Jacobellis v. Ohio

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

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

Ephraim London - argued and reargued or the appellant
John T. Corrigan - argued and reargued for the appellee

Facts of the case


Media for Jacobellis v. Ohio

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.