Appellants Brief — A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts

Supreme Court of the United States

OCTOBER TERM, 1965.

5

A Boox Namep ‘‘JoHn CLELAND’s

Memorms or A Woman or PLEasuRz’’,

G. P. Purnam’s Sons

(INTERVENOR),

Appellant,

> No. 368.

Vv.

ArrorNEY GENERAL OF THE CoMMON-

WEALTH OF MASSACHUSETTS,

Appellee.

APPELLANT’S OBJECTION TO MOTION OF

AMICUS CURIAE TO FILE A SUPPLEMENTAL BRIEF

Appellant opposes the filing of a second amicus brief

by Citizens for Decent Literature, Inc. (hereinafter

“CDL’’). Even if CDL were a party, this second brief

would be inappropriate. Rule 40 embodies the established

procedure of opening brief, response, and reply. CDL’s

first amicus brief, a 108-page document, was addressed

specifically to appellant’s jurisdictional statement, which

contained the substance of the arguments made in appel-

lant’s main brief. Since the amicus brief was filed too late

for appellant to respond prior to the oral argument, ap-

pellant sought leave to file a supplemental brief after argu-

ment in reply to CDL, and leave was granted. Appellant’s

supplemental brief was served and filed on December 16,

1965, in accordance with the Chief Justice’s direction that

it be filed promptly (the argument having been concluded

on December 8). More than two weeks later, amicus seeks

leave to file a second brief.

a

Rule 41(5) specifies the occasions for filing a supple.

mental brief, and none of them are present here. Rule

41(6) permits the receipt of a brief after argument upon

special leave, but special leave implies special circum.

stances, which do not exist here. Those Rules, of course,

apply to parties. Rule 42 shows that the function to be per-

formed by an amicus, relative to that of a party, is a

restricted one.

2

The proposed second brief contains no points going to

the merits that have not already been urged. It seeks to

justify the inclusion in the first CDL brief of matter that

was neither part of the record nor the subject of judicial

notice—matter in some instances not even identified by

source. The filing of a second amicus brief for such a pur-

pose is not warranted. Apart from this effort, the pro-

posed second brief does no more than expound points al-

ready urged in the first CDL brief. In repeating these

points, however, the second brief intrudes serious distor-

tions and inaccuracies, to which response ought to be made

if the proposed second brief is to be accepted. Included

among them are the following:

T*

CDL, without any justification for it, attempts to take

on the mantle of spokesman for all states other than

Massachusetts (6-7). At the same time CDL suggests that

our basic judicial process of determining issues as they are

presented by parties to a litigation be abandoned (7-8).

What process CDL would substitute is not clear. It is

clear, however, that CDL does not speak for the various

states which it assumes to represent. The law enforcement

officials of those states are of course able to speak for

themselves, and, when they think it appropriate, they of

* The items that follow are arranged under the numerical head-

ings of CDL’s proposed second brief. Numbers in parentheses

refer to pages of that brief.

3

course know how to make their views known. (Cf. Gideon

y. Wainwright, 372 U.S. 335.) CDL makes specific reference

to Illinois and New Jersey. The Supreme Courts of

Illinois and New Jersey have dealt with the matter of anti-

obscenity legislation and the effect of Roth and Alberts,

and surely the law enforcement officials of those states ar:

not unfamiliar with the issues, The Prosecutor of Bergen

County, who conducted the case involving Memoirs in New

Jersey, has been aware of the progress of the present case;

the appeal in New Jersey was postponed pending the dis-

position of the present appeal.

CDL itself stresses the contrast between its own views

and those of the Solicitor General in No. 42 and of the

New York County District Attorney in No. 49, as well

as with those of the Massachusetts Attorney General in the

present case. We submit that these public officials speak

for their respective governments with greater warrant

than does the private organization that submits these

amicus briefs, and with greater appreciation of the con-

stitutional issues involved.

Ir its brief previously submitted, CDL referred to mat-

ters which were not only outside the record, but which

coull in no event be deemed proper subjects for judicial

notice. It now offers three asserted justifications for this.

One is in the material commented on above. Another de-

pends on a bizarre misreading of the phrase ‘‘independent

constitutional judgment’’. CDL would have it mean, ap-

parently, that the judgment referred to is to be independent

of the record; the proposed brief states that an independent

constitutional judgment ‘‘necessarily entails’’ facts out-

side the record (9). The third is allegedly found in the

language of Mr. Justice Brennan in Jacobellis (10). But

there is nothing in that language suggesting that con-

sideration be given to matters that lie both outside the

record and outside the scope of judicial review. Indeed,

what is referred to in the portion of the opinion quoted by

CDL was part of record in that case (Transcript of Record

in Jacobellis, pages 361, 488-495, 497).

4

II

CDL argues that the word ‘‘redeeming’’ in the Roth.

Alberts phrase ‘‘utterly without redeeming social im-

portance’’ requires a balancing of the quantum of social

importance against the quantum of appeal to prurient in-

terest (12-i3).* The context in which the phrase appears,

and the use of the word ‘‘utterly’’, emphatically negate

the balancing that CDL is advocating, a balancing that

was employed in some cases prior to the time when this

Ce made it clear that the operation of anti-obscenity

legislation presents constitutional issues.

The sense of the word ‘‘redeeming’’ as used in Roth-

Alberts is this: social importance redeems from suppres-

sion material which, but for the presence of social im-

portance, might come within the scope of anti-obscenity

legislation. The plain meaning of the statement in Roth-

Alberts (repeated in the opinion of Mr. Justice Brennan in

Jacobellis) is that the presence of social importance in-

vokes the protection of the First Amendment, and thus

overrides considerations that would argue for suppres-

sion in the case of material utterly lacking that im-

portance.**

If there had been any doubt about whether this is the

meaning of the Roth-Alberts statement, the doubt could not

*It may be noted that the italics which CDL uses in quoting

appellant’s supplemental brief (12) are not in the original. More-

over, contrary to the CDL statement that follows the quotation,

there has been no acknowledgment by appellant that ‘‘the spotlight

is cast upon’’ the word ‘‘redeeming’’. We do not ‘‘spotlight”’

that word, nor do we ignore it. Its function in the Roth-Alberts

statement is as described in what follows.

** Appellant does not, of course, rest on the social importance

test alone. As set forth in our main brief and our reply to appellee,

we urge that Memoirs does not have the morbid and unhealthy

elements that constitute prurient interest, or the grossly repellent

patent characteristics that constitute patent offensiveness.

5

survive the expatiation of the statement in Jacobellis by the

Justice who was its author in Roth. (City of Chicago v. Kim-

mel, 31 Ll. 2d 202, 201 N. E. 2d 386; People v. Bruce, 31

Ill. 2d 459, 202 N. E. 2d 497; Larkin v. G. P. Putnam’s Sons,

14 N. Y. 2d 399, 200 N. E. 2d 760; for earlier views, see

Zeitlin v. Arnebergh, 59 Cal. 2d 901, 920, 383 P. 2d 152, 165;

State v. Hudson County News Co., 41 N. J. 247, 265, 196

A. 2d 225, 235.)

CDL refers to United States v. West Coast News, 228

F. Supp. 171 (W. D. Mich.), in support of its argument

that witnesses testifying as to literary merit are necessarily

biased (15-16). That case serves only to underscore the

difference between matters which are properly the subject

of testimony in cases such as this and matters which are

not. The West Coast News opinion shows that the wit-

nesses there, testifying on contemporary community stand-

ards, went on to express their views on obscenity laws gen-

erally. In the present case, by way of contrast, the witnesses

ealled by the appellant testified only on a subject as to which

they were qualified as experts—the matter of whether

Memoirs has literary value or historical significance. They

did not testify as to matters of law, or on other subjects as

to which their opinions would not constitute evidence. (The

one witness for the appellee, however, was permitted, over

objection, to state conclusions of law.) The kind of testi-

mony referred to in the West Coast News case emphasizes

the reliability of testimony such as has been given in the

present case, testimony within the professional competence

of witnesses whose professional reputation is involved, and

who are called upon to give a detailed appraisal of a par-

ticular work and not their general views on whether some-

thing is obscene or on what the law ought to be.

Under this same heading, CDL states that this Court

denied certiorari ‘‘in the New York conviction of Lenny

Bruce’’ (18). In fact, the case in which certiorari was

denied (Bruce v. Hogan, 381 U. S. 946) was one in which

Bruce sought a federal court injunction against state court

6

prosecution. The question of obscenity in the Bruce per-

formance was not decided in the federal action; that ques-

tion is still pending in the New York appellate courts.

eB:

In returning to its reliance on Rex v. Curl, CDL makes

unusual use of other opinions. CDL quotes the opinion

of Judge Burke in Trans-Luax Distributing Corp. v. Regents,

14 N. Y. 2d 88, 198 N. E. 2d 242, without mentioning the

fact that the Court of Appeals was reversed by this Court

per curiam (380 U. S. 259), and without taking note of the

fact that Judge Burke’s views on artistic merit no longer

represent the majority view of the New York Court of Ap-

peals (Larkin v. G. P. Putnam’s Sons, 14 N. Y. 2d 299, 200

N. E. 2d 760 (22-23)). In footnote 16 (21), CDL offers two

quotations. One is from an unnamed and uncited 1887 opin-

ion. This is Mugler v. Kansas, 123 U.S. 623, a case uphold-

ing a liquor-prohibition law. No question of freedom

of expression was involved there. The material in par-

entheses in the CDL quotation is the CDL’s language, not

the Court’s. And the ‘‘such questions’’ to which the

Court’s language refers are described in the preceding

sentence of the opinion, which CDL does not include:

‘But by whom, or by what authority, is it to be de-

termined whether the manufacture of particular

articles of drink, either for general use or for the

personal use of the maker, will injuriously affect

the public?’’ (123 U. S. 623, 660).

The other quotation is from Trist v. Child, 88 U. S. 441.

Trist v. Child was not an obscenity case, nor did it in-

volve morality in the sense in which CDL uses the term.

The Court held, inter alia, that a contract to pay for serv-

ices in securing Congressional enactment of a bill to pay

Trist for his work in connection with the Treaty of Guade-

lupe Hidalgo was unenforceable as against public policy.

The opinion is in no way authority for CDL’s views on

us 5 eye

Nessie steed AaaGMetsie’s borane,

PR RT weras SSN ae

ILE OS PULLEY TD

, 7

sexual morality and the suppression of books. The de-

cision rests on the public interest in preventing interference

with the legislative process. Moreover, far from supporting

CDL’s attitude toward the Bill of Rights, the opinion em-

phasizes the importance of the guaranteed freedoms. CDL

omits the conclusion of the Trist paragraph which it quotes.

The conclusion is as follows:

‘««* ** No people can have any higher public interest,

except the protection of their liberties, than integrity

in the administration of their government in all its

departments.’’ (88 U. 8. 441, 400-451.) (Emphasis

supplied.) :

CDL complains that appellant’s reply to the first amicus

brief omits part of the report of Curl’s case (20) . For one

thing, the ‘‘omitted’’ part was set forth in the first CDL

brief (at pages 57-58). For another, this portion of the

report, which CDL has now quoted a second time, adds

nothing—either for or against—to the point made in ap-

pellant’s supplemental brief. The rationale of Curl’s case

was that the suppression of speech and writing ought to

be used as a government tool against sedition, against

heresy, and against expression thought to be damaging to

the prevailing sexual morality. The point made in appel-

lant’s reply was that this philosophy of government is not

the philosophy of our government, and that it was explicitly

rejected in the adoption of the First Amendment.* Anti-

obscenity legislation has a valid scope of operation, but

it is a scope severely limited by constitutional guaranties

*<¢* * * to assume that English common law in this field became

ours is to deny the generally accepted historical belief that ‘one

of the objects of the Revolution was to get rid of the English

common law on liberty of speech and of the press.’ * * *

‘“* * * No purpose in ratifying the Bill of Rights was clearer

than that of securing for the people of the United States much

greater freedom of religion, expression, assembly, and petition than

the people of Great Britain had ever enjoyed. * * *’’ (Bridges v.

California, 314 U. S. 252, 264, 265).

. —

that were not in existence at the time of Curl’s case. The

theory of Curl’s case would require a different result in

Kingsley Pictures v. Regents, 360 U. S. 684. It is a theory

that is completely foreign to the spirit of Roth-Alberts. It

cuts deeply into the fabric of freedom and stands in rigid

opposition to the solicitude for First Amendment protee-

tions shown in Roth and Alberts. Yet that destructive

rationale, as the repeated reliance on Rex v. Curl shows, is

the very essence of the CDL position.

IV.

CDI: deals with the right to jury trial as though the Sixth

Amendment spoke not of the right of ‘‘the accused’’, but of

a right of the prosecution (23-24; also footnote 7 on p. 8).

CDL then confuses the ‘‘full hearing’’ that the First

Amendment assures for the publication of conflicting

views with ‘‘full hearing’’ in the courtroom. In any event,

the litigant’s choice of whether he will or will not have a

jury has no relevance to the question of what speech and

writing are protected by the First Amendment.

Ve

Footnote 20 (25) presents one of several illustrations

the CDL furnishes of the necessity for deciding cases on

the record and on matters as to which judicial notice may

be taken. CDL states:

‘‘Tt is a recognized fact that publishers locate them-

selves in the liberal jurisdictions and take sanctuary

in the relatively low risk of state prosecution.”’

It is, on the contrary, a recognized fact that appellant and

most other leading publishers have long been located in

New York City for reasons in no way connected with anti-

obscenity laws. In any event, a state that has held the

works of Edmund Wilson and Henry Miller obscene would

9

be a poor choice if the book publishing industry had the

motivation that CDL ascribes to it.

CDL concludes with an assertion that appellant has

made an ‘‘attempt to prove that the rights of a publisher

under all circumstances are paramount to the police right

of community government’’ (26). (Italics by CDL.) No

such contention has appeared anywhere in appellant’s

briefs or oral argument. Appellant has at no point urged

the invalidation of all anti-obscenity legislation, or of the

particular statute involved here. Appellant’s position,

rather, has been that, under the tests set forth by this

Court, the specific book in issue is protected against sup-

pression by the First Amendment.

The foregoing is representative but not exhaustive. If

the CDL’s proposed second brief is to be considered as a

document in the case, appellant, we submit, should have an

opportunity to deal with its distortions and inaccuracies

other than those mentioned above, and to deal with those

mentioned iv. full detail.

Since the arguments on the merits contained in the pro-

posed second brief are in substance the same as those in

CDL’s extensive first brief, we submit that the motion

should be denied. If, however, the motion should be

granted, we ask that appellant be given leave to submit a

brief in response.

Respectfully submitted,

CHARLES REMBAR,

REMBAR AND ZOLOTAR,

Counsel for Appellant,

521 Fifth Avenue,

New York 17, N. Y.