Rabe v. Washington

PETITIONER:Rabe
RESPONDENT:Washington
LOCATION:Bay Marchand Area

DOCKET NO.: 71-247
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Washington Supreme Court

CITATION: 405 US 313 (1972)
ARGUED: Feb 29, 1972
DECIDED: Mar 20, 1972

ADVOCATES:
Curtis Ludwig – for respondent
William L. Dwyer – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – February 29, 1972 in Rabe v. Washington

Warren E. Burger:

— arguments next, the number 71-247, Rabe against Washington.

Mr. Dwyer, you may proceed.

William L. Dwyer:

Mr. Chief Justice, and may it please the Court.

In this case, the courts of the State of Washington have declared themselves to be not bound by this Court’s constitutional definition of obscenity and they have thrust to decide to publish a man criminally for exhibiting a motion picture which is clearly non-obscene and is protected under the First Amendment guarantee of freedom of expression.

In the course of doing this, the courts of the State of Washington have welded a general obscenity statute of the type which typically exists in all 50 states and of the type which this Court has repeatedly made clear, can be used only to punish or suppress material which is obscene under the test promulgated in the leading case of Roth versus United States.

As summarized in many case, since then, perhaps most explicitly in the Book versus Attorney General of 1966, in order to convict, the state must prove the three elements (Inaudible).

First, it must be established the predominant theme of the material taken as a whole is an appeal to currying an interest in sex and not some other kind of appeal.

Second, the material must be patently offensive and affronting the contemporary community standards of candor in representing or depicting sexual matters.

Third, that the material is utterly without redeeming social value.

I mention those elements despite their well-known familiarity to the Court and the counsel in this field because of our belief that it is vital, that this definition be honored and adhered to, if freedom of speech is to survive the application of the obscenity laws in United States.

If this definition should be weakened or abandoned, the small crack in the wall which is afforded to the general obscenity laws as to unprotected speech, will very quickly become a wide open door to the punishment of protected expression.

In Roth, the Court pointed out that it was implicit in the history of the First Amendment that obscenity was utterly without redeeming social value and that finding, that belief is the basis for obscenity law as it exists today.

And the Court has repeatedly made clear, both in full scale opinions and in per curiam reversals over the last 15 years that that definition applies so as to protect material which most people would find offensive, disgusting, of little value perhaps.

Bit the definition must be adhered to in order for the First Amendment guaranteed to be carried out in the actual day-to-day enforcement of the laws.

William O. Douglas:

What was the actual sentencing?

William L. Dwyer:

$600 fine Mr. Justice Douglas.

William O. Douglas:

He was then put away for five years?

William L. Dwyer:

He was not sentenced to prison at all, just a fine.

The sentencing judge remark to, however, that he was fixing the fine at a level he considered high enough to prevent such display of motion pictures from happening again in that community.

Potter Stewart:

And this motion picture was based on the opera Carmen, was it?

William L. Dwyer:

Yes, Mr. Justice Stewart.

It is based on the verbatim of Carmen without the music.

Potter Stewart:

Called Carmen Baby?

William L. Dwyer:

Carmen Baby.

Warren E. Burger:

Did it have any more in common with it than the title?

William L. Dwyer:

It did.

As several witnesses testified the trial, the story, follows the story line of Opera Carmen, which in turns follow a novel by Mérimée, a French novelist.

The character of Carmen is very similar, an evil, young woman fatalistically headed toward her own destruction.

William O. Douglas:

How do the criminal sentences in obscenity cases in Washington state really, they are very heavy?

William L. Dwyer:

In a few cases, there have been prison sentences in the neighborhood of 30 days as I recall most recently in Seattle.

William L. Dwyer:

In motion picture prosecutions, prison sentences have only been meted out in the type of film that’s shown in places called the adult bookstore for example, which specializes in erotic materials.

In exhibitions for general consumption such as the present case, fines have been usually penalty imposed.

Potter Stewart:

This movie was shown without incident in other states — in your state, was it?

William L. Dwyer:

It was indeed, it was shown in Seattle, and it was shown in Yakima, which is not far from Richland.

Potter Stewart:

In public theaters.

William L. Dwyer:

In public theaters.

Potter Stewart:

And it’s been shown pretty well all over the United States, hasn’t it?

William L. Dwyer:

It has, it’s been —

Potter Stewart:

Public theaters, reviewed in the newspapers.

William L. Dwyer:

Reviewed in the New York Times.

One witness testified in the court below that he saw it shown at Oak Ridge, Tennessee in a situation where it was shown in an outdoor screen and the sound was piped into the motel for those wishing to listen.

Potter Stewart:

And it’s a fact that there is nothing in it that can be suppressed under the constitution, and that’s been decided in two other courts, has it not?

William L. Dwyer:

It was decided in New Jersey and in Maryland I believe and the opinion in New Jersey I think is very eloquent.

Thurgood Marshall:

Did it involve drive-in in Maryland?

William L. Dwyer:

No, in neither state, Mr. Justice Marshall, they did involve drive-in.

Potter Stewart:

It involved the movie?

William L. Dwyer:

It involved the same movie, but shown at an indoor theater.

Thurgood Marshall:

But is there anything – is it true in this (Inaudible) there were houses nearby where somebody can sit on the porch and see?

William L. Dwyer:

The photographs in the record show that there are a few depleted houses at some distance from the screen, some of which would be able to have the view.

Thurgood Marshall:

Is there anything to stop a young kid from standing and seeing it?

William L. Dwyer:

There was nothing to stop anyone of any age for standing at the fence and looking, that there is a physical —

Thurgood Marshall:

Do you see any difference between that and a closed theater that doesn’t not allow children?

William L. Dwyer:

I am sorry.

Thurgood Marshall:

Do you see any difference between that and the situation in a closed theater that does not admit children?

William L. Dwyer:

Yes, I do.

I think the state could probably —

Thurgood Marshall:

You give any significance to that?

William L. Dwyer:

Yes, I think, the state could properly legislate in that area what has been called the area of obtrusive display legislation.

Thurgood Marshall:

Well, this Court has said so?

William L. Dwyer:

Yes, indeed it has and why the states have not more clearly picked up that opportunity and acted upon it before how, I don’t know.

William L. Dwyer:

What you have, we have —

Potter Stewart:

Some states have the (Inaudible)

William L. Dwyer:

New York has, Arizona has, but I think it’s still a minority of states that have.

Our state could and should, but hasn’t and that’s the fatal defect in the present prosecution.

William H. Rehnquist:

Well, are you conceding then that the State of Washington could have legislated so as to prevent the showing of this film in the manner in which it was shown with the exposure to people outside the drive-in?

William L. Dwyer:

There was nothing shown in the record here Mr. Justice Rehnquist that there was, in fact, any exposure to people outside the drive-in.

There was no evidence that anybody outside the drive-in, saw that film or complained about it, or was affected by it in many ways.

But we do concede and I think there is no contest that a state can legislate in the obtrusive display area by enacting a clearly, narrowly, specifically drawn statute which could apply to the drive-in motion picture theaters as well as billboards, news stands and other types of displays.

William H. Rehnquist:

To cover a situation such as your state Supreme Court found to exist here where at least the people in these houses were exposed?

William L. Dwyer:

Yes, I believe such legislation could be enacted and in the report of the President’s commission on obscenity and pornography, there is even a model statute to that effect.

William H. Rehnquist:

Well, then is your complaint here basically Lanzetta versus New Jersey type of complaint that you weren’t given fair warning of what the state intended to punish criminal?

William L. Dwyer:

That is one of our basic complaints, yes, indeed it is because nothing in the statute gave Mr. Rabe any notice that he could be prosecuted on any theory for showing a non-obscene film under certain circumstances such as an outdoor exhibition.

William H. Rehnquist:

But then you also — that is your only complaint?

William L. Dwyer:

That’s not our only position.

We further contend that in expanding the obscenity statute as it did so as to sweep this picture within its ambit, the Washington Supreme Court has rendered that obscenity statute void for vagueness in the application because it has punished the exhibition of the film on the ground of offensiveness or obtrusiveness, words which recur throughout the opinion with no definition, no substantive standard whatever to guide either this defendant or any other exhibitor in the future as to what he could or could not exhibit in an outdoor theater.

The prime danger of the many dangers we see in the Washington opinion is that the court there expressly says that even though it is enforcing a general obscenity statute, it does not have to be guided by the Roth definition of obscenity.

That we believe cries out more than any other single element in the case for a reversal.

The court in our view has misread this Court’s decisions in Ginzburg, Michigan and Redrup and has engrafted an ill-defined or completely undefined common law crime upon the existing obscenity statute rendering that statute fatally vague and uncertain.

Thurgood Marshall:

Mr. Dwyer, I might take you back for a minute.

Page 71 of findings of facts that says that said Park Y Drive is a residential area and an overpass providing a clear view of the screen to residents of the area and passing motorists.

William L. Dwyer:

There is no question Mr. Justice Marshall that some residents, have they been home and watching could have seen that screen from outside the theater.

There is also no question that passing motorists could have seen the screen.

The Washington Supreme Court —

Thurgood Marshall:

Can I assume that where there is an overpass, there is some people on it?

William L. Dwyer:

Well, there might or might not be.

I don’t think such an assumption can be made in a criminal prosecution, no.

Thurgood Marshall:

But, this is a finding of fact here.

It says that a overpass was there and it’s clear enough for them to see it.

William L. Dwyer:

Yes and that’s true.

There is no contest about that, but if there was someone there the screen would be visible.

William H. Rehnquist:

Would you say then that the state legislation must be so narrowly drawn as to require proof on the part of the state that someone was actually on this overpass or in this house seeing it rather than a reasonable probability that it might occur?

William L. Dwyer:

I would think so.

I think that’s required by this Court’s decision in the Cohen case last year for example and by the language of the Redrup case, both of which speak in concrete terms of an actual assault upon privacy as a precondition for prosecution under these circumstances.

I would think it would not be enough to prove for the state to prove that a work was displayed under circumstances where it might have given offense to someone.

Potter Stewart:

Well, you don’t need to go that far however here.

There was no such statute of any kind, that’s your point here?

William L. Dwyer:

Exactly.

Potter Stewart:

But — whether how much power the state might have under the police power to require drive-in to be so many feet away from any residences or to put up passes so that the light and the noise and the traffic wouldn’t bother people or this content of the movie wouldn’t bother people.

Those are all questions that arise if there were any such statute here.

Here there is simply no such statute of any kind, isn’t it?

William L. Dwyer:

And that is the fatal defect of the prosecution as we see it, yes.

Thurgood Marshall:

Well, back to my point and maybe I am in agreement, on Page 81, an opinion of Judge McGowan, on both occasions teenage and younger children were observed by the officer to be watching the motion picture from various points outside the theater fence?

William L. Dwyer:

That is correct.

Thurgood Marshall:

You do agree with.

William L. Dwyer:

The opinion goes on to say that the presence of those juveniles cannot support the conviction of the petitioner because at the time in question the state had no statute directed to the protection of juveniles.

Thurgood Marshall:

I am just getting facts for my own self as to whether that picture was available for children to see, that’s one point I am interested in?

William L. Dwyer:

The answer is that the record shows that there were people of minority age at that fence watching at least parts of the picture, that’s correct.

Thurgood Marshall:

That’s what I was trying to know.

William L. Dwyer:

That’s entirely correct.

The court in Judge McGowan’s opinion when this opinion goes on to say that although Washington has since passed a juvenile type statute, it had not at the time and therefore the presence of those juveniles cannot support the conviction.

That the same analysis should have been applied to the privacy argument in our view that also should have required a statute.

I think it’s perfectly clear that this motion picture is not obscene under the Roth definition. It has a predominant dramatic appeal, a very strong story, a story that has been often told and retold in many different versions.

It is well within the contemporary standards of candor, the motion picture critics and others are in recent years have praised and made important and the tenants of audiences have made important many films which are no less candid than this in the portrayal of sexual matters and indeed in the court below there was no competent evidence even that this film exceeded current standards of candor in any respect.

And as to the third element redeeming social value, this film has a moral message and it has social value according to at least the six impressive defense witnesses who testified at the trial.

I would not tell the Court that this film is one of the best films ever made. Obviously it’s not, but in First Amendment litigation the tests are almost always made as to materials which most of us would not prefer to see, but which are nonetheless protected.

William O. Douglas:

Is it here, so we can see it?

William L. Dwyer:

It is here Mr. Justice Douglas.

I saw it in the court’s view room yesterday for the first time. Judge Matthews of the New Jersey Court was correct in describing it as a work of art, those were his words.

A question of whether it’s a pleasing work of art is real one of taste and not of obscenity law.

One man’s vulgarity is another’s lyric as the late like Mr. Justice Harlan had said for the Court in the Cohen case and that remark applies we believe to this motion picture.

William L. Dwyer:

Now here the Washington Court and the prosecution virtually concede what I have just said, namely that the film is not obscene.

But the playing it was obscene as shown because scenes in the movie were visible from a few nearby houses and they postulated that the privacy of the persons in those houses was necessarily invaded by the visibility of this motion picture.

The court goes on to say that it does not have to judge the material for obscenity vel non one way or the other.

Now although this necessarily implies that a different standard exists for outdoor theaters as compared to the indoor theaters, yet, neither the court nor the prosecution has suggested what that standard might be.

The exhibitor is told in effect you maybe prosecuted under the obscenity statute for showing a non-obscene film, but it’s up to you to guess at which film.

If the analysis of the Washington court were applied across the boards of all motion pictures, many and I believe most films could be condemned in their dissemination punished under the obscenity statutes on the basis of very short isolated single images that maybe on the screen for a matter of seconds and any such rule would be a license to suppress almost any film.

The outdoor theaters are an important medium of expression in the United States.

One of the amicus brief shows that about 25% of the nation’s theaters are outdoor theaters of the present time.

The potential effect of this decision unless reversed on those theaters would be chilling and suppressing to say that the very least.

The court’s opinion below as I say lapses into such terms as offensive displays, offensive expression, personally distasteful and so on, all of which reveal that the decision below renders the statute standardless, devoid of standards and I believe the state reinforces the truth of that point in its brief when it suggests that exhibitors should be guided by the unofficial industry reading system in deciding what they should or should not exhibit on pain of criminal prosecution.

It suggested in the state’s brief that the motion picture production code readings should put an exhibitor on notice that if he shows an X-rated film in a manner deemed obtrusive he can be prosecuted.

But, certainly the invocation of an unofficial standard like that and we are not even shown what the standard is or standards plural are in this record cannot take the place of a legislatively inactive standard of criminal liability.

The Washington Court has read Ginzburg and Michigan, Redrup and the Fanny Hill case, A Book versus Attorney General as authorizing an abandonment of the Roth definition for obscenity.

That we suggest is a patent and obvious misreading of those cases.

In Ginzburg in ruling that pandering could be considered in an evidentiary way as to whether material was obscene or not.

The court expressly said that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged.

A Book versus Attorney General was to the same effect.

Michigan merely held that the predominant prurient appeal can be addressed to a deviant sexual group rather than the majority.

In Redrup, I believe the court has misread worst of all in that per curiam decision where the court reversed a number of convictions.

It pointed out that three elements were not present, namely there was not present a statue directed to juveniles.

There was not present showing of invasion of privacy and there was not present any showing of pandering under the Ginzburg case.

Redrup in our view of the case, left it open for the states to legislate as to juveniles and to legislate for the protection of privacy and that invitation to the states have been extended much earlier.

Jacobellis versus Ohio contains a similar virtual invitation to the states to legislate as to juveniles, but holding as the court has often held that material cannot be punished under general obscenity laws because it’s unsuitable for minors, that was the holding of Jacobellis and the same rule should apply for the argument is based on privacy as distinguished from minors.

We have no doubt that the states can validly legislate in this area, but as the Court pointed out last year in the Reidel decision, the task of restructuring the obscenity laws is the task of those who write and amend statues and ordinances and not the task of a court.

Washington here has bypassed that legislative procedure and by treating their obscenity statute as we have found, they have converted it into a statue with indefinite standards for the restriction of speech and therefore void for vagueness under Winter versus New York.

And as the Court held in the Interstate Circuit case in 1968, the purpose of the statue which in that case was the protection of juveniles does not mean that the standard of specificity for First Amendment purposes is relaxed. Vagueness is fatal where the privacy or minors, or some other object is involved.

Just last week in the Papachristou versus Jacksonville case, the Court held an ordinance void for vagueness both because it fails to apprise the citizen and because it invites arbitrary and radical risk and both of those readings condemn the Washington statue here as it’s been transformed by the lower courts into a weapon for the punishment of speech.

The second basic reason for reversal which we cite, is that this petitioner who was given no fair warning that he could be prosecuted in this fashion.

There was only one law on the Books that was the general obscenity law.

That law necessarily told him that this picture was constitutionally protected and that it could be exhibited with legal safety.

William L. Dwyer:

The statute said nothing at all about anyone’s right to privacy and in fact, our state Supreme Court had not even recognized a common law right to privacy until the day of this very decision.

So nothing told Mr. Rabe that he could be prosecuted for exhibiting a non-obscene film, at a drive-in, the screen which could be seen from a distance.

The state in effect, convicted him of an ex post facto common law crime and the ruling below runs a file of Cohen versus California reversing a conviction in a speech context because there was no statue putting the appellant there on notice that certain types of conduct or speech would not be tolerated in certain settings or times or place.

As in Bouie versus Columbia, the decision here is unforeseeable and retroactive judicial expansion of precise statuary language, therefore the conviction deprives petitioner of due process.

It’s worth noting also I think that even had there been such a crime on the Books, there was no evidence that the petitioner committed it, in the sense that there was no showing that anyone’s privacy was in fact invaded.

As the Court held in the McCown case, the presumed presence of unwitting viewers or listeners should not be sufficient to give rise to criminal liability.

William H. Rehnquist:

Well then you are saying that the state does indeed have to show that actual person’s view from outside the theater, juveniles or people who didn’t want to be in order to make this a criminal offense?

William L. Dwyer:

I think in order to prove that offense, yes that they must first define that the offense with particularity in the statue and then prove that the statue was violated by an actual exhibition which actually invaded privacy or caused offense in that sense.

Potter Stewart:

Well, Mr. Dwyer since we are talking about a statute that doesn’t exist, I don’t see why you have to take any position in one way or the other as to what it could constitutionally provide.

Your point is there is no such statute of any kind, isn’t it?

William L. Dwyer:

Exactly Mr. Justice —

Potter Stewart:

You don’t need to — it’s very possible that a state could provide that nobody should have a drive-in theater within a 200 yards of any residence, but there is no statute of any kind in this case, that’s you point, isn’t it?

William L. Dwyer:

That is our point and the case can be decided without reaching at all the questions of what the states constitutionally could do because here they have done nothing.

The third basic reason for reversal which we urged to the court is that the petitioner’s motion to suppress the film should have been granted.

The film was seized as evidence on the basis of a John Doe type of arrest warrant.

That warrant was issued on the basis of the uncross examined testimony of one police officer at an ex parte hearing.

The magistrate did not see the film that merely hurt the police officer.

The proximate result of that was that this print was suppressed for an entire year through the trial court stage of the proceedings.

William H. Rehnquist:

Couldn’t your client have gotten another copy of the film from somewhere?

William L. Dwyer:

That is not shown in the record Mr. Justice Rehnquist, but I can advice the Court that is a general rule, it is not easy at all to obtain a substitute print when a print is seized and particularly in a location like Richmond, Washington.

Each print of the motion picture is expensive.

Each one is made in a laboratory and prints are then dispersed around the United States for first round and then second round and so on and at any given time, there maybe, if it’s a major motion picture, there maybe a few hundred prints in the country but each one is committed to exhibition at certain times and places like contracts between the distributor and the exhibitor.

This motion picture obviously is not a major motion picture and it would have been that much harder to get a print.

I think as a practical matter, he could not have done so.

William H. Rehnquist:

And then he wasn’t adjoined from showing it, he was prevented by the film being out of his possession?

William L. Dwyer:

Yes he was and our position is that seizure for evidential purposes, in effect is identical to an injunction aimed to suppressing the materials.

Byron R. White:

Are you claiming violation of the Fourth Amendment or the First or both?

William L. Dwyer:

Well we claim both, but the emphasis on our brief has been on the First Amendment because as we read Quantity of Books against Kansas and Marcus against Search Warrant, the First Amendment requires whether materials seized are communication materials as opposed to narcotic or guns or contraband, where they are communications materials, the First Amendment requires an adversary hearing as a precondition of seizure.

Byron R. White:

As compared with other types of materials where ex parte wants may issue?

William L. Dwyer:

Yes exactly, upon showing a probable cause, in other —

Byron R. White:

But no case here is applied to (Inaudible) —

William L. Dwyer:

Not yet.

Sixth Circuit courts have done so —

Byron R. White:

Lee didn’t talk about that much earlier?

William L. Dwyer:

Lee didn’t talk about it.

Lee merely held that the hearing there did not focus searchingly on the question of obscenity.

Potter Stewart:

There was no search warrant at all here, was it?

William L. Dwyer:

There was no search —

Potter Stewart:

It was an arrest warrant?

William L. Dwyer:

Merely an arrest warrant —

Potter Stewart:

And the search was incident to the arrest?

William L. Dwyer:

Yes.

Potter Stewart:

And the — so the arrest was valid, you say the search would still be invalid, searches in the First Amendment area?

William L. Dwyer:

Yes.

Potter Stewart:

That we should not apply ordinary Fourth Amendment law?

William L. Dwyer:

This is in the First Amendment area and special law has to be applied and the Court so held as to Books in the Quantity of Books against Kansas.

It’s been argued that a distinction should be made between seizure for purposes of destruction and seizure for purposes of evidence.

Byron R. White:

You say that an adversary hearing would have been required to seize one copy of a book of which the distributor had a 1,000?

William L. Dwyer:

I think so, yes, because in the first place, how was the fact to establish that he has 1,000 copies if there was no adversary hearing.

I think the ex parte hearings have to be completely distrusted for communications materials so that state can — seizure is the argument of the state.

In actual practice of the lower court level, that is particularly vital because so many justices of the peace are ill-informed on First Amendment law and if there is not a an adversary hearing, they tend to very readily to authorize the seizure of books, motion pictures just on the showing of offensiveness or disagreeability to them.

The only sound protection in my view is the protection of the adversary hearing.

Byron R. White:

But you would say if it turns out there were 1,000 copies in the store and only one was seized, the burden on First Amendment right is such that there should have been a prior adversary hearing ?

William L. Dwyer:

Well I think there should have been because to reach that result the only way to reach it is either to hold an ex parte hearing in which case one runs the appreciable risk as the Court said in the Kansas case that a defacto prior restraint will occur or to have an adversary hearing and one such issue in the hearing could be the quantity of duplicates available.

Potter Stewart:

What if a policeman in he street in New York city walks in the store, and sees — he is an eye witness to the sale by the proprietor of the hardest imaginable core kind of pornography.

Couldn’t he just arrest that person on the spot assuming that New York has a valid criminal statute covering that situation?

William L. Dwyer:

I think he should not be able to Mr. Justice Stewart, because a policeman’s idea of what constitutes hard core —

Potter Stewart:

Well I am assuming it’s your idea as to the worst possible thing you can imagine?

William L. Dwyer:

I would still say, even if it’s my idea a court should determine in an advisory hearing before that material is seized, otherwise the protections are forfeited.

It’s a matter of method and procedure I think rather than an assumption in advance with a certain type of material or a certain item of material as obscene and not constitutionally protected.

William L. Dwyer:

As a matter of procedure the only safe way to proceed is the advisory hearing method and I believe it can be squared practically with the demands of the law enforcement.

Thank you very much.

Warren E. Burger:

Thank you Mr. Dwyer.

Mr. Ludwig.

Curtis Ludwig:

Mr. Chief Justice and may it please the Court.

The motion picture Carmen Baby is played on a large outdoor screen is obscene.

Its dominate theme appeals to the prurient interest in sex and the court below has so held.

Now considering the use and the manner of display, the Washington State Supreme Court following a careful review to decisions of this Court properly and justifiably found this movie obscene.

The Washington State Court —

William O. Douglas:

Have there been any civil determination quite at that time?

Curtis Ludwig:

No, there haven’t Mr. Justice Douglas, none at all in my jurisdiction regarding this movie or any other to my knowledge.

You asked earlier about the standard in Washington regarding punishment or penalties in general.

I know of no other reported cases concerning obscenity, sustaining of conviction in our jurisdiction other than State versus Rabe.

William H. Rehnquist:

Mr. Ludwig I read Justice McGowan’s opinion as finding the picture only partially obscene.

I didn’t read in his finding it obscene in a traditional sense of an entire judgment on the whole film.

Am I wrong?

Curtis Ludwig:

I think Mr. Justice – formerly justice McGowan’s opinion was probably the best written brief submitted more or less to this Court in a way.

What he said was that the dominant theme of that movie appealed to the prurient interest in sex and in the context of its display, it was obscene.

That court and in their opinion indicated that we are obviously not judging the obscenity in the abstract.

The declaration of obscenity was aided by a specific set of circumstances, involving outdoor display of a movie which the opinion says had a dominant theme appealing to the prurient interest.

Now, I like to distinguish this.

Potter Stewart:

But the court said, that the Judge McGowan’s in his opinion at least said that if we were to apply strict rules of Roth, the film Carmen Baby probably would pass the definition of obscenity test?

Curtis Ludwig:

Yes Your Honor, I am aware of that and I was going to try and lead into how I feel he interpreted that or how I interpret that.

As I said – indicate, I would like to make a distinction between State of Washington versus Rabe and the opinion in the court below and this Court’s opinion in A Book versus Attorney General.

As I said I have done page 9 of our brief a short exert from that opinion.

It was expressly indicated by Mr. Justice Brennan that that material was judged in the abstract and that it was expressly pointed out at circumstances of production, sale and publicity are relevant to a determination of obscenity.

Petitioner here has continually referred to the the film as non-obscene, that’s the language of this brief, that’s his comments to the Court today.

He suggests in his reply brief on page one and he suggested to Your Honors today, that we practically concede that non-obscenity.

On the contrary the respondent urges and the court below determined that it is in fact obscene.

Petitioner’s conviction under the state’s obscenity statute rests solely on that determination.

Curtis Ludwig:

Now what the court below and what Justice McGowan said in his opinion was simply that in an abstract determination the film would probably pass the Roth-Memoirs definition of obscenity.

Opinion below suggests in paraphrasing that some might find it not utterly without redeeming social value, but in the context of its display, in the outdoor theater, hoisted up on the nearby residency, it was in fact obscene.

In that particular regard I have noted, would interest the Morality amicus curiae brief which urges that the utterly without redeeming social value is not part of the test for obscenity established by Roth and we need not reach that issue here.

In my view, whether social value is or is not or privately test, should be important only in an abstract determination of obscenity.

I say that because assuming that Morality is wrong in their amicus brief and assuming that other utterly without redeeming social value is a part of the test and assuming for the moment that Carmen Baby has some redeeming social value.

That social value is certainly going to be lost or obscured to those unwilling viewers of this outdoor display.

Now petitioner Rabe completely overlooks that fact and he suggests in his brief on page 20 that if the householder took time to watch the entire film, it would presumably be restored to constitutional protection.

Now that’s really a novel unique idea.

Picture if you will, a home owner who views an erotic scene, very offensive to him.

Now petitioner would ask him to go ahead and view the rest of the scene, so the petitioner’s constitutional rights would be protected, views a little bit, but they ask him to ahead then and watch more of this offensive material.

It hasn’t been argued orally today but it was called somewhat in the brief that the Washington Court, both the Lower Court and the Supreme Court, were permitted to consider this film Carmen Baby as the residents as the arresting officer outside the screen or perhaps the younger children had without the soundtrack.

Now if that’s the way it’s being displayed to those people outside the theater, why should he quarrel with us judging it in that same vein.

If you don’t have the soundtrack, if you are displaying it without a soundtrack then it should be judged without a sound track.

For these reasons I say whether or not social value is a part of an abstract determination should not be a deciding factor in this case.

This is an outdoor display, a motion picture with a dominate theme, appealing to prurient interest in sex, a movie with erotic sexual scenes, respondent urges that such a set of circumstances is amply sufficient within the guidelines of this Court to establish the obscenity of this display.

Potter Stewart:

What decisions of this Court do you rely on?

Curtis Ludwig:

Your Honor, we rely on those mentioned by Justice McGowan, the Ginzburg case, the Michigan case, the Redrup case, and numerous other decisions, I think of comparing opinions of Chief Justice Warren that’s cited in the brief in one case wherein he stated it was not the film that was on trial, but the defendant, it’s not the film but the manner of use and display.

Potter Stewart:

Now here there was no claim on your part as I understand, and no evidence that there was anything like the so-called pandering that the Court found in Ginzburg, isn’t that true?

Curtis Ludwig:

Yes Your Honor, I think the kind reliance by the Washington Court of the opinion was Redrup on assault individual privacy.

Potter Stewart:

But your statute doesn’t prohibit that?

Curtis Ludwig:

Our statute Your Honor prohibits the showing of obscene material.

Potter Stewart:

Right, right and you have indicated that this movie had one of what this Court has held are the three requisite elements?

Curtis Ludwig:

And I think this Court Your Honor, in all respect, has also held that in certain settings, these things maybe obscene, whereas they would not otherwise be obscene in the abstract.

Perhaps some would find social value in Mr. Ginzburg’s material and some social value in Mr. Michigan’s material or perhaps if there was not an obtrusive display, some would find social value in an abstract determination for saying it may probably pass, but in the context of its use and exhibition, it’s obscene to those viewers.

Potter Stewart:

You may think so, but as I read the opinion of Mr. Justice McGowan, Judge McGowan he didn’t.

He said there was one of the elements, but on the record, it’s on page 9 in appendix.

Curtis Ludwig:

Yes Your Honor.

Potter Stewart:

He said this doesn’t meet the criteria of Roth, didn’t he?

Curtis Ludwig:

Yes and as I understand that he’s thinking of Roth, judging this beyond in an abstract setting and not in the context of its outdoor obtrusive display.

Potter Stewart:

And you don’t have any statute or arguments that talks about it —

Curtis Ludwig:

No Your Honor.

Potter Stewart:

— the outdoor obtrusive display?

Curtis Ludwig:

We had at that time and we still have.

We have had a general obscenity statute.

It has been changed.

The only material change is protection for minors and juveniles.

William H. Rehnquist:

Mr. Ludwig is that your contention that when you’re dealing with people who are unwilling viewers or with juveniles, that the type of material which the state may proscribe need not necessarily need all three of the obscenity clauses?

Curtis Ludwig:

I think this Court has indicated that in a case where concern of juveniles, you need a statute expressing that limited concern, but I don’t think this Court as I have review the opinions and decisions has said that you need a special statute to prohibit pandering, that you need a special statute to prohibit what Mr. Michigan was doing, or that you need a special statute to take care of the obtrusive display that there was not present in the cases reversed by Redrup.

Potter Stewart:

let’s assume that this was — and I haven’t seen any movies lately, but Goldilocks and the Three Bears and that the light and the noise and the traffic bothered householders, that the showing of the movie bothered the nearby householders.

Could you get a conviction under this ordinance?

Curtis Ludwig:

Not an obscenity conviction.

Potter Stewart:

Well you did with this movie which your Court has found is not obscene?

Curtis Ludwig:

On the theory that because of the contextual segregation —

Potter Stewart:

Because it bothered the nearby residents say or potentially a minor?

Curtis Ludwig:

Because as this Court has said perhaps in the recent case of Cohen whatever else may give rise to the state’s broader power to protect or interfere in this field, they must be in some way erotic.

The lights, the noise, those are nuisance matters unless you —

Potter Stewart:

And I presume that your state could legislate against those nuisance matters, could it not –?

Curtis Ludwig:

Yes I presume it could Your Honor, but I wonder if we buy and accept petitioner’s argument wholeheartedly, that when talking about a fundamental First Amendment guarantee if he is right, then how can we restrict a constitutional guarantee by statute.

Potter Stewart:

I don’t think that he has any claim here as a constitutional guarantee to show a bright light on somebody’s window or to make a lot of noise —

Curtis Ludwig:

No, I’m sorry.

I misunderstood that.

William H. Rehnquist:

Well, aren’t you saying Mr. Ludwig that when you’re dealing with obscenity in the context that juvenile in the sense in the context of unwilling viewers, it may have a broader definition?

Curtis Ludwig:

It may have, Yes Your honor.

That’s our feeling that in a blatant obtrusive display of an erotic sexual scene, it maybe all we need is the dominant appeal to the prurient interest to the subject and I think the other cases have so indicated.

Perhaps we’re here on a case of first impression and the things to be here on that basis.

Petitioner here also quarrels though what the language of the opinion below in reference to the display as offensive.

I think using the descriptive term offensive does not depart from the precedence, it does not involve any change in the law.

The use of the term offensive is simply a further descriptive word.

It is obscene, according to the opinion of the court below and obscenity is offensive to most Americans.

Now this was recognized in the report of the commission on obscenity and pornography, we cited at page 12 of our brief.

Curtis Ludwig:

The reply brief of petitioner points out that they maybe didn’t cite it all and that the commission also recommended a particular legislation for this problem.

Now that’s very simple and very easy to understand.

The report of the commission on obscenity and pornography were simply deemed consistent.

They further recommended removal of most obscenity statutes.

Naturally, if we follow their overall recommendations, then we wouldn’t even have the general obscenity statute and we would have to legislate a particular statute to correct this problem of offensive, obscene displays which they recognized and found as a matter of fact.

Potter Stewart:

This conviction was under 968.0102, was it?

Curtis Ludwig:

Yes Mr. Justice.

Basically this case, the opinion below relying on Redrup, I think taking the overall obscenity picture with all of the cases that we’ve had before this Court, this case recognized the right of privacy in a situation where we shouldn’t have to judge this film in the abstract, but judge it on its effect and its manner of display, the use and conduct of the exhibitor.

This case presents a problem of protecting the individual’s right of privacy.

Byron R. White:

For this film, did they sell tickets to children to see this film?

Curtis Ludwig:

It’s not in the record Your Honor.

There is testimony in the record from Mr. Rabe that when he had film there for adults only, he hired an off-duty policeman to check identification, that is I review the transcript directly before the Court, I can’t say whether he was testifying about this particular film or a previous one.

Byron R. White:

But there isn’t any evidence I suppose either than that this film was designed for any other group than adults?

Curtis Ludwig:

No there is not Your Honor.

The record is void on that.

Byron R. White:

Or any other group than just average adult?

Curtis Ludwig:

That’s correct.

Lewis F. Powell, Jr.:

In the first paragraph of the opinion on page 81, as I read it, the court states that Rabe was exhibiting in the motion picture Carmen Baby and had imposed no age restriction upon the paying audience.

How do you construe that?

Curtis Ludwig:

I’m sorry Mr. Justice —

Lewis F. Powell, Jr.:

This is on page 81 of the appendix, opinion of Judge McGowan?

Warren E. Burger:

Third line, and second paragraph.

Curtis Ludwig:

In my recollection it’s not accurate because I’m sure the Washington Court in writing this opinion had statement of facts before it and accepted that as in the record (Inaudible)

Byron R. White:

What page is that?

Warren E. Burger:

Page 81.

Curtis Ludwig:

81 of the appendix.

Potter Stewart:

And the — and then on page 96 and 97, the same opinion of the Court explicitly refused and found it impossible to ground its decision on the fact that this film was exhibited to minor, did it not?

Curtis Ludwig:

Yes Your Honor because they were relying substantially on Redrup and I think Redrup stood for the proposition that to protect juveniles who had to have a specific limited statute, whereas the Washington Court and respondent feels that Redrup also stood for the fact that you didn’t have to have such a statute for your concern with the blatant and obtrusive display that affects somebody else’s privacy.

Petitioner argued —

Warren E. Burger:

But is it your position that this as just as though they set up in a park downtown, across the street from an elementary school that showed it and allowed juveniles to walk in and sit?

Warren E. Burger:

That if allowing the — showing in that circumstances where juveniles could not be precluded from seeing it, are you suggesting is equivalent to inviting them to see it?

Curtis Ludwig:

I see no effect one way or other is Mr. Chief Justice if it’s shown outdoor in a manner where unwilling or even willing youngsters can see it, whether it would be in a drive-in seat or in a park, whether they are admitted by choice or where they are able to see it free of charge, I see no distinction there.

Concerning the right of privacy, petitioner suggests that that’s dependent on statute for its existence and cites our court below as saying that we had not even recognized a common law right of privacy.

But the opinion goes onto point out and respondent submits that the right of privacy is as fundamental, a constitutional right as any other constitutional right, just as fundamental as the right of free speech.

Potter Stewart:

Because the constitutional right of privacy is assertable only against government, isn’t it?

Curtis Ludwig:

I think a strict interpretation of the Ninth Amendment maybe —

Potter Stewart:

Well, the Constitution, about all constitution, the right of privacy if it is a constitutional right, if suppose it’s a constitutional right, is assertable only against government, state or federal.

Any other right of privacy is a matter of tort law, is it not, against private relation —

Curtis Ludwig:

Nuisance action Mr. Justice.

Perhaps I think the state if they have a criminal statute prohibiting obscene or obtrusive displays has a right to protect that right as well as other rights for the people.

Stanley versus Georgia, Griswold versus Connecticut represent that right I think.

Potter Stewart:

Well, that’s a right against intrusion by government, that’s a constitutional right?

Curtis Ludwig:

I understand that Your Honor and I accept that, but I think in answer to the petitioner we’re saying that it’s not a right dependent upon statute, I think it’s a constitutional right and a common law he was talking about and I think the state or the sovereign state of Washington owes the protection of those constitutional rights.

In effect what it seems to me is a balancing of rights, a balancing of the individual’s right of privacy, to home owner’s right of privacy against the producer of the motion pictures, fundamental right of free expression, a right of privacy is just as sacred to the homeowner as the right of free expression is to the producer and interestingly I think this case can be decided by recognizing that right of privacy, protecting the home owner’s right of privacy without denying or discouraging the movie maker’s right to produce and display what he wishes.

Thurgood Marshall:

What is the home owner’s right of privacy not to see any movie or not to be disturbed by the picture there or what is it?

Curtis Ludwig:

I think Mr. Justice Marshall that home owner’s right of privacy is to be free from obscene, erotic sexual scene.

Thurgood Marshall:

Where in the world do you get that?

Curtis Ludwig:

From the state’s general obscenity statute and from the case of Roth which says obscenity is not constitutionally protected.

Thurgood Marshall:

But you recognize that you do not have a state statute, that’s what I am talking about?

Curtis Ludwig:

We have a general —

Thurgood Marshall:

The states could very well, I understand Mr. Dwyer admit that the state could pass such a statute and so you can show these where they are being seen by unwilling people, but you haven’t passed the statute.

You only have the one statute which obviously — well, how long this statute has been on the book?

Curtis Ludwig:

Our general obscenity statute Your Honor is an old statute, it’s not new.

Thurgood Marshall:

I think we can say before drive-ins?

Curtis Ludwig:

I think it may — we have amended it now to protect juvenile.

Thurgood Marshall:

Yeah, but wouldn’t you assume so and so the whole point is that the statute, you haven’t passed such a statute.

You wanted to use the old statute to apply to the interference of the right of privacy of the person who lives across the road and his answer is, you could do it by statute, but you can’t do it without the statute.

Now what’s your answer to that?

Curtis Ludwig:

Your Honor, I think the general obscenity statute is sufficient Mr. Dwyer has been kind enough to tell me that our general obscenity statute is dated perhaps 1909, but other people have been convicted under general obscenity statues with guidelines and decisions from this Court.

I think that general obscenity statue is neither vague nor over broad, applied to an obtrusive display of a motion picture, hoisted up on residents, if the dominate theme of that material appeals to the prurient interest in sex.

Potter Stewart:

Well why would the motion picture have to have that dominate theme?

If there was a motion picture, that noise and light of which bothered householders, why couldn’t you convict somebody under the statute for that kind of an invasion of privacy because it has been found that this movie is not obscene in a constitutional sense?

Curtis Ludwig:

Mr. Justice Stewart I think noise and light is other than erotic sexual scenes and I go back to Cohen v. California where the exact words escape me, but whatever else may give rise to the state’s broader part to regulate and prescribe this type of conduct, it must be in some way erotic and this is erotic.

Potter Stewart:

Well, I guess you have Stanley —

Curtis Ludwig:

Petitioner says that it is a vague applied as an ex post facto decision that there are no guidelines.

Clearly, it’s no more an ex post facto or retroactive decision in this Court’s opinion was in Roth when it judicially defined obscenity as material dealing with a prurient or dominate theme appealing to the prurient interest in sex.

As to guidelines of fair notice, the statute gives the notice when it prescribes obscenity.

The previous rules of the Court set the standards and convey sufficient warnings.

I have said in the brief it perhaps the rating maybe the standards and that is not accurate and as an afterthought I see that, that isn’t precise legal guideline.

A guideline should be whether the dominant theme appeals to the prurient interest in sex and the x-rating perhaps as a practical matter be some further value or notice to the exhibitor that it very well may have a dominant theme which appeals to the prurient interest.

Byron R. White:

Why didn’t your court also base its judgment on perhaps the special appeal of that film to children or the special offensiveness of it to children?

Curtis Ludwig:

Your Honor I think perhaps it could have.

Byron R. White:

Well, they said they couldn’t.

Curtis Ludwig:

But we had since the prosecution commenced amended the statute.

Byron R. White:

I understand that.

They amended the statue, they said that under the state of the statute, statutory law that then was they could not base it on it’s effective on children because the obscenity law wasn’t tailored to specifically with respect to children.

Curtis Ludwig:

Didn’t express the limited concern for juveniles as was suggested by Redrup and Redrup was a case that they were relying on.

Byron R. White:

Well, base its decision on its effect on joining homeowners but the statue wasn’t tailored with specific concern, isn’t it?

Curtis Ludwig:

Well, as I read Redrup it did not require a special statutory concern.

It merely said, in none of the cases was there a claim that the statue in question reflected a specific and limited state concern for juvenile.

Byron R. White:

Well, you are suggesting that you don’t agree with your court.

Curtis Ludwig:

No, I do Your Honor.

I think they relied on Redrup for this reason and then it goes on to say, and none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.

On one situation it required a statue, on the other our court feel it did not.

Potter Stewart:

Well, Redrup — quite apart from Redrup what do you think about ordinary due process of law, Cohen against Arkansas?

Curtis Ludwig:

I am not familiar with Cohen.

Potter Stewart:

Well, a variety of cases that say that a criminal statute has to give fair notice both to the citizenry and to the law enforcement officers and to the judges as to why it is that’s illegal.

Curtis Ludwig:

I think we do give fair notice by our statute prescribing obscenity and then defining obscenity as material dealing with a — having a dominant theme appealing to the prurient interest and then saying that other things are relevant in the determination of that obscenity.

Potter Stewart:

I just read your statue, it doesn’t say any of those things.

Curtis Ludwig:

I know the statue is a general obscenity status Your Honor.

Curtis Ludwig:

In just a moment left and the most part of this case as it appeals to a prosecutor and of most concern to law enforcement agency involves a procedure for seizure of evidence.

This Court’s cases of Marcus and A Quantity of Books and Lee Art Theatre, are the only cases I think on point of seizure of this type of material.

They are all logical and clear.

They present no problem.

They are cases which were decided on the basis of the nature and the purpose of the seizure.

Lee Art Theatre was a case of seizure for evidence and does not support the proposition that a prior advisory hearing is necessary, only that a warrant or seizure requires more than a conclusory affidavit of an officer.

The confusion seems to arise in the lower courts from the failure to recognize a basic distinction, a distinction between seizure and its suppression as Marcus and the Quantity of Books and seizure aimed at securing evidence.

(Inaudible) decided in 1968 prior to Lee Art Theatre seems to appreciate the distinction.

Interestingly enough that was the first circuit court case on this point and it said a prior advisory hearing, but that was a case where they had seized four copies of a film, the same film for prosecution and they said you can’t do that.

Four copies as distinguished from one for evidence is quite a distinction.

The Court ordered them to deliver that one and from there on other courts have followed that, other courts have suggested other alternatives.

Byron R. White:

What is that about the seizure that has the practical effect of suppression?

Curtis Ludwig:

Your Honor I think Lee Art Theater said that it should be made on a judicial determination designed to focus searchingly on the question obscenity as the Marcus.

Byron R. White:

Without an advisory hearing?

Warren E. Burger:

Thank you Mr. Ludwig.

Mr. Dwyer if you have any – no you have spent your time.

Thank you Mr. Dwyer, thank you Mr. Ludwig.

The case is submitted.