Amicus Curiae Brief — Butler v. Michigan

Supreme Court brief1957

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Text

f Texas

Attorney General of 1

PHILIP SANDERS

State o,

Assistant Attorney General

of Texas

Attorneys for the

JOHN BEN SHEr>ERD

OF TEXAS, AMICUS CURIAE

_ BRIEF OF JOHN BEN SHEPPERD, ©

_ ATTORNEY GENERAL OF THE STATE

SSNADRRTe SIA

INDEX

INTEREST OF THE STATE OF TEXAS.._.....

STATEMENT OF THE CASE... 2

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TABLE OF AUTHORITIES

CASES:

Connally v. General Construction Co., 269

Ex parte Jackson, 96 U.S. 727...

Gitlow v. New York, 268 U.S. 652... Sen:

Near v. Minnesota, 282 U.S. 697...

Queen v. Hicklin, L.R. 3 Q.B. 360_-

United States v. First Book Called

“Ulysses” 72 F. 2d 705

Winters v. New York, 333 U.S. 507_...__.

Statutes:

Texas Civil Statutes (Vernon’s 1948)

Article 527

Article 527b

Texts:

Zechariah Chafee, Jr., Free Speech in the

United States (Harvard University

Press, 1942), Page 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1955

No. 548

ALFRED E. BUTLER,

Appellant,

vs.

STATE OF MICHIGAN,

Appellee.

BRIEF OF JOHN BEN SHEPPERD,

ATTORNEY GENERAL OF THE STATE

OF TEXAS, AMICUS CURIAE

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

The State of Texas, as Amicus Curiae, appearing

herein by its Attorney General, John Ben Shepperd,

respectfully files this brief in this cause in support

of the motion of Appellee, State of Michigan, to dis-

— a

miss the instant appeal because of the importance to

the State of Texas of the issues involved and the ne-

cessity that the power of the states be preserved

where, through the proper exercise of the voice of

the people and their legislatures, they prohibit such

obscene and lewd books as exemplified by the book in

point from circulating across the counters of book-

stores and drugstores in an effort to keep such de-

grading literature out of the hands and minds of all

people, especially those of young maturing ages.

Interest of The State of Texas

The State of Texas has a statute’ similar to that

of the State of Michigan which makes it unlawful to

“engage in the business of editing, publishing or dis-

seminating any pamphlet, magazine, or any printed

paper devoted mainly or purporting to be devoted

mainly to the publications of whoring, lechery, as-

signations, intrigues between men and women and

immoral conduct of persons... .” There is also a

statute * which forbids the sale or display of lewd

or corruptive comic books.

Statement of The Case

The State of Texas herein adopts the State of

Michigan’s counterstatement of the case appearing

on page 3, of that state’s brief on Motion To Dismiss

| Appeal.

1 Art. 527, Tex. Civ. Stat. (Vernon 1948).

2 Art. 527b, Tex. Civ. Stat. (Vernon 1948).

CE ath Se Ly ae ee er ee — —— ee

a yan

The States of The United States Are Empowered

To Protect Their Citizens From Obscene and

Corrupt Publications

The states have consistently been held by the

United States Supreme Court to have the power to

control and to punish those who abuse the freedom

of the press and speech by publications and utter-

ances inimical to the public welfare deeming to cor-

rupt public morals, incite to crime, and disturb the

public peace. This was the expression of the Su-

preme Court in the landmark case of Gitlow v. New

York, 268 U.S. 652, wherein a state statute of New

York forbidding criminal anarchy was attacked as

a violation of the 1st and 14th Amendments to the

Constitution. In upholding the state statute, the

Court spoke as follows:

“It is a fundamental principle, long established,

that the freedom of speech and of the press which

is secured by the Constitution does not confer an

absolute right to speak or publish, without respon-

sibility, whatever one may choose, or an unre-

stricted and unbridled license that gives immunity

for every possible use of language, and prevents

the punishment of those who abuse this free-

dom...”

“That a state, in the exercise of its police pow-

ers, may punish those who abuse this freedom by

uttterances inimical to the public welfare, tending

to corrupt public morals, incite to crime, or dis-

turb the public peace, is not open to question . . .”

a un

Further expressions of the State’s power to com-

bat those forces which would undermine the funda-

mental requirements of decency and which would

degrade and pervert the human personalities of both

young and old alike is indicated by the later cases of

Near v. Minnisota, 283 U.S. 697, Chaplinsky v. New

Hampshire, 315 U.S. 568, and Winters v. New York,

333 U.S. 507. The Supreme Court in the Winter’s

case realized the importance of this and stated as

follows:

“We recognize the importance of the exercise

of a state’s police power to minimize all incentives

to crime, particularly in the field of sanquinary

or salacious publications with their stimulation

of juvenile delinquency .. .”

It is, therefore, evident that the states, through

their legislative bodies, are entitled and expected to

protect the welfare of the citizens from those who

would corrupt the citizens of the state by hiding be-

hind an interpretation of the United States Consti-

tution which would subvert its very meaning.

II.

The Michigan Statute Is A Valid Exercise of A

State’s Right To Punish Those Who Sell

Books Composed of Obscenities Inimical

To The Citizens of The State

The Michigan Statute is an expression of the Leg-

islature of that state which forbids by punishment

the sale of those books which are composed of “‘ob-

scene, immoral, lewd, or lascivious language or de-

PEED EAT AAO AR an Ne aU Ro RIT a TS un ore GPT TNL ae ‘cep r

—

scription”. The Federal Government and the Legis-

latures of many states have a similar statute which

forbids books which are of such content and caliber

as to pervert and corrupt the personalities of people

from all walks of life and of every age.

The Michigan Legislature used the above words to

describe the offense and then pointed out the effect

of such publications as having the effect of inciting

minors to violent or depraved, or immoral acts, man-

ifestly tending to the corruption of the morals of the

youth. The language identifying the offense in the

statute, obscene, lewd, or lascivious, is the same lan-

guage which the courts of every generation of this

country have acknowledged as permissible as a

proper exercise of the authority of the state to enact

laws to promote the health, safety, morals, and gen-

eral welfare of its people. Near v. Minnesota, 288

U.S. 697, 707; Ex parte Jackson, 96 U.S. 727; Chap-

linsky v. New Hampshire, 315 U.S. 568; Winters v.

New York, 333 U.S. 507.

In the Chaplinsky case the Court stated:

“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.”

The Court cited the Near case and went on to say

that “lewd and obscene” were such descriptive

terms. The latest expression of the Supreme Court

in the Winters case gives direct support. There the

Court stated as follows:

ee REN

“The impossibility of defining the precise line

between permissible uncertainty in statutes

caused by describing crimes by words well under-

stood through long use in the criminal law—ob-

scene, lewd, lascivious, filthy, indecent or disgust-

ing—and the unconstitutional vagueness that

leaves a person uncertain as to the kind of pro-

hibited conduct—massing stories to incite crime

—has resulted in three arguments of this case in

this Court.”” (Emphasis added.)

The Court further concluded its opinion as fol-

lows:

“To say that a state may not punish by such a

vague statute carries no implication that it may

not punish circulation of objectionable printed

matter, assuming that it is not protected by the

principles of the First Amendment, by the use of

apt words to describe the prohibited publications.

Section 1141, Subsection 1, quoted in note 2, is an

example. Neither the states nor Congress are pre-

vented by the requirement of specifity from car-

rying out their duty of eliminating evils to which,

in their judgment, such publications give rise.”

(Emphasis added. )

Therefore, the latest expression of the Supreme

Court gives express recognition of the validity of

statutes containing the descriptive language em-

bodied in the offense portion of the Michigan Stat-

ute.

— on

Il.

This Case Presents Facts Which Prevent The

Subject Matter From Being Within The

Protection of The First Amendment to

The United States Constitution

This book is not within the protection of the First

Amendment which protects freedom of the press.

There have been various rules and languages used

to indicate when a book is such as will warrant a

conviction under a charge of obscenity. The Com-

mon Law rule was announced in Queen v. Hicklin,

L.R. 3 Q.B. 360 (1868) as follows:

“Whether the tendency of the matter charged

as obscenity is to disprove and corrupt those

whose minds are open to such immoral influ-

ences, and into whose hands a publication of this

sort may fall.”

This was adopted by many American Jurisdictions

but has been discarded by most courts since 1930,

when the case of United States v. First Book Called

“Ulysses”, 72 F. 2d 705 (C.C.A.2d, 1934). Judge

Hand noted that the book must be considered as a

whole in an effort to balance the story being told

with the questionable language used in telling the

story.

Regardless of the rule, it is evident from a read-

ing of this book that it is within either rule and is

undesirable in such a degree as to warrant bringing

—

it within the Michigan statute. Such literature as

this is not worthy of protection since any possible

good is nebulous and of small social value when

weighed against the potential responding human

depravity of conduct and attitude.

We submit that many communities of our nation

are in themselves outspoken enough in their environ-

ment in saying that “variety is the spice of life.”

There are also nations, whom we need not men-

tion, whose complete moral life has become so de-

base as to cause a collapse of government and busi-

ness, partly through an acceptance of such litera-

ture and its claim of freedom of expression.

Thus, this Court is faced with a contention that

freedom of the press is endangered and that our

liberty is being threatened.

Certainly this form of expression now before the

Court is not part of any truth whose expression

would keep us free, but instead would enslave us in

a debachery of men and women in their communities

and family life.

We feel, as did Lord Kenyon, when, during the

French Revolution, he said :°

“The liberty of the press is dear to England.

The licentiousness of the press is odious to Eng-

land. The liberty of it can never be so well pro-

tected as by beating down the licentiousness.”

8 Free Speech in the United States, Chaffee, p. 13.

ee eee ee

IV.

This Statute Is Clear and Definite

The Statute before this Court is of such a char-

acter that men of common intelligence need not

guess at its meaning. Connally v. General Construc-

tion Co., 269 U.S. 385.

As set forth in this Statute, in order for the publi-

cation to meet the language of the Statute, it must

contain obscene, immoral, lewd or lascivious lan-

guage. The Court held in the Winters case that

these words are well understood through long usage

in the Criminal law. It was in this case that the

Supreme Court expressly declared that a part of the

New York Statute was a valid and certain statute.

This part contains the very words that the Michigan

Statute before this Court contains.

The first prerequisite states that the book must

contain these descriptive words. It does not read

“a book with any obscene language”. Although ap-

pellant attempts to argue that the word “contain-

ing” is nebulous and uncertain, we must realize that

all language is a vehicle of communication. If the

statute read “a book with such language”, there still

would be a question as to how much of the book must

contain the prohibitory language before it could be

forbidden.

After setting up these prerequisites, the statute

then describes their affect as “tending to incite

minors to violent or depraved or immoral acts”.

This descriptive language manifests the intent of

——

the Michigan Legislature, wherein they set out the

effect of such obscene books. Furthermore, the Leg-

islature went on to say that these types of books

“manifestly tend to corrupt the morals of the

youth”’.

It is evident that a book containing obscene and

lewd language and an obscene and lewd book are

equivalent to each other. Since the Supreme Court

has held Statutes similar to the Michigan Statute to

be clear and certain and since the Michigan Supreme

Court followed this mandate and held the statute

valid, this appeal should be dismissed.

CONCLUSION

The States are authorized to prohibit the corrup-

tion of the personalities of their citizens by forbid-

ding obscene and debase books from being sold in

their respective states. The State of Michigan has

enacted a statute in accordance with this power

which is certain and definite, indicating what is to

be forbidden and also why it is prohibited.

This country was not founded nor was the first

amendment adopted by the people of the United

States with any idea of protecting publishers and

writers in their efforts to enrich themselves through

“box office” appeal by pretending to write a “story”

and then permeating it with obscenity and lewdness

so as to appeal to certain portions of the public who

are trained by these writers to respond to such lit-

erature as is before this Court.

eS LAO SNM PRP PURO TS fa PR aU SRI VES SM A eR IR fC SVR Re gS em

The people of this Nation are entitled to the pro-

tection of their families structures from such efforts

as this to attract the attention of young adolescents

whereby these writers and publishers would prosti-

tute man’s God-given instinct to be pro-creative in

an attempt to line their pockets with this ill-gotten

gain.

We respectfully urge this Court to dismiss this

appeal.

Respectfully submitted

eeeeeereeeeeeeeeeeeseeeeeeeeeeeeee

JOHN BEN SHEPPERD

Attorney General of Texas

PHILIP SANDERS

Assistant Attorney General

Proof of Service

I, Philip Sanders, Assistant Attorney General of the

State of Texas, hereby certify that on the 8th day of May,

1956, I served copies of the foregoing brief on the several

parties thereto as follows:

1. On Appellant, Alfred E. Butler, by mailing a copy

in a duly addressed envelope to his attorney of record

as follows: William G. Comb, Dime Building, Detroit,

Michigan.

2. On Appellee, State of Michigan, by mailing a copy

in a duly address envelope to its attorneys of record

as follows: Thomas M. Kavanagh, Attorney Gen-

eral of the State of Michigan; Edmund E. Shepherd,

Solicitor General of the State of Michigan.

PHILIP SANDERS

FREER AI ER TPR Catal ERE IO, LT RNA I HD BAAR SSE

APPELLANTS

--BRIEF

AUG 2019

BRIEF ON MERITS JOHN T. FEY,

IN THE

Supreme Court of the United States

Octoser TERM, 1956

No. 16

ALFRED E. BUTLER,

Appellant,

vs.

STATE OF MICHIGAN

APPEAL FrRoM THE RECORDER’s CouRT OF THE

City or Detroit, STATE oF MICHIGAN

BRIEF FOR THE APPELLANT

Counsel for Appellant

MANUEL LEE RossIns,

30 Broad Street,

New York City, N. Y.

WILLIAM G. Cos,

1512 Dime Building,

Detroit, Michigan.

ea ————<--- ———

INDEX

Do as bak ais weed wire se

DTI ch iccvccceueccccccascsesescecese

IIE ns aus rnd. ahed Ga ah pd Oe lo tiara

ES CO cass ke Nic ou eae w eer ie wee

SD SIO 0 bv. occtancnesdencupenscews

ES RD At epg ett ang Epa pid

SUMMARY OF ARGUMENT ...........cccccccccces 27

RRS Sea isardeqe es enna a Sel Ramone hater enn 28

I. THE MICHIGAN STATUTE AND THE JUDGMENT

PREDICATED ON IT PLAINLY AND SERIOUSLY IN-

FRINGE THE FREEDOM OF PRESS AND DUE PROCESS

oF Law GUARANTEED BY THE FIRST AND Four-

TEENTH AMENDMENTS TO THE FEDERAL CONSTI-

NN ka 'e-G-sa t's wa ea pias area el ae taaee aaa 28

A. The Freedom of Press and Due Process Aspects

of Statutes Restricting the Distributing of

PO bce oe bi dndek eGageeSenuis anes 30

B. Prohibiting the Circulation of a Book to Any

Member of the Community on the Ground That

It May Tend to Have an Injurious Effect Upon

a Minor, Is an Unconstitutional Deprivation of

the Appellant’s Freedom of Press ........... 32

C. The Michigan Statute Defines Obscenity in

Vague and Indefinite Terms and Hence Its

Restrictions on the Sale of Obscene Literature

Do not Comport with Due Process .......... 35

D. Because It Prohibits the Distribution of a Book

“Containing” Any Obscenity, the Michigan

Statute Violates the Constitutional Guarantees

of Freedom of Press and Due Process of Law 38

I ee Oo ee eee 2 ane 42

CASES CITED

PAGE

Bridges v. State of California (1941), 314 U.S. 252. 31

Burstyn v. Wilson (1952), 343 U.S. 495 ........ 2, 37, 38

Commercial Pictures Corp. v. Regents (1954), 346

Se oc gad we as oka SEEK Oa ee eae 37

Commonwealth v. Gordon (1949), 66 Pa. D. & C.

101, aff'd. sub. nom. Commonwealth v. Feigenbaum

(1950), 166 Pa. Super. 120, 70 A. 2d. 389 ....... 42

Gelling v. Texas (1952), 343 U. S. 960 ............ 37

Grosjean v. American Press Co. Inc. (1936), 297 U. S.

er caccGurwewaies cies u ean ie eae kenee anne 31

Halsey v. N. Y. Society (1922), 234 N. Y.1,4..... 42

Holmby Productions, Inc. et al. v. Vaughan et al.

CRE, DOU, Tome), FO Oe CR. BES ow vecvvessncs 2, 37

Ex parte Jackson (1877), 96 U. S. 727, 733 ......... 32

Liggett Co. v. Baldridge (1928), 278 U. S. 105, 111-

eee eS Pe ae a a 33

Lovell v. Griffin (1937), 303 U.S. 444, 450,452 ..... 31, 32

New American Library of World Literature v. Allen

(N. D. Ohio, E. D. 1953), 114 F. Supp. 823 ...... 42

Parmalee v. United States (D. C. Cir. 1940), 113 F.

Re a ia ee a are as 4]

Pennekamp v. Florida (1946), 328 U. S. 331, 335... 31

Queen v. Hicklin (1868), L. R. 3 Q. B. 360, 371 . .33, 34, 35

Schneider v. State of New Jersey, Town of Irvington

he RR SR A rere ere 31

State v. Lerner (Ohio C. P. 1948), 81 N. E. 2d. 282,

DE sip Whe uhud sos 400 0GRKeN 6s aeabs xeevoeeene 42

Superior Films, Inc. v. Department of Education

bo Le ee eer 37, 38

Treigle v. Acme Homestead Assoc. (1936), 297 U. S.

MERLOT su cicWu une s Cen spieieeeeetaver meee 33

PAGE

iii

United States v. Levine (2d. Cir. 1936), 83 F. 2d.

coche ES CCE en Te 34, 41

United States v. One Book Entitled “Ulysses” (S. D.

N. Y. 1933), 5 F. Supp. 182, 184, aff’d., (2d. Cir.

1934), 72 F. 2d. 705, 707-708 ................. 34, 41

Walker v. Popenoe (D. C. Cir. 1945), 148 F. 2d.

EEE ieee 34, 41-42

Winters v. New York (1947), 333 U.S. 507

2, 30. 31, 36-37

STATUTES CITED

Colorado: Stat. Ann ( 1935) ch. 48, sec. 217 ....... 30

Florida: Statutes (1951) sec. 847.01 .............. 30

lowa: Code (1950) sec. 725.4 ................... 30

Maine: Rev. Stat. (1944) ch. 121, sec.24........... 30

Michigan: Statutes Annotated, sec. 28.575 (Compiled

Laws of 1948, as amended by Act 74 of the Public

Oe WE sg hks Vet usa ins bh cigs dees ccc, 5

Rhode Island: Gen. Laws (1938) ch. 610, sec. 13 .... 30

South Carolina: Code (1952) sec. 16-414 .......... 30

Tennessee : Williams Code ( 1934) sec. 11190 ....... 30

Vermont: Stat. Rev. of 1947, sec. 8490 ............. 30

Virginia: Code (1950) sec. 18-113 ............... 30

West Virginia: Code (1949) sec. 6066 ............ 30

AUTHORITIES CITED

Lockhart and McClure: Literature, the Law of Obscen-

ity, and the Constitution. (1954), 38 Minn. Law

Review, 295, 339-340 .........ceccccccceces.,, 34

IN THE

Supreme Court of the United States

October Term, 1956

ALFRED E. Butter,

Appellant,

—against— No. 16

STATE OF MICHIGAN,

Appellee.

APPEAL From THE REcoRDER’s CouRT OF THE

City or Detroit, STATE oF MICHIGAN

BRIEF FOR THE APPELLANT

Opinion Below

The only opinion below in the case at bar was that of

the trial judge of the Recorder’s Court of the City of

Detroit, Michigan which was delivered orally at the con-

clusion of the trial proceedings. It is unreported but ap-

pears in the Record at folios 330-333, and in this Brief

at pp. 24-26.

Jurisdiction

Appellant appeals from the judgment of the Recorder’s

Court of the City of Detroit, State of Michigan, entered

on the 13th day of July, 1954 (R. 330-333),* convicting

*References are to folios of the printed Record.

him of violating Section 28.575, Michigan Statutes An-

notated (Compiled Laws of 1948, as amended by Act 74

of the Public Acts of 1953). He was sentenced to pay a

fine of $100 (R. 333). Thereafter, his application for

leave to appeal to the Supreme Court of the State of

Michigan was denied by that Court on July 14, 1955 (R.

400). Notice of appeal to this Court was filed in the

Recorder's Court of the City of Detroit on September 2,

1955 (R. 342-345), and probable jurisdiction was noted by

this Court on February 27, 1956 (R. 401).

The jurisdiction of the Supreme Court to review this

judgment by appeal is conferred by 28 U. S. C. Section

1257 (2). The following decisions sustain the jurisdiction

of the Supreme Court to review the judgment on appeal:

Winters v. New York (1947), 333 U. S. 507; Burstyn v.

Wilson (1952), 343 U. S. 495; Holby Productions, Inc.

et al. v. Vaugham et al, (Oct. Term, 1955), 76 S. Ct. 117.

Introduction

The Michigan statute which the appellant was convicted

of violating makes it a crime to sell, offer or possess for

sale a book ‘‘containing obscene, immoral, lewd or lascivious

language” or “descriptions, tending to incite minors to

violent or depraved or immoral acts, manifestly tending to

the corruption of the morals of youth.” The book involved

was “The Devil Rides Outside” by John H. Griffin, pub-

lished by Pocket Books, Inc. of New York City. Ina

motion to dismiss made at the outset of the trial and re-

newed during the course of the trial, the appellant contended

that the Michigan statute, upon which the prosecution was

based, was an infringement of the rights guaranteed him

by the First and Fourteenth Amendments to the Consti-

_ +

tution of the United States in that it deprived him of his

freedom of press and denied him due process of law (R.

3-5, 211, 235). The motion was based on the same con-

tentions as are herein advanced and which have been

persistently but unsuccesstully urged at all stages of the

litigation.

After all motions were denied by the trial judge

(R. 235), he found the appellant guilty of violating the

statute (R. 333). Thereafter, the appellant filed a timely

application to the Supreme Court of the State of Michigan

for leave to appeal, contending that the said Michigan

statute, on its face and as applied, and the judgment of the

Recorder’s Court predicated thereon, violated his rights

as guaranteed by the lirst and Fourteenth Amendments

to the Constitution of the United States (R. 349-350).

Although appellant's application for such leave to appeal

was consented to by the People of the State of Michigan

on the ground that “the issues involved in this case

are of great public interest’ and that a “clarification

of the language of” the statute was “necessary” (R. 397),

the Michigan Supreme Court entered an order on June 14,

1955, denying the appellant’s application for leave to appeal

(R. 400). Thus, this appeal involves a state court decision

which sustained the validity of a state statute against the

appellant’s objections based on federal constitutional

grounds.

In brief, “The Devil Rides Outside” ( People’s Exhibit

1) is a story written in diary form and in the first person

singular. The name of the protagonist is never disclosed

although it is apparent that he is a young American musi-

cian. The title emanates from an old French proverb to the

effect that the devil rides outside monastery walls and the

book is divided into two parts, the cloister Within, and the

_ devil without. The first part is prefaced by a quotation

from the eminent poet Gerard Manley Hopkins emphasizing

man’s bewilderment that sin and depravity should be in-

herent in his nature (R. 86). The second portion of the

book is introduced by a quotation from St. Augustine

which considers the incomplete nature of man’s control

over sin and temptation (R. 87).

The book traces the protagonist’s growth in the re-

ligiously centered life of a Benedictine cloister in southern

France and at the same time gives a rather complete and

bitter picture of the small-town bourgeois life in the village

outside of the monastery walls. It starts with his arrival

at the monastery to study Gregorian chants and on the way

from the village to the monastery, the bawdy taxicab driver,

Salesky, tries to interest him in having one of the girls in

the town. However, Salesky’s services are refused and the

protagonist commences living at the Benedictine monastery

intending to return to Paris to take up again with his mis-

tress there. The protagonist, strangely enough, becomes

deeply attached to monastic life and ultimately embraces

a deep religious faith. He cannot leave, despite bouts

with fever and the unendurable cold. Weakened by the piti-

ful food and the hard life, he goes to live in the village to

recover his health while continuing at the monastery his

devotions during the day and his study of the manuscripts.

He changes from a selfish and arrogant person to one who

is seeking wisdom and peace and in the course of his sojourn

he becomes tremendously impressed with his father-con-

fessor and with a visiting physician, named Castelar, who

apparently symbolizes the happy combination of godliness

and manliness in the lay world.

In the period when he is learning to conquer his lusts,

he has some earthy and realistically described experiences

— §

with women and he struggles to rid himself of these physi-

cal demands and bodily passions. He finally wins out over

his baser self by rejecting Madame Renée, his housekeeper

and the village’s leading matron whose beauty and power-

ful pride almost engulf him. The book closes with a fore-

shadowing of his return to the monastic cell after he has

won through to sanctity.

Statutes Involved

The sole statute herein involved and the one under

which the appellant was convicted, is Section 28.575, Michi-

gan Statutes Annotated ( Compiled Laws of 1948, as

amended by Act 74 of the Public Acts of 1953), which

provides :

“Any person who shall import, print, publish,

sell, possess with intent to sell, design, prepare, loan,

give away, distribute or offer for sale, any book,

magazine, newspaper, writing, pamphlet, ballad,

printed paper, print, picture, drawing, photograph,

publication or other thing, including any recordings,

containing obscene, immoral, lewd or lascivious

language, or obscene, immoral, lewd or lascivious

prints, pictures, figures or descriptions, tending to

incite minors to violent or depraved or immoral acts,

manifestly tending to the corruption of the morals of

youth, or shall introduce into any family, school or

place of education or shall buy, procure, receive or

have in his possession, any such book, pamphlet,

magazine, newspaper, writing, ballad, printed paper,

print, picture, drawing, photograph, publication or

other thing, either for the purpose of sale, exhibition,

loan or circulation, or with intent to introduce the

same into any family, school or place of education,

shall be guilty of a misdemeanor.”

Questions Presented

The following questions are presen.ed by this appeal.

Does the said Michigan statute, on its face and as applied,

violate the appellant’s rights as guaranteed by the First

and Fourteenth Amendments to the Constitution of the

United States in that:

(a) its provisions prohibit and punish the publica-

tion and distribution of a book to any member of the

public because of the effect such book might tend to have

merely on minors, thereby unduly limiting and restricting

the appellant’s constitutional rights of freedom of press,

there being neither charge nor proof that the book in ques-

tion was sold to or possessed by a minor ;

(b) it is so vague and indefinite as not to comport with

due process because its provisions prohibit and punish the

publication and distribution of a book if such book contains

matter which tends to incite minors to wrongful conduct

and corrupt their morals—a wholly vague criminal pro-

scription, predicated upon unascertainable and indefinite

standards of conduct;

and distribution of a book merely containing certain pro-

scribed language and descriptions, thus precluding any

consideration of the entire book as a whole and thereby

imposing and enforcing unconstitutionally restrictive limita-

tions on the appellant’s freedom of press.

Statement

The case at bar involved the prosecution of the appellant,

Butler, for selling, to a police officer, a paper-bound edition

of the book entitled “The Devil Rides Outside,” written

by John H. Griffin and published by Pocket Books, Inc. of

630 Fifth Avenue, New York City (R. 25). The appellant

conceded (R. 28) that he had sold the book in question

(People’s Exhibit 1) but specifically objected (R. 30-34)

to the trial court’s admission into evidence of a prepared

selection of 101 excerpts from the book which the police

officer, Inspector Herbert W. Case, in charge of the Censor-

ship Bureau of the Detroit Police Department (R. 25),

testified were “objectionable” (R. 32). In admitting these

excerpts (People’s Exhibit 2), the court overruled the appel-

lant’s contention that a consideration of these portions obvi-

ated a judging of the work as a whole (R. 33).

The only sale proven at the trial was the one to Inspector

Case, an adult, and after his testimony the People rested

(R. 41). The appellant’s motion to dismiss, based on the

unconstitutionality of the statute and on the weight of the

evidence, was thereupon denied (R. 42, 235).

All the defense testimony introduced by the appellant

was devoted to establishing that the book, viewed as a

whole, was not in any way obscene, lewd, immoral or lasci-

vious, but was a serious work of artistic and literary value.

Thus, Harriet Good, Chief of the Book Selection Depart-

ment of the Detroit Public Library (R. 43), testified that a

hard-cover edition of this work (Defendant’s Exhibit 1,

R. 48, 77), published by Smith’s, Inc. of Fort Worth,

Texas, had been purchased by the Library and was listed

there in the home reading department (R. 44). She

stated, however, that “there were certain scenes and in-

cidents in it that were for adult readers only and on that

basis, we restricted its use for young people” (R. 57).

The witness explained the Library's interpretation of the

term “‘restricted use” (R. 48):

Re... wes

“It is the judgment of the persons involved, that the

book has literary value. It should be represented in

the Public Library. However, it should not be pro-

moted.

“We consider books placed on the open shelf as

books which we are willing to say we promote. The

closed shelf of materials are available to adults who

ask for them, and they are not placed freely for

accessibility for any one at all, there is restricted

use.”

Freeman Lewis, the Executive Vice President of Pocket

Books, Inc., the publisher of the reprint edition of the book

(R. 61), testified that the work had been placed on sale

in the month of March, 1954 (R. 62) and nationally dis-

tributed throughout the country without any stimulating

promotion campaign to promote its sale (R. 66, 71-72).

It was merely distributed through a system of independent

wholesalers in the various states (R. 70-72).

The defense then called Professor Sculley Bradley, a

Professor of English at the University of Pennsylvania

and Chairman of that institution’s Department of Ameri-

can Civilization (R. 78). Professor Bradley had been

associated with the University for 34 years, was one

of its graduates and was awarded its M.A. and Ph.D.

degrees (R. 78-79). He had also served as a visiting

Professor at Northwestern University, Duke University,

University of Southern California, and presently was a

specialist in American Literature and American Civiliza-

tion (R. 79). The witness was the author of several

biographies and a number of historical critical works and

was Assistant Literary Editor of the Philadelphia Press

from 1931 to 1933 (R. 80). He had also extensively re-

viewed books for many newspapers and magazines includ-

ARSE rage on ae fe ag SA ULL 2

ing the Chicago Tribune, the New York Times, the

Saturday Review of Literature and Harper’s (R. 81).

Professor Bradley testified that he read “The Devil

Rides Outside” and formed an opinion as to its literary

value and artistic merit (R. 82-83). In giving his opinion

of the literary value of the work Professor Bradley dealt

extensively with its characters, themes and plots (R. 84-

103) and likened it to the story of the Temptations of St.

Augustine (R. 89-90, 102). He pointed out that the writing

of this book belonged to “a modern form of writing in which

a symbol has been employed, a symbol of action or character

has been employed to suggest to the reader more meta-

physical and difficult ideas that are associated with it,

instead of using an expository method to relate the ideas

in philosophical discourse” (R. 91). The book to this

witness was a “story of conflicts in a man” which he felt

were ultimately resolved “in a very interesting way” (R.

92). Eventually, the protagonist of the story found enough

inner strength to resist all of the mundane temptations with

“a final assertion of moral will” (R. 102). This climax, he

claimed, was “a bit like the final temptation of St. Anthony

in its enormous emotional build-up and power” (R. 102).

In summarizing, Professor Bradley stated that he

thought the work was “a highly ethical novel” (R. 102)

and “a novel with religious implications at every point,

and, finally, a novel in which the various scenes and episodes

are highly integrated” (R. 102). Viewed as a whole, the

book was of “substantial literary merit” (R. 104); the

writing was “extraordinarily good” (R. 104) and although

as a first novel it contained “irregularities,” it also had a

“sincerity of purpose” and “power” (R. 104).

Consistently overruling the defense contentions that the

work could not fairly or properly be appraised by its seg-

ments, this expert was required, on cross-examination, to

answer many questions of Court and counsel concerning

realistically drawn, lusty episodes in the work (R. 110, 116,

122, 125, 133-135). In the main, Professor Bradley insisted

that he was only able to see the book as a whole, that a

particular passage had no existence outside the book and

that he was unable to separate the passage from the entire

context of the work (R. 117-118, 121). When pressed

further, he justified a particular instance as an integral

part of the dominant themes or symbolisms of the work

(R. 113, 121, 122-4, 131-132, 134). Other cited excerpts,

he felt, added “to the literary value of the book” (R. 134)

and the detailed descriptions therein were necessary to

its style (R. 124). His final colloquy with the trial judge

summarized his opinion on these matters (R. 139-140):

“The Court: You feel then that by the use of

well chosen, very descriptive and, let’s say, high-

sounding phrases, words and phrases, that that takes

it out of the obscene, vulgar, immoral class?

“A. I think that has been the experience of

literature through the ages. The loftiness of the

spirit and the use of the language for lofty pur-

poses, has elevated the commonest of human mate-

rials and we can look at the greatest classics of

literature and find it true.

“The Court: Do you think that in this book,

that it was necessary to describe in detail the sexual

experiences of Mr. ‘X’ and his minute feelings all

during those experiences, in order to make it of ©

literary value?

“A. Yes, Your Honor, I do.

“The Court: Why?

“A. Because I feel that the inner intention of

this book is to bring the reader, make the reader

—

familiar with his own soul and his own experience.

I think that this book is intended to have what one

of our critics called the shock recognition for the

reader. I think that the writer understands that we

all go about, even shielding ourselves from the con-

scious recognition of what is present in our minds,

present in our instincts, in our inner nature, so that

we feel that we are surrendering to evils without

ourselves, or we completely shut our eyes to the

fact that there may be evil there, and that he has

attempted to show us the whole working of the

mind and experience of this character, in order that

we should recognize ourselves and understand that

the grace which he finds and G’Seau and Clement

and other clerics are able to show him, is available

to every one.”’

The other literary expert called by the defense was

Professor Frank L. Huntley, Associate Professor of Eng-

lish of the University of Michigan (R. 144-145). Professor

Huntley had taught the undergraduate body a general

course on English and American literature and was a

member of the Hopwood Committee of the University of

Michigan “which has the responsibility of encouraging

young writers” (R. 147). After reading “The Devil Rides

Outside” (R. 147), he formed an opinion about the work

which he asserted did not differ from Professor Bradley’s

(R. 148-149). Viewing the book as a whole and consider-

ing its dominant themes (R. 153), Huntley concluded that

the work portrayed the age old problem (R. 155): “The

devil is outside of us, the devil is inside of us. We are

part animal and part angel.” The witness found that the

book had “substantial literary merit” (R. 153), and that

the ultimate conflict was resolved in a “moral” and “reli-

gious” way (R. 157).

In a fashion similar to the cross-examination of Pro-

fessor Bradley, Huntley’s attention was also mandatorily

directed to the excerpts from the book. With respect to par-

ticularly vivid and realistically written passages referred

to by the prosecutor, the following colloquy, over objection,

occurred in cross-examination (R. 163):

“Q. * * * Now, do you feel that this book, People’s

Exhibit 1, a copy of which you have in your hand,

would still be of great literary value if all the por-

nographic details were omitted?

“A. No. Given this conflict as we have attempted

to analyze it, it’s like a conflict between A and B

and you are taking A away.

“Q. You feel then that it is necessary in a good liter-

ary treatment of the work, to include every detail

of the sex act as is depicted there, do you?

“A. I believe firmly that it is part of the structure,

the spirit and the tempo, the color of the whole work.

Here again, may I add

“Q. Go ahead.

“A, that the intention of the author is called in

question***”’,

Again, when asked, over objection, if he considered

these passages offensive when taken alone, Professor Hunt-

ley answered (R. 167-168) :

“A. Taken alone. I find it difficult to say yes or no

to that question. I find it impossible to answer it

without an analogy. Let’s say, take a statue: then

let’s concentrate just on the navel. The human um-

bilicus is not a beautiful object, but just take that.

Is this apart from its intention, apart from the

whole in which we find it, is this beautiful? I would

say no.

“Q. In other words, Professor, tell me this, if I am

correct. Is it your opinion that the work taken as a

whole is a literary work, but that if you should

select the excerpts which some people feel are ob-

scene, lewd, lascivious and immoral, that in and of

themselves, separate and distinct from the work as

a whole, they could and should be classed in the

lewd, lascivious and immoral classification ?

“The Court: Or any of them?

“A. Well, I would, I think I would have to grant

that, Mr. Kent, though I call it a perversion. * * *,

Yes, it would be a perversion on the part of the

reader to make such selections as I think it would

be a perversion on the part of a person looking at a

statue, simply to concentrate on the navel and noth-

ing else, and then say this is not beautiful.”

John H. Griffin, the author of the work (R. 173), testi-

fied concerning the many years he had spent in France, as a

student and as a musicologist (R. 174-185). After service

in World War II which left him blind and severely crippled,

he became absorbed in studying the Benedictine chant in

the monasteries throughout Europe where he did advanced

research (R. 182-184). As a result of his studies in the

French monasteries, many of which were in the rural

parts of France, he developed a familiarity with monastic

life, the manner in which the monks lived, their prayers

and musical studies and the customs and mores of Gallic

country sections (R. 185, 193). In 1951 he became a

member of the Carmelite Order (R. 191) and a year or

so thereafter he wrote this work, his first published novel,

which took about seven or eight months to complete (R.

188, 192). He is also the author of other works on techni-

cal subjects, primarily, musicology (R. 186-187 ).

Turning to the work itself, the witness stated that while

the book was not “autobiographical” (R. 192), he had

“met most of those characters many hundreds of times”

(R. 193). When questioned as to his purpose in writing the

book, the author referred (R. 200) to one particular passage

in the book that distilled his point of view and which appears

on pages 196 and 197 of People’s Exhibit 1, as follows:

“And over and above, we are offered the free-

dom of choice. God, they say, gives us the freedom

to choose. But this is a thing of the mind; these

qualities of the outside are things of the mind. Can

they legitimately be ugly, or even delusions? Can

there be freedom of choice when the emotion, not

the mind, has the thirsts? And aren't all these

things tempered within us to a point where man

lives his outside life with no need for consistency

of ideal? Are not the smells of wet flesh, the com-

fort alternating with discomfort, the street sounds,

the healthfulness of licentiousness to warm blood,

the wonder of our miracle of livingness, enough?

There's no freedom to choose until other knowledges

insinuate themselves into the heart and the emotions,

until other knowledges become other thirsts not to

be denied. Then, and only then, can a choice be

made. 7

“Return to the inside, to our poor cloister and

its world of the interior, its second portion of every

man: the fog-filled interior known as man’s health

of soul. It too is a thing of the mind not yet ready

to become a choice. Instead of riches we seek pov-

erty, instead of the reeling insides we seck chastity,

instead of sources of pride we seek sources of

humility. But these aren't the end, as are wealth

and success on the outside. They are the means to

an end—the end being the destruction of all obstacles

standing between us and the love of our life, which

is God.

“Immutable standards of interior criteria. The

paradox of destroying individuality to become

whole, of forming the irreplaceable link of a chain

knowing that that chain makes of us a portion of

living time; knowing it will go on forever with our

pinpoint of breathing as one of its links. It isn’t

done for self but for the many, and for God. And

it creates a rapture within that grows into com-

pleteness.

“Two pictures, and a choice. The one which

most of us know is brightly colored—brilliant,

splashing—and satisfying to every cell of the human

body. And over its hues death throws the shroud

of an undetermined end. The other picture, the one

within, is rather the color of the sun, white; the

source of all colors before it is passed through the

spectroscope and divided. It consumes the satis-

faction of each cell of the body, so that the heat of

many colors may become the Source of heat ; burn-

ing the spirit into such a bliss as man may never

know, but which, if we believe, is filtered through

to us here on earth. It must not be contemplated

lightly, for we shall never recover from it once it

has seared us within. And the Struggle is brief,

for its fire becomes a process inside: first a cleansing

Process, and then the curing of the intangible

maladies of reserve and modesty, and with them the

stinginess of our desire to remain individual unto

Ourselves . . .”

Griffin admitted that passages and some of the lan-

guage in the work were realistically blunt, often gross

(R. 201), but pointed out that his whole thesis was to

“show the degradation” to which “the complete following

of these impulses” leads (R. 204). The incorporation of

this type of material was symbolical—“‘it_ symbolized all

misuse of virtue, of the gift of God” (R. 204). Moreover,

SR ENG ce xk

some of the realistic and blunt language that was used was

spoken “in the idiom of the countryside” (R. 205).

On cross-examination, Griflin stated that the sex act

was chosen as a symbol of all sins that are prevalent in the

world because it “is an aspect of life that is universal.”

(R. 208). Thus, he testified (R. 208) :

“Q. Mr. Griffin, did you feel that the intimate details

of the sex act were necessary for a consumma-

tion of the good literary style?

“A. I felt that from the viewpoint of what I was

aiming at, and from the viewpoint of artistic

integrity, that by some absolute, they were

necessary and justified.”

In the course of his testimony, the author disclosed that

the book had four or five editions (R. 208-209). While there

were some differences between the Smith's hard-cover edi-

tion which the Detroit Public Library had on its “restricted

shelf” (Defendant's Exhibit 1), and the Pocket Book edi-

tion ( People’s Exhibit 1) involved in this prosecution, these

concerned changes of spelling, errors in nomenclature,

punctuation, the use of exclamation marks and italics, and

one scene deleted which showed that a priest might be

breaking the seal of the Confession (R. 210-212). The

reason for these changes was that Smith's made changes

in the first manuscript which the author did not know

about and he insisted upon eliminating most of these

changes from the Pocket Book edition (R. 210-212, 223-

225, 232).

At the conclusion of Griffin's testimony, the defense

rested (R. 233) and all motions made at the opening of the

case were again renewed by the defense in addition to a

motion that the proof did not establish beyond a reasonable

doubt the appellant’s guilt of the charge (R. 235). The

Court at this time denied all of these motions and held that

the statute was constitutional and not in violation of the

First and Fourteenth Amendments of the United States

Constitution (R. 235).

In rebuttal, the People called Rabbi Morris Adler who

received the degree of Rabbi and Master of Hebrew Litera-

ture at the Jewish Theological Seminary of New York (R.

241-242) and also completed graduate courses in literature

at Columbia University and C ity College of New York

(R. 242). The Rabbi further indicated that a good deal of

his work in his Congregation in Detroit Was with the young

people of that organization (R. 242). The Witness testified

that he read the book “fully and completely” (R. 242)

and that he formed an opinion as to its literary value (R.

244). The next line of questioning was put to the witness

by the Court and over the appellant’s objection (R. 245-

245) :

“** * So, Tam going to ask you again, Rabbi, if you

feel that some of the material in there is justified by

the literary value of the book. can you answer that ?

“A. That's a very difficult question, your Honor.

I'd like to explain my position instead of saying yes

or no.

“The Court: Very well.

. * a

“A. Your Honor, my feeling is that this is a serious

book, that this was written by a man with a talent

for writing, and I think with a serious purpose in

his mind. And 1, for one, would not be too much

concerned about the corruption of the morals of

any one who read this book from a literary point of

view out from his interest in literature. What I am

afraid of is that somehow, word gets around about

certain passages that are not read in connection

with the entire book, and that would constitute, of

course, a different kind of effect. I am persuaded

that this is a book of literary merit, and that the

man who wrote it was seriously interested in the

picking [depicting] an area of life which concerned

him.

“The Court: Well, what about the obscene pas-

sages?

“A. I think that if they are read by people who have

no interest in literature as such, or in the description

of character and background that are found in the

book, but simply to seek out these passages, there

are passages that are exceedingly stimulating and

which taken together with other influences in the

lives of young people, may have a corrupting influ-

ence.

“The Court: May have a tendency ?

“A. May have a tendency to corrupt, yes sir.”

The next witness in rebuttal was Father Henry Villerot,

a priest connected with the Blessed Sacrament Cathedral

in Detroit who stated that he had a Bachelor of Arts degree

from a parochial college and that he had never done any

graduate work in literature (R. 247-248). The witness had

never taught literature (R. 248) or reviewed any books for

literary journals, newspapers or magazines (R. 251) but

had done some work with a Catholic Church Committee to

“clean up the literature both in comic and pocketbook form

and even in magazine form on the stands around the city

or the diocese of Detroit” (R. 249). The Court ruled,

nevertheless, that the witness was qualified as a literary

expert (R. 254) and Father Villerot was permitted to give

his opinion concerning the work. His statement was as

follows (R. 255):

“As far as the literary work, it definitely falls into

a present classification, modern literature, and cer-

tainly has merit in that particular field insofar as I

might say, the proper telling of the story that the

author intends and his description, and that’s what

I would say in regard to it on a literary basis.”

Again, over defense objection, we have his further tes-

timony, prompted by the Court and subsequently elicited

by the prosecution (R. 255-256) :

t y

“The Court: Let me ask you this, without going

into any expert. Would the parts in there that were

not to your liking, or not moral, or lewd, lascivious

or obscene, would the purpose of the author in your

mind, have justified the inclusion of those parts in

that book, and you may have an objection to that,

and I am going to take the Father’s answer.

“A. As a literary work, maybe. As a work that

should be given to the public for public consumption,

no.

“The Court: You think that the literary value of

the book would have been impaired at all by remov-

ing or changing some of those parts in the book that,

well, particularly the vivid description of the, let’s

call it, sensual rather than sexual act. Do you think

the literary value would have been destroyed if some

of those were changed?

“A. According to my idea of the literary value,

I'd say no.

“Q. (By Mr. Kent) You feel that it was unneces-

sary to go into the intimate details of the sensual

act?

“A. Yes.

“Q. And that could have been done without destroy-

ing whatever literary value there might have been

to the book?

“A. I think so, yes.”

The People also called Bishop George W. Baber, Pre-

siding Bishop of the African Methodist Episcopalian

Church (R. 264) who received a Bachelor of Divinity

Degree at Wilburforce University and “shopped about”

(R. 265) for his graduate studies, attending “refresher

courses and seminaries and so forth and so on” (R. 265).

His only study in the field of literature was a “general

survey” but he engaged in reading as “a constant avocation”

(R. 265). He had never been asked to pass an opinion

on the literary value of any book and had never taught

any literary subjects (R. 266). The only remote connec-

tion he had with the literary field was that he “censored

pictures * * * by invitation through the Council of Churches

in Detroit” (R. 266). Despite objection by the defense

as to his qualifications, the Court ruled that he was qualified

as a literary expert and permitted him to testify as to his

opinion of the literary value of the book (R. 268). He

gave as his opinion (R. 268).

“A. I think it is typical of current realistic litera-

ture, and it has value, it indicates that the writer has

a good mind and pursued his subject. When I say

‘good mind’ I mean a good background of training,

and he pursued his subject in an interesting fashion.”

He further stated, however, that the descriptive emphasis

on the sensual was unnecessary to the work (R. 269-270).

The next witness was Mildred Seitz, a Detroit house-

wife who received a Bachelor of Arts degree at the Univer-

sity of Missouri (R. 274) and had recently done some sub-

RTS Ac ecg

stitute teaching in the Detroit schools (R. 282-283) on

American and English literature. The witness was President

of the National Council of Catholic Women (R. 276) and

gave her opinion of the work as follows (R. 276-277) :

“I think the book contains merit in this way. It is

very graphically descriptive. It is built like the aver-

age modern novel, it has tremendous rises and fall

of climax, both in description and in actual re-

counting of events.”

Over the objection of the defense, the witness also tes-

tified that the intimate details of the sex act as depicted in

the book detracted from its literary value and that such

value would not have been destroyed if these details were

omitted (R. 278-279). From her experience as a high

school teacher of English she felt that high school students

would not be able to appreciate its literary value (R. 281-

282). Interestingly enough she disclosed that the Prose-

cutor sent her some excerpts from the book which contained

its sex passages and she studied these before testifying

(R. 284-285) and that “thinking about these incidents was

so stimulating, that I could scarcely remember the serious

tone of the book” (R. 286). The episodes, she explained,

“recounted so graphically as they were and so stimulating

as they were, obscured the serious purpose of the book”

(R. 289).

Another witness, Mrs. Genevieve Lola Schoonover, a

graduate of the University of Indiana who had done gradu-

ate work at that institution in Latin and English, appeared

for the prosecution (R. 290). She was now a housewife

and had taught English to groups of business women in

Detroit (R. 291) and reviewed books for these groups and

for clubs and publishers; reviews which were not written

but orally delivered (R. 291-292). She had read the book

in question and stated that “the book has a certain amount

of literary value” (R. 292). Over the objection of the ap-

pellant (R. 294-295), the Court adduced the witness’ per-

sonal conclusion that the intimate details of the sex act and

sensual passions and desires, as set forth in the excerpts,

though “stated in high-sounding phrases” were “not neces-

sary” to the value of the book (R. 295).

On cross-examination, Mrs. Schoonover stated that

although the book “has literary merit’’ (R. 296), the author

had confused the conflict of the spirit over the flesh (R. 296-

297). She acknowledged also that some sort of emphasis

might be required in describing the worldly temptations and

that the amount of emphasis that was necessary would be

different on the part of different readers ( R. 297-298). Grif-

fin, she felt, tried to work out his story “honestly” but that

“from the standpoint of a discriminating reader he has not

done so” (R. 299). In conclusion, she admitted that the par-

ticular passages of philosophy and life in the monastery were

“well developed and well done” (R. 302) ; that there were a

number of characters that were “well drawn” (R. 303) ; that

there was an interesting description of scenes in the south

of France and that the book gave a vital and stimulating

account of life in the monasteries, of the Benedictine monks

and their principles (R. 303). On redirect examination,

she also acknowledged that the dominant theme of the book

was “the conflict between sensuality and right living, the

life of the spirit’’ (R. 303).

Charles Carroll Hollis, an Associate Professor of Eng-

lish Literature at the University of Detroit, was the last

witness called by the People in rebuttal (R. 304). The wit-

ness did undergraduate work at Marquette University, at-

tended the University of Wisconsin and also St. Louis

—

University and finished his graduate work at the University

of Michigan (R. 304). Professor Hollis had been teaching

in the English Department at the University of Detroit

since 1938 and reviewed books (R. 305). The witness had

read People’s Exhibit 1 (R. 305) and stated his opinion

that it was a “well-intentioned book that is not completely

successful in its literary intentions” (R. 306). Actually,

the lack of success, according to Professor Hollis, was the

result of the author's “first person narrator technique or

device” (R. 307), and that such technique “detracts from

the significant theme of the work” (R. 308). When shown

a list of the so-called stimulating sex passages of the work

(R. 308), the witness could not unequivocally answer the

question as to whether or not these passages detracted from

the literary value of the work (R. 309). Instead, he said that

it was really “difficult to make an answer that really answers

my reaction to these passages” (R. 309) and added: “It is

not the material in the passages, it is the handling, it is the

way in which the passages are treated” (R. 309). In re-

sponse to the Court’s question, he stated that the author

could have said ‘the same thing in another way, without

making the book offensive at all” (R. 310). When the

Court, over defense objection (R. 309), pressed the wit-

ness as to whether “it was necessary for the author to go

into such minute description of details in order to carry

out this theme of the inner conflict between” the spirit and

the flesh (R. 310), the witness stated that he felt that the

temptations of the flesh were presented here more for the

sensual appetite of the reader (R. 310-311). On redirect

examination, the Professor acknowledged that he might

recommend the book to his graduate students (R. 319) but,

as he explained, he would be cautious about recommending

it because some passages in it would arouse the sexual appe-

tites of the students (R. 320).

The rebuttal concluded, the People rested (R. 326).

The defense then renewed all the motions previously made

as to the unconstitutionality of the statute and the insuffici-

ency of the evidence to warrant a conviction and these were

denied by the trial judge (R. 326-328). In finding the

appellant guilty of violating the statute, the Court gave the

following oral opinion (R. 330-333) :

“In this case, the Detroit Police Department,

through its officer, Inspector Herbert Case, arrested

the defendant, Alfred E. Butler, for selling a book,

namely ‘The Devil Rides Outside,’ written by John

H. Griffin, claimed to be in violation of Section

740.343 of the Compiled Laws of 1948, as amended

by Act 74 of the Public Acts of 1953, claiming it

to be a book containing obscene, immoral, lewd,

lascivious language, or descriptions, tending to incite

minors to violent or depraved or immoral acts, mani-

festly tending to the corruption of the morals of

youth. The defendant claims the action should be

dismissed because the provisions of the Act under

which this case is brought is repugnant to the First

and Fourteenth Amendments of the Constitution of

the United States, and to the Constitutional provi-

sion of the Constitution of the State of Michigan,

guaranteeing the right of Free Press.

Now, without reading the various Sections, vari-

ous Amendments and Sections of the Constitution,

I will say that in this connection, the defendant

claims that the Statute is vague and indefinite and

void because it merits the finding that the book

contains obscene, immoral, lewd or lascivious lan-

guage, without taking into consideration the literary

value of the entire book, contending that it was

necessary for the author to include in his book the

language and descriptions objected to in order to

make the book a complete work of art, and that said

—

language was necessary to show the conflict in the

feelings, thought and action of the central figure

of the book who remains unnamed, and who is

torn between the desires for sexual and sensual

pleasures, and the longing for a spiritual life and

control over his desires. The defense contends that

the language objected to is necessary, because only

by the detailed description of his sexual and sensual

desires and pleasures could the author show the

contrast and the intense conflict raging in the man’s

soul, and that to change the language or descriptions

would ruin or completely impair or greatly impair,

rather, the work as a book, the book as a work of

art.

The sincere purpose of the author being to vividly

portray this intense conflict and the final victory of

good over evil.

Now, after reading the book, and after having

examined the authorities cited in the briefs of coun-

sel, and after listening to the testimony offered in

this case, the Court finds that the Act under which

this case is brought is not unconstitutional, as being

in violation and repugnant to the First and Four-

teenth Amendments of the United States Consti-

tution or against the Section of the Michigan Con-

stitution guaranteeing the right of the Freedom of

the Press.

And the Court further finds that the State of

Michigan under its police power may secure the

health and welfare of its citizens and its youth, and

that it had a right to pass the Act in question.

The Court further finds that the language con-

tained in the book is obscene and immoral and lewd

and lascivious, and is such that it tends to incite

minors to violent or depraved acts, to the corruption

of the morals of youth. There is little question as to

the sincerity of purpose of the author in writing the

book, but such sincerity does not afford him the

privilege or license of violating the law and seek to

justify it under the guise of being absolutely neces-

sary in order to maintain the literary value of the

book.

There is little question in the mind of the Court

that the author, with his beautiful command of the

English language, could have portrayed to the reader

the conflict within this individual, without setting

forth in detail the intimate acts and lustful feelings

in obscene, immoral, lewd and lascivious language,

contrary to our Statute.

Now, in that connection, I've listened to the

experts called by both sides and I am not convinced

that that part of the book dealing with the sexual

acts and pleasures of the author was necessary, even

treating the book as a whole. However, the Court

does have to find that it is in violation of this particu-

lar Statute because the Statute does say that it is

sufficient to contain lewd, immoral, obscene and

lascivious language or description.

So that if, therefore, if there ever is a review of

my decision in this matter, T am not trying in any

way to evade the issue; 1 am trying to follow the

Statute as it is. So, I. am holding that the defendant

is guilty because he sold a book in the City of Detroit

containing this language, and also because the Court

feels that even viewing the book as a whole, it was

not necessary to the proper development of the

theme of the book nor of the conflict expressed

therein.

Therefore, the Court finds the defendant guilty

of the charge and orders him to pay a fine in the

amount of $100."

The appellant's motion for a new trial, again based on

the deprivation of his rights and privileges under the First

and Fourteenth Amendments to the Constitution of the

RRR IE tga

United States and on the claim that his guilt of the charge

was not sufficiently established, was filed July 20, 1954, and

denied on February 24, 1955 by Judge W. McKay Skillman

of the Recorder’s Court (R. 337-9, 341).

Summary of Argument

The appellant contends that the Michigan Statute upon

which his judgment of guilt was predicated, violates the

constitutional guarantees of freedom of press and due

process of law, inasmuch as its provisions plainly prohibit

the circulation of any book which contains any obscenity

of the type which tends to “incite minors to violent or de-

praved or immoral acts, manifestly tending to the corrup-

tion of the morals of youth.”

Thus, if any book has in it any scene, passage, phrase or

word, which by some criteria not set forth in the statute

nor otherwise ascertainable, tends to such incitement or

corruption, it cannot be sold to any adult in the community.

These broad provisions in this statute give rise to three

grave constitutional defects which in and of themselves and

more extensively in their combined and cumulative effect,

enormously and invalidly restrict the appellant's right to

sell and distribute literature.

Specifically, the statute is a grossly excessive restriction

on the appellant's freedom of press in that it absolutely

prohibits and punishes the publication and distribution of

a book to any member of the public merely because of the

effect such book might tend to have on minors. Moreover,

the statute does not just protect the young from works that

are obscene, immoral, lewd or lascivious, but specifies that

such obscenity must be of the type that tends to “incite

minors to violent or depraved or immoral acts, manifestly

<a sett NOG : ae ‘ ai dere SE kes RY

tending to the corruption of the morals of youth.” Thus,

the general concept of obscenity, which courts can and have

construed and which the public might be deemed to under-

stand, has been modified and redefined in wholly vague,

indefinite and incomprehensible terms. This vagueness and

indefiniteness in a criminal statute renders it outside the pale

of due process.

Finally, this statute very pointedly provides that if a

book merely contains such injurious material for the young,

it cannot be sold or circulated. This precludes any consid-

eration of the entire book as a whole, its serious purpose and

accepted literary value, and permits a trial court, as in the

case at bar, to pass judgment on isolated excerpts in the

book without regard to the work as a whole or its dominant

themes. This unreasonably restrictive limitation on the dis-

tribution of a book is, the appellant contends, a patently

unconstitutional deprivation of his freedom of press.

ARGUMENT

THE MICHIGAN STATUTE AND THE JUDGMENT

PREDICATED ON IT PLAINLY AND SERIOUSLY INFRINGE

THE FREEDOM OF PRESS AND DUE PROCESS OF LAW

GUARANTEED BY THE FIRST AND FOURTEENTH

AMENDMENTS TO THE FEDERAL CONSTITUTION.

The Michigan statute here in question is a criminal

statute and as such must be strictly construed. Moreover,

its constitutional validity has never been passed upon or

even remotely considered by any appellate court in Michi-

gan. Thus, when leave to appeal to the Supreme Court ot

Michigan was denied (R. 400), despite the prosecutor’s con-

cession that “the issues involved in this case are of great

public interest” and that a “clarification of the language of”

this statute was “necessary” (R. 397), this statute’s ques-

tionable constitutional validity escaped any judicial scrutiny

except that of the Recorder’s Court in the City of Detroit.

The appellant’s attack on the unconstitutional aspects of

this statute was timely and continuously directed. Before

the commencement of the prosecution, these defects of the

statute were clearly pointed out in the appellant’s motion

to dismiss (R. 3-5). Thereafter throughout the course of

the trial in motions to dismiss the People’s case and the

entire case, these same contentions were again advanced

(R. 41-42, 235-236, 327-328). Identical arguments were

unsuccessfully addressed to the Supreme Court of Michi-

gan and there rejected again when that Court refused to

even consider Butler’s appeal (R. 349-350, 400).

The Michigan statute now before this Court was given

a strict construction by the trial judge who flatly rejected

all the constitutional objections raised by the appellant and

squarely ruled that its provisions were not in violation of

the First and Fourteenth Amendments to the Constitution

of the United States (R. 331-332). He also specifically

found the language contained in the book to be “obscene

and immoral and lewd and lascivious and is such that it

tends to incite minors to violent or depraved acts, to the cor-

ruption of the morals of youth” (R. 332). In refusing to

grant an appeal, the Supreme Court of Michigan either

approved this construction of the statute and the rulings

thereunder, or avoided any consideration of the problem.

Appellant now contends in this Court that this Michi-

gan statute, on its face and as applied, involves very mani-

fest infringements on his constitutional rights of freedom

of press and due process of law. As such it cannot be

validly operative and the judgment convicting the appellant,

wholly predicated upon its provisions, should be reversed.

A. The freedom of press and due process aspects of stat-

utes restricting the distributing of literature.

The issues involved in this appeal, though emanating

from the doctrines enunciated in Winters v. New York

(1947), 333 U. S. 507, 510, have never been squarely

presented to or resolved by this Court. They involve crucial

aspects of freedom of press and due process as these rights

are protected by the First and Fourteenth Amendments to

the Constitution of the United States.

There are now quite a number of state statutes similar

to the one at bar, punishing and prohibiting publication

and distribution of literature “containing” material that is

obscene in that it corrupts the morals of youth or tends to

incite youths to depraved and immoral acts.* Hence, the

constitutional validity of this type of legislation is a most

vital problem in the publishing world of today and a serious

challenge to the aforesaid constitutional liberties.

Naturally, the appellant concedes that the police power

of a state is broad enough to justify legislation prohibit-

ing and punishing the publication and circulation of litera-

ture which is obscene, or one of its equivalents, lewd,

indecent or lascivious. That point is not involved in the

case at bar. However, the Winters case expressly suggested

that there are limits to the extent to which this Court will

permit obscenity statutes to interfere with constitutional

freedom of expression, when it said:

“We recognize the importance of the exercise

of a state’s police power to minimize all incentives to

*For example: Colorado: Stat. Ann. (1935) ch. 48, sec. 217;

Florida: Statutes (1951) sec. 847.01 ; Iowa: Code (1950) sec. 725.4;

Maine: Rev. Stat. (1944) ch. 121, sec. 24; Rhode Island: Gen. Laws

(1938) ch. 610, sec. 13; South Carolina: Code (1952) sec. 16-414;

Tennessee: Williams Code (1934) sec. 11190; Vermont: Stat. Rev.

of 1947, sec. 8490; Virginia: Code (1950) sec. 18-113; West Vir-

ginia: Code (1949) sec. 6066.

TERRI WS

crime, particularly in the field of sanguinary or sala-

cious publications with their stimulation of juvenile

delinquency. Although we are dealing with an aspect

of a free press in its relation to public morals, the

principles of unrestricted distribution of publications

admonish us of the particular importance of a

maintenance of standards of certainty in the field of

criminal prosecution for violation of statutory pro-

hibitions against distribution.”

Winters v. New York (1947), 333 U. S. 507,

at p. 510.

It is by now well settled that by virtue of the Fourteenth

Amendment, freedom of speech and of the press is secured

to all persons against abridgement by a state.

Grosjean v. American Press Co. Inc. (1936),

297 U. S. 233, 243;

Lovell v. Griffin (1937), 303 U. S. 444, 450;

Schneider v. State of New Jersey, Town of

Irvington (1939), 308 U. S. 147, 160;

Bridges v. State of California (1941), 314

U. S. 252;

Pennekamp v. Florida (1946), 328 U. S. 331,

335.

It is, of course, clear that freedom of the press is not

limited to newspapers and periodicals but, in its historic

connotation, comprehends every sort of publication which

affords a vehicle of information and opinion. Lovell v.

Griffin (1937), 303 U. S. 444, 450. Such liberty is pro-

tected at every step in the process of creation, publication

and circulation, from the writing and imprinting of the

work until it reaches the hands of the ultimate reader. As

Mr. Justice Hughes said in the Lovell case, supra, quoting

from Ex parte Jackson (1877), 96 U. S. 727, 733:

“Liberty of circulating is as essential to that

freedom as liberty of publishing; indeed, without

the circulation, the publication would be of little

value.”

Lovell v. Griffin, 303 U.S. 444, 452.

B. Prohibiting the Circulation of a Book to Any Member

of the Community on the Ground That It May Tend to Have

an Injurious Effect Upon a Minor, Is an Unconstitutional

Deprivation of the Appellant’s Freedom of Press.

The Statvte in clear and unquestioned terms provides,

insofar as is herein pertinent, that:

“Any person who shall * * * sell, * * * distribute or

offer for sale, any book, * * * containing obscene,

immoral, lewd or lascivious language, * * * or de-

scriptions, tending to incite minors to violent or de-

praved or immoral acts, manifestly tending to the

corruption of the morals of youth, * * * shall be

guilty of a misdemeanor.”

Thus, from its terms there can be no doubt that if a book

contains material which the statute classifies as objectionable

for youth, it cannot be sold at all to any adult, or to any

library or to any educational institution. The statute does

not simply outlaw the distribution of the book to a minor.

Instead, it lowers the permissible standard of adult reading

to a child’s level.

The case at bar particularly highlights this patent in-

vasion of the appellant’s constitutional right of freedom of

the press because it did not deal with any actual or specifi-

cally intended distribution of the book to any minor. It

was a Detroit police inspector who bought the book and

brought the charge (R. 25-28), though elsewhere, the work

was distributed openly and generally by newsstand sales

to the American public at large (R. 70). There was no

proof at the trial indicating the probable audience of this

book or that it was specially directed to young readers.

On the other hand, there was evidence introduced by the

appellant that the book was nationally advertised and dis-

tributed to the general public and without any special

stimulating promotion (R. 66, 71-72).

The appellant does not contest that the state’s police

power encompasses the protection of the morals of youth.

But such power must be properly utilized. If the measures

adopted are arbitrary and oppressive, they violate constitu-

tional guarantees. Treigle vy. Acme Homestead Assoc.

(1936), 297 U.S. 189, 197; Liggett Co. v. Baldridge

(1928), 278 U.S. 105, 111-112. Here, the proscriptions

contained in the statute are such that a vital constitutional

freedom is drastically reduced even though no minor may be

in any wise involved. Moreover, a book which might cor-

rupt a child in many cases would have no improper influence

upon a mature person, yet the Michigan adult cannot read

or purchase it. It is patent, therefore, that the statute em-

ploys wholly excessive means to combat the evil; legislation

which arbitrarily and oppressively infringes on the appel-

lant’s freedom of press.

This statute and the many similar ones in other states

(supra, p. 30) represents a legislative codification of the

rule in the old English case of Queen v. Hicklin (1868),

L. R. 3 Q. B. 360, 371, in which Lord Chief Justice Cock-

burn defined the “test of obscenity”, as:

“whether the tendency of the matter charged as ob-

scenity is to deprave and corrupt those whose minds

are open to such immoral influences, and into whose

hands a publication of this sort may fall.”

Most American courts originally followed this rule in con-

struing statutes generally prohibiting the possession or dis-

tribution of obscene material. However, by 1935 the doc-

trine of the Hicklin case had been effectively routed, par-

ticularly in the federal circuits. Judge Augustus N. Hand,

in the celebrated Ulysses case, speaking for the Court, said

that a book is obscene only if its dominant effect is libidinous,

and this decision affirmed Judge Woolsey’s District Court

opinion which pointed out that the law was concerned only

with the “person with average sex instincts.” United States

v. One Book Entitled “Ulysses” (S. D. N. Y. 1933), 5 F,

Supp. 182, 184, aff’d., 72 F. 2d. 705, 707-708; Walker v.

Popenoe (D. C. Cir. 1945), 148 F. 2d. 511, 512; United

States v. Levine (2d. Cir. 1936), 83 F. 2d. 156, 158.

But while most courts ultimately abandoned the practice

of construing obscene literature statutes solely to safe-

guard the young and the weak, some state legislatures com-

menced to enact statutes explicitly providing for such pro-

tection and which outlawed books tending to corrupt the

morals of the young. |See: Lockhart and McClure: Liter-

ature, the Law of Obscenity, and the Constitution, (1954),

38 Minn. Law Review, pp. 295, 339-340.] In those juris-

dictions, and Michigan manifestly is one of them, the mod-

ern enlightenment and advance of judicial opinion con-

cerning obscenity is unavailing since the statutes themselves

require the courts to apply and enforce this rigid “youth”

test even though the interests of the entire adult member-

ship of the community might thereby be sacrificed.

In view of the specific provisions of this Michigan

statute, the trial judge in the case at bar had the difficult

choice of either declaring it unconstitutional as a violation

of the freedom of press or enforcing its precise terms. In

upholding the statute and rendering a judgment of convic-

tion, the Court below pointedly found that there was mate-

PREETI PES TITS EMINENT LIBAN RATS TNE ET RINT Toi

—

rial in the book which “tends to incite minors to violent or

depraved acts, to the corruption of the morals of youth”

(R. 332). Hence, in the protection of the interests of those

who might be abnormally susceptible, he was necessarily

required to eliminate the interests of those who might have

profited from the work.

Of course, the basic question in this aspect of the

case is whether the rule of the /icklin case, whether adopted

by judicial construction, or enforced by legislative fiat as

in Michigan, can ever comport with the constitutional re-

quirement of freedom of press. The appellant squarely

contends that it cannot because it operates as a restricted

license to publish and distribute only those works which

might have no ill effects upon the young. This statutory

restriction of adult reading to books wholly acceptable for

adolescents is a deep and far reaching invasion of the con-

stitutional right. It cannot possibly be counterbalanced by

the claimed safeguarding of the young from the contingent

and unpredictable effect a book might have upon them.

C. The Michigan Statute Defines Obscenity in Vague and

Indefinite Terms and Hence Its Restrictions on the Sale of

Obscene Literature do not Comport with Due Process.

The statute does not simply prohibit the distribution of

a book “containing” obscene, immoral, lewd and lascivious

language and descriptions. In its provisions the concept of

obscenity is unqualifiedly defined as and hinged on the

phrase that such obscenity must be of the type ‘tending to

incite minors to violent or depraved or immoral acts, mani-

festly tending to the corruption of the morals of youth.”

The judgment of the trial court squarely found that sections

of the book in question did just that, the opinion stating

(R. 332):

A aay . — ‘ “ one ° bo acre ae Peay

emg

“The Court further finds that the language con-

tained in the book is obscene and immoral and lewd

and lascivious, and is such that it tends to incite

minors to violent or depraved acts, to the corruption

of the morals of youth.”

But the appellant contends that this statutory definition of

obscenity and lewdness is far too uncertain in its meaning

and is not based on any standard of conduct that a person

can perceive or to which he can conform.

On several occasions during the examination of the

literary experts, testimony was elicited, over the objection

of the appellant, that certain realistically written passages

in the work might tend to incite minors to violent or de-

praved or immoral acts, manifestly tending to the corrup-

tion of the morals of youth (R. 170, 245-246, 256). Ob-

viously, the Court was acting under the wording of the

statute and on one occasion so stated (R. 170). However,

this procedure inevitably placed the appellant on trial on

a criminal charge that was vague and indefinite since there

were no standards of conduct, either in the statute, or

placed in evidence by the People, which adequately sct

forth what incited minors to violent or depraved or im-

moral acts, or what manifestly tended to the corruption of

their morals.

The appellant contends, therefore, that such legislation

is not sufficiently definite to enable the average member of

the public to ascertain what publications are interdicted.

A criminal statute, he argues, can not require that every

person distributing a book correctly determine whether

the work tends to incite youths to violence, immorality or

depravity, or whether it would corrupt the morals of minors.

Hence, the legislation herein involved is too vague and

indefinite to be constitutionally valid. Winters v. New

AI CARI ry ste, 2, BERR Wisk Spe

_ <——

York (1947), 333 U. S. 507; Burstyn v. Wilson (1952),

343 U. S. 495; Commercial Pictures Corp. v. Regents

(1954), 346 U.S. 587; Gelling v. Texas (1952), 343 U. S.

9600; Holuhy Productions Inc. et al. v. Vaughan et al.

(Oct. Ter: , 1955), 70S. Ct. 117; Superior Films, Inc. v.

Departme.it of Education (1954), 346 U. S. 587.

The Commercial Pictures Corp. case, supra, makes

manifest that this Court, construing the constitutional

guarantees of freedom of press and due process, has

squarely ruled that the word “immoral” and the phrase

“tend to corrupt the morals” in a prohibitory statute or as

the basis of an adjudication, are too vague and indefinite

to comport with due process of law and operate as an

unconstitutional infringement of the freedom of press.

In the Superior Films case, supra, decided as a companion

case to the Commercial Pictures Corp. case, this Court

held void for indefiniteness an Ohio statute allowing the

state censors to license the exhibition of motion pictures

only if they were “moral,” “educational” or “amusing and

harmless in character.” In the Burstyn case, supra, the

New York statute, authorizing a denial of a license to

exhibit a film if the Regents found it to be “sacrilegious,”

was also held by this Court to be too vague to comport with

due process.

Again, most recently, this Court was called on to con-

strue a Kansas statute in the Holmby Production case

(October Term, 1955) 76 S. Ct. 117. There the state law

provided that it was the duty of the license board to refuse

to license the exhibition of films which were “cruel, obscene,

indecent and immoral or such as to tend to debase or cor-

rupt morals.” The board could only approve films which

were “moral” and “proper.” The particular film in question

was denied a license under the terms of the statute, and

— %

eee ———

this Court in its October 1955 Term, reversed the Kansas

Supreme Court in a per curiam order merely citing its

decisions in the Burstyn and Superior Films cases.

Any fair appraisal of these precedents, decided in recent

years by this Court, makes apparent that state statutes, as

in the instant case, which authorize the banning of vehicles

of artistic expression on grounds which are vague, indefinite

or uncertain, squarely violate the constitutional guarantees

of the Fourteenth Amendment, and hence are invalid. On

this score surely, there can be no difference between movies

and books.

In the case at bar the vagueness and uncertainty of

the statute is striking. We are in no wise informed as to

what standards guided the trial court in determining that

“The Devil Rides Outside” tended to incite minors to the

unlawful conduct specified, or to corrupt their morals.

The statute itself sets up no criteria on this subject and

the only evidence elicited to support the charge that the

book did have that tendency, were the blandly expressed

opinions of witnesses who were qualified at the trial merely

as literary experts (R. 170, 245-246, 256).

D. Because It Prohibits the Distribution of a Book “Con-

taining” Any Obscenity, the Michigan Statute Violates the

Constitutional Guarantees of Freedom of Press and Due Process

of Law.

A vital defect, apparent on the face of the statute, is

that it does not permit a consideration of the work as a

whole because it prohibits and punishes the publication and

circulation of a book “containing” obscene language and

descriptions. The trial itself accentuated the importance of

this constitutional defect. Over objection and exception by

the appellant, the People’s literary expert witnesses were,

under the wording of the statute, allowed or directed to pass

NTR YE ae Ee ERE STE Ey Te MT AT SNP SR PE aN ES

———,

judgment on isolated excerpts of the book, taken from their

context and treated without regard to the work as a whole

or its dominant themes (RK. 245-240, 255-256, 294-295).

The trial court’s ultimate justification for this testimony

was the fact that the statute prohibited the sale or distribu-

tion of a book “containing” obscene, immoral, lewd or lasciv-

ious language or descriptions (R. 332-33).

Although the trial court, acting under the mandate of the

statute, found that “The Devil Rides Outside” contained

obscenity, the judge acknowledged “the sincerity of pur-

pose of the author in writing the book” (R. 332) and “his

beautiful command of the English language” (R. 332).

All of the People’s expert witnesses virtually conceded that

the book had literary value or at least was seriously inten-

tioned (R. 245-246, 255, 268, 276-277, 292, 302-303, 306,

323-324). Their principal objection was that the lusty

descriptions and language in the work were unnecessary and

diminished its literary value (R. 256, 269-270, 278-279, 289,

295) and the trial judge came to the same conclusion in his

opinion. However, it should be carefully noted that he

made no finding that the book, viewed in its entirety, was

obscene. Instead, he merely commented that even “viewing

the book as a whole,” the excerpted portions were “not

necessary to the proper development of the theme of the

book nor of the conflict expressed therein” (R. 333). This

was nothing more than his opinion as to the artistic neces-

sities and value of some material incorporated in the work.

The precise language of the opinion makes abundantly

clear that the trial judge predicated his finding of obscenity

solely upon the word “containing” found in the statute.

Thus, (R. 332-333) :

“However, the Court does have to find that it is in

violation of this particular Statute because the Stat-

ute does say that it is sufficient to contain lewd,

inumoral, obscene and lascivious language or descrip-

tion.

So that if, therefore, if there ever is a review of

my decision in this matter, I am not trying in any

way to evade the issue; | am trying to follow the

Statute as it is. So, I am holding that the de-

fendant is guilty because he sold a book in the City

of Detroit containing this language, and also be-

cause the Court feels that even viewing the book as

a whole, it was not necessary to the proper devel-

opment of the theme of the book nor of the conflict

expressed therein.”

The trial court’s comments about the book as a whole

were not only dicta which expressed his non-expert opinion

of the literary necessities of the style and writing, but were

logically invalid. The inclusion of unnecessary language

and descriptions could not seriously impair the literary

value of the work so long as such material was relevant.

The opinion makes no finding or comment about these

passages being irrelevant or out of context. It hardly

could since all the experts agreed that it was a story devoted

to portraying the conflict in man_ between. spiritual

advance and the temptations of the flesh. Whether or not

the excerpted passages were necessary is essentially a ques-

tion of degree but they were undoubtedly vitally connected

to the dominant theme of the book and hence forcefully

relevant.

Nor did the trial judge make any finding or observation

that the abundance of these objectionable passages rendered

the whole work obscene. This, of course, would be diff-

cult to do since ‘The Devil Rides Outside” is a work of

almost 600 pages, acclaimed by reviewers, and conceded

by virtually all of the People’s experts to be a serious effort

of literary merit (People’s Exhibit 1; R. 245-246, 255,

EVENT BURSA TOMI MN IP GM Ss

—

268, 276-277, 292, 302-303). Here again, it is obvious

that the prosecution’s attack on the book and the application

of the statute to it by the trial court were wholly centered

on the fact that it contained some offensive material.

In the case at bar the Michigan legislature has com-

pelled a court to ban a book because of some of its con-

tents. But those who distribute books in the community

would be at a total loss to know how to live by this rule.

It would be impossible for a member of the public to

determine whether any work, especially an apparently

serious and lengthy book, contains some isolated pro-

scribed material to be judged out of its context, ripped from

the total structure of the work and without consideration of

its relationship to the book’s theme, literary style or pur-

poses. There is, therefore, a vast area of indefiniteness

and uncertainty in the operation and application of this

statute and in consequence it necessarily runs afoul of due

process of law.

In the case at bar, however, there is a greater require-

ment for definiteness because this “containing” statute also

impinges on the guaranteed constitutional freedom of press.

In effect, it obviates a fair consideration of the work as

a whole or the dominant purposes of the publication. At

present, most federal and state courts in which the ques-

tion has been considered have explicitly adopted the require-

ment that a book must be judged as a whole, not by its

parts taken out of context. United States v. One Book

Entitled “Ulysses” (2d. Cir. 1934), 72 F. 2d. 705; United

States v. Levine (2d. Cir. 1936), 83 F. 2d. 156; Parmalee

v. United States (D.C. Cir. 1940), 113 F. 2d. 729; Walker

v. Popenoe (D. C. Cir. 1945), 148 F. 2d. 511; Halsey v.

N.Y. Society (1922), 234 N. Y. 1, 4: Commonwealth v.

Gordon (1949), 66 Pa. D. & C. 101, aff'd. sub. nom. Com-

monwealth v. Feigenbaum (1950), 166 Pa. Super. 120, 70

A. 2d. 389; State v. Lerner (Ohio C. P. 1948), 81 N. E. 24.

282; New American Library of World Literature v. Allen

(N. D. Ohio, E. D. 1953), 114 F. Supp. 823.

In recent cases in both the state and federal courts in

Ohio, statutes punishing or prohibiting the circulation of

a work “containing” an obscenity, or of “any” obscene

nature, were held unconstitutional because in obviating a

consideration of the work as a whole, such statutes were

too broad an invasion of the freedom of press. State v.

Lerner (1948), 81 N. E. 2d. 282, 285, supra; New Ameri-

can Library v. Allen (1953), 114 F. Supp. 823, 830-831,

supra.

This abundance of authority makes manifest that

prosecutions against works of literature are constitu-

tionally valid only when the dominant effect of the work

has been judged and the book considered as an integrated

whole. Hence, statutes. such as the one in the instant case,

that authorize a finding of obscenity based only on a part

of the work are to that extent unconstitutional, as are judg-

ments of obscenity similarly based.

CONCLUSION

For the reasons stated, it is respectfully submitted that

the judgment of the Recorder’s Court of the City of Detroit

should be reversed and the Michigan statute herein involved

should be declared unconstitutional.

MANUEL LEE ROBBINS

30 Broad Street

New York 4, New York

WILiiamM G. ComB

1512 Dime Building

Detroit 26, Michigan

Attorneys for Appellant

August, 1956.

PRR cat MT EO So ie Ae PET A RRE OS ON a ie

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