Amicus Curiae Brief — Reno v. American Civil Liberties Union
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MOTION FILED
FEB 20 1997 No. 96-511
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1996
JANET RENO, Attorney General
of the United States, et al., Appellants
v.
AMERICAN CIVIL LIBERTIES UNION, et al., Appellees
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
MOTION FOR LEAVE TO FILE AN OUT OF TIME
AMICUS CURIAE BRIEF UNDER RULE 37(3\b)
WITH ATTACHED
BRIEF AMICUS CURIAE OF JAMES J. CLANCY
(MEMBER OF THE SUPREME COURT BAR)
SUGGESTING REVERSAL OF THE JUDGMENT FOR
A.C.L.U, ET AL., APPELLEES UPON THE AUTHORITY
OF RALPH GINZBURG v. U.S., 383 U.S. 463 (1966) AND
JUDGE LEARNED HAND’S “VARIABLE OBSCENITY”
PRINCIPLES
JAMES J. CLANCY*
CAROL A. CLANCY
9055 La Tuna Canyon Road
La Tuna Canyon, California 91352
(818) 352-2069
FAX: (818) 352-6549
February 17, 1997 *Counsel of Record for Amicus Curiae
EDITOR'S NOTE
THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. = If AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.
o Be
No. 96-511
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1996
JANET RENO, Attorney General
of the United States, et al., Appellants
v.
AMERICAN CIVIL LIBERTIES UNION, et al., Appellees
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
MOTION FOR LEAVE TO FILE AN OUT OF TIME AMICUS
CURIAE BRIEF UNDER RULE 37(3b) SUGGESTING
REVERSAL OF THE JUDGMENT FOR A.C.L.U, ET
AL., APPELLEES, UPON THE AUTHORITY OF
RALPH GINZBURG y, U.S, 383 U.S. 463 (1966) AND
JUDGE LEARNED 4HAND’S' “VARIABLE
OBSCENITY” PRINCIPLES.
Now comes James J. Clancy, attorney at law and a
member of the Supreme Court Bar, to move this Court for
leave to file an out of time Brief Amicus Curiae, suggesting
a reversal of the judgment for Plaintiff A-C.L.U., et al.
below, upon the authority of Ralph Ginzburg, ef al. v.
U.S, 383 U.S. 463, 16 L.Ed.2d 31, 86 S.Ct. 942; rehearing
denied, 384 U.S. 934, 16 L.Ed.2d 536, 86 S.Ct. 1440
(March 21,1966) and Judge Learned Hand’s “variable
obscenity” principles. This motion is made necessary for
the purpose of bringing to the attention of the Court
relevant matter not already brought to its attention by the
sM@e
parties, and is necessary because neither the Solicitor
General’s Brief, nor the Brief of Amici Curiae have
discussed Ginzburg y. U.S., supra, which in moving
party’s judgment, should control the disposition of this
appeal.
My filing of a timely Amicus Curiae Brief was
virtually impossible under Rule 37, in that the carliest
“date certain” that such deficiency could be discovered
was the date such bricfs were “published” (filed) and
thereafter “examined” for content. Under these
circumstances, any brief explaining the defect would be
tardy.
The background facts in support of this motion are
set forth hereinafter:
On or about February 3, 1997, I received a
complementary copy of the Brief Amici Curiae filed on or
about January 20, 1997 for certain Members of Congress
in Reno, Attorney General of the United States, et al. v.
ACLU., ef al., No. 96-511, in Support of Appellants. In
my judgment, this brief was uniformly outstanding, except
that it did not discuss the impact of Ginzburg. ef al vy.
U.S., supra, and the federal “pandering” obscenity crime
(which this Court upheld in the Ginzburg decision and, by
its very nature, requires a reversal of the judgment below
which upheld the facial attack).
Thereafter, I took steps to obtain a copy of the
Solicitor General’s Brief for Appellants and undertook a
study of both briefs. My examination disclosed that neither
brief had analyzed or considered the impact of this Court’s
opinion in Ralph Ginzburg, ef al. v. U.S, 383 U.S. 463, 16
L.Ed.2d 31, 86 S.Ct. 942; rehearing denied, 384 U.S. 934,
16 L.Ed.2d 536, 86 S.Ct. 1440 (March 21, 1966)
(interpreting 18 U.S.C. §1461).
Ginzburg 4 al v. U.S., supra, materially changed
the law of obscenity, by confirming the existence of two
=P
types of federal obscenity crimes: ome that regulated
“obscenity in the abstract” (obscenity vel non) and did not
require a “scienter” mens rea, other than “knowledge of
the contents”, Rosen v. U_S., 161 U.S. 606 (1896), and the
other, described as “variable obscenity” and“pandering”
obscenity which focused on the “scienter” mens rea aspect,
and did not require proof that the subject matter was
“obscenity in the abstract” (obscenity vel non). An
explanation of this latter development, in relation to the
appeal of Ralph Ginzburg, is discussed hereinafter in the
attached Brief Amicus Curiae under the topic “Interest of
Amicus Curiac, James J. Clancy”.
In recent years, legal scholars have inordinately
focused upon the federal crime of “obscenity in the
abstract” (to the exclusion of the “pandering” obscenity
crime), and today urge this Court to solve the problem by
enunciating a new “hard-core pornography” standard (see
Brief Amici Curiae for Member of Congress at page 13,
footnotes 15 and 16).
This habitual focus of the federal judiciary and
federal bar on the federal obscenity crime as a crime
involving “obscenity vel non” has resulted in a neglect and
failure to consider and analyze the impact of the Ginzburg
“variable pandering” obscenity crime on the pleading
requirements of the Communications Decency Act of
1996.
Because of my personal involvement in Ginzburg’s
appeal (see “Interest of Amicus Curiac, James J. Clancy”
at page 2-5) and my knowledge of its constitutional import
and potential contemporary impact, I considered it to be my
duty as a member of this Court's Bar to move the Court for
leave to file this “out of time” amicus curiae brief in
support of a reversal of the judgment for Appellants
AC.L.U., et al., upon the authority of Justice Brennan's
majority decision in Ginzburg, ef al. v. U.S., supra, and
-4-
Judge Learned Hand's “variable obscenity” principles
which are still the law today.
Rule 37(3)(a) requires that an Amicus Curiac Brief
in Support of Neither Party should be filed with the Brief
for the Appellants. One would reasonably expect that the
“pandering” crime impact of Ginzburg, ef aly, U_S..
supra, would be treated by cither the Solicitor General or
one of the supporting amicus curiae briefs. A defect of this
nature will not be ascertainable until a “date certain” (as in
this case) after the Brief for Appellants has been filed and
Ber the j , —e had ,
examine the same, which “date certain” upon
ascertainment is then, by its very nature, “tardy” under
Rule 37(3\Xa). This rule, as applied to these facts, is
unreasonable and should not defeat this Motion.
In the past, this Court has allowed an out of time
brief to be filed under similar circumstances. See Motion
of James J. Clancy for Leave to File a Brief Amicus Curiac
Out of Time in Barnes v. Glen Theatre, ef al, in the
Supreme Court of the United States, October Term, 1990,
No. 90-26. On January 7, 1991, this Court entered an
order in Barnes v. Glen Theatre, @f al., at 498 U.S. 1021,
reading, “The motion of James J. Clancy for leave to file a
brief (our of time) as Amicus Curiae is Granted.” A copy
of that Amicus Curiae Brief is being lodged with the Clerk
of this Court.
A copy of Moving Party's four page letter of request
for consent with 8 pages of attachments, pursuant to Rule
37(3) was faxed to the Appellees on Wednesday, February
12, 1997 (see copy of letter at Appendix 1 herein). The
last paragraph on page 4 reads:
= A motion to file an out of time brief amicus
curiae under U.S. Supreme Court Rule 37(3\Xc)
with brief attached and the reasons for granting the
same will be filed some time during the week of
ee ee
oe
February 9-13, approximately a week in advance of
the date upon which Appellee A.C.L.U.’s reply
brief will be due (February 20, 1997). The amicus
ine baie G € ncitl will |
limited to the above argument, which is framed in
this letter, i.c., the suggestion that the judgment
below should be reversed upon the principle of law
(‘variable obscenity” standard) applied in Ginzburg
vy. U.S., supra, which is not discussed in the Brief
for the Appellants or the Amicus Curiae Brief of the
National Law Center for Children and Families
(which were due on or about January 20, 1997.
(My emphasis. )”
On the following day, Thursday, February 13, 1997,
both Appellees responded with a fax letter refusing to grant
their consent, which refusal was 8 days before their Reply
Brief was duc (a copy of Appelices’ refusal to consent
appears herein at Appendix 2 and the originals are being
filed with the Clerk of this Court. ).
A substantive Rule of Law of the magnitude of
Judge Learned Hand’s (father of the federal obscenity law)
“variable obscenity” principles should not be so casily
avoided by a mere procedural rule of the nature of Rule
37(3\(a). For all the above reasons, Moving Party's
motion for leave to file a Brief Amicus Curiae out of time
should be granted.
Dated: February 17, 1997
No. 96-511
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1996
JANET RENO, Attorney General
of the United States, et al., Appellants
v.
AMERICAN CIVIL LIBERTIES UNION, et al., Appellees
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
BRIEF AMICUS CURIAE OF JAMES J. CLANCY
(MEMBER OF THE SUPREME COURT BAR)
SUGGESTING REVERSAL OF THE JUDGMENT FOR
A.C.L.U, ET AL., APPELLEES UPON THE AUTHORITY
OF RALPH GINZBURG y, U.S., 383 U.S. 463 (1966) AND
JUDGE LEARNED HAND’S “VARIABLE OBSCENITY”
PRINCIPLES
ee ee
JAMES J] CLANCY*
CAROL A CLANCY
9055 La Tuna Canyon Road
La Tuna Canyon, California 91352
(818) 382-2069
FAX. (818) 352-6549
February 17, 1997 *Counsel of Record for Amicus Curiae
oh
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE
I. BACKGROUND TO THIS COURT’S
DECISION IN RALPH GINZBURG y.
U.S.
STATEMENT OF THE CASE
SUMMARY OF ARGUMENT
ARGUMENT
CONCLUSION
APPENDIX 1: (COPY OF ATTORNEY JAMES
J. CLANCY'S 4 PAGE LETTER OF REQUEST FOR
CONSENT TO FILE AN AMICUS CURIAE BRIEF,
WITH 8 PAGES OF ATTACHMENTS IN RENO ¥.
U.S. SUPREME COURT NO. 96-
$11, FAXED TO APPELLANTS ON FEBRUARY
12, 1997,]
APPENDIX 2: [COPY OF APPELLEE AC.L.U.
AND APPELLEE A.L.A. FAX LETTERS, DATED
FEBRUARY 13, 1997 IN WHICH APPELLEES
AC.L.U. AND A.L.A. REFUSE TO GRANT THEIR
CONSENT TO THE FILING OF A BRIEF AMICUS
CURIAE BY JAMES J. CLANCY (MEMBER OF
THE SUPREME COURT BAR) IN RENO V. ACLU.
ELIAL, US. SUPREME COURT NO. 96-511] 2-1 TO 2-2
APPENDIX 3: (COPY OF LIST OF 56 CASES IN
WHICH AMICUS CURIAE JAMES CLANCY HAS
FILED AMICUS CURIAE AND APPELLATE
BRIEFS IN THIS COURT IN OBSCENITY
LITIGATION DURING 1963-1990.]
“ie
TABLE OF CONTENTS
APPENDIX 4: [COPY OF BRIEF AMICUS
CURIAE OF CITIZENS FOR DECENT
LITERATURE, INC., IN RALPH GINZBURG,
ETAL V. U.S., FILED IN SUPPORT OF
RESPONDENT UNITED STATES OF
AMERICA, U.S. SUPREME COURT,
OCTOBER TERM, 1965, NO. 42.] 1 TO 77 AND 1 TO 24
APPENDIX 5: [COPY OF REPLY BRIEF
OF AMICUS CURIAE CITIZENS FOR
DECENT LITERATURE, INC., IN RALPH
GINZBURG, ET AL, V. U.S, FILED IN
SUPPORT OF RESPONDENT, UNITED
STATES OF AMERICA, U.S. SUPREME
COURT, OCTOBER TERM, 1965, NO. 42.] 1TO7
TABLE OF AUTHORITIES
CASES
178 F-24665 (* Ci, 1989
380 US. 4791968), 6.15
rye 1-11, 20-25
Mill Paliforn:
413 U.S. 15 (1973) 24
Rosen v. U,S.,
161 U.S. 606 (1896) 3, 7, 24, 25
CASES (cont.)
PAGE
Roth v, U.S.,
354 U.S. 476 (1957) 7, 15, 22, 23
Shea v. Reno,
930 F.Supp. 916 (U.S.D.C., S.D.N.Y., 1996) 21
~ US. v, Levine,
83 F.2d 156 (2™ Cir., 1936) 1, 3, 6, 22, 23
U.S. v. One Book Entitled Ulysses,
73 F.2d 105 vo Cir., 1934) 2
U.S. v. Rebhuhn,
109 F.2d 512 (2™ Cir., 1946) 1, 3-6, 11-19, 22
TABLE OF AUTHORITIES
CONSTITUTIONAL PROVISIONS
United § Constitution:
First Amendment 6
Tenth Amendment 25
Eleventh Amendment 25
FEDERAL RULES
United States Supreme Court Rules:
Rule 37(3 Xa) 4
-iV-
FEDERAL STATUTES
PAGES
The Communications Decency
Act of 1996 5, 6, 8, 10, 11, 19, 22
18 U.S.C., Section 1461 6, 8
TEXTS
Schwartz, “Morals Offenses and the Model
Penal Code,” 63 Col.L.Rev. 669 (1963) 15, 22
Proposed Official Draft of the A.L.L.
Model Penal Code 10, 11, 15, 22
U.S. News and World Report,
February 10, 1997 26
Se
No. 96-511
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1996
= _ _ _ —[— —s$é—$é_—<—$逗€<—<—<$KFCL€""°€<€—L—_—EFEC=CC@E“Ha=a=a=an]™=a]™{="EHH=aaaannnS=S=—=—=
JANET RENO, Attorney General
of the United States, et al., Appellants
Vv.
AMERICAN CIVIL LIBERTIES UNION, et al., Appellees
On Appeal from the United States Distnct Court
for the Eastern District of Pennsylvania
BRIEF AMICUS CURIAE OF JAMES J. CLANCY (MEMBER
OF THE SUPREME COURT BAR) SUGGESTING
REVERSAL OF THE JUDGMENT FOR A-C.L.U, ET
AL., APPELLEES UPON THE AUTHORITY OF
RALPH GINZBURG v. U.S, 383 U.S. 463 (1966) AND
JUDGE LEARNED HAND’S “VARIABLE
OBSCENITY” PRINCIPLES.
This Amicus Curiae Brief in Support of neither
Appellants nor Appellees is being filed pursuant to Rule
37(3\(b), and suggests a reversal of the judgment for
Appellees, A.C.L.U., et al., upon the authority of Ralph
Ginzburg. ef al. v. U.S., 383 U.S. 463, 16 L.Ed.2d 536, 86
S.Ct. 942; rehearing denied, 384 U.S. 934, 16 L.Ed.2d
536, 86 S.Ct. 1440 (March 21, 1966) and the “variable
obscenity” principles established by Judge Learned Hand
in U.S. v, Levine, 83 F.2d 156 (2™ Cir., 1936) and U.S, v.
Rebhuhn, 109 F.2d 512, 514 (2 Cir., 1946), certiorari
=F
denied in 310 U.S. 629, 84 L.Ed. 1899, 60 S.Ct. 971.
Written consent of the parties was requested by fax on
February 12, 1997, see Appendix 1. On February 13,
1997, both Appellee A.C.L.U. and Appellee A.L.A. refused
consent by fax letter. See copy of letters at Appendix 2,
herein.
INTEREST OF AMICUS CURIAE
Amicus Curiae James J. Clancy is a Los Angeles
Attorney admitted to practice in this Court in 1962. Since
that time, Attorney Clancy has filed a number of Amicus
Curiae and appellate briefs in this Court in obscenity
litigation. A list of 56 of these cases filed during the 27
year period from 1963-1990 is set forth at Appendix 3
herein. One of these cases was the landmark case of Ralph
Ginzburg, et al. v. U.S., 383 U.S. 463 (1966).
L BACKGROUND TO THIS COURT’S
DECISION IN RALPH GINZBURG y. U.S.
In his 1936 decision in U.S v. Levine, 83 F.2d 156
(2° Cir., 1936), Judge Learned Hand introduced the
concept of “variable obscenity” which, in conjunction with
his 1934 decision in U.S. v. One Book Entitled Ulysses, 73
F.2d 105 (2™ Cir., 1934), had the effect of changing the
federal law on obscenity. In U.S. v. Levine, supra, Judge
Learned Hand (often regarded as the “father” of the
modern obscenity statutes) explained the legal theory of
“variable obscenity” as follows:
the verdict of the jury is not the conclusion of a
syllogism of which they are to find only the minor
premise, but really a small bit of legislation ad hoc,
Be
like the standard of care. . .”
“* The standard must be the likelihood that the
work will so much arouse the salacity of the reader
to whom it is sent as to outweigh any literary,
scientific or other merits it may have in that
reader’s hands; of this the jury is the arbiter.” (Our
emphasis).
Both the 1934 civil decision (injunction) in Ulysses, supra,
and the obscenity crime (see Rosen v, U.S., 161 U.S. 29
[1896] which required only a subjective “knowledge of the
contents”) involved “obscenity in the abstract” (obscenity
vel non).
During the period 1936-1966, the “practice” in the
lower federal courts began to develop a new obscenity
crime— the so called “pandering” obscenity crime which
did not require proof of obscenity in the abstract (obscenity
vel non) and, instead, required a mens rea (scienter)
requirement which became known as “pandering”
obscenity. See U.S v. Levine, 83 F.2d 156 (2™ Cir.,
1936), Burstein v. U.S., 178 F.2d 665 (% Cir., 1949), US.
vy. Rebhuhn, 109 F.2d 512, 514 (2™ Cir., 1940), certiorari
denied 310 U.S. 629, 84 L.Ed. 1899, 60 S.Ct. 971.
In the Ralph Ginzburg y, U.S., supra, litigation, the
U.S. Attorney in the trial court had tried his case upon the
“pandering” concept and the record on appeal reflected
that fact.
In his Brief for the Respondent on appeal, the
Solicitor General did not argue the “variable” obscenity
“pandering” concept, and instead, focused upon the
“obscenity in the abstract” (obscene vel non) and
“redeeming social importance” concepts.
In November of 1965, Moving Party herein
(Attorney James J. Clancy) appeared in this Court in Ralph
Ginzburg v. U.S., No. 42 and filed a 77 page Brief Amicus
pie
Curiae as Counsel of Record for Amicus Curiae Citizens
for Decent Literature, Inc., an Ohio Corporation in support
of the Respondent United States of America and, as an
Amicus Curiae, argued the variable obscenity “pandering”
concept upon which the case had been tried. See copy of
Brief Amicus Curiae of Citizens for Decent Literature,
Inc., at Appendix 4 herein at pages 61-62, 66-68 and 69-
77.
Pree men When os Solicitor ae did act | ane @
Ginzburg’s claim of a “concession”, Attorney James J.
Clancy as Counsel of Record for Amicus Curiae Citizens
for Decent Literature, Inc. prepared a reply brief, carried
the same to Washington, D.C. on the day before oral
argument in Ralph Ginzburg v. U.S., supra, had it printed
by Byron S. Adams, Washington, D.C. as a Reply Brief
and filed the same with the Clerk of the U.S. Supreme
Court on the day of oral argument in the Ginzburg 1966
case. The Clerk of this Court received and filed the same
before oral argument in the Ginzburg case (in 1966, there
was no Rule of Court or decision of this Court which
precluded the filing of a Reply Brief by an Amicus Curiae.
Compare in this regard, Rule 37(3)(a) of the 1995 Revised
Rules of the U.S. Supreme Court which precludes the
filing of a Reply Brief by an Amicus Curiae). A copy of
Attorney Clancy’s Reply Brief in Ginzburg is attached as
Appendix § herein.
In responding to Ginzburg’s Reply Brief (which
claimed a concession by the Solicitor General), the
Citizens for Decent Literature, Inc. Amicus Curiae Reply
Brief at page 4 footnote 9, cited US. v. Rebhuhn, supra, as
a “pandering” case which had been tried under the
“pandering” concept, and in which a petition for writ of
a
certiorari had been filed in this Court and denied by this
Court.
Associate Justice Brennan's Majority Opinion for
this Court in the 1966 Ginzburg decision relicd upon the
U.S. v Rebhuh ‘orci denied) desiai
“pandering” obscenity crime. Although the decision was
5-4, one could construc it as a 6-3 decision, in as much as
Justice Harlan’s separate decision indicated that he would
have voted with Justice Brennan and the majority, had the
majority agreed to return the case to the trial court for a
retrial under the (new) “pandering” concept. See Ralph
Ginzburg v. U.S., 383 U.S. 495-496. The conclusion that
must be drawn from Justice Harlan’s remarks at pages 495-
497 is that the word “obscene’(or “lewd” or “lascivious”
or “indecent” or “filthy” or “vile’), used in a statutory
sehen Meaeieetanetihinte a.feckeh tach others kt i clone
that the term is used with regard to “pandering” and
equivalent anti-social conduct to satisfy the “mens rea”
clement of the statute.
Moving Party contends that, although the
(ne ge a RN TY : bis Court’
decision on March 21, 1966 in Ginzburg (upon the theory
that this Court's “certiorari denied” decision in U.S. y.
Rebhuhn, supra, was not precedent and this Court had not,
as yet, passed upon that concept), nevertheless, upon the
filing of the 1966 Ginzburg decision which upheid
Ginzburg’s conviction on that theory, the “pandering”
concept became the law of the land. The jurisdictional
questions in this appeal (No. 96-511) which are limited to
a facial attack on the new legislation, therefore must be
examined in the light of the Ginzburg ‘variable obscenity”
decision.
STATEMENT OF THE CASE
The four jurisdictional questions in the
Jurisdictional Statement in Reno v, ACL.U., No. 96-511
present a narrow issuc as to whether cach of the sections of
the “Communication Decency Act of 1996” (“C.D.A.”)
which is under attack, “is_unconstitutional on its face”.
The three Judge U.S. District Court below upheld the
challenge of the A.C.L.U. on that narrow ground and
granted a preliminary injunction.
SUMMARY OF ARGUMENT
The suggestion that: “. . . this speech at issuc,
whether denominated ‘indecent’ or ‘patently offensive’ is
entitled to constitutional protection. . .”, see ACLU. v.
Reno, 929 F Supp. 824 at 851 (1996), is clearly erroneous.
There is no unrestricted First Amendment Constitutional
Right to use “indecent speech” or “talk dirty” or “pander
to the prurient interest” or engage in anti social conduct
which “constitutes an appeal to the prurient interest”. See
Ralph Ginzburg. ef al. v. U.S., 383 U.S. 463 (1966).
This Court’s 5-4 majority decision in Ralph
Ginzburg, @t al. v, U.S., supra, established Judge Learned
Hand’s bifurcated view of the federal obscenity law (18
U.S.C. §1461) in U.S. ». Levine, supra, and U.S. ».
Rebhuhn, supra, as a correct interpretation of the federal
law on “obscenity”. Accordingly, it is now the Law of the
Land.
The statutory sections of the Communications
Decency Act of 1996 under attack do not “ban” anything:
they are criminal statutes which are designed to be applied
en —
5 Te th ck we
oF
to anti cial “conduct” which Congress has declared to be
unlawfu. with respect to (1) the conduct of the citizens of
the United States with respect to “obscenity” in their use
of the “global internet”, and (2) the duties and obligations
of the United States as a signatory member of the
International Treaty which proscribes “obscenity”. See
Roth v. U.S, 354 U.S. 476, 485 at footnote 15. The
criminal sanctions are to be applied to the facts after the
unlawful conduct has been engaged in.
In a criminal case involving “obscenity in the
abstract” (obscenity vel non), the fact finder focuses on the
definition of “obscene” and the subject matter, and
determines that it is or is not obscene under all
abstract, finds the defendant to be guilty if the fact finder
determires that the defendant had knowledge of what the
subject saatter contained, i.c., the contents of the subject
matter. One of the tests to be applied in determining
obscenity vel non is: “whether all reasonable persons
would agree and conclude that the subject matter is
“obscene in the abstract” as that term is defined by law”.
Rosen v. U.S., 161 U.S. 606 (1896). In a criminal case
involving “variable obscenity”, the fact finder does not
focus exclusively upon the definition of “obscene”, but
rather upon the conduct of the defendant and all the
surrounding circumstances and then returns a verdict of
guilty if the defendant's conduct in relation to the subject
matter constituted “pandering obscenity” as defined by the
Court. By its very nature, a complaint charging “pandering
obscenity” is not subject to a facial attack on the definition
of “obscene” because the complaint can be constitutionally
applied to “pandering to the prurient interest” conduct (a
specific set of facts, which establish the “mens rea” and
unlawful conduct), Ralph Ginzburg, et al v. U.S, 383
U.S. 463, 474, at footnote 19.
-8-
ARGUMENT
The Reno v. ACLU. trial court was in error and
should have held that, under the “variable obscenity”
principles approved by the U.S. Supreme Court in
Ginzburg. @ al v. U.S., supra, the terms “obscene”,
“indecent”, “patently offensive as measured by community
standards”, and “sexual or excretory activities or organs”,
as used in the Communications Decency Act of 1996 are
not subject to attack under Dombrowski v. Pfister, 380
U.S. 479 (see Ginzburg, supra , at pages 40 and 41,
footnote 19):
“19. One who advertises and sells a work on the
basis of its prurient appeal is not threatened by the
perhaps inherent residual vagueness of the Roth
test, cf. Dombrowski v Pfister, 380 U.S. 479, 486-
487, 491-492, 14 L ed 2d 22, 28, 31, 85 S.Ct. 1116;
such behavior is central to the objectives of criminal
obscenity laws. AL.I. Model Penal Code,
Tentative Draft No. 6 (May 6, 1957), pp. 1-3, 13-
17; Comments to the Proposed Official Draft
§251.4, supra; Schwartz, Morals Offenses and the
Model Penal Code, 63 Col.L.Rev. 669, 677-681
(1963), Paul & Schwartz, Federal Censorship--
Obscenity in the Mail, 212-219 (1961), see
Mishkin v New York, 383 US 502 at 507, note 5,
16 L.Ed 2d 56, at 61, 86 S.Ct. 958.”
See also Justice Harlan’s dissent at pages 495-497,
wherein he discusses what the government’s burden of
proof would be as to the terms “obscene”, etc., as used in
18 U.S.C. §1461, if the case were to be retried in the U.S.
District Court under a “pandering variable obscenity”
-9.
theory (in which event, his vote would have given
Ginzburg a majority vote of 6-3):
7 If there is anything to this new pandering
dimension to the mailing statute, the Court should
return the case for a new trial, for petitioners are at
least entitled to a day in court on the question on
which their guilt has ultimately come to depend.
Compare the action of the Court in Memoirs v
Massachusetts, 383 U.S. 413, 16 L Ed 2d 1, 86
S.Ct 975, where the Court affords the State an
opportunity to prove in a subsequent prosecution
that an accused purveyor of Fanny Hill in fact used
pandering methods to secure distribution of the
book.”
“If a new trial were given in the present case, as
I read the Court's opinion, the burden would be on
the Government to show that the motives of the
defendants were to pander to ‘the widespread
weakness for titillation by pornography’ (ante, p.
38). I suppose that an analysis of the type of
individuals receiving Eros and the Handbook would
be relevant. If they were ordinary people, interested
in purchasing Eros or the Handbook for one of a
dozen personal reasons, this might be some
evidence of pandering to the general public. On the
other hand, as the Court suggests, the defendants
could exonerate themselves by showing that they
sent these works only or perhaps primarily (no
standards are set) to psychiatrists and other
serious-minded professional people. Also relevant
would apparently be the nature of the mailer’'s
advertisements or representations. Conceivably
someone mailing to the public selective portions of
-10-
a recognized classic with the avowed purpose of
titillation would run the risk of conviction for
mailing non-mailable matter. Presumably the Post
Office under this theory might once again attempt
to ban Lady Chatterley's Lover, which a lower court
found not bannable in 1960 by an abstract
application of Roth. Grove Press, Inc.
Christenberry, 276 F.2d 433. I would suppose that
if the Government could show that Grove Press is
pandering to people who are interested in the book's
sexual passages and not in D. H. Lawrence’s social
theories or literary technique §1461 could properly
be invoked. Even the well-known opinions of
Judge A. N. Hand in United States v One Book
Entitled Ulysses, 72 F2d 705, and of Judge
Woolsey in the District Court, 5 F.Supp. 182, might
be rendered nugatory if a mailer of Ulysses is found
to be titillating readers with its ‘coarse,
blasphemous, and obscene’ portions, 72 F.2d, at
707, rather than piloting them through the
intricacies of Joyce’s stream of consciousness.”
Each of the challenged sections in such act is
susceptible of a constitutional construction, in that such
sections of the Communications Decency Act of 1996 do
nothing more than proscribe a type of anti social “conduct”
under federal “variable obscenity” standards which is of
the same nature as that under which Ralph Ginzbe ; was
indicted, convicted and sentenced to a five year jail term,
see Ginzburg, supra at page 39 and footnote 14 and 15,
citing the Proposed Official Draft of the A.L.L Model
Penal Code:
“14. The Proposed Official Draft of the A.L.I.
a ne
sfie
Model Penal Code likewise recognizes the question
of pandering as relevant to the obscenity issue,
§251.4(4), Tentative Draft No. 6 (May 6, 1957),
oP. 1-3, 13-17, 46-46, 53; Schwartz, supra, n. 12;
see Craig, Suppressed Books, 195-206 (1963).
Compare Grove Press, Inc, v. Christenberry, 176
F.Supp. 488, 496-497 (D.C.S.D., N.Y. 1959), affd.
276 F.2d 433 (C.A.,, 2™ Cir., 1960), United States
v One Book Entitled Ulysses, 72 F.2d 705, 707
(C.A, 2™ Cir., 1934), affirming 5 F.Supp. 182
(D.C.S.D., N.Y. 1933). See also The Trial of Lady
Chatterly— Regina v Penguin Books, Ltd. (Rolph
ed. 1961).
“15. Our conclusion is consistent with the
statutory scheme. Although §1461, in referring to
‘obscene . . . matter’ may appear to deal with the
qualities of material in the abstract, it is settled that
the mode of distribution may be a significant part in
the determination of the obscenity of the material
involved. United States v Rebhuhn, supra.
Because the statute creates a criminal remedy, cf.
Manual Enterprises v Day, 370 U.S. 478, 495, 8
L.Ed.2d 639, 651, 82 S.Ct. 1432 (opinion of
Brennan, J.), it readily admits such an
interpretation, compare United States v_ 3]
Photographs, etc, 156 F.Supp. 350 (D.C.S.D.,
N.Y. 1957).”
The “variable obscenity” factors set forth in the
Communications Decency Act of 1996 are the functional
equivalent of the “variable obscenity” factors discussed
and applied in Ginzburg, supra. See U.S. v. Rebhuhn,109
F.2d 512, certiorari denied 310 U.S. 629, 84 L.Ed 1399, 60
-12- -13-
S.Ct. 97 in Gi
pom 6, relied upon in Ginzburg, supra, at pages 472- not in all circumstances forbid the
, Teading as follows: dissemination of such publications. . . :
“The decision in United States v Rebhuhn, 109
F.2d 512, is persuasive authority for our
conclusion.i4/. That was a prosecution under the
predecessor to §1461, brought in the context of
pandering of publications assumed useful to
scholars and members of learned professions. The
books involved were written by authors proved in
many instances to have been men of scientific
standing, as anthropologists or psychiatrists. The
Court of Appeals for the Second Circuit therefore
assumed that many of the books were entitled to the
Protection of the First Amendment, and ‘could
lawfully have passed through the mails, if directed
to those who would be likely to use them for the
purposes for which they were written...” 109
‘Proper use, but . . . woefully misused them, and i
t
was that misuse which constituted the gravamen of
the crime.’ Id., at 515. Speaking for the Court in
affirming the conviction, Judge Learned Hand said:
at [T]he works themselves had a place
though a limited one, in anthropology and
in psychotherapy. They might also have
been lawfully sold to laymen who wished
seriously to study the sexual practices of
savage or barbarous peoples, or sexual
aberrations; in other words. most of them
were not Obscene per se. In several
decisions we have held that the statute does
However, in the case at bar, the prosecution
succeeded . . . when it showed that the
defendants had indiscriminately flooded the
mails with advertisements, plainly designed
merely to catch the prurient, though under
the guise of distributing works of scientific
or literary merit. We do not mean that the
distributor of such works is charged with a
duty to insure that they shall reach only
proper hands, nor need we say what care he
must use, for these defendants exceeded any
possible limit, the circulars were no more
than appeals to the salaciously disposed, and
no [fact finder] could have failed to pierce
the fragile screen, set up to cover that
purpose.’ 109 F2d, at 514-515.”
sy We perceive no threat to First Amendment
guarantees in thus holding that in close cases
evidence of pandering may be probative with
respect to the nature of the material in question and
thus satisfy the Roth test.1s/ No weight is ascribed
to the fact that petitioners have profited from the
sale of publications which we have assumed but do
not hold cannot themselves be adjudged obscene in
the abstract; to sanction consideration of this fact
might indeed induce self-censorship, and offend the
frequently stated principle that commercial activity,
in itself, is no justification for narrowing the
protection of expression secured by the First
Amendment.is/ Rather, the fact that each of these
publications was created or exploited entirely on the
a
_"e
basis of its appeal to prurient interests_17/
strengthens the conclusion that the transactions
here were sales of illicit merchandise, not sales of
constitutionally protected matterjs/ A conviction
for mailing obscene publications, but explained in
part by the presence of this element, does not
necessarily suppress the materials in question, nor
chill their proper distribution for a proper use. Nor
should it inhibit the enterprise of others seeking
through serious endeavor to advance human
knowledge or understanding in science, literature,
or art. All that will have been determined is that
questionable publications are obscene in a context
which brands them as obscene as that term is
defined in Roth-- a use inconsistent with any claim
to the shelter of the First Amendment.j9/. ‘The
nature of the materials is, of course, relevant as an
attribute of the defendant’s conduct, but the
materials are thus placed in context from which
they draw color and character. A wholly different
result might be reached in a different setting.” Roth
v United States, 354 U.S., at 495, 1 L.Ed 2d at
1513. (Warren, C. J., concurring.)”
“It is important to stress that this analysis simply
elaborates the test by which the obscenity vel non of
the material must be judged. Where an exploitation
of interests in titillation by pornography is shown
with respect to material lending itself to such
exploitation through pervasive treatment or
description of sexual matters, such evidence may
support the determination that the material is
obscene even though in other contexts the material
would escape such condemnation.”
“Petitioners raise several procedural objections,
-15-
principally directed to the findings which
accompanied the trial court’s memorandum
opinion, Fed. Rules Crim. Proc. 23. Even on the
assumption that petitioners’ objections are well
taken, we perceive no error affecting their
substantial rights.”
“Affirmed.”
Ralph Ginzburg’s claim of a constitutional nght to
“pander” was rejected by the U.S. Supreme Court, see the
opinion of Justice Brennan in his review of the trial facts
at: (1) pages 35, footnotes 5 and 6; (2) page 36, footnote
8; (3) page 37, footnotes 9 and 11; (4) Judge Learned
Hand speaking in U.S. v. Rebhuhn, 109 F.2d 512, cited at
page 39 and footnotes 13 and 14; (5) page 40 at footnote
15, citing U.S. v. Rebhuhn, supra; (6) text at pages 40 and
41, and footnote 19 at pages 40 and 41, distinguishing the
Roth Test for obscenity from Dombrowski v. Pfister, 330
U.S. 479, 486-487, 491-492,14 L.Ed.2d 22, 28-31; 85
S.Ct. 1116; and A.LL Model Penal Code Tentative
Draft No. 6 (May 6,1957) pages 1-3, 13-57, Comments to
the Proposed Official Draft, §251.4, supra, Schwartz,
Morals Offenses and the Model Penal Code, 63
Col.L.Rev. 669, 677-681 (1963):
Ҥ Our affirmance of the convictions for mailing
EROS and Liaison is based upon their
characteristics as a whole, including their editorial
formats, and not upon particular articles contained,
digested, or excerpted in them. Thus we do not
decide whether particular articles, for example, in
EROS, although identified by the trial judge as
offensive, should be condemned as obscene
whatever their setting. Similarly, we accept the
-16-
Government’s concession note 13, j
, infra, that the
Prosecution rested upon the manner in which the
petitioners sold the Handbook; thus our affirmance
implies no agreement with the trial judge's
characterizations of the book outside that setting.”
“6. It is suggested in dissent that petiti
petitioners were
aay a’ wat the record being established could be
¢ in support of such an approach, and that
petitioners should be afforded the opportunity of a
new tral. However, the trial transcript clearly
reveals that at several points the Government
announced its theory that made the mode of
distribution relevant to the determination of
obscenity, and the trial court admitted evidence
otherwise irrelevant, toward that end.” ;
“ge Evidence relating to petitioners’ efforts to
secure mailing privileges from these post offices
nose contrary to the suggestion of Mr. Justice
arlan in dissent, introduced far the purpose of
supporting such @ finding. Scienter had been
ah teens The Government’s position
revealed in ollowing colla '
somnnnd ntin Rueibenstanten otthy oon
postmaster of Blue Ball, Pennsylvania:
‘The COURT. Who signed the letter?
*Mr. CREAMER. It is signed by Frank R.
“¥~ — Publisher of Mr. Ginzburg.
is on Magazine, Incorporated’
stationery.
‘The COURT. And your objection i
; is-
Mr. SHAPIRO. It is in no way relevant to
°17-
the particular issue or publication upon
which the defendant has been indicted and
in my view, even if there was an
identification with respect to a particular
issue, it would be of doubtful relevance in
that event.
‘The COURT. Anything else to say?
‘Mr. CREAMER. If Your Honor pleases,
there is a statement in this letter indicating
that it would be advantageous to this
publication to have it disseminated through
Blue Ball, Pennsylvania, post office. I think
this clearly goes to intent, as to what the
purpose of publishing these magazines was.
At least, it clearly establishes one of the
reasons why they were disseminating this
material.
‘The COURT. Admitted.’ ”
“9 Thus, one EROS advertisement claimed:
‘Eros is a child of its times. . . .[It] is the
result of recent court decisions that have
realistically interpreted America’s obscenity
laws and that have given to this country 4
new breadth of freedom of expression. . . .
EROS takes full advantage of this new
freedom of expression. It is the magazine of
sexual candor.’
“In another, more lavish spread:
‘EROS is a new quarterly devoted to the
subjects of Love and Sex. In the few short
weeks since its birth, EROS has established
itself as the rave of the American intellectual
- 18-
community-- and the rage of prudes
everywhere! And it’s no wonder: EROS
handles the subjects of Love and Sex with
complete candor. The publication of this
magazine-which is frankly and avowedly
concerned with erotica has been enabled
by recent court decisions ruling that a
literary piece or painting, though explicitly
sexual in content has a right to be published
if it is a genuine work of art.
‘EROS is a genuine work of art... .”
“An undisclosed number of advertisements for
Liaison were mailed. The outer envelopes of these
ads ask, ‘Are you among the chosen few?’ The first
line of the advertisement eliminates the ambiguity:
‘Are you a member of the sexual clite?’ It
continues:
‘That is, are you among the few happy and
enlightened individuals who believe that a
man and woman can make love without
feeling pangs of conscience? Can you read
about love and sex and discuss them without
blushing and stammering?
‘If so, you ought to know about an important
new periodical called Liaison.
‘In short, Liaison is Cupid’s Chronicle. . . .
‘Though Liaison handles the subjects of love
and sex with complete candor, I wish to
-19-
life.
... I'll venture to say that after you've read
your first bi-weekly issue, Liaison will be
your most cagerly awaited piece of mail.’ ”
=96. There is much additional evidence
supporting the conclusion of petitioners’
pandering. One of petitioners’ former writers for
Liaison, for example, testified about the editorial
goals and practices of that publication.”
“2. Schwartz, Morals Offenses and the Model
Penal Code, 63 Col.L.Rev. 669, 677 (1963).
“13. The Government drew a distinction between
the author’s and petitioners’ solicitation. At the
sentencing proceeding the United States Attorney
tated:
. [the author] was distributing. . . only to
stavdalamm she never had widespread,
indiscriminate distribution of the Handbook,
and, consequently, the Post Office
advertised these books solely to...
physicians . . . we, of course, would not be
here this morning with regard to The
Housewife’s Handbook ....” ”
Federal Statutes (such as the C.D.A.) which regulate
make it clear that it is not a scandal sheet anti social conduct, i.e., the dissemina . renee
and it is not written for the man in the street. “indecency”, ete. (on the basis of its * are not subject
Liaison is aimed at intelligent, educated which include specific mens rea clement « ices
adults who can accept love and sex as part of to a facial attack on the basis of “overbreath”. the
- 20 -
Communications Decency Act of 1996 includes a
specific “mens rea” clement, the only behavior (by
statutory definition) which falls within the ambit of the
statute is behavior (anti social conduct) which is capable of
being Constitutionally- proscribed. The inclusion of the
specific “mens rea” element provides the requisite
Constitutional specificity and “narrows” the construction
of the statute, cowiming its application to only
Constitutionally permissible situations, i.c., anti social
conduct involving “pandering”, “talking dirty”, etc., in
front of minors. The use of a specific “mens rea” clement
has long been recognized as being central to the objectives
of criminal obscenity laws and where present, such laws
may only be challenged on an “as applied basis”. Where
the standards ("variable obscenity" factors) are not
SL en ee
standards were correctly applied “to the trial facts”. See
Ralph Ginzburg, ef al. v. U.S., 383 U.S. 463,16 L.Ed.2d
31 at 35 and at pages 40-41, footnote 19, 86 S.Ct. 942.
Similarly, there is no ynrestricted Constitutional
right to engage in anti social conduct involving
“indecency” or “indecent speech” in front of minors ip
' £ the fact 1 1
‘labl i mi tucational tool, and that
minors must be regarded as a foreseeable “target” audience
on the Internet. See, in this regard, President Clinton’s
remarks on February 4,1997, in his State of the Union
Address:
Let’s work together to meet these . . . goals: . .
. every 12-year-old must be able to log on to the
Internet. . .”
. F
and President Clinton’s weekly Radio Address remarks on
February 8,1997:
. . . To give our children the best education we
must help them to harness the powerful forces of
technology. That’s why we've challenged America
to connect every classroom and library to the
Internet by the year 2000. For the first time in
history, children in the most isolated rural towns,
the most comfortable suburbs, and the poorest
inner-city schools will have the same access to the
same universe of knowledge. . .”
“. . . By doubling our investment in education
technology, by dramatically lowering the Internet
rates for schools and libraries, by mobilizing
Americans all across the country to help wire our
schools, we will meet our goal of connecting every
classroom and library to the Information
Superhighway by the year 2000. That’s how we
must prepare our children for the 21* Century, with
the full promise of the Information Age at their
fingertips. And it's an important way to give our
children the world’s best education and the chance
to make the most of their own lives. . . .”).
Further, an overbreath argument which is grounded upon
an asserted claim of an unrestricted “constitutional nght”
to engage in a specific type of “conduct”, i.c., to “talk
dirty” or to “indecent speech” or “indecency” (see Shea
v. Reno, 930 F.Supp. 916 at 922-933 [U.S. District Court,
S.D.N.Y.,1996]: “. . . that §223(d) would serve as a ban on
R-
constitutionally protected indecent communications
between adults. . .” [my emphasis.]) is as meritless as the
“constitutional right to pander” which was asserted but
rejected in Ginzburg v. U.S., supra. See, in this regard, the
eight (8) images obtained from current free access web
sites located by using the Internet Search Engines “Yahoo”
and “Alta Vista” (available to any 12-year old) using the
locator request “Adult Bookstore”, which are reproduced
at Appendix | herein as an attachment to the letter dated
February 12, 1997, requesting the consent to file an amicus
curiae brief. In the judgment of amicus curiae James J.
Clancy, such images are in violation of the “variable
obscenity” standards of both the Communications
Decency Act of 1996 and Ginzburg v. U.S.,supra.
CONCLUSION
The judgment of the 3 Judge U.S. District Court
that the challenged sections of the Communications
Decency Act of 1996 are facially unconstitutional should
be reversed upon the “variable obscenity” standards
oS ee ee
in Ralph Ginzburg v. U.S, supra and the “variable
obscenity” principles expressed by Judge Learned Hand in
his opinions in U.S. v, Levine, supra and U.S. v. Rebhuhn.
supra, as codified in the A.L.L Model Penal Code,
Tentative Draft No. 6 (May 6, 1957) and the Comments
to the Proposed Official Draft §251.4. Sce also
Schwartz, Morals Offenses and the Model Penal Code.
63 Col.L.Rev. 669, 677-681 (1963).
The narrow configuration of this case, and the
opportunity and the ability of this Court to decide the
jurisdictional questions posed in this appeal by a summary
reversal based upon Justice Brennan’s majority opinion in
x *
Ralph Ginzburg, et al. v. U.S., supra, affords this Court a
unique opportunity— the first in 40 years— to revisit
Judge Learned Hand’s well reasoned opinions on obscenity
and this Court’s landmark decision in Roth v, U.S, 354
U.S. 476, 1 L.Ed.2d 1408, 77 S.Ct. 1314 (1957) and
restore simplicity to this nation’s federal obscenity statutes
by reconsidering and reconciling the seemingly conflicting
views of the individual Justices on this Court during those
40 years.
If this Court were to seize this unique opportunity,
the following objectives and reconsideration would be
worthy of consideration:
1. Reaffirm the opinions of Judge Learned
Hand in U.S. v. Levine, 83 F.2d 156 and
US. v. Rebhuhn, 109 F.2d 512, 514 in their
entirety as a correct statement of the federal
obscenity law before Ginzburg and Judge
Hand’s bifurcated view of the federal
obscenity law (variable obscenity) as a
correct statement of the law before and after
the Ginzburg decision and a correct
statement of the “Law of the Land” after the
filing of the 5-4 Ginzburg Opinion (perhaps
6-3, if Justice Harlan’s dissent is viewed as
a “concession”’).
2. Reaffirm in their entirety this Court's
decisions in Roth v. U.S., supra and Ralph
Ginzburg »v. U.S, supra (with munor
adjustments and modifications as explained
hereinafter).
3. Reaffirm the Roth-Alberts definition of
o24-
“appeal to the prurient interest” as an
“excessive, unnatural and unlawful” interest
rather than a natural, healthy and lawful
interest in sex.
Reaffirm the law expressed in Roth-Alberts
that the mens rea for the crime of dealing
with “obscenity in the abstract” (obscenity
vel non) is “knowledge of the contents” and
does not require a person’s subjective
perception as to whether the subject matter
is or is not obscene. See Rosen v. U.S. 161
U.S. 606 (1896).
Establish as one of the tests for “obscenity in
the abstract”: “whether all reasonable
persons would agree and conclude that the
subject matter is ‘obscene in the abstract’ as
that term is defined by law (which appears to
be the equivalent of Justice Harlan’s and
Justice Stewart’s use of the term‘hard core
pornography’)”.
Reaffirm Justice Brennan’s opinion in
Ralph Ginzburg v, U.S., supra, as a correct
statement of the difference between the
bifurcated crimes of “obscenity in the
abstract” and “pandering obscenity” and
(reconciling and equating) Justice Warren's
opinion on “conduct” to be a consistent
statement with respect to the bifurcated
“pandering crime” and Justice Harlan’s and
Justice Stewart’s views on “hard core
pornography” to be a consistent statement
-25-
treating the bifurcated “obscenity in the
abstract” crime, and the law as to
“specificity” expressed in Miller vy.
California, 413 U.S. 15 (1973), to be a
consistent statement treating the “obscenity
in the abstract” crime..
7. Reconcile Justice Harlan’s and Justice
Stewart’s separate opinions re “hard core
explanation that their separate opinions in
Ginzburg were proper (at the time Ginzburg
was argued and incident to the reporting of
the 5-4 landmark ruling) inasmuch as such
was not the Law of the Land until Ginzburg
was decided.
8. Adoption of Justice Harlan’s view with
respect to this Court’s limited role in
a4 en F ot '
under the 10* and 11° Amendments.
The practical end result of a reexamination of the
federal law of obscenity at this time and reconciliation of
the above propositions of law would be both historic and
“meteoric”. For example, by reaffirming Judge Learned
Hand’s bifurcation of the law and reaffirming the law
expressed in Rosen v. U.S., supra, as controlling the crime
of dealing with “obscenity in the abstract”, that segment of
the pornography industry holding millions of dollars in
hard core videotape inventories would, overnight, find
themselves holding assets which had a value of zero and
~~"?
were unmarketable in the United States. Further, such a
determination would help to terminate the runaway
production and exhibition on Cable and Satellite T.V. of
hard core pornographic films that now exists. (See U.S.
News and World Report, dated February 10, 1997.
DATED: February 17, 1997
Respectfully submitted,
39
(_ James 1 Stanoy
Counsel of Record fo¢ Amicus Curiae
APPENDIX 1
COPY OF ATTORNEY JAMES J. CLANCY’S 4 PAGE
LETTER OF REQUEST FOR CONSENT TO FILE AN
AMICUS CURIAE BRIEF, WITH 8 PAGES OF
ATTACHMENTS IN RENO V. A.CL.U,, ET AL., U.S.
SUPREME COURT NO. 96-511, FAXED TO
APPELLANTS ON FEBRUARY 12, 1997.
Reference: (1) Motion For Leave To File An Out Of
Time Amicus Curiae Brief In Reno y.
ACLU. Et. AL, U.S. Supreme Court No.
96-511, Under Rule 37(3\b) With Attached
Brief Amicus Curiae Of James J. Clancy
(Member Of The Supreme Court Bar) At
Page 4.
Reference: (2) Brief Amicus Curiae Of James J. Clancy
In Reno v, ACLU. Et AL, U.S. Supreme
Court No. 96-511 At Page 2
JAMES J. CLANCY
_ ATTORNEY ATLAW
9055 LA TUNA CANYON ROAD
SUN VALLEY, CALIF. 91352
(818) 352-2069
FAX (818) 352-6549
February 12,1997
Christopher A. Hansen, Esq.
American Civil Liberties Union Foundation
132 West 43” Street
New York, New York 10036
L.Ed.2d 31, 86 S.Ct. 942, rehearing denied
384 U.S. 934,16 L.Ed2d 536, 86 S.Ct.1440
(3/21/66) (interpreting 18 — §1461):
the American Civil Liberties Union, et al., to the filing
of a brief for James J. Clancy as amicus curiae in support
of a simple reversal of the judgment below upon the
1-2
Mr. Christopher A. Hansen, Esq, American Civil Liberties Union Foundation
Re: Rene», A.CLU,, USSCT. No. 96-511
page 2of 4, 2-12-97
“variable obscenity” factors which were argued in the
appellate briefs and upheld by the U.S. Supreme Court in
Ralph Ginsburg, et al. v. U.S., 383 U.S, 463,16 L.Ed.2d
31, 86 S.Ct. 942, rehearing denied 384 U.S. 934, 16
L.Ed.2d 536, 86 S.Ct.1440 (3/21/66) (interpreting the term
“obscene” as employed in 18 U.S.C.§1461): (criminal law
requirements: Ginzburg, footnote 13,14 and 15;
“pandering” concept: Ginzburg, footnote 14, “prurient”
appeal: Ginzburg, footnote 19).
The four jurisdictional questions in the
Jurisdictional Statement in Reno v. ACLL.U., No. 96-511
present a narrow issue as to whether each of the sections of
the “Communication Decency Act of 1996” (“C.D.A.”)
which is under attack, “is_unconstitutional on its face”.
The three Judge U. S. District Court below upheld the
challenge of the A.C.L.U. on that narrow ground and
granted a preliminary injunction.
The amicus curiae brief for James J. Clancy will
contend that the Reno v. A.C_L.U. trial court was in error
and should have held that, under the “variable obscenity”
principles approved by the U.S. Supreme Court in
Ginzburg, et al v. U.S., supra, the terms “obscene”,
“indecent”, “patently offensive as measured by community
standards”, and “sexual or excretory activities or organs”,
as used in the Communications Decency Act of 1996 are
not subject to attack under Dombrowski v. Pfister, 380
U.S. 479 (see Ginzburg, supra, at pages 40 and 41,
footnote 19)
1-3
Mr. Christopher A. Hansen, Esq, American Civil Liberties Union Foundation
Re: Rone », ACLU, USSCT. No. 96-511
page 3of4, 212-97
Each of the challenged sections in such act is
susceptible of a constitutional construction, in that such
sections of the Communications Decency Act of 1996 do
nothing more than proscribe a type of “conduct” under
federal “variable obscenity” standards which is of the same
nature as that under which Ralph Ginzburg was indicted.
convicted and sentenced to a five year jail term, see
Ginzburg, supra at page 39 and footnote 14, citing the
Proposed Official Draft of the A.L.1. Model Penal
Code. The “variable obscenity” factors set forth in the
Communications Decency Act of 1996 are the functional
equivalent of the “variable obscenity” factors discussed
and applied in Ginzburg, supra. See, also, US. v.
Rebhuhn, 109 F.2d 512, cert. den. 310 U.S. 629, 84 L.Ed
1399, 60 S.Ct. 976, relied upon in Ginzburg, supra, at
pages 39 and 40, footnote 15.
Ralph Ginzburg’s claim of a constitutional right to
“pander” was rejected by the U.S. Supreme Court, see the
opinion of Justice Brennan at: (1) pages 35, footnotes §
and 6, (2) page 36, footnote 8; (3) page 37, footnotes 9 and
11; (4) Justice Learned Hand speaking in Rebhuhan v. U.S.,
109 F.2d 512, cited at page 39 and footnotes 13 and 14; (5)
page 40 at footnote 15, citing US. v. Rebhuhn, supra. (6)
text at pages 40 and 41, and footnote 19 at pages 40 and
41, distinguishing the Roth Test for obscenity from
Dombrowski v. Pfister, 380 US. 479, 486-487.
491-492,14 L.Ed.2d 22, 28-31; 85 S.Ct. 1116; and ALLL
Model Penal Code Tentative Draft No. 6 (May 6,1957)
pages 1-3, 13-57, Comments to the Proposed Official Draft
1-4
Mr. Christopher A. Hansen, Esq, American Civil Liberties Union Foundation
Re: Benes, A.CL.U., USSCT. No. 96-511
page 404, 212-97
§251.4, supra, Schwartz, Morals Offenses and the Model
Penal Code. 63 Col.L.Rev. 669, 677-681 (1963).
Federal Statutes (such as the C.D.A.) regulating
“obscenity”, “indecency”, etc. (on the basis of its “prurient
interest”) which include a specific mens rea clement are
not subject to a facial attack on the basis of “overbreath”.
Because the C.D.A. includes a specific “mens rea”
element, the only behavior (by statutory definition) which
falls within the ambit of the statute is behavior which is
capable of being Constitutionally proscribed. The
inclusion of the specific “‘mens rea” element provides the
requisite Constitutional specificity and “narrows” the
construction of the statute, confining its application to only
Constitutionally permissible situations, i.c., “pandering”,
“talking dirty”. The use of a specific “mens rea” element
has long been recognized as being central to the objectives
of criminal obscenity laws and where present, such laws
may only be challenged on an “as applied basis”. Where
the standards (“variable obscenity” factors) are noi
misconceived, the only serious question is whether those
standards were correctly applied “to the trial facts”. See,
Ralph Ginzburg, et al. v. U.S., 383 U.S. 463,16 L.Ed.2d
31 at 35 and at pages 40-41, footnote 19, 86 S.Ct. 942.
Similarly, there is no unrestricted Constitutional
right to “indecency” or “indecent speech”. In light of the
; iu ‘labl r
minors as an educational tool, and that minors must be
regarded as a foreseeable “target” audience for all free
1-5
Mr. Christopher A. Hansen, Esq, American Civil Liberties Union Foundation
Re: Rene ¥, ACLU, USSCT. No. 96-S11
page Sof4, 212-97
access communications currently taking place on the
Internet (see President Clinton’s remarks on February
4.1997, in his State of the Union Address:
. Let’s work together to meet these . . . goals: .
. every 12-year-old must be able to log on to the
Internet. . .”’.
and President Clinton's weekly Radio Address remarks on
February 8,1997:
“... To give our children the best education we
must help them to harness the powerful forces of
technology. That’s why we've challenged America
to connect every classroom and library to the
Internet by the year 2000. For the first time in
history. children in the most isolated rural towns,
the most comfortable suburbs, and the poorest
inner-city schools will have the same access to the
same universe of knowledge. . .”
“. . By doubling our investment in education
technology, by dramatically lowering the Internet
rates for schools and libraries, by mobilizing
Americans all across the country to help wire our
schools, we will meet our goal of connecting every
classroom and library to the Information
Superhighway by the year 2000. That’s how we
1-6
Mr. Christopher A. Hansen, Esq, American Civil Liberties Union Foundation
Re: Rene v. ACLU., USSCT. No. 96-511
page6of4, 212-97
must prepare our children for the 21st Century, with
the full promise of the Information Age at their
fingertips. And it’s an important way to give our
children the world’s best education and the chance
to make the most of their own lives. . . .”),
an overbreath argument which is grounded upon an
asserted claim of an unrestricted “constitutional right to
“talk dirty” or to “indecent speech” or “indecency” (see
Shea v. Reno, 930 F Supp. 916 at 922-933 [U.S. District
Court, S.D.N.Y., 1996}: “. . . that §223(d) would serve as
a ban on _ constitutionally protected indecent
communications between adults. . .””) is as meritless as the
“constitutional nght to pander” which was asserted but
rejected in Ginzburg v. U.S., supra. See, in this regard, the
eight (8) images obtained from current free access web
sites located by using the Internet Search Engine “Yahoo”
(available to any 12-year old) using the locator request
“Adult Bookstore”, which are reproduced hereinafter as
an attachment to this letter. In the judgment of amicus
curiae James J. Clancy, such images are in violation of the
“variable obscenity” standards oof both the
Communications Decency Act of 1996 and Ginzburg v
U.S., supra.
A motion to file a tardy brief amicus curiae under
U.S. Supreme Court Rule 37(3 Xe) with brief attached and
the reasons for granting the same will be filed some time
during the week of February 9-13, approximately a week
in advance of the date upon which Appellee A.C.L.U.’s
1-7
Mr. Christopher A. Hansen, Esq, American Civil Liberties Union Foundation
Re: Rene v. A.C.LU., USSCT. No. 96-511
page "of 4, 21297
reply brief will be due (February 20, 1997). The amicus
tae brief (; ‘neil ‘HI be limited
the above argument, which is framed in this letter, i.e., the
suggestion that the judgment below should be reversed
upon the principle of law (“variable obscenity” standard)
applied in Ginzburg v. U.S., supra., which is not discussed
in the Brief for the Appellants or the Amicus Curiae Brief
of the National Law Center for Children and Families
(which were due on or about January 20, 1997. (My
emphasis. )
Thank you for your consideration in this regard.
Sincerely yours,
James J. Clancy
for Amicus Curiae.
Sep. lettersto: Bruce J. Ennis, Esq., Jenner & Block
Hon. Walter Dellinger, Acting Solicitor
General.
ce: Mr. Bruce Taylor, Esq., Counsel for
Amici Curiae, National Law Center
for Children and F amilies.
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APPENDIX 2
COPY OF APPELLEE A.C.L.U. AND APPELLEE A.L.A.
FAX LETTERS, DATED FEBRUARY 13, 1997 IN
WHICH APPELLEES A.C.L.U. AND A.L.A. REFUSE
TO GRANT THEIR CONSENT TO THE FILING OF A
BRIEF AMICUS CURIAE BY JAMES J. CLANCY
(MEMBER OF THE SUPREME COURT BAR) IN
RENO V. ACLU. ET AL, U.S. SUPREME COURT
NO. 96-511.
Reference: (1) Motion For Leave To File An Out Of
Time Amicus Curiae Brief In Reno y,
ACLU., Et. AL, U.S. Supreme Court No.
96-511, Under Rule 37(3\(b) With Attached
Brief Amicus Curiae Of James J. Clancy
(Member Of The Supreme Court Bar) At
Page 5.
Reference: (2) Brief Amicus Curiae Of James J. Clancy
In Reno v. AACL.U., Et AL, U.S. Supreme
Court No. 96-511 At Page 2
2-1
SENT BY: 2-13-97; 11:58; 2127304652-> .#2/2
AC.L.U-LF. LEGAL DEPARTMENT
AMERICAN CIVIL LIBERTIES Chris Hansen
UNION FOUNDATION Senior Staff Counsel
National Headquarters (212) 944-9800 Ext. 540
132 West 43rd Street Fax (212) 730-4652
New York, N.Y. 10036 E-mail chnsaclu@aol.com
February 13,1997
James J, Clancy
9055 La Tuna Canyon Road
La Tuna Canyon, California 91352
Re: Reno v. ACLU, No. 96-511
Dear Mr. Clancy:
I received your fax to Bruce Ennis concerning an
amicus brief in this case. You should first be aware that
Mr. Ennis does not represent appellees ACLU et al. He
represents other appellees. On behalf of the appelices
ACLU ¢t al, we do not consent to the filing of your brief.
We consented to every amicus who sought to file a
brief in a timely manner. Your brief is untimely. Given
the schedule necessary to print our brief, we would be
unable to respond to your arguments and thus prejudiced
by its filing. Moreover, you describe your brief as one in
support of neither party, it is not. By urging simple
reversal, you are supporting appellants. If you file the
motion, we will oppose it.
Thank you. Sincerely,
Christopher A. Hansen
Counsel of record for the ACLU
appellees
cc: Bruce J. Ennis
Hon. Walter Dellinger
2-2
SENT BY: JENNER & BLOCK 2-13-97,10:11,2026396066->,# 2
LAW OFFICES JENNER & BLOCK
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
601 THIRTEENTH STREET, N.W.,SUITE 1200
WASHINGTON, D.C. 20005
(202) 639-6000 (202) 639-6066 FAX
Bruce J, Ennis DIRECT DIAL NUMBER: 202-639-6025
February 13, 1997
VIA TELE} AX (818) 352-6549
James J. Clancy, Esquire
Law Office of James J. Clancy
9055 La Tuna Canyon Road
La Tuna Canyon, California 91352
Re: Reno, etal. v. ACLU, ct al., No, 96-51]
Dear, Mr. Clancy;
I have just received your request for consent to file an
out-of-time amicus brief, on your on behalf, supporting
reversal of the judgment above.
I do not consent to the filing of the proposed brief, and
would oppose any motion for leave to file.
Although appellees consented to every timely request to
file an amicus bricf supporting the government, your
request is untimely and would deny appellees of a
meaningful opportunity to respond to the points you would
propose to cover in your amicus brief.
Sincerely,
Bruce J. Ennis
Counsel for ALA Appellees
cc: Hon. Walter Dellinger (by fax)
Christopher Hansen (by fax)
Jerry Berman, CDT
APPENDIX 3
COPY OF LIST OF 56 CASES IN WHICH AMICUS
CURIAE JAMES CLANCY HAS FILED AMICUS
CURIAE AND APPELLATE BRIEFS IN THIS COURT
IN OBSCENITY LITIGATION DURING 1963-1990.
Reference: Brief Amicus Curiae Of James J. Clancy In
Reno v, ACLU. Et AL, U.S. Supreme
Court No. 96-511 At Page 2
3-1
Smith v. California, 375 U.S. 259, 11 L.Ed.2d 311
(1963).
Arnebergh v. Zeitlin , 375 U.S. 957, 11 L.Ed.2d
315 (1963).
Lacobellis v. Ohio, 378 U.S. 184, 12 L.Ed.2d 793,
1333 (1964).
Memoirs _v. Massachusetts, 383 US. 413. 16
L.Ed.2d 1, 1052 (1966).
Ginzburg v. United States, (two briefs): 383 U.S.
463, 16 L.Ed.2d 31, 1079 (1966)
Mishkin v. New York, 383 U.S. 502, 16 L.Ed.2d
56, 1082 (1966).
Redrup v. New York, (two briefs): 386 U.S. 767,
18 L.Ed.2d 515, 1520 (1967).
Austin v. Kentucky, (two briefs): 386 U.S. 767, 18
L.Ed.2d 515, 1520 (1967).
Aday v. United States, 388 U.S. 447, 18 L.Ed.2d
1309 (1967).
Ginsberg v. New York. (two briefs): 390 U.S. 629,
20 L.Ed.2d 195, 1486 (1968).
Cain v. Kentucky, 397 U.S. 434, 35 L.Ed.2d 334
(1970)
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
3-2
Cohen v. California, 403 U.S. 15, 29 L.Ed.2d 284,
1010 (197}).
Rabe v. Washington, 405 U.S. 313, 31 L.Ed.2d 258
(1972).
Papish v. Board of Curators, 411 U.S. 960, 36
L.Ed.2d 419 (1973).
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37
L.Ed.2d 446 ( 1973).
Heller v. New York, 413 U.S. 483, 37 L.Ed.2d 745
(1973).
Roaden v. Kentucky, 413 U.S. 496, 37 L.Ed.2d 757
(1973).
Grove Press v. Flask, 413 U.S. 902, 37 L.Ed.2d
1013 (1973).
“hi ” v
413 U.S. 905, 37 L.Ed.2d 1016 (1973).
Michigan v. Bloss, 413 U.S. 909, 37 L.Ed.2d 1021
(1973).
Huffman v. U.S. District Court, 413 U.S. 918, 37
L.Ed.2d 1039 (1973).
Boyd v. Ohio, 418 U.S. 945, 41 L.Ed.2d 1175
(1973).
23.
24.
28.
‘a2
‘a2
3-3
Jenkins v. Georgia, 418 U.S. 153, 41 L.Ed.2d 642
(1974).
Smith v. Keaton, 419 U.S. 1043, 42 L.Ed.2d 636
(1974).
Huffman v. Pursue, Ltd., (two briefs): 420 U.S.
592. 43 L.Ed.2d 482 (1975) (James J. Clancy
presented oral argument).
Fair _v. Smith, 421 U.S. 902, 43 L.Ed.2d 769
(1975).
Art Theatre Guild v. Ewing, 421 U.S. 923, 44
L.Ed.2d 82 (1975).
People, ex rel. Camil v. Superior Court, 424 U.S.
943, 47 L.Ed.2d 348 (1976).
Alabama, ex rel. Sweeton v. General Corp., 425
U.S. 904, 47 L.Ed.2d 753 (1976).
Smith v. United States, 426 U.S. 946, 49 L.Ed.2d
1183 (1976).
People, ex rel. Camil v. Superior Court, 429 U.S.
1097, 51 L.Ed.2d 544 (1977).
Marks v. United States, 430 U.S. 188, 51 L.Ed.2d
260 (1977).
Harmer v. “Devil in Miss Jones”, 430 U.S. 967,
§2 L.Ed.2d 359 (1977).
34.
35.
37.
38.
39.
41.
42.
43.
3-4
Splawn v. California, 431 U.S. 595, 52 L.Ed.2d
606 (1977).
Harmer v. “Deep Throat”, 432 U.S. 907, 53
L.Ed.2d 1079 (1977).
Ballew v. Georgia, 435 U.S. 223, 55 L.Ed.2d 839
(1978).
City of East Detroit v. Llewellyn, 438 U.S. 909. $7
L.Ed.2d 1152 (1978).
Lo-Ji Sales v. New York, 442 U.S. 319, 60 L.Ed.2d
920 (1979).
Vance v. Universal Amusement Co., (two briefs):
445 U.S. 308, 63 L.Ed.2d 413 (1980).
City of Newport v, Fact Concerts, 453 U.S. 247, 69
L.Ed.2d 616 (1981).
Cooper v. Mitchell Brothers’ Santa Ana Theatre,
(three briefs): 454 U.S. 90, 70 L.Ed.2d 262 (1981).
Brockett v. Spokane Arcades, 454 U.S. 1022. 70
L.Ed.2d 468 (1981).
U.S. Marketing, Inc. v. Idaho, (three briefs):
review granted, 434 U.S. 1140, 71 L.Ed.2d 291
(Jan. 11, 1982), appeal dismissed by US.
Marketing, 455 U.S. 1009, 71 L.Ed.2d 878 (March
10, 1982).
45.
47.
48.
3-5
James J. Clancy, 2 al. v. Jartech, Inc., (three
briefs): 459 U.S. 826, 74 L.Ed.2d 62 (1982).
Petition for Writ of Certiorari in Billmeyer v.
Tevar, No. 83-2041 (1984). Petition denied as
untimely. Blackmun and Stevens would deny the
petition. 469 U.S. 872, 83 L.Ed.2d 152, 105 S.Ct.
223 (Oct. 1, 1984).
Amicus Curiae Brief of City Attorney of Renton.
Washington, in Brockett v. Spokane Arcades, Inc.,
a@_al., No. 84-28 (1984), and Eikemberry v. J-R
Dist., Inc., No. 84-143, reversed and remanded in
470 U.S. 491, 86 L.Ed.2d 394 (June 19, 1985).
Petition for Writ of Certiorari in People ex rel Ed
C City A Ss ' “elif »
7 , No.
85-439, denied in 474 U.S. 948, 88 L.Ed.2d 293,
rehearing denied, 474 U.S. 1077, 88 L.Ed.2d 811
(Nov. 4, 1985).
Ci rc Municipal C .s
5 ‘or C F the S f California for th
County of Riverside, 475 U.S. 1121, 90 L.Ed.2d
184, 106 S.Ct. 1638 (April. 21, 1986) (No.
85-1402) petition for certiorari filed 2/18/86,
denied 4/21/86).
49.
50.
51.
$2.
$3.
54.
3-6
City of Corona v. Superior Court, No. 86-17,
petition for certiorari filed July 2,1986. Defense
Attorney Diamond was requested to make response
August 2,1986. Diamond declined opposition to
writ on August 27, 1986. Petition denied in 479
U.S. 848, 93 L.Ed.2d 108 (October 6, 1986).
Petition for Writ of Certiorarn in Citizens for
Decency through Law, Inc. v. Oak Industries,
Inc., No. 86-394, denied in US. ,
LEd2d ; SCt (19 ).
City of Paducah, a al _v. Investment
Entertainment. Inc.. ef al, 479 U.S. 915, 93
L.Ed.2d 290 (1986).
Amicus Curiae Brief of City of Santa Ana in
Support of Respondent in Pope, ef al v. Illinois.
481 U.S. 497, 95 L.Ed. 2d 439 (May 4, 1987).
Richard A Dist. A f Erie C
Cloud Books, Inc., 478 U.S. 697, 92 L.Ed.2d 568
(1986)
Herceg v. Hustler Magazine, No. 87-113, Petition
for Certiorari filed July 19, 1987. Motion to file
amicus brief granted October 5, 1987. Certiorari
denied March 21, 1988, 485 U.S. 959, 99 L.Ed. 2d
420 (March 21, 1988).
55.
3-7
Amicus Curise Brief of James J. Clancy as Attorney
for Applegate and Linda Marciano in Fort Wayne
Books, Inc. v. Indiana, No. 87-470, filed July 7,
1988; motion grantedin U.S. ,102L.Ed2d
21 (October 3, 1988), 489 US. , 103 L.Ed. 2d
34 (February 21, 1989).
Karen Applegate, et al. v. Superior Court and
People v. Freeman, No. 88-1050, Petition for
Certioran denied, US. , 103 L.Ed.2d 194
(February 21, 1989).
APPENDIX 4
COPY OF BRIEF AMICUS CURIAE OF CITIZENS FOR
DECENT LITERATURE, INC., IN RALPH GINZBURG,
ETAL V._U.,S,, FILED IN SUPPORT OF RESPONDENT
UNITED STATES OF AMERICA, U.S. SUPREME
COURT, OCTOBER TERM, 1965, NO. 42.
Reference: Brief Amicus Curiae Of James J. Clancy In
Reno v, ACLU, Et AL, U.S. Supreme
Court No. 96-511 At Page 4
eee
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1965
No. 42
RALPH GINZBURG, DOCUMENTARY BOOKS, INC..
EROS MAGAZINE, INC., LIAISON NEWS LETTER, INC -
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to
the United States Court of Appeals for the Third Circuit
Brief Amicus Curiae of
Citizens for Decent Literature, Inc., an Ohio Corporation,
in Support of Respondent
CHARLES H. KEATING, JR.
3300 Carew Tower
Cmemnati, Ohio 45202
JAMES J. CLANCY
9055 La Tuna Canyon Road
Sun Valley, California
Counsel for Amicus Curiae
me ee eee
SUBJECT INDEX
Page
Sees On tens weetee oe pe. l
i 2
United States of America: case in chief .................. 7
Ralph Ginzburg et al.'s defemse .............ccccccccccceceoseceeee. 10
United States of America: rebuttal 2...0..000000.............. 26
ny oo oe 29
FOE ciccrentnsdliiticdininnin a Se es ee 32
) I.
An integrated review of the obscenity case law .... 32
eg NLT RAE Rc ea a innaiea 32
B. The problem of previous restraint cases ........ 38
C. The no clear majority decisions ........................ 41
D. A major national problem o.oo. 43
E. A problem of communication 2.000.000.0000... 45
a 51
IT.
This Court should affirm the judgment ................ 54
OEE ae 54
B. The Roth-Alberts facts control ........................ 56
C. The Roth-Alberts standards 2.000.000.0000... 60
D. The Trial Court followed the Roth-Alberts
ESS Se 0 61
Si > | > > eee 62
2. The Housewife’s Handbook of Selective
a ee ee eT 63
oe Og, ee eae 66
eel
Appendix A. The Housewife’s Handbook on Selec-
tive Promiscuity
TABLE OF AUTHORITIES CITED
Cases Page
A Quantity of Books v. Kansas, 378 U.S. 205, 84
S. Ct. 1723, 12 L. Ed. 2d 809 .......... 38, 40, 42, 52
Alberts v. California, 314 U.S. 160 000000. 58
Alberts v. California, 354 U.S. 476, 77 S. Ct. 1314,
+e 5 Ea 29, 31, 34, 37, 38, 39
FOL SEY PC EE 40, 53, 55, 56, 58, 60
American Civil Liberties Union v. City of Chicago,
3 Ill. 2d 334, 121 N.E. 2d 585 ............ htt tetas, hte 76
Arizona v. Locks, 97 Ariz. 148, 397 P. 2d 949 ........ 42
Astore v. U.S., 288. F. 2d 26, cert. den. 366 U.S.
825, 81 S. Ct. 1352, 6 L. Ed. 2d 384 .................... 47
Bantam Books Inc. v. Sullivan, 372 U.S. 58, 83
S. Ct. 631, 9 L. Ed. 2d 584. 176 A. 2d 393 ........ 38, 52
Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725,
EE re ee eT 34
Burstein v. U.S., 178 F. 2d 6685 ...................... 62, 66, 69
Butler v. Mich, 352 U.S. 80 ........ 46
Cain, Robert H. v. U.S., 274 F. 2d 598, cert. den.
362 U.S. 952, 80 S. Ct. 864, 4 L. Ed. 2d 869 .... 46
California v. Milton Luros, et al., Superior Court
Case No. 295,183 : .. 43
Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L.
& FF . e-) ae ..33, 34, 62, 72
Chi. v. Charles Kimmel, 63 M.C. 190116 —.................. 18
Chi. v. Dahlia, 64 M.C. 127005 -..00.2..2..-..ccecceceeceeeee 18
Chi. v. Soden, 63 M.C. 155883 ...................--cecceseeeee- 18
Chi. v. Westbery, 63 M.C. 104281 2.2... eeeeeees 18
Chi. v. Wood, 63 M.C. 156720 0.0..........0.....ccccccccceeeee 18
Chobot, Joseph v. Wisconsin, 12 Wis. 2d 110, 106
N.W. 2d 286, 368 U.S. 15, 82 S. Ct. 136, 7 L.
Ed. 2d 85, rehear. den. 368 U.S. 936, 82 S. Ct.
se & § ee 45, 47, 59
Ww
iv.
Page
Collier, Frank L. v. U.S., 283 F. 2d 780, cert. den.
365 U.S. 833, 81 S. Ct. 746, 5 L. Ed. 2d 744 ..45, 47
Connecticut v. Andrews, 150 Conn. 92, 186 A. 2d
EP a ERMA nn MRT TELS ER aE 39, 50
Connecticut v. Sul, 146 Conn. 78, 147 A. 2d 686 ...... 71
Dale Book Co. v. Leary, 233 F. Supp. 756 .......... 18, 40
Darnell, John ITI, v. U.S., 316 F. 2d 813, 375 U.S.
916, 84 S. Ct. 205, 11 L. Ed. 2d 155, 375 U.S.
982, 84 S. Ct. 493, 11 L. Ed. 2d 429 20. 49
Finkelstein, Louis et al. v. New York, 229 N.Y.S.
2d 367, 183 N.E. 2d 661, cert. den., 371 U/S.
863, 83 S. Ct. 116, 9 L. Ed. 2d 100 ou... 48
Freedman v. Maryland, 380 U.S. 51 2.0... 38, 52
Fried, Harry v. New York, 238 N.Y.S. 2d 742, 378
U.S. 578, 84 S. Ct. 1904, 12 L. Ed. 2d 1033 ........ 49
Goldstein, Arthur v. Virginia, 372 U.S. 910, 83 S.
ee £25 & ), Pee aT 45, 48
Grove Press Inc. v. Gerstein, 378 U.S. 577 ........ 41, 42
Hadley v. Arkansas, 205 Ark. 1027, 172 S.W. 2d
I EE a AD 39
Haldeman v. U. S., 340 F.2d 59 occ ccececeseeseeneeee 45
Heinecke, Alfred J. v. U.S., 368 U.S. 901, 82 S. Ct.
ae an ee Oe OO tbe St ee 45, 48
Hochman, Samuel R. v. U.S., 277 F. 2d 631, 364
U.S. 837, 8’ ©. Ct. 70, 5 L. Ed. 2d 61, rehear.
den., 364 U.>. 906, 81 S. Ct. 231, 5 L. Ed.
| eee See ee 46, 47
Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12
= &, ae re 42, 45, 51, 59, 71, 73, 76
Kahn, Harold S. v. U.S., 300 F. 2d 78, cert. den.
369 U.S. 859, 82 S. Ct. 949, 8 L. Ed. 2d 18 ........ 48
King v. Commonwealth, 233 S.W. 2d 522 ...0000.0....... 39
Vv.
Page
Kingsley Book Inc. vy. Brown, 354 US. 436, 77 S.
Cr. 1325, 1 L. Ed. 2d 1469 ................ 39, 59, 71
Larkin v. G. I. Distributors Inc., 14 N.Y. 2d 869 .... 41
Larkin v. G. P. Putnam's Sons, 14 N_Y. 2d 399 ....41, 75
Luros v. Hanson. Sept. 27, 1965, Oct. Term. 1965,
tec cnc RS BALL ES ON ee 39
Manual Enterprises Inc. v. Day, 370 U.S. 478, 82
S. Ct. 1432, 8 L. Ed. 24 639, 289 F. 2d 455 ....38, 40
ssenstbclsitsitacaiitinatctbicnscinnioelbubi cite tet ia * dt 41, 42, 52
Marcus v. Kansas City Search Warrants, 367 U.S.
717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127, 344 S.W.
OO GOD acide! chelates tieirniathaatsiege ates 38, 40, 52
Matthews, John G. v. Florida, 356 U. S. 918, 78 S.
Ce FOR OO Oe Bt 900 ne ee 46
Mishkin, Edward vy. U.S.. 317 F. 2d 634, cert. den.
375 U.S. 827, 84 S. Ct. 71, 11 L. Ed. 2d 60 .... 48
Missouri v. Becker, 364 Mo. 1079, 272 S.W. 2d 283 39
Missouri v. Vollmar, 389 S.W. 2d 20... 40
Monired, Harry et al. v. Maryland, 226 Md. 312, 173
A. 2d 173, cert. den. 368 U.S. 953, 82 S. Ct.
om Fo. OR OOO 45, 47, 48
Mounce v. U.S., 355 U.S. 180, 2 L. Ed. 2d 187, 247
F. 2d 148, 134 F. Supp. 490 00 38
Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625,
sod 2 Ma CaS 29, 33, 34, 38, 53
Nebraska v. Jungclaus, 176 Neb. 641, 126 N.W. 2d
858
New York v. Harry Fried, 18 A. 2d 996, 238 N.Y.S.
Pe a liccinitiareneinn tlie oe Set 44
New York v. Ray Kirk, Birch, All State News Co.
Inc., et al., 40 Misc. 2d 626, 243 N.Y.S. 24 525 44
New York v. Richmond County News Co., 175 N.E.
at ah en ee «Bo Ae eae eae BY 40, 41
vi.
Page
A. v. U.S., 290 F. 2d 517, cert. den.
368 U.S. 888, 82 S. Ct. 139, 7 L. Ed. 2d 87,
rehear. den. 368 U.S. 936, 82 S. Ct. 358, 7 L.
NE i eeenencsinictnhentptemegnsaglinmeseneimtincinges AS, 47
One Inc. v. Olesen, 355 U.S. 371, 78 S. Ct. 364, 2
a Fe OE YF, ; eee 38
Outdoor American Corporation v. City of Philadel-
phia, 333 F. 2d 1963, cert. den. 85 S. Ct. 192, 13
PRED peat aegis ae aan 39
Padell, Max v. U.S., 262 F. 2d 357, cert. on.
359 U.S. 942, 79 S. Ct. 723, 3 L. Ed. 2d 676 .... 46
Parr, Wyman Hulan v. U.S. 255 F. 2d 86, cert. én.
358 U.S. 824, 79 S. Ct. 40, 3 L. Ed. 2d 64 ........ 46
People v. Bruce, 31 Ill. 2d 459, 202 N.E. 2d 497 ..76, 77
People v. Fritch, 13 N.Y. 2d 119 o.ececcccccccccseeeneeee 41
People v. The Bookcase Inc. et al., 14 N.Y. 2d 409 .. 41
Poss v. Christenberry, 179 F. Supp. 411 ............00.... 70
Rosen v. U. S., 161 U.S. 606 220.2... ccccccsescecseeeee 32, 34
Roth v. U.S., 354 U.S. 476, 77 S. Ct. 1314, 1
L. Ed. 2d 1498 spicnsietiieeiiiaania 29, 31, 34, 38, 39, 40, 53
a ee ee) 56, 58, 60, 65, 67; 71, 72, 76
State v. Andrews, 186 A. 2d 546 sha 72
Sunshine Book Co. v. Summerfield, 355 U.S. 372,
78 S. Ct. 365, 2 L. Ed. 2d 352, 249 F. 2d 114,
ek ee ne 38, 70
Times Film Corporation v. City of Chicago, 355
U.S. 35, 78 S. Ct. 115, 2d L. Ed. 2d 72, 244 F.
24 432, 199 F. Sepp. 839 nee cncececesecersenceceenstes 38, 39
Times Film Corp. v. City of Chicago, 365 U.S. 43,
81S. Ct. 391, 5 L. Ed. 2d 403, 272 F. 2d 90, 180
| a ae ey ae 38
Tralins v. Gerstein, 378 U.S. 576, 84 S. Ct. 1903,
iS | | eet 42
one
Trans-Lux Distributing Corp. v. Board of Reg ts
of the University of New York, 380 U.S, 259, 85
S. Ce. 952, 13 L. Ed. 2d 999 .......................... 38, 52
United States v. Kennerley, 209 Fed. 119... 65
United States v. Klaw and Jack Kramer, 350 F. 2d
ae ae ee 45
United States v. Levine, 83 F. 2d 156... 62, 66
United States v. Linetsky, No. T-CR 582 ....... 45
United States v. Ralph Ginzburg et al., 224 F.
Supp. 129 ....... estrone el aaa 28
United States v. Ralph Ginzburg. et al., 338 F. 2d
8 a ES eS € Pals Be Bs ae 29
United States v. Roth, 237 F. 2d 796... 56
United States v. Wasserman No. T-CR 581...._. 45
United States v. West Coast News Co., et al., 228 F.
EE Ses ees eee ee eee ae Se 19
Wenzler, Harold Eugene. Sr., and John Imlay v.
California, 377 U.S. 994, 84 S. Ct. 1902, 12 L. Ed.
2d 1047, 85 S. Ct. 14, 13 L. Ed. 2d 77 ........ 45, 49, 50
Williamson, Samuel Dodd v. California, 207 Cal.
App. 2d 839, 24 Cal. Rptr. 734, 377 U.S. 994,
84S. Ct. 1902, 12 L. Ed. 2d 1047, 85 S. Ct. 13, 13
XS ee eee 49
Womack, Herman v. U.S., 294 F. 2d 204, cert.
den. 365 U.S. 859, 81 S. Ct. 826, 5 L. Ed. 2d
Zeitlin v. Arnebergh, 59 Cal. 2d 901, 31 Cal. Rptr.
EE ee ee ee 41, 75
Zucker, Harold v. New York, 371 U.S. 863, 83 S.
e 8 se + Se 48
Zuideveld, Nirvana Ward v. U.S., 316 F. 2d 873,
376 U.S. 916, 84 S. Ct. 671, 11 L. Ed. 2d 612 ... 49
Dictionary
Webster's Collegiate Dictionary, Fifth Edition ........ 32
Miscellaneous
American Law Institute, Model Penal Code (1957
8 OA YY eee 53, 66, 73
American Law Institute, Model Penal Code (1957),
Sh, STE ciatusnctnesenintinnsentemneninmmmnnaiiie 61
American Law Institute, Model Penal Code (1957),
PF FES 63, 65, 67
American Law Institute, Model Penal Code (1962),
See. 251.4(4) oe. 59
41 Chicago Bar Record (1960), pp. 416, 418 ............ 54
IX Frumkin, Robert M., Dr., Journal of Hu-
man Relations (Summer 1962), p. 513 5
XL Notre Dame Lawyer, No. 1 (Dec. 1964), p.
CS a a S4
Statutes
United States Code, Title 18, Sec. 1461 .............4, 5, 10
United States Code, Title 28, Sec. 1257 58
United States Constitution, First Amendment ...... 2
United States Constitution, Fifth Amendment ....... 68
United States Constitution, Sixth Amendment ........ 68
United States Constitution, Fourteenth Amenement
Textbooks
49 American Bar Association Journal — —
Oa ae
Black, Handbook of — Precedent (1912), pp.
35-835 ........... ;' 42
ix.
Page
45 Minnesota Law Review, p. § .................... 56, 57, 58
45 Minnesota Law Review, p. 20 .00..........ccceccceeeeeeeens 56
45 Minnesota Law Review, p. 21 ..............2..---ccececceoee 57
45 Minnesota Law Review, p. 22 ........ pounantinmicasamantente 57
45 Minnesota Law Review, p. 25 ........-....ccecceereeeens 58
Stern and Gressman, Supreme Court Practice, 3rd
ee 58
Stern and Gressman, Supreme Court Practice, 3rd
ic 1s TD abitveiintiemiesimiennmentnneamenemccen 51
Wambaugh, The Study of Cases (2nd Ed., 1894). p :
CREE SN Ae ERS Rae er 42
N THE
Supreme Court of the United States
October Term, 1965
No. 42
Ratex Gixzsurc, DocuMENTARY Books, Inc., Eros
Macazinxe, Inc., Liatson News Letter, INc.,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to the United States Court
of Appeals for the Third Circuit.
Brief Amicus Curiae of Citizens for Decent Litera-
ture, Inc., an Ohio Corporation, in Support of
Respondent.
¢ Interest of Amicus Curiae.
Citizens for Decent Literature, Inc., an Ohio Corpor-
ation, with local affiliates throughout the United States
is a non-profit, non-sectarian and non-political corpora-
tion with national headquarters in Cincinnati, Ohio,
formed for and dedicated to the cause of good, decent
and wholesome literature with a view to oppose and
eliminate obscene literature, by cooperating with law en-
forcement in the enforcement of the laws. For the
i a
=
aim
Court’s convenience amicus curiae is hereinafter re-
ferred to by the single short title, CDL.
CDL believes that there exists a growing flood of
publications, purposely designed and manufactured with
a sensationalized appeal to prurient interest, that threat-
ens to overthrow the basic morality upon which our na-
tion and our Constitution were founded; that while the
First Amendment of our Constitution has, from the
time of our nation’s founding, been construed to afford
no protection to such publications, a loud voice is now
being heard in the court-room advocating the overruling
of this “balancing of interest” interpretation in favor
of an absolutist approach, aimed at nullifying the na-
tion’s basic obscenity laws.
At its national convention in Chicago during October
of 1963, the national organization of Citizens for De-
cent Literature adopted a policy aimed at giving in-
creased support in the fight against “obscenity,”
through legal advocacy in the courtroom in support of
the people’s case.
Ralph Ginzburg, et al. v. United States of America
is a case of nationwide importance which will have a
serious effect on enforcement of the obscenity statutes
throughout the nation.
Statement of the Case.
On August 13, 1962, Eros Magazine, Inc. of 110
West 40th Street, New York, requested an application
to mail without affixed postage from the post office
at Middlesex, New Jersey, through General Mailing
Corporation, a mail-order house patron of the Middlesex
post office. Permit No. 8 was issued on August 14,
1962.
enGine
In letters dated September 4, 1962 and October 18,
1962, Eros Magazine, Inc. wrote the postmasters of
Blue Ball, Pa., and Intercourse, Pa. as follows:
“After a great deal of deliberation we have Ge-
cided that it might be advantageous for our direct
mail to bear the postmark of your city.”
The letters were on Eros Magazine, Inc. stationery and
were signed by Frank R. Brady, Associate Publisher of
Mr. Ginzburg. The postmaster of Intercourse, Pa., by
letter dated September 8, 1962, replied that his post of-
fice was too small to handle bulk mailings.
Eros Magazine, Inc. of 110 West 40th St., New
York, commenced mailings from Middlesex post office
on October 7, 1962, Approximately 5,053,884 pieces of
bulk mail advertisements for Eros Magazine had been
mailed up to the date of trial, June 10, 1962, at a total
cost of $132,704.93.
On November 20, 1962, Documentary Books, Inc.,
requested an application to mail without affixed post-
age from the post office at Middlesex, New Jersey,
through General Mailing Corporation, a mail-order house
patron of the Middlesex post office. Permit No. 8 was
issued on November 20, 1962. Thereafter 5,543 copies
of “The Housewife’s Handbook on Selective Promis-
cuity” were shipped from that post office.
First-class mailings of Liaison News Letter, Inc.
were also mailed from the Middlesex post of fice.
An investigation was commenced within days after
the first mailings of Eros at Middlesex, New Jersey.
Thereafter testimony was presented to a Federal
Grand Jury sitting in the Eastern District of Pennsyl-
vania, which on March 15, 1963, returned its true bill
OEE aoe ————o-_o™ —
of indictment charging petitioners in 28 counts with
mailing obscene publications and advertisements for
such publications, in violation of 18 U.S.C. 1461 [R.
la, 6a-13a]}.
Petitioner Ralph Ginzburg was named in all 28
counts, One of the three corporate petitioners was also
named with Ginzburg as a co-defendant in each of the
28 counts.
Petitioners Ralph Ginzburg and Documentary Books,
Inc. were charged with three counts (Counts 1 through
3) of having caused the mailing of advertisements to
two persons in Philadelphia and one person in Haver-
town, Pa., on November 15, November 17 and Decem-
ber 12, 1962, telling where an obscene book, “The
Housewife’s Handbook on Selective Promiscuity” by
Rey Anthony could be obtained. The same petitioners
were also charged with six counts (Counts 11 through
16) of having caused the mailing of the same obscene
book to six persons in Philadelphia, Pa.
The petitioners Ralph Ginzburg and Liaison News
Letter, Ind. were charged with three counts (Counts 4
through 6) of having caused the mailing of advertise-
ments on November 27, 1963 to three persons in New
Hope, Pa., Havertown, Pa., and Paoli, Pa., telling
where an obscene pamphlet, named “Liaison, Vol. 1, No.
1” could be obtained. The same petitioners were also
charged with four counts (Counts 23 through 28) of
having caused the mailing of the same obscene pamphlet,
“Liaison, Vol. I, No. 1” to four persons in Philadelphia,
Pa., one person in Jenkintown, Pa., and one person in
Valley Forge, Pa.
Petitioners Ralph Ginzburg and Eros Magazine, Inc.
were charged with four counts (Counts 7 through 10)
==
of having .aused the mailing of advertisements on
March 24, November 17, December 11, and December
18, 1962, to persons in Philadelphia, Pa., Rosemont, Pa.,
Chester, Pa., and Elkins Park, Pa., telling where an
obscene book, named Eros, Vol. 1, No. 4, could be ob-
tained. The same petitioners were also charged with six
counts (Counts 17 through 22) of having caused the
mailing of the same obscene book, Eros Vol. 1, No. 4,
to five persons in Philadelphia, Pa., and one person in
Gladwyne, Pa.
On April 11, 1963, petitioners filed a motion to dis-
miss the 18 counts of the 28-count indictment which
pertained to “The Housewife’s Handbook on Selective
Promiscuity” and Liaison Vol. 1, No. 1 on the ground
that such materials were not obscene within the mean-
ing of 18 U.S.C. Section 1461 [R. 13a]. Copies of the
book and pamphlet and advertisements referred to in
the 18 counts were attached to the motion as exhibits.
Annexed to the motion was an affidavit of petitioner
Ralph Ginzburg [R. 14a-l6a] saying that “prior here-
to and in February 1962” he had written 1000 “prom-
inent persons” asking their view on “The Housewife’s
Handbook” and annexing 69 replies thereto, together
with a book review of the “Handbook” by William J.
Bryan, Jr. M.D. appearing in the Journal of the Ameri-
can Institute of Hypnosis, January 1962 and a book
review of the “Handbook” by Dr. Robert M. Frumkin,
appearing in the Journal of Human Relations, Summer
1962, Vol. IX, page 513.
On May 8, 1963, petitioners acknowledged by stipula-
tion that in all counts in which the three publications or
the advertisements pertaining thereto were involved,
they “did knowingly mail or cause to be mailed the ma-
terials set forth in those counts on the dates set forth,
cities
fully knowing the contents of said materials.” [R. 149a,
150a, 152a].
On May 17, 1963, the people’s motion to strike the
Ginzburg affidavit and its 69 annexed exhibits was
granted. On May 23, 1963 petitioners’ motion to dis-
miss the 18 counts of the 28-count indictment was de-
nied [R. 15la].
On June 10, 1963, petitioners filed a waiver of trial
by jury [R. 2a]. The case was tried to the court on
June 10, 11, 12, 13 and 14, 1963, and the trial judge
rendered his verdict on June 14, 1963.
During its case in chief, the United States of Amer-
ica called the postmasters of Middlesex, New Jersey,
Blue Ball, Pa., and Intercourse, Pa., the postal inspector
of Middlesex, New Jersey, and the editor of Liaison
Vol. 1, No. 1. After introducing in evidence a copy of
“The Housewife’s Handbook on Selective Promiscuity,”
“Eros Vol. 1, No. 4” and “Liaison Vol. 1, No. 1,” and
the ten advertisements and their mailing envelopes, sup-
porting Counts 1 through 10, the people rested.
In their defense, petitioners called seven witnesses: A
clinical psychologist, an art critic, the author of “The
Housewife’s Handbook on Selective Promiscuity,” a
magazine editor, an attorney, a psychiatrist, and a
Southern Baptist minister/family counselor. Eight
books and pamphlets were introduced into evidence as
examples of “hard-core pornography” and 34 magazines
and paperback books were introduced into evidence as
having been recently purchased in shops in New York
City and Philadelphia. Pa.
In rebuttal the United States Government called
three witnesses: two psychiatrists (one male and one
female), and a Baptist minister/family counselor.
=
United States of America: Case in Chief.
Arthur J. Rodgers, Jr., the Postmaster of Blue Ball,
Pa. testified as follows: In the course of his business as
postmaster he had received a letter on the stationery of
Eros Magazine, Inc. dated October 18, 1962. and signed
by Frank R. Brady, Associate Publisher of Mr. Ginz-
burg, reading in part, “After a great deal of delibera-
tion, we have decided that it might be advantageous for
our direct mail to bear the postmark of your city. . . .”
[R. 152a-155a, Ex. G-1]. The postmaster’s reply was
not offered in evidence, nor was there evidence present-
ed of any mailings from the Blue Ball post office.
Miss Bertha M. Martin, the postmaster of Inter-
course, Pa., testified as follows: In the course of her
business as postmaster, she had received a similar letter
on the stationery of Eros Magazine, Inc., dated Sep-
tember 4, 1962, and signed by Frank R. Brady, reading
in part: “After a great deal of deliberation, we have de-
cided that it might be advantageous for our direct mail
to bear the postmark of your city. . . .” She informed
the originator by letter that, because of limited facili-
ties, the Intercourse post office would not be able to
handle bulk mailings in such a volume [R. 156a-159a].
Robert W. Sanders, the postmaster of Middlesex,
New Jersey, testified as follows: On August 13, 1962,
petitioner Eros Magazine, Inc. of 110 West 40th Street,
New York, requested an application to mail without af-
fixed postage, through General Mailing Corporation, a
mail-order house patron of Middlesex post office. Per-
mit No. 8 was issued on the following day. Substar.tial
bulk mailings commenced on October 7, 1962 and con-
tinued to the present time (June 10, 1963). Approxi-
mately 5,053,884 pieces of third-class bulk mail contain-
=_
ing advertisements for Eros Magazine went out, at a
mailing cost of $132,704.93. The total pieces of all
classes of mail was 6,067,573 and the cost of mailing
was $163,438.48.
On November 20, 1962, petitioner Documentary
Books, Inc. requested an application to mail without af-
fixed postage, through the same mail-order house pa-
tron of Middlesex post office and Permit No. 8 was
issued by his post office (Middlesex) on the same date.
A total of 5,543 copies of “The Housewife’s Handbook
on Selective Promiscuity” were received for mailing.
Liaison News Letter, Inc. also mailed first-class
mailings through his post office (Middlesex).
J. Shane Creamer. the Assistant United States At-
torney, placed in evidence the ten advertisements and
mailing envelopes which were received through the mail,
which were the basis for the first ten counts of the in-
dictment. The exhibits were the subject of a stipulation
previously filed with the Court on May 8, 1963, in
which the petitioners acknowledged that they did “know-
ingly mail or cause to be mailed” the same “on the
dates set forth, fully knowing the contents of said ma-
terials.” [R. 165a, 149a, 150a, 152a].
Hugh J. McDermott, a postal inspector of Middlesex
post office testified that he began investigating the
case as to a violation of the postal obscenity statutes
within days after the first mailings of Eros at the Mid-
dlesex post office [R. 172a].
John Willis Darr, the editor of “Liaison Vol. 1, No.
1,” the pamphlet named in the indictments, testified that
he had been a writer for twelve years and as such had
been referred to the Eros offices in September or Oc-
~~
tober of 1962, by an employment agency [R. 173a].
After an interview with Warren Boroson, he received a
post card from Mr. Ginzburg inviting him to submit
samples of his past work which he did. Within a week
of the time that he was referred by the employment
agency, he was interviewed by Mr. Ginzburg, who told
him he was looking for an editor and writer for Liai-
son. “Liaison” was to cover the same scope as “Eros,”
but in a more newsworthy fashion [R. 174a]. Follow-
ing this interview and at Ginzburg’s request, he sub-
mitted an article called “How to Run a Successful
Orgy” to their offices, which later appeared in Liaison
News Letter in a revised form [R. 175a]. Later Ginz-
burg telephoned him and said, “When can you start to
work?” [R. 177a]. He was hired at a salary of $7500
a year [R. 18la].
As editor of “Liaison” he inherited a collection of
magazines, newspapers, clippings and notes which he
used as research material and background for the news-
letter [R. 177a]. He identified, as having been written
by him, the statement of policy, appearing on page 1,
the article, “Semen in the Diet,” appearing on pages 4
and 5 and the article, “Sing a Song of Sex Life,” ap-
pearing on pages 5 and 6 of “Liaison Vol. 1, No. 1”
[R. 179a, 181la]. All of the copy for the newsletter was
placed in a basket on the desk of the front office and
from there it was transported up to Ginzburg’s office
upstairs. As a rule he would get the material back on
his desk the next day.
Ginzburg gave him instructions that the last page
should not contain any four-letter words. The newslet-
ter was folded for mailing in such a manner that two-
thirds of the last page was exposed to those handling
-—-
= =
the mails [R. 179a]. As to the statement of policy,
Ginzburg might have said, “It is all right” or “It is
good” or something like that [R. 179a]. He had a dis-
cussion with Ginzburg about his reaction to the article,
“Sing a Song of Sex Life.” They discussed the line
“The professors have crawled out of the dust and dis-
covered lust” and he thought Ginzburg liked that line
[R. 18a].
At the time of his termination of employment in No-
vember of 1962, he had completed five issues of “Liai-
son” and two had been published [R. 183a].
The Assistant United States Attorney placed in evi-
dence a copy of “Liaison Vol. 1, No. 1” [Ex. G-16, R.
178a]. “The Housewife’s Handbook on Selective Prom-
iscuity” by Rey Anthony [Ex. G-17, R. 184a] and
“Eros, Winter, 1962, Vol. 1, No. 4” [Ex. G-18, R.
185a] and rested the Government's case in chief.
Petitioners’ motion for dismissal of the indictment
on the ground that the Government had failed to make
out a case under 18 U.S.C. Section 1461 was denied.
Ralph Ginzburg et al.’s Defense.
Dr. Charles G. McCormick, a clinical psychologist,
testified that pornographic material could be described
in psychological terms and gave his opinion as to what
he, as a psychologist, considered to be pornography [R.
188a]. In his opinion pornographic material must “com-
bine both the sense of pleasure and the sense of guilt
or shame” in the individual [R. 188a] and that the
sense of guilt or shame was a “sense of being able to
engage in something that is intrinsically bad to the
reader based upon whatever he had accumulated from
the air in which he grew up. .. .” [R. 189a]. He
thought that most pornographic materials “are pub-
lished secretly . . . without acknowledgement . . . won't
even carry a title page on which the author’s name is
given or the publisher's name is given. There is no date
. » « Mo commitment for responsibility behind it.” And
that these surreptitious factors gave the person who
would read them the impression that sexual expression
was evil, sex was shameful and that what the material
was about was a shameful item [R. 1912]. In his opin-
ion one of the essential building blocks of pornographic
material was the distortion of reality, such as the reac-
tion of the pre-adolescent gir! io her violation in “the
autobiography of the flea.’ Such distortion was neces-
sary ‘‘to bring his readers attention exclusively on at-
tempting to absorb the guilty pleasure from the mate-
rial itself.” “. . . there would have to be something wrong
with the person for” the pornographic material he re-
ferred to not to act as a sexual! stimulant and produce
sexual stimuli. “. . . he would have to be ill in some way,
physically or psychologically.” [R. 193a].
In his opinion, while under certain circumstances, the
view of an attractive nude woman could erotically stim-
ulate an average male and such erotic response would
be felt and experienced by the individual exactly the
same as for pornographic material [R. 194a], the stim-
uli of shame which accompanied pornography would not
be produced in the viewer nor would he have an itching
or a morbid or a licentious sexual arousal unless the per-
son were pathological [R. 195a] or “the publication
were designed to do this, but under ordinary circum-
stances where the publication were a responsible one,
there would be no reason to expect this to be so.”
=_s
In his opinion, a person would have to be extremely
exhibitionistic (pathological) not to feel uncomfortable
about having his neighbor see him reading the material
which he considered as pornographic.
“... im presenting the examples of the type of
material which Dr. McCormick has testified to . . .”
[R. 20la] Sidney Dickstein, the defense counsel, placed
in evidence eight books and pamphlets: “A Small Pig”
booklet [Ex. D-1], a pamphlet, “John Dillinger in a
Hasty Exit” [Ex. D-2], a pamphlet, “Mr. Bregar is
Sold on TV” [Ex. D-3], a booklet, “Dagwood Has a
Family Party Let’s Go” [Ex. D-4], a pamphlet, “Se-
crets Will Out” [Ex. D-5], a book, “The Oxford Pro-
fessor” [Ex. D-6], a book, “The Autobiography of a
Flea” [Ex. D-7], and a book, “Devil’s Advocate” [Ex.
D-8]. Dr. McCormick testified that the effect of such
materials on the average person would “be one of revul-
sion, and one of being assaulted.” “In other words, it is
actually destructive for the individual, the ordinary in-
dividual to read that kind of material because he doesn’t
have the emotional base and he doesn’t have the capac-
ity for keeping context... .”
Dr. McCormick testified that he had read “Lady
Chatterley’s Lover.”” It was his opinion that while Ex-
hibits D-1 through D-8 and “Lady Chatterley’s Lover”
were all sexually stimulating, the impact on the system
of the ordinary individual was radically different. He
said “There is context. The reality setting, the reality
factors, the complications, the responsibilities of the
author, the attitude of the author as he presents the
material... .” [R. 203a]. In “Lady Chatterley’s Lover”
there “is a responsibility in the sense that the actual
presentation by the author gives you reality situations
rather well... .” [R. 204a].
—13—
Dr. McCormick testified that he was acquain' 1 with
“Lolita” by Nabakov. It was his opinion that the sub-
ject matter and themes of “Oxford Professor” (one
incident of which involved the seduction of an immature
girl) and “Autobiography of the Flea” and “Lolita”
(the story of the seduction of a pre-adolescent by an
established psychotic individual) were identical, but the
books were “different” in the way in which they dealt
with the similar subject matter. The difference was re-
ality. “Lolita” was psychologically sound. The author
makes the reader appreciate the fact that “this is one
individual's distortion, but a reality of distortion” [R.
205a]}.
Dr. McCormick testified that he had read “The
Housewife’s Handbook on Selective Promiscuity” and
that in his opinion the predominant effect of this ma-
terial was not to create in an average person an itching,
morbid or shameful desire or longing with respect to
sex [R. 206a]. In his opinion the book was not morbid,
nor did it tend to corrode and turn the reader against
himself in the process of reading [R. 210a], as was the
case with pornographic material. It gave a realistic pic-
ture of a woman's attitude and activities with respect
to sex [R. 210a]. It would not produce a guilty feeling
in the individual because it was supported by a respon-
sible attitude on the part of the author. A reader will
feel informed rather than guilty after having read it
{R. 21la}.
Dr. McCormick had read “Eros Vol. 1, No. 4” and
was of the opinion that the predominant effect would
not create in the average person an itching or morbid
or shameful desire or longing with respect to sex. He
thought that there were a couple of passages in Eros
that would be erotically stimulating to an average per-
son reading it, such as in the article by Frank Harris
[R. 212a] and the article by the Kronhausens [R. 213a]
and that they would not stimulate in the average person
a morbid or unhealthy attitude toward sex, because of
the reality context that the author, wto is quoted,
maintains. “While erotically stimulating, it is not patho-
logical” [R. 214a].
Dr. McCormick had read “Liaison Vol. 1, No. 1” and
was of the opinion that the predominant effect of it
would not create in the average person an itching, mor-
bid or shameful desire or longing with respect to sex, nor
would it be erotically stimulating [R. 215a]. He was of
the opinion that one who was already perverted (a para-
philiac) would be sexually stimulated because of psychic
distortions [R. 215a]. While both the article by Dr. Al-
bert Ellis and the article “Semen in the Diet” had the
tone of an assault on the reader, neither one would have
any erotic effect because they lacked any established as-
sociation with the reader [R. 216a].
Dr. McCormick was of the opinion “The Housewife’s
Handbook” would be quite useful as an educational in-
strument [R. 216a]. It gave a realistic portrayal of the
evolution of sexual awareness and sexual expression of
“an ordinary everyday person with the natural emo-
tional and intellectual limitations who had to grope.. .
through just like everyone else has to grope his way
through toward some kind of sexual adjustment. . . .”
He considered it a valuable instrument for a person
who was looking for sexual education. He thought the
book would be useful under supervision. The restriction
was imposed for the purpose of guiding the person in
making distinctions “where the layman in reading it
—15—
would not be able to distinguish those aspects hat were
the individual's own problems and those aspects of the
material that were a natural universal problem of get-
ting educated.”” [R. 217a].
The Assistant United States Attorney did not cross-
examine Dr. McCormick.
Horst W. Janson, an ari critic, testified as to the
origin of the etchings, engravings and woodcuts ap-
pearing in “Eros Vol. 1, No. 4” at pages 2, 6, 7, 8, 9,
10, 11, 12, 13 and 81 [R. 219a-220a]. He thought the
photographs on page 73 ct seq. in the essay entitled
“Black and White in Color” were “outstanding, beau-
tifully and artistic photographs.” The photographer had
an “extraordinary sense of form and composition” [R.
221a]. He saw the “symbolic expression of blending
together of the equivalence of the two people represent-
ed,” so familiar in certain British postage stamps, used
as an artistic compositional device, in the first photo-
graph depicting the Caucasian female’s facial profile
superimposed on the Negro male's profile, in the full
page photograph of the two eyes, and in the final full
page photograph depicting the full length nude Negro
male and nude Caucasian female in an amorous embrace.
He was of the opinion that in terms of material and
graphic layout and taste displayed in presenting the ma-
terial, Eros was the equal of any magazine being pub-
lished today [R. 222a].
The Assistant United States Attorney did not cross-
examine Mr. Janson.
Lillian Maxine Serett, the author of “The House-
wife’s Handbook on Selective Promiscuity,” testified
that she started writing the book 15 years ago and fin-
ished it three years ago. She had gone into the printing
=
business two years prior to finishing the book and had
printed it herself under the title “The Housewife’s
Handbook for Promiscuity” and the printing label,
Seymour Press [R. 223a]. The edition published by
Documentary Books, Inc. had the same textual matter
as her edition [R. 224a] which she originally published
in August and September of 1960. A reprint with an in-
troduction by Dr. Ellis was mailed out to doctors, psy-
chologists, and college professors who were heads of psy-
chology departments. Approximately 400,000 brochures
were mailed since October, 1960 and a little over 12,000
copies had been sold [R. 225a].
She stated that the Kinsey Reports confirmed her
belief that woman’s role in sex was widely misunder-
stood and that she hoped her beok, written in a layman’s
language, could communicate to women that the sexual
activities and attitudes they have are not unusual or
unique, that various forms of sexual expression are nor-
mal and healthy things to do and that women do have
sexual rights [R. 226a].
The Assistant United States Attorney did not cross-
examine Mrs. Serett.
Dwight MacDonald, a magazine editor and literary
film critic, testified that he reads about 200 books a
year or about five a week. He had seen a change or
movement in the permissible limits of sexual candor in
our literature, especially in the last five or six years
{R. 230a]. That “Fanny Hill,” which had always been
regarded as “hardcore pornography” should be published
was extremely significant in his judgment, as was the
publication of “Tropic of Cancer” and “Naked Lunch,”
“which is an extremely, really a sick book” [R. 23la].
_ =
He recalled that six or seven years 0 the models in
girlie magazines had to wear brassieres, whereas now
they can expose their bosoms, although “they can’t be
actually nude from the front anyway, but that will per-
haps come.” In the movie industry of the 20's, one could
not show two people living together who were not mar-
ried, nor could they show a husband and wife in a single
bed [R. 234a]. Now it was possible to show rape, pros-
titution, and explicit scenes of sexual intercourse [R.
235a).
Dwight MacDonald testified that he had read “The
Housewife’s Handbook on Selective Promiscuity” and
that in his opinion, “Speaking as a long-time student of
mass culture in American society” he would say (at it
did not go substantially beyond the customary limits of
candor that American society permits in its literature at
this time.” He thought that it was not a particularly in-
teresting book, that it had no literary value, and that its
only importance would be as case history for doctors.
In comparing it with “Lady Chatterley’s Lover,” he
thought the latter a work of literary art, whereas “The
Housewife’s Handbook” was not [R. 236a].
He was of the opinion that “Liaison Vol. 1. No. 1”
was “an extremely tasteless, vulgar and repulsive issue”
but that it did not go substantially beyond the custom-
ary limits of candor we tolerate in discussion of sexual
matters and that he did not think it obscene or porno-
graphic [R. 237a].
He was of the opinion that “Eros Vol. 1. No. 4” did
not go substantially beyond the customary limits of can-
dor which we in this country now tolerate and accept
[R. 238a]. He was of the opinion that the following
articles had significance or note for some literary
merit: “Love in the Bible,” “Jewel Box Review,” “Let-
ters from Allen Ginsberg,” “Was Shakespeare a
Homo?” “New Twists on Three Great Trysts,” “The
Natural Superiority of Women as Erotisists,” “Black
and White in Color,” and “Lysystrata.” [R. 239a]. He
thought there were a considerable number of articles
that had either trivial or poor literary merit and at least
one, “Bawdy Limericks,” had no merit and was quite
vulgar. Nevertheless, he did not think them obscene or
pornographic [R. 240a].
The Assistant United States Attorney did not cross-
examine Mr. MacDonald.
Sidney Dickstein, the defense counsel, placed in evi-
dence a copy of “Memoirs of a Woman of Pleasure” by
John Cleland [Ex. G-9] as having been discussed by
Dwight MacDonald.
Arthur J. Galligan, the law partner of the defense
counsel, testified that he had visited several stores in
New York City in the vicinity of 6th and 42nd Street
and in Philadelphia, Pa., in the vicinity of 15th and
Market and had made numerous purchases of paper-
back books, girlie and nudist magazines. The following
of his purchases were placed in evidence as Exhibits
D-10 through D-43* [R. 243a-256a] :
D-10 Waterfront Blonde
D-11 Rogue Magazine
D-12 Gang Girl
*Gang Girl and Wild Body held obscene in Chi. v. Wood, 63
M.C. 156720; Nymph +4 held obscene in Chi, v. Charles Kimmel,
63 M.C. 190116; Pastime, Vol. 2, No. 4, held obscene in Chi. v.
IWestbery, 63 M.C. 104281; Adam. Vol. 7, No. 6, held obscene in
Chi. v. Soden, 63 M.C. 155883: a. April 1964, held ob-
scene in Chi. v. Dahlia, 64 M.C. 127005; Snap, Vol. 4, No. 2, and
Tip Top. Vol. 3, No. 6, were subjects of federal obscenity indict-
ments in United States v. Milton Luros et al. (trial date Oct. 18,
1965); G s, Oct. 1963, held obscene in Dale Book Co. v.
Leary, 233 F. Supp. 754 (Aug. 12, 1964) ; see also other paper-
D-13 The Sucker
D-14 Pushover
D-15 Rock-N-Roll Gal
D-16 They Couldn’t Say No
D-17 Wild Body
D 18 Nymph Issue No. 5 .
D-19 Tic Toc Vol. 1 No. 2
D-20 Pastime Vol. 2 No. 5
D-21 Adam Vol. 7 No. 6
D-22 Satan’s Scrapbook Vol. 1 No. 1
D-23 Kiss No. 2
D-24 Stark Vol. 1 No. 1
D-25 French Frills Vol. 2 No. 5
D-26 Hipand Toe Vol. 1 No. 2
D-27 Vue, July Issue
D-28 Photo Button, Series 7
D-29 Treasure Box Review, Series 18
D-30 Treasure Box Review, Series 19
D-31 Tip Top Vol. 2 No. 6
D 32 Snap Vol. 3 No. 2
D-33 Twilight No. 3
D-34 Zoftick Vol. 2 No. 1
D-34 Ruby Vol. 1 No. 1
D-36 Torch Vol. 2 No. 1
D-37 Nude Word Issue No. 6
D-38 Gymnos July 1963
D-39 The Wrong Turn, and Season of Love
D-40 Escapade, August Issue
D-41 Cavalcade, August 1963
D-42 Scamp, September
D-43. M R Spring 1962
hack books, girlie magazines and nudist magazines which have
run afoul of the law as tabulated in CDL Commentaries, Vol. 1,
No. 2 (Nov. 1965). This problem of comparables is analyzed in
United States v. West Coast News Co., et al., 228 F. Supp. 171,
191.
ee ll mee et ee
Dr. Peter G. Bennett, a psychiatrist, was asked to de-
fine pornography in psychiatric terms. He stated his
opinion that pornography was more than an intense
stimulation of erotic feelings, which in itself was not
harmful or disturbing to the ordinary mature adult.
Pornography had, in addition to the erotic stimulation,
a disturbing disintegrative influence even on the mature
person which is almost impossible to resist and which
abrades the conscience, causing morbid feelings of
shame and guilt [R. 260a]. He stated that the average
well-adjusted person's deep-seated guilt and shame about
some aspects of sex as a result of his early education or
lack of it will disappear as the person allows himself to
become better acquainted with the subject, and that the
anxiety, caused by sexual realism, may even be turned to
a fuller enjoyment of life ‘as I think might happen
to many as a result of reading “The House-Wife’s hand-
book.” In his opinion, the characteristic of the mind
which was primarily attacked by pornography was its
narcotic appeal to the remnant of infantile narcissism
which is present in every-one—the selfish wish for total
satisfaction without regard for people or responsibility
which is characteristic of the newborn child [R. 262a].
Pornography forcibly stimulates intense narcissistic
fantasy by portraying orgiastic sexual and sadistic sat-
isfaction in the most compelling and unreal way. “The
narcissistic impulses cause a morbid sense of shame and
a desire to regress to infancy to some extent even in
the well-adjusted mature adult, whereas erotic realism
only causes an erotic stimulation without regression for
which the aforementioned individual would feel no
shame or guilt.” [R. 263a].
Dr. Bennett testified that the reading of “The House-
wife’s Handbook” by a mature person who is not men-
~~
tally ill ‘would not have the effect upon his psyche that
he attributed to pornographic material [R. 264a].
He testified that he had read “Eros Vol. 1, No. 4”
and that a reading of this volume by an average per-
son would not have the same effect as the reading of
the pornographic material which he had described. He
thought the predominant effect of some of the articles
was sexually stimulating and others was not [R.
265a).
He was of the opinion that there was nothing in
Liaison Vol. 1, No. 1 that would sexually stimulate an
average individual or create morbid or shameful or li-
centious thoughts [R. 266a].
On cross-examination by the Assistant United States
Attorney, he stated that the intent of the person pro-
ducing the material was not a factor in his psychia-
tric definition of pornography. It was his opinion that
what the American society as a whole understood to
be pornographic, #.e., persons who write things that
stimulate sexual curiousity violently for purposes of fi-
nancial gain, was not his psychiatric definition of por-
nography [R. 268a].
The trial judge asked Dr. Bennett if the acts of sod-
omy performed by Dr. Adler on the author as described
at page 207 would have any shameful effect on the av-
erage reader. Dr. Bennett replied that it would not in the
mature person [R. 27la]. The court inquired whether
those paragraphs “would suggest to a boy or girl near
21 years of age ways (sodomy) of having sexual inter-
course in order to have greater satisfaction” and Dr.
Bennett answered, Yes, and that it would be permissible
in his opinion. The court asked if Dr. Bennett was
speaking of mental or sexual maturity and Bennett re-
—_— ,; =
plied he was talking of emotional maturity. Dr. Ben-
nett said that he thought that the average 14-year old
would not be disturbed by reading such material. The
Judge asked if they read this, would they try to do this
in order to have greater sexual satisfaction. Dr. Ben-
nett said, no, not at that age. The Judge called his *-
tention to the paragraph preceding the act of sosomny
(where Dr. Adier tells the author that her husband was
sick, when he said that there were more important things
than sex etc.) and asked him if that would have an)
shameful effect on a reader or suggest a moral code
that it was all right to have sexual relations with one
not your spouse. Dr. Bennett agreed that was the au-
thor’s opinion but stated it would not create any shame-
ful effects. He was of the opinion that “A reader who
is old enough to wade through this book—and by that |
mean 12, 13, 14—would recognize that this is the au-
thor’s opinion but not necessarily the moral code or the
code of society.” 7
George Von Hilsheimer, III, a Southern Baptist
minister, who was trained in psychology and had done
some counseling and therapy with the underprivileged in
both urban and rural areas, testified to the attitudes
toward sex held by Christian groups and to certain
changes that have recently occurred [R. 281a}.
He said that he first saw ‘The Housewife’s Hand-
book” in 1960 when one of his colleagues gave him a
copy. He had used it since in his pastoral counseling
and in his psychological counseling with married women
who have a sense of shame, as a means of ventilating
that sense of shame [R. 289a}. He was of the opinion
that it teaches them their own sexual failures are not
unusual [R. 290a]. “We have an almost idolotrous con-
ania:
cept of marriage in our country. Little girls are told
practically from the moment of birth that this is the one
road to happiness and almost to salvation. They are
told that somehow a mystical magical experience is going
to occur with this marriage that was made in heaven,
which is a heretical theological notion in itself. They
will meet the man of their dreams, he will be perfect
for them, they will marry and things will be lovely and
beautiful thereafter. They are told this by comic books,
by television, by movies, by every possible medium of
public culture. They are told a lie. They are told a myth
... Now it is necessary for the pastoral counselor and
for the psychologist if he is going to be responsible to
his youth and to his parents to give them a more realis-
tic view of the world in which they live and the prob-
lems that they are going to face and to fit them with the
practical, detailed, immediate, realistic and unshamefully
communicated knowledge about the things which are
most important to them. This to me is the great value
of this book. It says, ‘you are not alone. This is the ex-
perience of many, many people,’ and it gives a certain
- amount of hopefulness to it. It is in my mind theologi-
cally quite an innocent book, . . .” [R. 29la]. In his
opinion the book was a straightforward recount of a
fairly unhappy history of a fairly typical woman and
was not drawn far from the average middle American
experience. Although he thought the standard mar-
riage manuals helpful, the language was too compli-
cated [R. 292a].
On cross-examination by the Assistant United States
Attorney he indicated he did not use the book as a blue-
print for what one was supposed to do but used it as
a means of ventilating a sense of shame [R. 294a].
It’s main value was that it discussed in quite simple
» Mer clase a _— — oo ee ~~ so ea — “a
terms things which were not ordinarily discussed. He
said he would give the book to the person being coun-
seled with a comment, “If you think you have difficul-
ties .. . then look at the book in this way and see what
it has to teach you.” He did not supervise since he be-
lieved that people can read freely and have the ability
to solve their own problems without his intimate and
daily guidance.” [R. 295a].
The trial judge asked if it was the kind of a book that
he would like to have in the library of his home if he
had a 14, 15 or 16-year old son or daughter. The Rev-
erend replied that it was in his library at home and
that his wife and the teenage children in his parish read
it [R. 296a]. The Judge asked him if, in his opinion,
the things discussed related to matters of sexual per-
version [R. 296a]. The Reverend replied that the kinds
of relationships the author describes were not commonly
held by psychologists as perversions, but whether or not
this is true, such was a “part of these children’s lives,
the material that is freely available to them is the hard-
core pornography, shamefully discussing lewd, prurient
kinds of garbage. .. .” “This kind of book in the set-
ting of a person they trust and respect who has said.
‘Read it, We will discuss it’ will form the relationship of
a new kind of understanding.” “If I am to work ef-
fectively with them I must have means to read, of talk,
or give them to read that with ease they can talk about
things they do know about in a distorted way, and then
we can talk about what is the kind of relationship you
should have and I should have, and the proper kind of
relationship.” [R. 297a].
The Court asked: “How about the person who reads
the book and doesn’t have the reverend to go to talk
==
to him about it and believes this is a code of morals that
should be followed as set forth in this book?” The Rev-
erend answered: “This is one of the difficulties to me
of pornography.” [R. 297a]. The Reverend did not
think any person, particularly a teenager, reading the
book was going to be convinced that adultery was a
proper way of life [R. 298a]. He thought the book
would be read “in the context of what kids and adults
are saying to each other.” [R. 300a}.
Asked by the Judge if he thought that wide circula-
tion of the book would be perfectly all right, he said
that he thought it would serve as a ventilation from
all the kinds of horrible trash that was freely avail-
able, the books on any newsstand which show sodomy,
lesbianism, homosexuality and adultery freely practiced
[R. 305a]. Asked by the Judge if such wasn't in this,
book, he replied: “But dealt with in an unshameful way,
a dry way, a straight forward way.” [R. 305a], He said
that he worked with children “whose common expression
is a four-letter expression. This is their form of greeting
and this is common and extending in our culture. I work
with adults whose common form of recreation is the tell-
ing of dirty and sometimes obscene and pornographic
stories” and that the book has “a tremendous value in
this kind of counseling.” [R. 307a].
Asked by the Trial Judge whether he would approve
of the methods of sexual relationship set forth in the
book (sodomy) the Reverend replied, “No, I would say
again that the intimate relationships of a loving couple
in marriage, so long as they have developed naturally
and with regard for the integrity of one another, that
there is no such thing as perversion.” The Judge then
asked him to read the passages on pages 207 describing
= =
the sodomy act and asked him the question with regard
to the relationship that is there (between the female
author and the male doctor, unmarried). The Rev-
erend replied, “I repeat, this was not described—so long
as it is in the boundaries | have stated—this does not
describe a perversion and it describes a kind of sexual
relationship which is generally regarded as quite permis-
sible and proper so long as it is within the right frame-
work.” [R. 31 la.]
The defense rested its case.
United States of America: Rebuttal.
The United States Government called three witnesses,
two psychiatrists and one minister. It was stipulated
that their testimony was to be considered for rebuttal
purposes only [R. 335a].
Dr. Nicholas George Frignito, a psychiatrist, testified
that in his opinion “The Handbook” had no medical
value, because it gave a distorted viewpoint of the
sexual behavior of women and the type of behavior that
is prevalent in our community, that it fosters sexual
perversity and implies adultery, fornication and sexual
perversion are all right [R. 320a].
In his opinion it was a danger to the majority but
was not a threat to professional people who had training
and knowledge in this sort of business [R. 32la]. This
type of material would be dangerous for an adult boy
in that it encourages all types of sexual behaviors such
as masturbation and increases sexual promiscuity [R.
322a]. It would incite the average 14-year old to sexual
misconduct [R. 323a] and lead to “self abuse, mas-
turbation and that would lead to other types of sexual
activity” {R. 324a]. As to the average adult person it
= =
would stimulate his » srient interest and certainly would
mislead him into believing that such was acceptable be-
havior in our community. The prurient interest he
referred to was “the stimulation by writing or porno-
graphic books to sexual misconduct or instilling lustful
feelings” [R. 324a].
Asked on cross-examination by the defense counsel
whether the authoress’ view toward sexual practice was
widely held by other commentators on sex, he an-
swered, “I don’t know the exact number, but those men
that I associate with rather closely do not hold to this
type of sexual behiavior. I would say that the majority
of psychiatrists that I am in contact with do not ap-
prove of say abnormal, aberrant sexual acts.” [R.
327a}.
Dr. Ann Hankins “ord, a psychiatrist, testified that
she had read “The Housewife’s Handbook,” and that in
her opinion it had no medical value. In the field of
psychiatry in which she was involved (disturbed per-
sons) it would be a destructive book [R. 337a, 339%a].
In her opinion the authoress was emotionally very im-
mature, a very disturbed person, who had not progressed
emotionally from the age of childhood when people are
in a normal homosexuz! stage [R. 337a]. Asked if the
book had any medical message to it, she replied the only
message she found in the book was “if you are dissatis-
fied with your husband look around and get some
other man” [R. 338a]. “The clitoris is a remnant of the
male penis from fetal development and this is so em-
phasized in this book, it is the only penis this woman
has, and she all but works it to death. She must have
this recognized. She must have great male attention
paid to her substitute penis, and in this way she is not
ay,
making love to the men. This is not a lovers’ relation-
ship; it is a matter of demeaning, sullying these men
whom she comes in contact with.” [R. 338a]. The
author is so confused and far from understanding what
her problem is that it would reinforce the anguish and
feelings of hostility” that patients in a similar situa-
tion had [R. 338a]. It would not have any value in
the treatment or counseling of her patients but would
be more disturbing to them [R. 338a].
Reverend Adolph Emil Kannwischer, a Baptist minis-
ter and Professor of Psychology, testified that he would
not use the “Housewife’s Handbook” in counseling
parishoners or people because he regarded it was detri-
mental to a person who already was having problems.
He saw no positive value in it [R. 344a].
The United States Government rested its case.
The Assistant United States Attorney's motion to
strike Exhibits D-1 through D-43 and the testimony
of the expert witnesses regarding responses of the av-
erage person and community standards was refused
[R. 347a].
The defense attorney’s motion for a judgment of ac-
quittal was refused [R. 348a].
The trial judge found the defendants guilty on all
counts. The trial court’s opinion appears at R. 355a and
in United States v. Ralph Ginsburg et al., 224 F.
Supp. 129 (Nov. 21, 1963). On December 19, 1963, the
trial judge sentenced petitioner Ginzburg to five years’
imprisonment and a fine of $28,000. and fined the cor-
porate defendants $500 on each count [R. 373a-376a].
(A notice of appeal was filed on the same day). [R.
380a}.
—29.
The United States Court of Appeals, Third C:-cuit,
affirmed the judgment of the District Court in United
States v. Ralph Ginsburg et al., 338 F. 2d 12 (Nov.
6, 1964). This opinion appears at R. 385a.
Summary of Argument.
I.
The public policy of the United States Supreme Court
has always championed the obscenity laws. Yet with all
of this case law support, the communities are being
inundated by a horde of obscenity which the law is not
reaching.
The prosecutors are claiming that they have no reme-
dy and that the Supreme Court stands too eager to re-
verse their successes, when they occur. Amicus do not
picture this to be the true situation.
This Court recognizes that the debasement of sex has
been with mankind down through the centuries and that
the obscenity laws are necessary for a strong commu-
nity life. The Roth-Alberts decision is testimony of the
fact that criminal penalties are authorized procedures
to regulate this type of conduct.
Most of the recent cases before this Court since 1957
have involved “previous restraint” controls, such as
movie licensing cases, search warrant procedures, the
right of the postmaster to refuse mail on the grounds
it is obscene, etc. Whereas an earlier Court in Near v.
Minnesota had indicated “previous restraint” could
clearly be employed against obscene materials, this mod-
ern Court has restricted that interpretation considerably
by procedural rules. In doing so, a number of obscenity
judgments were reversed on procedural grounds, making
it appear that this Court was releasing the matter as
—30—
not being obscene. Such decisions have misled and dis-
couraged prosecutors.
In several cases the justices have been unable to agree
on an “Opinion of the Court.”” The theories of the case
set forth by the individual justices do not lead to an
orderly understanding of the law.
On the other hand, this Court has denied review in at
least 21 criminal cases which have come before it since
1957. These cases were without opinion and have not
been publicized. They are not generally known to the
individual prosecutors, who lose heart when they see all
losses and no victories.
Then too, some prosecutors do not recognize the dis-
tinction between criminal prosecutions and previous re-
straint cases. A favorable written opinion confirming
the trial court’s findings in this criminal case is essen-
tial to the people’s cause if we are to break the stalemate.
The prosecutors need a direct signal from the Court,
that they can retain their victories in criminal cases.
Il.
Petitioners waived a jury at the outset and placed
their fate in the hands of the trial judge. They should
not be allowed to argue on appeal issues which would
not have been available to them had a jury tried the
matter.
The trial judge was receptive to all that the petition-
ers had to offer in the way of evidence. He was not
required to accept their theory of the case, in view of
~~ =
the subject matter and condu— of the petitioners, which
spoke for itself.
If this Court, in its decision in Roth-Alberts actually
passed upon the obscenity vel non of such subject mat-
ter, that case should be controlling here, because of the
similarity of the material and operations of the peti-
tioners.
The trial court properly followed the Roth standards
in holding petitioners’ three publications obscene. Evi-
dence of the purpose of the publisher in regard to one
publication is probative as to his purpose in the other
two, as a common scheme or plan.
Redeeming social value is not determined in a vacuum,
but depends upon all of the circumstances. The variable
nature of obscenity requires this. The obscene portions
of the material must be balanced against its affirmative
values in determining the predominant appeal taken as a
whole.
fie
ARGU MENT.
I
An Integrated Review of the Obscenity Case Law.
A. Public Policy.
The public policy of this Court has always cham-
pioned the obscenity laws. See Rosen v. U. S., 161 U.S.
606 (1896),’ decided by the U.S. Supreme Court at
the turn of the century. This favored policy is not dif-
ficult of understanding. Central to our heritage is the ex-
pectation that our Courts should strive to preserve
our heritage and should not give scandal’ by tolerat-
ing anything which tends to debase public morals.
‘Rosen attempted to escape a jury conviction on an obscenity
had not been of the nature of the crime. United
States Court Justice John Marshall Harlan,
father of United States Supreme Court Justice John
Marshall rejected this plea out of hand and, in invoking
5
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a
United States against a book, Commonwealth v. Holmes, (1821).
The book in the Massachusetts case was “Fanny Hill,” a cen-
tury and a half later to find its way before this Court in A
Book Names “John Cleland’s Memows of A Woman of Pleas-
4 v. Attorney General of Massachusetts, October Term, No.
*Webster's Collegiate Dictionary, Fifth Edition, defines “scan-
dal” as “The distressing effect on others of unseemly or un-
righteous conduct; especially, an occasion of another's lapse in
faith or morals as to give scandal to one’s children . . . 3. That
which offends established moral conceptions or disgraces all who
are associated or involved.” Tolerance of indecency, for any rea-
son, even for purposes of administration, had the undesirable ef-
fect of giving notoriety and acceptance to the material and dig-
nifying its appearance.
==
Less than 35 ears ago this Court underscored this
same “favored position” of the obscenity laws when, in
Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L.
Ed. 1357 (1931)* the members of that Court made it
clear that immunity from previous restraint did not
extend to obscene publications.
Eleven years later, not one member of the 1942 Court
entertained any doubt that the existence of obscenity
was contrary to the people’s abiding interest in good pub-
lic morals. Neither the prevention of publication (previ-
ous restraint) nor criminal punishment for dissemina-
tion raised any constitutional problems in their view. In
Chaplinsky v. New Hamphsire, 315 U.S. 568, 86 L.
Ed. 1031, 62 S. Ct. 766 (1942) that Court said at
page 571:
“. . . There are certain well-defined and narrowly
limited classes of speech, the prevention and pun-
ishment of which have never been thought to raise
any Constitutional problem. These include the lewd
and obscene. . . . It has been well observed that
such utterances are no essential part of any exposi-
tion of ideas, and are of such slight social value
as a step to truth that any benefit that may be de-
rived from them is clearly outweighed by the so-
cial interest in order and morality... .”
*The objection has . . . been made that the principle as to
immunity from previous restraint is stated too broadly, if every
such restraint is deemed to be prohibited. That is undoubtedly
true; the protection even as to previous restraint is not absolutely
unlimited. But the limitation has been recognized only in scoop
tional cases. ‘When a nation is at war many things that might
said in time of are such a hindrance to its effort that
their utterance will not be endured so long as men fight and
that no Court could regard them as protected by any constitu-
tional right.’ Schenck v. United States, 249 U.S. 47, 52. No one
would question but that a government might prevent actual ob-
struction to its recruiting service or the publication of the sailing
dates of transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be
enforced against obscene publications.” (Our emphasis. )
itive
Ten years later, the majority of the members of the
1952 Court in Beauharnais v. Illinois, 343 U.S. 250,
72 S. Ct. 725, 96 L. Ed 919 (1952) agreed with the
Chaplinsky Court, adding:
“Certainly no ome would contend that obscene
speech, for example, may be punished only upon a
showing of such circumstances (clear and present
danger)...”
When, five years later, in Roth v. U.S. and Alberts
v. California, 354 U.S. 476, 77 S. Ct. 1314, 1 L. Ed
2d, 1498 (June 24, 1957), this present Court was faced
with a broadside attack on the statutes guarding pub-
lic decency, seven members of this modern court stood
firm and enunciated a solid distaste for obscenity. Rosen
v. U.S. (supra), Near v. Minnesota (supra), Chaplin-
ski v. New Hampshire (supra), and Beauharnais v. Il-
linois (supra) were all confirmed, The language of
Rosen was cited with approval. Everyone was charged
with notice of what must be deemed obscene. The Roth-
Alberts majority opinion placed emphasis on the lan-
guage of Chaplinski noted above. Obscene utterances
were of such slight social value as a step to truth that
any benefit to be derived from them was clearly out-
weighed by the social interest in order and morality.
The above language of the Beauharnais Court was cited
with approval. No one could contend that obscene speech
could be punished only upon a showing of a clear and
present danger.
Under such a regime, it did appear as though the
communities had the proper defense mechanisms and the
modern assault on public morality could easily be turned
back.
= =
Yet with ill this unanimity, elegance of language, and
profuseness of citation to buttress the foundations of
our anti-obscenity fortresses, the stockades are present-
ly in danger of collapsing for lack of riflemen, abetted
by confusion. The communities of this nation, eight
years later, find themselves with a horde of filth, print-
ed, visual, vocal and otherwise, of unprecedented force,
threatening to erode the very foundations of the basic
morality upon which our nation and our Constitution
were founded.‘ In the face of this peril the public prose-
*“A tide of printed filth is advancing across the land in a
way which should give every wholesome-thinking person cause
basic monn nner it may not erode the very foundations of the
basic morality upon which our nation and our Constitution were
founded.
In bookstores, railroad stations, air terminals, drug stores,
everywhere that print is displayed and pictures revealed, there
stand pyramids of smut, pornography and obscenity contaminat-
ee the paper which carries it.
ines with pictures and sketches that would disgrace
criental harems are told fo children as if they were as nnotoous
as bags of Exotic rites that bring the blush of
shame to the faces of the most primitive tribes are described
Sad be en teen gh priced beska, medium-priced books,
sat ine paead bonke. which should be the subject only
tor Clinical ‘studies. in the hospitals for the criminal insane are
the youths into whose hands they fall. to bring harm to
!
4
i
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id
——
cutor bleats that he has no remedy and that it is useless
to prosecute, since the Supreme Court will reverse the
jury’s findings.
CDL is at complete odds with such ideology. Unlike
our knowledge of outer space, which is increasing in ge-
ometric proportions through discoveries in space explo-
rations, our knowledge of sex is profound, for sex has
been with us since the beginning of mankind. As to the
sexual relation, it can be said, with some degree of
truth, that there is “nothing new under the sun.” Simi-
larly, the assault which has as its objective the debase-
ment of sex has been with mankind down through the
centuries. That which motivates the pornographer, in
1965, motivated John Cleland two centuries earlier. Rec-
ognition of the universal need for strong community
are suggestive, pornographic, indecent and obscene shout their vul-
garity to passersby.
It used to be that ic literature, to the extent that
it existed, was sold inely. The secrecy and the furtive-
with
of the vilest character.
In short, a wide river of filth is sweeping across the nation,
befouling its shores and spreading over the land its nauseating
saath. Det. what is most disturbing of all, is that persons,
whose noses should be particularly sensitive to this olfactory as-
sault, do not smell it at all. I refer to district attorneys and prose-
cuting officers throughout the nation. Of course, there are a large
number of district attorneys in the country who are doing their
duty and doing it well, but a larger number of prosecuting of-
ficials are shrugging unconcerned shoulders at this violent as-
sault on law, morality and decency.”
... From an address given by Associate Justice Michael
A. Musmanno of the Pennsylvania Supreme Court at
the Waldorf-Astoria New York City on October 23, 1965.
= =
‘ mtrols in this modern era has amply been witnessed
by this Court in Roth-Alberts when it said at page
484:
“But implicit in the history of the First Amend-
ment is the rejection of obscenity as utterly with-
out redeeming social importance. This rejection for
that reason is mirrored in the universal judgment
that obscenity should be restrained, reflected in the
international agreement of over 50 nations, in the
obscenity laws of all of the 48 states, and in the
20 obscenity laws enacted by the Congress from
1942 to 1956... .”
Nevertheless, there is, in our opinion, a crisis facing this
nation which requires the members of this Court to bear
witness through concrete action and to drive home, once
and for all, the basic fact, which is escaping so many
at the present time, that this Court really has not, in
its decisions since Roth-Alberts underwritten the sale of
“perversion for profit.”
If we understand correctly what has occurred in the
ensuing years since Roth-Alberts, this Court has not
altered the basic position taken by it in those cases:
namely that criminal cases which applied the proper
standard for judging obscenity, did not offend constitu-
tional privileges. This Court held at page 492:
“In summary then, we hold that these statutes, ap-
plied according to the proper standards for judging
obscenity, do not offend constitutional safeguards
against convictions based upon protected material.
or fail to give men in acting adequate notice of
what is prohibited. . . .” (Our emphasis).
=
B. The Problem of Previous Restraint Cases.
Unfortunately, a line of cases followed which enjoyed
in common the element of previous restraint,’ a factor
not present in the Roth and Alberts cases, which author-
ized criminal penalties as the just consequences of the
defendants’ temerous conduct. This Court did not react
as favorably to this new issue as the earlier Courts in
Near v. Minnesota (supra) which had excluded pre-
vious restraint controls in the case of obscene publica-
tions from the operation of the Blackstone rule, which
held that:
“The liberty of the press is indeed essential to the
*Previous (prior) restraint was a major issue in each of the
following: Times Film Corporation v. City of C w= 355
US. 35, 78 S. Ct. 115, 2 L. Ed. 2d 72 (1957) (Movie li-
cense—no opinion), reversing 244 F. 2d 432 (7th Cir. 2
and 139 F. Supp. 837 (1956); Mounce v. U. S., 355 U.S. 180,
2 L. Ed. 2d 187 (1957) (customs case—no opinion), reversing
247 F. 2d 148 (9th Cir. 1957) and 134 F. Supp. 490 (1955);
oo hs (rte yt ae 78 S. Ct. ‘ »2h. ae
ight to sit mail—no opinion) reversing 241
F. 2d 772 = Cir. 1957); Sunshine Book Co. v. Summerfield,
355 US. = S. Ct. 365, 2 L. Ed. a> a] ee
to deposit —no opinion) i : C.
Circuit 1957) and 128 F. Supp. 564 (1985 ; Times Film ‘g°
v. City of nicoge, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed.
403 (Jan. 23, 1961) (movie license) reversing 272 F. 2d 90
7th Cir. 1959) and 180 F. Supp. 843 (1959); Marcus v.
ansas City Search Warrants, U.S. 717, 81 S. Ct. 1708,
6 L. Ed. 1127 (June 19, 1961) (Seizure), reversing 344
S.W. 2d 119 (1960); Manual Enterprises Inc. v. Day, 370 U.S.
478, 82 S. Ct. 1432. 8 L. Ed. 2d 639 (June 25, 1962) (right
to deposit mail), reversing 289 F. 2d 455 (D.C. Circuit 1961)
Bantam Books Inc. v. Sullivan, 372 US. 38, 83 S. Ct. 631,
9 L. Ed. 2d 584 (Feb. 18. 1963) (Warnings) reversing 176
A. 2d 393; A Quantity of Books v. Kansas, 378 U.S. 205,
84 S. Ct. 1723, 12 L. Ed. 2d 809 (June 22, 1964) (Seizure),
reversing 191 Kan. 13, 379 P. 2d 254 (1963); Freeman v. Mary-
land, U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (Mar.
1, 1965) (Movie license), reversing 233 Md. 458, 197 A. 2d
232 (1964); Trans-Lux Distributing Corp. v. Board of Regents
of the Unwersity of New York, U.S. 259, 85 S. Ct. 952,
13 L. Ed. 2d 959 (1965) (movie license—no opinion ).
39
nature of a free state; but this consists in laying
no previous restraints upon publications, and not in
freedom from censure for criminal matter when
published. Every free man has an undoubted right
to lay what sentiments he pleases before the pub-
lic; to forbid this, is to destroy the freedom of the
press; but if he publishes what is improper, mis-
chievous or illegal, he must take the consequence of
his own temerity” 4 Bl. Com. 151, 152.
The cloud of confusion which was to appear was fore-
case in Kingsley Book Inc. v. Brown, 354 U.S. 436, 77
S. Ct. 1325, 1 L. Ed. 2d 1469 (June 24, 1957), decided
on the same day with Roth-Alberts. In that case, this
Court split five-to-four in approving the New York in-
junctive action, which authorized limited previous re-
straint. It was here that Justice Brennan and Warren
parted company with the majority in the Roth and the
*For example, the claim is widespread that Sunshine Book Com-
pany stands for (he proposition that nudist magazines are not
eS eS ee SS Ee SS
intent, the format, method of of the state
etc. See here the recent result in Connecticut v. Martin et al.
une 17, 1965), where the Appellate Division of the Circuit
reversed (2-1) an ext well reasoned trial court
solely the basis of Sunshine Book Co. case
Serr Ct pte si I
ican Cor, ion wv. Ch . une
> ag vertorari denies 83S. Ct 192, 13 L. Ed. 24-176
(Nov. 9, 1964); Luros v. Hanson, petition for certiorari filed
cot. 27, 1965, Oct. Term, 1965 No. 620; Hadley v. Arkensas,
Ark. 1027, 172 S.W. 2d 237 (rs) : King v. Common-
wealth, 233 S.W. 2d 522 (Oct. 20, 1950); Missouri v. Becker,
364 Mo. 1079, 272 S.W. 2d 283 (1954), cited with approval in
—40—
opinions in Marcus, Manual Enterprises, Inc. and A
Quantity of Books gave specific recognition to the fact
that the obscenity issue was not reached in this Court's
reversals of those lower Court judgments on previous
restraint grounds. What factor the previous restraint
element played in the 1958 decisions will never be
known.’ Subsequent opinions 'av« revealed a common
disagreement between the justices on what constitutes
the vital phase of the case. See the No Clear Majority
isions, infra. Then too, the Court’s membership has
s
changed.
As breeding grounds, the 1958 per curiam reversals
acted with catalytic action to spawn the “hard core por-
nography” rule in one of the major centers of porno-
praphic production in the United States. New York v.
Richmond County News Co., 175 N.E. 2d 681 (May 25,
Roth-Alberts at footnote 26: Sunshine ishing Co. v. G
N. Parris (unreported, Circuit Court, Macomb 3
1963); Nebraska v. Jungclows, 176 Neb. 641, 126 N.W. 2d
858 (Mar. 13, 1964); Dale Book Co. v. Leary, 233 F.
754 (Aug. 12, 1964) ; City of Phoenix v. Fine (
perior Court M County, Arizona (Jan. 22, 1 Mi
te wy . 24 2 (Mar. 8, 1 Te ga,
June 10, 1965); Arisona v. Arizona Magazine Distributors Inc.
( West Phoenix i Cc °
(Aug! 26, 1965) : Aricome v. Al Sacks (anreprted, Wes Phoenix
Justice Court, Maricopa County (Sept. 1, 1965).
The author cites Justice Jackson's remarks on i
reversal of a case without opinion in Brownell v. Singer, 347 U.S.
ae at
24 rt's one-word decision reverses ing judg-
ments of three highly courts .. . (by citing) a
o* - VO Ld a ey
t ession something more t erence to an
lanpplbable decision.” ™
*Justices Frankfurter, Whittaker and Burton have been re-
placed by Justices Fortas, White and Stewart.
otius
1961.)® Abetted by a misconstruction of the no clear
majority opinion decision in the Manual Enterprises
Inc. case and a misapplication of the special view enter-
tained by Justice Harlan in federal cases, the “hard core
pornography” rule spread to the other major centers of
pornographic production. Zeitlin v. Arnebergh, 59 Cal.
2d 901, 31 Cal. Rptr. 800 (July 2, 1963).
C. The No Clear Majority Decisions.
The common disagreement between the justices has
given birth to a number of “no clear majority” deci-
sions which confound and confuse.” Manual Enter-
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—_v
prises Inc. v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 L.
Ed. 2d 639 (1962); Jacobellis v. Ohio, 378 U.S. 184,
84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964); A Quantity of
Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L.
Ed. 2d 809 (1964); Grove Press Inc. v. Gerstein, 378
U.S. 577, 84 S. Ct. 1909, 12 L. Ed. 2d 1035 (1964);
Tralins v. Gerstein, 378 U.S. 576, 84 S. Ct. 1903, 12 L.
the court,” as where the majority have agreed only the re-
sult, (4.¢., judgment reversed) but have not been to agree
Py > ;
See W. gh, The Study of Cases (Second Edition, 1894), at
SO:
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370 US. 478. holding the publication of
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ment. (Our emphasis). %
The Arizona Supreme Court's reversal of a jury decision on
girlie magazine subject was based largely on a compari-
—A43—
D. A Major National Problem.
In the absence of knowledgeable defending riflemen,
compounded by the confusion, those well-buttressed for-
tresses are being subjected to a withering attack. On
October 21, 1965, the Los Angeles County Grand Jury
returned a two count indictment against 14 defendants
in California v. Milton Luros, et al., Superior Court
case No. 295,183, for conspiracy to manufacture and
distribute girlie magazines, nudest magazines and nine
lesbian-type paperback books (including Fanny Hill).
On February 15, 1965, the count covering the girlie
and nudist magazines was dismissed without trial in a
pre-trial motion to dismiss the indictment. Superior
Court Judge Walter R. Evans, in dismissing, had this
to say:
“In view of the time I have had to study it, I
have found it extremely interesting, but absolutely
amazing. I was concerned as to the extent to which
the United States Supreme Court—I am very
frank to say, and I think I am entitled to say
it, that I disagree wholeheartedly with the United
States Supreme Court cases. I think the so-called
founding fathers who promulgated our Constitution
probably would turn over in their graves if they saw
the extent to which the United States Supreme
Court has stretched the protection to this type of
material which to me, has no value to anybody.
However, that is my personal position. I want to get
that off my chest. I think there is nothing but filth
from beginning to end in this material. However,
—’
that is my personal opinion, and I think that counsel
pointed out that I still have an obligation to follow
what I think are the rules laid down by the United
States Supreme Court. I was interested in reading
one of the learned justices who said that maybe
some day the balance will start swinging back where
honesty and decency would start entering into a con-
sideration of this thing. I hope it will.”
He thought eight of the lesbian-type paperbacks (but
strangely, not Fanny Hill) a jury issue, and Count 2
was set for trial. The people’s action was short lived
however. Although both the District Court of Appeal
and the California Supreme Court thereafter refused the
defendants a writ of prohibition on the count involving
the lesbian-type paperback books, Trial Judge Joseph
Sprankle dismissed the case, without trial on June 14,
1965. The books’ titles, Lesbian Sin Song, Two Women
in Love, Counterfeit Lesbian, Lesbian Captive, Les-
bians in White, The Girls at Wendy’s, The Three Way
Apartment and Honey Lips, sung out the perversion
they peddled.
In another action by the people—this time against a
notorious national disseminator located in New York—
a criminal obscenity indictment was short-circuited by
trial judge J. Irwin Shapiro, when he dismissed New
York v. Ray Kirk, Birch, All State News Co. Inc., et
al., 40 Misc. 2d 626, 243 N.Y.S. 2d 525 (Sept. 6, 1963)
without trial. In so holding, Judge Shapiro refused
to follow controlling precedent in his state, for one of
the books supporting the indictment had already been
held obscene by New York's highest court in New York
v. Harry Fried, 18 A. 2d 996, 238 N.Y.S. 2d 742 (Mar.
26, 1963). Appeal dismissed for want of jurisdiction.
atin
Treating the paper whereon the appeal wa- taken as a
petition for writ of certiorari, certiorari is denied (Jus-
tice Black, Douglas and Stewart are of the opinion
probable jurisdiction should be voted and judgment re-
versed 378 U.S. 578, 84 S. Ct. 1904, 12 L. Ed. 2d
1033 (June 22, 1964).”
E. A Problem of Communication.
The confused results reached in the lower courts
noted above does not seem warranted to CDL, when one
considers the overwhelming weight of case law in the
opposite direction. The key to an awakening of law en-
forcement seems bound up in the remarks of Chief
Justice Warren in Jacobellis v. Ohio (supra) at page
1684:
“. . . This Court hears cases such as the instant
one not merely to rule upon the alleged obscenity
"Federal courts are equally confused. See United States v.
Klaw and Jack Kramer, 350 F. 2d 155 oy Circuit July 15,
1965) and Haldeman v. U.S., 340 F. 2d 59, 62 at fn. 6 (10th
Cir. Jan. 13, 1965):
ee art, concurring in Jacobellis, declined to de-
and i ions of females in the nude and the latter involved
motion picture films, compare these
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