Brief for Respondent — Alexander v. Virginia

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TABLE OF CONTENTS

Page

QUESTIONS IN WI ooovesec cnc ochkcseseeee : ee ]

STATEMENT OF THE CASE ....... a. ac sia tiatdcicadseetes 2

ARGUMENT

I. Section 18.1-236.3 Of The Code Of Virginia Is Con-

EE RESET SARI AUR OC SSRI ee SESE AIS OA AY

II. The Books And Magazines Are Obscene Without Sale

Or Exhibition To Juveniles, Obstrusive Advertising

RS ESS IR CSR E sn cea arn mE A eh KUL 10

III. The Display Of Any Sexually Oriented Pictorial Maga-

zines For Commercial Sale, When Surrounded By

Notice To The Public Of Their Nature And By Reason-

able Protection Against Exposure Of The Magazines To

Juveniles Is Not Constitutionally Protected. ........ 12

ConcLusion ' sisal seen 16

CERTIFICATE OF SERVIC! , 16

TABLE OF CITATIONS

Cases

; Bowman v. Va. State entomologist, 128 Va. 351 (1920) 6

City of Moline v. Walker, 274 N.E.2d 9 (Ill. 1971) tice

Davidson v. State, 251 So.2d 841 (Fla. 1971) Q

| Freedman v. Maryland, 380 U.S. 51 7

Hoffman v. Dickinson Operating Co., Inc., 468 S.W.2d 26

(Mo. 1971) rae rata -4 14

Hoyt v. Minnesota, 399 U.S. 524, 90 S.Ct. 2241 (1970) 8

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5

j

Hunt v. Keriakos, 428 F.2d 606 Lot Et, FO) cc 12

Hunt v. State, 475 S.W.2d 935 (Tex. Crim. App. 1972) y)

Jacobellis v. State of Ohio, 378 U'S. RIE dericcickincie 8

Kingsley Books vy, Brown, 354 U.S. 426 ERNIE sigerurcteeticid 6, 14

May v. Harper, 250 So.2d 880 CSIR peice oS A. 14

McKinney v. State, 254 So.2d 7 Pe, SPU 9, 14

People v. Abronovitz, 327 N.Y.S.2d 137 Les | Reese 1]

People v. Golden, 97 Cal. Rptr. 476 (Cal. App. 1971)

People v. Kaplan, 23 Cal. App. 2d Supp. 9, 100 Cal. Rptr. 372

SNPOUD | rrconncsinerstirsnemansisirpticy rhs dnecs coc, 9

People v. Luros, 480 P.2d 633 (Calif. 1971), cert. den. 404

betscagh car ae ne On Re SE LE 14

Redrup v. New MOR TOOT ie rsccecsttetessierincs 10

Roth v. United States, 354 U.S, 476 C197} oc 10, 11, 12, 13, 15

Slaton v. Paris Adult Theatre I, 185 S.E.2d 768 (Ga. 1971) ...11, 14

Stanley v. Georgia, 394 U.S, 557 4 PROT a ee 12, 13, 15

State v. Henry, 198 So.2d 889 ES) 2 Eee ee 9

State v. McCluney, 180 S.E.2d 419 CN. C. App. 1971) oocccecccosnne 14

State v. Muldowney, 292 A.2d 26 (N. J. 1972)

State v. Shackman, 29 Ohio Misc. 56, 278 N.E.2d 61 (1971) .... 14

Times Film Corp. v. Chicago, 365 U.S. 43 co | Geena 14

United States vy. Brown, 328 F. Supp. 196 (E.D. Va. 1971) ou. 14

United States v. New Orleans Book Mart, Inc., 328 F, Supp.

ie (lh te. 11) Siipieribincrsusaiestinainnndbiedrensiceses 12

United States v. Reidel, 402 U.S, 351 2. 4) aa 3, 12, 15

United States v. Thevis, 329 F. Supp. 205 (M.D. Fla. 1971) ... i4

i"

SET SAIL EIT LN LE a AEN REELS HY SPE NC HHT OnS,

Page

United States v. Thirty-Seven Photographs, 402 U.S. 363

Do recctarutcnra ated. eu nee he 4,14, B

Village Books, Inc. v. State's Attorney, Prince George’s County,

ag : g )

Me TR UI CON OGY oi ooo sin vevendcavigissessce 6

Wilhoit v. U.S., 279 A.2d 505 (D.C. aR dt Seer aN 14

Other Authorities

Section 18.1-236.3, Annotated Code of Virginia ............2, 6, 7, 8, 10

I UNI Te BO ses haces shasctrerersiasicisd oder siseai eatin. 6

ho aM a | ec 6

PR REID 5s cacshgeatsqenacesnouipbtosekesons cavsloces!ocgucs acco. 7

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Supreme Court of the United States

October Term, 1971

No. 71-1315

HOWARD ALEXANDER, FRANK COLLIER,

VILLAGE BOOKS, INC., MEDIA ARTS,

AND GUILD PRESS, LTD..

Petitioners,

V.

COMMONWEALTH OF VIRGINIA,

Respondent.

BRIEF OF RESPONDENT

QUESTIONS PRESENTED

l. Is § 18.1-236.3, of the Annotated Code of Virginia

repugnant to the Constitution of the United States of

America by prohibiting a jury trial to determine obscenity

and by permitting a prior restraint on literary material, and

by providing for a city-wide community standard for judg-

ing obscenity rather than a national community standard,

and by providing for establishing a fact, through civil pro-

ceedings, for use in criminal prosecution, all in violation of

the First, Fifth, Sixth, Seventh, and Fourteenth Amend-

ments to the Constitution of the United States of America?

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2. Are the approximately 300 books and magazines,

enjoined from sale by the Court below, obscene in the con-

stitutional sense, without sale or exhibition to juveniles,

obstrusive advertisnig or pandering?

3. Whether the display of any sexually oriented pictorial

magazines for commercial sale, when surrounded by notice

to the public of their nature and by reasonable protection

against exposure of the magazines to juveniles, is constitu-

tionally protected ?

STATEMENT OF THE CASE

On May 19, 1970, the Commonwealth’s Attorney of the

City of Portsmouth presented a petition to the Hustings

Court asking that certain books named in the petition be

adjudged obscene as set forth in § 18.1-236.3 of the Code

of Virginia. The Hustings Court issued a writ of subpoena

duces tecum returnable on May 22, 1970, at which time the

petitioners produced copies of the named books. A motion

to quash the subpoena duces tecum was overruled and the

books were left in the custody of the Court. On June 3,

1970, the Hustings Court issued a rule to show cause why

the books should not be adjudicated obscene. On June 12,

1970, the petitioners appeared through counsel and moved

for a stay of the proceedings which was denied. The peti-

tioners filed an answer to the petition and a motion to dis-

miss the petition, which was heard by the Court on August

19, 1970. Following the denial of the petitioners’ motion to

dismiss, the case was tried by the Court on November 4

and 5, 1970.

At the commencement of the trial on November 4, 1970,

it was stipulated that the petitioners’ book store did not sell

or distribute any literature to juveniles (A. 20). In addition.

the Court directed the return of those books which it had

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previously determined that there was no probable cause to

believe they were obscene. The first witness to testify on

behalf of the Commonwealth was Robert Holley, a resi-

dent of the City of Portsmouth for fifteen years (A. 21).

Mr. Holley testified that five to seven years before he had

served as chairman of an area wide Chamber of Commerce

committee composed of representatives of Norfolk, Vir-

ginia Beach, Portsmouth, Newport News, Suffolk, and

Nansemond County, the purpose of the committee being to

investigate obscene matters in the area (A. 23, 24). The

committee purchased magazines from different locations

throughout the community and by discussing the magazines

with civic groups and organizations, the committee was

able to determine what the community standard was

throughout the whole area (A. 23). About a year and a

half prior to trial, Mr. Holley did extensive investigation

into obscenity in the Portsmouth area and by sampling

contacted the equivalent of 30,000 people in the Ports-

mouth area (A. 23, 24). During this time Mr. Holley

met with various clubs and organizations in the area and

displayed magazines and films depicting sexual portrayals

of all types. These clubs included the Navy wives’ clubs,

which included persons from various parts of the country

(A. 26). During this investigation, Mr. Holley was not

only able to determine what the community standard was,

but also formed the opinion that the local standard was

essentially the same as the national standard. His opinion

concerning the national standard was based upon his travels

on the East Coast and in talking with people from through-

out the country (A. 30). Upon this background, Mr.

Holley was considered as an expert winess and allowed

by the Court to testify (A. 30). Mr. Holley testified that he

had examined each of the books in question (A. 35), and

that in his opinion the majority of the books were patently

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offensive and did not meet the community standard (A. 38,

39). Mr. Holley also testified that the books taken as a whole

appealed to prurient interest in sex and the majority of the

books did not have any redeeming social value (A. 40).

Mr. Holley did state that he did not consider nudity alone

as violating the community standard, but that nude persons

in suggestive poses depicting sexual intercourse or sodomy

did violate the community standard (A. 42, 45).

The Commonwealth, next offered the testimony of Dr,

Donald Lee Mingione. Dr. Mingione specializes in the field

of psychiatry and has been practicing in Portsmouth for

nine years (A. 47). Dr. Mingione was qualified as an expert

psychiatrist and was qualified to testify concerning social

values (A. 49). Dr. Mingione testified that he had ex-

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3 amined each of the books in question (A. 47) and in his

; opinion the majority, if not all of the books, appealed to

4 the prurient interest (A. 49). He further testified that

none of the books possessed any redeeming social value

4 (A. 51).

5 The Commonwealth then introduced Richard Messenger

i who stated that he was the owner of Messenger Printing

3 Company, had lived in Portsmouth for forty-three years and

; been in the printing business for twenty years (A. 53, 54).

i Mr. Messenger testified that he does printing for the Gov-

é ernment and firms outside of the State of Virginia and also

j receives bulletins concerning what is to be printed and not

: to be printed in the obscenity field. Mr. Messenger also

4 testified that he had attended meetings with other printers

fi and publishers to discuss standards of printing obscene

3 materials (A. 54). Mr. Messenger examined all of the

s books in question (A. 54) and in his opinion they would

; appeal to the prurient interest (A. 55).

4 The petitioners offered the testimony of Dr. Wilbur Ham-

mond, a resident of Arlington, Virginia, who is engaged

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in the private practice of medicine, specializing in psy-

chiatry (A. 65). Dr. Hammond spent about ten minutes

looking at from fifteen to twenty of the books (A. 71, 72)

and gave his opinion that the books involved would not ap-

peal to the prurient interest (A. 68). Dr. Hammond based

his conclusion on the fact that he had shown similar maga-

zines to his patients and fellow doctors at St. Elizabeth's

Hospital (A. 68). Dr. Hammond further testified that

there are only a few items that would be entirely without

redeeming social value and that hard core pornography

would have some redeeming social value (A. 73).

Thereafter the petitioners presented the testimony of Dr.

Donald W. Nachand, a practicing psychologist, employed

at the Eastern Shore State Hospital, in Cambridge, Mary-

land (A. 82), who was of the opinion that the books would

not appeal to the prurient interest of the average individual

(A. 83). Dr. Nachand testified that he had examined only

approximately one-half of the books in question (A. 85).

He further testified that he did not believe these books ex-

ceeded the community standards and that they probably

had some socially redeeming value (A. 83). Dr. Nachand

further testified that hard core pornography is not neces-

sarily obscene (A. 91).

Dr. Herman Kastner, a psychiatrist engaged in private

practice in the State of Maryland, testified that the books

may appeal to the prurient interest of a group of people

(A. 97). He further testified that he would not feel quali-

fied to say what standards are relative to prurient interests

for most people in that it differs from person to person and

is an individual concept (A. 99, 100). Dr. Kastner in

answer to a question propounded by the Court, stated that

the magazines might be considered obscene by a majority of

the citizens (A. 103).

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ARGUMENT

I.

Section 18.1-236.3 Of The Code Of Virginia Is Constitutional.

Petitioners first assert that § 18.1-236.3 (set forth in

petitioners’ petition Appendix pgs. 19a-2la), is unconstitu-

tional in that it does not provide for trial by jury. Sub-

section 8 of this section specifically provides that the hear-

ing shall be conducted by the court in accordance with the

rules of civil procedure applicable to the trial of cases by

the court without a jury.

Section 18.1-236.3 is not a criminal proceeding, but

rather is an in rem proceeding. The petition is directed

against the book or books considered to be obscene, and this

section provides no criminal penalties. This proceeding is a

creature of statute and was unknown at common law. It

has long been well settled that neither the State nor Federal

Constitution guarantees or preserves the right of trial by

jury except in those cases where it existed when these con-

stitutions were adopted. Bowman v. Va. State Entomologist,

128 Va. 351 (1920) ;50C.J.S., Juries § 10.

As a general rule, jury trials may be properly denied in

purely statutory actions or proceedings. 47 Am. Jur. 24,

Jury, § 41.

Although the Supreme Court was not called upon to de-

cide the issue of a jury trial in Kingsley Books v. Brown,

354 U.S. 436 (1957), it nevertheless approved a New York

statute which set forth the procedure to enjoin the distribu-

tion of obscene books without the benefit of a jury trial.

See also Village Books, Inc. vy. State's Attorney, Prince

George's County, 282 A.2d 126 (Md. 1971).

Petitioners next urge that the statute is unconstitutional

in that it provides for a prior restraint without the benefit

of an adversary hearing. Subsection 5 provides that when

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an order to show cause is issued the court may issue a

temporary restraining order against the sale or distribution

of the book alleged to be obscene.

This Court in Freedman v. Maryland, 380 U.S. 41 re-

emphasized its previous holding that prior restraint is not

necessarily unconstitutional under all circumstances.

In the recent case of United States v. Thirty-Seven

Photographs, 402 U.S. 363 (1971), this Court had occa-

sion to review its decision in Freedman as it applied to 19

USC § 1305 (a). In reviewing Freedman, this Court said

it had struck down the state scheme for administrative

licensing of motion pictures, holding “that, because only a

judicial determination in an adversary proceeding ensures

the necessary sensitivity to freedom of expression, only a

procedure requiring a judicial determination suffices to im-

pose a valid final restraint.” 380 U.S. at 58. This Court

continued that to insure a judicial determination occurs

promptly so that administrative delay does not in itself

become a form of censorship, this Court further held, (1)

there must be assurance, “by statute or authoritative judi-

cial construction, that the censor will, within a specified

brief period, either issue a license or go to court to restrain

showing the film’’; (2) “(a)ny restraint imposed in advance

of a final judicial determination on the merits must similarly

be limited to preservation of the status quo for the shortest

fixed period compatible with sound judicial resolution”; and

(3) “. . . the procedure must also assure a prompt final

judicial decision.” (Id. at 58-59).

Section 18.1-236.3 provides for just the type of judicial

determination in an adversary proceeding envisioned in

Freedman. In addition, this section provides that any prior

restraint to preserve the status quo will be for a short fixed

period. Subsection 5 provides that when a show cause

order is issued and upon four days’ notice the court may

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issue a temporary restraining order. Subsection 4 (d) re-

quires that the show cause order be returnable 21 days after

service. Subsection 8 provides that if appearance is entered

and an answer filed, the court shall order the proceeding set

on the calendar for a prompt hearing.

Petitioners further contend that § 18.1-236.3 is uncon-

stitutional in that it establishes an improper standard of

measuring contemporary community standards. Petitioners

argue that a national standard should apply whereas the

code section provides for a local standard.

A cogent argument for community standards was made

by then Chief Justice Warren and Justice Clark in a sepa-

rate opinion in Jacobellis v. State of Ohio, 378 U.S. 184

(1964), when they said:

“It is my belief that when the court said in Roth that

obscenity is to be defined by reference to ‘community

standards,’ it meant community standards—not a na-

tional standard, as is sometimes argued. I| believe that

there is no provable ‘national standard’ and perhaps

there should be none. At all events, this court has not

been able to enunciate one, and it would be unreason-

able to expect local courts to divine one. It is said that

such a ‘community’ approach may well result in ma-

terial being proscribed as obscene in one community

but not in another, and, in all probability, that is true.

But communities throughout the Nation are in fact

diverse, and it must be remembered that, in cases such

as this one, the court in confronted with the task of

reconciling conflicting rights of the diverse communi-

ties within our society and of individuals.” Id. at 200.

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In the recent case of Hoyt v. Minnesota, 399 U.S. 524,

90 S.Ct. 2241 (1970), Mr. Justice Blackmum, with whom

The Chief Justice and the late Mr. Justice Harlan joined

opined that :

9

“Tam not persuaded that the First and Fourteenth

Amendments necessarily prescribe a national and uni-

form measure—rather than one capable of some flex-

ibility and resting on concepts of reasonableness—of

what each of our several States constitutionally may do

to regulate obscene products within its borders.”

Numerous courts across the nation have recognized either

a statewide or local community standard. People v. Kaplan,

23 Cal. App. 3d Supp. 9, 100 Cal. Rptr. 372 (1972); Hunt

v. State, 475 S.W.2d 935 (Tex. Crim. App. 1972) ; David-

sonv. State, 251 So.2d 841 (Fla. 1971) ; McKinney v. State,

254 So.2d 714 (Ala. 1971) ; State v. Henry, 198 So.2d 889

(La. 1967).

It would appear to be impossible and impractical to estab-

lish a national standard. The values and tastes of this na-

tion’s citizens vary from place to place, and a national

standard would not allow any flexibility in recognizing these

variances.

It would be highly improbable if not next to impossible to

find an expert who could express an informed opinion upon

the standards of citizens across the country. One can envi-

sion the mythical expert who would express knowledge

about the free style of life, strip joints, etc., which abound

in metropolitan areas such as New York, Chicago, and Los

Angeles, but who would not have the faintest idea of the

life style of citizens of Butte, Montana or Lexington. Vir-

ginia.

The Commonwealth submits that the constitution permits

a state to adopt its own standard as long as it is consistent

exists in our nation, it would be impossible to establish a

workable national standard.

Petitioners lastly argue that § 18.1-236.3 is unconstitu-

tionally vague in that it provides for establishing scienter

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for use in a criminal prosecution without affording the de-

fendant his constitutional right ‘o a trial by jury on all

issues of fact in a criminal case, and further that while

the section provides for a temporary restraining order it

does not provide for a permanent injunction.

In the first instance § 18.1-236.3 is a proceeding to de-

termine whether specified books are obscene and does not

conclusively establish knowledge or scienter. The question

of knowledge or scienter in a criminal prosecution would

still be an issue to be resolved by a jury, and the proceed-

ings under § 18.1-236.3 are merely intended as an aid in

that determination where thought to be useful or desirable.

In the second place once books have been determined to

be obscene they are not entitled to the protection of the Con-

stitution, Roth v. United States, 354 U.S. 476 (1957), and

it would appear logical that their distribution could be

permanently enjoined.

For the reasons aforementioned, it is submitted that

§ 18.1-236.3 is constitutional.

Il.

The Books And Magazines Are Obscene Without Sale Or Exhibition

To Juveniles, Obstrusive Advertising Or Pandering.

The petitioners contend the judgment of the court below

was contrary to the law and evidence, and rely mainly upon

Redrup v. New York, 386 U.S. 767 in which they say that

this Court reaffirmed the prior definition of obscenity in

Roth, and added three qualifications: (1) Protection of

juveniles; (2) Assault upon individual privacy by publica-

tion in a manner so obstrusive as to make it impossible for

an unwilling individual to avoid exposure to it; and (3)

Pandering which was found in Ginzburg.

The Commonwealth submits that any such contention has

been completely laid to rest, even if it ever had any validity.

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In United States v. Reidel, 402 U.S. 351 (1971) the de-

fendant was charged with a violation of 18 USC § 1461,

which prohibits the knowing use of the mails for the delivery

of obscene matter. Reidel had advertised in the newspaper

that a person seeking his illustrated booklet must be over 21

years of age, and one of the booklets had been mailed to a

postal inspector stipulated to be over 21. The District Court

dismissed the indictment and concluded that § 1461 could

not be constitutionally applied “where obscene material is

not directed at children, or it is not directed at an unwilling

public, where the material such as in this case is solicited by

adults... .’ This Court rejected the reasoning of the Dis-

trict Court and reversed the judgment.

This Court held that Roth squarely placed obscenity and

its distribution outside the reach of the First Amendment

and refused to overrule oth. The court explicitly held that

whether the laws of obscenity should be limited to those

situations where children are involved or where it is neces-

sary to prevent imposition on unwilling recipients of what-

ever age was a legislative matter.

The Commonwealth submits that the court below applied

the proper standard for determining obscenity as set forth

by this court in Roth.

The court below received evidence submitted by experts

concerning the community standards and social value and

upon conflicting evidence adjudged the books obscene.

Petitioners concede that some of the books and magazines

contain photographs depicting simulated erotic activities

that suggest the consummation of sexual activities. The

Commonwealth submits these photographs leave nothing

to the imagination and are obscene. People v. Abronovite,

$27 N.Y.S.2d 137 (1971): Slaton y. Paris Adult Theatre J,

185 S.E.2d 768 (Ga. 1971).

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This Court has held that the constitution protects photo-

graphs of nudes featuring emphasis on the genital area,

However, these decisions do not support the thesis that

photographs depicting males suggesting sex acts with other

males, or females, or females suggesting sex acts with other

females are contitutionally protected. United States v. New

Orleans Book Mart, Inc., 328 F.Supp. 136 (E.D. La. 1971);

Hunt v. Keriakos, 428 F.2d 606 (1st Cir. 1970).

Ill.

The Display Of Any Sexually Oriented Pictorial Magazines For

Commercial Sale, When Surrounded By Notice To The Public

Of Their Nature And By Reasonable Protection Against Exposure

Of The Magazines To Juveniles Is Not Constitutionally Protected.

In Roth v. United States, 354 U.S. 476 (1957), this

Court held that obscenity was not within the area of consti-

tutionally protected speech. By definition obscenity was said

to lack the valuable ideas whose dissemination the First

Amendment was designed to ensure. Roth has not been

overruled and was held to be the law in two recent decisions.

United States v. Reidel, 402 U.S. 351 (1971) ; United States

v. Thirty-Seven Photographs, 402 U.S. 363 (1971).

This Court’s decision in Stanley v. Georgia, 394 US.

557 (1969), which held that the mere private possession of

obscene matter cannot constitutionally be made a crime, has

caused some to believe that the right to private possession

of obscciie materials carries with it a right to receive such

materials through commercial sale. In announcing the deci-

sion in Stanley, Mr. Justice Marshall stated:

“We hold that the First and Fourteenth Amendments

prohibit making mere private possession of obscene

material a crime. Roth and the cases following that

decision are not impaired by today’s holding.” 394

U.S. at 568.

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On their faces, it would seem that Roth and Stanley are

totally inconsistent with each other. However, this Court

was quick to set straight this seeming inconsistency in

Reidel. Mr. Justice White in delivering the opinion of the

Court noted the limitations on the reach of Stanley when

he said :

“The District Court gave Stanley too wide a sweep. To

extrapolate from Stanley’s right to have and peruse

obscene material in the privacy of his home a First

Amendment right in Reidel to sell it to him would ef-

fectively scuttle Roth, the precise result that the Stanley

opinion abjured. Whatever the scope of the ‘right to

receive’ referred to in Stanley, it is not so broad as to

immunize the dealings in obscenity in which Reidel

engaged here—dealings that Roth held unprotected by

the First Amendment.” 402 U.S. at 355.

This Court further delineated the bounds of Stanley in

Thirty-Seven Photographs, wherein the Court said:

“Whatever the scope of the right to receive obscenity

adumbrated in Stanley, that right, as we said in Reidel,

does not extend to one who is seeking, as was Luros

here, to discribute obscene materials to the public, nor

does it extend to one seeking to import obscene ma-

terials from abroad whether for private use or public

distribution.” 402 U.S. at 376.

Thus, Reidel and Thirty-Seven Photographs clearly rec-

ognize that the States and the Federal Government retain

broad power to regulate obscenity, particularly in the com-

mercial field.

Since Stanley it has been argued that the First Amend-

ment should protect the sale of obscene materials to con-

senting adults where reasonable precautions have been taken

to prevent exposure to juveniles. This argument has been

rejected by numerous courts. State v. Muldowney, 292 A.2d

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26 (N.J. 1972); Hoffman v. Dickinson Operating Co. lne.,

468 S.W.2d 26 (Mo. 1971) ; City of Moline v. Walker, 274

N.E.2d 9 (Ill. 1971) ; Wilhoit v. U.S., 279 A.2d 505 (D.C.

App. 1971); People v. Luros, 480 P.2d 633 (Calif. 1971),

cert. den. 404 U.S. 824; People v. Golden, 97 Cal. Rptr.

476 (Cal. App. 1971); State v. Shackman, 29 Ohio Misc.

56, 278 N.E.2d 61 (1971) ; Slaton v. Paris Adult Theatre |,

185 S.E.2d 768 (Ga. 1971) ; State v. McCluney, 180 S.E.2d

419 (N.C. App. 1971); McKinney v. State, 254 So.2d 714

(Ala. 1971); May v. Harper, 250 So.2d 880 (Fla. 1971);

United States v. Brown, 328 F.Supp. 196 (E.D. Va. 1971);

United States v. Thevis, 329 F.Supp. 205 (M.D. Fla. 1971).

The Commonwealth submits that the commercial dis-

semination of obscene materials, regardless of what pre-

cautions are taken to advise adults of its content and to

prevent exposure to juveniles, is not protected by the

Constitution.

There is the position taken by some that if pornography

were legalized, it would soon lose its interest for people,

and eventually the traffic would end. However, a long time

ago a District Judge predicted the rise in obscenity when he

observed that :

“.. the appetite for such literature increases with the

feeding. The more it is pandered to, the more insatiable

its craving for something yet more vicious in taste.”

United States v. Harmon, 45 F. 414, 418 (D.C. Kan.

1891)

In Kingsley Books, Inc. v. Brown, 354 U.S. 476 (1957),

this Court pointed out that in an unbroken series of cases

extending over a long stretch of the Court’s history, it has

been accepted as a postulate that“the primary requirements

of decency may be enforced against obscene publications.

In Times Film Corp. v. Chicago, 365 U.S. 43 (1961), this

Court recognized that the constitutional guaranty of free-

PED ETE D TOO. *

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dom of speech did not preclude a municipality from pro-

tecting its people against the dangers of obscenity in the

public exhibition of motion pictures, And Stanley re-empha-

sized that Roth and cases following it discerned an important

Federal and State interest in the regulation of commercial

distribution of obscene material.

It should not be doubted that obscenity is a cancerous

canker in our culture. President Richard M. Nixon has

said :

“Pornography can corrupt a society and a civilization.

The people’s elected representatives have the right and

obligation to prevent that corruption.

The warped and brutal portrayal of sex in books, plays,

magazines and movies, if not halted and reversed, could

poison the oe of American and Western cul-

ture and civilization .

Alexis de T aha Sicedee America more than a

century ago, wrote: ‘America is great because she is

good—and if America ceases to be good, America will

cease to be great.’

We all hold the responsibility for keeping America a

good country. American morality is not to be trifled

with.” N.Y. Times, Oct. 25, 1970, § 1, at 71. col. 5-8

This Court in Reidel anticipated the move to eliminate the

holding in Roth from obscene materials between consenting

adults when Mr. Justice White commented :

“It is urged that there is developing sentiment that

adults should have complete freedom to produce, deal

in, possess, and consume whatever communicative ma-

terials may appeal to them and that the law's involve-

ment with obscenity should be limited to those situa-

tions where children are involved or where it is neces-

sary to prevent imposition on unwilling recipients of

whatever age.” 402 U.S. at 357.

ERE SMR i RRR, NE RRR L-

weet

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Justice White noted that the concepts involved in the

law of obscenity were elusive and great expenditures of time

and effort were expended in the enforcement of such laws,

He further declared that the task of restructing obscenity

laws belongs to ‘‘those who pass, repeal, and amend such

ordinances.”

The Commonwealth submits that if changes are desirable

in the field of obscenity that such changes ought to eminate

from the Legislatures.

CONCLUSION

For the reasons stated, it is respectfully submitted that

the judgment in this case be affirmed.

Respectfully submitted,

ANDREW P. MILLER

Attorney General of Virginia

Ropert E. SHEPHERD, JR.

James E. Kup

Assistant Attorneys General

Supreme Court Building

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I, Robert E. Shepherd, Jr., Assistant Attorney General

of Virginia, of counsel for the respondent, and a member

of the Bar of the Supreme Court of the United States, do

hereby certify that on the 11th day of September, 1972, |

mailed 3 copies of the foregoing to Stanley M. Dietz,

Esquire, 1029 Vermont Avenue,,.N.W., Washington, D. C.

20005, counsel for Petitioners.

Ropert E. Suernerp, JR.

Assistant Attorney General