# Brief of Respondent in Opposition — Police Commissioner v. Siegel Enterprises, Inc. (No. 450) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0643%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief of Respondent in Opposition - **Published:** January 1, 1960 ## Text Z= COPY ge aia Pp US, 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, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0643%3A3. Public record. Not legal advice.