LOCATION: New York Times Office
DOCKET NO.: 449
DECIDED BY: Warren Court (1962-1965)
CITATION: 378 US 205 (1964)
ARGUED: Apr 01, 1964 / Apr 02, 1964
DECIDED: Jun 22, 1964
Facts of the case
Media for Quantity of Copies of Books v. KansasAudio Transcription for Oral Argument - April 01, 1964 in Quantity of Copies of Books v. Kansas
Audio Transcription for Oral Argument - April 02, 1964 in Quantity of Copies of Books v. Kansas
Number 449, A Quantity of Copies Of Books et al., Appellants versus Kansas.
You have -- you are reserving the remainder of your time, Mr. Fleishman?
Attorney General Ferguson.
William M. Ferguson:
Mr. Chief Justice may it please the Court.
This litigation was designed to comply with the mandates of this Court and it was filed in 1961, with Roth and in particular with respect to Marcus.
We prepared the litigation in my office with the anticipation in that it might well be before this Court as is the case of so many of these obscenity cases.
The statute in Kansas, the language is taken exactly from the approved charge in the Roth case, charge to the Jury.
The forum was a capable, young judge.
It had been suggested here yesterday that this was sort of a kangaroo proceeding in Kansas, this was not the case.
As a matter of fact in overruling the demurrer to the evidence the judge, Judge Fletcher said that his personal views coincided exactly with those of Mr. Justice Black as suggested in the Smith case.
The judge was handed a copy of Marcus at the time he was presented with the information and if the Court will consider the transcripts in this proceeding, the Court will find that all the constitutional questions that are here before this Court were litigated at the trial level and then re-litigated at the state level and that the trial court meticulously answered the objections raised by counsel throughout the trial.
The purpose of filing this action was to reach the evil that 50 states have considered to be an evil in the federal government, namely that matter of obscenity and this case involves that the business of purveying of obscenity.
It's now a part of a $2 billion business.
As a matter of fact it's -- it's my feeling that this is really as much a Ferguson versus Skrupa proposition as it is a First Amendment proposition.
Where does that $2 billion figure come from?
William M. Ferguson:
It is recently reported in the Kansas City Star, Your Honor, a $2 billion business.
It was -- in 1955, it was a half-a-billion dollar business, by 1964 it has become a $2 billion business.
I am wondering is that a newspaper estimate or is it a estimate of some survey that --
William M. Ferguson:
I suspect Your Honor that is a newspaper estimate.
No way to tell of course that half-a-billion dollar estimate came from the congressional committee that investigated juvenile delinquency in 1955.
What the state here is trying to do is to make Roth workable and what we hope to accomplish by having this Court affirm the procedure in that case, in this case at bar, so that the prosecutors will have some definite or delicate tools with which to work in this area.
It's a concern to me as attorney general and I am sure it is my colleagues who are prosecutors that the business of smut peddling has reached such propositions.
The question that's considered yesterday with respect to the procedure, considered the question as to probable cause as to whether or not as a matter of law, the trial judge could have found from his consideration of these six books that these additional books were obscene.
It's been suggested that the attorney general had them properly marked.
We submit to the Court, this isn't necessary.
Any book, any of these books can be opened to any page and a sexual description will be following within a few paragraphs.
It doesn't take a directory to find the sexual passages in these little books. Now these books were presented, the six, to the trial judge and here is one of them, ‘The Wife Swappers,' on the first page it says, ‘The Wife Swappers.”
In bold print it says, “Members of this lust club had a different woman every night.”
You turn to the fly leaf and it says, ‘lust sated couples' and in big letters, ‘these eight couples are members of a wife-swapping, mate-switching sex club, so vile it will stun you.'