Splawn v. California – Oral Argument – March 23, 1977

Media for Splawn v. California

Audio Transcription for Opinion Announcement – June 06, 1977 in Splawn v. California

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Warren E. Burger:

We’ll hear arguments next in 76-143, Splawn against California.

Mr. Wells, you may proceed whenever you’re ready.

Arthur Wells, Jr.:

Thank you.

Mr. Chief Justice and may it please the Court, this case is here because the petitioner has been convicted for violation of California obscenity law.

Facts are quite simple.

In 1969, the petitioner ran a store in Northern California from which he sold books and films with sexual contents.

Prior to the events that occurred which led to the conviction, the police had become aware of the store and it purchased material for sale regularly in the store but apparently none of this material was the type that they felt was suited for prosecution.

So, they sent in someone who was a part-time policeman and otherwise, a carpet layer who was seeking, in his words, hardcore material which — by which —

Warren E. Burger:

Is there — is there any dispute or issue remaining about whether this is obscenity in this case?

I thought that was out of the case.

Arthur Wells, Jr.:

No, I — I don’t think it — the issue of whether its obscenity is out of the case.

I didn’t raise the issue of whether the material was obscene or not because as I understand Miller, the only question asked to the content of the material is whether or not it is the type that is — that could be found by properly instructed jury to be obscene.

The two films here graphically display ultimate sexual acts, they are not simulated.

And therefore, they are the type that could be found obscene if the jury were properly instructed.

In this case, we claim that evidence was improperly introduced and that the jury was not properly instructed and that’s why there was a conviction, but it’s because of the holding in Miller that we have not raised at this point a claim as to the content for the material.

I might also point out that the term hardcore as used in this case by the participants was not a concession that the material was obscene but only that the material graphically displayed ultimate sex acts.

In other words, in 1969 and 1970, the state of the art was what was publicly for sale was simulated.

That is borne out by the record and I would refer you to pages 515 through 517, 574, 619, 683 and 684 and 762 in which all of the people who had anything to do with the store and Mr. Drivon, the policeman, indicated that they were talking about material which actually showed sex acts rather than which showed simulated sexual acts.

In any event, Drivon in order to accomplish the test of acquiring some hardcore material, some material which graphically displayed sexual behavior which require to make six contexts with the store, only one of those contexts was with the petitioner, Mr. Splawn, and I think it is significant that at that context, the petitioner told Mr. Drivon that he could go to San Francisco and get these films himself if he wish and Mr. Drivon begged off from that invitation.

Finally, then after six contexts, Drivon purchased two films for $70 for which petitioner was convicted.

He had been tried not only for the crime of displaying and distributing obscene material but also on the felony conspiracy charge with his twin brother and the clerk and there was an acquittal on the felony charge.

At the trial, certain instructions were given which were based on Ginsberg versus United States and our common law would referred to as instructions that our based on the pandering doctrine and there were other instructions which I will discuss the content of more specifically later.

In any event, the case presents three issues.

The first issue arises because the pandering law of California which was incorporated into instructions was not in effect at the time that the defendant or the petitioner sold films for which he was subsequently convicted.

John Paul Stevens:

Mr. Wells, let me just ask you primarily question.

I take that the — your argument about equal protection is not before us.

Arthur Wells, Jr.:

No, you did not grant cert on that issue and I did not brief that issue in the brief and I do not intend to address myself to that question.

You limited your grant to certiorari to the first four questions.

Because the law was not none in effect at the time, an ex post facto which it was raised.Similarly, the California Supreme Court less than two years before the sale which is the subject matter to this lawsuit had ruled that pandering was not part of California law, and therefore, a question arises under the Due Process Clause and Bouie versus Columbia as to whether there was a new and novel and unfair application of state law to this defendant such that he was denied due process.

The behavior engaged in by the — by the petitioner in this case displays no more than a simple sale and the Court of Appeals opinion which is here in question, refers to no behavior by the petitioner except that of a simple sale.

Arthur Wells, Jr.:

Under the circumstances, the question is raised about whether the pandering instructions both based on the law and as given by the Court in this case should have been given at all because in the petitioner’s view, these instructions are lopsided.

They do not fairly represent the proposition for which they supposed to support instead they represent only a prosecution view.

Third, on the assumption that it was properly give instructions on the subject of the contexts in the behavior rather than just on the subject matter of the material, of course, it is presented as to whether these instructions are proper.

Now, I would like to discuss these matters in reverse order.

I think Miller, if it teaches us one thing, says that local juries and local jurisdictions are going to have a lot more to say about what is and what is not obscene.

This Court sits not to find what is obscene but just as it check to determine what is not obscene.

I think if you are going to have rules which say that you’re going to have a not completely defined local community as the community by which the judge was obscene.

And if you’re going to have a rule that requires no evidence at all except the material itself, they introduce to support a conviction in what you have to insists on is properly instructed jury.

I urge this Court to elaborate on and adopt its recent remarks in Footnote 11 of Marks versus U.S. which is to the effect that there is no substitute for properly instructed jury.

I think this especially important in a case like this because what we’re talking about is the content of books and movies and other material, which by the way is pure speech, this isn’t picketing case, this isn’t an O’Brien situations, this isn’t anything but pure speech.

And I think what we’re talking about is questions of aesthetics, questions of taste and questions of social value and we’re trying to convey to a group of layman what it is that they have to do to make a judgment which can rise to a level of constitutional judgment.

Now, I think then that what we need is as much clarity and precision as we can get.

Otherwise, we have no insurance, the jury is located someplace else and without the necessary guidance of any evidence with the material itself and applying a local community is going to do what you nine people wanted to do or what — a larger group than that wanted to do.

Therefore, I think it’s very important to stick to what we have if that’s what we have to live with.

Now, the worst, the most glaring example of error I think are the instructions as given is the instruction that says that the jury is permitted to look to the sexually provocative aspects of the matter to determine if the material lacks value.

Now if they find the material is sexually provocative, that fact alone is enough to find that the material lacked value.

This to me is an extremely insidious instruction for the following reason.

The core thing in the obscenity field, the thing that has been with us since Roth is the notion of prurience.

If there is any governmental interest at all in — in this field, if there is any reason for the States to be in it at all, it is only because this material on some theory or supported by some set of facts is harmful, is unhealthy and that’s what prurience means.

Prurience indicates this obsessive compulsion with the unhealthy aspects of sex.

Provocativeness is an entirely different thing.

Provocativeness has to do with arousal, being aroused, being excited, being provoke and that is not necessarily unhealthy.

Now, what happens is this.

Prurience, as far as, I can see is a difficult concept.

It’s a difficult term because you’re dealing of health and lack of health in a large community of people who you have to judge it by.

And I don’t think that the layman, the common juror is acquainted with the term prurience, uses it or things in terms of those notions.

On the other hand, provocativeness especially sexual provocativeness is something that we all grow up with.

Chewing gum, cars, there is nothing that is not sold partially on the basis of provocativeness and usually sexual provocativeness.

Cigarettes for years were sold with implied — and still are in billboards but not on television, implied sexual attractiveness from smoking.

I therefore think that what happens if you permit the type of instruction given here and what indeed probably did happen here is that the jury says to itself, but we’re supposed to deal with this notion of prurience but I’m not too sure what it is.

Arthur Wells, Jr.:

And under Miller, maybe we don’t have any evidence regarding it but the judge said something about provocativeness, maybe I’ll look at it and see if I think it’s provocative.

If it’s provocative, then I don’t have to worry about the rest and so they substitute provocativeness or a judgment about whether the material is provocative for a judgment about whether the material is prurient.

And that is the worst possible thing that can be done in this field for the reason that the only reason for having the rules about obscenity if there are any reasons is that the material is unhealthy.

And if the judgment is made on the basis of provocativeness rather than prurience, then you’re not making the judgment on the basis of the material is unhealthy but just that it excites or arouses somebody.

And the fact — the fact that something arouses or excites somebody is probably one of the reasons why it should have First Amendment protection, not one of the reasons that it shouldn’t.

And of course the other thing about the term sexual provocativeness is that it’s vague.

Vague in both the senses that it’s not final enough that we can draw a line so that we can protect — protected speech and not protect — not protected speech and vague in the sense that you are using the term can’t tell me what I’m supposed to do and so I don’t have any real notice about what I’m supposed to do and the jury has no real notice about what its supposed to do.

The other fundamental area in the instruction — and the instructions in this case was the instruction which permitted the jury to look again at the material after it supposedly applied the three tests which at that time we have to pull a memoir’s test and judge it in terms of the intent of the creator.

Whatever maybe the value of such a test, it has never been applied by this Court in the case of a retail seller.

Hamling was a producer, Ginzburg was a producer, Rebhuhn, who in 1940 was the person about whom Learned Hand wrote the opinion which you said was a good opinion in Ginzburg, was the man who mailed out — made and mailed out the flyers in that case and its never been applied to a person in any event, the man isn’t on trial.

That is to say the — the publisher is not on trial.

So what you do is you look again at the material and you say, “Well, what is the intent of the person who made this material?”

Now, that should never be the judgment about whether the material is obscene or not because what we’re trying to do is get to an objective standard.

We are trying to apply a standard which is a standard of lack of health, unhealthiness, and the motives of the creator are not what we’re talking about when we’re talking about prurience.

If you want to get the creator of the material, then you use the investigative facilities to go arrest him and — on this type of theory.

I supposed you’re trying for something like attempt to make a dirty book or attempt to make obscene books, then you’re talking solely about his — his motives.

Under this, you have a subjective standard instead of an objective standard and once again, it redefines any of the tests laid down by this Court and because it’s easier for the jury to apply that kind of a test, just look at the — we know what he was trying to do, then they’re going to substitute that test for the law.

Now, the next point is a question about whether these instructions should have been given at all.

To this extent, I think Ginzburg is a confusing case.

What happen in Ginzburg is that, there was a holding that context was important, but the context to that case was that a publisher exploited his materials.

And the question is, whether you’re going to have a rule which permits the context to be considered or not.

In this case, what — what California did, is first of all, would pass a statute, they didn’t say consider the whole context.

It said, see if the guy is misusing the material, and I admit that was part of Ginzburg verus United States, but that’s only because of the facts of Ginzburg which were entirely different from the facts here, mainly because you have a publisher and control there and you don’t have one here.

Here, what you have is a retailer and if you don’t limit the rules somehow and let him know what he can do and not do, there is no way he is going to have any idea and I think its really going to leave to a self–censorship thing, merely putting —

William H. Rehnquist:

Is there any evidence in the record here Mr. Wells as to whether this retailer ran a totally what you might call adult bookstore or whether he had an adult section and non-adult section?

Arthur Wells, Jr.:

There is no direct evidence in the record.

The fact of the matter is he did run an adult bookstore, the pictures that were introduced as the matter — exhibit four which were introduced on a pandering theory show the inside of the store and they show magazines displayed in their covers.

I would urge, I am reading over my brief, I see that — well, I complained a lot that the conviction was improper.

I did not suggest what would be an appropriate rule and I think the object — the court’s opinion, if its reaches this issue, should be to limit the application of this rule if you’re going to have it at all to a very finite definite set of circumstances because otherwise in a field where I feel that you’re at your limits of possible use of words to be able to convey ideas, you just can’t go any further.

Now, I would point out that Ginzburg permitted the use of this doctrine as a rebuttal tool, quickly — strictly a question in that case or it could be read to be are the integrity of the process.

Arthur Wells, Jr.:

Ginzburg had been out in Middlesex and Blue Ball, Pennsylvania, going crazy with this material and it wasn’t a material itself, he was exploiting it, okay.

And then he run into Court and said, “Oh, this is really pure stuff.”

Now, as a mere factual rebuttal to that, the Government said, wait minute, you said one thing out there just to show that you’re not credible, that you’re not to be believed, a different thing should be permitted to be shown here.I would urge you to limit the application of the rule to that.

If you’re not going to do that, if you’re going to go further, then I would say that you should limit a behavior which is unambiguous exploitation because what you have to do is draw the distinction between commercial exploitation and commercial behavior.

If you don’t permit some behavior in this field, then you’re going to cut out everything out.

People are not going to do anything in this field.

Now, I would — the only good analogy I can think of and it isn’t really right on point, just to refresh your recollection about the clear and present danger test, that is the other test that’s used to determine if protected speech should not be protected because of the context in which it’s used.

Here, if you’ve got material which is borderline or material which is not — which the Government apparently doesn’t feel it can be made obscene without reference to the context and therefore, it’s going to use the context, the question should be whether the behavior of the defendant was such that that it’s clear and immediate that there was exploitation of the unhealthy aspects of the material rather than support of the material that has value.

You’ve had these kinds of rules before and to go not too far field, that is to stand a criminal law field, I point out to you that you have a warrant requirement and that you require warrants to go into premises unless you have exceptions.

And the exceptions are only that wide.

The one I think of that’s useful here is the exigent circumstances.

In order to get around the warrant by saying, a one requirement by saying exigent circumstances permitted us not to get the warrant, the behavior has to be clear and ambiguous.

There are hosts of — Court Of Appeals cases still holds in Wong Sun for instance as I recall it is a case where the man knocking on the door or the policeman knocking on the door and footsteps are running away and that’s still held to be ambiguous and, therefore, not a sufficient exigent circumstance.

Here, you should require a specific unambiguous act which you had in the case as it had been before you.

You have specific advertising which have — which have emphasized the prurient, fallacious aspects of material, sort of to formulate such a rule doesn’t require you to withdraw a cutback or overrule any cases.

Lastly, I would address myself to the issue of — to the ex post facto issue.

I think the key here is the question of what does this pandering rule do to a natural trial of an obscenity case and I think its rather clear that it fundamentally changes the focus and that it makes the whole different ball game than you would have when you just look at the four corners of the material.

The Government and the Court of Appeals tend to treat this as a rule of evidence and — and I think that that’s just putting a label on something and I don’t think its doing — I don’t think it’s solving the problem.

There are a lots of different kinds of evidence rules.

There are evidence rules.

It shift the burden of proof to deal with the burden of who has to go forward and not deal with the quality of evidence, some kinds of judgments can be made.

Oh, you have to have percipient evidence, other kinds you have to have.

I mean hearsay is adequate.

There are probably are couple where double hearsay would be adequate.

There are rules of evidence that cover who can give evidence and who can’t give evidence.

But a rule that actually defines what is material in a given case is that kind of rule of evidence that is a substantial contributor to — to the parameters of the trial.

For instance, if you change the rule of evidence to permit the question — well, if you use narcotics, then it might be relevant in a custody case.

If you change the rules of evidence in a breach of contract case, it permit evidence that someone used narcotics on the theory that people use narcotics or less likely to perform contracts.

That would be a change in a rule of evidence that seemed to me to be material enough that you couldn’t apply it retroactively.

Here, I think there was a clear change which was a big surprise because of People versus Noroff which by my view the California Supreme Court clearly said, “We are not going to have a pandering rule unless a legislature passes it.”

Arthur Wells, Jr.:

I would like to save the rest of my time for rebuttal if there were no questions.

Warren E. Burger:

Very well, Mr. Wells.

Arthur Wells, Jr.:

Thank you.

Warren E. Burger:

Mr. Stein?

William Douglas Stein:

Mr. Chief Justice, may it please the Court.

I’m William Stein representing the people of the State of California in this obscenity prosecution an area in the law which I submit we’ve all probably written in red way too much.

I believe that petitioner’s argument today is based on an erroneous premise and that is that he has been convicted somehow of advertising or promoting the sale of obscene matter.

It’s true that California recognizes an offense of that nature but petitioner was not charge nor convicted of that.

He was convicted simply of the act of selling obscene material.

At trial, the prosecution introduced evidence of the circumstances of the production and dissemination of these two films as material on the question of whether they were obscene under the — then Roth memoirs’ definition of obscenity, a definition under which the prosecution and the juries of California still labor.

Now, petitioner clever way of phrasing this, he uses the — he refers to this evidence of dissemination and production as evidence of pandering and then argues that the instructions relating it to the definition of obscenity resulted in his conviction of — for pandering, a crime with which he claim — which he was not charged concededly.

I submit that we can establish that the jury was not confused in this manner very simply.Petitioner was not charged alone.

Petitioner had a twin brother, Don, who was with the same offense and in a matter of fact, on all of the occasions when Mr. Drivon went to the bookstore to talk about purchasing these films as petitioner pointed out a few minutes ago, he talked mainly with Don, and Don was charged with selling obscene material.

Don was acquitted.

The evidence that petitioner refers to is pandering.

It was mainly the statements of Don, but jury was going to be confused and somehow thought that this evidence made it a crime to pander.

They would have convicted Don along with Roy, but the twin brother Don was acquitted.

Why?

Because the jury understood exactly what the judge told them.

The evidence only went to the issue of social value, one of the three definition elements of obscenity in California at that time.

Selling obscene material is a simple crime.

It has, as I see it, only two elements, the knowing sale of obscene matter.

All of this other evidence goes to the three definitional requirements of obscenity.

So, we submit the petitioner was convicted solely of the act of selling obscene films and if by using this phrase pandering is a verb, he attempts to distract us from this very simple fact.

I believe that after all these years there were little confusion between the parties as to what the facts in the case were.

I think there is general agreement and I only had one think that struck me during the petitioner’s argument and that’s when he said that the defendant told Mr. Drivon, the officer, purchased the films that if he really wanted these films you can go San Francisco, get them.

I’ll refer to the transcript, the page — of trial page 37, lines 24 through 26.

Question to Mr. Drivon, Mr. Drivon talking about the conversations he had states.

He, referring to the twin brother Don, did suggest that if I was in a real hurry to obtain some films that he could go to San Francisco to get them.

I submit the reference is not that he, Mr. Drivon, did go to San Francisco but then if they was in a real big hurry, Don’s plan would be willing to satisfy him by going to San Francisco about 30 miles up the road to get these films and bring them right back.

William Douglas Stein:

It would made it of course made no sense for Mr. Drivon to go to San Francisco since the bookstore here was in the suburban community in California or (Inaudible) Community, San Mateo County and that’s where the prosecution was attempting to limit the distribution of this material.

Okay, the brief also states that the petitioner makes point of the fact that Mr. Drivon had to come back again and again as though he was the moving force in this and was somehow entrapping if you will the petitioner.

But if any — if you read the record and every one of those inferences, everytime he comes back there’s more of them, the more pandering is done by the defendant, this petitioners or his brother and his employee.

I think an answer to what Mr. Justice Rehnquist’s question I want to point out there was an additional exhibit here consisting a 41 photograph that was taken of the interior of bookstore at the time the arrest was made which establishes the, sort of the nature of the place where this activity was taking place where the statements as to the films were being made which was evidenced of the petitioner.

Warren E. Burger:

Am I right in thinking that the Redwood City is a county seeded cemetery?

William Douglas Stein:

That’s correct.

Redwood City is a county city.

Okay, this is important.

There are two procedures that happened during the trial which I think is very important to the outcome of the case.

Before the trial was made, before the trial has happened, petitioner made the non–statutory motion recognizing California under people versus Noroff to have the case dismissed on the grounds that as a matter of law, these films were not obscene.

The motion was denied.

The case went to trial.

At the close of prosecution’s case, defendant made a motion under our statutory provision for a directive verdict of acquittal on the specific grounds and the reference to this is in the transcript at page 495, that there had been no evidence introduced that these films lack social value.

That motion was also denied.

The reason being, of course of the prosecution had introduced, evidences recorded recognizing Ginzburg is probative on the definition elements of obscenity as they were laid down at the time it brought memories.

Because the evidence of production and dissemination is relevant to this definition, the jury was instructed that in determining whether the films were utterly without redeeming social importance, and as a sideline, I’d like to say most of this evidence and all of this instruction went to social importance as opposed to appearing in appeal.

Okay, whether they could consider the circumstances of sale and distribution, particularly whether such circumstances indicated these films were commercially exploited by petitioner for the sake of their apparent appeal.

They were informed such evident — evidence was probative with respect to the nature of the films and can justify the conclusion that they were utterly without redeeming social value.

The weight of any of the evidence of course was left to the jury specifically instructed.

Now, the jury, with respect to social importance of sexual provocativeness in point petitioner made during his oral argument, the jury was further instructed that evidence of the circumstances of production and dissemination were relevant for determining whether social importance claim for the film was in the circumstances pretense the reality.

And if they concluded that the purveyor sole emphasis, sole emphasis was on the sexual provocative aspect of these films, that fact could justify the conclusion that the matter was utterly without redeeming social importance.

Roy Splawn was not trying to sell Lucky Strike cigarettes or anything else by having a pinup girl.

He was making the — the purveyor was the sole emphasis on the sexual aspects of these films that’s recognized as irrelevant to social value and that’s how the jury was instructed here.

John Paul Stevens:

Mr. Stein, just before you leave the instruction, do you submit the instruction as proper as given?

William Douglas Stein:

I do, yes.

John Paul Stevens:

And — and the instruction as I read it says that simply on the basis of emphasis, sole emphasis that you have cited that word of the sexually provocative aspect to the publication.

That fact, I assume that means that fact alone could justify the conclusion that the matter is utterly without redeeming social value.

That would mean even if he was selling Time Magazine that would justify that.

Could you say that’s a correct statement at all or do I misread?

William Douglas Stein:

No, they concluded that that’s correct, if they concluded that his sole emphasis was on the sexually provocative aspect of the film, it could justify the conclusion that it was utterly without redeeming social value.

William Douglas Stein:

That was the way they were instructed again.

John Paul Stevens:

Do you think that’s a correct statement?

William Douglas Stein:

I think it is.

John Paul Stevens:

You were stating —

William Douglas Stein:

I think it is in the sense that this case where they were further instructed of course that as into the Roth Memoirs definition that’s — I don’t want to bore the Court by rereading Roth Memoirs, but it — that they had to find lack of social importance beyond a reasonable doubt.

And I think taken all together in its entire scope the instructions read together, I don’t think they were allowed or disallowed them to just look to it, nothing else find lack of social value but I don’t know —

John Paul Stevens:

But it says it, doesn’t it?

It says that’s all I need.

If you conclude that the purveyor’s sole emphasis is in the sexually provocative aspect of the publication, in other words, there is a picture on page 37 that’s sexually provocative.

That fact can justify the conclusion that the matter is utterly without redeeming social importance.

It doesn’t have to say that if one sells Time Magazine by emphasizing a particular picture in a certain page, that would be enough to justify a jury conclusion that that issue of Time Magazine was utterly without —

William Douglas Stein:

Okay, now I’m focusing on your problem.

Sure, and that would not be a proper statement of the law.

We would all agree to that, but that cannot happen in California.

And the reason that that cannot happen in California is Time Magazine with a single picture in it that maybe provocative or what else would never survive a Noroff motion which was made here.

You see, Time Magazine or many at most material in this area falls into one of three categories.

It’s either obscene as a matter of law and I can’t think of an example but I’m sure there’s some or it’s constitutionally protected which Time Magazine would be and in which case the motion made here under Noroff, that’s why that procedure was important to remember, would block the prosecution.

You’d never get pass that first motion.

John Paul Stevens:

I — I suppose you have three kinds of material, obscene as a matter of law, the clearly not obscene —

William Douglas Stein:

Clearly not obscene, clearly protected, I think that’s important to remember —

John Paul Stevens:

An area in between that’s arguably protected and arguably obscene, is that what we have here?

William Douglas Stein:

By definition, that’s what we have here at least — at least that because in California

John Paul Stevens:

But for purpose of our decision, do we assume that it’s in that area since the judge said that —

William Douglas Stein:

Not only do you have to assume and I think you’re bounded and you have to because —

John Paul Stevens:

Well then —

William Douglas Stein:

— under the California procedure —

John Paul Stevens:

— when you’re in an arguable area, let’s say we don’t have Time Magazine but we have Playboy something that’s much closer to the line.

Then, if there’s a mixture there, articles, pictures and so forth, wouldn’t that be true that this instruction would justify the finding of at least the third element of the test about obscenity, just on the basis of one picture?

William Douglas Stein:

That’s correct but as you point out, — that’s correct as to social importance of the material, true.

But no matter how salacious or how outrageous the pandering of the material is as you point out, Roth Memoirs requires two other elements, but it’d be beyond customary limits of canner in the community and it appealed the prurient interest, both of which have to be proven beyond a reasonable doubt.

William Douglas Stein:

So, I think taken the instructions together, it’s an appropriate statement of the law.

John Paul Stevens:

Do you agree with your opponent that there’s a distinction between sexually provocative material and prurient material?

William Douglas Stein:

Oh, sure.

John Paul Stevens:

That — that — there are entirely separate elements and this instruction only talks about the sexual provocative, it doesn’t talk about prurient.

William Douglas Stein:

That’s correct and the jury was specifically instructed that this instruction only went to the social value not to the prurients of the material.

John Paul Stevens:

Right.

William Douglas Stein:

He can’t make a prurient by telling you it’s prurient.

John Paul Stevens:

And am I also correct in understanding that in California, this social importance aspect to the three parts of the test is a question of fact by the jury?

William Douglas Stein:

That’s correct.

John Paul Stevens:

Each of the three parts of the test are questions of fact —

William Douglas Stein:

Each of the three parts of the test are question for the jury and unlike the federal system and before I came here, I tried to read that instruction given in Hamling, I couldn’t find that for my contacts but I did talk to the U.S. Attorney in Southern California who had an instruction that they give in similar case that should be it was quote and I know this right away, that the issue of close case under the federal instructions is a strictly a jury questions.

It is strictly a jury question.

We show the film or whatever and we put in all of this Ginzburg evidence and everything, and we leave it to you, not so under California.

You have to — you have to get pass that Noroff motion.

It has to be unprotected.

You know, by the matter of law, it has to be outside the First Amendment, then we go to the jury, okay?

In the federal system and that’s the instructions that were affirmed in Hamling.

As I understand it, it goes to the jury and then you tell them to look at the evidence and look at the Ginzburg test, and if you can’t resolve these three things from the face of the material itself, then you can look to this, and then you look this evidence of dissemination and production and you come out with an answer at the end.

John Paul Stevens:

Could you clarify again for me the preliminary motion, does the judge rule that as a matter of law it is unprotected or does a rule that it is not protected as a matter of law?

It’s quite a difference.

Is he just saying, “I will not rule that the case must be dismissed,” or is he saying there is an issue of fact for the jury to decide?

William Douglas Stein:

No, he has to rule that the material is outside the protection of the first — no, he has to rule — yes it is — the matter is then he making — no, he has to dismiss the prosecution if the material is not obscene as a matter of law.

Right.

It is a matter of law and that test of course comes up again and it’s that —

John Paul Stevens:

But — but when he denies the motion, he does not rule as a matter of law that it is unprotected?

William Douglas Stein:

No, the defense may be able to show that although the matter is outside the First Amendment, the didn’t treat it in the manner which renders it within the Ginzburg of the Roth-Memoirs definition of obscenity.

John Paul Stevens:

(Inaudible) the jury and we get this instruction and you loose because you had one picture in the magazine?

William Douglas Stein:

Not at all because if it’s only picture in the magazine, the prosecution wouldn’t get over the Noroff, I accept it as a matter of law.

Thurgood Marshall:

Well assuming the judge did —

William Douglas Stein:

Well, then we go — then we go on appeal, he’s entitled to the same standard as the trial judge has to use under Noroff to review the material on appeal and as I understand it —

Thurgood Marshall:

Is he entitled to an appeal from the ruling of the judge at that stage of there?

William Douglas Stein:

Nobody’s entitled to raise it on appeal as though —

Thurgood Marshall:

That’s right.

He did try to raise it.

William Douglas Stein:

Yes and he’s entitled to one more before he gets to appeal which —

Thurgood Marshall:

It’s sort of censorship, isn’t it?

William Douglas Stein:

The censorship?

Thurgood Marshall:

Judicial —

William Douglas Stein:

Yes we are —

Thurgood Marshall:

— (Inaudible) censorship —

William Douglas Stein:

We are censoring material that’s outside the First Amendment in California and we would —

Thurgood Marshall:

That’s all it is, the judicial censorship.

William Douglas Stein:

We would intend to do that.

The — any — but I don’t think it’s important to remember.

He gets another bite at the apple.

After the prosecution puts all its evidence in, he made the statutory motion to acquit for failure of the proof and that was denied, and that’s reviewable on appeal, yeah.

Byron R. White:

If — if this case had arisen before the 1969 Amendment to California law, do you think the instructions given would have been appropriate at that time?

William Douglas Stein:

Yes, oh yes.

I don’t think the — I think the evidence was relative and it was probative as recognized in Ginzburg and maybe even before.And it’s so that the statute merely recognizes the relevance of the evidence.

All relevant evidence was inadmissible in California —

Byron R. White:

And instructions —

William Douglas Stein:

— prior to that.

Byron R. White:

— like this — instructions like this could have been given, do you know whether or not they were given?

William Douglas Stein:

No, I’m not aware of any case in which they were given prior to this.

One way or the other, I have not tried — I’ve not been active in the trial of obscenity cases, only in the appellate level and after this event.

Byron R. White:

Do you read the instruction as merely identifying evidence that is probative?

William Douglas Stein:

It’s probative on the definition of the Roth-Memoirs definition of obscenity, yes.

John Paul Stevens:

I understand that your opponent says that — I haven’t read the Noroff case.

I suppose I should have by now, but he says that case held that the pandering evidence would not have been admissible?

William Douglas Stein:

Sure.

John Paul Stevens:

So, if the evidence was even admissible, how could the instruction have been given?

William Douglas Stein:

I disagree with that reading of Noroff and I’ll leave it to your — to read it and analyze it yourself.

But basically, I’ll tell you what happened, as it was matter — it was protected as a matter within the First Amendment as a matter of law was prosecuted, okay?

And the California prosecutor said, “United Supreme Court has come down with Ginzburg which allows us to bootstrap this material out of the First Amendment, into area of obscenity because of the way this fellow pandered.

And California says, “You might be able to do that in California if you had the same statute that the federal government has which you have a statute about advertising in the mail statute, advertising and pandering a matter as obscene.

But in California, we didn’t have that statute.

They said, absent that statute, there’s no way you can get protected material up into or out of the First Amendment down into the area of obscenity on the use of this evidence, so they threw it out.

Then the trial judge’s motioned — the trial judge’s dismissal of the prosecution was affirmed in People versus Noroff, thus, leading to the non-statutory motion that’s made in every obscenity case since that this indictment here has to be dismissed because the matter is protect as a matter of law.

John Paul Stevens:

In other words, this argument assumes that the pandering evidence was proper in a federal prosecution because of the federal statute?

William Douglas Stein:

Yes.

John Paul Stevens:

But the Memoirs, the last section of the Memoirs case suggest the contrary isn’t it?

Are you familiar with the last section of that opinion in which the ladies chatter, this lover, whatever the name of the — that’s not the one.

Anyway, the old English work was held to be to have social value.

There is a section that says that we don’t have any evidence of pandering before?

It wasn’t — and that’s the state case.

William Douglas Stein:

Right.

John Paul Stevens:

I don’t understand how you can rely on the federal statute as the only basis under Ginzburg and Memoirs or pandering evidence being relevant which I understood you’d argue.

I guess my question is pretty bad.

William Douglas Stein:

No, I’m afraid —

John Paul Stevens:

What I’m —

William Douglas Stein:

— yes —

John Paul Stevens:

— suggesting, I think the last part of the Memoirs’ opinion is contrary to your argument and if it is, then I wonder if we don’t have a California ruling that said as a matter of state law, this evidence was not being admissible and therefore isn’t your point correct that this instruction would have been improper?

William Douglas Stein:

No.

The — the Noroff decision says that if the matter is within constitutional protection within the First Amendment, there can be no prosecution in California because there is no statute that allows prosecution for the advertising of non-obscene matter as obscene.

John Paul Stevens:

Well, therefore, wouldn’t — this is also a state prosecution, wouldn’t it follow from that case?

The pandering evidence in this case would also have been inadmissible.

William Douglas Stein:

No, because the predicate of Noroff is that the material is non–obscene, entitled to First Amendment protection, okay?

Here, that is not the fact and the First Amendment protection cannot be lost by pandering evidences.

John Paul Stevens:

That’s right.

William Douglas Stein:

That’s right and if this material was within the First Amendment, pandering evidence could not have been admitted.

William Douglas Stein:

We couldn’t even get passed the motion to dismiss stage, well because it’s outside and I don’t believe Noroff —

John Paul Stevens:

Well but if it isn’t the case and Noroff then saying that pandering evidence cannot make the difference between material being protected and being —

William Douglas Stein:

Sure —

John Paul Stevens:

— unprotected?

William Douglas Stein:

— and that’s the point.

John Paul Stevens:

And here, it did make the difference because the jury followed the instruction.

William Douglas Stein:

Here’s the point, pandering evidence can’t convict the defendant of a crime he didn’t commit.

The only crime here is selling obscene matter.

The pandering evidence goes to whether the matter is obscene or not.

Maybe I’m not being myself — I realize I’m not getting crossed, but it doesn’t — we didn’t make a crime that didn’t exist.

Selling obscene matter has been a crime in California as far as back as I could trace in the statutes.

He knew that selling obscene matter was — what’s he’s saying is —

John Paul Stevens:

Why — why in this prosecution was any evidence of pandering put in or why did you need the pandering instruction now?

What function did it play in this trial?

William Douglas Stein:

Oh the function that it plays is you have recognized the difficulty of placed on the prosecution by Roth-Memoirs to prove a negative beyond a reasonable doubt.

The prosecutor has to prove utterly without redeeming social value beyond a reasonable doubt.

And we could all say and if I was trying the case again, I might say, “Well, these films are so bad,” but I don’t need any other evidence.

Roll the projector and I’ll make an argument to the jury, but the prosecutor is faced with the problem and he’s lost 10 of these in a row and he’s got this bookstore down in Redwood City and he’s going to say, “Well, I’m going to try the best I can,” and Ginzburg says this evidence is relevant and utterly redeeming on the test of obscenity as to other social value and I’m going to take the whole shot I can.

Warren E. Burger:

Under Miller, this is no longer relevant, isn’t it?

William Douglas Stein:

But unfortunately, California still labors under that Roth-Memoirs test.

Under Miller, this would not be a problem.

We believe that the — you have recognized in Hamling that the instruction was properly given in a pre–Miller federal prosecution, we’d ask for the same consideration of the state prosecutors who still toil.

Warren E. Burger:

Are the state’s evidence here on pandering and response in part to the effort of the defendant to show that there was a redeeming social value to this material?

William Douglas Stein:

No, the evidence came in on the case-in-chief on direct and in the matter fact, the only — the defense moved that the close of the case.

Warren E. Burger:

Well, you just said that you have the burden of proof in your case-in-chief to prove the absence?

William Douglas Stein:

That’s correct of social values.

Warren E. Burger:

So that would be the place where it commend.

William Douglas Stein:

That’s where you have to put it in, right.

Warren E. Burger:

I’m anticipating in effect to that aspect of California’s burden under your —

William Douglas Stein:

And the close of the people’s case if we have not proven, that we have not — but at least raise the jury issue on social value, his motion to dismiss would have been granted and we’d be — well, we wouldn’t be here.

Byron R. White:

(Inaudible) California need any more proof in the materials do you?

William Douglas Stein:

No, we still recognize as this Court recognize that the —

William H. Rehnquist:

It’s hard to fail, hard to fail in your proof, isn’t it?

William Douglas Stein:

As long as the projector —

William H. Rehnquist:

That’s on its face, the material.

William Douglas Stein:

The projector bulb doesn’t fail, we usually do.

We have a prima facie case.

Petitioner pointed out and it’s a point I’d like to emphasize that this Court decides obscenity cases not merely to rule upon the alleged obscenity of the material but to guide lower federal courts, state courts, legislators, and prosecutors.

In Miller, you recognize the difficulty of the burden has been placed on us under the Roth-Memoirs test.

You recognized in Ginzburg that this kind of evidence is relevant to that test.

We still have it in California.

We’re not about to get rid of it apparently.

We believe we were entitled to produce the evidence, given the — given these instructions in which you recognize is proper in Hamling, which we think is fine.

Warren E. Burger:

You still have the Roth-Memoirs test in California, is that as a matter of state constitutional law?

William Douglas Stein:

That’s state statutory law.

Warren E. Burger:

State statutory law?

William Douglas Stein:

Yes, there are statutes that were periodically reacted following this Court’s decisions and it stopped at Roth-Memoirs, and it’s been hung there.

Byron R. White:

They ran out of ink.

William Douglas Stein:

Excuse me?

Byron R. White:

Ran out of ink?

William Douglas Stein:

It’s all in the magazine business, yes.

John Paul Stevens:

Let me — let me just — I’m not sure I didn’t leave the subject before I fully understood it.

On this instruction, a one picture in Time Magazine problem, supposing that one picture is clearly, patently offensive, clearly appeals to unhealthy prurient interests, and then the question is whether the work — well, the remaining issue then is the work as a whole without utterly redeeming social value.

And on that issue, that instruction would let that magazine be found obscene.

William Douglas Stein:

They’re instructed though that they have to find the material — I mean I could read — I’ll read the whole thing, but the material taken as a whole must be utterly without redeeming social value.

John Paul Stevens:

But that issue, they can resolve that issue solely on the basis of evidence it was sold by reason of appeal to the —

William Douglas Stein:

And they would find under that instruction that it was utterly without redeeming social value?And then, could they say, taken as a whole.

John Paul Stevens:

But that instruction would permit them to.

William Douglas Stein:

It goes to social value.

I’m not sure that they could say it was taken as a whole but even if they could, they have to still find taken as a whole that it appeals to prurient interest and taken as a whole goes beyond the customary limits of candor in the community, except (Inaudible) the community.

John Paul Stevens:

I see your point, yes.

William Douglas Stein:

See, the bible, — let’s say the bible cannot be elevated out of the — I hate to — it’s a negative we’re talking about.

It can’t be removed from the First Amendment and made, somehow, obscene no matter how he portrays it or how he tells me.

What he tells me this thing is, because it’s a three-part test, and beyond a reasonable doubt in the work taken as a whole.And these instructions went just to the evidence of dissemination and production.

Now, as far as the fact that the — that Mr. Splawn was not the creator, I doubt that Hamling created the photographs that he put together and assembled in this thing and disseminated it.

Hamling was the disseminator, Ginzburg was the disseminator.

Roy Splawn is the disseminator.

The creator of the material motives are important to determining whether that material is what it purports to be.

I took a few minutes off the other day and went down to the Hirshhorn Museum.

When you stand in front of the pictures, what comes to kind?

You’re trying to think, “What is the intent of the creator of this picture?”

The intent of the — the creator himself doesn’t have to be here on trial.

We’ve got the film.

You can look at the films.

They were created by him.

What was his intent?

That’s important to determining the social value of that material, what he was intending to do.

Roy Splawn, his testimony, he made a phone call.

He’d seen the movies.

He knew what was in them.

And so, I think the fact that Roy Splawn didn’t create the movies, there’s no evidence that he did.

It doesn’t preclude giving these instructions, or preclude the prosecution from using this evidence.

I think it’s important too to point out that the jury was never instructed that they could substitute this evidence for any of the definitional requirements of Roth Memoirs.

They were instructed that the purveyor’s emphasis was on the sexually provocative aspects of the film.

The motive of the creator was an appeal to sexual curiosity and appetite by animating sensual detail as to give the film a salacious cast, that that was evidence that the films were obscene but they were never instructed they could jerk that.

If we can’t understand the Roth Memoirs test, we’ll just junk that and we’ll go to his evidence.

That’s not in those instructions, barely written.

They merely advised the jury that the evidence of the circumstances of production and dissemination were probative with respect to petitioner’s claim of redeeming social value and could justify the jury’s conclusion that his claims were pretense for litigation, not the way he sold these materials to Arvin Drivon.

I’d just say the imbalance that — the statute is cast in terms of the prosecution evidence, but the prosecution bears the burden.

But Ginzburg recognizes the probative value of the evidence, and if the defendant had introduced evidence, if he treated these films seriously, he would have — I concede that he would be entitled to a similar instruction, that the jury could consider the way he considered the film as probative in social value.

William Douglas Stein:

The evidence, the instructions are weighed in favor of the prosecution because that’s all the evidence there was.

And the fact that the statute’s weighed in favor of the prosecution, it doesn’t mean the only evidence that they are being treated in a pandering manner is admissible evidence for those instructions.

I want to thank the Court for you attention, if there’s no other questions, I appreciate it.

Warren E. Burger:

Very well.

Do you have anything further Mr. Wells?

Arthur Wells, Jr.:

Yes, I have a brief rebuttal which will be shotgunned, for which I apologize.

The reference in the record to the statement where Mr. Splawn told Mr. Drivon he could go up and get them himself is at page 338.

And I don’t think Don Splawn’s acquittal means anything because the very large issue in this case was the issue of entrapment.

Mr. Drivon was in constant contact with Don and I think that provides one reason and the general rule is one finds all reasons in favor of a judgment that should apply in this case.

As I understand California law, there is a case.I think it’s called Sheer versus Municipal Court.

I’m sorry I do not have the citation, which holds that where a publication has discreet and I use that to mean separate and not in its other meaning — items, you can look at any one of the items to determine relevant constitutional test or statutory test for obscenity, and if so, the material can be found obscene.

Sheer ran the Berkeley Barb and that’s why I recall that’s the case.

I could get that citation if you wished.

Therefore, it would be my view that in the Time Magazine case, if there was one obscene picture or one picture that could — that had the qualifications which you suggest that might have, the magazine could be found obscene and a Noroff motion wouldn’t save it.

I think the Noroff motion — these cases arrive mostly in the Municipal Court.

And what happens is that in California, you don’t have any preliminary type hearing to get rid of the chase like you would with a felony.

You don’t have a preliminary hearing.

In the Noroff motion, it’s frankly a substitute to get rid of the stuff that shouldn’t be going to trial at all.

Now, I don’t think you can characterize this rule fairly, these pandering rules as merely evidence rules, because what they are, they’re part now of the definition in California.

I will say, however, that under the holding in Marks versus United States, I think that Mr. Splawn will always be entitled to Roth Memoirs standards, and I think for him, they’re constitutional standards.

Hamling is an entirely, as I read what you quoted in Hamling, an entirely different set of instructions which were much fairer.

There, the Court said if it’s a closed case, look at all of the circumstances.

And didn’t say anything about sexual provocativeness, and didn’t say anything about the motives of the creator.

And I will say that while the distinctions between producers and creators may not be significant, the point was that Ginsburg was on trial for behavior that he did, and Hamling was on trial for behavior that he did, and Splawn is on trial for what the creator did, and there’s no connection between them.

Potter Stewart:

Did you — did you object to all of the instructions that you’re not telling us are —

Arthur Wells, Jr.:

Yes, there’s a general instruction.

What happened is this was covered in the — everything was gone through in Chambers, and then there was a general blanket instruction.

The matter was covered by the Court of Appeals specifically, and I think, therefore, all of these issues are before you because under Jenkins versus Georgia, it hadn’t been raised below and the fact that it was considered by the Court was deemed adequate.

I would leave you with this point.

For the very reasons that he suggests that there’s evidence of pandering in this record is the very reason why you have to formulate a rule limiting it.

Arthur Wells, Jr.:

This is a case where a policeman had asked four or five times for hardcore material, and then because Mr. Splawn said, “Hey, you know I can get in trouble for this stuff.”

That statement is now being used to say that he pandered the material when it was perfectly clear that Drivon wanted the material already, but the sale unaffectedly had been consummated even though the money hadn’t changed hands, and what was perfectly obvious that it was a nervous seller who wasn’t usually doing this and that what he was doing was just trying to urge the guy not to spread it around.

It’s not evidence of pandering and any set of rules that permits it to be used as such is an unfair set of rules.

Thank you very much.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.