Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri

PETITIONER:Marcus
RESPONDENT:Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri
LOCATION:United States District Court for the Eastern District of New York

DOCKET NO.: 225
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 367 US 717 (1961)
ARGUED: Mar 30, 1961
DECIDED: Jun 19, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – March 30, 1961 in Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri

Earl Warren:

Number 225, William Marcus et al., Appellants, versus Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, et al.

Mr. Glazer.

Sidney M. Glazer:

May it please the Court.

This case is an appeal from a decision of the — of Missouri Supreme Court.

And it presents the questions of the — literally of this Missouri scheme for dealing with the seizure of alleged obscene material raising the question whether the Missouri statutes, in allowing the seizure of alleged obscene material prior to any judicial determination, that the material is in fact obscene, whether or not that constitutes a violation of the freedom of speech and press clauses of the Federal Constitution and whether the application of the Missouri statutes by allowing police officers to go forth under a general warrant authorizing them to go to six distributors of publications and seize all obscene matter, and to describe as all obscene matter, whether that also is an unconstitutional violation of the freedom of speech and press clause.

The other question presented is whether or not the publications condemned in this particular case or ever condemned by a constitutional test of obscenity.

Now, this Court has noted — has postponed the jurisdictional question to the hearing on the merits.

And the first — I shall first get into the statutory scheme and then the particular facts to this case and then discuss the jurisdictional question.

The statutes involved, they are set forth on page 35 of appellants’ brief.

Section 542.380 of the Missouri statutes provide that upon a complaint under oath by — in writing an essence to a judge that certain scribed property is being kept that the judge, if he finds reasonable grounds, may issue a search warrant for the described property.

And then, the Section further provides, at paragraph (1) that ceratin gambling paraphernalia might be seized, we’re not concern with that.

And in paragraph (2), which is set out on page 36, it provides that obscene articles which were kept for the purposes of sale distribution or circulation may be seized.

Then in paragraph (3), another part, we’re not concern with here, it deals with contraceptive devices.

In paragraph (4), which has an incidental bearing on the case, it — it allows not only the seizure of say obscene material but any material used to manufacture say this — any alleged obscene material.

The other provisions of the statutes provide that the warrant shall describe the articles to be seized and that the person from whom the article is seized shall have notice, that the officer who seizes the material shall retain in his possession until after a hearing and that the judge issuing a warrant shall hold a hearing to determine whether or not these items should be seized.

Now, in addition — now and then finally if, after a hearing, these items are found to be obscene, their destruction may be ordered or they may be held for purposes of criminal prosecution and then the destruction ordered.

Potter Stewart:

Under subparagraph (4), I suppose a printing press could be seized at the State.

Sidney M. Glazer:

Yes, Your Honor.

I think that’s broad enough to include a printing press if it was manufacturing alleged obscene material.

Now, in addition to the statutory scheme, the Missouri Supreme Court has promulgated rules under the Missouri Constitution.

It has that right providing the rules only deal works as procedure.

Now, it has promulgated Rule 33, and it’s — which is set out on page 38 of the appellants’ brief.

Under this rule, it set — it sets forth requirements of a complaint for a search warrant.

And it says that a — such a complaint may issue if — if there is, in certain premises, personal property, if — whose seizure is authorized by statute.

And it provides two conditions under which such a complaint may issue.

Number one, if the complaint is verified under oath and it states fact positively and not upon information and belief, the judge must issue a search warrant.

However, if it states evidential facts, then the judge must find probable cause.

Now, in the — in this particular case, the facts are these.

It goes back to 1957.

And on October the 8th, 1957, a police officer went to the wholesale distributor, and he spoke to the wholesale distributor and apparently must have looked over what the wholesale distributor, what sort of magazines this distributor was — was distributing this entire stock.

Sidney M. Glazer:

This distributor was the principle magazine distributor in — in Greater Kansas City.

Then on October the 9th, he went to the five retail newsstands involved.

And on each of the five newsstands, he purchased one magazine.

Now, it so happens that there were — he purchased actually three different magazines in all.

In other words, there were some duplications of — of what he purchased.

Then on the next day, he went and he filed a complaint.

And that complaint — they are all alike, and it was stipulated that they are all alike except for differences in name, and that complaint is set out on page two of the record.

Now, all that complaint states is that on October the 10th, 1957, the police officer, and — he describes the premises.

There is no argument about the description on the premises being alright.

That certain persons have kept, and this complaint goes — follows the wording of the Missouri statute, Section 542.380, have kept for the purposes of selling, publishing, exhibiting and giving away obscene books, and then it goes — follows the entire wording of the statute obscene, lewd, licentious, indecent and lascivious books.

That’s all the complaint state — stated and that was — each of the six complaints were identical except they had different descriptions of the new — of the newsstand and wholesale distributor to be searched.

But they all describe what was being possessed in the same general terms of obscene.

Then, he presented this to the — a trial judge in the Circuit Court of Jackson County.

The judge heard no evidence.

He presented no magazines to the judge.

All he presented to the judge were these complaints.

So, the judge —

John M. Harlan II:

Was the distributing company’s premises searched to?

Sidney M. Glazer:

Yes.

The wholesale distributor was also searched.

John M. Harlan II:

What are they — what do they distribute?

Sidney M. Glazer:

They distribute all types of magazines to the Greater Kansas City area.

John M. Harlan II:

Newspapers?

Sidney M. Glazer:

The record doesn’t show whether they distribute newspapers, Your Honor.

They distribute — I know —

John M. Harlan II:

(Voice Overlap) — know the conventional magazine?

Sidney M. Glazer:

Yes, lifetime — any — they distribute salary-composed — I mean, those were in seized, but they distribute it.

Now, whether they also distributed some types of newspapers, I do not know, and the record doesn’t indicate.

This is the major magazine distributor in Kansas City.

Now, then, the judge, just acting on these complaints, issued the search warrant, which is set out on page three of the record.

Sidney M. Glazer:

And this search warrant was directed not to the police officer, this is little wired thing, not to the police officer who even filed the complaint and who had visited the newsstand, that was directed to any peace officer.

And the — the search warrant recites that whereas this complaint had been filed alleging that there are obscene material at these various places and there — that — and actually issued a separate search warrant for each place, that the — and — and whereas he found probable cause, therefore, he — he commands any peace officer to execute the warrant by day or night.

It actually was executed in the daytime and to seize all — all the obscene material at these various premises.

In other words, what he does is he adopts the language of the complaint in essence.

Now, pursuant to the search warrants, the police, in the Sheriff’s office in Kansas City, went to these five magazine — retail magazine distributors and the one wholesale distributor and seized various magazines.

Apparently, the search at the — at the retail distributors last about a — and seizure lasted about an hour and a half and at the wholesaler, about three — three hours.

Hugo L. Black:

Did your challenge is to the search or to the warrant or the what?

Sidney M. Glazer:

Our — my — our challenge is to the — is number one is to the statute on its face as being unconstitutional.

And number two, it goes to the application of the statute in allowing, it’s sort of an alternate challenge, in allowing such a general seizure.

In other words, assuming that the statute could be constitutional, it certainly cannot be constitutional if — if you allow him to go out and just seize all obscene books without making any effort whatsoever to describe it.

Charles E. Whittaker:

Does the statute do that —

Sidney M. Glazer:

The —

Charles E. Whittaker:

— on its face, by any terms in the statute?

Sidney M. Glazer:

No, the statute on its face does not do that.

I don’t think the statute on its face does not do that.

Charles E. Whittaker:

Then what’s the matter with the statute on its terms?

Sidney M. Glazer:

On its face, you have this problem.

If you don’t consider the construction of it by the Missouri Supreme Court — the statute, if I am operating a newsstand and I am selling magazines and tabloid newspapers, the statute says that a — if somebody files a complaint and yet interpret the statute and the rule together just a general complaints stating positively that I have obscene material on my premises that the police can go out there and seize what they wish.

Charles E. Whittaker:

Can he?

I thought that Section 542.390 required the warrant specifically to describe the place to be searched and the thing to be seized.

Am I wrong about that?

Sidney M. Glazer:

It — it’s — it does so state that.

But the Missouri Supreme Court has interpreted the statute to — to mean that if you allege that there are obscene publications on the premises that that’s sufficient.

Charles E. Whittaker:

Well, that’s getting into the second question maybe, as to whether there are something wrong with the statute as applied.

But as to the statute on its face, my question was, what’s the matter with it?

Sidney M. Glazer:

Well, assuming you had — let’s — let’s go a little backwards.

Suppose you had a — a search warrant, like in the Kingsley Books case in which — in the Kingsley Book case, there was a complaint and pendent to the complaint was these 12 booklets under the general description of “Nights of Horror”.

Okay, under — under Kingsley Books, you have a situation that you can — this Court said you can restraint the distribution of — of “Nights of Horror” by issue — by issuing a temporary injunction, but the Court didn’t say, ?You can go out and seize it.?

It left open the question whether or not suppose I am — I don’t — I don’t agree with the — the prosecuting attorney, I don’t agree with the police.

I think I’ve got something important to say.

Sidney M. Glazer:

And if I’m in New York, and they have this restraining order, and they come out, and they inventoried my stock, and I think I’ve got something to say, I can still go and say it.

I mean, nobody says I can’t say it now.

I maybe subject to contempt punishment for doing it, but I still have the right to go out and sell these books or give them away.

But in Missouri, they — they don’t give me that option.

They go out there and they seize these books prior to any determination that they are in fact obscene.

In New York, you cannot seize the books until after the judicial hearing.

And that’s why I say the statue is void on its face.

John M. Harlan II:

Well, you — you are not raising a search and seizure question as such, you are raising this search and seizure procedure within the context of the whole so-called (Voice Overlap) —

Sidney M. Glazer:

Yes, Your Honor.

It’s — we don’t set out — we set out — you sort of — you can’t really put this in tight — airtight compartments.

You can’t really separate the First Amendment and the Fourth Amendment.

Our basic objection is a First Amendment objection.

In other words — but the First Amendment objection also embrace the situations where there is unreasonable search and seizure.

That’s —

John M. Harlan II:

There wasn’t a criminal prosecution here.

Sidney M. Glazer:

No, there as never a criminal prosecution formed.

John M. Harlan II:

Just a forfeiture proceeding.

Sidney M. Glazer:

Just a forfeiture proceeding.

Felix Frankfurter:

I understood you — let’s see if I understand what it is you’re complaining about.

You — in answer to Justice Whittaker, you said, you claim the statute on its face, offends the Fourteenth Amendment —

Sidney M. Glazer:

Yes.

Felix Frankfurter:

— that you are hereon.

Justice Whittaker then asked you to point out what on the face in terms, and you then shifted and said, “It isn’t want the statute said, it was the Court of — the Supreme Court of Missouri said,” is that right?

Isn’t that what you said?

Sidney M. Glazer:

Well, that’s — that’s — I have to say that’s part of it.

You see —

Felix Frankfurter:

Well, then — well, on its face doesn’t mean that we sit here and independently read statutes from Missouri or Idaho or anywhere else.

A statute comes here with a construction by the Court.

Sidney M. Glazer:

That’s right.

Felix Frankfurter:

In other words, the state court leaps the faith.

Sidney M. Glazer:

That’s right.

Felix Frankfurter:

And we get a leap of faith, don’t we?

Sidney M. Glazer:

That’s correct.

Felix Frankfurter:

What is there in the opinion of the Court — wherein the opinion of the Court — as the Court add days for us to crack things which — which makes the statute read differently than a mere innocent reading without any gloss on it.

Sidney M. Glazer:

Well —

Felix Frankfurter:

Where — where is it?

What is it?

What part of the opinion in the Supreme Court in your view makes inroads on what seems to be mere English of the statute?

Well, let’s say, you can seize everything in site, and you don’t have to pay any attention to designation or definition of what it is to be seized.

Where does it say that?

Sidney M. Glazer:

It doesn’t — I have to say it doesn’t specifically say that.

It’s — it says this —

Felix Frankfurter:

Well, how can I find out — that was I want to know.

Sidney M. Glazer:

But — well — pardon.

Felix Frankfurter:

It doesn’t specifically —

Sidney M. Glazer:

Alright.

Now — pardon.

Felix Frankfurter:

I can only ascertain these things by the English language.

Sidney M. Glazer:

That’s right.

On page 123 of the record, page 123 of the record.

Felix Frankfurter:

Where is that?

Sidney M. Glazer:

Page 123 of the record.

Felix Frankfurter:

What does it say there?

Sidney M. Glazer:

Well, in that particular instance, it goes into the description of what may be — what sort of description is required by a warrant in Missouri.

Charles E. Whittaker:

Now, is not the Court there dealing specifically with your attack upon the statute under the constitution and laws of Missouri?

Sidney M. Glazer:

Well, that wasn’t that clear, Your Honor.

Charles E. Whittaker:

This will —

Sidney M. Glazer:

So —

Charles E. Whittaker:

— make any attack in the Supreme Court of Missouri until your motion for rehearing under the First Amendment saved on the definition of obscenity.

Sidney M. Glazer:

Yes, I’d say we did.

Sidney M. Glazer:

You see —

Charles E. Whittaker:

Well, the Court didn’t treat with the damage you did, did it, on page 121 of the record, the plea with your First Amendment claim with reference to the test of obscenity?

But all other constitutional claims, if they treat with, as raised by you, relate to the State Constitution and law, isn’t that true?

Sidney M. Glazer:

No.

On — on page — we start off on page 118 where we — the Court, it goes into the question and bound paragraph of 118 in the record where it says, The appellants charge that these statutes, and the court rule, are violative of their constitutional rights under the First Amendment.

Then, they compare the Missouri procedure with — they talked about Near versus Nebraska — Minnesota and then they compare the Missouri procedure with the procedure in New York.

And incidentally, it doesn’t show in this particular printed record but on the page 119 in the sixth lines from the bottom, it says the constitutionality of the penal obscenity statutes was — was attacked in the Becker case.

The original opinion written by division number two of Supreme Court said the constitutionality of these obscenity statutes were attacked in the Becker case.

And we pointed out in err that they were in error that the — this statute wasn’t involved in the Becker case.

They changed it.

So, then, they go on, on 119, and talked about our contention that we have a right — we argue we had a right to circulate this matter prior to a judicial determination that the matter was obscene.

And they go on there and compare our situation with the Kingsley Books case and say, well, the Kingsley Books — when — when this Court upheld the Kingsley Books case, then in essence upheld a Missouri statute, and that the only difference is between Missouri law and New York law is a difference in — in degree.

That — we are all dealing is with the Missouri provides with a hearing from five to 20 days after the seizure, and New York provides for a hearing with one day after seizure and a decision two days after the hearing.

Now, I think, there, it’s clear that the Missouri Supreme Court considered this to be an attack on the statutes and the rule on its face.

John M. Harlan II:

Well, whether it’s on its face or as applied.

Sidney M. Glazer:

(Inaudible) as applied — actually they lump them together.

That’s right.

I hope I answered your question.

Charles E. Whittaker:

I understand you.

Sidney M. Glazer:

Now —

Felix Frankfurter:

You haven’t answered mine.

I want to know what, in the Missouri — what — to what extent or in what way the Missouri Supreme Court added to or subtracted or equalified what I would find if I merely read the Missouri statute and did not have the authoritative gloss of the Supreme Court of Missouri which were of — is the Missouri statute.

Sidney M. Glazer:

Well, I hope I can answer.

I — I tried before, and I’ll try again.

Felix Frankfurter:

It was essential to your case, isn’t it, your answer?

Sidney M. Glazer:

What?

Felix Frankfurter:

It’s essential to your case —

Sidney M. Glazer:

Yes.

Felix Frankfurter:

— because the statute comes here later with the meaning put on it by the Missouri Supreme Court.

Sidney M. Glazer:

Well —

Felix Frankfurter:

Now —

Sidney M. Glazer:

Now, I’d say —

Felix Frankfurter:

— in answer to Justice Whittaker, you indicated that the statute, the mere English of the statute nowhere allows a search at large.

It must be defined appropriately.

Now, to what extent or where does the Missouri Supreme Court wipe that out?

Sidney M. Glazer:

Well, they interpret as the meaning of what is required in a complaint is — is not putting a gloss, and I think that’s putting a gloss —

Felix Frankfurter:

But where is it?

Just — I’m not denying anything.

I don’t know, that’s why I’m asking questions.

Sidney M. Glazer:

Well, I — I go back to — to page 123 of the record in their opinion where they say the — the — wipe not the — the gloss on the — on the what’s required on a complaint is on the bottom of 124 and at the top of 125, where they say that — that since this Rule 3301 allows the issuance of a search warrant if the officer in his complaint states positively that there is a violation of the statute that — that sufficient for the purpose of probable cause.

Felix Frankfurter:

Where do I find that?

I don’t find that on page 124.

Sidney M. Glazer:

No, here’s what, at 124, it says with respect to probable cause, the separate complaints by applications for the search warrant which were sworn to by the lieutenant of the Kansas City Police Department represented the Circuit Court by the police lieutenant and assistant prosecutor of Jackson County.

The complainants swore to the facts of his own knowledge and the Court made a finding, there was a probable cause to believe the allegations in the complaint to be true and that there was probable cause for the issuance of the search warrant.

Supreme Court Rule 3301 further defines the statutory procedure and provides that the judicial officer shall issue a warrant if the complaint is verified and supported by affidavits stating evidential facts for which such judge or magistrate authorizes the — magistrate determines the existence of probable cause.

Felix Frankfurter:

And what’s the inadequacy of that?

Sidney M. Glazer:

Well —

Felix Frankfurter:

Before — before that — before that, 123, they say that it is unreasonable searches.

There must be specific designation of specific property and on page 124 stated enough to state generally, the search warrant must — must define what is you are looking for.

Sidney M. Glazer:

Well —

Felix Frankfurter:

What’s the matter with the complaint that says that — that he swore the fact of his own knowledge.

I don’t — I don’t understand.

Sidney M. Glazer:

No, the — our objection is not but he sworn the fact to his own knowledge, our objection is the fact they only swear is that there are obscene publications.

He doesn’t say, there’s no description on publications.

In other words — in other words —

Felix Frankfurter:

He doesn’t — he doesn’t need to append the picture or describe in great detail what the contents of the — of the materials are, is that it?

He would say they are obscene because (Inaudible)

Sidney M. Glazer:

Or — or he can describe — or he can —

Felix Frankfurter:

Now, I understand.

Sidney M. Glazer:

I think it described them like a volume five of Adam magazine.

Potter Stewart:

Nearly designative.

Sidney M. Glazer:

Yes, designative.

In other words —

Felix Frankfurter:

He doesn’t give a description that makes it obscene, is that your point?

Sidney M. Glazer:

Yes, the description — well, there are two problems.

Problem number one is the issue of — in other words, the problem as to what the Court that — that this statute doesn’t require any preliminary finding by a court that there are obscene matters at a certain premise.

Problem number two is the fact, assuming the Court has found a probable cause for certain (Inaudible) for the issuance of the search warrant, it’s our position that the executing officer should more or less — the administerial officer shouldn’t have any discretion to see if anything which he, himself, feels fits the general description of obscene, in other words, whereas obscene maybe be a perfectly good standard for a court when it’s operating in the framework of a trial in determining whether to condemn a book or not.

It isn’t a good standard for an officer who just makes an on the spot seizure of certain items.

Felix Frankfurter:

Is this — is — that’s — that is what is authorized to be done here, what was authorized to be done here, allow the officer to go in and examine a lot of literature and then and there determine what is and what is not obscene, is that what the point is?

Sidney M. Glazer:

Well, the officer actually — yes, well, I would say that that’s — that’s the point.

Felix Frankfurter:

(Voice Overlap) — goes into a lot of books —

Sidney M. Glazer:

That’s right.

Felix Frankfurter:

— a lot of pamphlets —

Sidney M. Glazer:

That’s right.

Felix Frankfurter:

— and he must pick out.

He has no guidance from the one as to what it is he is to pick out.

Sidney M. Glazer:

Yes.

Felix Frankfurter:

Is that it?

Sidney M. Glazer:

That’s right.

Felix Frankfurter:

(Voice Overlap) — at large and he must say ?Yes, this is obscene —

Sidney M. Glazer:

Yes.

Felix Frankfurter:

— and this isn’t.”

Is that it?

Sidney M. Glazer:

That’s right.

That — that’s it.

Felix Frankfurter:

Is that what the record show?

Sidney M. Glazer:

Yes, that’s right.

That’s what happened.

Hugo L. Black:

But the search warrant show it didn’t.

Sidney M. Glazer:

The search warrant also —

Felix Frankfurter:

But I thought the Court said you must designate specifically.

It doesn’t — it doesn’t — I thought, on page 124, they say we can’t see the contrary.

It is not sufficient to describe the properties as good whereas merchandizers (Inaudible) generally but the search warrant commanding the seizure, it was damage we were talking about and the same thing on page 123.

I thought they had to designate.

Sidney M. Glazer:

Well, they consider the fact when you say there’s been a search warrant alleges obscene material.

They say that’s —

Felix Frankfurter:

We need at large to find out what isn’t — what isn’t obscene among a hundreds of pamphlets.

Sidney M. Glazer:

Yes.

And — and they consider that a sufficient designation.

Hugo L. Black:

Well, that’s what the search warrant provide, wasn’t it —

Sidney M. Glazer:

The search warrant —

Hugo L. Black:

— (Voice Overlap) — obscene matters?

Sidney M. Glazer:

That’s right, search warrant —

Hugo L. Black:

It did not describe any of it at all in any particularity.

Felix Frankfurter:

Where is the — where is the search warrant?

Sidney M. Glazer:

The search warrant is on page two, three and four of the record.

Charles E. Whittaker:

I’ll tell you please — what I like to see is your assignments of error in the Supreme Court of Missouri wherein you said to that Court that the lower court had erred in sustaining the constitutionality of this — of this warrant which did not describe with particularity , have you had such an assignment?

Sidney M. Glazer:

The — when this case, only to explain, I’m answering your question, Your Honor.

This case was originally argued before the Supreme Court division number two which transferred to the Supreme Court en banc.

We file a supplementary brief.

And in the supplementary brief — brief, we thought that something wasn’t specific in that, so we added a new assignment.

Now, the Supreme Court en banc adopted the opinion of the — adopted the divisional opinion plus they also filed a per curiam opinion on page — which is set forth at page 127 of the record.

In the — in the per curiam opinion, they treat our assignment relative to the issuance of this general award and saying, Well, that adds nothing to what you’ve argued before the division.”

Charles E. Whittaker:

What I like to see (Inaudible) your — the assignment in the Supreme Court of Missouri wherein you complain that the lower court had erred beyond sustaining this warrant.

Sidney M. Glazer:

The —

Charles E. Whittaker:

You didn’t raise it.

I think you may agree that you have to raise it specifically on (Voice Overlap) —

Sidney M. Glazer:

Oh, that’s right.

That’s right.

Charles E. Whittaker:

You didn’t raise it.

Charles E. Whittaker:

It’s not there —

Sidney M. Glazer:

Yes.

Charles E. Whittaker:

— it isn’t here.

Sidney M. Glazer:

Yes.

Charles E. Whittaker:

Now, did you raise it there?

Sidney M. Glazer:

Yes, I — we — I think I — I did, Your Honor.

We have our brief, our supplemental brief which were not part of the record in this case.It’d be not in the printed record and —

Charles E. Whittaker:

Do you think that’s a (Inaudible)

Sidney M. Glazer:

What?

Charles E. Whittaker:

The Supreme Court’s opinion does not fit with that point, does it?

Sidney M. Glazer:

I thought they did ,Your Honor.

I thought when they —

Charles E. Whittaker:

Under the First Amendment?

Sidney M. Glazer:

What?

Charles E. Whittaker:

Under the First Amendment?

Sidney M. Glazer:

Yes, I think on page 118.

Hugo L. Black:

Well, you are raising that under the Fourth Amendment, are you not, that what they have issued against you is a general warrant —

Sidney M. Glazer:

Well, I —

Hugo L. Black:

— that authorizes them to seize anything they think obscene.

Sidney M. Glazer:

Our primary — in the Court — in the Missouri Supreme Court, our principle objection was Amendment One and the Fourteenth Amendment.

We didn’t specifically mentioned the Fourth Amendment a law and — and the — our argument in — was, as far as the federal law was concern, was that she could — it’s alright under — perhaps on the Fourth Amendment — assuming it’s alright under Fourth Amendment to seize gambling paraphernalia of this way, you can, under the First Amendment, seize items like these, which might infringe our free speech.

Now, in — on page 118, it’s — it set — on the bottom paragraph this Court says specifically “The appellants’ charge of these statutes of the Court charge that these statutes and the Court rule are violative of their constitutional rights of freedom of speech and press guaranteed by Article I Section 8 Constitution of Missouri 1945 and Amendment One of United States Constitution as granted applicable by — by the Privilege and Immunities and Due Process Clauses of the Fourteenth Amendment of the United States Constitution.

Charles E. Whittaker:

I of course have read lthat and I have overlooked it.

But now, then, when you come to why you say that that is so, the only treatment, it was on page 121, and it relates to the proper test of obscenity.

Now, then, you show me some other place in that opinion that doesn’t deal exclusively with the Constitution of Missouri, and its laws or that makes any mention of the First Amendment.

Sidney M. Glazer:

Well, it’s the — it’s the Court on page — it’s our opinion that the Court, on page 119 and 120, was treating both the First Amendment and the Missouri free speech and press amendment.

They considered all these — considered these federal cases involving the subject.

They specifically considered the Kingsley Books case.

It was argued that way.

I have to agree that it specifically amend —

John M. Harlan II:

Well, they end up by saying on page 121 after going to Roth and Kingsley Books case the differences in procedure between New York and Missouri, they end up by saying the New York statute was held not to amount to prior censorship of literally products not to violate the freedom of thought and speech protected by the Fourteenth Amendment.

Sidney M. Glazer:

Yes, so I — I think that’s another indication that they were considering the First and Fourteenth Amendment.

Charles E. Whittaker:

Because that would mean more than as it did mean to me and may be I didn’t get the whole significance of it.

These are the reasons why we say that this statute doesn’t violate the Constitution of Missouri.

Sidney M. Glazer:

No, Your Honor.

Actually, the case — as I read the opinion, the case was argued in — from its inception primarily on the basis of the Kingsley Books case that was a big case.

The State relied on in the — in the trial court, and there was a big case, the Supreme Court relied on in the — in the Supreme Court of Missouri.

And actually, they were treating this.

In — our assignment of there on that which is similar to the one that we set forth in the —

William J. Brennan, Jr.:

But what — what — isn’t — isn’t the answer to this to the question that was decided at 127 the third and per curiam opinion and the language and the question as you raised it is the actual assignment of error?

Sidney M. Glazer:

I think that — that clarify —

William J. Brennan, Jr.:

Is it not the answer (Voice Overlap) —

Sidney M. Glazer:

I think that clarifies any vagueness about it, Your Honor.

William J. Brennan, Jr.:

That is the answer, isn’t it, to Justice Whittaker’s question?

Sidney M. Glazer:

I think it answers it.

Charles E. Whittaker:

I didn’t understand.

Sidney M. Glazer:

On page 127 and 128 in the per curiam opinion, the Court fortifies the issue as — that this case deals with the —

William J. Brennan, Jr.:

No.

But they recite your actual assignment of error —

Sidney M. Glazer:

Yes, they recite —

William J. Brennan, Jr.:

— in which — in which you assigned it, don’t they?

Sidney M. Glazer:

They recite — one of our assignments of error.

That’s correct.

William J. Brennan, Jr.:

Well, isn’t this the one you’ve been answering to Mr. Justice Whittaker, is the assignment of error which raise these questions and the one that he asked you whether you’d raise them?

Sidney M. Glazer:

That is — that is one of our assignments of error.

It —

Felix Frankfurter:

Is a — is a statement in a brief — again, I am asking.

Sidney M. Glazer:

Yes.

Felix Frankfurter:

I know nothing about it —

Sidney M. Glazer:

Yes.

Felix Frankfurter:

— as a jury lawyer —

Sidney M. Glazer:

Yes.

Felix Frankfurter:

— except what I have told.

Is a statement in a brief equivalent of an assignment of error which is, I understand from what has been said between you and Justice Whittaker, are requisite for review ability in the Missouri Supreme —

Sidney M. Glazer:

Yes,

Felix Frankfurter:

— Court.

Sidney M. Glazer:

Yes.

In the Missouri —

Felix Frankfurter:

Now, to make an argument —

Sidney M. Glazer:

Yes.

Felix Frankfurter:

— that — does that satisfy the requirement —

Sidney M. Glazer:

Yes.

Felix Frankfurter:

— for making an assignment of error?

Sidney M. Glazer:

Yes, yes.

In the Missouri Supreme Court, you — instead of having questions presented in your brief, you have what is known as points relied on.

And in those points relied on —

Felix Frankfurter:

Is that the same as an assignment of error?

Sidney M. Glazer:

That would be the same as an —

Felix Frankfurter:

The assignment of error is a very technical term.

It (Voice Overlap) —

Sidney M. Glazer:

Yes.

Well, in other words, the Missouri Supreme Court will review your points relied on provided when you have a constitutional question and has to be kept alive and preserved in the lower court.

And if I may I just set forth on our — in our supplemental brief, the first point relied on was the Court erred in issuing a search warrant in its finding in Section 542.380 and Section 542.400 of Rule 33 of the Rules of the Supreme Court of Missouri Constitution for the following reasons.

One —

Charles E. Whittaker:

Are you reading the assignments now?

Sidney M. Glazer:

I’m reading from my — my points relied on in — in Missouri Supreme Court.

It’s not in the written record.

Charles E. Whittaker:

Yes.

Sidney M. Glazer:

One, these sections of rule are unconstitutional in allowing a search warrant to be issued in the property there set forth in Section 542.380, seize export without notice without any hearing reported to the owners of the property prior to such — prior to such seizure for the reason that they allow a search and seizure of books, pamphlets and other publication without notice or any hearing reported for the owners and the property prior to seizure in order to determine whether or not these books, pamphlets and other publications are obscene, lewd, licentious, indecent, lascivious or of an immoral or scandalous character and thereby — thereby constitutes a prior restrain or censorship of said publication impairing appellants’ freedom of speech and publication and contravention of Article I Section 8 of the Missouri Constitution and the freedom of speech and press clauses of American — of Amendment One of the United States Constitution.

And such impairment of appellants’ speech and press deprives them of their privileges and immunities.

Sidney M. Glazer:

They are citizens of their property without due process of law has guaranteed by the Privileges and Immunities and Due Process Clause of Amendment Fourteen of the United States Constitution and by reason of foregoing the search and seizure were unreasonable and constituted a violation of Article I Section 15 of the Missouri Constitution.”

That’s one of our assignments.

Hugo L. Black:

Under what assignment did the Court on 123 and 124 hold that a definition of what they will get just obscene or lascivious paper was a petition sufficient for his specific designation of the property testified that he could (Inaudible) search warrant.

They answered that on page 123 and 124.

What is that assignment?

Sidney M. Glazer:

I — I’ll read it to you, Your Honor.

Hugo L. Black:

Alright.

Sidney M. Glazer:

“The Court erred in finding the search warrants valid for the following reason.

They were illegally issued because the complaints for their issuance of the warrants of sales did not contain a description of the personal property to be seized for and — and searched — to be searched for and seized in sufficient detail and in particularity to enable the person’s serving the warrant to readily ascertain and identify the same and thereby violated the Rule 3301 (b) of the Rules of the Supreme Court of Missouri and further did not describe the things to be seized as nearly as may be and thereby made the search and seizure unreasonable in violation of Article I Section 15 of the Missouri of Constitution.

They were issued without sufficient showing of probable cause and therefore, each search and seizure were unreasonable and constitute a violation of Article I Section 15 of the Missouri Constitution and Rule 3301 of the Rules of the Court.”

Then, the assignment continues and sets forth what is said out on page 127 and 128 in the per curiam opinion where it says you — the division of opinion on the wards is sufficient —

Hugo L. Black:

Did you assign — did you assign and set there that it was not sufficient and specific under the requirements of the Missouri —

Sidney M. Glazer:

Yes.

Hugo L. Black:

— Constitution?

Sidney M. Glazer:

Well, the next paragraph —

Hugo L. Black:

Did you assign — did you make an assignment with reference to the —

Sidney M. Glazer:

Federal Constitution.

Hugo L. Black:

Federal Constitution.

Sidney M. Glazer:

Yes, the next paragraph makes that assignment and that is quoted verbatim on page 127 and 128 of the per curiam opinion which is there issued after the hearing en banc.

Now, that’s of —

Felix Frankfurter:

The same day, the same day.

It dated the same day.

Sidney M. Glazer:

Oh, the — yes.

But the — the brief was filed —

Felix Frankfurter:

Well, I understand that, but I say this all happens in the same day.

If the — the en banc opinion is dated March 14 —

Sidney M. Glazer:

Oh, yes.

Felix Frankfurter:

— 1960 and the per curiam is likewise March 14, 1960, is that rights

Sidney M. Glazer:

Yes.

Felix Frankfurter:

Alright.

Earl Warren:

When was your brief filed?

Felix Frankfurter:

It’s right on the decree.

Sidney M. Glazer:

The brief was probably — this case was probably argued in the January session of the Missouri Supreme Court and so the brief was probably filed in — in the prior December.

Hugo L. Black:

Do you think the warrant would have been sufficient in the affidavit if it said, “Seize all store property you find that has been stolen in a certain building?

Sidney M. Glazer:

I would say it have troubles stating that search warrant.

I mean — of course — then you’d had the whole problem of Wolf versus Colorado.

In other words, it probably be a violation of the Fourth Amendment but as this Court had it in this previous Mapp case you — you — probably, it will leave it up to the States to fashion their own exclusionary rule.

Hugo L. Black:

Well, that has nothing to do with the exclusion as to whom.

Sidney M. Glazer:

Now, as I understood your question, you asked me if — if a — a search warrant would —

Hugo L. Black:

Would the difference between the exclusionary rule in deciding that a search is unreasonable because it’s not made by a search warrant?

Sidney M. Glazer:

Oh, that’s right.

In other words, you would say as a violation of the Fourth Amendment.

Hugo L. Black:

Or — or lack of specificity.

Sidney M. Glazer:

Yes, and — and —

Hugo L. Black:

And your argument there was, as I understand it, when you allege — when you have a search warrant that simply said, “Go out and seize all the things that you find to be lascivious or obscene and so forth in a certain building that that is not sufficient.

Sidney M. Glazer:

That isn’t — that isn’t sufficient and we say that —

Hugo L. Black:

That’s your argument.

Sidney M. Glazer:

Sir?

Hugo L. Black:

That was your argument.

Sidney M. Glazer:

That — that was the argument.

We say that if — if all you had was gambling paraphernalia, this Court, under the Wolf case, probably wouldn’t step in to it.

The — somebody was convicted on that but we say when you have a situation or you’ve got freedom of expression and you’ve got a — a search warrant which is — which, in its effect, that doesn’t discriminate and it’s too broad that under such circumstances, this Court should hold the — that procedure unconstitutional.

Now, in the — in the few minutes that I have, I’d like to compare this case with the Kingsley — Kingsley —

Earl Warren:

Yes.

We’ll recess now.

You may continue.

Sidney M. Glazer:

Just to clarify one point of Missouri procedure which the Court may be unfamiliar with, the — as I point out, the points relied on — on the brief served a reflection of the assignment errors, and they are generally limited by your motion for a new trial.

In other words, you can’t — it’s not like federal practice where you do not have to file a motion for new trial.

But on the Missouri law, you have to preserve your assignments there in your motion for a new trial.

And our motion for a new trial is set forth on page 93 of the printed record.

Charles E. Whittaker:

(Inaudible)

Sidney M. Glazer:

That’s right, Your Honor.

And as far as any constitutional question under Missouri law, it has to be specifically raised.

Potter Stewart:

Mr. Glazer, may I ask you a question just for my own information.

The opinion which begins on page 104 of the Supreme Court of Missouri division two, we can ensure to entirely disregard, is that correct?

Sidney M. Glazer:

Yes.

The opinion on page — on — from page 104 to 114, that’s the opinion written by Judge Starkman (ph) when the Court was sitting in division number two.

Potter Stewart:

Right.

Sidney M. Glazer:

Then en banc and as an actuality, they adopted the division number two opinion and that’s set forth on page 160 it’s the — it’s the same —

Potter Stewart:

I see,

Sidney M. Glazer:

word.

Potter Stewart:

I see — I didn’t —

Sidney M. Glazer:

In addition, when they came down with their decision, they wrote that per curiam, short per curiam opinion which is set out on page 127.

Potter Stewart:

Yes.

Thank you.

Sidney M. Glazer:

Now, to sum up in — in reference to this case, the major distinctions between this case and the Kingsley Books case, in Kingsley, there is a — injunction is issued but no books were seized prior to any hearing.

Kingsley applies — allows an injunction against a specific publication.

There was no general prohibition against a sale of books and Kingsley was sustained in comparison with a criminal statute.

And the Court taken a pragmatic view state — holding there is little difference between Kingsley in the ordinary criminal statute.

In essence, the person still would have the right to circulate prior to a determination that the publications were obscene.

And in Kingsley, the Courts specifically pointed out there was no restraint upon matters not yet found obscene.

Now, the other question in this case is this, it’s our position that a proper test of obscenity was never applied to the publications in this case.

The Court found some obscene and found others not obscene.

It’s our position that the trial judge applied a test judging the effect on the susceptible person rather than the average person, and in essence, did what this Court said shouldn’t be done primarily in the Butler versus Michigan case and then subsequently in the Roth — in Alberts case.

The trial judge’s opinion is set forth on page 81 of the printed record.

In that opinion, the trial judge, on page 83 says, ?What test must be applied??

and he quotes form several Missouri cases and quotes from the State versus Becker case which we have set out in — in the appendix to out — to appellants’ brief and that is set forth on page 41 of the appendix, the earlier opinion in — in the Missouri Supreme Court in State versus Becker.

And all these tests and the test of the trial jury are set forth on page 84, our test which, in essence, judged the obscenity on the basis of what effect the book or publication has in the susceptible.

And then after applying this test, the trial judge concludes that certain of these publications were obscene, and concludes and says on page 85, “A judgment has been entered this day in conform — in conformity with the views expressed herein.”

Then, on page 91 and 92 is the judgment and the — in the judgment, the trial judge said that the various publications listed in the schedule which he found were obscene — were obscene within the meaning and intent of Mo. Rev. Stat., 542.380.

Sidney M. Glazer:

Now, on appeal, we contended — we contended that the Becker case was not in line with Roth and Kingsley Book — of Roth and the Butler case.

The Missouri Supreme Court differed with us and said — and now, the Becker case sets forth a proper constitutional standard of obscenity.

It — it relied on pouring on the fact that in the Roth case, the Becker case was cited in the footnote as applying the proper test of obscenity.

We think that any reasonable reading of the Becker case indicates that it adopted the susceptible person test.

William J. Brennan, Jr.:

Do you — your opinion included in the footnote in Roth?

Sidney M. Glazer:

Yes, yes.

That — that’s our opinion.

That’s the —

Hugo L. Black:

Do you think that the capacity of a judge determine — determines the boundary between what would appear to be susceptible and what would appeal to the average should be of constitutional level?

Sidney M. Glazer:

Well, in — in the Butler case, this Court struck down a statute which allowed a — a judge to mull a conviction to stand on the effect on — of a publication on youth.

In other words, it’s our position here that if you have a susceptible test, what you are doing is your limiting the distribution of books to adults and for that reason, we think it’s —

Hugo L. Black:

I suppose an argument is strong — an argument could be made to the fact that if obscene books do an injury to the public by reason to their effect on the person, probably, the one that would mostly — mostly the protection from would be the effect on the susceptible.

Sidney M. Glazer:

You couldn’t make that argument except if you made that argument, then you would have a situation where the average normal person wouldn’t be allowed to read certain books because the abnormal would be affected by them.

In other —

Hugo L. Black:

Don’t you — don’t you think it’s in the — in the application of that test that — that there’s a possibility that it might occur now in trying to distinguish between the one that would affect the average and the one that is susceptible?

Sidney M. Glazer:

I — the application of test —

Hugo L. Black:

Do you not think that when you begin to try to file that test it might still bar some of those who — on the average if the real truth could be known?

Sidney M. Glazer:

Oh, I — I would say so.

I think it’s a very — very difficult test to apply, but I — I’m not sure I knew — say that the Roth case should be overruled.

Charles E. Whittaker:

(Inaudible)

Sidney M. Glazer:

Well, that would satisfy — that’s the — that’s the only relief we are — relief — that’s a relief we are asking, that’s right.

Charles E. Whittaker:

(Inaudible)

Sidney M. Glazer:

That would have the lawsuit unless Missouri would attempt to proceed in some other manner which I don’t know which way —

Charles E. Whittaker:

(Inaudible)

Sidney M. Glazer:

If the books were returned, it would end this case.

John M. Harlan II:

(Inaudible)

Sidney M. Glazer:

No, Your Honor, it was never a prosecution.

John M. Harlan II:

There’s none.

Earl Warren:

I thought I read some place in — in one of the briefs.

I guess we’ll see respondents that — that was conceded these things were obscene is —

Sidney M. Glazer:

No, we haven’t read nor conceded they are obscene.

Your Honor, we — on — the questions presented here is what we did.

We — our — our second question presented deals with the test, we started to constitute — unconstitutional test was applied to obscenity.

And then we put a third question which we put in the footnotes saying that we didn’t think these books were obscene but since they are over 92 of them, we don’t think, since we were asking for discretionary relief, even though — even though we weren’t govern by certiorari, we’re going to appeal.

We — we prefer to rest our case primarily on the other two issues.

And we didn’t want to burden this Court with making an examination of these books when we think it’s — it’s the job for the Missouri courts.

Felix Frankfurter:

Mr. Glazer, are you reserving time for yourself with regard to the jurisdictional question?

Sidney M. Glazer:

Well, I hope — I don’t know — I don’t know specifically what the jurisdictional question is other — other than what I have set forth in my brief.

I’m — I’m running out of time, so let me —

Felix Frankfurter:

I’m not suggesting you need to.

You can leave it on your brief.

I just want to be sure that (Voice Overlap) —

Sidney M. Glazer:

No, I’ll touch back on the — another jurisdictional question.

I thought — you see, in this particular case, the State didn’t oppose jurisdiction, so I sort of had assume what the jurisdictional question was troubling the Court.

And in view of Mr. Justice Whittaker’s questions, I thought that was the prime question troubling the Court.

Another question which troubled me somewhat is — is this problem of — here, the Court has said some of these — one of our objections was whether or not these books could be seized prior to a judicial determination that the books were obscene or not obscene.

Well, now, we’ve had a hearing and so that — that’s somewhat worried me, say, well, don’t we have a situation or perhaps the — your complaint is — is sort of moot.

But I think in — in an analysis of this Missouri statute, is such that it can’t be separated.

In other words, this entire Missouri statutory scheme rest on a seizure and the only basis or the only jurisdiction for the — for Missouri to condemn these books is if these books are seized.

So, it’s our position if the — if the seizure itself is illegal that the entire scheme would fall.

Felix Frankfurter:

Could you — could you have enjoined after the unlawful seizure further — further proceedings in — in Missouri?

Sidney M. Glazer:

I — I assume we could’ve — we would have the right to go in the federal court and ask for a three judge federal court to enjoin the enforcement of the federal — of the Missouri statute.

Of course —

Felix Frankfurter:

Of course, the deponent of that Missouri court?

Sidney M. Glazer:

Well, here, we are already in Missouri court.

But the only other thing we could have done in —

Felix Frankfurter:

Well —

Sidney M. Glazer:

— Missouri is we can file a — a motion for writ of prohibition in the Missouri Supreme Court.

Felix Frankfurter:

Against the trial of the action.

Sidney M. Glazer:

Yes, our — mandamus ordering the return of the — of the books.

Felix Frankfurter:

You could have done that, could you?

Sidney M. Glazer:

Yes, we could have done that.

Now, I like to save the balance of my time for —

Earl Warren:

You may.

Sidney M. Glazer:

— for my rebuttal.

Earl Warren:

Mr. Howard.

Fred L. Howard:

Mr. Chief Justice, may it please the Court.

In view of the question of jurisdiction here and the way it is related to the third point in these briefs which has to do with the test applied by the trial court and determine the issue of obscenity, I would like to consider those two matters somewhat together.

As far as jurisdiction is concern, it appears to me first, that there is in fact no substantial federal issue involved here on the question of the statutory scheme itself.

It is a contention of the State that those questions have been resolved against appellant by the decision of this Court in Kingsley Books.

William O. Douglas:

Well, that wouldn’t go to jurisdiction, that’ll go to the merits.

Fred L. Howard:

Yes, Your Honor.

But likewise, the question of any substantial federal question involved is often, as I understand it, important in these jurisdictional matters, and that is one of the points to be raised.

Potter Stewart:

Your point is that since Kingsley Books has — since the —

Fred L. Howard:

Has the (Voice Overlap) —

Potter Stewart:

— (Voice Overlap) there’s no longer any substantial federal question.

Fred L. Howard:

That’s right, Your Honor.

And that either the appeal is not necessary or they should be affirmed without more due on the basis of Kingsley Books.

Hugo L. Black:

Was there any question of a general warrant in Kingsley Books?

Fred L. Howard:

No, Your Honor.

There was no question of any warrant in that case.

John M. Harlan II:

It’s been argued the questions of the merit.

Fred L. Howard:

Yes, Your Honor.

Now, the third point —

Felix Frankfurter:

Would you agree that problem of general warrant is in this case?

Fred L. Howard:

I’m not at all sure that it is, Your Honor —

Felix Frankfurter:

Well —

Fred L. Howard:

— and which I will get to in a minute if I may.

The third point in both of the briefs has to do with the issue are the test used by the trial court in determining the issue of the obscenity of the magazine’s publications before the trial court.

I submit that that issue is not properly before this Court.

Fred L. Howard:

It was not properly before the Supreme Court of Missouri, and the Supreme of Missouri pointed that out.

Now, this case was tried in the trial court before the judge alone without a jury.

In such circumstances in Missouri, the appeal to the Supreme Court of Missouri is in effect de novo on both the law and the evidence.

The exhibits were before the Supreme Court of Missouri.

The Supreme Court of Missouri specifically announced that it had examined those exhibits, that it had applied the test for obscenity as set out by this Court in the Roth case.

And that applying such test to the exhibits, at the Supreme Court, determined that they were obscene.

Consequently, the judgment of the trial court was not clearly erroneous, and it would not be reversed.

Now, remember in this procedure, the trial court in Missouri makes findings of fact and conclusions of law only when specifically requested.

There was no such request in this case, but the trial court did write an opinion which in effect was fortuitous and which, under the practice of Missouri, has no binding effect upon any other court.

It is absolutely surplusage.

The Supreme Court of Missouri pointed that out in its opinion that they were not, in any way, concerned with that that the appeal is not from the opinion of the trial court, the appeal is from the judgment entered by the trial court.

That judgment appears in the record, the pertinent party is on page 92.

And if I may paraphrase it in an effect says that we have examined the exhibits and find that they are obscene, lewd, lascivious, indecent — obscene, lewd, licentious, indecent, lascivious, immoral and scandalous within the meaning of the statute here involved.

That was the judgment and that’s what the appeal was from.

The question on what test he used actually was not important after these matters were looked at by the Supreme Court of Missouri because under these circumstances, if the Supreme Court had said, You are right, the trial court used a wrong test of what they have done.

If they’d reversed the decision, they would reverse it and said to the trial court, Your decision first was wrong because of the opinion you wrote, because of the test you used.

But your result was right, therefore, your judgment is vacated but you enter the self — same judgment again.”

That’s the only thing they could have done when they determine by looking at the evidence and by applying the test for obscenity that these matters were in fact obscene and that the judgment of the Court was not erroneous.

So, it would have been an entirely useless purpose for that matter to have been considered.

Now, if —

William J. Brennan, Jr.:

Well, that doesn’t mean that the question (Inaudible) to us —

Fred L. Howard:

I think the —

William J. Brennan, Jr.:

— whether or not these materials are obscene within the Roth case.

Fred L. Howard:

I believe that that question is not before you, Your Honor.

Not for that reason but for the simple reason that the appellant has specifically refrain from presenting that issue to this Court.

William J. Brennan, Jr.:

Well, I thought it you’d —

Fred L. Howard:

Your Honor, the — in the jurisdictional statement, they say there are two questions.

They say there was a third question that is the fact issue of obscenity, but they are specifically refraining from presenting the fact issue of obscenity to this Court.

So, consequently, the record —

Potter Stewart:

Well, that’s Footnote 1 you mean on page three of their brief.

Fred L. Howard:

Yes, Your Honor.

Potter Stewart:

They say they are not — there was — there is a third question in this case is as follows.

Fred L. Howard:

But we are not presenting.

Potter Stewart:

And they are not pressing it because of the practical difficulties involved in examining a hundred separate public — publications.

Fred L. Howard:

Yes, Your Honor, and they did not proceed the brief that are to consider the matter.

And therefore, it would seem to me that that issue is not before this Court.

Now, however, if this Court should consider that the matter of the test applied by the trial court is an issue.

I submit that the test applied and as intended for by appellant is proper.

Felix Frankfurter:

But Mr. Howard, their — their brief on the merits does raise the — the validity of the test of obscenity applied by your Supreme Court.

Fred L. Howard:

Applied by the trial court, as I understood it, Your Honor.

Felix Frankfurter:

The courts below, they study one of the — the appellants’ brief, Mr. Howard.

The courts below (Inaudible)

Fred L. Howard:

That — point three there, Your Honor, starts out the opinion of the trial judge, shows that he apply an unconstitutional test for obscenity.

And that, as I understand it, is the gist of their argument in point three of their brief.

Felix Frankfurter:

Yes, but on the bottom of page 32 on appeal the appellate court found that its decision

Fred L. Howard:

The Court found that its decision in Becker was approved by the Supreme Court of the United States in Roth because Becker was listed in the footnote.

Felix Frankfurter:

Well —

Fred L. Howard:

Now, they — they — and that refers back to the Becker case which was — they claim the basis for the trial court’s decision.

Felix Frankfurter:

Well, I’m nearly suggesting that —

Fred L. Howard:

That it may be enforced.

Felix Frankfurter:

That it’s — on page 33, again, as the result, the Missouri Supreme Court did not squarely meet the issue as to whether to the test applies.

All I’m saying —

Fred L. Howard:

Yes.

Felix Frankfurter:

— is this, it isn’t a clear — it is an unequivocal surrender of the point.

Fred L. Howard:

No, it’s not unequivocal.

I submit to this Court that in fact it is a surrender, but I’m going to rely entirely upon such surrender —

Felix Frankfurter:

(Voice Overlap) —

Fred L. Howard:

— because in considering the Becker case, the Missouri Supreme Court, and I’m reading from 100 — page 110 of the record.

This is the divisional opinion but the divisional opinion was adopted in October by the Court en banc, so it’s the same thing.

It appears twice in the record.

Fred L. Howard:

The Supreme Court, in referring to the Becker case, quoted the test used in the Becker case, as these questions have been considered and tested objectively as to the effect of these publications in their entirety upon persons of average human instincts.

They say that that test, as set out in Becker, is compatible and in effect the same as the test this Court set out in Roth which the Missouri Supreme Court paraphrased as being that the standard by which obscenity is tested is ?whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole, appears to prurient interest.”

William J. Brennan, Jr.:

Well, that’s a quote right from Roth.

Fred L. Howard:

Yes, Your Honor.

And the Missouri Supreme Court said that the Becker standard was comparable to that from Roth and even if the matter was before the Court that the trial court did not earn relying on Roth.

Now, if I may refer to the —

William J. Brennan, Jr.:

Well, anyway, you said to us that under your practice, there was, in fact, an independent application of the test by the Supreme Court.

Fred L. Howard:

That’s right, Your Honor.

William J. Brennan, Jr.:

And that the trial court erred, we may ignore that.

Fred L. Howard:

That’s right.

But my point also is that if you should determine that I am wrong in that assertion, their claim of error on the part of the trial court is not well founded for this reason.

Felix Frankfurter:

Not only an independent test by the Supreme Court but an independent test applied practically de novo to the materials before them.

Fred L. Howard:

Yes, Your Honor.

To the same 100 exhibits that the trial court —

Felix Frankfurter:

So that the —

Fred L. Howard:

— have found in the benches.

Felix Frankfurter:

— so that a wrong test by the trial court doesn’t infect the judgment.

Fred L. Howard:

That’s right, of the Supreme Court of Missouri, yes, Your Honor.

Now, as I have said, the — the fact issue of obscenity had not been pressed by the appellant here and therefore, I submit that we are — this case now I stands in the posture that the exhibits — the matter seized are to be considered as having finally determined to the obscene under the test laid down by this Court in the Roth case.

And that the questions here at issue should be determined on that basis.

Now, the appellants contend that there has been, under the Missouri statute, an unconstitutional previous restraint upon their rights of freedom of press, apparently, is based primarily on the fact that under the statute, pardon me, the search warrant issues on the application of the — in this case the police officer who swore to that search warrant as a matter of his own knowledge.

The Court found that the facts so sworn to were sufficient to establish probable cause.

The search warrant was issued.

The search was made.

The publications here we had books, we had magazines, we had pamphlets, we had just plain photographs and packages.

Those matters were seized and brought before the Court.

The Court issued its notice of hearing when required to be set not less than five nor more than 20 days after the date of the seizure and then return on the matter seized into the Court.

At that hearing, the person from whom they were seized, in this case, the book seller or anyone else who claims an interest may come in and contest the fact of obscenity and ask the books to be return to whoever had the right to them under their claim.

The Court passes upon the issue of obscenity in an expeditious manner.

And if they are determined to be obscene, orders them destroyed or held for evidence if necessary in a prosecution and then destroyed.

Fred L. Howard:

If the Court determines they are not obscene, they are returned to the owner, in this case, the book seller.

John M. Harlan II:

What was the elapse time between the seizure and the issuance of the opinion by the nisi prius court?

Fred L. Howard:

In this particular case, the — start out on the 10th of October and the opinion came down some considerable time later because of the constitutional issues that were injected into this case.

In other words, the Court did a lot more than December the 12th, appellant says.

John M. Harlan II:

What was the time?

Fred L. Howard:

Sir?

From October —

John M. Harlan II:

(Voice Overlap) —

Fred L. Howard:

— the 10th to — from October the 10th when they were seized until December the 12th of the same year, November, December, two —

John M. Harlan II:

(Voice Overlap) —

Fred L. Howard:

— two months and two days.

John M. Harlan II:

I beg your pardon?

Fred L. Howard:

Two months and two days, I believe, under that theory.

John M. Harlan II:

On the time that all of this stuff was (Inaudible)

Fred L. Howard:

Yes, Your Honor.

Charles E. Whittaker:

(Inaudible)

Fred L. Howard:

No, Your Honor.

In other words, when they start to have this hearing on the question of obscenity, we have long motions attacking the constitutionality of the statute and the constitutionality of the procedure and everything else which — on which evidence was taken and which was submitted.

Briefs were submitted to the trial court.

There was time given for briefs on the constitutional issues and things of that sort which, of necessity, extended the time beyond what it would have been if the only issue were are these things obscene or are they not obscene.

Charles E. Whittaker:

(Inaudible)

Fred L. Howard:

Yes, Your Honor.

And the hearing was set within that time limit.

But because of the issues involved, the final determination was delayed for approximately two months.

John M. Harlan II:

Is there any — are there many of these proceedings?

Fred L. Howard:

Your Honor, as far as I know, this is the only one.

There may have been other but this is the only one to reach an appellate court.

There may have been others in the trial court that the Attorney General of Missouri has no knowledge of.

John M. Harlan II:

Did the Attorney General has the matter of what the elapse time as —

Fred L. Howard:

No, I —

John M. Harlan II:

— this case (Voice Overlap) —

Fred L. Howard:

— it would not be because this is the only one I know about, and I think it’s the only one where it’s — it’s been used for obscenity.

William J. Brennan, Jr.:

Many of these things seems to have periodically been —

Fred L. Howard:

Yes.

There were a number of them hold such as Adam and Playboy and Nugget and a whole string of them Your Honor.

Most of which I never heard.

William J. Brennan, Jr.:

I take it, there were no longer current issue by the time the case was decided.

Fred L. Howard:

I’m sure that — some of them were, some of them were quarterlies and some of them were undated.Many of them were monthly dated magazines.

So that you have a variance in your fact situation from one exhibit to the other, but they were numerous that were monthly dated magazine.

Charles E. Whittaker:

Does the whole (Inaudible)

Fred L. Howard:

Yes, there are, Your Honor.

I saw the map of the argument in Missouri Supreme Court before the motion for rehearing.

Earl Warren:

Could there be any constitutional difference between this kind of a periodical and a daily newspaper?

Fred L. Howard:

I doubt if there would be, Your Honor, except as applying the test.

Now, in applying your test, I can’t very well see how a daily newspaper would reasonably be figured that it would — the prime purpose of that would be devoted to prurient interest whereas in your magazine there are more classified and less general and therefore, the application of your test would be different.

But I think the same test would apply where the contents of the two comparable.

Earl Warren:

There are some people who believe the comics in a newspaper column are not obscene have equally — are there objections to them on the same if we’re going to have a censorship than we have at — over the newspapers in the same way?

Fred L. Howard:

Your Honor, I submit that this is in no manner censorship.

If we were going to have a form of censorship, I suppose, constitutionally, it would apply to newspapers as well as magazines.

I can see no constitutional basis for differentiating between them.

Hugo L. Black:

Why do you say this is not censorship?

Fred L. Howard:

Why do I say that, Your Honor?

Because this does not prohibit, in any manner, the publication of anything that one desires.

It is not constitutionally censorship.

All this does is remove from circulation that which is without a constitutional protection under decisions of this Court.

Hugo L. Black:

Well, does that keep it from being censorship which you just said?

But it is for the censorship to see if it has things in it that, as you say the Court had said, could be suppressed?

Fred L. Howard:

Under that definition and perhaps, it would be censorship.

What I have myself normally considered censorship is that which says you can’t publish until it is approved.

Charles E. Whittaker:

(Inaudible)

Fred L. Howard:

I have coordinated it too, yes, Your Honor, perhaps, improperly.

But I submit here that, at any — at any event, there is, in this instance, no prior restraint under the Missouri statute because the items are seized, brought into the Court after they have been published, that it is only to the matter which this Court has determined is not subject to constitutional protection under freedom of speech and freedom of press that is affected.

That is already destroyed that trafficking in such items is, by the statute, stopped entirely.

William J. Brennan, Jr.:

Well, Mr. Howard, do I correctly read this statute as reaching advertisements of books and pamphlets and so forth?

Fred L. Howard:

Advertisements of obscene literature, yes, Your Honor.

They are not —

William J. Brennan, Jr.:

Advertisements or notices of any kind in an information directly or indirectly when, where, how or of whom any of such things can be obtained.

Fred L. Howard:

Yes, Your Honor.

William J. Brennan, Jr.:

I would suppose this huge distribution company might prevent the effect in advertisement in your local newspapers’ advertising (Inaudible) as a Playboy form of magazine.

Would that make that those issues in the newspaper subject to seizure given such?

Fred L. Howard:

I’m not sure, Your Honor, on that issue.

I — until this moment, I had not considered that.

William J. Brennan, Jr.:

Well, on the face of it (Inaudible) advertisements —

Fred L. Howard:

On the base —

William J. Brennan, Jr.:

— at anytime giving information directly (Inaudible)

Fred L. Howard:

Yes, Your Honor.

Felix Frankfurter:

Well, that turns on whether this statute is — whether direct obscenity dissemination under your statute can be dealt under your statute.

Because if it can, I suppose —

Fred L. Howard:

Well, now —

Felix Frankfurter:

— advertising things that are illicit, assuming they are, would likewise within the power of the State, within —

Fred L. Howard:

I believe they would, Your Honor.

Whether or not the whole newspaper would be subject to seizure because of that would, it seems to me, go back to a determination of whether one advertisement in your newspaper converted what would rather be alright into something that would meet your test because of that of what is obscene and beyond the constitutional protection.

I suspect that your one advertisement illustration would still not subject that newspaper to seizure.

Of course, we don’t have that issue before us today, but it would seem to me that that illustration would not convert the newspaper into something that was within the test of obscenity laid down by this Court.

William J. Brennan, Jr.:

Well, I don’t understand that the — the statutes reach depends upon the advertisement being, itself, obscene, but merely the fact that advertisers where Playboy, assuming Playboy, to be obscene, may be printed.

Fred L. Howard:

Yes, Your Honor.

I think that is right.

But I also think that —

William J. Brennan, Jr.:

Well, my point is I don’t quite understand your argument that the determination of the paper might be seized, it would depend upon the application of the Roth test.

Fred L. Howard:

Well, it seems to me that your Roth test is that the primary impact of your publication is on prurient interest.

Fred L. Howard:

And if — although the advertising may not, itself, be obscene because that convert the primary impact of the newspaper because of this advertisement for something that is obscene and therefore, some connection with obscenity in to a publication whose prime objective is catering to prurient interest.

It would seem to me to — to require a similar test, I’m not phrasing it very good, in order to determine that issue, and I doubt if the newspaper would come within such a proper test.

Charles E. Whittaker:

Mr. Howard —

Fred L. Howard:

Yes, sir.

Charles E. Whittaker:

— do you not, at the threshold, have to sustain the Court’s action in denying petitioner’s motion to suppress or to return these goods?

If — if the Court was wrong about that, then there was — there’s nothing before the Court, was there?

And how do you sustain, if that’s right, how do you sustain the Missouri court’s action in overruling that motion to return for those motions?

Fred L. Howard:

I think there’s two branches to that, Your Honor.

First, I might say that I think there is quite possibly something before the Court even though that motion should have been initially sustained by the trial court.

Secondly, when I was about to get to what will answer your question, I believe, is a question of the propriety of this search warrant address to anything that is obscene, lewd, lascivious, etcetera, in the wording of the statute.

I take it to judges could be — question goes to whether it should have been — the motion should have been sustained because the search warrant was bad for that reason.

Charles E. Whittaker:

Provide (Inaudible)

Fred L. Howard:

Yes, sir.

I do not believe, and, in fact, the search warrant is subject to that criticism for these reasons.

There are, of course, two types of search warrants.

One says you will go out and seize a specific item which will be described as a — the January issue of Playboy or a black and white 1967 Chevrolet of a certain serial number or whatever it maybe.

There are also other types of search warrants recognized in the law which are not, for a specific item, but for R4A described class of items.

In other words, you go out and seize all alcoholic beverages found at the place described.

You go out and seize gambling equipment found at the place described, you go out and seize whatever is described and whether you find one or three or five that it orders the officers to seize that.

Charles E. Whittaker:

Assuming that may be so as they applied to quantities of goods, would it be so as we (Inaudible) “obscene” matters?

Fred L. Howard:

I believe it is, Your Honor, yes.

I think it is.

Felix Frankfurter:

But before you answer, may I make sure that I understand your starting point.

Are you addressing yourself — would you be addressing yourself to the question as I understood that a search warrant may direct searching officers to seize all obscene matters found on the premises at 6 — 27 South (Inaudible) Street?

Fred L. Howard:

Yes, sir.

Felix Frankfurter:

Just like that.

Fred L. Howard:

Yes, sir.

Felix Frankfurter:

So that — so that — I just want to be sure that I get the — reach the (Voice Overlap) —

Fred L. Howard:

That —

Felix Frankfurter:

— so that the officer will have to examine the materials and exercise a judgment what — on what is and what is not obscene.

Fred L. Howard:

That is right, Your Honor.

Felix Frankfurter:

Alright.

Fred L. Howard:

And it is my —

Felix Frankfurter:

You’re going to address to yourself as to the —

Fred L. Howard:

To — to the propriety.

Felix Frankfurter:

— constitutional power of Missouri.

Not propriety.

I don’t care about that.

Fred L. Howard:

Well, to the constitutional —

Felix Frankfurter:

Constitutional power of Missouri to make such authorization.

Fred L. Howard:

Yes, Your Honor.

Felix Frankfurter:

Alright.

William O. Douglas:

Well, I suppose you assume that he has, with him, a copy of the Roth opinion and understands it, knows it and advise it.

Fred L. Howard:

I was not assuming that, Your Honor —

William O. Douglas:

What?

Fred L. Howard:

— no.

Because as a practical matter, there are — I am sure several policemen who exercise warrants who wouldn’t be able to understand it if he had it, so I’m not —

William J. Brennan, Jr.:

(Voice Overlap) —

Fred L. Howard:

— putting my argument —

William J. Brennan, Jr.:

— several?

Fred L. Howard:

— on that basis.

William J. Brennan, Jr.:

Only several?

Fred L. Howard:

Well, I wanted to be conservative, Your Honor, on that aspect.

William J. Brennan, Jr.:

I was trying to help you out a little bit.

Fred L. Howard:

Thank you, Your Honor.

William J. Brennan, Jr.:

I’m sure the — I’m sure the [Laughter] police officers get no training in the distinction between what’s obscene and what’s not, do they?

Fred L. Howard:

As a practical matter from experience, they do, yes.

But that’s —

William J. Brennan, Jr.:

They do.

Fred L. Howard:

— that’s all —

William J. Brennan, Jr.:

(Inaudible)

Fred L. Howard:

— because they receive numerous complains from various —

William J. Brennan, Jr.:

No, I meant formal.

Fred L. Howard:

Oh, no, not formal.

I said only from experience as — as to what the —

William J. Brennan, Jr.:

They recognized (Voice Overlap) —

Fred L. Howard:

— feeling the public is to the matter.

William J. Brennan, Jr.:

— in order to when they see it.

Fred L. Howard:

Some of them would assure you that they did.

[Laughter]

Felix Frankfurter:

I didn’t want to — want to —

Fred L. Howard:

No.

Felix Frankfurter:

— interrupt your answer to Justice Whittaker’s question.

Fred L. Howard:

Yes, sir.

As I was saying there — there are, I believe, two recognized types of search warrants.

This is the latter type whether you direct the officer to seize anything found in the — of the class described.

The warrants in this case were worded in the wording of the statute, that is, obscene, lewd, lascivious — obscene, lewd, licentious, indecent, lascivious are of an indecent, immoral or scandalous character.

Charles E. Whittaker:

(Inaudible)

Fred L. Howard:

Your Honor, the statute on that, I have it here, I believe, marked.

The statute Section 542.390 says that the warrant shall describe the place to be searched or the thing to be seized as nearly as may be.

Now, it seems to me that the description, as I have read, in the wording of the statute, in the case like this, does, in fact, describe I think as nearly as may be.

Now, further — and which has been inactive since the inaction of that statute, Missouri Supreme Court Rule 33.01 paragraph (b), which is set out on page 39 of appellants’ brief in this Court provides that the search warrant issued must contain a description of a personal property to be searched for and seized and the description of the place to be searched in sufficient detail and particularity to enable the officers serving the warrant to readily ascertain and identify the same.

Charles E. Whittaker:

(Inaudible)

Fred L. Howard:

I submit that it does, Your Honor, for the simple reason that this Court has pointed out, Missouri Supreme Court has only pointed out that under the criminal statutes which used the same wording that those statutes are constitutionally definite enough to give a guide to a person to determine whether or not he is violating that criminal provision.

And I think there is a definite correlation between those cases which hold such language is sufficient to satisfy due process requirements as to the definiteness of a criminal statute.

Felix Frankfurter:

This is after — this is — in — in case of a criminal statute that a charge made against the defendant under — under such a statute, and there’s a trial, there’s a contest etcetera, etcetera.

Fred L. Howard:

Yes, Your Honor.

Felix Frankfurter:

Now, all that, that complicated procedure, that protective procedure is all embodied in the exercise of judgment by the police officer, isn’t that right?

Fred L. Howard:

I don’t quite believe I follow the last part of that question, sir.

Felix Frankfurter:

Well —

Fred L. Howard:

In other words, you say that the exercise of discretion by the police officer and determine what he is going to seize is to be a thorough —

Felix Frankfurter:

Is in effect — is the — is —

Fred L. Howard:

Is the due process hearing.

Felix Frankfurter:

I’m suggesting that the judgment that he’s allowed to exercise under such a procedure, is that which comes at the end of a criminal trials in open court contest, pro and con, examination of witnesses, lawyer’s objections, lawyer’s argument etcetera, etcetera.

And so I said that that complicated process of a trial is all lodged in the judgment of the police officer making the search, isn’t that right?

Fred L. Howard:

I would beg to disagree with Your Honor on that point for this reason.

It seems to me that the action of the individual in determining whether or not the action he takes is criminal.

Felix Frankfurter:

He must forecast what is going to happen in the trial.

Fred L. Howard:

Forecast what is going to happen.

And —

Felix Frankfurter:

I know but —

Fred L. Howard:

— in order to protect his constitutional rights at that point, he is entitled to a statute which is definite enough to satisfy the requirements of due process.

And my point is that that test —

Felix Frankfurter:

But he isn’t —

Fred L. Howard:

— as applied there.

Felix Frankfurter:

But that suggesting of his or that forecasting of his is put to the test by giving him a day in court.

Fred L. Howard:

Yes, Your Honor.

Felix Frankfurter:

Now, here, with reference to seizure, he has no day in court, he has merely inaction by the police officer, isn’t that right?

Fred L. Howard:

No, Your Honor.

The police officer is only a method of initiating a day in court.

Felix Frankfurter:

No, but the seizure, so far as that seizure is concern.

Fred L. Howard:

If the seizure were in — in and of itself, he would be right, yes, Your Honor.

Felix Frankfurter:

Well, when those — when the goods were seized or the material were seized, as Justice Harlan indicated, to that extent, until there is a disposition in a proceeding following, to that extent, he is already put in a position of having withdrawn what he may believe to be illicit good, isn’t that true?

Fred L. Howard:

That is right, Your Honor.

Felix Frankfurter:

Now, in the other thing — in the — in the criminal case, he can keep on selling these things until finally a jury comes in and the judgment verdict against them is broad and the verdict is sustained.

Fred L. Howard:

Well, he can keep on right after that as soon as he pays his fine or serves his sentence and walks out to the door.

He can go right back to selling that again, Your Honor.

And normally, those who are engaged in such procedure —

Felix Frankfurter:

But in —

Fred L. Howard:

— do just exactly that.

Felix Frankfurter:

No, but — but in the criminal case, he had the opportunity —

Fred L. Howard:

Yes, sir.

Felix Frankfurter:

— of pitting his judgment and continuing in the market as it was.

Fred L. Howard:

Yes.

Felix Frankfurter:

Here, he has no such opportunity because the police officer cuts it short.

Fred L. Howard:

He has no such opportunity as to these particular —

Felix Frankfurter:

That’s right.

Fred L. Howard:

— volumes which are seized by the police officer.

Felix Frankfurter:

That’s right.

Fred L. Howard:

Of course, there is nothing at all to keep him from procuring other copies of the same publication —

Felix Frankfurter:

No, no, no, but —

Fred L. Howard:

— and going ahead in selling.

Felix Frankfurter:

— but if in fact, if the jury brings in a verdict of acquittal —

Fred L. Howard:

Yes, sir.

Felix Frankfurter:

— then he hasn’t been out.

The judgment has been vindicated.

But if here, in fact, there’s been a seizure and subsequently, it is found that the good were not obscene, he has been out of an exercise of free enterprise as to those points — as to those goods.

Fred L. Howard:

As to those particular volumes, he has been, as you say, unable to distribute those particular volumes during the short interval that —

Felix Frankfurter:

And —

Fred L. Howard:

— is involved in the judicial determination.

Felix Frankfurter:

And — and determination of his — of his — what he conceives to have been his freedom of action in one case as the result of a process you should have a jury and a judge in this case.

It’s beyond — it’s — it’s the single judgment of a police officer guided by what he has been instructed is to be deemed obscene or not.

That’s the wording.

Fred L. Howard:

Yes, sir.

In other words, that — that initiates the judicial proceeding.

Felix Frankfurter:

Well, it not only initiates but it concludes something for a time being.s

Fred L. Howard:

Yes.

Felix Frankfurter:

It concludes the withdrawal from his disposition of the things that the police officer seized.

Fred L. Howard:

Yes, sir.

Those —

Earl Warren:

As I understand it, they — in this case, they took 280 different kinds of periodicals.

Fred L. Howard:

That’s right, Your Honor.

Earl Warren:

And 11,000 volume or issues.

All the issues presumably that they have to those 280.

And of those 280, the Court found that 180 of them were not obscene.

Fred L. Howard:

That’s right, Your Honor.

Earl Warren:

So he was exercising a rather wide discretion, wasn’t he, when he — when he started to select what was obscene and what was not obscene without any direction from the — from the Court in the search warrant?

Fred L. Howard:

He was, Your Honor.

And I think that because we are dealing with human beings in the inexact English language that unless the Court is going to say that constitutionally, you can seize only a specifically described item that cannot be mistaken that you have such problems.

Felix Frankfurter:

You — you —

Fred L. Howard:

But —

Felix Frankfurter:

— you can have a Kingsley statute which is very different, wasn’t it?

Fred L. Howard:

Yes, Your Honor.

That says to him, “You can’t sell any issue of Playboy until we have an adjudication.”

Now, that’s in rem.

Felix Frankfurter:

Oh, no, it doesn’t say that.

That isn’t what Kingsley said.

It certainly didn’t say it except after one or two or four days, whatever it is, until there is a determination which I get to this —

Fred L. Howard:

Well, now, there was — there was an injunction pendente lite in that case, if I understand it.

Felix Frankfurter:

Only after adjudication.

There wasn’t an injunction.

The mayor of a city can’t go into court under the New York statute and right away get an injunction pendente lite.

That has to be litigated.

And the statute provide with — with an argument of this very problem by saying, “You must get two days notice.

The case must come on in forth and the question of — of a pendente lite injunction is itself litigated and must be determined within four days, so that you got a judicial oversight of this power of restriction.

I think I’m right about that, Mr. Howard.

Fred L. Howard:

Well, I wouldn’t say that you weren’t, Your Honor, because I think you had something to do with that opinion but —

Felix Frankfurter:

Well, the Court had something to do with it.

Fred L. Howard:

Yes, sir.

It was my impression in that case that on complaint, the Court —

Felix Frankfurter:

At one session of pendente lite?

Fred L. Howard:

The Court issued on notice —

Felix Frankfurter:

I don’t —

Fred L. Howard:

— a — an injunction pending the determination of the issue of obscenity that —

Felix Frankfurter:

And it’s done only by giving four days notice, as I see that.

As end of four days, the thing comes on at once.

Fred L. Howard:

Yes, sir.

Felix Frankfurter:

It doesn’t — it isn’t an allegedly proceeding but then we don’t alleged proceedings on the order of nature of it.

Fred L. Howard:

No, Your Honor, and we trust, Missouri is not a allegedly proceeding either.

I think that the difference in time there is of very minor importance.

And Missouri statute, of course, operates against the individual publication where —

William J. Brennan, Jr.:

May I ask, Mr. Howard, what was the elapse time until the declaration of a non-obscenity in the 180 distributed?

Fred L. Howard:

The same as the other.

It was — in this particular instance, it was two months and two days, Your Honor.

William J. Brennan, Jr.:

So, and I thought — of those 180 included a number of periodicals monthly.

Fred L. Howard:

I think it did, yes, Your Honor.

William J. Brennan, Jr.:

There’s no question that they have lost their (Voice Overlap) —

Fred L. Howard:

That’s right, that’s right, Your Honor, in this case.

Now, as I mention before, I — I submit that the reason for the delay was not on — on the decision of the obscenity issue whereupon the decision of constitutional issues.

And there were — there was time in the brief cases and things like that, I mean, submit briefs which strung it out a lot longer than if they only have the obscenity issue involved.

It is the position of the State of Missouri here that the Missouri statutory system is, in fact, comparable to that in Kingsley.

There are differences admittedly.

Missouri operates in rem upon the publication.

The publication is seized, brought before the Court the question of obscenity is determined, and it is disposed of either returned or destroyed.

In Kingsley, the — they operate in personam on the particular individual.

They filed a complaint against the bookseller for having the publications listed in the complaint which they allege to be obscene.

They proceed to — to an expeditious determination of the issue of obscenity.

If they determined it is obscene, he is enjoined from distributing that — the books’ name.He is also ordered to surrender them for destruction.

If he doesn’t surrender them, then there is order of seizure to go out and get them and surrender.

Felix Frankfurter:

I ought to know, but I don’t Mr. Howard, when was this legislative scheme enacted?

Fred L. Howard:

Of Missouri?

Felix Frankfurter:

Yes.

Fred L. Howard:

The exact year, I’m not sure, but it’s sometime before 1900.

Felix Frankfurter:

Before 1900?

Fred L. Howard:

Yes, it’s bound on the books a long time, but —

Felix Frankfurter:

It’s the same scheme.

Fred L. Howard:

— but as to obscene literature, as far as I know, it’s never been used.

Missouri has several statutes that have been entirely ignored for long periods of time.

Felix Frankfurter:

In getting more moral, are you?

Fred L. Howard:

Well, there is getting more uproar about this question, and I think there is getting to be a lot more of what is normally called “obscene literature” that it used to be.

If my short span of personal experience has anything to do with it, that is true.

Potter Stewart:

You do have, I suppose, a criminal statutes.

Fred L. Howard:

Yes, we do, Your Honor.

There are misdemeanor statutes.

Potter Stewart:

Yes.

Fred L. Howard:

And we have — in the Becker case, which we were talking about earlier today, was a prosecution under the criminal statute.

But I submit that here, the — one of the important arguments of appellant is that, is the appellants have a constitutional right to engage in the trade of selling obscene literature, and they have a constitutional right not to be interrupted in that trade, not to lose their profits therefrom that the hands of the State of Missouri are tight and that the State of Missouri can only interfere by way of enforcement of the criminal statute.

That goes contrary to the pronouncements of this Court that the State is not limited to criminal prosecution in order to protect itself from obscenity and to protect its citizens from obscenity.

But the appellants say that they have an absolute right and that that is all that Missouri can do.

And that if they consider that it is economically advantageous to them to continue to engage in this business and to run the risk of prosecution that they have a constitutional right to do so.

I submit to you that that is not true that they do not have a constitutional right to engage in making a profit out of obscenity, that the State of Missouri does have a right to protect its citizens against the dangers and the evils of obscenity.

This Court has said the State is not limited to criminal prosecution.

I submit that the statutes of Missouri are a reasonable procedure to protect the citizens of Missouri from the evils of that which this Court has said are not within the scope of the constitutional protection of freedom of speech and press from the First Amendment and the Fourteenth Amendment.

Therefore, I believe that the statutes, considered as a whole, are not an unreasonable restraint upon the right of freedom of speech and of the press.

And this Court has more than once held that the rights under freedom of speech and of the press are not absolute.

They are, in many fields, paramount, I will agree with that.

But I do not believe under the holdings of this Court in Roth and Alberts and in Kingsley Books and in the Michigan case and the other cases going clear back the Near versus Minnesota, that such a scheme, as we have here, does not constitute a prior restraint within the constitutional meaning as that phrase is applied to the question of freedom of speech.

Charles E. Whittaker:

(Inaudible) that before we ever got to those questions, we’ve got to find that you came and that the State did come into possession of these things under a lawful warrant gauged by the command of the First Amendment, do we not?

Before we ever reached these questions you’re talking about.

Fred L. Howard:

I think, Your Honor —

Charles E. Whittaker:

(Voice Overlap) —

Fred L. Howard:

— that — first place, as I have mentioned a minute ago, I submit that this is a lawful warrant subject to the questions and criticisms that has been raised here today.

I believe they are with — without sufficient force to declare it to be void.

Second, I believe that after these hearing has been held and a determination has been made that these matters now before the Court, these 100 exhibits are, in fact, obscene and without the protection of the First Amendment, that if you say now, “Well, do you made a mistake back there somewhere?”

That does not necessarily mean, first, the statute is unconstitutional or second, that the defendant is entitled to the return of these particular matters.

Although, in this particular case, I think the disposition of the particular exhibits is of minor importance in this case.

Charles E. Whittaker:

May I ask you, would that be then to determine the validity of the search warrant by the result of its exercise of what you find?

Fred L. Howard:

For you’re in an action in rem on the particular item itself, yes, Your Honor.

In other words, we are not dealing here with an action in personam and the use of a search warrant to bring evidence against the person to be used in court or do something against the person.

We are dealing here with an action directing at the objects themselves at the disposition of what, in effect, is contraband.

And while there may be remedies to the person because those are seized, I do not think that the fact that the search warrant may have been too broad in this instance would necessarily entitle the individual to the return of the contraband.

Charles E. Whittaker:

You say that because the product of the search is obvious obscenity, hardcore.

Fred L. Howard:

That’s right, Your Honor.

Charles E. Whittaker:

Oh, wouldn’t that be then to judge the validity of the search warrant by the results of the search?

Fred L. Howard:

No, I don’t think so, Your Honor.

I think that it would be to say that even though you judge the search warrant and find it bad that as when you do, in effect, have contraband before the Court that you do not have a right to the return of such contraband.

There’s a difference there.

I may not be making myself clear on the difference, but I believe there is a difference.

And I think that that question is not necessarily concluded by the determination of whether or not the search warrant in this case is held good or bad.

But, I would want to add that if the search warrant is held bad and whether the consequences this Court holds flow from that, that does not, of course, mean that there is any infirmity in the Missouri statutory scheme.

It merely means the execution of that part of it which provides for the initial search warrant was erroneous.

And I don’t think that issue on the propriety of the wording of the search warrant is determinative of the constitutionality of the Missouri statutory scheme at issue here.

There are two separate questions, I believe.

And if we assume for the purpose of argument that search warrant was bad that it is — does not follow that the statutory scheme of Missouri should fall therewith.

Charles E. Whittaker:

But you would — if you determine the form, you would never reach the latter.

Fred L. Howard:

You would not need to reach the latter, and I say it does not follow that the statute is bad.

It just means somebody, if you pardon the expression, somebody goofed when they issued the search warrant.

Charles E. Whittaker:

Isn’t it true, as a matter of practice, when these officers went out to execute this warrant and they go to the trial jurors, they take some, they fill out of it, just like sorting apples, isn’t it?

Now, aren’t — isn’t that police officer then operating as his own censor board?

What controls him?

Fred L. Howard:

What controls him?

His knowledge of the English language and what is and is it not within the wording of the warrant which, as I have said, is in the words of obscene, lewd, lascivious etcetera and so forth.

Charles E. Whittaker:

I might be at one pile and you in another —

Fred L. Howard:

Yes, sir.

Charles E. Whittaker:

— and you throw out stuff that I keep.

Fred L. Howard:

I think that is quite possible, Your Honor.

I agree with you.

I think that is quite possible.

Charles E. Whittaker:

Now, is that what the law contemplates when it says the warrant shall specifically describe the thing to be seized?

Fred L. Howard:

I think that that count was in it because the difficulty here is not, to my mind, the lack of description.

The difficulty is the fact that the words of the English language convey different meaning to different people.

And when you’re dealing with the English language and dealing with people, you are subject to that.

And either, you are going to say that you must limit the search warrant to a specific item as contrasted to a class of items to be described.

I submit that the description — the words used in this description are within the constitutional limits.

John M. Harlan II:

Do you have a special group of obscenity officers?

Fred L. Howard:

No, Your Honor.

In this particular instance, the members of the Kansas City, Missouri Vice Squad — Police Department Vice Squad were the ones who actually operating on the search warrant.

John M. Harlan II:

You can never have any of these prosecutions before they could have much experience in seizure of this warrant.

Fred L. Howard:

Now, they have had no experience in seizure, so they have had some experience in prosecution.

Charles E. Whittaker:

I would say from my examination of the box of goods that they used pretty good discretion.

Fred L. Howard:

Your Honor, as to the exhibits that are before the Court, I will urge very strongly that those exhibits are obscene without question.

Now, I didn’t see the other 180 exhibits that were returned, so I have no comment to make.I can’t say anything about those others.

Some of them, I understand, were pretty borderline, but the decision was, shall we say, leaned over backwards in favor of being sure that they did not err against the individual, what they erred against the state of the err in that determination at all.

William O. Douglas:

I — I notice that some of them included stories by Guy de Maupassant (Inaudible)

Fred L. Howard:

I believe there was — I can’t remember, Your Honor.

There were two or three that did, I think, out of the hundred that did have those stories in them.

And of course, I could tell you, Your Honor, if I remember there were other things besides articles by those two authors that were very questionable in those magazines, and I would say whether the article by de Maupassant, for instance, was the cause of what have been declared obscene or whether it was other contents of the magazine.

That would be my judgment that that issue was resolved on the basis of the entire content of the magazine not of — and of course rather than on anyone particular article therein.

I have lost complete track of time, Your Honor, but I believe I have covered enough of the points which the State wishes to present.

And I submit that there has been no violation of the constitutional rights of the appellants in this case.

Earl Warren:

Mr. Glazer.

Sidney M. Glazer:

Before con — concluding my argument in view of the questions in the Court, I would ask to leave the file with the clerk the briefs that appellant filed in Missouri Supreme Court so the Court will be able to look and to see what assignments to be made in the briefs if the Court so desires.

Earl Warren:

You will leave your briefs about this?

Sidney M. Glazer:

Yes, Your Honor.

Earl Warren:

Yes.

Sidney M. Glazer:

Now, just to clear up certain misimpressions that I think appellees’ argument might lead to, the Missouri Supreme Court actually did not determine that these magazines were obscene.

This can be seen from page 127 of the brief.

All the Missouri — Missouri Supreme Court said is, “The judgment shall not be set aside unless clearly — clearly erroneous,” and then they said, “We do not find the judgment of the trial court to be clearly erroneous in any respect.”