# Petition for a Writ of Certiorari — Redrup v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0912%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 386 U.S. 767 ## Text 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. * : . _ — ¢ — i - > ’ . “- . Se) ) ‘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. ° . . - . . ' e . p . . * . =e 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 : , 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 ~ _ » > 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 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— "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 - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0912%3A02. Public record. Not legal advice.