Smith v. California

RESPONDENT: California
LOCATION: Approximately half-way between Santa Marta, Colombia and Miami. Florida (by water)

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: State trial court

CITATION: 361 US 147 (1959)
ARGUED: Oct 20, 1959
DECIDED: Dec 14, 1959

Facts of the case


Media for Smith v. California

Audio Transcription for Oral Argument - October 20, 1959 (Part 2) in Smith v. California

Audio Transcription for Oral Argument - October 20, 1959 (Part 1) in Smith v. California

Earl Warren:

Number 14 -- no Number 9 Eleazar Smith, Appellant, versus the People of the State of California.

Stanley Fleishman:

Mr. Chief Justice, and members of the Court.

Earl Warren:

Mr. Fleishman.

Stanley Fleishman:

Thank you, Your Honor.

The appellant in this case, if the Court please, was convicted and given a 30-day jail term for the possession in his bookstore of a hard covered book entitled, “Sweeter Than Life.”

The facts are undisputed.

There's no question, but that Mr. Smith owned the store and the book was, in fact, in the store.

The courts below, if the Court please, found that the book was obscene and being obscene, there were no First Amendment constitutional questions arising out of the fact that he was being punished for the possession of a book.

The courts below also took the position that the appellant had no right to introduce any evidence on the questions of "contemporary community standards" on what was being read generally, what was in bookstores generally and, what was the standards of the community concerning the discussion of sex in general and that similarly the impact of the book on average person was of no concern.

The court said that if the trial court, the appellate court that is say, said that if the trial court had used a standard that was less than what this Court set forth in Roth-Alberts, it did not matter, that the States were free to set a different standard, one which would reach more books.

And finally, the court held that it was proper for the municipality to take out all scienter that a bookseller could, without offending the Constitution, be found guilty even though he had not read the book and even though he had no notice of any kind that there was anything wrong with the book.

My colleague, Mr. Rosenwein, will discuss all of the problems arising out of the statute in terms of the elimination of scienter, and I will discuss all of the problems concerning the book itself, that would be points two, three, and four in our brief.

Our first point is that the book, “Sweeter than Life”, simply is not obscene.

To put it the other way that it is not the kind of a book that the States or the Federal Government can suppress or can punish a person for the possession of it without doing serious violence to the First and the Fourteenth Amendment.

Now we start, of course, with the Roth-Alberts decision and while much that the Court said there was foreshadowed by prior decisions I think there were two things that were done which were important and which afforded a great deal of protection or should have afforded a great deal of protection to all literature concerning with sex.

The first thing that the Court did was to say, and for the first time I believe, that sex and obscenity were not synonymous.

That sex was an important subject matter fully entitled to all of the protection that you would have if you were discussing politics, religion, or labor relations.

Now this, if the Court please, was a big step forward because the --

Felix Frankfurter:

You mean even up to that time it was doubtful whether any reference to relations between the sexes, any recognition of the fact that there are men and women in the world with any knowledge tells an obscene subject was theretofore to be?

Stanley Fleishman:

Theretofore, Your Honor.

I believe that the term, “dirt for dirt's sake” was equated by the trial court with the expression, “sex for its own sake.”

That you couldn't discuss sex for its own sake, it had to be enmeshed with other things.

You had to justify it.

For example, in the Times Film case which Your Honors had just recently, the City of Chicago, tried to suppress the film, “Game of Love” under a stand which says that if the purpose of the book was to arouse sexual desires, it was obscene unless it had sufficient merit, unless it had compensating value.”

Now in Alberts, it was put forward that we didn't have to justify the writing about sex.

That sex was not obscenity.

That you could talk about sex without having to say, “We want to wrap it up in another package.

We didn't have to justify it.

And this we think is the first important step forward and the second thing that this Court --

Felix Frankfurter:

Your calling it's true, Mr. Fleishman.