McKinney v. Alabama – Oral Argument – December 15, 1975

Media for McKinney v. Alabama

Audio Transcription for Opinion Announcement – March 23, 1976 in McKinney v. Alabama

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Warren E. Burger:

We will hear arguments next in McKinney against Alabama.

Mr. Smith you may proceed whenever you are ready.

Robert Eugene Smith:

Mr. Chief Justice and may it please the Court.

This is a case started back in 1970 when a Mobile Judge in Mobile, Alabama which is approximately 265 miles from the City of Birmingham in a civil proceeding found a publication among a series of publications to be obscene under the laws as being interpreted at that time.

This was a civil proceeding against a bookstore operator in Mobile, and this would have been in approximately February I believe of 1970.

Not this petitioner?

Robert Eugene Smith:

Pardon.

The bookstore was not —

Robert Eugene Smith:

Was not the petitioner nor was there any allegation of a relationship Your Honor, directly or indirectly.

Then shortly after the proceedings in Mobile, the Assistant Attorney General of the state Mr. Barnes, I believe walked into petitioner’s bookstore in Birmingham and handed him a letter to advise him that certain publications were obscene and had been found obscene by a judge in Mobile.

Now —

Potter Stewart:

May I ask question?

Robert Eugene Smith:

Yes sir.

Potter Stewart:

Was there any appeal from the Mobile Judgment?

Robert Eugene Smith:

No Sir.

I think it is conceded that there was none, but of course our petitioner was not anyway involved.

Potter Stewart:

I understand that.

Robert Eugene Smith:

Yes sir.

Potter Stewart:

Second question.

What was the burden of proof in the Mobile litigation?

Robert Eugene Smith:

It would have been the civil burden of proof and that is to say —

Potter Stewart:

What was it, not what it would have been?

Robert Eugene Smith:

I am told it was preponderance evidence.

I was not privy.

There was no appeal.

There was no transcript written up of that case and of course our decision then came down from the Supreme Court of Alabama until May of 1974, long after —

Potter Stewart:

Was it by preponderance of the evidence?

Robert Eugene Smith:

Preponderance of the evidence.

That is all that is required in the civil proceeding under Alabama Law and there is no reason to believe it is the contrary.

And at the time of Mr. Ferris Ritchie, counsel questioning Mr. Charlie Barnes at the time of proceedings in this case, he tried to get into what happened at the trial and the judge said that was not relevant anymore and so he foreclosed him from having an opportunity to go into any issues whatsoever.

Robert Eugene Smith:

So we can take, I believe, the presumption that it was a civil burden of proof and that is to say preponderance of the evidence.

Harry A. Blackmun:

Does that mean Mr. Smith that had Mr. McKinney in some way been associated or involved in the Mobile proceeding, you would still be here today?

Robert Eugene Smith:

On that issue, yes sir.

On that issue, but I think our position would be whereas we are arguing let us say, one or three or four factors today, we would be foreclosed from several of them.

Well, as I said, on March 10, 1970, the Attorney General went in as I said Mr. Barnes and gave a letter to Mr. McKinney, Approximately, a couple of weeks later, they went back and Mr. Barnes together with an investigator and found one of the publications on this list of approximately 10, was still on the racks available for sale and where upon they purchased it and surely thereafter filed a complaint.

Now, the notice provision —

Warren E. Burger:

Any difference whether it is one or half?

Robert Eugene Smith:

Well, Your Honor, somewhere along in the Attorney General’s brief, he says that this is a reckless disregard.

He was given notice.

He did not find all ten publications there, that is all I am saying.

So we were talking about one out of ten of the publications.

He may have had all the ten, he may not have all the ten, I do not know.

I was just making that as a fact that he was not just recklessly laying everything out that it had been found obscene down in Mobile and said okay, now do what you want.

That is not the kind of attitude he was presenting.

So, this letter was given under the provisions of the 1969 Act.

The 1969 Act Your Honors is found at, I think page 40 of the brief and argument of the respondent reply to amicus curiae appendices.

And on page 46, under C —

Which color is that Mr. Smith?

Robert Eugene Smith:

It is white sir, brief and argument of the respondent and reply; page 46, Section 2, sub-paragraph (c).

Now, this is the only time this statute has got anything to do with this case because it talked about the fact and this is sort of an inclusion in here, “nothing in the section should be deemed to apply to mailing matter unless such mailable matter is known by such person to have been found — judicially found to be obscene,” but under the provisions of any other Alabama statute.

That of course, Section 6 on page 47 says, the provisions of this Act are cumulative and shall be in addition to any other laws that are enacted.

Curiously enough, this case was decided May 9, 1974.

On May 9, 1974, the Alabama Supreme Court in a decision in other case said that notice provision was unconstitutional because that represented a prior restraint much like the Bantam Books and a decision of this Court in the bygone era.

Warren E. Burger:

Which present Section 6?

It said they found that unconstitutional?

Robert Eugene Smith:

Your Honor.

Section 2(c) and Section 4 Your Honor.

Now where?

Robert Eugene Smith:

Section 4.

That is the one?

Robert Eugene Smith:

Section 4 was found.

Yes, that is correct.

I am sorry, was found, which also has a notice provision and they found that unconstitutional.

The same day in the case of Belu (ph) versus the State of Alabama, that was case number 480 and that was on the decision by the Court.

So this gentleman, Mr. McKinney was tried under the provisions of a different law and that was a law that was enacted in 1961.

And I direct your attention Your Honors to page 20 of the brief and argument and opposition to petition for writ of certiorari also white.

And this is a section which permits a civil equity proceeding, whereby an injunction can be obtained against the dissemination of a particular publication found to be obscene.

William J. Brennan, Jr.:

However, you are telling us Mr. Smith that this is the statute under which the Mobile proceeding was brought?

Robert Eugene Smith:

This is the statute under which Mr. McKinney was convicted.

William J. Brennan, Jr.:

Oh! So —

Robert Eugene Smith:

The notice provision was given pursuant to the 1969 Act, but as I said, that is the last time we deal with 1969 Act.

We get back into the 61 Act which is really what we are here before the Court today saying is unconstitutional.

Potter Stewart:

And we are talking now about this Section 4 appearing on page 20?

Robert Eugene Smith:

Yes sir, correct.

Potter Stewart:

And that is the –- what you have given us so far really is preamble to this?

Robert Eugene Smith:

Correct.

And I merely say there are two sections.

There are two remedies that can be applied.

There is a civil provision which reaches under Section 11 on page 25 Your Honors and that is of course punishable by contempt and then there is the criminal provisions and penalties which is Section 4 under page 20.

Byron R. White:

And the crime there I take it is not selling an obscene material, but selling some material that has been declared to be obscene?

Robert Eugene Smith:

That is right.

Byron R. White:

At least that is what says on its face?

Robert Eugene Smith:

Any mailable matter known by such person who had been judicially found to be obscene under this Act.

Warren E. Burger:

Where were you reading that from?

Robert Eugene Smith:

That is page 20 Your Honor.

Warren E. Burger:

The same?

Robert Eugene Smith:

Section 4.

No Sir that is the brief and argument in opposition, the other white.

It is Section 4 (1) and a half way down to the page Your Honor and it starts, “Or any mailable matter known by such person who had been judicially found to be obscene under this Act shall be guilty with misdemeanor.”

Potter Stewart:

And that was the conviction on this case?

Robert Eugene Smith:

Correct.

Now, for which Mr. McKinney received 515 days for failing to pay his fines, 365 days sentence and 19 days for court cause.

Warren E. Burger:

And it was the letter, was it?

Robert Eugene Smith:

Started —

Warren E. Burger:

That required notice?

Robert Eugene Smith:

Yes sir.

Warren E. Burger:

Have been held obscene?

Robert Eugene Smith:

Correct Sir.

Warren E. Burger:

Well, as Justice White said, the question of the obscenity is not before us, but only the question of whether he had notice that had been held to be obscene in the Mobile Court in the Mobile proceeding?

Robert Eugene Smith:

Do you say before Your Honors?

Warren E. Burger:

Yes.

Robert Eugene Smith:

Well.

Warren E. Burger:

That is a question to you.

Robert Eugene Smith:

We think a question, the question of obscenity of course is present.

We think the statute is unconstitutional because he did not have a chance to litigate the question of obscenity and we say for example, and here is the part of the confusion about the Mobile Decree.

Now, taking my appendix which we take on page 100 —

Potter Stewart:

Your appendix, you mean?

Robert Eugene Smith:

Yes sir.

The Appendix, page 100 and 101; we have a state exhibit number (d) and under that if you look down there, the State of Alabama versus we see several magazines and one of which is entitled new directions, number 14, volume 4, number 4 and over in the decree they say that new directions, number 16, volume 4, number 4 is obscene.

So I am saying that we start out with confusion from the wording of the decree or the heading of the decree as well as the inconsistency in the decree.

Byron R. White:

But suppose the State Law says, it shall be a criminal offense for any person to sell any material that has been — as human food that has been declared to be unfit for human consumption by any court of the state and a gentleman is given notice in the letter that this material that I see on your shelf here has been declared to be unfit and the man sells it anyway and he is charged with the crime.

Do you think, he then has to — have the opportunity to prove or may he demand that the state, prove again that food is unfit?

Robert Eugene Smith:

No sir, I do not think so, but I think this Court has already said that in cases in which you have distinguished the requirement scienter between First Amendment matters and matters which you —

Byron R. White:

So you really are not relying on just typical criminal or res judicata.

You are saying that the First Amendment —

Robert Eugene Smith:

Correct.

Byron R. White:

— requires that in this prosecution?

Robert Eugene Smith:

That obscenity be allowed to be litigated and it was not allowed to be litigated in this question.

Now, counsel suggests in his brief that at the time that the publication was offered into evidence, Mr. Ferris Ritchie objected.

Well, Mr. Ritchie objected because at the beginning of the case, we had first a demur filed, challenging the constitutionality of the law which was denied.

Robert Eugene Smith:

We had a motion to quash challenging the constitutionality of law which was denied, going into these issues.

And even during the proceedings when Mr. Ritchie was trying to get into some factors in his argument at page 81 of my Appendix, the court says, half way down the page, I think I can cut your argument short.

I have been thinking about it.

This court is not going to turn over any question to the jury as to whether or not any magazine is obscene.”

And here there is charge that a man sold a certain magazine and that had been heard forth and adjudicated as obscene.

The court’s opinion rules that the magazine would be evidenced as such purchase and they say for that reason we will allow it to be introduced into evidence.

But he said, the court feels that it would be the court’s duty to limit the purpose for which the magazine is admitted and to instruct the jury not to determine any questions of obscenity of the magazine.

And later on the judge goes on to say that this is not a jury question time and time again.

The question of obscenity in this case is now questionable of law.

It is no longer a question of fact.

Byron R. White:

And you would be making this argument and you are making your argument even on the assumption that the magazine in this case was precisely the same issue as it was declared obscene in Mobile?

Robert Eugene Smith:

Correct, because of the, for a variety of reasons.

Potter Stewart:

You have gone so fast that you are losing me.

Go back to where you are a few minutes ago.

If you look at page A(100) of the Appendix and you see that the caption of the case is State of Alabama against among others.

New Directions number 14, volume 4, number 4, then you pointed out around page 101, that holding the judgment as against New Directions number 16, volume 4, number 4.

Now, what if anything are you making out of that?

Robert Eugene Smith:

I am saying that it would be confusion if someone would have to rely upon to verify and rely upon the concept of the heading and style of the case down in Mobile.

One of the points we make Your Honor is for example —

Potter Stewart:

I just wonder, what are you making out of that to call our attention to?

Robert Eugene Smith:

Well, if a defendant as Mr. McKinney is here wanted to verify, he just gets a letter, he does not get any really substantive facts, he gets a letter and he says under the decision of the Court in such case and such case in this number, this publication was found obscene.

I am merely pointing out that there would be some confusion if he were to get a copy of the decree.

William J. Brennan, Jr.:

What was the magazine that was picked up in McKinley Store, is that 14, volume 4?

Robert Eugene Smith:

That is 16 Your Honor.

William J. Brennan, Jr.:

That is 16, volume 4.

Potter Stewart:

And that is, when he got the notice about —

Robert Eugene Smith:

Yes sir.

Potter Stewart:

— 16?

Robert Eugene Smith:

Yes sir.

Potter Stewart:

And that is what the judgment was about?

Robert Eugene Smith:

Correct sir.

That is correct.

Potter Stewart:

So there is really and I hope you are not getting, trying to get much mileage out of it?

Robert Eugene Smith:

No, I am not Your Honor.

I was only saying that there was some confusion that could exist in the minds of —

Potter Stewart:

I will be interested in what your arguments are and what you are relying?

Robert Eugene Smith:

Yes sir.

Now, at the time of the prosecution of Mr. McKinney, the Alabama Law as interpreted by the Court of Criminal Appeals and had not been changed and modified, with regard to the extent of Community Standards, unlike what this Court and or people were saying this Court was saying, was the community from which the jury was drawn.

So in City of Birmingham versus Jones, 45 Alabama, Appellate 86 in 1969 Judge Kate said, and I quote, “The community standard is to be measured by the area from which the jury venire men are drawn.”

Now, that is Birmingham, 265 miles away in a different burden of proof, we have Mobile, Alabama.

Harry A. Blackmun:

Mr. Smith —

Robert Eugene Smith:

Yes sir.

Harry A. Blackmun:

Correct me if I am wrong, but I thought what you were arguing here and I am might tell you in all candor it is the issue which particularly interests me is whether there may be a criminal conviction?

Now, based upon this finding in a Civil Proceeding whether it is 265 miles away or somewhere else, reach down a preponderance of evidence in a case to which a criminally accused was not a party whether it is compatible with due process and to convict the man of a crime in that circumstance and I thought that is what —

Robert Eugene Smith:

That is one of the arguments, yes sir.

Harry A. Blackmun:

Well, I hope that is the one that you will give most of your attention to as far as I am concerned. You have been here several times before.

We have been all through these other questions that you raise.

Robert Eugene Smith:

Yes sir.

I was trying to give background to this Court.

Harry A. Blackmun:

I can understand that you were.

Byron R. White:

But to argue, that is what you have to first convince somebody including the majority of the Court that the issue of obscenity is an end.

It has to be in the criminal case.

Robert Eugene Smith:

Yes sir.

Byron R. White:

Because the statute on its face, it does not make an issue out of it.

It does not make obscenity an issue.

You have to say that it is an issue?

Robert Eugene Smith:

Yes sir, we say first, obscenity should have been an issue and the statute is unconstitutional because the defendant would be denied his right to a trial by jury on a material element of the offense, alleged offense here.

Byron R. White:

What material evidence?

Robert Eugene Smith:

Would be obscenity.

Byron R. White:

Well, that is not the question.

Byron R. White:

The statute says if you sell something that has been declared to be obscene?

Robert Eugene Smith:

Yes sir, but in a proceeding where a man is not entitled to a jury.

So how can legislature for example, suppose Your Honor, in Mobile, Alabama was determined Playboy was obscene in the civil proceeding in which somebody consented to it.

That would have been a judicial declaration of obscenity because it was a consent order and someone who may have sold Playboy hence in Alabama to be given notice, denying a jury trial.

Potter Stewart:

What is difference between this case and the food case?

Robert Eugene Smith:

Because we have no scienter here Your Honor.

We are not allowed for the man to have exercise the right of scienter.

Byron R. White:

He was given notice.

Given as notice (inaudible) he was called that this is true that this particular publication have declared since.

Robert Eugene Smith:

Yes sir.

Byron R. White:

He knew that.

Robert Eugene Smith:

He was told that.

Byron R. White:

And that itself was a reminder of concurrence.

Robert Eugene Smith:

Yes sir and we say that in the concept, consistent with due process that he should be allowed to litigate the issue of obscenity by virtue of the denial of the jury trial, the denial of the right of confrontation, the point that I made about difference of application of the different local community standard.

We have that is in title — that is involved and implicated here and there is just; he is not allowed to have any scienter.

Now, in Kingsley Books versus Brown, you all said that it was in a case and where the man was part of the same proceeding.

He was given a civil notice, later on, the statute excluded him from being able to raise as a question of scienter his lack of knowledge as to the issue of obscene.

So if the publication were found obscene in the criminal cases, his scienter was gone.

Mr. Smith, I still would like to hear again your answer to Justice White’s question as to how you distinguish this from a food case.

Is it because this is in the First Amendment area and food is not?

Robert Eugene Smith:

Yes sir I said —

Is that the difference?

Robert Eugene Smith:

That is one of the differences.

The principal difference I think because we are dealing with a number of the First Amendment.

So what — is there any other difference?

Robert Eugene Smith:

The tainted food Your Honor would have been scientifically, I suppose determined to have been tainted and unfit for human consumption.

I do not think we are dealing in the printed word or pictures that we are talking about, things which we are so capable of exact determination and the public welfare requires that tainted food be immediately removed from the marketplace unless somebody gets sick and somebody fall ill and die or such like that.

We are not dealing with the same compelling urgency.

Byron R. White:

But a gentleman who is told then says, well I was not part of that.

(Inaudible) furthermore, if we go into civil standard is there.

Byron R. White:

I am sure that nobody could present the theory of that and he tries to make certain of a case and issue whether the food is good or not and the Court tells about the issue here.

Robert Eugene Smith:

Yes sir.

The issue is whether he sold something (inaudible)

Robert Eugene Smith:

Yes sir.

If you take Section 11 Your Honor and you read Section 11, the injunction provision, Mr. McKinney could not have been found have been in contempt applying the injunction provision, could not have been found guilty of contempt if he had sold the publication unless he had been a named the party to the case.

But yet in the criminal matter, without having the chance to litigate the question of obscenity, he can be found obscene, he can be not permitted to show the difference in community standards to a jury of his peers and to be able to try to ascertain that issue and I say that is I think the difference, the key difference between the food matter that you suggest and the other matter.

Harry A. Blackmun:

Do you find any comfort in your position and the dissent of Chief Justice?

Robert Eugene Smith:

Well of course, yes we do.

We think that Chief Justice Huffman (ph) has —

Harry A. Blackmun:

Of course, his approach was a little different from that that you can give I think.

Robert Eugene Smith:

Chief Justice Huffman of course has taken the three points that I have mentioned that is number one; there was no trial by jury permitted this man that the man receive a sentence of one year plus fine.

That certainly under the decisions of this court that the man should be entitled to a trial by jury and he was not entitled to a trial by jury on that issue of obscenity and we say that that is one of the points I think, he talks about.

He also talks about the burden of proof.

Harry A. Blackmun:

Do I misread him as having suggested that under our decision in Winship, every element of the criminal offense has to be proved beyond –-

Robert Eugene Smith:

Beyond reasonable doubt.

Harry A. Blackmun:

— beyond the reasonable doubt and that the deficiency in this conviction was that the element of obscenity was not?

Robert Eugene Smith:

It was excluded by legislative feat.

William H. Rehnquist:

Mr. Smith, supposing you have an ordinance that proscribes parking in an area where there is a no parking sign and you have done that and you go into court and you say, well I got a right to re-litigate the question whether there should have been a no parking sign because that is an element of the offense.

Is it not open to the state at least in that case to say that simply is not open here?

That is not element of the offense.

The presence of the sign alone makes the only element offense, did you park there or did you not?

Robert Eugene Smith:

Well, most states treat parking offenses Your Honor in a different category, I think in an absolute criminal statute.

So I think that that becomes an ordinance more often than not as versus a statute.

And secondly, I do think it would be open for someone to come in and challenge the City Counsel’s right to pass that ordinance in the event that it went beyond the enabling clause granted to them by the legislature so I think there would be other things.

William H. Rehnquist:

Well, perhaps it is beyond the Enabling Clause, but would they be able to re-litigate in Court the question whether the City Council should have decided that that was a no parking space?

Robert Eugene Smith:

Assuming all other things have been foreclosed and there were no other, there was no bottom-line yes I do not think he would be able to re-litigate that question.

But that is as to a matter involving a no parking sign.

But here we are talking again and this Court has time and time said again that these questions regarding explicit material or simulated material depend on difference between communities as the Chief Justice has pointed out, I think in the Miller case regarding the difference in various communities and different state communities to the tolerance of material.

And I say here, one of the things as we were — he was not allowed to litigate this under the Birmingham Standard and of course, the right of confrontation Justice Huffman refers to was also denied counsel in this particular case.

And the law in Alabama is clear that in a judgment in a civil suit cannot be admitted in a criminal prosecution arising at the same transaction.

Robert Eugene Smith:

So we have one standard that applies to the same parties in the case and yet another standard that is going to apply to somebody who had no participation whatsoever directly or indirectly under litigation.

And we say that that is the exquisite difference in this case and even Justice Huffman in pointing out what Judge Harwood said on page A(14) of our Appendix.

Now, Justice Harwood said it is clearly settled through the doctrines of our cases that a judgment gained in the civil suit is not admissible against the defendant in a criminal prosecution going under the same transaction.

But Justice Harwood found no difficulty in joining the prosecution or the majority of the panel in Judge Faulkner’s decision in this case.

I would like to reserve whatever time I have left for rebuttal if it pleases the Court.

Warren E. Burger:

Mr. Marston.

Joseph G. L. Marston, III:

Mr. Chief Justice and may it please the Court.

Rather than chance for getting it I would like to respond to something counsel pointed out this point in the appendix where Judge Gibson told Mr. McKinney’s counsel, “I think I can cut your argument short.”

Counsel cites at page A(81), in the precise middle of the page, the court, “I think I can cut your argument short.”

Counsel argues that shows the Trial Judge was flatly refusing to consider any question of obscenity.

The statement has to be taken in context.

And the context was that this was the point in the trial where the state offered this magazine into evidence in Mr. McKinney’s trial.

Without any balance, the state simply offered it in evidence and Mr. McKinney’s counsel objected on the grounds that obscenity was not for the jury and judge heard some arguments and then he told counsel, “I think I can cut your argument short.”

In effect I sustain your objection, I will not let that question go to jury.

I will let the magazine in on the issue of sale alone.

So I would call that to the court’s attention.

Warren E. Burger:

Are you suggesting that he had the opportunity to litigate it and he not only avoided it, but insisted on avoiding it?

Joseph G. L. Marston, III:

Yes sir, frankly.

I believe there are —

William J. Brennan, Jr.:

(Inaudible) You got to decide whether it is obscene as to the constitution requirement.

Is that what you said it saying?

Joseph G. L. Marston, III:

Yes sir.

William J. Brennan, Jr.:

It was the basis of his objection.

It was not as I understand it that anything related to that civil proceeding and (Inaudible)?

Joseph G. L. Marston, III:

No Sir, I believe his objection was that the question of obscenity was simply not for the jury in this case.

It was not a question of fact.

Now, I will say this about the question of obscenity in this criminal prosecution.

Under Jenkins versus Georgia, it seems to me that where you have a determination of obscenity that it is outlandish, that whether material clearly is not obscene that any court confronted with that has a right and a duty to go into that.

And I think we see this in Mr. Justice Faulkner’s decision.

They write at length about what new directions contain and I think they did review and see if there was a question of obscenity at least.

Joseph G. L. Marston, III:

I am not saying that they can all map the whole thing go back and start all over but you can look that the Court would be under duty to look at the material and see if at least arguably there is a question of obscenity.

Thurgood Marshall:

But the judge says specifically the jury could not do that?

Joseph G. L. Marston, III:

That is right sir.

In response to —

Thurgood Marshall:

That is what they told the jury —

Joseph G. L. Marston, III:

He told the jury –-

Thurgood Marshall:

This is no question for the jury?

Joseph G. L. Marston, III:

That was in response though to Mr. McKinney’s objection.

He said I will do this in answer to your objection.

I sustain your objection.

This is what I will do.

I will give these instructions —

Thurgood Marshall:

He was going to charge him with volunteer something or risk of something?

Joseph G. L. Marston, III:

Pardon Sir, I did not —

Thurgood Marshall:

Are you not going to charge him with volunteer something or risk or something?

That was the judge’s rule and I do not care who provoked it.

Joseph G. L. Marston, III:

Yes sir.

Well, that was his —

Thurgood Marshall:

But he did not want that rule, did he?

Joseph G. L. Marston, III:

Well he objected and when the judge said this is what I will do, he did not object it —

Thurgood Marshall:

Because he wanted to go into the factual point of obscenity.

Joseph G. L. Marston, III:

I do not read the record that way Mr. Justice Marshall.

Thurgood Marshall:

Well that is the way the judge ruled.

The judge said he feels that it will be the Court’s duty to limit the purpose.

Just before that he says to any question of obscenity of the magazine, any question.

Joseph G. L. Marston, III:

In response to Mr. McKinney’s objection that obscenity was not for the jury.

The judge was agreeing with it.

In addition when the judge gave this charges to the jury, Mr. McKinney made no objection at all.

Lewis F. Powell, Jr.:

Mr. Marston.

Joseph G. L. Marston, III:

Yes sir

Lewis F. Powell, Jr.:

I do not want to prolong discussion as to what the language means, but the first full paragraph on A81 which contains the objection by the counsel.

As I read it he is objecting to allowing the jury to see the magazine without the introduction of evidence on behalf of the defendant as to whether or not it was obscene.

The objection really was to the denial of the right to litigate before that jury the issue of obscenity.

Joseph G. L. Marston, III:

Yes, I think that was his objection that the question of obscenity was not for this jury.

Is that what you are saying?

Lewis F. Powell, Jr.:

Only if the course, the judge refused to allow any evidence as to whether or not the magazine was obscene because the judge took the position of that already had been determined.

Joseph G. L. Marston, III:

Yes.

Well sir, I do not believe this record contains any reference except in response to this objection which Mr. McKinney made, any reference to the judge saying that question of obscenity was not involved in here at all.

However, we defend that the statute on that basis assuming the correctness of petitioner’s analysis.

Now, the petitioner relies very heavily on Smith versus California saying there is no showing of scienter in this case.

There is no requirement for scienter, he says.

Frankly, I do not know what to say in response to these arguments.

I do not know if I understand them.

This statute requires scienter in two forms.

The accused must know the nature of the contents of the publication and that complies with Smith as I read Smith, but then the statute says he must also know, have actual knowledge of the prior judicial determination and both of these factors were proven.

We attempted to prove some other things that would have shown scienter, we think, but on Mr. McKinney’s objection, they were kept out.

But if we did not prove scienter in this case, it is just not possible for the state to prove scienter.

We handed him a written notice stating these materials have been judicially declared obscene, the case number, the date, and the court.

Now, I do not know what we can do beyond that.

Then it is just before the sale he was shown the contents.

So I cannot say anything about scienter except that it was required and proven.

Now, this Honorable Court has ruled on numerous occasions that the obscenity of a material arises out of the thing itself.

It is a –- the word obscenity describes its nature and if it has that nature it is unprotected by the First Amendment.

Now —

William J. Brennan, Jr.:

What would be the basis be obscene in Mobile and not obscene in Birmingham?

Joseph G. L. Marston, III:

Yes sir, if the community involved is the county.

Now, under this statute, the community is the state and this was specifically held by the Alabama Supreme Court —

William J. Brennan, Jr.:

(Inaudible)

Joseph G. L. Marston, III:

Excuse me.

William J. Brennan, Jr.:

Whose the element for the purposes of constitutional jurisprudence finally decided what can it do?

Joseph G. L. Marston, III:

The Alabama Supreme Court in case of —

William J. Brennan, Jr.:

You mean with the court —

Joseph G. L. Marston, III:

Oh! Well, Your Honor, this honorable Court has held in Hamling and in Miller and other cases that the state made use of state standard or a smaller standard.

Now, in the statutes that do not use this prior civil proceeding, we use a smaller community for the purposes of banning it.

Of course, the First Amendment would protect all of it without regard, but the Supreme Court of Alabama has held that standard under the community under this statute is the state as a whole.

We argue in brief that since the nature of the material is the issue when we are talking about obscenity that an interim proceeding is most appropriate to determine it.

Now, the petitioner agues that he was not confronted back his accusers.

He was not proven guilty beyond a reasonable doubt.

But this argument totally ignores the peculiar corpus delicti of his crime.

As I think has already been pointed out, he was not charged and he is not convicted with merely selling obscenity.

He is charged with selling materials that had been judicially declared obscene or judicially found to be obscene and his crime has overtones that contempt the Court.

Now, I am not saying that he is guilty of contempt to court, but it is that sort of a crime, the disregard of judicial determination.

I do not care what the judge says, I am going to go on and sell it and with regard to the corpus delicti of his crime, he confronted each witness, cross-examined each witness and was proven guilty beyond a reasonable doubt.

The jury was thoroughly charged on reasonable doubt and the corpus delicti as the trial judge.

Warren E. Burger:

Absent objection from Smith would the issue of obscenity been submitted to the jury?

Joseph G. L. Marston, III:

Not to the jury.

No sir.

As I read the statute on the Alabama, now, at that time, Mr. Chief Justice, I am merely answering your question academically, because I do not know.

At that time, we were not sure about the statute —

Warren E. Burger:

Well, I get the impression that you were suggesting Mr. Smith had some responsibility for keeping this issue away from the jury.

Joseph G. L. Marston, III:

Well, not Mr. Smith, but Mr. McKinney’s counsel.

Warren E. Burger:

(Inaudible)

Joseph G. L. Marston, III:

I think it was.

I think they did have some responsibility.

But whether they did or not, I think that the most they could have gotten under the statute as interpreted by the Alabama Supreme Court would be if they could have gotten the Trial Judge to have looked at this thing under the Jenkins precedent to see.

Byron R. White:

I can understand that, say the obscenity issue was in this proceeding.

It may not have been for the jury or may have been for the judge, do you seem to think that the defendant really did have some right under the statute even though he is only charged with selling something that have already been declared to be obscene, some right to raise the obscenity issue and have it adjudicated to some extent any way?

Joseph G. L. Marston, III:

I would –- Let me say this sir —

Byron R. White:

That certainly that does not seem to what the statute is talking about?

Joseph G. L. Marston, III:

Well, let me say this.

Joseph G. L. Marston, III:

I believe under the statute that if your had a material such as the motion picture Carnal Knowledge, it was involved in Jenkins that if you had a material where there was a really a serious question as to the validity of this other determination of obscenity that you could re-litigate it.

Now, I do not necessarily mean only in the Carnal —

Byron R. White:

You are urging us to accept that as a construction of the Alabama Statute?

Joseph G. L. Marston, III:

No sir, not necessarily.

But I do believe —

Byron R. White:

Well, are you or are you not, I mean, we ought to judge the case on one basis or the other?

Joseph G. L. Marston, III:

I believe under this statute he could have re-opened it in another, his own civil proceeding.

William J. Brennan, Jr.:

Are you suggesting then that if it had been Carnal Knowledge that was involved in this civil proceeding in Mobile and had there been held that Carnal Knowledge was obscene and then Carnal Knowledge was shown in Birmingham, that in that instance the defendant would not be foreclosed in challenging the obscenity of Carnal Knowledge?

Joseph G. L. Marston, III:

Let me say this sir.

Maybe I am thinking ahead of myself.

In our brief, we simply say and this is our position, that under the decision of the Alabama Supreme Court, the question of obscenity, it is not clear that the question of obscenity is closed forever and for all time.

Now, how he could raise it, is just not presented by this case because Mr. McKinney did not attempt it.

Whether or not he could have brought another civil proceeding under 69 Act which creates a right to declaratory judgment, once you receive this notice.

And you know he received a notice under the 69 Act and that permits a suit for declaratory judgment to determine whether a material is obscene.

Now, whether or not he could do that, we say that the decision of the Alabama Supreme Court is not clear on this.

It is clear that Mr. Justice Faulkner in his opinion talks about shifts in standards of obscenity.

He says the standards of obscenity not having changed from the time of the trial until the time of the sale and so on.

Now, this implies that the question is not closed once and for all.

William J. Brennan, Jr.:

Would you answer my question?

Joseph G. L. Marston, III:

Yes sir.

Exactly what was your question?

I thought I was answering it.

William J. Brennan, Jr.:

That Carnal Knowledge had been declared obscene in Mobile and this constitution holding against exhibitor of Carnal Knowledge in Birmingham, would or would not the exhibitor have a defense that the Carnal Knowledge is not obscene?

Joseph G. L. Marston, III:

It is simply not obscene.

My answer is either he would have the right to do that or to file a declaratory judgment.

Now, in this case —

William J. Brennan, Jr.:

But in any time of your proceeding your answer is yes.

He could have raised the issue of the obscenity of Carnal Knowledge?

Joseph G. L. Marston, III:

Either that or a declaratory judgment is.

Now, let me —

William J. Brennan, Jr.:

I know, but my question is, could you need criminal proceeding, and as I understand you the answer is yes?

Joseph G. L. Marston, III:

The answer is I am not sure because of the contempt overtones of this particular corpus delicti.

Warren E. Burger:

But how do you have contempt by overtones?

Is that not —

Joseph G. L. Marston, III:

Well, disregard of a judicial order having knowledge of it.

Warren E. Burger:

But it was a judicial order here in Mobile, was it not?

Joseph G. L. Marston, III:

Yes sir.

Warren E. Burger:

And how is he?

Joseph G. L. Marston, III:

He was not, he could not be held in contempt.

There is no question about that.

But this crime, the way it is defined involves disregarding a judicial determination which is like contempt.

We are not saying that he was convicted of contempt of court.

What we are saying that the gravamen of this offense was a disregard of a judicial order rather than just selling obscenity.

And because of this, were this question to come up in a civil trial, the argument could be made that your crime was disregarding the judicial order, and therefore, you could not raise it in the criminal case, but that does not mean you could have not brought your own action.

William J. Brennan, Jr.:

Disregarding an order to which he was not a party?

Joseph G. L. Marston, III:

Well, it was an interim proceeding.

The parties do not make any difference in an interim proceeding.

William J. Brennan, Jr.:

Well, he was prosecuted for selling something?

Joseph G. L. Marston, III:

Yes sir.

William J. Brennan, Jr.:

Is that a interim proceeding?

Joseph G. L. Marston, III:

No sir, that is a criminal proceeding, but he was prosecuted for selling something, the status of which had been determined in a judicial proceeding.

William J. Brennan, Jr.:

How did he disobey the order?

Joseph G. L. Marston, III:

Well, he would not be disobeying the order.

He would be selling something that has been judicially determined to be obscene.

Potter Stewart:

What bothers me Mr. Marston about this particular case is that the complaint which I gather is equivalent in your practice to information.

Joseph G. L. Marston, III:

Yes sir.

Potter Stewart:

The complaint seems to telescope two alternative provisions of the criminal statute.

If you look on page 5 of petition for writ of certiorari which is the Court’s opinion, it starts the statement, “The petitioner was charged by complaint that he did sell obscene printed or written material; then that said material had been judicial found to be obscene,” whereas the statute if you look on page 5 of the brief of the petitioner makes it a criminal offense to sell obscene material or to sell material that is judicially been determined to be obscene and it seems to me that in this particular case the prosecution by alleging that he sold obscene material as a matter of fact put the obscenity of that material very much an issue?

Joseph G. L. Marston, III:

Well sir, I do not believe so.

Potter Stewart:

Why not?

Potter Stewart:

When you look at page 5 of the petition for writ of certiorari and the petitioner was charged by complaint that he, read the first four lines of that, that he did sell obscene printed or written material; do you see that?

Joseph G. L. Marston, III:

Yes sir.

Potter Stewart:

And that has nothing to do with any charge that he sold anything that would have been judicially determined to be obscene?

Joseph G. L. Marston, III:

Yes sir.

Potter Stewart:

It simply is a claim that he sold obscene printed or written material which puts in issue the question of whether or not the printed or written material is obscene, is it not?

Joseph G. L. Marston, III:

No sir, I do not think so.

Potter Stewart:

Why not?

Joseph G. L. Marston, III:

Because that word obscene there in that the complaint could be construed that way, but that did not how the Alabama Supreme Court construed it.

I do not believe that is the way it has been construed all along.

Potter Stewart:

No, as far as the statute makes it an offense to sell obscene material and also makes it an offense to sell material that is judicially been determined to be obscene whether or not it is obscene, if you look at Section 374 (4) 1 on page 5 of the brief of the petitioner, here the complaint telescopes two alternative sections of the criminal statute, and therefore, made it incumbent upon the prosecution to show both that the material was obscene and also that the material was known to have been judicially declared to be obscene, you see my point?

Joseph G. L. Marston, III:

Yes sir, I think so because they say obscene printed material that has been judicially determined to be obscene, I believe that the word obscene when it says obscene printed material, whatever, is simply describing the thing.

Potter Stewart:

Well, it is quite different from what the statute says which makes it an offense to send any mailable material known by such person to have been judicially found to be obscene under this chapter, quite different?

Joseph G. L. Marston, III:

I do not see the distinction.

I simply cannot answer your question.

I think that the statement obscene material is simply describing the thing and then why is it obscene because it has been judicially determined to be obscene.

Byron R. White:

Well, the Trial Court said that the charge or the offense has been charged, it does not include the issue of obscenity?

Joseph G. L. Marston, III:

Yes sir, that was charged to the jury.

Byron R. White:

Under the power of Court ruling, was it not?

Joseph G. L. Marston, III:

That was charged to the jury.

Yes sir, without objection by the plaintiff.

Byron R. White:

Well, but in the colloquy before that, the judge made that ruling, did he not?

Joseph G. L. Marston, III:

Yes sir.

Lewis F. Powell, Jr.:

Mr. Marston, I put this case to you.

Assume that the Court in Mobile instead of having this particular magazine before it could have the art catalog of the state museum and have found it to be obscene.

Would that sustain a prosecution under this Section of the Alabama Statute?

Joseph G. L. Marston, III:

Yes, well sir, of course this is why I say that in spite of the petitioner’s interpretation of the Alabama Supreme Court decision to the effect that the question of obscenity was closed without regard to anything else is simply is not so.

Obviously in this case he could not — there must be a way that an individual who is not a party to that suit can obtain relief from it and Alabama Law provides two possibilities.

One would be and this one I am certain of, his own declaratory judgment action and possibly and I think probably in that sort of a case where the thing is obviously not obscene, he could raise it in his criminal trial under the statute.

William H. Rehnquist:

But a declaratory judgment will not do him much good if he is already in jail as a result of a criminal prosecution?

Joseph G. L. Marston, III:

Well as soon as he found out about it he could file that criminal prosecution.

Joseph G. L. Marston, III:

Mr. McKinney in this case when he got that notice, he could have sought declaratory judgment at that point.

Thurgood Marshall:

But not criminal case?

I thought you said you could use a civil case in a criminal case?

Joseph G. L. Marston, III:

Well, you could not, after he got arrested, he could have not, I guess you could still file the declaratory judgment action then.

Thurgood Marshall:

But could he have used it in criminal case?

Joseph G. L. Marston, III:

No sir.

I do not think so.

Thurgood Marshall:

He still goes to jail whether he got a declaratory judgment?

Joseph G. L. Marston, III:

Yes sir.

Thurgood Marshall:

To keep him more?

Harry A. Blackmun:

He would not have the burden or proof in that declaratory judgment?

Joseph G. L. Marston, III:

The Law of Alabama is very clear that the would be censor has the burden of proof and that case came up in the cased cited, I believe by both parties, I know by us, Visual Educators v. Koppel in which it happen to involve a suit by a theater, an expresser against the city that did not want to license it and the Alabama Supreme Court ruled in no uncertain terms, of course, they say the burden is on the would be censor.

In that case, in spite of the fact that it was the expresser that brought the suit.

Byron R. White:

I think, a publication as declared obscene in Mobile in a civil proceeding brought by the state against Mr. A and then the state attorney general takes a copy of that declaration and injunction and mails it to all the bookstores in the state and the law says that anybody who sells in the face of that declaration is guilty of contempt.

Everybody else with notice is bound by the injunction, that any bookstore selling the book would automatically be found in contempt without any hearing other than going to the sale. If he sold it, he is guilty of contempt?

Joseph G. L. Marston, III:

No, under this statute?

Byron R. White:

Well, I would say under the constitution if the state —

Joseph G. L. Marston, III:

It has the statute like that.

Byron R. White:

If the state provided and has that sort of a provision, I would think a fortiori you would say that —

Joseph G. L. Marston, III:

I think if you are talking about contempt.

Now, if they sent notice around to them joining them as parties or giving them an opportunity to in as parties they would be bound.

But if you are talking there about straight contempt, I do not —

Byron R. White:

You do not think so?

Joseph G. L. Marston, III:

No sir, I do not think so.

Byron R. White:

Yet you could say —

Joseph G. L. Marston, III:

Thank you so much.

Warren E. Burger:

Mr. Smith.

Robert Eugene Smith:

May it please the Court and just a few observations.

Number one, counsel said that it is clear under Alabama Law that the burden of proof is on the censor in the civil declaratory judgment cases.

That was in 1972 that that decision was rendered.

Robert Eugene Smith:

So, in 1970 that question was not as open in shut as it was in 1972 in the Koppel case.

We also point out, if the Court please that taking a page A(5) of my Appendix which is the majority — part of the majority opinion of Justice Faulkner, first sentence of the first paragraph says neither McKinney nor the state introduced the evidence in the trial on the question of obscenity vel non.

McKinney raised that issue in a motion to quash the complaint which the trial judge overruled and in continuing to page A(7), Justice Faulkner says we now decide the question of whether the Mobile Circuit Court Decree was binding on McKinney since he was not a party to the action and since obscenity vel non was not permitted as an issue by the Trial Court and even Justice Huffman says on page A(9), thus there was no finding by the jury, the matter alleged to be obscene was obscene and indeed no such determination could have been made under the Trial Court’s charge.

Potter Stewart:

Where are you in A(9)?

Robert Eugene Smith:

A(9), first full paragraph Your Honor, the last sentence.

So, and the last thing I would like to point out to the Court is that with Justice Brennan’s question regarding Carnal knowledge.

If Carnal knowledge was found obscene, the day before the decision of this Court in Jenkins in Mobile, Alabama and notice were given in Birmingham, Alabama to Mr. McKinney if he were a theater exhibitor, he could still be held accountable for having violated the crime of having displayed or exhibited material which had previously or judicially been declared obscene.

Even though this Court —

Warren E. Burger:

(Inaudible) what about the —

Robert Eugene Smith:

Well, then I would think these are not the sensitive tools because this Court in a rarely unanimous opinion in at least in the area of obscenity ruled that I thought that the Carnal Knowledge was not obscene.

(Inaudible)

Robert Eugene Smith:

I said that at the time Your Honors, the only decision of a Court —

What about —

Robert Eugene Smith:

I do not know and I said the only decision that a Court in Alabama was the Court of Criminal Appeals and at that time the parameters where the community from which the jury was drawn and that is the City of Birmingham versus Jones and that is 45 Alabama Appeals, 86.

(Inaudible)

Robert Eugene Smith:

And the first time that Court said it is the State Standard is in this case.

William H. Rehnquist:

Well, except the Mobile proceeding, would that involve a jury?

Robert Eugene Smith:

That was not a jury.

What we are saying the area from which the jury venire men are drawn.

That is all, thank you Your Honors.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.