Jacobellis v. Ohio – Oral Reargument – April 01, 1964

Media for Jacobellis v. Ohio

Audio Transcription for Oral Argument – March 26, 1963 in Jacobellis v. Ohio

Audio Transcription for Oral Reargument – April 01, 1964 in Jacobellis v. Ohio

Earl Warren:

Number 11, Nico Jacobellis, Appellant, versus Ohio.

Mr. London.

Ephraim London:

Mr. Chief Justice and Associate Justices.

If the Court please, this is a reargument of an appeal from an order of the Ohio Supreme Court affirming the conviction of Jacobellis, the appellant, on two counts.

One count was for possession of a film, motion picture film, that was found by the Court to be obscene and the other count was for showing or exhibiting the film.

The picture that’s involved in this case is the motion picture called “Lovers.”

The first question that’s presented by the appeal is whether or not this picture is obscene, if it is not obscene under constitutional standards.

That’s an end of the case.

And to make that or to consider that question, I think we must first consider the standards by which a film must be judged and I should add that I don’t think that this film can be judged obscene by any constitutionally acceptable standards.

But the criteria for judgment in determining whether or not a film is obscene are set out in Roth and Alberts.

But the highest courts of the various states had considerable difficulty in applying those standards.

And there are many questions that have been raised with respect to the meaning of the Roth-Alberts standards.

The first question in which there have been differences of opinion in the state courts is whether it was intended by the Roth-Alberts decision to allow the suppression of punishment of only what is termed hardcore pornography.

And I hope that that I won’t be asked to define that term but it’s been used by many of the courts and I understand that to mean that which is not only obscene but so flagrantly, patently, blatantly obscene.

That there could be no difference of opinion between men of — whose opinion is to be respected between reputable people with respect to whether or not that matter is actually obscene or not.

Potter Stewart:

At least you mean in any — in any given moment in any given time.

Ephraim London:

Well, I assume that the society is ours and I think we’re going to have to explore that question too because that question of which society is to be the judge or according to the standards of which society is another matter that is involved here.

And there’s also another matter about which the state courts differ in connection with a specific application of the term community standards, what the community has intended to be.

But if I may speak first to the question of hardcore pornography, I take it from reading of the cases that this Court has decided that have related to punishment of — of matter found to or suspected or charged of violating federal law.

That something like the standard of hardcore pornography does apply where a federal statute is involved and where a federal prosecution is involved.

I’ve made that assumption from a reading of the various cases that this Court has — has determined, some without opinion and such cases as Manual against Day where the — certainly, the — at least one of the opinions is very clear in indicating that only what was patently offensive and obnoxious would be considered obscene.

In relation to a federal case and the question is whether the same rule will apply where there is a state prosecution.

None of course relates to the very much broader question as to whether the First Amendment means the same thing in a state prosecution as it does in a federal prosecution.

Potter Stewart:

This was a criminal prosecution of the exhibitor, is it?

Ephraim London:

Of the manager of the theater.

Potter Stewart:

Right.

Ephraim London:

Yes, Your Honor.

Potter Stewart:

And — and what was the punishment?

Ephraim London:

The punishment was the fine of $500 on one count and the maximum fine of $2000 on another count.

The Court had the option of either imposing a fine or an indeterminate prison sentence of not less than one or more than seven years.

Potter Stewart:

And no — no sentence, no prison — no imprisonment was imposed, was it?

Ephraim London:

No, the — the fine has not been paid and there is a workhouse sentence but the —

Potter Stewart:

Yes.

Ephraim London:

— fine isn’t there.

Potter Stewart:

Yes.

Ephraim London:

Now, before going into the question of whether or not the federal standards are to apply here in a state prosecution, I think I — I should state and I think the record clearly indicates that if this were a federal prosecution, this motion picture could not possibly be considered obscene under the standards that have been followed by this Court in a federal prosecution.

Well, of course the Court has never announced the hardcore porno — hardcore pornography test even in a federal prosecution.

Ephraim London:

No, Your Honor.

And as I — as I indicated, I have some questions —

Yes, some of it do have but the Court has not adopted that here so far.

Ephraim London:

No, no, Your Honor but I believe in your opinion in Manual against Day, that particular term was used —

Yes.

Ephraim London:

— indicating that the — that the criteria that had been set out in your opinion of — of patent offensiveness was somehow equivalent or close to what the state courts call hardcore pornography.

(Inaudible) only commented the views of myself and my Brother Stewart.

Ephraim London:

Yes, Your Honor.

But I — I said before that I had indicated my understanding of the federal standards from a consideration of the various cases that this Court has passed upon many without opinion.

For example, the — the Mounts (ph) case, the one case where there was material involved which I think would be considered obscene perhaps by other standards and where perhaps the Court might have — might have been — where — where I think it was pretty clear that the Court was insisting that the work be more than merely what is — might ordinarily be considered obscene.

But as I stated before this picture that we have here couldn’t possibly under the — what I conceive to be the federal standards be judged obscene and constitutionally punishable or suppressible.

It’s a picture that has been examined by a number of censorship boards that are in the business of detecting obscenity and passed by them ultimately, found to be not obscene by at least six or seven of them.

In what states was this picture been banned?

Ephraim London:

This picture has been banned in only one place, not even a state.

This picture has been banned only in — in two places rather in Ohio, in Dayton, Ohio and in Cleveland Heights, Ohio.

Been shown in other parts of Ohio?

Ephraim London:

Oh yes, it showed four and a half months in Columbus, Ohio.

William O. Douglas:

Is the film here on the posit of the —

Ephraim London:

Yes, Your Honor, it’s in exhibit in this case.

And of course available for the Court’s examination but it was passed by censorship boards in Maryland, by censorship boards in Providence, by censorship board finally in Chicago, in New York and Boston.

Now some question has been raised as to whether New York and Boston, not the other places that I’ve mention but New York and Boston have seen a revised version and the fact is that they did see a version that is 131 feet less which is less than a minute showing time, 131 feet less than the version that was shown in Chicago, the version that was shown in Columbus, Ohio and the version that is being prosecuted today.

There is that difference, however, the witnesses and the record shows that there is no — no one could detect any real difference between the two versions.

The only —

What’s the one we’ve got, the 131 —

Ephraim London:

You’ve got the one with the additional 131 feet.

(Inaudible)

Ephraim London:

Unexpurgated, unchanged.

Byron R. White:

(Inaudible)

Ephraim London:

I think the 131 feet were taken out as a kind of sort to a censor board which objected to the — the passing of the film initially and then compromised on the taking out of the hundred and —

William J. Brennan, Jr.:

(Inaudible)

Ephraim London:

Pardon me?

William J. Brennan, Jr.:

There was (Inaudible)

Ephraim London:

Not the whole scene, Your Honor, less than a half a minute of the scene.

William J. Brennan, Jr.:

That’s enough.

William O. Douglas:

Is that the only — is the only part of the film challenged or seen obscene?

Ephraim London:

That was the only part of the film that was challenged.

William O. Douglas:

So all — all we have to do is (Inaudible) that 131 feet?

Ephraim London:

I don’t — I don’t know that the Court can judge it out of context.

And I — as I read the opinion of the Court, it cannot.

It would be required to look at the entire film to — to understand —

William J. Brennan, Jr.:

Well, is it —

Ephraim London:

–that sequence.

William J. Brennan, Jr.:

Mr. London, you mean the only part that was the — the deleted part.

It’s the only thing that those boards would require the deletion, you thought, that made the picture obscene, isn’t that it?

Ephraim London:

No, Your Honor.

I — I would like to make that clear.

I don’t think that there was any difference whatever between the version that was licensed in New York and the version that was shown in Boston and the version that was — is now in Court.

And that was — is being prosecuted or was prosecuted by the Ohio authority.

William J. Brennan, Jr.:

(Inaudible) that that you do not think so but I wondered if those boards have required the release, I didn’t think so.

Ephraim London:

Well, Your Honor, I — I think that the Board originally that requested the deletion and requested a larger deletion, the distributor refused to make it and this was a compromise.

Later on, the distributor refused to make that compromise and decided he wasn’t going to change it and as a matter of fact, in Chicago, he refused to — to make any deletion and the film was finally passed in the version that is now before this Court.

And again, in Columbus, Ohio when it was shown, the version that is now before this Court was shown.

William J. Brennan, Jr.:

Now, that favorable, New York Times review, was that of the — of the — that was just exhibited with 131 feet out?

Ephraim London:

Yes, Your Honor.

William J. Brennan, Jr.:

Alright.

Ephraim London:

But critics who saw both the changed version and the full version said they saw no difference between the two films and saw them both.

Earl Warren:

Is this case tried to a court or to a jury?

Ephraim London:

It was tried by a three-judge court.

Earl Warren:

Could you have had a jury (Inaudible)

Ephraim London:

There could have been a jury.

I did not try the case.

Earl Warren:

Yes, yes.

Ephraim London:

There could’ve been a jury and the jury would waive trial by a three judge court, was requested and granted.

William J. Brennan, Jr.:

Has it become the practice the way to do it in these cases?

Ephraim London:

I don’t know that it’s become the practice, Your Honor.

I — I myself do not waive a jury in a case of this kind.

But as I was indicating before, I think that if you apply federal standards, this film cannot be banned.

It had played in addition to what I had mentioned before, that played in a hundred different major cities in the United States, a total of 44 states.

William J. Brennan, Jr.:

Including Washington.

Ephraim London:

Including Washington, D.C.

And it had won numerous prizes.

It had been recommended, I shouldn’t say numerous prizes, two prizes.

It had been recommended and nominated for an award as one of the ten best films, not only by the New York Times but by the Saturday Review of Literature, I think three different critics had — had made that recommendation.

Now, the question of — of whether or not the First Amendment standards can vary from state to state, there’s never been specifically passed upon by this Court.

And that is the appellant’s position here that the standards are the same whether the prosecution is by the federal or by a state government.

As I understand it, the — it is the First Amendment, whether it has become part of the Fourteenth by incorporation or whether by absorption.

It is still the First Amendment that has become applicable to the states.

And the first Amendment Right, I should not think would vary from state to state.

I think it has been —

William J. Brennan, Jr.:

(Inaudible) Supreme Court, has any other court taken as to this?

Ephraim London:

Yes, Your Honor.

The Wisconsin Supreme Court took the same position also but I — none as clearly as did the New Jersey Supreme Court in the Hudson County case.

There is an excellent exposition which is not quoted in my brief but I think that the whole question, I — I think there is an excellent — excellent statement of the question and discussion of it in that New Jersey case.

Ephraim London:

Now in relation to the application of national standards again, with respect to the criterion of community standards, the Roth case says that a work, if it is to be judged or one is to judge whether or not it is obscene must be judged according to community standards and the question as, what is meant by the term community.

Is it, as the New Jersey Court suggested, national standards?

In a state prosecution, is it the state standards?

Is it the county in which the defendant is being prosecuted or as if no community at all as the State of Kansas has suggested in its brief in the following case.

The — the State of Kansas suggest that society at large as — as its standards are interpreted by a particular judge or a jury, is the community that the Court intended in Roth against United States.

William J. Brennan, Jr.:

Well, if that’s what we intended to use or rather unfortunately, isn’t it?

Ephraim London:

If Your Honor please, I am not going to try to defend that position.

William J. Brennan, Jr.:

Well, even — even the other one, even the one from New Jersey Supreme Court had taken.

If we had meant national standard, isn’t community an unfortunate way to express that?

Ephraim London:

I — I don’t know whether the Court had that question in mind when it enunciated the — the standards in Roth against the United States but it doesn’t seem to me that any other standards can be applied consistently with the First Amendment Rights.

Perhaps, that — perhaps, that term should be modified or changed.

What you’re saying, I take it is that the — that the Fourteenth Amendment gives the same scope in this area, to the First Amendment, as the First Amendment itself then it automatically follows, is that it?

That the —

Ephraim London:

Yes, Your Honor, I would —

And it has to be a — a national one or not a community.

Ephraim London:

Yes, I would say that the First Amendment would’ve come in to the Fourteenth intact and not varying as one crosses the state line or as one crosses a —

Because if you put it — if you put it conversely, a community standard meaning less than a national standards, does it says then — now, would it also follow that there is a different scope (Inaudible) more light to than the — under the Fourteenth and the Federal Government than the (Inaudible)

Ephraim London:

I would think that would be — that would not be consistent with the — with the First Amendment protection Your Honor.

I think if that is the definition that is adopted, then I think that definition calls afoul of the First Amendment Right of freedom of speech.

To me, the —

In other words, what you’re saying is that the community standard test, whether it’s national or — or less than national, at least it really is another way of saying that whether the First Amendment (Inaudible) to the Fourteenth has the same scope as the First Amendment directly?

Is that —

Ephraim London:

I think that question is directly involved, yes Your Honor.

I believe it is.

William J. Brennan, Jr.:

Mr. London, do you make any significance in the fact that — that opinion is written in two cases, one a federal case, Roth and the other, a state case, Alberts?

What opinion could’ve (Inaudible)

Ephraim London:

I think that would certainly indicate Your — Your Honor that the Court intended the same sentence to be use in both the federal and state prosecution, I would — I had made that assumption also from the fact that there was a concurring and dissenting opinion by Mr. Justice Harlan in which he objected of the use of the same standard in the two types of cases.

And I think there was some other language in the Roth opinions supporting that view.

I think that the Court indicated in Roth and Alberts that the First Amendment right applied with equal vigor.

I think that was the phrase the Court used as against the Federal Government and the States.

Ephraim London:

And if it is to apply — to apply with equal vigor, then I believe that the federal standards must be used when one judges even a state prosecution.

Potter Stewart:

How — how you find out the national standard?

Is it the lowest common denominator or is it some average of all the public opinion in each of the 50 states or —

Ephraim London:

The —

Potter Stewart:

(Inaudible)

Ephraim London:

The question of determining the standards is — is Your Honor an extremely difficult one and poses many problems.

And I suppose that one way of — one way of determining these problems in a given case is to find out what people are reading, people are looking at throughout the United States, what they are tolerating, what they are accepting in this particular case the problem is a very easy one.

We here have a case that — were picture has been shown in 100 different important cities which is practically the entire number of cities in which it would be shown normally whether or not it was obscene there is a limited market for films that are called art films and this is one of them, it’s a fine film it normally would not be shown in many more than 100 different large cities.

Shown in 100 cities and 44 states, I should think there that there is a clear — one doesn’t have to go very much beyond that to determine that this is accepted nationally.

Potter Stewart:

The determinable (Inaudible) of tolerance in this particular case.

Ephraim London:

Yes, Your Honor.

Potter Stewart:

But I was just wondering.

I — I presume if it’s a national standard, you — you couldn’t depend upon a jury which always is drawn from a very local community as from a county to make a determination unless it was hated by expert testimony or testimony of tolerance in other communities through —

Ephraim London:

I think that the jury would have to have some evidence before or it should have some evidence before it.

Potter Stewart:

It — it couldn’t have upon a local jury —

Ephraim London:

Uninstructed —

Potter Stewart:

— unaided by — unaided by outside evidence.

Ephraim London:

I — I imagine that this would depend a great deal on a particular jury in a particular case.

But this is a problem.

Potter Stewart:

(Voice Overlap) I suppose the jury left to its own devices would apply local standards.

Well if the standards of it — of the community from which its (Inaudible)

Ephraim London:

Well each — each —

Potter Stewart:

— isn’t it?

Ephraim London:

— one draws from his own knowledge and experience and background in making a determination.

But I believe that properly instructed the jury might certainly follow a judge’s direction to consider the standards of the nation.

And in the given case, it maybe possible in — in this case it’s certainly is possible to prove what the national standards are.

Potter Stewart:

Could you depend upon a local judge if the judge were the trier of the fact without evidence as to the tolerance of this particular book or (Inaudible)

Ephraim London:

To my thinking not more than of jury.

Potter Stewart:

I beg your pardon?

Ephraim London:

To my thinking you couldn’t depend on the judge’s decision anymore than you could on the juries without instructions.

Potter Stewart:

Should we look to act of Congress to determine national standard?

Ephraim London:

I don’t think that Congress could possibly to legislate —

Potter Stewart:

— the national legislature —

Ephraim London:

— a standard which would be effective the following day because the standards of the country changed from time to time.

Arthur J. Goldberg:

Can you think realistically Mr. London, (Inaudible)

Ephraim London:

I think realistically there will be a difference.

I think also that if the jury does not take the facts into consideration, there are always appellate courts which can correct an error.

And it seems to me that here the Court would be — would be compelled virtually.

William J. Brennan, Jr.:

Well Mr. London, does this mean that every state and every federal obscenity prosecution necessarily fail that the prosecution doesn’t abuse evidence of what the national standard is that — that may affect a particular book or a motion picture?

Ephraim London:

I would think that that in a — in an appropriate prosecution the national standards, under the Court’s definition, that the national standards should be proved.

William J. Brennan, Jr.:

(Inaudible)

Ephraim London:

I think some attempt —

William J. Brennan, Jr.:

Then the answer is that every state obscenity prosecution must fail that the prosecution does it or for that kind of evidence.

Ephraim London:

I would think this is an affirmative part of the — of the people’s case in the prosecution of the work that is obscene under this Court’s definition.

Arthur J. Goldberg:

(Inaudible)

Ephraim London:

Well if — if Your Honor is suggesting that the — that the standards are the same throughout the country, I would beg to differ.

Arthur J. Goldberg:

(Inaudible)

Ephraim London:

Would not — that there is no difference, but that — what the particular standards are that the standards are in a given case that the — that according to the national standards, this — this particular word would offend the national standards of decency.

I think this would be a part of the — of the affirmative case.

Or in any event, it’s certainly a relevant consideration.

Arthur J. Goldberg:

(Inaudible)

Ephraim London:

Well Your Honor the only — the only kind of expression that is — that is prohibited or punished is obscenity.

All other, it allowed.

And so this is the only area in which the question arises.

(Inaudible)

Hugo L. Black:

I don’t understand that (Inaudible) — I don’t under — I thought you said that Congress couldn’t draw a standard.

Ephraim London:

Couldn’t legislate the standard, yes sir.

Hugo L. Black:

But we could.

Ephraim London:

Not that Your Honor can legislate the standard but that your — but that a Court with the information before it can determine that the national — that according to the national standard.

Hugo L. Black:

But —

Ephraim London:

But this —

Hugo L. Black:

— who would define the national standards?

Ephraim London:

I — I think that in — in many instances of the — if the record doesn’t show it, this Court has made a determination as to what the standards were and obviously, I believe, we’re not applying the standards of a local community as for example in the Times Film case, the first Times Film case that came from Chicago this Court reversed.

A — a — suppression of a film whether — it was held that the film was obscene and I am assuming that no member of this Court was applying the standards of Illinois —

Hugo L. Black:

(Inaudible)

Ephraim London:

— when that determination was made.

Pardon me.

Hugo L. Black:

You don’t know do you?

Ephraim London:

No, Your Honor.

Hugo L. Black:

The only thing that bothers me is that what you are suggesting is, there can be a standard, established and that Congress can’t do it, but we can.

Ephraim London:

I am —

Hugo L. Black:

It comes to me like, if we are to do the legislating for the — for the nation and take — to say that Congress is incapable of doing it, but we are.

Ephraim London:

I — I didn’t state my position clearly.

What I intended to say Your Honor was that it is possible for one to prove in a given case that there is a national standard of decency and that according to the national standard a particular work could not be held to violate that standard.

Now, I say that this —

Hugo L. Black:

(Inaudible)

Ephraim London:

Pardon?

Hugo L. Black:

— admitted to evidence to determine what the national standard is.

Ephraim London:

Yes, Your Honor and I — I submit that this case was the perfect example of one in which it can be done.

Now there maybe others in which it will be difficult but this is the Court’s definition of what is obscene and how obscenity is to be judged.

Hugo L. Black:

Whether it has to bear with each case then according to the evidence.

Ephraim London:

I think each case is an individual case, there’s no question about it, this Court has said so.

Hugo L. Black:

(Inaudible) determined a national standard each time a case is tried somewhere and it comes up to us, we have to look at the evidence and see if it established a national standard of violating this (Inaudible)

Ephraim London:

Under —

Hugo L. Black:

— on the evidence there whether that evidence was enough to show what the national standard was.

Ephraim London:

Under the laws it now stands, I think that Your Honor has to — I mean the Court must — must judge in accordance with some standard.

Hugo L. Black:

Well, you mean, it should in the future?

Ephraim London:

Well, I believe it has in the past.

Hugo L. Black:

Its —

Ephraim London:

In —

Hugo L. Black:

— how do you define it?

Ephraim London:

In citing — in citing the Roth-Alberts case which set out these standards, I assume that the Court applied those standards.

William J. Brennan, Jr.:

You may — but you don’t know which element of the — of the path they’ve laid down on Roth may have determined the result as to the picture of — a picture or a book.

Ephraim London:

No Your Honor.

William J. Brennan, Jr.:

Incidentally, I gather if we agree with you first of all, that even under the Roth has not further explicated, this was not obscene.

We don’t reach question of community standard here.

Ephraim London:

That — that is — that is so Your Honor.

I am — I am indicating however that the several of the highest courts have indicated that the criteria that was set out in Roth-Alberts, and now according to Massachusetts’ Court is a dim beacon.

And I think that the courts have in effect asked the explication.

By the way, that was the only thing on which the — the majority in dissenting opinion agreed in the case that I’m quoting namely that — that they didn’t have a sufficiently clear course — clear light by which to guide their cause.

Supposing you were rewriting the Roth and Alberts case, how would you formulate that?

Ephraim London:

I wouldn’t Your Honor.

I’m — I’m afraid my opinion would follow Justice Black’s.

(Inaudible)

Ephraim London:

I —

— it can’t be done, (Inaudible)

Ephraim London:

I believe that is — that is my own opinion which Your Honor asked for.

Earl Warren:

Well as — what we’re dealing now with the opinion in Roth then assuming that there is a national standard or should be a national standard, what do you conceive that standard to be?

Ephraim London:

That would have to be determined in a given case.

In Manual against Day for example, the —

Earl Warren:

But you’d have to give instructions to a jury as to what the standard was, wouldn’t you if you had a jury trial?

Ephraim London:

Yes, Your Honor.

Earl Warren:

Right, what instruction would you give them as to the standard of obscenity?

Ephraim London:

I would instruct the jury that in determining whether a given work is obscene.

They must make that determination not in accordance with their own concepts or the concepts of the people living in their neighborhood or even if the state but to the extent that that has been proved in accordance with the standards of the nation.

Now, that particular charge was said in a federal case to be a necessary charge.

Thus, the first department has held and this was said to be the necessary standard in the Manual against Day case by at least the opinions of Justices Stewart and Harlan — with Justices Harlan and Stewart.

Now, if there is such a standard, and if it can be prove and it’s — this is the way a jury must judge, surely that standard can be proved in a federal case as well as in a state case.

William J. Brennan, Jr.:

But Mr. London sure you can’t just stop and say to a jury, you have to determine this according to a national standard.

Ephraim London:

That’s what here the —

William J. Brennan, Jr.:

That you’d have to define what a national standard is?

Ephraim London:

I think this is the burden that’s been imposed.

William J. Brennan, Jr.:

Well now what — well, what I think the Chief Justice is suggesting and I certainly like it to have some help with it, what ingredients would you put in this national standard?

Ephraim London:

If Your Honor please, I have — I would have to try the individual case.

And the one before the Court —

William J. Brennan, Jr.:

I know, but how will you even know what —

Ephraim London:

My — my burden is a very —

William J. Brennan, Jr.:

If you’re the prosecutor — if you’re the prosecutor, what kind of evidence are you going to give?Unless we give you some guidance of — under the national standard, what kind of evidence satisfies?

Ephraim London:

That can certainly opinion evidence.

I think this Court or at least some of the Justices of this Court have indicated have indicated in session —

William J. Brennan, Jr.:

Opinion about what?

Ephraim London:

About the — about the limits of community tolerance.

About what is acceptable, about the kind of book that is read, about the kind of magazine that is seen on the — on the stand.

William J. Brennan, Jr.:

What specific (Inaudible) — will the prosecution have to come in and say, bring in a whole bunch of girly magazines and say now, around this town you can find all of these you want, at the barber shops, the news stands and everything else, but that’s as far as this town goes in acceptability of this kind of fact?

Is that what you have to do?

Ephraim London:

Well, as Your Honor please, you are speaking more of the burden of proof of the standard than the question of whether or not the standard is provable.

Whether —

Byron R. White:

If you answered — you — you said — it sounds to me just like — like the national standard to be decided by sales figures.

I mean, who was — if the book was sold on that and read in that everywhere in the country that would satisfy — it’s not obscene, and that’s a kind of a national standard you (Inaudible)

Ephraim London:

I would say that if the book were sold freely in most of the United States and if that there had been no successful prosecution of the book, in most of the United States that this book did not offend the standards of the people of the United States.

William J. Brennan, Jr.:

Yes but —

Ephraim London:

I think this is in your —

William J. Brennan, Jr.:

Yes, but suppose in your (Voice Overlap) —

Ephraim London:

— logical inference.

William J. Brennan, Jr.:

Suppose in your very case Mr. London, instead of being the — the last experience your motion picture had had, that which resulted in your prosecution, that has been the very first — had never been exhibited anywhere else in United States.

Now, what in that circumstance would the prosecution had to prove to establish it was obscene?

Ephraim London:

Again, and I think that the prosecution should show to sustain his burden that the particular book does not only offend the standards in the local community but the people elsewhere.

Now, I — I concede —

William J. Brennan, Jr.:

But nobody has ever seen the picture.

Ephraim London:

That — that maybe —

William J. Brennan, Jr.:

(Voice Overlap) —

Ephraim London:

— but they are comparable pictures Your Honor.

Byron R. White:

It means the battle of experts on that case, (Inaudible).

Ephraim London:

Very, very frequently, you would have I think.

Question the different — difference of opinion amongst experts.

Byron R. White:

Well, do you have to (Inaudible)

Ephraim London:

(Inaudible)

Byron R. White:

— from all sections of —

Ephraim London:

The jury — the jury would — would have to make a determination.

William J. Brennan, Jr.:

How would — how would you call it by (Inaudible)

Ephraim London:

I — I suppose somebody who knew what pictures were shown or what books were sold throughout the United States could qualify certainly as an expert on what is —

William J. Brennan, Jr.:

Anybody (Inaudible)

Ephraim London:

No, Your Honor.

I think that somebody who knew about particular pictures and knew their reception throughout the United States.

One can say and as a matter of fact, even I can say Your Honor that this particular picture when I look at it, is going to meet with difficulty in Detroit and is going to meet with — with difficulty in Cleveland, in Cleveland Heights.

But in the rest of the country, it’s going to be accepted without any question.I could add Memphis to that city.

Now I think that the — I —

Tom C. Clark:

You’re — you’re using hindsight, I mean —

Ephraim London:

No, Your Honor.

I — I may say that I am called upon to make that determination from time to time and I do.

And I — I may boast of some accuracy in making those determination.

William J. Brennan, Jr.:

(Inaudible) I might be idle on that to decide this case.

Tom C. Clark:

I’d be — I’d be very happy to assume the burden.

Earl Warren:

Mr. London, do you — do you contend that — nothing but the hardcore pornography as you used that term can come within the Roth test?

Ephraim London:

This is — this is my understanding of the Roth test and specifically the language that we must leave the door only the slightest fitted jar.

Certainly, the New Jersey Court has adopted that determination.

I believe that Wisconsin Supreme Court has — has adopted that as being the proper standard.

And New York has said whether or not, this is what Roth meant.

This is our standard hardcore pornography.

Potter Stewart:

But then after articulating that standard, hasn’t New York gone ahead and affirmed convictions of for items which are not hardcore in your opinion?

Ephraim London:

I don’t think so Your Honor.

I think there’s —

Potter Stewart:

(Voice Overlap) not —

Ephraim London:

— been only one instance of the case where there is a question is debatable as to whether or not the work is hardcore pornography.

That was not a criminal prosecution.

That was a licensing case.

Earl Warren:

They burned a lot of books with porn — hardcore pornography at New York, isn’t it?

In the Kingsley —

Potter Stewart:

Kingsley books.

Earl Warren:

— case — Kingsley book?

Ephraim London:

The Kingsley case as I remember Your Honor, that wasn’t even an issue before the Court.

The — the owner of the books took the position that he wanted the Court to assume that they were pornographic and he wanted to test the validity of the law so that the Court never had to pass on that question in Kingsley.

Earl Warren:

But — but — but the lower court had to pass on it in order to do what it did.

Ephraim London:

Yes.

And that was by the way before the hardcore pornography —

Earl Warren:

Yes.

Ephraim London:

— rule was established in the State of New York.

The — the first time that the Court used that phrase and I think the majority was willing to follow it was in the Richmond County case which was later than the Kingsley book case.

Earl Warren:

Don’t you think Mr. London that we would eventually have as much difficulty defining what is hardcore pornography as we do obscenity?

Ephraim London:

I think so.

But I think that these difficulties are inherent in the — in the definition of obscenity.

And I suppose that it’s easier to determine what hardcore pornography is than just ordinary run of the mill pornography.

Earl Warren:

But we — would we have to have experts from all over the country determine for every jury what constitutes hardcore pornography and what doesn’t?

Ephraim London:

No, Your Honor.

But I think the question of —

Earl Warren:

Who would make that decision?

Ephraim London:

By — by definition, I — I have assumed that hardcore pornography meant something that was so shocking, so blatant that — that there would be little doubt in the minds of reasonable men.

Tom C. Clark:

Well, that makes — that makes this Court (Inaudible)

Ephraim London:

On the question of what is hardcore pornography and as I think Justice Reed once suggested in various opinions of — stated in this Court that this in effect is what the Court has been doing in a number of cases.

Hugo L. Black:

Do some of these statutes subject men to penitentiary punishment for selling books that may later be found to be obscene?

Ephraim London:

Oh yes, Your Honor.

The — as I understand, all 50 States have — have statutes.

Hugo L. Black:

50?

Ephraim London:

All 50 States —

Hugo L. Black:

All 50 States —

Ephraim London:

— has statutes which in effect say that if a man sells book which is found to be obscene and he has knowledge, we haven’t come to another issue of just exactly what intend is required in this case.

But if he certainly, if he has knowledge of the — of the contents of the book, I understand all 50 statute — all 50 States has statutes which would punish —

Hugo L. Black:

Subject him to penitentiary punishment?

Ephraim London:

Subject him to penitentiary punishment of several years.

Hugo L. Black:

And we’ve held the number of cases that the facts that was written so vaguely that a man can’t possibly know whether he’d be convicted under it, under this trial, is void for violation of due process.

Ephraim London:

Many times.

Hugo L. Black:

Under the standard you’ve suggested, how could a man know it?

Ephraim London:

Your Honor —

Hugo L. Black:

Until he — until he’s tried.

How can anybody know until he’s tried?

Ephraim London:

I think he would — he would unfortunately be compelled to take the risk.

The risk is lessened by the — by the requirement that the work be hardcore pornography, that the work be something that if any ordinary man would reason —

Hugo L. Black:

But some other words could be adopted.

If that’s the standard and you don’t know what it means and nobody else knows what it means, I think the man who sells the book know what it means.

Ephraim London:

Your Honor, I’m –I’m not going to try to answer that question.

I guess —

Hugo L. Black:

I’m asking because it raises instead of a (Voice Overlap) —

Ephraim London:

I —

Hugo L. Black:

— the man due process for the references — definition of a crime.

Ephraim London:

I would agree with your view point but I have no hope of convincing the rest of the Court.

Hugo L. Black:

I understand that — but certainly — but — certainly I don’t suppose we’re going to wholly abandon the idea which has been accepted all these years.

So that someway, a statute has to be so — have so much (Inaudible) to it that the man can at least guess with reasonable certainty whether he’s going to the penitentiary if he sells it.

Ephraim London:

Your Honor, I have meant —

William J. Brennan, Jr.:

Mr. London —

Ephraim London:

— that argument and they cannot —

William J. Brennan, Jr.:

— that didn’t — Mr. London that —

Ephraim London:

— dispute it.

William J. Brennan, Jr.:

— very argument was made in the Roth case and the Court rejected it.

The Court found that there wasn’t any violation in these criminal statutes.

Ephraim London:

That is why I indicated I didn’t hope to convince the Court.

William J. Brennan, Jr.:

Not without overruling Roth in that respect.

Ephraim London:

But I — I do agree with the position that Justice Black has taken.

William J. Brennan, Jr.:

You said that earlier.

Hugo L. Black:

But the other — the case — the Roth case didn’t purport to overrule (Inaudible) and in numerous cases in which this Court has held to get it forward in other field not in obscenity maybe.

But in other fields that if crime must be so definite and they’ve set out that the man can know whether he’s violating it or not.

I didn’t understand the whole rule in Roth.

And now they’ve reached the question as to what is the standard.

And the standard you suggest or any I’ve heard leaves the man in just as much doubt that he could possibly be.

Ephraim London:

But perhaps, less often than the — than the word obscenity, I suppose some other qualifying word would make it —

William J. Brennan, Jr.:

Well, I —

Ephraim London:

— more certain.

William J. Brennan, Jr.:

I understood Mr. Roth that many States are now revising their obscenity law to proscribe that in the very words in haec verba, the Roth test as what’s violated and what subjects to criminal penalty, is that so?

Ephraim London:

Yes, Your Honor.

That is —

William J. Brennan, Jr.:

And in Roth, we doubt of the very question whether under such a statute, they have rule against (Inaudible) and the others would be offended, didn’t we?

And we held it would not.

Ephraim London:

Yes, Your Honor.

That was the Court ruling.

Hugo L. Black:

They held it was not at that time but I assume this Court like all other government agencies is open to reconsideration and resurvey if the efforts to enforce the law showed that nobody under a certain standard show that the man cannot possibly know what it is.

Maybe the Court is rigid and said, I don’t know.

Ephraim London:

I would hope so, but I would — I would state also that the — that the various state courts I’m referring myself now, have indicated that some further guidelines would be desirable on the question of the meaning of these standards.

Earl Warren:

Very well.

Ephraim London:

Thank you.

Earl Warren:

Mr. — Mr. Corrigan.

John T. Corrigan:

Mr. Chief Justice, may it please the Court.

John T. Corrigan:

Perhaps it is well to begin with giving the Court a bit of a background with regard to how this case is here before the Court.

An arrest was made after a showing of a film entitled “The Lovers” in Cleveland Heights a suburb of the City of Cleveland.

After this arrest was made, the film in question was submitted to a grand jury and the grand jury returned an indictment charging the defendant with two violations of the law.

That of possessing with knowledge and I’ve seen motion picture film and a certain count of exhibiting knowingly and I’ve seen motion picture film.

The defendant was entitled under the law to a trial by jury but elected to move the Court to have a three-man court try the case and under the Ohio law, this is discretionary with the Court and the Court granted the motion and permitted the trial by a three-man court.

The three-man court in its memorandum opinion which is set forth in the brief of the appellee recites the rule of the Roth case as the basis for its finding.

The case subsequently was appealed to a three-man appellate court.

And the appellate court again cites the rule of the Roth case as its basis for affirmation.

The case was then appealed to the Ohio State Supreme Court and the Ohio State Supreme Court again affirmed six-to-one citing the rule of the Roth case as its affirmation.

Now, going immediately to the question of whether or not the rule is or should be hardcore pornography.

The law of Ohio and the law of the 50 States and the law of the United States in dealing with the obscenity as I understand, have used the term obscenity and not the term hardcore porno — pornography nor have the decisions of any state or the decision of this United States Supreme Court at any times that the rule is with respect to hardcore pornography.

Let us assume however for a moment that that was so.

Pornography as I recall has its derivation at a Greek word which means, dealing with prostitution.

So, pornography is now all inclusive in the term obscenity because much obscenity deals with matters other than that which deals with prostitution.

However, in the instant case, Justice Radcliffe of the Ohio State Supreme Court in his majority opinion stated that this was worst than hardcore pornography.

So, in order to be worst than hardcore pornography, he undoubtedly found that to be such.

I know of no rule of law that is reiterated more often in the reviewing courts than the rule that a reviewing court will not substitute its judgment for the finders of the fact where there is evidence to support that finding.

William J. Brennan, Jr.:

Do you think this is only a fact question (Inaudible)?

John T. Corrigan:

I beg your pardon Your Honor.

William J. Brennan, Jr.:

Do you think obscenity is only question of fact?

John T. Corrigan:

No.

I think obscenity is a mixed question of law and facts Your Honor.

William J. Brennan, Jr.:

Well if that — if that’s so, then I gather every reviewing court is free to arrive with a different constitutional judgment whether this picture — picture is obscene or not, isn’t it?

John T. Corrigan:

It is one of those difficult questions Your Honor because of the legal definition of obscenity that it obviously must become a mixed question of law and fact.

William J. Brennan, Jr.:

Well, I’m just wondering if the fact that three Ohio courts found that this was obscene was necessarily at all controlling on whether this or not in the constitutional sense the judgment we have to make.

John T. Corrigan:

I do not say that it forecloses that Your Honor.

Now, the statement was made by the appellant that this motion picture film has been reviewed by a number of reviewing boards and has had no difficulty.

I ask you if you will to go to the record page 376 and in the testimony given by Mr. Frankel, the President of the distributor of this film.

The question that was asked to him was — that shown at the top of the page, was that shown to the censor board in Chicago, Illinois.

The answer Yes sir.

John T. Corrigan:

Was it censored by the law and the State of New York?

Isn’t that correct?

The answer was yes.

Now, the same film that was shown in Cleveland Heights is not shown to the public in the State of New York in its entirety.

In its entirety, no.

And I’m moving further down the page.

So far as you know, there are two prints of this film, generally speaking, two different versions.

His answer to that is, yes sir.

Now, the one shown in Dayton, Ohio, that was the same as the one shown in the Cleveland Heights Theater?

Yes sir.

This film — and no version is being shown in the State of Maryland?

Have attempts been shown — have been made by Zenith International to show the film in Maryland?

No.

An attempt was made by Zenith International and I was present to secure a censor seal from the State of Maryland.

Well, the State of Maryland requested several deletions, isn’t that right?

Yes.

There were two deletions requested.

Moving down the page in the film “The Lovers” isn’t shown in any version in the State of Maryland?

Answer: No.

This film is not shown on any version in the State of Virginia?

Answer: No, sir.

So I submit that this film has had difficulty in other areas.

Now, with regard to Dayton —

Have we got both versions here, the (Inaudible)

John T. Corrigan:

I’m sorry, I didn’t hear you sir.

Have we got both versions of this film here in the Court?

John T. Corrigan:

No, you do not.

We just got the —

John T. Corrigan:

The only version here is the ver — is the film that was shown in Cleveland Heights and the film that was shown in Dayton, Ohio.

Now, in Dayton, Ohio, this film was shown to a jury and the jury made a finding of guilty.

John T. Corrigan:

However, the charge there was predicated under a misdemeanor statute of the — of Ohio.

This did not require scienter as did the felony statute.

An appeal was taken from the Dayton case, an affirmation was had in the Court of Appeals and when it got to the Supreme Court, the Supreme Court found the misdemeanor statute unconstitutional because of the lack of the scienter provision in keeping with the Smith case of this United States Supreme Court.

Now, the appellant argues that as interpreted, this statute was violative of the constitutional guarantees of the First and Fourteenth Amendment.

As part of his argument, he cites the Mapp case.

The Mapp case was a case wherein the question of possession of obscenity was an issue and Miss Mapp was found guilty and upon appeal to the United States Supreme Court for another reason involving search and seizure, a reversal was held.

This Court did not pass upon the question of obscenity in the Mapp case.

However, the facts of the Mapp case were such that they concerned — were concerned with mere possession as opposed to possession for commercial purposes.

The appellant contends that in the Mapp case, there was a lack of guilty purpose or mens rea announced by the Court as an element of the obscenity law of Ohio.

The Mapp case did not say that guilty purpose was not a necessary element.

The Mapp case merely concerned itself with a factual situation of a mere possession knowledgeable but not a possession for commercial purposes or for — with a guilty purpose.

In the instant case, we are concerned with a knowing possession for the purposes of public exhibition.

State versus Mapp did not foreclose the ban on possession for purposes of exhibition.

Again, for purposes of clarification may I say that four out of the six charges in the Mapp case found that as applied to the Mapp — Mapp facts, the statute to be unconstitutional.

Though, four out of the six so found that this is not sufficient in Ohio to make a law unconstitutional, the reason being that it is necessary in an appeal from a lower tribunal that all but one of the justices must find it to be unconstitutional in order to make a statute unconstitutional.

In Alberts versus California passed upon by this Court, this Court found the constitutionality of a state statute which provided for the lewdly keeping or sale of obscene materials.

Much more so, the constitution of — constitutionality of the Ohio statute should be upheld for prohibiting the knowing possession, the control and the knowing exhibition of obscene motion picture films.

Mapp is generally in point only and that it deals with the question of this statute whereas State versus Jacobellis which is the State case of this case before this Court now and State versus Wetzel, W-E-T-Z-E-L which was decided at the same time is specifically in point and this clearly gives the interpretation of the Ohio State Supreme Court relative to the construction of the Ohio statute.

There can be little doubt but that in the Mapp case when Justice Stewart said and Justice — Justice Stewart said in Mapp, “I would however reverse the Judgment in this case because I am persuaded that the provisions of 2905.34 of the Ohio revised code upon which the petitioner’s conviction was based is in the words of Mr. Justice Harlan not consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.”

In this instance, the Justice had in mind a mere possession as opposed to a knowing possession for purposes of exhibition.

William J. Brennan, Jr.:

Well, Mr. Corrigan, none of that is before us really, isn’t it?

John T. Corrigan:

I beg pardon Your Honor?

William J. Brennan, Jr.:

None of that is before us now is it?

In this case, our concern is, isn’t it, whether — whether as Mr. London has suggested, this doesn’t raise the problem rather than do about this community standards there.

John T. Corrigan:

This Your Honor — this mens rea is an issue that was raised in the first point of the appellant.

He unfortunately did not get to that in arguing it to the Court.

It is argued in the — in the brief.

Now, he argues also with regard to community standards and I say —

William J. Brennan, Jr.:

Well, I’m just hoping you’re going to get to that in detail about the —

John T. Corrigan:

I say that the community standards set forth in the Roth case are the standards that were filed — were followed and the standards that should be followed.

John T. Corrigan:

Why, pray tell, should Ohio be compelled by the standards of somebody far distant from Ohio.

William J. Brennan, Jr.:

Well, how do you meet Mr. London’s argument that if this is a First Amendment problem?

The First Amendment — and the First Amendment is applied to the states as it would be applied to the Federal Government, how you’re going to escape the logic of his argument that means you must have a single national standard.

John T. Corrigan:

I think Your Honor, we have to apply rule of reason and a rule of reason on this instance it seems to me places the responsibility upon a jury certainly in making a finding with respect to what is the standards of that particular community and has this material below that standards and if so then, is it obscene?

William J. Brennan, Jr.:

Well, that’s just to say that you think there ought to be a local standard that that answer this question.

John T. Corrigan:

I’m sorry Your Honor I didn’t heard you.

William J. Brennan, Jr.:

That’s merely to say, you think there ought to be a local standard and not a national standard.

John T. Corrigan:

Yes, Your Honor.

I — I think that you cannot have a national standard.

You’re going to work hodgepodge on this area.

You’re going to destroy the whole idea of having any laws regulating obscenity, and you’re going to make impossible the establishment of the standards and to present the question to a jury.

William J. Brennan, Jr.:

How would you prove that there’s a community standard?

John T. Corrigan:

You prove community standards Your Honor by putting them in evidence people who are able to answer to a hypothetical question for example relative to the material in question, you’re able to have these people testify as to whether or not this material is below or above the community standards, you’re able to —

(Voice Overlap) —

John T. Corrigan:

— subject them to cross-examination as to the basis for their opinion.

You’re able to present to them other materials in the same area that they will pass judgment on and I might add in this case evidence to this effect was put on by the defense as well as the state —

Byron R. White:

But why (Voice Overlap) —

John T. Corrigan:

— in an effort to show the community standards.

Byron R. White:

What’s wrong with a jury that’s presiding — why isn’t the jury — the jury itself (Inaudible) community standards without having any evidence or testimonies to what they are.

John T. Corrigan:

There is no question in my mind but a jury does and can take judicial notice if you please, if I may use that —

William J. Brennan, Jr.:

But then why — why — you just — you just said the Roth (Voice Overlap)

John T. Corrigan:

— terminology with respect to what to be the standards are.

William J. Brennan, Jr.:

— you just said you thought even in a local standard, there should be evidence?

Why?

If — if — if it’s a local standard, isn’t the jury in theory at least and perhaps in fact —

John T. Corrigan:

You have to make — you have to make —

William J. Brennan, Jr.:

— (Voice Overlap) — better judges than any experts brought in from outside just to what the local —

John T. Corrigan:

Your Honor, you’d have to make a record upon which to appeal.

William J. Brennan, Jr.:

Record?

John T. Corrigan:

You’ve got to have something before the appellate court otherwise —

Byron R. White:

You’ve got the material —

John T. Corrigan:

I beg your pardon?

Byron R. White:

You’ve got the material.

You’ve got the obscene publication (Inaudible)

John T. Corrigan:

The obscene publication in this —

Byron R. White:

Well, that’s the — that’s in — that makes a record?

John T. Corrigan:

I’m sorry.

I can’t hear you Your Honor.

Byron R. White:

Well, you do have the obscene publications?

John T. Corrigan:

Yes sir.

Byron R. White:

And do you think you have to have expert testimony in addition to that?

John T. Corrigan:

I don’t think that you’ll necessarily have it.

I certainly —

Byron R. White:

When you have a jury?

John T. Corrigan:

— think that it is — it is helpful in making the determination as to what the community standard is.

(Inaudible) perhaps every jury men who sits on these cases have read by and large (Inaudible)

I suppose what you’re doing with this evidence is to expose the juryman to at least view the other individual in the community in the name of community standards to tell him.

Well, you ought to consider this before you say this book is obscene or — or to consider that before you say it isn’t obscene.

John T. Corrigan:

That is —

(Voice Overlap) —

John T. Corrigan:

That is exactly right Your Honor.

It’s advisory on the ultimately — ultimately the question of obscenity whether it’s a federal case or a state case being, you say a mixed question of law and fact, the law of being constitutional — I don’t — how can you escape the ultimate proposition that what’s obscene and what isn’t obscene ultimately if what this Court says is — it isn’t so?

John T. Corrigan:

How can you escape the ultimate —

How can you escape it?

If — how can this — how can you suggest that this Court can escape that ultimate responsibility?

John T. Corrigan:

Well, I don’t say that this Court escapes that ultimate responsibility.

And therefore, the evidence is presented to a jury if the jury finds obscenity, is in no great value is it when it comes up to this Court to review?

A matter that this Court happens to think is beyond (Inaudible)

John T. Corrigan:

I — I wouldn’t put it in a category of having a great value, no.

It — it does have some probative value as to the degree of value, I don’t think that there is a — a great weight to be given to that.

But you wouldn’t exclude it obviously?

John T. Corrigan:

No sir I would not.

(Inaudible) you would on argument of counsel, saying, now you ought to take a look at this passage.

John T. Corrigan:

That is right Your Honor.

Arthur J. Goldberg:

Mr. Corrigan, does this mean that for all (Inaudible)

John T. Corrigan:

No.

I — I do not agree with you Your Honor that you would make it finally but no community can determine its own standards.

Arthur J. Goldberg:

Oh, I don’t say that.

I’ve said that since we are not the expert on what the standards are of a particular community (Inaudible) — suggested on the basis that no community could (Inaudible)

John T. Corrigan:

No, I —

Arthur J. Goldberg:

(Inaudible)

John T. Corrigan:

I — I don’t quite agree with you.

I — I think that you would have to make a finding that the selection of the jury in the first instance was proper.

I think that you would — I think that you would have to make a determination that the jury knew their community standards.

You certainly would give weight to whatever evidence there was other than that that would aid the jury in being exposed to the community standards by other testimony.

Then, all of these taken as a whole would be the basis upon which you would predicate your judgment or along with viewing the subject matter in question and — and making a determination as to whether or not their findings were consistent.

Arthur J. Goldberg:

Now, assuming all of that (Inaudible)

John T. Corrigan:

You could make that finding, yes sir.

Arthur J. Goldberg:

But you have to make some sort of (Inaudible)

John T. Corrigan:

Yes, sir.

Arthur J. Goldberg:

— a constitutional (Inaudible)

John T. Corrigan:

Yes, sir.

Arthur J. Goldberg:

Or otherwise, you would just have to accept (Inaudible)

John T. Corrigan:

That is correct sir.

I — I agree with that proposition.

The —

Maybe a little off —

John T. Corrigan:

Yes, sir.

— the point, have you any idea, how many obscenity prosecution there are in (Inaudible)

John T. Corrigan:

In Ohio?

John T. Corrigan:

No.

I have no idea Your Honor.

In our — in our jurisdiction perhaps, the whole gamut of obscenity in the course of the year, maybe a dozen to 15 such cases.

And with regard to motion picture films, this is the second since 1957, the other one was appealed to the Ohio State Supreme Court in a — it was affirmed in that Court that appeal was not taken to this Court with regard to other type of material, literature, as I say, maybe as many as a dozen a year.

The majority — the vast majority dealing with pictures and magazines depicting sexual activities between both female and males and in most instances, these are not appealed and in most instances, I might add a — a plea of guilty as the result rather than a trial.

But I would say that there — in a given year probably or not in excess of 15 in Cuyahoga County which has a population of approximately 1,700,000 people.

Moving on to the second point of the appellant’s argument and I submit that this should not be before the Court or in the jurisdictional statement, the appellant did not set forth.

This is one of the bases of his appeals.

For the first time, he submits to the Court for its consideration the entire statute and the — the constitutionality are the same.

When I submit that the constitutionality of a statute should never be tested in the abstract, and only in the — with respect to the legal rights of litigants, should it be adjudged?

However, out of an abundance of caution, I would like to address myself to this point, the appellant argues that the statute is unconstitutional and the majority of its intended applications.

And then he speculates and he engages in conjecture and as exceptions to the general rule that the Court will not go beyond the limits of the facts in litigation.

The appellant sets up three exceptions.

The first being with the statute and question has already been declared unconstitutional the vast majority of its intended applications.

This is not so here.

This statute has not been found to be unconstitutional in any of its applications.

The second is, where the statute would have an inhibiting effect on expression.

For this exception, the appellant relies on Smith versus California which we distinguished because that lack the scienter provision which is in the Ohio law.

He relies also on the Thornhill case.

This we say is distinguishable because the finding against the defendant in that instance was in the general language of the statute and not by any specification of the evidence or any specific portion of the statute.

He further cites Herndon versus Lowry to support this position and I contend that this case is distinguished because here, the Court found the statute to be vague, so vague as to make a criminal and — to make criminal and innocent utterance.

The third contention is that where the statute is left standing, it would not give fair warning of its prohibition.

Here, to support this position, the appellant in my opinion dissects the statute and he argues for example that the statute provides where a material is not wholly obscene but contains lewd and lascivious articles that violates the Roth rule.

A reading of that statute sets forth that no one shall knowingly sell, give, lend away — lend, give away a book, picture or film and so on which is obscene.

And then it goes on and we states and no one shall give, lend away — lend, give away a book, picture, film and so on not wholly obscene but containing lewd and lascivious material that purpose of this statute is that we conceivably could have a magazine that would have many articles in it and one of those articles could be most obscene and the rest of the magazine be devoted to wholesome material.

Under the Ohio statute, an individual could be prosecuted for the exhibiting, selling of that obscene material.

I do not think that the Roth rule is a rule of quantity but rather a rule of quality.

You could not conceivably have a book that would be a hundred pages and 49 of which would be obscene and 51 not obscene and then say that therefore, this book could not be found obscene.

The appellant argues also that this section in part provides that no person shall — shall give away — show to a minor an obscene lewd or lascivious work.

And in support of this — this contention of the statute is unconstitutional, in this application, he cites Butler versus Michigan.

John T. Corrigan:

Butler versus Michigan was a case wherein you will recall where an adult was prosecuted for the possession of materials that would tend to the delinquency of a minor.

The Ohio statute provides that an adult would be prosecuted if there was a sale to a minor not merely the possession or if there was a knowing exhibition of the material to a minor so Butler isn’t — not at all in point.

He says that this section is unconstitutional because it contravenes the Equal Protection Clause of the constitution and that it accepts from its application works of art.

This in fact is not so.

It accepts from its application bona fide works of art.

Bona fide works of art are defined as being works of art that are not obscene.

It provides also that these bona fide works of art be —

How would the Venus de Milo —

John T. Corrigan:

— presentments from a —

How would the Venus de Milo be classified (Inaudible)

John T. Corrigan:

I beg your pardon Your Honor?

How would the Venus de Milo be classified as (Inaudible)

John T. Corrigan:

Certainly not obscene Your Honor.

Antiquity?

I’m just interested in that provision, how does it work?

John T. Corrigan:

It would be a bona fide work of art.

And — and in addition to that, even if it were not, it is not obscene on any sense by any test that I know.

And with respect to the bona fide work of art coming from an association, the bona fide art association is defined as one in the law as an organization not in contravention with other sections of the law that deal with obscene language, nudism, obscenity, seduction, sodomy, wife slavery, adultery, fornication and the like.

So a bona fide association is one that has proven names of conformity with the well ordered society.

And I submit that if this movie was published by an art association, the exhibition of the film would still be subjected to the criminal law and therefore, there is not an exception on the law which would be violative of the Equal Protection Clause of the constitution.

He contends also that a matter having second class mailing privileges is exempted from the application of the law.

This, we contend is a justified classification or no mail — no obscenity maybe mailed by any class whatever and we contend that this is a proper classification.

Thank you Your Honor.