Amicus Curiae Brief — Hamling v. United States

| rFiulck wv

a Slee 1974

alleen MICHAEL RODAK, JR_.CLERK

Supreme Court of the a 7

Ocroser Term, 1973

No. 73-507

oe

Wiuuam L. Hamirne, et al.,

Petitioners,

—V.—

Untrep States or AMERICA,

Respondent

—_—————————————————SSSSSSS=S====[{={=__[=[=[=[{=[{[{={=[==_

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES UNION

OF SOUTHERN CALIFORNIA, AMICI CURIAE

Metvin L. Wuir

Jort M. Gora

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Frep OKRAND

Joun O’LovuGHLIN

JmL JAKES

American Civil Liberties Union

Foundation of Southern California

323 West Fifth Street

Los Angeles, California 90013

Attorneys for Amici Curiae

Intereest of Amici Curiae

Summaary of Argument

I. The continued exclusion of obscenity from

the protection of the First Amendment is

unjustified

Il., The authority to prohibit obscene materials

will be used to suppress protected expression ..

Ill.. The federal postal power should not be utilized

as the predicate for censorship of obscenity ......

IV.. Section 1461 is prohibitively vague, and its

continued enforcement violates several funda-

mental constitutional principles

Concliusi0on

TaBLE oF AUTHORITIES

Cases:

Apth¢eker v. Secretary of State, 378 U.S. 500 (1964) ....

Assocciated Press v. United States, 326 U.S. 1 (1945) ....

Attorrney General v. Book Named “God’s Little Acre”,

3265 Mass, 281, 93 N.E.2d 819 (1950)

Baggrett v. Bullitt, 377 U.S. 360 (1964)

Besigg vy, United States, 208 F.2d 142 (9th Cir. 1953) ....

Bouige vy, Columbia, 378 U.S. 347 (1964)

Bursétyn vy. Wilson, 343 U.S. 495 (1952)

13

14

i.

PAGE

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) 5

Commonwealth v. Friede, 271 Mass. 318, 171 N.E. 472

(1930) . 13

Communist Party v. S.A.C.B., 367 U.S. 1 (1961) ........ 10

Connally v. General Construction Co., 269 U.S. 385

(1926) 3

Cox v. United States, 370 F.2d 563 (9th Cir. 1967) 0... %

Dennis v. United States, 341 U.S. 494 (1951) 000. 10

Detco Inc. v. McCann, 365 F. Supp. 176 (E.D. Wise.

1973) 7

Doubleday & Co. v. New York, 335 U.S. 848 (1948) ... 13

Dyson v. Stein, 401 U.S. 200 (1971) 9, 15

Ginzburg v. United States, 383 U.S. 463 (1966) ........ .20, B

Gooding v. Wilson, 405 U.S. 518 (1972) 6

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........ 4,35

Great Speckled Bird of Atlanta v. Stynchcombe, 298 F.

Supp. 1291 (N.D. Ga. 1970) 16

Grisby v. State, 14 Cr. L. Rep. 2143 (Tenn. Sup. Ct.

1973) re

Hamar Theatres, Inc. v. Cryan, 365 F. Supp. 1312 (D.

N.J. 1973) (three-judge court), juris. statement filed,

42 U.S. Law Week 3365 (Dec. 18, 1973) 2. =

Henley v. Wise, 303 F. Supp. 62 (N.D. Ind. 1969) .... 16

Hiett v. United States, 415 F.2d 664 (5th Cir. 1969) ......4, 20

Interstate Circuit, Ltd. v. Dallas, 390 U.S. 676 (1968) .. 7

Jenkins v. Georgia, O.T. 1973, No. 73-557 . B

a

PAGE

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

vac. on other grounds, 401 U.S. 216 (1971) -..........- 9

Kingsley International Picture Corp. v. Regents, 360

U.S. 684 (1959) 11, 25.

Kois v. Breier, 312 F. Supp. 19 (E.D. Wis. 1970) .......... 16

Kois v. Wisconsin, 408 U.S. 229 (1972) 3,15

Lamont v. Postmaster General, 38+ U.S. 301 (1965) ....4, 20

Levy v. Parker, 478 F.2d 772 (8rd Cir. 1973), prob.

juris. noted, 42 U.S. Law Week 3155 (Sept. 25,1973) .. 4,

Linda R.S. v. Richard D., —— U.S. ——, 35 L.Ed.2d

25

536 (1973) 25

Literature Inc. v. Quinn, 482 F.2d 372 (ist Cir. 1973) ..... 27

28

27

Long Island Vietnam Moratorium Committee v. Cahn,

437 F.2d 344 (2d Cir. 1970)

Louisiana v. Shreveport News Agency, Inc., —— La.

—, 42 Law Week 2344 (1973)

Manual Enterprises v. Day, 370 U.S. 478 (1962) ........ 22-23

Memoirs v, Massachusetts, 383 U.S. 413 (1966) -........... 21

Miller v. California, 413 U.S. 15 (1973) ~.............. 3, 4-5, 9, 11,

23, 26

NA.A.C.P. v. Button, 371 U.S. 415 (1963) 6

New York Times v. Sullivan, 376 U.S. 254 (1964) ~...... 6

Papish v. University of Missouri Board of Curators,

410 U.S. 167 (1973) 15

Parducci v. Rutland, 316 F. Supp. 352: (M.D. Ala. 1970) 16

iv

PAGE

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) 34, 5,

9-10, 12, 28, 9

People v. Heller, —— N.Y.2d —— (Dee. 28, 1973) ...... 13,4

Pittsburgh Press Co. v. Pittsburgh Commission on

Human Relations, 413 U.S. 376 (1973) 6

President’s Council, Dist. 25 v. Community School

Board, Dist. 25, 457 F.2d 289 (2d Cir.), cert. denied,

409 U.S. 448 (1972) 16

Price v. Commonwealth, —— Va. ——, 14 Cr. L. Rep.

2379 (Va. Sup. Ct., January 14, 1974) 12

Redmond v. United States, 384 U.S. 264 (1966) (per

curiam) 21

Redrup v. New York, 386 U.S. 767 (1967) 7,1

Roe v. Wade, 410 U.S. 113 (1973) ll

Roth v. United States, 354 U.S. 476 (1957) ........4-5, 9,19,

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) ... %

Southeastern Promotions, Ltd. v. City of Atlanta, 334 |

F. Supp. 634 (N.D. Ga. 1971) Nv

Southeastern Promotions, Ltd. v. Conrad, 486 F.2d 894

(6th Cir. 1973), cert. denied, 42 U.S. Law Week 3388

(Jan. 8, 1974) ie

Stanley v. Georgia, 394 U.S. 557 (1969) 3,7,8

State v. J-R Distributors, Inc., 512 P.2d 1049 (Sup. Ct.

Wash. 1973) 7

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

(three-judge court), vac. on other grounds, sub nom.

Dyson v. Stein, 401 U.S. 200 (1971) 9

Stroud v. Indiana, —— Ind. ——, 13 Cr. L. Rep. 2541

(1973) 7

-

Thornhill v. Alabama, 310 U.S. 88 (1940)

United Artists Corp. v. Proskin, 363 F. Supp. 406 (N.D.

N.Y. 1973) (three-judge court) 18

United States v. Bass, 404 U.S. 336 (1971) -..................

United States v. Dellapia, 433 F.2d 1252 (2d Cir. 1970) 8,

21

United States v. 18 Packages of Magazines, 238 F.

Supp. 846 (N.D. Cal. 1964) 20

United States v. Head, 317 F. Supp. 1138 (E.D. La.

1970) 16

United States ex rel. Milwaukee Social Democratic Pub.

* Co. v. Burleson, 255 U.S. 407 (1921) 19

United States v. Lang, 361 F. Supp. 380 (C.D. Cal.

1973) 27, 28

United States v. Maze, —— U.S. ——, 42 U.S. Law

Week 4113 (Jan. 8, 1974) 21

United States v. One Book Called “Ulysses”, 5 F. Supp.

182 (S.D.N.Y. 1933), aff’d, 72 F.2d 705 (2d Cir. 1984) 13

United States v. Orito, 413 U.S. 139 (1973) ...................- 21

United States v. Palladino, —— F.2d ——, 14 Cr. L.

Rep. 2354 (1st Cir. 1964) 23

United States v. Reese, 92 U.S. 214 (1876) .................... 26

United States v. Reidel, 402 U.S. 351 (1971) ...................- 9, 20

United States v. Robel, 389 U.S. 258 (1967) .................... 26

United States v. 35 MM Film Entitled “Language of

Love”, 432 F.2d 705 (2d Cir. 1970) 12

United States v. 37 Photographs, 402 U.S. 363 (1971). 9

United States v. 12 200-Foot Reels, 413 U.S. 123 (1973) 27

PAGE

United States v. Various Articles of “Obscene” Mer-

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

judge court), prob. juris. noted, 402 U.S. 971, app.

dis., per Rule 60, 403 U.S, 942 (1971) 22. 4

United States v. Watson, 293 F. Supp. 694 (W.D. Mo.

1968) 21

Washington Free Community v. State’s Attorney, 300

F. Supp. 487 (D. Md. 1969) 16

Welsh v. United States, 398 U.S. 333 (1970) 0000... 28

Winters v. New York, 333 U.S. 507 (1948) 0000. 23, 3

Constitution :

First Amendment .. passim

Article I, §8, el. 7 19

United States Code:

18 U.S.C. $1461 passin

18 U.S.C. $1462 2

Miscellaneous : |

Haight, Bannep Booxs (3d. Edit. RR Bowker, Co.

(1970) 13-14

T. Emerson, The System of Freedom of Expression

(1970) pp. 468-70 13

The Supreme Court, 1972 Term, 87 Harv. L. Rev. 1,

1962-63, n. 19 6

IN THE

Supreme Court of the United States

Ocroser Term, 1973

No. 73-507

>

Wiutam L. Hamuine, ef al.,

Petitioners,

—

Unrrep States or AMERICA,

Respondent.

<>

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES UNION

OF SOUTHERN CALIFORNIA, AMICI CURIAE

Interest of Amici Curiae*

The American Civil Liberties Union is a nationwide, non-

partisan organization of over 250,000 members engaged

solely in the defense of those principles embodied in the Bill

of Rights. The American Civil Liberties Union of Southern

California is an affiliate of the American Civil Liberties

Union and functions within Southern California where this

ease arose. During its fifty-four year existence, the ACLU

has primarily been concerned with protecting the First

Amendment guarantees of freedom of speech and press.

Our original concern was with direct governmental efforts

to restrict political expression. But it has been our experi-

* Letters of consent from counsel for the petitioners and the

United States have been filed with the Clerk of the Court.

2

ence that when any form of speech or writing, such as

“obscenity”, is declared to be beyond the bounds of cop.

stitutional protection, such exceptions are employed to sup.

press political expression. Similarly, the exclusion of any

category of expression from general First Amendment

protection erodes the safeguards for speech which is pro.

tected.

Because of these concerns, we have participated in many

of this Court’s decisions dealing with obscenity issues. We

filed amicus curiae briefs in connection with three of the

cases decided by the Court on June 21, 1973. In those briefs

we suggested that neither the doctrinal nor the empirical

case for excluding this particular category of expression

from constitutional protection had ever been made. We

still hold to that view.

But even assuming the soundness of the Court’s rulings

that material categorized as obscene may be systematically

prohibited, controlled and regulated, this case presents im-

portant issues concerning the propriety of the exercise of

federal power to accomplish such control, the method by

which that power is exercised, and the due process viola-

tions inherent in applying standards enunciated in 1973

to punish conduct engaged in prior to that time.

The specific issues in this case involve the proper applica-

tion of the federal statute prohibiting the mailing of ob.

scene material in general, and particularly in light of last

Term’s rulings. The purpose of this brief is to suggest

to the Court the larger context in which these issues must

be decided.

Summary of Argument

This Court’s decisions in Miller v. California, 413 U.S.

15 (1973) and Paris Adult Theatre I v. Slaton, 413 U.S. 49

(1973), reaffirming the doctrine that obscenity may be

systematically proscribed by the state, rest upon analytic

premises which have been eroded and an inadequate demon-

stration of social harm. The proper way out of the “intrac-

table obscenity problem” was charted in Stanley v. Georgia,

994 U.S. 557 (1969), that is, the application of a traditional

First Amendment approach to obscenity, focusing on the

context, not the content, of the communication and assess-

ing the governmental interests involved in the particular

situation.

Notwithstanding the Court’s assurances, last Term’s ob-

seenity decisions will not be limited to the prohibition of

hard-core pornography, especially since one of the Court’s

avowed purposes was to facilitate prosecution of obscene

material. The power to suppress materials with a sexual

content has historically been used as a pretext to censor

publications because of their political or social commentary.

In this century alone, the existence of sexual content has

been used as the predicate for banning the works of authors

such as James Joyce, Theodore Dreiser, Erskine Caldwell,

Edmund Wilson, Sinclair Lewis and Ernest Hemingway.

More recently, dissident expression of opinion has been

punished because it was assertedly obscene. See, ¢.g., Kois

v. Wisconsin, 408 U.S. 229 (1972). Events since last June

have done nothing to dispute the prediction that the Court’s

rulings will fuel the forces of repression and censorship.

_

4

Even if obscenity can continue to be banned system.

atically, the case for the exercise of federal power in this

area has never adequately been made, and the argument

that federal interests in this area are attenuated, see Roth

v. United States, 354 U.S. 476, 504-05 (1957) (dissenting

opinion of Justice Harlan), has not been answered. The

federal postal power cannot be used as the predicate for

censorship of obscenity. See, Lamont v. Postmaster Gen.

eral, 381 U.S. 301 (1965); Hiett v. United States, 415 F.2

664 (5th Cir. 1969). And the federal government has m

identifiable substantive power over the kinds of interests

which in Paris Adult Theatre I were held to justify compre.

hensive state regulation.

Finally, even if federal power over obscenity is recog.

nized, such power should not be exercised through a statute

as vague as Section 1461. Vague laws regulating expression

violate First Amendment interests and the due process

“principle of legality.” Grayned v. City of Rockford, 48

U.S. 104 (1972); Levy v. Parker, 478 F.2d 772 (3rd Cir,

1973); prob. juris. noted, 42 U.S. Law Week 3155 (Sept.

25, 1973). Though Roth upheld this statute against a

vagueness challenge, the Miller decision requires the kind

of specificity which this statute lacks. And even if it can

be “authoritatively construed” to embody the Miller re

quirements, such construction should not be retroactively

applied to these petitioners.

The continued exclusion of obscenity from the pro-

tection of the First Amendment is unjustified.

The path of this Court’s obscenity jurisprudence, from

Roth v. United States, 354 U.S. 476 (1957) to Miller v.

California, 413 U.S. 15 (1973) and Paris Adult Theatre I v.

Slaton, 413 U.S. 49 (1973), has been traced many times

and needs little elaboration. In Roth, addressing the ques-

tion for the first time, the Court held that “obscenity is not

within the area of constitutionally protected speech or

press.” 354 U.S. at 485. The bases for the ruling were

dicta in earlier cases, some scanty evidence that obscenity

had been banned in colonial times, and the almost universal

prohibition of obscenity in contemporary times. The an-

alytical theory of the decision was that certain categories

of utterances “are no essential part of any exposition of

ideas, and are of such slight social value as a step to truth

that any benefit that may be derived from them is clearly

outweighed by the social interest in order and morality.

...” 354 U.S. at 485 (quoting from Chaplinsky v. New

Hampshire, 315 U.S. 568, 572 (1942)). Thus, obscenity

joined other kinds of utterances—most notably “fighting

words” and “libel”—as somehow beyond the constitutional

pale. As a consequence of applying this “two-level” theory

of the First Amendment, the Roth Court did not have to

undertake the task of carefully analyzing the precise so-

cietal interests advanced by the proscription of obscenity.

Indeed, “[c]ommentators have suggested that the two-

level theory was used in Roth because it was unlikely that

the Court would have been able to marshal evidence that

the consequences of obscenity, in terms of antisocial con-

6

duct or more general injury to society, were so imminent

or significant as to support proscription under any previous

formula used to justify regulation of protected speech,”

The Supreme Court, 1972 Term, 87 Harv. L. Rev. 1, 162-63,

n. 19.

In the years since Roth, the doctrinal underpinnings of

the decision have been seriously eroded. In New York

Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court re.

jected the doctrine that once an utterance can be categorized

as “libel”, it is then stripped of all First Amendment pro.

tection. See also, Gooding v. Wilson, 405 U.S. 518 (1972)

(fighting words doctrine). And, in general, this Court has

disapproved efforts to exclude categories of speech from

the protection of the First Amendment by attaching labels

to the kind of expression involved. See, N.A.A.C.P. y,

Button, 371 U.S. 415 (1963); cf. Pittsburgh Press Co. y.

Pittsburgh Commission on Human Relations, 413 U.S. 376

(1973).

Similarly, in the years between Roth and Miller, the

Court’s efforts were devoted not to an examination of the

interests supporting obscenity laws, but to elaborating and

applying the constitutional definition of obscenity and

spelling out the procedural safeguards which had to be

employed in the course of determining on which side of the

constitutional line the particular magazine, book or film

would be placed. And, of course, the consequence of the

two-level approach to obscenity was that each determina-

tion in each case presented the constitutional issue whether

the categorization, and thereby the denial of constitutional

protection, was valid. For although on one side of the line

there was prohibitable obscenity, on the other side was

protected expression, buttressed by all the accepted First

7

Amendment values designed to maximize the flow and scope

of information and discussion. See, Thornhill v. Alabama,

310 U.S. 88, 102 (1940) ; Associated Press v. United States,

396 U.S. 1, 20 (1945). Thus, the “intractable obscenity

problem” persisted, and the variety of positions taken by

Justices of this court proliferated. See, Interstate Circuit,

Lid. v. Dallas, 390 U.S. 676, 704-08 (1968) (Harlan, J. dis-

senting).

For a while it appeared that a majority of the Court

would break out of the pattern by moving away from the

focus on content toward a traditional First Amendment

inquiry into the context and manner in which the material

is presented. Such an analysis would assess whether the

communication of the material—even though obscene—

could be found to trench upon presumably valid state inter-

ests, such as prohibiting the pandering of obscene mate-

rials, protecting minors, or guarding the rights of adults

who would not wish exposure to such communications. See,

Redrup v. New York, 386 U.S. 767 (1967). Such an ap-

proach contained two important benefits. First, it could

bring familiar, traditional First Amendment analysis to

the obscenity area; second, it would ease the pressures on

this and lower courts by reducing the number of cases when

the issue of obscenity vel non would have to be addressed.

The apex of this approach was Stanley v. Georgia, 394

U.S. 557 (1969), where the Court held that a statute punish-

ing “mere private possession of obscene matter violates

the First Amendment.” Jd. at 559. While the setting of

Stanley was the privacy of the home, the ratio decidendi

of the decision was anchored in the interests protected by

freedom of expression. Equally important, in rejecting

Georgia’s arguments that it possessed constitutional power

Sa

8

to ban the mere possession of obscene materials, the Court

explicitly overruled some of the primary arguments tra.

ditionally offered to sustain obscenity laws. To the argu.

ment that there is state power “to protect the individual's

mind from the effects of obscenity,” the Court responded

that such sway over the “moral content of a person's

thoughts” is “wholly inconsistent with the philosophy of

the First Amendment.” 394 U.S. at 565-566. As to the

claim that “exposure to obscene materials may lead to

deviant sexual behavior or crimes of sexual violence,” the

Court found “little empirical basis,” id. at 566, for the

assertion and no legal justification for suppressing ideas

because they may lead to harmful conduct. Finally, a ban

on private possession could not be supported as an aid to

enforcement of prohibitions against distribution.

By holding that obscene material was nevertheless enti-

tled to some constitutional protection, and in rejecting cer-

tain of the primary rationales for obscenity statutes, the

Stanley decision contained the potential for redirecting the

focus of this Court’s doctrine in this area. And, indeed, many

lower courts read Stanley as having written “a new chap-

ter” in obscenity law, one requiring attention to the gov-

ernment interests implicated in the particular prohibition.

See, e.g., United States v. Dellapia, 433 F.2d 1252 (2d Cir.

1970). In Dellapia, the federal statute involved here, 18

U.S.C. $1461, was utilized to prosecute the private mailing

of obscene films. Finding that the defendants’ conduct in-

fringed no interest which justified governmental regula-

tion, the Second Circuit, in an opinion by Chief Judge

Irving Kaufman, reversed the conviction: “It would be

anomalous to prevent consenting adults from freely pass-

ing among themselves obscene material which Stanley tells

9

us each of them was entitled to possess and view or read.”

Id. at 1258. Similarly, in United States v. Various Articles

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

1970) (three-judge court), prob. juris. noted, 402 U.S. 971,

app. dismissed, per Rule 60, 403 U.S. 942 (1971), invali-

dating the federal ban on importing obscene materials as

applied to a person importing single items for his own

use, Circuit Judge Moore concluded that “orthodox First

Amendment considerations are once again of paramount

importance, Roth notwithstanding, even where the publi-

eations in issue are concededly obscene.” 7d. at 195. See

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

(three-judge court), vacated on other grounds, sub nom.,

Dyson v. Stein, 401 U.S. 200 (1971); Karalexis v. Byrne,

306 F. Supp. 1363 (D. Mass. 1969), vacated on other

grounds, 401 U.S. 216 (1971).

But these stirrings of a new, sound approach to the prob-

lem, one which would recognize valid governmental inter-

ests while accommodating traditional First Amendment

concerns, were short-lived. In 1971, with a change in the

composition of the Court, the reach of Stanley began to be

limited. See, United States v. Reidel, 402 U.S. 351 (1971);

United States v. Thirty-Seven Photographs, 402 U.S. 363

(1971). And with Miller and Parts Adult Theatre I, a ma-

jority of the court delivered the coup de grace to whatever

potential remained to utilize Stanley as a sound route away

from the “intractable obscenity problem.” With these two

eases the Court has, with some adjustments and troubling

implications, retreated back to the regime of Roth.

The obvious question is why? Why, when the doctrinal

premise of Roth—that certain categories of expression are

really not expression—is far weaker than it was 15 years

a

10

ago, has the Court reaffirmed the two-level theory of ob.

scenity. And why, in the absence of any intervening, sys.

tematic showing that exposure to obscenity is socially harm.

ful, has harm once again simply been assumed.

In Paris Adult Theatre I, the majority attempted to an.

swer these questions by identifying the state interests which

obscenity regulation fosters. Relying on a minority report

of the Commission on Obscenity and Pornography, and on

commentators who generally support strong social controls,

the majority found “at least an arguable correlation between

obscene material and crime,” 413 U.S. at 58, or at least

that a legislature “could quite reasonably determine that

such a connection does or might exist.” Jd. at 61. Not only

did Stanley conclude that such connections had not been

shown, but, in general, where First Amendment rights are

potentially involved, the Court has required a much more

substantial demonstration that the prohibition rests on

firm, indeed compelling, legislative premises—not merely

the possibility of a speculative connection between the

speech to be prohibited and the social danger to be averted.

See, Dennis v. United States, 341 U.S. 494, 505-08 (1951);

Communist Party v. S.A.C.B., 367 U.S. 1, 90-93 (1961).

Similarly, there has been no persuasive showing that the

concern with protecting children or non-consenting adults

could not be met in ways short of continued, total prohibi-

tion of obscenity outside of the home. Finally, and most

ominously, the Court indicated that obscenity legislation

could validly be premised on concern for the quality and

tone of life, particularly in urban areas, as part of the gen-

eral governmental power to protect “the social interest

in order and morality.” 413 U.S. at 61. One would have

thought that morality is too gossamer, let alone danger-

ll

ous a basis for regulation in the First Amendment area.

See, Kingsley International Pictures Corp. v. Regents, 360

U.S. 684 (1959). Many individuals in our society ardently

believe, whether rightly or wrongly, that the mere aware-

ness of the general availability of abortion demeans the

quality and tone of life; yet such beliefs—embodied in leg-

islation—were held insufficient to justify the systematic

prohibition of abortions for those women who wish to have

them. Roe v. Wade, 410 U.S. 113 (1973). Why should the

availability of obscene materials and books to those who

wish exposure to them be treated any differently? If a

legislature’s determination that certain forms or modes of

expression adversely affect the quality or tone of life can

serve as a valid predicate for regulation or prohibition of

that expression, it is difficult to see how the line can be

drawn at hard-core pornography.

Il.

The authority to prohibit obscene materials will be

used to suppress protected expression.

In the decisions last Term, the Court attempted to assure

its crities that the re-affirmation of systematic state power

to proscribe obscene materials would not result in a fresh

wave of repression of ideas worthy of expression. Miller

v. California, supra, 413 U.S. at 34-36. Repression would

be limited to the area of hard-core pornography. Enforce-

ment of such limits would be insured by confining “the

permissible scope of such regulation to works which depict

or describe sexual conduct,” and by requiring that such

conduct “be specifically defined by the applicable state law,

as written or authoritatively construed.” Jd. at 24. But

12

specifying the kind of sexual conduct which will trigger

suppression of a book or movie is no guarantee that only

hard-core pornography will be proscribed. See, United

States v. 35 MM Film Entitled “Language of Love,” 439

F.2d 705, 715-16 (2d Cir. 1970).

More importantly, the net effect of the Court’s rulings

was to make censorship easier, not harder, than it was be.

fore. Indeed, the explicit purpose of replacing the “utterly

without redeeming social value” test with the more relaxed

showing that a work “lacks serious literary, artistic, politi.

cal, or scientific value” was to facilitate the task of the

prosecutor. Similarly, the rejection of a national standard

of offensiveness and prurience in favor of hypothetical state

(or perhaps even local, see Price v. Commonwealth, —

Va. ——,, 14 Cr. L. Rep. 2379 (Va. Sup. Ct., Jan. 14, 1974))

standards of taste and decency will further expedite

prosecution by allowing a kind of “local option” on the

First Amendment. Nor need the authorities attempt to

produce expert testimony that the material in question is

obscene. Paris Adult Theatre I v. Slaton, supra, 413 US.

at 56.

Between the lines of these rulings law enforcement off-

cials can read the clear signal: a majority of this Court has

found its way out of the intractable obscenity problem by

retreating from the concept that each obscenity case is at

the same time a First Amendment case. Instead, deference

will be paid to local standards and local fact-finding, with

the implication that the conclusions reached by state tri-

bunals will be insulated from federal review, and the con-

clusions of federal tribunals will not vans prompt

this Court’s review.

13

That this new approach has prompted “a great deal of

hand wringing by concerned libertarians,” People v. Heller,

—— N.Y.2d —— (1973) is perfectly understandable. Civil

libertarians are always concerned about the ease with which

any grant of censorship powers degenerates into a general

warrant for repression of ideas. The majority express con-

fidence that its reaffirmation of the power to suppress hard

core pornography will be confined to such materials. But,

historically, the pressures toward general censorship of

disagreeable and dissident expression are hydraulic even

under the best of circumstances. The power to ban the

obscene has inevitably exceeded the purposes for which the

power has been granted.

Let us again remind the Court of the works which have

been banned on the basis of sexual content. This history

has been told in the pages of judicial decisions as well as

in special studies on the problem. See Haight, Bannep

Booxs (3d Edit. R. R. Bowker Co. 1970); T. Emerson, The

System of Freedom of Expression (1970), pp. 468-70.

The list of authors whose works have been censored reads

like a “Who’s Who” of classic literature:

—James Joyce (United States v. One Book Called

“Ulysses”, 5 F. Supp. 182 (S.D.N.Y. 1933), aff’d, 72

F.2d 705 (2d Cir. 1934)) ;

—Theodore Dreiser (Commonwealth v. Friede, 271

Mass, 318, 171 N.E. 472 (1930)) (“An American

Tragedy”) ;

—Erskine Caldwell (Attorney General v. Book Named

“God’s Little Acre”, 326 Mass. 281, 93 N.E.2d 819

(1950) ) ;

—Edmund Wilson (Doubleday and Co. v. New York,

335 U.S. 848 (1948) ) (“Memoirs of Hecate County”) ;

14

—Voltaire (“Candide”, see Banned Books, supra, p,

33) ;

—Walt Whitman (“Leaves of Grass”, see Banned

Books, p. 53);

—Sinclair Lewis (“Elmer Gantry”, see Banned Books,

p. 80) ;

—Henry Miller (Besig v. United States, 208 F.2d 142

(9th Cir. 1953)) (“Tropic of Cancer”, “Tropic of

Capricorn”) ;

—Ernest Hemingway (“A Farewell to Arms”, “The

Sun Also Rises”, “To Have and Have Not”, “For

Whom the Bell Tolls”, see Banned Books, pp. 90-91);

—Erich Maria Remarque (“All Quiet on the Western

Front”, see Banned Books, p. 92) ;

—John Steinbeck (“Grapes of Wrath”, see Banned

Books, p. 93).

As this list indicates, many of these works were banned

because of their political content, not their sexual ex-

plicitness; the presence of the latter simply served as the

formal justification for the suppression of the former. That

is how the censor works. His agenda usually contain ma-

terial whose sexual content is incidental or ancillary to the

primary purpose of expressing views which are dissident,

satirical, irreverent, sacrilegious or profane. The pres-

ence of sexual content is used as the pretext for suppress-

ing works because of the ideas they contain, ideas com-

pletely divorced from the pornographic.

Indeed this Court is familiar with recent examples of

this phenomenon.

15

In Kois v. Wisconsin, 408 U.S. 229 (1972) (per curiam),

the petitioner, the publisher of an underground newspaper

called “Kaleidoscope,” was convicted under a state ob-

scenity statute and sentenced to two years in prison. The

crimes involved were publishing two photographs of a nude

couple embracing, and publishing a “Sex Poem.” This

Court granted certiorari, determined that the items were

not obscene, and reversed the convictions. How would that

ease have been decided under the new standards? Equally

important, will this Court be able to review all such con-

yietions to assure that its recent decisions are applied only

to hard-core pornography?

In Dyson v. Stein, supra, police raids were directed at

the publisher of Dallas Notes, another underground news-

paper, effectively putting it out of business. The predi-

cate for the raids was a search warrant authorizing the

seizure of “obscene articles and materials.” Will the Court’s

obscenity rulings deter such practices or encourage them?

In Papish v. University of Missourt Board of Curators,

410 U.S. 667 (1973), the petitioner had been expelled from

a state university for distributing a newspaper containing

“forms of indecent speech,” particularly a cartoon depict-

ing a rape of the Statue of Liberty by police, and a head-

line containing a well-known “twelve-letter” word. The

District Court held that the two items were obscene; the

Eighth Cireuit affirmed on the theory that the petitioner

could be expelled regardless of whether the items were ob-

scene. A majority of this Court held that the cartoon and

headline could not be found obscene. There were two dis-

sents, both premised on the concept that university power

16

to suppress “obscene and infantile” expression was greater

than state power to prosecute for distribution of the same

material. If the petitioner distributed the identical news.

paper today, on or off the campus, is it clear that punish.

ment or prosecution could not validly go forward under

the Court’s recent rulings?"

In numerous cities, distributors of underground news.

papers containing political criticism and satire have been

subjected to arrests and harassment, usually because the

publications contained some sexual material claimed by

police to be obscene. See, e.g., Washington Free Commu

nity v. State’s Attorney, 300 F. Supp. 487 (D. Md. 1969);

Great Speckled Bird of Atlanta v. Stynchcombe, 298 F.

Supp. 1291°(N.D. Ga. 1970); United States v. Head, 317

F. Supp. 1138 (E.D. La. 1970) ; Henley v. Wise, 303 F. Supp.

62 (N.D. Ind. 1969); Kois v. Breier, 312 F. Supp. 19 (ED.

Wis. 1970). In various cities, the producers of “Hair,” an

1 Indeed, on many campuses school officials -have consistently

attempted to invoke obscenity rules to punish faculty or students

for distributing or seeking access to materials which in no legiti-

mate way could be characterized as “obscene.” For example, in

New York, school officials removed from a school library a book

describing ghetto life, entitled “Down These Mean Streets,” in

part because of complaints that it contained “obscenities and ex-

plicit sexual interludes.” “Pres. Council, Dist. 25 v. Community

School Board, District 25, 457 F.2d 289 (2d Cir.), cert. denied,

409 U.S. 998 (1972). In Ohio, one school district banned “Catch

22” by Joseph Heller and “Cat’s Cradle” by Kurt Vonnegut, Jr.;

another razored out pages from the “Spoon River Anthology.” —

In Alabama, a teacher was dismissed for assigning another Vonne- —

gut story, “Welcome to the Monkey House,” in part because it

advocated “free sex.” Litigation was necessary to declare that the —

work was not obscene and secure the teacher's reinstatement. Par-

ducci v. Rutland, 316 F. Supp. 352 (M.D. Ala. 1970). Such exam-

ples are merely illustrative. In all of them, the existence of any

sexual content at all provided the major premise for the censor's

actiens.

17

award-winning musical that successfully ran on Broadway

for years, have had to go to court to secure the right to

perform their satirical show because it contained brief epi-

sodes of nudity. See Southeastern Promotions, Ltd. v. City

of Atlanta, 334 F. Supp. 634 (N.D. Ga. 1971) (and cases

cited therein) ; Southeastern Promotions, Ltd. v. Conrad,

486 F.2d 894 (6th Cir. 1973), cert. granted, 42 U.S. Law

Week 3388 (Jan. 8, 1974).

And so it goes. The common element in all these cases

is the use of obscenity statutes as a vehicle for attempts to

suppress political or social commentary. This process oc-

curred during the regime of Redrup v. New York, 386 U.S.

767 (1967), when very little was thought validly to come

within the reach of obscenity laws. The effect of this

Court’s recent rulings—particularly the reference to local

standards of taste in such matters—can only be to acceler-

ate this process.

Events since June 21, 1973 have done nothing to dispel

these fears. To the contrary, in the months following this

Court's rulings a wave of censorship has swept across this

Nation, encompassing material admittedly with a sexual

content but which in no way could be characterized as hard-

core pornography.’ In its wake, vendors of “girlie” maga-

*The publishers of Playboy Magazine have supplied to amict

curiae incident reports submitted by retailers and wholesalers of

Playboy, Oui, Penthouse and similar publications. Thosé reports

demonstrate two distinct patterns resulting from the Court’s rul-

ings: (1) harassment by public officials and (2) self-censorship

by distributors.

Thus, for example, in Ashland, Qhio, the owners of a candy store

were arrested and ten boxes of ines, including Playboy, were

seized. In Greenville, Mississippi, Playboy and similar magazines

were confiscated from a supermarket and the distributors were

threatened with a fine. In Mason, Georgia, magazines similar to

18

zines have been harassed, school teachers have been pun.

ished for assigning the works of writers such as Kurt Von.

negut, Jr. (whose books were burned in North Dakota),

the distributors of critically acclaimed movies have beep

threatened with prosecution, see, United Artists Corp, y,

Proskin, 363 F. Supp. 406 (N.D. N.Y. 1973) (three-judge

court) (“Last Tango in Paris”).* Worst of all, the Court's

decisions have had a demonstrable deterrent effect on the

creative community responsible for our contemporary

books and movies.

Despite the assurances given last Term, the effect of

the Court’s decisions has been to exacerbate the problems

of censorship and fuel the forces of repression which have

always lurked beneath the surface of American life. The

certain way to reverse the trend is to reconsider the prem.

ises of those decisions and return to the path charted in

Stanley.

Playboy were confiscated and court proceedings were commenced

In Shreveport and Jackson, Mississippi, public officials ordered

such magazines off the newsstands. Similar orders were given to

newsstand owners in Hopeville, Virginia, Steubenville, Ohio, and

Atlanta, Georgia.

- Far worse than these episodes of official harassment are instances

of self-censorship where distributors have unilaterally determined

to discontinue handling such magazines. For example, in Southern

California, a major supermarket chain has stopped selling Playboy.

The same thing has occurred in Boise, Idaho. A major drug store

chain in Baltimore, Maryland has taken similar action. And in

Cleveland, Ohio, the operators of a chain of drug stores have asked

to see advance copies of each issue so that they can decide whether

to sell Playboy in their various stores.

* All these various episodes are detailed in the amicus curiae

brief of the Association of American Publishers in Jenkins ¥.

Georgia, O.T. 1973, No. 73-557, at pp. 10-17.

19

Il.

The federal postal power should not be utilized as the

predicate for censorship of obscenity.

Up to now, the discussion has focused on whether this

Court should continve to allow systematic government

censorship of obscenity and what the consequences of such

censorship have been and will continue to be. But this case

has a special dimension, for it involves not the States’

claimed power to regulate the quality and tone of life, but

the federal government’s attenuated power to deal with

obscenity by use of its authority over the mails.

In Roth v. United States, supra, the majority opinion

dealt with this issue perfunctorily, reasoning that since

“ .. obscenity is not expression protected by the First

Amendment. . . . the federal obscenity statute punishing

the use of the mails for obscene material is a proper exer-

cise of the postal power delegated to Congress by Art. I,

§8, cl. 7.” 354 U.S. at 492-93 (footnotes omitted). In reach-

ing this conclusion, reliance was placed on the “hoary

dogma ... that the use of the mails is a privilege on which

the Government may impose such conditions as it chooses,”

a doctrine which “has long since evaporated.” 354 U.S. at

504, n. 5 (dissenting opinion of Justice Harlan). As Jus-

tice Holmes said in his famous dissent: “[t]he United

States may give up the post office when it sees fit, but while

it carries it on the use of the mails is as much a part of

free speech as the right to use our tongues.” United States

ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson,

255 U.S. 407, 487 (1921). And cases since Roth have made

it clear that the Congress cannot use its controls over an

otherwise neutral conduit to create or enhance the federal

government’s substantive censorship powers. See, Lamon;

v. Postmaster General, 381 U.S. 301, 305 (1965); Hiett y.

United States, 415 F.2d 664 (5th Cir. 1969); ef. United

States v. 18 Packages of Magazines, 238 F. Supp. 846, 848

(N.D. Cal. 1964).

The existence of any substantive federal power to regu.

late obscenity is similarly questionable. The theory was

developed by Justice Harlan in Roth:

But in dealing with obscenity we are faced with the

converse situation, for the interests which obscenity

statutes purportedly protect are primarily entrusted

to the care, not of the Federal Government, but of the

States. Congress has no substantive power over sexual

morality. Such powers as the Federal Government

has in this field are but incidental to its other powers,

and are not of the same nature as those possessed by

the States, which bear direct responsibility for the pro-

tection of the local moral fabric.

Not only is the federal interest in protecting the

Nation against pornography attenuated, but the dan-

gers of federal censorship in this field are far greater

than anything the States may do. 354 U.S. at 50405.

Since then, in none of the cases involving Section 1461 has

this Court responded to Justice Harlan’s argument. See,

Ginzburg v. United States, 383 U.S. 463 (1966); United

States v. Reidel, 402 U.S. 351 (1971); ef. United States v.

21

Orito, 413 U.S. 139 (1973) (involving Section 1462).* For

example, the analogous power to control interstate com-

merce, upheld in Orito as the basis for regulating shipment

of obscene materials across state lines, has its limitations.

See, e.g., United States v. Bass, 404 U.S. 336 (1971); see

also, United States v. Maze, —— U.S. ——, 42 U.S. Law

Week 4113 (Jan. 8, 1974) (mail fraud). Presumably an

intrastate shipment of obscene materials by private car-

riage could not be reached by 18 U.S.C. Section 1462. By

the same reasoning, what possible federal interests—other

than the secondary ones identified by Justice Harlan—

would justify penalizing the intrastate mailing of the same

material?

Lower federal courts have also balked at the concept of

employing the postal power as the basis for plenary fed-

eral control over obscene materials. For example, in United

States v. Dellapia, supra, the Second Circuit construed the

mail statute’s “broad prohibition as subject to an under-

lying requirement that the mailing trespass upon a valid

governmental which constitutionally justifies invasion of

a private consensual relationship .. . .” 433 F.2d at 1260.

And even the Government, perhaps in recognition of the

attenuated federal interest in regulating obscenity, at one

point announced a policy of not enforcing the statute to

prosecute the private mailing of obscene correspondence.

See Redménd v. United States, 384 U.S. 264 (1966) (per

curiam) ; Cox v. United States, 370 F.2d 563 (9th Cir. 1967) ;

ef. United States v. Watson, 293 F. Supp. 694 (W.D. Mo.

1968).

‘Justice Harlan did concede “a limited [federal] interest” in

excluding hard-core pornography from the mails. Memoirs v.

Massachusetts, 383 U.S. 4138, 457 (1966) (dissenting opinion). But

even he was only able to identify the interest in terms of the pos-

sible thwarting of state regulation if the mails were used to dis-

tribute such materials. Jd. at 457, n.2.

ee .

22

Finally, the assertion of federal power to censor obscen.

ity involves a very real doctrinal and practical dilemma,

On the one hand, it appears settled that in enforcing

Section 1461’s ban on mailing obscene materials, a national

standard of decency must be employed to assess the offen.

siveness of the challenged subject-matter:

There must first be decided the relevant “community” _

in terms of whose standards of decency the issue must

be judged. We think that the proper test under this

federal statute, reaching as it does to all parts of the

United States whose population reflects many different

ethnic and cultural backgrounds, is a national standard

of decency. Manual Enterprises v. Day, 370 U.S. 478,

488 (1962).

As the First Circuit recently pointed out, requiring any-

thing less than national standards under Section 1461

would allow intolerable leeway for forum-shopping and se-

lective prosecution :

Since the statute proscribes the deposit for mailing,

conveying in the mails, and delivery of obscene ma-

terials, were a state standard to govern the level of

tolerance, guilt or innocence could easily turn on the

choice to prosecute in the state of mailing, the state of

delivery, or a state through which the material passed.

This would open the possibility of senders of identical

materials from the same state to be found guilty or not,

depending on the course of transit or state of delivery

of their materials. The vice of selective prosecution

would also be present, as well as the anomalous situa-

tion of having prosecution under a national law depend

23

upon the laws of the least permissive states. United

States v. Palladino, —— F.2d ——, 14 Cr. L. Rep.

9354, 2355 (1st Cir. 1974).

On the other hand, Miller v. California held not only

that “national” standards were not required in State pro-

gedings, but that such standards were “abstract”, “hypo-

thetical”, “unascertainable.” Thus, while national stand-

ards should be applied under the federal statutes to avoid

all the constitutional problems identified in Manual Enter-

prises and Palladino, the majority of this Court has

indicated that such standards are too speculative to be ap-

plied in State proceedings. The “unascertainable” nature

of national standards would render any prosecution under

them a violation of due process requirements. See Win-

ters v. New York, 333 U.S. 507 (1948) ; Connally v. General

Construction Co., 269 U.S. 385 (1926). And the utilization

of less than a national standard, under this federal statute,

would have an enormously inhibiting effect on those who

tise the mails to transmit books, magazines, or films with a

sexual content. Editors will spend more time worrying

about postal routes than about literary quality.

Since the primary interests purportedly advanced by

the regulation of obscenity are state, not federal, see Paris

Adult Theatre I v. Slaton, supra, the existence of such a

constitutional dilemma is particularly intolerable.

24

IV.

Section 1461 is prohibitively vague, and its continued

enforcement violates several fundamental constitutional

principles. :

Even assuming that hard-core pornography can cp.

tinue to be prohibited systematically through the use of

the federal postal power, the use of Section 1461 to accom.

plish such prohibition and its application in this case offend

a number of constitutional safeguards.

Section 1461 proscribes the mailing of every “obscene,

lewd, lascivious, indecent, filthy or vile” matter. As written,

it embodies the three major evils of vague enactments

which this Court has identified:

Vague laws offend several important values. First,

because we assume that man is free to steer betwee

lawful and unlawful conduct, we insist that laws give

the person of ordinary intelligence a reasonable oppor-

tunity to know what is prohibited, so that he may ad

accordingly. Vague laws may trap the innocent by not

providing fair warning. Second, if arbitrary and dis

criminatory enforcement is to be prevented, laws must

provide explicit standards for those who apply them

A vague law impermissibly delegates basic policy mat-

ters to policemen, judges, and juries for resolution o

an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.

Third, but related, where a vague statute “abut(s)

upon sensitive areas of basic First Amendment free

doms,” it “operates to inhibit the exercise of [those]

freedoms.” Uncertain meanings inevitably lead citizes

25

to “‘steer far wider of the unlawful zone’. . . than

if the boundaries of the forbidden areas were clearly

marked.” Grayned v. City of Rockford, 408 U.S. 104,

108-09 (1972) (footnotes omitted).

See also, Winters v. New York, 333 U.S. 507 (1948); Bur-

siyn v. Wilson, 343 U.S. 495 (1952) ; Kingsley Int'l Pictures

Corp. v. Regents, 360 U.S. 684 (1959). From a First

Amendment perspective, vague laws are condemned because

they have the effect of deterring protected expression.

Equally important, in a due process sense, vague laws vio-

late the “principle of legality” common to all civilized

nations. Levy v. Parker, 478 F.2d 772, 791 (3rd Cir. 1973),

prob. juris. noted, 42 U.S. Law Week 3155 (Sept. 25, 1973).

As Justice White has observed,

... our civilization has assumed that the threat of

penal sanctions had something more than a “specula-

tive” effect on a person’s conduct. This Court has long

acted on that assumption in demanding that criminal

laws be plainly and explicitly worded so that people

will know what they mean and be in a position to

conform their conduct to the mandates of law. Linda

RS. v. Richard D., —— U.S. ——, 35 L.Ed.2d 536, 543

(1973) (dissenting opinion).

The prohibitions in Section 1461 are not “plainly and

explicitly worded so that people will know what they mean,”

and the contrary claim has never seriously been

made. Indeed, in Roth, where the vagueness challenge was

rejected in passing, the majority admitted that the terms

of the statute were “not precise.” 354 U.S. at 491. Instead,

the Court held that the statutory terms, “applied accord-

ing to the proper standard for judging obscenity, already

ie.

26

discussed, give adequate warning of the conduct proscribed,

..” Ibid. In other words, the requisite specificity of what

is “obscene” can be supplied by judicial construction—,

position since abandoned by the author of the Roth opinion,

And even in Miller the majority implied that words such as

“obscene” could not meet constitutional’ muster in the ab.

sence of legislative specification or judicial construction,

But, as this Court has noted,

It would certainly be dangerous if the Legislature

could set a net large enough to catch all possible

offenders and leave it to the courts to step inside and

say who could rightfully be detained, and who should

be set at large. United States v. Reese, 92 U.S. 214,

221 (1876). See also, United States v. Robel, 389 US.

258, 275-76 (1967).

Thus, once a statute must depend on judicial construction

to remedy its vagueness, its capacity to provide the requi-

site notice is seriously diminished. And its application

tends to become an ad hoc matter devolving upon the

attitude of judges, juries, and administrative agencies. The

Government should not continue to be allowed to use this

facially vague statute to regulate in the First Amendment

area.

Since the statute requires judicial construction to save

its validity, the question is whether it can bear a construe.

tion consonant with the new requirements stated in Miller

v. California.’ Perhaps the most “obscene” phenomenon

* Even assuming that this statute or any other were re-drawn to

embody the central elements of the Miller holding, it is still doubtful

that constitutional standards of specificity would be met. See, Paris

Adult Theatre I v. Slaton, supra, 413 U.S. at 78 (dissenting opinion

of Justice Brennan). While the kinds of sexual conduct whose

27

since last June has been the way that some courts have

rushed to “construe” their statutes to incorporate the cen-

tral elements of the Miller decision, holding that no matter

what the particular statute said or what its authors in-

tended, the new definitions could be read into the enact-

ments. See, e.g., State v. J-R Distributors, Inc., 512 P.2d

1049 (Sup. Ct. Wash. 1973); Grigsby v. State, 14 Cr. L.

Rep. 2143 (Tenn. Sup. Ct. 1973) ; People v. Heller,

N.Y.2d —— (Dec. 28, 1973). Fortunately, a number of

other courts have invalidated or questioned existing ob-

scenity statutes because they failed to specify the kinds of

sexual conduct which could be considered patently offensive.

See, e.g., Literature Inc. v. Quinn, 482 F.2d 372 (1st Cir.

1973); Hamar Theatres Inc, v. Cryan, 365 F. Supp. 1312

(D. N.J. 1973) (three-judge court), juris. statement filed,

42 U.S. Law Week 3365 (Dec. 18, 1973) ; Detco Inc. v. Mc-

Cann, 365 F. Supp. 176 (E.D. Wisc. 1973); United States

v. Lang, 361 F. Supp. 380 (C.D. Cal. 1973); Stroud v.

Indiana, Ind. , 13 Cr. L. Rep. 2541 (1973) ; Louwzsi-

ana v. Shreveport News Agency, Inc., La. , 42

Law Week 2344 (1973). While this Court has implied that

it is “prepared” to authoritatively construe Section 1461

as incorporating the Miller standards, see United States

y. 12 200-Foot Reels, 413 U.S. 123, 130, n.7 (1973), there

are limits to the liberty which this Court or any other

can take with statutory language or purpose. See, Aptheker

v. Secretary of State, 378 U.S. 500, 515-17 (1964) ; Baggett

depiction would be prohibitable might be specified with some defi-

niteness, other elements of the new Miller test of obscenity remain

vague. Under Miller, First Amendment rights are made to turn

on whether a given work dealing with sexual matters has “serious

literary, artistic, political, or scientific value.” The “serious value”

standard is as uncertain as it is unprecedented.

_—_—

28

v. Bullitt, 377 U.S. 360° (1964); Shuttlesworth v. Birming.

ham, 394 U.S. 147, 153-54 (1969); Welsh v. United States,

398° "U Si 333, 854 -(1970) {concurring opinion of Justice

Harlan) ; Long Island Vietnam Moratorium Committee y.

Cahn, 437 F.2d 344 (2d Cir. 1970). The federal statute has

been on the books for a century without ever specifying the

kind of sexual conduct to which regulation of obscenity

must be limited. More than an ipse dizit is required to find

that this statute embodies such specifications.

Finally, even if the statute can be construed to embody

the Miller requirements, until this Court explicitly does so,

retroactive application of such requirements is impermis.

sible. The decisions last June significantly altered the

Court’s obscenity doctrines and definitions. To meet the

dissenters’ contention that concepts in this area could never

be stated with the requisite precision, the Court held that

obscenity statutes, as written or construed, would have to

identify the sexual conduct being regulated. Section 1461

never met these requirements and does not meet them

even today. Prospectively construing the statute to comply

with Miller is questionable enough; retroactively applying

that construction to these petitioners is unconstitutional.

See Bouie v. Columbia, 378 U.S. 347 (1964); Ginzburg v.

United States, 383 U.S. 463, 495 (1966) (dissenting opinion

of Justice Harlan) ; United States v. Lang, supra. Sucha

result embodies all the evils of an ex post facto enactment.

CONCLUSION

For the reasons set forth herein, the decision below

should be reversed.

Respectfully submitted,

Metvin L. Wor

Jozrt M. Gora

American Civil Liberties Union

22 East 40th Street

New York, New York 10016

Frep OKRAND

Joun O’LovuGHiiIN

JmL JAKES

American Civil Liberties Union

Foundation of Southern California

323 West Fifth Street

Los Angeles, California 90013

Attorneys for Amici Curiae