# Petition — Missouri v. All Star News Agency, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1160%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 949 ## Text ag hg me ie to oO: a OCT 27 1979 eo nated . n> om em A I ee ee ee ee ’ ee ee AT Theatre I v. Slaton, 413 U.S, 49, 73, 74, 93 S.Ct., 2628, 2642, 37 L.Ed.2d 446 (1973) (Brennan, J .. dissenting). For me, the problem of regulating obscenity involves an attempt to reconcile two competing interests: the right to speak freely and the right to privacy. The right to speak freely needs no explication from me. It is the favorite of all libertarians and has properly dominated the thinking of our people throughout the history of our Nation. The right to enjoy life (from which the right to privacy derives) has not received the literary attention it deserves. In December, 1890, Samuel D. Warren and Louis D. Brandeis noted that “in very early times, the law gave a remedy only for physical interference with life,” but that later “there came a recognition of man’s spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life,—the right to be let alone * * *.” Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890). Nearly thirty-eight years later, in different context, Mr. Justice Brandeis re- ferred to “the right to be let alone—the most comprehen- sive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). - How does all of this relate to obscenity? In my view, unsolicited obscenity is an assault on the spiritual nature, the feelings and the intellect of the individual. It is an assault on the right to privacy. It is an assault on the right to be let alone. When a person is exposed to ob- Scenity involuntarily, it violates “the right most valued by civilized men.”’ <= eww r+ A8 In my view, when obscenity is at issue, and a choice must be made between the right to speak freely and the right to privacy—the right to be let alone, the right to speak freely must yield. If such concept were adopted, I would anticipate the following results: (1) that obscenity would be protected by the First Amendment and that the right to communicate obscenity to prior consenting adults would be absolute. The right to be let alone can be waived and would be waived by prior consenting adults. (2) that although obscenity were protected by the First Amendment, the right to communicate obscenity would be accommodated to the right of persons generally not to be exposed to it—to be let alone. This would give recognition to an overriding concern where state interests of protecting children and unconsenting adults were in- volved. See Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). (3) that a new definition of obscenity would be adopted. If it were estavlished law that the freedom to communicate obscenity to prior consenting adults is abso- lute, a definition of obscenity which would fully serve state interests of protecting children and unconsenting adults would seem appropriate. Certainly, limiting pro- scriptions of offensive material to hard-core pornography would be grossly inappropriate. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). (4) that the essential problem in obscenity cases would shift from one of defining “obscenity” to one of defining “prior consent.” Hopefully, this problem would prove less intractable. Fm mm ee A SS ~~ ‘A9 (5) that any prior restraint on the right to commu- nicate obscenity would violate the First Amendment. See Emerson, The Doctrine of Prior Restraint, 20 Law & Con- temp.Prob. 648 (1955). Of course, the scholars will recognize that the concepts I espouse today emanate from the writings of Sir William Blackstone (4 W. Blackstone, Commentaries 151-152): “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in free- dom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolu- tion, is to subject all freedom of sentiment to the prej- udices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of govern- ment and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sen- timent is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects.” Al0 My views also reflect the provisions of the Missouri Constitution (Mo.Const. Art. I, §§2 and 8). However, it would serve no useful purpose to implement the Missouri Constitution so long as we are constrained by the approach of Roth and its successors. On May 17, 1979, the Supreme Court of Missouri over- ruled the State of Missouri’s timely motion for rehearing by making the following order: ‘“Respondent’s motion for rehearing and alternatively, motion for 90 day stay of mandate, overruled.” All APPENDIX C Section 542.281, RSMo 1975 Supp., reads as follows: 042.281. Obscene matter, search warrant for—tran- script of proceedings—hearing on obscenity—alteration of material after notice of hearing prohibited—1. Any police officer, sheriff or deputy sheriff may make application for the issuance of a search warrant to search for and seize: (1) Obscene matter being held or displayed for sale, exhibition, distribution, or circulation to the public, if such matter is of such a nature that the average person, ap- plying contemporary community standards would find that the matter, taken as a whole, appeals to the prurient in- terest, if the matter depicts or describes, in a patently of- fensive way, sexual conduct specifically defined by Mis- souri law as obscene, and if the matter, taken as a whole, lacks serious literary, artistic, political, or scientific value. (2) Property which has been used by the owner, or used with his consent, as a raw material or as an in- strument to publish or produce such obscene matter. 2. A warrant to search for obscene matter being held or displayed for sale, exhibition, distribution, or circula- tion or for property which has been used as a raw material or as an instrument to publish or produce such obscene matter may be issued by a judge of the circuit court in the county or judicial district in which the alleged matter or property is located. Except as provided in this section, the issuance of a warrant to search for and seize obscene matter shall be governed by the provisions of section 542.276. 3. A copy or photograph of the allegedly obscene mat- ter may be annexed to the application. The application and the warrant, if issued, shall designate precisely by Al2 title, or otherwise, each item or type of item to be searched for and seized. No warrant shall be issued to search for and seize any item or type of item unless the judge de- termines there is probable cause to believe that each item or type of item sought is obscene as defined by law, and is being held or displayed for sale, exhibition, distribution, or circulation to the public. 4. A transcript shall be made of all proceedings under this section and under subsections 3 and 4 of section 542.301. 5. If more than twenty items are to be seized, or if the item to be seized is a motion picture film being ex- hibited to the public, the judge shall hold an adversary hearing to determine whether such matter is obscene before issuing a warrant. Not less than twenty-four hours before such hearing, written notice of the date, time, place and nature of the hearing, including a description of the matter sought, shall be personally served upon the dealer, ex- hibiter, displayer or his agent. No warrant shall be issued without the dealer, distributor, or displayer being given a reasonable opportunity to appear in opposition to the issu- ance. Except when the dealer, exhibiter, or displayer con- sents to a longer period, or by his actions or pleadings, willfully prevents the prompt resolution of the hearing, a decision shall be rendered no later than ten days from the date of the commencement of the hearing. The hearing shall determine whether the average person, applying con- temporary community standards would find that the matter sought, taken as a whole, appeals to the prurient interest, whether the matter sought depicts or describes, in a pat- ently offensive way, sexual conduct specifically defined as obscene by the laws of this state, and whether the matter sought, taken as a whole, lacks serious literary, artistic, political, or scientific value. Upon determination LE No cA ee) es Al3 that there is probable cause to believe the matter sought is obscene, the judge shall issue a warrant to search for and seize it. After service of notice of the hearing, inten- tional alteration, destruction, or removal of any matter, or duplicate of matter, described in the notice shall be punished as contempt of court. 542.286. Warrant to be executed within territorial jurisdiction, exception—1. A warrant to search a person or any movable thing may be executed in any part of the state where the person or thing is found if, subsequent to the filing of the application, the person or thing moves or is taken out of the territorial jurisdiction of the judge issuing the warrant. 2. All other search warrants shall be executed within the territorial jurisdiction of the court out of which the warrant issued and within the territorial jurisdiction of the officer executing the warrant. Section 542.301, RSMo 1975 Supp., reads in pertinent part as follows: 542.301. Disposition of unclaimed seized property-for- feiture to the state, when-allegedly obscene matter, how treated-appeal authorized. 3. (1) When a warrant has been issued to search for and seize allegedly obscene matter after an adversary hearing, the judge, upon return of the warrant with the matter seized, shall give notice of the fact to the pros- ecuting attorney of the county in which the matter was seized and the dealer, exhibiter, or displayer and shall conduct further adversary proceedings to determine whether the matter is subject to forfeiture. If the evidence is clear and convincing that the matter is obscene as de- Al4 fined by law and it was being held or displayed for sale, exhibition, distribution, or circulation to the public, the judge shall declare it to be obscene and forfeited to the state and order its destruction. However, no forfeiture shall be declared without the dealer, distributor, or dis- player being given a reasonable opportunity to appear in opposition and without the judge having thoroughly examined each item. Except when the dealer, exhibiter, or displayer consents to a longer period, or by his actions or pleadings willfully prevents the prompt resolution of the hearing, judgment shall be rendered within ten days of the return of the warrant. If the matter is not found to be obscene or is not found to have been held or dis- played for sale, exhibition, or distribution to the public, or a judgment is not entered within the time provided for, the matter shall be restored forthwith to the dealer, exhibiter, or displayer. (2) If an appeal is taken by the dealer, exhibiter, or displayer from an adverse judgment, the case should be assigned for hearing at the earliest practicable date and expedited in every way. Destruction of a matter declared forfeited shall be postponed until the judgment has become final by exhaustion of appeal, or by expiration of the time for appeal, and until the matter is no longer needed as evidence in a criminal proceeding. (3) A determination of obscenity shall not be admis- sible in any criminal proceeding against any person or corporation for sale or possession of obscene matter. 4. (1) When allegedly obscene matter has been seized under a search warrant issued without a prior ad- versary hearing, or has been seized without a warrant, the officer, who executed the warrant or seized the matter without warrant, shall give notice of the fact of seizure to the prosecuting attorney of the county in which the Ald matter was seized. Within three days of the seizure the prosecuting attorney shall file a written motion with the circuit court of the county or judicial district in which the seizure occurred praying for an order directing the forfeiture of the matter. Upon filing of the motion, the court shall set a date for a hearing. Written notice of date, time, place, and nature of the hearing shall be per- sonally served upon the owner, dealer, exhibiter, displayer, or his agent. Such notice shall be served no less than five days before the hearing. (2) If the evidence is clear and convincing that the matter is obscene as defined by law, and it was being held or displayed for sale, exhibition, distribution, or circulation to the public, the judge shall declare it to be obscene and forfeited to the state and order its destruction. However, no forfeiture shall be declared without the dealer, distrib- utor, or- displayer being given _a reasonable opportunity to appear in opposition and without the judge having thor- oughly examined each item. Except when the dealer, exhibiter, or displayer consents to a longer period, or by his actions or pleadings willfully prevents the prompt resolution of the hearing, judgment shall be rendered within fifteen days from the date of the seizure. If the matter is not found to be obscene, or is not found to have been held or displayed for sale, exhibition, distribution, or circulation to the public, or a judgment is not entered within the time provided for, the matter shall be restored forthwith to the dealer, exhibiter, or displayer. (3) If an appeal is taken by the dealer, exhibiter, or displayer from an adverse judgment, the case shall be assigned for hearing at the earliest practicable date and expedited in every way. Destruction of matter declared forfeited shall be postponed until the judgment has become final by exhaustion of appeal, or by expiration of the time Al6 for appeal, and until the matter is no longer needed as evidence in a criminal proceeding. (4)