Miller v. California – Oral Reargument – November 07, 1972

Media for Miller v. California

Audio Transcription for Oral Argument – January 19, 1972 in Miller v. California
Audio Transcription for Oral Argument – January 18, 1972 in Miller v. California

Audio Transcription for Oral Reargument – November 07, 1972 in Miller v. California

Warren E. Burger:

We’ll hear arguments first today in number 70-73, Miller against California.

Mr. Marks.

Burton Marks:

Mr. Chief Justice and may it please the Court.

We’re back again before the Court, since January of this year to reargue the matter and to discuss with the Court what one of my colleagues described as the continuing saga of life in the pits or what goes on in the lower courts because we don’t know what actually this Court is saying with respect to the pornography.

The second proposition that we have to this Court is that a person charged with the crime of obscenity should have perhaps as much rights accorded to him or her as, let’s say a parolee who is being having his parole revoked or perhaps a juvenile who is being declared a delinquent.

Perhaps I can explain.

As I said, there is a continuation of horrors.

In January, I described to the Court what happened in this case, what a defense lawyer had to do to go through a trial or proceeding in order to at least have attempted to have some kind of hearing as to whether or not the material was constitutionally protected.

This included pre-trial hearings in which evidences presented by the defendant, none by the prosecution and a complete denial of any real hearing in my opinion, understanding by the trial judge as to what the issues were.

Since that time, to give you an example of what occurs in the courts below because of the erratic, if I may say types of decisions which emanate from the higher courts and perhaps, the visceral reactions that occur with various judges is.

I’ve been in three trials since I’ve seen it and this Court in Wiener versus California held certain material to be protected vis-à-vis Redrup.

Now, the Wiener materials were down in San Diego and they involve some motion pictures and some films.

So, we — I had two trials in Los Angeles in which I attempted to have the judge take some recognition of the materials in Wiener, so that there could be a comparison of what was protected and what was not protected.

Now, the interesting proposition is that the prosecution —

Well, was this a jury trial, Mr. Marks?

Burton Marks:

No, we waive jury.

The interesting proposition in the first trial that I had was that the prosecution had an attorney who was reasonably experienced in the pornography field.

This prosecutor was unwilling to admit to the Court as were the police officers who were are really the experts because in Los Angeles they a vice squad with pornography experts that travel through and the State and they know what’s going on.

The State refused to admit that the materials in my case were the same as the materials in Wiener.

And as a matter of fact, refused to take judicial notice of the fact that they were the same and there was simply no way to get the Wiener materials from San Diego to Los Angeles because they had been introduced into another case in San Diego to try and persuade the second judge that the materials were the same and therefore protected.

Mr. Marks, this perhaps is unfair precisely on the point that you’re arguing but you said you waived juries in both these recent trials?

Burton Marks:

In the — in the last, well, the first case I did because the judge that we finally got was, in my opinion, sophisticated enough to understand what was going on.

What, as a matter of trial tactics and defending cases like this, you would ordinarily prefer a bench trial to a jury trial?

Burton Marks:


Absolutely not.

No, the — because if you’re allowed to have the procedures which the California State allows you to have, you have — you should have under Noroff a real pre-trial hearing to determine whether or not the material is obscene.

Which then ends the whole case —

Burton Marks:

Which would end the case but the unfortunate proposition is, as I was going to point out is that the judges simply don’t follow the law.

They don’t — perhaps, it’s merely a matter of buck-passing and as former President Trumann said, the bucks got some —

But I take it that, it was a determination of obscenity at this pre-trial procedure.

That is not the conclusive of course at the jury trial, is it?

Burton Marks:

Well, that’s a very interesting — of course not.

Of course that —

You may still argue with the jury the non-obscenity material, are you?

Burton Marks:

Of course.


Burton Marks:

Sometimes what the judges feel or believe is and there’s some California case law to that effect.

Although it really does not seem to be appropriate because ordinarily, we’re talking about a misdemeanor case in obscenity.

The only time you get into a felony case is when it is bootstrapped into a felony by virtue of the charge of conspiracy which makes it a felony or because a person has a second offense.

Now, if you have a misdemeanor trial, there is no such thing as a preliminary hearing.

There — so, the California Supreme Court gave misdemeanants in a pornography case essentially what might be called a preliminary hearing through the Noroff case in which you are entitled to have a hearing to determine whether there’s obscenity.

Now, some judges believe that this only means probable cause.

Are misdemeanor cases tried by it before jury?

Burton Marks:


Some judges believe that this obscenity issue in determination means only probable cause to believe that’s obscene, so it will grow in front of a jury, that is not my understanding of the law but there’s no clear-cut decision on that proposition.

In a felony case, if you happen to have a felony, then you have a preliminary hearing and in that preliminary hearing, there is a probable cause situation to believe that a crime has been committed.

Again, there is a case out of California called Luros which says that the grand jury does not need any evidence to make a determination of probable cause, so that the matter can be brought before the petit jury for a trial.

But then we have again this intermediate Noroff step which supposedly is suppose to have the judge independently make a determination of obscenity.

It’s always been my expression or opinion that the proof of the prosecution as to obscenity in a pretrial hearing has to be also beyond a reasonable doubt because if it’s not obscene, it can’t be prosecuted.

But, as I say, this leaves the law in the state of flux and nobody really seems to care.

I was talking about the trials that I had.

But what happened was the Wiener, the two defendants had been arrested in a practically the same situation.

They were the type of defendant that you will ordinarily find and as far as I can determine, 90 to 95% of the cases which come before this Court or before any obscenity court, i.e. a book seller, a motion picture operator, somebody who is in business, not the skulking pornographer who goes out into the alleys and calls in the little kids and says, “Look at the dirty pictures.”

He’s there, he has a store, he has a business, he has a movie theater, he invites no one in except by the advertisement.

Generally, if you take a look, for instance, you open your Washington DC newspapers and there’s advertising for what’s known as adult films and it doesn’t pictorially describe what’s being shown.

It gives the title and the persons who are the, to say the aficionados or the — who want to go to the theatres, know what’s going to be shown on the theatres by the fact of the title and the place where the theater is and they go and see it.

But I’m talking about the client, the person who is in business, he’s operating a store, he buys film, he buys books and he sells it to the persons who come in.

Ordinarily, there’s no such thing as pandering as was described in Ginsberg.

Simply, a police officer walks in, sees a piece of material that he doesn’t think is a worthy of his consideration, either makes an arrest on the spot, although that is now out in California but generally, will go back and make an affidavit that he saw a dirty book or a dirty picture and he will describe why it was dirty and then some magistrate will sign a search warrant and they’ll go in and seize that.


Potter Stewart:

He doesn’t — he doesn’t buy the book and then take that to the magistrate?

Burton Marks:

Sometimes, they do but very seldom.

Apparently, there is not enough funds given to the vice squad to purchase this type of material.

They have other areas.

They generally go in and they look at the pictures.

My two clients happen to have arcades on Main Street where you have peep shows and little motion pictures theatres.

Police officers went in, saw the films, went back, described what they saw or what they thought they saw, gave the affidavit to a magistrate, authorize the seizure, they came back a few days later, seized the film, took it to the police station then had an arrest warrant issued.

Both clients were charged with felonies because they were, had a prior misdemeanor.

Potter Stewart:

Is the seizure for evidence in the prosecution or for destruction or both?

Burton Marks:


In the first case, the judge, after I’d waived jury and after I’d been able to present an expert who had seen the Wiener material and seen this material which was called simulated, testified it was exactly the same and I presented to the judge a list of cases that — and showed him how the material was exactly the same.

He finally read the material and lo and behold after an entire trial in which the police officer testified in their expertise as to what was obscene and not obscene and my expert had shown the comparison between Wiener material and these materials, the judge granted my motion to dismiss on the grounds that the material was constitutionally protected and returned the films to me.

The next case was exactly the same.

It was another person at an arcade next door.

I went into the second judge who had never had a pornography case, never had an obscenity case but of course knew what was obscene and not obscene, tried to persuade him that this case that I had today was exactly the same case as the case I had yesterday and that in fact the ruling of the judge before was res judicata because it wasn’t an acquittal.

It was declaration of protected material.

The second judge —

William H. Rehnquist:

Mr. Marks, how could that be res judicata under California law if the same people weren’t parties to it?

Burton Marks:

Well, it would at least be collateral estoppel under Ashe versus Swenson because the prosecution has to be stopped from continuing to prosecute something which they must know is protected.

It was the same District Attorney’s Office.

William H. Rehnquist:

It was the same defendant?

Burton Marks:

No, no, a different defendant but the same material.

Now, somewhere along the line, if the defendant or a person in a criminal case who was charged with a criminal offense is — must have the opportunity of saying, “Look, I am protected.”

Isn’t that what scienter means?

Doesn’t scienter mean that the person is doing something which he thinks is alright or conversely if you want to prove that he had mens rea of the offense, he had to know or at least have reason to believe that the material which he was selling or exhibiting or purveying was not protected or in the realm of hardcore pornography.

But these booksellers don’t know that because they get a decision from Redrup, a protected material and then down it comes to the lowest court and sometimes even the highest court and they say, we don’t believe it.

Nobody could hold anything like that to be protected.

William J. Brennan, Jr.:

Do you have any provision for an in rem proceeding in California?

Proceeding against the material as such and which would be res judicata vis-à-vis the State as against the material?

Burton Marks:

No, there is — the aspects of it blowing in the wind but it’s not legislative.

Burton Marks:

It would be judicial because of some recent decisions that came out of the District Court, three-judge courts and the Central District of California stating that perhaps the search and seizure statutes which we have and the 1538.5 of the Penal Code which allows for a traverse to a search warrant.

Although it doesn’t meet the Freedman requirements of the Blount versus Rizzi requirements of a fast hearing provided by the State.

At least, one Court has said, that’s sufficient hearing and you can probably traverse the search warrant on the basis that the material was not in fact obscene and couldn’t be seized because that’s the law in the State of California.

Also, if it’s protected, it can’t be seized but the big problem is how do you get word to the judge that it’s protected?

Potter Stewart:

So if you didn’t have a — if you didn’t have a final judgment in that kind of a proceeding and I suppose then it would be res judicata that that particular material was protected, wouldn’t it?

Burton Marks:

It ought to be.

But what happens is that the judge will say as he did in the second case.

First of all, I don’t — these aren’t exactly the same materials, so therefore they must be different and you can argue all day long that that one portrayal of an active sexual intercourse is very much like another act of sexual intercourse.

William H. Rehnquist:

You’re not talking at about precisely the same film, an absolute duplicate.

You’re talking just about similarities?

Burton Marks:

I’m talking about two films that if you put them back-to-back and took away the faces of the actors, it would be impossible to describe any difference in what was portrayed on the screen.

William H. Rehnquist:

But films, I presume, at least sold under different titles are produced by different producers?

Burton Marks:


Some of them may have different titles but there just is no way, I recall the old saying, you’ve seen one, you’ve seen them both.

You’ve seen —

Warren E. Burger:

But an in rem determination with respect to the one would not really help you very much, would it?

Burton Marks:

Well, it’s got to help somebody.

Warren E. Burger:

Unless it’s a copy of the precisely the same film, you wouldn’t have it.

Burton Marks:

Well, that I guess is the big problem.

Because if I see a magazine that shows a picture of a naked woman with her legs spread but is known in the trade as a beaver shot and this Court has said, “That’s protected.”

And I see another magazine with a woman with her legs spread and a beaver shot with a different title and a different woman, I would like to be able to tell my client, it’s alright to sell that because it’s been held protected but some courts will say, “Well, that’s ridiculous.

It’s a different woman and it’s a different camera angle and it’s a different magazine, so how could the material be protected?”

One of the most beautiful cases in point and it was handed to me by my brother Mr. Cello who will be arguing later as a case of Wisconsin versus Simpson out of the Wisconsin Supreme Court filed October 31, 1972 and in that case, they had, from what I can determine, magazines with nude persons together and nothing more and here is some of the holdings of the Wisconsin Supreme Court.

Incidentally, I had brought it along and now I don’t seem to be able to find it in the recent article, the most recent edition of the New York Magazine.

There’s a little cartoon that shows two gentlemen in black robes strolling along and one of them is saying, “If it turns me on, it’s smut.”

So, that’s about what happened with the Wisconsin Supreme Court.

Here’s what they say, described magazines are not, as a matter of law, not obscene.

This was the contention raised.

Appellant argues that these magazines cannot be found obscene because only nudity is depicted and not sexual activity.

Given non-obscenity for non-sexuality are just — argues appellant, these complaints are not sufficient because they do not allege obscene depictions of sexual activity.

Burton Marks:

Supportive of this proposition, appellants asserts several Redrup reversals.

And certain language in State versus Amato they go down.

This Court, in Court versus State resoundingly rejected the contention therein presented that this Court is bound by the decisions in other Courts regarding whether similar magazines are obscene or not.

And he puts in quotes, “The subjective nature of the material as well as the subjective conduct of the respective defendant requires an individual analysis in each case.”

A complete rejection by the Wisconsin Supreme Court of what this Court said in Redrup that certain material is protected.

They say, “We’ll tell you whether or not it’s protected.

We’ll tell you whether or not we viscerally have that feeling.”

Another example, of the type of reaction you get from the lower courts, the question is, was the introduction of the magazines in the evidence without further evidence sufficient to prove their obscenity beyond the reasonable doubt?

And they say, this Court has repeatedly held that obscenity is not so illusive.

The concept is to require expert testimony.

There’s nothing here that warrants any further consideration of that question and the evidence in the form of the magazines themselves was clearly sufficient to prove obscenity beyond the reasonable doubt.

You know how this case went to trial

?They took the magazines and threw them into the jury and said, “This is what the man is selling.”

And remember these are magazines of a man and a woman in nude and that’s all they’re doing and the Court is saying, “We will ignore everything and we’re going to go our own way.”

What do you do?

Well —

Warren E. Burger:

Well, as much as I recall it, correct me if I’m wrong, you urged us on a prior argument too that Younger against Harris was wrong and that we should overrule it, you maintain that point or did I –?

Burton Marks:

Absolutely, assuming that you can find some judges in the District Courts, the federal district courts that will follow the law of this Court because you don’t always follow that either.

I was continuing my saga for which this Court is very familiar with a case where there were 20,000 rolls of films seized in Southern California and the District Courts held they couldn’t be seized, it was unlawful and Judge Hanson of the Superior Court said, who I knew in effect and it went to the Court of Appeal.

Judge Hanson was never held in contempt, of course, because judges are immune from that sort of thing and it went through three or four or five respective courts, finally came up to this Court which affirmed the District Court three-judge ruling and finally, when the films got back after five or six months of the most extraordinary waste of time, in my opinion.

Getting back to the initial premise of my argument, can’t we give a defendant in a pornography case the same due process of law that you give with a juvenile or that you give a parolee?

Can’t he have a hearing such as you said in Morrissey?

Can’t he have the same presumption of innocence that is to say in Winship?

You said due process says that each element of the offense must be proved by competent evidence beyond the reasonable doubt.

Well, we have three elements of the offense.

We actually have four.

They were stated in this Court in Roth.

They were stated in Memoirs and it was just recently approved by this Court in Rabe versus Washington which approved Roth and Memoirs as to the three elements.

The three elements are very simple.

Does it go beyond contemporary standards as appeal to the prurient interest?

Burton Marks:

Is it utterly without socially redeeming value?

Doesn’t the prosecution have the burden of proving those elements, First Amendment elements beyond the reasonable doubt under the Fourteenth Amendment, so that defendant can have a hearing and a trial on it and don’t they have to present evidence, competent evidence?

I say that due process as they do.

The fourth element is even more illusive and that’s the scienter element.

Smith versus California said you’ve got to know what you’re doing.

The basic element of due process of law is that you have mens rea of criminal intent.

This people are businessman.

Maybe they’re on a dirty business that you don’t like but nevertheless, they are in business.

They don’t want —

Potter Stewart:

Do you understand Smith against California to stand for the proposition that the seller must know what’s in the book that he sells or alternatively that the seller must know that what is in the book he sells is illegal?

Burton Marks:

I say that he must know what’s in the book is illegal or probably illegal because if you just say, you know what’s in the book, then you get in to the wild speculation.

Does that mean that he knows that there’s some pictures of nude people?

Does he know it’s sexually oriented?

The Bible is sexually oriented if you take some passages.

What do you have to know about the contents of the book? I think you have to know or have some reason to believe that he knows that this has gone beyond what that which is legally protected.

Potter Stewart:

That goes a little further than what the opinion in the Smith case actually said, doesn’t it?

Burton Marks:

Well, it goes a little bit further but it has to be a logical and rational extension of that scienter requirement because if you don’t have that scienter requirement, you might as well overrule Smith versus California and say anybody who sells a book or to show the motion picture that deals with sex is subject to arrest and prosecution under some standards which are slightly less than the standards which are afforded to most other criminals.

I say, finally, there’s an instruction that used to be given in a series of time.

It says in the federal courts, to the jury, “If he’s guilty, say so.

If he’s not guilty, say so.”

I say in this instance, if you’re going to give us some standards, and you’re going to say that the First Amendment applies to the States, say so.

And if you’re going to tell that the courts below that they can’t seize a material without having an adversary hearing or some sort of hearing afforded to the person, say so.

And if you’re going to say that they can’t prosecute without having a hearing or to some determination as the material, say so.

But —

I gather Mr. Marks, what you’re proposing is that they’ll be required before there maybe a criminal prosecution.

Some kind of civil proceeding at which there’s a definitive determination whether the material involved is or is not obscene.

Is that was you’re talking about?

Burton Marks:

An injunctive type of proceeding.

Which would be conclusive.

But what about — how does that apply in pandering situations?

Burton Marks:

In — I think that if you’re — first of all, I have never seen a case since Ginsberg which has that type of pandering.

I think that that case is out in that field and will never happen again but if it does happen again, this Court has found ways to get around what have otherwise been apparently restrictive rules of law.

If the person is pandering and he knows it, the law allows for it, there’s room for all of those, that type of exception.

Thank you.

William H. Rehnquist:

Mr. Marks, under your theory, would it be permissible for the State to deal with a particular book or a particular movie in an in rem proceeding and given a favorable result to them on the obscenity issue bind anyone from thereafter who used it in the State on the issue of whether or not that was obscene?

Burton Marks:

No, I think what they must be — the only thing that they can bind the defendant on in a separate question is scienter.

After that hearing, no other defendant can go about and say I didn’t know it was protected because the law presumes that everybody else knows the law.

William H. Rehnquist:

So, even though the new defendant was not a party to that proceeding, he can’t defend on the grounds that it was not obscene.

Burton Marks:

Oh, he can defend on the ground that it’s not obscene because I would say this, as long as your procedure is going along, you’d obviously have to have an in rem proceeding with the right to appeal by whoever is appealing but the question of scienter knowledge of as to whether it’s obscene would be withdraw because don’t forget, in a in rem proceeding you have a judge sitting there and the judge can rule on the — I think that the only thing that judge can rule on is whether or not the book is not obscene.

If he rules that he will not make such a finding that the book is not obscene that it is not protected, then notices given to the world as it were to the criminal defendants that this may be the subject of a prosecution because he can’t foreclose by saying that the book is obscene, the right of a criminal defendant in a case to have a jury trial on that issue.

William H. Rehnquist:

Well, then the kind of in rem proceeding, you kind of like binds the State but not the defendant?

Burton Marks:

Absolutely and that’s the way it should be.

Thank you.

Warren E. Burger:

Mr. Capizzi.

Michael R. Capizzi:

Mr. Chief Justice and may it please the Court.

With respect to the in rem proceedings, I would suggest that it is not the answer for as Mr. Justice Brennan has suggested.

It doesn’t solve the questions raised by the pandering concept enunciated by this Court and adopted in California by statute nor does it take into consideration the definition which this Court has given to obscenity namely that to be obscene, it must — we must apply contemporary standards or customary limits of candor.

As I suggested last January, the case was argued before this Court, contemporary standards, if they are contemporary, they’re going to change maybe from day-to-day, certainly from month-to-month or year-to-year.

And we’re going to have to constantly reexamine that same book to see whether or not it’s obscene applying contemporary standards, not the standard that was applied six months ago when the hearing was held.

With respect to the knowledge that is necessary, I suggest that the only knowledge necessary is knowledge as to what is in the book.

To require that the person disseminating the material must know that the material is obscene would be to totally insulate the distribution of this type of material from any sort of criminal prosecution.

Mr. Capizzi, I gather your argument that because of the aspect of it must be contemporary, couldn’t contemporary have been.

That might be an argument against a particular conclusion of non-obscenity be binding on the State where the same material was involved later but what about the argument that in any event before there should be any criminal prosecution.

There ought to be a judicial determination of obscenity or no obscenity before that proceeding continues.

Michael R. Capizzi:

Of course, I anticipated another problem that that would raise and that in a civil proceeding, the burden of proof is by a preponderance whereas in a criminal proceeding, it would be beyond a reasonable doubt.

So, there would be another disparity there.

In effect for the present time, if the finding were in the particular case involving the dissemination by a particular defendant, would it matter if the determination whether that it is not obscene applying a preponderance test?

Michael R. Capizzi:

Well, in effect in California, as Mr. Marks has suggested, we have what borders on that sort of procedures, it’s not as a civil proceeding at such but it’s a preliminary determination of the constitutional question, the mixed question of law in fact [Voice Overlap].

Well, except as I understood Mr. Marks at least as to some judges.

They apply a probable cause test.

They don’t in fact make the ultimate determination of obscenity and non-obscenity as I thought it holds.

Are there some judges?

Michael R. Capizzi:

Some judges, I feel, possibly do that.

They feel that —

But what would you — if you do have such proceeding at all, do you think that it should stop with a probable cause determination or should it go on to make the ultimate determination obscene?

Michael R. Capizzi:

I think the initial question should be a probable cause determination if we are in fact going to have that determination but I would suggest that that determination that’s made by the trial judge is the same determination that is facing this Court in each obscenity case and that if we adopt a sufficiency of the evidence test, that that initial determination doesn’t necessarily have to be made.

That is to say, is it protected in the constitutional sense as a matter of law and if not, then the person is going to stand on trial but merely treated as we would any other case, hold the trial and then that the conclusion of the trial and review, determine whether or not there’s sufficient evidence to sustain the conviction beyond a reasonable doubt and to moral certainty.

Well, of course, I gather so far at least, our cases have indicated that you don’t approach this as only sufficiency of the evidence basis as a constitutional determination then we have finally to make a determination appear.

That’s why we handle it so far, haven’t we?

Michael R. Capizzi:

Yes, I don’t know but there’s really that much difference however between —

Oh, I think there’s a considerable evidence.

In a negligence case, you determine sufficiency of the evidence.

We don’t determine negligence out there.

But in obscenity cases, we do.

It’s a constitutional determination, don’t we?

Michael R. Capizzi:

Well, that’s true but it’s a matter of either it is or it isn’t rather than it is by degrees.

I don’t understand why if you’re going to have a civil proceeding question which is to consider the obscenity of the material, for which the defendant is being prosecuted.

Why you shouldn’t go all the way through and have a judicial determination whether is or isn’t obscene instead of just a probable cause of determination?

Michael R. Capizzi:

If there such is a civil proceeding provided for by law and that may very well be what would be necessary.

I thought you said California has something like this?

Michael R. Capizzi:

Well, there’s a determination that’s made by the judge as to whether or not this matter is constitutionally protected and the question of law, as I suggested that the question that this Court determines every time an allegedly obscene book or obscene matter is presented to it for review.

Well, it’s just that I thought Mr. Marks it’s not suggested that practice is different at least as it’s carried on by some judges of California.

Michael R. Capizzi:

Well, I will concede that the practice does differ among the judges, the trial judges.

Warren E. Burger:

Do you distinguish between the probable cause standard and a civil preponderance of the evidence standard?

Are they different in California?

Isn’t that the very nature of probable cause or a preponderance of the evidence, a balance of the probabilities and how is that different from a probable cause test?

Michael R. Capizzi:

I’d say it’s probably similar.

The two?

Warren E. Burger:

They both fall short of the standard of beyond the reasonable doubt, don’t they?

Michael R. Capizzi:

That’s right.

Michael R. Capizzi:

However, if in that procedure that California follows, if we required proof beyond a reasonable doubt before we could get to the jury.

We would in effect be denied a jury trial and if we prove that beyond the reasonable doubt to the judge why is a jury trial necessary.

Or if the rules — no matter how it rules one party to the proceeding is being denied, the constitutional right to a trial by jury.

I think we have to first determine whether or not this particular matter justifies going to trial.

That’s the procedure that’s followed in California at the present time.

That’s the procedure that was followed in this case contrary to the suggestion propounded by Mr. Marks.

There was a determination by the trial judge shortly after the arrest of this case, a determination that this was not constitutionally protected matter.

That took place in May of 1969.

Mr. Marks attempted to appeal that to the Appellate Department of our Superior Court and the Appellate Department of the Superior Court concluded that the trial judge was correct and this was not constitutionally protected matter and it was after that decision by the Appellate Department of the Orange County, California Superior Court that the decision of the L.A. Municipal Court which is a written opinion and relied upon by Mr. Marks was signed, so if there’s a doctrine of res judicata or collateral estoppel that applies in this case, if the initial decision was the judge who heard that matter in this case and concluded this was not constitutionally protected material and the trial judge in Los Angeles County should’ve been bound by that determination as opposed to Orange County being bound by the later decision of the L.A. Municipal Court judge.

The case was tried, evidence was produced and the jury was instructed on the basis of a statewide standard for customary limits of candor.

It was on appeal for the first time that the appellants suggested that a nationwide standard should be adopted and applied.

This was after he had produced evidence and concurred an instruction to the jury that statewide standard should be applied.

Potter Stewart:

Is that the phrase that’s used in California generally in jury instructions and in court opinions that the measure is the customary limits of candor?

Michael R. Capizzi:

Yes, the material must go substantially beyond — applying contemporary standards must go substantially beyond customary limits of candor.

Potter Stewart:


Michael R. Capizzi:


Potter Stewart:

Candor means honesty.

Michael R. Capizzi:

Honesty, frankness, purity.

Potter Stewart:

Is that test used in other First Amendment areas in California?

Michael R. Capizzi:

Yes, as to all allegedly obscene material, that’s the test that is applied to determine whether or not —

Potter Stewart:

Go beyond, beyond obscene materials and any other case involving First Amendment claim if it goes — if it’s too honest is it illegal.

Michael R. Capizzi:


I think it’s a term that is exclusively used for —

Potter Stewart:

It seems to me rather not proportionate phrase to use.

Michael R. Capizzi:

Well, it’s a phrase that is enacted by statute following the decisions of this Court.

Potter Stewart:

The more honest it is, the more unlawful it is.

Well, if that’s what — I think that’s what the word candor means.

Michael R. Capizzi:

There are varying definitions, I believe propounded by the dictionary.

Purity is one of them.

Frankness is but one definition that it is used.

Michael R. Capizzi:

However, simply because someone is frank or honest do not necessarily insulate that conduct of speech and I think similarly would be liable if it’s done maliciously even though it might be honest, does say truthful.

It suggests that the Constitution does not require that a nationwide standard be adopted if were to say that the limitation of states is through the Fourteenth Amendment and the due process clause of the Fourteenth Amendment.

The implication is that the States may deprive its citizens of life, liberty, or property if due process is followed or complied with and due process in the past has not required that each state have identical laws for depriving its citizens of liberty.

The different states provide varying types of conduct as criminal and it seems that it should be no different for each state to have a slightly different definition as to what constitutes obscenity than it is to have a slightly different definition as to what constitutes burglary or any other crime.

Potter Stewart:

I don’t know that anybody has made a claim that burglary is protected by the First Amendment.

Michael R. Capizzi:

No but it involves conduct and it involves freedom of action if each State must have an identical definition as to what constitutes obscenity, how can we avoid the conclusion that the definition of any crime must be the same from state to state because in obscenity, we’re talking about the freedom of speech.

In any other sort of criminal conduct, we’re talking about freedom of action and I’d suggest that freedom of action is likewise a very, very basic —

Potter Stewart:

The one is in the First Amendment and the other isn’t.

Michael R. Capizzi:

The other is in the —

Potter Stewart:

Nothing and nothing in the Constitution that says you have a freedom to steal or commit burglary or murder or —

Michael R. Capizzi:

No, but freedom —

Potter Stewart:

— may harm, assault and battery.

But there is something that says you have the right of free expression and free speech.

Michael R. Capizzi:

No but freedom to do what we wish and what the states prescribed certain conduct as not being permissible likewise from state to state if we’re talking about the due process clause of the Fourteenth Amendment, should we not have different definitions as to what constitutes obscenity.

The fact that — well, in addition to the constitutional argument, I’d suggest that practicality suggests that a nationwide standard is simply not possible.

In Denver, the dancers wear pasties and g-strings.

In southern California, they wear nothing.

What is the standard?

Or to further illustrate it, let’s assume for the sake of illustration that the east of Mississippi, the dancers wear pasties.

West of the Mississippi, they don’t wear pasties.

What is the national community standard for limits of candor?

How are we going to average or determine something that’s not subject to determination?

From a practical point of view, it would be very easy for the appellant of this case to determine the standard in the various localities, much easier than it would be for him to determine the standard by a nationwide basis.

The whole is made up of the parts and while the parts may be readily identified, simply by identifying the parts, you can’t necessarily arrive at a description as to what the whole is.

If we were to adopt something that was acceptable to the nation as a whole, we would probably have something akin to what we see on TV, something that’s acceptable for dissemination indiscriminately in any home and to anyone who might see it which in effect, what we have in this case.

It was mail unsolicited into the home where anyone within the home might open it and see it.

Thirdly, I would suggest with relation to the earlier comments that judges in determining obscenity in the constitutional sense are determining a question of law and the local judges are not capable of determining what the national standard for limits of candor is.

How are they going to determine what the limits of candor nationwide are?

Experts — experts may define it for the trial judge but if we have conflicting experts, how is the appellate judge to resolve the conflict?

The basic principle that the prior fact can determine credibility because he used the witness is absent when the appellate judge was looking at the whole record.

Michael R. Capizzi:

Further as attorneys and judges and I think it’s easy for us to accept the proposition that speech acceptable in one location is not acceptable in another.

We describe things one way in the office to contemporaries, partners and associates which description if use in Court would probably subject us to contempt.


If location is not important, why can’t we speak the same way in the courtroom that we can speak in the office?

And I think obviously that in that situation, we recognize that the limits of candor, honesty, frankness differs from place to place because we have two different communities in effect, the office and the courtroom.

And the same is true from city to city, county to county.

Thurgood Marshall:

You mean you’re less candor in the court than you are in the office?

Michael R. Capizzi:

No, Mr. Justice Marshall but we use different terms sometimes to describe the same thing in court than we do in chambers, in the office or sometimes other court and I think the reason is the — not simply a question of honesty because both descriptions are honest and frank and described the same thing but it’s the language that’s used is acceptable in one location and not acceptable in another location.

The test then submitted the States are free to adopt whichever community they choose whether it be local, state or national for determining customary limits of candor.

In this case, the State chose the statewide community and it’s submitted that the evidence simply established that community was — the standard for that community was exceeded.

The evidence amply established that the material predominantly appealed to a prurient interest and although Mr. Marks says, he hasn’t seen the case since Ginsberg that involve pandering, I would suggest that this case itself may be very well involve pandering.

These were brochures containing a number of scenes from the book they purported to advertise and very little of the text of the book is there, only the most graphic depictions of sexual activity selling predominately the prurient appeal of the books as opposed to whatever social value they may or may not have.

Harry A. Blackmun:

Mr. Capizzi, did I understand you to say that in California, you attempt to apply a state standard?

Michael R. Capizzi:

That’s correct, yes.

Harry A. Blackmun:

How was that any more easily apply than a national standard?

Michael R. Capizzi:

It’s not, I would concede.

It’s extremely difficult to establish.

In adopting a statewide standard, the state court said that expert must be used to establish what that standard is or to assist the prior facts in determining that standard.

Harry A. Blackmun:

I suppose a jury however it’s instructed is going to apply what it regards as standard to what a local standard is.

Michael R. Capizzi:

It’s possible.

Although, they administered an oath and asked to follow the law and presumably, they do follow the law.

Harry A. Blackmun:

In any event, you are conceding that what might be the standard in a Northern California County might not go inside of the standard in Los Angeles?

Michael R. Capizzi:


Most definitely.

William H. Rehnquist:

Well, you’re going to (Inaudible).

Michael R. Capizzi:

That’s correct.

I’m suggesting that the Constitution does not make that standard impermissible and the Constitution would likewise permit of a local standard if the law of that State indicated a local standard.

In other words, the State itself is just free to adopt a standard which it see is fit and neither three or neither of the three standards, local, state or national violate the Constitution that’s applied to the states through the Fourteenth Amendment.

Warren E. Burger:

Going back to Mr. Justice Blackmun’s question to you about the jury acting independently, isn’t the jury permitted to credit or discredit any evidence that it wants to?

Michael R. Capizzi:

Most definitely.

Warren E. Burger:

And particularly, isn’t that true about expert testimony?

Michael R. Capizzi:

That’s correct.

Most definitely simply because the expert testifies doesn’t mean the jury has to accept that which he relates to them, if he just believes that witness.

But responding further to the question, the statewide standard is difficult to determine or to prove or to provide experts on the extremely difficult a nationwide standard requiring experts to establish would be virtually impossible to do.

Warren E. Burger:

Has the California Supreme Court undertaken to define statewide standards of what constitutes negligence or reasonable care?

Or do they leave that to juries on a case by case basis?

Michael R. Capizzi:

Maybe just left to juries on a case by case basis.

Yes, Mr. Chief Justice.

Warren E. Burger:

Would it be fair to say that it’s possible to have one type of a verdict in northern California in a homicide case and a different type of verdict substantially the same evidence in some other part of California?

Michael R. Capizzi:

No question about it.


Warren E. Burger:

That’s the nature of the jury system, isn’t it?

Michael R. Capizzi:

That’s the nature of the system.

That’s correct.

Further with respect to the third element that’s required in California by statute and that’s the issue of utterly without redeeming social importance, I would like to emphasize the redeeming aspect of social importance and ask that that not be treated lightly or dropped from the full phrase.

It seems to be glossed over on occasion or completely eliminated but if the phrase is to have meeting then the redeeming aspect of utterly without redeeming social importance must be emphasized.

Everything as suggested by Justice White has some value to society whether we learn from it hopefully and if that is the test strictly social importance or social value then nothing is going to be obscene but we must have — it must be utterly without redeeming social importance.

I would ask that the Court reject the necessity of determining obscenity in a constitutional sense on a piece-by-piece basis and adopt a sufficiency of the evidence test as hide in other cases.

No matter which test is adopted, submitted that the material in this case is patently offensive and substantially exceeds any conceivable standards or limits of candor and for that reason, we submit the judgment should be affirmed.

Thank you.

Warren E. Burger:

Thank you, Mr. Capizzi.

Mr. Marks, do you have anything further?

You have two minutes left.

Burton Marks:

Very briefly, thank you Mr. Chief Justice.

I say this, I may have some disagreement as to whether probable cause hearing is different from a preponderance of the evidence hearing and I personally feel that Chapman versus California would not militate or necessitate a beyond the reasonable doubt hearing.

But that’s not the point.

The point is, give us a hearing and let us work it out.

That’s what happened before.

Give us a hearing.

Let that person have his chance in court not in a criminal prosecution which was never meant to apply to a First Amendment case.

Potter Stewart:

As I understand it though, you’re not talking about giving us a hearing as you did in your words with respect to the precise material involving in a particular case but just sort of generically — with respect to material generically.

Is that —

Burton Marks:

Give us a hearing which will find the States, so that they can’t continue to harass and prosecute for the same type of material.

Potter Stewart:

No, the same type of material, not the same material.

Burton Marks:

No, the same type.

Potter Stewart:

And that’s where one —

Warren E. Burger:

Who’s going to decide whether it’s the same type?

Potter Stewart:


Burton Marks:

Well, somebody knows it when they see it and you can look at it and there’s no, this is no question.

Warren E. Burger:

Isn’t that what you’re doing now, jury by jury?

Burton Marks:

If you are doing a jury by jury, you’re doing it on a proposition that one type of material has already been declared to be materially protected and you can’t even bring that type of evidence in some cases before a jury or before a judge to a stop.

Warren E. Burger:

But are you saying any more then than that in some courts before some juries, a verdict might manslaughter and that on the same evidence might be second-degree murder?

Is that — I take it as a lawyer you’ve acknowledged that that does happen?

Burton Marks:

Oh, that has happened but that is not what I’m saying.

Perhaps, what I’m saying is that the defendant has to have a chance to know before he can be put before the jury and made to do something and the State should give the opportunity and they should be forced to produced the evidence by an impartial state, not the police officer testifying as the expert but impartial evidence before an impartial judge.

That’s what we need.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.