Amicus Curiae Brief — Alexander v. Virginia

No. 71-1315

“HOWARD ALEXANDER, et a1, ICHAEL RODAK, JR,

Datetac

v8.

COMMONWEALTH OF VIRGINIA

a

1 S. Friedman, Esq., on behalf of The First

TABLE OF CONTENTS

Page

WHETHER, UNDER THE FIRST AMEND-

MENT TO THE UNITED STATES CONSTI-

TUTION, AN ADULT, PREVIOUSLY FORE-

WARNED, HAS THE ABSOLUTE RIGHT

TO BUY, SELL, RECEIVE, WRITE, PUB-

LISH, DISTRIBUTE, DISSEMINATE AND/

OR EXHIBIT HARD CORE PORNOGRAPHY

AND OBSCENE MATERIAL TO OTHER

PREVIOUSLY FOREWARNED ADULTS

PROVIDING THERE IS NO ASSAULT OR

INTRUSION UPON THE SENSIBILITIES

OF OTHER NON-INTERESTED ADULTS,

NO PANDERING, NOR JUVENILE IN-

A. HISTORICALLY THE FIRST AMEND-

MENT PROTECTS PORNOGRAPHY AND

B. OBSCENITY PER SE FALLS WITHIN

THE PROTECTION OF THE FIRST

RINT static csp hashes Selasaeecsn Sossintoeldeadbvapactaceomn 6

1. THE PROFANE AND LIBELOUS

FIGHTING WORDS EXCEPTION _.W.. 9

II

TABLE OF CONTENTS (cont.)

2. THE FIRST AMENDMENT PRO-

TECTION IS NOT LIMITED TO THE EX-

PRESSION OF IDEAS AND FURTHER

OBSCENITY CONVEYS IDEAS 0.

38. THERE IS NO CAUSAL RELA-

TIONSHIP BETWEEN PORNOGRAHPY

AND HARMFUL CONDUCT

C. WHETHER FOREWARNED CONSENT-

ING ADULTS HAVE THE ABSOLUTE

RIGHT TO ENJOY FOR THEIR OWN PRI-

VATE PERSONAL ENTERTAINMENT

AND/OR DESIRE HARD CORE PORNOG-

RAPHY AND OBSCENITY

1. THE COMMERCIAL PUBLICA-

TION, DISTRIBUTION, SALE AND/OR EX-

HIBITION OF OBSCENE MATERIAL WAS

NOT A CRIME AT COMMON LAW, PUN-

ISHABLE BY SECULAR COURTS

2. THE NINTH AMENDMENT RIGHT

OF PRIVACY PROTECTS AND PRE-

SERVES THE RIGHT TO RECEIVE, OR

VIEW, EVEN HARD CORE PORNOG-

RAPHY

Page

15

17

19

Ill

TABLE OF CONTENTS (cont.)

3. THE PRIVATE, SEXUAL ACTS

AND CONDUCT, OR FOREWARNED

ADULTS, ARE PROTECTED UNDER THE

FIRST, FIFTH, NINTH AND FOURTEENTH

EE RENTERS 64. et Pe

4, FEDERAL AND STATE LEGISLA-

TION WHICH SEEK TO PROHIBIT COM-

MERCIAL DISSEMINATION OF HARD

CORE PORNOGRAPHY VIOLATE THE

EQUAL PROTECTION CLAUSE OF THE

FIFTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES CON-

SIE nsec ubedbacostatinstepheinrmnicideas

D. IN THE ABSENCE OF EMPIRICAL

DATA SUPPORTING THE ASSUMPTION

THAT OBSCENE MATERIAL IS HARMFUL,

THERE IS NO RATIONAL BASIS TO MAKE

CRIMINAL THE BUYING, SELLING, RE-

CEIVING, PUBLISHING, DISTRIBUTING,

OR EXHIBITING OF SEXUALLY EROTIC

MATERIALS TO ADULTS FOREWARNED

OF ITS NATURE

CONCLUSION...

CERTIFICATE OF SERVICE

Page

32

IV

TABLE OF CITATIONS

Case Page

Argersinger v. Hamlin,

U.S. Supreme Ct. Case No. 70-5015,

___.:; US. ___, 11 Cr.L. 3089 (June 12, 1972)... 25

Ashton v. Kentucky,

384 U.S. 195 (1966) 7, 10

Beauharnais v. Illinois,

343 U.S. 250 (1952) 7

Boddie v. Connecticut,

401 U.S. 371 (1971) 25

Buck v. Bell,

274 U.S. 200 (1927) 38

2 Cantwell v. Connecticut,

“ee B10 U.S. 296 (19407~ “* Saba ee

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) 7,9, 10

Cohen v. California,

408 U.S. 15 (1971) 7, 9, 11, 12

Cotner v. Henry,

394 F.2d 873 (1968) 22

Eisenstadt v. Baird, i

——. U.S. —__, 92 8.Ct. 1029 (1972) —._.. 20, 21, 2

ye

ot tes ae

on peer re Pa

ee MN

Peta Eze,

Vv

TABLE OF CITATIONS (cont.)

Case Page

Gooding v. Wilson,

405 U.S. 518 (1972) 11

Griswold v. Connecticut,

381 U.S. 479 (1965) ...........16, 19, 20, 21, 22, 27, 28, 29

Hannegan v. Esquire,

327 U.S. 146 (1946) OM Me 8,12

King v. Curl,

2 Stra. 788 (1727) .. = 17

Lamont v. Postmaster General,

381 U.S. 301 (1965) 28, 29

leary v. US.,

395 U.S. 6 (1969) 14, 38

Martin v. City of Struthers,

319 U.S. 141 (1943) 27, 29

Mayer v. Chicago,

aS, Re Se OS. | ee 24

Memoirs v. Massachusetts,

383 U.S. 413 (1966) 4

New York Times Co. v. U.S. [Pentagon Papers],

ei + SR: 5 Ieee 15

vi

TABLE OF CITATIONS (cont.)

Case Page

Olmsted v. U.S.,

277 U.S. 438 (1928) . 21

People v. Belous,

80 Cal. Rptr. 354, 458 P.2d 194 (1969) 22

Public Utilities Commission v. Pollak,

343 U.S. 451 (1952) 20

Queen v. Read,

Case No. 205, Michaelmas Term, 6 Queen Anne

S.C. 2 Stra. 789, 11 Mod. Rep. 142 (1708) —. 17, 18,19

Redrup v. New York,

386 U.S. 767 (1967) 20, 30, 38

Reed v. Reed, :

Sey wae 6 fll cP,

Rosenfeld v. New Jersey,

___. US. ——, 38 LEd.2d $21 (1972) —____._. 11

Roth v. U.S. [Alberts],

354 U.S. 476, 485 (1957) 4, 6, 36

Schenck v. US.,

uae Se X'S ¢) eee 14

Shapiro v. Thompson,

394 U.S. 618 (1868) 25

—

vil

TABLE OF CITATIONS (cont.)

Case Page

Skinner v. Oklahoma, ex rel., Williamson,

316 U.S. 535 (1942) 25

Smayda v. US.

352 F.2d 251 (9th Cir. 1965) ....... 22

Stanley v. Georgia,

894 U.S. 557 (1969)

State v. Barquet,

262 So.2d 431 (Fla. 1972) 22

Thornhill v. Alabama,

es eS Fe ee 7

US. v. Dellatia,

488 F.2d 1252 (2d Cir. 1970) Et 30

US. v. Langford,

315 F.Supp. 193 (Minn. 1970) «216, 24, 30

US. v. Lethe,

312 F.Supp. 421 (Cal. 1970) 16, 24, 30

US. v. Reidel,

402 U.S. 351 (1971) . et . 31, 32

US. v. Thirty-Seven Photographs,

402 U.S. 363 (1971) 31, 32

US. v. Vuitch,

402 U.S. 62 (1972) 22

>... STEELS IE ERIE IY EEL IS UBS AIG MESS SANE LPNS Ag

Vit

TABLE OF CITATIONS (cont.)

Case Page

Williams v. District of Columbia,

419 F.2d 638 (CADC 1969) .. 80, 31

Williams v. Illinois,

399 U.S. 285 (1970) eae Na

Williams v. Lee Optical,

348 U.S. 483 (1955) 38

Winters v. New York,

333 U.S. 507, 510 (1948) 8,12

OTHER AUTHORITIES

Alien and Sedition Acts ene ee 5

Bill of Rights, December 15, 1791 4,5

Doss & Doss On Moral, Privacy & The Constitution

25 Univ. Miami Law Review 395, 404 (1971) ... 28

Ervin, Hon. Sam J, Jr. “Laymans Guide to Individ-

ual Rights”, (D.N.C.) 3dEd. U.S. Printing

Office, Washington, D.C. (1972) 00. =

Glueck, “Unraveling Juvenile Delinquency” (1950) $2

Hart, Censorship: For & Against, p. 7 (1971) ......... 33

Hollis, “Criminal Law—Sexual« Offenses—Sodomy

—Cunnilingus”, 8 Natural Resources J. 531

(1968) 22

IX

OTHER AUTHORITIES (cont.)

Page

Johnson, Sodomy Statutes—A Need for Change,

18 SD L. Review 384 (1968) eo cesses 22

Kronitz: Fundamental Liberties of a Free People:

a — Press, ee pp. 345-361

(1957) . e 6

Laws of Vermont, 1824, Ch. XXIII, No. 1, Sec. 23 . 18

Note, Sodomy—Crime or Sin?

12 Univ. Fla. Law Review 83 (1959) 0... 22

Public Law, 90-100 (1967) ........... we

The Report of President’s Commission on Obscen-

ity and Pornography 8, 13, 14, 16, 18, 23,

33, 34, 35, 36, 37, 38

18 U.S.C., Section 1461 .... Bang 30

19 U.S.C., Section 305(a), 1305(a) 31

5 Stat., Geo. 4, C.88 salad 18

5 U.S. Stat. 566 (1842) 18

ES gk: | ene 19

72 Yale Law Journal, 877 (1962) 8, 12

79 Yale Law Journal, 209 (1969-70) 12,13

GAGS, REINA PREY Se OES: LEI E SS Oy ARC

;

in the

——- Supreme Court

of the

Gnited States

OCTOBER TERM, 1971

9. tS teal:

NO. 71-2315

HOWARD ALEXANDER, et al.,

Petitioners,

v8.

COMMONWEALTH OF VIRGINIA

Respondent.

On Writ of Certiorari to

The Supreme Court of Virigina

Joel Hirschhorn, Esq., Ralph J. Schwarz, Jr., Esq., and

Mel S. Friedman, Esq., on behalf of The First

Amendment Lawyers’ Association, as Amici

Curiae in Support of Petitioners.

2

Joel Hirschhorn is a member of the bar of the State

of Florida and of the United States Supreme Court. He

has been involved in litigation in both Federal and State

courts involving the issues presented by this Amici Curiae

Brief.

In accordance with the rules of this Court, consent

to the filing of a Brief Amici Curiae was sought and

obtained from attorneys for the Petitioners HOWARD

ALEXANDER, et al., and Respondent COMMON-

WEALTH OF VIRGINIA, and is being filed simultane-

ously with the Brief herein with the Clerk of this Court.

Mr. Hirschhorn has associated with him on this Brief

Ralph J. Schwarz, a member of the bar of this Court and

of the State of New York. Mr. Schwarz is presently in-

volved in litigation in both Federal and State Courts

involving the same issues presented here.

Also associated on this Brief is Mel S. Friedman, a

member of the bar of the State of Texas and of the

United States Supreme Court. Mr. Friedman has also

been involved in litigation in both Federal and State

Courts involving the same issues presented here.

Messrs. Hirschhorn, Schwarz, and Friedman have pre-

pared and presented this Brief on behalf of the First

Amendment Lawyers’ Association which consists of ap-

proximately seventy-five (75) attorneys practicing law

throughout all State and Federal courts in the United

States and who deal primarily with First Amendment and

related issues.

=

Amici have attempted to limit the issue presented to

a narrow issue dealing with a right of adults to receive

materials under the First Amendment. A brief historical

review of the development of the First Amendment is

presented in order that the Court can properly view the

complex question of the protection of the First Amend-

ment in light of the historical development of this right.

Considerable reference is made to The Report of the Com-

mission on Obscenity and Pornography prepared pursuant

to Public Law 90-100 and published by the United States

Government Printing Office, Washington, D.C.

3

ae Oaks Bi Car

=

4

ARGUMENT

WHETHER, UNDER THE FIRST AMEND-

MENT TO THE UNITED STATES CONSTITU-

TION, AN ADULT, PREVIOUSLY FORE-

WARNED, HAS THE ABSOLUTE RIGHT TO

BUY, SELL, RECEIVE, WRITE, PUBLISH,

DISTRIBUTE, DISSEMINATE AND/OR EX-

HIBIT HARD CORE PORNOGRAPHY AND

OBSCENE MATERIAL TO OTHER PREVI-

OUSLY FOREWARNED ADULTS PROVID-

ING THERE IS NO ASSAULT OR INTRUSION

UPON THE SENSIBILITIES OF OTHER NON-

INTERESTED ADULTS, NO PANDERING,

NOR JUVENILE INVOLVEMENT?

A. HISTORICALLY THE FIRST AMEND-

MENT PROTECTS PORNOGRAPHY AND

OBSCENITY.

The Amici contend that historically the First Amend-

ment to the United States Constitution was never in-

tended to deny protection to pornography and obscenity.

In short the Roth-Alberts conclusion that “obscenity is

not within the area of constitutionally protected speech

or press,” 354 U.S. 476, 485 (1957), is historically incorrect.

Like Mr. Justice Douglas, see Memoirs v. Massachusetts,

383 U.S. 413 (1966), 428-433 (concurring opinion, Mr. Jus-

tice Douglas), Amici contend that “obscenity” was not an

established exception to the First Amendment guarantee

of Free Speech and Press whey the Bill of Rights was

adopted in 1791.

DSS ee

5

During the fight for ratification of the United States

Constitution it became apparent that many prominent

colonialists were deeply troubled by the apparent sweep-

ing powers of the new Federal Government. These con-

cerns were met when, led by James Madison, twelve pro-

posed amendments were approved by Congress in Sep-

tember, 1789. Ten of these were ratified by the individual

States and on December 15, 1791, the “Bill of Rights”

became part of the United States Constitution. It is

significant to note that at the time of the enactment of

these amendments:

1. Only one colony, Massachusetts, had a statute

prohibiting “intemperance, immorality and profaneness”,

which was enacted in 1711; the first State statute pro-

hibiting commercial distribution of obscenity was enacted

in Vermont in 1821; the first Federal statute, was enacted

in 1842.

2. Lumped together with religion, Freedom of

Speech was clearly intended to be as absolute as the right

of one to choose his own form of religious worship.

38. The mandatory language of the First Amend-

ment, like that of the other nine amendments, make it

clear that absent overwhelming justification, the Free-

doms of Religion, Speech, Assembly and Petition are

absolute.

4, Only specific, narrow exceptions to these limita-

tions on the powers of the new Federal Government would

be permitted, such as criminal libel, and the Alien and

Sedition Acts. The reports of the First Congressional

debates regarding these proposed amendments are ap-

te pe aR aera LOtg ate CCT en eee

—

6

parently incomplete but inference is clear that the Bill of

Rights was intended to curb and not extend Federal (i.e,

Governmental) Powers, see Kronvitz, Fundamental Liber-

ties of a Free People: Religion, Speech, Press, Assembly,

pp. 345-361 (1957).

5. The First Amendment guarantee of Freedom of

Speech and Press was designed to insure absolute freedom

from governmental control of the newspaper and pub-

lishing industry in general, and was not intended as a

proscription against obscenity or pornography because

the publication of such material was not a secular crime

at Common Law in 1791, see Point C, infra.

Thus it is clear that the Roth-Alberts, supra, conclu-

sion of obscenity is not protected is incorrect, and ought

to be reversed.

B. OBSCENITY PER SE FALLS WITHIN

THE PROTECTION OF THE FIRST AMEND-

MENT.

As stated, Roth v. U.S., supra, held that obscenity

was outside the protection of the First Amendment based

on premises stated in that decision which Amici submit

on reconsideration are not constitutionally valid for either

the several States or the Federal Government. Indeed, it

is submitted there is no valid justification for the auto-

matic exclusion from First Amendment protection of a

form of expression called obscenity. In fact, and law, there

are compelling reasons consistent with the First Amend-

ment why it should not be excluded. Moreover, where the

exercise of First Amendment rights is claimed to be

abridged, it is the function of this Court to weigh the

iene

7

circumstances and appraise the substantiality of the rea-

sons advanced in support of such laws and regulations,

Thornhill v. Alabama, 310 U.S. 88, 95, 96 (1940). By

obscenity Amici refer, of course, to the material itself

or the obscenity per se on the assumption that the mode

of commercial distribution is such that only a willing,

consenting adult, who has been previously forewarned of

the contents is the purchaser or viewer. While the justifi-

cations advanced for the automatic exclusion of obscenity

tend to overlap they break themselves generally into three

categories.

The first justification for claiming that obscenity

is outside the pale of the First Amendment stems from

the fact that laws regulating profanity, blasphemy and

criminal libel had been deemed, especially in the early

stages of the formation of the Union, to be outside the

protection of the First Amendment. The essential rationale

underlying the justification for excluding such utterances

from First Amendment protection, as set forth in Beau-

harnais vy. Illinois, 343 U.S. 250, 256, 257 (1952), and

Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572

(1942), is that “fighting words” which, by their very ut-

terance, inflict injury or tend to incite an immediate

breach of the peace. By dicta, habit and automation

stemming, undoubtedly, from a lack of any real need to

focus on the issue, obscenity was always linked with the

profane and libelous utterance. However, the rationale

for the automatic exclusion of the profane and criminally

libelous utterance has been seriously undermined and

essentially overruled recently in Ashton v. Kentucky, 384

U.S. 195 (1966), Cohen v. California, 403 U.S. 15 (1971),

Cantwell v. Connecticut, 310 U.S. 296 (1940). Hence, the

justification for the automatic exclusion of obscenity must

ie

fall. Moreover, assuming any justification for the auto-

matic exclusion of criminal libel, a libel does inflict injury

because it is false and is not any step in the search for

truth because the libel by its very nature is false. A

picture of a man and woman engaged in coitus when

viewed by one who wants to view it does not inflict any

injury on the viewer and is not per se false.

8

The second justification for the automatic exclusion

of the obscene is the erroneous assumption that the First

Amendment protects only the expression of ideas, connot-

ing an intellectual communication. The First Amendment

however, protects every expression and communication be

it for purposes of entertainment, amusement, or fulfil-

ment of a person’s intellectual or emoticnal needs, and

regardless of its worth, and is not limited just to the

expression of an idea, Winters v. New York, 333 U.S. 507,

510 (1948), Hannegan v. Esquire, 327 U.S. 146 (1946),

see also 72 Y.L.J. 877, 879 (1962).

The third apparent justification is that the viewing

of obscenity leads to anti-social conduct and illegal be-

havior, and has an adverse impact on personality, and an

adverse moral impact. There is virtually no scientifically

accepted empirical data that obscenity or pornography

lead to any crimes of sexual violence or other anti-social

behavior as this Court has already recognized, Stanley

v. Georgia, 394 U.S. 557, at 566 nt 9 (1969). Indeed, the

data collected shows no causal relationship between

“obscenity” and any criminal conduct, see generally Re-

port of President’s Commission on Obscenity and Porno-

graphy and Point D, infra.

— ,

The argument that obscenity has an adverse moral

impact serves to emphasize the fact that obscenity does

indeed convey ideas (although presumably bad), other-

wise there would be no objection to it.

1 THE PROFANE AND LIBELOUS

FIGHTING WORDS EXCEPTION.

As stated above the automatic exclusion of obscenity

as being outside the penumbra of the First Amendment

sought to be justified is by analogy to the exclusion of the

profane and the libelous. Recently, however, the premise

underlying Chaplinsky, supra, has been denounced and

there is now no justification for the exclusion of the so-

called “obscene”.

In Cohen v. California, supra, the defendant was con-

victed of violating a section of a California Penal Code

which prohibited maliciously and willfully disturbing the

peace and quiet of any neighborhood or person by offen-

sive conduct. The defendant’s conduct consisted of wear-

ing a jacket in a Los Angeles, California, Courthouse which

bore the words “Fuck the Draft”. In common parlance,

these words would certainly be considered profane and

vulgar and as the Court observed, 403 U.S. 20, words “not

uncommonly employed in a personally provocative fash-

ion”. Despite the fact that these words are generally

regarded as profane, vulgar and used as an insult, the

Court held the conviction could not stand on the grounds

that while the use of the words was inherently likely to

cause violent reaction, it was not shown that the words

were directed at any one, and that the phrase in question

= te eae PE we eee 4

—— PRETTIEST ey a Rests

—

10

demonstrated defendant’s feelings. The case also demon-

strates a clear reve...» of the Chaplinsky principle.

In Ashton v. Kentucky, 384 U.S. 195 (1966), the peti-

tioner was convicted for committing the common law

crime of criminal libel. This Court held the statute in

question unconstitutional and reversed the defendant’s

conviction. In doing so, this Court relied in great part on

cases involving breach of the peace offenses and especially

Cantwell v. Connecticut, 310 U.S. 296 (1940), Cantwell

was convicted for breach of the peace for playing a

phonograph record, in a public place, which attacked

religion and the Catholic church in general. When a

listener objected Cantwell left. In Cantwell, supra at 309,

this Court pointed out that provocative language amount-

img to a breach of the peace has almost always consisted

of “profane, indecent or abusive remarks directed to the

person of the hearer’. In short then, this Court has

recognized in the case of the profanity and the criminal

libel that it is not just a matter of the public utterance

of the words per se but rather whether the words are

directed at a particular hearer under circumstances where

he cannot avoid them.

The profane and the criminal libel are not therefore

just automatically excluded from First Amendment pro-

tection. The States do not have the power to regulate such

utterances or the basis that they are automatically out-

side the protection of the First Amendment. The presump-

tion then that the so-called obscene is automatically

excluded from First Amendment protection must likewise

fall, for the justification for the automatic exclusion of

obscenity has stemmed from the automatic exclusion of

utterances which are ipso facto profane or libelous.

—

ll

Moreover, it is hard to understand the rationale for

the conclusion that the obscene and profane is outside the

First Amendment except that historically they had been

erroneously linked and that the “obscene” was bad and,

therefore, deemed aa insult. In addition, there is even

less basis for the automatic exclusion of the “obscene”

where purchased or viewed by a consenting forewarned

adult. There is absolutely no basis to conclude that such

utterances could inflict injury on such a consenting adult.

Amici’s position is strengthened by two recent de-

cisions of this Honorable Court, Gooding v. Wilson, 405

U.S. 518 (1972), and Rosenfeld v. New Jersey, __._ U.S.

—_—, 33 L.Ed.2d 321 (1972). In Rosenfeld, supra, this

Court vacated and remanded appellant’s conviction under

a New Jersey statute prohibiting the use of profane or

indecent language in a public place in light of Gooding,

supra, and Cohen, supra. In Rosenfeld, supra, appellant

had used the phrase “Mother Fucker” on four separate

occasions to describe the teachers, school board, the town,,.

and the United States of America, at a public school board

meeting attended by about 150 people, 25 of whom were

minors, and 40 of whom were women (and thus presum-

ably sensitive to such language). Even dissenting Justice

Powell recognized, however,

But our free society must be flexible enough to

tolerate even such a debasement provided it oc-

curs without subjecting unwilling audiences to

the type of verbal nuisance committed in this

case, 33 L.Ed.2d at 324.

a

2 THE FIRST AMENDMENT PROTEC-

TION IS NOT LIMITED TO THE EXPRES-

SION OF IDEAS AND FURTHER OBSCENITY

CONVEYS IDEAS.

12

This Court has recognized that the First Amendment

is not limited to the exposition of only popular ideas but

covers expressive matter commercially distributed even

though it is entertaining or vulgar, Winters vy. New York,

supra, 335 U.S. 507, 510 (1948), Hannegan v. Esquire, 327

U.S. 146, supra. In Cohen v. California, supra, 403 U.S. at

26 this Court recognized that an expression conveys “not

only ideas but otherwise inexpressible emotions as well”,

While the search for the truth through ideas is one

very critical basis for the First Amendment, it is not the

only basis. Clearly, the First Amendment protects non

verbal expession, see 72 Yale L.J. 877, 879, (1962).

The justification for excluding obscenity on the as-

sumption that the First Amendment protects only the

written or verbal expression of an idea is therefore not

accurate. Furthermore, this question of whether even

obscene expressive utterances (or publications) are to be

excluded on the grounds that such material conveys no

ideas itself refutes one of the justifications for excluding

obscenity. 79 Yale Law Journal 209, 211, 212, (1969-70).

One of the basis for excluding obscenity is allegedly

that it has a harmful moral impact and leads to the dis-

integration of the moral fibres Assuming this to be a

justification (though it is not) obscenity could not have

such an impact unless it did indeed present ideas and

—

13

stimulate argument and debate. 79 Yale Law Journal 211,

212, 216, (1969-70).

We live in a highly mobil, fragmented society with

woman’s equality a foregone conclusion, if not yet a

realty. The role of sex in society is a critical one. The

presentation of the so-called obscene forces people to

reevaluate their own attitudes on this subject. In fact,

even the so-called obscene aids in the never ending search

for the truth. The so-called obscenity reflects in major

part a change in attitudes about sex and is one factor

which helps people to evaluate and reevaluate their ideas

and attitudes about the roles of men and women and sex

attitudes in our ever changing society. The notion that

obscenity does not convey an idea is simply not true, 79

Yale L. J. at 215, 216. If pornography did not convey ideas

there would be no murmur (much less the hue and cry),

about its presentation to consenting adults.

8. THERE IS NO CASUAL RELATION-

SHIP BETWEEN PORNOGRAPHY AND

HARMFUL CONDUCT.

As stated, this Court has already recognized that

there is little, if any empirical evidence that obscenity

induces crimes of sexual violence, Stanley v. Georgia,

supra. There is no scientific basis for a presumption that

it induces violent conduct or crimes of any kind and

governmental studies have shown the contrary, see the

Report of the Commission on Obscenity and Pornography,

supra.

| ————

14

Thus, this Court has stated:

Criminal statutory presumptions must be re-

garded as irrational or arbitrary and hence un-

constitutional unless it can at least be said with

substantial assurance that the presumed fact is

more likely than not to flow from the proved

fact on which it is made to depend, Leary v.

United States, 395 U.S. 6, 89 S.Ct. 1532, 1548

(1969).

Of course, the most widely recognized exception to

the First Amendment is where the exercise of the Free-

dom of Speech and/or Press results in or creates a “clear

and present danger” to society or some segment thereof,

Schenck v. United States, __ U.S. __, 39 S.Ct. 247 (1919).

That is, will the exercises of the First Amendment in the

manner under review, “bring about the substantive evils

that Congress has a right to Prevent”? As asserted in

Schenck, supra, this question is one of “proximity and de-

gree”.

In light of the conclusions of the extensive studies,

(i.e. the Report of the Commission on Obscenity and

Pornography), done at Presidential request and govern-

mental expense, how can it be argued that obscenity and

pornography is not entitled to the protection of the First

Amendment? Assuming the conclusions of the Report to

be true, even hard core pornography has no harmful im-

pact on the recipient and thus creates no “clear and pres-

ent danger”. It follows therefore that there is no con-

stitutional justification for the continued governmental

repression and suppression of sexually oriented material.

15

This conclusion is even further strengthened by this

Court’s holding that:

The Government “thus carries a heavy burden

of showing justification for the imposition of

such a [i.e. prior] restraint”. New York Times

Company v. U. S. [Pentagon Papers Case] __

US. —, 91 S.Ct. 2140 (1971).

Neither the, States nor the Federal Governments can

sustain justifying prohibiting forewarned consenting

- adults from buying, selling, receiving, writing, publish-

ing, distributing, disseminating or exhibiting obscene ma-

terials to other consenting forewarned adults.

C. WHETHER FOREWARNED CONSENT-

ING ADULTS HAVE THE ABSOLUTE RIGHT

TO ENJOY FOR THEIR OWN PRIVATE PER-

SONAL ENTERTAINMENT AND/OR DE-

SIRE HARD CORE PORNOGRAPHY AND

OBSCENITY.

The rights guaranteed by the Constitution or

otherwise are not absolute rights in the sense

that they entitle a citizen to act in any way he

pleases. Rather he must exercise his rights in

such a way that the rights of others are not de-

nied. .. Honorable Sam J. Ervin, Jr. (D., N.C.)

“Layman’s Guide to Individual Rights Under

the United States Constitution,” 3rd Ed. (Gov-

ernment Printing Office, Washington, D. C.,

1972).

—

16

Assuming, arguendo, Senator Ervin’s remarks that con-

stitutional rights are not absolute, to be true, it is clear

that so long as one’s private acts do not disparage the

rights of others, this right (of privacy) is absolute. And,

if this Court accepts the conclusions of the Report of the

Commission on Obscenity and Pornography, infra, then

a forewarned consenting adult has the absolute right to

receive for his (or her) own private enjoyment or en-

tertainment, or use, even hard core sexually oriented

material of the most depraved and foul nature imagina-

ble, Stanley v. Georgia, 394 U.S. 557 (1969). Of course,

this absolute right to receive under the protective penum-

bra of the First and Ninth Amendments, Griswold v.

Connecticut, 381 U.S. 479 (1965), is meaningless unless

some other adult (individual or corporate) has the abso-

lute right to offer for sale or exhibition the materials

necessary to meet this right receive, U. S. v. Langford,

315 F.Supp. 193, (Minn. 1970), and U. S. v. Lethe, 312

F.Supp. 421 (Cal. 1970).

Amici’s position stated simply is that:

1. The right to buy, receive, write, publish, dis-

tribute, disseminate, sell, or exhibit hard core porno-

graphic and obscene material was protected, at Common

Law, from secular courts.

2. The Ninth Amendment to the Constitution pro-

tects and preserves for the people all rights they enjoyed

prior to the enactment of the United States Constitution.

3. Present case law protects and preserves private

sexual acts of consenting adults.

—

17

4. Both the Fourteenth Amendment equal protec-

tion of the laws clause and Stanley v. Georgia, supra, pro-

tects the right to receive and the collateral right to sell

or exhibit hard core pornography and obscene materials

provided of course there is no pandering, juvenile involve-

ment, nor intrusion upon the sensibilities of unwilling

adults. Amici will treat each of these four arguments

separately.

1, THE COMMERCIAL PUBLICATION,

DISTRIBUTION, SALE AND/OR EXHIBI-

TION OF OBSCENE MATERIAL WAS NOT A

CRIME, AT COMMON LAW, PUNISHABLE

BY SECULAR COURTS.

The crime of publishing, distributing, selling, and/or

exhibiting obscene material is of recent vintage. Some

eighty-three (83) years prior to the enactment of the

First Amendment, the Star Chamber held in a per curiam

opinion, that:

A crime that shakes religion (a), as profane-

ness on the stage, & c. is indictable (b); but

writing an obscene book, as that entitled “The

Fifteen Plagues of a Maidenhead,” FPM, is not

indictable but punishable only in the Spiritual

Court (c). Queen v. Read, Case No. 205, Michael-

mas Term, 6 Queen Anne, §.C., 2 Stra. 789, 11

Mod. Rep. 142 (1708).

Subsequent British Decisions punished, initially, “obscene

libel”, King v. Curl, 2 Stra. 788 (1727); but it was not

until 1824 that a statute was enacted in England per-

mitting secular prosecution for a public exposure of ob-

— PERMIT MD RNAGAR AT

a

18

scene material, 5 Stat. Geo. 4, C. 88. Thus, at the time of

the enactment of the Ninth Amendment, obscenity, (i.e.,

eroticism sans blasphemy), was not a crime in England.

Moreover, only one colony, Massachusetts, had a stat-

ute prohibiting commercial obscenity prior to 1791, (this

statute was entitled “an act against intemperance, im-

morality, and profaneness, and in reformation of man-

ners”). The other colonies left the question of obscenity

to the Spiritual Courts. The first state to enact a statute

prohibiting commercial distribution of obscenity was Ver-

mont in 1821, Laws of Vermont, 1824, Ch. XXIII, No. 1,

Section 23. And, it was not until twenty-one (21) years

thereafter that Congress enacted its first law prohibit-

ing the introduction of obscene material into the United

States, 5 U.S. Stat. 566 (1842).

The Report of the Commission on Obscenity and

Pornography, at page 297-298, traces the history of the

merger of religious profaneness, blasphemy and obscenity.

The conclusion is inescapable that when Read, supra, was

acquitted in 1708 for writing the sexually obscene book,

“The Fifteen Plagues of a Maidenhead”, because the book

libeled no one, did not attack the Government of England,

and was not blasphemous, the matter was one best left

to the “Spiritual Court”.

The Ninth Amendment of course provides that:

The enumeration in the Constitution of certain

rights, shall not be construed to deny or dispar-

age others retained by the people.

bale il lea

19

In essence, the Ninth Amendment means that whatever

rights the people had at Common Law were retained by

the people despite the ratification of the United States

Constitution in 1789. The next step then is both logical

and simple. If, at Common Law, a person had the right

to write, without being punished, a sexually obscene book,

c.f. Read, supra, then this right survived the enactment

of the United States Constitution and the Amendments

thereto. It is elemental that statutes in derogation of

Common Law are to be strictly construed. Thus the as-

sumption that “obscenity is not protected,” is erroneous

and must fall.

2. THE NINTH AMENDMENT RIGHT OF

PRIVACY PROTECTS AND PRESERVES

THE RIGHT TO RECEIVE, OR VIEW, EVEN

HARD CORE PORNOGRAPHY.

The Ninth Amendment, does not, per se, grant “sub-

stantive” rights. Rather, this, until recently little under-

stood, Amendment preserves a basic right of man, the

right of privacy. While at one time there appeared to

be a great disagreement as to precisely what the Ninth

Amendment meant, Garvey, Unenumerated Rights—Sub-

stantive Due Process, the Ninth Amendment, and John

Stuart Mill, 1971 Wisc. L. Rev. 992, 928-932, this Court’s

opinion in Griswold v. Connecticut, 381 U.S. 479 (1965),

may well have laid the intellectual and academic debate

to rest.

In essence, Griswold, supra, held that the right of

privacy, “between consenting married adults”, is pro-

tected against State invasion, by the First Amendment

when read with the other Amendments. The “penumbra

— aE

oa

of rights” elucidated in Griswold, has of course been re-

affirmed, most recently by this Court in Eisenstadt y.

Baird, __. U.S. _, 92 S.Ct. 1029 (1972). The question of

whether this “right of privacy” is absolute or not is an-

swered simply by the observation that individual liberties

ought to be limited only when they are in conflict with the

rights of others, Public Utilities Commission v. Pollak, 343

U.S. 451 (1952); and after all, that is precisely the propo-

sition for which Redrup v. New York, infra, stands.

Stanley v. Georgia, supra, makes it clear that a man’s

home is the private castle in which he may, for his own

personal wishes, enjoy hard core pornography. The “right

of privacy” is more than a physical dwelling, however, it

is the “privacy of thought,” pure or otherwise, provided

no one else is harmed. Our democracy functions, in large

part, because we enjoy freedom of thought and access to

even unpopular ideas. The Ninth Amendment protects

this right. This Court must preserve that right and make

it meaningful. If Rich Stanley, supra, has his right of

privacy, so must everyman.

8. THE PRIVATE, SEXUAL ACTS AND

CONDUCT, OF FOREWARNED ADULTS,

ARE PROTECTED UNDER THE FIRST,

FIFTH, NINTH AND FOURTEENTH AMEND-

MENTS.

It is not the function of our laws to impose a moral

code; moreover, no immoral conduct, no matter how

rehensible ought to be a basis for a criminal law unless

the conduct is harmful to others, or self-destructive. The

manner in which an adult conducts his own private affairs

in life is his own personal matter. This right to be free

———_——

21

has been articulated by Mr. Justice Brandis in his now

famous dissenting opinion in Olmsted v. United States,

277 U.S. 438 (1928), quoted with approval in Stanley v.

Georgia, supra:

The makings of our Constitution undertook to

secure conditions favorable to the pursuit of hap-

piness. They recognized the significance of man’s

spiritual nature, of his feelings and of his in-

tellect. They knew that only a part of the pain,

pleasure, and satisfactions of life are to be found

in material things. They sought to protect Ameri-

cans in their beliefs, their thoughts, their emo-

tions, and their sensations. They conferred, as

against the Government, the right to be let alone

— the most comprehensive of rights and the right

most valued by civilized men. [Emphasis added.]

This right to be free has of course been expanded con-

siderably since Griswold, supra, which of course dealt with

the right of married adults to receive birth control de-

vices and/or counseling; c.f. Eisenstadt, supra, which de-

clared unconstitutional a Massachusetts statute which per-

mitted married persons to obtain contraceptives to prevent

pregnancy, but prohibited distribution of contraceptives

to single persons for the same purposes. This Court in

Eisenstadt, supra, went on to assert that:

If the right of privacy means anything, it is

the right of individual, married or single, to be

free from unwarranted Governmental intrusion

into matters so fundamentally affecting a per-

son as their decision whether to bear or beget a

child. See Stanley v. Georgia, 394 U.S. 557, 89

22

S.Ct. 1248, 22 Lawyers Ed.2d 542 (1969). See also

Skinner v. Oklahoma, ex rel., Williamson, 316

U.S. 5858, 62 S.Ct. 1110, 86 Lawyers Ed. 1655

(1942) ; Jacobson v. Massachusetts, 197 U.S. 11,

29, 25 S.Ct. 358, 362, 49 Lawyers Ed. 643 (1905),

92 S.Ct. 1088, [footnotes omitted].

In addition to the problems of birth control decided in

Griswold, supra, and Eisenstadt, supra, much litigation

and legal scholarship have centered on the problems of

others and their private sexual conduct. For example with

respect to Sodomy, see Hollis, “Criminal Law—Sexual

Offenses —-Sodomy — Cunnilingus, 8 Natural Resources

J. 581(1968); Johnson, Sodomy Statutes—A Need for

Change, 13 S.D.L. Review, 384 (1968); Note, Sodomy —

Crime or Sin?, 12 University Fla. Law Review, 88 (1959),

and also Cotner v. Henry, 394 F.2d 873 (1968) ; Abortion,

United States v. Vuitch, 402 U.S. 62 (1972), and State v.

Barquet, 262 So.2d 431 (Fla. 1972), and the cases cited

therein, as well as People v. Belous, 80 Cal. Rptr. 354, 458

P.2d 194 (1969) ; Homosexual Activities, Smayda v. United

States, 352 F.2d 251 (9th Cir. 1965). All of these cases have

one common thread, like Stanley, supra, the question in-

volved is a moral, not legal one.

Thus the basic question of the function of the law

is raised. In the famous English Wolfenden Report of

1957, the authors concluded that:

It is not ... the function of law to intervene

in the private lives of citizens or to seek to en-

force any particular pattern of behavior, Wolf-

enden Report at 9-10.

ee Oa

23

Moreover, it is the function of the courts, if they are to

protect individual liberties from Governmental encroach-

ment to independently evaluate data with reference to

the society in which the courts function, cf. Doss &

Doss, “On Moral, Privacy and the Constitution,” 25 Univ.

Miami Law Review 395, 404 (1971). Thus the Report of

the Commission on Obscenity and Pornography and its

conclusions with respect to private acts between consent-

ing adults becomes significant when tested by the right

of privacy.

Amici contend that the right to buy, sell and com-

mercially distribute and/or exhibit hard core pornography

is as protected as the woman’s right to choose to bear

children, and to freely choose one’s own sex partner,

provided there is no pandering, intrustion, or juvenile in-

volvement. What man, what justice, what court can tell

another man what to read, view, or think about in the

privacy of his own thoughts?

4. FEDERAL AND STATE LEGISLATION

WHICH SEEK TO PROHIBIT COMMERCIAL

DISSEMINATION OF HARD CORE PORNOG-

RAPHY VIOLATE THE EQUAL PROTEC-

TION CLAUSE OF THE FIFTH AND FOUR-

TEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

Amici contend that obscenity legislation has a dis-

criminatory affect under the Fifth and Fourteenth Amend-

ments to the United States Constitution for which neither

the Federal nor various State Governments have a rational

basis. It is elementary that the Fifth and Fourteenth

Amendments’ Equal Protection Clauses prohibit the Fed-

ag

24

eral and State Governments from enacting legislation

which unreasonably and/or arbitrarily discriminates

against one identifiable group or individually in favor of

another, Reed v. Reed, USS. , 92 S.Ct. 251 (1971).

This Court in Stanley v. Georgia, supra, gave protec-

tion to obscene materials found in the sanctity, (and

privacy), of the home. The result of this case coupled with

obscenity legislation against public exhibition and dis-

tribution gave to the rich man who could afford to pur-

chase (even) obscene materials the right to view same

in his home while the poor person was precluded entirely

from such conduct. The less fortunate could neither afford

the initial purchase nor in the case of movies the para-

phanalia which are necessary for private exhibition. Thus

the poor Stanley, who is denied the right to view this

material at a movie theatre, or book store, is by opera-

tion of law being discriminated against contrary to the

Fifth and Fourteenth Amendments see U.S. v. Langford,

supra, and US. v. Lethe, supra.

This Court has most recently held in Mayer v. Chi-

cago, __ U.S. ___, 92. S.Ct. 410 (1971), that a transcript

could not be denied in a criminal case where a fine was

imposed merely because the defendant could not afford

to pay for the transcript. This Court stressed:

The invidiousness of the discrimination that

exists when criminal procedures are made avail-

able only to those who can pay is not erased by

any differences in the sentences that may be im-

posed. (Emphasis added.) ‘

—

Cf. Argersinger v. Hamlin, U.S. Supreme Court Case

No. 70-015, ___. U.S. ____, 11 Cr.L. 3089 (June 12, 1972).

25

A similar situation arose in Williams v. Illinois, 399

U.S. 235 (1970), where this Court found an impermissible

discrimination, resting on ability to pay, which existed

when the aggregate imprisonment exceeds the maximum

period fixed by statute and results directly from an in-

voluntary nonpayment of a fine or court cost. See also

Boddie v. Connecticut, 401 U.S. 371 (1971), Mr. Justice

Douglas concurring, where indigents were denied equal

protection of the laws in that they could not obtain di-

vorees because of the expenses necessary to gain access

to the courts.

Amici would further contend as emphasized above

that a fundamental right is involved and thus both the

Federal and State Governments must demonstrate an

overriding and compelling interest to justify the discrim-

ination. In Skinner v. Oklahoma, 316 U.S. 535 (1942),

the court found marriage and procreation to be funda-

mental rights and further that the State showed no

compelling State interest to justify sterilization of certain

convicted felons and not others.

In Shapiro v. Thompson, 394 U.S. 618 (1868), this

Court was faced with the constitutionality of waiting

periods, i.e., residency requirements, for welfare recipi-

ents. This Court held:

Thus, even under traditional equal protection

tests a classification of welfare applicants accord-

ing to whether they have lived in the state for

one year would seem irrational and unconsti-

a SNe ree

ages

tutional. But of course the traditional criteria

do not apply in these cases. Since the classifica-

tion here touches on the fundamental right of

interstate movement, its constitutionality must

be judged by the strictest standard of whether

it promotes a compelling State interest. Under

this standard the waiting period requirement

clearly violates the Equal Protection Clause.

Neither the Federal nor State Legislatures can show a

compelling interest to justify why a poor person is de-

prived access to the same erotic material a rich man can

easily view in the comfort of his own home. A review of

Stanley v. Georgia, supra, and its background makes this

proposition the next logical step.

In Stanley, the United States Supreme Court specif-

ically held that the First and Fourteenth Amendments

protect private possession of obscene press materials. Thus,

inherent in the right to possess is the right to receive.

Said the Court in Stanley:

(3, 4) It is now well established that the Con-

stitution protects the right to receive information

and ideas. This freedom (of speech and press)

... necessarily protects the right to receive

... Martin v. City of Struthers, 319 U.S. 141,

143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943); see

Griswold v. Connecticut, 381 U.S. 479, 482, 85

S.Ct. 1678, 1680, 14 L.Ed.2d 510 (1965); Lamont

v. Postmaster General, 381 U.S. 301, 307-308, 85

S.Ct. 14938, 1496-1497, 14 L.Ed.2d 398 (1965)

(Brennan, J., concurring) ; c.f. Pierce v. Society

of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed.

—

27

1070 (1925). This right to receive information

and ideas, regardless of their socialworth, see

Winters v. New York, 333 U.S. 507, 510, 68 S.Ct.

665, 667, 92 L.Ed. 840 (1948), is fundamental to

our free society, 394 U.S. at 564.

It is interesting to note that in Stanley particular reliance

is placed upon the opinions in Martin v. City of Struthers,

$19 U.S. 141, 68 S.Ct. 862, 87 L.Ed. 1313, and Griswold v.

Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510,

two cases which emphasize the First Amendment right to

receive all media of expression. In Martin, Mr. Justice

Black, speaking for the Court, said:

The right of freedom of speech and press has

broad scope. The authors of the First Amend-

ment knew that novel and unconventional ideas

might disturb the complacent, but they choose to

encourage a freedom which they believe essential

if vigorous enlightenment was ever to triumph

over slothful ignorance. This freedom embraces

the right to distribute literature, . . . and neces-

sarily protects the right to receive it. The priv-

ilege may not be withdrawn even if it creates

the minor nuisance for a community of cleaning

litter from its streets . . . Freedom to distribute

information to every citizen wherever he desires

to receive it is so clearly vital to the preserva-

tion of a free society that, putting aside reason-

able police and health regulations of time and

manner of distribution, it must be fully pre-

served, 319 U.S. at 143, 146-147 [emphasis added].

_— CEE MIE CPE ATEN RETIN eR FOR

28

In Griswold v. Connecticut, Mr. Justice Douglas,

speaking for the Court, said:

... The State may not, consistently with the

spirit of the First Amendment, contract the

spectrum of available knowledge. The right of

freedom of speech and press includes not only the

right to utter or to print, but the right to dis-

tribute, the right to receive, the right to read

. . -and freedom to teach. . . indeed the freedom

of the entire university community ... with-

out those peripheral rights the specific rights

would be less secure, 381 U.S. 482, 483, [emphasis

added].

In Lamont v. Postmaster General, quoting Justice

Brennan’s concurring opinion, 381 U.S. 301, 308 (1965)

(which was cited in Stanley):

The right to receive publications . . . is a funda-

mental right. The dissemination of ideas can

accomplish nothing if otherwise willing ad-

dresses are not free to receive and consider

them. It would be a barren market place of ideas

that had only sellers and no buyers.

The entire opinion and reasoning of the Supreme

Court in Stanley take on the broader dimension of “mere

private possession.” It is true that the facts of Stanley

involve a seizure of obscene materials from Stanley’s bed-

room but the language of the opinion clearly suggests

that States have no business under the First and Four-

teenth Amendments of the United States Constitution to

SOT DRL ils LA. AED

29

attempt to regulate the moral contents of a person’s

thoughts. This Court unequivocably held:

Whatever the power of the State to control

public dissemination of ideas inimical to the pub-

lic morality, it cannot constitutionally premise

legislation on the desirability of controlling a

person’s private thoughts. ... The State may no

more prohibit mere possession of obscenity on

the ground that it may lead to anti-social con-

duct than it may prohibit possession of chemis-

try books on the ground that they may lead to

the manufacture of homemade spirits.....

Finally we are faced with the argument that

the prohibition of possession of obscenity is a

necessary incident to statutory schemes prohibit-

ing distribution .... we are not convinced that

such difficulties exist, but even if they did we

do not think that they would justify infringe-

ment of the individual’s right to read or observe

what he pleases. .. . 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. As we have said,

the States retain broad power to regulate ob-

scenity; that power simply does not extend to

mere possession by the individual in the privacy

of his own home, 394 U.S. at 566-568 (emphasis

added).

Clearly, by its reliance upon cases involving distribution

and receiving of expression, Martin, Griswold, Lamont,

and others, Stanley also stands for the proposition that

inherent in the right to possess is also the right to receive.

cpt ae ona

ery nee napa LLL IONE EASON: TON RE NE Ra II

7

Several lower courts \have already expressed the

view Amici press instanter, for example, in United States

v. Lethe, supra, that court held, “that a person has a con-

stitutional right to buy or receive obscene material.” 312

F.Supp. at 424. The court went on to state that:

30

The final step is not difficult. Can it be reason-

ably argued that although the government may

not directly prevent someone from buying a book,

it may achieve the same result indirectly by

making it a crime to sell the book to him? I

think not, unless the Government can demon-

strate it has some substantial interest in pre-

venting the sale other than keeping the

purchaser from buying, 312 F.Supp. at 424.

Similarly United States v. Langford, supra, held that

in the absence of Redrup v. New York, 386 U.S. 767 (1967)

proscriptions, that even though materials are hard core

pornography, “accepting the major premise in Stanley v.

Georgia as the law, the logic of the Lethe case and the

result it reaches seem unassailable,” 315 F.Supp. at 194.

The Second Circuit Court of Appeals likewise has

come to a similar conclusion in United States v. Dellatia,

433 F.2d 1252 (2d Cir. 1970). There appellant’s conviction

for a violation of 18 USC, Section 1461 was reversed based

in large part on Stanley v. Georgia, supra, and the addi-

tional fact that the Government had failed to show a

compelling interest, i.e., Redrup type conduct. Similarly

the United States Court of Appeals for the District of

Columbia has held in Williams v. District of Columbia,

419 F.2d 688 (CADC 1969), that:

#

*

:

%

i

31

“,.. That the State has no ‘right to protect the

individual’s mind from the effects of obscenity’

simply because it wishes ‘to control the moral

conduct and content of a person’s thoughts.’ This,

the court said, would be inconsistent with the

‘philosophy of the First Amendment,’ ” 419 F.2d

at 645.

It would serve no useful purpose to supply additional

eases of either Federal or State courts in which great

reliance was placed on Stanley v. Georgia, supra. From

the time Stanley v. Georgia, supra, was decided until this

Court rendered its opinions on May 3, 1971, in both United

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

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

natural assumption by legal scholars and judicial officers

as well as exhibitors and disseminators of allegedly ob-

scene material, was that the logical extension of Stanley

would permit consenting adults in nonobtrusive circum-

stances to purchase and/or exhibit even hard core por-

nography. This Court, of course, foreclosed, apparently,

this logical extension in holding that the use of the United

States mails to distribute admittedly obscene materials

was conduct which would be punished by appropriate crim-

inal process, (Reidel); and further that the Tariff Act

of 1930, Section 305(a), 19 USC, Section 1305(a) and re-

lated sections, were constitutional and did permit the

seizure upon reentry into the United States’ borders of

admittedly obscene material, even though these materials

were intended solely for private use, (37 Photographs).

Amici contend of course that the issue of the right of the

Federal Government to prohibit of in commerce in ob-

scene material is separate and apart from the underlying

philosophy and scope of Stanley v. Georgia. It seems clear

ERI. BATSON fn EATS oP EL Rye phe) ay SET Pre PSNR

==

that in retrospect that both Reidel, supra, and Thirty.

Seven Photographs, supra, fly in the face of Stanley y,

Georgia, and the latter is far more consistent with both

the historical and modern concept of the First Amend-

ment, especially when tested by the Fifth and Fourteenth

Amendments.

For this Court to hold otherwise would be to give to

the citizens and residents of the United States an empty

right under Stanley v. Georgia, supra. For, the right to

receive in the privacy of one’s own home, even hard core

pornography, is meaningless unless one also has the col-

lateral right to purchase such material. Obviously some-

one must have the right to sell or exhibit this material in

order for Stanley, supra, to be available to the poor man

as well as the rich.

32

D. IN THE ABSENCE OF EMPIRICAL

DATA SUPPORTING THE ASSUMPTION

THAT OBSCENE MATERIAL IS HARMFUL,

THERE IS NO RATIONAL BASIS TO MAKE

CRIMINAL THE BUYING, SELLING, RE-

CEIVING, PUBLISHING, DISTRIBUTING, OR

EXHIBITING OF SEXUALLY EROTIC MA-

TERIALS TO ADULTS FOREWARNED OF

ITS NATURE.

Law in any field, to be adequate and sound must

rest on facts. It must grow out of experience.

Thus research designed to make systematic in-

vestigations into human experience becomes in-

dispensable to the healthy growth of the law.

Erwin N. Griswald, Dean, Harvard Law School;

Foreward in Unraveling Juvenile Delinquency,

by Glueck, 1950.

33

The United States Congress found traffic in ob-

scenity and pornography to be of national interest and

further found that the Federal Government had a re-

sponsibility to investigate the gravity of the situation

and to determine whether such materials are harmful

to the public, and particularly to minors, and whether

more effective methods should be devised to control the

dissemination of such material. The Commission on Ob-

scenity and Pornography was established by Public Law

90-100 (1967).

Ironically,

Before the findings of the commission were ac-

tually published, it was revealed that this body

had drafted a report which was in direct con-

travention to what its sponsors believed such a

commission would urge. Censorship: For and

Against, Hart, pp. 7 (1971).

In, The Report of the Commission on Obscenity and

Pornography, hereafter referred to as the Report, the

Commission set forth the results of its study, and its vari-

ous conclusions and recommendations, all of which were

derived from the extensive socio-scientific study under-

taken.

The focal point of the Commission’s decision was that

no social justification exists for the retention or enact-

ment of broad legislation prohibiting the consensual

distribution of sexual materials to adults and that the

primary area of public concern was the thrusting of offen-

sive materials upon unwilling recipients and the fear

that these materials might be distributed to minors. The

34

Commission concluded that these two areas could be regu-

lated effectively by legislative prohibitions, Report at 42.

43.

The Commission’s conclusion was based on several

considerations, First:

Extensive empirical investigations, both by the

Commission and by others, provides no evidence

that exposure to or use of explicit sexual mate-

rials play a significant role in the causation of

social or individual harms, such as crime, delin-

quency, sexual or non-sexual deviancy or severe

emotional disturbances. Report at 52 (and 56).

One study for example showed that eighty (80) percent

of the social-psychiatric clinicians consulted reported that

they never encountered a case in which “pornography”

appeared to be a factor in producing anti-social sexual

behavior. The study also found that eighty-four (84)

percent of the psychiatrists and psychologists disagreed

with the statement “persons exposed to pornography are

more likely to engage in antisocial sexual acts than per-

son’s not exposed,” Report at 161. The Commission in fact

added that analysis of the United States Crime rates do

not support the thesis of a causal connection between the

availability of erotica and sex crimes among either juve-

niles or adults and that studies showed that adult sex

offenders are not significantly different from other adults

in exposure or in reported arousal or reported likelihood

of engaging in sociosexual behavior following exposure to

erotica, Report at 242.

35

It should further be noted that the limited amount

of information concerning the effects of sexually ex-

plicit materials on children was a factor which led the —

Commission however to be restrictive in the area of

minors.

A second consideration upon which the Commission

reached its conclusion was that public opinion in America

did not support the imposition of legal prohibitions on the

right of adults to read or see explicit sexual materials.

The majority of the American people presently are of the

view that adults should be legally able to read or see ex-

plicit sexual materials if they wish to do so, Report at

43, 58.

eee

Further findings were the fact that studies showed

that explicit sexual materials are sought as a source of

entertainment and information by substantial numbers of

American adults, society’s attempts to legislate for adults

in the area of obscenity have not been successful and are

extremely unsatisfactory in their practical application;

and the fact that expenditures of considerable law en-

forcement resources are involved where there appears no

justification to support these expenditures, Report at

52-53.

——EEee er eS

Finally and of great importance to the Commission

was:

The spirit and letter of our constitution tell us

that government should not seek to interfere

with these rights (press and speech) unless a

clear threat of harm makes that course impera-

tive. Moreover, the possibility of the misuse of

tel

FOES BRE NEI ITN, EES TR cepae,

—

36

general obscenity statutes prohibiting distribu-

tion of books and films to adults constitute a

continuing threat to the communication of ideas

among Americans — one of the most important

foundations of our liberties, Report at 54.

The Legal Panel of the Commission did an in depth

and extremely comprehensive report of the legal history

of obscenity decisions, Report at 293-369.

Of utmost importance is the Commission discussion

of Roth v. United States, 354 U.S. 476 (1957), and sub-

sequent cases. The Commission found that the Roth,

supra, case held that prohibition upon the distribution of _

obscene material to consenting adults to be constituted —

without reliance upon authoritative findings or conclu-

sions regarding the social effects of such material, Report |

at 357.

The Commission went on to say to 358:

Developments since the Roth decision have sug-

gested both practical and constitutional doubts

about appropriateness of its conclusion that dis-

tribution of “obscene” materials to consenting

adults may constitutionally be broadly prohibited

without reference to considerations of social

harm. These developments have been in three

areas: (a) The enormous practical difficulties

under Roth of meaningfully defining what is

“obscene” for consenting adults and of fairly

applying such definitions in legal proceedings;

(b) changing public opinion regarding the need

for and the wisdom of prohibiting distribution

37

of sexual materials to consenting adults; (c) De-

veloping constitutional doctrine holding that free

expression guarantees apply to “obscene” ma-

terials in at least some adult contexts.

The Commission went on to discuss all of the above

points and put special emphasis on the Constitutional

issues stating; at 358-359:

The fundamental premise of Roth — that pro-

tections accorded to speech by the Constitution

are wholly inapplicable to “obscene” material —

was apparently rejected by the Supreme Court

in 1969 in Stanley v. Georgia. There the court

indicated that, even where material is “obscene”,

the individual citizen nevertheless has a consti-

tutionally protected right, if he so wishes, to

read or view such material at least in his own

home. Obscenity prohibitions which interfere

with this right appear to require the support of

; a sufficient governmental interert. The protec-

; tion of juveniles from exposure to obscene

i materials and the protection of individual sensi-

bilities against materials involuntary thrust upon

persons who do not wish to see them were rec-

ognized in Stanley as legitimate governmental

concerns. On the other hand, Stanley appears to

have held that government may not rest pro-

hibitions upon what consenting adults may read

or view upon a desire to contro] their morality,

or upon a desire to prevent crime or antisocial

behavior, at least, in the absence of a solid em-

pirical foundation. [Emphasis added.]

BES RARE OS gs. SE PRAMS: SE EO SOR SRE

38

The areas where a rational! basis for legisiation pro-

hibiting explicit sexual materials exists was stated in

Redrup v. New York, 386 U.S. 767 (1967). These include

situations where minors are involved, or where materials

are thrust upon persons who do not wish to see them, or

where pandering to non-consenting adults or juveniles

has taken place. In fact it is these situations which the

Commission felt should be regulated, Report at 56-62.

It is beyond question that both the State and Federal

Governments must have a rational basis for enacting

legislation, Williams v. Lee Optical, 348 U.S. 488 (1955);

c.f. Leary v. U. S., supra. No rational basis exists for

having obscenity prohibition legislation where consenting

adults are involved. This was clearly shown by the Re

port. The circumstances in Buck v. Bell, 274 U.S. 200

(1927), should be informative to this court in deciding

the Constitutional issues involved instanter. In Bell, a

Virginia statute allowed sterilization of feeble minded

persons after very strict procedures were followed. This

court found a rational basis for the statute as there was

scientific evidence that such disease is hereditary. In-

stanter, no evidence can be adduced to show a rational

basis for obscenity statutes relating to consenting adults

as none exists. Thus, such legislation is truly in violation

of the Fifth and Fourteenth Amendments.

To permit the First Amendment to be eroded without

constitutional basis because of some unpopular sentiment

toward the expression iavolved will result in the crea-

tion of numerous additional exceptions to that Amend-

ment which will lead to the eventual destruction of this

most important and time honored right.

39

CONCLUSION

Amici respectfully submit that this Court must hold

that the First Amendment absolutely protects the right

of a previously forewarned adult to buy, sell, receive, write,

publish, distribute, disseminate and/or exhibit even hard

core pornography and obscene material provided there is

no assault or intrusion upon the sensibilities of other non-

interested adults, no pandering, and no juvenile involve-

ment. The Constitution of the United States, and the

First Amendment thereto, stands as a bar against any

limitation upon the right of adults to read or view sexually

explicit material. The State and the Federal Govern-

ments’ concern is properly limited to the dissemination of

such material only where there is an assault or intrusion

upon the sensibilities of other non-interested adults, pan-

dering, or juvenile involvement.

Respectfully submitted,

JOEL HIRSCHHORN,

RALPH J. SCHWARZ, JR.,

MEL S. FRIEDMAN,

Amici Curiae.

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40

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 6th day of October,

1972, copies of the above and foregoing were mailed,

postage prepaid, to all attorneys of record; I FURTHER

CERTIFY that all copies required to be served herein

have been served.

JOEL HIRSCHHORN,

Amicus Curiae