Brief of Respondent in Opposition — Police Commissioner v. Siegel Enterprises, Inc. (No. 450)

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JAMES @ BROWN NL Cork

IN THE

Supreme Court of the United States

OcTOBER TrRM! 1960

Noa. 450

(Filed September 28, 1960)

POLICE COMMISSIONER OF BALTIMORE CIry

. : ht

STATES ATTORNEY FOR BALTIMORE CITY

| SIEGEL ENTERPRISES. INC + + SIFGEL BOOK AND

MAGAZINE STORE avy CHARLES BOOK CENTER

°

° re

‘ fy

potre

On PETITION FOR Writ of CERTIORARI tO THI

Court oF ApPE Ls oF Marvyvi wp

BRIEF OF RESPONDENT IN OPPOSITION

6 . sa. ‘ *

WILLD AN Cee Net EI

ALBERT Potovoy

INDEX

TABLE OF CONTENTS

; PAGE

OPINION BELOW — 1

JURISDICTION y 2

REASONS FOR DENYING THE WRIT °

CONCLUSION , 8

TABLE OF CITATIONS

. Cases

Adams y. Hinkle, 51 Wash. 2d 878, 322 P. 2d 844 7

Black v. Cutter Laboratories, 351 U.S. 292. 8

Butler v. Michigan, 352 U.S. 380 2.4.8

Katzev v. County of-Los Angeles, 341 P. 2d 310 7

Roth v. United States, 354 U.S. 476 7.8

Smith v. California, 4L. Ed. 2d 205 5

Winters v. New York, 333 U.S. 507 2,3,4,5,7,8

Wolfe’ v. North Carolina, 4 L. Ed. 2d 1650, 80 S. Ct. '

1482 8

Statutes

28 U.S.C., Sectian 1257 (3) 2

Annotated Code of Maryland (1957 Ed. and 1960

Supp.) : :

Article 27— .

Sections 421 (a!.‘b) and ‘d) 2, 3.4,8

Section 423 4

ii

Constitutional Provisions

PAGE

First Amendment to the Constitution of the United

States 8

Fourteenth Amendment to the Constitution of the

United States 4.5.6

‘Articles 23 and 40 of the Declaration of Rights of

, Maryland 3, 4,5, 6,8

IN THE

Supreme Court of the United States

OcToser TERM, 1960 -

No. 450

(Filed September 28, 1960) .

POLICE COMMISSIONER OF BALTIMORE CITY

AND

STATE'S Praca ecco FOR BALTIMORE CITY

Petitioners,

Vv.

SIEGEL ENTERPRISES, INC., 7 a SIEGEL BOOK AND

ares STORE anp CHARLES BOOK CENTER,

Respondent.

On PETITION.FOR WRIT oF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

,

BRIEF OF RESPONDENT IN OPPOSITION

OPINION BELOW

The Opinion of the Coyrt of Appeals of Maryland in the

above-entitled case appears !n 223 Md. 110, 162 A. 2d 727

and is printed in Appendix B of the Petition for Certiorari.,

page 19.

\

JURISDICTION |

The Petitioners have invoked the jurisdiction of this .

Court under 28 U.S.C., Section 1257 (3).

Sa

Ye

REASONS FOR DENYING THE WRIT

On page 3, paragraphs 3 and 4 of the Petition for Cer-

tiorari, these statements appear:

“The Court, in finding that the statutes involved

were unconstitutional, primarily based such uncon-

stitutionality on the case of Winters v. New York, 333

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

* x * x + *

.”

and

“The Maryland Court of Appeals based their opinion

primarily on the case of Winters v. New York,. 333

U.S. 507, 92 L. Ed. 840, 68 S. Ct. 665. This Petition is

filed to respectfully request this Honorable Court to

re-examine and reconsider that decision in light of

conditions as they exist today.”

The Court of Appeals of Maryland, adopting in toto the

brilliant opinion of the Superior Court of Baltimore City

(Reuben Oppenheimer, Judge) declared unconstitutional

Section 421 (a) {b) and (d) of Article 27 of the Anno

tated Code of Maryland (1957 Ed. and 1960 Supp. ), usually

referred to as the Crime Comic Books Act and hereinafter

called “the Act”. (The Act is set out in full in Appendix.

A, pages .15-17 of the Petition for Certiorari). It is true

Judge Oppenheimer carefully considered the Winters de-

cision and relied upon it in part. However, other reasons

for holding the Act unconstitutional are stated in his

Opinion, some of which are distinctly non-federal and one

of which derives from a decision of this Court, namel\

Butler v. Michigan, 352 U:S. 380, that has no connection

with Winters.

3 ies

REASONS OF COURT OF APPEALS, APQRT FROM WINTERs,

FoR HOLDING Act UNCONSTITUTIONAL.

First: The Act is offensive to Articles 23 and 40 of the

Declaration of Rights of Maryland, which Articles are set

out in Appendix A, page 15, of the Petition for Certiorari.

SeconD: The implicit exemption as to newspapers con-

tained in Sections 421 (a) and ‘b) of the Act ‘ Appendix

A, pages 15 and 16 of the Petition for Certiorari) and the

explicit exemption as to newspapers contained in Sec.

tion 423 of the Act (Appendix A, page 17 of the Petition

for Certiorari) are offensive to the Maryland Declaration

of Rights, as well as to the Equal Protection Clause of the

‘Constitution of-the United States.

TxirD: As to the definiteness required in criminal

Statutes, the Court of Appeals of Maryland relied upon

its Own prior decisions, as well as the Winters case.

FourtH: There is an element present ifn subsection. |b)

of Section 421 that was not present in the Winters case.

namely, the banning of printed matter “devoted to the

_ publication and exploitation of sex”.

Accordingly, it will be seen at a glance that, even if

Winters, a case that was argued three times before this

Court, were reconsidered and reversed. there would none- . -

theless exist other compelling reasons why the Petition

for Certiorari in this case should be denied

THe Act 1s OFFENSIVE TO ARTICLES 23 AND 40 OF THE

DECLARATION OF RIGHTS OF MARYLAND. .

As to subsections (a) and (b) of the Act. Judge Oppen-

heimer stated:

“Subsections (a! and (‘b) of Section 421 of the

Marvland act, in my opinion. fall under the Supreme

4

Court's condemnation of the New York statute in the

Winters case; they’ fail to meet the due process re-

‘quirement of Article 23 of the Maryland Declaration

of Rights and of the Fourteenth Amendment in that

they do not give fair notice of what acts wil] be pun-

ished, and permit within the Scope of their*language -

the punishment of acts protected by the principles of

freedom of the press.” (Emphasis supplied. ) ( Appen-

dix B, page 30 of the Pétition for Certivrari. )

Judge Oppenheimer held that subsect' in (d), which pro

hibits the display of any publications made unlawful by

subsections ‘a) and (b) upon any public street or highway,

or in any other place within the view of children helow

the age of eighteen, invalid in the light of Butler v. Michi-

gan, supta (Appendix: A, page 30, et seq. of the Petition

for certiorari.) He also decided: ee

“Subsection (d) violates the rights of free speech

‘protected by Article 40 of the Marylanti Declaration of

Rights and the Fourteenth Amendment to the Federal

Constitution.” (Emphasis supplied.) (Appendix B,

page 32 of the Petition for Certiorari. )

EXEMPTION AS TO NEWSPAPERS INFRINGES THE

EQuac PROTECTION CLAUS€.

Section 423 of the Act (Appendix A, page 17 of the Peti-

tion for Certiorari) provides:

“This subheading shall not be construed to apply

to thdse- accounts of crime which are part of the

ofdinary and genera! dissemination of new’s, appear-

ing in publications which are published not less fre-.

quently than once a week, nor to such drawings and

photographs as are used to illustrate such accounts.”

Apropos of this Section and the built-in exemption as

to newspapers vontained in Section 421. Judge Oppen-

heimer decided: 7 . ’

5

“The exemption of newspapers from the scope of

Section 421 of the Maryland act is broader than that

contained in Section 423. The latter section exempts

those accounts of crime which are part of the ordinary

and genera! dissemination of news appearing in pub-

lications published not less frequently than once a

week, with illustrative drawings and photographs, but

subsection (a) of Section 421, by its term applies only

to publications ‘principally composed of pictures,’ and

subsection (b) applies only to publications ‘devoted

to the publication’ of the prohibited material. The

same material can appear with impunity in news-

papers, whether in the form of news accouhts, comic

pages or drawings, which is forbidden in other forms

of publications. _

“Newspapers containing such material can be pur-

chased by minors under eighteen as easily as the pub-

lications which, to them. ‘are prohibited. If, as the

Legislature has found, children under eighteen are or

may’ be incited to commit érimes because of the

presentation in collected form of actual or fictional

deeds of violent bloodshed. it is difficult to see how the

incitement is less when the déeds are recounted in

the daily ‘comic’ or other pages of newspapers. The

weekly ‘comics’ which are a feature of the modern

’ paper are exempt because they are only’ one section of

the paper in which they appear, even though the child

may reach only for that section, but under the act it

* may be a criminal offense if some or all of the mate-

rial of those sections is sold separately...

“Like ‘the Due Process Clause. the Equal Protec- .

tion Clause is here to be considered in connection with

a law which has a potential ‘nhibitory effect on the

freedom of the press. Winters v. New York. supra;

Smith v. California, (80 §. Ct. 215, 4 L. Ed. 2d 205):

Baltimore v. A. S. Abell Co., (218 Md. 273). Under

the Maryland act. some papers and magazines are

singled out and held not entitled to the freedoms

guaranteed by the Fourteenth Amendment and the

Maryland Declaration of Rights. The test. under sub-

6

Sections (a) and (b), is whether the publication is

‘principally composed’ of or is ‘devoted to’ the mate-

rial which the Legislature has found may be injurious

to persons under eighteen. The exempt publications

weekly pages of ‘comics’ and ‘adventures’ may contain

exactly the same strip drawings of fictional ‘deeds of.

violent bloodshed which are shown in the banned

‘comic books’. Indeed, the amount of the. same kind of

material in the daily or weekly press may be greater

than that in some non-exempt publications, as long as

the major portion of the paper consists of matter not

within the scope of the act. Viewed in this aspect. the

discrimination is not according to what is published

but what is not published. ( Emphasis supplied.

“Freedom of the press is directly affected as to one

class of publication but not as to another. ard the clas.

_ Sification is made, not on the basis of material deemed

objectionable, but the proportion of that material to

other published matter. The classification, in my

opinion, is unreasonable, and violates the Equal Pro

tection Clause of the Fourteenth Amendment ” (Ap

pendix B, pages 34-36 of Petition for Certiorari.)

A denial of equal protection transgresses not only the

Fourteenth Amendment, but also Article 23 of the Mary-

land Declaration of Rights. Sports Daily v. Public. Ser-

vice'Ci mmission, 179 Md. 335. 358, 18 A. 2d 210: Celanese .

Corporation v. Davis, 186 Md. 463, 47 A. 2d 379

Court OF APPEALS OF Mary AND RELIED Upon Irs

iN Prior Decisions As TO DEFINITENESS

REQUInED IN CRIMINAL STATUTEs.

The Court of Appeals in its epilogue to Judge Oppen-

heimer’s opinion based its decision as to the. indefinitenes-

of the Act upon its own prior decisions, saying: -

“We will note in closing that this Court has recov

nized and applied the rule in regard to the definit:

7

.ne€ss required in criminal statutes. as laid down by the

Supreme Court of the United States. Among the cases

doing so, see State v. Magaha, 182 Md. 122. 125; Blum,

et al. v. Engelman, 190 Md. 109, 113; McGowan, et al.

v. State, 220 Md. 117, 125.” ‘Appendix B. page 38 of

Petition for Certiorari.) =

BANNING OF PRINTED MATTiR “DEVOTED TO THE PUBLICA.

TION AND EXPLOITATION oF SEX”. ‘ SUBSECTION

(b) oF Section 421.)

This element was not present in the statute involted in

Winters. Judge Opperheimer held:

’“The defendants contend further that subsection |b)

- Of Section 421 differs from the New York statute be-

* cause, in addition to other publications. it includes

those devoted to the publication and exploitation of

sex. Here again. the same indefinite standard applies.

Moreover, as the Supreme Court points out in Roth

v. United States, supra, ‘354 U.S. 476). sex. and ob-

scenity are not synonymous. The term ‘publication and

exploitation of sex’ injects another element of indefi-

niteness in an area in which freedom of speech and of

the press are at stake. See Lockhart and McClure.

‘Literature, the Law of Obscenity. and the Constitu-

tier’, 38 Minn. L. Rev. 295." | Appendix B. pages 28 and

29 of the Petition for Certiorari

2

It might be observed that in neither of two out-of-state

cases that Judge Oppenhein.er referred to in holding the

Maryland act unconstitutiona:, namely Adams v. Hinkle.

51 Wash. 2d 878. 322 P. 2d 844 and Katzer rv. County of Los

Augeles, 341 P. 2d 310, both of which banned crime comic

books, and bot h/of which were held unconstitutional. was

4 petition for eaytiorari filed in this Court Probably be-

cause both cases fad non-federal as well as federal bases

s

\

a ee

MISCELLANEOUS

It is, of course, not contended by the Respondent ‘that -

obscenity is entitled to constitutional protection. Roth v.

U.S., supra. The Act involved here is not an obscenity

Statute.

It will be observed that both subsection (a) and sub-

section (b) of Section 421 prohibit not only the selling of

the banned material to children under eighteen, but also

pertnitting “the perusal of by any such child” the banned

material. This constitutes a subtle infringement of the

rights guaranteed by the First Amendment and carried .

. over by the Fourteenth Amendment against state action. in

° that a bookseller could have on his tables and shelves only

books appropriate for children under eighteen. Butler v.

Michigan, supra.

CONCLUSION

The Winters case has been law for twelve years. There

would seem to be no reason for departing from that deci-

sion. However, as has been pointed out in this Brief in

Opposition, the opinion’ of the Court of Appeals of Mary-

land in this cdse is bused upon many considerations other

than the Winters case. The invalidity of subsection (d) is

predicated upon ‘Butler, not Winters. No newspaper ex-

emption was involved in Winters. The Court of Appeals

found that the Act is inimical to the Maryland Declaration

of Rights, as well as the Constitution of the United States.

This Court has consistently taken the position that it wil!

not entertain jurisdiction of cases of this type if there was

sufficient state ground for the decisions. Black 1». Cutter

Laboratories, 351 U.S. 292: Wolfe v. North Carolina. 4 Lu.

Ed. 2d 1650, 80 S. Ct. 1482.

9

The Petition for Certiorari should be denied.

| Respectfully submitted,

WILLIAM GREENFELD.

ALBERT PoLovoy,

CoRNELIUs P. Munpy,

Counsel for Respondent,