Rabe v. Washington

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

Curtis Ludwig - for respondent
William L. Dwyer - for petitioner

Facts of the case


Media for Rabe v. Washington

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.