Smith v. United States – Oral Argument – December 08, 1976

Media for Smith v. United States

Audio Transcription for Opinion Announcement – May 23, 1977 in Smith v. United States

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Warren E. Burger:

We’ll hear arguments next in 1439, Smith against the United States.

Mr. Smith, and I think you may proceed when you’re ready.

Tefft W. Smith:

Mr. Chief Justice and it may it please the Court.

My name is Tefft Smith representing the petitioner, Jerry Lee Smith.

I wish to reserve five minutes for rebuttal.

This case concerns the proper relationship between federal and state law in the obscenity area.

Petitioner submits that this case can be simply disposed of and the constitutional issues avoided by the logical interpretation of the federal statute as being intended to support state policy and thus as incorporating the state law definition of obscenity in the circumstances of this case.

The petitioner, Jerry Lee Smith was convicted by a jury in the Souther District of Iowa and sentenced to six months imprisonment under the federal statute proscribing the mailing of obscene matter.

He was convicted for mailings which took place solely within the State of Iowa.

These mailings were lawful within Iowa.

Iowa law permits the distribution of all sexually related material to Iowa adults prescribing solely the distribution of certain specified materials to minors.

The case here involves no distribution to minors.

The distributions involved were made exclusively to postal inspectors who directly solicited the material.

Hence, these distributions were totally permissible under the law of the state in which they took place.

At trial, the Government offered no evidence of any contrary standard.

Nonetheless, the Court permitted the jury to determine for itself what were the community standards.

We submit this was error.

The federal statute should be construed in the present circumstances as incorporating Iowa law as the measure of obscenity.

That statute precludes as a matter of law any finding that the materials involved here are obscene.

Harry A. Blackmun:

Mr. Smith, you represent not only this defendant but also an amicus here, don’t you?

Tefft W. Smith:

Yes.

Our firm represents the American Library Association which has filed an extensive amicus brief in this case.

But I am here speaking on behalf of the petitioner himself and my argument is directed to the petitioner’s position, although I am prepared to discuss of course the — the amicus brief.

Harry A. Blackmun:

Where you get a one-two punch when you do this.

Tefft W. Smith:

Well, that’s one of the advantages, yes, Mr. Justice Blackmun.

Thurgood Marshall:

Well then you’re not really a friend of the Court, are you?

Tefft W. Smith:

I am here representing Mr. Jerry Lee Smith, the petitioner here.

Thurgood Marshall:

So his — his law firm represents the amicus curiae, I don’t say you can do that.

Tefft W. Smith:

Well, Your Honor, I think it would be —

Thurgood Marshall:

I — I understand amicus curiae to mean that I have no interest in the case itself, but I want to see the Court do the right thing.

Tefft W. Smith:

Well, Your Honor, as you will note from the briefs, the amicus brief was prepared by Mr. North and that I had the principal responsibility for preparing —

Thurgood Marshall:

Is it the same firm?

Tefft W. Smith:

It is the same law firm, yes, Mr. Justice Marshall.

Thurgood Marshall:

And it’s on the brief, it says that.

Tefft W. Smith:

That’s correct.

Thurgood Marshall:

Do you — have you ever seen it before in this Court?

Tefft W. Smith:

I’m not certain that I have ever, Mr. Justice Marshall.

The federal statute here at issue was enacted in 1873.

The statute was enacted with almost no debate, it contains no statement of purpose, and it provides no definition of what is obscene matter.

The statute has subsequently been reenacted on a number of occasions but it has never been significantly revised, substantially debated, and no definition of the meaning of obscene matter has ever been provided.

Instead, the Congress has left that matter to judicial resolution by this Court.

This Court in the Miller decision and those that have followed has firmly stated that the issue of obscenity is one of local concern, not national concern.

Within the traditional state jurisdiction, the Court has rejected any need for national uniformity in this area and stated that the obscenity or non-obscenity of materials should be measured by contemporary community standards within the community in which the distribution has its effect.

In that the state legislatures are institutionally the voice of the people for setting community standards, the Court has recognized that the individual states have considerable latitude in determining what their community standard shall be.

Indeed, the Court has expressly recognized that states have the option of doing precisely what the State of Iowa has done here.

William H. Rehnquist:

Mr. Smith, what if the Iowa legislature by a rather large vote had passed a counterpart of the federal statute and the Governor had signed it, but the Supreme Court of Iowa had held that it violated Iowa’s Constitution.

What would your position be in that case?

Tefft W. Smith:

In that case, I believe, Mr. Justice Rehnquist that the situation would be that there had not been as enacted through the governmental structure of Iowa, a statute which expressed the intent of the State Government which gives the repository for the declaration of society’s values to have obscenity proscribed within the state.

And in those circumstances, the remedy for the disagreement that any — that the community and the legislatures would have in those circumstances would be the ballot box.

William H. Rehnquist:

So, then your — your argument doesn’t depend on the fact that a majority of the people in Iowa may not agree with the federal statute?

Tefft W. Smith:

That’s correct, Your Honor, because a majority of the people within the State of Iowa speak through their elected representatives.

Warren E. Burger:

Suppose that your hypothetical person in that situation took the material which had been declared permissible in Iowa by virtue of the State Supreme Court’s action.

It took them over to Illinois and exhibited them.

Would he be subject to prosecution in Illinois, assuming that it was forbidden there?

Tefft W. Smith:

Well, he would not be subject to prosecution of course under the statute here which is the federal mail statute but —

Warren E. Burger:

Oh, I’m asking a hypothetical —

Tefft W. Smith:

— he would be engaged —

Warren E. Burger:

— question.

Tefft W. Smith:

He would be taking that material into another state whose community standards would be different.

And in that circumstance under those community standards if they were deemed to apply that material would be proscribable.

Tefft W. Smith:

That conduct could be deemed proscribable and I believe that the Section 1462 of the Federal Code would imply for interstate distribution —

Warren E. Burger:

It might be — be subject to two prosecutions or at least violating two statutes, the statutes of Illinois assuming they had statutes that prohibited this and the federal statutes relating to interstate transportation.

Tefft W. Smith:

That’s correct.

The State of Illinois could protect its own interest in that situation.

Warren E. Burger:

So that the choice of the particular state is binding only on the — that state, is that not true?

Tefft W. Smith:

That’s correct.

Here — and that’s critical to our case.

The distribution took place solely from one point in Iowa into another point in Iowa.

And therefore, there can be no question of any other standard applying in the circumstances of this case.

There was no distribution anywhere else outside of that state.

But suppose —

Harry A. Blackmun:

Mr. Tefft, is there any argument about the nature of the materials here?

Do you concede they were all hard core — hard core stuff?

Tefft W. Smith:

Well, Mr. Justice Blackmun, the phrase “hard core” is something that has no legal meaning.

It’s simply a code word for some material.

We don’t concede that this material is anything other than sexually related material as to whether it’s hard core or not.

The issue here is a question of obscenity and obscenity is a legal concept which requires a measurement in accordance with the three elements set forth in Miller, subject to the contemporary community standards.

Harry A. Blackmun:

Let me put it in another way.

If the federal statute applies, you concede that his subjectability to it then conviction thereunder would be proper?

Tefft W. Smith:

No, because that is our second argument, Mr. Justice Blackmun, which is that the application of this statute in the circumstances of this case where state law has permitted the conduct, would involve fundamental due process considerations.

Therefore, if the — as statutory interpretation question, it is decided —

Harry A. Blackmun:

Well, let me just start all over again.

My premise was if the statute applies and if it is validly applicable.

Do you concede that a conviction thereunder would be proper?

Tefft W. Smith:

No.

We would submit that these materials are not obscene as a matter of law.

Harry A. Blackmun:

As a matter of Iowa law you’re saying.

Tefft W. Smith:

As a matter of Iowa law and therefore, as a matter of — and as a matter of federal law.

We do not concede the obscenity of these materials as that concept is defined by the Court.

Harry A. Blackmun:

By what?

Tefft W. Smith:

By the Court, Mr. Justice Blackmun.

This Court recognizing the absence of any need and indeed the absence of any congressionally expressed desire for national uniformity in this area has expressly applied the contemporary community standards approach to federal prosecutions.

That was the express holding in the Hamling case.

In these circumstances, we submit that the Iowa’s statutory decision here constitutes those contemporary community standards and should be applied in the circumstances of a federal prosecution for a distribution solely within the State of Iowa.

Potter Stewart:

Yesterday, on a case that was argued involving the intestacy statue of — statutes of Illinois that — that exclude the illegitimate children from a father’s — from intrastate succession from a decedent father.

We were told that the — the state law does not reflect state public opinion or community standards.

Indeed we were told that if all have shown that a vast majority of the people in Illinois thought that the — that state law was contrary to what they thought would be good policy.

Tefft W. Smith:

Well, I would submit, Mr. Justice Stewart that that this is an improper statement, because the remedy for disagreement between the people is the ballot box.

That’s the essential nature of a democratic republic.

In our brief, we quote from James Madison in federalist number 10 where that proposition was definitively stated at the outset of the formation of this nation.

And this Court has repeatedly recognized that it is the legislators and through the legislatures, following up on Mr. Justice Rehnquist’s point, the — then further given our system of checks and balances, the application of the Governor in those situations to decide what is to be the society, that society’s values.

Now, our argument is consistent with the doctrine of cooperative federalism which has been well articulated by this Court.

In our federalist system, federal law is interstitial in nature.

Often being incomplete, not having considered all circumstances.

William H. Rehnquist:

This — this is an argument of statutory construction.

Tefft W. Smith:

That is correct Mr. Justice Rehnquist.

William H. Rehnquist:

You don’t have any doubt that if the Federal Government says the National Labor Relations Act shall apply in all 50 states even though the people of Iowa may not like it.

It can nonetheless do that.

Tefft W. Smith:

That is correct.

It is therefore been appropriate to evaluate and interpret the meanings of federal law with reference to the backdrop of state law.

As the case has discussed in our brief at pages 23 to 30 demonstrate, the Court has in the past often looked to state law to determine the meaning of congressional enactments, particularly in the circumstances presented here where the matters at issue are considered local in nature and there has been no demonstrated need for national uniformity.

Potter Stewart:

Well now, hasn’t Congress in analogous situations when it wanted to exempt the force of federal laws from operation in states where the state policy was otherwise has been explicitly so determined?

I’m thinking for example of — it’s — it’s a violation — criminal violation of federal law and I think to mail slot machines —

Tefft W. Smith:

Well —

Potter Stewart:

— at interstate commerce, but hasn’t Congress has expressly exempted the mailing of a slot machine from one place to another in Nevada, for example.

Tefft W. Smith:

Congress has taken this approach in certain of its more recent statutory enactments, but the decisions that we cite and discussed in our brief do not involve situations where there was an express congressional intent.

Moreover, in the relatively recent decision of Mr. Justice Marshall in United States versus Bass, the Court expressly refused to extend the prescriptions under the federal statute proscribing the possession of handguns by a convicted felon to an intrastate possession absent some clear manifestation of congressional intent.

Mr. Justice Marshall emphasized in his opinion in that circumstance that the absence of any comment in the legislative history or in the statute on this subject matter should be deemed persuasive.

Here —

Potter Stewart:

You — you Mr. Smith as I understand it, would concede assuming Illinois has a kind of law as described by the Chief Justice.

Potter Stewart:

You would concede that this federal statute would be applicable to a mail — mail shipment from one point to another in Illinois, do you not?

Tefft W. Smith:

That is correct.

Potter Stewart:

So it’s not just the intrastate character of this?

Tefft W. Smith:

No the significance as I tried to articulate early of the — earlier of the intrastate element here is solely that — only one standard here can possibly be determined to be at issue.

It can be solely the Iowa standard that we have to evaluate.

And that’s the only standard that the jury could have been instructed to apply in the circumstances of this case.

Harry A. Blackmun:

You don’t raise any constitutional question but what the Congress could have said, whether or not legal in the state.

Tefft W. Smith:

Well, we do raise and that is our second argument that there are fundamental notice problems in that circumstances.

Again, referring back to the decision in United States versus Bass, the Court there, although that was not the factual situation in that case, noted that there would be real notice problems in any application of federal law to —

Byron R. White:

But you wouldn’t — you wouldn’t put on any commerce clause argument?

Tefft W. Smith:

No.

I would not.

That is due process argument and a notice argument.

Here, no federal interest can possibly be deemed to be served by this prosecution.

The Court in evaluating the question of the nature of obscenity has identified no federal interest.

Mr. Justice Harlan in dissenting in the Roth case expressly rejected any notion of an independent federal interest emphasizing instead the paramount obligation of the Federal Government to assure full protection of First Amendment rights.

Justice Harlan in dissenting in the Memoirs case articulated what we would submit is the logical and most reasonable interpretation of the federal statute.

Harry A. Blackmun:

Weren’t those both dissenting opinions?

Tefft W. Smith:

Both of those were dissenting opinions, Mr. Justice Blackmun.

In the Memoirs dissent, Mr. Justice Harlan stated that there would be a limited federal interest in prescribing certain materials for the purpose of assuring that federal instrumentalities like the mails would not be utilized to thwart state law.

In the circumstances presented here, the interpretation adopted below and urged by the Government is precisely the opposite that it thwarts state law.

Warren E. Burger:

Suppose, Mr. Smith that we had a state which for reason or rather simply decided not to make bank robbery a crime, but the federal statute of course makes it a crime to transfer the proceeds over a state line and it also makes it a federal crime to rob a national bank.

Do you think the Iowa view of — Iowa legislatures view of the bank robbery would prevail over the federal statutes?

Tefft W. Smith:

Not if the federal statute had manifested a clear intent that there were legitimate federal interest that were involved here and were concerned here as with —

Warren E. Burger:

Well, doesn’t it manifest it just by the passage of it?

Tefft W. Smith:

No, because there is no expression within the statute of any intent and indeed, the nature of the subject matter as recognized by this Court is such, that it’s a matter of local concern that there are no national interests here.

Indeed, the very purpose that was articulated by Mr. Chief Justice himself in the Miller case for eliminating the national standard was precisely —

Warren E. Burger:

As a national standard.

Tefft W. Smith:

Standard.

Warren E. Burger:

Not the — that’s the judgment of the jury in which I expressed the same view that my predecessor, Chief Justice Warren expressed that this is an — essentially a matter of local community standards.

Tefft W. Smith:

That’s correct.

And that the thrust of that reasoning, it seems to me, Mr. Chief Justice is, that you should permit materials to be distributed in a local community where they are acceptable and in the circumstances where the state legislature has evaluated the matter and as a legislative policy judgment.

Warren E. Burger:

Well then this would apply to bank robbery too, that could be your answer to that question.

Tefft W. Smith:

Well —

Warren E. Burger:

Unless the — unless the federal statute made out some sort of a case that there’s a special reason why the robbing of national banks, nationally chartered banks is a — is a bad thing.

Tefft W. Smith:

I think it’s somewhat the logic of my position, although I would submit that the differences here are of course that what we’re concerned with is further the question of the impact of these rulings on First Amendment rights, the — the serious notice problems that are involved in applying a federal proscription to conduct which is lawful at state law — under state law.

Potter Stewart:

Well, I thought your argument — these 20 arguments was simply that the — as a matter of definition of the offense, there couldn’t be an offense in — in your state.

Tefft W. Smith:

That is correct.

Potter Stewart:

I mean, whether or not there’s been a bank robbery is an objectively identifiable question.

And the answer is that one could tell by objective measurements, but since the test of whether or not there’s even been a violation in this kind of a case depends upon contemporary community standards.

And since in the legislature of this state is — as stated with the contemporary community standards are and they do not include this, then there’s not even an offense.

Isn’t that your point?

Tefft W. Smith:

I certainly would agree with everything, Mr. Justice Stewart (Voice Overlap) —

Potter Stewart:

That’s make it quite different with the bank robbery case.

Tefft W. Smith:

Yes, it does.

Potter Stewart:

There cannot even be an offense.

There can’t be a bank robbery.

Tefft W. Smith:

The bank robbery — robbery situation involves a question of conduct where this — the issue here that we’re concerned with is a question of how do you evaluate the standards in determining what that conduct has been.

John Paul Stevens:

Mr. Smith, can I ask you a question?

Your argument as I understand it relates the concept of contemporary community standards to the whole problem of defining whether something is obscene or not.

The Government responds as I understand their brief by saying that the Miller test has three parts to it.

The first of which is, is this business of appealing to the prurient interest.

And as I understand them, they say that the contemporary community standard reference only modifies that first part of the three part Miller test.

You — what was your response to that?

And if it has a limited application rather than applying to the whole concept of obscenity.

Tefft W. Smith:

Well, Mr. Justice Stevens, we would submit that that is a distortion of the Miller decision.

And the opinion of Mr. Chief Justice in the Miller decision states as its summary, we hold that obscenity, and that’s on page 37 of the opinion, states that we hold that obscenity, utilizing the broad word “obscenity” is to be determined by applying contemporary community standards, not national standards.

That —

Potter Stewart:

You take the three part test as a conjunctive test or not a disjunctive test, is it?

Tefft W. Smith:

Yes.

Potter Stewart:

(Voice Overlap) —

Tefft W. Smith:

That they are —

Potter Stewart:

(Voice Overlap) —

Tefft W. Smith:

The three independent elements must conjoin for a finding of obscenity.

Moreover, the subsequent opinion of Mr. Justice Rehnquist in Hamling repeatedly refers to the contemporary community standards test as broadly applying to the concept of obscenity.

Similarly, the opinion in the Jenkins versus Georgia case so refers expressly referring to the two first two test of prurient interest and patently offensive appeal.

The — Mr. Chief Justice in the Miller case, in rejecting the national standards approach expressly stated that there will be varying from community to community standards of precisely — and I’m quoting from page 30 of the opinion, “Of precisely what appeals to the prurient interest or is patently offensive.”

The history of the formulation of the patent offensiveness test further confirms this fact.

In that — when it was first fully articulated by Mr. Justice Brennan in the Memoirs case, he stated that material is patently offensive because it affronts contemporary community standards relating to the description of representation of sexual matters.

Hence, within the Court’s own formulations and moreover within the logic of why it is that you prescribe obscenity is where it is offensive to the community.

If it’s not offensive to the community, it is not obscene.

The result that occurred below and as urged by the Government expressly has certain adverse consequences.

First, it effectively nullifies Iowa law and by the same logic, the laws of at least six other states.

The Court has recognized in Lamont versus Postmaster General that the U.S. mails have a predominant influence in the nation.

Whatever the Court stated, whatever may have been the voluntary nature of the postal system in the period of its establishment, it is now the main artery through which the business, social, and personal affairs of the people are conducted.

Hence, the federal statute would become the dominant statute.

Indeed, in the circumstances here, that result runs directly contrary to what the Court has repeatedly stated is the right of the individual state legislatures.

Two, take the course followed by the State of Iowa and to choose to permit the regulation, the distribution of all sexually related material to their citizenry.

The further adverse consequence of this decision, and we would submit that the — that this constitutional issue of notice can be avoided by the interpretation of the statute which we submit is the fundamental fairness consideration that a person has a legitimate expectation that if he conducts himself in accordance with the laws of his — the state of his residence, his conduct there will not lead him to criminal prescription.

William H. Rehnquist:

What about —

Tefft W. Smith:

— and to criminal imprisonment.

William H. Rehnquist:

What about somebody in Iowa who misbrands drugs in Iowa, the Iowa legislature has chosen not to make that criminally punishable.

Does that give him a defense to a federal charge?

Tefft W. Smith:

Not in a situation where again the Federal Government has expressly enacted a statute which has its own standards that govern that conduct.

Potter Stewart:

And also whether or not the misbranding of drugs, the violation itself doesn’t depend upon community standards, does it?

Tefft W. Smith:

No.

And that is the —

Potter Stewart:

The very essence of this offense as this Court had said depends upon whether or not — depends upon the standards of the community.

Tefft W. Smith:

That is correct.

That is correct, Mr. Justice Stewart.

Warren E. Burger:

But — but when a federal jury sitting in Iowa on a federal misbranding case, such as suggested by Mr. Justice Rehnquist, they do as every jury does apply their own standards consistent of course that it is (Inaudible) with the instructions from the Court.

But is it not so elementary that every jury applies its own concepts of — of morality and right?

Tefft W. Smith:

Yes, that is true.

Especially, in evaluating conduct.

But this Court has very carefully stated —

Warren E. Burger:

One set of jurors might look at a particular label or brand on drug or — at some grocery item and say, “No, this is — this is a not a misbranding.

It doesn’t mislead us.”

But in other jury and in another town in the State of Iowa might look at it and say, “Yes, this is a misbranding.”

So, you can get that variation even on a subject to this kind, could you not?

Tefft W. Smith:

Well, the — Mr. Chief Justice, there are standards provided in those kinds of statutes.

The jury is not free at its will to exercise whatever its judgment on the morality or immorality of the conduct is.

Warren E. Burger:

Well, I said, “Hopefully, the jury follows the instructions of the Court”, but we know that juries don’t always do it.

Tefft W. Smith:

But jurors must be required to consider things objectively.

And here, in the circumstances of this case and under this Court’s precedence had been directly decided that the jury must apply an objective test based upon the community’s standards of the average person in the community.

They’re not supposed to apply their own standards.

They’re supposed to apply the standards that prevail within the community.

John Paul Stevens:

Mr. Smith, are those — is the definition of the contemporary community standard or the local community standard.

Is that an issue of fact or an issue of law in your judgment?

Tefft W. Smith:

I think that it is an issue of law in the present circumstances of this case in that, the Iowa legislature has enacted a legal pronouncement on that issue.

Thank you.

Warren E. Burger:

Mr. Smith, your time has expired.

Mr. Shapiro.

Howard E. Shapiro:

Mr. Chief Justice, and may it please the Court.

I think it would be useful to just review the facts of the case before we discuss the law.

The material involved in this case consists of five magazines, five photographs, and two films which petitioner deposited in the mails that they were all sent to addresses within the State of Iowa.

The case was tried to a jury.

The defendant put on evidence of community standards which consisted largely of photographs and magazines of a similar in nature to the material which is alleged to be obscene here.

I would characterize both the material we have charged to be obscene and the defensive material as obvious hard core pornography.

The District Court permitted the defense over the Government’s objection to introduce the Iowa statute which limits the crime of obscenity to distribution to minors.

The judge also in his instructions charged the jury to consider the effect of that statute along with the other evidence in determining what the community standard in the — I think it’s the central district of Iowa is.

Howard E. Shapiro:

The jury after being charged under the Miller test, Miller and Hamling, these mailings all took place after Miller, convicted the defendant on all counts.

The Court of Appeals —

Potter Stewart:

What are the instructions have to say with respect to community standards, are they on the record?

Howard E. Shapiro:

Yes.

They’re in the record at 22 and 23 — actually, let’s see, they begin with instruction number 8 at 21, and they carry on.

They’re very close to the Miller’s test.

At page 22, there is an almost literal repetition of the Miller test.

And I won’t read it, but it’s stated quite clearly including a definition of what patently offensive means in referring to what we would call, “hard core pornography”.

Harry A. Blackmun:

Do you recall, Shapiro who the judge was?

Howard E. Shapiro:

I regret, Your Honor, I do not.

Warren E. Burger:

The District Judge was Judge Stewart.

Howard E. Shapiro:

Mr. Judge Stewart, I think.

Harry A. Blackmun:

Well, he is an old time Iowa judge.

He used to be on the Supreme Court of Iowa.

That’s a fair reasoning.

Howard E. Shapiro:

Now, at page 23 — at the bottom of page 22 and 23 is part of the instruction is quite important.

In determining the view of the average persons of the community, you are each entitled to draw in your knowledge and the views of the average person in the community from which you’ve comment, as well as consider the evidence presented as to the state law on obscenity and materials available for purchase in certain stores as shown by the evidence.

The Court of Appeals agreed with the District Judge that it was proper for the jury to consider the effect of the state statute and it also concluded that this was simply an element in determining community standards it was not of itself conclusive as the petitioner here contends.

John Paul Stevens:

Mr. Shapiro just to — to get the same question out, is it your view that the determination of the contemporary community standard is a question of fact or a question of law?

Howard E. Shapiro:

Well, the first two elements of the test in Miller, we believe are primarily questions of fact.

The Court so said in Miller at page 30 in the opinion, that the last element dealing with whether the material lacks a serious literary, artistic, political or scientific value is much more of a legal question.

I also think that that last element is not subject to a community standard limitation because otherwise, you would find that what is considered serious matter in one part of a country could not flow into another part of the country.

So, you can’t limit the third part of the test by a community standards factor.

John Paul Stevens:

Mr. Shapiro, I don’t think that quite answers the question.

You suggested the first two parts of the Miller test, your question of the fact that the third part might be questionable.

My question is whether the community standard, the definition of the community standard itself is a question of law or question of the fact, which apparently at least wherein your opponent applies to all three parts of the Miller too.

Howard E. Shapiro:

I will regard it principally as a question of fact subject to one qualification.

The Court has said in Hamling that under the constitutional test in Miller, a state may for state purposes constitutionally define the geographic reach of — of the community in which the standard is to be applied.

And that brings me to another element of the — of the community standard test which it’s most important to explicate.

That is that the contemporary community standards element of the test refers to the contemporary mores of the community, and that is independently of the state statutory policy which either makes the distribution of obscene material criminal or non-criminal.

Thurgood Marshall:

Mr. Shapiro, I may have missed it.

What evidence did the Government put on as a community standards?

You said what the defendant belong, where’d the Government belong?

Howard E. Shapiro:

The Government relied on the decisions in — I think it’s Paris Adult Theatre and in Hamling that it need not to put on evidence of community standards for a jury to make this determination.

Potter Stewart:

What more reliable evidence is there of the mores of community than the — than the laws of its elective — elected representatives?

Howard E. Shapiro:

Well, let me — let me illustrate if I may, Your Honor.

In a state which has a statute condemning obscenity the Miller test itself recognizes that that law does not express the community standard.

It still has to be determined by the jury despite the state law, well it converses equally true.

The jury must determine for itself the community standard —

Potter Stewart:

Well, wouldn’t we have mores here —

Howard E. Shapiro:

— in the light of community mores —

Potter Stewart:

(Voice Overlap) mores which means —

Howard E. Shapiro:

Yes.

Potter Stewart:

— customs or standards?

Howard E. Shapiro:

Yes.

No.

This means that the state statute is a factor to be considered, but all the state statute in Iowa does.

In fact, all the state statutes in the six states that we know about that it decriminalize the obscenity to do, is to say that we will give up on trying to prosecute this stuff criminally.

It certainly isn’t an approval of it.

It isn’t an encouragement of it.

It doesn’t necessarily reflect what this Court is talking about when it speaks of a constitutional standard under the First Amendment of contemporary community standards dealing with recognition by the average person of — of matter that appeals to prurient interest or to the extent that community standards applies to the patently offensive element to what is patently offensive.

Warren E. Burger:

Would you make that same argument if the State of Iowa had decriminalized marijuana or heroine and the federal prosecution?

Howard E. Shapiro:

Yes, and we would.

And some states have — of course, it has been pointed out, I don’t want — there is a difference between this problem of conduct and — and problem of defining obscenity which rest on a constitutional definition under the First Amendment.

Byron R. White:

And what — the very — whether or not an offense has been committed depends upon community standards —

Howard E. Shapiro:

Yes.

That’s —

Byron R. White:

— in this particular offense whether or not —

Howard E. Shapiro:

Well —

Potter Stewart:

— if they smoked marijuana doesn’t depend whatsoever on the community?

Howard E. Shapiro:

Whether — whether it can be constitutionally punished at least, I would — I would rather express it in that way.

Now, as I said the states —

John Paul Stevens:

Let me — may I just interrupt once more, Mr. Shapiro.

I’m vacillating back and forth between the contemporary community standard being question of fact and being a constitutional standard which normally would be a legal standard.

And you — you’ve reminded us that the Court does not require the Government to offer evidence on contemporary community standard.

Is there anything in the record which will enable appellate — an appellate judge to determine what the contemporary community standard is?

Howard E. Shapiro:

In the defendant’s view, the materials that he offered and the states statute.

In the Government’s view, the state statute is a factor, but this goes to an element that the jury is to decide.

I think —

John Paul Stevens:

Is it subject to appellate review or —

Howard E. Shapiro:

It is subject to appellate —

John Paul Stevens:

— is an issue that —

Howard E. Shapiro:

It is subject to appellate review —

John Paul Stevens:

How does an appellate — how does an appellate judge can go about reviewing the question of whether or not the correct contemporary community standard was applied?

Howard E. Shapiro:

On the first two elements, she gives the greatest weight to the — to the jury that the constitutional test in Miller as the Court has recognized when it dealt with the question of the geographic scope of standards is essentially factual what the Court said in Miller was that — under a National Constitution, there can be variation from community to community and then it went on to say — there aren’t fixed national standards of what — of — of precisely what appeals to the prurient interest or is patently offensive.

These are essentially questions of fact.

John Paul Stevens:

I understand but are they questions of fact that can be decided without any evidence being in the record to tell us what the standard is in Iowa.

As I understand your position, the Government need offer no evidence —

Howard E. Shapiro:

I understand.

John Paul Stevens:

That we may not look — we — we may not look to the Iowa law and we don’t have to accept the defendants of them, so what do we look at to see what the standard is?

Howard E. Shapiro:

If you look at the jury’s determination because this is the aspect of the issue (Voice Overlap) —

John Paul Stevens:

(Voice Overlap) to determine this on the basis of their own knowledge of what happens in the community, which is not in the record for us to review, is it right?

Howard E. Shapiro:

That is — that is the basis of the test as it has been defined in the Court’s decision.

Potter Stewart:

Well now you — you’ve told us that the Iowa law was admissible and evident?

Howard E. Shapiro:

Yes.

Potter Stewart:

Why?

In your view?

Howard E. Shapiro:

So that the jury may consider since the jury is permitted to consider any evidence — any relevant evidence relating to what constitutes the community’s standard with respect to what appeals to the prurient interest or what is patently offensive and that the statute could be considered by them.

I suppose the —

Potter Stewart:

In a federal prosecution for possession of marijuana, would it be — would the absence of a state criminal law — criminalizing the possession of marijuana be admissible and evident?

Howard E. Shapiro:

No, Your Honor, it would not and it —

Potter Stewart:

What’s the difference?

Howard E. Shapiro:

Well, I think the difference is that the state statute here dealing with the criminal — the decision to criminalize or not criminalize obscenity would to some effect, would to some extent reflect community mores but the weight to be given to that is for the jury.

Now, the state law of course in this case didn’t purport to determine community standards in the sense of the Miller test.

All it said was that, we will not prosecute.

I’m — I’m paraphrasing it grossly but we will not prosecute obscenity as a crime.

Now it doesn’t follow from this that the community mores in Iowa do not recognize hard core pornography to be obscene because basically that’s what you’re dealing with.

Is this material obscene or not?

Moreover, the Iowa Statute didn’t purport to regulate the federal mails.

There is no conflict or nullification here of state law.

There’s no conflict with — with federal law.

There is simply different policies within each jurisdiction’s respective sphere of constitutional responsibility.

Potter Stewart:

Isn’t — you said the basic question was whether this material is or is not obscene, “obscene”.

Howard E. Shapiro:

Within the meaning of the federal statute?

Potter Stewart:

Within a meaning of the federal statute.

Howard E. Shapiro:

That’s correct.

Potter Stewart:

And hasn’t it been determined that whether or not material is obscene, it depends at least — it depends among other things upon whether or not it offends community standards —

Howard E. Shapiro:

Yes.

But everything that offends —

Potter Stewart:

And if — and if the community has said through its elected representatives that it does offend our community standards, isn’t that the end of it?

Howard E. Shapiro:

But the Iowa statute doesn’t say that.

All it says is that it shall not be a crime.

It doesn’t say anything else.

Thurgood Marshall:

What — is it true that your position is that the case matter is obscene or not dependent solely upon the whims of 12 people?

Howard E. Shapiro:

No.

Thurgood Marshall:

And I — and I emphasize solely, isn’t that your position?

Howard E. Shapiro:

No, Your Honor, it is that 12 people applying the instructions (Voice Overlap) —

Thurgood Marshall:

Mr. Shapiro, maybe I’m wrong.

Isn’t it that it’s left to the whims of 12 people without any guidance or evidence of any kind?

Howard E. Shapiro:

Under this Court’s decisions, there is guidance.

Howard E. Shapiro:

The guidance is the guidance set forth in the Miller test and that guidance applies in a meaningful way as Jenkins against Georgia demonstrates —

Thurgood Marshall:

Well, you did —

Howard E. Shapiro:

There are limits on the —

Thurgood Marshall:

Did you put on anybody who have said that there is a single — there’s at least one person in Iowa who does not like obscenity?

Howard E. Shapiro:

That, I don’t think is the issue, when one likes obscenity or not —

Thurgood Marshall:

Well, it’s a community standard —

Howard E. Shapiro:

It’s a community standard which goes, does this material —

Thurgood Marshall:

What is — what is the community standard now in Iowa?

Howard E. Shapiro:

Well, I think the community standard in Iowa is reflected on this jury’s determination is that hard core pornography can be recognized as a material which to the average person appeals to the prurient interest —

Thurgood Marshall:

And then reflects —

Howard E. Shapiro:

— and which is patently offensive —

Thurgood Marshall:

The next jury could say —

Howard E. Shapiro:

— in its depiction of explicit sex.

Thurgood Marshall:

The next jury can amend that law and change it.

Howard E. Shapiro:

There is a possibility of inconsistent jury verdicts —

Thurgood Marshall:

Of changing the law.

Howard E. Shapiro:

There is a possibility of inconsistent jury verdicts.

The Court has recognized that in its decision both in Hamling and in Roth.

Byron R. White:

Mr. Shapiro, what the — what law did the — was introduced before the jury?

Howard E. Shapiro:

The statue appears in the record.

Byron R. White:

Is that — is that the statute at page 47 of the appendix?

Howard E. Shapiro:

Yes, Your Honor.

Byron R. White:

In — in its entirety?

Howard E. Shapiro:

In its — I believe that is the insight.

Byron R. White:

With this definition of “obscene material”?

Howard E. Shapiro:

Yes, that’s the — that is the statue in its entirety.

Now, it has been amended.

Byron R. White:

I understand, I understand.

Howard E. Shapiro:

Recently to exclude —

Byron R. White:

But this says right here —

Howard E. Shapiro:

— the matter —

Byron R. White:

— that it defined obscene material and then just made — made it — and made it criminal only in the case it’s just delivered or displayed to minors.

Howard E. Shapiro:

That is correct.

Byron R. White:

But the definition of obscene material is in the statute?

Howard E. Shapiro:

Yes, Your Honor.

Well, we — there was a question about the scope of the federal responsibility here.

Now, I have said that what we’ve got when a state decriminalizes obscenity, is a difference in policy between a — the federal policy and the state policy, each has a responsibility of its own under the constitution.

The federal responsibly in this case rests on the postal power.

That power extends to both interstate and intrastate mailings and it may be exercised for the nation as a whole.

In exercising it, Congress may — and we think in 18 U.S.C 1461 has adopted a nationwide prohibition barring obscene matter from the mails, whether mail interstate or intrastate.

As a constitutional matter, that test is subject in the determination — that statute in the determination of obscenity is subject to the contemporary community standards element.

But it is not subject to any sort of state interpositions between the people of the state and federal law governing the mails and it’s not subject to any sort of local option.

And this is primarily because a state statute while it is evidenced of — of the mores of — of the community is not conclusive on it.

Like any state legislature concerned about matters in its sphere of responsibility Congress may determine that certain activities are pernicious.

Now, petitioner’s suggestion that is applied to hard core pornography, this is somehow inconsistent with our federalism.

Therefore requires that the statute be read to create a local option exception, simply turns federal — federalism upside down by making state legislatures supreme over Congress.

Congress could make federal obscenity law subject to state law, it hasn’t done so.

When it wishes to do so, it does so expressly.

This statute which dates from 1872 has been uniformly construed to apply across the nation as a whole.

It is part of a pattern of statutes expressing the federal interest in the limitation of the distribution of obscenity.

A material cannot be imported even though the importer lives in Iowa.

The material cannot be carried by a common carrier to a resident of Iowa.

It can’t be transported for purposes of sale or distribution there.

And under the — under this statute, it cannot be mailed at all in Iowa.

Iowa, if it wishes can permit the distribution of this material by not making it a crime.

It’s Iowa’s business and Iowa’s responsibility.

The Federal Congress, if it wishes, can also bar the material from the mail either interstate or intrastate.

Now the petitioner claims that the statute is unduly vague and is applied to the facts in this case, while in Hamling, the Court clearly indicated what the statute applies to, hard core pornography.

Petitioner was distributing hard core — core pornography within the state.

He was not committing a crime under state law but he was certainly on notice that he was committing a crime by distributing it by mail and that is what he was convicted for quite properly.

John Paul Stevens:

Mr. Shapiro, I’ll make this question of vagueness and perhaps the allied argument of overbreadth.

Since this is arguably a first amendment case, as well as a due process notice case, do we — is it a complete answer to say that the statute was not vague as applied to these facts or should we look at the potential overbreadth here the First Amendment implication.

Did — do I make my question clear?

Howard E. Shapiro:

Yes, I think you do Your Honor.

I don’t think you have to reach any overbreadth question on the facts here.

I mean, this is a claim of vagueness made in circumstances where it’s clear that the statute applies.

Warren E. Burger:

We’ll resume there at one o’clock Mr. Shapiro.

Mr. Shapiro you may resume.

Howard E. Shapiro:

Mr. Chief Justice, may it please the Court.

I believe I was responding to a question from Mr. Justice Stevens concerning whether the Court in this case should reach the question of overbreadth and I — my answer, as I stated then was that, in this case, there is no reason for the Court to reach the issue of overbreadth.

In this case, the facts involved show clearly that the defendant is within the scope of the statute as it was construed in Hamling, the statue, 18 U.S.C. 1461 was construed in Hamling to be confined to patently offensive hard core materials.

That is what is involved in this case.

That is what the petitioner mailed.

He was on notice from the time that the Roth decision came down that if he mails such materials, he would be violating federal law so there is no reason to be concerned with any question of overbreadth.

Now, there has been some discussion about what the Court of Appeals is to consider in reviewing one of these decisions, the Court in Hamling noted that a juror was entitled to call upon his own knowledge of community custom — the customary candor in the community.

This decision — that this kind of determination was compared to a knowledge of what reasonable conduct is, what standard of due care is, and that’s about all you can do in this area when you’re trying to determine what community mores are to be sure, a defendant is entitled if he wishes to introduce evidence concerning what community mores are but it is not mandatory that the government do so.

The jury — the juror’s knowledge is very much analogous to the reasonable man standard.

This comes into play also when we consider the last issue which petitioner presented in his brief.

That his — his rights were violated by the voir dire of the jury.

Now of course, the questions to be put to jurors in an obscenity case must assure that the jurors are neutral and objective.

It’s been said that — it’s appropriate to inquire within the limits of the judge’s — district judge’s power to control voir dire into the political moral and religious or sexual opinions which might affect neutrality and objectivity.

But the questions that the defendant here wished to propound to the jury were essentially, what do you know about community standards, where did you learn it?

Do you know about the Iowa statute here?

That’s part of what the jurors have to decide.

The petitioner can put in evidence on that issue as he did but he can’t question the jurors about their understanding of these matters any more than he can question them about their knowledge of the case but the knowledge of standard of due care.

Now —

John Paul Stevens:

Mr. Shapiro, let me ask this one other question, it has been on my mind.

Is it your understanding that the matter of establishing the contemporary community standard is part of the government’s affirmative case or is it part of the defense that the defendant may assert.

Which — who has the burden on that issue?

Howard E. Shapiro:

Well, of course the — since it is a criminal case — there’s always a burden of persuasion on the government to establish beyond the reasonable doubt that the material involved defense community standards within the Miller test.

Howard E. Shapiro:

On the other hand, the Court’s decisions made it clear there is no burden on the government of coming forward with evidence on that issue.

Now, I think the case can be summed up by trying to decide whether something that is offensive necessarily has to be illegal.

The constitutional test in Miller does not equate offensiveness to the community with illegality in the community.

And that’s really the essence of our position.

This concept of community mores that the statute involves, that the Miller test involves simply reflects a practical and realistic way of handling what the court has described as an impractical problem.

There are all kinds of things that are offensive in our society, lying may be offensive, using vulgar language is offensive.

These things offend community mores, they aren’t illegal necessarily.

The distribution of obscenity in Iowa to adults is not a crime but it still may offend community morals.

The jury in this case concluded under the instructions based on the Miller test that the contemporary community standards were being offended within the Miller meaning.

The Court of Appeals affirmed that.

We think that’s all that the constitution requires in a federal prosecution.

The defendant had the advantage of consideration by the jury of the effect of the federal — of the Iowa decriminalization of obscenity.

The jury concluded as well it might that that did not mean that this material did not offend community standards, and so the defendant was convicted and so that conviction should be affirmed.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.

We’ll hear —