Paris Adult Theatre I v. Slaton

PETITIONER:Paris Adult Theatre I
RESPONDENT:Slaton
LOCATION:Paris Adult Theater

DOCKET NO.: 71-1051
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Supreme Court of Georgia

CITATION: 413 US 49 (1973)
ARGUED: Oct 19, 1972
DECIDED: Jun 21, 1973

ADVOCATES:
Robert Eugene Smith – Argued the cause for the petitioners
Thomas E. Moran – Argued the cause for the respondents

Facts of the case

State officials in Georgia sought to enjoin the showing of allegedly obscene films at the Paris Adult Theatre. The Theatre clearly warned potential viewers of the sexual nature of the films and required that patrons be at least 21 years of age. The Georgia Supreme Court held that the films were “hard core” pornography unprotected by the Constitution.

Question

Did the Georgia injunction against the films violate the First Amendment’s guarantee of freedom of expression?

Warren E. Burger:

We’ll hear arguments next in 71-1051, Paris Theatre against Slaton.

Mr. Smith.

Robert Eugene Smith:

Mr. Chief Justice and may it please the Court.

This case originated in the City of Atlanta when the respondents filed a complaint seeking in essence a declaratory judgment and injunction to prohibit of the showing of two movies.

This comes about because the theatre, the Paris Adult Theatre, had two separate sections to it where separate films were being shown and one would walk in to the cashier and go in one or go in the other.

Potter Stewart:

There was a common lobby and —

Robert Eugene Smith:

Common lobby, yes sir.

And then the door would open to the particular film they wanted to go see.

The complaint filed by the prosecutor, by the prosecution or the respondents in this case sought a temporary injunction to stop the showing of the film pending the hearing on the permanent injunction.

Fortuitously, the Judge did not sign that broad of a temporary restraining order merely to sought to stop the petitioners in this case from taking the films out of the jurisdiction or altering, or removing them.

A hearing was scheduled in January and ultimately on January 13th, 1971 the films were produced.

Their evidence produced before the Court indicated that this theatre had its outside was painted so that no one could see inside and there were several legends on the windows, to the extent for adults only, you must be 21 and be able to prove it.

If viewing the nude body offends you, do not enter.

The fore warning of the character of the material which one might expect to find therein was clearly stated on the outside.

The prosecution at the time of the presentation of its case, brought in several witnesses who had viewed the movie.

These were investigators in the office of the Solicitor, and they indicated that these films showed explicit sexual acts of cunnilingual, fellatio, and intercourse.

The Trial Judge, after viewing the movies found they did not show these explicit acts.

They were simulated.

The Supreme Court of Georgia said, “Well, it doesn’t leave really much to the imagination and its close enough.

And besides, we thought the acts which in essence were simulated in I Am Curious (Yellow), that this is the same kind of thing, we thought was obscene in I Am Curious (Yellow), and the Supreme Court of United States has not reversed in that case, and so as far as we are concerned, this is hardcore pornography.”

That was just the title they threw on it.

Even though there were no explicit sexual acts consummated in this particular film, sort of in a sense of the language of this Court in Rabe versus Washington, when it was talking about certain types of films.

The Court as I said issued its order and held these were not hardcore pornography, that there were no minors involved, and that as far as the Court was concerned, they were tasteless, vulgar, childish, unimaginative, boring, but as far its concern, it was protected by the constitution.

The State Supreme Court reversed and we are here on this issue.

We pointed out initially in our brief that the procedural — there were no procedural guidelines for this taking process in the State.

There is no statute that permits this, there is no authority, no judicial construction that will say, that as far as the Court will hear it on a certain day, the Court will decide within a certain number of days as to its decision in this particular matter.

We say the procedural safeguards are lacking.

They are not there, but yet the state has or been allowed to do it in this manner.

But more importantly, we’d like to direct their argument to the question suggested by this Court with regard to the display of sexually oriented films.

My brother in his brief would interpret the terminology, any sexually oriented films as meaning obscene films.

Robert Eugene Smith:

I interpret that in slightly different way.

We view this as being whatever the definition, whatever definition of the members of this Court, whatever definition is supplied by statute, whether it’s something to the left of Pinocchio on up to the extremes that Mr. Moran has cited in his brief, whatever — however will you define, whatever denominator you use to define and aside from the specific definition, is there a Constitutional right to offer this for dissemination in a commercial theatre where there are no children admitted and where there are some note of notice, some warning on the outside of the theatre as to the character of the material being offered there.

Now my brother would say, “Yes, but there was no sign that said cunnilingual activity depicted, no sign that said fellatio, just said if the nude body offends you, please don’t enter.”

But the first time we put a sign out that said, Cunnilingual activity in, fellatio in, they maybe hauling us in and charging us with pandering, which in essence what they did in other cases in that jurisdiction where that particular matter was present on the outside of the theatre.

So in this context, this is what we have.

Addressing ourselves to the greater point, we don’t think that Roth necessarily is inconsistent with the argument we’re making today.

This Court in essence did say in Roth that “Yes, obscenity is not protected by the First Amendment.”

But it went on to say that the door barring federal encroachment into this area must be kept tightly closed to prevent encroachment upon more important interest.

We suggest that the Redrup cases which in essence started a trend in which there are approximately 33 or 34 cases reversed per curiam, let us gently from a point of focusing on the expression, to focusing on conduct.

It is as Mr. Fliesman pointed out with regard to the California Attorney General who was walking down the street last night, we do not have in this record any reference to anyone standing outside of the theatre and hustling them in as you might find at a night club or something like that, nothing whatsoever.

There is absolutely no hustling or any way pandering, however, you might define those terms involved in this case.

We suggest that the right of the disseminator to assert his position although he is not necessarily the viewer, is clear from a variety of cases held by this Court.

One of the key points that the Court has made with regards to First Amendment, is that if they are not the procedural safeguards, we are going to have an inducement of self censorship and when one induces the self censorship, then in essence the public is the loser.

The public is the loser and in prosecutions undertaken without — in this context, sure they can be punished if there is going to be an intrusion, but we do not have it in this case.

There is not in this case the problem that might be presented in a magazine or a bookstore where the book is taken out of the store and left in a trashcan, and the possibility it maybe found by children.

We have a film, in a commercial theatre where people can go and view it.

In Carr Lexus versus Burn reversed by this Court on other grounds, the lower court held that if Stanley in essence can watch a film of any kind, any sexually oriented film, sexually explicit film in the privacy of his home, why can’t a few fellows get together and watch it in a commercial setting and have just the same sense of privacy and the same sense of protection and we suggest that makes good sense.

We pointed out in our brief that approximately 600 millions of dollars are spent in a year on the sale of and or exhibition of sexually explicit material and that’s an awful lot of public support for an interest in sexually explicit material.

Potter Stewart:

How many dollars are spent in efforts to suppress it by local and the State police and federal?

Robert Eugene Smith:

I would say Your Honor, a great deal.

I’m sure —

Potter Stewart:

A lot of people will be put out of work though –[Laughter]

Robert Eugene Smith:

Well, I think Mr. Clancy, my brother who has the amicus brief in this case probably would feel they will be put out of work, but in this context, we think that the focus on action on the conduct of the disseminator would not be inconsistent with the protection of the right of the public under the First Amendment.

We are not as in Reidel conceding that these films are obscene.

In Reidel for the purpose of the motion to dismiss, there was a concession that for that matter assume the films are obscene.

We’re saying something different.

We’re saying that the definition of whether the films are obscene, is not relevant until an impermissible intrusion occurs by the act of the disseminator in thrusting upon someone or by having involved with minors in that particular case, just does not exist here.

So we say it is not inconsistent for this to have occurred.

We also have argued and set forth that the film itself, regardless of the argument that we make on the right of an adult, the right of a disseminator to show films in a adult theatre, that these films are not obscene.

They are not unlike films for instance involved in the Hartstein case, films that were involved in a Wiener case.

Robert Eugene Smith:

And these points out the difficulty we suggest why this Court shouldn’t annunciate broader protection and a positive protection to eliminate the difficulty inherent in trying to fit a definition because in some states, prurient interest is defined as shameful and morbid.

Now there is — it is an itching sensation, I think using the term — some of the terminology taken from a marginal note by Mr. Justice Brennan in the Roth case using that phraseology.

And then prurient means so many different things to so many different people and then the question of community standards.

Are we talking about some standard to which we all should aspire?

Getting married for life and never having an extra marital affair and never getting divorced.

But is that what the community really does?

Sure!

That is something.

That is the ideal, that’s what we really hope aspire to but then in this context, is the community standard, that which we should aspire to, or is it that which we find ourselves in today and is there a single standard in our community?

We suggest there is not.

There are many — there’s a standard of different groups.

It’s clear in surveys taken whether they are political surveys, whether they’re sex research surveys, that there is a conservative element in our society, there is a liberal element in our society, and there are a lot of people who just don’t care one way or the other or at least don’t show a great deal of positive interest in responding.

We’ve indicated that there were community attitude surveys by the Presidential Commission on Pornography and Obscenity, where several millions of dollars were spent, taking a survey on a demographic basis throughout the United States.

And one of the conclusions were that many people felt as Mr. Justice White pointed out in Reidel that there is a developing sentiment where people and adult should be allowed to read and see what they want to see and in essence, that’s what the public said.

Now again, taking a definition, what is a community standard, and when we talk about candor, what is the duty of candor?

We may tolerate homosexuality in our society.

It’s not our bag, but it’s there, it exists, it’s part of it, but yet, if you discuss it, if you depict it in some ways, it maybe said, “No, it’s wrong because that’s not what a normal person does in our society.”

Going on to the concept of social value; some jurisdictions have eliminated or trying to eliminate by referendum, the concept of social value in an obscenity litigation.

It is the fact that a material which is pruriently appealing, it is the fact that a material exceeds contemporary community standards, but if it has some slight modicum of social value, as the Memoirs decision, is this enough to protect it and communities are trying to do way with that.

Then there’s a problem of the local versus the national and how local is local, and how national is national.

This presents a problem.

The Courts are literally flooded with obscenity cases and I know that this Court has a great many of them that have found their way up here.

There are lots of cases on appeals in Federal Courts and State Courts which are awaiting the decision of this Court in this case on these issues.

There are many cases being made almost daily in the lower courts and which will ultimately find their way up to the Appellate Courts.

And depending on who the judges are that you’re sitting in front of and how he views the words of this Court in context or out of context, the jury instructions and such given, make it very difficult, make it very difficult for there to be the uniformity that there should be in the application of a national constitution.

And thus we get back to the point where the focus we suggest should be on conduct.

If we want to go out and to talk about a political candidate, it’s one thing, but if we are going to do it at 2 o’clock in the morning in a residential neighborhood, then the right of freedom of speech is ended right there.

It’s not the right of course to do it anytime, anyplace that you want.

You can’t block ingress and egress if you’re going to do picketing.

In the same sense here, no one forces these people to go in this door.

Robert Eugene Smith:

It is the right of the individual to choose and if the right of the disseminator here to assert the right of the citizen who might want to see this, we’re doing this in an essence if the Court were to go to this point, then the self censorship factor would be eliminated.

And I think that is Mr. Justice Brennan has pointed out in the past in some of his decisions that the public would really then be in a position to choose, view, and disregard what it is and then it is the mature and free society that should be allowed to make that choice.

It should not be jurors focused in the public light where they feel they must react because there is a community pressure if they say it’s not obscene.

Somebody will think they are dirty old men.

This is the concept.

We eliminate these things by focusing on the conduct, so that if there is a public display, then this is eliminated.

The State of Oregon for instance now has litigated or has passed the statute and there can be no prosecution for obscenity unless there is a public display of the material by the public highways.

In an adult only bookstore, in an adult only theatre, it’s okay as long as they are not juveniles involved.

The State of Hawaii has now passed the same kind of law as the State of Oregon, again holding this.

There is — this is the kind of law that should exist —

William J. Brennan, Jr.:

Are those statutes are in your brief Mr. —

Robert Eugene Smith:

No sir they are not.

William J. Brennan, Jr.:

They are not?

Robert Eugene Smith:

No sir they are not.

William J. Brennan, Jr.:

Do you have them?

Robert Eugene Smith:

Yes I can furnish them to the Court.

Warren E. Burger:

Did you submit them?

Robert Eugene Smith:

Yes sir.

William J. Brennan, Jr.:

Are those the only two that you know of Hawaii and Oregon?

Robert Eugene Smith:

They are the only two States which have thus far done this.

Warren E. Burger:

How recent is Oregon’s?

Robert Eugene Smith:

Oregon’s is about a year and four months Your Honor.

Hawaii is about — for about four or five months.

It’s very recent and we suggest this works.

And I have quoted extensively from Professor Emerson’s book and he’s suggesting a solution to this Court to get it out a lot of the problems with regard to obscenity litigation.

We think it is a sound solution.

The Chief Justice is well known for his views regarding the crowding of the dockets.

We say there is a big way to get a lot of those cases out of the way by annunciating the principle like this which will protect the shock that maybe found to the public who wants to avoid confrontation, but at the same time, giving the right to the individual that wants to view and read.

I would like to save —

Potter Stewart:

There was no jury in this case, was there?

Robert Eugene Smith:

No sir.

Potter Stewart:

And indeed it was a proceeding in the nature of an equitable proceeding?

Robert Eugene Smith:

Yes, sir that’s correct.

Potter Stewart:

In the petition for certiorari, you say in your brief that the relevant statutes and the constitutional provisions are in certiorari petition and I picked that up and all I find is a criminal statute.

Robert Eugene Smith:

That’s the point I’m making Your Honor and I said earlier Your Honor, there is no statute to cover what they were doing.

Because of the criminal statute, they sought to undertake and utilize a ad hoc procedure.

William J. Brennan, Jr.:

It’s an ordinary, civil, equitable objective?

Robert Eugene Smith:

That’s correct but relying upon the criminal statute for definitional purposes and of course ultimately they may have decided to take the films when they obtained them as an ancillary proceeding, instituted criminal proceedings.

That’s the statute under which they traveled, the definition under which they traveled and of course one of our complaints here is that the matter was simply an ad hoc proceeding.

It was just —

Potter Stewart:

Well of course if the Court’s of Georgia say that that’s a procedure available under Georgia law, I suppose that’s the end of it as far we are concerned.

Although, apparently, there’s no statutory authority there of hand?

Robert Eugene Smith:

No sir, there is no statutory authority.

William J. Brennan, Jr.:

Well, you argue —

Potter Stewart:

One must proceeded by the Georgian Courts and —

Robert Eugene Smith:

Yes but again, they approved the procedure in this particular case but they didn’t say or dwell or say that the judge issue his opinion within so many days.

William J. Brennan, Jr.:

Well that’s your Freedman argument?

Robert Eugene Smith:

Yes sir that the point I was making.

William H. Rehnquist:

(Inaudible) in fact here the Judge took an unduly long time on the facts here he did, but because there were no guidelines another Judge might have?

Robert Eugene Smith:

That’s correct sir.

Warren E. Burger:

Was this in the nature of the ancient nuisance type of injunction?

Robert Eugene Smith:

Sir, I don’t see that.

Mr. Clancy in his brief, in the amicus brief seems to suggest that.

I didn’t find that was even an issue in this case.

There was no — this was not called a noxious public nuisance.

It wasn’t being shown in outdoor theatre.

It was as I said in an indoor theatre, and was simply an effort to suppress the showing and distribution or exhibition of these two films to adults.

Potter Stewart:

You mentioned an amicus brief, I don’t seem to have one, who filed this brief?

Robert Eugene Smith:

Well, I got one this morning.

Warren E. Burger:

It was just filed this morning, late.

Robert Eugene Smith:

Well, I just received it this morning.

William J. Brennan, Jr.:

Of course you won, you prevailed in the Trial Court?

Robert Eugene Smith:

Yes sir.

William J. Brennan, Jr.:

And you had an adverse determination which was not on the issue of obscenity as I understand on the sex of the film?

Robert Eugene Smith:

Yes sir.

William J. Brennan, Jr.:

And that was favorable to your client?

Robert Eugene Smith:

That the first ruling was, yes sir.

William J. Brennan, Jr.:

And you don’t — you still think that that procedure did not satisfy the Freedman standards?

Robert Eugene Smith:

Viewing it, as I was responding to Mr. Justice Rehnquist, the fact that Judge Etheridge did it this way, “We are left then to assert our procedural due process in First Amendment cases to the efficiency of a particular Judge in a particular jurisdiction.”

And that is what I understood this Court meant in Freedman, in Teitel Film Corp. and other cases that follow that.

I’d like to save whatever few minutes I have left if I may to rebut Mr. Moran’s —

Warren E. Burger:

Very well Mr. Smith, Mr. Moran.

Thomas E. Moran:

Mr. Chief Justice, may it please the Court.

I filed this suit and have been involved with it since very inception.

There existed at that time in Georgia three basic types of procedure, one was strictly civil, one was strictly criminal, and one was civil leading toward the criminal process.

Now, before I was in office in this particular case, the Solicitor traveled the criminal route.

He was stopped in Gable versus Jenkins and the Federal District Court says “No, you must first have a prior adversary hearing before seizing the material.”

And therefore, we started the civil proceedings as a prior adversary proceeding leading to the seizure of the film for criminal prosecution purposes.

I might add at this juncture, that this is not anyhow imposed upon us.

The Federal Court says there they were mixing the apples and oranges, civil and criminal procedure.

And it complicated matters and as long as the Court would stick with the civil process on the one hand and the absolute criminal process on the other, we had a clear and defined area, that the criminal process would inherit it, grant to the person a far greater protection than any civil injunction could grant.

Nevertheless, the outline or the method of using an injunction was suggested indeed.

Then we started that process, and a petition was filed alleging that the film in this case was obscene, setting out a factual description of the film.

We showed it was being exhibited to the general public on a fee basis.

We asked the Court to restrain and enjoin them from further showing the film.

Warren E. Burger:

We’ll pick up at that point after lunch.

[Luncheon Recess]

Mr. Moran, you may continue.

Thomas E. Moran:

I believe at the recess we were at the point concerning the procedure employed in this particular case in the State of Georgia.

The petition as it was served upon the defendants at that time, did not restrain the showing of the film, did not in anyway interfere with the showing of the film.

Thomas E. Moran:

It simply restrained and enjoined them temporarily from removing the film without the jurisdiction of the Court and a hearing was then set immediately thereafter.

From that juncture it is entirely up to the exhibitor whether he wants a hearing or whether the State will press forward at that time, which we generally do.

Any continuance is on the behalf of the exhibitor.

In the meantime, he can continue to show the file.

Then after an adversary hearing and I might add to our opposing counsel I would mention this to the Court that the film was produced by counsel wrapped in a Christmas package and which the Court graciously accepted it in a manner it was tended.

The film was shown and the Court in this case did not render decision for quite sometime.

There was still no injunction whatsoever about showing of the film.

Unlike most —

Potter Stewart:

The film was produced in the Court?

Thomas E. Moran:

Yes sir.

Potter Stewart:

And shown to the Court, and then after it was returned to the defendant?

Thomas E. Moran:

No sir, it was kept as evidence in that particular case.

Warren E. Burger:

But they were permitted to go ahead with showing on another copy?

Thomas E. Moran:

Yes sir.

They could do so.

Potter Stewart:

Do they have — if they have more than one print of the film?

Thomas E. Moran:

I do not know sir.

But that was a procedure imposed on us by the federal judiciary in Georgia.

I might point this out at this juncture —

Warren E. Burger:

What this amounted to was a seizure of evidence by way of a civil action.

Thomas E. Moran:

Yes sir, after a hearing.

William J. Brennan, Jr.:

But did I understand was this the only print of the film?

Thomas E. Moran:

I do not know that.

Warren E. Burger:

Well —

William J. Brennan, Jr.:

But you did say I thought that they were free to continue to exhibit but they don’t know what that —

Thomas E. Moran:

There was no prohibition about exhibiting the film.

William J. Brennan, Jr.:

But you don’t know that they in fact did exhibit.

Thomas E. Moran:

No sir.

We do not use this procedure anymore and we only used it then because it was imposed upon us.

We resisted it then and we resist it now.

Thomas E. Moran:

For you see, unlike most states since 1877, Georgia enacted a Constitutional provision which reads “Liberty of speech or of the press guarantee, no law shall ever be passed to curtail or restrain the liberty of speech or of the press.

Any person may speak right and publish his sentiments on all subjects being responsible for the abuse of that liberty.”

Now on that statute or because of that statute, I personally filed suit in K. Gordon Murray Productions versus Floyd and challenged the censorship ordinances in the City of Atlanta, Georgia in 1962.

The ordinances I contended then were infected with the vice in Teitel and the Georgia Supreme Court declared it unconstitutional, as abridging this particular provision.

And said that they could show what they please but they are going to be responsible for that to show and if it amounts to criminal acts in nature they can be punished for the criminal acts in nature, just as you can have a gun legitimately on person and that’s all right or in your home, but if you use that gun for an illegal purpose that is something else again and that is a procedure that we adopted in the State of Georgia.

I might add that in just passing that references made to Oregon, now why I believe reducing the standards of obscenity or abolishing it all together.

That I say is well and good, if that’s what the State there wants.

This is a legislative problem we are coping with and not as we contend a judicial problem.

Warren E. Burger:

How would you go about this procedure, what procedure would you employ if you were doing that now?

Thomas E. Moran:

In —

Warren E. Burger:

In Georgia.

Thomas E. Moran:

We would proceed under search warrant, and proceed criminally, and make the arrest, have the commitment hearing which we are required to do in the matter of 24 to 48 hours and have every criminal — a protection of any person accused of crime, there could be no destruction.

The only difference in civil process strictly civil and strictly criminal where that be body of intertwine is that in the civil process is for the purpose of seizure and destruction.

In a criminal process, its seizure for the purpose of evidence.

Warren E. Burger:

Well then you — once you do I suppose is that some officer would have to see the exhibition and then he’d make an affidavit in support of the search warrant, go to a magistrate and get search warrant on the basis of that information, is that right?

Thomas E. Moran:

Yes, a factual affidavit now.

Not one just to say that I saw a film but it’s obscene.

It has to start off —

Potter Stewart:

Describe it.

Thomas E. Moran:

— exactly as the film is described in this brief and that’s the factual basis upon which they are now issued, and let the magistrate himself determine it.

And that is why we have made no effort to school the police officer in the field of pornography and we don’t want his extra judicial opinion.

What we want to know is an affidavit of what you saw and where you saw and when you saw and let the justice take it from there.

The motion picture films here I think speak for themselves, the description I think is apt.

There is a big conflict in what you see and what they say you see.

They would bring in expert witness.

I think remark was made here today that it does not clearly depict certain acts, that you’d have to use your imagination and some of these experts testify that way.

But in the New Orleans Bookmark case, I think it was Judge Brown who observed this in his opinion, thus one defense witness testified that a particular photograph did not depict cunnilingus, but only suggested it.

This is a photograph of a nude female with photographic focus on the genital area, showing a male head face a few inches away, mouth open and tongue out and the witness said, “That just suggests something, it does not show anything.”

We get down to the next issue, they make a professional witness or expert witnesses and this is where we get into an unusual area because the so called expert witnesses fall in two categories.

One, nothing is obscene and two, everything is obscene, which leaves the jurors sitting neutral again.

Thomas E. Moran:

So, as in this case, any witness who is a personable fellow.

They brought in a hired gun and that’s what he is, he is a hired gun.

He comes there for purpose.

He could give no concern about what happened and his hired gun is usually a non resident, he just comes riding in and he services a contract before, before he views the material, which is true in this case.

This man got on the airplane, flew to Atlanta, had an agreement, how much he’s going to be paid, he’s going to testify, he didn’t see anything he will testify about.

As the matter of fact he has seen both of these films entirely, but we let that.

This testimony is all prepared.

He arrives at trial prepared to go on the stand and his testimony won’t vary between a dozen cases.

In this case, Dr. Darryl didn’t see the film until the trial was in progress and he only saw a part of Magic Mirror, but this didn’t deter his testimony one iota and he went (Inaudible).

Then he testified and he collects his bounty, and rides off in the setting sun, to prepare his testimony to any who wants to buy it.

And he candidly compares, he says no sexually oriented material is obscene.

He is for sale, he is for hire and that’s all.

In United States versus Brown, the Court made a reference to one of these hired guns.

And they said, “Referring to the photographs and the two books Dr. Hammond stated they would appeal to some homosexuals, but not necessarily anymore than Sears & Roebuck catalog.

Likewise, Dr. Hammond indicated that these books were no more revolting than a television commercial showing a man brushing his teeth.

The realm of psychiatry is indeed highly technical and beyond the understanding of layman, but these conclusions seem absurd.

It goes without saying that the difference between a Sears & Roebuck catalog or a toothpaste advertisement and these two books is almost imaginable.

In Buckley the Court said that it might noted in passing that the defendant’s “expert witnesses” were for most part un-persuasive.

For example, a defense psychologist testified that 42nd Street Movies depicting sexual intercourse did not appeal to the prurient interest in sex, but that lingerie ads in the New York Times did.

So, following the reasoning and going to the graphically obscene material, I think the Court said which then could not differ in their opinion.

As are involved here, I don’t think that in this case expert opinion was necessary.

I don’t know how in the world one man is going to sit before a judge or a jury, or a combination of the two and tell them that they didn’t see on the screen what they just got to see and that’s exactly what he has to do.

I have tried one case that comes to mind where you cross examine these “expert witnesses” and the witness actually took to stand involving 16 magazines and never hesitated in his testimony for one moment while he was flipping through.

So he could testify that they were not obscene.

This is incredible, but this he said.

So we say that the procedural proposition is correct.

The fourth question is the question the Court asked us to brief and to argue, whether a display of any sexually oriented films in the commercial theatre, when surrounded by a notice to the public of that nature and by reasonable protection against exposure of the films to juveniles is constitutionally protected.

I set out in my brief and I picked up here the commission report, the commission report don’t like to use the word obscene and they had hogged the word pornographic, and they were the ones who first created in a Trial Court picked up, the use of the phrases explicit sexual material or sexually oriented materials, erotica, but they report in this preface on page three cautions that the word materials in this context, is meant to refer to the entire range of depictions or descriptions in both textural and pictorial form, primarily books, magazines, photographs, films, sound recording, statutory and sex devices.

Therefore, when faced with this question which relates to any sexual oriented materials, we must consider it to embrace all terms from cunnilingus with a female and a pig which is on the market to the Redrup inaculous materials, he expands the spectrum.

I would caution the Court on not caution it’s not the proper word, suggest to the Court that a distinction being made between the written work and a motion picture film, the commission makes such a distinction and advices against the legislation which would prohibit or permit children to view pictorial scenes which says they should not be deprived in light of reading.

William H. Rehnquist:

Mr. Moran.

Thomas E. Moran:

Yes sir.

William H. Rehnquist:

Let me ask you one question relating or attempting to relate the question the Court asked to be argued to the state of the record here?

Am I right in thinking that the record made in the Trial Court is silent as to whether or not there was pandering or juvenile attendance and that sort of thing, so in effect whichever party had the burden of proof on that point would lose?

Thomas E. Moran:

It was silent in that regard.

There was no evidence of either pandering or exposure to juveniles.

William H. Rehnquist:

Was there any evidence that there wasn’t pandering or exposure to juveniles?

Thomas E. Moran:

Because I don’t think that it was raised on either side.

William H. Rehnquist:

You feel it was silent then?

Thomas E. Moran:

It was silent, there were photographs at the outside of the theatre, which they said was modest warning of what is going on inside, but we did not consider that to be as such to be pandering the streets.

William J. Brennan, Jr.:

No, but did I understand your colleague to say that there was some notice outside that no children under certain age would be admitted?

Thomas E. Moran:

I think it said “Be 21 or be gone” or something like that I presume it referred to the age.

William J. Brennan, Jr.:

And also if certain types of material offend you don’t come inside?

Thomas E. Moran:

That’s right.

William J. Brennan, Jr.:

That kind of notice?

Thomas E. Moran:

Yes sir.

William J. Brennan, Jr.:

And that was before the Trial Judge, wasn’t it?

Thomas E. Moran:

That’s right.

William J. Brennan, Jr.:

I don’t see otherwise how we could have —

Thomas E. Moran:

As a matter of fact, he lost his pictures and we put ours in filling.

They were very gracious people —

William J. Brennan, Jr.:

But as I recall the order, the trial judge it was on the basis of a finding to that effect that he denied the injunction, wasn’t it?

Thomas E. Moran:

Yes sir.

Yes sir, he said that they were frolicking in the nude.

If you could call frolicking in a nude obscene, well maybe this is true.

I did not see see nor did the Supreme Court see where the word frolic came from.

After viewing the film, they held it to be hardcore pornography, I don’t think it’s in the question about it, and we ask this Court to go along.

We’re in the fourth question, Mr. Justice and this is where we get into a very serious thing.

It was suggested for example in Mr. Fliesman’s argument, that the right to sell a book is based upon the right of a person to read that book.

Now, Stanley limited itself and stated very clearly that nothing — Roth is not impaired by what we hold here today, there’s no question about that.

Thomas E. Moran:

It emphasizes that Roth was not impaired a second time and said it was not reversed and so did Reidel.

But a number of the lower trial courts said, “That’s what the Supreme Court said, but that is not what they meant.”

And they extended Stanley to the right to possess, to the right to receive.

Any statute standing between that highway, was struck down.

The right to receive was a right to transport.

So that statute went aside and to import, and that strike — statute went aside in 37 books in the Trial Court.

And mind you again, the book is words created in the mind of an author and nothing more.

Perhaps they are more erotic, morphine, I don’t know, but that is important because motion picture films are live people and live animals.

Then take this extension if it can be so, that if you have a right to show sexually oriented films on an adult under controlled circumstances and hold that this is constitutionally protected, then someone has a right to sell these films to the distributor, which envisions the right to transport these films.

Which envisions the right to manufacture the film, and when the Court holds that a person has a constitutionally protected right, extending from a person who wants to view a film to manufacture films in the United States consisting of human being and animal, human beings and human beings, man and man, man and woman or combination of the two, then we’ve got a strange First Amendment, a very strange First Amendment.

So you can’t start extending unless you go all the way and this is a step in this Court to be taking and they don’t miss anything.

Now this question was decided I thought, frankly I thought that Reidel was a slight at the end of the suit.

But Roth first held that is obscenity and this distribution was outside the reach of the First Amendment.

In Reidel, on page 357, this Court observed that it is urged that there is a development sentiment that adult should have complete freedom to produce, to deal in, possess, and consume whatever commutative materials may appeal to them and that the law’s involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age.

The concepts involved are said to be so illusive that the laws so inherently unenforceable without extravagant expenditures of time and effort by enforcement officers, and that the Courts, the basement reassessment is not only wise, but essential and this is what this Court said.

This may prove to be the desirable and eventual legislative course, but if it is, the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances.

Roth and like cases pose no obstacle to such development, and this is where this question should lie, for it’s then in someway, some control could have to stop this line of communication along the line.

It is easy to look at one part of the question and say, “We can do this, and this is fine.”

But you must look to the overall picture as to how it’s going to affect everything.

And by proclaiming a constitutional privilege on one hand, may grant a constitutional license on another in a field that we did not even consider.

So we’re getting now to as was urged in this Reidel to produce, to manufacture, to create and this would be indeed a tragic thing.

The same holding was held in Mugler versus Cane just back in 1887 and it’s been that way ever since.

Now, they say but most of the people want to see this stuff, it’s a multi-million dollar industry.

Gambling is a multi million dollar industry, prostitution is a multi million dollar industry, narcotics is a multi million dollar industry, and other heinous crimes.

So the money value we’re not concerned there.

The fact that they are concerned about this lonely police officer, and poor District Attorney who has to prosecute these cases, doesn’t appeal to me very favoredly, there is no valid reason for doing that.

But they say that the Congressional Commission, the Presidential Commission of Obscenity, conclusively shows that people want to see all of this stuff.

This Commission report was immediately rejected by the Senate.

It has no foundation in fact or in science.

It was referred in the Congress as a magna carta for pornographers, ludicrous, and a fraud among the American people and it was solemnly rejected.

Thomas E. Moran:

Now of all of the hired guns that they come down, that it first relied upon the commission report and now they have some other formula about telling you what the community standards are in Texas when they’ve never been South of New York.

There is one survey upon which this commission primarily bases it’s report, that they don’t like to talk about.

And even the most (Inaudible), and most saddled soul, hired gun, admits that the question is absolutely a fraud and unscientific.

This was, the Abelson report and its contained in the Court there and the book says in the public opinion about sexually oriented materials, in 1970, a survey involving face to face interviews with a random sample of 2,486 adults and 769 young persons aged 15 to 20 was conducted at the Commission’s request Abelson et al. (1970).

One of the purposes of the survey was to determine whether Americans regard and to find the area of erotic materials as a significant or important social problem.

Adults respondents were asked in the survey were asked this question and this is the deal.

Would you please tell me what you think are the two most serious problems facing the country today?

And they set out what answers they gave, but only 2% mentioned erotic material.

Therefore, 98% could not be concerned with it, but none of them mentioned cancer, tuberculosis, I guess nobody was concerned with that.

This negative report yet on the same page where this is contained, a report did candidly say this, “Opinion survey sometimes appear to report contradictory findings and the findings of the Commission study Abelson (1970), may appear to be inconsistent with reports that 85% of the American adults favor stricter laws on pornography, that’s the Gallup opinion, and that 76% want pornographic literature outlawed and 72% believe smut is taking beauty out of sex” and how you can join those two or reconcile those two I will never know.

The opinion though and this is my idea or understanding of this entire case is an effort to have this Court make the judgment of this Commission of obscenity and pornography.

The judgment of this Court which would in effect repeal every law in obscenity in United States.

We say that this can be shown in commercial theatre, any material under controlled circumstances and every law relating to pornography throughout the state will be abolished except it applies to children.

Perhaps, may it please the Court, that we’ve dealt too long in trying to define the word obscene or pornography and it’s time we begin to describe the Act rather than to define the word, while it described it and said, “Certain things were hard core pornography.”

Evanovich (ph) describe it and said, “This is hard core pornography,” but the judge also in there said, “Emphasized in such a way as to totally depersonalize the human model into an object or thing plainly design to make possible and this non cumulative kind of ultimately effect to these material.

We ask the Court to affirm.

Thank you.

Warren E. Burger:

Thank you Mr. Moran.

Mr. Smith do you have anything further?

Robert Eugene Smith:

Yes sir, may it please the Court.

Just a few brief points please, Your Honors.

William J. Brennan, Jr.:

Before you start Mr. Smith.

Are these exhibits at pages 84, 85, and 86 which I gather are photographs of the front this theatre with the notices?

Robert Eugene Smith:

Yes sir.

William J. Brennan, Jr.:

Were they before the Trial Judge?

Robert Eugene Smith:

Yes sir.

William J. Brennan, Jr.:

They were in evidence?

Robert Eugene Smith:

Absolutely yes Sir.

William J. Brennan, Jr.:

And where are the originals of those photographs, are they here in the record?

Robert Eugene Smith:

They should be [Voice Overlap]

William J. Brennan, Jr.:

These are only just?

Robert Eugene Smith:

Yes they should be.

William J. Brennan, Jr.:

It’s hard to read for example from this.

Robert Eugene Smith:

I think they are.

William J. Brennan, Jr.:

The notices says “Over 21” —

Robert Eugene Smith:

Yes.

William J. Brennan, Jr.:

Do you think they are?

Robert Eugene Smith:

They are and in fact the oral testimony of one of the police officers indicated what the sign read on page 57 I believe, of the appendix were Officer Little said, “Of course he went to state that no one below 21 years of age is admitted.”

Warren E. Burger:

Counsel you better stay under the microphone.

Robert Eugene Smith:

And we can make them available, Your Honor.

It should in there and I think that the ones in the appendix were copied from the originals, which should be in the record.

The point we made regarding expert witness testimony, was not so much whether —

Potter Stewart:

There’s a picture of the building I think in the amicus brief on F, right at the end of the amicus brief.

I guess the theater, Atlanta’s finest mature entertainment.

Robert Eugene Smith:

Yes sir that’s right.

Potter Stewart:

Is that the same?

Robert Eugene Smith:

Yes sir that’s the same.

Potter Stewart:

In the exhibit.

Robert Eugene Smith:

The same.

Potter Stewart:

That’s the reproduction of the actual exhibit?

Robert Eugene Smith:

I don’t know where they got this from Your Honor, but I would suppose that it appears to be the same.

The point that we’re making, with regard to expert witness testimony was that the prosecution should produce something for the jury.

These experts theoretically don’t come in and say “Well I think this is obscene, I don’t think this is obscene.”

They’re talking and they talk about some aspects of the test.

Do these have educational values?

Do these have — do these exceed the limit of candor tolerated in the community, in the representation of sex and nudity.

How else can you get these before a jury?

We merely alluded to the fact and have argued that prosecution should have the affirmative evidence.

They not only do not affirmatively show this.

They say but are just no good because — and if they found someone, he would be saying that it was obscene and ours would say it would not be obscene and so really it’s a jury question and the jury doesn’t need any experts to help them one way of the other.

Robert Eugene Smith:

And we say of course that’s incorrect and we say that they should have the affirmative responsibility.

The question of — made by Mr. Moran regarding the Abelson survey is not entirely complete and accurate.

The Abelson survey in the commission’s report on pornography and obscenity as found at page 43 of the Government Printing Office version clearly sets out a national survey of American public opinions sponsored by the Commission, shows that the majority of American adults believe that adult should be allowed to read or see any sexual materials they wish.

Now, the part that Mr. Moran talked about was only one aspect of another survey conducted.

Abelson conducted numerous surveys and the one aspect that he conducted did in fact talk about what Mr. Moran said, but then the major part of the survey related to telling people, there are bookstores, there are theatres in this nation which show people engaged in sexual acts and nudity, pictures of nudity and in sexual acts.

And then they went on to ask the people whether or not they thought other should be allowed to see this as long as it did not intrude on to their privacy.

And the majority of the American people at that time in 1969 said yes and an even larger majority of another 20 points or so said yes in the early part of 1972.

Potter Stewart:

What’s this really got to do with the issue before us?

Robert Eugene Smith:

What it has to do with the issue before us is that if we listen to these factors, we see there’s a lot of confusion and trying to apply what this Court set out, thinking perhaps it was a good solid solution, aligned, limiting, and saying what is obscene and what is not obscene.

This has been construed in very many ways and a lot of other problems have come back, and what it really has to do with it, is we’re saying that this Court should hold to the position that we are trying to suggest and that is, that when we should change the focus from the expression itself to the conduct, I would say that there is just complete confusion that has existed, it is clearly as apparent in the many petitions that this Court must receive in the trials below and the only value that the surveys have were just merely I was commenting to Mr. Moran’s point and to let the Court know that it wasn’t just that point, that the Abelson survey was based on.

He indicated the whole report, the conclusions of the majority were based on Abelson survey and the way they are asking a particular question.

We again suggest to the Court —

Potter Stewart:

What do you mean by conduct?

As a matter of fact, your brother asked us to do, asked the Court to do exactly what you’re asking us to do, focus on the conduct.

Robert Eugene Smith:

But he talking about focusing on the —

Potter Stewart:

And you are asking me to do the same, what do you mean by that?

Robert Eugene Smith:

Focusing on the conduct of what’s depicted in the film.

Potter Stewart:

Well I thought the conduct of conducting a movie theatre is what he was talking about?

Robert Eugene Smith:

Yes sir I was talking —

Potter Stewart:

What are you talking about?

Robert Eugene Smith:

The conduct that thrust itself upon an unwilling public, the conduct that interferes with my rights and when I don’t want to view something.

And as I said Your Honor, here is part of the problem now.

Mr. Justice Burger asked —

Potter Stewart:

You would limit it to that?

Robert Eugene Smith:

I would limit it to the situation as I said where minors are involved and to those ways of dissemination which intrude into the privacy of unwilling individuals.

When there is an intrusion, then the definition of what is obscene becomes constitutionally relevant.

Some women and some men, they say things that Time Magazine because it may show two or three nudes is obscene, like the post office.

And then the post office would make an analysis whether applying this Court’s definition, is it obscene?

Sure the intrusion occurred, they are in right time.

That’s when it becomes relevant.

Robert Eugene Smith:

We say Your Honors that these films do not — are not as represented by counsel here for the Government, they do contain sexually frank scenes but there are no instances of sexual consummation, explicitly portrayed.

Taking in part the words from the Rabe versus Washington case, they don’t exist and this is part of the problem.

Potter Stewart:

What if they did, would you — that doesn’t come out of your — that wouldn’t be within either one of your exceptions anyway?

Robert Eugene Smith:

That’s correct and I’m really, again [Voice Overlap]

Potter Stewart:

So what has that got to do with your submission?

Robert Eugene Smith:

On the question of the procedure, Mr. Justice Burger inquired regarding the procedure, how this came about, what is the current procedure today, and one of the things I was pointing out was, it was pointed out by brother, there was an answer he would make an affidavit as to what was being shown but no people can agree on what was being shown.

The trial judge said it did not show explicit sexual acts.

My brother says it does show explicit sexual acts.

Potter Stewart:

But I understand your argument to be that that is basically an irrelevant inquiry under your submission that it’s permissible in any event, so long as there’s not an assault on the privacy of unwilling people and so long as that is not exposed to children, is that your argument?

Robert Eugene Smith:

Yes sir that is in the context of our fourth argument.

Potter Stewart:

So this question is irrelevant to your argument, is it not?

Robert Eugene Smith:

Irrelevant as to that argument on point number four, yes sir.

Thank you.

Warren E. Burger:

Thank you Mr. Smith, thank you Mr. Moran.

The case is submitted.