Redrup v. New York – Oral Argument – October 11, 1966

Media for Redrup v. New York

Audio Transcription for Oral Argument – October 10, 1966 in Redrup v. New York

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Earl Warren:

Number 50, Gent et al., appellants, versus Arkansas.

Emanuel Redfield:

Mr. Chief Justice, members of the Court.

I represent —

Earl Warren:

Mr. Redfield, you may proceed.

Emanuel Redfield:

I represent seven magazines whose names appear in the title of this action, as well as their publishers.

All of these magazines were published outside of the State of Arkansas and all the publishers are non-residence of Arkansas.

Six of them are from New York and one is from Connecticut.

Yet, they have been subjected to the sovereign power of the State of Arkansas, for that — for the courts of that state to determine whether or not these publications may be sent through the mails and otherwise across state lines into the State of Arkansas.

An action was brought in the county of Jefferson in Arkansas, in a little town with 20,000 population by the name of Pine Bluff.

And the court adjudicated these magazines to be obscene although they have national circulation and are accepted as readily as the Playboy Magazine or anything of similar types of magazines in current circulation.

I’m not going into the question whether or not these magazines are obscene because of the limited review in this case.

I’m addressing myself to the statute and the record was made on the statute alone.

The object of the statute as — has specifically stated among other things, is to catch the nonresident authors and publishers.

They state that in Section 2714 if Your Honors are following me.

The statute provides that the mere sending of the literature across state lines into Arkansas shall be deemed a submission by the sender to the jurisdiction of Arkansas.

And that a statute — an action may be commenced by the prosecuting attorney of the (Voice Overlap) for adjudication of the obscenity of mailable matter.

And I emphasize the obscenity of mailable matter because I think it will be a bothersome phrase because to me it seems contradictory.

The statute also provide with service on the nonresident office and publishing by mail.

And I should emphasize too that this statute as distinct from the one you had here nine years ago in the Kingsley Books case does not fix a period for trial immediately after joined thereof issue, nor does it fix a period for the determination of the issue as we had continuably books.

William J. Brennan, Jr.:

And the books will be banned in Jefferson County?

Emanuel Redfield:

No, sir.

William J. Brennan, Jr.:

Until adjudication?

Emanuel Redfield:

No, sir, it does not.

Does not provide for non — was anything like that determined.

And the — a judgment may be rendered declaring the obscenity of the publication and enjoined any act condemn by the statute and it may direct a respondent to dispose of obscene mailable matter and may direct the sheriff to seize and destroy all such obscene mailable matter in control of the respondents wherever it may be found.

William J. Brennan, Jr.:

That’s if the respondent doesn’t dispose of it himself?

Emanuel Redfield:

Yes, sir.

And contempt proceedings have provided together with the extradition of the publisher in the event should fail to abide by the decree and should he fail to do so, he may be subjected also to a felony prosecution with one year in jail and a $2000 fine.

Now, as I said before, none of my clients are residents of Arkansas.

In order to show a cause was issued in February of ’64, they appeared with an advisory jury trial hand and the jury advised the court that these books were obscene whereupon the court entered a decree declaring their obscenity and enjoin the appellants from sending or causing to be sent into Jefferson County the above magazines.

Emanuel Redfield:

He does not say which issues.

He just talks about the above magazines.

That all said magazines shall be destroyed within ten days by them and the court retained jurisdiction.

He determined whether or not subsequent issues of the magazines may be obscene.

Now, this is not the Kingsley Book case which I argued here nine years ago.

It has certain features that are similar but it does not wind itself at all within the context of the Kingsley opinion.

And I should add too as I emphasized before that although this Court recently in the Freeman against Maryland case sort of found favor was the Kingsley statute in a sort of a model.

In Kingsley, there was a provision for a trial one day after the issue was joined.

And the decision had to be rendered within two days.

And I suppose that is why the statute appealed to the court in the Freedman case, as we’ve — some of the justices.

I — I have not been reconciled to the Kingsley decision as a protection of the right of speech that is guaranteed Fourteenth and First Amendments.

But I know from — I hope I know that I’m not quixotic enough to ask this Court to overrule it in view of what happen in the Freedman case.

But, as I cannot help observing that one of the features that you might have heard — one of the counsel who might have been on my side say — that he say that this sort of a procedure because it lends a certain amount of security to the bookseller and perhaps it does.

I’m pretty sure he’s mistaken because I have seen cases, at least one case I’ve participated in where the — moving picture censor, order of the State of New York granted a license for the reduction — for the showing of a motion picture and nevertheless, the police department in the City of New York threaten the exhibitor because he claimed it was obscene although the censorship board held it to be non-obscene.

So I’m not sure that there is any security in this form of a statute.

But some people as I say are always looking for security, I’ve even found people who find security in jail and they’re willing to go to jail for the sake of the comfort they may find there.

But being as it may, there’s a great distinction here between Kingsley and the Arkansas statute.

In Kingsley, there was no attempt to control the authors and publishers who were non-residence.

The statute operated against persons in the State of New York and the books that were found in the State of New York.

And here, there is no attempt to conceal the fact that they are trying to reach the out-of-towners.

So it makes the publisher and author in New York subject to the terms of this statute.

Abe Fortas:

Mr. Redfield —

Emanuel Redfield:

Yes, sir.

Abe Fortas:

From this entire branch of your argument, that is to say the extra territorial effect on the —

Emanuel Redfield:

Yes, sir.

Abe Fortas:

— statute and the order.

I would be grateful if you would explain that if any effect the general appearance of your clients in the proceedings below may have had —

Emanuel Redfield:

I don’t think —

Abe Fortas:

— because I understand that they did enter a general appearance —

Emanuel Redfield:

Yes, they’ve —

Abe Fortas:

— obviously, there is a question as to the waiver?

Emanuel Redfield:

Well, they might have waived it so far as that service has summed it but that doesn’t mean that they are waiving the effect and operation of the statute.

They still attack the statute, as I am doing here.

Abe Fortas:

I understand that but they have taken on the grounds of — in part on the grounds of extra territorial effect.

Emanuel Redfield:

Yes, they —

Abe Fortas:

Now, you — it’s your position I take it, I don’t remember that it was briefed by you at the — I thought you did brief it.

I think that if — since your position that the general appearance below, without any reservation or any qualification did not constitute a submission to the jurisdiction of the court for purposes of the application of the statute in the form in which it was applied?

Emanuel Redfield:

No, its not.

Abe Fortas:

That it —

Emanuel Redfield:

No, I wouldn’t say that one has to do with the other to question one appearing in a court and not forcing another to serve you outside the state or anywhere else but just coming in and still maintaining — you claim that the statute is unconstitutional because it has this effect upon the out-of-towner.

I don’t think it — I don’t think the procedure with respect to the service of the summons has anything to do with the operation of this law.

If this statute would mean that an author or publisher who conducts himself in New York by standards of New York would become amenable to the laws of every other middle Pine Bluff in the United States of which we have a myriad of them.

Now, under the laws of the State of New York, these magazines were perfectly inoffensive.

Gent Magazine for example was a magazine involved in a Richmond County case which the court has noted in several opinions.

And if Gent case was published and distributed in New York under the New York concepts of what is bad or obscene, it would place a publisher or an author in a — not only unfair but in — it would burden them completely if he couldn’t send them out across state lines without the fear that he was going to be subjected to every little town that decides for itself, what this — its standards are.

It appeared as a burden on him, of having to engage counsel in every little town that decided to initiate proceedings like this against him.

And moreover, he couldn’t meet the standards of every little town in advance.

Abe Fortas:

Suppose the — I beg your pardon.

Supposed a New York publisher sent agents down into Arkansas and those agents open up a newsstand so that this would be the publisher operating directly in Arkansas, selling this.

Now you wouldn’t have any doubt as to the jurisdiction of the Arkansas legislature in the courts there would you?

Emanuel Redfield:

Well, if he’s operating within Arkansas then he — he’s in the same position as any other resident of Arkansas.

Abe Fortas:

And this — but the theory of this statute that the jurisdiction of Arkansas attaches here because of — acts done by the publisher within the State of Arkansas.

Emanuel Redfield:

I don’t think they are doing that.

They make no claim as to because there wasn’t — no such act here.

Abe Fortas:

Well, what (Voice Overlap) —

Emanuel Redfield:

And nor does the statute make any provision for that.

Abe Fortas:

Is there anything that the —

Emanuel Redfield:

If the — the claim is merely that these publications originated outside of Arkansas, they were being shipped toward Arkansas and they were going to stop them.

Abe Fortas:

Well, the statute talks in terms of sending across and to be sent or bringing or coursing to be brought into the state —

Emanuel Redfield:

Yes.

Abe Fortas:

— the allegedly offending material.

Is there anything in this record that shows the mechanics, what happened here in this case?

Emanuel Redfield:

No, that’s what — there’s nothing in the record at all.

Abe Fortas:

So when the publishers appear, made a general appearance below, did they make this point, reserved a point, offer any evidence on the jurisdictional point?

Emanuel Redfield:

No, sir.

There was no — there’s no evidence taken on that.

Abe Fortas:

In other words, there was general submission of the jurisdiction in the court?

Emanuel Redfield:

General submission in a sense that they’ve submitted to the processes of the Court.

Abe Fortas:

And there’s not (Voice Overlap) —

Emanuel Redfield:

It was to the — there were no — submitting to the statute.

Abe Fortas:

And no point was made out of the theory — no point was made to the effect that these publishers are not found or doing visits in the State of Arkansas?

Emanuel Redfield:

No, sir.

There was no such issue at all.

Abe Fortas:

And you’re bringing that — making that point here for the first time?

Emanuel Redfield:

Well, it’s all part of the same question as to — I mean, I’m not involving myself with a question that you are raising because I didn’t think its part of the case at all.

Abe Fortas:

Well, I’m — and haply it does bother me, I wish it didn’t bother me.

Emanuel Redfield:

Well, I don’t see why it should bother you because it’s an entirely different question from what’s involved here.

For example, if in Kingsley Books case, if the local publisher or author was served with summons incorrectly, I don’t think that would be an issue as to whether or not the statute is constitutional or not.

He could still come into court and make a general appearance and attack the statute on the ground that it’s a form of a restriction on a speech.

Tom C. Clark:

(Inaudible)

Emanuel Redfield:

Pardon me sir.

Tom C. Clark:

The fact it admit, to quash the process rather than following a general exit?

Emanuel Redfield:

Well, I don’t see why they have to.

They could always —

Tom C. Clark:

Yes, they didn’t benefit the state.

Emanuel Redfield:

They could always — they could attack the statute even by a general appearance?

Tom C. Clark:

Well, —

Emanuel Redfield:

We’re not —

Tom C. Clark:

I know but (Inaudible) —

Emanuel Redfield:

We’re not fighting here the method of service on them.

Tom C. Clark:

For awhile you said they didn’t make an appearance at all, what could Arkansas do?

Emanuel Redfield:

Arkansas would probably — would render a decree by default.

Tom C. Clark:

Yes.

Now they’ve (Inaudible) take the books in Arkansas?

The books were in Arkansas?

Emanuel Redfield:

They were in Arkansas, yes sir.

Tom C. Clark:

How did they get hold of the books and pick them up a stand or –?

Emanuel Redfield:

Well, they’d insist in here, they just went after the — went after them by what they call this in rem proceeding to have it determine whether or not the books were obscene or not.

Tom C. Clark:

But people in Arkansas may be parties of —

Emanuel Redfield:

But — yes, there was a book distributor there, people there.

Now, in — we have to bear in mind something that would seem obvious but could stand repetitions that in the Jacobellis case this Court pointed out that we cannot tolerate the situation whether limits of expressions fixed by state lines only.

And Mr. Justice Harlan, I state of another generation in 1909 in the International Textbook Case, pointed out that even where a correspondent school was required — a correspondent school of Pennsylvania was required to qualify as a foreign corporation in another state before it could maintain a suit, that Justice Harlan writing for the Court held such a requirement unconstitutional because this was an obstruction to the transmission of intelligence from one state to the other.

And I suppose those sentiments can be brought up to date by other members of the court.

And in the case of Licey v. Haden (ph) where one of the states attempted to prevent the sending of liquor across state lines into that state, this Court held that the sending — even a sending of liquor was forbidden — I mean, even the obstruction to the importation of liquor within a state would be condemned.

Yet this Court has held from time — time and time again that the literature certainly is on a higher level than liquor.

The burden that was placed on the author and publisher here unjustly to nothing but timidity and terrorize them.

And the expense in defending everywhere would be just another added burden to his already harassed job of being a publisher.

Earl Warren:

Mr. Jackson.

Fletcher Jackson:

Mr. Chief Justice, members of the Court.

The Arkansas statute was enacted in 1961, this was four years after Roth and Kingsley’s Books.

The statute was drawn with those two cases in view.

They took the definition verbatim from Roth.

The — Roth allowed the criminal action.

As to several proceedings, they went from Kingsley’s Books and they aid one additional safeguard, there’s no injunction pendente lite.

There is no restraint under the statute until there’s been judicial determination of obscenity.

In Freedman versus Maryland, you all point out that Kingsley could service a month, this is the way the Arkansas statute is setup.

It’s an even — more safeguards for First Amendment rights than in Kingsley’s Books.

There’s about 25 other states which have similar statutes where you get a declaratory judgment as to obscenity and then get an injunction.

Some of —

Hugo L. Black:

(Inaudible)

Fletcher Jackson:

25, sir?

Hugo L. Black:

45?

Fletcher Jackson:

Twenty-five.

Twenty-five if our statute follows they would surely follow because our statute doesn’t have any provision for any restraint before termination.

Potter Stewart:

But are the other statutes all defined obscenity in the same way as the Arkansan statute?

Fletcher Jackson:

That’s so and probably they do, most of them, I believe they use blanket word of obscenity, indecency and so forth.

Potter Stewart:

Is it then —

Fletcher Jackson:

This —

Potter Stewart:

The definition on top page 21 of the appendix to the accounts briefed leaves out entirely the necessary ingredient of totally lacking in regaining social importance to?

Fletcher Jackson:

They could be added in this case.

They could have asked for an instruction to that effect and to add it and they took this.

Potter Stewart:

Well, but the statute —

Fletcher Jackson:

Statute does —

Potter Stewart:

— statutory definition which —

Fletcher Jackson:

Even in —

Potter Stewart:

— they’re completely deficient in that essential ingredient, isn’t it?

Fletcher Jackson:

Isn’t that element of lack of social value implied in the Roth definition having you all re-approve Roth, the definition in saying that it includes this.

There was a lack of social —

Potter Stewart:

Because I wasn’t here when Roth was written and I —

Fletcher Jackson:

Oh, —

Potter Stewart:

But I — and I think — I’m not sure that I understand all of the opinions of the Court in this area where they have that opinions of the Court but my understanding of one of the opinions in the Massachusetts case last term was that there had to be — that a — that in order prosecute or suppress something in the teeth First and Fourteenth Amendments of the United States Constitution.

That something had to have three conjunctive ingredients, not disjunctive.

Fletcher Jackson:

Yes.

Yes, sir.

Potter Stewart:

One of which was that it be utterly lacking in any redeeming social importance, so that’s just not in the statute at all.

Fletcher Jackson:

No, sir.

But — neither is the thing about adding defensiveness.

But if ever — every time you add an element by a decision, the legislature would affirm that to add another sentence into this definition.

The order — since consistently approved this language here from Roth, even though you do seem to add other elements.

These other elements will have to come in under instructions as for the jury.

Fletcher Jackson:

There’s no way you could — just keep adding sentences to each time the legislature amends.

Now(Voice Overlap) —

Potter Stewart:

As a matter it points to the other states, it might have been a better word just to use the word (Voice Overlap) —

Fletcher Jackson:

Just the word saint.

Potter Stewart:

And then that has a continuing — it’s continually redefined in the decisions of this in other courts.

Fletcher Jackson:

That would be one way to —

Potter Stewart:

But that’s not what your legislature did?

Fletcher Jackson:

No, sir.

But I think that what our legislature did was — is permissible.

Is to — definition that you’ll continually refer to even though you’ll say — the court says to construe it differently as to include other elements.

Potter Stewart:

Well, that’s really important, doesn’t it?

Fletcher Jackson:

What?

They could — they construed the word obscene as to in — as it is here to include the lack of social value and that an offensiveness.

They could be so instructed to the jury if requested.

Potter Stewart:

Of course, here there was no (Voice Overlap) —

Fletcher Jackson:

It’s not inconsistent —

Potter Stewart:

There was no jury here, was it?

Fletcher Jackson:

That it was —

Potter Stewart:

That it was an advisory jury —

Fletcher Jackson:

Just advisory jury, yes sir.

Potter Stewart:

And how was the advisory jury instructed us to the definition?

Fletcher Jackson:

Yes, sir.

Are the court itself, it — hears it by itself.

It could be advised as to — considered the three elements at most coalesce.

Potter Stewart:

Well it could if the — but the statute doesn’t require it to.

Fletcher Jackson:

Doesn’t require but they could be added into the —

Potter Stewart:

Well, they did — did either the jury or the court do so here?

Fletcher Jackson:

It was never asked to do so.

Potter Stewart:

Or did they, either one?

Fletcher Jackson:

No, sir.

Potter Stewart:

Were there instructions to this advisory jury?

Fletcher Jackson:

The instructions given were the definition of obscenity — the appellants here never asked for any instructions as to include the element of — having an offensive (Voice Overlap) —

Potter Stewart:

Were there instructions to the advisory jury?

Fletcher Jackson:

Yes, sir.

Potter Stewart:

Where are they in the record, do you remember?

Fletcher Jackson:

They’re not in — did they — put you from the front of the record?

This — 1909 in the printed record but there is no instruction as to lack of social value.

Potter Stewart:

Okay.

Fletcher Jackson:

What this case — what came up under the several proceedings of the statutes, we have a twin weapons here.

We have a civil and criminal proceedings and as to our civil proceedings is from the last two cases today this could solve some of this scienter problems.

Because here you have to — in any criminal prosecution, you’re going to have to show knowledge of contents under our statute and you’re also going to have to show either that 2907 has turn it down or that it has been judicially determined to be obscene in an Arkansas proceeding.

Plus, they knew it was — had been so adjudicated.

You’ve really got some scienter provisions here that are no funds than any other state and protecting First Amendment rights and Fourteenth as — incorporating the Fourteenth.

This law was carefully drafted in Roth and Kingsley’s Books.

They tried to put as many safeguards as they could to bail it.

Basic safeguard is the definition on mailable matter and non-mailable matter.

Abe Fortas:

Well, this is kind of a different scienter or mens rea set up here, first, you have a civil proceeding, that’s —

Fletcher Jackson:

Yes, sir.

Abe Fortas:

— what you have here, isn’t it?

Fletcher Jackson:

Yes, sir.

Abe Fortas:

And in that civil proceeding, as I am dispended as applied to these publications which are mailable and non-mailable.

Fletcher Jackson:

Yes, sir.

Abe Fortas:

As applied to these publications all that the state had to be — had to show was that they are both obscene from the Roth test or — am I right?

Fletcher Jackson:

Yes sir, that’s right.

Abe Fortas:

And once that was shown, then the judicial determination had been made.

It doesn’t have to — you don’t have to show any intent or any pandering or any knowledge of content or knowledge that the magazines were obscene.

Isn’t that correct counsel?

Fletcher Jackson:

You — the start — the proceedings, the prosecuting attorney would have to have reasonable cause where the statute reads that respondent had knowledge of the contents.

That’s set out in Section 5 which talks about, you know, bringing the action.

Abe Fortas:

Well, wait a minute.

Abe Fortas:

Let’s take a look at that.

Will you give me that exact language?

Only has — it says that every person whom with knowledge of its current offense —

Fletcher Jackson:

Come to that is the civil action under Section 5, whatever the prosecuting attorney for any county has reasonable cause to believe that any person with knowledge of his current offense —

Abe Fortas:

Where is — where are you, what page?

Fletcher Jackson:

It would — in the appellant’s appendix, it would be on page 22.

Abe Fortas:

Before it?

Fletcher Jackson:

It was — being Section 41-2717 is the first sentence after the title.

Abe Fortas:

Well that applies to proceedings after this judicial finding, after the kind of proceeding we have here.

Fletcher Jackson:

No, this is to bring the action, to get the judicial determination.

Abe Fortas:

Alright.

Fletcher Jackson:

It’s the commencement of the action.

Abe Fortas:

Right.

Fletcher Jackson:

And you have knowledge of contents and as far as pandering and so forth, that would probably an element as to — that could be proved during a civil trial too, as well as in the criminal.

Abe Fortas:

Or it could be proven but there’s no requirement.

Fletcher Jackson:

No requirement, no sir.

You just —

Abe Fortas:

We have to do is (Voice Overlap) —

Fletcher Jackson:

Prove the elements of Roth.

Abe Fortas:

All you have to do is to show that the publisher for example of Gent or one of these magazines had knowledge of its contents, correct?

Fletcher Jackson:

It has —

Abe Fortas:

I assume that it follows that somebody who publishes a magazine is chargeable with knowledge of its contents, or do you construe the statute as requiring something beyond that?

Fletcher Jackson:

I would assume — as far as not in the content you wouldn’t have any problem as to publisher-distributor.

The problem there is the —

Abe Fortas:

Yes.

But we’re talking here about publishers.

Fletcher Jackson:

Obviously, yes sir.

Abe Fortas:

And so all you have to do is to show that he published some magazine.

Fletcher Jackson:

You have to show that he published — to bring a civil action to get — to get a declaration, you’d have to have a prosecutor attorney bring the action.

You’d have to have a reasonable cause to believe that any person with knowledge of its contents is engaging and bringing in of — or in this — or in Arkansas publishing and preparing obscene mailable matter.

Abe Fortas:

Now, I tell you, you have to show —

Fletcher Jackson:

Yes, sir.

Abe Fortas:

There was no scienter in there part on the (Voice Overlap) —

Fletcher Jackson:

No, sir.

There’s no scienter as far as the — that was scienter would come in after the determination as far as the knowledge of obscenity of the product itself.

Hugo L. Black:

If it’s entirely (Inaudible) —

Abe Fortas:

Now, wait a minute Mr. Jackson, I’m sorry to take your time but you’re going to have to play it easy and help me on this thing.

The — this proceeding, that we’re concerned here was brought and could be brought under the statute just on the basis of a reasonable belief by the prosecuting attorney.

That each of these publishers with knowledge of the contents is —

Fletcher Jackson:

Engaged?

Abe Fortas:

— instrumental in send — shipping the magazine into the state and that the magazine is obscene, right?

Fletcher Jackson:

That’s the way that the action is commenced, I mean —

Abe Fortas:

That’s the way the action was commenced?

Fletcher Jackson:

Yes, sir.

Abe Fortas:

And then what results is a judgment as it did in this case requiring that the issues of the magazine be destroyed, impounded, etcetera, right?

Fletcher Jackson:

The fact of the thing is that — and first, that — since you have a judicial declaration that the matter is obscene.

Abe Fortas:

I understand.

Fletcher Jackson:

Then in addition, you can — and whereas, it was done here, you can enjoin this Acts (Voice Overlap) —

Abe Fortas:

And what was done here was that the magazine — the issues of the magazine were to be destroyed.

Fletcher Jackson:

Yes, sir.

Abe Fortas:

Alright.

Now that’s phase one, that’s what we have here and all of the scienter that’s involved here is that publishing magazine, therefore he has knowledge of the contents.

Fletcher Jackson:

Yes, sir.

Abe Fortas:

And no requirement of men rea either beyond what we’ve said.

Fletcher Jackson:

Your mens rea would come after the judicial declaration.

Abe Fortas:

I understand.

I’m talking to you if it —

Fletcher Jackson:

Yes, sir.

Abe Fortas:

— if I may about this phase one which is all we have before us.

Fletcher Jackson:

Yes, sir.

Abe Fortas:

Only have before us is a proceeding and which says, “No requirement of scienter or mens rea.”

Fletcher Jackson:

Alright.

Abe Fortas:

Now somebody violates the order or somebody brings in to the state and let’s suppose one of these publishers, despite the order that has been entered in the proceeding before it, sends in to the state some copies of the particular issue of the magazine that has been condemned.

Then he have subject to criminal prosecution, is that right?

Fletcher Jackson:

Yes, sir.

Under the criminal provisions, if he had knowledge of the judicial (Voice Overlap) —

Abe Fortas:

But he had knowledge, he was (Voice Overlap) and since he had knowledge and he said, “Nevertheless, the copy of the issue, the magazine into the state.”

Fletcher Jackson:

Yes, sir under Section 4 —

Abe Fortas:

Then the prosecuting attorney presumably would proceed under —

Fletcher Jackson:

Section 4, the — under what the others — if the others, 41 —

Abe Fortas:

41-2716 —

Fletcher Jackson:

Yes, sir.

Abe Fortas:

— is the number here.

Fletcher Jackson:

Yes, sir.

It can proceed under or proceed — or attempt proceedings.

Abe Fortas:

Right.

Now, under that provision, is there any requirement of a specific intent scienter, mens rea in the sense that publisher brought it in with the intent of selling, distributing something knowing it to be obscene and with the purpose of capitalizing on its quality as obscene literature, it’s a very rough statement of what a — well, summed up by — what I sum up by the phrase specific intent.

Fletcher Jackson:

The —

Abe Fortas:

Is there any such requirement here?

Fletcher Jackson:

As I interpret the first section of that, this — the two-part reveals what position but the first seems deal in selling or dealing or giving a way of obscene matter, it would be in the business, most of it.

Abe Fortas:

Well, as a matter of fact, is it correct that under 41-2716, the prosecuting attorney would bring a criminal proceeding against the publisher in the keys that I put to?

All he would have to show is that the publisher has sent the magazine into the state for the purpose of it’s — the magazines being sold and that the magazine, the issue of the magazine was judicially found to be obscene and he’s made his case, isn’t that right?

Fletcher Jackson:

You got the other element — you also got the knowledge of can say of the knowledge that it has judicially —

Abe Fortas:

Where is that?

Fletcher Jackson:

— fair to be obscene?

Abe Fortas:

Sir?

Fletcher Jackson:

As to knowledge of content, that’s in the first sentence of very person who had knowledge of its contents sent or causes to send in to Arkansas —

Abe Fortas:

I think we agreed on that but —

Fletcher Jackson:

Yes, sir.

Abe Fortas:

— or do you think that this is any different, knowledge of its contents mean something different in 2716 than it does in 2717?

Fletcher Jackson:

Or you’d definitely had to prove as — (Inaudible) you have to show knowledge of contents or (Inaudible) to show us that it’s just the prosecutor’s belief.

Abe Fortas:

Well then, let’s take that very carefully if you don’t mind.

In 2716, which is this proceeding, the civil proceeding, the prosecuting attorney brings the case on.

All he has to do is to show it to satisfy the requirement of knowledge of contents is to show that such and such a person or a company published this magazine.

That satisfies knowledge of contents for purposes of the civil proceeding?

Fletcher Jackson:

Yes, sir.

Abe Fortas:

Alright.

Now, subsequently, after — this — that a civil order has been entered, the prosecuting attorney brings a criminal proceeding, are you telling us and if so, what’s the basis of it, that the prosecuting attorney in order to satisfy that same requirement mainly with knowledge of its contents, has to prove something else.

Fletcher Jackson:

He has to prove these elements.

One, that the person had knowledge of the contents.

Two, that they are sending or you know, for sale and so forth into the state this obscene matter.

He’s got to show that it was either — other than mailable matter or that it was mailable matter known by such person to have been judicially found to be obscene.

Abe Fortas:

Alright.

What I’m going to ask you —

Fletcher Jackson:

Or it just got —

Abe Fortas:

I understand all that.

Here, we have in these cases, we have mailable matter.

We have a judicial determination in the proceeding before us.

Fletcher Jackson:

Yes, sir.

Abe Fortas:

And therefore, we have knowledge of the judicial determination —

Fletcher Jackson:

Yes, sir.

Abe Fortas:

— in the case that I have put.

What I’m asking you is, whether it’s your submission to this Court that the prosecution has got to prove anything additionally to show that the defendant in this phase number two proceeding had knowledge of the contents of the magazine.

Fletcher Jackson:

Yes, sir.

He’d have to show like a — an affirmative showing of knowledge of contents.

Abe Fortas:

Of what kind?

That’s what I’m asking.

Remember, we’re talking about the publisher.

Fletcher Jackson:

The publisher?

Abe Fortas:

Yes.

Fletcher Jackson:

You’d have to show that he was — to prove by showing he’s supervised the printing or he read it before publication.

Abe Fortas:

And that is — is that the kind of showing — and that’s the kind of —

Fletcher Jackson:

That would show knowledge of contents, wouldn’t it?

Abe Fortas:

But my point is that neither phase number one nor phase number two, if I correctly understand the statute in your explanation, is there any requirement that the prosecution proves specific intent and the question that we have before us and I think further to the question that we have before us maybe, whether in view of the lack of necessity in the statutory scheme of the showing of specific intent or scienter beyond the point that you have described?

And either phase one or phase two, whether in view of that fact, phase one, the phase one order, is constitutionally defective.

Fletcher Jackson:

You’d still have to prove mens rea in — even under number one, you’d have to show intent, intent to sell or distribute these obscene matters if you have to show mens rea even under this.

Abe Fortas:

You and I know that there are lots of kinds of these in qualities in mens rea and scienter —

Fletcher Jackson:

Yes, sir.

Abe Fortas:

And we’re talking about two kinds here.

I’m talking about what the sort refer to as specific intent and you’re referring it to the knowledge of the contents, etcetera.

Fletcher Jackson:

My point was sir that this judicial determination will put a publisher or a distributor of a notice that this matter is likely to found of — that it is obscene in the civil matter and he’s likely to be found obscene in a criminal matter.

In other words, it gives him — what problem as yesterday in one of those cases was that knowledge of contents and knowledge that the material was obscene.

And this goes a little bit further than the usual statute.

Towards the mailable matter and non-mailable matter, the great book of all publications would be a mailable matter.

That definition of mailable matter, the — be part it makes it almost completely broad.

It says any other printed or written matter or material which has not been determined to be non-mailable under the laws of the United States.

That was the definition of mailable matter, is anything that has been given a second class permit or has never been presented to the post office for determination.

That would leave non-mailable matters s to something that has been excluded by the post office.

And anything that’s been excluded by the post office, that would be this — in effect, same as a judicial determination as far as showing you all later a scienter.

Abe Fortas:

Well, do we have before us a section of the statute dealing with non-mailable matter?

Fletcher Jackson:

The definition sir?

Abe Fortas:

I said, do we have that, the court determination?

Aren’t all of these magazines mailable matter?

Fletcher Jackson:

All of them are mailable matter, yes sir.

Abe Fortas:

Because the statute is much — what shall I say, much more rugged with respect to non-mailable matter —

Fletcher Jackson:

Yes, sir.

Abe Fortas:

Apparently on the theory that you’ve just stated, namely that the matter is non-mailable, it does not have the advantage, protection or sanctification of the post office department action and giving it a second — allowing it the exercise second class privileges.

Fletcher Jackson:

It allows publishers and distributors to rely on the post office determination as their — you know basic protection.

If they have that protection, they’re pretty well safe unless it’s a borderline case.

The main thing I wish to stress is — he raises the prior restraint to him.

Fletcher Jackson:

And really, this is not really a prior restraint case.

There is no restraint before an adversary hearing.

There’s no I — provision for an injunction pendente lite.

You can only have — you can — the prosecuting attorney can only ask for a power in injunction.

And a power injunction can only be given after judicial determination.

We’re not really in the — depends on where a prior restraint is.

But here, you got a judicial determination before there is any restraint.

A matter of fact, in the present case, the testimony shows that these magazines were still on the stand after the suit was filed all up to judgment.

One of the witnesses bought some later editions before the final trial was over.

These magazines until they were ordered — ceased were never taken off the stand.

So, the issues can go on the stand.

There’s really not much restraint here.

Byron R. White:

As a practical matter, the criminal provision never come into play in a magazine case or ask you, why can your injunction ever be effective in a magazine case?

Say you’d proceed against the magazine that comes out every two weeks?

Fletcher Jackson:

The only way I understood —

Byron R. White:

— twice a month, you can’t have a preliminary injunction.

Fletcher Jackson:

Yes, sir.

Byron R. White:

You can’t be at the magazine until you’ve had a trial.

Fletcher Jackson:

Yes, sir.

Byron R. White:

So by the time you’ve had your trial, that issue with the magazine is long since out of date and then it gets new ones on the stand.

Then you haven’t been to ban that magazine on the stand anyway while — during the trial.

And so — and once the newer issue comes out, the old magazine is not going to be sold again anyway so you will never have an opportunity to apply your injunction to the old issue or the criminal provision, isn’t that true?

Fletcher Jackson:

As far more or less what’s happened here?

Byron R. White:

So, what’s Arkansas wasting this time for?

Fletcher Jackson:

Trip to Washington — it seems to me that the — to make the statute effective, the only way it can —

Byron R. White:

You’re really telling me — what you’re saying to the public here is, you go ahead and send later issues in here, we’ll have to try those.

And we can never apply the criminal provisions to you anyway.

Fletcher Jackson:

That’s — in fact, we can’t understand why they appealed?

This is the —

Byron R. White:

Or why are you wasting (Voice Overlap) —

Fletcher Jackson:

— this is no perfect statute they’ve ever have.

Byron R. White:

It may be but books, it might be different.

Fletcher Jackson:

The books, it could — rather different.

Byron R. White:

Would have a — that has some kind of affirmative (Voice Overlap) —

Fletcher Jackson:

Yes, sir.

Abe Fortas:

Well the Court retains jurisdiction under this order to consider subsequent issues in the magazines so that they can go ahead and have what presumably would be a very snappy procedure with respect to subsequent issues, when the prosecuting attorney and — that same (Inaudible) that they bring to the court.

One issue — one of these issues after another and you get an order, isn’t that the way it works without the time-consuming process of service and the usual things that (Voice Overlap) —

Fletcher Jackson:

That would be the only thing it would show us.

Abe Fortas:

— and then initiation of litigation.

Fletcher Jackson:

Yes, sir.

You are short the way it — the order is finally was short circuit service, the process, that would be the only thing which I can see.

Abe Fortas:

In the complaint they answered it, I assume.

Fletcher Jackson:

I assume that you have to go ahead and file a new complaint with new — attached new exhibits to it to go through the —

Abe Fortas:

You’d have to do a set of —

Fletcher Jackson:

— somewhat the same processes.

You’d have to have another hearing.

It says here —

I don’t know, where it says, “If they are found obscene, you’d have to have another full scale hearing.

Abe Fortas:

And in effect, what’s happening here is that the court refrains jurisdiction and persona — and these defendants render in the days so far as appears here, so long as they have magazines appearing on the stands in Arkansas (Inaudible).

Fletcher Jackson:

Yes, sir.

Abe Fortas:

If you don’t mind, I’d like to ask you one question.

I’m concerned here, the — by this point, if I correctly understand it.

The standard applied, the community standard applied was set at the time — the law of Arkansas?

Fletcher Jackson:

Yes, sir.

Abe Fortas:

The order, as entered prohibit it, I think the sale of these magazines anywhere in the state, in other words, the standard applied was Pine Bluff, the order operates statewide, am I wrong with that there?

Fletcher Jackson:

The order just applies to say (Inaudible) from bringing into Jefferson County for sale or distribution in Jefferson County in order to — you know, destroy said magazines which —

Abe Fortas:

The order applies only to —

Fletcher Jackson:

Only to Jefferson County.

Yes, sir.

Byron R. White:

And this is in — in one specific issue of the magazine?

Fletcher Jackson:

Yes, sir.

It’s one specific issue.

It names in the decree and in the complaint and everything.

It names a specific issues of the magazines that are — you’re quite correct that — this is about as good a statute is to protect First Amendment rights that you can have.

Hugo L. Black:

It doesn’t keep the — doesn’t keep the publishers under a continual restraint and doesn’t it subject their future conduct to sanctions for violation of this injunction through other issues.

Fletcher Jackson:

I wouldn’t apply to other issues, it would just be the specific issues that have been determined obscene of —

Hugo L. Black:

Well, let me read this, this paragraph to you, from the decree.

Fletcher Jackson:

Yes, sir.

Hugo L. Black:

The Court finds that seven magazines are obscene and it specifically retains jurisdiction to determine whether any future issues are obscene and whether or not they come within the terms of this order.

That defendants are hereby notified that any future distribution of obscene publications as set out, can found out to be obscene will also be restrained and enjoined and magazines will be removed.

Isn’t that — doesn’t that keep them under a constant injunction?

Fletcher Jackson:

No, sir.

All they say is, it says, found above.

Hugo L. Black:

And they —

Fletcher Jackson:

Look at (Voice Overlap) —

Hugo L. Black:

They specifically retains jurisdiction to determine whether any future issues are obscene and whether or not they come within the terms of this order?

Fletcher Jackson:

I think it clarifies matters over in this order itself.

That was just in the findings of — in the last paragraph in its order sir.

Byron R. White:

And then the Supreme Court of Arkansas, assume the decree but at this point you have to agree within —

Fletcher Jackson:

Yes, sir.

Byron R. White:

— with Arkansas?

Fletcher Jackson:

Yes, sir.

Byron R. White:

And assume, the (Inaudible) of Arkansas through that — did the court — but the court just defined just to keep the issues amends and enjoined upon showing that these magazines are obscene, isn’t it?

Hugo L. Black:

Well, that doesn’t mean that a new —

Fletcher Jackson:

If this —

Hugo L. Black:

— a new law suit?

Or is that mean — is that mean as this is here, the court retains jurisdiction?

Fletcher Jackson:

Would you look the last paragraph sir, in the —

Hugo L. Black:

Where?

Fletcher Jackson:

In the decree.

Hugo L. Black:

Yes.

But which page, you say?

Fletcher Jackson:

Would be on —

Byron R. White:

29 in the record?

Fletcher Jackson:

It’d be on page 30 of the record.

Hugo L. Black:

Page 30.

Fletcher Jackson:

It is further considered, ordered and decreed defendants are hereby notified that any future distribution or sale of above magazines which are of like obscene character comparable to the above issues of said magazine will be enjoined and here’s an important language above showing that said magazines are obscene that which will have to have a new trial.

Hugo L. Black:

It is further no — considered, ordered and decreed that the defendants are hereby notified that any future distribution or sale of the above magazines which are of like obscene character comparable to the above issues of said magazine will be enjoined upon a showing that said magazines are obscene and the court retains jurisdiction of this cause of action that carry out the terms and conditions of this order and to make such orders as may be necessary concerning the sale of the following described magazines in the future.

And then it goes on, Gents, Swank, Modern and so forth and not to any specific issues, but to the sale of the magazines.

Fletcher Jackson:

As to the feature, all it did was retain jurisdiction for a later determination as to the obscenity of any future issues.

All in effect it does is — it would short circuit as to service of process.

It doesn’t really matter — anything, just retain the jurisdiction because the prosecuting attorney will have to go through the same steps again and prove the obscenity of future issues.

Hugo L. Black:

You mean, he’ll have to start a new action?

Fletcher Jackson:

He’d have to start a new action (Voice Overlap) —

Hugo L. Black:

— or on a peremptory hearing, could they determine that he was in violation of this decree?

Fletcher Jackson:

No, sir.

They would — as to future issues and future — I’d say that March or April issue that comes out next month, he would have to prove obscenity again.

That if have to another full adversary hearing before they could be of —

Hugo L. Black:

You mean another action?

Fletcher Jackson:

Yes, sir.

Hugo L. Black:

Well, and —

Fletcher Jackson:

As far as the Supreme Court of Arkansas is construed this is —

Hugo L. Black:

Then what does — they mean by saying that it retains jurisdiction to determine that act — that fact?

Fletcher Jackson:

Oh, by retaining jurisdiction, he would keep them in court.

Abe Fortas:

You don’t mean another action, you mean another hearing —

Fletcher Jackson:

Another hearing, yes sir, another hearing.

Abe Fortas:

— the same action.

Fletcher Jackson:

I mean another — yes, sir.

My mistake —

Hugo L. Black:

But they are — under an injunction, continuing injunction, not to publish any more magazines of this character.

Fletcher Jackson:

No, sir.

Earl Warren:

Just this what?

Fletcher Jackson:

Just this one issue.

Just the issues that are named in there is the only ones they were really enjoined from (Inaudible).

Earl Warren:

Well, some are or rather I don’t get that from this language, is this further considered, ordered and decreed that the defendants are hereby notified that any future distribution or sale of the above magazines, and that doesn’t mean the specific ones there — they are which they — you’re talking about which are of like obscene character comparable to the above issues of said magazine will be enjoined upon a showing of that — if the magazines are obscene.

Now does that simply mean that if they dared to publish any magazine of like character, that they can be summoned in the court on an order to show cause under this injunction and have those burned in the same way?

Fletcher Jackson:

No, sir.

I don’t think so.

I think, you’ll have to have a complete new hearing.

Would you turn to page 18 of my brief sir and —

Earl Warren:

What page?

What?

Fletcher Jackson:

Page 18 of the — brief of appellee —

Earl Warren:

18, yes.

Well, I took a little of your time, you take three or four minutes more to finish your argument.

Fletcher Jackson:

I would like to —

Earl Warren:

Don’t — about my questions anymore, you go finish up your argument.

You may have three or four minutes to do it.

Fletcher Jackson:

I understand.

So that by saying as to the — you’re question sir, there, the — in the middle of page 18 is an excerpt from the Arkansas Supreme Court hearing which shows the fact of what this decree is.

They construed this Chancellor’s Decree in it’s — it says, the — it doesn’t really mean anything, just retaining of jurisdiction unless it would mean the — as to service of process and having them subject to the jurisdiction that would mean only —

Byron R. White:

Well, didn’t the Supreme Court of Arkansas — I concede did not apply to futuristic —

Fletcher Jackson:

Yes, sir.

They specifically said — that they said that it would violate — I think the court in Near versus Minnesota said it would violate the — this —

Byron R. White:

Yes.

The court said that the decree here has advised (Inaudible) magazines are not so but it does not enjoin —

Fletcher Jackson:

Future issue, yes sir.

Byron R. White:

— future issues.

Or to the timemean the court held a hearing that has to be held before any order of (Inaudible).

Fletcher Jackson:

Yes, sir.

Fletcher Jackson:

That’s why they construed the Chancellor’s Decree.

They knew they couldn’t enjoin future issues.