Jacobellis v. Ohio

PETITIONER:Jacobellis
RESPONDENT:Ohio
LOCATION:United States District Court for the Eastern District of Louisiana

DOCKET NO.: 11
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Ohio Supreme Court

CITATION: 378 US 184 (1964)
ARGUED: Mar 26, 1963
REARGUED: Apr 01, 1964
DECIDED: Jun 22, 1964

ADVOCATES:
Ephraim London – argued and reargued or the appellant
John T. Corrigan – argued and reargued for the appellee

Facts of the case

Question

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

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

    Earl Warren:

    Number 164, Nico Jacobellis, Appellant, versus Ohio.

    Mr. London.

    Ephraim London:

    Mr. Chief Justice, justices of the Court.

    This appeal is from an order of the Ohio Supreme Court, affirming the conviction of the appellant Jacobellis on two felony counts; one was the possession of a motion picture film that was said to be obscene, the name of the film was “The Lovers” and the other felony of which he was convicted was exhibiting the film.

    Jacobellis was the manager of a theater in Cleveland Heights, Ohio.

    He had nothing whatever to do with the selection of pictures.

    His function was running the theater physically, seeing to it that employees were present and projecting the film and so on.

    The films were actually selected by the owner of the theater which by the way was one of the fairly large chains and the owner was a resident of Ohio.

    I shouldn’t describe the film itself, the film is in exhibit and I think —

    Arthur J. Goldberg:

    He of course reviewed the film before it was shown, as the manager of theater?

    Ephraim London:

    Yes, Your Honor, he knew the content of the film.

    He had shown it to some critics before he exhibited it.

    And he arranged for public exhibition and the point of fact, the police chief called up and asked about the film when he saw an ad for it, and Mr. Jacobellis said, “Come on and see it,” invited him to the first showing.

    The — as I say, a sheriff described the film itself except to mention that particular objection seems to be taken by the State and by the Ohio Supreme Court to one sequence in the film which as a matter of fact is not within the range of a camera.

    It takes place off screen.

    One does not see what is happening but the State believes and offered witnesses to state that they felt that something that was pretty obscene was going on out of the camera range and I think, Your Honor, this is pretty much like saying that the photograph of an apartment house has a blurry picture because of what has going on behind the darkened windows.

    Potter Stewart:

    What is on screen, an apartment house?

    Ephraim London:

    What is on screen is a woman, Your Honor, and you see her face and bare shoulders.

    She is lying in bed, and prior to that time, there has been a scene of love making between the woman and the man.

    You don’t see any act of love but it’s quite obvious that they are making love to each other or at least that they’re in the bed for that purpose.

    Potter Stewart:

    So this — in your apartment house in our view is something of a euphemism?

    Ephraim London:

    I don’t think the analogy is exact, but one must imagine what is going on and when what one cannot see in order to say that this particular sequence is obscene.

    Potter Stewart:

    Well, I understand. I was just curious.

    Earl Warren:

    Was the advertising of it had anything to do with it?

    Ephraim London:

    The advertising does in this respect that I think the State relies to a very large extent in order to show intent and knowledge of obscenity on in the advertisement that appeared in a newspaper.

    Earl Warren:

    Who was responsible for that?

    Ephraim London:

    The owner of the theater.

    The ad is made up, sometimes mats are supplied.

    The manager of the theater has nothing to do with the advertisement but he must place it in a local paper and of course in placing it, he can read the text of the advertisement and the advertisement in this case said that this was the most daring love story ever filmed.

    However, I think the Court can take judicial notice of the fact that many advertisements color very highly, the content of the film or a book, and frequently exaggerate the sexual appeal.

    Ephraim London:

    This is — this is almost standard.

    As a matter of fact, I remember when the guidance committee was conducting an investigation of pornography, one of their chief objections was to the deceptive nature of the covers of certain books which led one to believe that he was reading a lurid film or buying it, when as a matter of fact, what he was getting was a classic so that one could not really have been put on notice by the content of the advertisement.

    I think it should be noted that this film has won two important international prizes.

    One was the second prize at the Venice Film Festival where it got the Silver Lion Award, and then, and the first prize at a Brazilian Festival.

    It was said to be one of the best 10 films of the year by Bosley Crowther, the film critic of the New York Times, also by Hollis Alpert and Arthur Knight of The Saturday Review of Literature and it was extremely well reviewed by the critic of the Herald Tribune who testified.

    Earl Warren:

    All things are in the record, are they?

    Ephraim London:

    Yes, Your Honor.

    These facts are all in the record and the point of fact, Mr. Beckley of the Herald Tribune did testify in this proceeding.

    John M. Harlan II:

    [Inaudible]

    Ephraim London:

    This was a testimony in the trial, Your Honor.

    John M. Harlan II:

    [Inaudible]

    Ephraim London:

    Well, the reviews that are — the reviews that the — the reviews that are in record are the reviews of Mr. Hollis Alpert and I believe Mr. Weiler of the Times, not Mr. Bosley Crowther.

    Byron R. White:

    They were — they were — this was a [Inaudible] before a three-judge court?

    Ephraim London:

    It was before a three-judge court without a jury, Your Honor.

    Are they entitled to a jury argument?

    You are entitled to a jury and the jury was in this case was waived.

    Potter Stewart:

    And if you waive a jury and you’re not entitled as of right to three judges but you’re entitled to the discretion of the Court?

    Ephraim London:

    Yes, Your Honor there was —

    Potter Stewart:

    — except for the capital case?

    Ephraim London:

    There was a request for three judges and that request was granted.

    Potter Stewart:

    Yes.

    William J. Brennan, Jr.:

    [Inaudible]

    Ephraim London:

    Yes, Your Honor.

    This was all brought out on the question generally of intent and also in the question of the quality of the picture.

    William J. Brennan, Jr.:

    They have no [Inaudible]

    Ephraim London:

    There is no — no objection on that ground, Your Honor.

    In addition to the reviews that I have mentioned and I should say by the way that Mr. Jacobellis, the appellant, was aware of the reviews but was not then aware of the fact that this picture was found to be one of the best 10 of the year that happened later.

    But he was aware of the international prizes, he was aware of the — or at least the major prize and he was aware of the reviews that had been received.

    These usually come in the form of press clippings which are sent to the theater manager by the owner of the theater.

    There was another factor of which he was aware and that is that the Customs Bureau had examined this picture and had made a specific finding that the picture was not obscene.

    Ephraim London:

    It usually does not make such a determination.

    It did in this case because it held the film up to Customs.

    The film was then apparently sent to the Washington Office of the Customs Bureau, it was examined there, and returned with the specific information and advice that this film was found not obscene under the — under the tariff law.

    Potter Stewart:

    And Jacobellis was aware of that?

    Ephraim London:

    He was aware of that.

    Potter Stewart:

    A time of the — when he got possession of this movie and exhibited it?

    Ephraim London:

    Yes, Your Honor.

    He was aware of those facts.

    He was also — that fact, he was also aware that this film had been shown either at or near Columbus, Ohio and at or near Toledo, Ohio.

    Before he showed it, there was no incident in either place.

    It happened that later there was a showing in Dayton, Ohio and an arrest of a theater manager there.

    William J. Brennan, Jr.:

    This relates to what issue [Inaudible]

    Ephraim London:

    This relates to two issues, Your Honor.

    One is the question of the obscenity of the film which is a constitutional issue and I shouldn’t discuss that in any length but there’s a related issue and that is the issue of what standards shall apply in determining whether a film is obscene.

    This Court has said that a film to be determined obscene must be thought obscene according to contemporary community standards.

    Now, the question becomes in this case, should one apply the standards of the local community which in this case was Cuyahoga County or the standards of the country at large.

    I think it is clear from the record the judged by the standards of the nation, this film is not obscene.

    William J. Brennan, Jr.:

    [Inaudible]

    Ephraim London:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    And then secondly, the requirement of that — of the —

    Ephraim London:

    Yes this is a — this is a — not a requirement, Your Honor but the related question which has arisen in this Court two or three times, but is not yet been determined to my knowledge.

    William J. Brennan, Jr.:

    Well then, [Inaudible] of this Court that there’s — it’s not applied to national or international?

    Ephraim London:

    No, Your Honor, but I think we can go beyond the determination of the Court.

    They merely said that this film was obscene according to community standards and didn’t say what the community was.

    But if we look at the record, we will find that the only testimony that this picture offended community standards was testimony relating specifically to Cuyahoga County.

    The questions were asked about what the people in that county thought and felt and believed in relation to a film of this kind.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    These were critics who wrote and published in Cleveland in the same county.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    There was — there was a one lady from the national review, this and was not a national magazine.

    Potter Stewart:

    There’s a Hollywood writer who —

    Ephraim London:

    The Hollywood writer, Your Honor, I believe was those Mr. Hunt and Mr. Marsh were the two critics who testified other the critic from the national review.

    Potter Stewart:

    Well, is there a — is there not a —

    Byron R. White:

    The records — these facts also [Inaudible] —

    Potter Stewart:

    — film in review — films in review.

    Ephraim London:

    May I say for a moment, Your Honor, that I have taken exception to the publication of that particular review as an appendix to the brief from the ground that it had been offered in evidence and then withdrawn by the State.

    I thought it had no part of the appellee’s brief and I don’t think it ought to be considered by the Court.

    William J. Brennan, Jr.:

    [Inaudible]

    Ephraim London:

    Yes, Your Honor.

    There’s even a discussion in the record when there was an attempt to introduce evidence of standards in another area where the prosecutor made a point that the only relevant standards were the standards of Cuyahoga County.

    William J. Brennan, Jr.:

    But was — was — was there an express ruling of the Court?

    Ephraim London:

    No express ruling of the Court, Your Honor.

    I just say that this Court has of course an obligation to go into the record where the question is —

    William J. Brennan, Jr.:

    Well, I was just —

    Ephraim London:

    — is raised.

    William J. Brennan, Jr.:

    — just asking not — I had some trouble with these — trying to find out how this was an issue at all at the trial.

    Ephraim London:

    I think it was — it was made an issue at the trial, Your Honor because for one thing, all of the testimony that the prosecutor offered was testimony with respect to the local standards.

    I think the other testimony indicated and all the testimony of national standards that I have spoken of indicated that so far as the standards of the people at large were concerned, this was not an obscene film, that it had shown for example in a hundred major cities in the United States, and that in none of those cities had there been any objection to the showing of the film.

    Now, I should indicate that there were two or three cases where there was objection taken to the film.

    This happened in Oregon and this happened in Chicago.

    In both cases, the manager of the theater ultimately prevailed and the owner of the film.

    The film was shown without finally in the last analysis without further complaint.

    Arthur J. Goldberg:

    [Inaudible]

    Ephraim London:

    Your Honor, you do remember correctly, some half-minute of testimony was taken out of the version that showed in New York and Boston.

    It was licensed in New York with one half minute less.

    The witnesses who testified with respect to the two versions said they saw no difference.

    That is the only testimony with respect to those — to that change.

    And the point of fact, a half-minute change could make very little difference under the circumstances.

    Arthur J. Goldberg:

    [Inaudible]

    Ephraim London:

    Yes, I think at some three minutes that is objected to and it’s the — as I say the testimony was that there was no difference in reality between the two versions and the full version that was objected to here was shown in Chicago, was shown in Detroit, was shown in Michigan and was shown in many other places.

    William J. Brennan, Jr.:

    [Inaudible]

    Ephraim London:

    I think the issue was here in the evidence, on all of the evidence.

    William J. Brennan, Jr.:

    I know but you’ve got to have evidence — you have evidence on that part that you say each county — this was [Inaudible]

    Ephraim London:

    Yes Your Honor, you do have some witnesses —

    William J. Brennan, Jr.:

    I think that there are some of these evidences of the area outside of this county which did [Inaudible]

    Ephraim London:

    No, I think it was just mentioned just casually on cross-examination that there had been some difficulty in Oregon and ultimately, the owner of the film prevailed.

    William J. Brennan, Jr.:

    Well you — you’re argument was — I believe it’s on this record assuming it should have been a national census that on that record there was no basis in evidence for inclusion that on that community standards.

    Ephraim London:

    Yes, Your Honor, I would go further and say that the evidence was so overwhelming that it was not obscene that I think that we can take this and I have mentioned my reasons, the fact that it is shown in as many places as it was, I think is a pretty clear indication that the picture did not offend the standards in the cities that I’ve mentioned.

    Byron R. White:

    This community standards and arguments made then, isn’t in your [Inaudible]

    Ephraim London:

    The question of community standards was raised and I believe in a different way and I cannot speak of the argument because I wasn’t — I didn’t argue the appeal.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    The brief, I think, very clearly raises the issue of the matter of community standards, as to the appellants brief in the Supreme Court of Ohio.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    They too do not state but I don’t see what in the record they could have relied upon if they were going to find that this film violated the national standards of decency.

    Potter Stewart:

    After all the expert testimony is in, it’s up to the trier of the facts whether the trier be a jury or a judge or as in this case three judges to make its own determination, isn’t that true?

    And isn’t that inevitably going to be the local standard, certainly, it is with the jury?

    Ephraim London:

    Well, Your Honor that —

    Potter Stewart:

    You don’t draw it in the Cuyahoga County at Ohio.

    You don’t draw jurors from the Florida and California and Arkansas and Maine and Massachusetts.

    You draw them from the county.

    Ephraim London:

    That’s perfectly true, Your Honor, but it’s also true that this as it’s been said in this Court that this Court must itself make its own judgment with respect to obscenity and I don’t know how this Court could apply the standards of Cuyahoga County.

    Potter Stewart:

    But in the trial — in the trial, it’s inevitably going to be the standards of the place — where the place — where the case is tried, isn’t it?

    Ephraim London:

    That may very well be but to the extent that national standards would show us here that the film is not obscene, I think they must be applied.

    Byron R. White:

    What do you suggest, [Inaudible]

    Ephraim London:

    Yes, Your Honor.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    Yes, Your Honor.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    Well, one of the difficulties we have is that the test of obscenity or the determination of obscenity is a constitutional judgment that each judge must independently make as I understand the opinions in this Court.

    Byron R. White:

    What does your point amount to?

    Ephraim London:

    My point amounts to this that — that this —

    Byron R. White:

    [Inaudible]

    Ephraim London:

    And I am stating now that this Court, in making the judgment of obscenity, should apply the national standards of decency and that according to those standards, this film is not obscene.

    Potter Stewart:

    We are bound by the expert testimony.

    Ephraim London:

    I think you’re bound by the fact — by the evidence in the record, yes, Your Honor.

    I think that I would go so far as to say that even if you — in your personal judgment, you felt this was film obscene, you would still have or should rule.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    I wasn’t speaking about opinion evidence.

    I was speaking about fact, Your Honor.

    I was speaking on the fact of this film.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    The fact that this film has been shown in so many places and has been accepted.

    I think this is the fact.

    This is proof of community standards.

    I don’t know what stronger proof we could have.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    I think that this would have been inevitable.

    It was widely advertised.

    The police were aware of it in every community.

    There was no attempt to conceal the showing, not several as it was not done as an obscene thing.

    It was shown so that everyone could see it.

    Arthur J. Goldberg:

    [Inaudible]

    Ephraim London:

    No, Your Honor, I think — then you must still exercise your own judgment according to the decisions or the opinion of this Court.

    Arthur J. Goldberg:

    What’s the judgment?

    Ephraim London:

    The constitutional judgment would be to determine whether this is obscene within the standards that you have laid out.

    Arthur J. Goldberg:

    In obscenity?

    Ephraim London:

    Well, that’s just one because I believe that it’s possible for a film to have been thought obscene by a great many communities and yet this Court might consider the work of such value that you could not ban it as obscene.

    Potter Stewart:

    But you can’t conceive of the opposite situation?

    Ephraim London:

    No, Your Honor, I cannot.

    Potter Stewart:

    Why because of the —

    Ephraim London:

    Because according to the definition that you have laid out, this film is not obscene.

    Potter Stewart:

    Yes but it’s — do I understand you to say that in the end, it’s the judgment of this Court, the members of this Court or rather that the — in the end, the members of this Court are bound by what various communities have done or failed to do?

    Ephraim London:

    I’m saying in the last analysis is of course the judgment of this Court, but I also say that the Court should be guided by its own determinations in the past to the effect that the community standard should be applied and we have proof of community standards here in the actual exhibition.

    Arthur J. Goldberg:

    [Inaudible]

    Ephraim London:

    I didn’t indicate, Your Honor that they ought to be disregarded.

    I meant to indicate that they were not controlling, but there might be other factors that — this Court has outlined several criteria.

    The community standards is one, if in any respect, the film does not meet the criteria of obscenity then it is not obscene.

    Arthur J. Goldberg:

    Would you define now the standards that the first — the prior decisions of the Court, tells us about?

    Ephraim London:

    The standards are these — that the work must be judged as a whole.

    I’m not going to go into that but this film was not judged as a whole.

    Potter Stewart:

    That stand — that particular factor arose not from movie picture case but in the case of books and literature or something.

    Ephraim London:

    I would think Your Honor that the same apply.

    The criteria —

    Potter Stewart:

    But you would think that it hasn’t been held so —

    Ephraim London:

    No but I think that the Court has actually — I would change my answer, yes, Your Honor.

    It has been held so by this Court in Times — the first Times Film case against Chicago where the Court overruled a determination in Chicago on the grounds of the Roth case indicating that the Roth case did apply to motion picture films.

    Potter Stewart:

    But do you think that this is the use of extreme case that if you had an hour and half movie of Rebecca of Sunnybrook Farm and right in the middle of the film, three minutes of the hardest core filthy — filthiest pornography that’s imaginable, do you think you should then say, “Well, 98% of this was Rebecca of Sunnybrook Farm.”

    Ephraim London:

    No, Your Honor.

    I would say that film would finally have to be determined by its dominant effect.

    And if you went away from the film, feeling that it was a dirty picture then it would be an obscene picture.

    And if you went away felling that the dominant effect was the portrayal of Rebecca of Sunnybrook Farm that there were three minutes that were revolting, I would end up by saying that this was a — this was not an obscene film according to your judgment.

    Potter Stewart:

    But judging it as a whole is a —

    Ephraim London:

    That doesn’t mean that a particular part may not so —

    Potter Stewart:

    Dominate as a whole —

    Ephraim London:

    — and dominate the picture that it would not be judged but on — as it happened in this particular case, the Ohio Supreme Court found the picture as a whole is extremely dull.

    Earl Warren:

    Mr. London, did the trial — the trial court refuse to consider this picture as a whole?

    Ephraim London:

    We have no evidence of that, Your Honor.

    Earl Warren:

    May I ask if — if under your Ohio procedure, three-judge court of this kind is required to make findings to support its judgment.

    Ephraim London:

    I do not believe so.

    I don’t believe other than the opinion that they are required to do.

    Ephraim London:

    I may be mistaken about that.

    Earl Warren:

    Well then, how do you — how do you know what standard it did use?

    Ephraim London:

    From the evidence in the record Your Honor.

    Earl Warren:

    Only from — only from —

    Ephraim London:

    Only from the evidence.

    Earl Warren:

    — only reading the entire —

    Ephraim London:

    From the evidence in the record and from the — from the clear evidence to the contrary with respect to national standards.

    Earl Warren:

    But on the other hand, if you had chosen as you had the right to do to have a jury you could have had instructions on that subject that would have protected your right —

    Ephraim London:

    Yes, Your Honor.

    Earl Warren:

    — could you not?

    Ephraim London:

    We must take the record as we find it —

    Earl Warren:

    Yes.

    Ephraim London:

    Unfortunately, there was not a jury here and there were no specific instructions on that issue.

    We can tell about the mental operation of the judge but we do know the evidence we’ve had before them.

    Arthur J. Goldberg:

    With reference to the Chief Justice’s question, did you actually find it here [Inaudible]

    Yes, Your Honor, the Court unquestionably went through the recital of the — of the criteria outlined in Roth.

    They did not say that they were applying contemporary community standards of Cuyahoga County in the State of Ohio or the United States.

    That’s right and you also however said that they took the film as a whole, it means [Inaudible]

    Ephraim London:

    Yes, Your Honor.

    Arthur J. Goldberg:

    [Inaudible]

    Ephraim London:

    The reference that I made before was to the opinion of the Ohio Supreme Court.

    Arthur J. Goldberg:

    Now, in the trial court, the three-judge court, [Inaudible]

    Ephraim London:

    Yes, Your Honor, they recited the test.

    Arthur J. Goldberg:

    [Inaudible]

    Ephraim London:

    Accepting Your Honor, I submit, that they could not have met the test with respect to community standards.

    Arthur J. Goldberg:

    That’s right although they did not talk about their definition of community, you say [Inaudible]

    Ephraim London:

    Yes, there’s no contraction of that evidence.

    Arthur J. Goldberg:

    Now, when people who testified the film was offensive [Inaudible] United States citizen.

    Ephraim London:

    We do in this record, Your Honor.

    I have recited the — and shown wherein each witnesses testimony this question of the community was stressed and the community was that of the Cuyahoga County.

    Ephraim London:

    They were not talking now then of national standards.

    Hugo L. Black:

    But when you refer to national standards, community standards — you seem to refer to it as synonymous.

    What do you understand by community standard?

    Ephraim London:

    I understand the term that the Court used when it meant community standards was this nation, the people of this country.

    And now they —

    Hugo L. Black:

    The whole country by community —

    Ephraim London:

    Not the people of each state, not the people of each locality because I think that if we were to determine — use the standards of a particular locality, we would be imposing such a burden on communication that it would make it almost impossible to publish periodicals, books and even films.

    You can’t make a separate film or separate version of the film for Cuyahoga County but you can make —

    Tom C. Clark:

    You think anybody in that county would be able to tell you what the standard is in San Francisco?

    Ephraim London:

    This can be proved by other means as I think they were here.

    William J. Brennan, Jr.:

    Mr. London, if you are right, that there are [Inaudible]

    Ephraim London:

    May I call Your Honor’s attention of the fact there was a dissenting opinion in the companion case, the Alberts case which indicated that different standards should be applied when the Court was ruling on a determination made by a state and I assume that because it was in dissent that the majority of the Court was of the other view and —

    John M. Harlan II:

    (Voice Overlap) assumptions sometimes.

    Ephraim London:

    It may have been.

    William O. Douglas:

    It’s a pretty good one in that case though, was it?

    Ephraim London:

    Well, this was my own interpretation and I’m pleased that Your Honor agrees.

    Thank you.

    John M. Harlan II:

    Can I ask you a practical question?

    You tried a lot of these cases?

    Ephraim London:

    Yes, Your Honor.

    John M. Harlan II:

    Would you rather come before a jury or before a court?

    Ephraim London:

    Always before a jury, Your Honor.

    John M. Harlan II:

    Really?

    Ephraim London:

    Yes.

    John M. Harlan II:

    That’s your point.

    Potter Stewart:

    Who asked to waive the jury in this case?

    You weren’t at the trial.

    Ephraim London:

    No, I was not the trial counsel.

    [Inaudible]

    Ephraim London:

    Well, the Court has indicated that it was a mistake and I would myself feel that I prefer the jury and I prefer the jury to have a precise charge from the judge as to what controlling law is and I believe in the jury system.

    Ephraim London:

    I very much prefer the jury and I would think that my experience in this field is perhaps been wider than that of anybody else in United States.

    Byron R. White:

    [Inaudible]

    Ephraim London:

    This has been —

    Byron R. White:

    [Inaudible]

    Ephraim London:

    Yes, this is of necessity and inaccurate statement, Your Honor, but my informed guess is about 30.

    Byron R. White:

    [Inaudible] at the trial?

    Ephraim London:

    Yes, Your Honor.

    Again, I couldn’t verify this.

    I can and I think I —

    Byron R. White:

    [Inaudible]

    Ephraim London:

    Three, Your Honor, but as I say in all cases, the owner of the film prevailed.

    I should in candor indicate that there is one state where the picture was offered for license where the — a change was demanded which the owner of the film refused to make and so the film did not show in that state.

    I believe that was Virginia, but that of course is not —

    William J. Brennan, Jr.:

    Is there any case whether [Inaudible]

    Ephraim London:

    The only one is that I indicated before of something like 191 feet, a half minute about 31 seconds of actual playing time which was removed from the New York version and I believe also from the Boston version.

    Thereafter, the owner of the film decided he would not make any concession.

    And —

    Byron R. White:

    [Inaudible]

    Ephraim London:

    No any, not even that one and to my knowledge he did not.

    William J. Brennan, Jr.:

    It was a full version.

    Ephraim London:

    It was a full version that played all over in Ohio.

    Hugo L. Black:

    Mr. London, I was interested naturally in your statement about the jury and I was also interested in your further statement after a precise charge given by the court, paraphrasing the sentence that came into some disputes some years ago as soon as circumstances will permit, I presume you mean as precise as the circumstances permit.

    Ephraim London:

    As précised as the circumstances permit, I think that the Court has agreed that this is of necessity of vague definition.

    William J. Brennan, Jr.:

    Does it matter Mr. London, I gather from the [Inaudible]

    Ephraim London:

    They seemed to be using a combination of both and the most recent one that was proposed in Texas.

    On this very question of community standards indicated that they would have to use community standards with the standards of the community, that the word “community” would mean an area not less than the State of Texas.

    Hugo L. Black:

    What statement [Inaudible]

    Ephraim London:

    It was — there was a prosecution in Portland, Oregon which as I say was ultimately unsuccessful.

    There was a prosecution in — or there was refusal to license in Chicago that was ultimately reversed and then there was the prosecution in Ohio.

    Earl Warren:

    Does Chicago — Chicago permitted them to run?

    Ephraim London:

    Yes, Your Honor.

    This film was shown in Chicago in the full version and I think the Court may perhaps take judicial notice that the regulations in Chicago are more stringent than they are in most of the states.

    There was a specific finding of — most of the cities, I’m sorry, there was a specific finding in the ruling by the local board that this film is not obscene under the Chicago limits.

    John M. Harlan II:

    Was it shown in the District of Columbia?

    Ephraim London:

    Oh yes, Your Honor.

    This is one of the places that was named in the testimony.

    William J. Brennan, Jr.:

    There’s not much [Inaudible]

    Ephraim London:

    No, there isn’t any that I know of.

    Tom C. Clark:

    Could you say that one court tries the case on that fair charge of law and so forth and reach to the conclusion?

    The question is barred then by res judicata thereafter throughout the nation.

    Ephraim London:

    No, Your Honor.

    I wouldn’t say that.

    I do think though that the determination by the Customs Bureau had some effect.

    Hugo L. Black:

    Had what?

    Ephraim London:

    Had some effect and I think that they are certainly — they must have been attempting to use the national standards of decency.

    Thank you.

    Earl Warren:

    We’ll recess now Mr. — Mr. Corrigan.

    John T. Corrigan:

    Mr. Chief Justice, Associate Justices, may it please the Court.

    At the outset, may I address my remarks in part to the reply brief filed by the appellant wherein he sets forth the fact that in the Appendix 12 of my brief, that therein is cited a case which has been reversed.

    That statement is correct.

    That case has been reversed on appeal and reversed for the reason stated in the reply brief of the appellant, namely that the procedure employed was not in keeping with the Roth case.

    The improper standards were implied — employed in that particular instance.

    I wish to point out to the Court however, that while I take the responsibility for citing that case, unfortunately, the two assistants that have — that in this case up until this time are no longer in the prosecuting attorney’s office, one of them having gone on to the Assistant District Attorney’s Office and the other having since passed away.

    With regard to the other Appendix to which —

    Earl Warren:

    In that case may I ask, Mr. Corrigan —

    John T. Corrigan:

    Yes sir.

    Earl Warren:

    Was that a jury case, that other one was reversed?

    John T. Corrigan:

    No, Your Honor, it was not.

    Earl Warren:

    It was not.

    One of these three-judge courts —

    John T. Corrigan:

    I beg your pardon.

    Earl Warren:

    Was it one of these three-judge courts like this one —

    John T. Corrigan:

    No, apparently that was a one man court.

    Potter Stewart:

    Judge — Federal District Judge Campbell in Chicago.

    Earl Warren:

    That was a federal court.

    John T. Corrigan:

    That was in the federal court, Campbell, Your Honor.

    Earl Warren:

    Oh! I see, yes.

    There is one pending is it not in your — no, I’m thinking of another case, I’m sorry.

    John T. Corrigan:

    With respect to the other appendices that the appellant takes objection to in his reply brief, may I point out that these appendices where before this Court previously in the brief supporting the motion to dismiss, and that these appendices are the subject of testimony of the several witnesses that appear in the transcript of the record that is before the Court.

    I think that they are properly before the Court.

    Now, with regard to the factual situation in this case; the case in the first instance came on for a hearing by the Common Pleas Court by virtue of the fact that a grand jury had returned an indictment after viewing the movie.

    Under the Ohio law, the defendant was entitled to a trial by jury or a waiver of the same or in the discretion of the Court, a trial by a three-man court if application was made for such a trial.

    In this instance, an application was made for a trial before a three-man court and that motion was granted.

    The trial court viewed the movie as did the Court of Appeals, as did the Supreme Court ultimately in passing judgment on the question of obscenity.

    Under the Ohio law, it is not necessary that the Court, in rendering its verdict, set forth an opinion or a conclusion of law or a fact.

    However, in this instance, the trial court did set forth an opinion which opinion almost in toto was reiterated by the Court of Appeals and by the Supreme Court.

    In that opinion, the Court will note that the trial court was cognizant of and did employ the standards set forth in the Roth case.

    Now, with respect to the movie itself; it was not contended by the State nor is it contended here that we object to one portion of the movie but rather that we object to the movie in its entirety.

    And as the Court did employ the standard set forth in the Roth case, we ask that the standards be set forth in the review in this particular instance.

    In the movie, as the expert witnesses had testified, the fourth version — portion of the movie was devoted to setting the stage as it were for the climax.

    And the climax was one wherein a young married woman, mother of a child for some reason or another, unhappy with her husband’s failing to manifest any affection or attention toward her, she picked up with a relative stranger and after a brief dinner engagement in their home in this particular evening, and after she had retired for the evening, she went out into a garden on the front of the house dressed in a negligee, met this young man and they then proceeded to go for a ride in a boat in a lake in the immediate vicinity of the house.

    And in the boat, there was much arduous lovemaking after which the two returned to the house.

    She returned to the upper portion of the house, she kissed her young daughter good night for the evening and then returned to her bedroom.

    And the scene then shows the negligee being removed from the upper portion of her body and dropping to the floor.

    And then she in turn, removing the clothing of the young gentleman and these being dropped to the floor.

    The scene then moves to the bedroom wherein the upper portion of her body is exposed as is his and the scene depicts him laying on top of this young lady engaged in arduous embrace.

    And after a period of this lovemaking, he then disappears and she is seen on the screen and as the expert witnesses testified, experiencing an orgasm and leaving no other inference but that the young man is then engaged in cunnilinguis.

    After this is completed, the young couple continued to spend the balance of the night sleeping together in the bed.

    In the morning, she leaves the bed and retires to the bathroom for the purpose of taking a bath and she is in the bathtub leaving no other imprints but that she is variably nude and then the young gentlemen proceeds to get in the bathtub with her and they bathe together.

    Then the movie quickly winds up with the two of them dressing, and before that I might add, he wears a gown and at which time he opens the gown and invites her to come inside the gown with him and there they engage in an embrace.

    John T. Corrigan:

    Subsequently, they dress and they are on their way leaving all behind.

    Your Honors, in this case, the contention is made that 2905.34, as interpreted when the appellant was tried, violates the constitutional guarantees of the First and the Fourteenth Amendment.

    The defense argues that the Mapp case which was before this Court, I might add that the Mapp case being before this Court was reversed for other reasons that of violating due process because of an unlawful, unreasonable search and seizure, but then in the Mapp case before the State of Ohio, the Court held that scienter was necessary and the defense contends that in that case, that culpable intent or mens rea was not required.

    I argue that the Mapp case is distinguished from the present case and that in the Mapp case we were concerned with mere knowing possession.

    And I might point out that in that case, that case did not preclude the application of the Ohio statute to an instance or into a fact situation wherein there is a possession for commercial purposes, a possession for exhibition as is the case in this instance.

    Just — Judge Herbert in that case pointed out specifically in his dissent that he would not have any court or whatever for the defendant if there was evidence of commercialization in that instance.

    In the instant case, we find that the defendant had no inquisition.

    We find that he had exhibited the movie to critics.

    This by admission in the record that there had been three showings before the film was confiscated and the arrest was effective.

    Further, the evidence showed that he had the benefit of reading the reviews local and otherwise that had pointed out at least with respect to the local reviews that are in the opinion of those reviewers, this movie was obscene.

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

    Mere possession as possibly was the case in the Mapp case, mere knowing possession might well be lawful.

    Certainly, it is not the intent of the law to hold unlawful the possession knowingly of obscene material by a prosecutor, a judge or a jury or a psychiatrist holding the same pretty lawful purpose namely to affect the prosecution there under.

    In the Alberts versus California, this Court held that a state statute was constitutional for lewdly keeping for sale obscene materials, so I submit that much more so, the constitutionality of the Ohio statute should be upheld for it knowingly, or prohibits rather the knowing possession and control for exhibition of an obscene motion picture film.

    I submit that a conviction there under for knowingly possessing and controlling the obscenity, for the purpose of exhibition and the actual exhibition is and should be a sustainable statute.

    The prevailing and authorative interpretation of the Ohio statute is to be found in State versus Jacobellis and State versus Wetzel, 173 Ohio State and then in these two cases, the facts are specifically in point whereas in the Mapp case, the Mapp is generally in point.

    Potter Stewart:

    Now, the first thing you mentioned is this very case, is that right?

    John T. Corrigan:

    That’s right.

    Potter Stewart:

    And the Wetzel case that antedate or come after this case?

    John T. Corrigan:

    The Wetzel case was tried and heard on the same day in the Ohio State Supreme Court, Your Honor and in the Wetzel case, a conviction was had in the trial level.

    The Court of Appeals reversed and then the Supreme Court considered the Wetzel case along with the Jacobellis case and affirmed the conviction of the Common Pleas Court.

    Potter Stewart:

    So while as you say, the Ohio is now clear.

    It wasn’t clear at the time of the trial of this case, was it?

    As of that time, the rule was the rule of the State against Mapp, is that correct?

    John T. Corrigan:

    As applied to the facts of the State against Mapp.

    Potter Stewart:

    Well —

    John T. Corrigan:

    Not in the facts of the state of — the ruling in the State against Mapp did not preclude a different interpretation with different facts namely facts that embodied the possession for commercial purposes.

    Potter Stewart:

    The State against Mapp held that mere knowing possession of obscene material was a criminal offense under that statue.

    John T. Corrigan:

    That is right, Your Honor.

    Potter Stewart:

    In other words, if somebody just found something in the street and picked it up and saw it was obscene, he would at that moment be guilty of an offense under the statute as construed in the State against Mapp, isn’t that correct?

    John T. Corrigan:

    Yes, Your Honor, however —

    Potter Stewart:

    And that it was in that state of the law that this case was tried, is that right?

    John T. Corrigan:

    That is correct, Your Honor.

    However, may I point out this, that in the Mapp case, there were five judges that found the Constitution or found the statute as so construed to be unconstitutional, nevertheless, under the Ohio law, it is necessary that six out of the seven must find the law to be unconstitutional when the appeal is taken from the lower court in order to affect that unconstitutional finding.

    But I submit Your Honor that in the Mapp case, there was the mere knowing possession as opposed to the possession for commercialization or purposes of exhibition.

    The appellant argues that the State —

    Potter Stewart:

    This was the conviction on — this was the conviction on both counts, wasn’t it, on possession and on exhibition?

    John T. Corrigan:

    That is right, Your Honor.

    Potter Stewart:

    And where the sentences imposed on each count?

    John T. Corrigan:

    Yes the one — in the first count, I believe, the sentence was $500.

    This statute provides for an imprisonment or a money fine or both.

    I believe on the first count, the fine was $500.

    On the second count it was $1,500, the maximum being —

    Potter Stewart:

    Seven years?

    John T. Corrigan:

    $2000 on each count.

    Potter Stewart:

    Or seven years in the penitentiary on each count?

    John T. Corrigan:

    One to seven years, indeterminate sentences, Your Honor.

    The Court is not empowered to — of sentence specifically the number of years.

    Might I point out in that connection also and this is raised in the amicus curiae brief that there is one offense in two sentences.

    I would like to point out to the Court that these are separate and distinct offenses much the same as the offense of involving narcotics for example, the possession for sale and the sale.

    They are separately indictable, they are separately triable and one is not a — trial of one is not a bar to the trial of another.

    I might point out that this contention is raised by the amicus curiae and I think that is a proper — improper contention.

    Arthur J. Goldberg:

    Mr. Corrigan, you described a [Inaudible]

    John T. Corrigan:

    Yes, Your Honor.

    The dominant theme as taken as a whole is obscene and without the last portion of the same, the fore portion becomes meaningless.

    It becomes dribbled as is pointed out in the testimony by the several witnesses put on by the State.

    Arthur J. Goldberg:

    [Inaudible]

    John T. Corrigan:

    Then I submit, Your Honor, you would have nothing.

    Arthur J. Goldberg:

    [Inaudible] it’s going to be alright?

    John T. Corrigan:

    It would be perfectly all right if you were to take out that scene.

    John T. Corrigan:

    It would have nothing that would be appealing to anyone.

    For the meaningless picture, it would have no purpose and it would have no commercial purpose thereafter.

    There would be nothing to appeal to the viewing public.

    It would be a movie if you please that would lead you to a certain point and it will just leave you hanging high and dry.

    Potter Stewart:

    This movie has won some prizes in Cannes in Brazil.

    Do you think those prizes were given purely on the basis of this three-minute sequence?

    John T. Corrigan:

    I beg your pardon, Your Honor?

    Potter Stewart:

    This movie has won some prizes by — on it’s — based on its artistic merit.

    Do you think those prizes were awarded purely on this three-minute objectionable sequence?

    John T. Corrigan:

    I cannot pass judgment as to why the prizes were awarded, what standards were used, I have no knowledge of that, Your Honor.

    Potter Stewart:

    But it’s your view that without these three minutes which you say is criminal that the movie would be entirely without value for — of any kind.

    John T. Corrigan:

    For any purpose.

    Potter Stewart:

    For artistic otherwise.

    John T. Corrigan:

    The three minutes is dependent upon that which comes before and that which comes before and certainly is dependent upon the — the climax that is reached in the last portion of the movie.

    Three or four minutes, I don’t know specifically time wise, just how much time there is.

    Byron R. White:

    Now, this three minutes you say is [Inaudible]

    John T. Corrigan:

    Yes, Your Honor.

    William J. Brennan, Jr.:

    I thought you considered this — that it provides —

    John T. Corrigan:

    I beg your pardon?

    William J. Brennan, Jr.:

    You said, it provides the [Inaudible]

    John T. Corrigan:

    It adds to it.

    It is part of it.

    William J. Brennan, Jr.:

    [Inaudible] I gather — I thought you were arguing it.

    John T. Corrigan:

    That which happens, Your Honor —

    William J. Brennan, Jr.:

    You only find the dominant theme in these —

    John T. Corrigan:

    Oh no.

    No, no.

    Oh no, the dominant theme begins at the very beginning when the characters were identified and when their relationship one to another as made known.

    And when the scenes that follow that which set the stage for what comes ultimately, this are part of the dominant theme.

    Arthur J. Goldberg:

    [Inaudible]

    John T. Corrigan:

    Would I permit it?

    Arthur J. Goldberg:

    [Inaudible]

    John T. Corrigan:

    To my knowledge, it was not shown in the Greater Cleveland area.

    There is no law that would prohibit it being shown other than a post-criminal action if a finding was made by a grand jury that the same was indictable.

    William O. Douglas:

    Was there any prosecution for that — showing that film?

    John T. Corrigan:

    To my knowledge, it was not shown on the Greater Cleveland area, Your Honor.

    It may well have been, however.

    There was no prosecution in any event.

    William O. Douglas:

    How many prosecutions of this kind have there been in the Cleveland area?

    John T. Corrigan:

    Of this kind, specifically, I would say that we’ve had one other involving a movie.

    This was appealed to the Ohio State Supreme Court and not beyond that, maybe that case is State versus Juvera, the constitutionality of this section was upheld in that instance.

    And these are the only two cases to my knowledge wherein a motion picture film has been the subject of the prosecution in the Greater Cleveland area.

    Now, this same film, Your Honor, was the subject of a prosecution in Dayton, Ohio, predicated on a misdemeanor statute and a conviction was had, a finding was made by a jury that it was obscene.

    However, on appeal, the Supreme Court reversed that decision and the basis of the Smith case namely that that misdemeanor section did not provide scienter and therefore reversed it.

    However, there was the conviction in fact by jury on the same movie.

    In that same connection, the appellant contends that this movie has been shown in a number of jurisdictions.

    In the record, we have evidence of the fact that it was not the same movie in New York, not the same movie in Boston.

    The movie was precluded from being shown in Virginia and in Maryland until it was presented to a board and I do not know what the fact is with respect to it being shown in a hundred other jurisdictions.

    William O. Douglas:

    And I gather that this judgment of conviction is the only award it has received in Ohio.

    John T. Corrigan:

    That is right Your Honor, to my knowledge.

    Arthur J. Goldberg:

    [Inaudible]

    John T. Corrigan:

    This wasn’t a film given a commercial name, as I recall.

    It was a series of pictures that were in a Nickelodeon type picture machine and my recollection is that by putting in a quarter, you receive three minutes and another quarter three more minutes and so on.

    And it was that entire series that they became the subject to that litigation.

    Arthur J. Goldberg:

    Not commercial.

    John T. Corrigan:

    I beg your pardon?

    Arthur J. Goldberg:

    Not a commercial —

    John T. Corrigan:

    Not a commercial movie as such.

    The appellant in connection with the question of mens rea or guilty mind, or guilty purpose cites and supports thereof Screws versus the United States.

    And he contends that in that instance, the Supreme Court in adding the word “willful” that they had then gave meaning to what was a vague statute.

    John T. Corrigan:

    And the defendant, because of being prosecuted on a vague statute, was denied due process.

    The facts of that case are these; that that statute in substance made a decline for one under the color of office or authority to willfully deny another his right of due process.

    The statute specifically provided for the element of willfulness.

    The Court in that case did not instruct the jury on the element of willfulness and on that basis alone, certainly, the — the decision should have been reversed for due process was denied the defendant.

    The Court, however, did point out that the term “willful” in that statute gave the statute more meaning, it made it more definitive.

    So also, I contend that in the Ohio statute, when we have the word “knowingly” and then when the Court further requires as an inescapable part of the scienter, the element of mens rea, then I say that we have made the Ohio statute as definite as can be made in the attack that the same as vague should be dismissed.

    I might point out that the contention is made that the trial court did not have in mind at the time that it rendered its decision, the element of mens rea.

    In the decision of the trial court, you will find that the Court found that the acts of the defendant unlawfully and knowingly possessing for purposes of exhibition a motion picture film.

    The term “unlawfully” certainly connotes the element of guilty mind or guilty person in the mind of the trier of the fact when they use that term.

    Potter Stewart:

    Well, it connotes that only if that’s an element of the crime as a matter of state law and State against Mapp had held that it was not.

    John T. Corrigan:

    It is not spelled out in the statute.

    Potter Stewart:

    And State against Mapp held that it was unlawful even without that.

    So that in the word “unlawfully” doesn’t —

    John T. Corrigan:

    As applied to the facts into the Mapp case, Your Honor.

    Potter Stewart:

    The word “unlawful” doesn’t add or attract anything because that merely refers you to the law whatever it may be.

    In State against Mapp, it said that guilty not — guilty purpose was not a necessary ingredient of the offense as a matter of the law.

    John T. Corrigan:

    The defendant relies further in this area on the case of James versus the United States.

    In James versus the United States, the defendant was convicted of failing to report as taxable income funds which were embezzled.

    And the defendant presumably was relying on a prior decision of this Court entitled — in Commission versus Wilcox where this Court specifically held that embezzled funds were not taxable income.

    In as much as this was the law at that particular time, the defendant if I may use the term “sandbag” into believing that this was the law and therefore did not report this income.

    And this Court held that he could not be charged with willfulness because of the fact that he was relying on that which was then the announced law of this Court and of this land.

    I think that this case is distinguished from the case at bar and that I contend that no case, no court as well as the Mapp case said that mens rea or guilty purpose or guilty mind is not an element in a possession for the purpose of exhibition and the actual exhibition of a motion picture film.

    I contend that the appellant’s possession in this instance was not in their private possession.

    And in order to make effective, the prohibition against commercialization against selling, against giving, against lending, against exhibiting as is provided for in 2905.34 and since the instant case does involve the possession for exhibiting, then in determining the validity of the statute, it should be determined in the light of these facts and not some mere — some non-existent mere possession.

    The facts here are that the defendant held private showings for the critics.

    He had three showings before the arrest was affected, he placed the ads in the newspapers, he had counseled with the police officer with respect to the propriety of showing the same and thereafter, the advertising continued and he again showed it the next evening.

    In the Mapp case, we’re concerned with the privacy of her own home and the material therein.

    John M. Harlan II:

    Your Supreme Court construed the statute in relation to [Inaudible]

    John T. Corrigan:

    Yes, Your Honor.

    John M. Harlan II:

    [Inaudible]

    John T. Corrigan:

    It was another —

    John M. Harlan II:

    They found it in — in that?

    John T. Corrigan:

    They found that there was mens rea, yes, Your Honor.

    John M. Harlan II:

    The statute required them.

    John T. Corrigan:

    They said that it was inescapable — inescapably a portion of scienter.

    John M. Harlan II:

    But the trial court decides — at the time it decided the case, the three-judge court found that the law was uncertain at least at that time.

    John T. Corrigan:

    I will not admit to the fact that it was uncertain.

    I will say that they saw the Mapp —

    John M. Harlan II:

    You have to do some synthetic argument though to say the law was clear, but frankly it was not —

    John T. Corrigan:

    No, I won’t subscribe to that, Your Honor.

    They have the facts of the Mapp case and the interpretation under those facts and how we’ve got different facts and interpreting under different facts.

    They did not exclude mens rea.

    And in the Mapp case, I might point out that Justice Herbert specifically said that I would have no quarter or whatever for the defendant if there was evidence that this was a commercialization or a possession for commercial purposes.

    In point two, the appellant argues and I must quickly move through this one that the statute should be void in its entirety.

    For the first time, now, we have the entire statute being the subject of concern.

    I submit that this was not properly raised in the jurisdictional statement.

    It was not before the lower courts, and in general, may I say that the rule of law that the Court — the constitutionality of the statute should not be tested and the abstract should be employed in this particular instance.

    Only the legal rights of the litigant should be adjudicated.

    However, out of an abundance of caution, I’ll point up that the appellant contends that in this case there are exceptions that are applicable.

    He points out for example that the statute is unconstitutional in a majority of its intended applications.

    He then speculates and engages in conjecture and says that the statute has already been declared unconstitutional in the vast majority of its intended application.

    This statute, I submit, has not been found unconstitutional in any application.

    He goes down to say that where the statute would have an inhibitory effect on expression that then the Court should look into the statute in its entirety.

    And he cites to support this position, the Smith case, the Smith case is distinguished by virtue of the fact that it lacks scienter.

    We have scienter in this instance.

    He cites the Thornhill case, this case is distinguished because the framing in that instance against the defendant was generally and not specifically.

    In conclusion, may I ask the Court to consider the constitutionality of this statute in light of the facts in this case?

    Thank you.