Petition for Writ of Certiorari — Joe Davis v. United States

“~ FiLia”

itn fo

ist ae FEB 4 1966

JOHN F. DAVIS, CLERK

IN THE

Sppreme Court of the United States

Octoszz TzRM, 1965.

—Mase- |

¥-98 0

JOE- DAVIS,

Petitioner,

against

UNITED STATES OF AMERICA,

_ Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE ._

UNITED STATES COURT OF APPEALS

_FOR THE SECOND CIRCUIT. —

MartTIn GARBUS,

Attorney for Petitioner,

1 East 44th Street,

New York, New York 10017.

On the Petition, ne

Martin GARBUS.

Opinion Below

Jurisdiction

The Questions Presented for Review..<

Constitutional Provision and Statutes Involved.......:

Statement of the Case

Reasons for Allowance of the Writ

wa

INDEX.

The Manner in Which the Questions Sought to, be

Reviewed were Raised

The Questions Presented are Substantial_..............

}

18 U. S. C. 1461 and 1463 as interpreted and

applied in this case violates the Federal Con-

stitutional guarantges of freedom of com- —

‘ munication and due process because they

II.

Conclusion

authorize the punishment of one who mails

obscene material, that is not hard-core pornog-

raphy, without requiring proof that the mate-

rial offends the standard of the people of the

nation and that the material is obscene accord-

ing to any of the standards formulated by this

Court

18 U. S. C. 1461, 1463 violates i a.

tional guarantees of freedom of communica-

tion in sanctioning a conviction for mailing

obscene material without proof that the

accused knew the materials were obscene........

Appendix A—Majority Opinion of the United States

Court of Appeals for the Second Circuit and Dis-

senting Opinion

Appendix B—Judgment Appealed From

| PAGE

10

12

12

oO Oo ® DH DO

li

TaBLE or CasEs.

PAGE

3 Alevander v. U nited States, 271 F. 2d 140 13, 19

Cohen v. Fla., 125 So. 2d 560 . 19

Demetropolos v. Commonwealth, 342 Mass. 658,175 =>

N. E. 2d 259 ‘19

Freedman v. Marylgnd, 380 U.S. 51... ; 19

Jacobellis v. Ohio, 378 U.S. 184...... : 10, 14, 16

> .

Klaw v. Schaffer, 151 F. Supp. 534 “14

Lamont v. Postmaster General, 381 U. 5. | ee “ 19

Manual Enterprises v. sional 370 U.S. 478. 9, 10

13, 14, 16, 17, 18, 19

Parmelee v. United States, 113 F. 2d 729 14

Roth v. Goldnien, 172 F. 24 788 : 15, 17

Smith v. California, 361 U. S. 147 10, 13, 17

Speiser v. Randall, 357 U. S. 513 13

State v. Hudson County rent 35 N. J. 284, 173 A.

© 2d 20 ‘ 19

State v. Locks, 97 Ariz. 148, 397 P. 2d 949 | 19

State v. Oman, 261 Minn. 10, 110 N. W. 2d 514............ 19

State v. Sul, 146 Conn. 78, 147 A. 2d 686 19

Staub v. Baxley, 355 U. S. 313....

Thompson v. Louisville, 362 U. S. 199 me 13

United States v. Kl&w, 350 F.2d 155 (2d Cir.)............ 9, 18,

: rote 14, 15, 16

United States v. Roth, 354 U. S. 476 17

- Winters v. New York, 333 U. S. 507........... 17

Yudkin v. State, 229 Md. 2d 223, 182 A. 2d 788............ 14

Orner Avurnorities CrTep.

Association of the Bar of the City,of New York,

Comm. on the Bill of Rights, Report on H. R. 319,

88th nacseta ts (1964) 15 -

PAGE

™ Cottzcrep Worxs or Pierre Lovrs (Liveright Pub- - .

| : . lishing Corp. (1932) ).......: : x.

CoLtEcrEp Works or Pieeze Lovys (Avon inary

Corp. (1951) ) 3 “a

George Painter, Proust, Tae Harty Yuans, Little, j

Brown (1965) 8

Schwann, Lone Piayine a Recorp CataLocug, Janu- §

ary 1966 8

Comerrruviomat, Provimons axp Srasures INVOLVED.

United States Constitution, } .

_ First- Amendment 2, 4-

Title 18 U.S. C., 2

c Sections 1461, 1463 —(68B 4

12, 17, 19

,&

é ; .

. — ,

IN THE

Supreme Court of the Anited States -

os , Misc:

z TC eee

J ors Davis

Petitioner,

against e

Unrrep States or America, * . .

| Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

Petitioner, Joe Davis, respectfully requests a Writ of

Certiorari to the United States Court of Appeals for the

Second Circuit to review a judgment of that Court which

affirmed, with one of the three Judges of that Court dissent-

ing, Petitioner’s' conviction for, violating 18 U.S. C.’ See.

1461, 1463 by sending obscene phonographic records

through the mails and mailing apa — covers.

- Opinior Below. ,

_ Petitioner was convicted ch November 18, 1964 after

a trial by jury in the Southern’ District of New York. No

opinion was written by the judge who presided at the trial.

-The United States Circuit Court: of Appeals for the

Second Cireuit affirmed, in an opinion, on December 6, 1965,

the judgment of corviction with one of the three judges of

\ a ¢ . ; . en

>

ou

2

that Court diaienting, The majority’ and dissenting opin-

ions are reproduced as Appendix ‘A’? to this Petiti. mand }

the judgment of the. Court of Aue is eiconate as,

. Appendix B to this Petition.

_Jurisdiction.

The judgment of the United States Court of Appeals —

for the Second Circuit sought to be reviewed was entered

on December 6, 1965. Associate Justice John M. Harlan, on

January 5, 1966, granted, an extension to’ February 4, 1966 *

of Petitioner’s time to file his petition for certiorari. The

_ “Jurisdiction of this Court i is:‘invoked under 28 U. S. C. Sec-

tion 1254.

The Questions Presented for Review.

1. Whether conviction of Petitioner for sending mate-

rials through the mails where there was no proof that the

material exceeded the limits of candor permitted in the

nation, no proof of the effect of the material, and no proof

of the obscene nature of the material was a denial of peti-

tioner’s First Amendment rights.

2. Whether the rights guaranteed by the First Amend-

thent were violated by the Petitioner’s conviction of mail-

ing obscene matter, without proof that he knew the

character of the matter and without —* that he knew or

had reason to believe it obscene.

3. Whether the conviction of Petitioner for sending

through the mails material that is not ‘‘hard-core pornog-

raphy’’, was a denial of due process and an 1 infringement

of the right of communication.

4. Whether the Trial Court, in convicting Petitioner

and the Appellate Courts in affirming his conviction for

3:

““‘tnailingobscene material, judged the material dusiine in

aecordance with standards in conflict with those prescribed

‘by. this: Couri, and punished Petitioner in violation of the es

ee First Amendment of the Constitution.

. . 5, Whether 18 U. 8. C. 1461 and 1463 as interpreted

_ and applied in this case infringes the right of communica-

tion protected by the Rireb Amendment.

6. Whether the ‘standards siditeie proscribed by

this Court in ‘determining if films, books, and photographs

are obscene afe the standards to be used in determining

whether phonograph records are obscene.

7. Whether the convtetion of Petitioner for sending ~~

through the ‘mails auvertisements (not inthemselves _ - q’

obscene) that referred to obscene phonograph records, | ee"

without proof that Petitioner knéWw or had | reason to believe

that the phonograph records were obscene, denies, Peti-

tioner’s rights of. ee:

8. ‘Whether the rights guaranteed by the First Amend- «

. ment were violated by Petitioner’s conviction for mailing

obscene matter where there was no proof that the materials’ »

appeal was to the prurient interest, no proof concerning the

relationship of ‘‘coritemporary community standards”’ to

_ the: material’s ‘prurient appeal” or to the: materials’

“patent ‘offensiveness’’, and no proof as to the nature of

the audience to whom the material was directed.

ay

ad

4

- Constitutional Provision and Statutes Involved.

- The constitutional provision involved is the First

Amendment to the Constitution of the United States. The

Federal Statute referred to herein is 18 U. S. C. 1461, 1463.

The following are the pertinent portions of 18 U.S. C.

§1461. Mailing obscene or crime-inciting matter.

Every obscene, lewd, lascivious, indecent, filthy

or vile article, matter, thing, device, or substance;

and—-~-

e a 4 € e *

Every written or printed card, letter, circular,

book, pamphlet, advertisement, or notice of any kind

giving information, directly or indirectly, where, or

how, or from whom, or by what means any of such

mentioned matters, articles, or things may be

obtained ... Is declared to be nonmailable matter.

Whoever knowingly uses the mails for the mail-

ing, carriage in the mails, or delivery of anything

declared by this section to be nonmailable, or know-

ingly causes to be delivered by mail according to

the direction thereon, or at the place at which it is

directed to be delivered by the person to whom

it is addressed, or knowingly takes any such thing

from the mails for the purpose of circulating or

disposing thereof, or of aiding in the circylation or

disposition thereof, shall be fined not more than

$5,000 or imprisoned not more than five years, or

- both, for the first such offense, and shall be fined

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

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

+ * ‘s * * &

§1463. Mailing indecent matter on wrajpers or

envelopes.

All matter otherwise mailable by law, upon the

envelope or outside cover or wrapper of which, and

5

all postal cards upon which, any delineations, epi-

thets, terms or language of an indecent, lewd, lasci-

vious, or obscene character are written or printed

or otherwise impressed or apparent, are nonmailable

matter. ...

Whoever knowingly deposits for mailing or deliv-

ery, anything declared by this section to be nonmail-

able matter, or knowingly takes the same from the

mails for the purpose of ‘circulating or disposing of

or aiding in the circulation or disposition of the

same shall be fined not more than $5,000 or impris-

oned not more than five years, or both.

Statement of the Case.

This is an appeal from a conviction and sentence after

a trial by a jury, in the Southern District of New York, for

violation of 18 U. S. C. 1461, 1463, for sending phonograph

records said to be obscene through the mails and mailing

matter in indecent wrappers.

The indictment contained 24 counts (R. 4-10)*. The

Petitioner was convicted on all counts except the last which

was dismissed during trial on the Government’s motio

(R. 51). Counts one through five of the indictment charged

Davis with mailing packages in violation of 18 U. S. C.

1463 whose wrappings bore an obscene label advertising a

record (R. 4-7). Counts six through twenty-one charged a

violation of 18 U. S. C. 1463 in Davis’ mailing of advertise-

ments, not inthemselves obscene, which described the means

for procuring two obscene records (BR. 5-7). The two

allegedly obscene records are the subject of counts twenty-

two and twenty-three of the indictment (R. 8, 9). The

record jackets indicate the records were manufactured in

_ © Numerical References following the letter R are to the Record

‘on Appeal. ae a

6

California. Petitioner is charged only with mailing the

records and not with manufacturing them (R. 9). The

' advertisements were primarily pages in a catalogue pre-

pared by the manufacturers of the records (R. 29).

The issue of Petitioner’s guilt was submitted to the jury

without the introduction of any evidence other than the

records, labels and advertisements referred to in the indict-

ment (R. 52). Petitioner and Respondent stipulated, at

the trial (a) ‘‘the packages in question ware deposited in

the mails’? (R. 21); (b) ‘‘the packages wete deposited in

- the Southern District of New York on or about the dates

specified in the indictment’? (RB. 21); (c) ‘‘when they were

' deposited they bore the labels’’ (R. 21); (d) ‘‘defendant

‘intentionally deposited them or caused them to be deposited

knowing of the presence ‘of the labels”’ (R. 21).

The phonograph records were played to the jury and

after the exhibits (the records, their jackets, the mailing

wrapper and the advertisements) were introduced into evi-

dence the Government rested (R. 54). The issues submitted

for the jury’s determination were the ‘‘mailability of the

packages’’ and petitioner’s ‘‘knowledge of the nature of

the materials’’ (R. 29).

The Court in its charge directed the jurors to use their

‘‘experience in life .. . to try to consider how the average

person in the nation as a whole, not only where you live or

work,’’ would react to these materials. The jurors were

directed to ‘‘project themselves’’ and ‘‘make an objective

determination based upon contemporary community stand-\,

»? (R. 25). The Trial Court advised them that ‘‘as a

representative group of mature citizens you are in an excel-

lent position to judge what the current standards may be.

I am sure some, if not most of you have travelled and you

have encountered a broad number of people. ... When you

share these observations together in the jury room you

7

should be able to judge the works involved.in this case

according to contemporary community standards’’ (R. 25,

26). |

The Court, on the issue of scienter, charged the jury that

Petitioner’s belief that the material is not obscene ‘‘is

immaterial even though such be an honest belief’’ (R. 26,

29).

Petitioner’s motion to dismiss after the conclusion of

the Government’s case was denied, and after the jury

returned a guilty verdict the Court denied Petitioner’s

motion to set aside the verdict and for an acquittal (R. 54).

The Trial Judge, believing he, as well as the jury was

required to ascertain whether the materials were obscene

found them to be obscene (R. 54).

No evidence was offered at the Trial with respect to

the nature of the materials tolerated in the nation, with

respect to the standards of the nation, or with respect to

the effect of the material. :

‘The allegedly obscene material that forms the basis of

the indictment consists of a mailing wrapper (Counts 1

through 5) and two phonograph records (Counts 22 and

23). The humor on the wrapper is the kind of ‘‘double

entendre”’ type language that is commonly used in present-

‘day culture (Exhibit 2). The first record ‘‘Erotica’’

(Exhibit 22-A) does not contain words—only percussion

instruments and various human sounds. The second record,

‘Nights of Love in Lesbos’? (Exhibit 23-B), is an oral

rendition of extracts from the poem ‘‘Songs of Bilitis’’, by

the French poet Pierre Louys (1870-1924) (Exhibit 23-A).

Since 1904, this poem (and his other poems, plays and

_ novels) has had widespread circulation in the United States.

8

It was published in English in the United States by the

Liveright Publishing Corp. and by Random House in hard-*

cover as part of anthologies of Louys’ work and by the

Hearst Corporation, in paperback, as part of its Avon

Classics series (Collected Works of Pierre Louys, Liveright

Publishing Corp., 1932; Collected Works of Pierre Louys,

Avon Publishing Corp., 1951). Pierre Louys’ work is recog-

nized by scholars as possessing artistic merit (Painter,

Proust, The Early Years, Little Brown and Company

| (1965) p. 169; Collected Works of Pierre Louys, Avon Pub- .

lishing Corp. (1951) Introduction). a

‘‘Songs of Bilitis’’, a prose poem, utilizes Louys exten-

sive knowledge of classical sources including Greek anthol-

ogy, Greek legend and history and Greek poetic style. The

‘poem tells of the growth and emotions of Bilitis, a young

Greek girl born at the beginning of the sixth century B. C.

and of her travels in Cypress and Myteliene, then called

Lesbos. ag

The Trial Judge’s finding that the poem js a ‘‘disser-

tation by an alleged Lesbian’? is incorrect ( ¥1a).

No evidence was offered at the trial to show the accused

knew or had reason to believe the materials were obscene.

The prices charged for the material indicates Petitioner

believed he was not selling forbidden items. The record

jackets for each of the records are not claimed to be obscene

and—they indicate the list price for the records was $4.98

and $6.95. Readings of poems by Dylan Thomas, =>

Elliot and W. H. Auden and other ‘‘spoken word’? phono-

graph records all sell for approximately the same prices.

Schwann, Long Playing Record Catalogue J anuary, 1966

(pp. 171-184). :

i

9

Reasons for Allowance of the Writ.

Preliminary Statement

. The constitutional questions referred to in this Petition

are substantial and the questions presented for review have

not been adjudicated and should, we believe, be resolved

by this Court. Each of the questions presented relates to |

the.fundamental right of expression and is of sufficient pub-

lic importance and interest to merit plenary consideration.

One of the questions raised that this Court has not yet

passed on is: whether the Government # required, in a

federal criminal prosecution, for mailing obscene matter,

to introduce evidence to prove that the material offends the

community standards, is beyond the limits of candor toler-

ated in the community, and would arouse the prurient inter-

est of adults of the community.

Assuming that prurient appeal can be adequately

defined, other questions suggested in Manual Enterprises

v. Day, 370 U. S. 478, and most recently formulated in U. 8.

v. Klaw, 350 F. 2d 155 (2 Cir., 1965), are still open: ‘‘ Appeal

to whose prurient interest? Judged by whom? On what

basis? Is it the ‘average person’ who applies ‘contem-

porary community standards’ to determine if the ‘dominant

theme’ appeals to ‘prurient interest’. Who applies ‘con-

temporary community standards’ .te.determine that the

‘dominant theme’ appeals to ‘prurient interest’ of the

‘average person’? Do ‘contemporary community stand-

ards’ operate to reduce potential prurient appeal? Or, do

they operate to measure the ‘patent offensiveness of an

- excess of candor’?”’ (U.S. v. Klaw, 350 F. 2d 155, 173).

In Manual Enterprises v. Day, 370 U. S. 478, 481-482,

(1962), Justices Harlan and Stewart indicated that the

question of the relevant audience xf an obscenity prosecu-

tion was open. This case presents that issue as well as the

10

quesiion of the mental element requisite to a constitution-

ally permissible federal obscenity prosecution. (Manual

Enterprises v. Day, supra; Smith v. California, 361 U. 8S.

147.)

- One of the questions confronting the Court is whether

one definition of obscenity can apply to the entire spectrum

of questionable material, whose range includes what appeals

to the popular taste, to the more sophisticated, and to the

‘ sexually abnormal. This case presents the Court with an

opportunity to confront these questions in regards to mate-

rials that appeal to popular taste and thus differ from the

cases now pending before this Court, Mishkin v. New York,

U.S. (argued on December 7. 1965) deals with mak.

rial whose primary appeal i is to the sexually abnormal and

Ginzburg v. U. 8. U.S. and ‘‘ John Cleland’s Mem-

otrs of a Woman of Pleasure’’ v. Mass., U.S. (both

argued on December 8, 1965) deal with material whose pri-

mary appeal is to the more sdéphisticated.

_ Justices Harlan and Stewart, in Manual Enterprises

v. Day, supra, indicated that prosecutions under 18 U. S. C.

1461 may constitutionally be limited to hard-core pornog-

raphy. A majority of the Court has not yet resolved this

-issue. See Jacobellis v. Ohio, 378 U. S. 184, 187, concurring

opinion of Mr. Justice Stewart.

The Manner in Which the Questions

Sought to Be Reviewed Were Raised.

(1) The question of whether there was a violation of

Petitioner’s constitutional rights because the Government

did not offer any evidence of the standards of ‘the nation .

or with respect to the effect of the materials involved in

this case, was raised at the trial by motion to dismiss

made after the Government’s case and after both sides |

rested, and in the argument to the Court below (R58).

.

11

(2) The question of whether the Trial and Appellate

Courts below judged the materials in this case to be obscene

in accordance with standards in conflict with those pre-

scribed by this Court was raised in the Trial Court by

motion to dismiss made after the Government’s case and

- after both sides rested, and in the argument to the Court

below (R58).

(3) The question with respect to the Government’s fail-

ure to prove Petitioner’s knowledge of’ the materials

involved in this case or Petitioner’s wrongful intent was

raised at the trial by motion to dismiss made after the

Government’s case and after both sides rested, and in the

argument to the Court below (R58). 4

(4) The question of whether the conviction of one who,

without guilty knowledge or intent, mails obscene matter

is an abridgment of freedom of communication was raised ~

at the trial by motion to dismiss made after the Govern-

ment’s case and after both sides rested, and in the argument, ahs

to the Court below (R58).

(5) The question of whether the standards previously

prescribed by this Court in etermining if films, books and

photographs are obscene are the standards to be used in

determining whether phonograph records are obscene was

raised at the trial by motion to dismiss made after the \

Government’s case and after both sides rested, and in ‘|

the argument to the Court below (R58). ay

(6) The question of whether the conviction of Petitioner

. for sending advertisements (not in themselves obscene)

through the mails because’ they pak yg -allegedly

obscene phonograph records, without proof Petitioner °

knew or had reason to believe the phonograph records

were obscene, denies Petitioner’s rights of communication

was raised at the trial by motion to dismiss made after the

12

Government’s case and after both sides rested, and in the

argument to the Court below (R58).

a - (7) The question whether the rightg guaranteed by the

'\ First? Amendment were violated by Petitioner’s convic-

tion for mailing obscene matter where there was no proof

that the miaterial’s appeal, if any, was to the prurient inter:

est, no proof concerning the relationship of ‘‘contemporary

community standards”? to the material’s ‘‘prurient appeal’?

or to the materials’ ‘‘patent offensiveness’’, and no proof

as to the nature of the audience to whom the material was

directed, was raised at the trial by motion to dismiss made

‘ after the Government’s case and after both sides rested, .

and in the argument to the Court below 4858). |

The Questions Presented Are Substantial. .

\G& I. 18 U. S. C. 1461 and 1463 as interpreted and

applied in this case violates the Federal Coristitutional

guarantees of freedom of communication and due proc-

ess because they authorize the punishment of one who

mails allegedly obscene material, that is not hard-core

’ pornography, without requiring proof that the material |

offends the standard of the people of the nation and

that the material is obscene according to any of the

standards formulated by this Court.

‘‘Obscenity under the Federal Statute thus

_ requires proof of two distinct elements (1) patent

’ offensiveness, and (2) ‘prurient interest’ appeal. -

Both must conjoin before challenged material. can

be found ‘obscene under Section 1461.’’ Manual

v. Day, 378 U. S. 478, 486, opinion of Mr. Justice

Harlan and Mr. Justice Stewart.

“Tf cases were well prepared and were conducted

’ - with the appropriate concern for constitutional safe-

guards Courts would not hesitate to enforce the laws

; 4

~ ss

a

leg,

————-

.. 13

-

against obscenity’’. Jacobellis v. Ohio, 378 U. 8. 202,*

dissenting opinion of the Chief Justice ‘and Mr.

. Justice Clark.

In a criminal prosecution for, selling an obscene article®

the prosecution has the burden of proving affirmatively

every essential element of the offense. United States v.

Klaw, 350 F. 2d 155 (2nd Cir.), Alexander v, United States,

271 F. 2d 140 (8th Cir.). ‘‘Due process commands that no

man shall lose his liberty unless the Government has borne

the burden of producing the evidence &nd convincing the — -

fact finder of his guilt’? and the transcendent value. of

speech is involved’? due process requires ‘‘that the State

bear the burden of persuasion to show the (accused)

engaged in criminal speech.’’ (Spetser v. Randall, 357

U. S. 513, 526. (Matter in parentheses ours.) See also

’ Thompson v. Louis@ille, 362°U. S. 199, 207, and cases cited

in New York Times v. Sullivan, 376 U. S. 254, 271, 277-280,

283-288.

The threshold question i in determining whether material

may be condemned as obscene, or one may be punished for

selling it, is whether it is considerably more explicit and ~

bolder in treatment than other material of the’same nature

- that is generally tolerated. If communications are not ‘‘so

offensive on their face as to affront current community .

standards of decency,’’ to use Mr. J ustice Harlan’s phrase

(Manual Enterprises v. Day, 370-U. 8. 478, 482), to punish

_ one for distributing them violates the First Amendment

guaranty of freedom of expression. ‘The community can-"

not where liberty of speech and press are at issue, condemn

that which it: generally tolerates.’? (Smith v. California,

361 U. 8. 147, 171 (concurring opinion, Mr. Justice Har-

lan).

Proof must be fornished to supply ‘‘the fact-finders

with — of what appeals to prurient anes they

3

14

have some basis for their conclusion’’. United States v.°

Klaw, 351 F. 2d 155 (2nd Cir., 1965). ‘‘Obviously the issue

of what stirs the lust .. . requires evidence of special com-

petence’’ (Klaw v. Schaffer, 151 F. Supp. 534, 539, Note 6).

See also Parmelee v. United States, 113 F. 2d 729, 731;

Yudkin v. State, 229 Md. 2d 223, 182 A. 2d 788. ‘‘The ques-

tion is whether ‘there is sufficient evidence in the record

upon which‘a finding of obscenity could be made. If there

is no evidence in the record upon which such a finding could

be made, obviously the material involved cannot be. held

obscene.’ Cf, Thompson v. City of Louisville, 362 U.S. 199,

4 L. Ed. 2d 654.” Jacobellis v. Ohio, 378 U. 8. 184, 202,

dissenting opinion of The Chief Justice and Mr. Justice

Clark.

In Jacobellis v. Ohio, 378 U.S. 184, Mr. Justice Brennan

wrote (p. 191):

‘*Tt should also be recognized that the Roth stand-

ard requires in the first instance a finding that the

material ‘goes substantially beyond customary limits

of candor in description or representation of such

matters’.’’

The eonvictions in this case were sustained on the basis

of speculations and suspicions about the prurient appeal

_ of material to some unknown, undefined person about whom

‘4 no information was furnished. There is no evidentiary

basis from which to recognize any appeal to the prurient

interest of the typical recipient, and, hence the motion for a

directed verdict of acquittal should have been granted for

._**(O)therwise too easily the Government’s test might allow

a jury to equate patent offensiveness to prurient appeal,

thus obliterating the conjunction that has been thought

indispensable. See Manual Enterprises, Inc. v. Day, supra,

370 U. S. at 482; Jacobellis v. Ohio, supra, 378: U. 8. at 191-

‘15

92.7 U. 8. v. Klaw, 350 F. 2d 155, 167 (2nd Cir. 1965).

It cannot be assumed that the Trial Judge or thé jury in

this case, or the Judges of the Courts to which Petitioner

appealed from his conviction, knew ‘‘with anything that

approximates reliability, the ‘average’ American public

opinion on the subject... .’’ (Roth v. Goldman, 172 F. 2d

788, 796, 2nd Cir., 1952). ;

The jurors may not ‘‘consider their own personal reac-

tions as setting the standards’’; there is too much truth

in the observation that ‘‘what is pornography for one man

is the laughter of genius to another.’’ Cf. Ass’n of Bar of

the City of New York, Comm. on the Bill of Rights, Report—

on H. R. 319, 88th Cong., 2d Sess. (1964), on ‘‘Morally

Offensive Mail,’’ in Reports of the Ass’n of the Bar Con-

cerned with Federal Legislation 54, 56 (1965). ‘‘In this case,

however, the only predicate for any conclusion about pru-

rient appeal was the material itself, as if res ipsa loquitur.

The jurors were, therefore, left to speculate. They were

invited to behold the accused material and, in effect, con-

clude simply that it is undesirable, it is distasteful, it is

disgusting. Knowing perhaps that they would not be inter-

ested in obtaining more of the material they might wonder

why anyone else would, and conclude that the only answer

is ‘prurient appeal.’ Because the jury was given no basis

for understanding exactly how and why the material appeals

to its audience, whether deviate or average person, it may

too readily supply an explanation—‘prurient appeal.’

Even if the jury did not consist of twelve carefully selected

Anthony Comstocks, it might well believe that the pre-

dominant appeal of certain acknowledged works of art,

sculpture and literature found im all our well-known

museums and libraries would be to the prurient interest of

the average person, or perhaps someone else,... Whatever

~

16

the value of mere ‘autoptical’ evidence in other contexts, -

it should not readily be countenan:ed in this area.’’ Klaw

v. U. 8., 350 F. 2d 155, 167.

_ The material in eyjdence is not hard-core pornography

- and is not punishable. Mr. Justice Harlan and Mr. Justice

Stewart in Manual Enterprises v. Day, 3703. S. 470, 489

noted “‘some authoritive commentators ha¥e considered

Roth and subsequent cases to indicate that only hard-core

pornography can constitutionally be reached under this or

similar state obscenity statutes.’’. See also Jacobellis v.

Ohio, 378 U. S. 184, 197, concurring opinion of Mr. Justice

Stewart; People v. Richmond, 9 N. Y. 2d 578.

‘*Songs of Bilitis’’ can be read throughout the nation

and our research indicates there have not been any criminal

prosecutions of books containing the poem. It is not, there-

fore, constitutionally permissible to ban an oral rendering

_ of the poem. We do not believe standards should differ i in

determining the obscenity of books and records.

Our research indicates there has never been a federal

obscenity prosecution of material which is non-verbal and

non-pictorial, as is the record ‘‘Erotica’’, and we do not

believe a decision that this(material is obscene is constitu-

tionally valid.

The majority opinion of the Court of Appeals found

the materials obscene and refused to consider Petitioner’s

argument that Respondent failed to sustain its burden of

proof because Petitioner and Respondent weré given an

opportunity to present proof that the materials were not

obscene (and did not do so) and because Petitioner and

Re dent agreed to present the issue of mailability to

te Hy ‘‘without testimony of any kind’’ (R. 53). This

incorrect interpretation of the stipulation is contradicted

by the Trial Judge’s charge to the jurors on the issue

17

fo

of obscenity (Ses page 6 of this petition, R. 21, 25, 26).

Petitioner is not, in the first instance, required to present

proof of the material’s character and is not required

to advise the Government of the insufficiency of the Govern-

ment’s proof. We believe Judge Waterman’s dissenting

opinion finding the materials not obscene and analyzing the

Trial Judge’s charge and concluding th@t the conviction

., Must be reversed because ‘‘the Government was deficient

in its proof’’ is correct. |

II. 18U.S. C. 1461, 1463 violates the constitutional

guarantees of freedom of communication in sanction-

ing a conviction for mailing of obscene material without

proof that the accused — the materials ‘were

obscene.

In Manual Enterprises v. Day, 378 U. S. 478, 492-495, °

’ Mr. Justices Harlan and Stewart held a conviction for a

violation of 18 U. S. C. 1461 could not stand absent a show-

ite defendant ‘‘knew the character of such materials was

offensive.’’ See also Smith v. California, 361 U. S. 147,

154; Roth v. U. 8., 354 U. 8. 476.

In Smith v. California, 361 U. S. 147, the Court struék

down an ordinance making the offering of obscene books

a penal offense even though the bookseller may not have

been aware of the content of the material offered. A statute

eliminating the scienter element, this Court held in Smith

v. California, 361 U. S. 147, tends to restrict the sale and

distributions of constitutionally protected expression by

making it necessary for booksellers to. read all books .

received for sale, in order to avoid criminal liability. The

burden on a seller of phonograph records is even more

onerous for he wy Be be expected to listen to every record

©

ge

18

he sells and cannot be expected to listen to every record

advertised in a manufacturer’s catalogue. Manual Enter-

prises v. Day, 370 U. S. 478, 493.

The Court’s reasons for condemning the ordinance

involved in Smith v. California, apply with equal force to

the application of the statute here challenged. In the Smith

case the Court said, 361 U. S. at p. 152:

‘‘The ordinance here in question, to be sure, only

imposes criminal sanctions on a bookseller if in fact

there is to be found in his shop an obscene book. But

our holding in Roth does. not recognize any state

power to restrict the dissemination of books which

are not obscene; and we think this ordimance’s strict

liability feature would tend seriously|to have that

effect by penalizing booksellers, even though they

had not the slightest notice of the character of the

books they sold.’’

In the Manual case the Court said, 370 U. 8. at page 493:

‘‘Since publishers cannot practicably be expected

to investigate each of the advertisers, and since the

economic consequences of an order barring even a

single issue of a periodical from the mails might

entail heavy financial sacrifice, a magazine publisher

might refrain from accepting advertisements from

those whose own materials could conceivably be

deemed objectionable by the Post Office Department. .

This would deprive such materials, which might

otherwise be entitled to constitutional protection, of

a legitimate and recognized avenue of access to the

public. ’’

A statute prohibiting the mailing of obscene matter that

fails to require proof of knowledge that. it is obscene,

imposes an excessive burden on free speech, Manual Enter-

19

prises v. Day, 378 U. S. 479. See Lamont v. Postmaster

General, 381 U. S. 201 (1965).

' The Judge’s charge to the jury in this case that Peti-

tioner’s ‘‘belief that the material is mailable is immaterial

even if his belief is an honest one’’ is in conflict with the

Constitution (R. 26). The State Courts have held, in cases

decided after Smith v. California, supra, that a defendant —

accused of dealing in pornography cannot be found guilty

unless the State proves he had knowledge of the obscene

nature of the material. Cohen v. Plorida, 125, So. 2d 560,

563 ; State v. Sul, 146 Conn. 78, 84-88, 147 A. 2d 686, 690-691 ;

State v. Hudson County News, 35 N. J. 284, 292-294, 173 A.

2d 20, 25; State v. Oman, 261 Minn. 10, 17-18, 110 N. W. 2d

514, 520; State v. Locks, 97 Ariz. 148, 397 P. 2d 949, 951;

Demetropolos v. Commonwealth, 342 Mass. 658, 661, 175

N. E. 2d 259, 262. The rule in a federal prosecution for

obscenity cannot be less stringent. Manual Enterprises v.

Day, 370 U. S. 478; Alexandery. United States, 271 F. 2d

140 (8th Cir.). There was nothing on the record jackets

to reveal the allegedly obscene nature of the records or

require further investigation on Petitioner’s part to deter-

mine whether they were in any way improper. There is no

proof he ever saw the advertisements for they were pri-

marily contained in pages in a catalogue prepared by the

manufacturer of the records. The fact the records were -

offered at the standard price would also indicate Petitioner

did not consider it contraband.

The proof in this case failed to establish any knowledge

on the part of Petitionér with respect to the alleged obscene

. character of the materials and failed to estabish any wrogg- .

ful intent on his part. 18 U.S. C. 1461, 1463 as interpret

and applied in this case is therefore in conflict with the

20

Constitution and Petitioner’s conviction for violating the

statute should be set aside.

For the reasons outlined it is submitted the questions

presented are substantial, and this petition for a writ of

certiorari should be granted and a plenary consideration

of the issues is warranted.

Respectfully submitted,

Martin Gansvs,

Attorney for Petitioner.

A-1

APPENDIX A.

_ » Opinion.

UNITED STATES COURT OF APPEALS,

For tHe Seconp Circuir

No. 455—September Term, 1964. |

(Argued April 28, 1965 Decided December 6, 1965.)

Docket No. 29518.

. Untrep States or Amenica, :

: Appellee,

v.

Jor Davis,

Defendgnt-Appellant.

Before:

Lumsarp, Chief Judge,

Warerman and Frrenpty, Circuit Judges.

Appeal from conviction for mailing obscene matter and

mailing matter in obscene wrappers, 18 U. S. OC. §§1461,

1463, after a trial before Irving R. Kaufman, Circuit Judge,

sitting by designation, and a jury, in the United: States

District Court for the Southern District of New York.

Affirmed.

Lumnarp, Chief Judge:

This is an appeal from a conviction and sentence after

a trial by a jury, in the Sotthern District of New York,

A-2

—

for violation of 18 U. 8. C. §§1461, 1463, sending obscene

matter through the mails and mailing matter in indecent’

wrappers. ;

Counts one through five of the indictmenttharged that

on various océasions Davis mailed packages whose wrap-

pings bore an obscene label advertising defendant’s ‘‘party

records,’’ in violation of §1463. Counts twenty-two and

twenty-three charged the mailing of two obscene phono-

graph records, in violation of §1461, and counts six through

twenty-one charged the mailing of advertising which de-

scribed the means. for procuring the obscene records of

counts twenty-two and twenty-three, in violation of §1461.1

As it is not alleged that these advertisements are them- ©

selves obscene, there must be a finding that the phonograph

records are obscene in order to find the advertisements vio-

lative of $1461.

At trial, thé parties stipulated the existence of each and

every element of the crime charged, except that the phono-

graph records and labels were obscene. In oral argument

before this court both sides declared they had agreed to

submit the remaining issue to the jury without any testi-

mony of any kind. The opportunity to require and present

evidence about community standards of obscenity existed

but was détlined by that agreement. Compare United States

v. Klaw, 350 F. 2d 155 (2 Cir. 1965). The jury had before

it only the labels, the advertisements, the phonograph rec-

ords and record jackets. |

The jury returned a verdict of guilty on all counts. Judge

Kaufman, who presided at the trial, then made an indepen-

dent examination of the evidence and determined that the

1 Count twenty-four, charging Davis with conspiring to violate }

§1461, was dismissed during trial on the government’s motion.

©

CY Sai areal este A vi

A-3

7

~ Opinion. |

finding of: guilty by the jury did not invade Davis’ First

‘Amendment rights to freedom of the press and speech as

the materials at issue were obscene and therefore not

entitled to First Amendment protection. He imposed a

fine of $1,000 on count one, and concurrent six-month sus-

pended sentences on the remaining counts. _

Davis does not allege as error any portion of Judge

- Kaufman’s charge or the procedure employed by the dis-

trict court. The sole issue before us is the same.as was

before J udge Kaufman, whether "Davis i is entitled to First

Amendment protection because the labels and records are

not obscene. We find that they are obscene under the tests

established by the Supreme Court, and we affirm the judg-

ment below. °

To determine whether the matter before us is obscene,

‘ we must apply the now familiar test:

‘“Whether to the average person, applying contem-

porary community standards, the dominant theme

of the material taken as a whole appeals to the

prurient interest.’’? Jacobellis v. Ohio, 378 U. S. 184,

191 (1964) ; Roth v. United States, 354 U. S. 476, 489

(1957). ae Mega a

‘Further, we are instructed to determine whether’ the mate-

rial is patently offensive. Mutual Enterprises, Inc. v. Day, :

370 U. S: 478, 486 (1962).

Applying these tests, we find that both the labels and the

recotds are obscene. The records are without ‘literary or

scientific or artistic or any other form of social importance.”

Jacobellis v. Ohio, supra, at 191. Each record jacket and

record ‘‘taken as a whole’? makes abundantly clear that ©

meaning and content of the recording. We also find that,

despite the feeble attempt at double-entendre humor on the

aang

« &

A-4

7 Opinion.

mailing label, the sole intended meaning of the label is

obvious and far exceeds the permissible level of candor.

“The appellant’s other contentions do not merit dis-

cussion. . “

The judgment is affirmed. —

Warerman, Circuit Judge (dissenting) :

’ I dissent. I would reverse. —

At trial, on November 18, 1964, the parties orally agreed

that certain acts took place; the defendant conceded that

the Government could call witnesses who would testify to

these ‘acts and: thereby the commission of the offenses

would be proven if the material mailed, exhibits in the

case, were non-mailable.. The exhibits were appellant’s”

yellow gummed labels affixed-to the outside of his packages,

informing that he had “‘sexational”” party records available,

his advertising circular, two phonograph records, and the

respective jackets containing those records.

As stated -in the majority opinion, the only contestéd

issue was whether the phonograph records and labels were

obscene so that the acts of the defendant in causing them ©

to be sent through the mails violated 18 U.S. C. §§1461,

' 1463. And so, as stated in the opinion of the majority, the

issue of.defendant’s guilt was submitted to the jury without

_ the introduction into evidence of any oral testimony what-

soever. The phonograph records were played to the jury.

_ After the exhibits were introduced into evidence and the

records played to the jury, the Government rested, the

~ defense put in no case whatever and moved to dismiss. The

’ “ motion was denied, and the trial judge in his charge to the

_ jury so adequately explained the nature of the case that

£2

> A-5

‘Opinion.

no exception to the chargé was. taken by either party and

no request for an additional or explanatory charge was’

made. The jury was out but thirty-five minutes and returned

a guilty verdict. A motion by the defense to set the ver-

dict aside and for an acquittal was denied, and tie judge -

believing that he, as well as the jury, was required to ascer-

tain whether the exhibits were: obscene, found that they

were by any test.that he had been able to observe. |

The/ trial judge had in Anind that this: case involves

‘‘rights derived from the First Amendment guarantees of

free expression’’ and believed that a judge at the trial level —

‘‘cannot avoid making an independent constitutional judg-

-ment on the facts of the case as to whether the material

involved is constitutionally protected.’? Jacobellis v. Ohio,

_ 878 U.S. 184, 190 (Brennan, J. opinion upon announcing the

Court’s judgment; in which Goldberg, .J. concurred). If it

were necessary for me also to accept this responsibility I

* would hold that the yellow mailing labels had no ‘‘literary

or scientific or artistic or any other form-of social. impor-

* tance’? and that they exceeded the permissible level of can-

dor which the First Amendment protects. On the other

hand, the are so cheaply repulsive that it is incredible to me

that the prurience of any person would be excited from’.

reading them or from anticipation of receipt of the ‘‘sexsa-

tional’’ records. As to the records, I must. say that they

bored me and whatever is meant by appealing to the ‘‘prur-

ient interest’’ neither of them did so appeal. Nevertheless,

my personal reaction to these records, different from the

reaction of the.twelve jurors and the trial judge, is not the . |

basis for my dissent. I would reverse on the ground that

the verdict below was not supported by sufficient evidence.

The jury was charged that the issue for them to decide .

was whether the material would be deemed obscene by the

A-6

Opinion.

oe

1

average person, applying contemporary community stand-

ards, and the judge went on to charge that in ‘‘determining

commynity standards you must try to use your experience

in life, the observations you have made in your every-day

affairs ... so that you can make an objective determination

based upon community standards of the nation of which you

have been aware.’’ :

No evidence was introduced tending to show what these -

contemporary community standards of the nation were.

The judge in his comments confirming the result the jury

reached stated that his view was based on an attempt ‘‘to

divine what I consider to be the mores of the country based

on my years of experience and travel and observations and

readings ...’’ °

The init of allowing the fact finder to decide the

issue of obscenity vel non by appraising the challenged ma-

terial in light of a court-elaborated definition of obscenity

has been established in this circuit and was adhered to in

the present case. The announced rationale of this practice

is that obscenity ‘‘is a function of many variables, and the —

verdict of the jury is not the conclusion of a syllogism of

which they are to find only the minor premises, but really

a smal bit of legislation ad hoe, like the standard of care.”

-L. Hand, J., in United States v. Levine, 83 F. 2d 156, 157

(2 Cir. 1936). Acepting the jury’s conclusion to be a small

bit of legislation it made little sense to require the prose-

cution to present testimony tending to prove that the mate-

rial in question was in fact unacceptable to the community

or that the material would arouse the prurient interest of

the average man. This view of the jury’s function has even

led several courts to go further and to exclude all evidence

of community standards offered, by the defendant. E.g.,

Meecha cab Sa NRA a te Mare anne Wana te NR ae tener ot met ad

A-7

Opinion.

Kahm v. United States, 300 F. 2d 78 (5 Cir.), cert. denied,

369 U. S. 859 (1962); People v./Finkelstein, 11 N. Y. 2d

300, 183 N. E. 2d 661, 229 N.Y. §. 2d 367, cert. denied, 871

U. 8. 863 (1962). But cf. Smith v. California, 361 U. 8.

147, 160, 169 (1959) (Frankfurter, J., concurring; Harlan,

J., concurring in part, dissenting in part). See —

76 Harv. L. Rev. 1498-1501 (1963).

The analogy of the jury’s function i in a criminal case in

which obscenity is charged to the jury’s function in a civil

- negligence case was fairly persuasive as long as the jury’s

decision that certain material was obscene could be viewed

_ as the legal expression of revulsion against the material by

the community from which the jury was drawn because of

the way the material dealt with sexual matters. But we ©

now know that the standard is national; not local. Jacobellis

v. Ohio, 378 U. S. 184 (1964). I am not persuaded that,

without some evidence other than the records and labels

and each juror’s own personal reaction thereto, a jury can

appraise such material and can accurately express in the

dight of national community standards the level of national

community tolerance. ‘The view that a jury is not well suited

to express the national sense of what is obscene has led

some courts carefully to scrutinize the allegedly obscene

material before submitting it to a jury. Flying Eagle Pub-

ications Inc. v. United States, 273 F. 2d 799.(1 Cir. 1960).

This same belief is reflected in United States v. Klaw, 350

F. 2d 155 (2 Cir. 1965), decided by us on July 25, 1965

after the appeal in the present case had been argued and

before disposition of the appeal. In Klaw we reviewed all

the recent cases in thiéefield that had been brought to our

attention or had been uncovered by our research, and there

we reversed a conviction for mailing obscene matter which

was obtained by allowing the jury to appraise certain photo-

A-8

| Opinion. —

graphs and drawings of the ‘‘bondage genre,’’ see U. 8.

v. Klaw at 157, in light of an admittedly correct elabora-

tion of obscenity law by the trial court. In holding that the

Government was required to introduce evidence that the

challenged material in fact appealed to the prurient interest

of either the average man or typical deviate this court said:

Whatever the value of mere ‘‘autoptical’’ evidence in

other contexts, it should not readily be countenanced

in this area. Otherwise, too easily the Government’s

test might allow a jury to equate patent offensiveness

to prurient appeal, thus obliterating the conjunction

that has been thought indispensable. _

The state of the record gave the jurors impermissibly —

broad freedom to convict just because, having no

more informative evidence than the material itself,

they might think that the. average person would —

‘*recognize’’ that the material has prurient appeal.

But again, to whom? In this case the jury had insuf-

ficient evidence even to ‘‘recognize’’ that the material

appealed to the prurient interest of the average per-

son. 350 F. 2d 155, 167.

Under the requirements we have placed upon the Gov-

ernment by United States v. Klaw, the Government was

deficient in its proof. As the trial judge allowed the Gov-

ernment to get to the jury without introducing any évidence

tending to prove that defendant’s record or labels appealed

to the prurient interest of either the average man or the

typical deviate recipient it is my belief that the conviction

should be reversed. My brothers contend that the proof

1 The attempt of the trial judge to ‘‘divine . . . the mores of the

eountry’’ cannot cure this defect. This attempted divination

certainly cannot be justified as the taking of judicial notice of facts

ee SS ee

A-9 /

Opinion.

we held was necessary to effect a conviction under 18

U. S. C. §1461 in United States v. Klaw is not applicable

“here. Inasmuch as the defendant expedited the trial by

agreeing that he performed the acts necessary to convict

if the material mailed were non-mailable and agreed to

_ present the issue of mailability to tlie jury ‘‘without testi-

~ mony of any kind’? they hold that the defendant ‘‘stipulated

the existence of each and every element of the crimes

charged.’’ In so doing, they overlook the fact that the

defendant moved to dismiss after the parties had tried the

case pursuant to the agreement. Even if one places no

weight whatever on defendant’s obvious strategy, my

brothers at best would seem to hold that defendant agreed

to be bound by the practice that the parties supposed existed ~

at the time of the trial, and therefore his conviction must

be affirmed. With this approach I cannot agree, either.

Defendant’s motion to dismiss, overruled, and to which

overruling defendant preserved his position, is now being

reviewed by us, and the law of this circuit at this time

requires us to order that that motion be granted for failure

of the Government’s proof. Of course the agreement below

was merely an affirmative agreement that certain facts were

in existence, and if the Government were put to proof the

Government could prove them; but it never was a stipula-

tion concerning the limits of proof required to effect a con-

viction. The defendant never conceded that he was guilty

as charged in the indictment.

commonly known or capable of ceftain verification. Perhaps a court

may judicially notice contemporary community standards insofar

as they constitute ‘‘legislative facts’’ relating to the issue of obscen-

ity, but even judicial notice of this type ought not to be allowable

unless the parties are given an opportunity to furnish data bearing

on the issue. See McCormick, Evidence §329 (1954).

B-1

APPENDIX B.

Judgment.

UNITED STATES COURT OF APPEALS

For tue Sreconp Crrcurr

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse in the City of New York, on the 6th day of

December, one thousand nine hundred and sixty-five.

Present:

Hon. J. Epwakp Lumsarp,

Chief Judge,

Hon. Srerry R. Warerman,

Hon. Henry J. Frrenpty,

Circuit Judges. ‘

Untrep Srates or AMERICA,

Plaintiff-Appellee,

v.

Jor Davis,

Defendant-Appellant.

¢

Appeal from the United States District Court for the

Southern District of New York. ~%

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by counsel. .

On ConsmERraTION Wuenezor, it is now hereby ordered,

adjudged and decreed that the judgment Of said District

Court be and it hereby is affirmed.

A. Dayren Fusarno :

Clerk

S