Motion Amicus Curiae — Kaplan v. California

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Ping!

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for Rehearing

Brief Amicus Curiae for American Library Associa-

_ Interest of the Amicus

Argument

SUBJECT INDEX

Page

Motion of the American Library Association to File

~-an Amicus Curiae Brief in Support of Petition

I

? Wise Firat Amendment Is Not Limited to Protect-

ing Works Which, “Taken as a Whole, Have

Serious Literary, Artistic, Political or Scientific

Value”. To So Limit the Reach of the First

Amendment Would Work a Drastic Undermin-

ing of Free Speech

II

The Right to Read Is a Fundamental Personal

Right Implicit in the Concept of Ordered Lib-

erty. This Right May Be Exercised in Li-

braries, as Well as in the Home

I

To Subject a Distributor of Books or Other

Media of Expression to Criminal Prosecution

for Distributing an “Obscene” Work Prior to

the Time That There Has Been a Judicial De-

termination of Its Obscenity Is a Denial of

Due Process of Law and Constitutes Cruel

and Unusual Punishment in Violation of the

Eighth and Fourteenth Amendments to the

United States Constitution .....

15

< at

ii.

| | Page

oat A. The “New” Standards Proscribing Ob-

_, .». . seenity, Like the “Old” Standards, fy,

. Hopelessly - _Vague and “Unworkable” .

_B. Subjecting a Distributor of Books or

Other Media of Expression to Criminal

Prosecution for Distributing an “Ob-

scene” Work Prior to:‘the Time That There

Has Been a Judicial Determination of Its

“Obscenity” Is Cruel and Unusual Punish- _

ment 37

Conclusion , 40

iti,

4x9 TABLE OF AUTHORITIES CITED

Pee Rea SOC! SGM wv cn Relge

Aday ¥. United States, 388 U.S.447 . 39

Apodaca v. Oregon, 406 U.S.404 Bo A258! 3g

Burstyn-v. Wilson, 343 U.S.495 11

Butler v. Michigan, 352 U.S.380 . 21

wahhe

cohen v. California, 403 U.S.15 a Yi

Doubleday & Co., Inc. v. New York, 335 U.S.848

ss 15

Dyson v. Stein, 401 U.S.200 . 14

Furman vy. Georgia, 408 U.S.238 ........._. 37, 38, 39

Ginsburg v. United States, 383 U.S.463 cco

30, 31, 32, 33

Gooding v. Wilson, 405 U.S.518 ..... 9

Griswold v. Connecticut, 381 U.S.479 17

Marcus v. ompedgbennarteelle peau 367 US.

717 18

McCrary v. Oklahoma, No. 72-1648 (41 L.W.

£° 3658) . 39

Palko v. Connecticut, 302. U.S.319 : 15

Police Dept. of City of Chicago v. Mosley, 408 U.S.

5 92 10

(Qrantity of Copies of Books v. Kansas, 378 U.S. -

18, 19

-- v. Wade, 410 U.S.113 15

Silverthorne v. United States, 400 F.2d 625 (9 Cir.

-> 1968); cert. den. 400 U.S.1022 36

Smith v. California, 361 U.S.147 17, 18

‘Stanley v. Georgia, 394 U.S.557 0... 10, 22

"Terminiello v. City of Chicago, 337 US.1 ............ ’

iv.

' i Page

Thomas v. Collins, 323 U.S516 17

United States v. Addonizio, 451 F.2d 41 (3 Cir.

1972), cert. den. 405 U.S.935 35, 36

United States v. Hamiling, et al., 9th Cir. No. 72-

_ » 1892,: 4: 90q., ~.. 20... (June 7, 1973) .. %6

United States v. Klaw, 350 F.2d 155 (2 Cir.

' $955). - 36, 37

United States v. Levine, 83 F.2d 156 (2 Cir.

“? 1996y cu : 32

United States v. Reidel, 402 U.S.351 17

United States v. Roth, 237 F.2d 796 (2d Cir.

1956) 13, 22, 34

United States v. Vuitch, 402 U.S.62 . 33

Williams v. Florida, 399 U.S.78 35

Winters v. New York, 333 U.S.507 ............ 10, 11

Miscellaneous

Commission Report, p. 52 22

Commission Report, p. 139 22

Commission Report, pp. 374-375 24

Commission Report, p. 380 20.02.00... 23

‘Commission Report, p. 385 ......... 24

‘Commission Report, pp. 634, 638 ... 23

Commission Report, pp. 634-639 23

Rules

Federal Rules of Criminal Procedure, Rule 24(a) .. 35

Vv.

Res, Statutes Page

‘California Education Code, Sec. 27000. ........-24:..:26

California Penal Code, Sec. 311.2 20

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

7, 12, 13, 14, 15, 25, 29, 40

United States Constitution, Eighth Amendment .....

cone, 2 3B

United States Constitution, Fourteenth Amendment

27, 28, 35, 38

| Publications

34 A.L.I. Proceedings (1957), pp. 191, 192 ........ 33

Black Beauty . 27

Los Angeles Times, July 8, 1973, Part VU, 5 ...... 27

Once Is Not Enough by Jacqueline Susann ............ 27

Portnoy’s Complaint by Philip Roth 27

Rebecca of Sunnybrook Fatm ; 27

The Joy of Sex by Alex Comfort : 27

a

.

IN THE ©

Sayem Court of the United § tate

9) October Term, 1971

¥ No. 71-1422

‘Murray Kaptan,

Pe PII: Petitioner,

z vs.

PEOPLE OF THE STATE OF CALIFORNIA, —

i ~ Respondent.

Motion of the American Library Association. to. File

_.- an. Amicus Curiae Brief in Support of Petition for

The American Library Association, founded in

1876, is a nonprofit, educational. organization, . with

‘its. principal place .of . business located in Chicago,

‘linois, Its membership includes more than 30,000

Tibrarians, libraries and members of , the general public

who are devoted to the development of iy, services

in the United States.

The Association is the chief esis iso for the

modern library movement in North America and, to

4 considerable extent, throughout .the world. Through

its, membership and its affiliation .with its constituent

State library associations, the American Library Associa-

tion represents over 29,000 public university and. spe-

~Sial libraries, over. 90,000. elementary and secondary

School libraries and media. centers and over 120,000

thier, they have sought to include in their collections

books and other materials presenting all’ points of view

concerning the problems, issues and attitudes of our

“times.

Nor have libraries and librarians sought to inquire

‘into the uses made of their collections by their patrons.

On the contrary, libraries have sought to encourage

the widest possible dissemination and utilization of i-

brary resources by all citizens, regardless of their race,

creed, color, national origin, sex, age or educational

‘background.

In sum, American libraries and librarians have never

functioned as agencies for the dissemination of prope-

ganda or as censors of public morality. They have

supported the public’s fteedom to read as an essential

element of the intellectual freedom required by free

men to remain free. They are committed to the principle

that free communication is essential to the preservation

of a free society and a creative culture.

— Se

_. \This is not to say that libraries have not been sub-

jected to heavy and continuing pressures from those

elements which recognize the potential power of the

library as a censorship tool. Yet, despite such’ pres-

sures libraries have successfully resisted the assumption

of censorship functions relying on this Court for

- The decisions of the Supreme Court rendered on

Tune 21st of this year suggest that such reliance was

‘misplaced. Those decisions, including the one to which

‘this Motion is addressed, in the opinion of the Associa-

tion, permit the imposition of censorship functions on

libraries and librarians which would fundamentally

change their traditional role in support of intellectual

freedom and would fundamentally alter the nature and

content of their collections and the inetiition of

Be aon to the phoples

Among the specific problems created by the June 21st

‘cisions, but left unresolved by the Court, are the

“1. How does a librarian determine whether

_ Of not a work in its collection, having sexual con-

tent, is to be used by a patron for permissible

scientific purposes as opposed to impermissible

recreational purposes? As presently organized, li-

braries have no capacity for the interrogation of

_ their patrons as to their uses of library resources.

__. This fact poses the further question of whether

materials having sexual content must be separately

identified, catalogued and segregated from the

~~~ “main collection in order to prevent their use for

~ — recreational purposes.

= - 2, Must every work having sexual content ac-

quired by a library be reviewed to determine

4

' ‘whether, taken as a whole, it has serious literary,

- aftistic, political or scientific value? If this is re

' quired, may the librarian reviewing the book be

_ liable to criminal prosecution as well as fine or

‘imprisonment if a jury ultimately determines that

' the work is obscene under contemporary com-

munity standards? Librarians do not, in most

Rather, they purchase on the basis of published

reviews, of requests from patrons, and on a blanket

, order basis from publishers and booksellers. A

requirement that all works be reviewed for obscene

content would have a significant impact on li-

. brary operations and cost, because the presence

. Of obscene content could not be determined

without a review of the entirety of all works.

3. Where a library, for example, a state or

'. gegional library, serves more than one community

having varying laws governing obscenity, what

contemporary community standard is to be ap

plied? The answer to this question directly af-

fects the stocking and operations of intercom-

munity bookmobile programs, interlibrary loan

policies and policies governing the issuance of

library cards to nonresidents. These programs,

long supported by educators and encouraged by

state, local and federal government, are all de-

signed to maximize library resources and reduce

taxpayer costs.

4. May the unilateral decision of a librarian

not to acquire a work on the ground that it is

obscene be challenged by an author or publisher

on the ground that such determination, at least to

sedis.

semen made by a public library, constitutes

state action in violation of their First Amendment

tights? Moreover, would not such decision subject

oe the library or librarian to a trade libel action?

_ The view of the impact on the libraries expressed by

Soe. Sustice Douglas in his dissenting opinion in Paris

_ Adult Theatre v. Slaton (Slip Opinion, 3) coincides

_ with the view of libraries and librarians. If the deci-

sions of the Court are to be taken literally, the Ameri-

can library system as we now know it will be de-

‘stroyed. Beyond question, confronted with the prospect

of reviewing all works they seek to acquire, libraries

- will acquire only those which enjoy the imprimatur

of governmental authority; confronted with the prospect

‘of criminal prosecution, librarians will omit from their

collections any work which might be actionable; con-

fronted with the prospect of meeting different and po-

- fentially conflicting “contemporary community stand-

ards”, librarians will restrict their collections and serv-

ices to a single community.

_ It is’simply beyond the training or capacity of li-

‘brarians or library trustees to determine, at their

peril, whether a work is “serious”, whether it is “pat-

ently offensive”, or whether it “appeals to the prurient

interest” of the “average person”. As a practical mat-

ter, many works in a library collection are not “se-

tious”, for a library satisfies the people’s need for en-

‘tertainment and recreation as well as edification. More-

over, the seriousness of literature is frequently a matter

of perspective. Thus, the Mother Goose Tales, which

have entertained so many children for so many years,

e were viewed as very “serious” and scurrilous attacks

_by the censors who once banned them.

—b—

The responses of libraries and librarians described

are not speculative. Based on extensive discussions

with librarians throughout the Nation, they are cer-

tainties. The librarian has no economic interest in a

book to justify his defense of it or its inclusion in his

collection at the risk of his personal freedom. The sole

justification of a librarian in the defense of any work

is his philosophical conviction that the freedom to read

is the essence of intellectual freedom and intellectual

freedom is the price of liberty. In the face of the

Court’s June 21st decisions, the librarian may rightly

conclude that the Court has priced intellectual freedom

out of the marketplace of ideas.

If, on the other hand, Mr. Justice Douglas is wrong

and the “net now designed by the Court” as it af-

fects librarians cannot be taken “literally”, it would ap-

pear appropriate for the Court to make that fact

known, so that the communities now Uevising obscenity

legislation may be instructed.

"It takes but a short while to purge a library col-

lection. Hitler accomplished it in one night. On the other

hand, it takes centuries to create a collection, and it

takes the continuing dedication of thousands of librar-

ians to preserve that collection. Libraries have known

“dark ages” before when collections have been destroyed

and disbursed, literary works suppressed, access to u-

-popular information foreclosed, and ideological con-

formity substituted for intellectual freedom.

Librarians ask leave to submit this Brief in support

of petitioner’s Petition for Rehearing in the hope that

niles:

America’s Dark Age will not date from June 21,

1973. In so doing, amicus respectfully requests the

Court:

1. To reconsider and reject its statement that

the First Amendment is limited to protecting works

which, taken as a whole, have serious literary,

attistic, political or scientific value; and

2. To reconsider and reject its holding that

the right to read is not fundamental and implicit

in the concept of ordered liberty, except in one’s

home; and

3. To reconsider and reject the view that dis-

tributors of books and other media of expression

may be held criminally liable for distributing an

“obscene” work before there has been a judicial

determination, in a civil proceeding, establishing

that the work is obscene.

Amicus asks leave to file the annexed Brief in this

case, Petitioner has consented to the filing of this

amicus curiae Brief, and respondent has not yet re-

oe sgalle seers haan

WILLIAM D. Nortx,

E. Houston Harsna,

By E. Houston HarsHa,

Attorneys for Amicus Curiae.

KIRKLAND & ELLIs,

_ Of Counsel.

ee

BRIEF AMICUS CURIAE FOR AMERICAN

LIBRARY ASSOCIATION.

Interest of the Amicus.

The interest of amicus is set forth in the Motion for

Leave to File this Brief.

ARGUMENT.

E,

The First Amendment Is Not Limited to Protecting

Works Which, “Taken as a Whole, Have Serious

Literary, Artistic, Political or Scientific Value”.

To So Limit the Reach of the First Amendment

Would Work a Drastic: Undermining of Free

Speech.

In Miller v. California, the Court said: “The First

Amendment protects works which, taken as a whole,

have serious literary, artistic, political or scientific value,

regardless of whether the Government or a majority

of the people approve of the ideas these works rep-

resent.” (Slip Opinion, 20). Never before has the First

Amendment been thought limited to expressions of

serious literature or political value. Paris Adult Theatre

v. Slaton (Brennan, dissenting, Slip Opinion, 25).

See, Gooding v. Wilson, 405 U.S.518; Cohen v. Cali-

fornia, 403 U.S.15, 25-26; Terminiello y. City of

Chicago, 337 U.S.1, 4-5. Giving protection only to

“serious” works will likely have the effect, as Justice

Brennan observed, “of permitting a far more sweep-

ing suppression of sexually oriented expression, in-

cluding expression that would almost surely be held

protected under our current formulation” (Jd., 24).

‘Under the “new” rule, all a prosecutor need do

aan Se

is satisfy a jury that the value of the work, meas-

ured by some unspecified standard, is not sufficiently

“serious” to warrant constitutional protection. “That

result is not merely inconsistent with . . . Roth, it is

nothing less than a rejection of the fundamental First

Amendment premise and rationale of the Roth opinion

and an invitation to widespread suppression of sex-

ually oriented speech.” (Id.; 25).

Only a year ago, this Court said that above all else:

“.., . [T]he First Amendment means that gov-

ernment has no power to restrict expression be-

‘cause of its message, its ideas, its subject matter,

or its content. . . . To permit the continued build-

' ing of our politics and culture, and to assure self-

fulfillment for each individual, our people are

guaranteed the right to express any thought, free

from government censorship. The essence of this

forbidden censorship is content control. Any re-

Striction on expressive activity because of its con-

tent would completely undercut the ‘profound na-

tional commitment to the principle that debate

on public issues should be uninhibited, robust,

and. wide-open.’ New York Times Co. v. Sulli-

van. ... .” (Police Dept. of City of Chicago v.

Mosley, 408 U.S.92, 95-96).

In Stanley v. Georgia, 394 U.S.557, the Court, cit-

ing Winters v. New York, 333 U.S.507, stated that it

is irrelevant “that obscene materials in general, or the

particular films before the Court, are arguably devoid

of any ideological content. The line between the trans-

mission of ideas and mere entertainment is much too

illusive for this Court to draw, if indeed such a line

can be drawn at all.” (394 U.S. at 566). In Winters

pil Grice

_¥. New York, 333 U.S. at 510, the Court rejected

the suggestion that the constitutional protection for a

free press applies only to the exposition of ideas. “Every-

one is familiar with instances of propaganda through

fiction: What is one man’s amusement teaches another’s

doctrine. Though we can see nothing of any possible

value to society in these. magazines, they are as much

- entitled to the protection of free speech as the best of

literature.”

In Burstyn v. Wilson, 343 U.S.495, 501, Justice

Clark observed that motion pictures although designed

to entertain and to make money are nevertheless “a

significant medium for the communication of ideas.

They may affect public attitudes and behavior in a

variety of ways, ranging from direct espousal of a

political or social doctrine to the subtle shaping of

thought which characterizes all artistic expression. The

importance of motion pictures as an organ of public

opinion is not lessened by the fact that they are de-

Haned to entertain as well as to inform. .

_ Mr. Justice Harlan, in Cohen v. Ciliobiin 403

Us. 15, 24, his last major opinion dealing with the

First Amendment, emphasized that the constitutional

Tight of free expression “is powerful medicine in a so-

‘ciety as diverse and populous as ours. It is designed

‘and intended to remove governmental restraints from

the arena of public discussion, putting the decision as

_ to what views shall be voiced largely into the hands

of each of us, in the hope that use of such freedom

will ultimately produce a more capable citizenry and

“more perfect polity and in the belief that no other ap-

_ proach would comport with the premises of individual

‘dignity and choice upon which our political system

Tests.” Justice Harlan rejected the notion that it is pos-

a oe

sible to suppress a “trifling” expression without ad-

versely affecting fundamental First Amendment rights,

“That is why *[w}holly neutral futilities * * * come

under the protection of free speech as fully as do

Keats’ poems or Donne’s sermons’ . . . and why ‘so

long as the means are peaceful, the communication

need not meet standards of acceptability.’ . . .”

~ Expression, Justice Harlan said, serves a dual com-

municative function: “It conveys not only ideas capable

of relatively precise detached explication, but other-

wise inexpressible emotions as well.” Words, he ob-

‘served, “are often chosen as much for their emotive

force as their cognitive force. We cannot sanction the

view that the Constitution, while solicitous of the cog-

nitive content of individual speech has little or no re-

gard for that emotive function which practically speak-

ing, may often be the more important element of the

overall ‘message sought to be communicated... .”

(403 U.S. at 26).

Justice Harlan, citing Justice Frankfurter, observed

that one of the prerogatives of American citizenry is

the tight to speak “foolishly” and without moderation.

In conclusion, Justice Harlan stated: _

“Finally, and in the same vein, we cannot in-

dulge the facile assumption that one can forbid

particular words without also running substantial

- risk of suppressing ideas in the process. Indeed,

governments might soon seize upon the censorship

of particular words as a convenient guise for ban-

ning the expression of unpopular views. We have

been able, as noted above, to discern little social

benefit that might result from running the risk of

opening the door to such grave results.” (403

USS. at 26).

Lente Mac

If, as the Court suggests, the First Amendment only

protects works with serious literary, artistic, political or

scientific value, it would appear to follow that works

deemed “political trifles” are not constitutionally pro-

tected. It cannot be repeated too often that govern-

mental efforts at thought control can rarely be. con-

fined to questions of manners and taste. The yearn-

ing to use governmental censorship of any kind is in-

fectious. It tends to spread insidiously. The heady

power that comes with the suppression of “sexy” books

deemed not “serious” will inevitably spill over into. the

areas of religion, politics and elsewhere.

“Plato, who detested democracy, proposed to

banish all poets; and his rulers were to serve as

‘guardians’ of the people telling lies for the peo-

ple’s good, vigorously suppressing writings these

guardians thought dangerous. Governmental guard-

ianship is repugnant to the basic tenet of our

democracy: According to our ideals, our adult

citizens are self-guardians, to act as their own

fathers, and thus become self-dependent. When

our government officials act toward our citizens

on the thesis that ‘Papa knows best what’s. good

_ for you,’ they enervate the spirit of the citizens:

To treat grown men like infants is to make them

infantile, dependent, immature.” (Judge Frank,

_ concurring in United States v. Roth, 237 F.2d

at 823).

Amicus recognizes the force of the statement in

Paris Adult Theatre v. Slaton (Slip Opinion, 13-14),

that if “good” books, plays and art lift the spirit, im-

: prove the mind, enrich the human personality and

i “~ character, then “bad” works may have a

alll,

contrary effect. But “under the Constitution as written

there are no standards of ‘good’ or ‘bad’ for the press”,

Dyson v. Stein, 401 U.S.200, 212 (Justice Douglas,

dissenting ).

As librarians and as persons interested in libraries,

we stake out a lofty claim for the value of books. We

do’ so because we believe that they are good, pos-

sessed of enormous variety and usefulness, worthy of

cherishing and keeping free. We realize that the applica-

tion of these propositions may mean the dissemination

of ideas and manners of expression that are repugnant

to many persons. We do not state these propositions

in the comfortable belief that what people read is un-

important. We believe rather that what people read

is deeply important; that ideas can be dangerous; that

they can be “clinically explicit and offensive to the

point of being nauseous”; but that ‘the suppression of

the freedom to read is fatal to a democratic society.

Freedom itself is a dangerous way of life, but the

First Amendment has committed us to that way.

In light of the above, amicus respectfully urges the

Court to grant the Petition for Rehearing and reaffirm

that the First Amendment prote¢ts not only the serious

works of today but the “neutral futilities”, “mere enter-

tainments” and political “trifles’” which may be the

shards from which the future may know us.» These

“neutral futilities” played a useful part in striking layers

of prudery from a subject long irrationally kept from

needed ventilation”. (Miller v. California, Slip Opinion,

22).

he eh SY case at bar, the Court, for the first time, ad-

dressed itself to the issue of whether an unillustrated

book can be legally “obscene” in the sense of being

unprotected by the First Amendment.* Recognizing

that a book “seems to have a preferred place in our

hierarchy of values, and so it should”, the Court never-

theless held that the book Suite 69 was outside the

Protection of the First Amendment.

_ The Court also held that while a constitutional right

of privacy existed for a person reading or viewing an

“obscene” work at his home, no similar right existed

outside the home. The Court said: ,

“Our prior decisions recognizing a right to pri-

‘vacy guaranteed by the Fourteenth Amendment

- included ‘only those personal rights that can be

’ deemed “fundamental” or “implicit in the concept

* of ordered liberty.” Palko v. Connecticut, 302

U.S.319, 325. Roe v. Wade, 410 U.S.113, 152

~~ (1973).” (Paris Adult Theatre v. Slaton, Slip

_ Opinion, 16).

The suggestion that Palko v. Connecticut, supra,

Supports the proposition that the right to read is not a

" Maidamental right is etroneous. Quite to the contrary,

ii as of coy se tie Cot tet,

an equall court, a conviction for the sale of the “ob-

--seene os patent pn ll mere ew fir peaapl

- iea’s foremost men of letters, & Co., Inc. v. New

f Doubleday

rk, 335 US.848 (1948), no other unillustrated book has

found obscene by this Court.

ie © Sli

Justice Cardozo made it crystal clear that the right to

read is fundamental and central to “every other form of

freedom”. Speaking for the Court, Justice Cardozo

said:

“Of that freedom one may say ‘that it is the

matrix, the indispensable condition, of nearly

every other form of freedom. With rare aberrations

@ pervasive recognition of that truth can be

. traced in our history, political and legal. So it has

come about that the domain of liberty, withdrawn

by the Fourteenth Amendment from encroachment

by the states, has been enlarged by _ latter-day

judgments to include liberty of the mind as well

as liberty of action. The extension became, in-

deed, a logical imperative when once it was

recognized, as long ago it was, that liberty is

something more than exemption from physical

restraint. .. .” (302 U.S. at 327).

It is also hard to understand how Roe v. Wade, supra,

supports the Court on this issue. In that case, the

Court held that a woman has a constitutional right to

have an abortion. It is difficult for amicus to compre-

hend how that right can be deemed more fundamental

to the concept of ordered liberty than the right to read.

Roth itself recognized the fundamental nature of the

right to read about all matters of public concern.

“,.- + The exigencies of the colonial period and the

efforts to secure freedom from oppressive adminis-

tration developed a broadened conception of

these liberties as adequate to supply the public

need for information and education with respect

to the significant issues of the times. Freedom of

discussion, if it would fulfill its historic function

——] 7

+» in this nation, must embrace aij issues about

- ‘which information is needed or appropriate to

_ enable the members of society to cope with. the

exigencies of their period.” (Emphasis added.)

_ Roth, 354 U.S. at 487-488. See also, Thomas v.

_ Collins, 323 U.S.516, 531 (1945) (“the rights

of free speech and a free press are not confined

to any field of human interest” ).

Even United States v, Reidel, 402 U.S.351, 355-356,

recognized that Stanley held that the right to read was

a personal fundamental right protected by the Constitu-

tion, at least in one’s ‘home. Griswold v. Connecticut,

381 U.S.479, 482, specifically stated that “the right of

freedom of speech and press antates the . . . right

; to tread”. ,

_ There is nothing in any of the Court’s prior deci-

sions which so much as suggests that this fundamental

tight to read is not broad enough to include reading a

‘book of one’s choice in a library, oe Senge tock

een a library to read at home.

To equate the reading .of books with the disposal

of garbage and sewage (Paris Adult Theatre y.

Slaton, Slip Opinion, 15), is to demean the great rhean-

‘ing of the First Amendment. A long and undeviating

‘Tine of cases establishes that allegedly obscene books

‘cannot be treated like gambling paraphernalia or narcot-

‘ies, ‘nor, it is respectfully submitted, may they be

‘equated with garbage or sewage. In Smith v. Califor.

ia, 361 U.S.147, the Court drew a constitutional

- distinction between the kind of guilty knowledge re-

_ quired on the part of a person charged with violating

_ ‘the food or drug laws and a person charged with violat-

“glue obscenity laws. After observing that the usual

~~

rationale for such statutes is that the public interest in

the purity of its food is so great as to warrant the

imposition of the highest standard of care on distribu-

tors, the Court said:

“There is no specific constitutional inhibition

against making the distributors of foods the

strictest censors of their merchandise, but the

constitutional guarantees of the freedom of speech

_ and of the press stand in the way of imposing a

similar requirement on the bookseller.” (361 U.S,

at 152-153).

Mr. Justice Frankfurter, concurring, observed that:

“.+« [There is an important difference in the scope

of the power of a State to regulate what feeds

the belly and what feeds the brain. . . . The

balance that is struck between [the general prin-

ciple that awareness of what one is doing is a

prerequisite for the infliction of punishment] and

the overriding public menace inherent in the traf-

ficking in noxious food and drugs cannot be car-

ried over in balancing the vital role of free speech

as against society’s interest in dealing with pornog-

raphy.” (361 U.S. at 162). |

In Marcus v. Search Warrants of Property, 367 U.S.

717, the Court held that the State’s power to suppress

obscenity is limited by the constitutional protections

for free expression. The Court held that the State of

Missouri could not treat “obscenity” in the same way

that it could treat gambling paraphernalia or other

contraband. In Quantity of Copies of Books v. Kansas,

378 U.S.205, the Court asserted the same proposition,

“Tt is no answer to say that obscene books are

contraband, and that consequently the standards

iit

governing the searches and seizures of allegedly

_- obscene books should not differ from those ap-

plied with respect to narcotics, gambling para-

phernalia and other contraband.” (378 U.S. at

211-212).

‘Citing from Marcus, the Court stated:

“*The authority to the police officers under the

warrants issued . . . poses problems not raised

by the warrants to scite “gambling implements”

and “all intoxicating liquors” involved in the cases

“cited by the Missouri Supreme Court. . . . For

‘the use of these warrants implicates questions

whether the procedures leading to their issuance

and surrounding their execution were adequate

_» to avoid suppression of constitutionally protected

publications. “. . . [T]he line between speech un-

conditionally guaranteed and speech which may

legitimately be regulated, suppressed, or punished

is finely drawn. . . . The separation of legitimate

from illegitimate speech calls for ... . sensitive

tools. . . .” It follows that, under the Fourteenth

‘Amendnent, a State is not free to adopt whatever

procedures it pleases for dealing with obscenity

_ as here involved without regard to the possible

_- eomsequences for constitutionally _ protected

3 oneal (378 U.S. at 212).

In Roaden v. Kentucky and Heller v. New York,

is Court again recognized that law enforcement offi-

a als cannot treat allegedly obscene books the way they

“can treat gambling paraphernalia or narcotics.

The issue is not, it is submitted, whether the right

read is fundamental and implicit in the concept of

dered liberty. Our whole constitutional heritage, and

ee

virtually every prior case decided by this Court, at-

test to the fact that the right exists. The critical issues

are whether the State has a compelling interest in pro-

hibiting consenting adults from exercising their right to

read; whether California Penal Code Section 311.2 is

necessary to the accomplishment of a permissible state

policy; and whether California Penal Code Section

311.2’is sufficiently narrowly drawn as not to impinge

on constitutionally protected rights.

There is no compelling state interest in preventing

persons, who have a constitutional right to read an

“obscene” book at home, from reading such a book in

a library, or from taking such a book, from a library

to their homes.

In the case at bar, the Court gave the following

justification for interfering with an adult’s right to

read a book of his choice:

“For good or ill, a book has a continuing life.

Tt is passed hand to hand, and we can take

note of the tendency of widely circulated books

of this category to reach the impressionable young

and have a continuing impact. A State could rea-

sonably regard the ‘hard core’ conduct described

by Suite 69 as capable of encouraging or causing

antisocial behavior, especially in its impact on

young people. States need not wait until behav-

ry experts or educators can provide empirical

data before enacting controls of commerce in ob-

scene materials unprotected by the First Amend-

ment or by a constitutional right to privacy. We

have noted the power of a legislative body to en-

act such regulatory laws on the basis of unprov-

able assumptions.” (Kaplan. v. California, Slip

Opinion, 5).

See

oe

Initially it should be observed that measuring the im-

pact of a book, under a general obscenity statute, by

its impact on youth is a flat repudiation of the rule

unanimously laid down by the Court in Butler v.

Michigan, 352 U.S.380. In Butler, Justice Frankfurter,

speaking for the Court, held unconstitutional a Mich-

igan obscenity law that made it an offense for a book-

seller “to make available for the general reading pub-

lic . . . a book . . . found to have a potentially dele-

terious influence upon youth” (352 U.S. at 382-383).

In Butler, as in the case at bar, the book’ was in fact

sold to a police officer. Michigan argued that it was

“reasonable” to quarantine “the general reading public

against books not too rugged for grown men and

women. in order to shield juvenile innocence... .” (352

US. at 383).

In striking down the Michigan statute, Mr. Justice

Frankfurter stated:

“We have before us legislation not reasonably

restricted to the evil with which it is said to deal.

The incidence of this enactment is to reduce the

adult population of Michigan to reading only what

is fit for children. It thereby arbitrarily curtails

one of those liberties of the individual, now en-

shrined in the Due Process Clause of the Four-

teenth Amendment, that history has attested as

the indispensable conditions for the maintenance

and progress of a free society. . . .” (352 US. at

383-384).

In Roth, the Court incorporated the Butler decision,

_ holding that under a general obscenity law, the chal-

lenged work must be measured solely by its impact on

the average adult.

| ae

The Court’s statement herein that the book in ques-

tion was “capable of encouraging or causing antisocial

behavior, especially in its impact on young people” is

the purest speculation and without any empirical sup-

port. In United States v. Roth, 237 F.2d 796 (2d Cir.

1956), Judge Frank, after examining the literature as of

that date, concluded that there is no basis for believing

that “obscenity” induces antisocial behavior. (237 F.,

2d. at 812-817). The same conclusion was reached,

with even more emphasis, in Stanley v. Georgia, 394

US.557, 566.

The Report of the Commission on Obscenity and

Pornography reached the same result after two years

of study and after engaging in approximately sixty

independent scientific res¢arch projects to determine

what effect “obscene” material had on people. The

Commission concluded that: |

“If a case is to be made against ‘pornography’

in 1970, it will have to be made on grounds other

»than demonstrated effects of a damaging personal

or social nature. Empirical research designed to

clarify the question has found no reliable evidence

to date that exposure to explicit sexual materials

plays a significant role in the causation of delin-

quent or criminal sexual behavior among youth or

adults.” (Commission Report, 139).

This empirical investigation “supports the opinion of

a substantial majority of persons professionally en-

gaged in the treatment of deviancy, delinquency and

antisocial behavior, that exposure to sexually explicit

materials has no harmful causal role” in the areas of

crime, delinquency or sexual deviancy. (Commission

Report, 52).

Be Ie

_ Two of the Commissioners who endorsed the major-

ity conclusion were Dr. Morris A. Lipton and Dr. Ed-

ward D. Greenwood.” They filed a separate statement

in which they stated:

“We would have welcomed evidence relating

exposure to erotica to delinquency, crime and an-

tisocial behavior, for if such evidence existed we

might have a simple solution to some of our most

urgent problems. However, the work of the Com-

mission has failed to uncover such evidence. Al-

though the many and varied studies contracted for

by the Commission may have flaws, they are re-

markably uniform in the direction to which they

point. This direction fails to establish a meaning-

ful causal relationship or even significant correla-

- tion between exposure to erotica and immediate or

delayed antisocial behavior among adults. To as-

sert the contrary from the available evidence is

not only to deny the facts, but also to delude the

public by offering a spurious and simplistic an-

swer to highly complex problems.” (Commission

Report, 380).

Dr. G. William Jones, an ordained Methodist clergy-

man, as well as an educator, stated:

~ ie

“As a clergyman, and as one who follows a

Leader who said, ‘I am . . . the Truth,’ and ‘They

shall know the Truth and the Truth shall set

them free,’ I believe that the search for truth is a

liberating, and thus a holy, quest and that science

has often proven itself to be God’s handmaiden in

*Their credentials are set forth in the Commission Report,

634, 638. The qualifications-of all of the Commissioners are

_ found in the Report, 634-639.

- this quest. oe many religious persons may

_ be distressed by the findings of our research, they

_ Must certainly. rejoice. that \misconceptions. and

prejudices are being replaced by knowledge, and

Gil oe Gases aad dics er ae

directed toward what appears to be the surer roots

of the sexual maladies of our people.

“I have long been concerned that the burden of

. blame and the therapy of re-education be focused

~ on the true sources of the sexual crimes and mal-

adjustments which plague our country and its

_ Citizens. If certain kinds of books or films had

been proven the cause, then I was quite willing

to join in the crusade against them. However, it

has been very adequately shown through our re-

search that the roots of such behavior lie in the

_ home and in the early years of family and sibling

relationships. It is good, I believe, to stop chasing

what may have been our unconscious scapegoats

in the media and to concentrate these energies in-

stead upon the kind of re-education of the fam-

ily which will make for health and sanity.” (Com.

mission Report, 374-375).

Even the dissenters—Father Hill and Reverend Link

—failed to base their case in support of government

control of obscenity on the proposition that “obscenity”

incites antisocial conduct. They said:

“The government interest in regulating pornog-

raphy has always related primarily to the pre-

vention of moral corruption and not to preven-

tion of overt criminal acts and conduet, or the

protection of persons from being shocked and/or

offended.” (Commission Report, 385) (emphasis

in original).

—25—

It thus appears that in the case at bar there is no

sufficiently compelling reason to justify the interference

with the right of free persons to read what they choose.

In Paris Adult Theatre v. Slaton (Slip Opinion, 11),

the Court said:

“Although there is no conclusive proof of a con-

nection between antisocial behavior and obscene

material, the legislature of Georgia could quite rea-

sonably determine that such a connection does or

might exist.”

_ With all deference, we suggest, that on the available

evidence Georgia could not reasonably determine that

there is a causal connection between antisocial be-

havior and obscene material. As Drs. Lipton and

Greenwood stated:

“To assert [that there is such a relationship] is

not only to deny the facts, but also to delude the

public by offering a spurious and simplistic answer

to highly complex problems.”

Freedom of speech and press cannot be limited on

_ such a slender showing. The State has not only failed

to make a compelling showing to justify the deep in-

trusions of First Amendment rights, but has failed to

justify the intrusion even “rationally”.

In Paris Adult Theatre v. Slaton (Slip Opinion, 15),

the Court recognized the standing of a theatre operator

to assert the right of his customers to view films of

their choice. Librarians have even greater standing to

"assert their patrons’ right to read. In California, for

— 25

ag Soon QTE TER Ta akg na deme:

of public libraries, saying:

“The legislature hereby declares it is in the interest

of the people of the State that there be a general

diffusion of knowledge and intelligence through

the establishment and operation of public libraries.

Such. diffusion is a matter of general concern in-

» asmuch as itis the duty of the State to provide

encouragement to the voluntary lifelong learning

of the people of the State. .

“The legislature further declares that the public

library is a supplement to the formal system of

free public education, and a source of information

and inspiration to persons of all ages, and a

resource for continuing education beyond the

years of formal education, and as such deserves \

adequate financial support from government of

all levels.” (California Education Code §27000).

It follows, amicus suggests, that a patron of a library

has a right to read in the library any book of his

choice, and similarly has a right to take home from

his library any book that is of interest to him, without

regard to the content of the book. That right, we sub-

mit, is fundamental and is implicit in the concept of

ordered liberty.

a Tee

A Bos Il.

To Subject a Distributor of Books or Other Media of

Expression to Criminal Prosecution for Distribut-

ing an “Obscene” Work Prior to the Time That

There Has Been a Judicial Determination of Its

Obscenity Is a Denial of Due Process of Law and

Constitutes Cruel and Unusual Punishment in Vio-

lation of the Eighth and Fourteenth Amendments

to the United States Constitution.

_ In the nature of things, librarians are particularly

vulnerable to the threat of prosecution under state

obscenity laws. It is the duty of librarians to collect

and disseminate works of the widest possible interest

and diversity. Some of these works may be thought

obscene by local law enforcement officials emboldened

by the Court’s opinion herein, and the related cases.*

i

‘In Oklahoma City, for example, the District

Racbecce of Senn, ine aby; books that, were sate

Rebecca of Sunnybrook Farm and Black Beauty. (Okla.

, June 22, 1973). At the present time, the

fiction is Once Is Not Enough by Jacqueline Susann,

i work of nonfiction is The Joy of Sex by

ort. The Joy of Sex is replete with pictures of the

sex act and Once Is Not Enough is replete with descrip-

thereof. Both books can be found in most major libraries.

1

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Salt Lake City, Utah, law enforcement officials vowed

would seize “LAST TANGO IN PARIS” if it came

Jason Epstein of Random House, who edited the book

Complaint by Philip Roth, said, “There is nothing

‘Portnoy’ or anything now.” In Kansas “ig Pos

circuit judge ordered the destruction of 127 different

zines and books seized in police >= thn om

bookseller removed the magazine “ irl ing a

of George Maharis in the centerfold. ise, Idaho,

fi

,

_ “Playboy” was removed from the racks. (Los Angeles Times,

_ Suly 8, 1973, Part VU, 5).

—28—

Because the crime of “obscenity” is so vague and

arbitrarily enforced, a judicial determination prior to

the initiation of a criminal prosecution is required by

the Due Process Clause of the Fourteenth Amendment

and by the Cruel and Unusual Punishment Clause of

the Eighth Amendment as the same is incorporated

into the Fourteenth Amendment.

‘In Paris Adult Theatre v. Slaton, the Court stated

that a procedure pursuant to which a challenged work’s

obscenity is judicially determined in a civil proceeding

provides a distributor “the best possible notice, prior

to any criminal prosecution, as to whether the materials

are unprotected by the First Amendment and subject

to state regulation.” (Slip Opinion, 5).

_ Justice Douglas, dissenting in Miller y. California

(Slip Opinion, 4-5), expressed the view that such a prior

determination was constitutionally required to satisfy the

“fair notice” requirement of the Due Process Clause.

After commenting on the difficulty the Court has had try-

ing, unsuccessfully, to define obscenity, he argued that

obscenity could not be defined because it deals with

subjective matters of taste. “What skocks me may be

sustenance for my neighbor. What causes one person

to boil in rage over one pamphlet or movie may reflect

only his neurosis, not shared by others. . . . Obscenity

cases usually generate tremendous emotional outbursts.

They have no business being in the courts. . . . Under

the present regime—whether the old standards or the

ones are used—the criminal law becomes a trap.”

Douglas argued that “until a civil proceeding

has a tract beyond the pale, no criminal prosecu-

tion should be sustained. . . . In any case—certainly

when constitutional rights are involved—we should not

—29—

_allow men to go to prison or be fined when they had

+o ‘fair warning’ that what they did was criminal

conduct”. (Id., 4-6).

_ Ifa specific book has been condemned as obscene

in a civil proceeding, and thereafter a person oars

_ that particular work, then, Justice Douglas stated,

_yague law has been made specific”. A criminal mde

tion brought at that juncture “would not violate the

time-honored void-for-vagueness test. . Obscenity—

which even we cannot define with precision—is a

hodge-podge. To send men to jail for violating standards

they cannot understand, construe and apply is a mon-

strous thing to do in a Nation dedicated to fair trials

and due process.” (Id., 6-7).

A. The “New” Standards Proscribing Obscenity, Like the

“Old” Standards, Are Hopelessly Vague and “Unworkable”.

1. There is unanimity of opinion in the June 21,

1973 decisions on only one point—that the Roth test

has failed to give adequate guidance as to what

material was criminal and what material was uncondi-

tionally protected by the free speech and press provi-

sions of the First Amendment. In Miller vy. California,

the Court tracked the various obscenity decisions since

Roth and concluded they were “unworkable.” Justice

Brennan, the author of Roth, stated that his experience

had convinced him that “the approach initiated 15

years ago in Roth . . and culminated in the Court’s

decision today, cannot bring stability to this area of

the law without jeopardizing fundamental First Amend-

‘Ment values, and I have concluded that the time has

: come to make a significant departure from that ap-

- Poach. ” (Justice Brennan, dissenting in Paris, Slip

ae | ae

Opinion, 1), He went on to say that the Court’s efforts

to implement Roth “demonstrate that agreement on the

existence of something called ‘obscenity’ is still a long

and painful step from agreement on a workable defini-

tion of the term”, and that he was reluctantly forced

to the conclusion that “none of the available formulas,

including the one announced today, can reduce the

vagueness to a tolerable level while at. the same time

striking an acceptable, balance between the protections

of the First and Fourteenth Amendments, on the one

hand, .and on the other the asserted state interest in

regulating the dissemination of certain sexually oriented

materials”. Thus, concluded Justice Brennan: “As a

result of our failure to define standards with predictable

application to any given piece of material, there is no

probability of regularity in obscenity decisions by state

and lower federal courts.” (Emphasis added).

2. From a vagueness point of view, it is certainly

true that the differences between the “new” formula-

tion and the “old” one, are, “for the most part, aca-

demic.” (Justice Brennan, dissenting in Paris, Slip Opin-

ion, 22). As Justice Brennan pointed out, the first ele-

ment of the Court's “new” test is virtually identical to

the Memoirs requirement that “the dominant theme of

the material taken as a whole [must appeal to a

prurient interest in sex]. (383 U.S. at 418). Under the

“new” standard, the test is “whether the average person

applying contemporary community standards would find

that the work, taken as a whole, appeals to the pru-

rient interest.”

Justice Black, dissenting in Ginzburg v. United

States, 383 U.S.463, 478-479, stated that “human be-

ings, serving either as judges or jurors, could not be

expected to give any sort of decision” concerning prv-

a Na

_ fient interest “which would even remotely promise any

kind of uniformity in the enforcement of this law.”

He observed that the determination of whether mate-

rial appeals to “prurient interest in sex” would depend

on subjective reactions rather than on evidence such

as can ordinarily be given in a criminal case, “In the

final analysis, the submission of such an issue. . . to

a judge or jury amounts to nothing more than a re-

quest for the judge or juror to assert his own per-

sonal beliefs about whether the matter should be al-

lowed to be legally distributed. Upon this subjective

determination the law becomes certain for the first and

last time.” The same observations are of course true

with regard to whether material is “patently offensive”

to community standards. Similarly, the test of “serious-

ness” is extraordinarily vague. What is serious to a truck

driver with only an elementary education would, al-

most certainly, be found to be “frivolous” by a Ph.D.

To paraphrase what Justice Black stated in Ginzburg

concerning social value: “This element seems to me to

be as uncertain . . . [as] the unknown substance of

the Milky Way. If we are to have a free society as

contemplated by the Bill of Rights, then I can find

. little defense for leaving the liberty of American in-

dividuals subject to the judgment of a judge or jury

as to whether material that provokes thought or stim-

ulates desire is [a work having serious literary, aftis-

tic, political or scientific value]... . Whether a

particular treatment of a particular subject [is or is not

‘serious’] in this evolving, dynamic society of ours is

@ question upon which no uniform agreement could

possibly be reached among politicians, statesmen, pro-

_ fessors, philosophers, scientists, religious groups or any

_ other type of group. A case-by-case assessment of

—32—

{‘seriousness’] by individual judges and jurors is, |

think, a dangerous technique for government to utilize

in determining whether:a man stays in or out of the

Tustice Black’s conclusion in Ginzburg is still true

today: “My conclusion is that. . . no person, not even

the most learned judge, much less a layman, is ca-

pable of knowing in advance of an ultimate decision in

- his particular case by this Court whether certain ma-

terial comes within the area of ‘obscenity’ as that term

is confused by the Court today.” This is the identical

conclusion reached by Justice Brennan, dissenting in

Paris Adult Theatre v. Slaton (Slip Opinion, 20), where

he eae: my

. The problem is . . . that one cannot say

wid “eatieyy “Wak rinkeited $4 “bets” until

least five members of this Court, applying inevita-

bly obscure standards, have pronounced it so.”

3. In the June 21 decisions, the Court recognized,

as heretofore noted, that the Roth test. was. unwork-

able. The Court expressed the hope that its revised

Roth test could be made “workable” by shifting the

burden of identifying obscenity to the jury, This ap

proach was tried in the past, and failed. In United

States.v. Levine, 83 F.2d 156, 157 (2 Cir. 1936),

Judge Learned Hand stated that obscenity “is a func-

tion of many variables, and the verdict of the jury is

not the conclusion of a syllogism of which they are

to find only the minor premises, but really a small bit

of legislation ad hoc. . . .” There can never be, he

said, “constitutive principles for such judgments, or in-

deed more than cautions to avoid the personal aber-

rations of the jurors.”

a

ae ae

» «In 1957, Judge Hand returned to the same theme.

‘Speaking at the proceedings of. the American Law In-

_ $titute during the deliberation of Model Penal Code

Tentative Draft No. 6, dealing with obscenity, Judge

Hand said obscenity “cannot be defined”, and he there-

fore objected to “an attempt to define the indefinable”

(34 A.L.L, Proceedings, 191 [1957] ). Judge Hand con-

cluded that “we must not try to be definite. We must

leave it to the jury to say, is this obscene? Is it con-

_ trary to what you all think ought not to be? .. . The

attempt to mix in with this an objective standard... .

seems to me to be absurd.” (Jd., 192).

_ *'To entrust to a jury the responsibility of separating

constitutionally protected speech from criminal speech

is to abandon the rule of law to the “personal aber-

fations” of the jurors. Where the “crime” cannot be

defined and where, as here, the ‘issue generates “tre-

mendous emotional outbursts” (Justice Douglas, dis-

senting in Miller, Slip Opinion, 4), this is particularly

_ Justice Douglas correctly stated in United States v.

Vuitch, 402 U.S.62, 80, that the subject of obscenity

is an inflammatory one. “People instantly take sides

and the public, from whom juries are drawn, makes

up its mind one way or the other before the case is

_ even argued.” Since the statutory guides are extremely

‘broad and subjective, juries have a wide range to

Vote their prejudices, and those who circulate books

have ho reliable guidelines. Justice Black, dissenting in

Ginzburg v. United States, 383 U.S.463, 480, ex-

"Pressed the same view, stating that the submission of

an issue of the obscenity of material to a jury “amounts

to practically nothing more than a request for the .. .

juror to assert his own personal beliefs about whether

the matter-should be legally distributed”.

In United States v. Roth, 237 F.2d 796 (2 Cir.

1956), Judge Frank pointed to the danger of entrust-

ing to a jury the protection of First Amendment rights

in an obscenity prosecution. Initially, he observed that

“ho statistician would conceivably accept the view of

a jury—twelve persons chosen at random—as a fair

sample of community attitudes on such a subject as

obscenity. A particular jury may voice the ‘moral sen-

timents’ of a generation ago, not of the present” (237

F.2d at 822). In an obscenity case, he said, each

jury constitutes “a tiny autonomous legislature. Any

one such legislature, as experience teaches, may well

differ from in thus legislating as to obscenity,

And, one may was it the purpose of the First

Amendment, to authorize hundreds of divers jury-leg-

islators, with discrepant beliefs, to decide whether or

not to enact hundreds of divers statutes interfering

with freedom of expression?” (237 F.2d at 822-823).

Judge Frank also commented upon the stultifying ef-

fect on literature of permitting juries to decide what

literature should be preserved and what literature should

be consigned to the bonfire. “To vest a few fallible

men—. . , jurors—with vast powers of literary or artis-

tic censorship, to convert them to what J. S. Mill

called ‘a moral police’, is to make them despotic arbi-

ters of literary products. . . . An author’s imagination

may be cramped if he must write with one eye on

juries.” (273 F.2d at 825).

It is to be remembered that no expert testimony or

any other evidence need be submitted to the jury once

the challenged work is placed in evidence. If no evi-

dence is needed by jurors in obscenity cases (Paris

oe

se

Adult Theatre v. Slaton, Slip Opinion, 7, n.6), then

the “trial” becomes a mockery. Each juror is then

free to vote his “personal opinion” rather than to find

the facts. Too frequently that “personal opinion” will

not be his own but the one he believes he is expected

to hold.

- The heavy reliance the Court has now placed upon

the jury in obscenity cases should be viewed against the

background of Williams v. Florida, 399 U.S.78, and

Apodaca v. Oregon, 406 U.S.404. In Williams, the

Court held that a State was not required to afford a

defendant a jury of 12, and that a jury panel of six

members did not violate the defendant’s Sixth Amend-

ment rights as applied through the Fourteenth Amend-

ment. The Court said: “. . . [W]hile in theory the num-

ber of viewpoints represented on a randomly selected

jury ought to increase as the size of the jury increases,

in practice the difference between the 12-man and the

six-man jury in terms of the cross-section of the com-

munity represented seems likely to be negligible. Even

the 12-man jury cannot insure representation of every

distinct voice in the community, particularly given the

use of the peremptory challenge. .. .” (399 U.S. at

~ 100-102).

- In Apodaca v. Oregon, and the related cases, the

Court held that the Sixth Amendment guarantee of a

jury trial made applicable to the States by the Four-

teenth Amendment does not require that the jury’s vote

-Ssgpoemane

In criminal jury cases, the defendants are often

"Wipe of their right to voir dire a jury. See, Rule

24(a) Federal Rules of Criminal Procedure, 18

US.C.A.; United States v. Addonizio, 451 F.2d 41,

ee

65, 66 (3 Cir. 1972), cert. denied 405 U.S.935; Silver.

thorne v: United States, 400 F.2d 625, 638 (9 Cir.

1968), cert. denied 400 U.S.1022.

In a recent obscenity case, United States v. Ham-

ling, et al., 9th Cir. No. 72-1892, et seq., .... F.2d ....

(June 7, 1973), the Court held it was not error for

the trial court to refuse “to ask prospective jurors ques-

tions on voir dire designed to expose their biases and

prejudices concerning ‘obscenity’ and sex.” In that case,

the defendants were denied all opportunity to ask ques-

tions on such subjects as reading habits, film viewing,

attendance at place of worship and the like. The

Ninth Circuit said of the trial court rulings:

“The handling of those questions not asked was

clearly within the range of the District Court's

“discretion in the matter and no clear abuse of the

discretion nor prejudice to the appellants has been

shown.” (Slip Opinion, 10-11).

In United States v. Klaw, 350 F.2d 155 (2 Cir.

1955), the Court warned against the dangers in

leaving jurors free to speculate as to the obscenity of

“Even if the jury did not consist of twelve care-

fully selected Anthony Comstocks, it might well

believe that the predominant appeal of certain’ —

acknowledged works of art, sculpture and litera-

ture found in all our well-known museums and

libraries would be to the prurient interest of the

average person, or perhaps someone else. But if

that be so, can we allow the: censor’s stamp to be

affixed on the basis of an uninformed jury’s mis-

conceptions?” (350 F.2d at 167).

ced ete

Later, the court stated that unless the jury was tightly

controlled and supervised, “a witch hunt might. well

come to pass which would make the Salem tragedy fade

into obscurity.” (350 F.2d at 170). Recognizing the

dangers inherent in merely showing the challenged

material to jurors and permitting them to decide whether

it was “obscene”, the Court said:

. [I]t would be altogether too easy for any

prosecutor to stand before a jury, display the

exhibits involved, and merely ask in summation:

‘Would you want your son or daughter to see or

read this stuff? A conviction in every instance

would be virtually assured.” :

It is against this background that amicus insists that

* subjecting librarians to emotionally charged criminal

obscenity trials under admittedly vague standards is a

sheer denial of Due Process of Law. As bad as censor-

ship is, if we are to embark upon such a course, let

there at least be the fair warning of a prior judicial

decree of what is to be censored. A librarian should

not be forced to be both a censor and a defendant in a

criminal case.

B. Subjecting a Distributor of Books or Other Media of

Expression to Criminal Prosecution for Distributing an

_. “Obscene” Work Prior to the Time That There Has Been a

_ Judicial Determination of Its “Obscenity” Is Cruel and Un-

usual Punishment.

In Furman vy. Georgia, 408 U.S.238, 309, 310,

Justice Stewart, concurring, stated that the death sen-

_ Tences involved in those cases were “cruel and unusual

_ in the same way that being struck by lightning is cruel

and unusual”. He pointed out that of all people

_ eonyicted of rapes and murders in the years in question,

———

“the petitioners were among a capriciously selected

random handful upon whom the sentence of death has

in fact been imposed”. Accordingly, he concluded that

the Eighth and Fourteenth Amendments stood as a bar

to the infliction of a penalty on so “wanton” and so

“freakish” a basis. (408 U.S. at 310).

Justice Douglas, in his concurring opinion, stated

that the Eighth Amendment “was concerned primarily

with selective or irregular application of harsh penalties

and that its aim was to forbid arbitrary and discrimina-

tory penalties of a severe nature” (408 U.S. at 242).

He emphasized that there is increasing recognition of

the fact that “the basic theme of equal protection is

implicit in ‘cruel and unusual’ punishments. ‘A penalty

. . . Should be considered unusually imposed if it is

administered arbitrarily or discriminatorily.” (408 US.

at 249). The high service rendered by the “cruel and

unusual” punishment Clause of the Eighth Amendment

“is to require legislators to write penal laws that are

even-handed, nonselective, and nonarbitrary, and to

require judges to see to it that general laws are not

appled sparsely, selectively, and spottily. . . .” (408

U.S. at 256). Justice Douglas found the death penalty

statutes unconstitutional because they “are pregnant

with discrimination and discrimination is an ingredient

not compatible with the idea of equal protection of the

laws’ that is implicit’ in the ban on ‘cruel and unusual’

punishments” (408 U.S. at 257).

Justice Brennan, concurring, expressed similar views.

The Eighth Amendment, he said, means “that the

State ‘must not arbitrarily inflict a severe punishment”.

This is so because “the State does not respect human

dignity when, without reason, it inflicts upon people

a severe punishment that it does not inflict upon others.

—39—

Indeed the very words ‘cruel and unusual punishments’

imply condemnation of the arbitrary infliction of severe

punishments. ” (408 U.S. at 274).

Ei tas sickens subdert Adon mena tow

are subject to severe punishment. At the. present time,

there is pending in the Court the case of McCrary v.

Oklahoma, No. 72-1648 (41 L.W,3658), wherein a

bookseller was sentenced to a 10-year jail. term. for

allegedly obscene books. In Aday v. United

States, 388 U.S.447, the petitioner was sentenced to 25

years in jail for transporting allegedly obscene works.

To a librarian, a criminal accusation is severe punish-

ment, involving as it does the whole criminal. process

pursuant to which people are arrested, kept in jail

for endless hours, and required to post bail.

’ To throw a librarian into the arena of the criminal

courts to be exposed to public opprobrium, to be

paraded before a jury for doing his job and to expect

him to risk his freedom and security on the judgment

of an uncontrolled jury selected without reference’ to

their qualifications to appreciate literary values, is to

‘subject the librarian to a game of Russian Roulette.

All of this uncertainty and unwarranted risk could

be avoided if the State was required to initiate civil

proceedings to determine whether the questioned work

was obscene, before permitting the bringing of criminal

proceedings. Such civil proceedings would adequately

Serve the purposes of the State in suppressing the cir-

culation of allegedly obscene works without at the

Same time inflicting arbitrary criminal punishment on

persons who cannot reasonably know in advance

‘whether they are circulating constitutionally protected

works or criminal works.

—40—

“The June 21, 1973 decisions mark a radical break

from past decisions of the Court affording the broadest

possible protection’ to books and other media of ex.

pression, regardless of their content. Amicus believes

that this departure from traditional First Amendment

principles’ was madé¢ without the Court having had the

Opportunity to ‘consider the decisions’ far-reaching chill-

inig effect on librarians and others who traditionally

Circulate ‘the ‘press: Granting a Rehearing in which

amicus may fully present its views would, we. hope,

prove ‘helpful to ‘the Court in formulating standards

that conform to traditional ‘principles and procedures

for protecting freedoms of speech and press. These

precious freedoms are “vulnerable to damaging but

barely. visible encroachments”. In the case at bar, the

encroachments are glaring, and carry the potential for

extraordinary. abuse, Accordingly, the Court should

grant ‘the Petition for Rehearing. and reconsider its

ota ant

. “ Respectfully submitted,

Witt D. Nort,

pee - '—. Houston Harsna,

Te Meee’ hai Attorneys for Amicus Curiae.