Smith v. California

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

DOCKET NO.: 9
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

Question

  • Oral Argument – October 20, 1959 (Part 2)
  • 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.

    Stanley Fleishman:

    Well, I hope it’s true, Your Honor.

    Felix Frankfurter:

    I said the falling, if that was true but this is a great big step of human emancipation.

    Stanley Fleishman:

    Well, it depends on —

    Felix Frankfurter:

    Don’t you think the majority has such?

    Evidently, they almost agreed to have different thought on the subject, didn’t they?

    Stanley Fleishman:

    Well, I don’t think that the Court can fairly look at the body of obscenity laws that existed before Roth-Alberts without recognizing that most courts took the position that the discussion of sex was something to be discouraged, and suspect.

    And that unless you could say, “Yes, it has sex but it’s justifiable because of the other notions there that a person with such a book was in trouble.”

    Felix Frankfurter:

    I wonder how much of the literature except technical scientific literature would be left in the world if that has been true.

    Stanley Fleishman:

    Well, this was part of what our problem was in Roth-Alberts.

    We were saying just that Your Honor.

    We were saying that too many books were under two bigger clouds.

    But we put that to a side in any event.

    Now this Court did say and I think for the first time, that sex and obscenity were not synonymous and then to emphasize the First Amendment aspect involved in any writing whether it’d be it by way of novel or educational work for material dealing with sex.

    And the second one is to say, that no book dealing with sex could there — hereafter, be found to be obscene unless it went beyond contemporary community standards and appealed to the prurient interest of the average normal person considering the book as a whole.

    And this Court again in terms of showing the narrowness of the new rule as the Court understood, it said the door could be opened only the slightest crack for any federal or state intrusion into this field.

    It couldn’t be left ajar and then in a series of papers shortly after Roth-Alberts, this Court gave depth and width to the rulings in Roth-Alberts.

    There was a (Inaudible) case dealing with the magazine which was found to be obscene by the two courts below unanimously reversed by this Court.

    There was one magazine, a homosexual magazine vying for homosexuals.

    The Ninth Circuit characterized it as cheap pornography, unanimously reversed by this Court.

    There was the Times Film case involving the film, “Game of Love” reversed by this Court I believe 7-to-2.

    There was Mount case where the court below sought to have a standard which was broader than what was involved in Roth-Alberts.

    There the courts below said that it could have offended the sense of decency, propriety, and morality that the work was obscene.

    The Solicitor General confessed error and upon remand the case went back to the trial court and the material which the trial court theretofore had found was obscene, on remand he said it was not obscene under the more demanding standard of this Court in Roth-Alberts.

    And then finally of course there was the Kingsley case just recently decided.

    The short of it is, we suggest Your Honor, that there is now the kind of limitation upon suppression of this kind of speech which is measured in large measure at least by the kind of material which was presented to this Court by the Solicitor General in the Roth case what he designated as hardcore pornography.

    This, the Court will recall, consisted primarily of pictures.

    It consisted of movies, and the cheap productions which were thought to have no ideas, no ideas at all and with all the deference I think that we must recall what it was that the Court had before it there.

    It was a statute only on its face that was being sustained within a framework of the Solicitor General saying that we don’t want to reach very much.

    All we do say is that we should be allowed to reach something and then giving to the Court the kind of thing that they thought should be reachable and only the kind of thing that should be reachable.

    Potter Stewart:

    That was the Roth.

    Stanley Fleishman:

    That was the Roth case, Your Honor.

    Potter Stewart:

    Now of course Alberts, the Solicitor General wasn’t directly concerned isn’t it?

    Stanley Fleishman:

    That is true, Your Honor.

    Potter Stewart:

    — in the State of California?

    Stanley Fleishman:

    But of course the opinion was a single opinion and applicable as to both courts.

    Potter Stewart:

    And only one member of the Court drew a distinction.

    Stanley Fleishman:

    That is correct.

    I think that at least on three occasions the Court has said that there was a single standard.

    That neither the Federal Government nor the State could go below this line in terms of suppression.

    Now we turn to the book.

    We turn to the book, “Sweeter than Life” and what do we find?

    I dare say that had this book come before the members of this Court or any tribunal, without the problems of a claim of obscenity, that this simply wouldn’t have been a question about it being a protected book.

    There’s nothing about the way it looks, feels, the way it’s printed, or the way it is written which suggests that it can be obscene under the demanding standards of this book.

    That the book has important ideas of it, it seems to us to be beyond question.

    For example, it has as a suggestion, that female homosexuality is not necessarily inherited.

    That it is environmentally caused and that you do well to look at the attitudes of parents and friends and events to understand this.

    It tells us that many people who are afflicted with this aberration seek to compensate by amassing money and power and the mistaken thought that this will overcome it or at least be a deficient-compensating factor and finally the book says that revenge on society because of such an aberration is foolish.

    Now, I’m not saying, and I’m sure that no one here would say that this is great literature, but how many of the novels that are put out today can go under the label of great literature nor certainly can the Court sit in terms of passing literary judgment upon a work.

    But here we have a book which has ideas, the importance of discussing the theme of homosexuality at this time particularly, cannot be denied.

    In England for example, the entire sexual code is undergoing a revision and having as its purpose the making of it lawful to permit voluntary partners of adults to engage in homosexual activity without offending the criminal code.

    And the American Law Institute in its model code has made a similar proposal.

    Now if the people are to act wisely, if we are to fulfill our part in terms of informing our legislators on how we fill upon this important subject, surely the subject as such must be open.

    People must be allowed to pick and choose and I don’t know how, a novel could be written about homosexuality which would be realistic and meaningful without depicting in some way, the fact that there are sexual relations between members of the same sex and that is, we submit all that we have here.

    In terms of the manner in which the sexual scenes or depictions were set forth in the book, I think that without pressing the point too much in this, as Mr. Justice Frankfurter has suggested, you wouldn’t have a novel.

    You can’t find a novel today that doesn’t deal and then deal in a great deal of particularity and candidness, with sexual events.

    And we suggest that in terms of depiction and representation, this book, “Sweeter than Life” is pallid, that books like Lady Chatterley’s Lover, to name just one although later, that these books go far beyond the book, “Sweeter than Life.”

    Magazines, even family magazines, Ladies’ Home Journal and the Cosmopolitan, they are apparently obsessed with the feelings on the discussion of sex, to say nothing of magazines like Playboy.

    But all of this, if the Court please, is what we had in mind when we said that it is contemporary community standards that we must look to.

    We should remember that there are films on the market now which weren’t on the market 10 years ago.

    There are films that are openly shown to everyone which would have shaken our society to its foundation, 25 years ago, but we’re here, we accept it.

    Stanley Fleishman:

    People look at it without shame, without morbidity.

    They consider it candidly and being able to see films, television, plays, novels, magazines, we submit it is just unconscionable to suggest that this book is obscene within this —

    Potter Stewart:

    By films do you mean generally released moving pictures that which meant by films?

    Stanley Fleishman:

    Motion Pictures such as the Lady Chatterley’s Lover or The Moon is Blue which was this Court’s concern in the Holmby case.

    There’s been a movement that I just said —

    Potter Stewart:

    I just wandered what you meant by the word, films.

    Stanley Fleishman:

    Yes.

    I’m talking about motion picture films generally exhibited.

    In terms, if the Court please, of the impact of sustaining a conviction in this case, we would like to point out that not only would this endanger literally thousands of books because if we’re right, that in terms of themes, description of representations, it is not distinguishable from thousands of books, that means that if Los Angeles can convict a bookseller for the possession of “Sweeter than Life”, it can convict him for the possession of, let’s say thousands of books and not just Los Angeles because if our municipality can do it, every municipality can do the same thing.

    And also it would re-open all of our problems of vagueness because if we say a “Sweeter than Life” can be obscene, then I decry this Court or any court to draw line that would be meaningful and understandable that would less-be-safe, kill-within-the-line and punish a person for the possession of it without killing thousands of books again, both on the vagueness point and in terms of the number that would be involved.

    So that our first point in this regard is that the book simply is a protected book and it does direct offense to the First and Fourteenth Amendment of the Constitution by permitting Los Angeles to punish this bookseller who is not pandering.

    There’s no question here of any special appeal.

    This book was sitting in a book stock shop, in a bookshop where there were thousands of other books, we say that that does grave offense to the First and Fourteenth Amendment.

    Potter Stewart:

    Is there anything in record that show what was the nature of thousands of other books?

    Stanley Fleishman:

    We reach now to our second point if the Court please, and that is we did try very seriously to introduce evidence on what we deem to be a crucial issue.

    This Court having given us a defense, namely, that if our book does not go beyond contemporary community standards it could not be condemned, we sought to avail ourselves of that defense and we brought in expert witnesses.

    We brought in for example the book review critic of the Los Angeles Times who testified that he read some 30 books a week.

    That he was familiar with contemporary community standards and who was about to tell the Court how this book compared with the books that were on the market generally and we were cut off and the trial court took the position that the book spoke for itself.

    It had to be measured only by what it said.

    It couldn’t be compared with other books and in this the trial court was affirmed by the Appellate Department.

    The Appellate Department went back to the old case of Wepplo which preceded Alberts and there it was said it doesn’t matter if there are the same books or sexually more provocative books on the market generally in the area.

    Whether the book is in the library is of no concern, all of this was ruled out both on the trial court and by the appellate court.

    In this we say we were denied due process of law, if the Court please, because certainly if we had evidence to present on an issue and if one of the issues before the Court was, does our book go substantially beyond contemporary community standards to deny us any opportunity, not just the opportunity by one way, but to deny us all opportunities to show that our book did not go beyond contemporary community standards, to show that our book did not have a substantial tendency to corrupt or deprave, to show that our book considered as a whole could be read candidly and openly by the people.

    That it did not appeal to a prurient interest, it’s denied to us, we suggest due process of law, and again it is denied to us free speech because unless we’re given the opportunity of presenting evidence on the fact that our book does not go beyond contemporary community standards a trier of fact who may not be informed about contemporary community standards may believe that our book is not constitutionally protected and punish a person for the possession, when in fact it is a constitutionally protected book.

    The trier of the fact here for example, Judge Pope, apparently was particularly concerned with the plot.

    He was disturbed by the notion that there was a woman who left her husband to take up with another woman.

    This bothered him.

    It appears that he was not familiar with the literature in this field.

    It’s no reflection upon and I wouldn’t expect him to be as well read as a book review critic, but surely he should have known before he passed judgment that there were hundreds and hundreds of books including hundreds of novels which dealt with this theme and which dealt with this theme as candidly, as openly, and as frankly.

    And that without this knowledge, the judge was unable to pass intelligently upon this question and in fact reached the book which had no basis and should not have been reached.

    Potter Stewart:

    Under the California law of the defendant could have been tried by a jury in this case, had he not waived, could he?

    Stanley Fleishman:

    We would have had the same problem Your Honor because —

    Potter Stewart:

    Did he wave the trial by jury?

    Stanley Fleishman:

    We waived the trial by jury.

    Potter Stewart:

    To which he would have had —

    Stanley Fleishman:

    We had the right and we waived the trial by jury in that case.

    I might say parenthetically though, Mr. Justice Stewart, that we have a problem in this type of case.

    There were originally 19 counts in this case, and there were many books.

    And if we had tried this case to a jury, we would have been there for a year because as it is and it shows up in the record, that the trial court took the book home and he read and he reread it so that we did have the trial for jury and we’re not making that point, I merely say that we sometimes buck in a situation such as we have here.

    Earl Warren:

    Mr. Fleishman, I understood Justice Stewart asked you if there is anything in the record to indicate the character of the other books in this bookshop.

    Stanley Fleishman:

    In this book shop, I do not believe so.

    Earl Warren:

    Yes.

    Stanley Fleishman:

    I had thought the question was as to the character of the books generally.

    No, in this bookshop there was no showing or an attempt to show that this book — this bookshop had anything but the normal kind of books that you would find in a Brentano’s or any other bookshop.

    There was no attempt to show that there was any catering to a special class or that there was a predominance of one kind of book over another.

    I do believe that it came out in the record that there were magazines such as Life, Vogue, and Cosmopolitan in the totality.

    He had thousands of books and magazines.

    It was a large bookstore.

    I think the police officers testified generally as to the character of the store.

    And it appeared to be good-sized bookshop, without any emphasis on any particular kind of material.

    Now the third point that we have raised and I will discuss is the standard that was utilized by the courts below.

    We have said that it was essentially a Butler, (Inaudible) and Patrick standard, however, you want to formulate it, but what seems clear to us is that the trial court took the position that he was essentially a thermometer.

    That he was there for the purpose of measuring the heat of the book.

    When we suggested that the test of this Court was it had to be the impact of a material on an average normal person, he said no.

    He said its average normal persons who determined the impact upon use in particularly susceptible persons and this came through again and again.

    He said for example that he was depressed by the reading of the book.

    We suggested that that may be, but how does that make it criminal?

    How does that prove that it goes beyond contemporary community standards that appeals to prurient interest and then he went off in the direction of well it depressed me because I may — I’m vaccinated.

    I’ve lived my life and we have to think of how it would affect the young and the unprotected.

    And it was this in this regard, I think, that the Court, the appellate court’s determination that it was free to fashion a standard, less demanding than this Court’s standard in Roth-Alberts must be understood.

    Stanley Fleishman:

    And it was interesting in another regard where the appellate court apparently tried to read out the notion of the book having to go beyond contemporary community standards before it could be reached as an obscene book because Judge David said that if the people wanted to they could give — they could redefine these words which are so commonly understood by the people.

    And by that I understood him to be saying that obscene has a meaning, an ordinary meaning and the legislature has not changed it.

    Our position was throughout the case that in effect this Court in Alberts had read into every obscenity statute at least the proviso that no books could be condemned as obscene if it did not go beyond contemporary community standards, if it did not appeal to prurient interest of the average person considering the work as a whole.

    Again it should be recalled that here the Appellate Department did not try to justify in any legal sense at least, the determination that the book was obscene.

    There was no discussion of the book when we suggested that the wrong test was applied.

    The Appellate Department said, “Well, it doesn’t matter.

    We’ll say it’s obscene under any test.”

    And then we had the problem of the easy labeling that Mr. Justice Harlan properly warned against in terms of just giving a stamp on it.

    So that we in effect and in truth, in this case, find ourselves with a defendant who was given 30 days in jail for having in his possession a book which has as its major crime, the fact that it discusses a theme of lesbianism and that it does so with some degree of realism and that is all.

    The crucial issue here it seems to me, is not so much whether the book goes beyond contemporary community standards or at least the issue below seems to be not whether it went beyond contemporary community standards, but whether it was good, whether it was right to have this kind of discussion going on and it was because the trial court felt that it was not good, because the trial court thought it was not right, that he found it to be obscene.

    Whether we think it’s good or bad though, of course has nothing to do with the matter.

    We may personally prefer one way or the other, but that is not the test and the test has to be under the appropriate test.

    If we were to apply this Court’s ruling in Roth-Alberts it would be manifest that this book is as far away from being obscene as one could imagine and still be up before this Court at least to have with the defendant.

    Earl Warren:

    Mr. Rosenwein.

    Sam Rosenwein:

    Mr. Chief Justice, may it please the Court.

    The other aspect of the case is the exclusion of all scienter requirements from the ordinance.

    The court below held that this statute was to be equated with those public welfare offenses which exclude all requirements of the intent or scienter and punish proprietors or individuals who have violated the law without regard to any question of intent.

    These public welfare offenses the court referred to dealt with the sale of adulterated food, the sale of dangerous weapons, the abatement of some public nuisances, the sale of narcotics, and so forth.

    After having reviewed those cases, the Court said, “And so with books.”

    And so the Court held that the — a proprietor of a bookshop could properly be convicted for possessing an obscene book even if he had no knowledge of the contents or the character of the book.

    The Court said, “Unless some higher court told it otherwise, they would not permit the proprietor of a bookshop with impunity to adopt that poetic phrase, ‘where ignorance is bliss, it’s folly to be wise’.”

    Now our position with respect to this statute or at least the issues presented are that the statute thus construed and applied tends directly to abridge, to invade the areas of speech and press that it creates as to an innocent person again those indefinite standards of criminality which were mooted in Alberts and Roth and bring all of the problems back once again.

    William J. Brennan, Jr.:

    What was the other (Inaudible) criminality of the decision (Inaudible)

    Sam Rosenwein:

    Guilty knowledge.

    William J. Brennan, Jr.:

    Guilty knowledge of what?

    Sam Rosenwein:

    Knowledge that the book is obscene.

    He would have of course first shown to have had knowledge of the contents and from that, inferences might be drawn, or proof would have to be made.

    At least, he would have to have the opportunity to say, “I was honestly ignorant of the contents and I did know that it was obscene.”

    That is what the Court ruled out, scienter is guilty knowledge.

    William J. Brennan, Jr.:

    Is the minimum at least as much taken through the reference?

    Sam Rosenwein:

    No.

    They’re not required to under the statute.

    Under the statute the Court has held —

    William J. Brennan, Jr.:

    No, I mean what I’m trying to — what you think the State should have to prove?

    Sam Rosenwein:

    I would say as a minimum they would of course have to prove that he had knowledge of the contents of the book.

    William J. Brennan, Jr.:

    In other words that he had read it.

    Sam Rosenwein:

    Had read it.

    Well as to that, I would say they sometimes prove that knowledge of contents or character more sometimes by admission and sometimes by conversations and things of that kind do occur but I think generally speaking that he had read the contents of the book.

    You were required two things actually, weren’t you?

    Knowledge of the contents of the book and further knowledge that based on his knowledge of the contents, the book was obscene and that he knew it.

    Sam Rosenwein:

    That is right Your Honor.

    Now of course it’s up to the State, one State have a provision for scienter, I would say in the event the burdens of proof were shifted, presumptions, rebuttable presumptions created that would be of course a different problem from a constitutional viewpoint.

    But when the State says we’re not going to permit you to even testify as to whether or not you are honestly ignorant, then we’re not going to require of any proof of any kind.

    In other words you’re the absolute guarantor of the sexual purity of the book.

    William J. Brennan, Jr.:

    Well there’s a record here, it seems he had no knowledge whatever of the contents, what is the record –-

    Sam Rosenwein:

    The record he — they prove nothing.

    They just put in the book.

    He took the stand and testified he’s a man of 72 years of age.

    That he had not read this book.

    He hadn’t read it for sometime as a matter of fact and he was in the business of buying books.

    He ordered generally from New York, from the east of circulars, new books, publishers, very often sent to him without an order if publishers do that.

    They just send books out and did what the normal bookseller does.

    Potter Stewart:

    Under your view a man who couldn’t read could sell anything with impunity is that right?

    Sam Rosenwein:

    Well, no, that isn’t quite accurate Your Honor.

    I mean there are different ways of proving guilty knowledge.

    I would say also and we would ready to concede that if there was a reckless disregard of the facts which a person should have known in some way I would say that that too might be included in the area of scienter.

    I thought the Court’s reference to a rule of conduct where ignorance is bliss, was really dealing with the person who was guilty, in other words, recklessly disregarding the facts.

    That isn’t the situation that we’re posing here.

    We’re dealing with a situation where the person admittedly is innocent.

    He has no intent.

    Sam Rosenwein:

    He just doesn’t have knowledge of the contents of the book.

    He’s in business of buying books, selling them and he has thousands of books in his shelf.

    William J. Brennan, Jr.:

    How do you raise that issue?

    Sam Rosenwein:

    Of — by motions, demurrers and so forth and all the way up to statement on appeal.

    This is the law.

    I don’t think there’s any jurisdiction in the law.

    William J. Brennan, Jr.:

    The right to a federal question.

    Sam Rosenwein:

    Oh yes all the way through.

    Now it’s — the first problem you have when you deal with an innocent proprietor of a bookshop is this.

    If you’re going to ask him, if you say to him, “Regardless of all the reasonable precautions you take, regardless of how much good faith you take in trying to determine, to get rid of and not have any hardcore pornography or obscenity in your shop, no matter what you do, nevertheless you will be guilty.“

    The inevitable tendency of that kind of a direction is to stop the flow of books because the books are either going to save himself — I better get out of this business entirely, or else I had better get as far as away from books dealing with sex as I possibly can.

    It, of course, becomes an awful weapon in the hands of police officials and of private censorial groups whom now can say to him, “Either this book gets off, or you’ll be spending in jail once a week at least.”

    Moreover, he’s not in a position.

    He’s the weakest in the whole hierarchy of people involved in the circulation of the press to defend the book.

    He can’t afford to take anyone particular book on.

    And as a matter of fact this Court’s decisions in virtually all areas of speech, press and assembly whenever appeal sanctions have been visited on an innocent person whether it was enjoining an alleged subversive organization that he knew nothing about, the inevitable tendency in all these cases is to immediately frighten people away from joining, immediately frighten them away from getting books, from speaking.

    And so in this case, too, there can be no doubt that this would be the inevitable result because he cannot.

    It is an absolute impossibility to read every single book and then having read the book to say, “Does this individual book appeal to the prurient interest of the average person measured by contemporary community standards considering the dominant theme of the book taken as a whole?”

    You have to do that as to every book.

    And if, as a matter of fact the test in the state court is perhaps not the same and there has been some differences as to whether it is or not, he must then say, “to be on the safe side, does the book taken as whole and measured by the average person and applying contemporary community standards, have a substantial tendency to corrupt and deprave him by arousing lascivious thoughts and lustful desires?

    I don’t think I have to press the point that no bookseller can possibly assume that burden, no person could.

    Potter Stewart:

    Now this what we have here is an ordinance of the municipality of Los Angeles?

    Sam Rosenwein:

    That is right.

    Potter Stewart:

    Alright.

    This California State statute is differently worded and does require scienter, is that it?

    Sam Rosenwein:

    That is right.

    Potter Stewart:

    But it doesn’t require, does it, that the State prove all these things you’re telling me?

    Sam Rosenwein:

    I think what Wepplo has decided that we’ve never been happy about it.

    I would like someday to talk it over again with the Court, but what it did say was this, “The statute requires a proof of lewd intent.”

    Now that maybe a little difficult to prove, but it, like everything else, is not entirely impossible.

    Sam Rosenwein:

    For example, if the cover of the book has a suggestive picture and a suggestive title, well that might at least make out a prima facie case which would then put the owners, the defendant to read by it and in the fact they — they suggested that lewd intent should be true.

    There is no doubt California has had this, a provision for over a hundred years and prosecuted these obscenity cases.

    I don’t have to tell your Court to say, “It’s sometimes successful because only two years ago Alberts was affirmed.”

    That was a 311 State conviction.

    Now —

    Potter Stewart:

    Would it be enough — would it be enough under the State’s statute if the seller or the bookseller was put on notice that there was a claim by the prosecuting officials that the book was obscene?

    Sam Rosenwein:

    Well, I imagine that under Wepplo it probably would be considered fairly well along the line and approved.

    We would argue I think that would.

    I think that to be candid I would I say I think it’s not enough to just say, “I think the book is obscene without something more to indicate a real knowledge and a real guilty knowledge of as for example, supposing the man said he was astonished in the light of that it’s being published today to have the police officer or the police chief say so.”

    But I think this would create questions of fact at a trial and the jury to properly determine whether or not scienter was there.

    That’s all that it amounts to.

    Potter Stewart:

    In other words under the state statute it would be incumbent on the prosecuting officials to give notice to the bookseller that this book of Mr. Smith in our judgment is obscene and unless you get it off your shelf we’ll have to prosecute you.

    Sam Rosenwein:

    It isn’t incumbent on them to do it that way.

    Potter Stewart:

    But that’s enough, is it not, or is it, to give him knowledge — guilty knowledge of the same thing.

    Sam Rosenwein:

    Under Wepplo that might be enough.

    Now the second point that we raise beside the invasion of the First Amendment rights or invasion of the free speech in the assembly is the fact that we have the problems once again that were up in the Alberts and Roth.

    Now in Alberts and Roth, you were dealing in both cases with situations involving scienter.

    The instructions had to be given to that effect in the federal court.

    We were up from the State of California Court on lewd intent.

    I don’t believe that there was any opinion that didn’t refer to the fact that this was catering, disseminating, pandering, forcing this material is out for, material on uninvited — on people who hadn’t asked for it much to their — almost like an assault.

    When Justice Brennan wrote his decision which he cited a number of decisions that dealt with the problem of vagueness, the argument was made that the statute was vague as defined and cited a whole group of decisions to show that was not so after the definition.

    Every one of those dealt with the intentional wrong-doing.

    The man who knows what he is doing.

    And as to such a person, he cannot be heard to claim that the statute is too indefinite and too vague, but what happens when you apply such a statute, construe and apply it to a person who’s honestly ignorant of the facts?

    Well in such a case, what you’re doing is setting up a standard that for a criminal statute, it seems to us, makes it once again too vague, too unfair.

    He doesn’t know what is or what is not the line?

    It’s all right to say to one who doesn’t know, who’s in the business, who’s catering, trying to exploit that prurient interest to say to him, “Well never you mind the innocent person you would always know what obscenity means.”

    But once you begin to construe and apply it to an innocent person, I think you will then reach that vagueness.

    And it is not a problem that has really been settled and I’m talking of the indefiniteness but only recently, the Nebraska Supreme Court invalidated its own obscenity statute under its own constitution after it had been asked to put the interest of the Alberts’ definition, this Court’s definition on its statute and after putting that impress on said, “We regret it still remains vague under our Constitution” and invalidated its own law.

    Certainly then as to an innocent person, we would assert that the statute — the ordinance here is also constitutionally in front.

    Sam Rosenwein:

    Now, if it be a question of balancing, if it could be said that well even so with all the inroads, nevertheless the State has an interest, a legitimate interest in protecting the public morals, I would, without attempting to cavil as to whether that is so or not safe, that in this case under this situation, it might be argued that it fairly minimal because as I said before, this is not the thrust, this is not the unwanted material.

    This isn’t even a newspaper on in front of your house everyday which you are always compelled to read.

    This is a book shelf where people don’t have to go in if they don’t want to.

    Therefore, the extent of corruption of public morals from an obscene book from an ordinary bookshop would seem to be fairly minimal.

    But admitting that there is some state interest, I would like to point out besides this definite, it seems to us inroads of the constitutional protection, the unreasonableness of the thing, the — the harshness and the oppressiveness of the thing that — that seems to us outweighs whatever alleged State interest there may be.

    In the first place, from the very nature of things, if this is a policing problem, let us say, the State – the municipality must say to it’s a bookseller’s, look here, we want some help on this question of obscenity.

    Now if few people will make a good faith effort, if you will honestly try to get rid of your obscene books, we won’t prosecute you.

    But here the State says, “We don’t care how much you try to get rid of obscene books no matter how much good faith you use, we going to treat you the same as any lawbreaker.”

    Now that doesn’t help to fight the problem.

    It seems to us it drives them in the opposite direction and that doesn’t seem to be a very reasonable thing to do.

    Now if there’s been an equation with public welfare offenses, but when I go in to buy a piece of meat, a pound of meat, I have no idea whether it’s tainted or not and I go home and jot it down and I’m absolutely helpless.

    The public is helpless in those cases.

    We have tons of books.

    We’ve entirely different situations.

    When I go into a book, I don’t rely on the books though.

    I don’t think very many people do.

    And if I may browse, I make my own decision.

    I take the book home.

    I may read part of it and discard it.

    I’m not helpless with respect to these books — book proprietor.

    I make my own determinations and the equation to other public welfare offenses which do not involve the important basic societal interest like free speech, it seem to us to be somewhat arbitrary.

    Moreover, there’s a stigma to be called a smut dealer, a merchant in obscenity and to have this put on an innocent man, seems to me to be a savage, immoral thing to do, under the guise of protecting public morals.

    It’s something you can’t eliminate.

    And as to difficulties approved, I would like to say this that since specially decision in this Court, that Connecticut, North Carolina, Wisconsin, and many a number of other states has all put in requirements of a lewd intent, of guilty — of guilty knowledge of scienter and have written, by the way the Supreme Court of Connecticut has just said that this they found a salutary provision in marking the line between due process, the procedural due process and substantive due process.

    The American Law Institute rejects any notion of a conclusive — conclusive presumption of this kind.

    California has followed it.

    In Ireland we called attention to a very recent decision in which this Court’s decisions in Alberts and Roth were all reviewed and special emphasis was placed on, in freeing a person charged with exhibiting an obscene and indecent show which was the Rose Tattoo by the American dramatist Tennessee Williams was placed on the intent, on the failure of any proof of intent as saving freedom of the press and speech.

    It’s there under a fairly different constitution which permits more inroads to speak than here.

    Potter Stewart:

    So the Connecticut decision you would agree.

    Sam Rosenwein:

    Yes it is.

    Sam Rosenwein:

    It’s the State against Sule and I think it’s on page 34 of course, in the index as well.

    And we point out in our brief finally that in California, the State has had this rule of proof of lewd intent for a hundred years and had no difficulty and as a matter of fact in many other areas in the field of bigamy, even with possession of narcotics.

    Under the State California Supreme Court rules, you have to prove possession of knowledge of the narcotic character and then there has been no difficulty in proving it in those cases.

    Nobody is an absolute guarantor and it seems to us that frankly on a case-to-case basis, there’s no more difficulty in proving knowledge or a state of mind which is being proved everyday as we know, then perhaps approving the receiving stolen goods and knowing that the goods were stolen.

    There are problems but they are met every day and there will be no reason why on the case by case basis, it could not be just as successful.

    And finally, if it’s immoral books they want, if it’s personal wrongdoers that they want, they should go after them and not make statutes so wide as to encompass absolutely innocent persons and create dangers for the exercise of press and certainly we reserve the rest of our time —

    (Inaudible)

    Sam Rosenwein:

    I wouldn’t know off-hand.

    I thought they have enough – I really don’t know, (Inaudible)

    (Inaudible)

    Sam Rosenwein:

    Oh but it’s not in the record.

    It’s not in the record.

    There is and we designate if he had asked a running with the law before but at the same time one or more (Inaudible) I would like to say this, Your Honor that in Los Angeles perhaps dealt with that periodically it seems to be every three or four years the police go through the department stores and make arrests for reasons that seems to take up but I think if you were to look into the history of Los Angeles see that every three years there’s a number of arrests made and there are a number of cases as to why (Inaudible) I don’t know, but on this record and this may not (Inaudible).

    Nothing is available, there’s no record, no offense or felony was sitting over the (Inaudible)

    Earl Warren:

    Mr. Arnebergh.

    Roger Arnebergh:

    Mr. Chief Justice and members of this Court, if it please the Court.

    First of all I should reply to one or two points that have been made here.

    It’s stated that the ordinance would result in closing many bookstores.

    I would like to mention and the record shows the court’s taking judicial knowledge over these municipal courts.

    That this ordinance has been on our books in Los Angeles since 1939 and it has not been amended in any respect that affects this, and we still have the great many bookstores in Los Angeles.

    With respect to the types of books that were sold, —

    Potter Stewart:

    May I ask you this?

    Roger Arnebergh:

    Yes.

    Potter Stewart:

    In this case, did the prosecuting officials had an option to proceed under the ordinance or under the state statute?

    Roger Arnebergh:

    Yes, Your Honor.

    We have an option.

    That was one of the points that is involved in the State is whether we should prosecute under state law or a municipal order — ordinance and it was held at — we have the right to prosecute under either as our municipal ordinance is more restricted than the state law which under our California Constitution within a chartered city we have the right to do.

    With respect to the type of books, I would like to state first this bookstore did have all types of books, but the significant thing is that as shown on pages 35 and 36 of the transcript of record this particular book and others — well this particular book was segregated in a section that juveniles were not allowed to enter and that the first duty of one of his clerks was to keep juveniles away from this particular section.

    Earl Warren:

    You cite that as there’s being an inference against the —

    Roger Arnebergh:

    No, I’m merely —

    Earl Warren:

    — (Inaudible) in his favor.

    Roger Arnebergh:

    I merely cited it in answer to a question that was asked and Justice Stewart asked of counsel.

    Earl Warren:

    I see.

    Potter Stewart:

    You don’t differ on your construction of the ordinance, don’t you?

    Earl Warren:

    No sir.

    Potter Stewart:

    You concede that it does not require any knowledge of the contents of the book.

    Earl Warren:

    Yes, we concede that very specifically.

    That is the — that is the primary distinction between a state law and our ordinances.

    We very definitely recognize that.

    And the dissent was based upon that distinction and the dissenting judge as did all the judges specifically found that the book was obscene, but the dissent was based on the fact that we could not make a more restrictive law than the state law and the majority held to the contrary and of course that is binding and it’s been a question of state law.

    Now directing our question to this distinction, between the state law and our ordinance, the question that’s definitely presented is guilty knowledge, a specific intent, a necessary element of a law prohibiting the sale of an obscene book.

    Now, it’s well established that the State may, in the exercise of its police power, provide that he who shall do a prohibited act, so do it at his peril and that good faith or ignorance is not a defense.

    That’s the first time that was specifically before this Court I believe as in the case Shevon versus Carpenter, a Minnesota case and I think these cases are pretty well cited in our brief and in the opinion of the Court.

    It’s been reaffirmed by this Court in many, many instances.

    It’s been argued here that the buyer may select the book himself and therefore he is under no hazard, but of course we also have laws prohibiting the sale of narcotics to a willing buyer.