearing.

Warren E. Burger:

Isn’t there a solution to go to trial?

Lewis R. Friedman:

Our– we have made every effort, Your Honor.

This matter has been on the calendar on six occasions by my count and, yet, we cannot force the case to a hearing, but why? Because the exhibitor who is commercially exploiting the film will not, in any way, cooperate with prosecution, and I think that some of the suggestions made by my adversary are perhaps suggestions of fantasy because there is not cooperation.

There is a reported case in the official reports which we cite in our brief in which an adversary hearing was attempted in New York County.

That was our last attempt.

That also went on for six weeks.

William J. Brennan, Jr.:

I thought Mr. Anolik suggested to us earlier that because of some decisions of the Second Circuit you are actually providing an adversary hearing.

Is that so?

Lewis R. Friedman:

Your Honor, we have been held.

William J. Brennan, Jr.:

How many?

Lewis R. Friedman:

To my recollection, there had been three.

William J. Brennan, Jr.:

What form did they take?

Lewis R. Friedman:

Well, the first one was in 1970.

It went on through the summer.

We served the defendant a notice of an adversary hearing to be held the next day.

The upshot of that–

William J. Brennan, Jr.:

What was this–

Lewis R. Friedman:

Six weeks later–

William J. Brennan, Jr.:

Before whom, a magistrate?

Lewis R. Friedman:

Before a magistrate.

William J. Brennan, Jr.:

Yes.

Lewis R. Friedman:

Six weeks later, there were three days of testimony given by defense experts.

Two weeks after that, the judge handed down an opinion.

Six weeks after that, there was a motion for re-argument on the question of the prior adversary hearing.

Lewis R. Friedman:

Our experience in that case led us to litigate this case.

William J. Brennan, Jr.:

Well, I understand you saying there’d been two other instances?

Lewis R. Friedman:

Yes, Your Honor.

William J. Brennan, Jr.:

Are they different or are they the same?

Lewis R. Friedman:

One terminated in an Article 78–

William J. Brennan, Jr.:

Well, what kind of case–

Lewis R. Friedman:

— It would never go to a full hearing.

William J. Brennan, Jr.:

What time of case– or what kind of case did the state put in, in this first case?

Lewis R. Friedman:

The film.

William J. Brennan, Jr.:

Nothing but the film?

Lewis R. Friedman:

Nothing but the film.

William J. Brennan, Jr.:

And then rested?

Lewis R. Friedman:

And then rested.

William J. Brennan, Jr.:

And then the defense put on expert testimony, is that it?

Lewis R. Friedman:

That’s correct.

In the third case, I refer to as Deep Throat which has not yet come to a hearing, we have tried.

Indeed, it is this problem that faces us in the Second Circuit which has– which prompted our office to, in response to the certiorari petition, to suggest the Court hear this case.

Warren E. Burger:

Well, if there’s a due process right as to–

Lewis R. Friedman:

Because there is a problem in New York–

Warren E. Burger:

Mr. Friedman, is there’s a due process right to some kind of a hearing, adversary or otherwise, do you suggest that that right can yield to the fact that some judges in New York don’t get on with the trial of their cases?

Lewis R. Friedman:

No, Your Honor, our proposition is this.

That the state stands ready to give the man an adversary hearing immediately, forthwith, on the seizure.

At the time of the seizure, the man is brought before a magistrate.

If he wants a hearing, he can have a hearing because the state’s whole case is available.

That is, the film is before the Court.

Potter Stewart:

Well, it may–

Byron R. White:

I thought you have the hearing.

Lewis R. Friedman:

Because I–

Byron R. White:

The judge wanted to get to it and hold it, is that it?

Lewis R. Friedman:

Well, no, Your Honor.

Lewis R. Friedman:

I think Justice Harlan, in his dissent in Quantity of Books from market, 11 days was a reasonable time for a defendant to request to prepare a defense.

William J. Brennan, Jr.:

Well, I guess, he’s entitled to some time.

Lewis R. Friedman:

He’s entitled to time and the question of how much time.

He’s entitled to counsel, to declaration–

William J. Brennan, Jr.:

That’s for your state judges, isn’t it, not for the rest to decide?

Lewis R. Friedman:

Your Honor, if the First Amendment mandates an adversary hearing, then I submit that what we have is the Sixth Amendment mandating a delayed adversary hearing–

William J. Brennan, Jr.:

What about that procedure– is it still obtained in New York when we have in king–

Lewis R. Friedman:

Kingsley Books.

William J. Brennan, Jr.:

Kingsley Books?

Lewis R. Friedman:

Yes, Your Honor, that’s now–

William J. Brennan, Jr.:

Didn’t that require a hearing within a day or something and a decision within two days?

Lewis R. Friedman:

That procedure was not applicable to films in the first instance.

William J. Brennan, Jr.:

Yes, I know, but is that still–

Lewis R. Friedman:

It is now.

William J. Brennan, Jr.:

Is it now?

Lewis R. Friedman:

It has been amended to be applicable to films.

To my knowledge, no proceeding under that section has been–

William J. Brennan, Jr.:

As I recall, that one– doesn’t that– that requires a hearing within what, one day or something?

Lewis R. Friedman:

Yes, Your Honor, and as the cases of this Court have indicated, those hearings also go on for months, that, although the hearings are required, the defendants request time and, in Kingsley Books, they consented to the injunction pendently to provide time to prepare.

But, our experience with obscenity, defendants has not been that of–

William J. Brennan, Jr.:

No, but I take it if they–

Lewis R. Friedman:

Of a consent to delay.

William J. Brennan, Jr.:

If they ask for more time and the Court grants it, that’s too bad to the state but that’s hitting it.

Byron R. White:

The film– isn’t the film– aren’t films subject to a different approach, in any event, to licensing?

Lewis R. Friedman:

Not in New York.

Byron R. White:

In advance?

Lewis R. Friedman:

Not in New York currently.

Byron R. White:

Well, I know, but constitutionally it could be–

Lewis R. Friedman:

I believe the Court has said yes, although I believe the current state of the law has been to– they’ve been repealed in, I believe, every state though I won’t– I’m not sure.

They had–

Byron R. White:

Well, certainly not under the–

Lewis R. Friedman:

As a result of this Courts’ decisions which have cut down the proceeding–

Byron R. White:

I know, but we never said in Freedman that there couldn’t be such a support.

Lewis R. Friedman:

No, Your Honor, but in Freedman the Court said that a temporary removal of a film from exhibition for a limited period, pending rapid state proceedings, was permissible.

Byron R. White:

But, why isn’t that– why doesn’t that still obtain?

Lewis R. Friedman:

Well–

Byron R. White:

Even in censorship cases.

Lewis R. Friedman:

In a case of this type, and that’s what I see here, is that this man has shown the film in the past.

He has not been prevented in showing it in the first instance, as in the censorship case.

He has shown the film for several days.

Byron R. White:

I know, but if any– but if you think the other approach is preventing from showing in advance, then there is some pressure on him to get on with the hearing, and then the state starts dragging his feet.

Lewis R. Friedman:

That’s correct, Your Honor, except that in these instances, and that all we can speak of is the experience.

And, I think that the experience has indicated that the state is ready to cooperate and conduct a hearing, but to follow out the analogy on the censure case, in a censorship situation, a limited period of delay, however short the cases may differ, but a limited period is permissible.

That is all that the state is really seeking here.

William J. Brennan, Jr.:

Is there some reason–

Lewis R. Friedman:

And, prior to a judicial hearing–

William J. Brennan, Jr.:

Is there some reason, Mr. Friedman, now that you’ve amended that Kingsberg– was it Kings–

Lewis R. Friedman:

Kingsley Books.

William J. Brennan, Jr.:

Kingsley Books statute, is there any reason you don’t resort to that instead of this type of proceeding?

Lewis R. Friedman:

The first answer, Your Honor, is that the statute– the amendment, I believe, became effective in August of 1972.

William J. Brennan, Jr.:

Well, that’s a good reason.

Lewis R. Friedman:

Secondly, it’s a– I have been told that the effectiveness of the Kingsley Books statute is somewhat limited because it’s a– in a book situation.

William J. Brennan, Jr.:

It’s an injunction proceeding.

Lewis R. Friedman:

It had been a very cumbersome procedure to serve and hold in advance.

William J. Brennan, Jr.:

It’s an injunction procedure, isn’t it?

Lewis R. Friedman:

It’s a purely civil injunction procedure which is now contained in the Civil Practice Act.

It’s not in civil practice law of the rules.

It’s no longer part of the criminal procedure statutes in New York, but in a situation here, we are only asking of a seizure for a limited period, a very limited period, until it can be a hearing.

We want a speedy hearing because there is no reason for these cases to remain in the Court structure at all if the def– if the film is seized inadvertently, and really that’s what we’re talking about.

We’re really just talking about the possible effect on the First Amendment if a film is improperly seized in the first instance.

Lewis R. Friedman:

Those films should be returned to circulation forthwith, but if a film is properly seized, after hearing, a state may hold it.

I mean, even under a Quantity of Books after a full adversary hearing or, say in case of this sort, after a trial, the state may validly maintain custody of the film.

Indeed, an injunction could issue after the trial.

William J. Brennan, Jr.:

I take it on the ground that if there’s a determination of obscenity that takes it outside the First Amendment.

Lewis R. Friedman:

That’s correct.

William J. Brennan, Jr.:

Therefore, it could be treated as without or–

Lewis R. Friedman:

Contraband or–

William J. Brennan, Jr.:

Well, whether it’s contraband, in any event–

Lewis R. Friedman:

Or a nuisance or one, whatever the appropriate rupert might be under the particular jurisdiction but, the point is, here–

Thurgood Marshall:

Is there anything that prevents you from going down at the District Attorney from going from judge to judge, through about 30 judges until he finds one that agrees with him?

Is there anything to stop that?

Lewis R. Friedman:

Your Honor, there is nothing to stop, but there is nothing to stop it in any search warrant case.

In any case in which a Court has multiple judges who have concurrent jurisdiction, there is nothing to prevent judge-shopping for the purposes of trial.

Somehow or rather, a judge must be selected.

Now, as a practical matter, the only thing I understand New York law would require is that if there were multiple applications for a search warrant, you must indicate to the magistrate you apply to the history of the prior applications.

It is– the magistrate must know that you’ve gone to someone before.

Thurgood Marshall:

But you–

Lewis R. Friedman:

But the real problem is getting a magistrate willing to hear it.

Thurgood Marshall:

But you justified this on the fact that, I think I heard you correctly, that if it’s found out that it was obscene then that makes everything alright.

Lewis R. Friedman:

I wouldn’t justify judge-shopping.

Thurgood Marshall:

No, but I mean–

Lewis R. Friedman:

Except as a–

Thurgood Marshall:

But, I thought you shared– what prompted my question was that once the hearing does determine that the picture is obscene, however it was seized and under whatever conditions, it’s nothing at all.

Lewis R. Friedman:

Well, to the extent that–

Thurgood Marshall:

Which is not my idea of search and seizure.

Lewis R. Friedman:

No, the questions is what’s before the magistrate on a question of search and seizure and, in New York, that magistrate has seen the film–

Thurgood Marshall:

Well, the fact–

Lewis R. Friedman:

Which is the whole– all the evidence that there really is, from the prosecution’s point of view, what the–

Thurgood Marshall:

For a minute, on search and seizure, if you make an illegal search and you find a million pounds of the purest of heroin in the world.

The fact that it’s pure heroin doesn’t protect it, does it?

Lewis R. Friedman:

Not at all, Your Honor.

Thurgood Marshall:

Isn’t that– do you want to make that true here too?

Lewis R. Friedman:

Your Honor, we’re not trying to vindicate a search by what–

Thurgood Marshall:

But you’re vindicating the seizure of property which allegedly is under First Amendment protection.

Lewis R. Friedman:

Well–

Thurgood Marshall:

Allegedly.

Lewis R. Friedman:

Allegedly, Your Honor, but what we have in this case, and I think you’ve realistically thrown all of these cases, we have had a search and seizure where a magistrate has seen the evidence and has found eh film to be obscene.

Now, there’s some question as to what you found and I just would quote from the judge who issued the warrant, and this appears in the record.

“I had seen the film and it was and is my opinion that that film is obscene and was obscene as I saw it then under the definition of obscene, Section 235.00, the Penal law.”

Now, the judge–

Thurgood Marshall:

That’s obscene under the state law of New York.

Lewis R. Friedman:

Under the state law of New York, Your Honor, and I think as we set forth the state statute at the outset of our brief, I think the Court will see that that is as close a paraphrase as the legislative draftsman was capable of doing of the three-fold test this Court has announced in its five decisions on obscenity.

If the state statute is–

Thurgood Marshall:

My sound instead to give a proof of what you’re in.

Lewis R. Friedman:

No, Your Honor, I think that that question is one which can be seen from the statute itself, that the state has codified the sound in this question–

Thurgood Marshall:

Why can’t we have this hearing, other than the fact that it takes time?

Lewis R. Friedman:

Why not hold the hearing, Your Honor?

Thurgood Marshall:

Yes, other than the fact that it takes time.

Lewis R. Friedman:

After a magistrate has seen the film, we run a substantial risk, and has been mentioned several times today, of alteration of a film, we run the risk of film disappearing because of will, and these are not imaginary.

I think there is some concrete examples referred to in our brief where it has occurred, and the remedies of contempt are not practical.

If the film itself is gone and the original version is not available for comparison, the hearing process itself will have to be held sooner or later.

The state–

Thurgood Marshall:

Well, why go through any hearing?

Why don’t you just go and seize it?

They did go through the trouble of getting the magistrate.

Lewis R. Friedman:

That’s correct, Your Honor.

Thurgood Marshall:

Well, if all you say is true, why’d you worry about getting the magistrate?

Lewis R. Friedman:

Your Honor, because the Fourth Amendment requires that there’d be a neutral and detached magistrate who ascertains that there is grounds for seizure and this Court has suggested in Marcus that the First Amendment does run into that.

Thurgood Marshall:

And then you can–

Lewis R. Friedman:

We might suggest that the magistrate must have, as close to firsthand, knowledge of the material to be seized as is possible in order for him, in his judicial role, to make that decision.

Lewis R. Friedman:

That’s why the magistrate is required in this seizure as in any other.

Thurgood Marshall:

And this man has been without this film for how long now?

Lewis R. Friedman:

This stage, three years.

Thurgood Marshall:

Huh?

Lewis R. Friedman:

Three years and four months to this date.

Thurgood Marshall:

And that doesn’t give any problem?

Lewis R. Friedman:

Your Honor, there has been a final adjudication beyond a reasonable doubt that this film was obscene and, given that final adjudication and in 48 days after the seizure, the state may validly seize and hold that film.

It is not protected once–

Thurgood Marshall:

Forever?

Lewis R. Friedman:

That’s right.

Thurgood Marshall:

Forever?

Lewis R. Friedman:

I would see no reason why not.

The–

Thurgood Marshall:

Would that apply to a book?

Lewis R. Friedman:

The single copy of the book that is seized, certainly.

Thurgood Marshall:

It would apply to a book?

Lewis R. Friedman:

Your Honor–

Thurgood Marshall:

Even if it was the only book?

Lewis R. Friedman:

If it’s the only book–

Thurgood Marshall:

If it was the only copy?

Lewis R. Friedman:

That’s correct, Your Honor, and–

Thurgood Marshall:

It could be seized–

Lewis R. Friedman:

A final adjudication of obscenity has been made.

Thurgood Marshall:

Then it could be kept forever?

Lewis R. Friedman:

That’s correct.

Thurgood Marshall:

Or, as a matter of fact, destroyed?

Lewis R. Friedman:

That’s probably true, Your Honor.

Thurgood Marshall:

And that gives you no First Amendment problems?

Lewis R. Friedman:

No, Your Honor, as long as the state has a–

Thurgood Marshall:

Do you mind if it gives me some?

Lewis R. Friedman:

That’s why we’re here, Your Honor.

That is– the problem is that the Court has held that the First Amendment does not protect obscenity and, at some stage, a decision must be made in one form or another whether a matter is obscene or isn’t.

And, in this situation, we have a finding beyond a reasonable doubt by, in this case, a non-jury trial, three-judge trial, and that is a final judicial determination of the obscenity of this film.

Now, of course, it’s subject to review on appeal and were the film, returned or destroyed, as a practical matter, the Court would be unable to review it.

And, it is for that reason the film is, as I say, in the custody of the Court Clerk’s Office at the current time, but once that determination is made–

Thurgood Marshall:

We wouldn’t have that problem in the case we had earlier because somebody destroyed it.

We could just go down the street here in Washington and see it.[Laughter]

Lewis R. Friedman:

If it’s the same film, Your Honor, and I believe the Attorney General from Kentucky indicated he hadn’t seen it to see if it is the same film.

And, I would submit that if the Court choose to see Blue Movie– you’d see that it’d be very difficult to ascertain if this was the same film.

William J. Brennan, Jr.:

Does the New York statute have any provision for destruction of material when finally adjudicated obscene?

Lewis R. Friedman:

Not that I am aware of, Your Honor.

William J. Brennan, Jr.:

Other than– I mean– Even after– I’m just interested.

After the adjudication, and what’s the basis upon which– of course, it may be treated, as we agreed without, as now, no longer entitled to any First Amendment consideration at all when finally adjudicated, but how does that still entitle you to keep it?

Lewis R. Friedman:

Well, Your Honor, to return it at any stage creates as–

William J. Brennan, Jr.:

I think, usually–

Lewis R. Friedman:

Many problems as the retention.

William J. Brennan, Jr.:

Well, usually, these statutes provide for its destruction in that situation.

Lewis R. Friedman:

MIt may be a statute in New York, Your Honor, that I’m unaware of.

I just indicate that, to my knowledge, there is none and, as a practical matter in a case which has been reported–

William J. Brennan, Jr.:

I mean, when it’s–

Lewis R. Friedman:

If the film is gone, the precedential value of the cases–

William J. Brennan, Jr.:

When it’s heroin or something like that, isn’t there some statutory provision in which you keep it?

Lewis R. Friedman:

Not– the statutes are vague, at best, as to the right to retain or destroy evidence at the expiration of a case.

As a general matter, heroin is fungible and not necessarily valuable after a case is disposed of.

William J. Brennan, Jr.:

But it’s contraband, isn’t it?

Lewis R. Friedman:

It certainly is, and it’s generally destroyed, but–

Warren E. Burger:

You don’t return it to the defendant.

Lewis R. Friedman:

We certainly don’t return heroin to defendants.

William J. Brennan, Jr.:

But you do destroy it, you don’t know whether that’s done under statutory authority or just–

Lewis R. Friedman:

I presume there is a statute regulating the police property clerk which governs that but, as a practical matter, I think the Court’s aware there’s a substantial problem in obscenity cases of the Bar or anyone else knowing precisely what the item that has been adjudicated is, and that the objects are usually retained for as long as it is possible to keep them in some form of intact state or another so as to provide that insight for further study, so that in most cases and certainly in most obscenity cases the material that’s been seized has been held for years and years.

Thurgood Marshall:

Isn’t it some place in Brooklyn that has this “library” on it?

Is it the federal or the state?

Lewis R. Friedman:

I believe the State of New York was in the process of setting one up.

I don’t know if they actually did.

Thurgood Marshall:

Yes, I thought so.

Lewis R. Friedman:

The value of a library of obscenity–

Thurgood Marshall:

I think you need to use the word “library.”[Laughter]

Lewis R. Friedman:

Well, I think that’s the way it’s been popularly described, Your Honor.

But, the point we face here is that the state’s effort that New York has adopted of acquiring the magistrate to actually see the material is one which walks, we think, a fair middle ground between the seizure by an untrained officer who sees a film and then seizes it and a procedure where perhaps, if the state is lucky, a hearing can be held prior to the time the film is removed from the jurisdiction.

And, the adversary hearing approach in the limited cases in which we have tried it has been very unsuccessful, and I don’t blame the judges of New York for this purpose.

It is, in fact, the nature of the obscenity business which puts the incentive of delay and obstruction on the defendant.

Warren E. Burger:

But who’s in charge of the calendar in New York, judges or the–

Lewis R. Friedman:

Your Honor, it is the judges, but the defendant’s Fifth– Sixth Amendment right to counsel is generally what has been interjected and, I think, not unjustifiably where counsel needs time to prepare.

It certainly needs time to prepare.

He has to see the film.H

e has to come get experts.

Experts have to be contacted.

They have to see the film.

A lengthy period of time is required.

We cannot have– if a full-pledged hearing, as Mr. Anolik suggested, be held, if that is what an adversary hearing is and, Mr. Justice Stewart, I don’t think anyone is really to find what it is because the Court is just simply saying either one is needed or isn’t and leave it to the states to work out what they will.

Potter Stewart:

So, you–

Lewis R. Friedman:

But if a hearing is required, then the problem of delay is forced into the hearing process by the Sixth Amendment, if nothing else.

It’s not even bad faith.

It may even be good faith, but there must be delay.

Potter Stewart:

But you– if it were the other way, then the state concedes and holds pending what you say is necessarily a period of time for preparation?

Lewis R. Friedman:

If the def– if the person who had custody of the film requires a time for preparation, then the state– if he wants the time, then should that state return it to him during that period.

I mean, that’s the practical effect of the question because we are ready for a hearing once the film has been seized as before the Court.

William H. Rehnquist:

I suppose you might say too that, although frequently defense counsel in criminal cases will want delay in the actual trial of the action, they may not insist on delay of– for preliminary hearing.

Lewis R. Friedman:

No, they may or they may not, depending on how it suits the strategy of a particular defense, but the question is whether the state must be put in a position where delay is a matter of right, and I think that the Sixth Amendment would make it a matter of right.

So that, it is particularly appropriate in this instance where, in a movie case, the state’s only proof is the film.

Lewis R. Friedman:

More than the film would not be required and submitted, and that can be held at the movie theater when the man is arraigned promptly, we have Courts operating from 9 in the morning until midnight every day.

Hearings can be held, but who should have the burden of initiating it after a judge has seen the film and has made a determination?

Because, we submit, that it is the judicial presence and not the adversary’s presence which is the crux of what this Court has tried to say in Marcus and A Quantity of Books.

That is, there must be a magistrate who’s made a specific determination on a specific film and how as to whether he must hear argument or not, we can’t tell.

William J. Brennan, Jr.:

Well, I suppose the word “adversary” has appeared first in Marcus.

Lewis R. Friedman:

Yes, sir.

William J. Brennan, Jr.:

That ordinarily connotes, doesn’t it, a contest?

Lewis R. Friedman:

Yes, but the problem of how much of a contest.

William J. Brennan, Jr.:

Yes, I know.

Lewis R. Friedman:

The New York Court of Appeals, in this case, in its opinion seem to treat it as being a question of argument as oppose to a question of proof.

William J. Brennan, Jr.:

But what you’re doing now with the magistrate going to the theater, that– there’s no– nothing in the way of a contest.

Lewis R. Friedman:

That’s correct, Your Honor, but it does bring the–

William J. Brennan, Jr.:

And to that extent, if the principle of Marcus and Quantity of Books applies in this situation, to that extent, surely your procedure is deficient.

Lewis R. Friedman:

If it is a full contest at that stage which is required.

William J. Brennan, Jr.:

But, here, there’s no contest at all.

Lewis R. Friedman:

That’s correct.

William J. Brennan, Jr.:

Whatever the contest may be, I just suggest that I think Marcus and Quantity of Books does suggest there has to be some contest.

Lewis R. Friedman:

Well, Your Honor, the sug– the reading the New York Courts have taken I think is a reasonable one and that is that the constitution in the seizure of possibly protected material requires more than an officer’s statement as to probable cause, and if a magistrate, bringing the judicial mind to the question of obscenity, has made a determination which, for all intense and purposes, must be a prima facie determination, not one of probably cause.

William J. Brennan, Jr.:

And an ex parte one.

Lewis R. Friedman:

It may be ex parte in that–

William J. Brennan, Jr.:

Well, that’s what it is.

Lewis R. Friedman:

It may be ex parte, but that doesn’t necessarily make it deficient because in a judge– in deciding the questions of obscenity, there are no questions of fact in the sense of an informant type of search warrant case.

It’s not a factual determination.

It’s an inference determination, an inference from basically a conceded fact, that is, the film is conceded to be here.

From that film, what inference could be drawn?

And, to require the defendant’s presence with counsel and, conceivably, experts and we really don’t know what else, at this stage, would really be an unreasonable burden of a valid state interest, a valid state interest which this Court has upheld in saying that the prosecution of obscenity laws may be continued.

So that, we submit that the New York practice under which a magistrate seize a film prior to the issuance of a warrant of allegedly obscene material is constitutionally sufficient.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.