Appendix — Reed Enterprises v. Clark

Supreme Court brief1968

Ask Donna

What actually matters in this document.

Text

APPENDIX A.

Opinion and. Judgment of the District Counts

” United States District Court for the District, of

Columbia.

Reed Reiter prides, et a Plaintiffs, v. Ramsey Clark,

et al., Defendants. Civil Nos. 1744-65, 2562-65, 3009-

65. Consolidated. _ . .

3 ‘OPINION

David Rein, Esquire, of epietedtic D. oa for plain-

tif fs. .

Fred M. Vinson, aes Assistant Attorney General,

5 3 Westbrook Murphy, Department of Justice, Theo-

* dore Kleinman, Department of Justice, David G.’ Bress,.

United States shai de of counsel, for the defend-

' “ants.

Before TAMM, Circuit Judge, " SIRICA, District

| Judge, and CORCORAN, District Judge. |

CORCORAN, District Judge. The above numbered -

actions were consolidated since they raise. identical con-

‘stitutional issyes for. decision by a three-judge panel

convened pursuant to 28 U.S.C. §§ 2282-2284. Senet:

In each case: the plaintiffs originally. sought the con-

‘vocation of a three-judge court to secure injunctive

and declaratory relief on grounds that a 1958 amend-

~ ment to the venue provisions ‘of. the Federal Obscenity

Statutes violated their constitutional rights.

In each instance the District Judge to whens applica-

tion for a three-judge court was made denied the ap-

plication on jurisdictional grounds. The convocation of |

this three-judge court fellowed successful appeals by

the petitioners to the Court of Appedils. | See Reed En- :

- terprises ' v. Corcoran biaine v. Sirica), 354° F.2d 59 ee,

(D.C. Cir. 1965). a

The precise issue before the Court is the Conatitie: :

tionality of the venue provision of the Federal Ob- |

_scenity Statutes’ as amended in 1958.". .

) ‘ : -

‘BACKGROUND ee: @.-

_ “Title 18 §. 1461 defines as nonmailable:

“Every obscene, lewd, lascivious, indecent, filthy

* 4. or vile article, matter, thing, device, or substance ;

”?

. *e

Prior to 1958 it further provided:

“Whoever knowingly deposits for mailing or de-—

livery, anything declared by this .section to be

nonmailable . . . shall be fined not more than ~

~ _-$5;000 or imprisoned not more than five years, or

\ zs. both.” (Emphasis added).

"In 1958 for reasons hereinafter recited® the imme-

diately foregoing language of § 1461 was amended by

deleting “deposits for mailing or delivery” and sub-

stituting the phrase: “uses the mails” so that the ‘statute

now reads in pertinent part:

“Whoever knowingly uses the mails for the mail-

ing, carriage in the mails, or delivery of anything

118 U.S.C. §§ 1461 and 1462 (1964). While §.1461 (mailing —

obscene or crime-inciting matter) is of primary oF ta will ~

be treated exclusively herein, § 1462. (importation or trarisporta-

boss of obscene matter) is alse under attack by plaintiffs How-

ever, becatise of the similarity of venue provisions any disposition

concerning -§ 1461 will of ney ‘Tyitect upon the constitu-

-~vgx, tional status of § 1462. y

- dant 2Pub. L. 85-796, 72 Stat. 962.

*Pages 11-14, —

Ob SEPARA SRI GE OTT AF PO A EE NE

sleclared by this section to be nonmailable . . .”

- (Emphasis added). | | :

'” shalf be guilty of-a violation of the statute. |

The intended effect of the 1958 amendment was to

place the venue for obscenity prosecution within the

purview of Title 18 U.S.C. § 3237 which read:

“Any offense involving the use of the mails, or

' transportation iri interstate or foreign commerce,

is a continuing offense and, except as otherwise

expressly provided by énactment of Congress, may

be inquired of and prosecuted in any district

from, through, or into which such commerce or

thus making the use of the mails for the dissemination |

of obscene matter a continuing offense from the time ie

df deposit to: the time of delivery ‘and throughout

transit. , a.

‘The plaintiffs are. distributors and publishers of ;

books and magazines whith, when. considered in the

light of ‘the obscenity statute, have ‘been characterized °

‘.as “borderline or marginal material.’

In their | original complaint for injunctive and _ de-

claratory: relief they allege substantially that through

application of the foregoing statutory provisions the

representatives of the United States intend to and will

commence and prosecute various criminal actions in

‘District Courts throughout the United States; ‘that

_ Such actions will necessarily involve plaintiffs in a-mul-

tiplicity of legal proceedings .and involve and threaten

*So characterized by plaintiffs’ counsel during hearing on mo-

tion for summary judgment.. See also stipulation of: faets filed

herein listing the several indictments and demonstrating the com-

mon theme which the material involyed seeks to portray.

— mail matter moves.” (Emphasis. added). - Ye

. thew with the Seitruction of their pores a prop- —

. Byte + that such-actions will exhaust their financial and

» physical resources and thus ‘make it impossible for’

plaintiffs to-adequately defend against the: aforesaid.

shultiple criminal ' prosecutions ; that ‘such. conduct will

tse! ~ ‘seriously. diminish the citculation of plaintiffs” books -

- and writings; and that- accordingly; plaintiffs \will, suf-

“which plaintiffs: have no‘adequate remedy at law. Fur-

~ ther the. plaintiffs contend that the 1958 amendment,

- specifically ‘incorporating a continuous offense - -doc-

trine of, venue, permits arbitrary: forum. shopping by .

Federat prosecutors arid the institution of: multiple: prose-

- cutions ‘for. identical material , in: ‘districts’. far removed:

from. the residences and Places ‘of business of. alleged

* violators! Such permissive foram shopping, it is’ claimed,

pagers

» eidldgemes and deniaf of,.the “Freedom, of the i.

“in ‘violatjon’ of the First Aniendment ; t deprives per-

“the, # ifth ‘Amendment; and, fitially it depriyes persons

"of their’ right to a fair trial in a criminal), prosecution

. guarantéed by: tee provisions of the: Sixth Amendment.”

Subsequent to" gonvening ' this spécial , court the -par-

~S ‘ties. stipulated to’ the pertinent . faets” ‘underlying | this,

dispute and a hearing: was held. at which ‘oral argu- 7

m4 i ment was présentéd on cross motions, for stimmary judg-

LN Send pressed, by the defendant. vies We? ©

wthe! plant eanbsipatially narrowed the: ‘constitutional

1965).

‘fer su stantial. sand irreparable loss and damage for

“unlawfut, “interference - with and an ae

~ 800s;. including’. these. Plaintiffs | of their liberty: and ‘ oe

nw Property: ‘withotit due process ‘of law; in violation ‘of. Eat.

ake ‘ ment ‘and an: ‘alternative’ niotioit td. dismiss. ‘for lack of my

ve We — In sup t af their motion “ ‘for ‘summary judgment en

° \ .

4 a | "SReed Enterprises: Corcorah, 354 F.2¢. 519, 520 Ce Cir. es oe

. unconstitutional on their face.-. °-

issue’ before the Court to whether’ the provisions of

18 U.S.C. §§ 1461 and 1462 as amended in 1958 are

The reason for -this’ position is clear. The plain-

tiffs can allege only a potential threat of prosecution

in multiple districts ‘and ‘a potential objective of de-

' .

' priving ‘them of their constitutional rights where no

‘such ‘activity is shown to exist now nor to have existed

in.the past since’the 1958 amendment. ,This conclusion .

is borne out by the stipulated facts which showga total

‘of seven corporations and fifteen individuals, parties ”

plaintiff; and that-since 1958 such plaintiffs have been

subjected to only four criminal trials under the Federal

“:Obscenity Statute. One case was prosecuted in the home

state of the defendant; another originated ‘in Hous-

~* ton, Texas, but was’ later remoyed: to California,® the

. domicile of the defendant ;°a third case was conducted

ee Fort Dodge, . Iowa; and the fourth case was tried

‘in Grand Rapids, Michigan in May -1960. On _ motion

‘by the ackused in the Grarid Rapids case for a change’

. of venue the District Court upheld the constitutionality

of 18 U.S.C. §§ 1461 and 1462." A verdict of guilty

and the District Court’s ruling on venue were sustained -

by the Sixth ‘Circuit Court of Appeals... ‘

prs NSE Hits, ao ee. oy re . et

*Following a deadlocked jury in the Houston tfial ‘the case

was removed to a California District pursuant to Rule 21b of

the Federal Rules of Criminal Procedure,

‘United States y. West Coast News Company, 30 F.

(D.C. W.D.Mich. 1962),

®United States»v. West Coast News Company, 357 P2d 855

‘ (6th Cir, 1966). Subsequently reversed. on other grofinds, sub’ ~ —

nom, Aday, et al. v.’United ‘States, 388 U.S" 447 (1967). On

this same day the Supreme Cgurt granted certiorari’ and sum-.

_ .marily reversed twelve other obscenity cases which were pendin

. before-it by mere reference to Redrup-v: N.Y., 386 U. S. 76

(1967). In Redrup the Supreme Court reviewed the diversity ©

This footnote is continued ‘on, the next page)

a ry

5 .

No criminal case involving these plaintiffs (or oth-

ers) has beén brought in this District in the past and

. no. case involving these plaintiffs (or others) is now

pending before this or veny other court in this Dis-

‘trict. et | mee pars

This historical record would seemingly justify a

| court in refusing-to consider a challenge to the con-. .

stitutionality of a statute as it might apply to. a hy-.

" pothetical situation. Virginian Ry. Co. v. System Fed-

eration, 300 U.S. 515 (1937); Blackmer v. Umited

, States, 284 U.S. 421, 442 (1932); Jeffrey Mfg. Co.

v. Blagg, 235 U. S. 571, 576 (1914). -

This traditional concept of justiciability, however,

d must sbe subordinated in reaching the ‘merits of the *

~ case under: the developing standards of prior restraints

upon First Amendment rights. See Speiser v. Randall,

357 U.S. 513 (1958);°Smith'v. California, 361 U.S.

}47 (1959) ;. Dombrowski v. Pfister, 380 U.S.. 479

-.(1965) ; ‘NAACP Vv. Button, 371 U.S. 415 (1963) ;

Reed Enterprises v. Co orcoran, supra:

| ss

THE CONSRITUTIONAL ASPECTS OF ‘VENUE

. It should be initially noted that the Federal: Obsceni-

+ ty Statutes with which we are here concerned are found-

ed on fhe powers of Congress to, exclude objectionable

of opinion prevailing among members of the Court, as to, what

cofstitutes unprotécted expression but found that no matter

what test was applied the material before the Court was consti-

tutionally protected. -

®This was one of the jurisdictional grounis upon which the

convening of a three-judge panel was originally denied.

, 10See references in similar context in United States v. Frew,

187 F. Supp.’ 500 at 507 @D.C. E.D. Mich., 1960) and United

States v. Wurzbach, 280 U.S. 396, 399 (1930).

IP ng ’ é

on.

and. fion-constitutionally protected material from the

mails. That Congress has the power to regulate the \

mails. is. well established, Public Clearing House v.

Coyne, 194. U.S. 497. (1904). It is likewise well. es-

tablished that obscene, lewd,. lascivious, etc. material is

‘not constitutionally protected by the First Amendment,

or any other constitutional safeguard. See Roth v.

United States, 354 U.S. 476 (1957); Jacobellis v.

Ohio, 378 U.S, i184 (1964); Ginzburg v. United States,

383 U.S. 463 (1966).

We approach. the specific — with those general

concepts in mind.

Article III, § 2, ‘Clause 3 of the Constitution reads

in pertinent part: ‘ ,

“The Trial of all Crimes, except in Cases of Im-

-peachment, shall be by Jury; and such Trial shall

_ beheld in the’ State where the said Crimes. shall

have been committed; .. .”

The Sixth. Amendment to the Constitution similarly ‘

- provides: |

“Tn all criminal prosecutions, the accused shall

enjoy the right to a ‘speedy and public trial, by

an impartial jury of the State and ‘district wherein

the crime shall have’ been committed, which dis- ,

trict shall have been previously «ascertained by

law.*; . 2” :

Neither the Constitution nor any principle “of con-

stitutional law entitles an accused to be tried in.the

place of his residence or domicile. If a crime has been

committed against the United States . the Constitution

only requires that trial be conducted in a district where

_the crime was committed. Haas v.- — 216 US.

. 462, 473-474 a

—o— -

Most’ Federal crimes irivolve. some aspect of inter-

state or foreign commerce and usually involve multiple

state or district contacts. The. Federal offense may be

committed partly in one state arid completed in another,

or it may be what is denominated a continuing offense,

such as an offense involving the unauthorized use of

the mails or otherwise transporting prohibited goods ~

“in interstate commerce.

Congress must accordingly determine where venue

will lie for purposes of Pe Be jurisdiction under any

given statute.” Silence on the part of Congress in any.

instance would only lead to chaos.

Thus in the enactment of the Elkins Act, 49 U. ¥en

§§ 41-43 (1964), ‘prohibiting: trarisportation of goods

in. interstate commerce _ at rates less than those -pre-

scribed by regulated tariffs, Congress saw fit to in-

clude a venue provision to the effect that prosecution.

could be had in any ‘district “in which such violation

was committed or through which the transportation

may lave been con conducted.” The Supreme Court. spe-

cifically upheld the concept. of the continuing offense

as a basis for determining venue (Armour v. United —

States, 209 U.S. 56: (1908).)” The Court commented

(at p. 74) that “[W]hen it [the-violation] takes place;

whether in one district or another, whether at the be-

: ginning, at the end, or in the middle of the journey,

“The problerp of laying and justifying ‘venue in stich cases

has: been severe and’ recurring.” Comment—Multi-Venue and

the Obscenity Statutes, 115 U. Pa. L. Rev. 399 (1967), citing

Abrams Conspiracy and Multi-V enue in Federal Criminal Prose-

cutions: The Crime Committed pond, 9 U.C.L.A. ‘LRev.

751 (4962).

12This case also involved the most “extreme aspects of this

concept in térms of traditional notions of fair play and substan- ,

tial justice—that of-the intervening district venue. _

. 9

at is inialty and at all times ‘committed ” (Emphasis

added).

The Court met head-on the objection of iio’ se-

rious hardship implicit in prosecutions in places dis-

tant from the home and remote from the vicinage of

the accused by characterizing it as an “objection -to°

the ‘policy of the law, not the power of Congress to

pass it. Hyde v. Shine, 199 U.S. -62, °78.” Armour

Packing Co. v. United States, Id. at 77.

But while. the Supreme Court, in line with Armour,

~ has not attacked the constitutional power of Congress.

to use ihe continuing offense concept, it has required

a showing of a clear Congressional intent prior to ap- -

plying the concept and has otherwise. limited the choice

of venué.

Thus in ‘United> States v. Johnson, 323 U.S. 278

/ 1944) the Court was called upon to construe the venue ~

provision of the Federal Denture Act, 18-U.S.C. § 1821°

(1964) - which provided for prosecution for ‘ ‘sending”

‘dentures through the mail. The Court seized upon

‘what it considered the absence of :a-clear intent and

“restricted venue to the point where the’ dentures. were

actually deposited in the mail notwithstanding the ex-

istence of ‘a general venue statute which would have

| permitted prosecution in: another jurisdiction.

The holding of the Court in United States: v. John-

- son has. been attributed .. the’ distaste felt - for the

continuing of fense concept ; . the’ Court. was strain-.

9”

ing to find ambiguity in this cides statute ..

-(115 U. Pa. L. Rev. 399. at. 418 (1967). But for all

such distaste the Court never disputed the power of

Congress to provide specifically for venue, stating, at

: page 2 pk

to prosecution Pi the distri, aye he sent the

goods, or in the disggrict df their arrival, or in

any intervening district.” (Emphasis added).

a a

Because of possible hardship which such leeway , en-

genders, leading to “appearance of abuses, if not to. ac-

tual abuses, in the selection of what. may be deemed a

- tribunal favorable to the “prosecution” the Court re-

quired: in Johnson and subsequent cases a clear Con-

gressional mandate. In Johnson Justice Frankfurter,

speaking for the Court, recognized that such venue

questions must be regarded -as more than mere pro-

cedural matters and raise deep issues of policy con- .

siderations which “touch closely the fair -administra-

tion ,of criminal justice. and public confidence in it,

on which it ‘ultimately rests.” United States v. Johnson,

supra at 276. Accord, Travis v. United States, 364

U.S. 631 (1961).

Following the Johnson decision, and ee in mind

. the. judicial restriction of clear intent there announced,

: Congress’ responded in 1948 by oN aS U. >c.

§3237 to read as quoted on page 3. _

18[J, S. v. Anderson, 328.U.S. 699. (1946). Where Congress is is .

not explicit “the locus delicti must be determined from the nature

@® the crime alleged. and the location .of thé act or acts con-

stituting it.” at 703; accord, Travis v. United States, 364 U.S.

631 (1961) But where Congressional intent is specific, mat~o

ters of possible hardship of trial away from the vicinage of the

accused “neither allows nor requires judicial changes iw the law

- venue.” Johnston v. United States, 351 Uz S. 215 _—

a bu .

The amendment was intended to remove all doubt as °

to the venue of continuing of fenses and make a special

venue provision unnecessary except in those cases where -

Congress wished to restrict the prosecution of offenses .

to a particular district. Offenses involving use of, the

mails and. transportation in interstate commerce were

clearly designated as continuing offenses.”*

Notwithstanding the 1948 amendments;: which seem- :

_ ingly resolved all ambigtiity in cases involving use of.

the mails, the Tenth Ciscuit in 1953 in the case of

United’ States v. Ross (205 F.2d 619 (1953) refused

to apply the continuing ‘venue “concept to language in

-the tien obscenity statute which proscribed the “know-

’ ing deposit for mailing or r delivery of nonmailable ma-

- terial.” : |

Ross held in effect that “deposit” was the key word

in the obscenity statute which precluded the application

_, of the continuing offense doctrine.

The practical result of Ross was that prosecution - .

Kederal obscenity cases was thereafter largely confined

to the: major publishing centers of Los Angeles and

- New York. The character of material shipped country-

wide was being determined in those -allegedly liberal

jurisdictions with attendant difficulties to successful

prosecution. Comment, Venue: Impact on . Obscenity,

11 So. L.Rev. 363 (1966) relying upon Lockhart and

~ McClure, Censorship of Obscenity: The Development

of Constitutional Stdndards,-45 Minn. L.Rev., 5, 36

(1960) ; see also Senate Report No. 1839, 85th ‘Cong,, |

3 (1958).*®

4See: notes following 18 U.S.C. ‘§ 3237 ( 1964), citing 80th *

Congress House Renort No. 304. ~

These problems were presented: to the Congress : dusting

Hearings on Mailing of Obscene Matter befote Subcomnifittee

_ (This footnote is continued on the next page)

a. 7 eis:

The Ross roadblock to successful prosecution of ob-

“scenity cases led Congress to.enact the 1958 amend-

ments to the Obscenity Statute. The legislative history

of those amendments leaves no doubt that what Con-

“gress was trying to do was to supply the specificity: of

intent required by the “ ohnson case and to avoid the _

. impact of the Ross case.’

The House of Rencesentatives initially passed a bill

which | provided for continuing offense language ree °

quested by the Post Office Départritent (House Re-

port No. 2624). The Senate Bill limited prosecution to

the place of deposit and place of receipt.’’ (Senate

Report No. 1839: 85th Cong., 2d Sess. 3 (1958)).

The disagreement was resolved in Conférence where

the House version was adopted. : .

The Conference ‘Report contained the visite tan sum-

mary: .

“It is the’ piniicin of the Post Office Depart-

ment 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

No. 1 of the House Committee on the Judiciary, 85th Cong.,

2d Sess. 8 (1958) in the following terms:

“Difficulties in prosecuting violators resulting from liberal

attitudes of courts and juries—particularly in certain met-

ropolitan areas, notably Los Angeles and New York—have

established virtual. sanctuaries allowing dealers in ‘publica-

tions devoted exclusively to distorted sex to operate in de-

fiance of the Post Office Department’s best effort to. bar

their use of the mails or bring them to justice.”

-16See summary of legislative history in United States v. West

Coast News Co., 30 F.R.D. 13 at 18-19 (1962). Seay

“The Senate originally took what it considered the “niddle

view” betwéen Ross and the House passed bill.on the ground

* that it considered that unrestricte *“forum shopping” could lead

to abuses and is therefore againgty spublic policy. But even the

Senate recognized the need for éxpansion of venue. and -was ini-

tially willing to authorize limited “forum shopping.”

delivery. The House concurred in the position of. .

the Post Office Department. However, it appears

that the Senate amendment: of the venue -provi- _

‘sion would destroy the nature of the continuing *

offense. Furthermore, the striking out of the: pro-.

‘ vision for the prosecution of the offense in the

jurisdiction through which the obscene matter

passes is contrary to the-intent of Congress as ex-

pressed by the law in section 3237 of title 18,

United States Code.” (Emphasis in original).

Statement of the Managers on the part of the

House accompanying: H.R. 6239 (House Report

- No. 2624 at page 3, 85th Cong., 2d Sek. (1958) ).

More pointedly, it was said in debate:

“The interpretation given by the courts has, to all

“intents and purposes, nullified previous congres-

sional action. They have said a promoter ‘can be

prosecuted only where he puts the material: into’

the mail. As a result the community, most af-

. fected by the crime, that is, the one where the |

stuff is circulated, has no opportunity whatsoever.

to protett itself. ao

“The bill before us, is intended to overcome the

“© effect of judicial interpretation andwthereby to in--

crease maerially the effectiveness of the present

statute. Tis purpose is to make it abundantly clear

that violators can be prosecuted either at the place

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

or in any judicial district through which the ob-

jectionable matter is carried in the mails.

? x Ok Ok OR OK:

~ ry: > . ° a

18Congressional Record, Vol. 104, No. 78, pp. 8043-8046,

May 19, 1958. ce <

~ —14—

“There is nothing for anyone to fear in the en-

‘actment of this legislation except those who seek

profit from pornography and immorality. Merely

to permit the moral, God-fearing members of the

community to pass judgment upon purveyors of

filth who would destroy the homes of a communi-

ty and the morals of the juveniles who reside there-

in, should strike fear in‘ ho one’s heart other than

those who fear justice and the loss: of degrading’

profit in human misery.” . =~:

_ From the foregoing it can readily be seen“that the

concept: of continuing offense is not an innovation;

rather it is an aged. concept. which has been. upheld by

the Supreme Court in several cases. .It is undisputed |

that the Congress, having the power to control the use

> of the mails,-has unequivocally manifested ,its intent

that obscene material be excluded from the mail and

ather agencies. of interstate commerce. And, while the

Supreme Court has noted issues of public policy, .pos-

sible hardship and burden” ‘in considering questions

of venue, it has never questioned the power of Con-

- gress to designate proscribed offenses as continuing of-

fenses by regulation of the use of agencies of -inter-

- state commerce.” — | :

19°The: plaintiffs’ allegations of hardship’ must alsa be’ con-

sidered in light of the availability of an effective remedy. in

Rule 21b of the Federal Rules of Criminal Procedure. This rule ~

‘ was designed specifically for the purpose of alleviating unneces-

sary hardship and provides for a change of venue When.in the

discretion of the judge such ‘a change would be in tlte interests of.

. justice. -

' As stated by Mr> “Tustice. Douglas speaking for the major-

ity in Travis v. United States: “The use of agencies of inter-

. state commerce enables“Congress to place venue in any district .

where the particulaf*“agency was used” 364 U.S. 631 at 634

(1961). ae ors

a ap

—,

—

“While these concepts of venue as i developed. have

been criticized; even critics have conceded _ that “the V

continuing offense concept has become securely en-

grained inthe administration of federal criminal law

,and the | con&titutionality of the ‘concept itself, as op-

, Posed to its application in a particular area of crim--

. ”

inal law, would appear to be no longer open to attack.

115 U.Pa. L.Rev. 39% at 423 (relying in substantial

"__ part on Abrams, Conspiraty and Multi-Venue in-Fed-

eral Griminal-Prosecutions: Fhe Crime Committed For-

mula, 9 U.C.L.A. L.Rev. 751 at 816).

On the basis of the foregoing this Court must cons -

clude (as has .every. court which has had occasion to:

consider the questiori similarly ‘concluded)™ that the

use of the mails for transporting obscene material clear-

ly constitutes. an activity which Congress may con-_

_ Stitutionally designate “a continuing offense and that |

such designation does not violate the Sixth Amendment

venue provision of the Constitution.”

- ae :

ies maar

_ PRIOR:RESTRAINT AND DUE PROCESS.

’ _. We consider now the plaintiffs’ contentions that: the —

nue provisions constitute a “prior agora 2 fipon .

freedom of expression in violation 6f the First Winend- _

” =:

*1United States v. West Coast News. Co., supra, reversed on .

other grounds, 388 U.S. 447 (1967) ; U.S. v. Luros, 243 F. Supp.

160, 167-168; U.S. v. Frew, 187 F. Supp. 500 (E.D. Mich,

960) ; Toscano %. Olesen, 184 F. Supp. 296 (S.D. Calif. 1960).

See.also U.S. v. Sorce, 308 F.2d 299 (4th Cir. 1962). where the

court sustained a similar venue provision of the Mail Fraud —

statute (18 U.S.C. 1341).

~". The Court ‘finds no necessity to bolster this conclusion by

reference to affidavits, submitted by the Government, that it is

‘ the stated policy of the incumbent Attorney General not to in-

voke m transitu jurisdiction, Constitutidnal considerations need

a more solid basis than variable policy.

. ~ , yy

_e ry 2 ~lo—. . m3 E

ment as well as violating the due process requirements

“of. the’ Fifth Amendment, The substance of the plains.

tiffs’. claim is‘that the existence and potential use of

a the power to select venue in criminal obscenity prose- *

ycutions has an in terrorem effect which | may infimi- _

date people from exercising First Amendment ‘rights,

thus depriving the public ofsaccess to protected pub-

lications. More. particularly the plaintiffs argue that it

is difficult at best to defend in the -field of obscenity

+ where the standards and concepts are vague, but when

additionally a publisher or distributor of publications

_ is required to meet not only the economic challenge of

defense away from home, but as well the. uncertainty

that. is implicit. when ‘juries in varying: jurisdictions

are required to define-what is obscéne, the combination:

of burdens “ind vagueness necessarily results in ‘an un--

‘constitutional restraint upon. the activities of the .pub-

, lishers_ or distributors. This, combination of factors, * it

is urged, could well induce: a person to engatre in self-

censorship and. thus restrict the public’ S"access to. pro-

__tected publications. ; iat

The strict standards. by which statutes affecting

First Amendment. rights must be measured have been -

set forth in numerous cases decided by the, Supreme

Court within the last ‘ten years, many of which are

relied upon by the plaintiffs to sustain their position.”

An? it is apparent ‘from, some of those cases that the

Supreme Court, when tonfronted with statutes iy il

.. 8S peiser v. Randall, 387 U: S, 513 (1958) ; Sinith v. California, By

361 U.S. 147° (1959) ; Marcus v. Search Warrant, 367 U.S.

717 (1961); Bantam Books, Inc., v. Sullivan, 372 U.S. ‘58

(1963), Quantity of Books: v. ‘Kansas, 378 U.S. 205 (1964) ;

New York Times v. Sullivan, 376 U.S. 254. (1964) ; Freedman

v. Maryland, 380 U.S. 51 (1965) ; Dombrowski v.. Pfister, 380

—_ 79 (1965).

dating. expression and inte possible imponderables ~

‘ that may inhibit the full exercise of First Amendment - .

a freedoms, has relaxed some of. the procedural prerequi-

. sites to the assumption ‘of jurisdiction. Smith v.-Cali-

fornia, 361 U.S. 147 (1959). ‘Under certain limited —

conditions. the mere threat of criminal prosecutiofi or

__-other sanctions by the Government without necessary _ |

safeguards for’ exercise of a First: Amendment : free-

dom has been sufficient. to justify court intervention s

| especially when the statute. has presented a potential

“chilling” effect” on protected expression. NAACP vy.

_. Button, 371 U.S. 415 (1963) ; Dombrowski v. Pfister, .

380 U.S. 479. (1965),. Bantam Books, Iné. v. Sullivan,

372 U.S. 58 (1963). Sée also Read v. Corcoran, supra.

; However, rights guaranteed by the. First Amendment |

-‘diké all individual rights, are not absolute and all leg-

_ islative enactments which touch upon Fi irst Amendment -

_. rights or ‘have some ancillary efféct’ upon, free expres-

sion need not be and have -not: been . declated uncon-

’ stitutionally void. This js especially true? as. the Su-

preme Court noted in Speiser v. Randall, where there

is “no attempt directly to control speech but rather to

protect,’ from an evil shown to be grave, some interest

‘clearly within the sphere of governmental concern.” 357

U.S. at 527.: See also United , States v. Harriss, 347.

-U.S. 612 ( 1954). This principle was relied upon in

Roth v. United States, 354 US. 476 at’ 484 (1957),

when the Court stated:

“All ideas having even the slightest redeening SO-.

cial importance—unorthodox ideas, ‘controversial

‘ideas, even ideas hateful to the prevailing climate:

of opinion—have the full protection..of the guar-

anties,. unless’ excludable because they encroach

. upon the lumited area of more important interests.”

(Emphasis added). ;

This. Court, of course, must closely and carefillly

* scrutinize procedural safeguards especially: “[W ]hen

_we deal with the complex. of strands in, the web of

freedoms which make up free speech.” (S peiser v. Ran-

dall, 357 U.S. 543, 520-526 (1958)). It is fully cog- .

nizant of the fact that it. is dealing with a limited and

: uncertain area of permissible Government activity and

- that the Government “is not free to adopt whatever,

- procedures it pleases for dealing with obscenity .

_-without’ regard to the possible consequences for con- —

" stitutionally protected speech.” Marcus v.: Search War-

rant, 3620.5. 717-731 (1961).

‘However, while ‘many of the cases cited by plain-

- tiffs provide some guidance in the _ appligation of: a

7 constitutional standard, of. themselves they are not con-

’ trolling in the disposition of the present case. ce i

In thé first place we are not confronted. here with

any direct ‘ ‘prior restraint” upon free speech or any

procedure. restraining - - dissemination of materials prior

to a judicial determination of their constitutional status.

- The application of the venue statute obviously oc-—

‘curs only after dissemination. And as to. the indirect

-threat, of prosecution which iis implicit in any criminal

statute, it, of course, is 4 purely subjective matter—

at one man would consider a threat may not be a-

threat to another. Certainly there i is no basis for a con- -

clusion that the threat of criminal prosecution, is ma-

terially increased merely ‘because the prosecution may

be brought i in one of several districts. 7

- Accordingly we cannot conclude that the “threat” |

of -.prosecution of: any defendant is any greater since

passage of the 1958 amendment-than that “threat”

may have been before enactment. It can only be hypoth-

ee ee

woe otarv sell

(Roth, supra, at 492).

| ~ 19

x s°

esized. that the chances of successful prosecution at -

_the trial level, may be somewhat more favorable to the -

Government if it has’ a choice of venue. But in that

connection it must be noted that we are dealing’ with a

uniform and constitutionally sufficient standard of

what constitutes obscenity in a particular case, and

while the critéria are uniform, uniformity of result

-catingt be guaranteed. (Roth v. United States, 354

U.S. 476 (1957)). ~ -_

_Prior to the enactment of. the multi-ventie provisions

the Supreme Court upheld the constitutionality of the

Federal Obscenity Statute in Roth, supra, (Albert v.

Californta). In Roth the jissue - was specifically whetb-

er the Federal obscenity statute violated the First, F ifth,

‘ Ninth and Tenth Amendments. The Coutt held that -

Obscenity: i is not within a constitutionally protected area.

Accordingly the Federal statutes when applied “accord-

ing to the Proper standard for ’ judging obscenity do

not offend ‘constitutional safeguards against convic-.

“tions based upon protected material, or fail. to give

men in acting adequate notice of - what is prohibited. at

In, Roth: and in’ subsequent decisions dealing with |

attempts to define arid establish ' obscenity standards™

the Supreme Court has recognized . that ‘inevitably, all

criminal statutes have some deterrent effect, and crim-

inal statutes regulating constitutionally unprotected ex-

pression are no exception. The “ ‘Constitution does ‘not

> es

; “Mr.* Chief * Justice Warren described * the inehlines of what _

constitutes ‘obscenity as “increasingly muddled and difficult. for

the federal and ‘state courts and legtlators to. understand ‘since

_ we first defined the reach of the First Amendment in this area

in Roth v. United States, 354 U.S. 476 (1957)” Jacobs v. New

‘York, 388 U.S. 431 at 434 (1967). —_—v <peven).

of id * 2 : ° .

_ require impossible standards’; all that is required is

that the [statutory] language‘ conveys sufficiently def-

- inte warning as to the proscribed conduct when, meas- »

.ured by common understanding | and practices...

“* * * ““That there may be’ marginal cases in which it

is difficult to determine ‘the side of the line on which

a particular fact situation falls is no sufficient reason

‘to hold_the language. too ambiguous ‘to define a crim- |

3% °° _ inal offense . . .’” Roth, supra, at 491-492, quoting _

from United States v. Petrillo, 332 U.S. 1, 7. The :

Roth opinion further notes that: , |

2 ‘“

. [I]t is common experience that different ju-

. ries. may reach different results under any crim-

inal statute. That is one of the consequences we.

-accept under our jury system.’ (At 492 note 30). -

It was the concern of the Supreme ‘Court for pro- —

tecting the fundamental freedoms of speech and press

and. the possibility of encroachment that led it to find

that it was “vital that the standards. for judging ob--—--—

| scenity safe safeguard ..-:-material which does not treat ~

| “sex j jn-a manner senehiien to ‘prurient interest.” Roth,

Id. at 488. Correspondingly the Court noted that “TI]m- -

, plicit in the history of the First Amendment is the

rejection ef obscenity. as utterly witliout redeeming so-

— cial im nce. This rejection for that reason is mir-

_. rored in the universal judgment that that obscenity should *

be restrained, Id. at 484-485. (E (Emphasis added).

In light of the undisputed and unavoidable ancillary

effect which any. criminal statute has upon proscribed

- conduct or expression this Court agrees. with the Gov-

-.erriment’s characterization that the appropriate ‘ques-

tion is not whether 18 U.S.C, .§§ 1461.and 1462, as

amended, induce self-censorship but rather whether the -

: 1958 venue amendment ae ag the existing pres- |

sures toward self-censorship to a constitutionally un-

acceptable degree. F.#s

Considering the Supreme Court’ + ruling 3 in Roth that -

the obscenity standards. are constitutionally sufficient .

to protect 2 person and place him on notice that a —

crime is being committed: and recognizing that such

standards are uniformly applied ;- and believing that if. -

a. publisher is going to feel restrained, it will be out

of fear of any prosecution rather than fear of prose-

cution in other than his home district, this Court ‘must:

conclude that the venue amendments are constitutional

on their face.

Any increase in apprehension which may accrue on

a purely subjective basis ‘by reason of the injection of

a multi-venue provision is at most ancillary and de

minimus. Such apprehension’ is only a concamitant

of any-criminal law and is susceptible to’ being raised

Tegardless of the existence of multiple’ venue provisions. —

As one court, which has also sustained ‘this same

venue provision noted: |

* “One who chooses’ to carry on an n enterprise which

might indeéd_ offend- criminal- stattites - enforceable ~

in- places: in which he proposes to carry on ‘his

enterprise, must take the hazards’ involved. US.

v. Wurzbach, 280 U.S. 396, 399... It is not the

duty of the ‘court in enforcing -the law or of |

Congress in enacting statutes to advise i in advance

. the-likély reaction ‘of juries in each community . in

: which an individual chooses to carry on his ac-

" tivities.” U.S. v. Frew, 187 F. Supp, 500, .507

(E.D. Mich., 1960) ; ‘also quoted in U.S. v. West

Coast News — 30 ne D. 13 at 21 (1962).

—

: : wie SS

a * The plaintiffs rely heavily upon: Jacobellis v. Ohio, /

378 U.S. 184 (1964) to discredit the multiple venue pro-

. vision. The gist of ‘their argument is that when Con-

gress enacted . the 1958 venue amendments it did ‘SO aa

_ with the specific intent of causing obscenity: to be liti-

gated in the. communities where the ‘impact of ‘the al-

leged obscenity was felt—that_is; according to the local

community standard—but that Jacobellis creates ’a_na-

tional standard-so that legislation enacted with a view

: _tocapplying a local standard is of nécessity unconstitu-

a i But this conclusion is .not “warranted under the,

( present state of the law.* The.question of national ver-

‘sus community or. other standards has not yet been

determined,” and particularly as concerns venue. the

Supreme. Court itself has noted that the 1958 amend-

ments have no effect on, determining the community

standards to. be apply [sic.] in obscenity cases. .Manual

Enterprises v. Day, 370 U.S. at 488 (n. 10). According-

ly it would seem that the plaintiffs. have placed undue a

reliance on the Jacobellis decision, and certainly they

._ have not demonstrated the unconstitutional purposes of

~ the 1958 sags through their interpretation of

that case. The Court accordingly rejects this conten-

tion.” .-

% ‘

*5While the court has’ on occasion madé reference to a na-

tional contemporary community ‘standard as opposed. to a local

contemporary community standard, a majority of the court has

never agreed with this proposition. See Manual: Enterprises ~.

Day, 370 U.S. 478 (1962) ; Jacobellis v. Ohio, supra.

26See petition. for certiorari filed 6/28/67 -in Case No. 430,

K. I, Distributors v. New York (36°LW 3102) where the ques-

tion of contemporary community standards is specifically raised.

. *'The argument advanced by plaintiffs is but another chal-

lenge to the vagueness in the existing manner of determining. ©

when material falls outside of protected expression. This we have

already considered and rejected as grourids for attack upon this

statute.

. .

ene

<< Tt not being hecessary to this decision, this Court

. Will not. embroil itself ina discussion of the variable .

ds opposed. to the constant concept of- obscenity as -

‘most recently enunciated in Ginzburg v..United S$ tates,

| 383 U.S. 463 (1966). See also,*Lockhart.& McClure.

Censorship of Obscenity: The Developing Constitue +

tional Standards, 45 Minn. L.Rev. 5 (1960). 2:

_ .The motion of the defendants for summary. judgment

is granted. The plaintiffs’ motion for suinmary judg-

ment and the defendants’ motion to dismiss.are denied. -

_ * Jt is so ordered. a ee : Se

| - /s/ EDWARD A: TAMM °

Edward A. Tamm |

United States Circuit Judge

/s/ JOHN J. SIRICA

_ *. John J. Sirica cae

. United States District Judge

__. /s/ HOWARD. F. CORCORAN *

- Howard F. Corcoran | :

United ‘States District Judge . @

~" Dateds October 26, 1967, Se Pg

—_

APPENDIX BL

‘ye

Opinion of the Court of Appeals on ) Mandamus.

- United States Court of Appeals, for the District -of

Columbia Circuit: . Ps

+ Reed Enterprises, et al., Petitipners v. ‘The esa

_ able Howard: F, Corcoran, Judge of the United ‘States

District Court. for the District of Columbia, Respond-

_ ent. No. 19,677.

aoe -Milton- Luros, et al., Petitioners v- - The Honorable

.< John J. Sirica,, Judge of the. United States District. .

~ * Court for the. , District of Coane, Respondent. No.

19,722.

“On Petitions for Writs of Mandamus. .

Decided December 2, 1965. © - e

-"MrDavid Rein for petitioners. -

‘Mr. Frank .Q.:-Nebeker, Assistant United States At-

: torney, with whom Messrs. John C. Conliff, &: United ~

States Attorney atcthe time. of argument;.and Jerome

Nelson, Assistant United States Ananeiy, were.on the

‘pleadings, for respondefts. , 6

Before Fahy, Wright a d: Leventhal, Circuit judges.

. Wright, Circuit Judge: Tkthese mandamus proceed-_

ings,’ petitioners request issuance of writs requiring

that respondents take. the necessary steps to ‘have con-

vened three-judge District. Courts - under 28 U.S.C.

§ 2284. They assert tha® in spite of the allegations,

in the complaints filed below, of the unconstigutionality

of 18 U.S.C. §§ 1461 and 1462 as amended in 1958,

Pub.L. 85-796, §§1-2, 72 Stat. 962, and irreparable .

‘. damage which would result from enforcement of thgse .

————

128 U.S.C. § 1651.

ee ee . . . pe at

statutes as. to them reagoddients have retusa to. comply

with the procedures. required by” 28 U.S:C. § 2284 to

_have. three-judge’ District Courts consider ‘the applica- 3

“tions for injunction against the Attorney General of

the United States and his nominees. 7

‘In their complaints filed * in- the District bine pe- -

titioners allege that they-are distributors and. publishers -

of books: and magazines, and that the representatives

of the United States “intend to and will commence and _

- . prosecute various criminal actions in the District Courts 4

-.> “throughout the United States: purportedly authorized :

under Title 18, United States Code, “Sections 1461 and

1462). as amended. Such actions by defendants, will ..

necessarily involve plaintiffs, in a, multiplicity of- legal

proceedings; involve and threaten thein with. the de-

struction of their good-will and property; and exhaust '

their. financial and physical resources and thus make it

impossible for plaintiffs to’ adequately defend against.

the, aforesaid multiple criminal prosecutions. Such-Gon- .

duct will seriously diminish the circulation of plaintiffs’

~ books and writings, and. plaintiffs will suffer substan-

tial and irreparable loss and. damage for which plain—~

X tif fs have no adequate remedy at law.”

The particular, part of the statutes on which the pe- . °

. titioners rely. for the issuance of an injunction against

- their enforcement “purport[s] to permit the: prosecu-—

tion of alleged violators at either the- place of mailing

or at the place of delivery or at any other place through

which material passes, thus allegedly authorizing ar-

bitrary forum-picking by federal prosecutors and the .

institution of ‘multiple prosecutions for identical ma-

terial in districts far removed from the residences and

seed “ business a alleged violators.” This ‘Statutory

by |

permission for Yiewinssplettng: iccording to petitioners,

itutes an unlawful interference with and abridge-'

‘ment- atid denial of the freedem of the press, in viola-

_ tion of the First Amendment; deprives persons, includ-

ing these plaintiffs, of their liberty and property with- -

+ out due process of law, jn violation of the Fifth Amend-

“aw

ment; and depriv persons of their rights to a fair

- trial in a criminal prosecution guaranteed by the pro-

visions of the*Sixth Amendment.”

18 BRC. -§§ 1461 and 1462 iprokibit. dis ‘tailing,

importation and transportation. “of obscene mattere Be-

- fore the 1958 amendment, §' 1461 was upheld against

constitutional attack based on First; Fifth, Ninth and

Tenth Amendment grounds. Roth v. United States,

354 U.S. 476 (1957). Venue for. the prosecution in

Roth was the place where the material wag .mailed, the

prior case of United States v. Ross, 10 Cir., 205 F.2d

. 619 (1953), having held, in spite of” the “continfling

Offense” language in 18 U.S.C. § .3237, that venue —

under these statutes was Proper only at the place -of

md¢iling. ™: °

It -was -to- reverse the becca limitation on

venue under the obscenity statutes that Congress passed

the 1958 amendment. ’ In passirlk this amendment, the

Congress rejected a Senate proposal wich would have ©

limited the extension of venue uftder 1461 and 1462

to the place of delivery. The final forrg ofthe bill con-

‘tained the broader language proposed’ by the House :

| “Whoever knowingly uses the mails * * §%” Thus, as

amended, venue under these statutes is, proper, not only

at the place of mailing and delivery, but in any district

See 1958 U. S. Code Cong. & Ad. News 4017. It is the

through which the. allegedly obscene matter. travels. -

a constitutionality of the: amendment ’ which is under at-

tack i in these proceedings.

The. Government seeks dismissal dé ttaens “applica~

tions for writs of maridamus on grounds that. a Jong

line ‘of Supretne Court cases has affirmed the .constitu-

: tionality of “continuing offense” venue provisions in

criminal statutes; that ‘the constitutionality “of the’

+1958 amendment ‘é the Obscenity statutes can be tested

in the criminal proceedings which ‘have already been

‘brought i in the districts ‘af delivery of the allegedly ob- .

- scene matter; and that the allegations of harassment —

. by: multiple prosecutions | in, venues —— under the .-

1958 amendment are intrue.

The problem presented as to Wetiee the convening

of three-judge District Courts is. *fequired in. these

cases divides, itself into three parts: (1) the presence:

or absence of a substantial constitutional question; (2)

the necessity~ for injunctive. relief; and.(3) the pres-

_ence or absence of a case or controversy. We shall con-' ‘e

sider these tesues seriatim. a

I my

Stace Roth has settled the constitutionality of the

obscenity. statutes prior to the 1958 amendment, we

need only. -cqnsider the effect of that amendment. ‘Pe-

- titidners allege, with substantial support from gre Su-:

preme Court, that prosecutions involving’ possible col-..-

lision with First Amendment rights are not subject to-.

the routine . -consideratiofi. given prosecttions under

Citing Armout Packing Co. v. United States, 209 U.S. 56,

73-77 (1908) (transportation,of\goods at illegal freight rates) ; alg

United States v. Johnson, 323 US. 273, 274-276 (1944) using. °

mails for wrongful serfding of- -dentures) ; United ‘States v ores,

356 U.S. 405, 408.(1958) (alien cfewman remaining in ‘United

States beyond 1 time permitted by conditional landing — .

o7" sl

—28—

ordinary criminal statutes:* “[T]he line between speech ._

unconditionally guaranteed and speech which may legiti-

mately be regulated, suppressed, or punished is finely

drawn. * * * The separation of legitimate from il- .

legitimate speech calls for more sensitive tools * * *”

Speiser v. Randall, 357 U.S. 513, 525, (1958). More-

‘> Over, it is not clear that the standard to be applied to .

material challenged as obscene is a natignal one or one

that may vary from district to district.* In this con-

text, the question as to whether the prosecution may

constitutionally be allowed a multiple choice of forum,

acquires added importance. ‘

There can be no doubt that the purpose of, the 1958

amendment was to provide the’ prosecution a multiple

venue choice to facilitate successful prosecution. The

General Counsel of the Post Office Department, which

sporisored the amendment, advised the Cong'ress thar

_ the need for reversing ‘the Ross decision which limited

venue under §§ 1461 and 1462 to the district of mail-.

ing arose from “the fact that it is sometimes difficult

to obtain a conviction for the mailing of obscene mat- .

ter in certain jurisdictions. In the Ross case, above, the

defendant had mailed nian of a females in oné

\ . 8In Smith v. California, 361 U. S. 147 (1939), the Stipreme

Court reversed a conviction of a bookseller under a Los Angeles

ordinance which did not contain the element- of scienter. In*so

doing the Court stated: _.’

“# * *. Our. decisions furnish examples of legal devices

and doctrines, in most applications consistent with the Con-

stitution, which cannot be -applied in settings where. they

have the collateral effect of inhibiting the freedom of ex-

_pression, by making the individual the more reluctant to

exercise it. * * *” Jd. at 150-151. -

‘See the various opinions in eaaeued v. Ohio, 378 U. Si 184 :

* (1964): . : 1

fm,

‘ . - a

‘State for delivery in another State. In the judicial dis- -

_ trict. where the pictares. were mailed, the court held .

that. the pictures were not obscene *,* *” Letter. to

Chairman of House Judiciary Committee, 1958 U. S.

Code Cong. & Ad. News 4014-4015.

While obscenity is without constitutipnal protection,

“[a]ll ideas having even the slightest redeeming social

importance” come within the First Amendment guaran-

ty. ‘Roth v. United States, supra, 354 U.S. at 484. The

question in each case as to whether a particular pub- |

lication’ is obscene is a mixed one of law and fact.

‘The Supreme Court in Roth: held that it was a ques-.

tion which should be: submitted to the jury to be deter-

mined under proper instructions. 354 U.S. at 489-490.

Under the circumstances, again thé importance of: venue

is obvious. Where the prosecutiori is brought may very

well determine, whether the books arid magazines are

obscene or constitutionally protected. |

_ - While we do not, of course,-intimate any opinion as

to the constitutionality of the 1958 amendment, an

attack on a statute which would permit the prosecution. |

a multiple choice of venue in this protected area of

First Amendment freedoms ‘jg not patently frivolous.

Such choice could induce the publisher to engage in self- _

censorship and thus restrict the public’s access to pro- .

tected publications. “Even. the prospect of ultimate fail-

ure of such prosecutions by no mean’ dispels their chill-

ing effect on protected expression.” Dombrowski v.

Pfister, 380 U.S. 479, 494 (1965).

We find that the complaints filed -in the District: .

_ Court raise a substantial question as to the constitu-

tionalty of the 1958 amenttment,

IT un

The traditional basis. for injunctive relief is, sof

course, irreparable harm and inadequacy of legal reme-

dies. Beacon Theatres v. Westover, 359 U.S. 500, 506-

507 (1959). Ordinarily, in injunction proceedings seek- |

ing to restrain enforcement of an allegedly uncon- .

stitutional statute, once a substaritial question: of con-

| stitutionality is raised and the complaint “at least for-

mally alleges a basis for equitable relief,” a three-judge °

court is required. Idlewild Liquor Corp. v. Epstein,

370 U.S. 713, 715 (1962). Here the. allegations in the -

complaints unquestionably outline a. basis for equitable

relief. For the purpose of determining whether three-

judge courts are required, these -allegations, ‘unless: ob-

viously colorable, must be’ taken as true, and the an--

swers of the Government addressed to three-judge

courts. [bid. See also Schneider v. Rusk, 372 U.S. 224

(1963). Compare Pierre wv. Jordan, 9 Cir., 333 F.2d

951, 956957 (1964), cert denied, 379 US. 974

(1965).°

PetitiGhers allege that the ies ‘of ato pro-

- ceedings which the Government intends to- bring will

destroy their businesses, exhaust their financial re-

* sources, and make it*impossible to defend themselves. |

In argument and brief they point to the fact that they

- are already under indictment far from their homes and

_ businesses, and tite other cases where a single‘ pub-

lisher has been an under the same statutes in sev- -

eral different places.® If these: allegations can be sup- |

~* ported by evidence, irreparable damage appears patent.

5See Note, The Three-Judge District C ourt: “Scope and Pro- :

cedure Under Section 2281, 77 Harv. L. Rev. 299, 309 (1963).

6Petitioners’ brief, at page 7, reads: .

+“ * * Thus, a Fresno publisher, who was vindicated in

a ew, on an indictment in Fresno, the place of mail-

—

The Government’s’ suggestion that petitioners have

an adequate remedy at law in the criminal proceedings

now pending -against them, while perhaps appropriate

in cases. outside the First Amendment area .where ‘a

single prosecution is contemplated, is unavailing here.

The Government has ‘not even denied that it contem,.

plates tmultiple prosecutions. In affidavits supporting

its answer filed in the District Court in Opposition to

the applications for preliminary injunction, it is ‘merely

stated: “The Department of Justice has not taken any ©

action with respect to plaintiffs which is intended to

harass the plaintiffs- or to abridge any freedoms to —

which they are entitled.” Moreover, under some cir-

_ cumstances even a single “criminal prosecution under a

statute regulating expression usually involves impon-

derables and contingencies that themselves may inhibit

» the full exercise of -First Amendment freedoms. * sal

_ The assumption that defense of a criminal_prosecttion

-will generally assure-ample vindication of constitutional

~—rights is unfounded in such cases.” Dombrowski .v.

Pfister, supra, 380:,U.S. at 486. Compare Terrace v!

Thompson, 263 U.S. 197, 216 (1923).

| ae | Cs

The Government’s argument that the applications for .

three-judge courts were properly denied because the liti-

gatiorf in the District Court did not present a case or

controyersy. within the meaning of. Article 3 of the

ing (U.S. v. Aday Fresno, No.. 34-45 N.D. Crim 1958)

_ was, after the amendment to 38 [sic] U.S.C. §1461, indicted

in Arizona (U.S. v. Aday, No. C-15596, Phoenix), Grand

Rapids, Michigan. (U.S. v. Aday, Cr. No. 6615, Western

District of Michigan, Southern Division), Honoluhy Us a

v. Aday, Cr. No. 11510, District of Hawaii), and Houston,

Texas (U.S. v. Aday, Southern District of Texas, Houston

Division, Criminal Noa. 65-H 80). * * ** | es

De ..

Constitution is predicated primarily on our opinion in.

Lion Manufacturing Corporation v. Kennedy, 117°

U.S.App.D.C. 367, 330 F.2d 833 (1964). There, in:

~ an action to enjoin enforcement of the Slot Machine

Act of 1951 as amended by the Gambling Devices Act -:

of 1962, 15 U.S.C. §§ 1171-1178, we held .that an

application for a three-jiidge cqurt. was _properly de-

nied, the District Court being” without jurisdiction since.

the complaint stdted no case or controversy. In Lion,

“[ijt is nowhere alleged, that the -Attorney General, or _—-

anyone acting for him, has taken steps to initiate cri |

inal. Prosecutions against plai S or to require regis- .

tration, nor fhat' threats to. this effect have been directed

to plaintiffs.” 147 U.S.App.D.C. at 372, 330 F.2d at

838 The factual difference between Lion and these

_Ccases is manifest.’ Moreover, Lion is not concerned -

with the protected area of First Amendment freedoms.

Where’the plaintiff complains of chills and threats in,

the protected First apap. term a court is more

disposed to find that he is pres ed a real and not

an abstract controversy. >. i

We conclude that there is indeed presented a case.or

controversy within the intendment of Article 3 in each

of these cases, and that under 28 U.S.C. § 2284 three-

_. judge District Courts are required to hear them: .

We come at last to he propriety of review ie this

court of thedistrict. judges’ refusal to convene three-

judge courts. The fact that a Court of Appeals has

no jurisdiction to hear an. we on the merits in a

"For a ‘case clearly pointing up.the difference between a jus-

_ ticiable controversy and a request for an advisory opinion, see

United Public Workers v. — 330 US. 75, 86-94 (1947).

ota aes se Te

\ ‘ ?

—33—

three-jutige case, 28 U.S.C. -§ 1253, was. for a tithe

thought to be inconsistent with any: review by that

court of a district judge’s failure to convene a three-

judge court. In Jdlewild Liquor Corp. uv: Epsteiii, supra, ©

however, the Supreme Court. put an end to that mis-:

conception, and. denied that “a court of ‘appeals is power-

less ever to give any guidance when a single judge has

erroneously invaded the province ofa three-judge court...

~ The Court. of Appeals clearly stated its opinion that a .

court, of three judges ought ‘to have ‘been converied to 3

consider this litigation. That view was correct and |

Should have been followed upon the petitioner’s re-

-newed motion that such a statutory cart be. impafi-

eled.” 370 U.S.-at 7 =.

Three-judge District Courts should have: been con-

venéd to hear these cases. No final action will now be

taken, however, on the petitions for writs of manda- —

mus, as we assume that the respondents will take ap-

Propriate-action in requesting three-judge courts pur-

_Suant to § 2284(1). See Svejkousky v. Tamm, 117

U.S.App.D.C. 114, 326.F.2d 657 (1963).

An appropriate order will issue in each case.

Fahy, Circuit Judge, concurs in the result and in

Part IV of this opinion. os |

: _

ae ee

APPENDIX C. _

Constitutional Provisions, ‘Statutes, and

Rules Involved.

a The pertinent provisions of the. First Amend-

ment to the United States Constitution are:

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

freedom of speech, or of the. press ; AP Sgt |

2. The pertirient provisions of the Fifth Amend- | ,

ment to the United States Constitution! are:

“No person shall be held to ‘answer for a Capi- *

tal, or otherwise infamous crime, unless ona pre-

,sentment or’ indictment’ of a Grand’ Jury, : . .;

nor -shall any: person be subject -for the same of-

fense to be twice put in jeopardy of life .or limb ;

nor shall be compelled in ‘any criminal case to be

a witness against himself, nor be deprived of life,

liberty, or - peorery. — due process of law;

. ise

s. “The. erovisions of the Sixth Amendment to the

United States Constitution are: ©

: “In. all criminal prosecutions, the accused shall -

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district where-

in the crime shall have been committed, which

district Shall have -been previously ascertained by .

law, and to be-informed of the nature and cause ‘

of the accusation; to be confronted - with the

witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense,

—35—-

4. .The provisions of Article I, §1 of the United

States Constitution are:

“All legislative Powers an granted shall . be

vested,in a Congress of the United States, which

-Shall consist of a Senate and House. of Represen-

' tatives.”

” 5. The perjgnent provisions of Article I, g8 of the

"United States, Constitution are:

“The Congress Shall Have Power . cea

** *

- “To regulate Commerce with foreign Nations,

and among the. several States, and with the. In-

dian Tribes; . :

* * *

“To establish Post Offices and post Roads;

| * * .

“To make all Laws which shall be necessary and

* proper: for carrying into Execution the foregoing

Powers, and all other Powers vested by this Con-

-Stitution in the Government of the United States,

or in any Department or Officer thereof. ‘ee

6. The pertinent provisions of Article , §2 of

the United States. Constitution are: 7

i, eee

«“The Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury; and such Trial ’

shall be held in the State where the said Crimes

shall have been committed: but when: not commit-

ted within any State, the Trial shall be at such

Plate or Places as the Congress niay by L w have

directed.”

‘7. The 1958 amendments to 18 U.S.C. §§1461 and _

1462 [ Pub.L.85-796, §$1-2, 72 Stat.962] are: i:

! Sate e "AN ACT

| ba To amend sections £461. and 1462 of title ’

18 of the United States Code. - &

. . . Be it enacted by the Senate and House of*

Representatives. of the United States of Amer-

ica nt C ongress assembled, That the eighth

paragraph of section 1461 of title 18 df the -

United States Code is amended to read as fol-

lows: “Whoever knowingly uses the. mails for

the mailing, catriage. in the- mails, or delivery

of anything declared by this Section to be

nonmailable, or knowingly ‘causes ‘to be, de-

* livered by mail according to the direction

, thereon,.or at the place at which-it is directed

> -- to be delivered by the person to whom it is -

. “9 addressed, or knowingly takes any such thing.

' from the mails for the piirpoge of circulating

- or disposing thereof, or of aiding in the’ cir-

. culation or disposition thereof, shall ‘be fined

not::more than $5,000 or ximprisoned not

. more than five years, or both, for the first ©

° ‘such offense, and shall be ‘fined not’ ‘more

than $10,000 or imprisoned . not’ more than’

ten years; or both, for? each | “such offense |

thereafter.” é Laan 7

* See. 2. (a) The first paragraph of sate ‘

1462 of title 18 of the United States. Coge

is amended to read as follows:

“3

'z)

—37—! et

“Whoever brings into the United Statese ~

. or any place subject to the jurisdiction there-

of, or knowingly uses any- express company

er other common carrier, for Carriage in. in-

terstate or foreign commerce—”..

(b) That patagraph -of. such section 1462

-_ which begins’ with tRe words “Whoever

knowingly takes” is amended to read as fol-

lows: “Whoever knowingly takes from such

express company or other common carrier any °

_ matter or thing the carriage of which is here- |

in made unlawful—”, tae

. (c) The last paragraph of such ‘section ”

' 1462 is amended to read as follows: “Shall

be- fined not more than $5,000 or imprisoried

_-mot more_ than ‘five ‘years, or both, for the ,

’ first such offense’ and shall-be fined not more |

‘than $10,000 or imprisoned not more than ten ~

' years, or both, for eaclr such offense _there-,

after.” : = ge

Approved August 28, 1958,

~ The entire provisions. of 18 U.S.C 1461, as

~ amended (June 25, 1948, c. 645, 62 Stat. 768; June 28, °

1955, ¢. 190, §§.1, 2, 69 Stat” 183; August 28, 1958,

Pub. L. 85-796, §1, 72 Stat. 962), are:

_~“Every obscene, lewd, lascivious, indecent, filthy

. or vile article,° matter, thing, device, : or substance ;

. ®. ; +

ee. . % mci

“Every article or thing designed, adapted, or in- ~

tended for preventing. conception or producing. *

abortion, or for /any indecent or immoral, use ;- and

.-*

oi o's eee

’¥

ae ee ee ea ee

c GEvery article, instrument, stbstance, - drug, .

medicine, or thing which is advertised or described

in a manner calculated to lead ‘another to use or

apply it for preventing washes or producing

abortion, or for any indecent or immoral purpose;

mao : os

“Every ‘written or printed card, letter, circular,

J book, pamphlet, advertisement, or notice of any

kind giving. information, directly or indirectly, .

__ where, or how, or from whom, or by what means

| 1 a of such mentioned matters, articles, or .things

may be obtained or made, or gvhere’ or by whom

nn any act or operation of. any kind. for, the procuring

; -* or producing of abortion will be done or performed,

oo or how or by what means ‘conception may be: Pier,

vented or abortion prodyted, avhether sealed oF un- “e

sealed ; and | |

. “Every paper; writing, advertisement, or repre-

ro . sentation that any article, instrument, substance,

io... drug, medicine, or thing may, or can, be- used or

applied for preventing conception or producing

bortion,, or for any indecent or immoral purpose ;

and © | ae

“Every deccviniton calculated to induce fo) ite

F a person to so -use or apply any such —

strument, substance, drug, medicine, or thing— =,

“Is declared to be nefamati ilable matter and shall

net be conveyed in the mails or delivered: from any

‘post office or, by any letter carrier. |

“Whoever knowingly suses the ‘mails for the

mailing,. carriage in the mdils, or delivery of any-

of : , °

—39— a

“thing declared’ by this section te be: nonmailable,

or knowingly causes to be delivered by mail ac-—

cording to the direction, thereon, or at the place

at which it is directed to be delivered by the person.

to whom it is addressed, or knowingly takes any

such: thing from the mails for the purpose of.cir-

- culating | or disposing thereof, or of aiding in the

circulation or disposition thereof, shall be, fined

“not more than $5,000 or imprisoned not more than

five. years, or both; for the first Such offense, and

shall be fined not more than $10,000 or impris- |

oned not more than ten years; or both, for each .

such offense thereafter. - /

“The term ‘indecent’, as used in this section in-

cludes matter “of a duiresins a: to incite ar-

son, murder, or assassination.”

9.’ The entire : provisions of 18 U.S.C. 1462, as

“amended (June 25, 1948, c. 645, 62 ptat. 758; May

27, 1950, c..214. §1, 64. Stat. 194;. August 28, ° “1958,

Pub. ,L. 85-796, § 2; 72 Stat. 962), are:

“Whoever brings into the United States, or any

place subject to the jurisdiction thereof, or know-

ingly ~uses. any express cc company or other common

carrier, for Carriage in interstate or foreign com-

-merce— - ;

“(a) any obscene, . lewd, lascivious, or filthy

- book, pamphlet, picture, motion-picture film, paper,

- “fetter; writing, print, or ‘other matter of indecent

. Character; or - .

a”

(b) any: obscene, lewd, tnscivicnes, or filthy io.

nograph recording, ‘electrical transcription, or- other

- article or thing capable of producing sound; or °

signed, adapted, or intended for preventing concep-

tion, or producing abortion, or for any indecent or

immoral use; or any written or printed card, letter,

circular, book, pamphlet, advertisement, or notice’

of any kind giving information, directly or indi-

rectly, where, how, or: of whom, or by what means

any of such mentioned articles, matters, or as

may be obtained or made; or |

_ “Whoever knowingly takes ‘from such express

company or other common carrier any matter or.

. thing the carriage’ of. which i is herein made unlaw- ,

. ful—

“Shall be’ fined not more. than ‘$5, 000 or im-

prisoned not more than five years, or both, for the

first. such offense and° shall be fined not more~

than $10,000, or imprisoned not more than ten

years, or both, for each such offense thereafter.”

10. The provisions of 18 U.S.C. §3237(a) [Act of

June 25; 1948, Ghap. 645, 62. Stat. 826; Pub.L. ‘85-

595, 72 Stat. 512] are:

“Except as otherwise expressly provided by | en-

actment of Congress, any offense against the

United States begun in one district and completed

in another, or committed in more than one district,

may be inquired of and prosecuted in any district

in which such offense was begun, continued, or

completed: : ee, ’

“Any offense involving the use of the mails,

or transportation in interstate or foreign com-

merce, is a continuing offense and, except as oth- °

erwise expressly provided by enactment of Con- |

gress, may be inquired of and prosecuted in any

district from, through, or —_ which such com-

merce or. mail matter moves.’

11. The provisions of Rule.18 of the Federal Rules

of Criminal Procedure provide: |

“Except as otherwise permitted by statute or

by these rules, the prosecution shall be had ina

district in which the offense was committed: The

court shall fix fhe place of trial within the dis-

trict with due-regard to the- convenience of the

defendant and the witnesses.”

12. The provisions of Rule 21(b) of Ps Federal |

Rules of Crjgminal Procedure provide:

“For the convenierice of parties and witnesses,

and in the interest of justice, the court upon mo- .:

« . tion of ‘the defendant may transfer -the proceed- .

ings as to him. or any one or. more of the counts

thereof to another district.”

)

APPENDIX D.

"Stipulation of Facts.

. United States District Court, for the District of

‘ Columbia.

- Raed Enterprises, et al., Plaintiffs, v. Deis Clark;

et al., Defendants. Civil Action No. a -

Milton Luros, et al., Plaintiffs, - 3y. Ramsey Clark,

et al., Defendants. Civil Action No. 2562-65.

Sanford Elestel Aday, et ‘al., Plaintiffs, v. —

Clark, et al., Defendants. Civil Anion No. — 65.

STIPULATION

_ The parties hereto, by their counsel, stipulate and

agree as follows: ee

| a

Civil Action No. 3009-65

1. The’.plaintiff West Coast News Company, Inc. -

is a California corporation, with its principal office in

Feesno, California. The plaintiffs Sanford Elestel Aday

and Wallace De Ortega nated both reside and. work

in Fresno, California. -

2. The plaintiff Sanford lestel Aday was’ indicted |

on April 2, 1958, in the United States District Court —_

for the Southern District of California, Northern Di- —

vision (Fresno) for. three alleged violations of °Title

18, United States Code, Section 1461. Eleven pocket-

books were irivolved in the prosecution, the titles of

which were: “Turbulent Daughters,” “Taxi Dancers,”

“The Black Night,” “Tainted Wife,” “Dark Quarters,”

“Rene,” “Rambling Maids,” “Violent Surrender,” “The .

Strange Three,”. “Stairways to Sin,” and “Karla.” The

government withdrew eight of these titles prior to the |

—43—

submission of the case to the’ jury. The three pode

books submitted to the jury were “Rambling Maids,”

“Strange Three,” and “Turbulent Daughters.” The

jury returned a not guilty verdict on “Rambling Maids”

and deadlocked - on “Strange Three” and “Turbulent.

Daughters. ”- The entire indictment against plaintiff °

Aday was subsequéntly dismissed. With the exception.

-of the proceedings mentioned in Paragraph 3 of this

stipulation concerning the’ book ‘Black Night,” there

’ have been no other federal criminal proceedings against

these plaintif fs at any time relating to any of the pub-

lications mentioned in this paragraph.

3. Plaintiffs West’ Coast News Chsnpany, haw

‘and Maxey were indictéd for violations. of Title 18;

. United States Code,. Section 1462 in Grand Rapids,

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

April 26, 1960; and in “Honolulu, Hawaii; on October —

12, 1960. The titles involved i in. each of these cases were

as follows: —

a. Grand Rapids ‘Sex 6s of a Cop,” “De- a

cisive Years,”- “The Black Night,” “Witch Find-

er,” “Love Princess,” “Never Enough,” “I,am a

Lesbian,” and-“Desperate Moments” ; .

b. Phoenix—‘Sex Life of a Cop”; ;

‘. Honolulu—“Sex Life of a Cop,” “Decisive

Years,” and “Each Won Two.” |

4, The case * against plaintiffs in Grand Rapids,

Michigan, proceeded to trial on October 28, 1963, but

the proceedings in Honolulu and Phoenix were dis-

missed by the government prior to trial and after the

conviction in Grand Rapids. . .

5. The plaintiffs, Maxey, Aday, and West ‘Coast

News Company, were convicted i in Grand Rapids, Mich-

igan, on December 12, 1963, and were sentenced on

December 30, 1963. Their convictions were on five of

the eighteen counts charged in the indictment. Tue in-

| dictment charged that eight books in the shipments .

~~" were obscene, but the jury disagreed - among - them-

selves as to all ‘but “Sex Life of a Cop.” Plaintiff West

Plaintiff Aday was fined a total of $25,000 and sen-

tenced to a total prison term of 25 years, subject to

the terms of Title . 18, United States Code, Section

4208(a)(2); and plaintiff Maxey was fined a total of

- $19,000 and sentehcéd to a total prison term of fifteen

years, also subject to Title 18, United States Code, -

Section 4208(a)(2). One of the defenses raised i in that.

proceeding and overruled by the district court was the |

unconstitutionality of the venue provisions of the 1958

amendments to the federal obscenity statutes.

6. On March 22, 1966, the -Grand Rapids convic--

tion wag sustained by the Sixth Circuit Court of .Ap-

peals but the case was. remanded for reconsideration

of the, sentence. United States v.-West Coast News _

Company, 357° F. 2d 855. In its opinion, the Circuit —

Court rejected plaintiffs? challenge to the constitution-

ality of the’ venue provisions embodied in the 1958

amendments to the federal obscenity statutes. On April

6, 1966, the. District Court resentenced Aday to ten

years imprisonment and Maxey to five years imprison-

States Code, Section 4208(a)(2). The court left in ef-

_ fect the fines which it had initially imposed. The plain--

tiffs, on May 18, 1966, filed a petition for a writ of

certiorari to the United ne Supreme Court which i is

still pending.

_ Coast. News Company was ‘fined a total of. $25,000;. -

_ =

‘7, On March 26, 1965, plaintiffs rm Maxey,

and West Coast News Company were indicted on ten

counts in Houston, Texas, for allegedly shipping quan-

tities of five different paperback books from other

States into the Southern District of Texas in violation —

of the: federal obscenity statutés. The five titles in-

volved ‘were: “The Awakening of Cindy,” “The Girls

* of Club Sappho,” “The Women were Willing,” “The

Swingers,” and “Twisted “Passions.” The _transporta-

tions charged occurred between November’ 14, 1962 and

March 2, 1965. All ten of_ these alleged tran§portations

occurred after. the return, on May 24, 1960, of the in-

dictment in Grand Rapids, Michigan, and six of. the

_ transportations occurred after December 12, 1963; the

, date“of the Grand Rapids conviction.

8. There have been no other federal criminal pro- .

ceedings against these plaintiffs at any time relating

to any of the publications mentioned in Paragraphs 2,

3, and 7 of this —, or een to. any other of

their publications. ,

9. The ‘books named in the Honolulu, — Rapids

and Houston indictments were transported into the

districts wherein the indictments were returned ‘in the

regular course of plaintiffs’ business. In each case the

books were then purchased from local retail outlets

by agents of the Federal Bureau of Investigation?

| IE |

Civil Action No. (1744-65

10. ‘The. plaintiffs, Reed Enterprises and ‘Cue

Publications are California corporations with their prin-

cipal place of business in San Diego, California. The

other cian ig Civil — No. wins reside.

_and work in or around the following locations: Richard

A. Yerxa in San Diego, California; William L. Ham-

. ling in Palm Springs, California.

. ee oe September 10, 1965, in Sadaten, Texas,

_ the plaintiffs in Civil Action No. 1744-65 were indicted

on. twenty-six counts for ‘allegedly shipping quantities

of seven different paperback books from other states

into the Southern District of Texas in violation of

the federdl obscenity statutes. In additior® to these

. plaintiffs, six others were also. named in the same in- ~ °

dictment: Stephen A. Keegan of San Diego, Califor- —

nia; Donald. M. Partrick of El €4jon, California; Shir-

ley R. Wright of La Mesa, California; and Walter

H. Lonsdaje of Gardena, California; Howard E.

Stepherfs and Stephens Prihting Corporation of San-

dusky, Ohio. The titles of the books named in the Hous-

ton indictment were: “Qrgy. Club,” “Sin Sqmnmer, °

“Shame Hunger, — emple of Shame,” “Virgins, Inc.,’

“Passion Carousel, ” and “Swap Sect.” Six of the books

were alleged i in the indictment to have, been transported

from Sandusky, Ohio, to the Southern District of ; -

- Texas. The seventh book was alleged to have been trans-

ported from Los Angeles, California, to the Southern

District of Texas. |

_ 12. . The seven books named in the Houston? ingict-

ment were transported into the Southern District of

Texas i in the regular course of plaintiffs’ business oper-

ations. and were then purchased from local retail out- *

lets - by agents of the Federal Bureau of Investigation.

13. On September 2, 1966, following a trial of.

eight weeks, the. jury reported itself deadlocked and

was :dismissed. All of the individual defendants and

+. their five attorneys were present in the courtroom in

. re .

a, —47—

Houston, Texas, throughout the trial. On “February

17, 1967, United ‘States District Judge Joe Ingraham

denied defendants’ motions for judgments of acquittal.

- The case has been scheduled for retrial commencing

* on May 15, 1967. . .

14. There have been no. other federal criminal pro-. :

ceedings against these plaintiffs relating to any of. the

publications .mentioned in Paragraph 11 of this stip-

ulation or relating to any other.of their publications. —

III.

Civil Action No. 2562-65

15. The plaintiffs, Sun Era, Inc., American” Art

Agency, Inc., Parliament News, Inc., and London Press,

Inc., are all California corporations with their principal

of fice in North Hollywood, California. The plaintiffs,

Milton Luros, Beatricé B. Luros, Stanley F. Sohler,

Melvin Friedman, Elmer.A. Batters, Bernard J. Abram-

son, Harold Straubing, Paul Wisner, Sam Merwin, Jr.,

and Victor J. Banis, alt residé and work in on around

Los Angeles, California. The plaintiff Richard E. Geis

resides in. or around Portland, Oregon.

16, On March 24, 1965, in Fort Dodge, Iowa, these

plaintiffs were indicted on twenty-five counts for al-

legedly shipping. interstate arid mailing quantitiés ‘of

six different paperback books and twenty-five different

magazines into the Northern District of Towa in vio-

lation of the federal obscenity statutes. United States

_ wv. Luros)No. 65-Cr-3007-W, N.D: Iowa. In_ addition

- to the plaintiffs in ‘Civil Action’ No. 2562-65, Wayne

Cantrell Vance was also named as a defendant in the

. Towa indictment, The titles of the paperback books in-

- volved in the indictrfent were: “The Affairs of. Gloria, ”

\ .

% ual w \

. 7 x

“Lesbian Alley,” “Pleasure House,” “Two Women in

‘Love,” “The Three Way Apartment,” and “Lesbian

Sin Song.” The titles and issues of the magazines in-

volved in the indictment were: “Teenage Nudist,” Vol.

1, No. 1, “Nudist Photo Field Trip,” No. 6, “Urban

Nudist,” Vol. 1, Nos. 8, 910, and .11, “Sun Era,”

*. Vol. 1, Nos. 8 and 10'and Vol. 2, Nos. 2 and 4, “Nudist

Colorama,” Nos. 2 and 3, “Popular Nudism,” Vol. 1,

~ Nos. 3. and 4, “Nudist Week,” “Cocktail,” -Vol. 4, No. +

“Affair,” Vol. 1, No. 3, “Trojan, ” Vol. 3, No. 1,.

“Late Date,” Vol. 2, No. 2, “Showoff,” No. 2, “Mat-

inee,” Vol. 2, No. 1; “Sensation,” Vol. t, No. 3, “Body ‘

Shop,” Vol. 1, No. 4, “Late Show”; Vol. 2, No. 1,

“Snap,” Vol. 4, No. 2, and “Tip Top,” Vol. 3, No. 6.

17. The indictment alleged the Shipment: into the

Northern District of Iowa by common carrier of 50

copies of “Nudist Colorama, ” No. 3, 50 copies of “Ni--

dist Week,” 15 copies of “Cocktail,” Vol. 4, No. 3, 15

copies of “Affair,” Vol. 1, No. 3, 15 copies’ of “Tro-|

. jan,” Vol. 3, No. 1, 15, copies of “Late Date,” Vol. -

2, No. 2, 10 copies of “Showoff,” No. 2, and 15 copies °

of “Matinee,” Vol. 2, No. 1. The remaining ‘titles named

in the indictment were alleged. to hag been mailed into

the Northern District “of Iowa. The evidence at trial —

showed that these mailings were made in response to

_ test orders placed by postmasters in the Northern Dis-

trict of Iowa in: accordance’ with instructions given by -

- two postal inspectors: In response to: the test: orders,

one copy of “Teenage Nudist,” Vol: . 1, No. 1, one

copy of: “Nudist Photo Field Trip,” No. 6, one copy

of “Urban Nudist,” Vol. 1, No. 9, one copy of “Sun

Era,” Vol. 1, ‘No. 8, one copy of “Urban Nudist,”

Vol. ih No. 10, one copy of “Nudist Colorama. Number

Q,%

a gee

2,” one copy of “Sun Epa,” Vol. 1, No. 10, one, copy

of “Urban Nudist,” Vol.. 1, No. 11, one copy of “Sun.

Era,” Vol. 2, No. 2 (Number 14), one copy of ‘“‘Pop-

ular Nudism,”. Vol. 1, No. 3, one copy of “Popular

Nudism,” Vol: 1 . No. 4, one copy of “Sensation,” Vol.

1, No. 3, one copy of “Body Shop,” Vol. t; No, 4,

one copy of “Late Show,” Vol. 2; No. 1, ‘one copy of

“Snap,” Vol..4, No. 2, one .copy of “Tip Top,” Vol. |

3, No. 6, and. one copy of “Lesbian Sin Song” were ,. ”

received by postmasters in the Northern District of

Iowa. Following their receipt, these materials were sent ae

to.a postal inspector in Los Angeles, California. In re-

sponse, to other test orders, : one copy of “Sun Era,”

Vol. 2, No. 4 (Number 16), one copy of ‘“Lesbian

Alley,” one copy of “The Three Way Apartment” and

one copy of “The Affairs of Gloria” were received

by’ postmasters in the Northern District of Iowa. Fol-

lowing their receipt these materials were sent to a pos-

tal inspector in Fort Dodge, Iowa. In response. to an-

other test: order, one copy. of “Pleasure House,” was

received by a postmaster in the Northern District of

Iowa. Following its receipt, this material’ was sent to

a postal inspector in St. Louis, Missouri.: In response ~

to still another test order,. one copy of. “Two Women.

; in Love” was received directly by a postal inspector at

Sioux City, Iowa. ae eS

18. During the ‘course of the trial in United States

v. Luros, subpoenaed invoices of Parliament: News, Inc. _

_ were Jntroduced into evidence. These invoices Showed ~

ie toe the period covered by- the indictment, De-

cember 30, 1963, through March 24, 1965; Parliament

News, Inc. shipped: the -followi titi mate.

- rials named in the indictment into Sioux City in the

° . a

- 7 _anen - : eeeeeen ates

@& —=<-0

—50—* © an |

Northern District of Iowa i in the ordinary course of its

_ business. ; a ate 2 a

oe | a Litles Se Number of Copies

a 8 Teenage Nudist, Vol. 1, No. 1 i

4 a Urban Nudis Vol. 1, No. 8 ae

>}. Urban Nudist; Vol. 1, No. 9 - 50.

ae ‘Urban Nudist, Vol. 1, No. 10 i a

H oe ; . 2 ‘Urban Nudist, Vol. 1, No. 11. 76

a » . Nudist Colorama, No. 2 f} 75

_ ® “ *Nudist Colorama, No. 3° 2 50°

j “ys. " \ Nudist Photo | Field Trip, No.6 . 75

\Sun Era, Vol. 1, No. 8 . ee 50°.

Sun Era, Vol.1,No.10 75

_ Sun Era, Vol. 2, No. 2 (No. 14) 50

«° Sun Era, Vol. 2, No. 4 (No. 16) . - 50

Popilar Nudism, Vol, 1, Now oe

Popular Nudism, Vol. 1, No. e*.-.1 78

ee Ae to Week : Satpal

oo OL a

aaa . _ Late Show, Vol. 2,No.1- 0 25

Body Shop, Vol. 1, No. 4! ot ae ae

Affair, Vol. 1, No. .: ety tas a

° Trojan, Vol. 3, No. ‘a ae -15

. Late Date, Vol.2,No.2 a: eee

Showoff, No.2. | este | 10 3

Matinee, Vol. 2, No. 1 | 745

"Sensation, Voll,No.3 2 ok. 15

‘%

‘ r:

The hewwolag figures. do not: refleet distributions .

/ made into the Northern District of Iowa by Sun Era,

_ Ane and American. Art Agency, | i ae ae

~19.. The Yetlaytog quantities of materials named:

in the Luros indictment were mailed into the Northern

District of lowa- ~by Parliament News, Inc., Sun Era,

—~§j— *

° 7 . . fe a

Inc. or, American Art Agency, Inc. in. respqnse to test

orders or subscriptions sent. by Postmasters in Iowa.

Titles os Nuniber of Copies =“

Taguee Nii, Vo LMat. °° ra |

/ ‘ . ‘+ Nudist Photo’ Field Trip, No. 6 ~ Re ee

|» Urban Nudist, Vol. 1, No.8 ~~» 1

’ Urban Nudist, Vol. 1, No.9 * 1

Urban’ Nudist, Vol. 1, No. 10 1

Urban Nudist, Vol. 1, No. 11 1

‘San Era, Vol. 1, No. 8 : 1

Sun : Era, Vol..1, No. 10° . 1

- Sun Era, Vol. 2, No. 2. (No. 14) 1

Sun Era, Vol. -2, No. 4 (No. 16) 1

_ Nudist Colorama, No. F 4 1

Popular Nudism, Vol. 1, No. 3. 1

Popular Nudism, ‘Vol. 1, No. 4 1

Sensation, Vol. 1, No. 3 1

Body Shop, Vol: 1,:No. 4 . 1

Late Show, Vol. 2, No. 1 _ “am

_ Snap, Vol.'4, ‘No. 2 7 1

Tip Top, Vol. 3, No. 6 1

Lesbian Sin Song 2

Two Women in Love ~ 3

” Pleasure House | 2

" Lesbian Alley 2

“\ The Three Way ‘Apartment 2

The Affairs of Gloria . 72 2

20. Trial began in the Northern District of Iowa |

on October 18,- 1965. Prior to the submission of the

case to the jury, Judge William Hanson di&missed the

Yap: count and counts 9, 15, 16, 17, 18, and 19, -

thereby withdrawing from the jury ’sconsideration the

following a “Cocktajl,” Vol. 4, No. 3, “Affair,”

rz + 5 «Sipie ‘ @ ‘

"Vol. 1, No. 3, “Trojan,” Vol. 3, No. 1, “Late Date,”

Vol: 2, No. 2, “Showoff,” No. 2, “Matinee,”, Vol. .

‘No. 1, “Sensation, ve 2 No. 3 “Body Shop,” Vol.

1, No, 4, “Late Show,” Vol. .2, No. 1, “Snap,” Vol.

4, No. 2, “Tip. Top,” Vol. 3, No. 6 and “Sun Era,”

Vol. 2, No. 4 (No. 16). In_all,. eighteen of the oriae

inal twenty-five counts were submitted to the jury and -

on January 14,1966, the jury found all parties guilty

on each of these’ eighteen counts. All six paperback

books were determined by thie jury to be obscene. .The

magazines determined by the jury to be obscene were:

“Teenage Nudist,” Vol, i, No. 1, “Nudist Photo Field

| Trip,” No. 6, “Urban ‘Nudist,” Vol. 1, Nos. 8, 9, 10,

and 11, “Sun’Efa,” Vol. 1, Nos. 8 and 10, Vol. 2,

~ No. 2 (No. 14), “Nudist Colorama,” Nos. 2 and 3,

“Popular Nudism,” Vol. 1, Nos. 3 and 4, and “Nudist

. Week.” Motions for judgment of acquittal were later

_ granted as to all the. individual defendants except Mil-

ton Luros on: the ground that the government had failed

to offer adequate proof satisfying the element of scien-

"ter. Motions: for judgment of acquittal. were denied as

. to Milton Luros and the corporate defendants. See, 260

F. Sauk 697. On January 6, 1967, Milton Luros was 4:

_sentenced to five years in the federal penitentiary and

fined $25,000.° Parliament ‘News, Inc. and London

Press, ‘Inc. were’ each fined $25, Qoo and Sun Era, Inc.,

| cand American Art Agency, Inc..-éach received fines

"of $12,000. Notice of oe been filed.

t rs

Gk aaa —53— |

21. There have been no other . federal criminal pro-

ceedings against these plaintiffs at any time relating

to the publications ‘mentioned in Paragraph 16 of this -

stipitlation or relating to any. other of ‘their publica-

tions. 7 °

| David Rein .

_ Attorney for Plaintiffs

7~ Fred M. Vinson, Jr.

Assistant Attorney General.

Criminal Division

Department of ‘Justice

Washington, <

C. Westbrook _——

Attorney

Department of Justice

Washington, D.-C.

Theodore Kleinman

Attorney.

Department of Justice _

Washington, D. C.

2 Attorneys for Defendant

Of Counsel:

. DAVID G. BRESS

United States Attorney

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.