Kaplan v. California

RESPONDENT: California
LOCATION: Allegheny County District Court

DOCKET NO.: 71-1422
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: State appellate court

CITATION: 413 US 115 (1973)
ARGUED: Oct 19, 1972
DECIDED: Jun 21, 1973

Stanley Fleishman - for petitioner
Ward Glen McConnell - for respondent

Facts of the case


Media for Kaplan v. California

Audio Transcription for Oral Argument - October 19, 1972 in Kaplan v. California

Warren E. Burger:

We’ll hear arguments next in number 71-1422, Kaplan against California.

Mr. Fleishman--

Stanley Fleishman:

Mr. Chief Justice and may it please the Court.

Petitioner, Murry Kaplan, a bookseller, has been branded by the State of California as a criminal for selling a book, a sexy book, to an adult who asked for a good sexy book.

For doing so Mr. Kaplan has been placed under probation for three years on condition that he’d spend 30 days in jail and that he pay a fine of $1,000.

Initially, I would like to point out what is not involved in this case.

We do not have, in this case, any issue of sale to or exhibition to minors.

We do not have, in this case, any upfront to the sensibilities of adults or anyone else.

We have no shock.

We have no fighting words.

We have, to put it simply, pure communication, a sale of a book to an adult.

The facts are not in dispute at all.

On May 14, 1969, Mr. Donald Schidel, a police officer with 16.5 years of experience, came to petitioner’s bookshop.

It’s an adult bookshop.

There were some-250 of them in the City of Los Angeles at that time.

Mr. Schidel was browsing around for about 30 or 40 minutes when the petitioner said “this is not a library.

Can I help you?”

It was at that point where Mr. Schidel said “Do you have any good sexy books?” and petitioner said “all our books are sexy.”

Then he said “I want a good paperback book, something really good.”

Petitioner said, “hey, I’m reading one now, Suite 69” and he read him a portion of pages 84 and 85 which I may say, parenthetically, are pale.

The words are pale by comparison to Henry Miller’s “Topic of Cancer” found not obscene by this Court a long time ago.

After reading the passages to the officer, he parted for $1.69-- $1.95, and that’s the entire transaction.

Now, from the beginning, the petitioner here urged that his conduct could not be punished constitutionally, that he didn’t do anything that offended the state in any fashion by selling this book to this adult under these circumstances.

Our basic claim here, Your Honors, is one that has, not to my knowledge, been posed quite this way before although, certainly, we have posed it differently on other occasions.

Our claim here is that an adult in America has an absolute right, and I know that absolute rights are not many but I believe that this is one of the few absolute rights that we have, an absolute right to read anything he wants to read even if it has no social value, even if it appeals to the prurient interest of the average person, and even if it may be thought to be patently offensive by others.

Potter Stewart:

But this-- your client wasn’t convicted for reading something, was he?

Stanley Fleishman:

My client asserts the right to defend the right to read, Your Honor.

My client claims a derivative right.

We say that if in fact an adult has this absolute right to read, then the bookseller has the right to assert the right to read in exactly the same fashion that Mr. Baird was given standing to assert the right of the unmarried woman who wanted to obtain a contraceptive.

We do not claim that petitioner or bookseller has the right to sell an obscene book.