Heller v. 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

Irving Anolik - for petitioner
Lewis R. Friedman - for respondent

Facts of the case


Media for Heller v. New York

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.