Stanley v. Georgia

PETITIONER:Stanley
RESPONDENT:Georgia
LOCATION:Stanley’s Home

DOCKET NO.: 293
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 394 US 557 (1969)
ARGUED: Jan 14, 1969 / Jan 15, 1969
DECIDED: Apr 07, 1969

Facts of the case

Law enforcement officers, under the authority of a warrant, searched Stanley’s home pursuant to an investigation of his alleged bookmaking activities. During the search, the officers found three reels of eight-millimeter film. The officers viewed the films, concluded they were obscene, and seized them. Stanley was then tried and convicted under a Georgia law prohibiting the possession of obscene materials.

Question

Did the Georgia statute infringe upon the freedom of expression protected by the First Amendment?

Earl Warren:

Number 293, Robert Eli Stanley versus Georgia.

Wesley R. Asinof:

May it please the Court.

I would like to request the marshal to notify me when 25 minutes is up, I’d like to save five minutes for rebuttal, if I may.

Earl Warren:

You’ll find a white light to come up in front of you.

That would be the five-minute warning.

Wesley R. Asinof:

Thank you.

Earl Warren:

Mr. Asinof, you may proceed with your argument.

Wesley R. Asinof:

Thank you.

Mr. Chief Justice and members of the Court, this case involves the constitutionality of the Georgia obscenity statute.

The questions raised by this appeal, in so far as the constitutionality of the statutes is concerned, are two-fold.

First, we raise the question that the statute violates the First Amendment because it punishes the mere possession of obscene material without requiring any further overt act on the part of the possessor or intent to do anything with it.

William O. Douglas:

What kind of possession was this?

Wesley R. Asinof:

This was a possession, if Your Honor please, where Robert Eli Stanley had possession of three reels of motion picture film in a desk drawer of his upstairs bedroom of his home.

There was no allegation in the indictment of any showing or attempt to exhibit or show these films or pander them or show them to minors.

The only question involved in so far as the indictment was concerned was that he possessed them knowing them to have been obscene or that he should reasonably have known them to have been obscene.

The second question of our constitutional attack on this statute is the use of the language in the statute and in the indictment to the effect that he reasonably should have known of the obscene nature of the film removes the element of scienter from the definition of the offense.

And thus, permits the state to secure a conviction for possessing these films on a showing less than actual knowledge on his part that they were obscene.

William O. Douglas:

Are they concededly obscene?

Wesley R. Asinof:

We do not concede them to be obscene and if we took that position with the trial court that under the First Amendment in so far as possession itself is concerned that there is no such thing as obscenity.

The reason we took that position and now take this position is this, that it would be a violation of the Freedom of Press Clause of the First Amendment to restrict a person or to prohibit a person from possessing anything they want in so far as its claim of obscenity is concerned.

We take the position that where a person merely possesses an article alleged to be obscene and does not attempt to distribute it or show it to any other persons, as was the case in this case and as was the indictment in this case and as with the holding by Supreme Court that the mere possession is an offense under the definition Georgia law that any evidence in the case on the part of the state or any contention on the part of the state to the effect that the evidence might have circumstantially show that he was about to have a party and about to show these films to other persons would be completely irrelevant for this Court to consider.

It has no relevancy here because of the fact that he was only charged with the mere possession.

Now, to my knowledge, this exact question has never been passed upon by this Court.

The question of whether or not a person can be prohibited by the states from merely possessing obscene material or obscene writings or pictures.

Clearly, it would seem to me that the mere possession, that anyone would have the right to say draw a picture which might obviously be obscene to some other persons and put it in his pocket or put it in his desk drawer.

Or if he wanted to take a picture of himself or picture of himself and his wife in a sexual act that this would be a matter that he could determine as long he did not attempt to pander this material, attempt to sell it, distribute it, or distribute it to minors.

William J. Brennan, Jr.:

I suppose when these films were in a desk drawer, weren’t they?

Wesley R. Asinof:

These films were in a desk drawer.

These of course —

William J. Brennan, Jr.:

And could be as looking at the film, he couldn’t tell it were?

Wesley R. Asinof:

Could not.

William J. Brennan, Jr.:

Now, what did the officers do?

Wesley R. Asinof:

The officers and this is — I might as well mention this at the outset right here.

The second part of our contention is, the officers were armed.

They were federal and state officers, were armed with a federal search issued by United States Commissioner on a claim that the defendant was violating the Wagering Tax Act.

Thurgood Marshall:

The what?

The Wagering Tax Act.

Wesley R. Asinof:

Since then, of course, this Court has held that the provisions of that law are constitutionally impermissible.

William J. Brennan, Jr.:

Well, I’m trying to get to this.Did the officers use a projector to see the films?

Wesley R. Asinof:

Yes, yes, yes.

This —

William J. Brennan, Jr.:

Then and there?

Wesley R. Asinof:

Yes sir, then and there.

They went in on with the search warrant issued by the United States Commission which did not call for the seizure of any obscene film but call for the seizure of gambling paraphernalia.

No gambling paraphernalia was seized except some negligible things that I think the state concedes were not sufficient but during their search, they search through his drawer and found three cans of films, eight-millimeter film which they testified, they could not discern or know from their own knowledge that it was or what it was.

So they found in the closet a projector and they found a screen and they showed these films, and looked at them and —

Byron R. White:

They set up the screen?

Wesley R. Asinof:

Then they set up the screen and they showed them.

Byron R. White:

Is there any conceivable circumstances in which if you saw the film that it could possibly be connected with gambling paraphernalia?

Wesley R. Asinof:

I would think not.

I would not think not.

I wouldn’t know that there was any connection between them but what happened after they showed these films not having a warrant to seize the films.

The evidence shows in the case and in the record that the officer, the state officer called the Solicitor General who was the prosecuting officer for that circuit and told him they didn’t find gambling paraphernalia but that they did find some films and it’s in the record that Solicitor General then stated to him, “after you view the films, if in your opinion they are obscene, seize the films and book a case, and I’ll set a bond.”

William J. Brennan, Jr.:

Well, tell me, suppose instead of these films, they found counterfeit bills, couldn’t this fellow have been prosecuted for possession of counterfeit bills?

Wesley R. Asinof:

I think so.

William J. Brennan, Jr.:

How do you distinguish it?

Wesley R. Asinof:

I distinguish that and I concede that where evidence is seized or when a contraband is seized where it’s not such as would be subject to a claim of the First Amendment, freedom of press or freedom of speech that the states do have the right to prohibit the possession.

William J. Brennan, Jr.:

I take it Harris, — with Harris —

Wesley R. Asinof:

Yes.

— that is counterfeit money.

Wesley R. Asinof:

Yes sir.

I think any case.

Now, we concede that in our brief and make that distinction that in this particular case, these were films alleged to be obscene from the very start.

They weren’t seized as gambling paraphernalia but they were seized under a warrant issued by United States Commissioner under the Wagering Tax Act, under a contention that the defendant had not registered as a gambler.

William O. Douglas:

Was this man a merchant or distributor of any kind?

Wesley R. Asinof:

No sir.

He was not.

There was no claim of any distributorship.

He was an individual in his own home.

The state of course alleged and contended that he had a record for gambling in the past and that federal agents, the state agents, were going in for that purpose, that they had probable cause.

One of the contentions in the affidavit being that he had not registered as a gambler and paid his tax which of course since then in Grosso and Marchetti, this case has —

William J. Brennan, Jr.:

In the prosecution and the actual trial for possession of these films, was there any effort — would this prove that the possession of the films was for the purpose of sale?

Wesley R. Asinof:

No, sir.

William J. Brennan, Jr.:

It was just naked possession of the film.

Wesley R. Asinof:

This is the —

Thurgood Marshall:

There was one — there was one other point.

There were biscuits in the kitchen.

Wesley R. Asinof:

This was brought up in the brief to this Court, that there were biscuits being ready to put in the stove, that there were well-dressed people who came to the house, that this man was a bachelor and his girlfriend had come there and that the officers had turn them away.

They said that the table was set for eight people.

It looked they were fixing to have supper, getting ready to have supper and for this reason they said that apparently, he was going to have a party.

This was the conte — this is now the contention raised by the state.

But I want to call the Court’s attention to this that —

Hugo L. Black:

Where was that?

Wesley R. Asinof:

Sir?

Hugo L. Black:

Where was that in Georgia?

Wesley R. Asinof:

In Atlanta.

The —

William J. Brennan, Jr.:

Was there any claim that this party was going to include the showing of these films.

Wesley R. Asinof:

That’s what they claimed.

They claimed circumstantially.

Wesley R. Asinof:

There’s no evidence of that law.

The defendant denied knowing anything about the film.

William J. Brennan, Jr.:

Well, as I understood you to say, neither screen nor projector was set up.

Wesley R. Asinof:

That’s right.

William J. Brennan, Jr.:

And the films were in cans in the desk drawer.

Wesley R. Asinof:

Upstairs in the bedroom of the defendant in a desk drawer.

William J. Brennan, Jr.:

But you say the claim — was there any effort at the trial to show that he was going to have a party including showing these films?

Wesley R. Asinof:

No, sir.

None whatsoever.

No testimony of that at all.

Byron R. White:

But what do you do with films normally?

Wesley R. Asinof:

Well, I would imagine that you would show —

Byron R. White:

As souvenir or show?

Wesley R. Asinof:

Well, I think that an individual could do as he pleases with it but the point is in this case, and this is the paramount we bring in here that the state did not contend by its indictment that he had any to intent show them and this was one of our grounds of demurrer in the trial court in the state court.

Byron R. White:

That he could show them to somebody else.

Wesley R. Asinof:

Whether there was any intent to do anything with it.

William J. Brennan, Jr.:

Or even to show them (Voice Overlap) was nothing as I understand you.

There’s nothing to indicate except that he had them in the drawer and he had them on the closet, he had a projector and a screen.

Wesley R. Asinof:

That’s right.

For his showing and for his own use.

William J. Brennan, Jr.:

Or may be he wasn’t going to show them at all.

Wesley R. Asinof:

Maybe he wasn’t going to show.

He contended by his —

Byron R. White:

But if somebody keeps it?

Wesley R. Asinof:

Well, he could.

In his statement, he said that I have never seen these films before, that a man brought them to my house on Labor Day which was about four or five before this but the point was that the state at no time in its indictment charges, we demurred on the ground of vagueness of the Georgia statute.

The Georgia statute did not specifically make the mere possession on offense and that we ask for interpretation by the state court and got it.

The Supreme Court construed the language to be sufficient to make the mere possession on offense and that’s why we’re in this Court.

Because of the fact that we are reinforced by the state court decision holding that the mere possession is an offense and we say that gives it an unconstitutional interpretation.

Potter Stewart:

The nub of this case appears on page 69 of the appendix, doesn’t it?

Potter Stewart:

Right at the top of the page, that one sentence.

Wesley R. Asinof:

I believe so Your Honor.

Potter Stewart:

It is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was with an intent to sell, expose, or circulate the film.

Wesley R. Asinof:

That’s correct.

Potter Stewart:

And that’s a clear holding by your — the highest court of your state that mere possession or as my brother Brennan says, naked possession is sufficient to constitute a criminal offense.

Wesley R. Asinof:

That’s correct.

That is the holding of the Supreme Court, so the question is squarely before this Court as to whether or not under that interpretation, given to or by the Supreme Court of Georgia whether or not that can be squared with the First Amendment whether mere possession of material alleged to be obscene pictures or writings can be constitutionally made a criminal offense.

Hugo L. Black:

To get it down a little closer, it is that naked possession, pictures of naked persons cannot be kept in a person’s house for that is committing crime.

Wesley R. Asinof:

Under Georgia, under the interpretation given by the Supreme Court of Georgia, that is correct, Your Honor.

William O. Douglas:

What did this fellow get, a year?

Wesley R. Asinof:

Yes, sir.

He received a year’s punishment in prison.

That was fixed by the jury and it was under the charge of the court, of course under Georgia law, peculiarly, the jury fixes the punishment and under the charge of the Court, the Court charged the mere possession as being — that that’s all they have to consider together with either that he had knowledge that they were obscene or that he should reasonably have known of its obscene nature.

Now, this gets to the scienter question whether or not a state can withdraw the element of scienter by permitting a conviction to rest upon less evidence than actual knowledge that it is obscene.

Has your client been out on bail?

Wesley R. Asinof:

Yes, he’s been out on bail and the second question involved in this case as I stated is that this Court has held in Grosso and Marchetti, since this case was tried that the Wagering Tax Act is constitutionally unenforceable.

Now, this holding by the Court, we say, renders the search warrant that was issued in this case invalid.

We filed a motion to suppress in the trial court.

In our motion to suppress —

Byron R. White:

When was the search warrant issued?

Wesley R. Asinof:

The search warrant was issued before Grosso and Marchetti decision.

It was issued 1967 but it was about — it was some months before Grosso and Marchetti.

But we filed a motion to suppress the evidence and in our motion, the allegation was made that the films were seized without a valid search warrant, particularly describing the articles to be seized.

That language we say is sufficient to now reach back as of that time and say that that was a sufficient attack upon the warrant itself.

Byron R. White:

Do you argue — do you argue at all that even if the warrant was valid and even if Marchetti and Grosso aren’t retroactive that nevertheless the search was invalid because the warrant described gambling paraphernalia and they nevertheless seized the film which — it isn’t like running across contraband that you can just by spying out the plain site.

You have to actually look into the film to find out what’s in it.

Wesley R. Asinof:

Not only look into the film —

Byron R. White:

Do you take that argument?

Wesley R. Asinof:

Yes, sir.

Not only look at the film but there had been — this requires on the question of obscenity, it would require at least a finding of the magistrate to determine that these films were obscene.

Wesley R. Asinof:

In this particular case, the evidence is clear that this officer called the Solicitor General and asked the Solicitor General what to do and he told him, if in your opinion they are obscene, seize the films and make a case and I’ll set the bond.

Now, we say that this would require before a film or a picture or photograph or anything else can be considered to be obscene, there must be some judicial finding, some notice, some knowledge that these films have been declared to be obscene at least that much and we say that for that reason, that even though officers would be authorized under search warrants to seize contraband not named in the article that they would not be authorized to seize films alleged to be obscene, that the Solicitor General himself had no judicial powers under law of Georgia, had no right to himself has seized in the films, but in this case, he delegated some sort of judicial power to the officer making the — making the finding and told him if in your opinion, they’re obscene then make a case.

William J. Brennan, Jr.:

But you’re — I take it you’re relying on Marcus.

You’re relying on Marcus?

Wesley R. Asinof:

Yes sir, Marcus case.

William J. Brennan, Jr.:

Of course Marcus involves as I recall it isn’t it, a warehouse full of books which there were six or seven that the police have purchased and there on the basis of police examination of the books, they issued the warrant.

Wesley R. Asinof:

That was under the Missouri statute.

William J. Brennan, Jr.:

And we said that they have to have a determination offense but it’s a little different.

Here you have just a single item, just how would you get the film to have a determination of obscenity before a search warrant is issued.

Wesley R. Asinof:

Well, if he had it — if the Solicitor General had instructed the officer, submit your facts to a magistrate and if he —

William J. Brennan, Jr.:

What facts?

He definitely takes the films.

Wesley R. Asinof:

Well, no.

He could by affidavit submit to a magistrate who was authorized to issue a warrant, he could submit what these films revealed to him.

Byron R. White:

According to another argument, he wasn’t even entitled to look at them.

Thurgood Marshall:

That’s right.

Wesley R. Asinof:

That’s right.

He was not even entitled to look at them which of course is again the question.

But we say under either one of those theories, the seizure of the film was illegal.

William O. Douglas:

Well, it wouldn’t be obscene unless it lacked some socially redeeming values as I understand it.

Wesley R. Asinof:

Well —

William O. Douglas:

You couldn’t tell that unless you saw it.

Wesley R. Asinof:

Of course Your Honor that’s true but we — I think that’s something that has been the subject of discussion for many, many years as to whether or not an item does have redeeming social value or whether or not it could be classified as obscene.

Whether or not —

William J. Brennan, Jr.:

Were these movies shown at the trial?

Wesley R. Asinof:

Yes sir, the movies were shown at the trial.

William J. Brennan, Jr.:

In the jury trial?

Wesley R. Asinof:

Yes, sir.

William J. Brennan, Jr.:

Are they here?

Wesley R. Asinof:

Yes I think this Court has it and I would say that of course I think and I would concede to this Court that the pictures, the films in so far as films are concerned I think are disgusting but I don’t know if disgusting makes them obscene.

Wesley R. Asinof:

I don’t know that they would appeal.

They wouldn’t appeal to my prurient interest.

I don’t know whose prurient interest they would appeal to because I think that they’re sickening.

But I don’t think that there’d be anymore sickening than it would be to show a man being tortured to death and having guts tore out but that wouldn’t be obscene.

It’s really hard to say what obscenity and I — but getting right to the point in this case, we say that if they are the vilest, the foulest, the filthiest pictures that could ever be seen that a person has the right to possess them as long as he does not, and this is what this Court held last year in Redrup and the other cases along with Redrup, that as long as there is no pandering, as long as there is no exhibition to minors and as long as there is no intrusion upon the privacy of other persons who are unwilling to see them then of course, we have nothing to and this is all we have in this case.

Unless we want to accept state’s theory that because there was some biscuits being prepared, put in the stove, because of the fact that there was table that was set for eight when they were going to have dinner, and against the statement of the defendant on the trial of the case, nothing to refute that that a man had brought these films to him several days before and told him, “I have some films, I’d like you to see.”

Now, we say this, if the Court please, that wherever we find that a question of obscenity is concerned or whether or not we know that something is obscene.

If A tells B, I have some pictures here I want to give you and these pictures are obscene.

Does that say that B cannot determine or ascertain for himself whether they are obscene to him or does that mean that he would have the right to him first himself inspect those films and say I have a right under the First Amendment to determine —

William J. Brennan, Jr.:

Well, you don’t have that case here, why argue that case?

Wesley R. Asinof:

Well, that is —

William J. Brennan, Jr.:

All you have here as I understand it assuming the obscenity of these films, a question whether the possession and nothing more not for sale or otherwise but just possession of itself constitutionally can make a crime under the First Amendment.

Wesley R. Asinof:

That’s correct.

William J. Brennan, Jr.:

Isn’t that what it is?

Wesley R. Asinof:

That’s right.

And that’s why I say if Your Honor please, that because of that, a man has right to determine for himself if it offends him, if to him it’s obscene because it would violate the First Amendment that if a man handed me some films.

William J. Brennan, Jr.:

Is there anything in this record to show that he had any knowledge of what these films were?

Wesley R. Asinof:

None whatsoever except the fact they said an expert testified that the films have been scratched, one of them was been wound backwards to show that someone had seen them at some time in the past but nothing to show that he had seen them or he had ever viewed them.

And there’s nothing to refute or rebut his statement that he had never seen them before.

Hugo L. Black:

Were they in his trunk upstairs or drawer?

Wesley R. Asinof:

It was in a desk drawer of his bedroom upstairs.

And there was no set up, nothing set up, no screen set up to show these or view these films.

Hugo L. Black:

There’s a difference between this and Wilkes case that was tried a long time ago that there they found a paper in the bottom of his trunk, here they found it under desk drawer.

Wesley R. Asinof:

Well —

Hugo L. Black:

And they turned them loose.

Wesley R. Asinof:

I think that would analogies.

So I would like to reserve what time I have.

I know the white light hasn’t come on, I would like to reserve if I may the time for rebuttal.

Earl Warren:

You may.

Mr. Sparks.

J. Robert Sparks:

If it please the Court.

I am the trial counsel who prosecuted this case in the court below, the Superior Court of Fulton County.

So the court has original trial counsel.

Mr. Asinof was a defense counsel.

Now, I want to point out several things to the Court which I think Mr. Asinof neglected to point out because he was so wrapped up in his own argument.

One is this, on the question of whether or not this Georgia statute contains the element of scienter.

I want to point out to the Court that the Supreme Court of Georgia ruled on that in this very case.

The Court said, I’m just reading in part, just a line.

It’s contended that being contended that the requirement of reasonable knowledge would withdraw the element of scienter from the definition of the offense and would render a person guilty without actual knowledge of the obscene nature of the matter.

This contention is without merit.

Now, Your Honor, as we have pointed out in our brief, this Court has consistently held that where a state statute is interpreted by the highest court of its state, that this Court is bound by the construction placed on it by that court.

That happened in the Michigan, another obscenity case which the Court of course is familiar with and also in the last Ginsberg case.

Now, in the last Ginsberg case, the New York statute which defined knowledge as this, the word “knowingly possess obscene matter”.

The New York statute said define knowingly as having general knowledge of or reason to know, the exact same words that were in the Georgia statute or reasonably should know or a belief or ground for belief which warrants further inspection or inquiry.

In other words, in the Ginsberg case and that’s the G-I-N-S-B-E-R-G case, being two Ginsberg cases in the obscenity field, this Court accepted the construction placed on the scienter feature of the New York statute and said as we are bound to do.

Now, the Georgia Supreme Court said in response to Mr. Asinof’s contention that the language of the Georgia statute if such person has knowledge or reasonably should know of the obscene nature of the matter, does not remove scienter from the offense but is merely a statutory expression of a rule of evidence which has been extent in Georgia courts for many years.

That is the only way you can prove intent or knowledge of a person as to anything as to whether goods are stolen or any element involving intent or knowledge unless he confesses is by the circumstances as to whether a reasonable man in the same position would know or would have knowledge of the obscene nature.

So we submit — I submit very respectfully that by a long series of this Court’s own decisions that you cannot go beyond or reverse the judgment of the Georgia Supreme Court on this question of scienter because that is the state court interpreting its own statute and I have cited a number of cases where this Court has said that we are bound by such expression.

This Court also said that in the Michigan case, you said in the Kingsley International Picture Corporation case, in about eight cases, Aero Transit, all of which are listed in our brief.

So that moves us on to the second facet of the attack on the constitutionality of the statute.

I submit most earnestly to the Court that scienter is an element of this offense as interpreted by the Georgia court, by the Georgia Supreme Court and if this Court cannot unless you reverse your prior rulings which are set out in our brief and which I have cited to you, unless you reverse that long line of cases, I don’t believe the Court could in keeping with his precedent just say we think the Georgia court was wrong and I said that this does not — that the statute does not contain the element of scienter.

It’s almost exact —

William J. Brennan, Jr.:

What was the state’s evidence on scienter?

J. Robert Sparks:

The state’s evidence to prove scienter.

It was circumstantial Your Honor but we think that it was sufficient.

These officers went in with a federal search warrant to seize a wagering paraphernalia.

This man was alleged of many notorious bookmaker, whether a prior record of arrest and a conviction.

Upstairs —

Hugo L. Black:

Of course that wouldn’t have any connection —

J. Robert Sparks:

That wouldn’t have any connection with this case but I was pointing out the probable cause that we had — that was 28 pages of probable cause.

William J. Brennan, Jr.:

I’m interested in how you brought evidence and what evidence there was upon which the jury could find that he knew the contents of these motion pictures.

J. Robert Sparks:

One of the cans bears the label “Young Blood” on it, which is certainly is suggestive title.

It’s a homemade label.

I gather from what the Court has said that the Court hasn’t viewed these films that are here and I’ve asked the Court about —

William J. Brennan, Jr.:

I’d still like to know if you don’t mind.

J. Robert Sparks:

Alright sir.

William J. Brennan, Jr.:

What the evidence was that brought home to him knowledge of the contents of those movies?

J. Robert Sparks:

Well, the evidence showed, Your Honor, that in the upstairs living room, there was a projector set up and a bunch of innocuous films, slides, travelogues, things like that.

These films were not found with the other films, the innocuous or innocent type film but they were found in a desk drawer underneath some papers in his private bedroom.

An officer — the officers ran them, threw them against the wall, and then went downstairs and told him, says, “We are arresting you for the obscene films which we found upstairs.”

Thurgood Marshall:

But why did they show the film?

They were looking for what?

The search warrant was limited to what?

J. Robert Sparks:

It was —

Thurgood Marshall:

With that posture, why did they want to look at the film?

J. Robert Sparks:

Mr. Justice Marshall I think that they wanted to look at the films for the reason that the films might have been records, they were authorized to look for bookmaking records and it’s not inconceivable that —

Thurgood Marshall:

They would have them in a tin can marked “Young Blood”?

J. Robert Sparks:

You could, just like the old “Purloined Letter” scheme, Edgar Allan Poe, the story about putting something in the most conspicuous place.

Thurgood Marshall:

And I’m assuming policemen read Edgar Allan Poe?

Byron R. White:

And assume as you saw the first film, the first frame, you thought you were still looking for records?

J. Robert Sparks:

No, sir, but there were three cans.

Byron R. White:

They ran through all three, I take it?

J. Robert Sparks:

They didn’t show all three of them Your Honor.

The record shows they only showed a few feet of the second and the third one.

In fact, one of the films that have rewound backwards which shows recent viewing and the pictures were thrown upside down.

William J. Brennan, Jr.:

Now, you’re going to tell us that he went downstairs and I gather you are going to tell us he met the defendant, the officer did?

J. Robert Sparks:

He went downstairs and met the defendant and told the defendant that, “I’m arresting you for those obscene films upstairs.”

The defendant said nothing.

Of course I don’t claim you can’t use his right to remain silent against him.

That’s a constitutional right but it would still seem more logical to say what films if you didn’t know that he had any obscene films.

J. Robert Sparks:

But of course —

William J. Brennan, Jr.:

That’s why he said nothing.

J. Robert Sparks:

Yes, he said nothing.

William J. Brennan, Jr.:

Now, what else have we got?

The officer said that he was arrested for those obscene films, the defendant said nothing.

J. Robert Sparks:

He said, “Let me call Mr. Asinof.”

And he did call Mr. Asinof.

William J. Brennan, Jr.:

Now does the fact that he called his lawyer, does that indicate that he knew what those films were?

J. Robert Sparks:

No, sir, but they were his own statement.

He made a statement on the trial.

Georgia has the unsworn statement law where a defendant can either be sworn or make an unsworn statement.

This is what he said and while it is not any admission, it’s still significant I think it’s very brief.

He said, “I’m a bachelor, I live by myself and I have a girlfriend.

We planned a party for Labor Day.

I invited several couples out.

Later on in the evening, a friend of mine came by and said I brought you something I want you to see.

He handed it to me.

It was three rolls of film.

I took the film upstairs and put it in the desk drawer, closed the desk drawer, and came back downstairs.”

Then he goes on to say, he never looked at it.

However, there were — two people were in the backyard when the officers made the execution of the search warrant, two men.

Three women came over later that evening well-dressed women.

There was Justice Marshall’s three dozen biscuits sitting on the stove.

All the indications were that there was going to be a party and in fact he told the jury that he was going to have a party and in the connection, the context of his statement telling about the party first and a friend bringing the films by and saying “I want you to see them,” I think it’s a reasonable deduction that the jury could have drawn that these three films were to be shown at the party.

William J. Brennan, Jr.:

Well, is there anything in what you’ve told us that support an inference that he had looked to the film and knew what they were?

J. Robert Sparks:

Only — one of the federal agents was the former professional photographer, Your Honor and he had — he testified that the films were badly scratched, that they were dirty, that one of the films had been wound backwards which cause the figures to project upside down on the wall when they showed it and he said that they had obviously been used before, been shown before many times.

It was a well —

Hugo L. Black:

Many times?

Many times, did you say?

J. Robert Sparks:

I’m not certain whether he used the word “many” or not.

J. Robert Sparks:

I know that he said that they had obviously been shown before, that they had seen — I believe he said he had seen extensive use.

I could find that for you.

Your —

Earl Warren:

We’ll adjourn now.