# Petition for Writ of Certiorari — Ginzburg v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1966
- **Citation:** 383 U.S. 463

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0229%3A02. Public record. Not legal advice.