# Appellees Brief — United States v. Reidel

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0278%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellees Brief
- **Published:** January 1, 1971
- **Citation:** 402 U.S. 351

## Text

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
conte

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0278%3A5. Public record. Not legal advice.