Petition for Writ of Certiorari — Ginzburg v. United States

FE CO PY Office-Supreme Court, U

FILED

JAN 4 1965

JOHN F. DAVIS, CLER

IN THE

Supreme Court of the United States

OcToBER TERM, 1964

No. pf 42

RatpH GinzBpuRG, DocUMENTARY Books, INc., Eros

MaGaAzine, Inc., Liaison News Letter, INc.,

Petitioners,

v.

Unitep States or AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

: FOR THE THIRD CIRCUIT

Davin I. SHAPIRO

SipNEY DiIcKsTEIN

1411 K Street, N. W.

Washington, D. C.

Attorneys for Petitioners

DicKsTEIN, SHAPIRO, DENNIS &

GALLIGAN

20 East 46th Street

New York, New York

Of Counsel

Press or Byron S. ADAMS, WASHINGTON, D. C.

SS»

INDEX

Page

Opinions Below ....-.......sscceeccecccecccceceess 2

Dale onc ccccecccccecuccscseensessaueuenee 2

Questions Presented ..........seeeeseeeeeeeeeeeeee 2

Constitutional Provisions, Statute and Rule Involved. 4

Gishenont of Cie Qae 2.6 ios swede sineeevevenaaee 4

A. Proceedings Before Trial ..........00-sseeeee 4

a | Pere Sr ee 5

1. The Government’s Evidence ................ 5

2. Petitioneve’ Tividemee oi ss viccssccsveseeean 6

(a). TOO: <0 i<cusesenenteees Segue 6

(he) TARO os cece evatevteudestsineueeeee 8

(oe) The Hamdboeh: . ook ccascdtvcsebesenee 9

S. Batted | nk oc cc cdvdseetnbacesae eee 11

C. Proceedings After Trial ..«sccecvesveevuenes 12

Reasons for Granting the Writ .................006. 13

CINE osc secu uses cavvenedaueeneeuaeee 24

MG Boone dicts ccccecteessevesaes sae la

Se Pee ee re 10a

CITATIONS

Casks:

Attorney General v. The Book Named ‘“‘Tropic of

Concer’ 345 Mass. 11, 184 N.E. 2d 328 .........

ii

7

Page

Commonwealth v. Isenstadt, 318 Mass. 543, 62 N.E.

NE kis Kons tb stn ckvesietckesentsdekenseie ak 19

Excellent Publications v. United States, 309 F. 2d 362

Oia BO Sescneens seus bancendeusnesssbereesiss 15

Flying Eagle Publications v. United States, 273 F. 2d

Index Continued

ot eS eee rer ere rr rr errs ee re 16

Grove Press v. Christenberry, 175 F. Supp. 488,

i fo ome FOR Oe Be | eee

Grove Press v. Gerstein, 378 U.S. 577 ............. 24

Jacobellis v. Ohio, 378 U.S. 184 ............ 15, 16, 18, 19

— International Pictures v. Regents, 360 US.

SS ae ac i ek a laa ae Od i aa 18

Kotteakos v. United States, 328-U.S. 750 .......... 20

Larkin v. G. P. Putnam’s Sons, 14 N.Y. 2d 399 ..... 24

Manual Enterprises v. Day, 370 U.S. 478 ........ 13, 15

Morissette v. United States, 342 U.S. 246 .......... 21

People v. Bruce, — Ill. —, 33 L.W. 2270 .......... 19

People v. Richmond County News Co., 9 N.Y. 2d 578 15

Quinn v. United States, 203 F. 2d 20 (D.C. Cir.),

a SUS ener rere 24

Rosen v. United States, 161 U.S. 29 .............. 21

Roth v. United States, 354 U.S. 476 .......... 13, 14, 15,

16, 17, 19, 24

Russell v. United States, 369 U.S. 749 ............

Smith v. California, 361 U.S. 147 .............45. 21

Stone v. United States, 164 U.S. 380 ...... ‘ke eein 23

Tralins v. Gerstein, 378 U.S. 576 ...........e ee eee

United States v. El Paso Natural Gas Co., 376 U.S.

DE. icckncbukvnaesdeieecalbae tad eenetrearane nee 22

United States v. Forness, 125 F. 2d 928 (C.A. 2) .. 22

United States v. Keller, 259 F. 2d 54 (C.A. 3) ...... 16

United States v. Merz, 376 U.S. 192 ............... 22

United States v. One Book Entitled ‘‘Ulysses’’, 5 F.

Supp. 182, aff’d 72 F. 2d 705 (C.A. 2) .......... 16

V olanski v. United States, 246 F. 2d 842 (C.A. 6) ..19, 20

Wilson v. United States, 250 F. 2d 312 (C.A.9) .... 21

Womack v. United States, 294 F. 2d 204 (C.A.D.C.).. 19

Zeitlin v. Arnebergh, 59 Cal. 2d 901, 31 Cal. 7 .

og cer na aek bade OR PARE cE0G ChaNeadeeeeees 7

. a

Index Continued lii

Page

CoNSTITUTIONAL PROVISIONS:

ee IS dav cccbassscunenseaner 2, 3, 4, 15, 24

OR TEE tegee PEIE HN mE TCL Ta 4

ed do hak couyecas pales tates 4

STATUTES :

18 U.S.C. §§ 1461-1465 ................ 1, 2, 3, 14, 15, 16

ee CED nce hccvacnencdsvedeereabeanas 2

ea gS bl errr — 2 &

MISCELLANEOUS:

Admin. Off. of U.S. Courts Ann. Rep. ............ 13, 22

Bryan, ‘‘Review of the Housewife’s Handbook on

Selective Promiscuity’’, Journal of American In-

stitute on Hypnosis (1962) ...........0.00 ce eee 18

Frumkin, [X Journal of Human Relations (1961) .. 18

Kurland, The Supreme Court 1963 Term, 78 Harv.

ee EE a FSV OUT ob ba do uswandscwadeee 13

Lockhart & McClure, Censorship of Obscenity: The

Developing Constitutional Standards, 45 Minn. L.

a — weeoresscreerereewaeueereres 16, 19, 24

Proceedings of the Institute on Federal Rules of

Criminal Procedure, 5 FRD 183 .............. 22, 23

“

IN THE

Supreme Court of the United States

OcToBER TERM, 1964

No.

RatpH GinzBuRG, DocumMEeNTARY Books, INc., Eros

MaaaZzInE, Inc., Liaison News Letter, INc.,

Petitioners,

v.

Unrrep States or AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

To the Honorable the Chief Justice of the United

States and the Associate Justices of the Supreme

Court of the Umted States:

Petitioners pray that a writ of certiorari issue to

the United States Court of Appeals for the Third Cir-

cuit to review the judgments of that court entered

November 6, 1964, affirming petitioners’ convictions

for mailing obscene material under 18 U.S.C. § 1461.

Petitioner Ginzburg was fined $28,000 and sentenced to

five years imprisonment. The corporate petitioners

were, fined a total of $14,000 (J A 376-379).’

1 The letters ‘‘JA’’ refer to the Joint Appendix printed for the

use of the court below.

™

The opinion of the Court of Appeals has not yet

been officially reported but is set out in Appendix ‘‘A’’,

infra, pp. la-10a. The opinion of the District Court

(JA 354-368) is reported at 224 F. Supp. 129.

2

OPINIONS BELOW

JURISDICTION

The judgments of the court below were entered on

November 6, 1964. On November 27, 1964, Mr. Justice

Brennan granted an extension of time to file this peti-

tion to January 5, 1965. Jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1(a). Does the Federal obscenity statute, 18 U.S.C.

§ 1461, prohibit the mailing of a literary work dealing

with love and sex which the Government concedes is

not ‘‘hard-core’’ pornography ?

(b). If so, does the Federal obscenity statute violate

the First Amendment’s guarantee of freedom of press

and expression ?

(c). Is the Federal obscenity statute unconstitu-

tionally vague and uncertain even when limited to

‘*hard-core’’ pornography ?

2(a). Where a literary work is devoid of material

which is erotically stimulating to the average person,

can that work ‘‘appeal to prurient interest’’?

(b). Where portions of a literary work are erotically

stimulating to the average person, but the work does

not induce in such person morbid or shameful sexual

desires, can that work ‘‘appeal to prurient interest’’?

"ee

3. Can a conviction under 18 U.S.C. § 1461 be sus-

: tained where the literary materials found to be ‘‘ob-

: scene’ are less offensive in their description or repre-

sentation of sex than other literary materials in wide-

spread current circulation ?

3

4(a). When a literary work dealing with sex advo-

cates ideas, can it be deprived of First Amendment

protection because experts disagree as to its ‘‘useful-

ness’’?

(b). When substantial portions of a literary work

are of uncontroverted social importance, can it be de-

prived of First Amendment protection because the trier

of fact believes that other portions are obscene ?

5. In determining whether material is obscene, can

the trial court receive and consider testimony of the

effect of such material on adolescents ?

6(a). Where four defendants are jointly indicted

and tried for non-related obscenity offenses and evi-

dence of one defendant’s alleged intent to appeal to

prurient interest is used to support conviction of all

defendants on the theory that they engaged in a ‘‘gen-

eral scheme and purpose’’ to commercially exploit

obscenity, may the appellate court disregard the errone-

ous transfer of such intent and affirm all four con-

victions on the theory that each defendant knew the

contents of the mailed material?

(b). Is the fact that a defendant commercially ex-

ploits a literary work for a profit a relevant considera-

tion in determining whether that work is ‘‘obscene’’

under 18 U.S.C. § 1461?

7(a). Where defendants make a timely request for

special findings of fact under Rule 23(c) of the Fed-

a

eral Rules of Criminal Procedure, may the trial court

enter a general finding of ‘‘guilty on all counts”’, in-

struct the prosecutor to prepare special findings, and

adopt the prosecutor’s findings (proposed ex parte)

fifty-four days after finding defendants guilty?

4

(b). Where, in making findings of fact under Rule

23(c) of the Federal Rules of Criminal Procedure, the

trial court fails to find essential elements of the crime,

may the court of appeals supply the missing find-

ings by inferring their existence from other findings

and from the trial court’s opinion ?

CONSTITUTIONAL PROVISIONS, STATUTE,

AND RULE INVOLVED

The Constitutional provisions involved are the First,

Fifth, and Sixth Amendments to the Constitution of

the United States. The statute involved is 18 U.S.C,

§ 1461. The rule involved is Rule 23(c) of the Fed-

eral Rules of Criminal Procedure. Pertinent portions

of the constitutional provisions, statute, and rule are

set forth in Appendix ‘‘B”’, infra.

STATEMENT OF THE CASE

A. PROCEEDINGS BEFORE TRIAL

On March 15, 1963, the Grand Jury returned a

twenty-eight count indictment charging petitioners

with eighteen counts of mailing obscene publications

and ten counts of mailing advertisements for these

publications in violation of 18 U.S.C. § 1461 (JA 6-

13). The alleged obscene publications were Eros, Vol.

1, No. 4 (‘‘Eros’’), The Housewife’s Handbook on

Selective Promiscuity ‘‘‘The Handbook’’), and Liai-

son, Vol. 1, No. 1 (‘‘Liaison’’). Before trial, the par-

5

ties stipulated, inter alia, that (1) petitioners mailed

the challenged publications knowing the contents there-

of and (2) the indictment charged that Eros, the Hand-

book, and Liaison were each ‘‘obscene when considered

as a whole’”’ (JA 148-150). The trial began on June

10, 1963, before the District Court (Body, J.), sitting

without a jury.’

B. THE TRIAL

1. The Government's Evidence

After petitioners’ stipulations acknowledging mail-

ing of the three works with knowledge of their contents

had been placed on the record (JA 149-150, 152), the

Government called the postmaster of Blue Ball, Penn-

sylvania (JA 152). This witness testified, over objec-

tion (JA 154-155), that on October 18, 1962, Frank

Brady, Associate Publisher of Eros Magazine, Inc.,

wrote him a letter stating that ‘‘[a]fter a great deal

of deliberation, we have decided that it might be advan-

tageous for our direct mailing to bear the post mark

of your city’? (Ex. G1, JA 155). The postmaster of

Intercourse, Pennsylvania testified, over objection (JA

157), that she received a similar letter dated September

4, 1962, also signed by Frank Brady (Ex. G2, JA 157-

158).

The postmaster of Middlesex, New Jersey, testified

that each of the three corporate petitioners mailed their

publications from his post office (JA 160-162) and

that all of these mailings were handled by the General

Mailing Corporation of Middlesex, a mail order house

so large that it had a post office substation on its own

premises (JA 162-164).

* A waiver of a jury trial was filed on June 10, 1964 (JA 2).

6

John Darr, a discharged employee of Liaison News

Letter, Ine. (JA 173, 183), testified as to the author-

ship and makeup of Liaison (JA 178-183), after which

the Government introduced into evidence the three

challenged publications (JA 184-185, Exs. G16-G18),

At this point, the Government rested (JA 185), and

the court denied petitioners’ motion for acquittal (JA

186).

’ 2. Petitioners’ Evidence

(a) Eros

Petitioners’ first witness was Dr. Charles G. MeCor-

mick, an eminent clinical psychologist (JA 186-188),

Dr. McCormick testified that although there were some

passages in Eros that might be erotically stimulating

(JA 212-214), those passages would not induce in the

average person a morbid or unhealthy attitude toward

sex (JA 214),* and that the predominant effect of Eros

would not be to stimulate in the average person any

morbid or shameful sexual desires.

’Dr. McCormick is certified by the States of New York and

California, a member of the Editorial Board of the International

Journal of Group Psychotherapy, a Fellow of the American Group

Psychotherapy Association, a holder of a doctoral degree from

Columbis, University and for sixteen years a member of the teach-

ing staff of the New York School of Social Work, a Columbia

affiliate (JA 186-188).

* Dr. McCormick began his testimony by describing pornographic

material (JA 188-196). He explained that pornography produces

in the average reader ‘‘both the sense of pleasure and the sense

of guilt or shame’’ (JA 188). The witness testified that porno-

graphy is sexually stimulating to most people and that an absence

of erotic response to such material would be symptomatic of phys-

ical or psychological illness (JA 193). Dr. McCormick described

the difference between the average healthy male’s response to por-

nography and his response to an attractive nude woman, testifying

that in the latter case a healthy male would be erotically stimulated

but without feelings of shame or guilt (JA 193-196). He then

identified various books and pamphlets as pornography and this

material was introduced in evidence (Exs. D1-D8, JA 196-199,

7

Dr. Peter G. Bennett, M.D., a practicing psychiatrist

and teacher of psychiatry at the University of Penn-

sylvania Medical School (JA 256-257), testified that

while the average person who read Eros might find

some ‘‘occasional sexual stimulation’’ (JA 265), the

predominant effect of Eros was not to create any mor-

bid feelings of shame and guilt (JA 259-260, 264-265).°

Dwight Macdonald, the distinguished literary critic

and commentator on American culture (JA 227-230),

testified at length on the customary limits of candor

with respect to descriptions and representations of sex

(JA 230-235). According to Mr. Macdonald, Eros did

not go substantially beyond those limits and, in fact,

was considerably within them (JA 237-238). Mr. Mac-

donald also testified that a number of the articles in

Eros were of considerable literary merit (JA 238-240).

Professor Horst Janson, Chairman of the Fine Arts

Department of New York University, a recipient of

two Guggenheim Fellowships, author of many articles

201). Dr. McCormick commented that the average person would

be both revolted and sexually stimulated by reading those books

and pamphlets (JA 202) and contrasted such material with ‘‘ Lady

Chatterley’s Lover’’, stating that while both are sexually stimulat-

ing, the impact on the mind of the ordinary individual would be

radically different. ‘‘[‘Lady Chatterley’s Lover’] will not be de-

stroying, tearing, as this material will’’ (JA 203-204). The dis-

tinction, he pointed out, was that ‘‘hard-core’’ pornography, such

as ‘‘The Autobiography of a Flea’’ (Ex. D7), engrossed the

average reader in a sense of being both soiled and pleased (JA

205-206).

5 Dr. Bennett contrasted the effect of pornography on the average

person, stating that it ‘‘is not simply an intense stimulation of

erotic feelings. It includes this, of course, but erotic stimulation of

itself is definitely not harmful or disturbing to the ordinary mature

adult, whereas pornography has, always, in addition, a disturbing

disintegrative influence even on the mature person which is almost

impossible to resist and which abrades the conscience causing

morbid feelings of shame and guilt’’ (JA 259-260).

—

and books on the history of art, and Editor-in-Chief of

‘“The Art Bulletin’’, official journal of the College Arts

Association of America (JA 218-219), testified as to

the artistic merits of Eros as a whole (JA 221-222),

According to Professor Janson, the Eros photographs

of a nude man and woman which particularly disturbed

the trial court (JA 364) were ‘‘outstandingly beautiful

and tistic photographs. I cannot imagine a theme

being vreated in a more lyrical and delicate manner

than it has been done here’? (JA 221). Professor

Janson also testified that ‘‘in terms of the material

contained therein, the terms of the graphic lay-out and

the taste displayed in the presentation of this material,

[Eros] is certainly the equal of any magazine being

published today’’ (JA 222).

On summation, the Government conceded that Eros

was not ‘‘hard-core’’ pornography (JA 349).

8

(b) Liaison

Dr. McCormick, the psychologist, testified that the

predominant effect of Liaison was not to create in the

average person an ‘‘itching, morbid or shameful desire

or longing with respect to sex’? (JA 215). In fact, Dr.

McCormick stated he found nothing sexually stimulat-

ing in Liaison for the normal person and that only an

abnormally ill person could be sexually stimulated by

Liaison’s content (JA 215). Dr. Bennett, the phychia-

trist, testified that Liaison would create no morbid,

shameful or licentious thoughts in the average perscn

and that there was nothing in Liaison which could in

any way sexually stimulate the average person (JA

265-266). Dwight Macdonald testified that Liaison

did not go substantially beyond customary limits of

candor and was within the limits of sexual discussion

found in other material freely available in the United

States (J A 236-237).

——

(c) The Handbook

Mrs. Lillian Maxine Serett, author of the Handbook,

testified that it was a completely factual autobiography

(JA 227) and that her purpose in writing it was to

communicate to lay persons the ideas that (1) various

forms of sexual expression are normal and healthy

and (2) women should have the same sexual rights as

men (JA 226). She testified that since September

1960 (several years prior to petitioner Ginzburg’s mail-

ings) she had mailed thousands of copies of the book

and that it had been purchased and used by doctors,

ministers, and at least one medical school (JA 225-

226).

Dwight Macdonald testified that the Handbook did

not go substantially beyond the customary limits of

candor that American society now permits in its litera-

ture (JA 235-236), and that the Handbook’s sexual

descriptions were less explicit than those of ‘‘Lady

Chatterley’s Lover’? (JA 236), which he said was

freely sold throughout the United States (JA 232).°

Dr. McCormick testified that the Handbook ‘‘ would

be quite useful as an educational instrument’’ (JA

‘Arthur J. Galligan testified concerning books and magazines

that are sold from open stands and shelves at newsstands and book-

stores at the Grand Central Terminal in New York City; in the

vicinity of the New York Public Library at 5th Avenue and 42nd

Street, at 6th Avenue and 42nd Street, New York City; at the

southeast corner of 15th and Market Streets in Philadelphia; at

Ranstead and 15th Streets in Philadelphia; at 11th and Chestnut

Streets in Philadelphia; and on Market Street near the Court

House (JA 242-253). Books and magazines which Mr. Galligan

had purchased at these locations were introduced into evidence as

Exs, D10-D43 (JA 256). The courts below (JA 367; App. ‘‘A’’,

infra, pp. 4a, 6a) disregarded this and all other evidence (JA

230-239) of the contemporary standard and sustained petitioners’

convictions for mailing literary materials which were clearly less

offsensive than other materials (Exs. D9-D43) in widespread

circulation.

a

10

216) and, in response to the question whether the pre-

dominant effect of the Handbook was ‘‘to create in the

average person an itching, morbid or shameful desire

_ or longing with respect to sex’’ (J A 206), he said: ‘‘No,

itis not. That is the distinction between pornographic

and erotic material. The distinction * * * is that the

pornographic material is morbid, does tend to corrode

and to turn the person against himself in the process

of reading or seeing. In the case of ‘The Handbook’,

this effect will not take place for the ordinary person

reading it’? (JA 210). Dr. Bennett’s testimony was

substantially the same (JA 259-263, 264, 273).

Rev. George Von Hilsheimer, ITI, a Baptist minister

trained and experienced in clinical psychology (JA

273)" testified that he had used the Handbook in pas-

toral and psychological counseling since 1960 (JA

289). He said that the book was particularly valuable

in dealing with the problems of married women who

were guilt-ridden by their sexual values and experi-

ences (JA 289). He stated that the book communicated

7 Reverend Von Hilsheimer studied theology and psychology at

Washington University in St. Louis, the University of Miami, and

the University of Chicago (JA 274-275). His training in psy-

chology included extensive clinical activities at the Child Guidance

Center in Lincoln Park and at the Association for Counseling and

Therapy (JA 274). Reverend Von Hilsheimer has lectured ex-

tensively in universities and theological schools on such subjects as

comparative religion, contemporary morals, education and therapy

(JA 275). He is resident minister and group counselor for the

Greater New York Humanist Council and is Executive Director oi

the Fund for Migrant Children (JA 275-277). Reverend Von

Hilsheimer was also a ministerial conselor to the President’s Study

Group on National Voluntary Services and a board member of

Mobilization for Youth, the first project established by the Presi-

dent’s Committee (JA 276). His professional activities involve

substantial contacts with underprivileged and culturally deprived

persons in both urban and rural areas (JA 276, 277).

—

to such a reader the fact that her sexual attitudes

were not unique and thereby tended to relieve guilt

feelings. He considered this to be the book’s most im-

portant value and added that it was more useful to him

than standard marriage manuals (JA 292).

11

3. Rebuttal

The Government called three rebuttal witnesses to

show that the Handbook had no social-scientific value.

Dr. Nicholas G. Frignito, Chief Psychiatrist of the

County Court of Phil«delphia (JA 316-317), testified

that, in his opinion, the Handbook had no medical value

and was ‘‘obseene’’ (JA 318-319). He stated that he

thought the book a ‘‘menace”’ and that it ‘‘can lead to

a lot of chaotic situations, because my interpretation

of the book, it fosters promiscuity. It fosters sexual

perversity’? (JA 320). Over petitioners’ continuing

objection (JA 321, 322, 323), Dr. Frignito was per-

mitted to testify as to the effect of the book upon ado-

lescents stating that ‘‘it certainly is a very dangerous

thing”’ and that ‘‘this type of book’’ encourages delin-

quency in adolescents because ‘‘it would lead to self-

abuse, masturbation, and that * * * would lead to other

types of sexual activity’’ (J.A. 320-324).

| Dr. Ann Hankins Ford, M.D., a practicing psychia-

trist (JA 335-336), testified that, in her opinion, the

Handbook had no medical value in the field of psychia-

try or psychology (JA 337) and that it would be dis-

turbing, rather than helpful, in the treatment and

counseling of her patients (JA 338). On cross-exami-

nation, Dr. Ford characterized her patients as ‘‘people

who were disturbed in one way or another’’ (JA 339).

Rev. Adolph E. Kannwischer, a Baptist minister (JA

342), testified that he would not use the Handbook in

ck

12

pastoral counseling because he regarded it as ‘‘detri-

mental to a person who already is having problems”

(JA 344).

Petitioners moved for a judgment of acquittal (JA

344, 345) which was denied (JA 348). Petitioners then

requested that the court make special findings of fact

in accordance with Rule 23(c) of the Federal Rules of

Criminal Procedure (JA 348). The following morn-

ing, the trial court entered a general finding of ‘guilty

on all counts’? (JA 349), and stated it would find the

facts specially as requested by petitioners’ counsel.

The trial court said:

‘¢ At the earliest possible time they will be found.

Meanwhile, I would like to request the Govern-

ment through Mr. Creamer to submit to me pro-

posed findings’’ (JA 349).

Mr. Creamer was not directed to serve a copy of the

Government’s proposed findings on petitioners’ coun-

sel, nor, of course, was petitioners’ counsel asked to

submit proposed findings in support of the general

finding of guilty.

C. PROCEEDINGS AFTER TRIAL

On June 27, 1963, petitioners filed a timely motion in

arrest of judgment or, in the alternative, for a new trial

(JA 350) urging, inter alia, that the trial court found

petitioners guilty without making findings of fact as

required by Rule 23(c) of the Federal Rules of Crim-

inal Procedure. Sometime thereafter, and prior to

answering petitioners’ motion, the Government gave

the trial judge its proposed findings of fact. The pro-

posed findings were neither filed in the docket nor

served upon petitioners’ counsel. On August 6, 1963,

fifty-four days after petitioners had been found guilty

13

on all counts, the trial court filed special findings of

fact (JA 351-353). The Government then filed its

answer to petitioners’ motion in arrest of judgment or

for a new trial, and approximately three months later,

the trial court filed an opinion (JA 354-368) denying

the motion. The opinion specifically incorporated the

court’s previously made Special Findings but a por-

tion denominated as ‘‘ Discussion’’ added new and addi-

tional ones.

On December 19, 1963, the trial judge sentenced

petitioner Ginzburg, a first offender, to five years im-

prisonment* and a fine of $28,000, and fined the corpo-

rate petitioners a total of $14,000 (JA 373-376). <A

notice of appeal was filed the same day (JA 380).

On November 6, 1964, the Court of Appeals affirmed

petitioners’ convictions (App. ‘‘A’’, infra, pp. 1a-10a).

REASONS FOR GRANTING THE WRIT

Although 1,037 persons were charged with violations

of the Federal obscenity statute (18 U.S.C. §§ 1461-

1465) in the past four years, and in 1964 federal

obscenity prosecutions were double those of 1961,° the

statutory standards remain obscure and speculation

continues unabated. Kurland, The Supreme Court,

1963 Term, 78 Harv. L. Rev. 143, 208-209 (1964).° Is

* Ginzburg received three years on the Handbook counts and two

years on the Eros counts, the sentences to run consecutively.

* Admin. Off. of U.S. Courts Ann. Rep., Table D-4 (Fiscal 1961-

Fiscal 1964). Prior to fiscal 1961, the annual report did not con-

tain a separate ‘‘obscenity’’ tabulation.

Since there was no issue in Roth v. United States, 354 US.

476, as to the obscenity of the challenged materials (id. at 481,

ftn. 8), ‘the Court * * * had no occasion to explore the applica-

tion of a particular obscenity standard.’’ Manual Enterprises v.

Day, 370 U.S. 478, 489.

14

the Federal obscenity statute constitutionally limited to

‘thard-core’’ pornography? . Is ‘‘prurient interest ap-

peal’’ equivalent to erotic stimulation? Is a literary

work which deals with sex in a manner that advocates

ideas constitutionally protected despite expert disagree-

ment as to its social importance? These and other ques-

tions vitally important to the future administration of

the federal statute are all presented for review. The de-

cision below is not only in conflict with decisions in other

circuits and with applicable decisions of this Court but,

if the opinion of the court of appeals is allowed to stand

as a guide to future prosecutions, it will wreak havoc

in the administration of 18 U.S.C. §§ 1461-1465. Ever

since Roth v. United States, 354 U.S. 476, this Court and

state and federal courts have all been grappling with

the problem of ‘‘obscenity’’. The many questions peti-

tioners raise (some of which require little or no discus-

sion in this petition)" and the solutions which can be

achieved on this record will go far toward eliminating

the present confusion.

Apart from those questions directly involving ad-

ministration of the Federal obscenity statute, petition-

ers seek review of important questions of federal crim-

inal law. The practice of switching theories on appeal

in order to sustain convictions, the manner in which the

trial court made its findings, and the supplying on ap-

peal of missing, but essential, findings by inferring them

from other findings, would in an ordinary criminal case

be of sufficient national importance to call for the exer-

cise of this Court’s certiorari jurisdiction. How much

11 See Questions Presented Nos. 1(b), 1(e), 2(a), 3, and 6(b).

Although petitioners recognize that they have presented many more

questions than is normally appropriate, the court below in its effort

to sustain petitioners’ convictions committed many errors of sub-

stantial importance which petitioners are constrained to raise.

15

more important are they in this, a First Amendment

ease, Which requires ‘‘the most rigorous procedural

safeguards’’, Bantam Books, Inc. v. Sullivan, 372 U.S.

58, 66 ?

A. The court of appeals held (App. ‘‘A”’, infra, pp.

5a, 6a) that 18 U.S.C. § 1461 prohibits use of the mails

to sell Eros a publication dealing with love and sex

which the Government conceded was not ‘‘hard-core”’

pornography. This holding is in direct conflict with the

holding of the Court of Appeals for the First Circuit in

Excellent Publications v. United States, 309 F. 2d 362,

365 (1962), in which the publication ‘‘The Gent’’ was

held not to be ‘‘the kind of ‘hard-core pornography’

within the reach of the statute construed in the light of |

the constitutional guarantee of freedom of the press.”’

It is also in conflict with the holdings of the highest

courts of New York,” California,’ and Massachusetts."

The question ‘‘{[w]hether hard-core pornography, or

something less, be the proper test’’ was left open in

Manual Enterprises v. Day, 370 U.S. 478, 489, and

should be decided now.

Petitioners believe with Mr. Justice Harlan (Roth,

354 U.S. at 507-508) and Mr. Justice Stewart (Jaco-

bellis v. Ohio, 378 U.S. 184, 197) that the Federal

obscenity statute is constitutionally limited to ‘‘hard-

core’? pornography, provided that term is capable of

definition. Petitioners’ definition embraces the con-

cepts enunciated by Drs. McCormick (JA 188-199, 202-

206, 210) and Bennett (JA 259-263) in the trial court

———__

% People v. Richmond County News Co., 9 N.Y. 2d 578, 586.

* Zeitlin v. Arnebergh, 59 Cal. 2d 901, 31 Cal. Rptr. 800, 811.

“ Attorney General v. The Book Named “‘ Tropic of Cancer’’, 345

Mass, 11, 184 N.E. 2d 328, 333-334.

16

and the Solicitor General’s description in Roth y,

United States, 354 U.S. 476 (Br. 37-38). This ‘‘should

provide a reasonably satisfactory and workable tool

*** 9? Lockhart & McClure, Censorship of Obscenity:

The Developing Constitutional Standards, 45 Minn. L.

Rev. 5, 65 (1960). The problem, of course, is to enun-

ciate a workable standard. If, on this record, a work-

able standard cannot be evolved, it can never be, and

18 U.S.C. § 1461 is hopelessly vague and uncertain.

B. The record made in the trial court establishes

that the predominant effect of the challenged materials

was not to create in the average person any morbid or

shameful sexual desires (JA 206, 210, 211-212, 215,

264-266, 273). Nonetheless, the courts below held that

all these publications were obscene. The problem here

(and the one which may have caused the erroneous

holding below) is that this Court did not clearly say

what it meant by the term ‘‘appeals to prurient inter-

est’’ in Roth, 354 U.S. at 489. If this Court is going

to continue to adhere to its Roth definition of obscenity

and not limit the federal statute to ‘‘hard-core’’ porno-

graphy as we urge (see Jacobellis v. Ohio, 378 U.S. 184,

at 191, 200-201) then, at the very least, it should provide

a workable definition of ‘‘pruriency’’.”®

As we understand it, (1) ‘‘pruriency”’ is an ‘‘effect”’

element which can be measured only in terms of its

impact on the average person, (2) material which ap-

peals to prurient interest is erotically stimulating

material which excites a morbid, shameful or unhealthy

interest in sex, and (3) erotic stimulation of itself is

15 The problem of trying to define what this Court meant in Roth

by the phrase ‘‘appeals to prurient interest’’ is discussed in Lock-

hart & McClure, Censorship of Obscenity: The Developing Con-

stitutional Standards, 45 Minn. L. Rev. 5, 56-58 (1960).

17

not the equivalent of ‘‘pruriency’’.* If this is what

this Court meant to say in Roth, 354 U.S. at 487, ftn.

20, it did not do so explicitly enough for the court

below. On this record, none of the challenged publica-

tions had the requisite ‘‘pruriency’’, yet the courts

below held that they were all obscene. Either the deci-

sion below is in direct conflict with this Court’s deci-

sion in Roth, or the Roth definition of ‘‘pruriency’”’

should be made more explicit.

C. The court below held that the Handbook was

obscene and that there was nothing of any social im-

portance in it (App. ‘‘A’’, infra, p. 6a), despite the

fact that that it advocates ideas,” and experts attested

to its social-scientific importance and utility (JA 210,

216-217, 261-262, 289-292, 294-315). In addition to the

author’s views on the importance of early sex education

and female equality in sexual activity (JA 226-227),

Dr. Albert Ellis* points out (Ex. G17, p. 8) that on the

basis of the author’s own sex experiences the Handbook

For varying definitions, see Flying Eagle Publications v.

Umted States, 273 F. 2d 799, 803 (C.A. 1, 1962); United States

v. Keller, 259 F. 2d 54, 58 (C.A. 3, 1958); Big Table, Inc. v.

Schroder, 186 F. Supp. 254, 261 (N.D. IIl., 1960) ; United States v.

One Book Entitled ‘‘Ulysses’’, 5 F. Supp. 182, 184, aff’d 72 F. 2d

705 (C.A. 2, 1934).

* Although Mrs. Serett has been exceptionally frank in relating

her sexual experiences, throughout the Handbook she employs

accepted anatomical references rather than ‘‘gutter words’’, and

on those occasions when reference to the anatomy is accomplished

by means other than clinical phraseology, the reference serves an

illustrative purpose (see, e.g., Ex. G17, pp. 216-221, on the danger

of double-talk to children).

** Dr. Ellis is the author of the following books, among others:

The Folklore of Sex (1951); Sex, Society and the Individual

(1953) ; The American Sexual Tragedy (1954) ; The Psychology of

Sex Offenders (1956); Sex Without Guilt (1958); The Art and

Science of Love (1960); Creative Marriage (1960); and Sex and

the Single Man (1963).

18

‘manages to be duly skeptical of the allegedly superla-

tive value of simultaneous climax [e.g., G17, pp. 225-

227] ; to emphasize the importance of focusing on sexual

imagery [e.g., 224-225] ; to deflate the myth of ‘vaginal

orgasm’ [e.g., 225-227]; [and] to be highly dubious

of the necessity of totally unplanned, ‘spontaneous’

coital activity [e¢.g., 122-123] ** *.’? See also Frumkin,

IX Journal of Human Relations, 513 (Summer 1961) ;

Bryan, ‘‘Review of the Housewife’s Handbook on

Selective Promiscuity’’, Journal of American Insti-

tute of Hypnosis (January 1962) (JA 16-19). It is

this fact—that the Handbook advocates ideas—that

validates its claim to be tested, not by any courtroom

debate over its importance, but in the marketplace of

ideas. Ideological sex expression cannot be required

to abide by any consensus—whether public, expert, or

judicial—if it is to be free and protected by the First

Amendment. Kingsley International Pictures v.

Regents, 360 U.S. 684, 689. If ‘‘material dealing with

sex in a manner which advocates ideas * * * may not be

branded as obscenity and denied the constitutional pro-

tection’ (Jacobellis v. Ohio, 378 U.S. 184, 191), it is

irrelevant that the disputed ‘‘utility’’ issue was re-

solved adversely to petitioners. This is an important

question of federal law which has not been, but should

be, decided by this Court.

Just as the courts below erroneously refused to ac-

cord constitutional protection to the ideological sex ex-

pression contained in the Handbook, they erroneously

balanced away all the socially important content of

% Eros (JA 362-366; App. ‘‘A”’, infra, pp. 5a-6a). Not-

withstanding the fact that the indictment charged that

Eros was ‘‘obscene when considered as a whole”’ (JA

149), the courts below suppressed the whole because

they thought that parts had ‘‘prurient interest ap-

_

_—

19

peal’. This holding is in direct conflict with the views

expressed by Mr. Justice Brennan in Jacobellis v. Ohio,

378 U.S. 184, 191, and with the holdings of the highest

eourts of California” and Illinois.”

D. The court below held (App. ‘‘A’’, infra, p. 9a)

that no error was committed when the trial court over

petitioners’ repeated objections (JA 321, 322, 324),

permitted Dr. Frignito, a Government psychiatrist, to

testify as to the Handbook’s effect upon adolescents

(JA 321-324). The trial court accorded such testimony

great, if not conclusive, weight and stated that a defense

witness shocked him ‘‘by saying that this book should

be in every home and available for teenagers for guid-

ance in sex behavior, but in my opinion misbehavior”’

(JA 366).”

The holding below is in direct conflict with the hold-

ing of the Court of Appeals for the Sixth Circuit in

Volanski v. United States, 246 F. 2d 842 (1957), an-

other obscenity case tried to the district court without

a jury. In Volanski, a psychiatrist was permitted ‘‘to

® Zeitlin v. Arnebergh, 59 Cal. 2d 901, 31 Cal. Rptr. 800, 813.

* People v. Bruce, — Ill. —, 33 L. W. 2270 (Nov. 24, 1964).

* The trial court’s concern over the Handbook’s effect on ado-

leseents (JA 271, 272, 296, 297-298, 300-307) and its admission of

the Frignito testimony caused it to adopt (JA 368) the rejected

“composite test’’.for measuring pruriency. Compare Common-

wealth v. Isenstadt, 318 Mass. 543, 62 N.E. 2d 840, 845. After

Roth v. United States, 354 U.S. 476, the composite test was aban-

doned by all courts in favor of ‘‘[t]he impact upon the average

person’’ test. E.g., Womack v. United States, 294 F. 2a 204, 205

(C.A.D.C., 1961) ; Grove Press v. Christenberry, 175 F. Supp. 488,

499 (SDNY, 1959), aff’d 276 F. 2d 433 (C.A. 2, 1960). ‘‘The

* * * formulation of the test as a composite of all elements in

society retains most of the objectionable rigor of the old Hicklin

rule* * *.’’ Lockhart & McClure, Censorship of Obscenity: The

—_ Constitutional Standards, 45 Minn. L. Rev. 5, 72

1960).

20

state his expert opinion that the pictures would have an

undesirable effect upon juveniles. That the court’s de-

cision was based in large part on this evidence is re-

vealed by the trial judge’s oral opinion.”’ Id., at 843.

In reversing the conviction, Judge (now Mr. Justice)

Stewart said: ‘‘The admission of this evidence was

prejudicial error.”” Id., at 844. For present purposes,

that case and this case are indistinguishable and the

holding below is in irreconcilable conflict with

Volanskt.

E. The trial court admitted over objection letters

from Frank Brady, Associate Publisher of Eros Maga-

zine, Inc., to the postmasters of Blue Ball (Ex. G1)

and Intercourse (Ex. G2) (JA 154-155, 157) and then

found that all petitioners sought to mail from Blue

Ball, Pennsylvania, from Intercourse, Pennsylvania,

and finally did mail from Middlesex, New Jersey (JA

351) ‘‘in order that the postmark of [the] mailed mate-

rial would further [petitioners’] general scheme and

purpose” (JA 351). The indictment did not charge a

conspiracy and there was no evidence of any general

scheme and purpose. Evidence of ‘‘intent’’ cannot be

transferred from one defendant to another merely be-

cause they are tried together, and the Brady letters

were admissible, if at all, only against Eros Magazine,

Inc. and not against Ginzburg, Liaison News Letter,

Ine. or Documentary Books, Inc. Cf. Kotteakos v.

United States, 328 U.S. 750, 772, 776-777.

Although conviction was based on the theory that all

petitioners were engaged in a “‘general scheme and

purpose”’ to commercially exploit obscenity, the court

below held that the erroneous transfer of intent evi-

dence was immaterial because petitioners stipulated

that they knew the contents of the mailed publications

21

(App. “‘A”’, infra, pp. 8a-9a). Whether or not proof

of a specific criminal intent (i.e., that petitioners knew

the challenged materials to be obscene) is necessary,”

‘tan appellate court cannot affirm a conviction errone-

ously secured on one theory, on the speculation that

conviction would have followed if the correct theory

had been applied’? Wilson v. United States, 250 F. 2d

312, 325 (C.A. 9, 1957). In holding the erroneous

transfer of evidence of intent to be harmless, the court

below enabled petitioners’ ‘‘conviction to rest on one

point and the affirmance of the conviction to rest on

another’’—a violation of due process. Russell v.

Umted States, 369 U.S. 749, 766. The court below de-

cided this question in a way in direct conflict with

this Court’s holding in Cole v. Arkansas, 333 U.S. 196,

201-202.

F. Despite a timely request for ‘special find-

ings’’ under Rule 23(c) of the Federal Rules of Crimi-

nal Procedure (JA 348), the trial court reserved deci-

sion on that request (JA 348, 349), entered a general

finding of ‘‘guilty on all counts’’ (JA 349), instructed

the prosecutor to prepare ‘proposed findings’? (JA

349) which petitioners were never shown, and then

adopted the prosecutor’s findings fifty-four days later

*2Compare Smith v. California, 361 U.S. 147, 154-155, and

Morissette v. United States, 324 U.S. 246, with Rosen v. United

States, 161 U.S. 29, 41. Substantial portions of the opinion below

deal with the Blue Ball and Intercourse incidents, the manner in

which Eros was advertised, and the prices charged for the chal-

lenged publications (App. ‘‘A’’, infra, pp. la-2a, 5a, 7a). Such evi-

dence would have no bearing on whether the challenged materials

were intrinsically obscene, and evidence of this nature could be ma-

terial only if an essential element of the crime is an intent to appeal

to prurient interest for a profit. Unless this Court holds that proof

of such intent is a necessary requisite for conviction, the opinion

below will open the door to prejudicial use of irrelevant evidence

of motive and intent.

a

(JA 351-353).% Findings made in such a manner de-

prived petitioners of the safeguards that a requirement

of fact finding is designed to afford. Proceedings of the

Institute on Federal Rules of Criminal Procedure, 5

FRD 183, 188-189, 199-200 (1945) ; United States v. El

Paso Natural Gas Co., 376 U.S. 651, 656-657; United

States v. Merz, 376 U.S. 192, 199; United States vy.

Forness, 125 F. 2d 928, 942 (C.A. 2, 1942). By acknowl-

edging that most of the facts were not clear and precise

(JA 359) and that findings required ‘‘careful consid-

eration * * *, detailed legal research and assistance of

counsel”? (JA 360), the trial judge revealed that his

general finding was a visceral reaction, buttressed later

by ‘‘facts’? and ‘‘conclusions’’ he had not thought

through before arriving at a verdict.

In the past five years there have been 9,932 federal

criminal cases tried without juries“ yet no court has

22

23 The trial court excused its failure to make special findings con-

temporaneous with the general finding on the grounds that (1)

the trial judge made clear to counsel that special findings would

be delayed and defense counsel did not object to the proposed pro-

cedure (JA 359) and (2) petitioners ‘‘were not precluded from

submitting findings but apparently chose not to do so’’ (JA 360).

The record shows that the trial court reserved decision on peti-

tioners’ request for special findings (JA 348, 349) and never in-

dicated that special findings would not be made contemporaneous

with a general finding until after it pronounced petitioners guilty

and directed the Government to submit ‘‘proposed findings’’ (JA

349). The court of appeals notwithstanding (App. “*A’’, infra,

pp. 7a-8a), an objection subsequent to the entry of the general

finding could not have enabled the trial court to cure the error.

Furthermore, petitioners’ timely motion for a new trial raising an

objection prior to the ex parte submission of the Government’s

‘‘ proposed findings’’ was dismissed by the trial judge as an ‘‘after-

thought’? (JA 360). On the second point, we believe it unneces-

sary to comment upon the court’s reliance on petitioners’ failure

to insist upon their ‘‘right’’ to submit proposed findings in support |

of the guilty verdict.

24 Admin. Off. of U.S. Courts Ann. Rep., Table D-4 (1960-1964).

PLETE LLL PBT SEE LRN LE RENEE NOE ALIA ESS FOBT Ul NPE tage pe" Bete PS Sl

_—

23

spoken authoritatively on the requirements of Rule

23(c). To petitioners’ knowledge, this is the first time

this Court has been called upon to pass on the issue.

Since the problem constantly recurs in criminal non-

jury cases and is of obvious importance in the future

administration of Federal criminal justice, surely the

question is one this Court should decide.

G. Despite the fact that the trial court explicitly

found that the Handbook and Liaison, but not Eros,

were ‘‘patently offensive’’ and substantially exceeded

customary limits of candor (JA 351-353) and that the

Handbook and Eros, but not Liaison, ‘‘appealed to

prurient interest’’ (J A 352-353) ,”° the court below sup-

plied the essential but missing findings (i.e., that Eros

was ‘‘patently offensive’ and that Liaison ‘‘appealed

to prurient interest’’) by inferring their existence from

other findings and from the trial court’s opinion (App.

“A” infra, p. Ta). This runs counter to the evident

purpose of Rule 23(c) of the Federal Rules of Criminal

Procedure,” and raises problems of a serious constitu-

tional dimension.

Although it is settled that an appellate court is ‘‘not

at liberty to refer to the opinion for the purpose of

eking out, controlling, or modifying the scope of the

findings’, Stone v. United States, 164 U.S. 380, 383,

still unanswered is whether an appellate court in a

criminal case may supply essential findings by infer-

ence. We think not. Rule 23(c) requires that the

trial court make all the essential findings. Defects

* The trial court found that Liaison was “‘ published for the pur-

pose of appealing to the prurient interest of the average indi-

vidual’, not ‘hat Liaison had any prurient interest appeal in fact

(JA 352).

* Proceedings of the Institute on Federal Rules of Criminal

Procedure, 5 FRD 184, 199-200 (1945).

——.

24

in the fact-finding process cannot be remedied on ap-

peal. Quinn v. United States, 203 F. 2d 20, 25 (D.C.

Cir., 1952), reversed on other grounds, 349 U.S. 155;

ef. Cole v. Arkansas, 333 U.S. 196, 201-202. In view

of the obvious importance of this question, and since

the problem will undoubtedly recur, this Court should

decide it now.

CONCLUSION

The decision below reverses the trend of this Court’s

obscenity decisions beginning with Roth v. United

States, 354 U.S. 476, and culminating last term in the

per curiam reversals in Tralins v. Gerstein, 378 U.S.

576, and Grove Press v. Gerstein, 378 U.S. 577. See

Larkin v. G. P. Putnam’s Sons, 14 N. Y. 2d 399, 404-

405. If the First and Fourteenth Amendments pro-

hibited the challenged publications in the last three

cited cases from being held ‘‘obscene’”’ under the laws

of Florida and New York, the First Amendment pro-

hibits petitioners’ convictions here.

The United States Attorney (JA 371) and the Post

Office Department consider this a test case and the most

important federal obscenity prosecution of recent times.

Unless certiorari is granted and the convictions below

reversed, federal prosecutors may take the opinion be-

low, and its affirmance of the five year sentence meted

out to petitioner Ginzburg, as a signal to begin whole-

sale prosecutions under the federal statute. Cf. Lock-

hart & McClure, Censorship of Obscenity: The Devel-

oping Constitutional Standards, 45 Minn. L. Rev. 5,

36-37 (1960).

—

25

By reason of the foregoing, the petition for writ of

certiorari should be granted.

Respectfully submitted,

Davi I. SHAPIRO

Smwney DICKSTEIN

1411 K Street, N. W.

Washington, D. C.

Attorneys for Petitioners

DicKsTEIN, SHAPIRO, DENNIS &

GALLIGAN

20 East 46th Street

New York, New York

Of Counsel