Mitchum v. Foster

LOCATION: University of Wisconsin-Oshkosh

DOCKET NO.: 70-27
DECIDED BY: Burger Court (1972-1975)

CITATION: 407 US 225 (1972)
ARGUED: Dec 13, 1971
DECIDED: Jun 19, 1972

Raymond L. Marky - for appellees
Robert Eugene Smith - for appellant

Facts of the case


Media for Mitchum v. Foster

Audio Transcription for Oral Argument - December 13, 1971 in Mitchum v. Foster

Warren E. Burger:

We will hear arguments next in Number 27, Mitchum against Foster.

Mr. Smith you may proceed whenever you are ready.

Robert Eugene Smith:

Mr. Chief Justice, may it please the Court.

Case arose in the State of Florida in a town called Panama City in which a State Court Judge granted a closing requested by the prosecution of an adult bookstore selling adult materials.

And so, identified -- this was predicated after a hearing in which the Trial Judge looked at certain few publications and felt that if these were representative, this whole store should be closed.

It was injunctive --

Warren E. Burger:

When you say representative, representative of what?

Of all the books or some of the books or --

Robert Eugene Smith:

Yes sir.

This is not a store that was selling Time and Life.

Consistent with what some counsel view, the decisions of this Court since Redrup it was an adult bookstore which was identified as an adult bookstore and, you know, you must be 21 to enter.

So that no one would enter and be intruded upon by their privacy looking to buy a Ladies’ Home Journal or something of this nature.

So we are dealing with only adult merchandise and the concession or any representation that all the material was adult only oriented.

Whether it be pocket novel, whether it be girly magazines, these were all adult only oriented material.

That was the way to view to the Judge, we suggest looked at the entire thing and that is what I mean by the term representative, adult only versus reportorial or newspapers or things of that nature sir.

And --

Warren E. Burger:

Well, do you suggest that some of the things that were in evidence and viewed by the Judge were representative of Ladies’ Home Journal for example?

Robert Eugene Smith:

No sir.

It was not contended that it was -- they said they were representative of the material and all the material was adult --

Well, what you mean when you say adult material, you mean that it is material that deals explicitly with sex book.

Robert Eugene Smith:

Well, maybe not explicitly, it suggested or --


Robert Eugene Smith:

Erotic materials, yes sir.

And that is what it is.

Robert Eugene Smith:

Yes sir.

And that is what the whole contents of the store?

Robert Eugene Smith:

It was for adults only, erotic type materials.

Yes sir.

When you say material, do you -- was it all -- was it all literary or pictorial material?

Robert Eugene Smith:

Combination sir.