Opposition Brief — Ginzburg v. United States

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q CITATIONS

4 Adams Theatre Co. v. Keenan, 96 A.2d

_ 519, 12 N.J. 267.......... EE TOT REE 6

3 American Civil Liberties Union v. The

4 City of Chicago, 121 N.E. 2d 585, 3 IIl.

Ee: SE ERCESIRR DE SIRI ame eae neo 6

’ Commonwealth v. Feigenbaum, 70 A.2d

x 389, 166 Pa.Super. 120..............22..22--.--+- 6

M, Commonwealth v. Gordon, 66 D.&C. 101.. 6

e Commonwealth v. Isenstadt, 62 N.E.2d

om MER a 6

Jacobellis v. Ohio, 378 U.S. 188................ 5,9

Kahm v. United States, 300 F.2d 78, cer-

tiorari denied, 369 U.S. 859......00000000.... 8, 10

Manuel Enterprises, Inc. v. Day, 370 U.S.

il esechitinipaiiciigssdibulistecsspiibiatnecmniaiemitpatilmnse 5

Price v. United States, 165 U.S. 311.......... 10

Rosen v. United States, 161 U.S. 29........ 10

Roth v. United States, 354 U.S. 476........ 5, 6; 8,

9, 10

Shepard v. United States, 290 U.S. 96...... 10

Smith v. California, 361 U.S. 147............ 7

a

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Cases—Continued Page

United States v. Kennerley, 209 Fed. 119.. 7

United States v. Levine, 83 F.2d 156........ 6

United States v. Oakley, 290 F.2d 517,

certiorari denied, 368 U.S. 888.............. 10

United States v. One Book Called “Ulys-

OOF BE OI. TB ick seiincn.. 6

Volanski v. United States, 246 F.2d 842.... 10

Zeitlin v. Arnebergh, 383 P.2d 152, 59

Cal.2d 901, 31 Cal.Rptr. 800.................. 9

Statute:

I, ile clan conan 2

Miscellaneous:

I Wigmore, Evidence § 28, pp. 409-410

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—

Gu the Supreme Court of the United States

OCTOBER TERM, 1964

No. 807

RALPH GINZBURG, DOCUMENTARY BOooKS, INC., ERos

MAGAZINE, INC., LIAISON NEWS LETTER, INC.,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-

10a) is reported at 338 F.2d 12. The opinion of the

district court (JA 354a-368a)* is reported at 224

F.Supp. 129.

1“JA” refers to the joint appendix prepared for the court

of appeals.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

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

Justice Brennan granted an extension of time to file

a petition for a writ of certiorari to January 5, 1965.

The petition was filed on January 4, 1965. The jur-

isdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether the district court properly found the

materials at issue to be obscene.

2. Whether there were procedural defects affecting

the judgment.

STATUTE INVOLVED

The pertinent portions of Section 1461 of Title 18

are set forth in the appendix to the petition at pages

10a-11a.

STATEMENT

Having waived trial by jury (JA 2a), petitioners

were tried and convicted of violating 18 U.S.C. 1461.

Petitioner Documentary Books, Inc., was convicted on

six counts of having caused the mailing of an obscene

book, namely The Housewife’s Handbook on Selective

Promiscuity (hereinafter called The Handbook), and

three counts of having caused the mailing of adver-

tisements telling where the book could be obtained.

Petitioner Liaison News Letter, Inc., was convicted

of six counts of having caused the mailing of an

3

obscene pamphlet, namely Liaison, Vol. 1, No. 1

(hereinafter called Liaison) and three counts of hav-

ing caused the mailing of advertisements telling where

the pamphlet could be obtained. Petitioner Eros

Magazine Inc. was convicted of six counts of having

caused the mailing of an obscene magazine, namely

Eros, Vol. 1, No. 4 (hereinafter called Eros) and

four counts of having caused the mailing of advertise-

ments telling where ‘ .e magazine could be obtained.

Petitioner Ginzburg was convicted of all twenty-eight

of the foregoing counts (JA 2a-3a, 6a-13a). Peti-

tioner Eros Magazine, Inc., was fined a total of

$5,000, aud each of the other corporate petitioners

a total of $4,500. Petitioner Ginzburg was fined a

total of $28,000 ($1,000 on each count) and sentenced

to a total of five years’ imprisonment. Three years

of his sentence was based upon counts involving The

Handbook and two years upon counts involving Eros

(JA 4a-5a).

The verdict of guilty was entered on June 14, 1963

(JA 2a).? On August 6, 1963, the court filed special

findings of fact (JA 3a). The court found, as to The

Handbook, that it is “a vivid, explicit and detailed

account of a woman’s sexual experiences * * * which

goes substantially beyond customary limits of candor

exceeding contemporary community standards in de-

scription and representation of the matters described

therein” (#5); that it is “patently offensive on its

2 It was stipulated that petitioners caused the mailing of the

three works and of the advertisements pertaining to them

with knowledge of the contents of the works and the adver-

tisements (JA 149a-150a).

4

face” (+ 7) ; that it “appeals predominantly, taken as

a whole, to prurient interest” (+ 6); and that it “has

not the slightest redeeming social, artistic or literary

importance or value” (#9). As to Liaison, the court

found that it “primarily and as a whole is a shame-

ful and morbid exploitation of sex published for the

purpose of appealing to the prurient interest” (# 12);

that it is “patently offensive on its face” (#14) and

“goes beyond customary limits of candor, exceeding

contemporary standards in description and represen-

tation of the matters described therein” (# 11); and

that it “has not the slightest redeeming social, artistic

or literary importance or value” (#13). As to Eros,

the court found that “[w]hile portions * * * are taken

from other works and may have literary merit in con-

text,” the magazine “appeals predominantly, taken

[as] a whole, to prurient interest” (#16) and “has not

the slightest redeeming social, artistic or literary im-

portance or value taken as a whole” (#19). In con-

clusion, the court found, as to all three works, that

they “are devoid of theme or ideas” and “are all dirt

for dirt’s sake and dirt for money’s sake” (JA 35la-

353a).

Petitioners introduced various witnesses (a psy-

chologist, a phychiatrist, a literary critic, an art critic,

and a minister “trained and experienced in clinical

psychology”) who testified in general that the three

works do not appeal to prurient interest (as they de-

fined the term), have literary, artistic or scientific

value, and do not go substantially beyond community

standards. Additionally, they introduced books and

magazines purchased at various newsstands to show

5

that they were more offensive than the works at

issue, and offered testimony by the author of The

Handbook as to its factual character, her purpose in

writing it, and her own prior mailing of copies of it.

The goverment introduced no evidence other than the

material itself in its direct case, but offered three

witnesses in rebuttal (see Pet. 5-12).

ARGUMENT

As shown by its special findings of facts, the trial

court, in characterizing the three works here at issue

as obscene, scrupulously sought to apply the test laid

down by this Court for determining obscenity. Roth

v. United States, 354 U.S. 476, 489; see, also, Manual

Enterprises, Inc. v. Day, 370 U.S. 478, 482, 486

(Harlan and Stewart, JJ.); Jacobellis v. Ohio, 378

U.S. 18, 191-192 (Brennan and Goldberg, JJ.). The

only question in this case, therefore, is whether the

district court’s ultimate finding, unanimously ap-

proved by the court of appeals, was a permissible

one. See Jacobellis v. Ohio, supra, 378 U.S. at 190;

Manual Enterprises v. Day, supra, 370 U.S. at 488;

Roth v. United States, supra, 354 U.S. at 497 (Har-

lan, J., concurring in part, dissenting in part). The

Court has the relevant works before it and if it

deems that course appropriate, can re-examine the

material for itself. See Manual Enterprises v. Day,

supra, 870 U.S. at 488. Indeed, since no amount of

argumentation could serve effectively as a substitute

for such an examination, we confine ourselves to the

proposition that the test applied by the courts below is

6

in full accord: with the standards set forth by this

Court.

1. The test adopted in Roth is “whether to the aver-

age person, applying contemporary community stand-

ards, the dominant theme of the material taken as a

whole appeals to prurient interest” (354 US.

at 489). The courts below proceeded to an-

wer this question. To give meaning to the

term “prurient interest,” they turned to the

definitions which are set out in the Roth opinion

(354 U.S. at 487, n. 20) and to the definitions of ob-

scenity which appear in the cases which that opinion

cites (354 U.S. at 489, n. 26).° In short, they treated

the relevant question as whether the dominant theme

and appeal of the book would be a morbid and shame-

ful preoccupation with sex.‘ They understood that the

trier of fact—judge or jury—must decide this ques-

tion by reference to the general standards of the na-

tional community—not in terms of personal predilec-

8’ E.g., United States v. One Book Called “Ulysses”, 5 F.

Supp. 182, 184 (S.D.N.Y.) ; Adams Theatre Co. v. Keenan, 96

A.2d 519, 521, 12 N.J. 267 (S.Ct. N.J.); Commonwealth v.

Gordon, 66 D.&C. 101, 136, 151 (Q.S., Phila. Cty. Pa.) ; Ameri-

can Civil Liberties Union v. The City of Chicago, 121 N.E.2d

585, 592, 3 Ill.2d 334 (S.Ct.Ill.) ; Commonwealth v. Feigen-

baum, 70 A.2d 389, 390, 166 Pa.Super. 120 (Super.Ct., Pa.) ;

United States v. Levine, 83 F.2d 156, 158 (C.A. 2) ; Common-

wealth v. Isenstadt, 62 N.E.2d 840, 847 (S.Jud.Ct., Mass.).

* The district court found that the works herein appeal “to

prurient interest of the average adult reader in a shameful

and morbid manner” (+6, The Handbook, and #16, Eros)

and “to prurient interest of the average individual” (#12,

Liaison), and that they create “a sense of shock, disgust and

shame in the average adult reader” (#+#8, 15 and 18) (JA

352-353a).

7

tions—and that a work can not be considered obscene

unless it goes substantially beyond contemporary

standards of permissible candor.

In applying this test, the courts also understood

and acted upon the proposition that the ultimate issue

of obscenity concerns the overall theme of the work.

They looked to the intended impact of the material

taken as a whole, using the word “intent” in the

sense that it is used to refer to the intent of a statute.

There is no suggestion that they believed that their

task was to balance the social importance of the work

against the degree of prurient appeal and then de-

cide whether the work’s importance was sufficient to

justify its erotic passages. Regardless of the work’s

lack of social importance, the courts realized that its

dissemination was forbidden only if an appeal to the

prurient interest was its dominant theme.

It is true that there was opinion evidence offered by

petitioners’ witnesses intended to show that the works

did not go substantially beyond contemporary stand-

ards of candor, and that they had some social import-

ance. However, the ultimate determination of obscen-

ity, as the courts below held, must be made by the

courts and not by expert witnesses. Cf. United

States v. Kennerley, 209 Fed. 119, 121 (S.D.

N.Y., Judge Learned Hand). With regard to com-

munity standards, the most that has ever been claimed

is that a defendant has a right to “enlighten” the

trier of facts as to community standards. See Smith

v. California, 361 U.S. 147, 165 (Frankfurter, J.

concurring), 172 (Harlan, J. concurring). It has

never been held that the trier is bound by the partic-

- . =

ular evidence offered. See Kahm v. United States,

300 F. 2d 78 (C.A. 5), certiorari denied, 369 U.S.

859. Similarly, defendant’s introduction of opinion

testimony cannot establish conclusively that a work

has any redeeming literary or scientific theme. On

both issues the courts below specifically rejected the

witnesses’ opinions after considering both the expert

testimony and the works themselves, ;

In this Court, the petitioners urge particularly that

Eros and The Handbook were not wholly devoid of

literary and scientific merit. As we have indicated

above, this issue can only be decided by the court’s

consideration of the works themselves. We note only

that even if works have, to some comparatively

slight extent, a literary or scientific interest,

this does not, in our view, immunize them from

attack as obscene. There are few works so flooded

in every last line and detail with prurient appeal

that no claim can be made that they appeal, at least

interstitially, to some other interest. The very ref-

erence in Roth to the “dominant” theme of the work

indicates a recognition that there may be minor or

subservient themes which do not immunize from

prosecution a patent attempt to appeal to the prurient

interest of readers. It is only if the presence of other

themes casts doubt upon the dominance of prurience

as the intended appeal and overriding interest of the

work that the publication is constitutionally protected.

Where the predominant theme is a patently offensive

appeal to an unwholesome and shameful preoccupation

with sex, the work is obscene even if it may also be of

_—

«es.

+)

some comparatively slight literary or scientific inter-

est.

Finally, there is little to be gained by petitioners’

suggestion that the concept “hard-core” pornography

should be substituted for that of obscenity as the

relevant constitutional test (Pet. 15-16). A change

in labels would not make the underlying issues of

policy more malleable. Jacobellis v. Ohio, supra, 378

U.S. at 201 (Warren, C.J. dissenting). For example

Zeitlin v. Arnebergh, 383 P. 2d 152, 59 Cal. 2d 901,

31 Cal. Rptr. 800, which petitioners cite (Pet. 15),

does hold that only hard-core pornography can be

reached constitutionally by obscenity statutes. 383

P, 2d at 160-162. But, under its use of that term,

material which would be obscene under the Roth test,

as we understand it, would also meet the definition of

hard-core pornography. Jd. at 163. As for petition-

ers’ suggestion of unconstitutional vagueness, this

Court held in Roth that where the relevant statutes

are applied in accordance with the test there enunci-

ated, they are constitutionally precise. 354 U.S. at

491-492. We see no compelling reason for reconsider-

ation of the established test or any need for plenary

review of an ad hoc determination in which all of the

judges below have concurred.

2. Petitioners’ claims of procedural errors at the

trial were properly rejected by the court of appeals.

a. Petitioners’ complaint concerning the trial.

court’s delay in making special findings is, as the

court of appeals stated (Pet. App. 7a), without sub-

stance. Essentially the only “finding” that can be

made is that the works are obscene under the rele-

a

10

vant test. Having made this finding of ultimate fact

or law in its general verdict, the court was free to

take some time to make explicit the particular basis

of its general ruling.

b. Irrelevant evidence can, of course, be admitted

in a trial without a jury, as long as the court does

not base its decision upon it. The purpose of the

relevancy rule is to prevent confusion to jurors. See

Shepard v. United States, 290 U.S. 96, 104; 1 Wig-

more on Evidence, § 28, pp. 409-410 (3d ed. 1940).

There was thus no reason to reverse the decision of

the district court simply because it heard irrelevant

testimony concerning the effect of the challenged

material upon adolescents, introduced in rebuttal of

the petitioners’ evidence of the therapeutic uses of

this material. Unlike Volanski v. United States, 246

F. 2d 842 (C.A. 6), it is entirely clear from reading

the trial court’s findings and opinion here that it

based its judgment solely upon application of the

Roth test, and that the effect of the challenged ma-

terial upon adolescents was something which the court

noted only by way of explanation of its rejection of

the tendered defense of The Handbook as therapeutic

(JA 366a; 224 F. Supp. at 136).

c. “Scienter” in an obscenity prosecution is estab-

lished upon a showing that the accused had knowl-

edge or notice of the contents of the challenged work.

Rosen v. United States, 161 U.S. 29, 41-42; Price v.

United States, 165 U.S. 311; Roth v. United States,

supra, 354 U.S. at 491, n. 28; Kahm v. United States,

supra, 300 F. 2d at 86; United States v. Oakley,

290 F. 2d 517, 519 (C.A. 6), certiorari denied, 368

U.S. 888. It was stipulated that all of the

petitioners knew the contents of the works here

at issue. Accordingly, there is no need to consider

whether additional evidence of intent is shown by pe-

titioners’ efforts to mail their materia] from selected

post offices (i.e., at Blue Ball, Pa.; Intercourse, Pa.;

and Middlesex, N.J.). Moreover there is no basis in

the trial court’s findings for a contention that com-

mercial exploitation was considered an element of the

obscenity of any of the challenged works.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

ARCHIBALD Cox,

Solicitor General.

HERBERT J. MILLER, JR.,

Assistant Attorney General.

BEATRICE ROSENBERG,

MARSHALL TAMOR GOLDING,

Attorneys.

MARCH 1965

VW UV. S. GOVERNMENT PRINTING OFFICE; 1965 765087 629