Jurisdictional Statement — Reed Enterprises v. Clark

Supreme Court brief1968

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‘SUPREME COURT: U. & "IN THE’ Re, "FEB. ” os

» Supreme Court of the Unites Sinden ame:

“Octobier| Terin, 1967. ~ oe : ms

84092

©: \ REED ENTERPRISES, ¢¢ al.,

Appellants, .

vs, , } :

RAMSEY Y CLARK, et al., oo

. Appellees.

| . aioe sens &

MILTON LUROS, et al., ret

oe : Appellants,

. ~ US. = -

RAMSEY CLARK, et-al., . MN ck ORNS

ve : Appellees.

SANFORD ELESTEL ADAY, et al, en =

eer se ‘ . Appellants,

: a: US. ae

RAMSEY -CLARK, e¢ al.,

coat Appellees.

&\-

On Appeal From the United States District Court

) for the District of Columbia.

’

P ____—_jurispier IONAL STATEMENT. on

STANLEY FLEISHMAN,

1680 North Vine Street, ne

| em Los Angeles, Calif. 90028, A

ee | : Counsel for Appellants. oe

Davin REIN, ae 3 i

SaM RoSENWEIN, ae : | .

_ Of Counsel. Pr 2 ee ee crit et

Parker & Son, Inc, Law Printers, Los Angeles. Phone MA. 69171.

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»SUBJECT INDEX . a.

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. Opinions . Below’ .........2....--.---+0+0+++ wessesesewegeensensssieesncenys

Jurisdiction senthcetes cael Runner ee A pessciltoinnimaninialanee~ Gees

Question Presented : eS Oe, ee a

Constitutional Provisions, Statutes and Rules le.

OR 9 aaenpnnngecneneecnceseensnqecenennen 5 ehiatinasctel 3.

Statement of the Case ...:...... RE Se — 4 -

The Questions Are Substantial Tee a ae

Conclusion ............. Sais aigiiae PR at 31

INDEX TO APPENDICES |

- Appendix A. Rasa and onal of the Dis-

Ct Cl nike ae a

” Appendix B. Opinion of the Court cof Appeals on |

Mandamus Sicsinsennnait selina pucenindinnanibintaiitameleiiaate 24 |

Appendix a ‘Constitutional Provisions, ‘Statutes,

and Rules Involved ovseutereduccsecneceecevestensnpeeseoss are oe

Appendix D. Stipulation of Facts. i senediasaaeekonee .

> a

ast

. ~

Sg ee

TABLE OF: AUTHORITIES CITED:

alee. ss, ix’ Cases a Page

Aday v. United States District Court for. Western

District of Michigan, 318 F. 2d 588, cert. den.,

ea een scaereceeiyeeBy. 12,14, 28

9 Aptheker v. Secretary to State, 378 US. 300... 2.~

| ~ Armour ‘Packing Co. «v. ‘United States, 209° U. S.

_ Ashton N.- Kentucky, 384 U. >: 195°. Ps Nae 23

Baggett v. Bullitt, 37 US. 360 .. sd lacauhilbaiAccalaiaascinin 23

Bantam Books;- LV. Sullivan, 372 U: S. 58 .. 23; 24.

_Dombrowski v/Pfister, 380 U.S. 479 sews 2) 23

Elfbrandt v/Russell, 384 U.S. ML eccencsenennee 23

Freedman’v. Maryland, 380 U.S. 51 ....-ut---« 23

Giaccio’v. Pennsylvania,’ 382 U.S. 366 creel) 23°

pee urg v. United 1 States, 383 us 2 4

Sie gk ONT toe TEN TNT AS ae NO 8, 16,26, 27 -

Ez V. Shine, 199 U.S? 62 cecnvornnernergnCgueenine 24

_ Jacobellis v. Ohio, 378 U.S. 184 ..02....< oe pri 26

eyishian v.. -Bd. of Regents, 385 U.S. 589 sien 2, 23

‘Luros v. Hanson, «382 U.S BIG sesiccenscepomne 12

Marcus ve Search Warrants of Property, 367, U. S,

<P Minnieniesin oe Saree wee Sesecngetancenieceneeetnssnnseledey 25

NAACP. v. Button, “371 US.’ 415

New York Times: ‘Co. v. Sullivan, 376 U. S. 254 . .23, 26

Quantity of One of Books v. Kansas, 378 U.S.

Ee ae ene inl, 28, on *

‘Redrup v. New York, 386 US. 767, 388 U.S. 447

—_— ore

’

‘Reed Enterprises, et, al. y. Corcoran [Luros,. et al. v.

_ Siglea], 354 F. 24.519 2.00.2... 2, 6, 7, 9, 10, 12, 29

~Roth-Alberts v: United States, 354,U.S. 476 vin16, 22

; Schneider ° v. Rusk, 377 U.S. 163. cccccececcscocineeoeeos a

Shuttlesworth v. Birmingham, 382 U.S. 87 eqnfhrnin 23

Smith v. California, 361 U.S. 147. %.......,..22). 25, 26

Speiser v. Randall, 357 U.S. 513 coosieee 22, 23, 24, 25

Times Inc. v. Hill, 385° U.S. 374 ss.ccceecsesecsssonecn23, 26 -:

_ Toscano v, ‘Olesen, 184 F. Supp. Ce

United States v. Davis, 353 F. 2d 614, cert. den.

.- '3845U.S. 953. ......... sintseeinfinaacenhecneigesinigetionecenstasianee 27

United States v. Frew, 187 F- Supp 500 anetinideeis: 2

United States v. Klaw, 850 F.' 20 158 .ccoconnn 27 :

_. United States v. Luros, 243 F. Supp. 160, 260 F.

— Supp. 697 | sion feniiciclnialdalesainne 12, 21, 29

United States v. Robel, 88 S. Ct. 419 ......... piaseerereed, 28,

United States v. Ross, 205’ F. 2d 619 .......... cu, 18

United | States*v. West Coast. ‘News Co., et al., 30 . ;

E.R.D. 13, 216 F. Supp. 911, 228 F. Supp. 171 .

eee “United States 1 v. West Coast News’ Go., “et al., 357

a bev _ 2d SRE DPA CO gb

ie eens = , Whitehill y Elkins, 389 U.S 54 ecccece ieshdensieaiademiaiiaen 24

Zwicker v. Koota, 88 S.°Ct. 391. ...eeesccooos aoe f

“?

iv."

Miscellaneous ote - Page :

_ Congressional Record (1958),.. Sec. 104, Pp. 8991-

es, 1 ee

House of Representatives 86th Congress, ‘Ust “Ses-

sion, Obscene Matter Sent. Through Mail (Ome. “2

> Print 1959), PD. 4G nasa Eaacnsintecean jessy proengst PD .

‘Senate Report No. 1839, July 15, 1958 eiaidasioen 18

~ Statistical Abstract of United States (1967), U. S.

Dept. of ‘Commerce (88th Annual Ed.), Pp. 1-43

at seabeaiapiabemmanibacene RPE FEE La 23

United States Code: Cuisaaaiasin and Administra- Hey

- tive News (1958), p. 4013 .cicccsocnocssccesceseceneeee “ee

United States “ Code, Congressional and Adininis-

trative News (1958), pp. 4014-4015 ................... 17.

United States | Code, Congressional and _Adminis-

trative News (1958), pp. 4015-4016 2... 18

United States Code Congressional, and Adminis-

trative News (1958), ts. 4007 19

Rules |

Federal Rules. of Crimirial Procedure, Rule ie 3.

Federal Rules of Criminal Proceduré; Rule 21 (b)

, ‘Statutes. Se

"Mies of = 25, 1948, Chap. 645; 62 Stat. : oe

“Public Law 85-595, 72 Stat. 512 oeesccsecoo s.

Public Law 85-796," Secs. 1-2, 72 Stat. 962 ....2, 3, 16

United States Code, Title 18, Sec. 1461 = ve, .

..3, 4, 5, 6, 10, 12, 15, 16, 24, 25, 29 eee

United States Code, Title 18, Sec. 1462. pbiinceanliine: 5's

neiennansinnsdy 4, 5, 6, 8, 10, 13, 15,.16, 24 oe eee ae

sree i

' : > , Page s

: United States Code, Title 18, Sec.: 3237 . sea 16, 18, 24

_ United States Code, Title 18, Sec. 3237(a) ~ comngis a

_ United States Code, Title 28, Sec. 1253 2.2.2... 2

_- United States Code, Title 28, Secs. 1331- 1332 nine 2

United"States Code, Title 28, Sec. 2101(b) 2, 2 -

United States Cofle, Title 28, Secs. 2201-2202 +... 2

United States Code, Titie 28, Sec. 2282. ake 6

- United States Code, Title 28, Sec. 2284 .......\p.2, 6

United ‘States Constitution, Art. 1, Sec. 1.3

~ United States Constitution, Art. I, Sec. 8...,..2, 3, 6 —

a United States Constitution, ‘Art. ITI, See, 2-3... 3

“4 United States Constitution, First Amendment ined ini

clunnane-poosrseewornaninnannnnfacrsseeemnstyS, &, G24, 25, 26, 27

‘United 1 Sates Constitution, Fifth. Amendment. wisi wae Bee

, - 2, 3, 4, 6.

United States Constitutiosi ‘Sixth Amendment waite ;

sdnnanee , Ganllienis 7 2, 3, 4, 6, 15, 16 |

, Textbooks oa

Paul and Schwartz, Federal Censorship: Obecet-

ity in the Mail (1961), p. 185. a minateme Be

Paul ‘and Schwartz, Federal Censorship: Odecenity =f

"iin the Mail (1961), $. 186 .......:.

a University of California Law Review Prinses ye |

_ pp. 751-818 re , 27

115 University of Pennsylvania Law Review

(1967), pp. 399-438 " hnneinieenins 27

‘Me

“IN THE

Supreme Court of the United tates

October Term, 1967

N@. ..::..

-- REED ENTERPRISES, et t al,

; : ae Appellants,

. US. aii

RAMSEY ( CLARK, et al., eis |

: Poe - Appellees.

. MILTON LUROS, et al., ) me

, Appellants,

ea oe US. =

RAMSEY CLARK, et al.; . | a a ee

: . oo” Pa eed Appellees.

. a ee —" 5 ; ® ,

. e ; a ; ‘ ~

SANFORD ELESTEL ADAY, ef al., gee

| . Appellants, = °

- va US:

RAMSEY CLARK, et al., hacaraees pared 2

ei eo. r e ° ue, ee ‘.

_ On. pony From. the United States District Court

sa for the District of Columbia.

' &

JURISDICTIONAL STATEMENT.

. Appellants appeal from the judgmerit and or ler

of the United States District Court for the District of -

‘Columbia entered on Qctober 26, 1967, granting the ~

motion of appeflees for summary judgment ‘in each of

these consolidated. actions, denying appellees’ motion to” |

dismiss, and denying appellants’ ‘motio# for summary |

‘ b

aie.

judgment. Appellants submit this Statement to show _

that this Court has jurisdiction of this appeal and that

substantial questions are presented. :

Opinions thelow.

The opinion of the District Court for the District!

of Columbia: is unreported. A copy of the opinion is

attached hereto ‘as Appendix A. The opinion of the:

Court of Appeals for the District of Columbia in the

related case.of Reed Enterprises, et al. v. Corcoran is :

reported in 354 F. 2d 519 (D.C. Cir. 1965). A eopy

of the opinion is attached hereto as Appendix B. —

j arisdiction.

These actions were brought under 28 U.S.C. §§1331-

1332, 2201-2202, 2282 and 2284, praying for declara-

tory ‘and injunctive relief, upon the grounds that 18

U.S.C. §§1461. and. 1462, as amended in 1958 {Pub.

L.85-796, §§1-2, 72 Stat. 962]. violate appellants’ con-

stitutional rights as guaranteed under the First, Fifth .

_and Sixth Amendments and Article I, §8 of the Con- ’

stitution. The judgment and order of the District Court

_ (Appendix A) was entered on October 26, 1967, and

notice of appeal was filed in that Court on December

12, .1967. The jurisdiction of the Supreme Court to ©

review -this decision by direct appeal is conferred by °

- 28 U.S.C. §§1253 and ‘2101(b). The following deci-

sions sustain the jurisdiction of the Supreme Court to

review the judgmént on’ direct appeal in this case:

Aptheker v: Secretary to State, 378 U.S. 500: Schnei-

der v. Rusk, 377 U.S. 163; Dombrowski v. Pfister,

380 U.S. 479; Keyishian v. Bd. of Regents, 385 ao:

589; omen Koota, 88 S. ot. 391.

_ Question Presented.

Whether the oo of 18 U.S. C. §§1461 on

1462, as amended in 1958 [Pub.L.85-796, §§1-2, 72

Stat. 962], witha unrestrained ' and unlimited

forum-picking by federal prosecutors and multi-venue

prosecutions, create vague, ambiguous, overbroad and

' unascertainable standards ; act as a prior restraint upon

the circulation of the press; deprive the public of ac-

cess to constitutionally protected material ; abridge free-

dotmms of speech ‘and press; deprive persons: “of their

liberty and property without due process of law and .

‘their right toa fair trial and the venue protection of

the constitution, and: constitute an unlawful delegation

of Congressional power, all in violation of the provi-

sions of the First, Fifth and Sixth. Ameridments, and

‘ Article I, §§1 and 8g, .and Article ITI, S| of the: Con-

stitution.

Cons titutional Sininiiadiini Statutes and Rules :

Involved.

; The pertinent provisions of the First, Fifth and Sixth .

- Amendments and Article I, §§1 a and 8, and Article II],

§2, of the Constitution; the provisions of the 1958.

Amendments to 18 ,U.S.C. §§1461 and 1462 [Pub.L.

85-796, §§1-2, 72 Stat. 962]; the entife provisions of

18 U. S.C. §§1461 and 1462 as presently effective; the

provisions of 18 U.S.C. §3237(a}) [Act: of June 25,

_ 1948, Chap. 645, 62 Stat. 826; Pub.L. 85-595, 72 Stat.

~ 512]; and Rules 18 and 21(b) of the Federal Rules’

of Criminal Procedure, are attached hereto as Appen-

a Cc.

—4—

Statement of the Case.

(a) The complairits herein, filed reanettively-« on July.

19, October 14 and December 2,, 1965, were similar:

in character. Each alleged, among other things, that

appellants were engaged in the business of -publishing

and distributing throughout the Nation books, maga-

zines and other writings which are protected from gov-

ernmental infringement by the provisions” ‘of the Con-

stitution. The pleadings further alleged that 18°U.S.C.

§§1461 and 1462, as amended, violated appellants’ con-

stitutional rights as guaranteed under the Constitution,

‘in that the statutes abridge the exercise of freedoms of

speech and press contrary to the provisions of the First

Amendment; impose a prior restraint upon the lawful

circulation of books ‘and other writings; restrict the

public’s access to reading material; create a” universal |

censorship; arbitrarily and capriciously deprive persons,

including appellants of their liberty and property with- -

out due process of law in violation of the Fifth Amend-

ment; purport_to Guthorize arbitrary forum-pitking by |

~ federal prosecutors and the institution of multiple prose-._

cutions for identical material in districts. far removed

from the residences and places of business of alleged .

violators in violation of the free speech and. press, due

process and fair trial provisions guaranteed by the.

_ First, Fifth and Sixth Amendments; and that the stat-

nutes, by reason of their vagueness, lack of ascertain-

” able standards and unconfined breadth and scope,

abridge the free speech and press and due process pro-

visions of the First and Fifth Amendments.

e e

It was further alleged that the Appellees’ threatened

to enforce 18 U.S.C. §§1461 and 1462, as amended,

against the appellants unless restrained by the Court,

and that such actions by appellees would necessarily

involve appellants in a- multiplicity of legal proceed-_

ings, result. in a destruction of their: good-will and —

property, exhaust their firiancial and physical resources

so as td make it impossible to adequately defend against |

such niultiple criminal prosecutions, and that such con-

duct would seriously® diminish the circulation of Ap-

pellants’ books and other writings and- cause them to

suffer substantial and irreparable loss and damage for

which.Appellants had no adequate remedy at law. _

It was alleged that the intent of the Appellees was.

* . to employ threats of prosecution, and prosecution, un-

der color of the federal.obscenity statutes, in order to

harass Appellants and exhaust their financial and phys-

ical resources to such an extent as to put. Appellants

out of business;. to thus: interfere with the -rights of

Appellants to publish and distribute constitutionally_pro-

tected writings, _to-deny-to-the public access to Appel-

~~~“Tants’ material,.to establish «2 national censorship of:

-all books and writings dealing with sex, to ‘impose a -

| prior restraint upon the circulation of the -press, and

to arbitrarily deprive Appellants of their liberty and

_ property without due process of law and to deprive

° Appellants of their ‘right to distribute constitutionally

protected beoks and other writings in interstate com-

merce. © . ,

de B. Katzenbach, individually and as the then Attorney Gen-

eral of the United States; and certain named - Assistants who

‘ were responsible generally in the Department of Justice for the

enforcement of the federal criminal laws, and specifically in ‘the

‘Each of the actions was initially instituted against Nicholas —

area of criminal prosecutions involving violations of -18 U.S.C. |

§§1461 and 1462, as amended.

eres : ‘ : r

Mee Se SBA TAPIA

Each. Appellant cital for a declaration jthat 18

U.S.C. §§1461-and 1462, as’ amended, ‘violate the pro-.

visions of the First, Fifth and. Sixth Amendments

and Article I, §8, of the Constitution; for an injunc- —

tion restraining the Appellees from any threatened prose-_

~ cutions, or prosecutions, under the statutes, as amend-_

ed, and for the cpnvocation of a three-judge court: pur--

suant to the provisions of 28 U.S. C. §§2282 and 2284.

In Reed Enterprises, et al. and in Lurd®, et al, ‘the

applications for the, convening of a three-judge court

were denied ,by single District Judges sitting in, the

_ District Court of Columbia. Thereafter, ‘mandamus pro- =

ceedings were instituted’ in the Court _of - Appeals | for.

the District of ‘Columbia | Circuit. In‘an opinion ren-

der ered by the” Court of Appeals on ‘December 2, - 1965,

it was: held that “the complaints filed in District Court

raise a substantial question as to the constittitionality

of the 1958 amendment”. (Reed: Enterprises, et al. v.

Corcoran [Luros; et al. ‘v.- Sirica], 354 F. 2d 519,

522; Appendix .B., p. 29), and that a three-judge court

was therefore required.

Following "the aforesaid proceedings, a “three-judge

court was constituted, consisting of the Honorable Ed-

‘ward A. Tamm, United States Circuit Judge; John J.

Sirica, United ‘States District Judge; and Howard F..

Corcéran, United States District Judgt, and the three

proceedings were consolidated for hearing before the |

said three-judge. court.”

2Mandainus proceedings. -were instituted by Reed Enterprises;

et al. and Luros, et al. prior to the filing of the complaint in

Aday, et al. The opinion of the Court of Appeals in Reed and

Luros directing the convocation of a three-judge court made it

unnecessary to institute rr: a proceedings. for Aday,

et al.

‘(b) In Reéd Enterprises, et al., at the time of the

filing of the complaint and the application for a three-

judge: court, _there was also filed a motion for prelim-

fit. inary injunction. In opposition to the motion,»appellees

urged that the Court lacked jurisdiction over the sub-

ject matter of the complaint and’ that theré were fio ~

circumstances. justifying preliminary injunctive relief.

The affidavit of Fred. M. Vinson, Jr., an Assistant

of the Department of Justice, and a defendant in the

action, alleged that the Department of Justice had “not

taken any action with respect to plaintiffs which is in‘

tended to harass the.plaintiffs or to abridge any free-

doms to which they are entitled”, and that any grand

jury" investigation or prosecution’ of Appella ts would:

_ be conducted in thé good-faith belief that there had —

-been.a violation of the law “as interpreted by the Su- ‘-

-. Attorney General in charge of the Criminal Division © ++

preme Court of the. United States”.. Another affidavit a

_ in opposition was. submitted ‘by Edward J. Pesce, an

_ attorney in the General’ Crime Section of-the* Criminal

‘Division, Department of Justice, and also a defendant

in the action. The Pesce affidavit stated, among other

things, that, the only federal. proceedings involving these _

plaintiffs were “those before a Federal grand jury in

Houston, Texas”.

“Because of the failure of the District Court td con-

vene a three-judge court as requested by plaintiffs and

the institution of mandamus proceedings in the Court

of Appeals, no ruling was made on the application for

preliminary injunction. On September 10, 1965, the pe-

tition for mandamus was filed in the Court of Ap-

peals and, on the same day, these Appellants were in-

dicted in the Southern District of Texas, Houston Di- _

vision, some 1,500 miles away’ from their businesses and .

a -

| >

places of residences in California, and charged in a 26-

count Indictment with violations of. 18 — —

as amended.

- Following the direction by the Court of ‘Dimi for

the convocation of the three-judge court, Appellees ‘made

answer in the. District Court, generally denying the ,al-

legations of the complaint and alleging as defenses’

that the Court jacked jurisdiction dver the subject mat-

ter of the complaint, that the complaint failed to state

a claim upon which relief might be granted, and ‘ad,

mitting only-that Appellants had been indieted in the

Southern. District of Texas, and alleging. that the books

. . and writings named in the Indictment were obscene:

and not entitled to constitutional protection. Thefeafter,

the three-judge court requested counsel to see whether or

not the case could be héard on stipulated facts and, in

the light of the pendency of Ginzburg v. United States

. before the Supreme Court, postponed hearing on the |

motion for preliminary injunction which chad thereto-

fore been’ made. —_ ssa |

The. date. for. trial of the ‘minal speeistsition in

Houston having been set for July 5, 1966, a motion.

for a stay of.the said trial was made by Appellants

-on‘June 13, 1966 and denied by the three-judge court

_on June 21, 1966. The three-judge court held that the

burden of defending : ‘the criminal prosecution pending .

in Houston did not “constitute such great and imme-

diate danger of irreparable injury as to warrant the ~

relief requested”. A similar motion for a ‘stay was

- presented to Mr. Justice Black who denied the motion

on June 29, 1966 with the following endorsement:

“As shown by the Court of Appeals opinion in

‘Reed. Enterprises v.. Corcoran, 354 Fed. 2nd 519,

this proceeding involves serious constitutiora! ques- . .

tions concerning multiple prosecutions in many —

jurisdictions. I am denying the stay here however,

solely because of the Solicitor General’s statement

that no other prosecutions are intended to be

brought anywhere based on the materials here in-

- volved—Petition denied.” “8.

4 @

_ Thereafter, counsgl for the respective parties, and in

accordance with the request of the three-judge court,

entered into’a stipulatigg of facts with respect to the’

three consolidated causes pending before’ the Court.

Attached hereto as Appendix'D is a copy of the said

_ Stipulation. With respect to Reed Enterprises, et al.,

it was stipulated (Appendix D, pp. 45-47) ‘that the

principal place of business was in San Diego, Califor-

nia; that the 26-count Indictment returned in Hous-.

ton, Texas involved seven books entitled respectively,

Orgy Club, Sin Summer, Shame Hunger, Temple of

“Shame, Virgins, Inc., Passion Carousel and Swap Sect;

that the books had been transported into the Southern’

'. District of Texas in the regular course. of Appellants’

_ business operations and purchased from local retail out-

-lets by agents of the Federal Bureau of Investigation:

that on September. 2, 1966, following an 8-week .trial

before a jury, in which all of the individuals accused

' .,and their five attorneys were’ present throughout, the

jury reported itself deadlocked and was dismissed; that

/ motions for judgments of acquittal were denied and ‘the

case scheduled for retrial commencing on May 15, 1967:

8On April 26, 1967, the Honorable Joe Ingraham, .a United

States District Judge for the United States District Court, South- .

ern DiStrict of Texas, Houston Division, and the trial judge who

__ presided at the trial in Houston which resulted in the deadlocked

' (This:footnote is continued on the next page) _ ~

. "- i | .*. |

and that there had- been no other federal criminal pro-

, ceddings. against the Appellants relating to any of the

publications aforementioned.

preliminary injunction in conjunction with the filing: of

the complaint and the application: for the convening of —

ae three-judge court. At the time. of the filing of the

aforesaid papers, the Appellants had already beeri_in-

dicted on March 24, 1965 inthe Northern District of

Iowa, Western Division, under a 25-count Indictment

_ charging Appellants - ‘with violations of 18, U.S.C.

§§1461 and 1462, as amended, and conspiracy to violate .-

said statute. The Appéllants w erp béing required to

face a trial over 1,500 miles from’Los Angeles, Califor-

nia, their place of businesses and. residences, - ds

As in Reed Enterprises aforesaid, similar opposition

to the motion for preliminary injunction was. “submitted .

by the Appellees and, again, no ruling was madé on the

application ‘for. the preliminary in junction “pending the

- mandamts proceedings i in‘ the.Court of Appeals. Again —

following, the direction of the Court of Appeals for the

convocation of the three-judge court.’ Appellees made

answer and in, similar fashion hearing on motiof for

preliminary injunction was postponed pending the for-.

thulation of stipulated facts as requested by the three-

_judge court. There were also applications for stays of

the trial in Sioux City, Iowa, all of -which wetk de-

nied. Thereafter; counsel for the respective parties en-

tered into the same stipulation of facts (Appendix D). ”

_ With respect to the Luros, et al. proceedings, it was |

stipulated (Appendix D, pp. 47-53) among. counsel «.

, jury, granted a motion -for transfet of the proceedings to the

nited States District Court for the Southern District of Cali-

‘ a. United States ' wv. Hamling, et al., Criminal No. 65-H-172.

{

i: -

Sea eee

for. the respective parties that on March 24, 1965, in

Ft. Dodge, Iowa, these Appellants ‘were indicted % on 25

counts for. allegedly shipping interstate ‘and mailing .

quantities of six different paperback books and 25 dif- |

ferent magazines into the Northern District of Towa _

in violation of the federal obscenity statutes. The books

involved in the Indictment were* entitled: Lesbian Sin

Song, Two Women in Love, Pleasire House, Lesbian

Alley, The Three Way Apartment and The. Affairs of

Gloria, The magazines involved wete variotts issues. of

| so-called nudist and “girlie” magazines. ~ , _ 9

“Ft was. further stipulated -between the parties that

only’ two copies of each of five of the books nameéd

in the “Indictment and three copies of the other book

weresever. mailed into. the Northern. District of Iowa,

_-and-this. was done by “test orders”: sent from the

Northern District of Iowa at the behest of - vatious °

« Postmasters in Iowa, St. Louis and Los Angeles. This

' Same decoy method was used to. ‘obtain a number of

the magicians s named i in the Indictment.

_It was “stipulated that the trial in the Northern Dis--

2 trict of Iowa began on October’ 18, 1965 > that prior.

- to the submission of the case to the jury, District Judge

William -C. Hanson dismissed the conspiracy count:

and, six other counts of the Indictment involving “girlie”

magazines. In all, 18 of the original. 25 counts were

submitted to the jury. With the exception of “two of |

the counts of the: Indictment, all of the.remaining 16

‘counts in the Indictment were. based on baoks and mag- _

azines which had been surreptitiously ordered by a

+ Postal “Ti&pector in. California’ through intermediaries

in Towa;- as the stipulation reveals. “

® 2.

\ eo ee ina’

The ; jury found all parties guilty on each’ of the 18

remaining counts @f the Indictment. Motions for judg-

‘ments of acquittal were later granted as to all indi-

. vidual Appellants, ‘except Appellant Milton Luros, and

the corpotate Appellants. ‘On January 6, 1967, the in-

dividual Appellant was sentenced to five years impris- —

“onment and fined $25,000. Two of the corporate Ap-

- pellants were each fined $25,000 and two other corporate

Appellants were .each fined $12,000. A notice of ap-

peal was then filed. ‘

Finally, it was - stipulated that there have been no

other -federal proceedings against - Appellants at any

time relating to the publigations named in the Indict-

| “nent. :

(d) In Aday, et al., the proneedings on the motion

7 for preliminary injunction were san left. in abey-

ance; the Appellees made answer, a ollewing con-

solidation of the three. actions and the. convocation of .

the three-judge court, the stipulation between the par-

ties (Appendix D) was entered into and included facts

relative to thesé Appellants (Appendix D, pp. 42-45).

It was stipulated that the Appellants resided and had |

_ their principal place of business in F resno, California.

It was further stipulafed that on April 2, 1958, the

Appellant. Aday was indicted: in the United States. Dis-

trict Court for the Southern District of California for

three.afleged violations of 18 U.S.C. §1461. While 11

pocketbooks, were involved in the prosecution, only 3 :

‘The trial ‘under, the F t. Dedge Indictment was held in Sioux

City, Iowa. The appeal to the Court of Appeals for the Eighth

Circuit has beeti argued ‘and is awaiting determination. Luros,

et.al. u. United States, Nos. 18707 tltough - 187 11,.-inclysive. .

For various rulings made during the Sioux City trial, see Luros

v. Hanson, 382 U.S. 956; United States v. Luras, 243 F. i.

160 (1965), 260 F. Supp. 697 (1966).

. bs .

Ce ee

were submitted to, the jury, the Government withdraw- i

_ing\8_of the ‘titles prior. to~submission. The jury re-.

turned a not guilty verdict with respect to a book en-~

titled Rambling’ Maids, and deadlocked on the other 2 -

books entitled Strange Three and Turbulent Daughters.

The entire Indictment against Appellant Aday was

subsequently dismissed.

The Appellants.: were indicted For: violations of 18" :

USS.C. §1462: [as amended .in 1958] in Grand Rapids, \

Michigan on’ May 24, 1960; in Phoenix, Arizona on

April 26,-1960; and in Honolulu, Hawaii on October |

12' 1960. In Grand Rapids, Michigan, the 18-count

Indictment involved’ 8 books entitled respectively, Sex

Life of,a Cop, Decisive Years, Weitch- . Finder, Love

Princess, Never Enough,»I am a. Lesbian, Desperate

Moments and The Black Night, the last title of which.

had been the subject of the aforesaid Fresno trial in °

1958 and one.of the books: which had been withdrawn

prior to submission of. the case to the jury. In Phoe-

nix, Arizona, the book involved was Sex Life of a Cop.

nd in Honolulu, the ‘books involved were Sex Life of

a Cop, Decisive Vears and Each Won Two.

IneGrarid Rapids, Michigan, the jury disagreed as

to all counts of the Indictment’ except the five counts

“* involving the book Sex Life of a.Cop. Appellants were

convicted on Decentber 12, 1963 and sentenced on De-

cember 30, 1963. Following the convictions in Grand

Rapids, the proceedings i in Honolulu and Phoenix were

dismissed by the Government. The corporate Appellant

was fined $25 000; the Appellant Aday was fined a

total sum of $25,000,and sentenced to a total “prison term -

of 25 years. The.remaining individual Appellant’ was

fined.a total of $19,000 ang sentenced to a total prison

a 7%

~ .

“_

term of 15 years. On March 22, 1966, the judgments

_ of conviction were sustained by the Court of Appeals ~

for the Sixth Circuit, but remanded for reconsideration

of the sentences. United States v. W est ‘Coast News

. Co., et al., 357 F. 2d 855. On April 6, 1966, the Dis-

trict Court resentenced’ Aday to 10 years imprisonment

and the-other individual Appellant to 5 years imprison-

ment, leaving in effect the fines which had been ini-

tially imposed. A petition for a writ of certiorari ‘to

the United States Supreme Court was filed.°

On March 26, 1965, the Appellants were indicted on

10 counts:in Houston, Texas, again charged with vio-’

lations of the federal obscenity statutes. The five titles

involving i in the Indictment are entitled: The Awakening

of Cindy, The Girls of .Club Sappho, ‘The Women ©

Were Willing, The Swingers and Twisted Passions.

All of the alleged transportations occurred after the

réturn ‘of the ‘Indictment in Grand Rapids, Michigan,

and 6 of-the said alleged transportations occurred after

the Grand Rapids conviction. There have been no other

federal criminal proceedings against Appellants relative

to thé aforementioned. pubfitations.

The books named in the Honolulu, Grand Rapids

att Houston Indictments were transported into the

»Districts in the regular course of. Appellants’ business.

_In each case, the books were then purchased from lo-—

cal. retail outlets by agents of the Federal Bureau of

Investigation. :

5On June. 12 1967, the . saul Court deen the petition |

for a writ of certiorari and_ reversed the judgment of ‘the Court

of Appeals, based on Redrup v. New York, 386 U.S. 767 (388

U.S. 447). For related decisions, see Aday v. United States Dis-

trict Court for Western District of Michigan, 318 F. 2d 588

(6 Cir. 1963), Cert. denied 385 U.S. 39; United States v. West

Coast News Co., et al., 30 F.R.D. 13 (1962), 216 F. Supp.

ws ape. Supp. 171 (295%).

| tf

(e) Appellants _— for summary judgment based’

upon the pleadings and the stipulation of facts (Appen-

dix D). Appellees moved’ to dismiss each of the

actions upon the grounds that the Court lacked -juris-

diction and that Appellants’ stated no basis for equi-

_ table relief. In the alternative, Appellees moved for sum: °

mary judgmentagainst Appellants in each of the ac-

tions based upon the stipulation of facts ( Appendix

D) and the affidavit of Fred M. Vinson, an’Assistant °

-Attorney General, setting forth what purported to be

- the policy of the Department since the enactment of the

_ 1958 Amendments to 18 U.S.C. §§1461 and 1462.

(£) On October 26, 1967, the three-judge ¢ourt ren-

dered its opinion andajudgment, denying ‘the motion to

dismiss, denying appellants’ motion for summary judg-

ment and granting the motion of Appellees for sum-

mary judgment, in, the consolidated causes (Appendix ~

A). The District Court held that the federal obscenity

_ statutes are founded on the powers of Congress to ex-

clude ‘ ‘objectionable and non-constitutionally protected

material” (Appendix A, pp. 6-7) from the mails; that

where a crime involves some aspect of interstate or

_ foreign commerce, C congress is constititionally empow-

ered to determine where venue will lie for purposes of

federal jurisdiction ; that Congress could constitution-

ally designate as a continuing offense the use of the

mails for’ transporting obscene material ‘and that such

designation did not violate the Sixth Amendment venue

provisions-of the Constitution. The District Court’ fur-

_ther held that neither the due-process nor free speech

- and press provisions of the Constitution wale-Abalated

by the 1958 Amendments to the federal obscenity stat- ~

utes. The Court stated that every criminal prosecution

—l6— .

in-an obscenity case may have some deterrence upon

» exercise of freedoms of speech and press, and that

‘any increase in apprehension which may accrue on a

_ purely subjective basis by reason of the injection of a

"multiple-venue provision is at most ancillary gnd de

minimis”. (App. A, p. 21).

The notice of - appeal to this Court was filed on

December 12,1967. -

~The Questions Are Substantial:

I. 18 U.S.C. §§1461 and 1462 were amended on -

- August 28, 1958 te provide generally that whoever

knowingly uses the mails for the mailing, or knowingly

uses any express company or any other common car-

rier for carriage in interstate commeysce, anything de--

clared by the law to be nonmailable is subjéct to fine

and imprisonment: [ Pub. L, 85-796, §§1-2, 72 Stat. 962].

- Prior to the eriactment of the said Amendments, the of-

fense under the federal obscenity statutes’ was held

to be complete when the deposit for mailing or delivery

was made. The courts uniformly held that the offense

under the,federal obscenity statutes did not involve the.

use of the mails, as that phrase is used in 18 U.S.C.

§3237. The courts held that the latter statute must be

read in the light of the Sixth Aimendment to the United

States: Constitution, and that there was a clear distinc-

tion between a deposit for mailing or delivery and the

- use of the mails. United States .v. Ross, 205 F. 2d

' 619 (10 Cir. 1953).° ,

‘The Bill to amend the federal obscertity stattites was

introduced into the House in ‘1957. [H. R. 6239]. Be-

®No venue question was presented: iri Roth-Aiberts, 354 U. S.

476, decided prior to the 1958 Amendments. See, — v.

United States, 383 U.S. 463, 464, n.1. :

—

fore a House Judiciary Committee which had the Bill

under consideration, witnesses appeared to urge the de-

feat :of the proposed measure because, it was argued,

enactment of the Bill “would create new risks for repu-

table publishers and booksellers; [it] would subject

them to community standards which might be quite dif- —

ferent from their own, to the disparate standards of _ Seat Si

every American community into which their books

might be sent... . A pliant or zealous prosecutor might

be perataided to to press for an indictment . . . Publishers

could be forced to»transport lawyers, whine, and

other ammunition for, defense to a. distant, hostile place.

.” Paul and Schwartz, Federal C ensorship: Obscenity

iM 1 the Mail 185-186 (1961).

On May Rr A 1957, the General’ Chanel for the Post

Of fice Department’ wrote. to the Chairman of the Ju-

diciary Committee af the House, urging. enactment of

the Bill in order to “settle the jurisdictional question

so that’ violators . . . can be prosecuted at the place -

of mailing, at the place of address or delivery, or in

- any . judicial. -district through, which the. objectionable

_ matter is carried in the’ mails”. The General Counsel

added: “The circulation: of obscene matter in any com-

munity tends to debase its morals. Therefore, its citi-.

‘zens should be free to prosecute the persons responsible

for such obscenity.” 1958 U.S. Code, Cong. and Ad.

News 4014-4015: Sec. 104 Cong. Rec. 8991-8996, 15610-

15611 (1958).

When the Bilt was sent to the Senate, the Atteweny

_General wrote to the Vice’ President on March 14,

_1957, advising him that the Department - of _Justice

supported. the proposed measure and stated: “This meas- -

ure is’ intended to. overcome the effect of the Ross de- *

cision, making it possible to prosecute violators of sec-

tion 1461 at the place of which the objectionable mai-

ter is’ mailed,. at the place of address or delivery, or

in- any judicial district through which such mail mat-

'. ter'is carried. Thus, the amendment will materially in-

crease’ the effectiveness of the statute.” 1958 -U.S.

"Code; Geng-ana Ad.. News 4015-4016. of

The Senate however, while giving -g¢neral spocovel

to the Bill, suggested a substitute measure. S. Rep. No.

1839, July 15, 1958 [to accompany H.R. 6239]. The

Senate proposed that the Bill be amended to make it

possible to prosecute violators only at the place where

the matter was mailed, or at the place of address or

‘ delivery. “In this respect it takes a thiddle ground ‘be-

tween the Ross case ‘cited above (which would allow

prosecution only at the place of deposit) and section

3237 of title 18, United States Code {which would

allow prosecution in any district from, through, or into’

which the mail matter moves).” It was stated that the —

adoption of this middle view was based upon the grourid

“that unrestricted ‘forum shopping’ can lead to abuses

and is, therefore, against public policy”. 1958 ee S. Code,

‘Cong. and Ad. News 4013.

Thereafter, the: House disagreeing with the Sibite

‘Amendments to the proposed Bill, the measure was

sent to conference. The Conference, Report ‘stated that

it was “the position of the Post Office Department

“that the crime of sending obscene matter through the

mails is a continuing: crime from the point of deposit,

in transit, and at the point of ‘delivery. The House con- ,

‘curred in the position of the Post Office Department. °

.. 2’ The Conference Report added: “(Question has been

raised as to whether the Post Office Department in-

—]9— .

tends to press for the prosecution of violations of: the .

law in the jurisdictions through which the unlawful Oo

mailed matter passes: in transit, if the language of the .

Housé of Representatives is restored to the Bill by

the conferees. In a letter dated August 5, 1958... .

the Post Office Department answers this question ‘em-

phatically’ in the negative.” 1958 U.S. Code, Cong.

and Ad. News 4017. ee

The House version was. finally reported out and -

. . . ‘- > ;

passed. The measure was approved on August 28, 1958."

' 2. The legislative history indicates a clear Congres-

sional ‘intent to authorize multi-venue prosecutions un-

der the federal obscenity statutes based upon the local

community .standards -oi'.each and every community

in which books or writings are mailed, at their place of

address or delivery, or in any district through which

__ the material is carried’ or transported.: This view has

_ been expressed by a number of judges in. the Federal

Courts before whom the question has. been raised. Thus,

in United States v. Frew, 187 F. Supp. 500 (D.C. Mich. ~

1960), Circuit Judge O'Sullivan. (sitting by designa-

tion) denied collateral estoppel effect to earlier District

_. Court proceedings ‘in Los Angeles in which allegedly

. the same materials as: those forming the basis of the

"Upon the enactment of the Bill, “the Judiciary Committee

openly warned that United States prosegitors were not to abuse

their new power”. Paul and Schwartz, Federal Censorship: Ob-

scenity in the Mail 186. Nevertheless, the Post Office Department

stated that it would’ press “the use of this new legislation to ©

the fullest possible extent . . . to attempt to prevent the use of '-

the mails for indecent material and to seek indictments and prose- -

cutions for such offenses and even though it may be argued that

it falls in the’ category of material concerning which there has ~~~

been previous rulings favorable to the promoters”. Subcommittee.

on Postal Operations of the. Committee on Post Office and City

Service, H. of ey 86th Cong., Ist Sess., Obscene Matter Sent =

Through Mail, (Comm. Print 1959). .

; 3 —29—

Michigan prosecution were sane to i not obscene,

and stated: “[W]hat- the’ community of Los: Angeles

“may have found not obscene may meet.a different

_ staridard in Michigan. .. . One who’ chooses to carry

on an enterprise which. night indeed offend ‘criminal

statutes enforceable in places in which he proposes to

carry on his enterprise, must: take the hazards i inv olved””

(187 F. Supp. at 506-507).

~ In United States v. West, Coast News Co., 30 F. RD.

13. (D.C. Mich. 1962), District Judge Store, in deny- |

ing-a motion for’transfer under Fed. Rules Crim. Proc. |

Rule 21(b), stated: “As. intended by fe’ Congress; —

_ jury drawn from this district will be fagiliar with -

‘and best able to apply the local community \standards

in determining whether books were obscepe and in vio-

lation of the statutes. It is obvious that a jury drawn

from the. southern district of California would not have¢

knowledge of the. community standards in this western

. district of Michigan. ‘To grant defendants’ motion .. .

would deprive the citizens of the western district of

- Michigan of the opportunity. to evaluate the ‘books and :

. determine whether they aré obscene —_— local com-

” munity standards.” (30 F. RD. at 19-20)...

‘Tn. denying a motion for reargument of the motion” i

to transfer .the proceedings, District. Judge. Fox in ne

-Grand Rapids, Michigan adhered to the views of Judge

Starr and stated: “ ‘The common conscience of the.

community” is to be determined by a jury in the dif °

_ trict in which the action is- brought. It was the intent

of Congress that this-action could be brought in this

district, where the material had been disseminated.”,

United States v. West Coast News.Co., 216 F. Supp.

910, 926 (D.C. Mich. 1963).

In upholding the Grand Rapids judgments of con- -

<viction, the Court of: Appeals for the Sixth Circuit

stated: “We consider Judge Starr’s opinion a quite ade-

quate exposition’ of the rule that the involved motion

~ was addressed to the ‘discretion of the District Judge

and a clear demonstration that his discretion was sound-

ly exercised... . Appellants had. no constitutional right

to be tried in their ‘home’ state even though the crimes -

charged were committed there as well as in the State

-of Michigan where they chose to do ‘business.” United

States v. West Coast News Co., 357 F. 2d,.855, 861 ‘

» (6 Cir. 1966). ‘. |

In United States v. Euros, 243 F. Supp. 160 (D.C.

Ia: 1965), District Judge Hanson, in denying a mo-

tion for transfer of proceedings, stated: _

- “The legislative history clearly indicates the’ in-

_ tent of Congress iri enacting the 1958 amendments

to the obscenity statutes. .. . The strength of this

| congressional feeling is indicated by. Congress’ wil-|

lingness to override the. “eae ¢ policy consider-

ations behind Rule 21(b). . : : These expressions

of congressional intent ms highly relévant both

' to the ultimate question of transfer and to the de- >

_ fendants’ claim that. the prosecution could -have

more properly. been brought in another “foreign

forum... . In the present case, however, the de-

fendants have made shipments and mailings and

the materials named in the pending indictment to

all parts of the country. Each of these numerous

shipménts and mailings could have provided the

basis for a — indictment.” (288 F. ii

at ere |

3 —22—

. See also,

. Toscano: v. Olesen, 184 F. Supp. 296' (D.C.

Calif. 1960),. opinion by. District Judge Yank-

wich.

3. This Court admonished a Roth that the door

barring federal intrusion into the areas of Speech and

press must be kept “tightly closed” and opened gnly .

.,the slightest ,crack” necessary ‘to prevent encroach-

ment upon more important interests:\The substantial

procedtiral changes made in the federal obscenity stat-

utes by the 1958 Amendments ‘permiitting multiple

venue prosecutions have, it is submitted, resulted, in’ a

_ wide opening of the door and in a substantial intrusion,

into protected expression.. The operation and effect of

the method by which*the circulation of -books, and other

writings is restrainéd by the. federal obscenity statutes

as amended should, it is submitted, be’ subjected to

“close analysis andecritical judgment” by this Court..

Speiser v. Randall, 357 U.S. 513-520.

In a series of decisions, this Court held that dif-

ferent legal procedural devices which had the effect ‘of

inhibiting freegoms of ‘speech and press could not be

upheld;- that a statute on its face. which. is clearly

capable of many abuses threatening those who exercise

their rights of free expression with the burdens of a

criminal, prosecution is invalid; and that wherg a stat-

ute in addition has a potentially inhibiting effect on

the exercise of freedoms of speech and. press, the stat-.

“ute is also constitutionally invalid because it fosters .

_ self-censorship.and the denial of access by aa ane ta

~ constitutionally protectye expression.* r

- 8Smith v. California, 361 U.S. 147; Marcus v. yee War-

- rants ip: pepe 367 U.S. 717; Quantity, of Copies of Books

. %

_ Tate

Statutes which require publishers and national dis-

: tributors of books, magazines and other media of 'ex-.

pression to ‘know at their’ peril the standards of each

_. of the’ myriad’ communities throug out the Nation with

respect to the depiction or represe tation of sex, nudity

and excretion are patently vagde, ambiguotis and over-

broad. : They tend inevitably to force publishers and’ dis-

tributors to “steer far .wider of the unlawful zone”.

‘New York Times Co. v. Sullivan, 376 U.S. 254, 279. -.

~ See also, Speiser v. Randall, 357 U.S. 513,.526: Times

is Inc. v. Hill, 385 U.S. 374, 389.

This country is a “melting pot” of diveree political,

social, economic, ethnic and religious bodies Jocated

in thousands of urban, rural ‘and. metropolitan areas..

See, Statistical Abstract of United States (1967), U.S.

Dept. of Commerce, 1-43 (88th Annual Ed.). Statutes :

which purport to incorporate the multifarious stand-.

ards of all divergent communities throughout the Na-

tion are patently incapable of objective measurement.

Under: such laws, .books, magazines and all other me-

dia of expression, face suppression. by the “moment-

.. to-moment opinions” “of a government official (Shut- -

tlesworth - v. . Birmingham, 382 U.S. 87, 90); by the

subjective determination of- individual jurors who often

label as “obscene” material which they deem ‘objection-

able (cf., Elfbrandt v, Russell, 384 U,S. 11, 16); and

. such laws act as -“a trap for the innocent” publishers

Kansas; 378 U.S. .205; Bantam Books, Inc. v. Sullivan, 372

US. 58; Freedman v. Maryland, 380 U.S. 51. See also, New

York Times Co. v. Sullivan, 376 U.S. 254; Dombrowski v. Pfister,

380° U.S. 479; Giaccio-v- Pennsylvania, 382 U.S.. 366; El brandt

. Russell, 384 US. 11; N.A.A.C.P. v. Button, 371 U.S. 415;

gett v. Bullitt, 377 US. 360,; Ashton v. Kentucky 384 USS.

198 Keyitshia d. of Regents, 385 U.S. Whitehilt v.

Elkins, yishion or Re. United States v. Robel, sey S, Ct. 419;

- Zwicker v. ~Arie eat Ct. 391,

and_ national - distributors of constitutionally protected

material (Whitehill v. Elkins, 389 U.S. 34, 60). Such

‘statutes do violence to “the larger principle - that’ the }

' freedoms of expression must be. ringed. about with a

quate bulwalks:’. Bantam Books, Inc. Up Sullivan, 3

U.S. 38, 66). ‘Since the line, ‘between speech uncondi-

tionally guarariteed and speech which may legitimately

be regulated is finely drawn, “the separation of legiti-

mate from iHegitimate speech” calls for more sensitive

‘In. view of the plain ‘intention manifested: bygythe

v Congress in the enactment af the 1958 Amendments. :¢

to. the fedgrat -obscenity statutes, it is submitted that the

_-statntes~ have been rendered uncotistitutionally vague,

: ~ ambiguous and overbroad, and constitute a palpable de- :

terrence to the exercise of freedoms of speech and press

—— by the provisions of the First Ameridment.

4, (a) The opinion of the District Court ( Appen-

. dix A). fails to answer, it ‘is ‘submitted, the crucial |

he constitutional questions _ raised ine the case herein. Re-

* lying. upon cases decided | under 18 U.S.C. §3237° up-

holding the power of Congress to regulate the mails

~ and to determine venue for purposes of federal jurisdic-

tion, the Court concluded that Congress ‘could: consti-

tutionally designate : as a contmuing offense ‘ ‘the use of

“esthe mails for trafisporting obscene material”. (Appen- |

dix A., ‘p. 15). Rel liance was placed on such..decisions

as Hyde uv. Shine, \199 U.S. 62 and. Armour Packing ae

Co. v. United States N09 U. Ss. 56.

The issue here, howeyer does not evolve a conspiracy .

to defraud’ the United ‘States by forged | affidavits, or

ls progeetition for the offense of obtaining transporta-.

\ ‘

¢ _«*

25-4"

‘tion in interstate commerce at less than. the Jawful rate,

- but involves the use of multi-venue statutes,’ to prose-

cute for the offense of mailing-or shipping books, mag-

azines and other writings ordinarily protected from.

governmental abridgment ‘by the First Amendment.

_ This Court has held that statutory procedures involv- °.

ing freedoms of speech and press must be judged by

_. standards ‘stricter than waptingenes activities out- |.

.. side of First Amehdmént “areas. Speiser v. ‘Randall, — -

357 U.S. 513; Smith v. California, 361 U.S. 147;

Marcus v. Search Warrants ‘of Property, 367 U.S. 717;

Quantity of Copies, of, Books v. Kansas, 378.U.S. 205.

The statutes, 18 U.S.C. §§1461 and 1462, as. amended,

“inevitably compel a self-censorship -by publishers and

distributors throughout the Nation which seriously cur-

tails the publication and distribution of all Sxpecssion,

~(b) The: District Court held: that the . injuries to

publishers and distributors under the federal obscenity

statutes, as amended, would be de minimis because, stat-

ed the: District Court, “we are dealing with a uniform.

and constitutionally sufficient standard of what con-

' stittites obscenity in a particular ‘ case, and while ‘the

criteria are uniform, ‘uniformity. of. result cannot be

guaranteed” (Appendix ‘A, -p. 19). Such a’ view, it is

submitted, cannot bear critical scrutiny and - analysis. -

It is of course‘possible that different juries in one par-

ticular locality may reach different -results with respect

to the same mategial, but. it is quite another thing to,

argue that a publisher or distributor of books and mag-

‘azines dealing with sex must take the risk of deciding

~. whether or not“jtries ina thousand localities through-

out the United States: will reach a decision that the

material is constitutionally protected. Such a burden is

‘ i 6 . : ’

t . s Se ti

‘ “= 26—- ——S

“an unreasonable and. impossible one for publishers and

distributors to assume. Smith v. California, 361: US. -

147, 153. The constitutional difference is no less. real,

- because, as is argued, a difference of degree only i is in-

a ers - ee

In thé second place, ‘if. a’ socalled uniform standard

"is being applied throughout the Nation,.then the reason

-for the enactment, of the’ 1958 Amendments is not ap-

_ parent. and constitutional issues|are again raised. If a

publisher or distributor with place of residence and .

business in a locality in California is to be subjected to 4.

- prosecution before juries in far removed localities ap-

plying an alleged “uniform standard’, then the only

and burden the publishers by arbitrary forum picking

as to put such persons out of business. ‘Such®a_pur-

pose and consequence are incompatible with the require-

~ ments of the First Amendment. Cf., New York Times

Co. v. Sullivan, 376 U.S. 254, 294-295; Time, Inc. v.

Hill, 385 U.S. 374, 389. ‘s

In the third place, terms such as “contemporary

community standards”, “prurient interest”, ‘social

y ;

importance” and “hard core. pornography” are conced-

i gdly terms which are intrinsically vague and ambiguous.”

See, Jacobellis v. Ohio, 378 U.S. 184, 200; Ginzburg

v. United States, 383- U.S. 463; 479-480. It is ex-

tremely doubtful that individual jurors in Grand Rapids,

Michigan, Siotx City, Iowa, Houston, Texas, Phoenix,

Arizona, or Honolulu, Hawaii, required to pass upon

‘the alleged obscenity. of a book like Tropic of Cancer, . 4

or Fanny Hill, or Sex Life of a*Cop, can overcome . —

their local, prejudices and standards and arrive at some

decision as to whether or not such writings, or sim- -

“

1 purpose of the multi-venue statutes is to so harass a

_ilar writings, conform to a national standard. As was

stated by -_ Justice Black in Ginzburg (383 US.

-at 480): . But even if some definite areas were

mentioned, thes is capable of assessing “community

standards’ on such a subject? Could one expect the .

same application of standards by jurors in Mississippi

‘as in New York City, in Vermont as in California?

So here again the guilt or innocence of a defendant

charged with obscenity must depend in the final anal-

ysis upon the personal judgment and attitudes of par-

ticular individuals and ‘the place where the trial is held.

* See also, Comment, “Multi-Venue and the Ob- -

sissy Statutes”,.115 U. of Pa. L.Rev. 399-438 {1967 );

Abrams, “Conspiracy and Multi-Venue.in Federal Crim- .

inal Prosecutions: .The Crime Committed Formula”, 9

~ Us of Calif. L.Rev. 751-818 .(1962)..

.- Moreover, it should be noted that the Government.

has always contended that it is not required to present

any evidefice of community standards. in any. obscenity _

prosecution, and that it is sufficient merely to place

the material before the jury for its determination. Un-

_ der the circumstances, it is a simple matter for a fed- —

“eral: prosecutor who has picked his forum to stand be-

fore.a jury, display the particular exhibits involved and

merely ask in summation :}“ ‘Would you want your son

or daughter to see or read this stuff? A conviction

in every instance would be: virtually. assured,” United 7

' States v. Klaw, 350 F. 2d 155, 170 (2 Cir. 1965).

CH. United States v. Davis, 353 F. 2a 614. 615.618 eee &

(2 Ci, 1965), cert, den’d. 384 U, S. 953.

5. In the First Amendment area, ‘statutes which

authorize unrestrained multi-venue prosecutions at the

_ whim of federal prosecutors can only result in abridge-

ment of the exercise of freedoms of speech and press

and the arbitrary and capricious deprivation of liber-

ties without due process of law.. Such an unlimited

delegation of powers by Congress ‘to officials in the

Executive Department “creates the danger of overbroad,

unauthorized,.and arbitrary application of criminal sanc-

tions in an area of protected freedoms” ‘(United States

v. Robel, 88 S. Ct. 419, 428). The prosecutorial dis-

cretion is left at large under the statutes without any

power in an accused publisher or distributor to review

the exercise of that discretion. The broad@Congres-

sional delegation deepens the. vice of. ambiguity and in-

_ definiteness in the statutes and renders the standards of

guilt under the law totally eneuamirensi: (88 S. Ct.

~ “at 428-433). ;

‘Moreover, the undisputed reontd here presented in

these consolidated causes amply establishes in fact: the

harsh and ‘unaseertainable results which flow from the

application of the federal obscenity statutes as amended

in 1958. In Aday, et al., the stipulated facts show

that a trial was held in Fresno in the Southern Dis--

trict of California under a 3-count -obscenity indict-

ment in which the jury either acquitted or disagreed,

and where the indictment finally was dismissed ‘on the

Government’ s own motion. Nevertheless, immediately

upon the passage . of the 1958 Amendments the De-

‘partment of Justice’ picked Grand Rapids, Michigan to —

cause an‘ indictment to be returned involving one of the

- very books in the Fresno trial which ‘the Government

had withdrawn from consideration by the jury. At or

about the same time, the Government was. picking

- Phoenix, Arizona and Honolulu, Hawaii to have other

indictments returned and each of the indictments in-

=...

—-

volving, among other - books, a single book, Sex Life

of a Cop, ultimately determined by this Court to be

constitutionally protected. In 1965, an. indictment was .

again ‘returned’ charging jolations of 18 U.S.C. §§1461

and 1462, as amended, ‘and this time, the indictment

was laid in Houston, Texas.- These various jurisdic-

tions were thousands -of. miles away from the places

of business and residence of the accused, and the trial

in Grand Rapids, Michigan placed tremendous physica!

and financial’ burdens upon the accused in order to

| properly prepare their defenses.

In. Luros, et al., an indictment was returned in Ft.

Dodge, Iowa and the trial took place in Sioux City,

Iowa, again thousands of miles away from the places

of business and residence of the accused. In the Ft.

Dodge indictment,’ sixteen defendants in all, including

California corporations, officers of the said corpora-

tions, individual employees, authors, and other person-

nel all from Caltfornia, except one defendant from/Ore-"

gon, were. subjected to a conspitacy prosecution ds well

as to charges of substantive violations of 18 U.S.C.

- §§1461 and 1462,'as amerided. An entire enterprise was

compelled to meet ‘charges at enormous distances from:

the places of business and residence and compelled to -

| transport records’ and witnésses and go through an ex-

tended trial under inordinate physical and financial

burdens.

In Reed Enterprises, et al:, the con indictnient

was returned. i in Houston, ‘Texas, over 1,500: miles

away from the. places of business and residence and

required an 8-week: trial before a jury in which all

the individual defendants and their five attorneys were —

required to be present throughout, arid at ‘the end of

"which time the jury reported itself_deadlocked.

The Department of Justice’ presented to the Dis- _ .

trict Court a “statement of policy”, but as the Dis-:

trict Court rightly concluded: “Constitutional consid-—

erations- need a more solid basis than variable policy

(Appendix A, p. 15, n. 22). Moreover, the policy state-

ment itself leaves plenty of room for the exercise of

“prosecutorial discretion”. It is stated that forum-

| picking will deperid on “where the. evidénce adduced |

presents the strongest, case for success ftil prosecution” ;

that choice will be made with ‘ ‘congressional policy be-

hind the 1958 Amendment”: in. mind; and that the —

policy of the. Department does. not preclude prosecus.

tions for the same or similar material occurring after

“the first conviction”. It is also stated that among the .

factors in deciding which: forum to be picked is “which

United States hanoeney s office has expressed the great-

" est interest in the case”. It is plain that the policy state--

ment in no ‘way removes the inherent infirmities con-

_ tained_in the statutes, and the policy statement itself |

= Is a clear recognition of the tremendous power which

Congress has vested in. federal prosecutors to engage in

arbitrary and capricious forum-picking.

a Finally, the argument that. an accused under. the

statutes may resort to Rule. 21(b) of the Fed, R. of

Crim. Proc. is patently- untenable. In the first place,

as the rulings of the lower courts reveal motions for

transfer of proceedings have) ‘constantly been denied in.

- deference to the “Congressiot al policy” of ‘measuring _

the validity of the charges by local community stand- °

ards. In the second place, Rule’ 1(b) is in the last

.. analysis based upon the exer ise of- a discretion and

Pee ee

—— er ee

TAR. wate

—31—

cannot; ‘therefore, mitigate the. intrinaic vagueness, am-

biguity and overbreadth of the statutes. :

‘Conclusion.

It is submitted that the questions presented by this

appeal are substantial and of public .importance, -re-

quiring review: by the Court. |

Respectfully submitted, °

STANLEY FLEISHMAN,

: Counsel oad Appellants.

Davip REIN,

SAM ROSENWEIN,

Of Counsel.

sk a ee Ee SRT sata POLL AT ETO IT ENT TN OC ee - _

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