Amicus Curiae Brief — Jenkins v. Georgia

Georgia Code Ann. Section 26-2105, on Its Face

and as Construed and Applied by the Supreme

Court of Georgia, Fails to Provide Either “Fair

Notice” or “Concrete Guidelines” as to What

Motion Picture Films Are Criminally Obscene

1. Appeal to the “Prurient Interest” of the

“Average Person” ......

2. “Patently Offensive”, in Light of “Con-

temporary Community Standards” ..........

3. The “Utterly Without Redeeming Social

Value” Test and the “Serious Artistic .. .

Ve BR csi titanic esiess

To Subject an Exhibitor of Motion Picture Films

to Criminal Prosecution for Exhibiting an

“Obscene” Film Prior to the Time That There

Has Been a Judicial Determination of Its Ob-

scenity Is a Denial of Due Process of Law ....

Il

The Constitutional Status of Allegedly Obscene

Expression Requires, as a Minimum, Deter-

mination on the Basis of Both the Area of the

State and the Geographic Area From Which

hn eG. ROE ere aeeeee

5

12

17

19

26

ii,

IV

The Court Should Clarify the Scope of the Area

of Ideas Protected by the First Amendment.

The Right of Individuals to Express, and the

Right of the Public to Receive, Informational,

Educational or Entertaining Ideas May Not

Be Constitutionally Abridged ...................... 48

NE in insinntcesscheniskenemenealinastbebcacine sinensis 57

Appendix A. Unreported Opinion of the United

States District Court ........... App. p. 1

TABLE OF AUTHORITIES CITED

Cases Page

Abrams v. United States, 250 U.S.616 ............ $1, 52

Bouie v. City of Columbia, 378 U.S.347 ............ 25, 26

Burstyn v. Wilson, 343 U.S.495 .............. 20

Cantwell v. Connecticut, 310 U.S.296 .................... 51

Citizens Publishing Co. v. United States, 394 U.S.

131 55

Cohen v. California, 403 U.S.15 .......... 20, 49, 52, 53

Delta Book Distributors, Inc. v. Cronvich, 304 F.

Supp. 662 (E.D. La. 1969) 29

Douglas v. Bouder, 93 S.Ct.2199 .......... 25, 26, 27, 28

Freedom v. Maryland, 380 U.S.51 : 31

Garrity v. New Jersey, 385 U.S.493 00... 44

Ginzburg v. United States, 383 U.S.463 ...... 16, 17, 19

dlbuiaton 25, 28, 39

Grigsby v. State, Tennessee Court of Criminal Ap-

peals, 14 Crim.Law.Rep. 2134 (Nov. 14, 1973)

wie fg

Griswold v. Connecticut, 381 U.S.479 .................... 54

Grosjean v. American Press Co., 297 U.S.233 .... 38

Heller v. New York, 93 S.Ct.2789 44

Interstate Circuit, Inc. v. City of Dallas, 390 U.S.

I ideapiitinreaapetibieinaoich does eanisisacccnioos aeestigsis caduceus 6

Jacobellis v. Ohio, 378 U.S.184 ooo... ccccececccececeeee- 6

Kaplan v. California, 93 S.Ct.2685 ........................ 46

Kingsley Books, Inc. v. Brown, 354 U.S.436 ........ 28

29, 32, 33

iv. |

Page

Naturalization, In re, 154 F.Supp. 556

CED. Pa. 1957)... -cer..cscereresnersesensnecneneserensssesees 46

Miller v. California, 93 S.Ct.2607......2, 4, 6, 7, 9, 10

12, 15, 16, 19, 22, 25, 26, 33, 40, 41, 46, 48, 56

NAACP vy. Button, 371 U.S.415 ..................00 2

Palko v. Connecticut, 302 U.S.319 .................08 50.

Paris Adult Theatre v. Slaton, 93 S.Ct.2628 ......7, 8

AER .9, 10, 23, 25, 26, 4

Perez v. Ledesma, 401 U.S.82 «............-.veesceenees 29

Rabe v. Washington, 405 U.S.313 ............... 35

Red Lion Broadcasting Co. v. FCC, 395 U.S.367 .. 56

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

Appa, Jully 2, 1973) .....--.---s-ssssssssnsseensetensessenssen 45

Roaden v. Kentucky, 93 S.Ct.2796 4

Roth v. United States, 354 U.S.476 .......... 2, 3,64

9, 12, 13, 28, 44, &

Rowan v. Post Office Dept., 397 U.S.728 ............ 15

Slaton v. Paris Adult Theatre I, .... Ga. ...., .... SEB.

Oe ns ) ...9, 10, 41

Stanley v. Georgia, 394 U.S.557 .............----- 20, 34

Spak, Naturalization of, In re, i ail 257

(E.D. Pa. 1958) 46

State v. Klapprott, 127 N.J.L. 395, 22 A2d 877.. 2

Sweezy v. New Hampshire, 354 U.S.234 .. a

Thomas v. Collins, 323 U.S.516 .................-.. _4l, 51

Thornhill v. Alabama, 310 U.S.88 ...................< 4

Time, Inc. v. Hill, 385 U.S.374 .............-.--..-e 56

Times Film Corp. v. City of Chicago, 365 U.S.43 .. 3

Page

United Artists Corp. v. Wright, et al., .... F.Supp.

wy U.S.Dist.Ct. Middle Dist. of Ala., N.Div.,

Civil No. 4208-N (Jan. 5, 1974) oo. 31, 32

United Mine Workers of America v. Illinois State

Bar Association, 389 U.S.217 56

United States v. Klaw, 150 F.2d 155 (2 Cir. 1955)

3 39

United States v. Levine, 83 F.2d 156 (2 Cir. 1956)

. 24

United States v. Roth, 237 F.2d 796 (2 Cir. 1956)

ars 5, 7, 9, 12, 39

Volanski v. United States, 246 F.2d 842 (6 Cir.

| eS aan 33

West Virginia State Bd. of Education v. Barnett,

BR RAI © ivreeenescmceicainns ‘ 39, 44

Williams v. Florida, 399 U.S.78 12

Winters v. New York, 333 U.S.S07 ....18, 20, 22, 54

Whitney v. California, 274 U.S.357 53

Wood v. Georgia, 370 U.S.375 ...... 54

Dictionary

gS REREAD MERA IRR NOE 13

Miscellaneous

Commission Report, p. 42 .....ccccccccccocceccceececceceeee 15

Commission Report, pp. 352-353 2 18

Lés Angeles Times (Jan. 12, 1974) 00... 20

World Almanac (1973), pp. 132, 191-192 ......42, 43

World Almanac (1973), pub. Newspaper Enter-

prises Association, pp. 136-137, 142-143, 152-

188, 189-206 42

vi.

Statutes Page

Alabama Code, Title 14, Secs. 374(16j)-(160)

(Supp. 1971) .....---------c-cseesenseeessnenenenenenenensenensee 30

Alabama Code, Title, 14, Sec. 374(16m)(a)

(Supp. 1971) ....-.--n----c-ceeeenseeeereenenennennenenensennns 30

Alabama Code, Title 14, Sec. 374(16m)(c)

COabins SONY a diciensencitdereeritlctpnemenerreninat 30

Georgia Code Annotated, Sec. 26-2105 ................ 5

United States Constitution, First Amendment ......3, 4

cnpicwsiiebacesinnanpnseinietenten 8, 11, 20, 29, 30, 38, 40, 41

One Sn ssdeentlabnieenninepintsinnnaiannhintiieannennsiiiy 43

Textbooks

34 American Law Institute Proceedings (1957)

PP. 19D, 192 .....n-neneeceneeeenenesnserensnennenssnnsennens 24

405 Annals of the Academy of Political and Social

Science, “Urban Change and the Planning Syn-

drome” (Jam. 1973), P. 9 ....-...-------ceeeeceeeeenenee 42

1 Annals of Congress (1834), pp. 432-434 ...... 37

Chafee, Freedom of Speech (1920), p. 23 ........... 6

Chafee, Free Speech in the United States (1941),

ES | 36

Comment, The Preferred Position Re-examined: An

Emotive Justification, 51 Journal of Urban Law

(1973), Pp. 255-284 ......--n-eeeee-ceesneneneeeensennen 53

Emerson, The Doctrine of Prior Restraint in 20

L. and Cont. Prob. (1955), pp. 648. 657 ......... 3

Emerson, The System of Freedom of Bxpreull

(1970), Po 6 ...n-.a.cesnnsnseeseeeneneenesnsnnennensenssensen 51, 2

Page

Forsyth, History of Trial by Jury (2d ed., 1878),

SESSA .. 36

Freud, “Humour”, Vol. I, World of Psychology,

edited by G. B. Levitas (1963), pp. 279-284 .. 57

I Government and Mass Communications (1947),

ST \ielicsstighineiennnaseeninsvannnseuiinbasiniinamaninnmnnnsau santeseccs. 3 36

X Holdsworth, History of English Law (Lond.,

ae dt. St Se SiO eee eae 35

17 Howell's State Trials (Lond. 1813), p. 675 .... 36

2 May, Constitutional History of England (Hol-

cabins hance | REE 34

2 May, Constitutional History of England (Hol-

land ed., 1912), pp. 16, 18, fm. 3 0. 35

Modern American Humor, edited by Bennett Cerf

SED Sooke glsistinshiovinsinasienensistamsencanhancsicaaapeatnbliciciicns 57

Taswell-Langmead, English Constitutional History

(28m e0., 1960), p 667. 2 34

Works Projects Administration, The Trial of John

Peter Zenger (1734) and The Freedom of the

A I BOD oatinscsnenenninnenscnnaensesianneinsananns 36

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-557

BiLLy JENKINS,

\ Appellant,

vs.

STATE OF GEORGIA,

Appellee.

On Appeal From the Supreme Court of Georgia.

Brief Amicus Curiae for Adult Film Association

of America, Inc.

Interest of the Amicus.

The Adult Film Association of America files this

Brief as amicus curiae with the written consent of both

appellant and appellee.

The Adult Film Association of America is a mem-

bership corporation consisting of producers, distributors

and exhibitors of motion picture film, directed primarily

at adult audiences.

Amicus curiae has a substantial interest in the de-

termination of the issues presented by this case. Films

produced, distributed and exhibited by Association

members find their way into every corner of our coun-

ty, and amicus is concerned with the standards pur-

suant to which motion picture films may be judged.

Amicus believes that the new tests of obscenity an-

sneeniini

nounced in Miller, and largely adopted by the Georgia

Supreme Court, fail to provide either “fair notice” of

“concrete guidelines” as to what motion picture films

are criminally obscene. Accordingly, members of the

Association, all of, whom are law-abiding citizens, face

the possibility of criminal prosecution under standards

which are, it is respectfully submitted, essentially

meaningless. In addition to being concerned about its

members, amicus is opposed to censorship, believing it

to be the sworn enemy of freedom and liberty. The

Association is deeply committed to the principles of

freedoms of speech and press upon which our country

was built and prospered.

Summary of Argument.

1. Georgia has defined obscenity by amalgamating

the abandoned Roth, Memoirs test with the Miller test.

The Georgia standards for identifying obscenity fail to

provide either “fair notice” or “concrete guidelines” as

to what motion picture films are criminally obscene,

since those standards rely on such indefinite concepts

as “prurient interest”, “patent offensiveness”, “utterly

without redeeming social value” and “serious value”.

These standards are as uncertain as “the unknown sub-

stance of the Milky Way”. Transferring from the Court

to the jury “the awesome task of making case-by-case

at once the criminal and constitutional law” would

lighten the burden of this Court but it does not cure,

and indeed exacerbates, the vice of vagueness. “Ad hoc

legislation” by a jury in this area constitutes a denial

of due process and is the functional equivalent of a

ex post facto law.

2. To compensate for the inherent and inevitable

vagueness involved in defining obscenity, due process of

ibis

law requires that there be a prior judicial determina-

tion of a work’s obscenity before a State initiates crim-

inal proceedings. In order to minimize the conflict with .

First Amendment rights, the civil proceedings must be

hedged about with adequate procedural safeguards, in-

cluding the right of a determination by a jury as to the

obscenity of a challenged film.

3. Allegedly obscene material should not be sup-

pressed unless such material not only offends state

standards, but also the standards of the geographic area

from which a particular jury is drawn. Since it is only

“obscenity” that is excluded from constitutional protec-

tion, the question of whether a particular work is ob-

scene necessarily implicates First Amendment ques-

tions. Any restriction on the right of citizens to freely

express themselves, and the right of the public to know,

must have at the very least a state justification; it can-

not depend for its validity upon the capriciousness or

whim of a “local community”. However, if a jury

drawn from a particular geographic area is of the

view that material does not offend the standards of the

particular community, then in the light of First Amend-

ment guarantees such community should have its way

and be permitted to view and see and hear what the

community deems tolerable. In brief, a local community

may tolerate what the State generally does not, but a

local community should not be permitted to suppress

what the State tolerates.

4. The Court should make clear, it is submitted,

that the phrase “literary, artistic, political or scientific”

was not intended to delineate strict categories of ideas

which alone are protected by the First Amendment.

The Constitution gives broad protection to the dissem-

ination of ideas. Freedom of expression is deemed im-

—_4—

portant for the enhancement of human dignity, to en-

able the people to govern themselves, to alleviate in-

dividual and societal tensions, and to assure that the

thinking process of the community will in no sense be

mutilated. Ideas which are informational, educational,

and entertaining have been recognized as important by

this Court, and indeed, the Court has eld that the

rights of free speech and a free press are not confined

to any field of human interest. Therefore, the Court

should clarify its ruling in Miller to the extent of

enunciating the principle that the First Amendment pro-

tects works which, taken as a whole, have tangible “lit-

erary, artistic, political, scientific, informational, educa-

tional, or entertaining ideas, or any other ideas of

human interest”.

A. Seventeen years ago, Judge Jerome Frank, in a

concurring opinion, wrote what is probably the best ju-

dicial essay on obscenity. United States v. Roth, 237

F.2d 796 (2 Cir. 1956). After calling “obscenity” an

exquisitely vague crime, he went on to say: “The ex-

quisite vagueness of the word ‘obscenity’ is apparent

from the way the judicial definition of that word has

kept shifting. . . . A standard so difficult for our ablest

judges to interpret is hardly one which has a ‘well-

settled’ meaning, a meaning sufficient adequately to ad-

vise a man whether he is or is not committing a crime

if he mails a book or picture.” (237 F.2d at 826).

In Roth v. United States, 354 U.S.476, this Court

rejected Judge Frank’s suggestion that the obscenity

statute there at issue was unconstitutionally vague, say-

ing:

“... [T]he Constitution does not require impos-

sible standards; all that is required is that the lan-

guage conveys sufficiently definite warning as to

the proscribed conduct when measured by

common understanding and practices. . . . These

words, applied according to the proper standard

for judging obscenity, already discussed, give ade-

quate warning of the conduct proscribed and

mark . . . boundaries sufficiently distinct for judges

and juries fairly to administer the law. . . .” (354

US. at 491.)

ncillioei

The “tortured history of the Court’s obscenity deci.

sions” attests to the accuracy of Judge Frank’s asser.

tion that the crime of “obscenity” is indeed exquisitely

vague. Justice Stewart, concurring in Jacobellis v. Ohio,

378 U.S.184, observed that it is “possible to read the

Court’s opinion in Roth . . . in a variety of ways. In

saying this, I imply no criticism of the Court, which

. . was faced with the task of trying to define what

may be indefinable”. (378 U.S. at 197). Some ten

years after this Court decided Roth, Justice Harlan said:

“fA]jnyone who undertakes to examine the Supreme

Court’s decisions since Roth which have held partice-

lar material obscene or not obscene would find himself

in utter bewilderment.” Interstate Circuit, Inc. v. City

of Dallas, 390 U.S.676, 707. It is no overstatement to

assert that every Justice faced with the problem of

defining obscenity has recognized its inherent vague-

ness. .

In Miller v. California, 93 S.Ct.2607, 2610, Chief

Justice Burger spoke of “the intractable obscenity

problem”. Recognizing that the question of obscenity

had evoked “a variety of views among the member

of the Court unmatched in any other course of constitu-

tional adjudication”, the Chief Justice went on to say:

“This is not remarkable, for in the area of. freedom of

speech and press the courts must always remain sensi-

tive. . . . This is an area in which there are few

eternal verities.” (93 S.Ct. at 2614). Chief Justice

Burger asserted that as a result of this vagueness, “this

Court was compelled to embark on the practice of sum-

marily reversing convictions for the dissemination of

materials that at least five members of the Court, ap

plying their separate tests, found to be protected by the

First Amendment. . . . The Redrup procedure has cast

sista Benin

us in the role of an unreviewable board of censorship

for the 50 States, subjectively judging each piece of ma-

terial brought before us.” (93 S.Ct. at 2614, n. 3).

Justice Brennan, dissenting in Paris Adult Theatre I

y. Slaton, 93 S.Ct.2628, made the same point. After

stating that the Court had failed to formulate a satisfac-

tory standard for separating protected from unprotected

speech, Justice Brennan went on to say that out of

necessity the Court “resorted to the Redrup approach,

which resolves cases as between the parties, but offers

only the most obscure guidance to legislation, adjudica-

tion by other courts, and primary conduct. By disposing

of cases through summary reversal or denial of certiorari

we have deliberately and effectively obscured the ra-

tionale underlying the decision. It comes as no surprise

that judicial attempts to follow our lead conscientiously

have often ended in hopeless confusion.” (93 S.Ct. at

2647).

Justice Brennan, the architect of the Court’s obscen-

ity decisions from Roth to Memoirs, stated the vague-

ness problem did not flow primarily from the Court’s

failure to reach a Consensus on any one standard.’ The

real problem, he said, was that it was simply impossible

‘Indeed, as Justice Brennan saw it, the differences between

the concededly vague Memoirs test and the Miller test “are, for

the most part, academic” (Brennan, dissenting in Paris, 93 S.Ct.

at 2653). The Miller rephrasing of Memoirs, Justice Brennan

said, contains all the same difficulties and ambiguities.

“The Court evidently recognizes that difficulties with the

Roth approach necessitate a significant change of direction.

But the Court does not describe its understanding of those

difficulties, nor does it indicate how the restatement of the

ciate

to define obscenity without impinging on First Amend-

ment rights. “[A]fter 15 years of experimentation and

debate, I am reluctantly forced to the conclusion that

none of the available formulas, including the one an.

nounced today, can reduce the vagueness to a tolerable

level. . . . Any effort to draw a constitutionally ap

ceptable boundary . . . must resort to such indefi-

nite concepts as ‘prurient interest’, ‘patent offensive

ness’, ‘serious literary value’ and the like. The meaning

of these concepts necessarily varies with the experience,

outlook, and even idiosyncrasies of the person defining

them. . . . [W]e are manifestly unable to describe

[obscenity] in advance except by reference to concepts

so elusive that they fail to distinguish between protected

and unprotected speech. . . . I need hardly point out

that the factors which must be taken into account are

judgmental and can only be applied on a ‘case-by-case,

sight-by-sight basis’”. (J ustice Brennan, dissenting in

Paris, 93 S.Ct. at 2647, 2648).

Even the most painstaking efforts to determine in

advance whether certain sexually oriented expression is

obscene “must inevitably prove unavailing. For the it-

sufficiency of the notice compels persons to guess not

only whether their conduct is covered by a criminal

statute, but also whether their conduct falls within the

constitutionally permissible reach of the statute. The te

sulting level of uncertainty is utterly intolerable . .. be

cause it makes ‘bookselling [and film exhibiting] . ..

a hazardous profession. . . .”” (Justice Brennan, dis

senting in Paris, 93 S.Ct. at 2649).

As a result of the Court’s inability to formulate 4

satisfactory standard with predictable application to any

given work, Justice Brennan stated, “there is no proba-

sete

bility of regularity in obscenity decisions by state and

lower federal courts.” (Justice Brennan, dissenting in

Paris, 93 S.Ct. at 2652).

B. Georgia has amalgamated the Roth-Memoirs

test with Miller. On October 30, 1973, in Slaton v.

Paris Adult Theatre I, .... Ga. ...., .... SE.2d _. (Ap-

pendix AA to Appellant’s Reply to Appellee’s Motion

to Dismiss or Affirm), the Georgia Supreme Court

authoritatively set forth what is criminally obscene in

Georgia. While it is not entirely clear that appellant

herein was convicted under the said test, or that his con-

viction was affirmed thereunder, amicus assumes that

the conviction and affirmance were in accordance with

the guidelines articulated by the Georgia Supreme

Court in the Paris case on October 30, 1973. On that

assumption, the jury found (and the Georgia Supreme

Court agreed) that, applying contemporary standards of

the State of Georgia, and considering the film as a

whole, the average person in the State of Georgia would

find:

(a) that the predominant appeal of “CARNAL

KNOWLEDGE” is to a prurient interest in Sex;

and

(b) “CARNAL KNOWLEDGE?” is a patently

offensive depiction or description of sexual con-

duct embodying a shameful or morbid interest in

nudity or sex, and going substantially beyond cus-

tomary limits of candor in the State of Georgia

in describing or representing nudity or sex; and

(c) “CARNAL KNOWLEDGE”, taken as a

whole, lacks serious artistic, political or scientific

values; and

(d) “CARNAL KNOWLEDGE”, taken as a

whole, is utterly without redeeming social value.

ih Oia

Initially, it should be observed that three of the

seven Georgia Supreme Court Justices saw the film dif.

ferently. Justice Gunter, dissenting, stated: “Having

viewed this film with the other members of the Court,

I must say, quite subjectively of course, that it is in

conceivable to me that this work can be relegated to

that area of . . . performing expression which falls

outside of the protection of the First Amendment to the

Constitution of the United States.” (Jurisdictional State.

ment, Appendix A, 5) (emphasis added). Justice Gun-

ter stated that his experience with this case taught him

“that the MILLER majority’s assumption that courts

can distinguish commerce in ideas that is protected from

commercial exploitation of obscene material that is

not protected, is a too optimistic assumption. The in

stant case is the proof that is in the pudding; material

is pornographic and unprotected in the subjective mind

and senses of one judge; and that same material has

serious literary or artistic value in the subjective mind

and senses of another judge. . . .” (J.S., Appendix A,

12).

As noted above, the Georgia Supreme Court author-

itatively construed its obscenity statute in Slaton ¥.

Paris Adult Theatre I, .... Ga. ...., .... S.E.2d .... (Ap

pendix AA to Appellant’s Reply to Appellec’s Motion

to Dismiss or Affirm). Justice Gunter concurred re

luctantly, and only because he felt bound by this

Court’s majority decisions in Paris and Miller. “Were it

not for those two recent decisions”, he said, “I would

hold that the Georgia statute . . . which permits th

State to suppress ‘obscene materials’ is vague and overly

broad so as to be constitutionally unenforceable.”

In Justice Gunter’s view, the standards for identify-

ing obscenity in Georgia failed to “come even close 0 -

can, 5 ee

meeting the due process requirements” that the crime

be “clearly defined by the State so that a reasonable

man can see the line of demarcation between pro-

tected expression and suppressed expression.” In Jus-

tice Gunter’s view, a reasonable man “or, for that mat-

fer, seven supposedly reasonable judges utilizing ob-

jective criteria which in the last resort end up being

really subjective criteria, cannot distinguish constitu-

tionally protected material from material that is un-

protected by the First Amendment. The net result of

the MILLER (obscenity concept) case is that this Court

acts as a seven-man board of censors in the State- of

Georgia, and the Supreme Court of the United States

acts as a nine-man board of censors throughout the na-

tion, with a majority of this Court determining what is

constitutionally protected or unprotected in Georgia

and a majority of the Justices of the Supreme Court

of the United States determining what is constitu-

tionally protected or unprotected at the national level.”

Justice Gunter expressed a similar view dissenting in

the case at bar, saying:

“As the MILLER decision said, the history of the

Supreme Court’s obscenity decisions has been

‘somewhat tortured’. . . . I would go one step fur-

ther and say that the Supreme Court’s decisions

in this area, handed down during the recent and

relatively short period of the First Amendment’s

entire history, have made it impossible for a deal-

er in such material to make a determination, with

any degree of certainty, as to whether the material

falls within the protection of the First Amendment

or falls outside of its protection.” (Appendix A of

JS. 5-6).

=

As noted above, the court below utilized the “pry

rient interest” test, the “patently offensive” test, the “yt.

terly without redeeming social value” test, and th

“serious . . . value” test to separate protected from wp.

protected speech. As amicus shows immediately below,

however, these tests are essentially meaningless and

intolerably vague.

1. Appeal to the “Prurient Interest” of the “Average Person’,

The first test a trier of fact must utilize in Georgia is

whether, applying contemporary Georgia standards, and

considering the film as a whole, the average person

would find its predominant appeal is to a prurient in-

prurient interest of the material “will be judged by its

impact on an average person, rather than a particular.

ly susceptible or sensitive person—or indeed a totally

insensitive one.” (93 §.Ct. at 2620).”

The prurient interest test is the basic definition of

what is obscene originally adopted by Roth v. United

States, 354 U.S, at.487. Yet the Court has never pro

vided even the slightest guidance regarding what is a

Me eee

prurient sexual interest, as compared with other sexual

interests which may be appealed to with full con-

stitutional protection. All we know is that a “prurient”

interest is different than a “sexual” interest. In Roth vy.

United States, 354 U.S.476, 487, the Court said:

“[Sjex and obscenity are not synonymous. . . . The

portrayal of sex . . . 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 public

concern .. .”.

The Court has attempted to define “prurient” on

only one occasion—the 1954 Roth opinion—and its

treatment could hardly have been more confusing. In

that case, the Court said that material appeals to pru-

tient interest if it has “a tendency to excite lustful

thoughts.” (354 U.S. at 487, n.20). The Court also

said (quoting from Webster's Dictionary) that prurient

was equivalent to “itching; longing; uneasy with desire

or longing.” (/bid.) Finally the Court referred with ap-

proval to the Model Penal Code definition of prurient

interest as “a shameful or morbid interest in nudity,

sex, Or excretion.” (Ibid) ;

It is reasonably clear that “lust” is not the same as

“uneasy desire” or “longing”. And, surely, none of

these feelings is automatically equivalent to “shame” or

“morbidity”. For example, a film which would cause a

married person to feel sexual longing or desire—even

lust—for his or her spouse would certainly not also

cause feelings of shame or morbidity if the marriage

lationship was even remotely normal. Must a theatre

owner exhibiting a film dealing with sex make sure that

tiie

the film does not arouse “lust”, or cause “uneasiness

or longing”, or “shame or morbidity”, in those who

patronize his theatre? Must he make certain that his

films do not cause any of these emotions, that they do

not cause all of them at once, or what?

The court below (following the lead of this Court)

repeats and relies upon the term “prurient”, but it

makes no attempt to describe which of these widely dif-

ferent reactions it means to include. If a theatre owner

is warned not to exhibit films which appeal to a “pr

rient interest”, he is entitled to, but does not get, “fair

notice” and “concrete guidelines” as to what is meant

by the term “prurient”.

The lack of meaning and clarity in the concept of

“pruriency” is, moreover, quite small in comparison to

the utter impossibility of divining what will arouse the

prurient interest (whatever that means) of the average

person, The court below assumed that there is som

widely shared (and therefore generally known) “aver-

age” societal reaction to certain types of sexual me

terials. But, as the case at bar demonstrates, this a-

sumption is erroneous. “CARNAL KNOWLEDGE’

was one of the most popular films in the year of its re

lease. It was viewed by millions of persons who showed

no sign of morbidity, shame, lust or sexual itching.

Yet, the jury that convicted and four members of the

court below, found that “CARNAL KNOWLEDGE”

appeals to the prurient interest of the average person.

The National Commission on Obscenity and Pornog:

raphy found as the result of numerous studies into the

evaluation by Americans of extremely explicit sexual

materials, that there was “very little consensus among

people regarding either the ‘arousingness’ or the ‘offer

aT Te

siveness’ of a given sexual depiction. A wide distribu-

tion of judgments . . . occurs, for example, for depic-

tions of female nudity with genitals exposed, for explicit

depictions of heterosexual intercourse, and for graphic

depiction of oral-genital intercourse, In addition, judg-

ments differ among different groups: Males as a group

differ from females . . .; the young differ from the

old; the college-educated differ from those with only a

high school education; frequent church attenders dif-

fer from less frequent church attenders.” (Commission

Report, p. 41). Put another way, “what may not be

provocative to one person may well be to another.”

Rowan v. Post Office Dept., 397 U.S.728, 737 ( opinion

for the Court by Chief Justice Burger).

Which then among these wholly different and wide-

ly shared present-day judgments about and reactions

to the most extremely explicit sexual materials is the

reaction of the of the “average person”? The fact is, of

course, that there no longer is any consensus of “aver-

age” reaction to explicit sexual materials, if there ever

was such consensus. Vastly differing tastes and re-

actions cannot be “averaged” like height or weight or

family income.

In Miller, this Court recognized that, taking the Na-

tion as a whole, “average” standdtds of taste and reac-

tion regarding sexual materials, are “hypothetical and

unascertainable”, This vice of vagueness is not cured

by authorizing the application of Statewide, rather than

national, standards. A State such as Georgia, whose

leading city, Atlanta, is one of the most cosmopolitan

in the world, and one of the most fast growing ones,

contains as broad a spectrum of age, occupation,

educational background, religious beliefs and nonbe-

reactions to explicit sex as the Nation as a

aiid

whole. In Miller v. California, the Court correctly

notes that “[p]jeople in different States vary in their

taste and attitudes”, but tastes do not suddenly become

uniform when one crosses a state border. People in the

same State also vary in their tastes and attitudes. It is

highly probable that residents of Atlanta, Georgia have

more in common with the residents in New York City

than they do with the residents of Albany, Georgia,

The reactions of the “average” Georgian to a sexual

depiction are thus as “hypothetical and unascertaip-

able” as the reactions of the “average” American. A

test for obscenity which requires a prediction as to

whether the nonexistent sexually “average” Georgian

will have a “prurient” reaction to a given sexual depic-

tion provides neither “fair notice” nor “concrete guide-

lines”.

What Justice Black said seven years ago of th

“prurient interest” test is still true today, after Miller:

“[I]t seems quite apparent to me that human beings

serving . . . as judges or jurors, could not be expected

to give any sort of decision on this element which would

even remotely promise any kind of uniformity in th

enforcement of this law. What conclusion an individual

. . . would reach about whether the material appeals to

‘prurient interest in sex’ would depend . . . upon the

[individual’s] . . . personality, habits, inclinations,

attitudes and other individual characteristics. . . . la

the final analysis, the submission of such an issue &

this to a judge or jury amounts to practically nothing

more than a request from the judge or juror to assert

his own personal beliefs about whether the maticr

should be allowed to be legally distributed. . . .” Gine

burg v. United States, 383 U.S.463, 478-479.

Under the formulation offered by the court below,

films of sexual conduct which appeal to the “average”,

“prurient interest”, are nonetheless constitutionally pro-

tected, unless they are, in addition, “patently offensive”

in light of standards in the State of Georgia. But how

is a threatre owner to know in advance whether the

film he exhibits will be patently offensive to the com-

munity consisting of the State of Georgia? Does the

community of Georgia find a work offensive within

the meaning of the opinion of the court below, when a

bare majority are repelled by it, when a substantial

majority are repelled (say, 70% or 80%), or only

when there is an overwhelming consensus of repulsion

(say, 95% )?

And even if an answer were given to these ques-

tions, the overwhelming problem of vagueness would

still lie in the necessity of determining, in advance,

whether the requisite percentage of a given community

will, in fact, be offended by a particular work, when

the particular tastes and sensitivities of the members of

that community cannot possibly be known to an exhibi-

tor before he exposes himself to criminal liability.

As noted above, in the discussion of the meaning of the

“Prurient” interest of the “average” person, all of the re-

search carried out to date shows, contrary to what may

have been assumed, that Americans are entirely un-

predictable with regard to whether they find even the

most “hard core” sexual depictions offensive or attrac-

tive and a substantial number do not take offense at

uy category of hard core depictions. In addition, an

extensive national survey of American public opin-

in undertaken by the Obscenity Commission showed

oun nan

that in 1970 approximately 50% of adults believed that

it was “all right” to have any and all so-called hard

core pornography available to adults who wish to

read or view such materials privately. (Commission

Report, 352-353). The materials to which this survey

referred included pictures mainly for the purpose of

showing sex organs, pictures of men and women having

sexual intercourse, pictures of mouth-sex organ contact

between men and women, pictures of homosexual ac-

tivities, and even pictures of sex activities which include

whips, belts or spankings. Where in this blanket ap

proval by a majority of the consensual distribution of

the most explicit materials is a theatre owner to find

guidance about what particular film will actually of-

fend the requisite percentage (whatever it is) of the

community? In view of this data, it is clear that an ex-

hibitor of a motion picture film is not afforded “fair

notice” regarding the line between the obscene and the

constitutionally protected, so long as obscenity is made

3.9?

to turn on the “community’s” sense of offense.

Justice Black, dissenting in Ginzburg v. United States,

383 U.S. at 480, made this point, saying that even if

there was agreement as to the relevant community pur-

suant to which the obscenity of material is to be judged,

“who is capable of assessing ‘community standards’ on

such a subject? . . . So here again the guilt or imo

cence of a defendant charged with obscenity must de

pend in the final analysis upon the personal judgment

of attitudes of particular individuals and the place

where the trial is held.”

In Winters v. New York, 333 U.S.507, 514, this

Court condemned as unconstitutionally vague a sate

statute which, as construed, measured the criminility

of publications by invoking the “experience of the com-

as ae

munity as to what types of books are likely to bring

about the corruption of public morals or other analogous

injury to the public order”.

3. The “Utterly Without Redeeming Social Value” Test and

the “Serious Artistic . . . Value” Test.

A film which appeals to prurient interest and is

patently offensive is nevertheless constitutionally pro-

tected under the Georgia test of obscenity, unless, addi-

tionally, it is found to be “utterly without redeeming

social value” and lacking in “serious artistic . . . value”.

In Miller, the Court rejected the “utterly without redeem-

ing social value” test as unworkable and ambiguous.

Speaking of the “redeeming social value” test, Justice

Black, dissenting in Ginzburg, 383 U.S. at 480, said:

“This element seems to me to be as uncertain, if

not even more uncertain, than is the unknown sub-

stance of the Milky Way. If we are to have a society

as contemplated by the Bill of Rights, then I find

little defense for leaving the liberty of American

individuals subject to the judgment of a judge or

jury as to whether material that provokes thoughts

or stimulates ane is ‘utterly without redeeming

social value. . . .. Whether a particular treatment

of a particular subject is with or without social

value in this evolving, dynamic society of ours is a

question upon which no uniform agreement could

possibly be reached among politicians, states-

men, professors, philosophers, scientists, religious

groups or any other type of group. A case-by-case

assessment of social values by individual judges

and jurors is, I think, a dangerous technique

for government to utilize in determining whether

@ man stays in or out of the penitentiary.”

alte

The “serious artistic . . . value” test is, it is respect.

fully submitted, equally ambiguous and unworkable, or

almost so. This Court has repeatedly had occasion to

comment on the difficulty, if not the impossibility, of

separating “serious” from “nonserious” communice-

tion for First Amendment purposes.

In Stanley v. Georgia, 394 U.S.557, 566, the Court,

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

it is irrelevant “that obscene materials in general, or the

particular films before the Court, are arguably devoid

of any ideological content. The line between the trans

mission of ideas and mere entertainment is much too

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

can be drawn at all.” In Winters v. New York, 333

U.S. at 510, the Court rejected the suggestion that the

constitutional protection for a free press applies only

to the exposition of ideas. “Everyone is familiar with

instances of propaganda through fiction. What is one

man’s amusement teaches another’s doctrine. Though

we can see nothing of any possible value to society in

these magazines, they are as much entitled to the pro

tection of free speech as the best of literature.” Se

also, Burstyn v. Wilson, 343 U.S.495, 501; Cohen ¥.

California, 403 U.S.15, 24, 26.

An illustration of the difficulty of separating pro

tected from unprotected speech can be found in at

cent event reported in the Los Angeles Times (Jan

12, 1974). It appears that United States Secret Servic:

agents took the printing plates and negatives of a cat

toon by Paul Conrad which depicted $1.00 bills that

carried the notation “$1.00 per gallon” and a caption

that read “Administration’s Gasoline Ration Stamps’

The Secret Service said that the cartoons violated th

ea Set

United States counterfeiting statute that forbids photo-

graphing or reproducing a likeness of United States cur-

rency, except for “newsworthy” purposes. The Secret

Service agent in charge is quoted as saying: “[O]bvi-

ously . . . there’s no intent to counterfeit”, but added that

the Government was concerned that if the plates “were

stolen, lost or got into the wrong hands, they might

be used elsewhere for the wrong purposes.” At Secret

Service headquarters in Washington, Spokesman John

Murray is quoted as saying: “Obviously we’re not look-

ing to make a big issue of this thing. It is a violation of

the law. What happens in most of these cases, we re-

quest the newspaper or magazine ... . to cease from

continuing to produce this. . . . The U.S. attorney in

Seattle (where the cartoon had appeared in a local

newspaper) brought the cartoon to our attention and

said he felt it was a violation. We agreed with him and

went out to Salt Lake City and retrieved the mats, plates

and negatives.” Paul Conrad is quoted as saying: “It’s

idiotic. Tl be happy to plead guilty if any one of the

Treasury agents can go out and cash one.”

Another illustration of the virtual impossibility of

separating serious publications from nonserious ones is

to be found in Grigsby v. State, Tennessee Court of

Criminal Appeals, 14 Crim.Law.Rep. 2134 (Nov.

14, 1973), wherein, by a 2-1 decision, the court

found “obscene” magazines containing many explicit

photographs of intercourse, oral copulation, and the

like. Judge Galbreath, dissented, saying: “I do not find

the publications obscene, I have read them all and I

enjoyed reading them. In spite of advancing years,

global travels and extensive reading on the subjects

dealt with, I learned much from many of the articles

that I did not know before . . . many of which con-

—22— |

tained informative and entertaining subjects I found

to be of significant value. Other parts of the exhibits

I found trite, boring and offensive to my personal

tastes, but this did not lessen the value I found in the

other portions nor my realization that many others

would find these portions personally suitable to their

tastes. I believe such literature has constitutional pro.

tection beyond our power to set aside.”

The “proof” that serious and nonserious films cap-

not be separated by this Court’s Miller test is to be

found in the case at bar. As Justice Gunter said in

his eloquent dissenting opinion: “The instant case is

the proof that is in the pudding; material is pornograph-

ic and unprotected in the subjective mind and senses

of one judge; and that same material has serious literary

or artistic value in the subjective mind and senses of

another judge. . . .” (J.S., Appendix A, 12).

In Winters v. New York, 333 U.S.507, 517, the

Court, in declaring the New York statute there involved

unconstitutionally vague, cited with approval State ¥.

Klapprott, 127 N.J.L. 395, 22 A.2d 877, and quoted

from the said case as follows:

“.. . That the terms ‘hatred,’ ‘abuse,’ ‘hostility,

are abstract and indefinite admits of no contradic-

tion. When do they arise? Is it to be left to a jury

to conclude beyond reasonable doubt when the

emotion of hatred or hostility is aroused in the

mind of the listener as a result of what a speaker

has said? Nothing in our criminal law can be it

voked to justify so wide a discretion. The Crim

inal Code must be definite and informative %

that there may be no doubt in the mind of the

citizenry that the interdicted act or conduct is

illicit.”

an Sere

The Georgia statute, as authoritatively construed by

the Georgia Supreme Court, is also “abstract and in-

definite”. A theatre owner, such as appellant herein,

has no way of knowing in advance what film a jury

might find appeals to the prurient interest of the aver-

age person; is patently offensive to the standards of

the State of Georgia; is utterly without redeeming so-

cial value; and lacks serious artistic value.

C. Justice Brennan, dissenting in Paris (93 S.Ct. at

2652), spoke of “the awesome task of making case-

by-case at once the criminal and constitutional law” in

the area of obscenity. In the case at bar, the State

argues that this awesome task should be placed in the

hands of a jury, virtually without limitation. In its Mo-

tion to Dismiss or Affirm, appellee asserts that the

jury found the film “CARNAL KNOWLEDGE” ob-

scene by using its common sense. “Had appellant actual-

ly read the statutes, and given them the same common

sense reading . . . he would have arrived at the obvious

conclusion that they prohibit obscene material such as

is here involved, to wit: the movie, ‘Carnal Knowledge’ ”

(p. 15). Appellee then argues that this finding is, for

all practical purposes, final.

“The intent of this Court, as enunciated in Miller,

is clear: this Court will not reverse the jury’s de-

cision on the facts—and the question raised by ap-

pellant is one, purely and simply, of fact... . Any

other decision by this Court, such as is urged by

the appellant, says that the trial by jury, .. . be-

comes a superfluous, formal waste of time and

money of the involved parties. Further, acceptance

of appellant’s position by this Court is clearly an

adoption by this Court of the role of final review

board for all of the several thousand new and po-

—24—

tentially questionable films released each year. , ,

Appellee would suggest that . . . this Court neve

meant to suggest that this role [of determining

what is obscene] should be anything but that at.

tributed to the jury” (pp. 24-25).

Appellee apparently has adopted the view first articy.

lated by Judge Learned Hand in United States v. Levine,

83 F.2d 156, 157 (2 Cir. 1956). Judge Hand there

stated that obscenity “is a function of many variables,

and the verdict of the jury is not the conclusion of a

syllogism of which they are to find only the minor

premises, but really a small bit of legislation ad hoc.

.'. .” There can never be, he said, “constitutive prin

ciples for such judgments, or~indeed. more than cau.

tions to avoid the personal aberrations of the jurors.”

(83 F.2d at 157).

In 1957, Judge Hand returned to the same theme.

Speaking at the proceedings of the American Law In

stitute during the deliberation of Model Penal Code

Tentative Draft No. 6, dealing with obscenity, Judge

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

fore objected to “an attempt to define the indefinable”

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

concluded that

“we must not try to be definite. We must leave

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

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

The attempt to mix in with this an objective stand

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

While it may be that a jury can “legislate” in this

area better than a judge, it is surely a denial of due

process, and the functional equivalent of an ex post

facto law, to subject an accused to criminal punish

eae, eae

ment under “legislation” enacted by the jury that con-

viets a defendant. See, Bouie v. City of Columbia, 378

US.347; Douglas v. Bouder, 93 §.Ct.2199; Rabe v.

Washington, 405 U.S.313. See also, Justice Black’s dis-

senting opinion in Ginzburg v. United States, 383 U.S.

463, 478, 480. Justice Brennan, dissenting in Paris (93

S.Ct. at 2657), stated that while turning the question

of obscenity over to the jury would lighten the burden

of this Court in dealing with such cases,

“jt would neither offer nor produce any cure for

the . . . vices of vagueness. Far from providing a

clearer guide to permissible primary conduct, the

approach would inevitably lead to even greater un-

certainty and the consequent due process problems

of fair notice. And the approach would expose

much protected, sexually oriented expression to the

vagaries of jury determinations. Cf., Herndon vy.

Lowry, 301 U.S.242, 263 (1937). Plainly, the in-

stitutional gain would be more than offset by the

unprecedented infringement of First Amendment

rights.”

Justice Douglas, dissenting in Miller, said (93 S.Ct.

at 2624):

“In Bouie v. City of Columbia, 378 U.S.347,

we upset a conviction for remaining on the prop-

erty after being asked to leave, while the only un-

lawful act charged by the statute was entering.

We held that the defendants had received no ‘fair

warning, at the time of their conduct’ while on

the property ‘that the act for which they now

Stand convicted was rendered criminal’ by the

State statute. Jd., at 355. The same requirement

of ‘fair warning’ is due here, as much as in

<_—"

Bouie. The latter involved racial discrimination;

the present case involves rights earnestly urged

as being protected by the First Amendment. In

any case—certainly when constitutional rights ar

concerned—we should not allow men to go to

prison or be fined when they had no ‘fair warning

that what they did was criminal conduct.”

In Bouie, the Court held that where vague statutes

are concerned the vagueness cannot “be cured in a

given case by a construction in that very case placing

limits on the statute.” As the Court pointed out, one of

the vices of a vague statute is that it gives inadequate

guidance to the individual whose conduct is regulated.

This vice cannot be cured retrospectively by a ruling

of the trial court. Where a court engages in ad hoc legis

lation and, at the same time, seeks to impose punish

ment for a person for violating this legislation, the

defendant has been subjected to the functional equir-

alent of an ex post facto law, in violation of the Due

Process Clause. See also, Douglas v. Bouder, 93 S.Q.

2199. This is equally true where a jury engages in ad

II

To Subject.an Exhibitor of Motion Picture Films t

Criminal Prosecution for Exhibiting an “Obscese’

Film Prior to the Time That There Has Been 2

Judicial Determination of Its Obscenity Is a Denial

of Due Process of Law.

“Georgia case law permits a civil injunction of th

exhibition of obscene materials,” Paris Adult Theatre!

v. Slaton (93 S.Ct. at 2633), before initiating criminal

proceedings. Commenting on this civil procedure, the

Court said: “[S]uch a procedure provides an exhibitor

euler.

..» the best notice prior to any criminal indictment,

as to whether the materials are unprotected by the First

Amendment and subject to state regulation.” (93 S.Ct.

at 2634).

In Miller, Justice Douglas, dissenting, concluded that

a prior determination of obscenity was constitutionally

required to satisfy the “fair notice” requirement of the

Due Process Clause. After commenting on the difficulty

the Court has had trying, unsuccessfully, to define ob-

scenity, he asserted that obscenity could not be defined

because it deals with subjective matters of taste. “What

shocks me may be sustenance for my neighbor. What

causes One person to boil in rage over one pamphlet or

movie may reflect only his neurosis, not shared by

others. .. . Obscenity cases usually generate tremendous

emotional outbursts. They have no business being in

the courts. . . . Under the present regime—whether old

standards or the new ones are used—the criminal law

becomes a trap.” (93 S.Ct. at 2624). Justice Douglas

concluded that

“until a civil proceeding has placed a tract be-

yond the pale, no criminal prosecution should be

sustained. . . . In any case—certainly when con-

stitutional rights are involved—we should not al-

low men to go to prison or be fined when they

had no ‘fair warning’ that what they did was crim-

inal conduct.” 93 S.Ct. at 2624).

If a specific book has been ‘condemned as obscene

in @ civil proceeding, and thereafter a person dis-

tibutes that particular work, then, Justice Douglas

Stated, “a vague law has been made specific.” (93 S§.

Ct. at 2624). A criminal prosecution brought at that

oe

“would not violate the time-honored void-for.

vagueness test. . . . Obscenity—which even we cap.

not define with precision—is a hodge-podge. To

send men to jail for violating standards they cap.

not understand, construe and apply is a mop.

strous thing to do in a Nation dedicated to fair

trials and due process” (93 S.Ct. at 2625).

In 1966, Justice Black, dissenting in Ginzburg y,

United States, 383 U.S.463, also addressed himself to

the question of a prior adversary hearing with regard

to the obscenity of challenged material, in light of the

inherent vagueness of the crime of obscenity.

“[E]}ven if . . . this country is far along the way

to a censorship of the subjects about which the

people can talk or write, we need not commit fur-

ther constitutional transgressions by leaving peo

ple in the dark as to what literature or what

words or what symbols if distributed through the

mails make a man a criminal. As bad and ob

noxious as I believe governmental censorship is in

a Nation that has accepted the First Amendment as

its basic ideal for freedom, I am compelled to

say that censorship that would stamp certain books

and literature as illegal in advance of . . . convic-

tion would in some ways be preferable to the un

predictable book-by-book censorship to which we

have now drifted.” (383 U.S. at 481).

The same day Roth was decided, the Court in Kings

ley Books, Inc. v. Brown, 354 U.S.436, commented on

the due process advantages of.a prior civil determine

tion on the question of obscenity before initiating crim-

inal prosecutions. Justice Frankfurter, speaking for the

ioalicnis

Court upholding the New York civil procedure for de-

termining obscenity, stated:

“Instead of requiring the bookseller to dread that

the offer for sale of a book may, without prior

warning, subject him to a criminal prosecution

with the hazard of imprisonment, the civil pro-

cedure assures him that such consequences cannot

follow unless he ignores a court order specifically

directed to him for a prompt and carefully cir-

cumscribed determination of the issue of obscen-

ity. Until then, he may keep the book for sale and

sell it on his own judgment rather than steer ‘nerv-

ously among the treacherous shoals.’ Warburg,

Onward And Upward With The Arts, The New

Yorker, April 20, 1957, 98, 101, in connection

with R. v. Martin Secker Warburg, Ltd., [1954]

2 All Eng.683 (C.C.C.).” (354 US. at 442).

In Delta Book Distributors, Inc. v. Cronvich, 304 F.

Supp. 662 (E.D. La. 1969), vacated on other grounds

sub nom. Perez v. Ledesma, 401 U.S.82, a three-judge

court also came to the conclusion that a prior adversary

hearing was constitutionally required before criminal

proceedings were initiated for the violation of a state

obscenity statute. The Court observed, in accordance

with this Court’s prior rulings, that constitutionally pro-

tected expression is separated from obscenity “only by

a dim and uncertain line” and that any attempt to

make it a crime for the circulation of allegedly ob-

sene material “must be closely scrutinized to the end

that protected expression is not abridged in the proc-

ess”, (304 F.Supp. at 666). After stating that prior

testraint upon the exercise of First Amendment Rights

can be exerted through seizure or arrest of the alleged

atin

offender, the court went on to say that since obscenity

was not protected by the First Amendment criminal pro-

ceedings could be brought, but only if safeguards were

taken to minimize the impingement upon the exercise

of First Amendment rights. The court concluded that

the obscenity statutes might

“have to incorporate provisions immunizing alleged

violators from criminal liability for any activities

occurring prior to an adversary judicial deterni-

nation of the fact of obscenity. Applying these

principles . . . the arrests . . . are Clearly invalid

for lack of a prior adversary determination of the

obscenity of the material upon which the arrests

. .. were based.” (304 F.Supp. at 667).

At least one State—Alabama—has sought by legis-

lation to give an accused fair warning before initiating

criminal prosecution for the circulation of “obscenity”.

See, Ala. Code, Title 14, §§ 374(16j)-(160) (Supp.

1971). Chapter 64C of the Alabama obscenity stat-

ute provides that, prior to the commencement of a pros

ecution, one of several governmental officials must

serve upon an exhibitor “prior written notice that there

is reasonable cause to believe that the material” in ques

tion is in violation of the obscenity statute. Ala. Code,

Title 14, § 374(16m)(a) (Supp. 1971). Then, the

person receiving notice has thirty days within which “to

file an appropriate action for declaratory judgment to

determine the validity of such written notice.” Ala

Code, Title 14, § 374(16m)(c) (Supp. 1971). Its

true that this statute was declared unconstitutional by

three-judge district court, but only because the Alabama

procedure did not conform with the rigorous requife

ments set forth by this Court where the State engages

a ee

in censorship activities. In United Artists Corp. v.

Wright, et al., ........ F.Supp....., United States District

Court for the Middle District of Alabama, Northern

Division, Civil No. 4208-N (Jan. 5, 1974),* the court

stated that while a system of prior restraints is not

necessarily invalid such restraints must be hedged about

with adequate procedural safeguards. The three-judge

court mentioned three such safeguards:

(a) Initially, the court repeated the teachings of this

Court that when a system of prior restraints is used by

the Government to control speech or press, the burden

of proving that the material is unprotected must rest

upon the censor. The court concluded that the Alabama

statute failed this test, saying:

“Under the Alabama statute, the burden is

clearly upon the individual and not the govern-

ment; when the statutory warning is given, the”

state need have only ‘reasonable cause’ to believe

that the material is obscene. Thereafter, if the

exhibitor wishes to obtain a definitive ruling from

a court, he himself must bring suit and Carry the

burden of proof. ALA Code, tit. 14, § 374(16m)

(c) (Supp. 1971)... .”

(b) The court also found that the Alabama statute

was infirm because it violated the rule of Freedom

¥. Maryland, 380 U.S.51, 58-59, that the procedures

of censorship may not constitutionally lend an air of

finalty to the action of the censor.

“Under the procedural system of this [Ala-

-bama] statute, the decision of the official giving

notice is for all practical purposes a final decision.

"The unreported opinion of the court is attached hereto as

Appendix A.

The issuance of the warning effectively stops the

showing of the film. The state is not required yp.

der the Alabama statute to go to court to obtain

an injunction after adjudication. The warning js

for all intents and purposes a ‘final’ act of censor.

ship and, therefore, invalid.” |

(c) Finally, the court concluded that the Alabama

statute was unconstitutional because it failed to provide

for a prompt final judicial decision.

“Nowhere in the Alabama statute is there q

provision for expedited judicial consideration, ¢.

provision for expedited judicial consideration,

either at trial or on appeal, of the issue of obscenity,

authoritative judicial decision of the State of Ala

bama providing for expedited consideration of civil

adjudications of obscenity vel non under this stat-

ute. Such an adjudication is, therefore, liable to all

of the delays which are incident to the bringing

of an ordinary civil action. This failing renders

the Alabama statute invalid in that respect.” ~

Amicus would add a fourth safeguard to the three

mentioned by the court in United Artists Corp, ¥.

Wright. Amicus believes that an exhibitor should have

the right to have the film he exhibits judged by a jury.

This is a view which Justice Brennan has always held.

Dissenting in Kingsley Books, Inc. v. Brown, 354 US.

436, Justice Brennan, speaking of the New York ob

scenity statute there involved, stated:

“I believe the absence in this . . . obscenity

statute of a right to jury trial is a fatal defect.

* * * The jury represents a cross-section of the

community and has a special aptitude for reflecting

the view of the average person. Jury trial of ob

ai.

scenity therefore provides a peculiarly competent

application of the standard for judging obscenity

which, by its definition, calls for an appraisal

of material according to the average person’s ap-

plication of contemporary community standards. A

statute which does not afford the defendant, of

right, a jury determination of obscenity falls

short, in my view, of giving proper effect to the

standard fashioned as the necessary safeguard

demanded by the freedoms of speech and press

for material which is not obscene. . . .” (354 U.S.

at 447-448).

In Times Film Corp. v. City of Chicago, 365 U.S.43,

68-69, Chief Justice Warren, dissenting, said of the cen-

sorship statute there involved: “The inexistence of a

jury to determine contemporary standards is a vital

flaw.” Mr. Justice Stewart, while a judge of the Court

of Appeals, stated in Volanski v. United States, 246

F.2d 842, 845 (6 Cir. 1957), that the question of

obscenity “is peculiarly one best left for nisi prius

determination, preferably by a jury.” In Méiller, this

Court also emphasized the special importance of a jury

in obscenity cases.

History, it is respectfully submitted, demonstrates the

need to have a jury pass upon a film which is charged

with being obscene, and not fit to be seen by consenting

adults. In England, freedom of speech and press was

linked, among other things, with the issue of the right

of juries to determine whether particular publications

should be suppressed. Fox’s Libel Act of 1792 while

in terms procedural, transferring from the judge to the

jury the power of saying whether any specific writing

Was a seditious libel, in actuality “placed the decision

i,

in the hands of twelve men whose views were more likely

to be representative of general opinion than would be

judges and lawyers who perforce had studied the sweep.

ing assertions of the older law cases—which were often

relics of Stuart and Star Chamber days.” Taswell-Lang.

mead, English Constitutional History (11th ed., 1960)

667.

The trials of Wilkes and the printers of the “North

Briton”; the prosecution of Wilkes for his “Essay on

Woman”, found to be an “obscene and impious libel’.

the trial of Junius for his celebrated letter to the King:

the trial of Thomas Paine in absentia, with his historic

defense by Erskine; the trial of John Horne for libelling

the King’s troops in America by calling them murder.

ers; the trials of the Dean of St. Asaph and of Stock.

dale for the publication of “seditious” pamphlets—al

of these cases were monstrous examples of how liberty

of the press can be subverted when the jury is deprived

of its power to decide. “Trial by jury was the sole s

curity for freedom of the press; and it was found to

have no place in the law of England.” 2 May, Consite

tional History of England (Holland ed., 1912) 11.

The change in the law of England at the close of the

eighteenth century, as exemplified by Fox’s Libel Act

was made necessary by the insistent demand of th

people for the right of juries to render general verdicts

in all libel cases.

“It was realized that, if the functions of the jury

in a prosecution for libel were enlarged, . . .

if, in other words, they had the right to give a

general verdict upon the whole matter; there would

be abundant security that the law would be

administered that it harmonized with the political

a ae

ideas and the public opinion of the day.” X Holds-

worth, History of English Law (Lond., 1938)

673.

In the debates in the Commons prior to the passage

of the Libel Act, it became clear that the real issue

was whether the juries or the judges were the best

tribunal to decide the question of libel or no libel.

Stated one member of the House:

“, . . it depends solely on the opinion which is

entertained of the libel by the public. . . . What

passed in the Roman Senate for polite raillery,

would in this House be deemed a gross affront,

and be perhaps attended with bloodshed. . .

So changeable is the nature of a libel, so much

does it assume the chameleon, and suit its colour

to the complexion of the times! In short its libel-

lous quality is founded entirely on popular opin-

ions. There is no other standard by which it can

be measured or ascertained. Who then, so proper

as the people to determine the point?”

Quoted in X Holdsworth, supra, at 689.

When the Libel Act was passed, Lord Macauley

praised “the inestimable law, which places the liberty

of the press under the protection of juries.” 2 May,

Constitutional History of England (Holland ed., 1912)

18, fn. 3. Moreover, Thomas Erkskine’s fame was prem-

ised upon his courageous defense in the eighteenth

century of “the liberty of the press and the rights of

juries”. 2 May, supra, at 16. Almost one hundred

years later, a noted English lawyer was to say: “Take,

for instance the freedom of the press. This, which we

justly prize as one of the first of social blessings, is

a eek

chiefly indebted to the jury for its vigorous existence”.

Forsyth, History of Trial by Jury (2d ed., 1878) 364,

Early American history also sheds light on the issue

here involved. “The close relations between the Zenger

trial and the prosecutions under George III in England

and America is.shown by the quotations on reprints of

the trial and the dedication of the 1784 London edition

to Erskine, as well as by reference to Zenger in the dis.

cussions preceding the First Amendment.” Chafee,

Freedom of Speech (1920) 23. From the viewpoint of

the liberal colonists in America in the early 1700s,

“freedom of the press involved both absence of previ-

ous restraint and the right to a jury trial”. I Govem-

ment and Mass Communications (1947) 71. Professor

Chafee was thus led to observe “. . . a jury trial

for restrictions on the sale of books is probably required

by both sound policy and the constitutional guaranty

of freedom of the press.” Free Speech in the United

States (1941) 539. Support for this view comes also

from a noted student of American constitutional his

tory. “Those who framed the First Amendment placed

great emphasis upon the value of a jury of citizens in

checking government efforts to limit freedom of expres

sion.” Emerson, The Doctrine of Prior Restraint in 20

L. and Cont. Prob. 648, 657 (1955).

It should be recalled that many issues of the New

York Weekly Journal published by Zenger were first

“burnt by the hands of the common hangman” before

Zenger was indicted for publishing “false, scandalous,

malicious and seditious” publications. The Trial of

John Peter Zenger (1734) and The Freedom of the

Press, prepared by the Works Projects Administration

(1940) iii. See also, 17 Howell’s State Trials 675

(Lond. 1813). In his argument to the jury, Andrew

asics

Hamilton pointed out that one of the reasons for the

abolition of the court of Star Chamber was that “the

people of England saw clearly the danger of trusting

their liberties and properties to be tried, even by the

greatest men in the Kingdom, without the judgment

of a jury of their equals” id., at 47. Hamilton urged

that “jurymen are to see with their own eyes, to hear

with their own ears, and to make use of their own

consciences and understandings, in judging of the lives,

liberties or estates of their fellow-subjects” id., at 49.

And on the occasion when Mr. Hamilton was presented

with the Freedom of New York after the acquittal of

Zenger, the scroll presented to him by the common-

council extolled “his learned and generous defense of

the rights of mankind, and the liberty of mankind, and

the liberty of the press” id., at 58.

When, in 1789, James Madison rose to address the

first House of Representatives, he urged upon the

House certain proposed amendments to the Constitution

which would “expressly declare the great rights of man-

kind secured under this Constitution”. 1 Annals of

Congress (1834) 432. Madison stated that the great

mass of the people who opposed the Government cre-

ated by the Constitution “disliked it because it did not

contain effectual provisions against the encroachments

on particular rights, and those safeguards which they

have been long accustomed to have interposed between

them and the magistrate who exercises the sovereign

power” (id., at 433). Thus, Madison proposed the fol-

lowing amendment, among others: “The people shall

not be deprived or abridged of their right to speak,

0 write, or to publish their sentiments: and the free-

dom of the press, as one of the great bulwarks of lib-

erty, shall be inviolable” id., at 434.

an ee |

Madison pointed out that the policy of Great Britain

in establishing a declaration of rights was not appli

cable to America. In England, a barrier had beep

raised against the power of the Crown, but the power

of the Parliament “is left altogether indefinite” id., a

436. Even Magna Charta, Madison observed, con

tained no provision for the “great rights, the trial by —

jury, freedom of the press, or liberty of conscience” —

id., at 436. In the United States, stated Madison, the

case was different. Barriers against power “in all forms

and departments of Government” had been raised id,

at 436.

Madison affirmed “Trial by jury cannot be con

sidered as a natural right, but a right resulting from a

social compact, which regulates the action of the com

munity, but is as essential to secure the liberty of the

people as any one of the pre-existent rights of nature”

id., at 437. He warned that “the State Governments

are as liable to attack these valuable privileges as the

General Government is, and therefore ought to be a

cautiously guarded against” id., at 441.

Thus, the confluence of English and American

history bear witness to the essential interrelationship

between trial by jury and freedom of the press. The

First Amendment was intended to prevent not merely

the censorship of the press, but “any action of the gor

ernment by means of which it might prevent such free

and general discussion of public matters as seems ab

solutely essential to prepare the people for an intell-

gent exercise of their rights as citizens.” Grosjean ¥.

American Press Co., 297 U.S.233, 249-250.

Amicus, in urging that a jury trial is constitutionally

mandated in obscenity proceedings, is not to be under

Oe wks

stood as conceding that any film should be at the

mercy of a vote of the “common consensus of the com-

munity”. Amicus believes that one’s right to freedoms

of speech and press should “not be submitted to vote;

they [should] depend on the outcome of no elections”.

West Virginia State Bd. of Education y. Barnett, 319

U.S.624, 638-639. So long, however, as the exhibition

of films dealing with sex depends upon current com-

munity notions of what is acceptable, it is submitted

that jury trial and jury determination are integral to

such standards.* seo

To paraphrase what Justice Black said, dissenting

in Ginzburg v. United States, 383 U.S.463, 481, as

bad and obnoxious as amicus believes government cen-

sorship to be in a Nation that has accepted the First

Amendment as its basic ideal for freedom, amicus is

compelled to say that censorship that would stamp

certain films as illegal in advance of exhibition or.con-

viction would be preferable to the unpredictable film-

byfilm censorship which now exists, and pursuant to

which law-abiding citizens are sent to jail without fair

notice or concrete guidelines as to what is obscene.

Additionally, amicus believes that censorship, with the

‘Amicus recognizes that “a particular jury may voice the

(Ded Stator Ree, wat erate 86D, Not of the

Seed Seas v. Roth, 237 F.2d 796, 822 [2 Cir. 1956), Judge

i “no

=

~ protection of a lay jury, is not as bad and obnoxious as

censorship by a judge sitting alone.

If, then, we are to embark upon a form of censorship

of what willing adults may view, let there at least be

the “fair warning” of a prior judicial decree of what is

to be censored. A film exhibitor should not be forced

to be both a censor and a defendant in a criminal

case.

Ill

The Constitutional Status of Allegedly Obscene Ex-

pression Requires, as a Minimum, Determination

on the Basis of Both the Area of the State and the

Geographic Area From Which the Jury Is Drawn.

In Miller, this Court rejected a “national” standard

of First Amendment protection as a limit upon state

obscenity prosecutions. It was held that the Court could

not be reasonably expected to articulate a single formu-

lation “for all 50 States” (93 S.Ct. at 2618). Thus, in

Miller, a requirement that the jury evaluate the ma

terials with reference to “contemporary standards of the

State of California” was held constitutionally adequate

(93 S.Ct. at 2620). It was stated: “It is neither realis-

tic nor constitutionally sound to read the First Amend-

ment as requiring that the people of Maine or Mississippi

accept public depiction of conduct found tolerable in

Las Vegas, or New York City.” (93 S.Ct. at 2619).

Moreover, in Miller this Court emphasized the in-

herent dangers of undertaking to regulate any form of

expression, stating that “State statutes” designed to regu-

late obscene materials must be carefully limited. It was

stressed that conduct must be specifically defined by

the “applicable state law, as written or authoritatively

construed”. Examples of “state laws” directed at de

piction of defined physical conduct were given in the

opinion. The Court held that other “state formulations”

could be equally valid in this respect, and that other

existing “state statutes, as construed heretofore or here-

after,” may be adequate (93 S.Ct. at 2614-2615, n.6).

Amicus submits that the governing rule should be,

first, that if expression does not substantially exceed

the standards of the State, then such expression is

plainly entitled to constitutional protection. However,

consistent with the requirements of the First Amend-

ment and the premises of the discussion in Miller, a

local community should not be deprived of any expres-

sion which does not offend the standards of the local

community and is accepted and tolerated by the par-

ticular locality. In short, material should not be sup- -

pressed as obscene unless such material not only of-

fends state standards, but also the standards of the

geographic area from which a particular jury is

drawn.

The discussion which follows is therefore divided

into two sections: the first, that the standards for judg-

ing obscenity must be measured by a state standard,‘

as opposed to a “local community” standard; and the

second, that even if state standards are exceeded, it

should still be open to the accused in an obscenity pros-

secution to show a broader toleration by the local com-

munity.

_ A. With respect to the initial requirement that a

state standard be the governing standard, the following

considerations should be noted.

“In this case, by the standards of the State of Georgia. This

appears to be the view of the Supreme Court of Georgia in Slaton,

et al. v. Paris Adult-Theatre I, et al., wnreported, No. 26631, de-

(This footnote is continued on next page)

—42—

According to the 1970 Census, there are approxi-

mately 3,071 counties in the nation. World Almanac,

1973, published by Newspaper Enterprises Associa-

tion, pp. 189-206. There are approximately 7,200 in.

corporated cities, villages, boroughs and towns with a

population of 2,500 or more in the country. World

Almanac, 1973, pp. 152-188. This figure is exclusive of

rural areas and unincorporated places. Another break-

down by the 1970 United States Census indicates that

there are 8,863 incorporated places with a population

of 1,000 or more; 9,803 places with a population of

less than 1,000; and .2,102 unincorporated places with

a population of 1,000 or more. There are 153 cities

with a population of over 100,000. World Almanac,

1973, pp. 136-137. There are 264 large metropolitan

areas which contain a central city of 50,000 or more

inhabitants, together with such adjacent counties as are

functionally integrated with the central city. World

Almanac, 1973, pp. 142-143; 405 Annals, of the

Academy of Political and Social Science, “Urban

Change and the Planning Syndrome”, 9 (Jan. 1973).

The Director of the Bureau of the Census, Social

and Economic Statistics Administration, United States

Department of Commerce, states:

“Americans live in 20,768 recognized places

> across the country, of which 18,666 are incor

porated—6,790 cities, 6,116 towns, 4,531 villages,

and 1,229 boroughs. Illinois has the largest num

ber of incorporated places with 1,263; Rhode

Island the least with eight.

“The census shows that 9.2% of the popule

tion lives in cities of 1,000,000 or more; 6.4% in

cided October 30, 1973, 0 ruling & y contradictory to the

conclusion reached by the same rt in the case herein.

a Ss

places of 500,000 to 1,000,000; 12.2% in places

of 100,000 to 500,000; 17% in places of $25,-

000 to 100,000; and 20.9% in places of 2,500

to 25,000. Another 7.8% lives in areas classified

as urban because of their proximity to large

places or their population density. The rural popu-

lation includes the 5.2% of the total population

who live in places of less than 2,500, and 21.3%

who live in open country.” World Almanac, 1973,

p. 132.°

If each of the thousands of local subdivisions in the

country were permitted to infringe on constitutional

freedoms by their own subjective standards, the funda-

mental postulates of a self-governing society as guaran-

teed by the provisions of the First and Fourteenth

Amendments would be plainly undermined. If the sur-

vival of the nation depends upon an enlightened and

informed citizenry, it is plain that the judgment of

acceptability and tolerance of expression cannot be

made dependent upon the subjective predilections of

local bodies of the counties, cities, villages and town-

ships throughout the country. The variant operations

oi police officers, prosecuting officials, censorship

bodies, and private censorial groups demonstrate that

the adoption of a “Balkanized” standard for judging

alleged obscene expression would only result in the

censorship of literature and the arts for the entire State

by dictates of local communities.

This Court has stated that it is “vital that the stand-

ards of judging obscenity safeguard the protection of

freedom of speech and press for material which does

-_

‘It should also be noted that there are 159 counties in the

Sate of Georgia, alone. World Almanac, 1973, pp. 191-192.

onsale

not treat sex in a manner appealing to prurient in.

terest”. Roth v. United States, 354 U.S.478, 488. In

Heller v. New York, 93 S.Ct.2789, and Roaden y,

Kentucky, 93 S.Ct.2796, this Court repeatedly referred

to books, films or other materials “presumptively pro-

tected under the First Amendment”. Since it is only

“obscenity” that is excluded from the constitutional pro-

tection, the question of whether a particular work is

obscene necessarily implicates, therefore, a First Amend-

ment question.

The issue here is not one affecting only an isolated

group of citizens in the State, but is one involving the

concerns of people, generally,—the right to freedom of

expression and the right of the people to know—and it

is essential that a statewide standard be used in judging

whether or not particular expression is entitled to con-

stitutional protection. Where the subject under consid-

eration is the First Amendment guarantees, uniform

treatment throughout the State is required. Much con-

fusion and uncertainty would result if each of hun

dreds of localities were to enforce different standards

with respect to the right to exercise freedom of expres

sion. Such a “watered-down version of constitutional

rights” by a multiplicity of divergent regulations by

municipalities would entail the most harmful conse

quences to constitutional guarantees. Garrity v. New

Jersey, 385 U.S.493, 500. “There are village tyrants as

well as village Hampdens.” West Virginia State Board

of Education v. Barnett, 319 U.S.624, 638. Pub

lishers and producers of films and other media of com-

munication cannot be expected to create prints of films

to satisfy police officers, prosecuting officials, censor

ship boards, and private censorial groups in the 159

counties of the State of Georgia, to give only one exam-

jai

ple. Each “local community” under such circumstances

would censor literature and the arts for the entire State.

Any restriction on the right of citizens to freely ex-

press themselves, and the right of the public to know,

must have at the very least a state justification; it can-

not depend for its validity upon the capriciousness or

whim of a “local community”.

B. Amicus does, however, urge the Court to recog-

nize the additional requirement that material should not

be suppressed as obscene unless such material not only

offends state standards, but also the standards of the

geographic area from which a particular jury is drawn.

A requirement that the applicable standards in deter-

mining the alleged obscenity of expression be the area

from which the jury is drawn has already been enunci-

ated by one court. Richards v. State, 497 S.W.2d

170, 777 (Texas. Ct. Civ. App., July 2, 1973). As

heretofore stated, Chief Justice Burger, in Miller, recog-

nized that public depiction of conduct might be “found

tolerable in Las Vegas, or New York City” (93 S.Ct.

at 2619). f

In the naturalization field, where questions of free

. Speech and press are not even involved, the courts

accept the view that “in order to determine whether a

petitioner has met his burden of establishing that he is

a person of good moral character . . . we should see

if the petitioner’s character coincides with the generally —

accepted mores or standards of the average citizen of

the community in which the petitioner resides . . . If

the petitioner's conduct fails to satisfy the community

test, then we should see whether the ‘common con-

sience’, when it is possible of being ascertained, of

the community as a whole also looks disfavorably upon

a

such conduct”. In re Mayalls Naturalization, 154 F,

Supp. 556, 560 (E.D. Pa. 1957) (opinion by Chief

Judge Ganey); see also, Jn re Naturalization of Spak,

164 F.Supp. 257, 259-260 (E.D. Pa. 1958).

Two important considerations coalesce here, amicus

submits, to support the conclusion that the constitv-

tional status of allegedly obscene expression should be

determined on the basis of both state standards and

the standards of the geographic area from which the

jury is drawn. In the first place, the decisions rendered

by this Court on June 21, 1973, placed heavy reliance

upon “the jury system” (Miller v. California, 93 S.

Ct. at 2616). The Court has relieved the prosecution

from the introduction of any expert witnesses (Kaplan

v. California, 93 S.Ct. at 2685), and while permitting

the defense the opportunity to introduce expert evi-

dence, has decried the use of expert testimony in all

obscenity prosecutions upon the ground that “ho such

assistance is needed by jurors” (Paris Adult Theatre |

v. Slaton, 93 S.Ct. at 2634, n. 6). In short, this Court

has in effect made the jury in an obscenity prosecu-

tion a small “ad hoc legislature” and has left it to the

jury, as representatives of the area from which the jury

is drawn, to enact whether or not a particular expres

sion is entitled to constitutional protection.

If, then, a jury drawn from a particular geographic

area, and assumedly representative of the members of

the community in that area, are of the view that par-

ticular material does not offend the standards of the

community, in the light of First Amendment guarantees

it is submitted that the community should have its way

and be permitted to view and see and hear what the

community has deemed tolerable. This Court has

SDR. Ne

stated, with respect to a case involving First Amend-

ment guarantees:

“The case confronts us again with the duty our

system places on this Court to say where the in-

dividual’s freedom ends and the State’s power be-

gins. Choice on that border, now as always deli-

cate, is perhaps more so where the usual presump-

tion supporting legislation is balanced by the pre-

ferred place given in our scheme to the great, the

indispensable democratic freedoms secured by the

First Amendment. Cf. Schneider v. State of New

Jersey, 308 U.S.147, 60 S.Ct.146, 84 L.Bd.155;

Cantwell v. Connecticut, 310 U.S.296, 60 S.Ct.

900, 84 L.Ed.1213, 128 A.L.R.1352: Prince v.

Massachusetts, 321 U.S.158, 64 S.Ct.438. That

priority gives these liberties a sanctity and a sanc-

tion not permitting dubious intrusions. And it is

the character of the right, not of the limitation,

which determines what standards governs the

choice.” Thomas v. Collins, 323 U.S.5 16, 529-

530.

Since “obscenity” is a limitation on the right of the

public to access to constitutionally protected material,

it is the character of the right, and not the limitation,

which determines application of a constitutional stand-

ard. In short, we are committed to the broadest appli-

cation of First Amendment guarantees and the nar-

fowest limitations upon the exercise of the freedoms

protected by the Amendment.

If the aim of self-government, based upon the broad-

est exercise of freedoms of speech and press, is to be

achieved, the diversity among communities should be

reconciled with the demands of the First Amendment.

{The rule, it is submitted, should be that if expression

enna

does not substantially exceed state standards, then such

expression is plainly entitled to constitutional protec.

tion. However, local communities may permit a broad-

er area of freedom of expression than even that which

the First Amendment assumedly protects. The standard

suggested by amicus will protect expression from the

vagaries of local censorship and political opportunism,

while at the same time assuring the First Amendment

guarantees to the entire State as well as to particular

communities in the State.

A. While placing “obscenity” outside the pale of

constitutional protection, the majority opinion in Miller

stressed the importance of protecting all ideas—“good

or bad, sound or unsound” (93 S.Ct. at 2621). The

Miller opinion opined that the “stern. 19th century

American censorship” did not limit or affect “expres-

sion of serious literary, artistic, political, or scientific

ideas”. It was stated that courts would be able to “dis-

tinguish commerce in ideas, protected by the First

Amendment, from commercial exploitation of obscene

material” (93 S.Ct. at 2607). Pointing to the language

in Roth, the opinion quoted: “The protection given

speech and press was fashioned to assure unfettered

interchange of ideas for the bringing about of political

and social changes desired by the people.” (93 S.Ct.

at 2620-2621) (Court’s emphasis).

Seen es

Amicus respectfully submits that the Court should

make clear that the phrase “literary, artistic, political

or scientific” was not intended to delineate strict cate-

gories of ideas which alone are protected by the pro-

visions of the First Amendment. Such hardening of

the categories would run counter not only to history

and the basic postulates of our democratic society,

but also to the plain provisions of the First Amendment

and a host of interpretive decisions of the Amendment

by this Court." Whatever limits there may be on the

minds of men, it is submitted that they cannot include

the multifold and multifarious ideas which the intellect

and imagination engender. The opinion of Mr. Justice

Harlan in Cohen v. California, 403 U.S.15, deserves

careful consideration on this issue:

“. . . The constitutional right of free expression is

powerful medicine in a society as diverse and pop-

_— ulous as ours. It is designed and intended to re-

& move governmental restraints from the arena of

public discussion, putting the decision as to what

views shall be voiced- largely into the hands of

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

will ultimately produce a more capable citizenry

and more perfect polity and in the belief that no

other approach would comport with the premise

of individual dignity and choice upon which our

political system rests . . . We cannot lose sight of

the fact that, in what otherwise might seem a tri-

fling and annoying instance of individual distaste-

ful abuse of a privilege, these fundamental societal

values are truly implicated. That is why ‘[w]holly

Apart from the issue of separation of church and State, and

freedom of conscience, it can hardly be contended that the ex-

pression of religious ideas is unprotected.

—50— ci a

neutral futilities * * * come under the protection

of free speech as fully as do Keats’ poems or

Donne’s sermons,’ Winters v. New York, 333

U.S.507, 528, 68 S.Ct.665, 676, 92 L.Ed.840

(1948) (Frankfurter, J., dissenting), and why ‘so

long as the means are peaceful, the communica-

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

“Additionally, we cannot overlook the fact, be-

cause it is well illustrated by the episode involved

here, that much linguistic expression serves a dual

communicative function: it conveys not only ideas

capable of relatively precise, detached explication,

but otherwise inexpressible emotions as well. In

fact, words are often chosen as much for their

emotive as their cognitive force. We cannot sanc-

tion the view that the Constitution, while solici-

tous of the cognitive content of individual speech

important element of \the overall message sought

to be communicated. Indeed, as Mr. Justice Frank-

furter has said, ‘[o]ne\of the prerogatives of Amer-

ican citizenship is the right to criticize public men

and measures—and that means not only in

formed and responsible criticism but the freedom

to speak foolishly and without moderation.’” (403

US. at 24-26).

B. The reason that the Constitution gives broad pro-

tection to the dissemination of ideas has been various-

ly stated. Justice Cardozo said in Palko v. Connecticut,

302 U.S.319, 327: “Of that freedom [of thought and

speech] one may say that it is the matrix, the indispen-

sable condition, of nearly every other form of freedom

A Eee

...” In Thomas v. Collins, 323 U.S.516, 529, Justice

Rutledge wrote of “the preferred place given in

our scheme to the great, the indispensable democratic

freedoms secured by the First Amendment”. Even

such a critic of the “preferred position” as Justice

Frankfurter acknowledged that First Amendment guar-

antees “come to this Court with a momentum for re-

spect lacking when appeal is made to liberties which

derive merely from shifting economic arrangements”,

Kovacs v. Cooper, 336 U.S.77, 95.

The premises upon which the aforesaid conclusion

rests have been elucidated in four distrinct, but cog-

nate, ways. The first recognizes that freedom of ex-

pression is plainly important for the enhancement of

human dignity, a means of assuring individual self-

fulfillment. “The essential characteristic of these liber-

ties is, that under their shield many types of life, char-

acter, opinion and belief can develop unmolested and

unobstructed.” Cantwell v. Connecticut, 310 U.S.296,

310. As Professor Emerson has stated: “Hence sup-

pression of belief, opinion, or other expression is an

affront to the dignity of man, a negation of man’s

essential nature.” Emerson, The System of Freedom

of Expression 6 (1970).

A second ground for justifying the high position

afforded freedom of expression in our constitutional

system is exemplified in the statement by Justice

Holmes in his dissenting opinion in Abrams v, United

States;

“But when men have realized that time has upset

many fighting faiths, they may come to believe

even more than they believed the very foundations

of their own conduct that the ultimate good de-

inp ice

sired is better reached by free trade in ideas—

that the best test of truth is the power of the

thought to get itself accepted in the competition

of the market, . . . That at any rate is the theory

of our Constitution. It is an experiment, as all

life is an experiment.” 250 U.S.616, 630.

It is of course important to note, as a corollary

to this utilitarian philosophy, that the “market place”

is not a place where goods are being marketed. Ideas

cannot be graded for their quality and quantity. “For

the Constitution protects expression and association

without regard to the race, creed, or political or religious

affiliation of the members of the group which invokes its

shield, or to the truth, popularity, or social utility of

the ideas and beliefs which are offered.” NAACP y. »

Button, 371 U.S.415, 444-445. |

A third ground in support of “the firstness of the -

First Amendment” is the importance of an unfettered

opportunity for free expression in a self-governing so —

ciety. If a democratic society is to survive, it requires

intelligent discussion by members of the community.

Without freedom of speech and thought, decision

making by all members of society is rendered impos-

sible. If governments “derive their just powers from the

consent of the governed”, the governed must have full

freedom of expression, both in forming individual judg-

ments and in forming the common judgment. The

principle embraces “the right to participate in the build-

ing of the whole culture”, and includes “all areas of

human learning and knowledge”. Emerson, /bid. 7.

The fourth ground is exemplified by the aforemen-

tioned observations of Justice Harlan in Cohen v. Cali-

fornia. Recognition of the emotive justification for the

c

eel ac

preferred position given to First Amendment rights

leads to an alleviation of individual and societal anxie-

ties and tensions. If, as Justice Harlan observed, words

are often chosen as much for their emotive as their

cognitive force, “we cannot indulge the facile assump-

tion that one can forbid particular words without also

running a substantial risk of suppressing ideas in

the process”. 403 U.S. at 26. See, Comment, The Pre-

ferred Position Re-examined: An Emotive Justification,

51 Journal of Urban Law 255-284 (1973).

Freedom of expression, therefore, is plainly impor-

tant for the enhancement of human dignity, a means

of assuring individual self-fulfillment. A rational self-

fulfillment helps to shape individual judgments. In addi-

tion, the First Amendment was adopted to implement

and facilitate the_people’s power to govern themselves.

These functions, self-fulfillment and societal participa-

tion, are essential structures of the First Amendment.

Moreover, “it is the function of speech to free men

from the bondage of irrational fears”. Whitney v. Cali-

fornia, 274 U.S.357, 376. Each individual in society

must therefore be free to think, reason, know, consider,

appreciate and imagine. He must have the unfettered

tight to decide what he shall say and what he shall

write, what he shall read, what he shall see, and what

he shall hear. This thinking process involves more

than political discussion. It includes all ideas, infor-

_ mational, educational, entertaining, literary, artistic,

political, scientific, or any other expression which will

help to educate and mold the citizen for participation

in the political and cultural life of a democratic so-

ciety. “Freedom of discussion, if it would fulfill its his-

toric function in this nation, must embrace all issues

about which information is needed or appropriate to

aliens

enable the members of society to cope with the exigen.

cies of their period.” Thornhill v. Alabama, 310 US.

88, 102.

C. The importance of ideas which are information.

al, educational, and entertaining has been recognized

by this Court. See, Winters v. New York, 333 U.S.S07,

510; Stanley v. Georgia, 394 U.S.557, 564. Entertain.

ment is a source of pleasure and at the same time

a means of educating the public. It can be penetrating,

profound and brilliant. Very often in entertainment

there may be found a re-examination of old assumptions

and the spelling out of new issues for an era of social

change. The works of an Aristophanes or a Rabelais

are a source of entertainment, but they are also fraught

with ideas which instructed the people of their times and

continue to do so to the present day. One of the im-

portant functions of entertainment is to make conscious

and manageable certain unacceptable unconscious forces

in our own minds and in our interaction with other

members of the community. In the variety, vividness,

exaggeration, romanticism and humanity of entertain

ment, the viewer, reader or listener achieves a deep

er perception of his own individuality and the society

in which he lives.

With respect to informational ideas, this Court has

often stressed their importance. “The State may not,

consistently with the spirit of the First Amendment,

contract the spectrum of available knowledge.” Gris-

wold v. Connecticut, 381 U.S.479, 482. In Wood ¥.

Georgia, 370 U.S.375, the Court held that a broad

conception of the Fitst Amendment's guarantee of

freedom of speech and press is necessary to supply the

public need for information and education with respect

— Oe

to the significant issues of the times. It has been stated

that the First Amendment “rests*on the assumption

that the widest possible dissemination of information

from diverse and antagonistic sources is essential to the

welfare of the public”. Citizens Publishing Co. v. United

States, 394 U.S.131, 139-140.

The protection of ideas that are educational has also

been the particular concern of the Court. As Justice

Frankfurter stated in Sweezy v. New Hampshire, 354

US.234, 261:

“Progress in the natural sciences is not remotely

confined to findings made in the laboratory. In-

* sights into the mysteries of nature are born of

hypothesis and speculation. The more so is this

true in the pursuit of understanding in the groping

endeavors of what are called the social sciences,

the concern of which is man and society. The

problems that are the respective preoccupations

of anthropology, economics, law, psychology, so-

ciology and related areas of scholarship are mere-

ly departmentalized dealing, by way of manage-

able division of analysis, with. interpenetrating

aspects of holistic perplexities. For society's good—

if understanding be an essential need of society

—inquiries into these problems, speculations about

them, stimulation in others of reflection upon

them, must be left as unfettered as possible. Polit-

ical power must abstain from intrusion into this

activity of freedom, pursued in the interest of wise

government and the people’s well-being, except’ for

reasons that are exigent and obviously compelling.”

The importance, therefore, of emphasizing the pro-

tection afforded to informational, educational, or en-

a

tertaining ideas is manifest. This Court stated in Red

Lion Broadcasting Co. v. FCC, 395 U.S.367, 390:

“It is the right of the public to receive suitable access

to social, political, esthetic, moral, and other ideas and

experiences.” In Time, Inc. v. Hill, 385 U.S.374, 388,

this Court reiterated that “no suggestion can be found

in the Constitution that the freedom there guaranteed

for speech and the press bears an inverse ratio to the

timeliness and importance of the ideas seeking expres-

sion” and, once again, that “the line between the in-

forming and the entertaining is too elusive for the pro-

tection of . . . [freedom of the press]”. In United

Mine Workers of America vy. Illinois State Bar As.

sociation, 389 U.S.217, 223, the Court emphasized

again that “the rights of free speech and a free press

are not confined to any field of human interest”.

D. For all the foregoing reasons, amicus respect-

fully submits that the Court should clarify its ruling in

Miller to the extent of enunciating the principle that

the First Amendment protects works which, taken as a

whole, have tangible “literary, artistic, political, scientif-

ic, informational, educational, entertaining ideas, or

any other ideas of human interest”. Such a clarification

would make clear to trial and appellate judges that in

obscenity prosecutions, as in all other cases which im-

plicate First Amendment questions, the protective

guarantees of the First Amendment remain undi-

minished.

Amicus has substituted the word “tangible” for the

word “serious” on the assumption that this Court did

not intend to eliminate ideas which are presented in

the comic spirit. One of the things we all unconsciously

seek in art, particularly in fiction, is the kind of u-

derstanding that is shared in laughter. The humorous

sini

attitude can be liberating and elevating. See, Modern

American Humor, edited by Bennett Cerf (1954);

Freud, “Humour”, in Vol. I World of Psychology,

edited by G. B. Levitas 279-284 (1963).

Conclusion.

For the reasons set forth above, the judgment below

should be reversed.

Respectfully submitted,

STANLEY FLEISHMAN,

Attorney for Amicus Curiae

for Adult Film Association.

SaM ROSENWEIN,

Of Counsel.

APPENDIX A.

In the United States District Court for the Middle

_ District of Alabama, Northern Division.

ae United Artists Corporation, a Corporation, Plain-

‘tiff, v. E. L. Wright, Jr., Individually, and as Chief of

Police, City of Montgomery, Alabama, Defendant,

James H. Evans, as District Attorney for the Fifteenth

Judicial Circuit of the State of Alabama; Robert L.

- Dorrough and Ardith C. Dorrough, Defendants—Inter-

“yenors. Civil Action No. 4208-N.

~ Filed: Jan. 5, 1974.

Before RIVES, Circuit Judge, and JOHNSON and

VARNER, District Judges.

JOHNSON, District Judge:

Plaintiff, United Artists Corporation, brings suit un-

der 42 U.S.C. § 1983 and 28 U.S.C. § 2201, seeking

to have Chapter 64C of the Alabama obscenity stat-

ute, ALA. CODE tit. 14, §§ 374(16j)-(160) (Supp.

1971), declared unconstitutional on its face and as ap-

_ plied. The constitutionality ¢* a statute of statewide ap-

_ plication being brought into question, a three-judge

district court was convened pursuant to 28 U.S.C.

_ $2284. The case is submitted upon the pleadings, af-

- fidavits, briefs and depositions filed in this cause.

I. Facts

Plaintiff, a film distributor operating nationally, is

the owner and distributor of the motion picture “Last

| Tango in Paris.” Defendant E. L. Wright, Jr., is the

Chief of Police of the City of Montgomery, Alabama,

_ id is sued in his capacity as such and also individual-

_¥, Intervening defendant James H. Evans is District

ee en

Attorney for the Fifteenth Judicial Circuit of the State

of Alabama. Intervening defendants Robert L. and Ar.

dith C. Dorrough are citizens of Montgomery, Ala.

bama.

Plaintiff entered into an agreement with a local

movie theater for the exhibition of the film “Last Tango

in Paris.” On October 11, 1973, without any prior ad-

ministrative or judicial proceeding before a neutral

party, the exhibitor received a written notice from de.

fendant Wright that there was reasonable cause to be.

lieve that the exhibition of that film would constitute

a violation of the Alabama laws regulating obscenity,

The written notice pointed out that the exhibitor could

seek a declaratory judgment in the proper state cir.

cuit court on the obscenity vel non of the film. De.

fendant Wright, in his written notice, informed the ex-

hibitor that “the exhibition of this movie prior to ob-

taining the declaratory judgment might result in prose-

cution.” The exhibitor then declined to show “Last

Tango in Paris” in his theater. Thereafter plaintiff

brought this action, in which he alleges the unconstitu-

tionality of ALA. CODE tit. 14, §§ 374(16j)-(160)

(Supp. 1971) on its face and as applied.

II. Standing

Defendants contend that plaintiff lacks standing to

prosecute this action because it has not been harassed,

arrested, indicted or prosecuted in connection with the

subject matter of this action. Plaintiff, however, is in

privity of contract with its local exhibitor. Plaintiffs

exhibitor has received an explicit threat or warning

that, if it proceeds to show the film in question here,

prosecution might well ensue. The exhibitor, on account

of the threat of prosecution, declines to exhibit the

inline

film. Plaintiff alleges that as a direct and proximate

result of this written threat, pursuant to the statute al-

leged to be unconstitutional, it stands to lose approxi-

mately $20,000 in anticipated revenues. Whatever val-

ue might be put upon First Amendment rights in this

case, it is clear that plaintiff alleges financial injury

in fact sufficient to confer standing. The alleged finan-

cial injury is proximately caused by the action of de-

fendant Wright acting pursuant to the challenged stat-

ute. In such cases as this, it is necessary that distribu-

tors as well as exhibitors have standing. Interstate Cir-

cuit, Inc., v. Dallas, 390 U.S. 676, 691 n.22 (1968).

Furthermore, the threat of arrest in this case is not

“imaginary and speculative.” Younger v. Harris, 401

US. 37, 42 (1971). The existence of a genuine threat

of arrest suffices to confer standing. While it is true

that defenses premised upon the First Amendment

could be raised in a criminal prosecution resulting from’

an exhibition of “Last Tango in Paris,” there is no re-

quirement that citizens must “await and undergo a crim-

inal prosecution as the sole means of seeking relief.”

Doe v. Bolton, 410 U.S. 179, 188 (1973). Accord,

Wulp v. Corcoran, 454 F.2d 826, 830 (1st Cir. 1972);

Thoms v. Smith, 334 F. Supp. 1203, 1207 (D. Conn.

1971) (3-judge court), aff'd sub nom. Thoms v. Hef-

fernan, 473 F.2d 478 (2d Cir. 1973); Anderson v.

Vaughn, 327 F. Supp. 101, 103 (D. Conn. 1971)

(3-judge court). Plaintiff clearly has standing in this

cause, and its claim is otherwise justiciable.

Il. Comity—The Younger Doctrine

Defendants contend that this Court is precluded by

the policy of comity from deciding this case on the

merits. Certainly if there were a pending state criminal

snails

prosecution against plaintiff, this Court would possibly

be precluded from reaching the merits. Younger y,

Harris, 401 U.S. 37, 54 (1971); Samuels v. Mackell,

401 U.S. 66, 72-73 (1971); Perez v. Ledesma, 40}

U.S. 82, 83 (1971). A similar result could obtain

if there were a pending civil process which leads to,

or is a part of, a criminal prosecution. Palaio v. Mc.

Auliffe, 466 F.2d 1230, 1231-32 (Sth Cir. 1972).

In this case, the letter from defendant cannot be

said to constitute a pending criminal prosecution; nor

can it be characterized as a pending civil process which

leads to, or is a part of, a criminal prosecution. The

notice letter here involved is, quite simply, a threat of

prosecution. When a state criminal prosecution is only

threatened, and not pending, many cases hold that the

Younger doctrine does not bar a consideration on

the merits of a cause. Courts recognized two reasons for

so holding. First is the language in Younger noting

that

[t]here may, of course, be extraordinary

circumstances in which the necessary

irreparable injury can be shown even

in the absence of the usual prerequisites

of bad faith and harassment.

Younger v. Harris, 401 U.S. 37, 53 (1971). Applying

this language, some courts have held that the absence

of a pending prosecution, the imminence of a threat-

ened prosecution, and a First Amendment challenge

combine to form “extraordinary circumstances” within

the meaning of Younger. Wulp v. Corcoran, 454 F.2d

826, 831 n.6 (1st Cir. 1972); Anderson v. Vaughn,

327 F. Supp. 101, 103 (D. Conn. 1971) (3-judge

court).

adios

Second, some courts have applied in cases like this

what is termed a “pending/threatened” distinction, in

holding that the Younger doctrine is inapplicable to

situations in which a state prosecution is merely threat-

ened. Thoms v. Heffernan, 473 F.2d 478, 483 (2d

Cir. 1973); Lewis v. Kugler, 446 F.2d 1343, 1347

(3rd Cir. 1971); Hull v. Petrillo, 439 F.2d 1184,

1186 n.1 (2d Cir. 1971). The United States Court of

Appeals for this circuit has adopted a further refine-

ment of the pending/threatened distinction. If a state

statute is attacked upon grounds of its unconstitution-

ality as applied, and no prosecution is pending, plain-

_ tiff must allege and prove bad faith prosecution or har-

assment. Becker v. Thompson, 459 F.2d 919, 923 (Sth

Cir. 1972), cert. granted sub nom. Steffel v. Thomp-

son, 410 U.S. 953 (1973). Accord, Milner v. Burson,

470 F.2d 870, 874 (Sth Cir. 1972). However, when

a plaintiff attacks the facial constitutionality of a state

statute, and there is no pending state criminal prose-

cution, a three-judge court is not foreclosed by Younger

from a decision on the merits, even absent an allega-

tion of bad faith or harassing official conduct. Jones

v, Wade, 479 F.2d 1176, 1182 (Sth Cir. 1973).

Applying these principles to this case, this Court

holds that plaintiff's claim is not barred by the doc-

trine of comity, since a prosecution is merely threatened

and since plaintiff alleges the unconstitutionality of the

obscenity statute upon its face. Since it is not necessary

for this Court to consider the unconstitutionality of

the statute as applied (i.e., the obscenity vel non of

the movie), we do not need to consider whether there

was in this case bad faith or harassing conduct by

defendants. And, since we recognize and apply the

“pending/threatened” distinction as declared by the

sa ly

Fifth Circuit, it is not necessary to consider the appli-

cability of the “extraordinary circumstances” exception

to Younger.

IV. A setslaitins

Defendants also contend that this Court should, by

reason of the abstention doctrine, decline to decide

this case upon the merits. The doctrine of abstention,

first espoused in Railroad Comm'n vy. Pullman Co., 312

U.S. 496 (1941), is a judge-made doctrine to be

used only in very limited circumstances. Congress has

endowed the federal judiciary with power to render

declaratory judgments. When a plaintiff chooses a fed-

eral forum for the adjudication of his case, the federal

court is not obliged to dismiss the case merely be-

cause plaintiff could have brought his action in a state

court. Kusper v. Pontikes, .... U.S. .... (1973); Lake

Carriers’ Ass'n v. MacMullan, 406 U.S. 498, 510

(1972). To dismiss this case at this point, and to send

plaintiff into state court, would cause a delay which

would “itself effect the impermissible chilling of the

very constitutional rights [plaintiff] seeks to protect.”

Zwickler v. Koota, 389 U.S. 241, 252 (1967).

The strongest case for abstention exists when there

is a possible limiting construction which could be given

a state statute by a state court, in order to avoid most

or all of the constitutional problem. Lake Carriers’

Ass'n v. MacMullan, 406 U.S. 498, 510 (1972); Wulp

v. Corcoran, 454 F.2d 826, 833 (Ist Cir. 1972);

Lewis v. Kugler, 446 F.2d 1343, 1346 (3rd Cir. 1971).

In this case, there is no possibility of such a construc-

tion. The procedural portions of the statute here under

attack contain defects which could not be eliminated

by a narrow construction. That being so, there appears

rem.

to be no reason for the application of the doctrine of

abstention. This Court is mindful of the pendency in

the Alabama Supreme Court of several cases in which

there are, inter alia, challenges to the constitutionality

of the Alabama obscenity statutes. However, in those

cases defendants were prosecuted criminally. Since ©

criminal prosecutions present issues altogether different

from instances of prior restraint, the pendency of the

cases in the Alabama Supreme Court does not have suf-

ficient bearing upon this case to warrant abstention.

Plaintiff's choice of a federal forum will be honored,

and this case will be decided upon its merits.

V. Procedure under the Alabama Obscenity Statute

Plaintiff asserts that the statute in question sets up a

system of prior restraints upon First Amendment free-

doms and that the statute fails to provide the safe-

guards which are constitutionally required under a sys-

tem of prior restraint.

Chapter 64C of the Alabama obscenity statute, un-

der attack here, provides that, prior to the commence-

ment of a prosecution, one of several governmental

officials must serve upon an exhibitor “prior written .

notice that there is reasonable cause to believe the ma-

terial” in question is in violation of the obscenity stat-

ute. ALA. CODE tit. 14, § 374( 16m) (a) (Supp. 1971).

Then, the person receiving notice has 30 days within

which “to file an appropriate action for declaratory

judgment to determine the validity of such written no-

tice.” ALA. CODE tit. 14, § 374(16m)(c) (Supp.

1971).

Central to a decision in this case is the issue of

whether or not this statutory “warning” constitutes a

pow ae

prior restraint. Clearly the warning scheme is not an

absolute prohibition against the showing of movies, as

an injunction would operate in similar circumstances,

However, a statutory scheme need not be published up. -

der the rubric “Censorship Statute” before it is con.

sidered an effective prior restraint. Courts must not be

blind to the effect of a statute. One clear effect of

this particular scheme is that the notice operates almost

as effectively to bar movie exhibitions as an injunction

would operate. Without such a notice exhibitors might

well be willing to show movies which are arguably pro-

tected by the Constitution. However, when the gover.

ment goes to the trouble to warn an exhibitor that

criminal prosecution might ensue upon exhibition of a

‘movie, few would dare ignore the warning. “People do

not lightly disregard public officers’ thinly veiled threats

to institute criminal proceedings against them if they

do not come around... .” Bantam Books, Inc., y.

Sullivan, 372 U.S. 58, 68 (1963). Such a system of

threatened prosecvtion “can constitute an all too ef-

fective prior restraint.” Poulos v. Rucker, 288 F. Supp.

305, 310 (M.D. Ala. 1968). Therefore, this Court

holds that Chapter 64C of the Alabama obscenity

statute, ALA. CODE tit. 14, §§ 374(16j)-( 160) (Supp.

1971), is in legal effect a system of prior. restraints.

But that holding does not end our inquiry. A system

of prior restraints is not necessarily invalid. Times Film

Corp. v. Chicago, 365 U.S. 43 (1961). However,

“[a]ny system of prior restraints of expression comes to

. . . Court bearing a heavy presumption against. its

constitutional validity.” Bantam Books, Inc., v. Sullivan,

372 U.S. 58,70 (1963). Because of the dangers inher-

ent in the use of prior restraints, courts have estab-

lished rigorous procedures which must be provided be-

\

.

(ae

fore a prior restraint may be held valid. These pro-

cedural safeguards are three in number.

A. Burden of Proof. When a system of prior re-

straints is used by the government to control speech or

the press, the burden of proving that the material is

unprotected must rest upon the censor. Blount v. Rizzi,

400 U.S. 410, 417-18 (1971); Freedman vy. Maryland,

380 U.S. 51, 58-59 (1965); Cinema Classics v. Busch,

339 F. Supp. 43, 50 (C.D.Cal. 1972) (3-judge court);

Studio 111, Inc., v. Smith, 326 F.Supp. 1166, 1169 (S.D.

Iowa 1971); Embassy Pictures Corp. v. Hudson, 242

F, Supp. 975, 978 (W.D. Tenn. 1965).

Under the Alabama statute, the burden is clearly

upon the individual and not the government; when the

Statutory warning is given, the state need have only

“reasonable cause” to believe that the material is ob-

scene. Thereafter, if the exhibitor wishes to obtain a

definitive ruling from a court, he himself must bring

suit and carry the burden of proof. ALA. CODE tit. 14,

§ 374(16m)(c) (Supp. 1971). Since the statute clear-

ly provides that the burden of bringing suit is upon the

exhibitor, there is no reason to abstain in this case to

hope for a narrowing construction from the state courts.

Such a construction on this issue would have to dis-

regard the plain language of the statute.

B. Air of Finality to Censor. The procedures of

censorship may not constitutionally lend an air of

finality to the action of the censor.

To this end, the exhibitor must be assured, by

statute or authoritative judicial construction, that

the censor will, within a specified brief period,

either . . . [allow exhibition] or go to court to

restrain showing the film.

? —10— .

Freedman v. Maryland, 380 U.S. 51, 58-59 (1965),

Under the procedural system of this statute, the de

- cision of the official giving notice is for all practical pur.

poses a final decision. The issuance of the warning

effectively stops the showing of the film. The state js

not required under the Alabama statute to go to court

to obtain an injunction after adjudication. The warning

is for all intents and purposes a “final” act of censor-

ship and is, therefore, invalid.

C. Prompt and Final Judicial Determination. Ip

order to provide a valid prior restraint system, a statu-

tory scheme must provide a prompt final judicial de

cision. Teitel Film Corp. v. Cusack, 390 U.S. 139, 142

(1968); Grove Press v. City of Philadelphia, 418 F.2d

82, 90 (3rd Cir. 1969); Cinema Classics v. Busch, 339

F. Supp. 43, 50 (C.D. Cal. 1972)(3-judge court);

National Ass’n of Theater Owners. v. Motion Picture

Comm'n of Milwaukee, 328 F. Supp. 6, 12 (E.D. Wisc.

1971); Studio Ill, Inc., v. Smith, 326 F. Supp. 1166,

1169 (S.D. Iowa 1971); Gundlach v. Rauhauser, 304

F. Supp. 962, 965-66 (M.D. Pa. 1969); United States

v. A Motion Picture Film Entitled “Pattern of Evil,”

304 F. Supp. 197, 200 (S.D.N.Y. 1965).

Nowhere in the Alabama statute is there a provision

for expedited judicial consideration, either at trial or on

appeal, of the issue of obscenity. This Court has not

been made aware of any authoritative judicial decision

of the State of Alabama providing for expedited con-

sideration of civil adjudications of obscenity vel non un-

der this statute. Such an adjudication is, therefore, liable

enti Remi

to all of the delays which are incident to the bringing

of an ordinary civil action. This failing renders the Ala-

bama statute invalid in that respect.

This Court, therefore, finds that the statutory sys-

tem under which notice or warning is given pursuant to

ALA. CODE tit. 14, §§ 374(16m)(Supp. 1971) is

unconstitutional because of its procedural defects.

VI. Unconstitutionality as Applied

Since the statute is unconstitutional on its face, there

is no necessity of determining whether it is unconstitu-

tional as applied, i.e., whether this particular film is

obscene. Furthermore, it appears that the Younger doc-

rine as applied in this circuit might preclude such an

inquiry, at least absent bad faith prosecution. Becker

v. Thompson, 459 F.2d 919, 923 (Sth Cir. 1972),

cert. granted sub nom. Steffel v. Thompson, 410 U.S.

953 (1973).

VII. Separability

If the “notice” provisions in Chapter 64C of the Ala-

bama obscenity statute are unconstitutional, as we today

declare, this Court must determine whether the remain-

der of the statute must fall also. Principally this means

that we must decide whether exhibitors may still be

criminally prosecuted despite the invalidity of the notice

provisions of Chapter 64C.

If a statute constitutes one inseparable whole, rather

than several distinct and separable parts, a declaration

of the unconstitutonality of one part must’ result in the

failure of the entire statutory scheme. This “presents

a question of statutory construction and of legislative

intent. . . .” Carter v. Carter Coal Co., 298 US. 238, -

313 (1936). ae

There are two indicia in this case by which this Court _

is obliged to hold that Chapter 64C was intended to

constitute one entire, indivisible’ statute, and not a se.

ries of independent parts. First, the legislature provided

that no criminal prosecution could be commenced under

this statute without first giving the required warning.

ALA. CODE tit. 14, § 374(16m)(a)(Supp. 1971),

Apparently the legislature viewed the warning and the

prosecution as inseparable acts and expressly forbade

prosecution in the absence of the required warning.

Second, the statute contains no separability clause.

In the absence of such a provision, the presump-

tion is that the Legislature intends an act to be

effective as an entirety—that is to say, the rule

is against mutilation of a statute; and if any pro

visions be unconstitutional, the presumption is

that the remaining provisions fall with it.

Carter v. Carter Coal Co., 298 U.S. 238, 312 (1936).

Under Alabama law, the absence of a separability

clause means that the statute is to be considered as an

indivisible whole. San Ann Tobacco Co. v. Hamm, 283

Ala. 397, 406, 217 So.2d 803 (1969).

This Court can only conclude that the Alabama

legislature intended Chapter 64C to stand or fall as 2

whole, both notice provision and criminal provision.

Accordingly, the entire statute must fall upon the dec-

laration of unconstitutionality of the notice provision.

a TERS

This Court, therefore, holds that ALA. CODE tit.

14, §§ 374(16j)-(160) (Supp. 1971), is in its entirety

unconstitutional and void. An injunction will issue

against its enforcement.

Done, this the 5th day of January, 1974.

/s/ M. Johnson, Jr.

UNITED STATES DISTRICT JUDGE

/s/ R. E. Varner

UNITED STATES DISTRICT JUDGE

RIVES, Circuit Judge: g

I concur in the foregoing opinion of my colleagues

and adhere to similar views expressed in my dissenting

opinion in Grove Press, Inc. v. Bailey, N.D. Ala.

1970, 318 F.Supp. 244 at 257-262, vacated and re-

manded, June 26, 1973, ....U.S. .... 41 L.W. 3670.

/s/ Richard T. Rives

UNITED STATES CIRCUIT JUDGE >