Amicus Curiae Brief — Jenkins v. Georgia

. | JAN 23

1974

JRCLERK

IN THE i

Supreme Court of the United States

October Term, 1973

~”

No. 73-557

BILLY JENKINS,

Appellant,

Vv.

STATE OF GEORGIA,

Appellee.

On APPEAL FROM THE SUPREME CouRT OF GEORGIA

BRIEF OF NATIONAL ASSOCIATION OF THEATRE

OWNERS AS AMICUS CURIAE

IN* SUPPORT OF APPELLANT

Sr

NN o!-

PeTer M. FisHBEIN

425 Park Avenue

New York, New York 10022

LESTER POLLACK

666 Fifth Avenue

New York, New York 10019

Attorneys for National Association of

Theatre Owners

Of Counsel

Kaye, SCHOLER, FIERMAN, Hays & HANDLER

“~,

=e

TABLE OF CONTENTS

PAGE

Statement of Interest of Amicus Curiae ........... 1

SY WII a Sees ii cc cade ve vackacn cs 3

on oe eee baat eet hee oor ene pee Fee epee eee 5

ARGUMENT:

Porst I—Carnal Knowledge is not obscene under

SN sieht hiv aie iis Cusicbdweadbidckock ves’ 7

(a) Carnal Knowledge, taken as a whole, does

not appeal to the prurient interest ........ 8

(b) Carnal Knowledge does not depict sexual

conduct in a patently offensive WOE iidses 9

(c).Carnal Knowledge, taken as a whole, does

not lack serious literary, artistic, political

OE ee OUD soibecscscccuc a ll

Powr II—This case demonstrates that the Miller

standards need to be clarified ................ 12

Porrr I1I—The Miller standards should be clari-

fied to provide that only patent and obvious

hard core pornography is unprotected by the

oe Ge er 17

Port IV—The Miller standards should be clari-

fied to provide that material which has any

literary, artistic, political or scientific value is

constitutionally protected .................... 26

Porwr V—Under Miller, state-wide community

standards should be applied to determine pruri-

ence and patent offensiveness, and a national

standard applied to determine value .......... 28

e

ii

TABLE OF AUTHORITIES

PAGE

Cass:

. Bantam Books, Inc. vy. Sullivan, 372 U.S. 58 (1963) 12,13

Brazelton v. State, 50 Ala. App. 723, 282 So. 342

Cire, Dt. TTR) vcs candies secccascceetiis 29n

Cantwell v. Connecticut, 310 U.S. 296 (1940) ....

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) 21, 28

Commonwealth v. Dell Publications, Inc., 427 Pa.

BOD, SES ABE ONS CROEE) i i sie i cs. 24

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

SOS CR 5 i. PE AA Pe. 13

Dombrowski v. Pfister, 380 U.S. 479 (1965) ..... 14

Ginzburg v. United States, 383 U.S. 463 (1966) 19, 20, 22

Granville-Smith v. Granville-Smith, 349 U.S. 1

(ION ess SPE RATE RL i dn

Grayned v. City of Rockford, 408 U.S. 104 (1972) 13,14

Gregory v. City of Chicago, 394 U.S. 111 (1969) . 14, 2in

Gulf States Theatres of Louisiana, Inc. v. Richard-

son, unreported (Ist Jud. Dist. Ct., Parish of

Caddo) (Oct. 12, 1973), rev’d on other grounds,

— La.—, 42 U.S.L. Week 2362, — So. 2d —

(Sup. Ct., No. 54,044, Dec. 3, 1973) .......... 16n

Huffman v. United States, 470 F.2d 386 (D.C. Cir.

WDD yo ccnddvavcckicccsbii ies Aine 2n

Incorporated Village of Lynbrook v. United

Artists Corp., 75 Mise. 2d 124, — N.Y.S.2d —

{oe Se Ge eee 16

Jacobellis v. Ohio, 378 U.S. 184 (1964) 8n, 9, 11, 18, 2%

PAGE

Cases (Cont’d) :

Jenkins v. Georgia, 230 Ga. 726, 199 S.B.2d 183

(1973), prob. juris. noted, 41 U.S. L. Week 3351

ere 2n, 6n 7, 10n

Kaplan v. California, 413 U.S. 115 ( 1973) ....10n, 19, 27

- Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110

SUEDE © C008 Aw 9004 Koiaw sceed Coes wa eeGs cs ne 8n

Lanzetta v. New Jersey, 306 U.S. 451 (1939) .... 13

Luros v. United States, 389 F.2d 200 (8th Cir.

BEE Ce > een eee 25

Manual Enterprises, Inc. vy. Day, 370 U.S. 478

cee die ESE PEGS SEA rp cect ge oe Lea 10

Memoirs v. Massachusetts, 383 U.S. 413 (1966) 9,19, 28

Miller v. California, 413 U.S. 15 (1973) 2, 3, 7, 8, 10n, 12,

15, 16, 17, 18, 19,

20, 21, 22, 23, 26,

28, 29, 33, 34

Mishkin v. New York, 383 U.S. 502 tg 19, 20

NAACP v. Button, 371 U.S. 415 ERGO 0050 nck 14

Napue v. Illinois, 360 U.S. 264 +. Seepage 8n

Niemotko v. Maryland, 340 U.S. 268 ............ 8n

Paris Adult Theatre I v. Slaton, 228 Ga. 343, 185

S.E.2d 768 (1971), vacated and remanded, 413

ce ,_: SERMONS Dee iRe Raga d a 18

Paris Adult Theatre I v. Slaton, 413 U.S. 49

EEE Ss eosin 2, 10n, 13, 15, 17, 18,

19, 22, 26, 27

People vy. Heller, 33 N.Y.2d —, — NEQa —

(Case No. 71-184, cctee HET Tree 22, 23, 29n

People v. Mature Enterprises, Inc., — N.Y.8.2a —,

43 N.Y.8.2d 911 (N.Y. City Crim. Ct. 1973) . .29n, 24

PAGE

Caszs (Cont’d):

People v. Noroff, 67 Cal.2d 791, 433 P.2da 479

CRUE Manin ds Reh 04s Sn chsh bone ba vvce ens 22n, 4

People v. Richmond County News, Inc., 9 N.Y.2d

Gem, Rem PLEOR O81 (2088) ooo ackicccn, 23

Redrup v. New York, 386 U.S. 767 (1967) ....... 20n

Rhodes v. State, 283 So.2d 351 (Sup. Ct. Fla. 1973) 9%

Richards v. State, 497 S.W.2d 770 (Tex. Civ.

NIN TE hase da On uv kn vache tke ak nas 29n

Roth v. United States, 354 U.S. 476 (1957) 8, 9, 11, 15, 19,

21, 22, 28, 33

Speiser v. Randall, 357 U.S. 513 (1958) ........ 15

State v. J-R Distributors, Inc, — Wash. 2d —,

Pee We BO MINED ho hh es Ses hdieci cd 29n

Street v. New York, 394 U.S. 576 (1969) ...... \ &

Thompson v. Louisville, 362 U.S. 199 (1960) .. 2%

United Artists Corp. v. Harris, 363 F.Supp. 857

COP smA, SNR MONOD “Wh. n ae ndsh os back bb kecsances 16

United Artists Corp. v. Proskin, 363 F.Supp. 406

Les: CUD SSW oAds Sa kwh ch aubaocuacilin 16

United States v. 12 200-Ft. Reels of Films, 413

ee RR RE eink 54 0 © 45 2d Khe kw 0 uk oes

United States v. An Easement and Right-Of-Way

Over Two Tracts, 246 F.Supp. 263 (W.D. Ky.

1965), aff'd, 375 F.2d 120 (6th Cir. 1967) ....

United States v. Groner, 479 F.2d 577 (5th Cir.

1973), vacated and remanded, 42 U.S.L. Week

ame. (es Gk, SB DOOD «i ov dais cased vac ce

United States v. Hamling, 481 F.2d 307 (9th Cir.

1973), cert. granted, 42 U.S.L. Week 3405 (U.S.

is RI OUNMEY cavewen ss i cicdss decker

19

—

v

PAGE

United States v. Wild, 422 F.2d 34 (2d Cir. 1969),

cert. denied, 402 U.S. 986 (1971) ............ 19, 25

Vachon v. New Hampshire, 42 U.S.L. Week 3403

(U.S. Jan. 14, 1974) (per curiam) ............ 27n

W. A. Mack, Inc. v. General Motors Corp., 260

SE ETO Gly GOMOD ac cncncsbncdatnsiaess 5n

Rue:

Pomme Comet Bombe Gb. ii cei ca cedirceaces 3

SraTUTES :

Ga. Code. Ann., § 27-2506 (1972) .............. 6

Ill. Stat. Ann., ch. 24, § 11-1-1 (Smith-Hurd 1973) 30

N.Y. Mun. Home Rule Law, § 10(1)(a)(11)-(12)

Senna TMI FETE). ov ns ce bss owtesasas 30

N.Y. Penal Law, § 235.00 (1) (McKinney 1967) .. 23

ett 0 UROe oe iis cds che cn ces 12n, 25

ee A SR ROOD Nin uk hen bodese\ilee cicvis 12n

Sn SOE REED 4c Canc secegaersdisuceten 12n

RR ee ee ree rrr 12n

28 U.S.C. § 89(c) (1970) .......... Leuaciscae. 32

She BCE SEOTO) vocankenseadsdscnnss 32

Oratr AUTHORITIES :

D.H. Lawrence, PornocrapHy AND OBSCENITY

SE Mev whidvehs Gas 0 c0kbdns06 bb adinassesse 23

The New York Daily News, February 28,1973 .. 16n

Nrw York Leoisuative Manvat (1970) ........ 30

US. Dept. of Commerce, StatisticaL ABSTRACT OF

ram UnrriapreraTes 1973 ..... 2... ccc ec enceeess 30

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-557

,——

we

Buy Jenkins,

Appellant,

v.

Stare or Gzorer,

Appellee.

On APPEAL FROM THE SuPREME CouRT oF Grororia

—

ice

BRIEF OF NATIONAL ASSOCIATION OF THEATRE

OWNERS AS AMICUS CURIAE

IN SUPPORT OF APPELLANT

Statement of Interest of Amicus Curiae

The National Association of Theatre Owners (herein-

after “‘NATO’’) is a trade association which represents

the interests of motion picture theatres throughout the

United States. It has a membership of over 8,000 theatres,

representing a capital investment of over $5 billion,

located in cities, suburbs, small towns and rural areas

across the country. Its members include large ‘‘down-

town” theatres, neighborhood theatres, shopping center

theatres, drive-in theatres and multi-screen theatres, and

the motion pictures they show represent an immensely

important medium of artistic, cultural, political and social

_ expression, as well as entertainment, for untold millions of

American movie-goers.

NATO and its members are vitally interested in this

appeal, which, unfortunately, involves a not atypical exam.

ple of how this Court’s rulings in Miller v. California, 413

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

U.S. 49 (1973), are being misapplied to strike at the very

heart of the First Amendment rights of theatre owners to

show films of literary, artistic, political or scientific value,

regardless of how controversial they may be.

The Appellant-theatre owner in this case was convicted

under a state criminal statute, not for displaying hard core

pornography, but for showing in Albany, Georgia one of

the most critically acclaimed motion pictures of recent

years, which had previously played ‘‘in the major cities of

the nation, the major cities in Georgia, and in many of the

cities and towns in Georgia without any contention being

publicly made that it was obscene-pornographic’’.' Clearly,

if a motion picture such as Carnal Knowledge is deemed

obscene and therefore beyond the pale of constitutional’

protection, then all of NATO’s members face a real threat

of criminal prosecution whenever they show any film that

could conceivably be found objectionable by some local

prosecutor and jury. Indeed, the gravity of this danger

grows each day as the pattern of local prosecution and

harassment that has followed Miller becomes increasingly

pronounced. Thus, the decision of the Georgia Supreme

Court in this case serves to chill—if not freeze—the exer-

cise of First Amendment rights of expression so far as

this nation’s theatre owners are concerned. The result, in

our submission, can only be to lower the quality and diver-

sity of the motion pictures shown across the country and

seriously impair one of our most popular and available

forums for the free interchange of ideas.

1 Jenkins v. Georgia, 230 Ga. 726, —, 199 S.E.2d 183, 186

(1973) (Gunter, J., dissenting).

All of the parties to this appeal have consented to the

filing of this brief pursuant to Rule 42 of the Supreme

Court of the United States.

Preliminary Statement

Appellant’s Jurisdictional Statement and Brief on this

appeal raise a number of issues concerning the interpreta-

tion and application of the relevant Georgia statutes and -

the particular procedures followed in the trial court below.

We reiterate NATO’s position, stated in its brief amicus

curiae in support of the Jurisdictional Statement, that it

would be most unfortunate if this appeal were adjudicated

on these issues which can have little significance outside

the State of Georgia or the particular facts of this case.

Rather, we urge the Court to resolve the following issues

which are squarely presented by the record below, are of

vital constitutional significance, and will have an impor-

tant impact on future obscenity prosecutions throughout

the country. Furthermore, unless they are promptly re-

solved, and the Court’s decision in Miller clarified, there

will be a severe chilling effect on First Amendment rights

in the creation and distribution of motion pictures and

literature.

1, Whether the film Carnal Knowledge is obscene and

hence devoid of constitutional protection (Point I).

2. Whether, even in the short time since they were

promulgated, the standards enunciated in Miller to separate

obscenity from constitutionally protected material have

been so demonstrably misinterpreted by lower courts and

80 ineffective in providing clear and consistent guidelines,

that they should be clarified to express the Court’s views

ina more meaningful way (Point IT).

* All of the issues raised on this appeal from a state court are

constitutional. In these circumstances, it is for the Court

to adjudicate those of particular significance. treet V. New York,

394 US. 576 (1969).

4)

3. Whether the Miller standards should be clarified by

adding a fourth criterion that material is not obscene yp.

less, taken as a whole, it is patent and obvious hard com

pornography (Point IIT).

4. Whether the Miller standards should be clarified by

eliminating ‘‘serious’”’ from the third criterion and pro-

viding that a work is obscene only if, taken as a whole, it

lacks any literary, artistic, pales or scientific valye

(Point IV).

_ 5. Whether Miller authorizes the more than 780%

local political and judicial subdivisions throughout this

country each to apply its individual community standards

in determining whether a work appeals to the prurient

interest or is patently offensive, or whether state-wide

standards are constitutionally required (Point V).

6. Whether Miller requires a single, national standard

to determine whether a work has literary, artistic, poli.

tical or scientific value (Point V).

The decision of the Georgia Supreme Court below is %

at war with the principles of Miller as to require not only

reversal, but a clarification of the Miller standards then.

selves. Such a gross misapplication by the highest court

of a state must raise serious questions about the clarity

and effectiveness as guidelines of the standards themselves

Moreover, as construed by the Georgia Court to strike dow

a picture so obviously not obscene as Carnal Knowledge,

Miller provides local prosecutors with a roving commission

to stamp out almost any work that offends their particular

sensibilities.

Unless the Court takes this opportunity to elaborate and

refine the Miller standards, prosecutors, juries, lower courts

and those conscientiously trying to follow the law will have

no reasonable understanding of the difference between pro

tected First Amendment expression and criminal acts, ani

the right to free speech in this area will become hostage to

unbridled preesouveeiat discretion and uncertain judicial

result.

5

Facts

Avco Embassy Pictures Corporation, the distributor,

pursuant to a contract with Mike Nichols,* the producer-

director, purchased the rights to an original screenplay

of Carnal Knowledge in November, 1969. The author of

the screenplay was Jules Feiffer, a well-known satirist

and playright. Mr. Nichols cast Jack Nicholson, Art

Garfunkle, Ann-Margret and Candice Bergen, all nationally-

renowned, highly successful actors and actresses, in the

leading roles. Ann-Margret received an Academy Award

nomination for her performance in the movie.

The picture opened in June, 1971, 20 months after pur-

chase of the screenplay. Production costs ran to approxi-

mately $5,400,000. In addition, marketing and distribution

costs were approximately $3,400,000, as of December 31,

1973.

Carnal Knowledge played in 4,995 theatres, in every

state of the Union, including large cities, suburbs, towns

and rural areas. It played in other small Georgia com-

munities in addition to Albany such as Camilla, Cordale,

Valdosta, Douglas, Fitzgerald, Milledgeville, Dalton, Rome

and Carlton. Approximately 17,500,000 persons saw the

movie in the United States.‘

*Mr, Nichols has directed other major films, such as Who's

Afraid of Virginia Wolff, The Graduate, Catch 22, and The

Day of the Dolphin. While the factual material contained in this

section of the brief is not in the record, it comes mostly from public

sources such as trade journals and financial reports, and is not

controverted. Therefore, the Court may take judicial notice of it.

See Granville-Smith v. Granville-Smith, 349 U.S. 1, 14 (1955);

W. A. Mack, Inc. v. General Motors Corp., 260 F.2d 886, 889-90

(7th Cir. 1958); United States v. An Easement and Right of Way

Over Two Tracts of Land, 246 F. Supp. 263 (W.D. Ky. 1965),

af'd., 375 F.2d 120 (6th Cir. 1967). aes

*Avco Embassy reported total license fees from’ United States »

distribution at $12,373,000. We estimate, based on average in-

dustry figures, that the distributor’s license fees constituted 35 percent

of box office admissions and that each viewer paid, on the average,

$2 for admission. Thus, approximately 17,500,000 people paid

sie nately $35,000,000 in box office {es to see Carnal Knowi-

=

Carnal Knowledge was one of the most widely acclaimed

films of recent years, appearing on many ‘‘ten best’? lists

for 1971, and was the subject of scores of highly complimen.

tary reviews.°

Up to the time Appellant showed the movie in Albany

it had not been held obscene any place. So far as we ar

aware, the present case is the only instance in which th

film has been held obscene.*

Despite these impressive credentials, which woul

have given any theatre owner strong assurance that he was

engaging in constitutionally protected activity when he

showed the movie, Appellant was arrested and convicted of

violating Georgia statutes which provide for a maximm

sentence of one year imprisonment or fine of $1000 or both

Ga. Code Ann., § 27-2506 (1972). Appellant was in fad

sentenced to 12 months probation and fined $750.

The only evidence introduced at trial by the prosecution

was the film itself. There was no expert testimony, o

indeed testimony of any kind, as to whether the film, take

as a whole, had serious literary, artistic or political value.

On appeal, the Georgia Supreme Court affirmed Appe-

lant’s conviction by a four to three vote, holding, inter

alia, that Carnal Knowledge was obscene within the mear-

ing of the standards enunciated by this Court in Miller,

and that the trial judge correctly charged the jury to apply

a ‘‘community standard,’’ by which he meant the lal

standard of Dougherty County, Georgia, in determining

5 Some of these reviews are referred to in the dissenting opinice

of Justice Gunter below, 230 Ga. at —, 199. S.E.2d at 186 andi

Appellant's brief on this appeal.

* Indeed, as Appellant's brief points out, it appears to have bess

challenged in only a handful of instances, all unsuccessfully.

"game

whether this Court’s obscenity standards were met by this

* Jenkins v. Georgia, 230 Ga. 726, 199 S.E.2d

183 (1973).

This Appeal followed, and the Court noted probable

jurisdiction. 42 U.S.L. Week 3351 (U.S. Dec. 11, 1973).

POINT I

Carnal Knowledge is not obscene under Miller.

This Court in Miller established the following standard

to determine whether material is obscene and hence not

protected. by the First Amendment:

= y = —_ a for the trier of fact must

: (a) whether ‘the average person, a ing con-

temporary community standards’ ms find that

the work, taken as a whole, appeals to the prurient

interest; (b) whether the work depicts or describes,

in a patently offensive way, sexual conduct speci-

whether the work, taken as a whole, lacks serious

literary, artistic, political, or scientific value.’’ 413

U.S. at 24 (citations omitted).

As a matter of constitutional fact, a simple viewing of

Carnal Knowledge makes it abundantly clear that it does

not meet any of the three criteria of the Miller test.*

(a) Carnal Knowledge, taken as a whole, does not

appeal to the prurient interest.

An appeal to the prurient interest means ‘‘a shameful

or morbid interest in nudity, sex, or excretion,’’ and

‘‘lewd’’ and “‘lascivious.’’ Roth v. Untted States, 354 US.

476, 487 n. 20 (1957).

This film simply does not meet such a test. It does not

contain even a single explicit portrayal of an ultimate

sexual act or of genitals. It is an artistic work of distinction

and sensitivity. The direction, acting and photography ar

of the highest quality that the American motion pictur

industry can produce. The story is about the pressure

and problems faced by two upper-middle class Amherst

College graduates as they grow up, attaining success in

their professional careers, but failure in their personal

lives. In illuminating their inability to develop stable and

satisfying relationships, and ultimately their boredom ani

loneliness, the film deals with the human predicament

While part of this predicament is that sex by itself is nots

8 It is, of course, squarely within this Court’s province to deter-

mine whether Carnal Knowledge is in fact obscene under th

relevant constitutional standards since “the duty rests on ths

Court to decide for itself facts or constructions upon which fedenl

constitutional issues rest.” Kern-Limerick, Inc. v. Scurlock, 4

U.S. 110, 121 (1954). Chief Justice Burger, writing for the Cour

in Miller, made it clear that this Court would continue to exerix

its “ultimate power” “to conduct an independent review of constite-

tional claims when necessary”, 413 U.S. at 25, and approvingly

quoted from Mr. Justice Harlan’s dissent in Roth v. United States,

354 U.S. 476, 498 (1957): “Our duty admits of no ‘substitute for

facing’ up to the tough individual problems of constitutional judg

ment imvolved in every obscenity case.”” 413 U.S. at 29-30. Se

also-Jacobellis v. Ohio, 378 U.S. 184 (1964); Napue v. Illinois

360 U.S. 264 (1959); Niemotko v. Maryland, 340 U.S. 268 (1951).

9

substitute for meaningful relationships and hence does

not provide fulfillment, no finder of fact could reasonably

conclude that the film, taken as a whole, appeals to the

prurient interest.

First of all, as this Court made clear in Roth, sex and

prarience are not synonymous:

‘The portrayal of sex, e.g., in art, literature and

scientific works, is not itself sufficient reason to deny

material the constitutional protection of freedom of

speech and press. Sex, a great and mysterious motive

force in human life, has indisputably been a subject

of absorbing interest to mankind through the ages ;

it is one of the vital problems of human interest and

ublic concern.’’ Roth v. United States, supra, 354

S. at 487. [footnotes omitted]

Sex is treated in this film as a vital but sometimes baffling

and exasperating part of life, but without lewdness or

lascivity. While the leading male characters are pre-

occupied with sex, the picture is not; it deals with them

as immature and troubled personalities unable to cope with

the world around them.

Second, the great bulk of the picture does not depict

sexual acts in any way, and where they are portrayed,

it is done discreetly, obliquely, only suggestively, and as

anatural, illustrative aspect of the theme. Thus “the dom-

inant theme of the material taken as a whole,’? Memoirs

¥. Massachusetts, 383 U.S. 413, 418 (1966), does not appeal

to the prurient interest.

Carnal Knowledge not de sexual con-

ns duct in a patently = —

Even those brief parts of the film which are concerned

with sexual acts cannot be held patently offensive within

the meaning of the second criterion of the Miller standards.

For they plainly do not go ‘‘substantially beyond custom-

ary limits of candor in description or representation of

10

such matters,’’ Jacobellis v. Ohio, 378 U.S. 184, 191 (1964).

nor are they ‘‘portrayed in a manner so offensive as tp

make it unacceptable under current community mores,”

Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482 (1962).

Carnal Knowledge cannot, by any standard, be put in

the same category as the kind of material considered by

this Court to be patently offensive.® It is tame stuff in.

deed compared to the material at issue in the cases decided

by this Court in the recent past.'® ‘The sexual acts are only

suggested, never explicitly depicted, and there is no shov.

ing of the genitals in those scenes suggesting serul

activity.

Surely Carnal Knowledge, which has played to an esti.

mated 17,500,000 people, in every state, indeed in prac.

_ tically every village and hamlet in America, almost without

® As Justice Hawes pointed out dissenting below: “Certainly,

‘the film under consideration here is not the kind of hard-core por

y we removed from public consumption in [Slaton].” Jenkin

v. Georgia, 230 Ga. 726, —, 199 S.E. 2d 183, 190 (1973) (Hawes,

J., dissenting. )

10 For example, Miller dealt with brochures advertising four books

—lIntercourse, Man-Woman, Sex Orgies Illustrated, An Illustrated

History of Pornography—and a film entitled Marital Intercous

The Court found, “[PJrimarily they consist of pictures wi

drawings very explicitly depicting men and women in groups d

two or more engaging in a variety of sexual activities, with genita

often prominently displayed.” 413 U.S. at 18. Slaton dealt with tw

pictures depicting “scenes of simulated fellatio, cunnilingus, wi

group sex intercourse.” 413 U.S. at 52. The book in questions

Kaplan v. California, 413 U.S. 115 (1973), “Suite 69” is, accondin

to the Court’s characterization, “made up entirely of repetiti

descriptions of physical, sexual conduct, ‘clinically’ explicit and &

fensive to the point of being nauseous; there is only the mos

every fifth, 10th or 20th page, beginning at any point or page #

random, the content is unvarying.” Jd. at 117,

11

incident, cannot be found to go substantially beyond cus-

tomary limits of candor. To affirm a fact-finder’s holding

otherwise would mean that juries and judges could com-

pletely exclude any and all photographic suggestions—not

merely specific close-ups—of sexual activities from films.

In light of Roth’s pointed comments that ‘‘sex and ob-

} seenity are not synonymous’’ and that ‘‘[t]he portrayal

of sex .. . is not itself sufficient reason to deny . . . con-

stitutional protection.’’ 354 U.S. at 487, upholding the

Georgia courts on this issue would mark a sharp, un-

warranted break with precedent. See also Jacobellis v. Ohio,

378 U.S. 184, 196 (1964) (holding the movie, The Lovers,

not obscene notwithstanding ‘‘an explicit love scene in the

last reel of the film’’).

(c) Carnal Knowledge, taken as a whole, does not

lack serious literary, artistic, political or scien-

tifie value.

It is inconceivable that a movie such as this—which

many critics found to be one of the ten best of the year;

which had a star nominated for an Academy Award; and

which scores of reviewers’ analyzed on a sophisticated

level, debating the ideas and values which it contained—

could be found to be without serious literary, artistic or

political value. An independent viewing of the picture

must certainly convince the Court that all these critics

are not fantasizing; on the contrary, such a viewing will

persuade the Court that the picture does indeed present

ideas and provocative comments about the nature of life.

This is simply not the kind of picture where the viewer’s

thought processes are monopolized by constant and repeti-

tive bombardment of explicit or simulated sex so that the

communication of ideas and values is nonexistent. Instead,

bet» StmPling of the reviews and critiques are cited in Appellant's

12 '

this is a major artistic work in which the very limited

amount of sex portrayed is an integral part of the overall

theme. Where, as here, the sex portrayed is incidental to

the story, and not vice versa, the work should be protected

under the First Amendment.

POINT II

This case demonstrates that the Miller standard

need to be clarified.

This Court has consistently recognized the necessity of

establishing standards for determining obscenity which vil

provide clear and predictable guidelines that do not chill or —

impinge upon First Amendment rights. There are obviously ©

‘‘inherent dangers of undertaking to regulate any form of

expression,’’ Miller v. California, supra, 413 US. at 2,

because ‘‘freedoms of expression . . . are vulnerable to

gravely damaging yet barely visible encroachments,” Bar.

tam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963).

Most state criminal obscenity statutes, as a practical

matter, have this Court’s changing definitions of obscenity

incorporated into their definitions of prohibited activity.

Thus in most states, and under many federal criminal

statutes outlawing obscenity,’? the dissemination of ms-

terial which is obscene under the Court’s standards is ips

facto a crime. When the Court promulgates obscenity

standards, while it formally purports only to draw the

outside line to which state regulation can reach, in practi

eal effect it draws a vitally important line separating th

12 See, e.g., 18 U.S.C. § 1461 (1970) (use of mails); 18 USC.

§ 1462 (1970) (importation); 18 U.S.C. § 1463 (1970) (use of ob-

scene mailing wrappers); 18 U.S.C. § 1465 (1970) (transportation

in interstate commerce for sale and distribution).

—:

exercise of First Amendment rights from criminal activity,

one which the Court has acknowledged can all too easily

become ‘‘a dim and uncertain line,’? Bantam Books, Inc, v.

Sullivan, supra, 372 U.S. at 66.

13

It is imperative that this line be as clear and precise as

possible for the reasons articulated in Mr. Justice Bren-

nan’s dissenting opinion in Paris Adult Theatre I v. Slaton,

supra, 413 U.S. at 83-93.

First, a vague standard does not warn those conscien-

tiously trying to obey the law what is prohibited activity.

It has long been recognized as unconscionable for govern-

ment to foree its citizens to guess at what may or may not

beacrime. Lanzetta v. New Jersey, 306 U.S. 451 (1939) ;

Connally v. General Construction Co., 269 U.S. 385 (1926).

The predicament of Appellant in the instant case demon-

strates the danger. He has been convicted of a crime, fined

and given a year’s suspended sentence, for showing a movie

which had previously played all over the United States

and the State of Georgia, and he will not finally know

whether his actions in February, 1972 were criminal or

an exercise of free speech until this Court finally renders

its decision. It is essential, we suggest, that the Court in

this ease articulate a rule which will prevent others from

being put in the same position in the future.

Second, imprecise language in a criminal standard pro-

vides an unacceptable leeway for prosecutors and police

dficials to engage in arbitrary, even discriminatory, en-

foreement of the law based on unrevealed personal interests

and biases. Particularly when this threatens First Amend-

ment rights, the Court has been vigilant in preventing

even the potential for such abuse by demanding precision.

As the Court said in Grayned v. City of Rockford, 408

US. 104, 108-09 (1972), «A vague law impermissibly dele-

gates basic policy matters to policemen, judges and juries

for resolution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discriminatory applica-

14

tion.’? See also Gregory v. City of Chicago, 394 U.S. 111,

120 (Black, J., concurring). It is tempting to speculate

why this film was prosecuted in Albany and not Camilla,

Valdosta or Fitzgerald, Georgia or the hundreds of other

towns it played in that are similar to Albany.

Third, lack of clarity will inescapably have a ‘‘chilling”

or deterrent effect on the lawful exercise of free speech

Many authors, directors, producers, distributors, exhibitors

and booksellers, understandably concerned for. their own

personal or economic welfare, will simply not approach

the zone of uncertainty if the penalty for guessing wrong

is a criminal sentence. ‘‘Uncertain meanings inevitably

lead citizens to ‘steer far wider of the unlawful zone’...

than if the boundaries of the forbidden areas were clearly

marked.’’ Grayned v. City of Rockford, supra, 408 US.

at 109 (footnote and citations omitted). And this Court,

mindful of the constitutional imperative of open and robust

debate on all issues of the day, has rightfully stressed

the importance of preventing such a chilling effect by re

quiring clarity and precision in regulating speech. ‘‘ Because

First Amendment freedoms need breathing space to sur-

vive, government may regulate in the area only with

narrow specificity. Cantwell v. Connecticut, 310 U.S. 296,

311." NAACP v. Button, 371 U.S. 415, 433 (1963). Where

such specificity is lacking, ‘‘free expression—of transcer-

dent value to all society, and not merely to those exercising

their rights—might be the loser.’’ Dombrowski v. Pfister,

380 U.S. 479, 486 (1965).

Carnal Knowledge took 20 months to produce and cost

the distributor for production and marketing appro:

mately $8,800,000. No company, in making artistic de

cisions during the production of such a film, could afford

to approach an imprecise line demarking criminality be

cause a wrong prediction would result in tremendous

financial losses. Of course, exhibitors threatened with fines

15

and imprisonment would be even more unwilling to show

a picture with uncertain constitutional protection.

For all these reasons the Court has invariably de-

manded that ‘‘sensitive tools’? be used to carry out the

“separation of legitimate from illegitimate use of speech. ’’

Speiser v. Randall, 357 U.S. 513, 525 (1958), quoted in

Paris Adult Theatre I y. Slaton, supra, 413 U.S. at 79

(Brennan, J., dissenting.)

. There was a basic disagreement within the Court in

Miller and Slaton as to whether the Court’s obscenity

standards were clear enough to avoid these dangers. The

dissenting Justices in Slaton concluded that ‘‘we have been

wable to provide ‘sensitive tools’ to separate obscenity

from other sexually oriented but constitutionally protected

speech, so that efforts to suppress the former do not spill

over into suppression of the latter,’’ 413 U.S. at 79, (Bren-

nan, J. dissenting). But the majority in Miller concluded

that the fact that ‘‘for the first time since Roth was decided

in 1957, a majority of this Court has agreed on concrete

guidelines .. . [means that the Court can] provide positive

guidance to the federal and state courts alike’’, 413 U.S.

at 29,

Decisions, even in the short time since Miller, have

demonstrated that the majority was unduly optimistic

in thinking they were providing clear guidance just be-

cause they agreed on the same standard. In the event,

that standard has proved too vague and imprecise to

communicate the Court’s intentions or provide reasonable

predictability of meaning. The incredible decision by the

Supreme Court of Georgia purporting to apply the Miller

standards in this case makes clear that the existing three

Prong test is insufficient. Unfortunately, this case is not

a isolated aberration. Last Tango in Paris, a motion Pic-

ture of comparable taste and distinction,’* has been held

obscene under Miller’* and harassed by local prosecutors

relying on the Miller standards in many parts of the

country.’®

It is apparent even from this short experience that the

Miller standards do not provide consistent or meaningful

18 Reviewer Judith Crist noted on the “Today Show,” February

2, 1973, that Last Tango in Paris while it did include scenes depict.

ing sex and while it involved a primarily sexual relationship between

the two principal characters “is not about sex, and it is not about

inhumanity. And thanks to Marlon Brando’s simply stunning per-

formance, which gives the whole film an aura of greatness . . . it is

about the things that a man lives by; and, essentially, its theme is

that you cannot live in isolation by sex alone.” The New York Daily

News reviewer, Wanda Hale, said: “It took guts to play the libertine

in ‘The Last Tango in Paris’ and Marlon Brandon gives a shattering

portrayal of a sick man more to be pitied than condemned.” (Febm-

ary 28, 1973, p. 68). Alan M. Kriegsman of The Washington Pos

commented: “The characters’ drives may be expressed biologically,

but that is by no means their entire essence. In fact, on the evidence

of the film, the characters’ motivation, as distinct from their ap-

petites, is basically psychological and romantic, “Tango,” in other

words, is not about sex. It is about the possibility of communication,

in particular, of emotional communion between people in a con-

temporary milieu. If Bertolucci was trying to “say” anything at all,

it was about love, not eroticism. This means, for one thing, that there

is no disparity between the romantic style of the film, with its Rem-

brandtian light and color, ornate decor, and gliding, spiralling camer

movement on the one hand, and its affective content on the other.”

(June 3, 1970, § M, at 10).

14 Gulf States Theatres of Louisiana, Inc. v. Richardson, unte-

ported (1st Jud. Dist. Ct., Parish of Caddo) (Oct. 12, 1973), rev'd

on other grounds, — La. —, 42 U.S.L. Week 2362, — So. 2nd —

(Sup. Ct. Dec. 3, 1973).

18 See, e.g., United Artists Corporation v. Harris, 363 F.Supp.

857 (W.D. Okla., 1973) and, United Artists Corporation v. Proskin,

363 F.Supp. 406 (N.D.N.Y., 1973), (both involving threats of

prosecution deferring exhibition of Last Tango in Paris). See also

Incorporated Village of Lynbrook v. United Artists Corp., 75 Mis.

2d 124, — N.Y.S. 2d — (Sup. Ct. 1973). Unfortunately, no cite-

tions record the countless threats and harassment of theatre owners

which have sharply accelerated since Miller. In-any instances, theatre

owners, rather than incurring the risk and expense of resistance,

simply bow to the pressure, and there is no record of these impinge-

ments on First Amendment rights.

17

guidelines to lower courts and will not be given a uniform

or predictable application. Thus the dangers from a vague

standard referred to above will not be avoided. Further-

more, the fact that state courts are holding Carnal Knowl-

edge and Last Tango in Paris obscene establishes that the

Miller guidelines are subject to grievous misinterpretation,

However, a solution to this dilemma may not necessarily

require adoption of the dissenting position in Slaton.**

Indeed, experience since Miller may show how the stan-

dards can be modified to give clearer guidance and certainty

while preserving the substance of the Miller and Slaton

holdings. Therefore, we urge this Court to clarify and

elaborate the Miller standards, and we suggest appropriate

ways to accomplish this in Points III and IV, infra.

POINT III

The Miller standards should be clarified to provide

that only patent and obvious hard core pornography is

unprotected by the First Amendment.

Although there is no Specific reference to hard core

pornography in the Miller standards themselves, the Court

specifically stated that its purpose in establishing them was

“to isolate ‘hard core’ pornography from expression pro-

tected by the First Amendment.”’ 413 U.S. at 29. The Court

further made clear that:

‘“‘Under the holdings announced today, no one

will be subject to prosecution for the sale or exposure

of obscene materials unless these materials depict

or describe patently offensive ‘hard core’ sexual

conduct specifically defined by the regulating state

law as written or construed.’’ 403 U.S. at 27. (Em-

phasis added.)

"*NATO believes that as matters of wise policy and constitu-

imperative, consenting adults should be free to view or to

read whatever material they wish. Thus, we fully agree with Mr.

Justice Brennan’s dissenting opinion in Slaton. However, we do not

reently, a7eue the issue since the Court has considered it so

recently,

18

There are five separate references to hard core pornog.

raphy or sexual conduct in the Chief Justice’s majority

opinion in Miller,*" and another in his opinion in Slaton."

It seems clear from this that the Court conceived the Mil.

ler standards to encompass what is commonly known as

hard core pornography.

However, the Georgia Supreme Court did not perceive

this from its reading of Miller. Although that Court

specifically held in Slaton that the films at issue were

‘thard core pornography’’, Paris Adult Theatre I v. Slaton

228 Ga. 343, 347; 185 S.E. 2d 768, 770 (1971), it made no

such finding as to Carnal Knowledge in this case, Of

course, Carnal Knowledge is obviously not hard core por.

nography, as pointed out by Justice Hawes in his dissent

below. 230 Ga. at —, 199 S.E. 2d at 190.

We believe the explicit incorporation of the test of hard

core pornography into the Court’s obscenity standards

would not only prevent future decisions such as the one

below, but would also faithfully reflect the development of

the law culminating in Miller and add substantial clarity,

meaning and predictability to the standards. As various

Justices of this Court have recognized, the term ‘‘hard core

pornography”’ has meaningful and consistent content to lay-

men and judges alike. To paraphrase Mr. Justice Stewart,

‘“people know it when they see it.’? See Jacobellis v. Ohio,

378 U.S. 184, 197 (1964) (Stewart, J., concurring). Put

another way, beyond its denotative definition, the phrase

has clear connotative meaning which the three criteria of

the Miller standard simply do not possess.

Mr. Justice Stewart has elsewhere pointed out that the

phrase hard core pornography encompasses a ‘‘distinet

and easily definable class of material.’’? Ginzburg v. U.S. 38

17 413 US. at 27; 413 US. at 29; 413 U.S. at 35; 413 US #

36; ibid.

18 413 U.S, at 52.

19

US. 463, 499 (1966). See also Mishkin v. New York, 383

U.S, 502, 518 (1966) (Stewart, J., dissenting).

Similarly, Mr. Justice Harlan recognized that hard core

pornography isolates a ‘‘narrow class’’ of material which

is capable of reasonably precise definition, Gineburg v.

United States, supra, 383 U.S. at 493 (Harlan, J., dissent-

ing), and that ‘‘it does describe something that most judges

and others will ‘know . . . when [they] see it’... [citation

omitted] and that leaves the smallest room for disagree-

ment between those of varying tastes,’’ Memoirs v. Massa-

chusetts, supra, 383 U.S. at 457 (1966) (Harlan, J., dis-

senting). Thus he concluded that federal obscenity

legislation should be restricted to ‘hard core pornog-

raphy”. Ibid. See also Roth v. United States, supra,

354 U.S. at 507 (Harlan, J., dissenting),

This concept was put succinctly by the Court in Slaton,

413 U.S. at 56, n.6, quoting United States vy. Wild, 422

F.2d 34, 36 (2nd Cir. 1969), cert. denied 402 U.S. 986

(1971): “‘Simply stated, hard core pornography ... can

and does speak for itself.’’ The examples of what a state

statute could define as patently offensive sexual conduct

given by the Court in Miller, 413 U.S. at 25, are the same

kind of material which, if pervading and dominating a

work, would constitute hard core pornography. See United

States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130, n.7

(1973). :

Furthermore, the Court has demonstrated that it can

communicate on paper the essence of what is hard core

pornography. Readers of the Court’s opinions, we believe,

understand hard core pornography to be mind-numbing

repetitive filth of the kind at issue in Miller, Slaton and

Kaplan v. California, It is material so dominated by ex-

plicit, lewd portrayals of sex and sex-related acts that it

is substantially incapable of inducing rational thought or

constituting the communication of ideas,

——

The description of this class of material, contained jp

Mr. Justice Stewart’s dissenting opinion in (ineburg,

quoting from a description in the Solicitor General’s brief

of the kind of material which constitutes the great. bulk

of matter proceeded against under the federal obscenity

laws, gives an easily understandable picture of the kind

of material which constitutes hard core pornography:

**. . . Such materials include photographs, both

still and motion picture, with no pretense of artistic

value, graphically depicting acts of sexual inter.

course, including various acts of sodomy and sadism,

and sometimes involving several participants in

scenes of orgy-like character. They also include

strips of drawings in comic-book format grossly de-

— similar activities in an ex rated fashion.

ere in addition, pamphlets and booklets, some.

times with photographic illustrations, verbally de-

scribing such activities in a bizarre manner with no

attempt whatsoever to afford portrayals of character

or situation and with no pretense to literary value.

All of this material . . . cannot conceivably be char-

acteri as embodying communication of ideas or

artistic values inviolate under the First Amend-

ment .. .’’ 383 U.S. at 499, n.3.

This seems to be what the Court had in mind when it

said that the goal of the Miller standards was to ‘‘isolate

‘hard core’ pornography from expression protected by the

First Amendment’’. 413 U.S. at 29. However, as shown in

Point II, supra, lower courts and prosecutors are not get-

ting the message. Thus, we suggest that the Court, without

changing the substance of Miller or Slaton,’® make explicit

19 In Mishkin v. New York, supra, 383 U.S. at 508, Mr. Justice

Brennan suggested in dicta that hard core pornography was a dif-

ferent standard than the standard set out in Roth. Since that time,

however, the Court has recognized that the Roth standard as elabo-

rated in Memoirs v. Massachusetts, supra, 383 U.S. at 418 is “not

dissimilar” from the “distinct and clearly identifiable class of ma-

21

what is implicit in these opinions by adding a fourth criter-

jon to the current standards: material is protected unless,

taken as a whole, it is patent and obvious hard core

pornography. This would greatly clarify Miller and pre-

vent other courts from going astray as did the Supreme

Court of Georgia in this case.

Adding this fourth hard core pornography criterion to

the Court’s obscenity standard would be fully consistent

with the basic thrust of the Court’s obscenity holdings.

The essense of Roth is that ‘‘ideas having even the slightest

redeeming social importance’’ have the full protection of

the First Amendment, and obscenity is not protected for

the very reason that it is ‘‘no essential part of any exposi-

tion of ideas.’’? 354 U.S. at 484-485, quoted in Miller, 413

U.S. at 20. Roth, of course, relied heavily on Chaplinsky v.

New Hampshire, 315 U.S. 568 (1942), which held that

“fighting words’’ are not protected by the First Amend-

ment because they ‘‘are no essential part of any exposition

of ideas ahd are of such slight social value as a step to

trath that any benefit derived from them is werw * out-

weighed by the social interest in order and morality. .

Id. at 572, quoted im Roth, 354 U.S. at 484-85.

Obscenity should be defined consistent with this con-

stitutional genesis to include only material which, like

fighting words, generates immediate emotional reaction

or stupefaction and is not ¢apable of stimulating reason,

thought or debate. Hard core pornography, consisting of

repetitive and continuous bombardment of the senses with

explicit, lewd sexual acts, unrelated to ideas, fits within

this class of worthless material. Expression that does not

so bombard the senses, and is capable of inducing reflec-

tion and debate, should be given First Amendment protec-

tion consistent with Chaplinsky and Roth. Furthermore,

all of the materials held obscene and hence constitutionally

unprotected by this Court since Roth were patent and ob.

vious hard core pornography.”° ;

Thus, defining obscenity as hard core porn

would weave a standard from the consistent thread running

through the Court’s opinions from Roth to Miller and, by

providing a reasonably meaningful and predictable guide.

line, would minimize the difficulties with the present Miller

standards discussed in Point II, supra, and articulated in

Mr. Justice Brennan’s dissenting opinion in Slaton,

A number of state courts have already made clear that

the phrase hard core pornography is meaningful to then

and to the prosecutors and jurors whom they supervise. |

These courts have interpreted their state statutes and this

Court’s obscenity standards as equivalent to hard cor

pornography for the very reason that they know what that

phrase means. For example, in People v. Heller, 33 NY.

2d—, — N.E. 2d—(Case No. 71-184, 1973), the New York

Court of Appeals recently upheld one of that State's ob

scenity statutes as not void for vagueness and as meeting

the Miller requirement that sexual conduct in material

challenged as obscene be specifically defined. The Nev

York courts had interpreted the statute as applying only

to hard core pornography and, the Court reasoned, that

was a well-understood concept. Thus the Court inter

2° See n. 10. supra; Huffman v. United States, 470 F.2d 38%,

396-402 (D.C. Cir. 1971) (an elaborate case by case discussion

of the materials involved in the Court's obscenity decisions); People

v. Mature Enterprises, Inc..—N.Y.S. 2d—, — & n. —, 343 NYS

2d 911, 922 & w. 11 (N.Y. City Crim. Ct, 1973) (review of r

cent, pre-Miller per curiam decisions of this Court.) See also People

v. Noroff, 67 Cal. 2nd 791, 433 P. 2nd 479 (1967). The only po

sible exception is Ginzburg v. United States, supra, where the Cout

that the material in question might not be obscene i

distributed in a different manner.

preted the typically worded obscenity statute: ‘‘as per-

taining to hard core pornography and the average man,

whether he be the smut peddler or the policeman, knows

it when he sees it.”’ Slip op. at 13; see also id., at 16.

It pointed out that it had ‘‘applied the hard core pornog-

raphy test with consistency, id., at 12, and that this gave

the generally worded statute a ‘‘narrow application.”’

Id, at 18. The Court also clearly equated hard core por-

nography with ‘‘exactly that sort of thing described in

the Miller opinion.’’ Zd., at 13.

The experience of the New York Court of Appeals in

applying a hard core pornography standard shows that the

phrase has consistent and well-understood meaning. Thus,

Judge Fuld, writing for the Court in People v. Richmond

County News, Inc., 9 N.Y. 2d 578, 587, 175 N.E. 2d 681, 686

(1961), described hard core pornography in terms strikingly

consistent with Mr. Justice Stewart’s quotation from the

Solicitor General’s Brief in Ginzburg :*2

“It focuses predominantly upon what is sexually

morbid, grossly perverse and bizarre, without any

artistic or scientific purpose or justification. Rec-

ognizable ‘by the insult it offers, invariably, to sex,

and to the human spirit’ (D. H. Lawrence, Por-

megreehy and Obscenity [1930], p. 12), it is to be

ifferentiated from the bawdy and the ribald. De-

picting dirt for dirt’s sake, the obscene is the vile,

rather than the coarse, the blow to sense, not merely

to sensibility. It smacks, at times, of fantasy and

unreality, of sexual perversion and sickness and

ns oe ween according to one thoughtful scholar, ‘a

ebauchery of the sexual faculty.’ ”’

"The New York statute defined “obscene” as follows: “

material or performance is ‘obscene’ if (a) considered as a whole,

24

People v. Mature Enterprises, Inc., — Misc.2d —, 343

N.Y.S. 2d 911 (N.Y. City Crim. Ct. 1973), is a recent er.

ample of how the hard core pornography test has proved

an effective and easily applicable guideline for New Yor

courts to judge obscenity cases. The Court had no trouble

holding the motion picture Deep Throat obscene becanse

“it is readily recognjzed throughout the nation by al

those not beyond the pale . . . as unmistakable hard cor

pornography.’’ IJd., at 920. The Court concluded, after

a careful review of recent obscenity cases, that the phrase

hard core pornography is ‘‘readily definable and certainly

more readily identifiable as a reasonable precise concept”

than any other standard. -Jd., at 919. Finally, the court

concluded that the United States Supreme Court “has

equated obscenity with hard core pornography without

expressly saying so...’’ ZId., at 918.

Other state courts have frequently equated obscenity

with hard core pornography, recognizing that the phrase

has a connotative meaning that the Court’s shifting

definitions simply do not have. Indeed, many courts viewed

the meaning of hard core pornography as so clear that

it was not necessary to define it. The California Supreme

Court in 1967, for example, carefully compared the ma.

terial before it with the kind of material that the Supreme

Court had found obscene. In concluding that a nudist

magazine which did not depict sexual activity was not

obscene, the Court noted that ‘‘the graphic depiction of

such sexual activity seems to be the distinguishing feature

of the only materials which the United States Supreme

Court has ever ruled obscene . . . Such materials, and no

others, have been thought to constitute ‘hard-core pornog-

raphy’.’’ People v. Noroff, 67 Cal. 2d 791, 794, n.6, 48

P.2d 479, 481 n.6 (1967). In Commonwealth v. Dell Publice

tions Inc., 427 Pa. 189, 233 A.2d 840 (1967), the Pennsyl

vania Supreme Court in holding Candy not obscem

reasoned that it was not hard core pornography which on

knows when he sees it. 427 Pa. at 212, 233 A.2d at 853.

25

Federal courts too have concluded that this phrase con-

stitutes a clear and effective guidepost for obscenity regula-

tion. Thus, in United States v. Hamling, 481 F.2d 307

(1973), cert. granted, 42 U.S.L. Week 3405 (U.S. Jan.

14, 1974), the Ninth Circuit upheld a conviction under

18 U.S.C. § 1461 (1970) because it found the material at

issue to be ‘‘hard core pornography,’’ ‘‘unmistakably hard

core pornography,’’ and ‘‘hard core pornography with

avengeance.’? Jd. at 317. This Court has assigned Ham-

ling for argument along with Jenkins. These two cases

seem to illustrate where a hard core pornography test will

draw the line. Any layman or jurist would immediately

conclude that the advertising brochure found obscene in

Hamling is hard core pornography and that Carnal Knowl-

edge is not hard core pornography. As pointed out at p.

18, supra, even the majority of the Georgia Supreme Court

did not consider Carnal Knowledge hard core pornography.

In United States v. Wild, 422 F.2d 34 (2d Cir. 1969)

cert, denied, 402 U.S. 986 (1971), the Second Circuit

faced the issue whether expert testimony was required in

aprosecution under 18 USC ¢ 1461 (1970). It held that such

testimony was not required for the significant reason that

obscenity meant hard core pornography and that term was

understood by laymen without the need of expert testimony.

Chief Judge Lumbard, speaking for the court, said,

“Simply stated, hard core pornography ... can and does

speak for itself.’ 422 F.2d at 36. See also Luros v.

United States, 389 F.2d 200, 205 (8th Cir. 1968).

While a hard core pornography test would give fair

warning as to what can be prosecuted, it would not prevent

effective regulation where government desires it. States

could outlaw the very kind of disgusting filth that people

find objectionable and prosecutors would not be placed in

the unenviable position of having to prove an extreme

negative such as ‘‘utterly without redeeming social value.’’

It would prevent frivolous prosecutions such as the

26

present one, clear the way for successful prosecutions jn

meritorious cases, and be faithful to the principles of Miller

and Slaton.

POINT IV

The Miller standards should be clarified to provide

that material which has any literary, artistic, political

or scientific value is constitutionally protected.

The Georgia Supreme Court, incredibly, held that Car.

nal Knowledge, taken as a whole, lacked serious literary,

artistic, political or scientific value as those words are used

in Miller. The most cursory viewing of this high quality,

critically acclaimed, award winning film demonstrates that

the Georgia court did not understand the meaning of

these words intended by the Court.** Unfortunately,

the frequency of local prosecution and harassment of suck

other artistic but controversial pictures as Last Tango in

Paris*™ indicate that such misinterpretations are not uncom.

mon and will continue unless this Court clarifies the Miler

standards. Ne

We suggest that the trouble with the third criterion of

the Miller standard lies in the word ‘“‘serious.’’ It has no

clear or consistent meaning, particularly when referring

to such concepts amorphous and controversial in them

selves as literature, art, politics and science. Inserting

such a qualitative word in the obscenity standards leaves

the trier of fact totally at sea and encourages him to insert

his own personal tastes and prejudices into the decision

making process. This is a particularly dangerous post-

bility when one considers that much material prosecuted

under criminal obscenity statutes is not familiar or com

fortable to most judges and jurors.

23 See pp. 8, 11-12, supra.

24 See pp. 15-17, supra.

27

It is difficult enough to determine whether material has

literary, artistic, political or scientific value; it seems im-

possible to determine by any consistent standard whether

such value is serious or not serious. As pointed out by Mr.

Justice Douglas, concurring in Memoirs v. Massachusetts :

**We are judges, not literary experts or histor-

ians or philosophers. We are not competent to

render an ager ony eo judgment as to the worth of

this or any other book, except in our capacity as

private citizens.’’ 383 U.S. at 427.

It is hard to understand how a judge or juror could

determine whether material has ‘‘serious”’ literary, artistic,

political or scientific value without guiding testimony by

experts in the field. But the Court has stated that such

expert testimony is not constitutionally required to make

out a case of obscenity. Kaplan v. California, supra, 413

US. at 121; Paris Adult Theatre I v. Slaton, supra, 413

US. at 56.*° It may be possible that a juror can reflect the

impact of material on the average person in his community

without expert guidance in evaluating prurient interest or

patent offensiveness.**, However, the reaction or level

of tolerance of the mythical average person is irrelevant

in assessing the seriousness of literary, artistic, political

or scientific value. That turns on the inherent quality

of the work itself. How, for example, can jurors without

expert guidance determine whether Ulysses, Lady Chat-

terley’s Lover or Fanny Hill has serious literary value,

* We urge the Court to reconsider these statements and hold that

the free speech and due process clauses require expert testimony

to value; otherwise @ conviction would not be evi-

“Even here, since material must be judged by contemporary

community standards, one would think there must be evidence

Peseated as to what those standards are in order to satisfy the due

process clause,

28

or whether Masters and Johnson or Kinsey have serious

scientific value.

The Court in Miller carefully explained that it rejected

the ‘‘utterly without redeeming social value” test of Mem.

oirs v. Massachusetts because that test never commanded

a majority of the Court, placed a virtually impossible

burden on the prosecution, and contained the too am.

biguous concept of social importance. 413 U.S. at 22-23,

However, the Court never explained why it adopted the

requirement that material not only. have value, bat

‘serious’? value, to be constitutionally protected. That

word came like Venus full-blown out of the sea. None of

the Court’s reasons for rejecting the ‘‘utterly without

redeeming social value’’ test justify requiring that only

works of serious value be protected. That is in essence

saying that small, unimportant ideas (ie. non-Serious

ideas) are not protected. But Chaplinsky, Roth and its

progeny hold that ‘‘all ideas’’ have the ‘*full protection”

of the First Amendment.

We urge, therefore, that the Court clarify the third

criterion of its Miller standard—by eliminating ‘‘serious”

—to provide that a work is obscene only if, taken as a

whole, it lacks literary, artistic, political or scientific value.

POINT V

Under Miller, state-wide community standard

should be applied to determine prurience and patent

offensiveness, and a national standard applied to de

termine value.

In Miller, the California courts had used the ‘‘contempe-

rary community standards of the State of California” t

adjudicate the prurient appeal and patent offensiveness of

the material in question. See 413 U.S. at 31. This Cour

99

specifically upheld the use of this state-wide standard with

respect to these two criteria of the obscenity test. There has

been much confusion following Miller whether state courts

and legislatures must apply state-wide standards for these

two prongs or can instead allow the myriad communities

within a state to apply their own local standards.** There

is also confusion whether a local standard is permissable

to determine the value of material, or whether a work’s

inherent worth cannot vary from state to state and thus

must be judged by a national standard.

In the instant case, the Georgia Supreme Court applied

a local county-wide community standard, apparently for

all-three criteria of the Miller test, with the anomalous

result that Carnal Knowledge has been found obscene by

the local standard of Dougherty County, although it has

been shown—with apparent constitutional protection—in

many other Georgia counties.

The issue whether the Constitution requires a national

or state-wide standard in determining prurience and patent

offensiveness has previously been debated by this Court,?*

culminating in the holding in Miller approving a state-

wide standard. However, so far as we are aware, the

Court’s attention has not been focused on the serious dis-

Compare, e.g., State v. J.-R Distributors, Inc., —Wash.2d—,

512 P.2d 1049, 1065 (1973); People v. Heller, 33 N.Y.2d—,

-NE. 2d— (Case No. 71-184, 1973) (statewide Standard re-

quired) with Rhodes v. State, 283 So. 2nd 351 (Sup. Ct. Fla. 1973);

buaelton V. State, 50 Ala. App. 723, 282 So. 2d 342 (Crim.

App. 1973) (local community standards permissible). See also

Richards v. State, 497 S.W.2d 770, 777 (Tex. Civ. App. 1973)

(wih statewide and local community standards should be applied)

* See e.¢. Jacobellis v. Ohio, supra, 378 U.S. at 192 (opinion of

Jasices Brennan and Goldberg advocating national Standard); id. at

mae © J dissenting, advocating less than a national

30

order, uncertainty and unfairness which would result jf

it authorized local political or judicial subdivisions withip

a state to apply their own separate community standards,

There are over 78,200 separate political subdivisions jy

the 50 states of the United States.2* New York State alon

has 62 counties, 62 cities, 932 towns and 556 incorporated

villages,*° each one, except for the five counties constituting

New York City, with the power to enact and enforce crimi.

nal ordinances. N.Y. Mun. Home Rule Law, § 10(1) (a) (11).

(12) (McKinney Supp. 1973). Illinois has 102 counties, 1967

cities and villages and 1432 towns.*! And similarly, under

Illinois law, each municipality is empowered to enact and

enforce criminal ordinances. Il]. Ann. Stat., ch. 24, $1114

(Smith-Hurd 1973). The figures in many other states ar

comparable.**

There are approximately 14,800 motion picture theatre

operating in the United States today. They are undoubtedly

scattered throughout almost all of these political subdivi-

sions. Of course, in many states these subdivisions overlap;

thus, a single theatre could be located within a number

different subdivisions, such as a county and a city, ora

county, a township and a village.

It is obvious that if a state were permitted to do»

by the Constitution, and chose to define its community

standards by political subdivision, an impossible cragy-

quilt of conflicting standards would result. Indeed, pictures

2° U.S. Dept. of Commerce, Statistical Abstract of the United

States 1973, 412.

8° New York Legislative Manual, 1188-89, 1209-40 (1970).

81 U.S. Dept. of Commerce, Statistical Abstract of the United

States 1973, 412.

32 For example, California has 57 counties and 407 municipae

ties; Pennsylvania has 66 counties, 1012 municipalities and 152

; Texas has 254 counties and 981 municipalities; al

Georgia has 158 counties and 530 municipalities. Ibid.

31

shown in a theatre located in two or three different political

subdivisions would be judged by different standards de-

pending on which subdivision prosecuted the theatre owner.

It is, of course, possible that some states may choose, if

constitutionally permitted, to define the appropriate com-

munity for these purposes by some demarcation other than

political subdivision, such as judicial district. However,

this would lead to equally uncertain and absurd results.

Generally, judicial districts are not drawn to encompass

homogeneous communities but rather for administrative

convenience. Thus it would be a fallacy to suggest that

there is any identifiable community within a judicial dis-

triet, and it would be artificial and illusory to expect jurors

drawn from different communities within that district to

apply a district-wide community standard.

Furthermore, the standard to be applied by a federal

district court in prosecutions for violations of federal

obscenity statutes would almost necessarily be different

from that applied by the state courts if a less than state-

wide standard is permissible. Federal judicial districts are

in most instances not coterminus with state political sub-

divisions or state judicial districts. Thus if the federal

district courts applied the community standards of their

districts or divisions, see United States v. Groner, 479 F.2d

oof (5th Cir. 1973), vacated and remanded, 42 U.S.L. Week

343 (U.S. Oct. 15, 1973), and if state courts applied com-

munity standards of some different geographic area, dif-

ferent standards would govern federal and state prosecu-

tion of the same material disseminated in the same place.**

For example, a theatre owner showing a picture in Miami

could be prosecuted under a Florida obscenity statute jp

a state court of local jurisdiction whereby the picture »

question would be judged by the standards of Miami o

Dade County, see n.27 infra, and also prosecuted under

federal statutes whereby the picture would be judged by

the standards of the Southern District of Florida whig

includes 11 additional counties, including rural areas sad

as the Everglades. See 28 U.S.C. §89(c) (1970). Lik

wise, a federal prosecution for showing an allegedly obscen

movie in Fairfax, Virginia would not be governed ly

the standards of Fairfax County or the city of Fairfax—

the standards which might govern if the prosecution wen

brought under state law—but rather by the community

standard of the entire Eastern District of Virginia, encom.

passing 52 counties, many of which comprise sparsely pope

lated rural communities. See 28 U.S.C. §127(a) (197).

It takes no great prescience to realize that such a

balkanized application of the United States Constitutioa

will inevitably destroy any pretense of a uniform system

of criminal justice. Furthermore, it will seriously impinge

upon First Amendment rights of free expression. Fr

such balkanization will make it impossible for a person

disseminating movies or written material to know in ad-

vance whether that act’constitutes the exercise of Fint

Amendment rights or the commission of a crime in amy

particular location. Indeed, even the fact that a specifi

book or motion picture has been held to be protect

speech by one court can give no assurance that showing

it will not be held a criminal act in another court a fev

miles away. This in turn will have a serious chilling

effect.

As we noted at p. 5, supra, it took 20 months to pro

duce Carnal Knowledge at a cost of $5,400,000. Inevitably

producers of motion pictures will, given the economics

the industry, feel forced to make films of minimal offensive

ness to assure them of safe passage in the most restrictiv

of local communities. With this much effort and money

at stake, it is inconceivable that a producer would even

approach the point where his product might be held obscene

by any local community’s standards. Nor is it possible

tomake different versions of a picture to play in different

locations, particularly when the number and variety of local

communities is so vast. The same, of course, would be

tree for authors and publishers of written material.

Thus, with respect to determining whether material

appeals to the prurient interest or i patently offensive

we urge the court to hold that only state-wide standards

can be applied under Miller.

The Court in Miller did not reach the question whether

anything less than a national standard may be used to

jndge the value of material at issue. While it may be

true that prurience and patent offensiveness will vary from

state to state because they turn on the impact of material

on the average member of a community, the literary,

artistic, political and scientific value of material cannot

so vary because that quality turns on the inherent qualities

of the work itself. Ulysses and Lady Chatterley’s Lover

have undisputed literary worth regardless of the feelings

they may arouse in any particular local community, cf.,

Roth v. United States, supra, 354 U.S. at 506 (Harlan, J.,

dissenting), and Carnal Knowledge cannot lose its artistic

merit when it crosses the Dougherty County line. There

is no justification for judging the value of a work by

reference to state or local community standards ; that judg-

ment can only be made against the standards of our civili-

tation as a whole.

The verdict of the Dougherty County jury in this case

demonstrates that applying any parochial standard of value

violates a fundamental concept of the First Amendment—

that it protects free speech rights to communicate ideas

wherever one may go in this nation, regardless of how

wpopular they may be in any local community. In short,

ve have a national constitution.

—

Unless this aspect of Miller is clarified we will continy

to see a distressing growth of criminal obscenity om.

victions obtained by local prosecutors because they d

not accept standards of literary, artistic, political or sq.

entific value recognized by the nation at large. Incm.

gruously, many such prosecutions will be aimed at th

finest and most innovative products of American artis

and writers.

34

Conclusion

The decision of the Georgia Supreme Court should k

reversed; the Court should hold that the dissemination of

Carnal Knowledge is protected by the First Amendmat —

as a matter of constitutional fact; that material is pr

tected by the First Amendment unless, taken as a whok,

it is patent and obvious hard core pornography and lads

any literary, artistic, political or scientific value (in adi

tion to appealing to the prurient interest and being patently

offensive); that prurience, patent offensiveness and hari

core pornography should be judged by state-wide cm

munity standards; and that literary, artistic, political or

scientific value should be judged by a national standard

Attorneys for National Association

of Theatre Owners