Petition for a Writ of Certiorari — Redrup v. New York

tag GOMARY «

"NCB T. .1,

Supreme Court. of the | ted

~ October T }

"y . No. jf #:

Ropert REDRUP, .”

VS.

THE PEOPLE OF THE STATE OF NEw York,

Respondent.

?

‘ Petition for Writ of Certiorari to the Appellate

Term of the Supreme Court of the State of New

York for the First Judicial Department. ;

“Osmonn K. FRAENKEL and

STANLEY FLEISHMAN,

| 3 - 680 Vihe Street,

bs . Suite 700,

'. Los Angeles, Calif.’ 90028,

Counsel for Petitioner,

oe SAM ROSENWEIN,. if

Of Counsel.

Fight _°% :

ae. ’ Parker & Son, Inc, Law Printers, Los Angeles. Bpose MA. 6-171.

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‘SUBJECT INDEX .~ ,'. va

.. Opinions ce aaa nae . 1

Jurisdiction , Sins semecennezennenene 2

Questions preserited ... ~ ae

| Constitutional and. statutory { provisions involved :..... -4 ,

Statement of the case ....., wil . 40°

How federal questions are presented ......... —

Reasons for granting the apg, AR TOE 7

Comchsion .......2scecsne- oe ae

Appendix A. Judgment of the Nga Term ......

caceeneeAppy Pp. 1

Aawunibe B. Constitutional ' Provisions and. Stat- .

utes Involved ........-.-..00« seoveceeA PP, P.. 2

; ; :

+

% | ;

‘ an:

En %

TABLE OF AUTHORITIES “CITED

Cases Page *

A Quantity of Copies of Books v. Kansas, 378 US.

205 .. RAE ER Ia shh te ETT 12, 26

Alberts ¥. California’ (Roth v. United States), 354 _

US. 476 ..... ay saisseecereesBy 9,10, 18, 24

* Bailey v, Alabama, 219 U.S. 219 wcisscLesssssseeeeeeeeeee _

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 ..8, 12, 18

Baumgartner v. United States; 322 U. S. ae

" Gohen v. State, 125 So. 2d 560 -.eccccccssssesessessseeeeeeeee 20

Cole vy. Arkansas, BOD DB, TDD crcceccccscccccsconsvsossoeves 8

. DeJonge v. Oregon, 299 U.S. 353 cesses 8

-* Demetropolos v. Commonwealth, 342. Mass. 658,°

175 N.E. 2d 259 .......-. 20

Douglas v. Alabama, Oct. Term 1964, No. 313, 33

U.S.L. Wk. 4304. 2 19

-Estern & Atl. R. Co. v. Henderson, 279 US. 639 .. . 13

Freedman v. Maryland,’85 S. Ct. 734 .....2......8, if, 18

Garner v. Louisiana, 368 U.S. 157 cccccccsscieveJ, 16

Garrison v..Louisiana, 379 U.S. 64 ......... 8, 14, 23, 25

Gideon v. Wainwright, 372 U.S. 335 ...... ree

Gonzales v. Landon, 350 U.S. 920 aan

Grove Press, Inc. v., Christenberry, 276 F. 2d 433,

aff 175 F. Supp. 488 i. 15, 25.

_Grove Press, Inc. v. Gerstein, 378 U.S. 77, rev’g

156 So. 2d 537 biaienial 13, 15, 25

, Haldeman v. United States, 340 F. 2d 59 15

Hannegan v. Esquiré, 327 U.S. 146 -.-cesscooccccssesenee 24

Hartzel v. United States, 322 U.S. 680 .. -

Pe eet a

v. ge ny v. —— Oct. Term,

22, 17 NE. 2d 777 : 9, 10, 12, 13, 15, 18, 24, 25, 26

. Keegan v. United States, 325 U.S. 478 ...2....-..-- 23

Klapprott v. United States, 335 U.S. 601 ......... hace ae

- Larkin v. G.I. Distributors, 14 N.Y. 2d 869, 252 _

N.Y.S.- 2d 81 ............ . 22

Larkin v. G.P. Putnam’s Sons, 14 NY. 2d 399, 252 |

N.Y.S. 2d 71, 200. N.E..2d 760 ae ° 15. -

Malloy v, Hogan, 378 U.S.°1..... ~ 8

Manley v. Georgia, 279 U.S. 1 .. ~ 13

Manual Enterprises, Inc. v. Day, 370 | US. 478,

rev’g 289 F. 2d 455 movaing 9, 15, 21, 23.

Mapp v. Ohio, 367 U.S. 643 : Gaee

Marcus v. Search Warrants of Property etc., 367

U.S: 717 . sSerevesiredly ‘12

McFarland v. - American Sugar Refining Co., 241

CS. FP ani * 8, 18

Mishkin v. New York, Oct. Term, 1964, 33 U. s. i’.

Wk. ead -19

Moore v. Dempsey, 261 US. 86 : seteine’ &

Morgan v. United States, 298 U.S. 468, 304 U.S. i

N.A.A.C.P. v. Button, 371 USS. 415 seeeseicoee” OM

Néw York Times Co., et al. v. Sullivan, 376 US.

254. 7, 14, 21, 23 2

Oliver, In re, 333 U.S. 257 dius! , 19

One, Inc. v. Olesen, 355 US. 371, rev'g 241 F. 2d

772 7 15, 25

— we

_ Page

People v. Birch, 40 Misc. 2d 626, 243 NYS. ° <a

525 ; 22

People v. Richmond yee News, SN. N.Y. 2d 578,

216 N.Y.S. 2d 369, 175 N.E. 2d 681 22

Pointer v. Texas, Oct. Term 1oOh, No. 577, 33

U.S.L. Wk. 4306 RSS ee 19

- Schneiderman v. United States, 320 U. S, ST ee ws 23

. Smith v. California, 361 U.S, 147@....8, 12, 17, 19, 20

- Speiser v. Randall, :357.U.S. 513 .............: 7,11, 12, 14

State v..Hudson County News Co., 35 N.J. 284, 173

‘A. 2d 20 ... . 20

" State v. Jacobellis, 115 Ohio App. 226, 175 N.E.

2d 123, aff’d 173 Qhio St. 22, 179 N.E. 2d 777,

rev'd 378 U.S. 184 iia 10, 16, 17 -

State v. Locks, 397 P. 2d 949 . ae yd

State v. Oman, 261 Minn. 10, 110 N.W. 24.514 ...... 20.

State y..Sul, 146. Conn. 78, 147 A. 2d 686 -cecesccoe--0. 20

" Sunshine Book .Co..v. Summerf sol. 355 U.S. 372,

rev’g 128 F. Supp. 564, 249 F° 2d 114 ........ oe

Thompson v..City of Louisville, 362 U.S. 199 ........ 7, 8

- Times Film Corp. v. City of Chicago, 355 U.S. 35,

2)

rev’g 244 F. 2d 432 ...... 15

Tot v. United States, 319 U.S. 463 . me

Tralins v, Gerstein, 378 U.S. 576, rey’. 151. So. ,

2d°19 é sail 9, 15, 25.

Weiman v. Updegraff, 344 U.S, 183 ..... aR

Winters v. New York, 337'U.S. 507 ... ? s

Yudkin v. State, 229 Md. 223, 182 A: 2d 798 ......:.. 17

Zeitlin v. Arnebergh; 59 Cal. 2d 901,383 P. 2d 152,p°

31 Cal. waiah 800 .. jeitalen 15

.

o

Vv.

; ee a

| Statutes” . Page

American Law Institute, Model Penal Code (Tent.

Draft No. 6, 1957) 1-2, 44-45 17.

New York Penal Law, Sec. 1141(1) ... inn, 7

United States Code, :Title 28, Sec. 1257(3) ........-..-.: 2

United States Constitution, First Amendment 2...

+: csginidiaiaekaiel #6, 16)/25, $4, 36, 17, 16, 29, 38, 28

_ United States Constitution, Fourteenth Amendment _

gical gta aaa Nita 2, 3, 4; 8, 10, 18, 24

‘Textbooks

45 Bithcenste Law Review (1960), pp. 5, 103-108 .. 20

45 Minnesota Law Review (1960), pp. 595-599 .... 17

ECR aC 28 RR ETD ETT eR mre oe

i ed

IN THE

Supreme’Court of the United States

Oust’ tam Term, 1964

RO. cerecies

Ropert REDRUP,

op by a

- Tue People or THE STATE or NEw York,

Respondent."

Petitioner,

Petition for a Writ of Certiorari}to the Appellate

; Term of the Supreme Court of the State of New.

York for the First Judicial Department.

Petitioner, Robert Retr prays that.a writ of cer-

tiorari issue to review the judgment of the Appellate

Term of the Supreme Court of the State of New York

for the First Judicial Department, entered dn the above

entitled case on December 17, 1964.

Opinions Below.

The action was tried in the Criminal Court of the

City of New York, County of New York. No opinion

was delivered by the three-judge court before whom

ioe the action was tried, except the statements at the ‘con-

clusion of the trial finding petitioner guilty as charged

[R. 33] and suspending sentence [R. 37].’.

~ The references are to the Record on Appeal filed in the ©

court below, and included in the transcript of the record prepared —

‘and certified by the clerk of the court below,

9

» 9

oC

cee ee Eee ree pee er

The judgment of convietion was affirmed by the Ap-

pellate Term of the Supreme Court for the First Ju-

dicial Department. No opinion was delivered by the said

~ court. | | hee |

“Application for leave to appeal to the Court of Ap-.

peals of New York was denied’ without opinion. ©

Jurisdiction.

The judgment of the Appellate Term of the eens

Court ‘pf the State of New York for ‘the First Judi-

cial Department was entered on December 17, 1964. The

said judgment is prirted as Appendix A hereto. A time-

ly application for leave to appeal to the Court of Ap-

peals of New York was denied on January 4, 1965. By

order of Mr. Justice Harlan dated March 25, 1965, the

time to file this petition for a writ of certiorari was 7

extended to and including ‘April 19, 1965. The juris- ~

diction of this Court is invoked under 28 U.S.C. 1257-

(3)... ee tes

Questions Presented.

1. Whether, consistent with the due process require-

ments of the Fourteenth Amendment and the constitu-

tional standards for judging obscenity enunciated by

the Supreme Court, an acctised in a State obscenity pros-

ecution, as the petitioners herein, can be convicted with-

out any proof in the record that the books involved.

. exceed the limits of candor in the Nation as a ‘whole in °

' the depiction or representation of matters portedning to

sex and nudity. - .

2. Whether, in the light: of the requirements of én

_ ‘process of law under, the Fourteenth Amendment and

_ the constjtutional standards for judging obscenity enun-

pees nnn TT TTT TT Te

— |

ciated by the Supreme Court, the State’s failure to _

bear the burden of proving in the obscenity prosegu-

tion herein that the writings involved exceed the limits —

of candor in the Nation.as a whole in the depiction ar ~

representation of matters pertaining to sex and nudity, -

invalidates the judgment of conviction rendered against

petitioner.

3. Whether, consistent with the due process require- ~~

'' ments of the Fourteenth Amendment and the constitu-

tional standards for judging obscenity enunciated by

the Supreme Court, a State may regard the trier of

fact in a local obscenity prosecution as the embodiment.

‘of national community standards, competent to judge

a challenged writing against those standards, without

any evidence in the record, as in the case herein, §o es-

tablish that the writing exceeds. contemporary commu-

nity standards, or appeals to prorient interest 01 or r is ut-

’ terly without social importance. .

4. Whether, consistent with the due process require-

ments of the Fourteenth Amendment and the constitu-

tional standards for judging obscenity enunciated by

pe the Supreme Court, a judgment of conviction can be

| rendered against an accused without proof in the record

that the accused knew the contents of-the ntaterial or

believed that the material involved violated the law, and 5

where boaks of a sitnilar.character have been held to

be constitutionally protected by the courts of the State. _

5. Whether, consistent with the due process require-

ments of the Fourteenth entand the constitu-

tional standards for j ity enunciated :by

the Supreme Court, the books involved in the prosecu-

tion herein upon which a judgment of conviction was

rendered are entitled to constitutional protection.

: eae <a

Constitutional and Statutory Provisibns Involved. ~~ St

The pertinent provisions of the First and Faurteenth ONS

Amendments to the Constitution of the United States, ¥

and New York Penal Law, Section 1141, subdivision . |.

(1), are printed as Appendix Bhereto.

. . S§tatement of the Case. -

. (a) By Information filed April 29, 1964 [R. 5] in the

Criminal Court of the City of New York of the Coun-

ty of New York, petitioner was charged in two counts

with violations of New York Penal Law, Section 1141,

subdivision (1). The first count charged that petition-

er, on April 10, 1964, did sell to one Greifenstein, a

certain “obscene, lewd, lascivious, filthy, indecent, sad-

istic, masochistic «and disgusting” book entitled Lust

Pool [R. 5].-In similar language, the second count

charged the sale of a book entitled Shame Agent to

the same named person on the same aforesaid date

[R. 5]. The cause came on for trial before a: three-judge

court in the Criminal Court of the City of. New York

for New York County on June 4, 1964 [R. 8].

(b) At the trial, the two books were offered into

evidence by the prosecutor, without objection [R. 11-12].

No evidence was offered by the prosecution with re-

‘ spect to the alleged obscenity of the writings. |

(c) The only’ evidence offered at the trial‘ by.

prosecution and petitioner was with respect to the

‘ sue of scienter. For the prosecution, a police officer,

Greifenstein [R. 9], testified that he saw the two

’ books displayed in a bookrack at a newastand on 42nd

|: Street in New York City, and asked “the clerk” [R.

10], petitioner herein, for the writings. Petitioner

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removed the two books from the bookrack; placed'them. —

on the counter; the police officer paid .the purchase

price; the petitioner placed the two books in-a bag and

_ handed it to the officer [R. 10-11].

‘The of ficer asked petitioner whom he wetted for -

[R. 12]. The petitioner replied that he had been in the

employ of a Mr. -Block for some two years. He earned

seventy-five dollars ($75.00) a week [R. 13]. The

officer asked petitioner: “Why do you sell this gar-

bage?” [R. 13]. The petitioner replied: “There is worse:

stuff than that around”, and stated, “I think these

books here are’ worse”’, ‘referring, s stated Officer Greif-,

. enstein, to’ “girlie magazines that were on top of the

countef .with the nudes and. seminudes in color and

black-and-white” [R. 13].

The petitioner testified that his principal duty 1 was

working in the bookstore in the arcade of the subway

where paperbacks covering a wide variety of literary,

scientific and popular ‘subjects were sold [R. 17]. An- ©

other man was ordinarily assigned to the newsstand ~

but the man had bedn ill.and petitioner had filled in

for him for an hour until the arrival of another em-

ployee [R. 18]. Petitioner told the officer that he was

up at the newsstand for only an hour because of the

illness of the other employee for whom he was filling .

in [R. 19]. Petitioner had never seen the two books

here involved before the officer asked for them [R. 20]:

- How Federal Questions Are Presented.

(d) At the trial, epunsel for petitioner moved to

dismiss each count of the Information, both at the

end of the prosecution’s case [R. 15-16] and at the end

of the trial [R. 29], on the following grounds: “First,

that. the People k bine failed to proye scienter, any kciiqntl-

edge of the contents of the book, either book, or that

defendant had any reason to‘ believe that: the books

came within the prohibition of the law. Second, ‘on:

_ the ‘ground that the People have failed to prove what

/ constitute community standards; that the burden is on

the’ People to, offer such proof, Third, on the ground

that: neither book comes within the prohibition of the

cae and therefore, the People have: failed to make out

a prima facie case, and that: to permit a conviction tin-

det this information. will constitute a violation of the .

Constitution of the State of New York, and of the due

-’ process “clause of the Fourteenth Amendment to the

Vnited States Constitution” [R. 15].

4 * At the conclusion of the trial, decialogi was aed

| [R. 29-30].'On June 11, 1964, the court announced it

) had reached a decision: “The court has read the two

‘books involved in the case and the motion to dismiss

_: is denied as to each count of the information ‘and the

defendant is found guilty as charged of both counts

of the information” [R. 33]. On July ‘28, 1964, peti--

tioner received a suspended sentence. [R. 36-37 ]. .

On ‘appeal. to. the Appellate Term. of the Suprerhe :

ourt of the State of New York “for the First Judi-

cial Department [R. 3], the same federal questions. as ~

\ /. aforestated were briefed and argued before the court

; which affirmed the conviction, without opinion. - |

The same federal questions. were also briefed and ar-

| gued in: support of the application for leave to appeal

to: ee ae a State of New ‘York. -The

Reasons for Granting’ the Writ.

An essential ,part of a: procedure, it is submitted,

which purports to convict a. person for the. sale of ‘al-

leged “obscene, prints and articles” {R. 5] in violation

. of a'state criminal statute (Penal Law 1141;-subd. 1) is -

“that all of the elements of the crime charged shall be

proved beyond a reasonable doubt."

It is-not only a fundamental principle of the : ‘com-- .

mon law that-one accused if a criminal case is“pre-

sumed to be innocent of the cri > charged until he

has been proved to be guilty beyond “reasonable doubt;

due. process of law in any cage includes this REMURESTS |

tion of i _inngcence and imposes: upon the. prosecution the

_ burden’ of proving the existence ot every | elernent Meces-

_ Sary to constitute the crime chatged. - a ee

A state criminal procedure, it has pee been

decided: may-not work a denial’ of fundamental rights

or conflict with specific and’ applicable provisions of thé

' Federal Constitution Thus, _“due process commands

that no man shall lost his liberty unless Govern- .

ment has borne the burden of. producing the evidence

. and conyincing the factfinder of his guilt”, and “where

the’ transcendent value of speech is involved”, ‘due proc-~

ess certainly requires “that the State bear the burden

of perstiasion to show that the [accused] “engaged . in

criminal speech”. Speiser v. Randall,” $57 ‘US. ST3,

526. ‘See also, Tot v. United States, “319 US. 463, 469,

473 ./Thompson v. City of Lowisville, 362 U.S. 199, 206, |

: and/cases cited in n.13; Gayner v. Louisiana, 368 U.S.

157, 173-174, 175-176; New York Times Co., et al.

3 — 376 US. 254, 2a, are, 283-288; ‘Gar. de

/ ' nah. a ia ie .

- vison v. Louisiana, 379 U.S. 64; 74-75; Freedman v.

Maryland, 85 S. Ct, 734, 738-7392 im

‘Unless the burden. of proof in obscenity prosecutions .

_ is meticulously maintained, constitytionally protected. _

- writings may: be suppressed, and individuals involved in

~-their: circulation punished, under urfproved charges. The

right to be: heard before condemnation /i is hardly mean-

‘ingful: if the accuser is relieved of the burden of prov- —

‘| ang his accusation, Rights guaranteed by the First and .

_ Fourteenth “Amendments cannot be protected where a

7 criminal trial i is- drained of. the. basic.‘elements.of a fair

7 fe "_trial, where “the whole proceeding i is a mask”. Moore v.

cont Dempsey, 261 U.S. 86, 91. Plainly, if it is a sheer de-

‘glial. of due process. to. convict a person upon a charge

* not made, or a charge not tried, it is equally arbitrary

to rest a conviction, upon a charge not proved. DeJonge

‘v. Oregon, 299 U.S. 353, 362; Cole v. Arkansas, 333

_ US. -196, .201; Thompson v. mid of Louisville, 362

v- Ss. 199; 2062 Pe AEs Saat

Tn ‘Alberts v. California (Roth v. United States),

354 U.S. 476, this Court held that the safeguards nec-

essaty for securing the. freedoms of speech and press

for material not obscene . required the following Stand-

ard for judging the obscenity of: ‘a writing — whether

ae the average. person, applying contemporary communi- ,

ba hata ty standards, the dominant theme of the. material taken

| asa whole appeals to, prurient interest. The aforesaid

/

Cali , 361, U.S. 147, 150-151: Marcus v. >

» hae: sath Pome of ret 367 U.S. 717; Bantam. Books, ..

Fgh Me Gideon v. Wai ht,.372 U.S.

342-345; ‘oobi "367 U.S.. 643, 7; Malloy 9.

‘378 is. 68; Morgan v: United States, 298 U.S. 468,

; 304.U.S. 1, 18-19; McFarland v. American Sugar Re-

| | iea ons wiUS. 7, 86.

1 2

~ cated that the: newly anid for’ j

_. obscenity was similar ‘to iti

‘ standard, in substitution ee i :

deemed adequate to withstand the —

ae interest in auidity,’ sex, oF ) ,

- goes substantially beyond customary ‘jj

in description or representation of s

"U.S. 487, .20.

¥ rel \ ber

Ea ¢ | vs |

.354 US. at 489,

Roth-Alberts. would appear, ‘therefore, to have made

plain that one essential element Of the crime of obsceni-

ty, in both State and Federal ‘jurisdictions, is. the. ex- 3 *.

_ tent to which the writing in question substantially ex-

coeds contemporary community standards, é.e., the lim-

its of candor in~-depiction- or “representation Of ox

nudity or excretion. Indeed, in Manual Enterprises, Inc.

v: Day, 370 U.S. 478, it was noted that the proposed ~

Official Draft of the American Law Institute defined

obscenity as material which, ’ “ ‘considered as a whole,

-- its predominant appeal i is o prurient interest . and?

if in addition it goes ‘plbstantialy beyond customary

limits of candor in describing—or representing ‘such .

| matters’ ”’, 370 ‘U.S. at 486. Mr. Justice Harlan stated:

_ “Obscenity under the federal statute thus requires proof

of two distinct elements: (1) patent offensiveness; and -

(2) ‘prurient cyan bigs 370 U. - at 486 (em-

phasis supplied). ae : < | .

Jacobellis- v. Ohio, 378 US. - 184, ae paserenes a

state court judgment of conviction after’ trial. before caus

ee ae allie: te

a, tieeee-judge. court: In that case, witnesses. téstified for

the prosécution’and for the accused on the issue of ob- ;

_ Scenity, and the judgment of conviction of the state

"4 court -was’ “based upon the testimony of numerous’ wit-

i: : nesses, the viewing of “the film and all. the evidence”.

won “ks eu Jacobeliis, 115 Ohio App. “226, 229, 175 N.E.

See ak: 123, 124 (1961)? ‘The highest state court upheld the

\; jadgment of conviction’ ‘rendered by the “three judges

sitting as the trier of the facts” (173 Ohio St.22, 28,

ne -179,.N.E. 24-777, 781). This Court reversed, holding .

* that the film involved was not obscerie and ‘hence en-

- titled to, the protection: for. free expression guaranteed

* oo the First ‘and: Fourteenth. Amendments. 378 Uz >,

at 186-187. 7 Bois ees

- While members of the Court differed in Jacobellig’””

as to whether the limits of candor with respect to the

depiction or representation of sex were to be-determined ve

pate — eee ee by the limits existent in .the par-

ticular local community or in the Nation as a whole,

@ . no member of the Court s to have doubted, it is

submitted, that “contemporary community standards”

is an element of the offense of obscenity, to be charged

the first imate a. finding that the material ‘goes

yond customary limits of candor in de-

-. -seription or representation of such matters’ ”, 378 U.S.

- at 191 (emphasis supplied). Mr. Justice Breiman also.

_ Samia te eta pedetion mn tee mo stennty

...0f the film in Jacobellis-was based not only on.a, view

~of_the. material, but “in the light of the record made

4n the trial court”-(378 U.S. at 196). Mr. Chief Justice

Warree, dienting, Heart ots Ses, Sait |

Mrs. Justice Bret Br stated: . It should .

ize + atthe Roth: Natidard requires in.

' . istration ‘of a censorship system for motion pictures

ae a ue mn

> ;

ti é

itself to a consideration only: “of whether there is

"sufficient evidence in the record apon which a finding :

of obscenity could be made., If there is no evidence in —

the record upon: which such finding could be’ made, ~~

_ obviously the material involved cannot be held: “obscene.”

378 U.S. at 202 (emphasis’ supplied).

In Freedman 'v, Maryland, 85S: Ct: 734, the admin.

‘was alone involved, but the decision in the case has

"relevance “here, it is submitted. The ‘Court noted in. —

Freedman that “unlike a prosecution for obscenity, ‘a

‘censorship proceeding puts the initial burden on the -

exhibitor or distributor”. 85 S. Ct. at 738. It was .

pointed out that the Maryland procedural scheme re-"

quired the exhibitor to “assume the burden of institut- .

ing judicial proceedings and of persuading: the courts - .

that the film is protected expression.” 85 S., Ct.;- at

739. This Court: held that the, state censorship system

failed to satisfy constitutional requirements. “First, the

burden of. proving that’ the film is unprotected expres- —

sion must rest on the ‘censor:* 85 S. Ct, at 739. Advert- -

‘ing to the decision in, Spetser v. Randall, _the .Court,

in Freedman, stated again that due Procgss. requires

-that the State bear the burden of. persuasion to show’.

‘that the appellants. engaged, “in criminal | eeerh. BS. As}

S.Ct. at TIP ee BY ME

A review of the decided cases, fesitine ajiieae tc a oe

make plain that the burden of proving in any obscenity ~

prosecution the limits’ of catidor in. the: ‘Nation as a”:

whole rests upon the prosecution as a requirement of |

due process, Without such evidence in the record, it-is a

. obvious that’ no finding can be made that, the, material ie

“goes substantially beyond custunaary | limits of or. va

. .

A>

in Seasviotion: or .. of such matters”. | Jae.

\ -¢obghlis ¥. Ohio, 378 U.S. 184,191. ae

net + Tn the case: herein, there. is absolutely Xo eens ‘im.

ae "the record to support the e conclusion that the two books —

\* involved substantially~exceed the limits’ of candor ‘in

the Nation on asa 4 whole. Nor is there any mystery asto

We - what-occurred at the trial level : The prosecutor handed .

ca —~the books to. the court; the: court read the books; the |

'\.* ‘eourt found the books “obscene”. The State has sup-

. pressed two writings; and placed the stigma of crim- ~

inality upon the seller of the writings, without proof —

that. the books are outside the area of. constitutional ;

( Protection for freedom of | expression. _. .

_, Ifa return to Hickhn, with courts and juries acting

“as censors of material personally distasteful to them,

. is to be avoided, proof that material substantially ex-

ceed} the’ limits “of *candor in the Nation as 4 whole

be required in every obscenity prosecution, it‘ is

with“ such requirement in obscenity prosecutions ulti-

ree ‘mately results i in the imposition of unconstitutional limi-

‘. * tations ‘on the ‘public’ S accéss to constitutionally pro- -

tected’ matter. ‘Speiser v. Randall, 357 U.S. 513,. 525;

Smith v.° California, 361: U.S. 147, 152-153; Mateus.’

v. Seterch Warrants of Property etc., 367-U.S: 717, 730- -

731: ‘Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66;

4 Quantity. mentee of Books v. sone, 378 U.S.

oe | : 208, 211-212, |

ee “To places book dealing. with ‘be irito evidence -

Rist as hardly’ a step’ forward in. support of an information ~

_ < ¢hargin "the ‘unlawful ‘sale: of an “obscene” writing.

itted. A state procedure which purports to: dispense -

—13—

lineised” from. Roth-Alberts to Jacobellis Seb pee

Grove Press, Ine..v. Gerstein, 8 U.S. 577; Tralins

‘v. Gerstein, 378 U.S. -56. Fhe sale of a book dealing ie

with sex for like reasons imports no criminality. ?

- The writings . themselves” plainly give no tndbeinin: |

' tion as to what are the ‘limits of candor in. the Nation

as a whole. Yet the trier of the fact in the state court,

by its denial ‘of the motion to: dismiss the Information,

and its finding ‘of guilt, appears fo have “presumed” |

that the writings substantially exceed the limits. of

candor in the Nation as a whole without any require-

ment of evidence to support such conclusion. . -” .

The power of the State to improvise presumptions REE

in substitution for proof is limited by the due proc-

ess provisions. of the Constitution. Tot v. United S tates,

319 U.S. 463; Manley v. Georgia, 279-U.S. 1; Bailey

Oy. Alabama, 219 U.S.. 219; Estern & Atl. R. Co.-v. -

Henderson, 279 U.S. 639. “. . . the legislature might

validly command that, the. finding of an indictment,

“or mere proof of the identity of ‘the. accused, should -

create a presumption of the existence of all the. facts

_ essential to guilt. This is not permissible. ” Tot -v. United

States, supra, at 469. :

Especially do the 8 process provisions cacs timi-

tations upon ‘the State’s power.to presume guilt when

First Amendment liberties are involved. The state crim-

inal procedures by which books ate suppressed and

punishment imposed for their circulation are as im- |

portant as the validity of the substantive, law applied.

“When the State undertakes ta restrain unlawful ad- .*

vocacy it must provide procedures which are adequate a

‘to ate ening? infringement of .

“protected due: _ rights whic. we value’ most ‘high: | mg

-“Iyjand which are essentidl to the workings of a. free eae

-, socdety.” Speiser..v. Randall, 357 U.S. 513, 521. In

_ New York: Times Co., et ah v. Sullivan, 376 U.S. Be

254, it was emphasized that iriterpretations of-the First. . |

: Amendment guarantees have constantly refused to rec- | 1 |

‘ognize an exception for any test of truth, “and espe~

& ‘cially one, that puts the burden of proving truth on the |

. speaker”, 376 U.S. at 271, This Court held further

“| that the rule requiring proof of actual, malice is not

+ ¢., Satisfied by “presuming” malice_from proof of gen-~

seh of eral damages; for “the showing of malice required aa +

"the forfeiture of the privilege is not presumed but is

| matter * of proof’ by the plaintiff”. 376 U.S. at 284.

also, Garrison v. Lowisiana, 85 S. Ct: 209; Henry

vw. ‘Pearson; Henry v. Collins, Oct. Term, 1964, Nos.

89; ‘90, ‘decided ‘March 29, 1965. 33. United States Law

Week 3319.

To permit triers of fact. in obscenity prosecutions to -

presume or: infer from the mere reading of a writing

with sex. that such writing substantially, ex-—

‘ceeds the limits of candor in the Nation'as a whole a .*

the depiction or representation of sex or ‘nudity is to A

‘open the door wide to the suppression of material which”

| [ie nat ‘Obscene. Such a ‘procedure encourages reliance’

j On the’ hit-or-miss subjective. reactions of the trier of

/ facts. to: material which the trier finds distasteful, and

‘a writing’ which the trier of the facts finds particularly

distasteful to” himself will inevitably lead the trier to ¢

ume” thatthe writing exceeds ‘nationwide limits of eis

asc se. ifter Case ‘reveals, it is when the “ike

ae

‘

. most often wrong. Tisies Film Coxbie, City of Chicago, e

. 355. U.S. 35, reversing .244 F, 24.432, (7. Cir, 1957);

One gIne. v.,Olesen; 355 US. 371; reversing 241. F.

2d 772 (9 Cir. 1957); Sunshine Book Co; Ws. Summer- | |

_ field, 355 U.S. 372, reversing 128°, Supp. 564,(D.C.,

D.C. 1955), 249 F, 2d 114 (DsC.:Cir, 1957); Manual

- Enterprises, Inc. v. Day, 370 us. 478, reversing 289 . 655%

F, ‘2d 455 (D.C. Cir. 1968); Jacobellis.v.. Ohio, a8.

_ U.S: 184, reversing 173 Ohio. St. 22, 179. NE, 24.777; eae

Tralins U, Gerstein, 378 U.S. $76, reversing 151 So. |

2d 19 (Flg., 1963); Grove Press, Inc. v. Gerstein, 378

U.S, 777, reversing 156 So:‘2d 537 (1963). See also, ”

| Grove Press, Inc. v, Christenberry, 276 F.. 2d 433,.af-

. firming '175 F/ Supp. 488; Zeitlin. v, Arnebergh, 59°.

- Cal. 2d 901, 383 P. 2d 152,’3} Cal. Rptr. 800; Halde-

man v. United States, 34Q F. 2d 59 (10 Cir, 1965);

Larkin v. GP. _Putnam’s Sons, 14 N.Y: 2d 399, 252

N.Y.S. 2d 71, 200 NE. 2a: 760. ’ Protection for ‘non;

gbscene writings can. only: be assured ifthe burden -

‘1s placed upon the prosecution to prove by sufficient

* evidence that the limits of candor have been exceeded —

o & -in particular cases. Cf. + Weiman. v. Updegras, 344 U. S, He

: + 183, BOR as sek :

Nor are the: limits ‘of pst gg in the Nation se

" whole at a given time a matter of “judicial notice’. .

There can be no assumption. in reason. that any par- |

‘ticular trier of facts in a particular local community ©.”

knows, without: evidence, what Jis the customary fgee-

dom of expression in the Nation as a whole with respect ‘a

"to sex anid. sex relations in 1 Se various media of Mer

SS

Bares

‘ey and other related areas.. The limits of candor in

the United States’ with respect to the. depiction and

repre ntation of sex and. nudity. are not a matter of

_.common an@ general knowledge, well. established and

: authoritatively - settled. So long as* the belief existed

that’ local standards were the criterjon there may lave. ~

: been some argument for the position that the trial judge

might take judicial notice of the standards of his own

community. But now that this Court has held, in Jac-

obellis, supra, that it is national standards that must

_ govern, it would be irrational to suppose that judges ~

in the inferior criminal courts all over the country

- possess the Hackground or knowledge sufficient for an

- informed judgment on the subject.

_

3 The power of “judicial notice” . is, -as to matters in-

volving First Amendment protections, one ‘to be used

with ‘great catition, and if there is the slightest doubt ©

as to, the facts or common knowledge of the facts,

evidence should be required. “To exténd the doctrine of

judicial notice to the length pressed by the respondent

_ would require us tor allow the prosecution to. do through’

-s argument to this ‘Court. what it is required by due

process to do at the trial, and would be ‘to turn the

- doctrine into a pretext for dispensing with -a trial’.”

Garner v. Louisiana, 368 U.S. 157, 173. The basis for

3 ‘appellate review and constitutional judgment is under-

' fnined “where the: evidence is unknown”. Id., at 173.

= There i is no updue Hardship. placed upon the prosecu-

tion in requiring the State to prove the limits of can-

don and ‘the extent to which. the writing in question _

“exceeds sich limits. Prosecutors have suckessfully as-

_ sumed the burden atthe tridl level in a ‘number of

ee obscenity — ‘State v. Jacobelis,* Ag Ohio - +.

>»

> ay ‘ + ‘cer.

) 7

‘App. 226, 175 N.E. 2d 123 (1961); aff'd. 173 Ohio

St. 22, 179 N.E: 2d 777, rev’d, 378 U.S,’ 184; People .

v. Smith ( Smith v. California), App. Dept. Calif, Su-

_Perior Court, No..CR’ A-5113, affirming judgment of 5

“conviction after jury trial and: expert testimony offered .

‘on behalf: af prosgéfition involving sale of Trapic of -

_ Cancer, cert. granted 373 U.S. 901, judgment vacated © 95

and | case remanded to state court,:375 U.S. 3§9. at. Fa

It may be that the: limits of candor in tt

with respéct to the depiction and repre tation of sex

. and nudity-cannot’ be. delineated ‘with ‘the precision of _-

a blueprint, but ‘within reasonable’ bonbils evidence of

- such limits at any given time can be adduced through

- expert testimony and other proof. Cf., Smith v. Cah- - :

fornia, 361 U.S. 147, 163-167, 171-172; Yudkin v. State, ©

. 229 Md. 223, 182 A..2d'798 (1962); A.L.L., Model Pe-

nal Code (Tent. Draft No. 6, 1957) 1-2, 44-45; Lock-

hart and McClure, Censorship of Obscenity: The De-- te:

veloping C onstitutional S ee eiey i 45 Minn. . L. . Rev.

595- 599. (1960). . |

If congepts of “judicial noti¢e” or presumptive guilt”

are. unacceptagle in the area/ of @bscenity Prosecutions

where First AMendment questions are integrally in-

volved, it is equally objectionable, it is submitted,-“for.

a State to consider the trier of facts, judge or’ jury,

as some legislative body equipped to decide for the Na-.-

tion as a whole what the limits of candor are without the

’ slightest proaf in the record.. The decision in Jacobel-

* lis rejecting any “local” definition of the community in

delineating “the area of expression that is protected |

by the F ederal Constitution”. would appear to bar any .

.. attempt, by a State to make a. ‘particular trier of. fact *

im a specific obscenity, emien: the embodiment of.- '

ee

° .

e Nation .

BS oh ee

what: constitistes the limits of candor in the Sithon ii :

_ &@ whole in the depiction and representation of sex and

nudity. Such an attempt to stibstitute “ad hoc -legisla-

tion” for proof in an obscenity prosecution is unjustified

"im reason and violates the basic requirements of “fair-

‘ness governing criminal trials in state and federal prose-

cutions. It, has been stated: “But it is not within the

province of. a. legislature to declare an individtial “guilty

_ .0r presumptively guilty of a. crime.”. McFarland v. ’

American Sugar Refining Co., 241 U.S. 79, 86.

To turn a judge or -jury in-an obscénity prosecu-

- tion into a “legislative” body allegedly equipped to de-

cide. what ‘are the limits of candor in the Nation, and

the extent to which the writing exceeds such limits, is

to turn ‘the triers of facts in obscenity prosecutions

into local boards of censors, not only equipped to sup-

press writings but to attaint individuals responsible

. for their distribution. The etid result; of ‘such state

" procedures is a return to Hicklin. This concededly, the

~ Constitution prohibits, Roth. v. United: States, 354 U.S.

476; Jacobellis v. Ohio, 378 U.S. 184; Bantam Books,

Ing. v. Sullivan, 372 U.S. 58; Freedman v. Maryland,

aa S.Ct. 734... - Ret

ae A’-state criminal procedure hic permits suppres-

sion and punishment without proof of an essential in-’-

“\ gredient of the’ offense, an ingredient made essential .

by the requirements of the Constitution as interpreted

"by this Court, undermines the due process and ‘free

} a ee et

ments. Such a procedure neither affords justice to an

‘accused nor’ the appearatice of justice. The right to fair

notice arid ‘hearing, as well as the right of ,confronta-

Yon and tie assistance of counsel are essentially un- hate

oo lla

dérmined. See, Pointer v. Texas, Oct. Term 1964,.No,-

577, decided April 5, 1965. 33 United States Law

Week 4306; Douglas v. Alabama, Oct. Term 1964,

No. 313, decided April 5, 1965: 33 United States Law

. Week 4304. In.the area of the sirculatiin iof the. press |

"and the public’s access to constitutionally protected ma-:

terial, a state procedure which relieves the. prosecution —

‘of the burden of proving that Speech or press is criminal

_opens ‘the door wide for wholesale suppression. Such

-a procedure makes only the fact of condemnation known

to the public and reviewing courts; the -actual reason

and cause for condemnation remain foreyer secret. .

The’ judgment of conviction as obtained here copeti- |

tutes a broad departure from many specific constitu-

tional guarantees, including the due process guaran-"

tees “representing fundamental ideas of fair play and

_justice in civilized society”. In re Oliver, 333 U.S. 257, |

282. The question involved is of substantial importance

to the community in general, and should, it is sub-

mitted, be determined by this Court.

*2. It is also submitted that the cantar’: of aust

required under . the Constitution in obscenity prosecu-

tions. has not been satisfied in this case with respect

to the issue of scienter.* This Court held in Smith v.

California, 361. U.S. 147, that the strict liability fea-

ture of the California ordinance there involved would-

seriously restrict the circulation of books which are not

obscene, “by penalizing booksellers, even though they

had not the slightest notice of the character of the

‘books they sold”. 361 U.S. at 152. The tendency of

8A similiar mection. is presented te Mishhino: New. Vert,

Oct. Terni, 1964, No. 858, le jurisdiction noted April 5,

1965. 33 US, Law Wee 3830.

/ &

7 the California ordinance, this Court. held, was to erode’

fundamental freedoms of speech \and press by holding.

a bookseller criminally liable for possessing an obscene

book, “wholly apart from any scienter on his part. re- /

* garding the book’s obscenity”. 361 U.S. at 160. weet?

In view of the ruling.in Smith v. California, and

constitutional principles implicated therein, courts have.

_. -Fequired the prosecution to’ plead and ‘pfove that the

“accused knew that the material was obscene. In the

recent decision of the Arizona Supreme Court (State.

_v. Locks, 397 P. 2d 949 [December 23, 1964]), invali-

dating the state obscenity law as unconstitutionally —

vague, the'court held that’ ‘an accused “cannot be found

guilty unless he had knowledge of the obscene or in-

decent nature of the materiai which it is contended

he was keeping for salé and exhibiting”. 397 P. 2d

at 951. Noting that the words _“obscene—or —itidecent”,

ggwithout statutory definition, are. words of “varied mean- “e

ing, varying in definition. from case.to case” (397 -P.

2d, at 951), the, Arizona Supreme Court stated “it is .

obvious that a layman would have nothing but difficul-

_ ty and confusion in his mind were he to attempt to.

work out. his own definition of the words’ ‘obscene or ‘

"indecent? as used in A:R.S. 13-532” (397 P. 2d at

952). To similar effect, is State v. Sul, 146. Conn.

78, 147.A. 2d 686, 691 (1958); Demetropolos.v. Com-

-monwealth, 342 Mass. 658, 175 N.E. 2d 259, 262 ©

(1961); State v. Oman, 261 Minn: 10, 110 N.W. 2d

514,:520 (1961) ; Cohen v. State, 125 So. 2d 560, 563 -

(Fiz. 1);.State v. Hudson County News Co.,.35

NE, , 173 A..2d 20, 23 (1961). See also, Lock-

hart < AcClure, Censorship of Obscenity: The Devel-

oping c onstitutional Standards, 45 an. Rev. 5,

103-108 AIO). ¥.

he

—) ae

If the’ aforesaid cohstiiutionsl standard relative | to.

scienter: ‘ig to be maintained,- plainly: the proof in the

record must be of “convincing -clarity” to satisfy we sa

. demands of such standard. New York Times C 0.,

~ algv. Sullivan, 376 U.S. 254, 284-286. See also, > cal

Enterprises, Inc. v. Day, 370 U.S. 478, 491-495. For

in the free speech and ‘free press areas, it is essential

that those alleged to be engaged in “criminal speech”

shall not be condemned without “clear, convincing and

_ unequivocal” proof of specific unlawful knowledge and

intent. Such proof must be “solid”. There must be “that

solidity of proof which leaves no troubling doubt in

deciding a question of «such gravity” as is implied*in

an attempt to make punishable a mental state in a con-

text of constitutionally protected freedoms. Baumg art

ner v. United States, 322 U.S. 665, 670. See also,

~ Hartel v. United States, 322-U.S. 680, 686-687; Gon-

‘gales v. Landon, 350 U.S. 920.* “This Court’s. duty

is not limited to: the, elaboration of constitutional prin- _

ciples; we must also in proper cases review .the evi-

dence to make certain that those principles have been’ _

constitutionally applied.” New York Times Co., .et y

v. Sullivan, 376 U.S. 254, 285. :

" Tt is sabmitted ‘that the proof adduced in the. record

_herein was totally inadequate to satisfy ‘the /Btate’ S .

constitutional burden of proof on the issue of /Scienter.,

The record is uncontradicted that’ the petitioner had

no knowledge of the contents of the writings, and it is ef

- equally clear on the record that petitioner had no reason

‘It has been stated ‘that the criteria of “clear, tinequivocal ni

convincing evidence which does not leave the issue in doubt” is

“substantially ‘identical: with that required in criminal cases —

proof beyond a reasonable doubt”. heen seas v. i ee States, -

335 U.S. "el, 612, Seige te

a ae

22—

<a Die iets etic ek Al iene Aa’

» scene or otherwise unlawful. The only witness produced

by’ the- State was the arresting officer -who testified

that when petitioner, wiiated to know why he had been

the officer asked petitioner why he sold such

“garbage”, and petitioner ‘replied that “there is’ worse —

stuff than this’ aroutid”, "pointing to Some-girlie maga-

te zines on the counter [R.13}——

" Neither the inquiry of the police officer nor ‘the

reply o ‘petitioner were related to obscenity. The ‘of-

ficer was plainly yoicing a personal dislike for mate-

rial which he believed’ from a view of the titles and

covers were in poor taste and vulgar, to wit, “garbage”.

/ That the petitioner’ so construed the police officer’s

. © remark is evidenced by. petitioner’s comparison" refer-

@ ence to “girlie” magazines, held constitutionally pro-

. tected by the highest ‘court of the. State in a number

of decisions. People v. Richmond County News, 9 N.Y.

2d 578, 216 N.Y.S. 2d 369, 175 N.E. 2d 681 (1961);

Larkin v.. G.. I. Distributors, 14. N.Y. 2d 809, 252

N-Y.S. 24 81.. °° *

: There is nothing’ in the record: to show that peti-

+. tioner, a clerk, knew that the two writings he sold

to the officer, at the latter’s request, were obscene, nor

‘does the record show that thete was any reason for pe-

titioner to believe that the material was violative of the

“State obscenity law. Books of a comparable character

« _~ had previously been cleared. People v. Birch, 40 Misc.

2d 626, 243 N.YS. 24 525 (Sup. Ct. Cr. 1963) [books

. Sex Kitten, Clipjoint Cutie, The Wild Ones, The Hot-.

test | in Town, Passion. Pit, Bedroom ot the Top,

_ Butch; . College for Sinners, described as containing

“a great number of en scipca ranted which,

ee

in many cases, are. only ténuously: associated with -

plot and story line” (243 N.Y.S., 2d, at 528) —

not obscene and indictment dismissed] ; People v. |

N.Y. Sup. Ct. Cr. #43163, September 6, 1963 [ob

scenity indictment dismissed — books entitled’ S trange

| Breed, Pagan, Swing Low Sweet Sinner, Sex Plan, A -

Rage Within, H orizontal Ss ecretary, None But the -

Wicked}.

So far .as the issues of petitioner’ 5 silt anit

edge and intent are concegged relative*to the alleged

obscenity. of these writings under: the governing stand-—

ards elucidated in the opinions: of the’ epurts, there is

no. probative evidence in,the record to support the judg-

- ment of convi¢tion. The State manifestly failed to meet i

the strict burden of proof imposed upon_the State under

“the Constitution when First Amendment-fights are in-

_ volved. New York. Times Co., et al..v. Sullivan, 376

U.S. 254; Garrison v. Lousiana, 85 S. Ct. 209; Man-

ual Enterprises, Inc. v. Day, 370 U.S. 478; Schnei-

derman v. United States, 320. U.S. 118; matt ad Bo.

United States, 325 U.S. 478. ‘.

3. . As a'matter of constitutional judgment, the books

herein involved are not, it is submitted,’ obscene. The

writings clearly do“not zo beyond the customary limits

of expression in language or theme found in many of

the “bestsellers” in the literary world and other- media:

of communication. Neither in language :nor in theme

do the books herein ‘approach the candor of discussion,

the explicitriess of language that is found in writings

of noted authors generally accepted and widely read. by

~ ‘the public. Each. of the books involved contains a plot

and story line with characters and incidents relevant to.

such Plot. and theme.

- "This Court has repeatedly warned that the content of -

“writings which may be suppressed is extremely limited, :

not to be measured by ‘subjective reactions to disagree-

| able themes or candid expression. To’s summarize: The _

guarantees of the First’ and Fourteenth Amendments -

apply equally to material designed to entertain or amuse

as to scientific’ or educational writings. Winters Vv.

New York; 337 U.S. 507. A writing is not to be deemed

obscene _ because “it does | ‘not conform to some norm:

Prescribed by an official”, or because not in “good

taste”, or ‘because it is not “good literature”, or be-

cause it does not have’ “educational value” , or becatise

it is not “refined”, of because it has no’ “enduring es

values”, or: because it is allegedly’ “trash”. Blomegon

. & Esquire, « 327°U.S. 146. !

_< >"Phe Constitution protects expression, “this Court has

s ‘stated, without regard “to the truth, popularity, or so-

cial utility of the ideas and beliefs which are offered”? .

N.A.A.C.P. vi Button, 371 U.S. 415, 445. Unless in- |

” tegrated with unlawful conduct, all’ ideas — “unortho- -

| dox ideas, controversial ideas, even ‘ideas hateful to the

| prevailing climate of opinion” — have the dull protec-

” tion of the guaranties of the First Amendment, Alberts . -

_ t» California, 354 U.S. 476, 484. And\in’ Jacobellis

‘Ohio, this Couirt emphasized that ‘material dealing

‘with sex in a tanner that advocates ideas or that has -

any other form of social importance cannot be: branded

‘as obscenity and denied the ‘constitutional protettion.

S Moreover, it was stated that the constitutional status of

Xie

\ ;

eas

o ee :

‘thie material dose -ndt-tara-caa.d sosighiog” if ila aan’

" cial importance against. igs alleged prurient appeal, for —

a writing cannot be proscribed unless it is — with.

aie importance.

~ It iggsubmitted that he books herein have value and

social importance. They have entertaingient and gath-

artic value, and they reflect a segrpent of. life which,

if crudg is nevertheless existent. It. cannot be utterly .

with@ut social importance. for people to learn something -

about the truth of the society, of a segment of the: so- .

ciety, in which they live. This Court has’ stated: “Truth

may not be the’ subject of either civil or criminal sanc- .

_ tions: where discussion of public affairs is ‘concerned.”

Garrison v. Louisiana, 85S. Ct. 209, 216. ©

- Clearly, the books herein are comparable in their de- |

- piction of sex to those writings which have been found

not to exceed the limits of candor in the Nation as ‘a

whole or to have some social importance justifying their -

protection under the First Amendment. See, ‘Tralins v.

Gerstein, 378 US. 576, reversing 151 So. 2d 19 (Fla.

1963) (Pleasure Was My Business) ; Grove Press, Ing."

'v., Gerstein, 378 U.S. 577, reversing 156 So. 2d 537

- (1963); (Tropic of Cancer); Jacobellis.v. Ohio, 378

U.S. 184, reversing 173 Ohio.St. 22, 179'N.E. 24.777 _

" (“The Lovers”); Grove Press, Inc. v. Christenberry,

276 F. 2d 433, affirming 175 F. Supp. 488 (Lady Chat-

terley’s Lover); One, Inc..v. Olesen, 355 U.S. 371, re-

versing 241 F. 2d 772 (9 Cir. 1957) (“One — The

Homosexual Magazine”). See also, separate opin-

7)

. “i i £%, ‘ ae

—26— oe abe 7, see .

> a 64 - :

‘fons: of Mr. Fiattee Stewart ‘in: acobelis' Vv. Ohio, 378

US. 184; and 4 Quantity of Copies a! Books, et al.

wv. Kansas, 378 U.S. 205.-

. For the foregoing reasons, this Petition ler

of Certiorari should be granted.

, esd _ Respectfully submitted,

ie - °. Qsmonp. K. Frazn Ker and

Biss Hig | STANLEY, FLEISHMAN

| gD stelsls _ Counsel for Petitioner

a’ Writ

4

-

APPENDIX A. sx

- Judgment of the Appellate Term. aN,

) At an Appellate Térm of the Supreme Court, First

He Department, held’ at the County Court House, Borough

of Manhattan, ag of New: York, on the 7th ‘eed a

‘December, |

Present : — . Hon. Samuel M. Gold, I. ?. Hon. Louis

"J. Gapozzoli; ‘Hon. Samuel H . Hofstadter, Justices.

The People of, the State of New York, Respondent =

vs. Roberf Redrup, Defendant-Appellant — Nov. ‘yaa

Filed Dec. 17, 1964. Appellate Term.

An appeal having been taken to this Court by Rob- ;

ert Redrup, the defendant-appellant, from a judgment —

” of conviction: by Hons. Tnipellitteri, Castaldi,. Rohan,

Judges: ‘of the New York City. ‘Criminal Court, upon

.the charge of violation’ of §1141°of the Penal Law,

_ @ntered on the 11th day of -June, 1964, and said de-

. fendant-appellant having been sentenced by Hons. Levy,

Spiegel, Whitman, Judges of. said. Cont, “on the 28th

“ of July, 1964, as follows: f: a =

Syspended sentenee

: vs and the said a peal having been heard ‘and due delibera-

tion having been had thereon, ~ ean

’ It Is Ordered and Adjudged that the said judgment

sO appealed from be and the same is hereby af firmed. |

| Rete ee bse,

. SMG . 5 See te an

Justice, Appellate Terin

| Supreme C Court, roe t Department

ey

| APPENDIX:B. . ‘ €

at Constitutional Provisions and Statutes/ Involved.

0. 3S ie pertinent provisions of the Fi irst Amendment

“to the United States Constitution are: }

' “Congress shall make.no law. . - abridging the «

nether ee “freedom of speech, gt of the press;. . .” . .

7 ay The pertinent provisions of the Fourteenth

Amendment to the United States Constitution are:

“No State shall . . . deprive any person of life,

ay, or + property, alten due process of ew;

rT baer

; 3. The gertinctt provisions of New York Penal Law, ;

- ‘ Section 1141, are: se ‘

rad — “$1141, Obscene Prints and Arties: =

1. A person who sells, lends, gives away, dis-

tributes, shows or transmutes, or offers to sell,

lend, give away, distribute, show or transmute, or

has in his possession with intent to seH, lend, dis-

«tribute, give away, show or transmute, . . . or who

, Otherwise offers: for loan, gift, sale or distribu-

> tee. any obscene, lewd, lascivious, filthy, indécent, _

: * sadistic, masochistic or disgusting’ book . . . draw-_.

mae roofer cogs motion: picture film,’ tvare. im-

"< on

1 nels guilty of a iiaanbidenaie oy : 3

| (As amended 1950, .623, 881-3; 'L.1950, c.

[ 624; 'L.1954, ¢.703; L.1955, ¢.837; ‘L.1956, -ec.423,

é ae 662, 681; 1.1957, c.690; L.1958, ¢c.735, |

gece rg ae ity 1958, 1.1958, “aS ey i:

pia! j ayer -