Ward v. Illinois - Oral Argument - April 27, 1977

Ward v. Illinois

Media for Ward v. Illinois

Audio Transcription for Opinion Announcement - June 09, 1977 in Ward v. Illinois

Audio Transcription for Oral Argument - April 27, 1977 in Ward v. Illinois

Warren E. Burger:

We will hear arguments first this morning in 76-415, Ward against Illinois.

Mr. Beckett, you may proceed whenever you are ready.

J. Steven Beckett:

Mr. Chief Justice it may please the Court.

This case is an appeal from a decision of the Illinois Supreme Court affirming the defendant?s conviction after a bench trial under the Illinois Obscenity Statute.

The defendant was tried in March 1972 and he was charged under a complaint by a Police officer with offering to sell and selling two allegedly obscene magazines, Bizarre World and Illustrated Case Histories.

His conviction was affirmed by the Illinois Appellate Court for the third district and the case was then appealed by petition for leave to appeal to the Illinois Supreme Court.

That Court considered the case after it had considered a case called People versus Ridens or Ridens II which was the case on the remand from this Court in 1973 which was decided at the same time with Miller versus California.

In Ridens II the Illinois Supreme Court on the remand held that the Illinois Obscenity Statute was still constitutional even in light of this Court?s decision in Miller versus California.

The defendant attacked the validity of the Illinois Obscenity Statute under principal analysis of Miller v California and that attack was rejected by the Illinois Supreme Court in an opinion below.

The Court also held that the publications at issue in this case were not protected under the first amendment of the constitution of the United States.

While this case was pending in the Illinois Supreme Court, a three-judge Federal Court was convened in Chicago to consider the identical argument concerning the constitutionality of the Illinois Obscenity Statute.

On May 14 the Illinois Supreme Court announced its decision in People versus Ward below.

On May 28 after having the opportunity to review the opinion of People versus Ward that three-judge Federal Court held the Illinois Obscenity Statue unconstitutional and entered a permanent injunction against its enforcement in a case entitled the Eagle Books, Inc. versus Reinhard.

Warren E. Burger:

Has the Illinois legislature made any changes in the Illinois law since the Miller decision?

J. Steven Beckett:

The Illinois legislature enacted law that was vetoed.

That would have changed the definition of obscenity under Miller, but that law was vetoed so the practical affect is there has been no change in Illinois.

Warren E. Burger:

In fact there is no change.

J. Steven Beckett:

There in fact has been no change.

I suppose not every state needs to change its statute because of Miller, is that true?

J. Steven Beckett:

This court in Miller and also in footnote 6 in Miller and also in United States versus 12 200-Ft. Reels of Film, indicated that existing obscenity laws as construed hereto or hereafter may well be valid and in Hamling, the Court said that statement meant that we were not saying that all obscenity laws were unconstitutional, but in announcing Miller this Court said that State Courts on the remand must authoritatively construe those statutes.

As demonstrated in our briefs many states have done so and as such as have held their statutes constitutional.

Warren E. Burger:

Has Illinois now construed its existing statute?

J. Steven Beckett:

The Illinois Supreme Court has construed is statute, but in such a way as to not need the Courts remand order in Miller.

In Ridens, the Court said that in response to the specificity attack that the statute as written because it finds prurient interest as a shameful or morbid interest in nudity, sex or excretion provides the specificity that this Court has required under Miller, under part (b).

That question was addressed by the Three-Judge Court and they rejected the State of Illinois? contention that the Illinois Supreme Court in fact and grafted on to its statute, the examples of sexual conduct under part (b) that this Court set forth in the Miller opinion.

Additionally that Court noted that the Illinois Supreme Court did not rely on prior judicial opinions as so many other states have done.

In other words, this Court did not say in Miller what an authoritative construction was, but appellant submits to the Court that an authoritative construction is fixing words in the statute just as if the legislature had amended it, but in this situation, based on prior decisions, which had given a limiting affect to the statute and in Illinois that is not the case.

How do you think your case is different from People against NSCAP (ph) where the California Courts treated their obscenity statute.

J. Steven Beckett:

In NSCAP the California Appellate Court indicated that our past decisions and they specifically listed past decisions and said that our past decisions under Section 311 of the California Penal Code had limited.

The application of our statute to hardcore sexual conduct and that nudity is not proscribed and some other rather definite statements.