Appellees Brief — United States v. Reidel

SUBJECT INDEX

Page

Questions Presented 1

Statement 2

Summary of Argument 3

Argument . 10

I.

The Question of Federal Power to Prohibit the

Distribution of Obscene Materials to Willing

Adults for Their Private Consumption Is Not

Answered by Appellant’s Resort to Pre-Roth

Legal History When the Comstock Act Rested

‘Upon the Hicklin Rule for Its Validity .......... 10

Il.

The District Court Correctly Concluded That No

Valid Governmental Interest Justifies a Criminal

Prosecution for Distributing Obscene Material

Solely to Willing Adults. The Conclusion Was

Required in the Light of the Free Speech and

Press, Due Process and Equall Protection Pro-

visions of the Constitution and the Rulings of

the Court in Redrup, Stanley and Rowan ........ 14

Conclusion 37

INDEX TO APPENDICES

Appendix A. Opinion of District Judge Larson .... 1

Appendix B. Order of District Judge Larson .... 13

Appendix C. Opinion of District Judge Gordon .... 15

Appendix D. Opinion and Judgment of Three

Judge District Court ..... ae

Appendix E. Opinion of District Judge Doyle .... 28

eo eee 2 er

ii,

TABLE OF AUTHORITIES CITED

Cases Page

Aday v. United States, 388 U.S. 447 ....000000000....... 12

Bachellar v. Maryland, 397 U.S. 564 .................... 18

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 .......... 24

Brandenburg v. Ohio, 395 U.S. 444 .....00....0......200 11

Butler v. Michigan, 352 U.S. 380 ..........................0. 11

Ginsberg v. New York, 390 U.S. 629 ................ 21, 31

Ginzburg v. United States, 383 U.S. 463 ............ 5, 17

Grant & Wissman v. United States, 380 F. 2d 748

sniteiielabahie 18, 19

Griswold v. Connecticut, 381 U.S. 479 ...... 23, 24, 32

Jackson, Ex parte, 96 U.S. 727 ....... 13

Jacobellis v. Ohio, 378 U.S. 184 ............ a ta i 86

Karalexis v. Byrne, 306 F. Supp. 1363 .................. 28

Kingsley International Pictures Corp. v. Regents,

RE I ects cat htcahaieatihciniiohensscisnktonesioncrbods 11, 20

Lamont v. Postmaster General, 381 U.S. 301 .......... 23

Loving v. Virginia, 388 U.S. 1 ....... 33

Manual Enterprises, Inc. v. Day, 370 U.S. 478 ........ 12

kt ie | 5 ene 16

Martin v. City of Struthers, 319 U.S. 141 .......... 23, 24

Morrison v. State Board of Education, 1 Cal. 3d

214, 461 P. 2d 375, 2 Cal. Rptr. 175 -................. 33

Mounce v. United States, 355 U.S. 180 ................ 11

UP a I, BEE WI. GED oavccccscesscsnccscccsccccse 11

New York Times Co. v. Sullivan, 376 U.S. 254 ....

SEAS 0 LES ERE OC TT > i, 2 8

One, Inc. v. Olesen, 355 U.S. 371

People v. Belous, 71 A.C. 996, 458 P. 2d 194, 80

Cal. Rptr. 354 ..

Prince v. Commonwealth of Massachusetts, 321 U.S.

158, 54 S.Ct. 438, 88 L.Ed. 645

Redrup v. New York, 386 U.S. 767 Lam. 8

aidciigeiniahameiians 1, 3, 1, 18

Roth v. United States, 354 U.S. 476 4, 5, 6,10, 12

13, 14, 17, 19, 21, 26, 30, 31, 37

Rowan v. United States Post Office Department, 397

U.S. 728 1, 3, 7, 8, 13, 24, 25, 31, 35, 37

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

Schenck v. United States, 354 U.S. 484

Smith v. California, 361 U.S. 147

' Stanley v. Georgia, 394 U.S. 557 ..........1, 3, 5, 6, 7

8, 13, 18, 19, 20, 21, 22, 23, 24

25, 26, 27, 29, 30, 31, 37

Stein v. Batchelor, 300 F. Supp. 602 27

Sunshine Book Co. v. Summerfield, 355 U.S. 372 .. 12

Thomas v. Collins, 323 U.S. 516

United States v. Kennerley, 209 Fed. 119

United States v. Robel, 389 U.S. 258

United States v. Langford, 315 F. Supp. 472

United States v. Lethe, 312 F. Supp. 421 ..........28, 29

United States v. Thirty-Seven (37) + RE 309

F. Supp. 36 28

West Virginia State Board of Education v. Barnette,

319 U.S. 624 32

iv.

Miscellaneous Page

Kalven, The New York Times Case: Note on The

Central Meaning of the First Amendment, 1964

S. Ct. Rev. 191, 218 18

The Report of the Commission on Obscenity and

Pornography, Sept. 1970, United States Govern-

ment Printing Office, p. 52 ...... 20

The Report of the Commission on Obscenity and

Pornography, Sept. 1970, United States Govern-

ment Printing Office, pp. 54-55 .................. 33

Rules

Federal Rules of Criminal Procedure, Rule 7(f) .. 2

Federal Rules of Criminal Procedure, Rule 41 .... 2

Statutes

The Postal Reorganization Act, Public Law 91-375,

82 Stat. 719 35

The Postal Reorganization Act, Secs. 1735-1737 ...... 36

United States Code, Title 18, Sec. 1461..1, 2, 28, 29

United States Code, Title 18, Sec. 1462 ........ 30, 31

United States Code, Title 39, Sec. 3008 ........ 35, 36

United States Code, Title 39, Sec. 3010 .............. 36

United States Code, Title 39, Secs. 3010-3011 .... 36

United States Code, Title 39, Sec. 4009 ........ 24, 25

United States Constitution, First Amendment ........

1, 6, 7, 8, 11, 13, 14, 16, 19, 21

sitiitetaniniaiedicitianennasitis 22, 24, 25, 27, 29, 30, 31, 36

United States Constitution, Fourth Amendment ...... 25

United States Constitution, Fifth Amendment ...... 1, 11

United States Constitution, Eighth Amendment ...... 32

United States Constitution, Ninth Amendment ........ 30

v.

Textbooks Pase

American Law Institute, Model Penal Code, Tenz-

tive Draft No. 4 (1955), pp. 276-291 ................ 32

57 California Law Review (1969), pp. 1257, 1277 26

64 Columbia Law Review (1564), pp. 1469, 1545.. 32

8t-Harvard Law Review (1968), p. 1439 ............ 13

83 Harvard Law Review, pp. 62, 151-152 ............ 26

83 Harvard Law Review, pp. 518-519 .................. 13

21 Hastings Law Journal (1969), p. 175 ............ 18

Illinois Annotated Statutes, Chap. 38, Secs. 11-1 to

11-20 (Smith-Hurd 1964) 32

68 Michigan Law Review (1969), pp. 185, 201 .. 26

68 Michigan Law Review (1970), pp. 1389, 1403 26

49 Nebraska Law Review (1970), pp. 660, 668 .... 27

Paul and Schwartz, Federal Censorship: Obscenity

in the Mail (1961), pp. 9-49 10

42 Southern California Law Review (1969), pp.

587, 596 26

48 Texas Law Review (1970), pp. 646, 650 ......... 27 |

14 Wayne Law Review (1968), pp. 722, 948-957.. 32

Wisconsin Law Review (1969), pp. 421-468 ............ 27

79 Yale Law Journal (1969), pp. 209-252 ............

eer

IN THE

Supreme Court of the United States

October Term, 1970

No. 534

UNITED STATES OF AMERICA,

Appellant,

vs.

NORMAN GEORGE REIDEL,

Appellee.

On Appeal From the United States District Court for the

Central District of California.

BRIEF FOR APPELLEE.

Questions Presented.

1. Whether Title 18 U.S.C. $1461, in the light of

the First and Fifth Amendments and the decisions in

Redrup, Stanley and Rowan, can be constitutionally

applied to the mailing of alleged obscene material to

willing adults.

2. Whether Title 18 U.S.C. §1461, on its face and

as construed and applied by the indictment, violates

the free speech and press, due process, and equal pro-

tection provisions of the First and Fifth Amendments.

The three-count indictment charged violations of

Title 18 U.S.C. §1461 [A. 5-6]. The defendant moved

to dismiss the indictment upon the grounds, among

others, that each of the counts of the indictment failed

to state facts sufficient to constitute an offense against

the United States; failed to state facts sufficient to con-

stitute an offense because each count of the indictment

failed to state that the material was mailed to a minor

or to an adult who did not want to receive the ma-

terial; and that the statute, on its face and as construed

and applied, violated the free speech and press, due

process, equal protection provisions, and other pro-

visions of the Constitution [A. 7-9].’

The hearing on the motion to dismiss the indict-

ment, and the other motions, came on before Honorable

Harry Pregerson, a Judge of the United States District

Court for the Central District of California [A. 10].

It was stipulated by appellant that the material in Count

Three of the indictment was a mailing in response to a

solicitation by an adult [A. 11, 14-15]. The govern-

ment stipulated further that as to the other two counts

in the indictment it had no evidence of an unsolicited

receipt, nor was there any evidence that the addressees

in the other counts were juveniles [A. 11-12, 14-15;

Tr. 21]. The government argued that under Title 18

U.S.C. § 1461, the question as to whether the recipients

were willing or unwilling addressees was irrelevant [A.

a were yp — prior to = There was a mo-

tion for return of property and to suppress evi » pursuant to

Fed. Rules Cr. Proc. rule 41, upon the grounds generally, that

the warrant upon which the massive seizure was made was a

general warrant, issued without a prior adversary hearing and

without probable cause. There was also a motion for a bill of

particulars, pursuant to Fed. Rules Cr. Proc. rule 7(f).

11-12; Tr. 19]. Im the light of the stipulated record

and the allegations contained in the indictment, the dis-

trict court held “that where obscene material is not di-

rected at children, or it is not directed at an unwilling

public,.where the material such as in this case is so-

licited by adults, there is no valid governmental interest

that I can see that would justify a criminal prosecution

for distributing this material” [A. 13]. The ruling was

primarily based on Stanley, the district court stating,

“It would seem to me, anyway, that if a person has the

right to receive and possess this material, then some-

one must have the right to deliver it to him” [A. 13].

The district court added: “In this situation here if the

addressee is an adult, and this is what the person wants,

{ think that the cases I have cited and the principles

that I have referred to certainly give him that right.

That is his own personal decision.” [A. 14].

Thereupon, the district court dismissed the indict-

ment and held further that all the other pending mo-

tions would be deemed moot [A. 16-17]. a iaaiaee

followed [A. 17-18].

| Summary of Argument.

1. The fundamental question presented is whether

the district court correctly concluded, in the light of the

developing constitutional standards enunciated by the

Court in Redrup, Stanley and Rowan, that it is con-

stitutionally impermissible to prohibit the mailing of ex-

plicit sexual materials to willing adult citizens desiring

the material for their private consumption. The basic

issue is whether the federal government has a compell-

ing and necessary interest in prohibiting the mailing of

explicit sexual materials to willing adults, when the ma-

terial is not disseminated to minors nor disseminated in

OO —

a

such a manner as to intrude upon the sensibilities or

privacy of the general public.

The determination depends not upon the history

which preceded Roth, where the Hicklin ruie dom-

inated, but depends upon an analysis of Roth and the

decisions which followed Roth. The post-Roth history

demonstrates that obscenity is not, per se, outside the

scope of constitutional protection and that the only com-

pelling state interests in obscenity are the regulation of

distribution to minors or obtrusive forcing upon unwill-

ing recipients. Governmental intervention in the free

flow of expression to adult citizens has been rejected as

incompatible with the demands of the Constitution, not

only by the courts, but by Congress as well.

2. It was recognized in Roth that sex was one of

the vital problems of human interest and concern, and

that the free speech and press guarantees embrace the

liberty to discuss such problems. Ideas having even the

slightest redeeming social importance were held in

Roth to be entitled to the full protection of the guarantees

of the Constitution. Hence, it was held vital that the

standards for judging obscenity safeguard the protec-

tion of freedoms of speech and press for material which

was not obscene.

The basic premise of Roth was that obscenity was

not within the area of constitutionally protected speech

because “utterly without redeeming social importance”.

Pointing to Beauharnais and Chaplinsky, the Court

held that obscene utterances were not protected speech.

Nevertheless, shortly after Roth, in a series of de-

cisions, the Court emphasized that the holding in Roth

did not recognize any state power to restrict the dis-

semination of material which was not obscene; that the

—

power to prevent the distribution of obscene matter did

not mean “that there can be no constitutional barrier

to any form of practical exercise of that power”.

In Jacobellis, the Court, in reversing the conviction,

stressed that freedom of expression for adults could not

be totally suppressed in order to prevent the dissemina-

tion of material deemed harmful to children. It was

suggested that laws aimed specifically at preventing dis-

tribution of objectionable material to children might

reflect a legitimate state interest, but not laws which

totally prohibited dissemination. Again, in Ginzburg,

the Court suggested a second state interest which

might justify a limitation on the dissemination of

explicit sexual materials. If the conduct of the pub-

lisher was such as to obtrusively proclaim the obscenity

of the material, then the publisher's own evaluation

might be taken at its face value. Finally, in Kedrup,

a decade after the decision in Roth, the Court reversed

all the judgments there involved and emphasized that

in none of the cases was there a claim that the statute

reflected “a specific and limited state concern for

juveniles”; in none was there any suggestion of an “ob-

trusive assault upon individual privacy”; and in none

was there evidence of the sort of “pandering” which

the Court found significant in Ginzburg.

All of these developments followed Roth, and it

should be noted that during this period the Beau-

harnais decision was undermined by the Court’s de-

cisions in New York Times Co. v. Sullivan and Garrison

v. Louisiana. Chaplinsky has been limited to words

which are likely to provoke the average person to re-

taliation and “thereby cause a breach of the peace”.

Even before Stanley, therefore, the “special logic” of

Chaplinsky and Beauharnais was disappearing. Obscen-

=

ity had plainly come within the protection of the First

Amendment in many contexts, and the limited counter-

vailing state interests justifying regulation of obscenity

had already been outlined by the Court.

3. The decision in Stanley specifically explicates

the evolving standards. Georgia initially argued that

under Roth obscenity was simply not constitutionally

protected, and therefore the State was free to deal with

obscenity in any manner. The Court replied that

neither Roth nor any other decision of the Court

reached that far. The assertion of a governmental in-

terest in dealing with obscenity cannot in every context

be insulated from all constitutional protections.

Georgia argued that obscenity is not an “essential

part of any exposition of ideas”. This had been the

basic premise for excluding obscene utterances from

the protection of the First Amendment guarantees. The

Court, in Stanley, rejected this premise, declining to

draw a line between the transmission of ideas and

mere entertainment.

Georgia argued, in effect, that it had the right to

control the moral content of a person’s thoughts. The

Court held that this assertion was wholly inconsistent

with the philosophy of the First Amendment.

Georgia argued that it had a justifiable interest in

preventing exposure to obscene materials which might

lead to deviant sexual behavior or crimes of sexual viol-

ence. The Court replied that there was little empirical

basis for that assertion, and that in any event, in the

context of private consumption of ideas and informa-

tion, the deterrents ordinarily to be applied to prevent

crime are education and punishment for violations of

the law.

Stanley, therefore, made clear that obscenity was not

outside the scope of First Amendment protection; that

the State was always required to demonstrate a compel-

ling countervailing state interest to justify the regula-

tion of obscenity; and that no such interest was dis-

cernible except the protection of minors and the force-

able intrusion upon unwilling recipients.

4. The appellant concedes that if Stanley recog-

nizes a constitutional “right to receive materials” which

are “obscene”, then under the decisions of the Court

it is difficult for appellant to contend that there is no

corresponding right of dissemination. The appellant's

case, therefore, is premised on the notion that Stanley

did not recognize the constitutional right of an adult

to receive obscene materials. The argument of appel-

lant, it is submitted, is clearly untenable.

In the first place, in Stanley, immediately after em-

phasizing that obscene utterances are entitled to con-

stitutional protection, the court in its opinion referred

three times to “the right to receive information and

ideas”. The specific citations of prior decisions of the

Court were all directed to the right to receive literature

and the right to distribute such literature. It is undis-

puted that the fundamental constitutional right upon

which Stanley was based was the right of willing adults

to receive information and entertainment for their own

private consumption. _

- Moreover, when appellant argued before this Court

in Rowan, appellant pointed to decisions like Stanley

as emphasizing that freedoms of speech and press

embrace the rights necessary to effectuate those free-

doms, “including the right to circulate and receive

publications”. The Rowan decision itself rested on the

unfettered constitutional right of a citizen to receive

materials for his private consumption.

Not only does the internal structure of the ruling

in Stanley refute appellant’s argument, but the legal

commentators have been virtually unanimous in recog-

nizing that elimination of adult censorship by Stanley

has sound doctrinal support, is constitutionally re-

quired, and is socially desirable.

In addition, appellant appears to overlook the grow-

ing number of court decisions throughout the Nation

that have interpreted Stanley as a First Amendment

ruling, supperting the constitutional right of adults to

receive alleged obscene materials and the correspond-

ing right to disseminate such materials to adults for

their private consumption.

5. The import of the decisions in Redrup, Stanley

and Rowan is that an adult individual’s right to re-

ceive materials of his own choice may only be abridged

when there is a compelling and necessary interest which

the State has a right to protect. The attempt by appel-

lant to urge that there is a legitimate interest in estab-

lishing an official moral orthodoxy is incompatible with

the Constitution. Even in the area of conduct, as dis-

tinguished from expression, there have been changing

concepts with respect to sexual practices not involving

force, adult corruption of minors, or public affront.

It has been urged, in the light of changing social and

cultural standards dealing with sex, that no harm to

the secular interests of the community is involved in

atypical sexual practice in private between consenting

adult partners. Many court decisions reflect these

changing concepts.

eS tic cs 6 * NS ae AL val Taaath en geste tat Coe nee a Kaan Oe RS RRA SMEG

7 — SDR OS SRN ANE RE Se TE

Lhe SRT ORES LSTA AA AED TRL SARTRE TE hashes a .

Moreover, the attempt by appellant to muster a le-

gitimate countervailing state interest to justify prohi-

bition of dissemination of obscene materials to willing

adults is undermined by the Report of the Commission

on Obscenity and Pornography which was submitted

on September 30, 1970, after an extensive and detailed

investigation of two years.

Finally, Congress has in recent legislation made pro- |

visions for the protection of legitimate federal interests ©

and has specifically emphasized that adult citizens have ©

the exclusive right to determine for themselves and for

their children what they will or will not receive by way

of explicit sexual materials.

La |

In accordance with the basic principles of statutory

interpretation, the district court construed the statute to

avoid unconstitutionality where mailing solely to willing

adults was involved. The statute was held to cover

cases where dissemination is intended for minors or

intended to intrude upon the sensibilities or privacy of

the general public unwilling to receive such material.

The indictment was dismissed by the district court be-

cause it failed to allege the essential elements of an

offense which the statute could constitutionally reach.

In the light of the government's stipulation, dismissal

was required under the Constitution and the decisions

of the Court.

SPOR IPDS LMA DG BT MOI ERER LON ABIES DINGY IONE St PRI Ne EOL ABO NPE SYS S POMPE TILE

335

SA oe:

et

—— Set eae an or Sane cr eee ———

_—

ARGUMENT.

I.

The Question of Federal Power to Prohibit the Distribu-

tion of Obscene Materials to Willing Adults for

Their Private Consumption Is Not Answered by

Appellant’s Resort to Pre-Roth Legal History When

the Comstock Act Rested Upon the Hicklin Rule

for Its Validity.

The appellant has chosen to commence its argument

with a discussion of the “venerable line of authority”

upon which the Court in Roth v. United States, 354

U.S. 476 allegedly relied. (Appellant’s Br. 6-8). Ap-

pellee submits that appropriate discussions here should

commence with an analysis of the decision by this

Court in Roth. The history which preceded Roth can-

not be, it is submitted, determinative of the constitu-

tional questions presented on this appeal.

The provisions of the Comstock Act were derived

from Lord Campbell’s Act of 1857, with the Hicklin

standard read into its provisions by the courts. See,

Paul and Schwartz, Federal Censorship: Obscenity in

the Mail (1961) 9-49. As early as 1913, however,

Judge Learned Hand observed that a rule of law, con-

sonant with “mid-Victorian morals”, hardly afforded

an answer for the American community in the early

twentieth century. United States v. Kennerley, 209 Fed.

119 (D.C. N.Y.). When, in 1957, the Court an-

nounced in Roth that the Hicklin test must be rejected

“as unconstitutionally restrictive of the freedoms of

speech and press” (354 U.S. at 489), former prece-

dents were clearly undermined. Indeed, in the very

term when Roth was decided, the Court held that the

free speech and press provisions of the First Amend-

WEEE ty : gen at AT ON OSS SRE te aoe op — oe Ot

ESS OME EIS ee Re

| a

ment, subsumed into the due process clause of the

Fourteenth Amendment, invalidated a state statute

which made it an offense to make available to the gen-

eral reading public a book having an alleged deleteri-

ous influence on youth. Butler v. Michigan, 352 USS.

380.

Moreover, the more recent enunciation of constitu-

tional standards with respect to the sweep of First

Amendment freedoms make resort to ancient history

by appellant an untenable reed. The power of the

State to prohibit the exercise of freedoms of speech

and press can no longer be premised on a finding of

“bad tendency”; First Amendment freedoms may ordi-

narily be prohibited only when “directed to inciting or

producing imminent lawless action and is likely to in-

cite or produce such action”. Brandenburg v. Ohio,

395 U.S. 444, 447. See also, concurring opinions of

Justice Black and Justice Douglas, 395 U.S. at 449-

457. The usual presumption supporting legislation “is

balanced by the preferred place given in our scheme

to the great, the indispensable democratic freedoms

secured by the First Amendment”. Thomas v. Collins, ;

323 U.S. 516, 530. Only a compelling and necessary .

State interest in the regulation of a subject within the ~

State’s constitutional power to regulate can justify lim-

iting First Amendment freedoms. NAACP vy. Button,

371 U.S. 415, 438-445. The Court has held that no

formula for the repression of expression, including

“public morals”, can claim talismanic immunity from

constitutional limitations. Kingsley International Pictures

Corp. v. Regents, 360 U.S. 684, 688-689. See, Mounce ~

v. United States, 355 U.S. 180, per curiam opinion

granting certiorari, and vacating judgment upon con-

fession of error by the Solicitor General; New York '

*

ae

BOI OR ELE LOE SINE ES MNOS IIS Sexe vyenll

ee —

= a

Times Co. v. Sullivan, 376 U.S. 254, 269. See also, dis-

senting opinion of Justice Harlan in Roth: “Congress

has no substantive power over sexual morality”. 354

US. at 504.

The broad arguments made by appellant fall short

of meeting the specific issues presented here. It misses

the mark to state that “obscene matter” has been

banned from the mails for more than one hundred

years (Appellant’s Br. 6, fn. 3). The fact is that

“matter” deemed obscene a century ago is now plain-

ly entitled to constitutional protection and no longer

subject to exclusion from the mails. See, the decisions

following Roth, through Jacobellis, Memoirs, Redrup,

and reversals of judgment based on Redrup. See,

especially, Sunshine Book Co. v. Summerfield, 355 U.S.

372; One, Inc. v. Olesen, 355 U.S. 371; Manual

Enterprises, Inc. v. Day, 370 U.S. 478; Aday v.

United States, 388 U.S. 447. The question presented

in this case is not whether the postal and commerce

powers of Congress include the “power to prohibit the

mailing of obscene matter” (Appellant’s Br. 6), but

whether it is constitutionally permissible for Congress

to prohibit the use of the mails to adult citizens willing

to receive explicit sexual materials for their private

consumption. The specific question presented is wheth-

er there is a constitutional right to mail “obscene”

material where the material is mailed only to willing

adults, and is not designed or intended for minors nor

obtrusively forced upon unwilling recipients. The issue

is whether the elimination of adult censorship by the

federal government is constitutionally required.”

2Most of the cases cited by appellant (Appellant’s Br. 6-7)

do not reflect current judicial attitudes. Public Clearing House v.

Coyne and Donaldson v. Read Magazine were based on the con-

— “

—

In the discussion which follows, the appellee proposes

to demonstrate that an examination of the principles

enunciated by this Court, from Roth to Redrup, Stanley

and Rowan, leads to the conclusion that obscenity is

not, per se, outside the scope of constitutional pro-

tection; that the Court has, as early as Jacobellis, in-

dicated that the only compelling state interests in ob-

scenity may be the regulation of distribution to minors

or obtrusive forcing upon unwilling recipients; and that

governmental intervention in the free flow of expression

to adult citizens is incompatible with the demands of

the Constitution. It is also important to note, as ap-

pellee shows ‘hereafter, that the developing constitu-

tional standards enunciated by the Court are reflected,

as well, in Congressional legislation. The law now sus-

tains the right of an adult, on his own behalf and on

behalf of his minor children, to refuse to receive ex-

plicit sexual materials. One who knowingly disregards

cept that Congress, in establishing a Postal Service, may annex

such conditions to it as it chooses. The cases also involved using

the mails for executing fraudulent schemes. These cases did not

involve safeguards required by the First Amendment to obvi-

ate the dangers of a censorship system. See, Van Alstyne, The

Demise of the Right-Privilege Distinction in Constitutional Law,

81 Harv. L. Rev. 1439 (1968); Justice Harlan in Roth v. United

States, 354 U.S. 476, 504, fn. 5; Monaghan, First Amendment

“Due Process”, 83 Harv. L. Rev. at 518-519. The decisions in

Ex parte Jackson, Champion v. Ames and In re Rapier involved

the mailing of lottery circulars. Hoke v. United States involved

interstate transportation of women for purposes of prostitution.

Heart of Atlanta Motel, Inc., was premised basically on “the

overwhelming evidence of the disruptive effect that racial discrim-

ination has had on commercial intercourse”. 379 U.S. at 257.

None of these cases which preceded Roth are decisive on the

issue here presented, the question of the constitutionality of the

Statute as construed and applied to the mailing of explicit sexual

materials to willing adults. There are no “precedents” which bar

determination of this question. See, Acts of Congress Held Un-

constitutional in Whole or in Part by the Supreme Court of the

United States, Constitution of the United States of America: An-

alysis and Interpretation, (Leg. Ref. Serv., Lib. of Cong. 1964).

ae

wofifon

such affirmative act of an unreceptive adult is subject

to injunctive and contempt proceedings, and to crim-

inal sanctions, but the adult in all cases remains “the

exclusive and final judge” of what expression he will

receive for his private conssmption.

Il.

The District Court Correctly Concluded That No Valid

Governmental Interest Justifies a Criminal Prose-

cution for Distributing Obscene Material Solely to

Willing Adults. The Conclusion Was Required in

the Light of the Free Speech and Press, Due Proc-

ess and Equal Protection Provisions of the Con-

stitution and the Rulings of the Court in Redrup,

Stanley and Rowan.

1. The first time the question of the relation be-

tween “obscenity” and the First Amendment was

“squarely presented” was in Roth v. United States, 354

U.S. 476, 481. The Court stated that the portrayal of

sex in art, literature and scientific works is not itself

sufficient reason to deny material the constitutional

protection of freedoms of speech and press. Sex was

deemed to be “one of the vital problems of human in-

terest and public concern”, and the free speech and

press guarantees of the Constitution were held to em-

brace the liberty to discuss such matters of public con-

cern without previous restraint or fear of subsequent

punishment. 354 U.S. at 487-488. The Court stated

that all ideas having even the slightest redeeming social

importance have the full protection of the guarantees

of the Constitution, unless excludable because they en-

croached upon the limited area of more important in-

~

a

| terests.* The Court emphasized that it was vital that

the standards for judging obscenity “safeguard the

protection of freedom of speech and press for material

which does not treat sex in a manner appealing to pru-

rient interest”. 354 U.S. at 488.

Pointing to the decisions in Beauharnais and Chap-

linsky, the Court held that the prevention and punish-

ment of obscene utterances did not raise any Constitu-

tional problem. It was stated that obscenity was not

within the area of constitutionally protected speech be-

cause “utterly without redeeming social importance”.

As against claims that obscenity statutes purported to

punish sexual] thoughts, not related to overt antisocial

conduct which might be incited in the persons stimu-

lated to such thoughts, the Court, pointing again to

Beauharnais, rejected such claims of lack of proof of

clear or present danger, upon the ground that obscenity

was not protected speech. The standards for judging

obscenity were held to be sufficiently certain to satisfy

due process requirements.

Shortly after the rendition of the aforesaid ruling, the

Court was moved to state: “But our holding in Roth

does not recognize any state power to restrict the dis-

semination of books which are not obscene; . . . The ex-

istence of the State’s power to prevent the distribution of

obscene matter does not mean that there can be no con-

stitutional barrier to any form of practical exercise of

’These might include specific protection for minors, Prince v.

Massachusetts, and “clear and present danger” of a substantive

evil which the State had a right to prevent, Schenck v. United

States. 354 U.S. at 484, fn. 14.

a

_*

that power.” Smith v. California, 361 U.S. 147, 152,

155. In Marcus, 367 U.S. 717 the Court held that every

obscenity prosecution implicates First Amendment ques-

tions. In that case, the state statutory search and seizure

procedures “lacked the safeguards which due process de-

mands to assure nonobscene material the constitutional

protection to which it is entitled”. 367 U.S. at 731. The

Court reiterated that the line between speech uncondi-

tionally guaranteed and speech which may legitimately

be regulated, suppressed, or punished is finely drawn. In

Quantity of Copies of Books, 378 U.S. 205 the Court

emphasized that a State was not free to adopt whatever

procedures it pleased for dealing with obscenity without

regard to the possible consequences for constitutionally

protected speech. “. . . there is danger of abridgment of

the right of the public in a free society to unobstructed

circulation of nonobscene books.” 378 U.S. at 213.

2. The vagueness and ambiguity of the standards

enunciated by the Court for judging obscenity, and the

difficulty of applying such uncertain standards in par-

ticular cases, led the Court in Jacobellis, 378 U.S. 184 to

make the following observations: “We recognize the

legitimate and indeed exigent interest of States and local-

ities throughout the Nation in preventing the dissemina-

tion of material deemed harmful to children. But that in-

terest does not justify a total suppression of such mate-

rial, the effect of which would be to ‘reduce the adult

population. . . to reading only what is fit for children’ . . .

State and local authorities might well consider whether

their objectives in this area would be better served by

laws-aimed specifically at preventing distribution of ob-

jectionable material to children, rather than at totally

prohibiting its dissemination.” 378 U.S. at 195.

=— =

In Ginzburg v. United States, 383 U.S. 463, the

Court suggested a second state interest which might

justify a limitation on the dissemination of explicit

sexual materials. If the conduct of the publisher

was such as to obtrusively proclaim the obscenity of the

material, then the publisher’s own evaluation might be

taken at its face value. While the judgment in Ginz-

burg was by a sharply divided Court, in the light of the

particular facts, it did appear that the Court was sug-

gesting a shift from a doubtful power to regulate con-

tent of utterances to an acceptable power to regulate

obtrusive conduct.

In 1967, a decade after the decision in Roth, the

Court in Redrup, 386 U.S. 767, after reciting the varied

constitutional views of the members of the Court in the

area of obscenity, reversed the judgments in the three

cases before it made the following significant statement:

“In none of the cases was there a claim that the

Statute in question reflected a specific and limited

state concern for juveniles. See Prince v. Common-

wealth of Massachusetts, 321 U.S. 158, 64 S.Ct.

438, 88 L.Ed. 645; cf. Butler v. State of Michigan,

352 U.S. 380, 77 S.Ct. 524, 1 L.Ed. 2d 412. In

none was there any suggestion of an assault upon

individual privacy by publication in a manner so

obtrusive as to make it impossible for an unwilling

individual to avoid exposure to it. Cf. Breard v.

City of Alexandria, 341 U.S. 622, 71 S.Ct. 920,

95 L.Ed. 1233; Public Utilities Comm’n of Dis-

trict of Columbia v. Pollak, 343 U.S. 451, 72 S.

Ct. 813, 96 L.Ed. 1068. And in none was there

evidence of the sort of ‘pandering’ which the Court

found significant in Ginzburg v. United States,

383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31.”

(386 US. at 769).

a

=—

See, Teeter and Pember, The Retreat From Obscenity:

Redrup v. New York, 21 Hastings L.J. 175 (1969).

It should also be noted, before turning to Stanley,

that some of the peripheral premises upon which Roth

was based were undermined by subsequent decisions

of the Court. In New York Times Co. v. Sullivan,

reliance by the State upon Beauharnais was held mis-

placed. “. . . Libel can claim no talismanic immunity

from constitutional limitations. It must be measured by

standards that satisfy the First Amendment.” 376 U.S.

at 269. In Bachellar v. Maryland, 397 U.S. 564, the

Court pointed out that Chaplinsky only involved a small

class of “fighting words” which are “likely to provoke

the average person to retaliation, and thereby cause a

breach of the peace”. Citing the decisions in Termi-

niello, Street v. New York, and other like rulings,

the Court emphasized that Chaplinsky could not be in-

voked to justify limitations on utterances which were

merely deemed objectionable, offensive or disturb-

ing. Even before Stanley, therefore, the “special

logic” of Chaplinsky and Beauharnais was disappear-

ing. See, Kalven, The New York Times Case: Note on

“The Central Meaning of the First Amendment”, 1964

S. Ct. Rev. 191, 218.

The fact is that before the ruling in Stanley, the

Court had already indicated that obscenity could not be

deemed outside the protection of the guarantees of the

First Amendment in all contexts; that a legitimate gov-

ernmental interest in dealing with obscenity was re-

quired to be shown; and that such compelling interest

might exist only with respect to the dissemination of ma-

terial to minors or to dissemination so obtrusive as to

invade the privacy of the general public. See, Grant &

abil ile

Wissman v. United States, 380 F. 2d 748 (9 Cir.

1967).

3. In Stanley, 394 U.S. 557 the initial argument

made by the State was that under Roth obscenity is sim-

ply not constitutionally protected, and therefore the State

was free to deal with obscenity in any manner. To this

argument, the Court made the following reply: “Roth

and its progeny certainly do mean that the First and

Fourteenth Amendments recognize a valid governmental

interest in dealing with the problem of obscenity. But

the assertion of that interest cannot, in every context,

be insulated from all constitutional protections. Neither

Roth nor any other decision of this Court reaches that

far.” 394 U.S. at 563 (Emphasis added).

In short, neither Roth nor any other subsequent de-

cision reach such an absolute and broad conclusion

for which Georgia contended. In Roth, the Court had

stated that “‘Ceaseless vigilance is the watchword to

prevent . . . erosion [of First Amendment rights] by

Congress or by the States. The door barring federal and

state intrusion into this-area cannot be left ajar; it must

be kept tightly’ closed and opened only the slightest

crack to prevent encroachment upon more important

interests’ ””. 394 U.S. at 563.

Georgia argued, again relying on Roth, that obscen-

ity is not an “essential part of any exposition of

ideas”. This had been the basic premise for excluding

obscene utterances from the protection of the First

Amendment guarantees. The Court in Stanley made di-

rect reply: “Nor is it relevant that obscene materials

in general, or the particular films before the court, are

arguably devoid of any ideological content. The line

between the transmission of ideas and mere entertain-

—

ment is much too elusive for this court to draw, if in-

deed suci: a line can be drawn at all.” 394 US. at

566.

The State argued in Stanley that it had an interest

in protecting the individual's mind from the effects of

obscenity. The argument, in essence, amounted to an

assertion by the State of the right to control the moral

content of a person’s thoughts. The Court replied that

to control the moral contents of a person’s thoughts

may be a noble purpose to some, “but it is wholly in-

consistent with the philosophy of the First Amendment.”

As in Kingsley, obscenity cannot be suppressed on

ideological or theoligical grounds. The Constitution

protects the right to receive information and ideas, “re-

gardless of their social worth”. 394 U.S. at 564, 565-

566.

The State argued that it had a justifiable interest in

preventing exposure to obscene materials which might

lead to deviant sexual behavior or crimes of sexual

violence. The Court replied that there appeared to be

little empirical basis for that assertion.‘ “But more im-

portant, if the state is only concerned about printed

or filmed materials inducing antisocial conduct, we be-

lieve that in the context of private consumption of ideas

and information we should adhere to the view that

‘among free men, the deterrents ordinarily to be ap-

plied to prevent crime are education and punishment

for violations of the law... .’”. 394 U.S. at 566-567.

4“Extensive empirical investigation, both by the Commission

and by others, provides no evidence that exposure to or use of

explicit sexual materials play a significant role in the causation

of social or individual harms such as crime, delinquency, sexual

or nonsexual deviancy or severe emotional disturbances.” (The

Report of the Commission on Obscenity and Pornography, Sep-

tember, 1970, United States Govt. Pr. Off. 52).

|

SETS ONL STEELS ET —

eniiinn

Stanley, therefore, was a logical outgrowth of the

developing standards enunciated by the Court in the

obscenity area. Stanley made clear that “obscenity” was

not outside the scope of First Amendment protection;

that obscenity could not be deemed to be utterly with-

out redeeming social importance; that the government

had no legitimate interest in controlling the moral con-

tent of thought; and that there was no evidence avail-

able to establish a causal relationship between obscen-

ity and antisocial or criminal behavior. The only valid

governmental interests in dealing with the problem of

obscenity was the dissemination of explicit sexual ma-

terials to minors (Ginsberg v. New York, 390 USS.

629), or dissemination in such a manner as to intrude

upon the sensibilities or privacy of the general public

(Redrup v. New York, 386 U.S. 767, 769).

Two further observations were made in Stanley. The

first was that an “individual’s right to read or observe

what he pleases” is so fundamental that its restriction

may not be justified by the need to ease the adminis-

tration of otherwise valid criminal laws”. 394 U.S. at

568. The second observation was: “Our holding in the

present case turns upon the Georgia statute’s infringe-

ment of fundamental liberties protected by the First

and Fourteenth Amendments.” 394 U.S. at 568, fn. 11.

4. The argument of appellant is that the district

court erred “as to the impact of Stanley”. (Appellant’s

Br. 8-11). In the government’s view, Stanley merely

protected an individual from interference with his pri-

vacy. The appellant does not detail supporting argu-

ment for this conclusion, but points to its Brief as

Amicus Curiae in Byrne v. Karalexis, No. 83, this Term,

pp. 6-18. The argument which follows, therefore, is

Ab ane

— : EDP Te BON THE ee a

-——22——

principally an answer to the arguments made in the

aforesaid amicus curiae brief.

The appellant states in the Byrne v. Karalexis

amicus brief (p. 12):

“. . . It is undisputed that the crucial issue here

revolves about the lower court’s initial legal prem-

ise that Stanley recognizes a constitutional ‘right

to receive’ materials which are ‘obscene’ in the

sense defined by Roth and this Court’s subsequent

decisions following Roth . . . If there is a right,

as such, it is then difficult to contend, under this

Court’s cases, that there is no corresponding right

of dissemination, at least under some circum-

stances.”

Appellant insists, however, that Stanley recognized

no constitutional “right to receive” obscene materials;

and that despite Stanley, the dissemination of explicit

sexual materials to willing adults for their private con-

sumption is without First Amendment protection.

With all deference, an analysis of the internal struc-

ture of Stanley would appear to lead to a conclusion

opposite to that contended for by appellant. After

the initial observation by the Court that the assertion

of governmental interest in dealing with the problem

of obscenity cannot, in every context, be insulated from

all constitutional protections, the opinion immediately

discussed the constitutional protection for “the right

to receive information and ideas”. 394 U.S. at 564.

Twice thereafter, the Court repeated that freedom of

speech and press “necessarily protects the right to re-

ceive”, and that “this right to receive information and

ideas, regardless of their social worth, . . is funda-

mental to our free society”. 394 U.S. at 564. This

— OL EBRD Se

|

|

| ey k

was the fundamental constitutional right involved in

Stanley, and insofar as the particular facts in Stanley

were involved, that right took on an “added” dimen-

sion. 394 U.S. at 564.

The cases cited in the Stanley opinion on the issue

of the right to receive emphasize the fundamental

freedom involved. Thus, Martin v. City of Struthers, 319

U.S. 141 states that freedom of speech and press “em-

braces the right to distribute literature . . . and necessari-

ly protects the right to receive it”. 319 U.S. at 143. In

Griswold v. Connecticut, 381 U.S. 479 the Court stated,

“The right of freedom of speech and press includes

not only the right to utter or to print, but the right to

distribute, the right to receive, the right to read”. 381

U.S. at 482. In Lamont v. Postmaster General, 381 U.S.

301 it was stated that the protection of the Bill of Rights

goes beyond the specific guarrantees to protect from

Congressional abridgement those equally fundamental

personal rights necessary to make the express guarantees

fully meaningful. “I think the right to receive publica-

tions is such a fundamental right. The dissemination of

ideas can accomplish nothing if otherwise willing ad-

dresses are not free to receive and consider them. It

would be a barren marketplace of ideas that had only

sellers and no buyers.” 381 U.S. at 308.

These were the particular cases cited in Stanley, and

it is therefore fair to say, it is submitted, that the

fundamental constitutional right upon which Stanley

was based was the right of willing adults to receive in-

formation and entertainment for their own private con-

sumption. The government concedes that under such

circumstances there is bound to be a corresponding

right of dissemination. It is simply unacceptable to

ee: SES AP IT MEL 5 CER EOE EN TRS RES ONS wR ae

—s

assert that the exercise of a First Amendment right to

receive is limited to “bootlegging” of expression. In Gris-

wold, the parties involved in the action were the Execu-

tive Director of the Planned Parenthood League and a

licensed physician who served as Medical Director for

the League. Such persons had standing to raise the con-

stitutional rights of the married people, because other-

wise “the rights of husband and wife, pressed here, are

likely to be diluted or adversely affected”. 381 U.S. at

481. In Martin v. City of Struthers, emphasis was placed

on the constitutional right to distribute, as well as the

right of citizens to receive the material. See also, Ban-

tam Books, Inc. v. Sullivan, 372 U.S. 58, 64, fn. 6.

Moreover, when appellant was arguing before this

Court in Rowan v. United States Post Office Depart-

ment, 397 U.S. 728, its views with respect to the im-

pact of Stanley were quite different from the ones

espoused here. In discussing the power of Congress

to enact Title 39 U.S.C. §4009 and the right of a citi-

zen to refuse matters he did not wish delivered to his

home, as against the First Amendment interest of a

sender, the government stated:

“In making the assessment, Congress was of

course aware that the freedoms of speech and

press embrace the rights necessary to effectuate

those freedoms, including the right to circulate

and receive publications, the right to listen and the

right to read. Stanley v. Georgia, 394 U.S. 557,

564; Martin v. City of Struthers, 319 U.S. 141,

143; Ex parte Jackson, 96 U.S. 727, 733; Lamont

v. Postmaster General, 381 U.S. 301, 308 (Bren-

nan, J., concurring).” (Brief for the Respondents,

p. 31).

See also, the same Brief, pp. 35-37.

—

The decision of the Court in Rowan largely rested

on the unfettered constitutional right of a citizen to

receive materials for his private consumption. The

validity of Title 39 U.S.C. §4009 was upheld because

“the judgment of what constitutes an offensive invasion”

of his interest in privacy rested “in the hands of the

addressee”. The statute made “the householder the ex-

clusive and final judge of what will cross his threshold”.

The “mailer’s right to communicate” stops only at the

mailbox of an “unreceptive” addressee.

Both Stanley and Rowan, therefore, it is submitted,

recognize that a necessary safeguard for the protection

of freedoms of speech and press for adults is the right

to distribute as well as to receive materials for private

consumption. Appellant’s insistence that the Court

made only a “passing reference” to the right to receive

information and ideas in Stanley (Karalexis Amicus

Brief, p. 9), is a plain attempt to avoid the necessary

concession which appellant is compelled to make if

Stanley recognizes a constitutional right of an adult to

receive obscene materials.

The appellant stresses a distinction between a “right

to receive” and a disability to search and seize, a dis-

tinction which appellant says “may appear subtle”, but

is of “crucial importance” (Karalexis Amicus Curiae

Brief, p. 12). However, it is clear that the Court in

Stanley made its decision upon First Amendment

grounds and not upon Fourth Amendment grounds.

Contrary to the appellant’s reluctance to accept the im-

plications which flow from the Court’s ruling, the legal

writers have been virtually unanimous in recognizing

that the elimination of adult censorship by Stanley has

sound doctrinal support; is constitutionally required;

alin

and is socially desirable. The consensus is that Stanley

has correctly focused the interest of the State upon

minors and unwilling adults. Note, The Supreme Court,

1968 Term, 83 Harv. L. Rev. 62, 151-152 (“The ‘right

to receive information and ideas, regardless of their

social worth’, should serve after Stanley to protect

certain forms of public distribution as well as private

possession. Surely that right may be effectively denied

through a ban on all distribution of obscene material

. . . ‘Public distribution’ may be defined narrowly to

denote those forms of distribution or displays which

thrust obscenity on unwilling individuals.”); Laughlin,

A Requiem for Requiems: The Supreme Court at the

Bar of Reality, 68 Mich. L. Rev. 1389, 1403 (1970)

(“Stanley v. Georgia has not been a particularly con-

troversial opinion. Despite the reputed conservative

backlash, even spokesmen for ‘decent literature’ groups

no longer stress the issue of adult censorship; rather,

the debate today focuses principally on minors.”); Eng-

dahl, Requiem for Roth: Obscenity Doctrine is Chang-

ing, 68 Mich. L. Rev. 185, 201 (1969) (“The funda-

mental holding of the Roth case—that obscenity is a

discrete class of expression excluded from the constitu-

tional protection guaranteed to other kinds of expres-

sion and therefore to be treated differently from other

kinds of expression—has already met its demise.”);

Note, First Amendment: The New Metaphysics of the

Law of Obscenity, 57 Cal. L. Rev. 1257, 1277 (1969)

(“It follows, therefore, that only statutes carefully

drafted to protect children and to prevent affronts to

the public can withstand the constitutional test.”); Rat-

ner, The Social Importance of Prurient Interest—Ob-

scenity Regulation v. Thought-Privacy, 42 So. Calif.

L. Rev. 587, 596 (1969) (“Perceiving ‘little empirical

niin

basis’ for a correlation between exposure to obscenity

and antisocial behavior the Supreme Court, in Stanley,

designated ‘education and punishment for violation of

law’ as less intrusive and no less effective deterrents

than a reading ban.”); Note, Obscenity: A Return to

the First Amendment?, 49 Neb. L. Rev. 660, 668

(1970) (“It would seem that obscenity has been recog-

nized as within the general principle of the First

Amendment, and that of the historical and traditional

State interests which have been advanced to legitimize

repression of obscenity, only obtrusiveness remains ten-

able after Stanley.”); Karre, Stanley v. Georgia: New

Directions in Obscenity Regulation?, 48 Tex. L. Rev.

646, 650 (1970) (“In giving any First Amendmen*

protection to material assumed obscene, the Court has

repudiated the major premise of the two-level theory:

that sexual material meeting the obscenity definition is

wholly excluded from the First Amendment.”). See

also, Morreale, Obscenity: An Analysis and Statutory

Proposal, 1969 Wis. L. Rev. 421-468; Katz, Free Dis-

cussion v. Final Decision: Moral and Artistic Contro-

versy and the Tropic of Cancer Trials, 79 Yale L. J. 209-

252 (1969).

In addition to all of the aforesaid, the appellant ap-

pears to overlook the number of courts that have in-

terpreted Stanley as a First Amendment ruling, sup-

porting the constitutional right of adults to receive al-

leged obscene materials and the corresponding right

to disseminate such materials to willing adults for their

private consumption.

In Stein v. Batchelor, 300 F. Supp. 602 (D.C. Tex.

1969), appeal pending, District Judge Hughes, writing

for a unanimous three-judge court, stated: “It is im-

possible, however, for this Court to ignore the broader

a

—24—

implication of the [Stanley] opinion . . . in some con-

texts obscenity is afforded First Amendment protection

and thus cannot constitutionally be regulated in the

absence of a legitimate countervailing societal in-

terest . . . In the context of ‘private’ expression there is

unlikely to be any legitimate state interest justifying

regulation (with the possible exception of the State’s

interest in protecting children).” 300 F. Supp. at 606-

607.

In Karalexis v. Byrne, 306 F. Supp. 1363 (D.C.

Mass. 1969), appeal pending, Circuit Judge Aldrich,

writing for himself and District Judge Pettine, stated:

“It is difficult to think that if Stanley has a constitu-

tional right to view obscene films, the Court would in-

tend its exercise to be only at the expense of a criminal

act on behalf of the only logical source, the profes-

sional supplier. A constitutional right to receive a com-

munication would seem meaningless if there were no

coextensive right to make it.” 306 F. Supp. at 1366-

1367.

In United States v. Thirty-Seven (37) Photographs,

309 F. Supp. 36 (D.C. Cal. 1970), appeal pending,

District Judge Ferguson, writing for a unanimous three-

judge court, stated: “As stated in Stanley, the right

to read necessarily protects the right to receive .. . If

the statute can violate the freedom of speech and press,

then it is invalid. This it clearly does. It prohibits a

person who may constitutionally view pictures of the

right to receive them.” 309 F. Supp. at 37-38.

In United States v. Lethe, 312 F. Supp. 421 (D.C.

Cal. 1970), Chief Judge MacBride, in holding that the

government could not constitutionally bring on a prose-

cution under Title 18 U.S.C. §1461 for mailing obscene

material to an adult who requests it, stated: “If the

—

pomegranates, 4

=

government has no substantial interest in preventing a

citizen from reading books and watching films in the

privacy of his home, then clearly it can have no greater

interest in preventing or prohibiting him from acquiring

them . . . There is no public display and children are

not involved. No valid governmental interest remains,

and the conclusion is inescapable that the government

cannot constitutionally bring such a prosecution.”

312 F. Supp. at 424-425.

In United States v. Langford, 315 F. Supp. 472 (D.C.

Minn. 1970), District Judge Neville reduced the sen-

tence of a defendant, who had pleaded guilty to an in-

dictment under Title 18 U.S.C. §1461, to the time

served, upon the ground that the defendant’s conduct

was not an offense under Stanley since the material

was not distributed to juveniles or unwilling persons, or

obtrusively forced upon unwilling persons. The court

stated: “Accepting the major premise in Stanley v.

Georgia as the law, the logic of the Lethe case and the

result it reaches seem unassailable . . . Defendant was

not guilty. He did not mail nor send to a juvenile, he

did not coerce an unwilling individual, nor did he

‘pander’.” 315 F. Supp. at 473.

On August 21, 1970, a decision was rendered by Dis-

trict Judge Larson, a United States District Judge for

the District of Minnesota, in a case entitled Sexual

Freedom in Denmark, et al. v. Vavreck, et al., No. 4-70-

Civil 273, unreported. A copy of the opinion is attached

hereto as Appendix A, and a copy of the order based

upon said opinion is attached hereto as Appendix B.

In granting an order enjoining officials from repeated

seizures of the film, the court held that obscenity must

now be deemed to be within the protection of the

First Amendment, in the light of Stanley. The court

ee

=e

stated: “It would be absurd to make legal the posses-

sion of materials which could only be purchased illegal-

ly . .. The Supreme Court decision in Stanley raises the

distinct possibility that distribution of obscene matter

may be protected by the First Amendment to the Con-

stitution of the United States. Although the com-

munity has obvious and legitimate interests, it appears

that they can be well and adequately protected without

a complete prohibition on exhibition.”

On October 28, 1970, District Judge Gordon, a

Judge of the United States District Court for the East-

ern District of Wisconsin, in a case entitled United

States v. Orito, No. 70-Cr.-20, unreported, granted a

motion to dismiss an indictment brought under Title

18 U.S.C. §1462 on the ground that the statute was

overbroad and violated the First and Ninth Amend-

ments. A copy of the opinion is attached hereto as

Appendix C. The court decided that under Stanley

and Redrup the statute was unconstitutional because it

proscribed “all transportation of obscene materials

without discriminating as to whether such materials are

‘pandered’, exposed to children or imposed on un-

willing adults.”

On November 19, 1970, District Judge Goodwin,

speaking for a unanimous three-judge court in a case en-

titled Hayse, et al. v. Hoomissen, et. al., Civ. No. 69-743

(D.C. Ore.), unreported, held that the state obscenity

statute was overbroad and offended the constitutional

guarantees under Stanley. A copy of the opinion and

judgment is attached hereto as Appendix D. “The

Stanley decision adopts for obscenity the traditional

balancing-of-interests approach familiar to the free-

speech cases . . . The circumstances in which obscen-

ity is distributed and circulated now determine wheth-

a

: —31—

er it is protected or unprotected by the First Amend-

ment.”

On November 24, 1970, District Judge Doyle, a

Judge of the District Court for the Western District of

Wisconsin, in a case entitled United States v. B & H

Dist. Corp., et al., 70-Cr.-67, unreported, held that an

indictment brought under Title 18 U.S.C. §1462 must

be dismissed upon the ground that the statute was

overbroad under the First Amendment, in the light of

Stanley. A copy of the opinion is attached hereto as

Appendix E. The district court stated: “Recognizing

that the First Amendment protects the individual’s right

to receive obscene materials for such uses, I believe

that the dissemination of obscene matter through inter-

state transportation, in a manner which itself neither

exposes children to obscenity nor assaults the sensi-

bility of an unwilling adult public, cannot be less pro-

tected. The government cannot indirectly prevent an

individual from receiving obscene matter for permis-

sible uses by making it a crime to disseminate or trans-

port the materials to him.”

5. It is submitted that the import of the decisions

in Redrup, Stanley and Rowan is that an adult indi-

vidual’s right to receive materials of his own choice

may only be abridged when there is a compelling and

necessary interest which the State has a right to pro-

tect. The Roth ruling remains viable with respect to

obtrusive forcing upon unwilling adults and with re-

spect to minors as in Ginsberg. The attempt of the

government to urge that there may be a “legitimate

interest in the morality of the public at large” (Byrne

v. Karalexis Amicus Brief, p. 17), ignores the fact that

an attempt to establish an official moral orthodoxy is

incompatible with the Constitution. “If there is any

ere rem Tere

CN ee 6 es Oe se oo

wide

fixed star in our constitutional constellation, it is that

no official, high or petty, can prescribe what shall

be orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by word

or act their faith therein.” West Virginia State Board

of Education v. Barnette, 319 U.S. 624, 642.

In this connection it should be noted that even in the

area of conduct, as distinguished from expression,

there have been changing concepts with respect to sex-

ual practices not involving force, adult corruption of

minors or public affront. It has been urged, in the light

of changing social and cultural standards dealing with

sex, that no harm to the secular interests of the com-

munity is involved in atypical sex practice in private

between consenting adult partners. American Law In-

stitute, Model Penal Code, Tentative Draft No. 4

(1955), pp. 276-291. The premise underlying this po-

sition is that it is not a proper function of the criminal

law to regulate private morality. Israel, “The Process

of Penal Law Reform—A Look at the Proposed Michi-

gan Reyised Criminal Code”, in 14 Wayne L. Rev.

722, 948-957 (1968). See also, Ill. Ann. Stat. ch. 38,

Sections 11-1 to 11-20 (Smith-Hurd 1964); Note, “The

Proposed Law of New York”, 64 Colum. L.Rev. 1469,

1545 (1964).

Many courts have rejected the notion that the en-

forcement of morality without demonstrable individual

harm, at the expense of liberty, is worth the price. It

has been suggested that punitive measures under such

circumstances may constitute crue] and unusual pun-

ishment, in violation of the prohibitions of the Eighth

Amendment. The right to “liberty” in matters related

to marriage, family and sex has been frequently ac-

knowledged. See Griswold v. Connecticut, 381 US.

eiiien

479; Loving v. Virginia, 388 U.S. 1; Norton v. Macy,

417 F.2d 1161 (D.C. Cir. 1969); People v. Belous,

71 A.C. 996, 458 P. 2d 194, 80 Cal. Rptr. 354

(1969); Morrison v. State Board of Education, 1

Cal. 3d 214, 461 P. 2d 375, 2 Cal. Rptr. 175 (1969).°

Moreover, the attempt by appellant to muster a

legitimate countervailing state interest to justify prohi-

bitions on dissemination of obscene materials to willing

adults is undermined by the Report of the Commission

on Obscenity and Pornography which was submitted

in September, 1970, after an extensive and detailed

investigation of two years. Some of the conclusions

drawn by the Commission are as follows: (1) “Exten-

sive empirical investigation, both by the Commission

and by the others, provides no evidence that exposure

to or use of explicit sexual materials play a significant

role in the causation of social or individual harms

such as crime, delinquency, sexual or nonsexual devi-

ancy or severe emotional disturbances”; (2) “On the

positive side, explicit sexual materials are sought as a

source of entertainment and information by substantial

numbers of American adults. At times, these materials

also appear to serve to increase and facilitate construc-

*“The concern about the effect of obscenity upon morality is

also expressed as a concern about the impact of sexual materials

LOE PS RE ak AT He A oer sae —7

niin

tive communication about sexual matters within mar-

riage”; (3) “Society’s attempts to legislate for adults in

the area of obscenity have not been successful. Present

laws prohibiting the consensual sale or distribution of

explicit sexual materials to adults are extremely unsat-

isfactory in their practical application”; (4) “Public

opinion in America does not support the imposition of

legal prohibitions upon the right of adults to read or

see explicit sexual materials. While a minority of

Americans favors such prohibitions, a majority of the

American people presently are of the view that adults

should be legally able to read or see explicit sexual

materials if they wish to do so”;(5) “The lack of

consensus among Americans concerning whether ex-

plicit sexual materials should be available to adults in

our society, and the significant number of adults who

wish to have access to such materials, pose serious

problems regarding the enforcement of legal prohibi-

tions upon adults, even aside from the vagueness and

subjectivity of present law.”; (6) “The foregoing con-

siderations take on added significance because of the

fact that adult obscenity laws deal in the realm of

speech and communication. Americans deeply value

the right of each individual to determine for himself

what books he wishes to read and what pictures or

films he wishes to see”; (7) “The Commission care-

fully considered the view that adult legislation should

be retained in order to aid in the protection of young

persons from exposure to explicit sexual materials. We

do not believe that the objective of protecting youth

may justifiably be achieved at the expense of denying

adults materials of their choice. It seems to us wholly

inappropriate to adjust the level of adult communica-

tion to that considered suitable for children”; (8)

niin

“There is no reason to suppose that elimination of gov-

ernmental prohibitions upon the sexual materials which

may be made available to adults would adversely affect

the availability to the public of other books, maga-

zines, and films. At the present time, a large range of

very explicit textual and pictorial materials are avail-

- able to adults without legal restrictions in many areas

of the country”; (9) “The Commission is of the view

that it is exceedingly unwise for government to attempt

to legislate individual moral values and standards in-

dependent of behavior, especially by restrictions upon

consensual communication. This is certainly true in

the absence of a clear public mandate to do so, and

our studies have revealed no such mandate in the

area of obscenity”.

Finally, Congress has in recent legislation made pro-

visions for the protection of legitimate federal interests

and has specifically emphasized that adult citizens have

the exclusive right to determine for themselves what

they will or will not receive by way of explicit sexual

materials. The congressional policy was noted by this

Court in Rowan. The Postal Reorganization Act

(Public Law 91-375, 84 Stat. 719) which revised Title

39 of the United States Code was approved August 12,

1970. Former 39 U.S.C. 4009 has been renumbered

39 U.S.C. 3008. This statute empowers the Post Of-

fice Department to assist postal patrons who do not

wish to receive “pandering advertisements”. An ad-

dressee may send a notice to that effect to the Post-

master General who issues a prohibitory order to the

sender. Upon request of any addressee the prohibitory

order of the Postmaster General must include the names

of any of the addressee’s minor children who are under

the age of 19. A violation of the prohibitory order

may result in injunctive and contempt proceedings.

A hn a sy

iainaies —

alts

Under the Postal Reorganization Act there now are

additional provisions. 39 U.S.C. 3010-3011. These

new provisions make it unnecessary for a postal pa-

tron to receive one mailing before invoking the Act,

and under the new law all mailers will be prevented

from sending unsolicited mail to an objecting recipient,

whether or not a prohibitory order was previously re-

ceived. In short, any person on his own behalf or on

the behalf of any of his children who has not attained

the age of 19 years and who resides with him, may

file with the postal service a statement that he desires to

receive no sexually oriented advertisements through the

mail. The postal service will maintain a list and make

it available. No person can mail to any individual

whose name and address has been on the list for more

than 30 days. Injunctive and contempt proceedings

are provided for violations. The Postal Reorganization

Act by the provisions of Sections 1735-1737 imposes

criminal sanctions for violations of 39 U.S.C. 3008 or

3010.

6. In the light of all of the foregoing, it is sub-

mitted that the mere distribution of allegedly obscene

books to willing adult recipients, without intent to dis-

tribute the material to minors or to distribute the ma-

terial in such a manner as to intrude upon the sen-

sibilities or privacy of the general public, is not con-

stitutionally punishable. The District Court below was

correct, it is submitted, in holding in effect that if the

federal statute is construed more broadly the statute

would violate the free speech and press and due proc-

ess provisions of the First Amendment. In accordance

with basic principles of statutory interpretation, the

District Court construed the statute to avoid uncon-

stitutionality by limiting the reach of the statute to only

=

—

those cases where dissemination is intended for minors,

or intended to intrude upon the sensibilities or privacy

of the general public unwilling to receive such material.

The indictment was dismissed by the District Court be-

cause it failed to allege the essential elements of the

only offense which the statute could constitutionally

reach. In the light of the government's stipulation dis-

missal was required under the Constitution and Red-

rup, Stanley and Rowan. See also Russell v. United

States, 369 U.S. 749; United States v. Robel, 389 US.

258.

Conclusion.

For the foregoing reasons the judgment of the Dis-

trict Court should be affirmed.

Respectfully submitted,

STANLEY FLEISHMAN,

Attorney for Appellee.

SAM ROSENWEIN,

Of Counsel.

APPENDIX A.

Opinion of District Judge Larson.

Memorandum.

United States District Court, District of Minnesota,

Fourth Division.

Sexual Freedom in Denmark (Dansk Sexualitet), a

Motion Picture Film; Art Films International, Inc., a

California Corporation; Michael Kubick, Grace Cono-

way, and Patrick Phillippe, Plaintiffs, vs. Edward Vav-

reck, individually and in his capacity as Assistant

City Attorney for the City of Minneapolis; Keith M.

Stidd, individually and in his capacity as City Attorney

for the City of Minneapolis; Basil Lutz, individually,

and in his capacity as Chief of Police of the City of

Minneapolis; Jon Prentice, individually and in his ca-

pacity as Supervisor of the Morals Squad of the City

of Minneapolis Police Department; and Donald Omodt,

individually, and in his capacity as Sheriff of Hennepin

County, Defendants. No. 4-70-Civil 273.

Filed Aug. 24, 1970.

Frank A. Massey, Clerk.

By Eleanor Mollner

Deputy

On June 19, 1970, Edward C. Vavreck of the City

Attorney’s office obtained from the Honorable Donald

S. Burris, Judge of Hennepin County Municipal Court,

an Order to appear and show cause why the film

Sexual Freedom in Denmark should not be shown. Pur-

suant to that Order a hearing was held on June 24

and 25, 1970, before the Honorable A. Paul Lommen,

at which. time the motion picture and the City were

both represented by counsel. Pursuant to an Order is-

se

— wn

sued by Judge Lommen at the conclusion of the hearing

the Minneapolis Police Department obtained a search

warrant for purposes of seizing a copy of the film.

The warrant was dated June 29, 1970.

A copy of the film was surrendered to the Clerk of

Hennepin County Municipal Court on July 1, 1970.

Nevertheless, on July 2, the Minneapolis Police De-

partment entered the premises at which the plaintiff

film was being shown and seized a second copy of the

film, using the warrant as authorization. On July 6

Judge Lommen ordered the return of the second copy

of the film.

Defendants maintain that they have acted pursuant

to a Minneapolis ordinance dealing with obscenity.

The injunction does not interfere with any statewide

scheme of enforcement.

On July 27, 1970, the plaintiffs brought before the

Court a motion seeking a preliminary injunction as

follows:

I.

Directing defendants to return to plaintiffs the first

copy of Sexual Freedom in Denmark seized July 1,

1970, at the Empress Theatre, 412 West Broadway,

Minneapolis, Minnesota. (This refers to the copy vol-

untarily surrendered to the Clerk of Hennepin County

Municipal Court. )

Il.

Directing defendants to return to plaintiffs the sec-

ond copy of Sexual Freedom in Denmark, seized July

2, 1970, at the Empress Theatre.

Ii.

Enjoining the defendants from seizing or threatening

to seize the plaintiff film Sexual Freedom in Denmark.

ea

-

=

IV.

Enjoining the defendants, and each of them, their

assistants, agents, successors, and all persons acting in

concert with them or under their direction from dis-

posing of, transferring or making any use of the film

Sexual Freedom in Denmark or any derivative evidence

received therefrom until a final determination is made

by this Court.

V.

Enjoining the defendants, and each of them, their

assistants, agents, successors, and all persons acting in

concert with them or under their direction from arresting

or threatening to arrest plaintiffs or any person con-

nected with the exhibition or distribution of plaintiff

film Sexual Freedom in Denmark until a final de-

termination is made by this Court.

VI.

Enjoining the defendants, and each of them, their

assistants, agents, successors, and all persons acting in

concert with them or under their direction from tres-

passing on the premises where the film is being shown

or from making any use of derivative evidence derived

therefrom until a final determination is made by this

Court.

INJUNCTIVE RELIEF

Criminal proceedings have been commenced in Hen-

nepin County Municipal Court which may ultimately

result in a determination of the obscenity of the plain

tiff film. The “comity” doctrine generally proscribes

interference by the Federal Courts with State Court

criminal proceedings. However, where there is a prob-

ability that First Amendment constitutional rights have

been or are being violated, exceptions are made to the

—4—

“comity” doctrine because of the preferred position of

First Amendment guarantees. It has been clearly estab-

lished that movies are a form of expression protected

by the First Amendment and hence the distribution of

movies is correlatively protected by the First Amend-

ment.

Until recently it had been believed that Roth v.

United States, 354 U.S. 476 (1957), placed obscene

materials outside the protection of the First Amend-

ment. Thus, there was no protection for expression

which was manifested in any form of pornography.

Under such a doctrine, the disposition of the case be-

fore this Court would have turned on the issue of ob-

scenity.

The existence of First Amendment rights to be pro-

tected in a case such as the one before the Court would

hinge upon whether or not the movie was obscene as a

matter of law. Thus the Court in evaluating the likeli-

hood that First Amendment rights were being violated

would have to consider the likelihood that the film’s

content was obscene. The higher the probability of ob-

scenity the less likely and immediate the probability

that there are any First Amendment rights to be pro-

tected.

This inverse relationship also affects the precondi-

tions to injunctive relief. Whatever irreparable injury

or loss plaintiffs sustain arises largely out of the viola-

tion of their First Amendment rights. Thus under the

Roth formulation the greater the likelihood of obscen-

ity the less likely the violation of First Amendment

rights and correspondingly the less immediate the likeli-

hood of irreparable injury or loss to the plaintiffs.

Counterposed against these uncertain interests of the

plaintiffs would be the community interest in prevent-

—5—

ing what might be continuing criminal activity and its

desire to prevent the exposure of its citizens to obscene

movies. Again the existence and immediacy of the in-

terest would hinge largely upon the probability of ob-

scenity.

It is apparent from the foregoing that the relative

weights of all these interests would be determined by

the probability that the movie was indeed pronographic.

The more likely it was that the movie was obscene,

the greater the probability that the community was ex-

ercising a legitimate interest. Correspondingly, the

likelihood that any First Amendment rights were being

violated became less immediate. The possibility of ir-

reparable injury and loss flowing from the violation of

a First Amendment right would diminish in proportion

to the immediacy of the right violation.

In such a situation a determination, after an adver-

sary hearing, that there was a sufficient likelihood of

obscenity to support a search warrant would be of

substantial importance in determining the weight to be

given the factors considered in the judicial balancing

process.

This state of affairs was abruptly changed by the

United States Supreme Court in Stanley v. Georgia, 394

U.S. 557 (1969). The police while conducting a search

for bookmaking equipment came across some “stag”

films in a dresser drawer. Upon determining that Mr.

Stanley occupied the room in which the films were lo-

cated, they promptly charged him with possession of

obscene movies. The Supreme Court reversed the con-

viction, ruling that Stanley’s right to possession of the

movies was protected by the First Amendment regard-

less of whether the movies were obscene or not. Thus

sat

a

the contention that pornography is completely outside

the protection of the First Amendment is no longer

tenable.

The effect upon the instant case is a substantial

one, for the question is no longer the likelihood ‘that

the plaintiff motion picture is obscene. The likelihood

of a First Amendment right being violated is no longer

geared to the probability of obscenity, nor is the im-

mediacy of the State interest or the relationship be-

tween the two competing interests.

This Court, rather than being faced with an uncer-

tain First Amendment right, the existence of which is

to be determined by the outcome of the obscenity liti-

gation, is presented with a First Amendment right

which is in no way affected by the eventual outcome

of the litigation. Under the former state of affairs it

was possible to reason that if the existence of injury

to plaintiffs arising out of the deprivation of First

Amendment rights turns upon the absence of obscen-

ity, and there is to the contrary a substantial chance

that the material is indeed obscene, then it is justifi-

able to defer to the State interest which by definition

would be more immediate and likely to be legitimate.

After Stanley, however, such reasoning is completely

inapposite. The existence of First Amendment protec-

tion is not solely dependent upon the issue of obscenity

nor does the balance between the plaintiffs’ and de-

fendants’ interest hinge upon the issue of obscenity.

Thus it is not necessary for this Court to face the

issue of obscenity. For purposes of the following dis-

cussion we shall assume without deciding that Sexual

Freedom in Denmark is in fact obscene. The ques-

tion is now, what is the likelihood that distribution: of

Sexual Freedom in Denmark is protected after Stanley.

ow tan

Since the Supreme Court has extended constitution-

al protection to possession of pornography, one would

be naive to assume that distribution would not be like-

wise protected at least to a limited extent; a right to

possession implies a correlative right to receive. It would

be absurd to make legal the possession of materials

which could only be purchased illegally. The question

therefore is not whether but to what extent is distribu-

tion to be protected.

It is clear that at a bare minimum a private sale be-

tween two parties would have to be permitted. How-

ever, an examination of the realities surrounding the

production and distribution of any product compels us

to realize the fact that if each private sale is traced

back in time that there will be an ultimate retail ven-

dor. To permit private sales but to make unlawful the

original sale at a retail outlet would again raise the

absured inconsistence previously alluded to.

There is an added consideration when dealing with

distribution of movies that does not arise in the con-

text of books and still pictures. It takes special and

relatively expensive equipment to view a motion pic-

ture. As a result the cost of equipment, coupled with

the expense of moving pictures relative to the cost of

books and still pictures, places access to motion pic-

tures beyond the means of many. Naturally, entrepre-

neurial types seized upon this disability. They conveni-

ently provided to their customers at a greater than

usual charge a projector and screen as well as a place

to sit and an opportunity to purchase refreshments to

enhance viewing enjoyment. Thus we are one step be-

yond mere sale of a movie; there is now sale plus

exhibition.

a

alibi

It is tempting for this Court to dispose of the case

on these grounds. A closer analysis, however, creates

the realization that this is not possible. Substantively

the exhibition of a motion picture is no different than

the sale of a book or still pictures. The fact that one

needs a projector to view a movie is merely a disability

peculiar to moving pictures which is not experienced

by books and still pictures. A book on display can be

picked up in the store, thumbed through, perused, etc.

It is the same case for pictures. This is not true for

moving pictures. The exhibition of movies for a fee sim-

ply makes movies as accessible as books.

I think most persons will concede that whatever evil

flows from the exhibition of a pornographic movie flows

equally from the sale of a pornographic book. It is no

more difficult to control access to a movie theater than

it is to a bookstore, nor to contro] the advertising tech-

niques of one than the other or to whom each one dis-

tributes its respective product. Thus it appears that the

exhibition of a movie is no more (nor less) onerous

than the sale of magazines or pictures.

Until this time reference has been made almost solely

to the First Amendment rights of those who distribute

or desire to view a motion picture such as Sexual Free-

dom in Denmark. There are community interests which

have to be considered also, which include the right of a

State or municipality to exercise its police power and

the rights of those citizens who do not want to be ex-

posed to pornographic material.

The City of Minneapolis certainly has an interest in

regulating the distribution of pornographic materials.

Three bases have traditionally been advanced to sup-

port this interest: the assertion that exposure to such

|

adiifinns

materials causes sexually deviant behavior or crimes of

sexual violence, the fear that such materials might fall

into the hands of minors, and the protection of that

majority segment of the community which has no de-

sire to be exposed to such materials.

The Supreme Court in Stanley indicated that there

was no empirical basis for the assertion that exposure

to pornography resulted in deviant behavior and that

“Given the present state of knowledge, the state may

no more prohibit mere possession of obscene matter on

the ground that it may lead to antisocial conduct than

it may prohibit possession of chemistry books on the

ground that they may lead to the manufacture of home-

made spirits.” 394 U.S. at 567. ;

Since Stanley was decided, a Government study has

revealed that the empirical evidence available tends to

refute any relationship between antisocial behavior and

pornography.

The Court in Stanley was concededly directing itself

to mere possession and felt that the right of the indi-

vidual to possess and view in priyacy the films out-

weighed the right of the State to outlaw mere posses-

sion. In light of this, an argument can be made that

while the possible danger of pornography causing de-

viant behavior did not outweigh the right to mere pos-

session, it does outweigh any correlative right to distri-

bution. However, in light of the relationship of distri-

bution to possession and the empirical evidence which

has become available, this Court feels obligated to re-

ject a contention such as this. The other two considera-

tions appear to be valid and very real ones. However,

they can be sufficiently protected without a total pro-

hibition on distribution.

MEN SA EY EA ASTIN A LIAO ACR Re, Veta RANA APL ANB NS A pa A Bo, pA 0 Rh GAOT cH AIO eb HR aD

onlin:

Children can be insulated from the movie in much

the same manner as they are from books and photo-

graphs. Criminal penalties can be imposed on the exhibi-

tor if he permits children on the premises or exhibits

films to them, just as is done with books or photo-

graphs or, for that matter, intoxicating beverages. Like-

wise, to protect the unwilling viewer, limitations can be

placed upon the places at which the film may be ex-

hibited or the manner in which it may be promoted. Ob-

viously it would be appropriate to make impermissible

the showing of the film at*a drive-in movie. Restrictions

on the mode of advertising or a prohibition against

pandering, such as was present in Ginsberg v. New

York, 390 U.S. 629 (1968), should similarly discourage

offensive exploitation of the film contents. These latter

restrictions would also satisfactorily protect the privacy

of the members of the community who have no desire

to be exposed to such matter.

CONCLUSION

The Supreme Court decision in Stanley raises the

distinct possibility that distribution of obscene matter

may be protected by the First Amendment of the Con-

stitution of the United States. Although the community

has obvious and legitimate interests, it appears that

they can be well and adequately protected without a

complete prohibition on exhibition. Hence the Court

feels compelled in the light of these factors to strike

the balance in favor of the First Amendment right to

protect that right by appropriate injunctive relief.

Obviously when there is a judicial determination of

the extent to which the Stanley doctrine protects dis-

tribution of matter such as this, at least insofar as

Minnesota is concerned, such findings may compel the

Pe Prey ry —

os Bis Fa ba LANES SPROUL Ye MLPA MN Bay —_—

| ee,

—

dissolution of all or part of the injunctive relief granted

by this Court or may render further injunctive relief un-

necessary. In that case or in the event that any other

relevant factors come to light, it goes without saying

that a petition can be made to this Court for appro-

priate modification of the Order.

There is presently a criminal action arising out of

the exhibition of Sexual Freedom in Denmark pending

in Hennepin County Municipal Court. In order to ef-

fectively prosecute this action the City Attorney needs

a copy of the film Sexual Freedom in Denmark for

evidentiary purposes. Although this Court feels com-

pelled to protect the constitutional rights of plaintiffs,

it does not feel at all required to interfere with existing

criminal proceedings. Therefore parts I and IV of the

plaintiffs’ motion are denied and the copy of the film

originally surrendered by the plaintiffs will remain in

possession of the Clerk of Court for use by the City

in its criminal prosecution which is set for trial on Au-

gust 31, 1970.

The previously referred to Order of the Honorable

A. Paul Lommen compelling return of the second film

seized renders part II of the plaintiffs’ motion moot.

Parts III, V, and VI of the plaintiffs’ motion request

relief from the type of activity which would interfere

with their First Amendment rights, and will therefore

be granted. However, they will be subject to limitations

reasonably calculated to insure that the City of Min-

neapolis will be able effectively to protect the legitimate

interests of its citizens. Thus, in the event that plaintiffs

cause or permit the motion picture Sexual Freedom in

Denmark to be exhibited to persons under the age of

twenty-one, exhibit or distribute the motion picture in

such a manner as to intrude upon individual privacy

— 58 NERVE NAME POT AM YN PNA TP NF aR

wor SOW AE LTE I ORO BNL ER OA IO. a

or make it impossible for an unwilling individual to

avoid exposure to it, or pander or exploit it in such a

manner prohibited by the Ginsberg case, then the City

of Minneapolis will be able to take steps necessary to

prevent any further activity of such a nature.

A separate Order is entered.

August 21, 1970.

Earl R. Larson

United States District Judge

—13—

APPENDIX B.

Order of District Judge Larson.

Order Granting Motion for a Preliminary Injunction.

United States District Court, District of Minnesota,

Fourth Division.

Sexual Freedom in Denmark (Dansk Sexualitet), a

Motion Picture Film; Art Films International, Inc., a

California Corporation; Michael Kubick, Grace Cono-

way, and Patrick Phillipe, Plaintiffs, vs. Edward Vav-

reck, individually, and in his capacity as Assistant

City Attorney for the City of Minneapolis; Keith M.

Stidd, individually and in his capacity as City At-

torney for the City of Minneapolis; Basil Lutz, in-

dividually, and in his capacity as Chief of Police of the

City of Minneapolis; Jon Prentice, individually, and

in his capacity as Supervisor of the Morals Squad of

the City of Minneapolis Police Department; and Don-

ald Omdt, individually, and in his capacity as Sheriff

of Hennepin County, Defendants. No. 4-70-Civ. 273.

Filed Aug. 24, 1970.

This matter came before the Court on a motion for

preliminary or temporary injunction.

The Court has considered the motion and the argu-

ments and briefs of counsel.

On all the files and proceedings herein, including the

separate Memorandum filed herewith,

IT IS ORDERED:

That defendants, and each of them, their assistants,

agents, successors and all persons acting in concert with

them or under their direction, are enjoined:

A. (1) from further seizures or attempted seizures

of the film Sexual Freedom in Denmark.

: -_ es

(2) from arresting or threatening to arrest

any person connected with the exhibi-

tion or distribution of the film Sexual

Freedom in Denmark for any actions

arising out of the exhibition or distribu-

tion of said film,

B. unless or until

(1) plaintiffs cause or permit the film to be

exhibited, distributed or otherwise ex-

posed to persons under 21 years of

age, or

(2) plaintiffs exhibit or distribute the film

in such a manner as to intrude upon |

individual privacy or make it impos- |

sible for an unwilling individual to

avoid exposure to it, or

(3) pander or exploit the film in an of- |

fensive manner. |

C. (1) from trespassing on the premises where the

film is being exhibited

(2) unless the presence of defendants on

said premises is pursuant to a duly ex-

ecuted warrant. This provision shall

not be construed to authorize actions

enjoined by A.(1) and (2) above ex-

cept where one of the conditions of B.

(1) or (2) or (3) above has been met.

August 21, 1970.

/s/ Earl R. Larson

United States District Judge

|

Separate Memorandum Filed. |

—] 5——

APPENDIX C.

Opinion of District Judge Gordon.

Decision and Order.

United States District Court, Eastern District of Wis-

consin.

United States of America, Plaintiff, v. George Joseph

Orito, Defendant. No. 70-CR-20.

Filed: Oct. 28, 1970.

Two motions to dismiss the indictment are now be-

fore the court. In both motions, the defendant con-

tends that 18 U.S.C. § 1462 is unconstitutional. One

motion is based on the absence of any provision in the

statute requiring proof of scienter; the other is based

on the defendant’s contention the statute is over-

broad and violates the first and ninth amendments in

imposing criminal sanctions for the interstate trans-

portation of obscene material which may be designed

for personal use.

The defendant was charged in a one-count indict-

ment which alleges that he knowingly transported in in-

terstate commerce, by means of a common carrier, cer- ;

tain “copies of obscene, lewd, lascivious, and filthy ma- :

terials”.

The court must decide whether Stanley v. Georgia, :

394 U.S. 537 (1969) and Redrup v. New York, 386

U.S. 767 (1967) render § 1462 unconstitutional be-

cause such section proscribes all transportation of ob-

scene materials without discriminating as to whether

such materials are “pandered”, exposed to children or

imposed on unwilling adults.

The defendant urges that under Stanley the trans-

portation and receipt of obscene matter for private use

— es

is constitutionally protected, and that only certain types

of public distribution of obscene matter, as described in

Redrup, may be subjected to governmental control. The

United States, on the other hand, urges that Stanley

did not purport to modify Roth v. United States, 354

U.S. 476 (1957) and that, on its limited facts, Stanley

permits an individual to possess obscene materials in

his own home, but it does not grant one a protected

right to transport or receive such materials.

In its per curiam opinion in Redrup v. New York,

386 U.S. 767 (1967), the court observed that in none

of the cases which were then before the court “. . . was

there any suggestion of an assault upon individual pri-

vacy by publication in a manner so obtrusive as to

make it impossible for an unwilling individual to

avoid exposure to it.” (p. 769).

Two courts of appeal have decided cases which tend

to support the government’s position. In United States

v. Melvin, 419 F.2d 136 (4th Cir. 1969), the court

concluded that notwithstanding Stanley, “Congress has

the power to forbid interstate transportation of ob-

scenity.” (p. 139). Also, in United States v. Fragus,

428 F.2d 1211 (Sth Cir. 1970), the court rejected a

proposed expansion of Stanley.

A three-judge court convened in the northern district

of Georgia decided “to keep Stanley limited to its facts”.

Gable v. Jenkins, 309 F. Supp. 998, 1000 (N.D. Ga.

1969). This case was summarily affirmed at 397

U.S. 592 (1970).

There are a number of cases in which the rationale

of Stanley has been construed more broadly than the

three decisions referred to immediately above. Thus, in

Stein v. Batchelor, 300 F. Supp. 602 (N.D. Tex. 1969),

wiles

probable jurisdiction noted sub nom., Dyson v. Stein,

396 U.S. 954 (1969), restored to calendar for reargu-

ment, 399 U.S. 922 (1970), a three-judge court as-

serted that it was “impossible” for the court to ignore

the broader implications of the opinion which appears

to reject or significantly modify the proposition stated

in Roth v. United States .. .” The court went on to

say (p. 606):

“Stanley expressly holds that obscenity is pro-

tected in the context of mere private possession

and in our opinion further suggests that obscenity

is deprived of this protection only in the context of

‘public action taken or intended to be taken with

respect to obscene matter’.”

The court in Stein concluded that the Texas obscen-

ity statute “as a whole is overbroad in that it fails to

confine its application to a context of public or com-

mercial dissemination.” (p. 607).

Another court which considered the impact of Stan-

ley is Karalexis v. Byrne, 306 F. Supp. 1363 (D. Mass.

1969), probable jurisdiction noted, 397 U.S. 985

(1970), restored to calendar for reargument 399 US.

922 (1970). In that case, a three-judge district court

reviewed an obscenity statute which prohibited im-

porting, printing, distributing or possessing obscene

matter. The court expressed its conclusion “that pub-

lic distribution differed from private consumption” and

that this distinction also applied to transportation. The

court said, at p. 1366:

“.. . We think it probable that Roth remains in-

tact only with respect to public distribution in the

full sense, and that restricted distribution, ade-

quately controlled, is no longer to be condemned.”

ae eee

2 : On aE 7 ete eh 4

CR RTH

Le DUPRE I eS ENTER MR te REE

—

Another recent decision in which the court dismissed

counts charging the transportation of obscene material

is United States v. Lethe, 312 F. Supp. 421 (E.D. Cal.

1970). There the court pointed to the absence of any

legitimate governmental interest to justify regulation.

Said the court (p. 425):

“The Supreme Court has recognized the protec-

tion of children and the protection of an unwill-

ing public from obtrusive invasions of privacy as

proper governmental interest justifying obscenity

laws. But neither of these can be used to justify

prohibiting mailings to a requesting adult. There

is no public display, and children are not in-

volved. No valid governmental interest remains,

and the conclusion is inescapable that the govern-

ment cannot constitutionally bring such a prosecu-

tion.”

Another case in which a three-judge district court de-

termined the breadth of Stanley is United States v.

Thirty-Seven (37) Photographs, 309 F. Supp. 36 (C.D.

Calif. 1970). The United States Supreme Court has

recently accepted this case for review. See 39 L.W.

3131. In Thirty-Seven (37) Photographs, the court in-

validated 18 U.S.C. § 1305, stating (p. 37):

“It prohibits an adult from importing an ob-

scene book or picture for private reading or view-

ing, an activity which is constitutionally protected.

As stated in Stanley, the right to read necessarily

protects the right to receive.”

In Lethe, cited above, the court discussed the re-

lationship of the right to possess and the right to receive

in these terms (p. 424):

“If the government has no substantial interest

in preventing a citizen from reading books and

=—s

watching films in the privacy of his home, then

clearly it can have no greater interest in prevent-

ing him from acquiring them.”

In Griswold v. Connecticut, 381 U.S. 479 (1965),

the court noted that since married couples have the right

to use contraceptive devices, such right would be mean-

ingless if a state could lawfully block such persons from

receiving contraceptive devices and instruction. By

analogy, it follows that with the right to read obscene

matters comes the right to transport or to receive such

material when done in a fashion that does not pander

it or impose it upon unwilling adults or upon minors.

Although this opinion has concerned itself primarily

with Stanley and Redrup and the cases subsequent

thereto which have attempted to apply those decisions,

there are a number of other decisions which adopt an

obtrusiveness approach. For example, as far back as

the year 1948, in Winters v. New York, 333 US.

507, 515 (1948), the court spoke of “gross and open

indecency or obscenity”. The pandering theory, adopt-

ed in Ginzburg v. United States, 383 U.S. 463

(1966), would appear to be bottomed on the concept

that brazen and public promotion of prurient material

deprives it of its first amendment protection. In a dis-

senting opinion in Ginzburg, Justice Stewart spoke of

(p. 498, Note 1): |

“. . » an assault upon individual privacy by pub-

lication in a manner so blatant or obtrusive as to

make it difficult or impossible for an unwilling in-

dividual to avoid exposure to it.”

I am unable to accept the narrow interpretation of

Stanley which the government would ascribe to it. I

find more reasonable and impressive the analysis and

—20—

interpretation adopted by the courts in Stein v. Batch-

elor, Karalexis v. Byrne, United States v. Lethe, and

United States v. Thirty-Seven (37) Photographs. 1 find

no meaningful distinction between the private posses-

sion which was held to be protected in Stanley and the

non-public transportation which the statute at bar pro-

scribes.

To prevent the pandering of obscene materials or its

exposure to children or to unwilling adults, the

government has a substantial and valid interest to bar

the non-private transportation of such materials. How-

ever, the statute which is now before the court does

not so delimit the government’s prerogatives; on its face,

it forbids the transportation of obscene materials. Thus,

it applies to non-public transportation in the absence of

a special governmental interest. The statute is thus

overbroad, in violation of the first and ninth amend-

ments, and is therefore unconstitutional.

In view of the court’s conclusion as stated above,

the question whether scienter is an essential element of

the offense need not be determined by the court.

Now, therefore, IT IS ORDERED that the defend-

ant’s motion to dismiss the indictment on the ground

that 18 U.S.C. § 1462 is unconstitutional for its viola-

tion of the first and ninth amendments of the United

States Constitution be and hereby is granted.

Dated at Milwaukee, Wisconsin, this 28th day of Oc-

tober, 1970.

/s/ Myron L. Gordon

US. District Judge

online

APPENDIX D.

Opinion and Judgment of Three Judge District Court.

In the United States District Court, for the District

of Oregon.

James A. Hayse, John L. Golden, Harold G. Childs

and Fred R. Wunderlich, Plaintiffs, v. George Van

Hoomissen, individually and as District Attorney for

Multnomah County, Oregon; James C. Holzman, in-

dividually and as Director of Public Safety for Mult-

nomah County, Oregon; Norman D. Brown; Donald

I. McNamara, individually and as Chief of Police of

the City of Portland, Oregon; William J. Budrius; Ter-

ry Schrunk, individually, as Mayor of the City of Port-

land, Oregon, and as a member of the Council of the

City of Portland, Oregon; Francis Ivancie, Stanley

Earle, Mark Grayson and Lloyd Anderson, individual-

ly and as Commissioners of the City of Portland, Ore-

gon and members of the Council thereof; and Marian

C. Rushing, individually and as City Attorney of the

City of Portland, Oregon, Defendants. Civ. No. 69-743,

November 19, 1970.

Before: ELY, Circuit J udge, and BELLONI and

GOODWIN, District Judges.

GOODWIN, District Judge:

Plaintiff magazine dealers challenge the constitution-

ality of Oregon’s Obscenity laws and seek injunctive

and other relief under 42 U.S.C. § 1983.

A three-judge court convened under 28 U.S.C.

§ 2281 and 2284. Jurisdiction is vested under 28

U.S.C. §§ 1343(3), 2201, and 2202, and 42 U.S.C.

§§ 1981-1983.

ee |

SAO eR >

——e

Plaintiffs’ wares feature colored photographs of hu-

man reproductive organs and other pictorial and ver-

bal matter dealing extensively with deviant forms of

sexual behavior. The material has little, if any, re-

deeming social value. It appeals primarily to individ-

uals who have an unusual interest in sexual activity.

The material is probably “obscene” under the stand-

ards outlined in Roth v. United States, 354 U.S. 476

(1957); Childs v. Oregon, .... F.2d .... (9th Cir., Aug.

4, 1970).

ORS 167.151 provides as follows:

“(1) No person shall knowingly disseminate ob-

scene matter. A person disseminates obscene mat-

ter if he exhibits, sells, delivers, or provides, or

offers or agrees to exhibit, sell, deliver or provide,

or has in his possession with intent to exhibit, sell,

deliver or provide any obscene writing, picture

*“*#*”

The statute defines obscenity as that material which

has as its predominant theme an appeal to the prurient

interest of the reader or viewer and which is patently

offensive and transgresses the customary limits of can-

dor. The Oregon Supreme Court upheld the statute in

State v. Childs, 252 Or. 91, 447 P.2d 304 (1969),

cert. den. 394 U.S. 931 (1969).

The pretrial order’s agreed statement of facts does

not support the plaintiff's contentions of conspiracy

and official harassment. These contentions and the

prayer for money damages are without merit and will

be disregarded. The constitutionality of the municipal

ordinance will likewise be disregarded in this case, be-

cause the question has been disposed of in Oregon

—

oo

Bookmark Corp. v. Schrunk, Civ. No. 70-294, de-

cided this day.

Plaintiffs in this action do not seek to enjoin a pend-

ing state prosectution. Therefore, the anti-injunction

statute, 28 U.S.C. § 2283, does not apply. Plaintiffs do

seek a permanent injunction against future enforcement

of the state statute as well as a declaration of its uncon-

stitutionality. Because this case involves important First

Amendment rights, and because the highest court in

Oregon has recently upheld the statute, abstention is

inappropriate. Dombroski v. Pfister, 380 U.S. 479

(1965); Zwickler v. Koota, 389 U.S. 241 (1967).

When ORS 167.151 was enacted in 1963, it was

consistent with the most recent pronouncements of the

Supreme Court in the obscenity field, and was intended

to conform to the principles set forth in Roth v. United

States (and Alberts v. California), 354 U.S. 476

(1957). However, the Supreme Court has recently

narrowed the permissible scope of state regulation of

allegedly obscene material. Jacobellis v. Ohio, 378 U.S.

184 (1964); Memoirs v. Massachusetts, 383 U.S. 413

(1966); Redrup v. New York, 386 U.S. 767 (1967);

Stanley v. Georgia, 394 U.S. 557 (1969).

Under these most recent Supreme Court decisions,

a new doctrine of First Amendment protection has

evolved. It is no longer accurate to state categorically

that the First Amendment does not protect obscenity.

It is now necessary to inquire beyond the mere nature

of the published matter, and to look into the govern-

ment’s interest in suppressing it. Stanley v. Georgia,

394 U.S. 557 (1969); United States v. Dellapia, 39

U.S.L.W. 2218 (2d Cir., October 20, 1970); Karalexis

v. Byrne, 306 F. Supp. 1363 (D. Mass. 1969), prob.

PAA RRND ENR SR 8 A 8 IT oy RY RSE: ~ a oa ~——

juris. noted, 397 U.S. 985 (1970); Stein v. Batchelor,

300 F. Supp. 602 (N.D. Tex.), prob. juris. noted, 396

U.S. 954 (1969).

The nature of a legitimate state interest in proscrib-

ing obscenity has been described by the Supreme

Court in dictum in Redrup v. New York, 386 U.S.

767 (1967). The government may properly seek to

prevent the exploitation of juveniles, and to prevent an

“assault upon individual privacy” by “obstrusive”

publication or “pandering.” 386 U.S. at 769. The fact

that a given publication is “obscene,” or that it offends

either the elected or self-appointed guardians of the

public morality, no longer justifies suppression by the

government. Before objectionable matter can be consti-

tutionally suppressed, it must be pandered, obtrusively

advertised, or be placed in an environment in which it

is likely to fall into the hands of children.

In Stanley v. Georgia, the court concluded that the

state has no legitimate interest in controlling what an

adult reads in the privacy of his own home. 394 USS.

at 565. The court rejected the state’s contention that

exposure to obscenity in and of itself leads to anti-

social behavior. 394 U.S. at 566-567.

The Stanley decision adopts for obscenity the tradi-

tional balancing-of-interests approach familiar to the

free-speech cases. It also emphasizes that, while certain

aspects of the distribution process may justify state

intervention, the disgusting quality of the material it-

self is not a proper concern of government where only

adults are concerned.

The state argues that the prohibition of possession

of obscene materials is necessary to any statutory scheme

designed to limit offensive distribution. But any merit

vg

Sed ae) “te atten ee 5

PE RR TENE LN HN GS ERTS EN PWM EN —

onlin

this argument had under the line of cases proceeding

from Roth has evaporated after Redrup v. New York,

386 U.S. 767 (1967). The United States Supreme

Court has reversed a dozen state-court convictions Per

Curiam on the basis of the prosecutor’s failure to show

pandering, obstrusive advertising, or the exploitation of

a juvenile market. In each case, the material would

have qualified as obscene under the Roth decision.

Mazes v. Ohio, 388 U.S. 453 (1967); Schackman vy.

California, 388 U.S. 454 (1967); Conner v. City of

Hammond, 389 U.S. 48 (1967); Chance v. California,

389 U.S. 89 (1967); 1.M. Amusement Corp. v. Ohio,

389 U.S. 573 (1968); Robert-Arthur Management

Corp. v. Tennessee, 389 U.S. 578 (1968); Felton vy.

City of Pensacola, 390 U.S. 340 (1968); Henry v.

Louisiana, 392 U.S. 655 (1968); Cain v. Kentucky,

‘397 U.S. 319 (1970); Carlos v. New York, 396 US.

119 (1969); Bloss v. Dykema, 398 U.S. 278 (1970);

Walker v. Ohio, 398 U.S. 434 (1970); Hoyt v. Minne-

sota, 399 U.S. 524 (1970).

The circumstances in which obscenity is distributed

and circulated now determine whether it is protected

or unprotected by the First Amendment. Since ORS

167.151 proscribes the dissemination of obscene ma-

terial under all circumstances regardless of how or to

whom the material is distributed, it is overbroad and

therefore offends the constitutional guarantees of free

speech and free press.

We are also forced to hold that ORS 167.151 is

overbroad in that it makes it possible for industrious

censors to prosecute for activity which is in no respect

criminal. The statute declares that a person “dissemi-

nates” obscene material if he “exhibits, sells, delivers

—26—

or provides” to another, or offers to do so, or possesses

such material with intent to do so.

Under the broad language just quoted, the citizen

who fills his briefcase with obscene samples and car-

ries them to a Citizens for Decent Literature meeting

to reinforce that organization’s anxieties will risk crim-

inal prosecution along with those who pander the ma-

terial commercially in public.

The statute also makes it a crime for a collector

to display his pornography to his wife in the privacy

of their home. This conduct may be abhorrent to many

citizens, but the private enjoyment of literary trash is

protected by the First Amendment. United States v.

Dellapia, 39 U.S.L.W. 2218 (2d Cir., October 20,

1970); Stanley v. Georgia, 394 U.S. 557 (1969).

Since ORS 167.151 is overbroad, it is constitutionally

defective. Dombrowski v. Pfister, 380 U.S. 479

(1965); Keyishian v. Board of Regents, 385 U.S. 589

(1967).

It is therefore DECLARED AND ADJUDGED that

ORS 167.151 is unconstitutional on its face. A per-

manent injunction against enforcement of the statute in

the future shall issue.

DATED this 19th day of November, 1970.

Walter Ely

United States Circuit Judge

Robert C. Belloni

United States District Judge

Alfred T. Goodwin

United States District Judge

r

=— =

Declaratory Judgment.

In the United States District Court, for the District

of Oregon.

James A. Hayse, John L. Golden, Harold G. Childs

and Fred R. Wunderlich, Plaintiffs, v. George Van

Hoomissen, individually and as District Attorney for

Multnomah County, Oregon; James C. Holzman, indi-

vidually and as Director of Public Safety for Mult-

nomah County, Oregon; Norman D. Brown: Donald

I. McNamara, individually and as Chief of Police of

the City of Portland, Oregon; William J. Budrius; Ter-

ry Schrunk, individually, as Mayor of the City of Port-

land, Oregon, and as a member of the Council of the

City of Portland, Oregon; Francis Ivancie, Stanley Earl,

Mark Grayson and Lloyd Anderson, individually and

as Commissioners of the City of Portland, Oregon and

members of the Council thereof; and Marian C. Rush-

ing, individually and as City Attorney of the City of

Portland, Oregon, Defendants. Civ. No. 69-743.

Filed: Nov. 19, 1970.

Before: ELY, Circuit Judge, and BELLONI and

GOODWIN, District Judges.

Pursuant to the opinion filed herewith,

IT IS ORDERED and declared that ORS 167.151

is unconstitutional, and

_IT IS FURTHER ORDERED that defendants are

enjoined from enforcement of ORS 167.151 in the fu-

ture.

DATED this 19th day of November, 1970.

Walter Ely

United States Circuit Judge

Robert C. Belloni

Alfred T. Goodwin

United States District Judges

mom NON a2 . RO ESTE RET ESA EN Ree TROY oe

—

APPENDIX E.

Opinion of District Judge Doyle.

Opinion and Order.

In the United States District Court, for the Western

District of Wisconsin.

United States of America, Plaintiff v. B & H Dist.

Corp.; Bark Book Dist., Inc.; R. Ford; H. Wasserman

and Robert Barkow, Defendants. 70-CR-67.

Defendants have been indicted in three counts under

18 U.S.C. § 1462. The indictment charges that on

three separate occasions defendants “did knowingly

and unlawfully transport and cause to be transported

in interstate commerce by means of a common carrier

from New York, State of New York to Wausau, Mara-

thon County in the Western District of Wisconsin, cer-

tain obscene, lewd, lascivious and filthy magazines.”

Defendants move to dismiss the indictment on the

grounds that 18 U.S.C. § 1462’ is overbroad in that

it imposes criminal sanctions upon the interstate trans-

portation of obscene material in violation of the First

and Ninth Amendments to the United States Constitu-

tion.

1Section 1462 provides in pertinent part:

“Whoever brings into the United States, or any place

subject to the jurisdiction thereof, or knowingly uses any

express company or other common carrier, for carriage in

interstate or foreign commerce—

(a) any obscene, lewd, lascivious, or filthy book, pam-

phlet, picture, motion-picture film, paper, letter, writing,

print, or other matter of indecent character. . .

“Shall be fined not more than $5,000 or imprisoned not

more than five years, or both, for the first such offense

and shall be fined not more than $10,000 or imprisoned not

og than ten years, or both, for each such offense there-

“gg

CME”

< ~ pA a > ‘

vs aa

The obscenity of the materials is not in issue. It is

assumed that the magazines are obscene.

Defendants attack the constitutionality of 18 U.S.C.

§ 1462 on its face. Since this statute clearly involves

the area of First Amendment rights and freedoms, de-

fendants are not limited to a construction of the stat-

ute as applied to the facts in this case. Dombrowski v.

Pfister, 380 U.S. 479 (1965); N.A.A.C.P. v. Button,

371 U.S. 415 (1963); Thornhill v. Alabama, 310 US.

88 (1940). Thus “in determining the validity of a

statute in relation to the First Amendment, a court

must determine what the statute can do. If the statute

can violate freedom of speech and press, then it is

invalid.” United States v. Thirty-Seven (37) Photo-

graphs, 309 F. Supp. 36, 37 (C.D. Cal. 1970) (three-

judge court). See also Freedman v. Maryland, 380 U.S.

51 (1965).

Since the United States Supreme Court held in Roth

v. United States, 354 U.S. 476 (1957), that obscenity

was not within the area of constitutionally protected

speech or press, numerous First Amendment attacks on

statutes similar to 18 U.S.C. § 1462 have been sum-

marily dismissed. But the Supreme Court recently has

retreated from its absolute position in Roth by holding

in Stanley v. Georgia, 394 U.S. 557 (1969), that the

First Amendment prohibits making private possession

of obscene material a crime. Precisely what effect Stan-

ley has on obscenity and First Amendment protection

beyond private possession in a home is much de-

bated.”

*The implications of Stanley v. Georgia have been discussed

in several articles: e.g., Note, The New Metaphysics of Law and

Obscenity, 57 Calif. L. Rev. 1257 (1969); Gegan, The Twilight

(This footnote is continued on the next page)

Ae Ie ie en eee re aecmeneenenenn

sili

In Stanley the court specifically stated that “Roth

and the cases following that decision are not impaired

by today’s holding,” 394 U.S. at 568. Obviously, this

cannot be taken to mean that obscenity in every con-

text remains beyond the protection of the First Amend-

ment. The court ruled otherwise. It declined to extend

its holding beyond possession of obscene matter in the

privacy of one’s home. But Stanley’s broader implica-

tions are inescapable.

A number of recent decisions applying Stanley have

read it to distinguish between private uses or actions

which are protected by the First Amendment, and pub-

lic (or commercial) uses or actions which are not.

United States v. Lethe, 312 F. Supp. 421 (E.D. Cal.

1970); Karalexis v. Byrne, 306 F. Supp. 1363 (D.

Mass. 1969) (three-judge court), prob. juris. noted,

397 U.S. 985, restored to calendar for reargument,

399 U.S. 922 (1970); United States v. Articles of

“Obscene” Merchandise, 315 F. Supp. 191 (S.D.N.Y.

1970) (three-judge court); Stein v. Batchelor, 300 F.

Supp. 602 (N.D. Tex. 1969) (three-judge court);

prob. juris. noted, 394 U.S. 954 (1969); United States

v. Orito, No. 70-CR-20 (E.D. Wis., Oct. 28, 1970);

United States v. Dellapia, No. 34858 (2d Cir., Oct.

20, 1970). In Stanley the court acknowledged this

distinction when it spoke of Roth: “But that case dealt

with public distribution of obscene materials and such

distribution is subject to different objections,” 394 U.S.

of Nonspeech, 15 Cath. Law. 210 (1969); D. Engdahl, Requiem

for Roth: Obscenity Doctrine is Changing, 68 Mich. L. Rev. 185

(1969); 83 Harv. L. Rev. 147 (1969).

y i

at 567 (emphasis added). This interpretation of Stan-

ley appears in Stein v. Batchelor, 300 F. Supp. 602

(N.D. Tex. 1969) at 606:

“Although the narrow holding of Stanley is sim-

ply that ‘the First and Fourteenth Amendments

prohibit making mere private possession of ob-

scene material a crime’, we think that the case also

stands for a broader proposition. Since Stanley

involved a direct review of a state conviction for

possession of obscene matter, the narrow holding

was sufficient to reverse the conviction; thus it was

not necessary for the Court to base its decision on

a broader ground. It is impossible, however, for

this Court to ignore the broader implications of

the opinion which appears to reject or significantly

modify the proposition stated in Roth v. United

States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.

2d 1498 (1957) that ‘obscenity is not within the

area of constitutionally protected speech or press’.

“Stanley expressly holds that obscenity is pro-

tected in the context of mere private possession

and in our opinion further suggests that obscenity

is deprived of this protection only in the context

of ‘public actions taken or intended to be taken

with respect to obscene matter’.”

This distinction is rooted in governmental goals or

interests thought to be valid. In United States vy. Lethe,

312 F. Supp. 421 (E.D. Cal. 1970), the court succinct-

ly set forth the possible governmental goals (at 424):

“There are basically only four goals which have

been used to justify restrictions on dissemination

Sa ee

al LN REALE DIY IOS PE ARES ERE BO EAR nd 5 AE PR eA A At ELLE ADO GALEN Ia, a

—

of obscene material: (1) preventing crimes of

sexual violence, (2) protecting the society’s moral

fabric, (3) protecting children from exposure to

obscenity, and (4) preventing ‘assaults’ on the

sensibilities of an unwilling public.”

The Lethe court then observed, and I agree that in

Stanley the Supreme Court rejected goals (1) and (2)

as adequate justifications for anti-obscenity legislation.

With respect to goal (2), the Supreme Court said:

“. . . Georgia asserts the right to protect the in-

dividual’s mind from the effects of obscenity. We

are not certain that this argument amounts to

anything more than the assertion that the State

has the right to control the moral content of a per-

son’s thoughts. To some, this may be a noble

purpose, but it is wholly inconsistent with the

philosophy of the First Amendment. . . . Nor is

it relevant that obscene materials in general, or

the particular films before the Court, are argu-

ably devoid of any ideological content. The line

between the transmission of ideas and mere en-

tertainment is much too elusive for this Court to

draw, if indeed such a line can be drawn at all.

. . . Whatever the power of the state to control

public dissemination of ideas inimical to the pub-

lic morality, it cannot constitutionally premise leg-

islation on the desirability of controlling a per-

son’s private thoughts.” 394 U.S., at 565-566.

I note the words “public dissemination of ideas inimical

to the public morality.” and I will comment later herein

on the definition of “public” which Stanley appears

j fi r gare, ag ae , .

ENR IER EEE: Da ER REI ETAT REL SIDE ORRIN ——

ition

to require. With respect to goal (1), as stated in the

Lethe opinion, the Supreme Court said in Stanley:

“Perhaps recognizing this, Georgia asserts that ex-

posure to obscene materials may lead to deviant

sexual behavior or crimes of sexual violence.

Thére appears to be little empirical basis for that

assertion. But more important, if the State is only

concerned about printed or filmed materials in-

ducing anti-social conduct, we believe that in the

context of private consumption of ideas and in-

formation we should adhere to the view that

‘[a]mong free men, the deterrents ordinarily to

be applied to prevent crime are education and

punishment for violations of the law * * *.’ Whit-

ney v. California, 274 U.S. 357, 378 (1927)

(Brandeis, J., concurring). * * * Given the pres-

ent state of knowledge, the State may no more pro-

hibit mere possession of obscene matter on the

ground that it may lead to antisocial conduct than

it may prohibit possession of chemistry books on

the ground that they may lead to the manufacture

of homemade spirits.” 394 U.S. at 566-567.

Again, I note the phrase “the context of private con-

sumption of ideas and information,” and I will comment

in a moment upon the definition of “private” which

Stanley appears to require.

The remaining two goals or interests catalogued in

Lethe are: protecting children from exposure to ob-

scenity, and preventing assaults on the sensibilities of

an unwilling adult public. These two goals or interests

have been recognized as justification for governmental

prohibitions against obscenity, Ginsberg v. New York,

390 U.S. 629 (1968), Redrup v. New York, 386 US.

SR A ry

—34—

767 (1967), Butler v. Michigan, 352 U.S. 380 (1956),

but only these two goals or interests appear to have

survived Stanley. Uses or conduct which are in conflict

with these two goals or interests, it appears, do not en-

joy the protection of the First Amendment and may

be prohibited and punished by government. But uses

or conduct which are not in conflict with these two

goals or interests enjoy the protection of the First

Amendment and may not be prohibited or punished.

Stanley v. Georgia, supra; United States v. Lethe, 312

F. Supp. 421 (E.D. Cal. 1970); Stein v. Batchelor, 300

F. Supp. 602 (N.D. Tex. 1969); Karalexis v. Byrne,

306 F. Supp. 1363 (D. Mass. 1969); United States v.

Orito, No. 70-CR-20 (E.D. Wis., Oct. 28, 1970).

I believe that the continued use of the terms “public”

and “private” is confusing because the test of constitu-

tionality to be applied since Stanley must be the test

of whether the proscribed uses or conduct are in con-

flict with either of the two permissible governmental

goals. If the terms must be employed, then “public”

uses or conduct must be defined as those which are in

conflict with the goal or interest of protecting children

from exposure to obscenity or with the goal or interest

of preventing assaults on the sensibilities of an unwil-

ling adult public; “private” uses or conduct must be

defined as those which are not so in conflict.

Section 1462 does not discriminate in any way be-

tween those uses or conduct which are in conflict with

the two permissible governmental goals or interests and

those uses or conduct which are not so in conflict. This

failure to discriminate, in itself, may render the statute

fatally overbroad. But because in Stanley the specific

use of obscene materials held to be within the protec-

tion of the First Amendment was possession in a home,

—"

it may be necessary to determine whether the validity

of governmental regulation of transportation of obscene

materials, as well as the validity of governmental regu-

lation of possession in a home, depends upon whether

the attempted regulation is limited to one or both of

the two constitutionally permissible goals or interests.

The government contends that Stanley recognizes no

constitutional right to receive obscene materials, but

rather only a right to be free from intrusive inquiry by

the state into those materials which an individual may

read or use in his home.’ This argument is not persua-

sive:

“If the government has no substantial interest in

preventing a citizen from reading books and watch-

ing films in the privacy of his home, then clearly

it can have no greater interest in preventing or

prohibiting him from acquiring them. The only

possible purpose in preventing him from acquiring

them is to prevent him from enjoying them.”

United States v. Lethe, supra, 312 F. Supp. at

424.

*The government also contends that Stanley does not mean that

obscenity is protected by the First Amendment, but rather that

the values which the Fourth Amendment and other provisions of

the Bill of Rights seek to protect would be endangered by the

— searches, seizures, and punishment necessary to en-

orce the Georgia statute. I agree that other constitutional issues

are raised when the state seeks to prohibit possession in a home.

In Stanley the court was aware of these issues. But it grounded

its decision solely on First Aimendment rights (at 565 ):

“If the First Amendment means anything, it means that a

State has no business telling a man, sitting alone in his own

eon what books he may read or what films he may

watch.”

—— 7 ue

TTS

em” Nd

In Staniey the Court acknowledged the right to receive

information and ideas regardless of their social value,

394 U.S. at 564:

“It is now well established that the Constitution

protects the right to receive information and ideas.

‘This freedom [of speech and press] . . . neces-

sarily protects the right to receive. . . .’ Martin v.

City of Struthers, 319 U.S. 141, 143 (1943); see

Griswold vy. Connecticut, 381 U.S. 479, 482

(1965); Lamont v. Postmaster General, 381 U.S.

301, 307-308 (1965) (Brennan, J., concurring);

cf. Pierce v. Society of Sisters, 268 U.S. 510

(1925). This right to receive information and

ideas, regardless of their social worth, see Winters

v. New York, 333 U.S. 507, 510 (1948), is

fundamental to our free society.”

A number of obscenity statutes have been found un-

constitutional on the basis that they violate the indi-

vidual’s right to receive obscene matter for uses which

neither expose children to obscenity nor assault the

sensibilities of an unwilling adult public. United States

v. Lethe, supra (18 U.S.C. § 1461 (Mailing Obscene

Matter) ); United States v. Thirty-Seven (37) Photo-

graphs, 309 F. Supp. 36 (C.D. Cal. 1970) (19 U.S.C.

§ 1305 (Immoral Articles; Prohibition of Importa-

tion)); United States v. Articles of “Obscene” Mer-

chandise, 315 F. Supp. 191 (S.D.N.Y. 1970) (19

U.S.C. § 1305).

Recognizing that the First Amendment protects the

individual’s right to receive obscene materials for such

uses, I believe that the dissemination of obscene matter

through interstate transportation, in a manner which

itself neither exposes children to obscenity nor as-

a

saults the sensibility of an unwilling adult public, can-

not be less protected. The government cannot indirectly

prevent an individual from receiving obscene matter

for permissible uses by making it a crime to. dissemi-

nate or transport the materials to him. United States

v. Lethe, supra; Karalexis v. Byrne, 306 F. Supp. 1363

(D. Mass. 1969). By analogizing to Griswold v. Con-

necticut, 381 U.S. 479 (1965), the court reached this

same conclusion in United States v. Orito, supra (slip

opinion, p. 5):

“In Griswold . . ., the court noted that since mar-

ried couples have the right to use contraceptive

devices, such right would be meaningless if a state

could lawfully block such persons from receiving

contraceptive devices and instruction. By analogy,

it follows that with the right to read obscene mat-

ters come the right to transport or to receive such

material when done in a fashion that does not

pander it or impose it upon unwilling adults or

upon minors.”

The government relies heavily upon three decisions.

In United States v. Melvin, 419 F.2d 136 (4th Cir.

1969), the court refused to extend Stanley beyond pos-

session of obscene material in a home. I think the court

did not appreciate the full implications of Stanley, and

I cannot accept its narrow interpretation.

In United States v. Fragus, in an opinion entered

June 23, 1970 (No. 27801), supplementing its ear-

lier opinion, 422 F.2d 1244 (5th Cir. 1970), the court

declined to extend Stanley to interstate transportation.

The court relied mainly on Gable v. Jenkins, 309 F.

Supp. 998 (N.D. Ga. 1969) (three-judge court), aff'd

397 U.S. 592 (1970).

SF LODE SER RIN RRR PRED OLD oY de ERIC es NORE MN TIC A PRD DEE LEI IEE LOLA oy

=

In Gable v. Jenkins the plaintiff challenged as

overbroad a Georgia statute which prohibited distribu-

tion of obscene materials. The plaintiff was engaged in

the business of distributing books and magazines. He

objected to a portion of the statute‘ which prohibits

dissemination of obscene material “to any person.”

The court found that the words of the Stanley opinion

“indicate a conscious desire on the part of the Court

to keep Stanley limited to its facts and no statements

in the body of the opinion could logically be construed

to encompass the contention of plaintiff.” 309 F. Supp.,

at 1000. It continued:

“Plaintiff divines several situations under which

the working of [the Georgia statute] might be

overly broad, viz., a husband showing an obscene

book to his wife, or consenting adults being pro-

hibited from gathering in a private home to view

an obscene film.”

The Gable court found that these “private” uses were

not present in the case before it, and considered itself

free, therefore, to ignore such possible applications of

the statute.

Because the Georgia statute obviously dealt with ex-

pression in written form, I believe that the Gable

court was not free to disregard these possible applica-

tions to private uses. But it did clearly disregard them,

and must be read as sustaining a prohibition only

against dissemination of obscene materials in a manner,

or for the purpose of facilitating uses or conduct, which

exposes children to obscenity or assaults the sensibili-

ties of unwilling adults. Moreover, it does not appear

that the contention was presented to the court, and in

any event the court makes no reference to the point,

*Ga.L. 1968, p. 1249, 26 Ga. Code 2101 (a).

FEE SAREE NE ISIE AES ORR MOINS MITE EET Sosa eneenn ga

—

that the right to read an obscene book in one’s home

is dependent upon one’s right to buy it at a bookstore

and the book dealer’s right to sell it to the prospective

home-reader. That the judgment of dismissal in Gable

was affirmed in an inscrutable four-word decision, 397

U.S. 592, is troublesome. It is difficult to suppose that

the Supreme Court chose so obscurely to deal with the

application of the statute to “private” uses, when the

lower court had declined to consider such application.

Accordingly, I consider that the action of the Supreme

Court in Gable does not foreclose a fresh inquiry in

the present case into the possible application of 18

U.S.C. § 1462 to uses which neither expose children

to obscenity nor assault the sensibilities of unwilling

adults.®

Section 1462 fails to distinguish between transporta-

tion which presents danger to minors or the danger of

obtrusion upon unwilling adults and transportation

which does not present these dangers. Accordingly, I

find it unconstitutionally overbroad, in violation of the

First and Ninth Amendments.

Therefore, for the reasons stated above, and upon

the basis of the entire record herein, IT IS ORDERED

that the defendants’ motion to dismiss the indictment

is hereby granted.

Entered this 24th day of November, 1970.

By the Court:

/s/ James E. Doyle

District Judge

*In this opinion I have considered that the expressions “expos-

ing children to obscenity” and “assaulting the sensibilities of un-

willing adults” are broad enough to include the term “pander-

ing,” which frequently appears in court decisions and other liter-

ature on the subject.