Redrup v. New York

PETITIONER:Redrup
RESPONDENT:New York
LOCATION:Times Square

DOCKET NO.: 3
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: State appellate court

CITATION: 386 US 767 (1967)
ARGUED: Oct 10, 1966 / Oct 11, 1966
DECIDED: May 08, 1967

Facts of the case

Robert Redrup was a newsstand clerk at Times Square in New York, New York. In 1965, he sold copies of two pulp sex novels to a plainclothes police officer. New York City’s criminal court tried and convicted Redrup for selling obscene material under New York Penal Law. The Supreme Court of New York affirmed. Harlan Publishing, the producers of the allegedly obscene material, supported Redrup throughout his appeal.

William Austin owned a retail bookstore and newsstand in Paducah, Kentucky. A woman purchased two magazines from a salesperson in Austin’s store, asking for them by name –High Heels and Spree. Austin was tried and convicted of distributing obscene materials under Kentucky law. In aper curiam decision with one dissent, the Kentucky Court of Appeals overruled Austin’s appeal, finding no error in the trial.

Gent, Swank, Modern Man, Bachelor, Cavalcade, Gentleman, Ace and Sir, were allegedly obscene magazines distributed by W.E. Burnham in Jefferson County, Arkansas. The Jefferson chancery court found the magazines to be obscene under an Arkansas anti-obscenity law and enjoined their distribution. The Supreme Court of Arkansas upheld this ruling despite admitting error in jury selection and instruction. Writing for the majority with two dissents, Chief Justice Carleton Harris argued that the magazines violated the contemporary community values of Jefferson County, but that one magazine was entitled to appeal the ruling.”

Question

Do petitioners’ obscenity convictions violate their First Amendment rights?

Earl Warren:

Number 16, William L. Austin, petitioner versus Kentucky.

Mr. Fleishman.

Stanley Fleishman:

Mr. Chief Justice, members of the Court.

Almost three years to the date, a private citizen, a Mrs. Catherine Wolfen, walked into the Read More Bookstore in Paducah, Kentucky and ordered three books, two magazines rather.

She ordered four and she purchased two magazines the required title.

She then marched over to the McCracken County Court House and swore out a complaint in statutory language.

He said that Mr. Austin, the owner of the store, had violated the Kentucky Obscenity Law.

The basis of her charge was that purchase by her and her reading of the magazines in her conclusion based on no judicial standards that the magazines were in fact obscene.

The statute involved provides that any person who sells an obscene book or magazine, knowing the contents or character is guilty of an offense.

The statute also provides that any person who sells a publication found by the jury to be obscene is presumed to know the obscene character of the work.

Now the evidence against Mr. Austin is very simple.

Mr. Austin stipulated that he was the owner and operator of the bookstore.

Mrs. Wolfen testified that she had called up a friend of hers and said, “I’m going to make a buy at Read More come on down and be witness.”

And she made a buy. She stated that the magazines were in a rack behind the cash register and she’s testified that they were in this rack behind the cash register because a ministerial association had asked Mr. Austin to take them out of reach of minors.

And so, Mr. Austin to accommodate himself to this request took them and put them behind the cash register, where only a person who ordered the magazines by title could get them and where no minors could get.

The only other evidence in the case is the testimony of Reverend Simpson, a member of the Citizens for Decent Literature and the head of the Moral and Social Welfare Committee of the Paducah Ministerial Association.

He testified that he had asked Mr. Austin to come down to a meeting that the ministers had to discuss objectionable material.

At that time Mr. Austin told the ministers, that if they had any specific publications they thought were obscene to tell him and he would remove them.

And the ministers in effect said, “Get rid of all of them.”

That’s the sum in substance of what they say.

Potter Stewart:

But the ministers want to get rid —

Stanley Fleishman:

Get them — get rid of all.

Potter Stewart:

— of all the magazines?

Stanley Fleishman:

No magazines are contained any nudes at least.

That was the short of it and that’s what the state recognized in their argument, if Your Honor please.

In their final argument to the jury, they pointed out that in effect the ministers told them to get rid of Playboy now and forever.

Not just Playboy May but Playboy so that there won’t be any doubt about it and the language is clear.

This is the argument of the prosecutor to the jury.

They’re talking about Mrs.Wolfen as the censor.

I’m talking on page 86 of the record.

Stanley Fleishman:

In the first place, I don’t hold Mrs. Catherine Wolfen out as the censor of McCracken County. She is not.

Neither of the ministers the censors of the McCracken County and they have got no obligation to any person to go out and censor the material as on the stands in Paducah.

They recognized that fact.

That’s a dangerous situation but what did they do?

They had a meeting, two meetings, as I recall the testimony.

Potter Stewart:

With the prosecutor?

Stanley Fleishman:

With the prosecutor.

Yes, Your Honor.

The last one in May of 1963, and the objection on the part of the ministers was all of the material that he called adult reading.

They objected to it, all of it.

There weren’t going to specify this issue, that issue or some other issue.

They told him that they objected to all of it if they should, why if they have told him they object to the May issue of Playboy magazine.

All they would have to do is put on the June.

That’s what we have.

This is the evidence and all of the evidence upon which petitioner was convicted.

Now at the trial, the petitioner sought to show that he had a good faith belief that the magazines were not obscene.

He tried to show it in a variety of ways.

First, he tried to show that he tried to limit himself only to those magazines which had second class mailing privileges from the Post Office Department.

A magazine that has second class mailing privileges is presumed to be not obscene because the Post Office Department has no right to issue second class mailing privileges to obscene publications.

He tried to show that he couldn’t possibly read the 11 or 12,000 magazines that were in his store at all times.

He tried to show that for years he had been distributing exactly the same type of magazine over a four-state area, Tennessee, Kentucky, Missouri and Illinois.

He tried to show that this Court had found nudist magazines far more revealing than the two magazines involved.

But this Court have them to be not obscene and he tried to show that in the Paducah Library, there were books containing portrayals of nudes which were in every respect as frank and as candid as those in the magazines involved here.

All of these were totally excluded by the trial court and consistent with the rulings or with these rulings of the trial court.

The judge refused to give an instruction requested by the petitioner that if the jury found that he had a good faith belief that the magazines were not obscene, the jury should acquit.

It’s indicated the jury found the defendant guilty and the Court of Appeals refused to grant a motion to appeal with the Chief Justice dissenting.

So the first question we have here is the one left open in Smith against California is a good faith belief on the part of the petitioner that the books he handles himself are not obscene, a defense to a obscenity prosecution.

Now, we touch — it was touch upon in the last page but it does repetition, that there are two important considerations involved in the Smith rule.

The first one is that obscenity is defined by this Court is extraordinarily vague.

And if a bookseller faced with a very vague law can be held criminally liable when he believes that the publication is in all respect lawful.

Stanley Fleishman:

He either goes out of the business or he goes into a business where the risk is higher than in any other lawful business.

And we’re talking about bookstores where ordinarily we want to give maximum and not minimum protection.

The other alternative to going out of the business is to handle only cook books and even those aren’t so safe because there are so aphrodisiac books on eating.

Now, the respondent here advances three reasons for denying to the petitioner the right to defend on the ground that he had a good faith belief that the magazines in questions were not obscene and in justifying the trial court’s refusal to grant the requested instruction.

First of all, the respondent says that the evidence against petitioner is so conclusive, so overwhelming that nobody knowing the facts that petitioner knew could have — could have a good faith belief that they were not obscene.

Now what is this overwhelming evidence?

The overwhelming evidence is that the petitioner may have no one that he had in his store magazines which contain portrayals of nudes, that’s all and this in the face of untold holdings by this Court and other courts that nudity is not synonymous with obscenity.

The second reason given by the respondent is that petitioner couldn’t ask and expect to get the instruction on good faith belief because he said, he never read the books, the magazines in the first instance and so, the respondent argues.

How can he have a good faith belief that the magazines are not obscene without looking at them?

Respondent argues that before a petitioner, before a bookseller may claim the right to a good — to the defense of good faith belief that the material is not obscene.

He will have to take the stand and in effect incriminate himself.

That is to say the prosecutor wants him to get him on the stand and say, “I read the book so magazines.”

And then from that they’ll say uh-huh, he read the books and magazines and that’s proof enough.

And then the prosecutor respondent finally says that the instruction shouldn’t have been given because of Rosen against United States.

And that Rosen against United States indeed means that the good faith belief on the part of the bookseller that the material he sells is not obscene is irrelevant.

With all due respect, we suggest that the Rosen case should not be controlling here.

First of all, Rosen was decided, it’s almost 70 years now, at that time when there were no First Amendment considerations involved or implicated.

Hugo L. Black:

It’s a federal case.

Stanley Fleishman:

That was a federal case, Your Honor.

Yes.

Hugo L. Black:

How do you say that there was (Inaudible)?

Stanley Fleishman:

Well, none were raised and none were discussed.

The entire case was treated as if the First Amendment had no application.

I think it might have been argued and discussed in a different fashion but as it was handled.

It was no First Amendment considerations were brought to play nor considered in the case.

Secondly, Rosen of course was decided the time when Hicklin controls.

Now, a determination of obscenity under Hicklin is quite different from a determination of obscenity under Roth, Alberts as expanded by the various cases of this Court.

Under Hicklin everything was intuitive.

There were no outside considerations if person look at something that he didn’t like it or he thought it might offend the most susceptible person that was it.

And the fact is that at the present time it is simply irrational to assume or as previously been discussed that a person who reads the book or reads the magazine knows merely from the reading that the publication offends the obscenity law.

Stanley Fleishman:

That is to say that from reading it one would know that it goes beyond customary limits of candor, appeals to prurient interest, and is utterly without redeeming social importance.

Mr. Justice Stewart pointed out earlier, if members of this Court have good faith and honest disagreement among their selves with regard to whether a particular book is or is not obscene.

Surely that in itself proves that there is room at least for honest difference of opinion with regard to persons who look at the material and reach contrary completions.

As indicated, the Kentucky revised statutes provides in 43600 subdivision 4 that the sale of a publication found by a jury to be obscene is presumed to that the seller is presumed to know that it was obscene.

Hugo L. Black:

(Inaudible)

Stanley Fleishman:

Statute?

Hugo L. Black:

(Inaudible)

Stanley Fleishman:

Thats the mere sale, the mere sale without knowing the contents of the publication that is to say in this case, merely because the two magazines were sold that brought the presumption into being and under the statute.

He was presumed to know of the obscene character of the work.

Now in the face of this presumption, the petitioner sought to adduce evidence to negate it.

He certainly was putting on evidence which was relevant to his good faith.

It is, Justice Harlan, indicated in the Smith case, a defendant has the right to put on evidence showing that a work doesn’t go beyond customary limits of candor on the issue of obscenity.

Then he has a light right, we respectfully submit to put on evidence to show that the hidden belief the material is obscene which is what he sought to do in all of which was totally excluded so that on that constitutional issue of scienter.

There was a totally exclusion of evidence.

I should point out as we have in our reply brief that after the case here and effective June of this year, Kentucky repealed the statute and amended and enacted a new law and specifically found or in these new statutes, specifically sets the standard as knowledge of obscenity.

That is to say under the law in Kentucky as it is exists today, a person who sells a publication found to be obscene must — the prosecution must prove beyond the reasonable doubt that he had knowledge that the work was obscene and the statute as it now exists has eliminated the presumption which was working against the petitioner in the case at the time that he went to trial and at the time that he was convicted.

Hugo L. Black:

Well, all this included evidence on the (Inaudible)?

Stanley Fleishman:

I think not, Your Honor.

I believe that the excluded evidence was offered on both issues because for the most thought it bore on both the issue of whether the publications were obscene and also bore on whether he had a good faith belief that it was not obscene.

There was some evidence however which would have been directed solely at his good faith belief that it was not obscene.

That was the evidence where he sought to show that he could not possibly have examined the 11,000 or 12,000 publications that he had in his bookstore at all time.

That was excluded and I assume that was directed solely to the question of scienter.

But the other evidence, the broad sale of Playboy magazine, Rouge magazine, and others which the petitioner said were all about the same as the two magazines involved his evidence with regard to the second class mailing privileges enjoyed by these magazines would have gone to both of the issues.

Potter Stewart:

Now, what sentence did this man get from that?

Stanley Fleishman:

He received a sentence of $250.00.

Potter Stewart:

No jail sentence?

Stanley Fleishman:

There was no jail sentence in this case, Your Honor.

Now, there is — I think a consideration here that Your Honors ought to give weight to.

In the case of Bantam Books against Sullivan, this Court was very anxious to see that a bookseller or a distributor not suppressed books when those who were operating were doing so outside of a judicial framework and not consistent with — not consistent with legal standards.

And so it was that the Rhode Island Commission on Morality which was sending out notices not to distribute this or not to distribute that was found to be offending the Constitution and the effect of these notices was seen and recognized in the Court when the distributor in Rhode Island sees distributing each and every one of the books and magazines and there were 106 of them which the Rhode Island Commission condemned.

Stanley Fleishman:

This Court was pointed out that in this fashion — in this fashion much material which was constitutionally protected was being suppressed.

Now turning to this case —

Hugo L. Black:

(Inaudible)

Stanley Fleishman:

Mr. Austin was faced with a problem.

There was a psychological warfare going on Paducah, Kentucky three years ago.

Mrs. Wolfen was coming down to the bookstore and making purchases regularly, twice before this faithful day.

She had made other purchases of magazines, twice.

Mr. Austin was called before this ministerial association.

Now he had a choice to make. He either could say, I vow and I take everything out of my newsstand or he should say, as I understood this Court was encouraging distributors to say in the Bantam Books case, there shouldn’t be suppression of material which is not obscene.

He made his judgment that these magazines were not obscene in law.

He tried as a businessman to accommodate himself to the pressures that were put.

But if he has denied the protection of the law under this circumstance and he can be branded a criminal because he didn’t vow totally to the pressures that were put, then we will have more suppression, far more suppression than was have put Bantam Books against Sullivan.

And I will say that if Mr. Austin is a criminal for having had sold and he didn’t do the selling, it was his clerk.

If he is a criminal because they were sold in his bookstore, these two magazines which are no different from any number of magazines which are circulating throughout the country today and continuously, then every bookseller and every wholesaler in the United States of America is today a criminal.

And I do not believe that the law can be such that we either disregard all this criminality or that we end up with the kind of suppression that is inherent in this conviction.

The only way, we respectfully submit, that the bookseller can have any confidence in carrying out his business in a lawful way is to receive the kind of legal protection that was promised in Smith and the promised has not been fulfilled.

At least in Smith, the thought was apart in around that a bookseller who had a good faith belief that what he was doing was lawful could not be made a criminal.

We are aware of course of the problems that are always pointed to in terms of, if the prosecution must prove beyond the reasonable doubt that the defendant knew that the work was obscene that there would not be many convictions.

Nor should that be.

The number of convictions that are coming out in the United States of America today for selling books is astounding.

Hugo L. Black:

(Inaudible)

Stanley Fleishman:

I have not collected them.

I have received however a report from the Citizens for Decent Literature that it seems to have collected them and they run into the many hundreds, many hundreds —

Potter Stewart:

Annually?

Stanley Fleishman:

Annually.

Yes.

Its fright — it’s really frightening what is going on with regard to these new standards that have been coming out in this field of obscenity.

But the problem is not really even to have to tolerate material with society has a legitimate right to suppress.

There are other weapons available.

We are familiar with the fact that there are in rem proceedings where material which is thought to be obscene can be suppress without criminalizing an innocent man for selling it.

Stanley Fleishman:

And while this is a great evil to have this kind of prior restraint as Mr. Justice Black indicated in the Ginzburg case, it’s less of an evil than sending man to jail for 25 years or 10 years or 5 years.

I reserve the rest of my time Your Honor.

Byron R. White:

Do you want to say —

Stanley Fleishman:

Yes.

Byron R. White:

How do you feel that (Inaudible)?

Stanley Fleishman:

Under the limited —

Byron R. White:

(Inaudible)

Stanley Fleishman:

Under the limited grant of certiorari, I think we have to assume that it’s obscene, although, I’ll tell you quite frankly that they are not obscene the magazines.

They are simply are not but —

Byron R. White:

Suppose that (Inaudible) do you think whether if he tries to (Inaudible)?

Stanley Fleishman:

It has a bearing of course, I believe that there are some materials which would be so very powerful that he denied by a person who read it that he thought it was not obscene would not be given great way.

On the contrary, —

Byron R. White:

(Inaudible)

Stanley Fleishman:

You take a Playboy Magazine and if he says, I really think Playboy is not obscene.

I’ve been fine to think that we’d all agree with him at the —

Byron R. White:

(Inaudible)

Stanley Fleishman:

In this case, I don’t believe so.

I think that there are answers sufficient in our case but in any case surely to go the scienter.

You have to know what’s involved.

I think our case because we really raise questions of instructions for the most part.

We’re in a position to get a ruling to here because what if we have ask for an instruction of the Court saying that, if you find that the defendant had a good faith belief that it was not was obscene then acquit.

We believe we’re entitled to that instruction in any case no matter how rough the material may be, the defendant should always have that instruction.

The jury may not think much of his defense but he ought to be — have that defense available to him.

I reserve the rest of time, Your Honor.

Earl Warren:

Mr. Browning.

John B. Browning:

Mr. Chief Justice, may it please the Court.

The Kentucky statute prohibiting the sale of obscene literature as an old one originally acted — enacted in its present form in 1894.

But without any express requirement of scienter until the year 1962 which time the Kentucky legislature amended it to specifically require proof that the defendant had knowledge of the contents or character of the material which he sold.

That Kentucky statute with the scienter requirement placed in it in 1962 has been construed by the Kentucky courts and the authoritative construction placed on it by the Kentucky courts must be considered to be the instructions given to the jury by the McCracken Circuit Court.

Sends on appeal to the Kentucky Court of Appeals, the conviction of petitioner was affirmed and there was no opinion.

John B. Browning:

There are highest appellate courts simply stating that, we find no error in the case.

Therefore, if we are concerned with instruction given the Kentucky statute by the Court of Kentucky, we must go to the principle instruction given to the jury and the McCracken Circuit Court.

Now, that principle instruction, number one, is that the jury must believe from the evidence in this case beyond the reasonable doubt that the defendant as the owner and an operator of Read More newsstand did on the 28th day of September 1963.

At said place of business knowingly have for sale these two magazines and further that the defendant had knowledge of the contents and the character of the magazines.

I submit to you that this statute in Kentucky as construed by the Kentucky courts and this principle instruction to the jury below required first that it be found by the jury from the evidence beyond a reasonable doubt that the defendant knew the magazines, these two magazines were for sale at his store.

And secondly, that he knew the contents of the magazines.

And thirdly, that he knew the character in the magazine.

Potter Stewart:

It was said, contents or character?

John B. Browning:

Mr. — but for Mr. Justice Stewart, the statute provides that it is required to be proved that he had knowledge of the contents or character.

Potter Stewart:

Yes.

John B. Browning:

I am speaking of the construction authoritatively placed on a Kentucky statute by the Kentucky courts.

Potter Stewart:

But where are you in the record?

Where is this page?

John B. Browning:

I am on page 109 in the record and I am referring to the principle instruction given to the jury in the McCracken Circuit Court.

Potter Stewart:

Was there an instruction given to the jury on presumption that was in the Kentucky —

John B. Browning:

There was none whatsoever.

In this entire record, there is not one reference of any sort to a statutory presumption it was never used, it was never involved in this case.

The jury was not instructed concerning any presumption, counsel did not say a word about it in the argument of the jury.

It is not brought out or mentioned anywhere in this record.

All that you can say is that you have in the statute.

It was not involved, construed or applied in this case.

And I submit while we are on that point and under the authority of United States versus Raines.

This Court cannot consider the constitutionality of the statute in a vacuum where it has not application to the case at hand.

Mr. Justice Stewart have you found the instruction —

Potter Stewart:

I have.

John B. Browning:

— which i refer.

You will note —

Potter Stewart:

The contents and the character of said magazines.

John B. Browning:

That’s right.

Potter Stewart:

Now what do you suppose the — what do you understand by the meaning of character?

Potter Stewart:

It’s something different from contents of?

John B. Browning:

I understood character for mean the obscene character of the material.

This is my understanding.

I was under the impression that this Court previously had required only knowledge of the contents, if this was sufficient on scienter.

If according to Michigan, I am mistaken in that conclusion that my personal conclusion.

I am arguing here or not what I conceive the Court is free these opinions to be.

But what the lower court in this case actually gave which was more than I thought it was necessary.

Namely, that they must find that he knew the magazine where at his store that he knew the contents and further, thirdly that he knew the character of the magazines.

I construe character, personally to mean knowledge of the obscene character.

Abe Fortas:

That part it didn’t —

John B. Browning:

But what —

Abe Fortas:

— it doesn’t say that, does it?

John B. Browning:

It does not.

But I was asked the question, what do I didn’t think about it?

Abe Fortas:

Now, as compared with what follows in the instruction.

I didn’t say the jury might have found — might have thought that Mr. Austin thought that these were purely magazines and that so far would be a defined as to character of the magazines.

But that’s quite different from the instructions with the effects of the theory of the jury itself.

Because the jury itself in the next succeeding phrase was defining that the magazines or either of them are obscene and of an indecent character.

John B. Browning:

Of an obscene or indecent character?

Abe Fortas:

That’s the jury which the jury defined.

The jury —

John B. Browning:

Yes.

Abe Fortas:

— has that to ask what then follow if they so understood the instruction to — for them to ascertain from the knowledge of the character of magazine?

John B. Browning:

Well, I would still say that it looks like it could be the obscene or indecent character.

Perhaps, I simply don’t understand the question.

I’m pointing out the instruction here as the authoritative construction given the Kentucky statute by the Kentucky courts and I believe, I’m arguing that this construction meant with the Kentucky statute satisfied Smith versus California and that it required all of these points on the issue of scienter.

I will proceed then to argue that the Commonwealth’s evidence in chief made this case and authorize submission of this to the jury.

And it was certainly not submitted on any statutory presumption but the Commonwealth’s evidence in chief made the cases as far as scienter was concerned.

It was shown that just a few months prior to the particular sale in question.

The petitioner met with several ministers representing the Committee on Moral and Social Welfare of the Paducah Ministerial Association.

John B. Browning:

They talked to him about obscenity in general and in particular about this particular class of magazines known as girlie magazines.

They made known to him specifically complains which the ministers had been receiving from the public in general concerning the sale of these magazines.

And they discussed their obscene content in general with him.

As a consequence of this, he went back to his store and personally collected and segregated 25 to 30 titles of girlie magazines and put him on the rack behind the cashier’s counter and he stapled them to prevent them from being leak through.

He put them back there expressly because he considered them to be adult reading only and he knew thereby that they had a prurient interest appeal.

This was sufficient to show that he knew or should have known the contents of the magazine.

Now what about this so-called defense of honest belief that there were not obscene?

We contend that that defense was actually was not raised in this case.

He was not entitled to any instructions.

I refer the Court concerning Kentucky procedure on instructing juries in criminal cases to Stanley’s authoritative three-volume work on Kentucky instructions to juries’ volume 3 Section 771 pages 15 through 18.

The subject to that Section is special affirmative defenses.

Now, I have stated there that it is a matter of Kentucky law if the negative of the principle instructions to the jury sufficiently covers what the defendant is raising then he is not entitled to a separate instruction.

The time when he is entitled to an affirmative special defense is when he pleads at — he pleads by nature of confessions and avoidance.

In other words he says, I will admit to the many of the things that you charge with me but I will avoid the application of the penalty on a separate defense which I am raising here.

This was not a confession and avoidance case.

The defendant here did not testify that of course I knew these magazines were there.

I — I was familiar with them but I did not believe that they were obscene.

He testified that as to one magazine he had no knowledge of the existence of such a publication.

He never heard of it, never knew of it.

How can a person in that situation say that I never knew of the existence of it and yet, I have formed a reasonable belief that it was not obscene?

He could not have, he did not say so.

At no time during his trial that he say that he had formed a reasonable belief that they were not obscene.

His counsel in arguing the case for the jury, there we should find the counsel harping away on the idea that this man reasonably believe and had a good faith believe that — belief that these magazines were not obscene.

Counsel said only on page 82 of the record.

He said only this, “here isn’t a word of proof in this case.”

Mr. Austin knew that these two magazines were down there.

So let — let’s face it, what was his defense in this case.

Simply that he did not know the magazines were there.

There with it —

Potter Stewart:

Its pretty clear that the instructions to the jury were erroneous, isn’t it?

John B. Browning:

No, sir.

I — I don’t agree with that.

Potter Stewart:

Well, he doesn’t say a word about the necessity of a material being not only without regaining social importance.

John B. Browning:

I — I think that the concept of — in the concept of obscenity it is implicit that the material is without regaining social importance.

Potter Stewart:

Or it doesn’t say a word about that with the jury, does it, as a necessity of what the jury has to find in order to find the people?

The jury was obscene —

Byron R. White:

(Inaudible)

John B. Browning:

This is my understanding —

Potter Stewart:

No, I’m just asking about it.

Isn’t it very clear that the instructions to the jury are erroneous?

John B. Browning:

I — I certainly don’t concede that they are erroneous.

No, sir.

I believe to find —

Potter Stewart:

Well, it did say a word about the — is there a word about the necessity of the material being utterly lacking any redeeming social value?

John B. Browning:

I cannot recall but I heard review of the instructions again that this is in —

Potter Stewart:

I’m going over very slowly and deliberately.

I can’t find anything.

John B. Browning:

Alright sir, I’ll agree with you in it.

Potter Stewart:

But not in instructions?

John B. Browning:

If not in the instructions.

But I don’t concede that that makes the instructions totally erroneous.

Potter Stewart:

But no, just erroneous.

John B. Browning:

I don’t concede that it makes the instructions erroneous, I disagree with you there.

But I did not believe that certiorari being limited here embrace the questions of the propriety of instructions to the jury.

Potter Stewart:

What’s the — is it constitutional question in constitutional case?

John B. Browning:

But the instructions in other facets here were sufficient to indicate that this material must be without redeeming self importance.

Potter Stewart:

What?

John B. Browning:

Let’s say the instructions taken in the whole imply that that if all these factors were believed to be true about the magazines they must be without reading themselves.

Potter Stewart:

I know it’s important.

I just can’t find that here — the only instructions that are on page 109 to 111?

John B. Browning:

That’s correct.

Potter Stewart:

Thank you.

John B. Browning:

The defense here, as I will take the trouble to repeat was certainly not that he has a reasonable belief the magazines were obscene.

The defense is very simply.

He did not know that they were there.

If we believe that it is perfectly true that he didn’t know it and certainly should have known it.

The particular class of magazines were complained to him.

His attention was pointed out that to him.

His attention was called to them. He personally collected 25 or 30 of them he knew what it seems a category of girlie magazines whose sales should be limited to adult and he put them on this counter and rack behind the cashier’s counter.

And if he says that he didn’t know they were there.

He should have known.

There is no reason why it could not have taken the trouble to scan the small group magazines.

To see for himself what was in them and to select from among them those which he thought could be sold and which cannot be sold.

Then —

Is there any (Inaudible)?

John B. Browning:

Mr. Justice Harlan, there is evidence of course that he was a wholesale news distributor and that he first got the books as a wholesaler and then that he distributed them to his Read More News retail stand.

(Inaudible)

John B. Browning:

That’s right he supplied the books to himself in this case.

And as far as being able to keep the books out of his retail stores since he was supplying the books to himself possibly could have done that.

He cannot have display them for retail sale.

How long the operation began?

John B. Browning:

He says that the in his Read More News Story, he handled approximately 11,000 titles a month, 4,000 paperback books paying there titles, 4,000 hardbound books, and 3,000 magazines.

Never before in most cases (Inaudible)?

John B. Browning:

In his wholesale nude distributorship.

He had five different locations.

Here in the City of Paducah, he had only one retail new store and the magazines of course were purchased at this Paducah retail newsstand.

The magazines on which the prosecution was based.

I think he said at his Read More newsstand handle 11,000 titles each month.

This is an impressive figure and he says that it tried to say that as a conclusion which could not be called for at which humanly impossible for anybody to read what was in those 11,000 titles and we submit that he didn’t have to read everything in his store.

All in the world he had to do was to take the trouble to scan briefly the 25 or so magazines that he himself had put behind the cash register.

John B. Browning:

We’re not suggesting that he read 11,000 titles and it wasn’t necessary to do so in this case.

The only reason that I asked the question, I wanted to just go and make that 11,000 titles a month, to have other location.

John B. Browning:

I think this is what his testimony was.

I thought myself with that was quite an excessive number but that appears in the record as his statement.

He was asked, “How many – tell how many volumes or how many different magazines in a month you have at Read More, this Read More stand you’re state intact.

Byron R. White:

(Inaudible)

John B. Browning:

I am reading from page 30.

He was asked, “Tell us how many volumes or how many different magazines in one month you handle at Read More.

This is just at Read More stand.”

Answer, “You’re speaking of titles Mr. Williams?”

“Yes, sir.

Titles.”

Well, it buries, I would say there is 3,000 titles on sale at all time of magazines and approximately 4,000 titles of hard books, and 4,000 titles of paperback books in all about 11,000 I would say.

11,000 titles that is one Read More retail newsstand a month

Byron R. White:

Read More — (Inaudible)

John B. Browning:

I will if I had time.

I see that I will do so.

Yes, sir.

He first tried to introduce these trial six Paperback books, Lady Chatterley’s Lover and others.

These matters were not introduced at all to show scienter.

They were introduced as tending to show contemporary community standards.

The six Paperback books, he never testified that he had read these books or was even familiar with them in anyways.

So how could they have born on scienter?

He offer to introduce items from the Paducah Public Library taken from museum of modern art productions taken from a book on Greg Sculpture and taken from U.S. camera annual issue photographic magazine.

Once again, he did not testify that because these things showing nude form when a Paducah Public Library.

I reasonably believe that these two magazines were not appeal.

He didn’t say that at all.

They were introduced to show that the betrayal of the nude form could be found in books certainly regarded as acceptable in the Paducah Public Library, but it did not bear on scienter.

Hugo L. Black:

Now, the other question is(Inaudible)?

John B. Browning:

On the question, whether the books are obscene or not?

Hugo L. Black:

Did he offer — do you offer (Inaudible)

John B. Browning:

It — well I would say, I don’t think he offered it on scienter at all.

I think it was offered entirely on the community — contemporary community standards.

They were not comparable in material in any sense.

They were — they were certainly far different from these magazines here.

They — it should not have been offered an evidence.

It was irrelevant —

Potter Stewart:

So it was not for the jury to determine?

John B. Browning:

No, it’s for the judge to determine whether the evidence is admissible or not.

Potter Stewart:

That’s the whole point that would said that for which he was offering him for the jury to determine whether or not they were comparable.

Am I mistaken?

Hugo L. Black:

The judge wouldn’t let any evidence of being established at all.

John B. Browning:

Well, I’m just arguing that the judge was correct in his ruling because comparable materials should at least be similar in content and style and form to what is in issue.

We have two magazines on trial here.

Hugo L. Black:

This is where (Inaudible).

John B. Browning:

But it should not be admitted, I submit to this Court.

If it’s not comparable in any sense in content or style or form to what’s on trial.

Why bring in material that doesn’t conform if not similar to what he is being prosecuted for and try to say, look here, the public biases been accepted.

Earl Warren:

We’ll recess now Mr. —